86R22186 SLB-F
By: Kacal H.B. No. 3114
Substitute the following for H.B. No. 3114:
By: Lozano C.S.H.B. No. 3114
A BILL TO BE ENTITLED
AN ACT
relating to contested case hearings on matters under the
jurisdiction of the Texas Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CONTESTED CASE HEARINGS
SECTION 1.01. Section 5.001, Water Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Administrative law judge" means an individual who
presides at an administrative hearing held under Subchapters H and
H-1.
(1-a) "Board" means the Texas Water Development Board.
SECTION 1.02. Subchapter D, Chapter 5, Water Code, is
amended by adding Section 5.1101 to read as follows:
Sec. 5.1101. ADMINISTRATIVE LAW JUDGES. (a) The
commission may employ or contract with administrative law judges to
assist the commission in carrying out the duties of the commission
under this code and other law.
(b) Administrative law judges are independent of the
executive director of the commission.
SECTION 1.03. Section 5.228(c), Water Code, is amended to
read as follows:
(c) The executive director shall participate as a party in
contested case permit hearings before the commission [or the State
Office of Administrative Hearings] to:
(1) provide information to complete the
administrative record; and
(2) support the executive director's position
developed in the underlying proceeding, unless the executive
director has revised or reversed that position.
SECTION 1.04. The heading to Subchapter H, Chapter 5, Water
Code, is amended to read as follows:
SUBCHAPTER H. [DELEGATION OF] HEARINGS
SECTION 1.05. Subchapter H, Chapter 5, Water Code, is
amended by adding Sections 5.301, 5.302, and 5.310 to read as
follows:
Sec. 5.301. POWERS OF ADMINISTRATIVE LAW JUDGE. (a) An
administrative law judge employed by the commission or a temporary
administrative law judge may:
(1) administer an oath;
(2) take testimony;
(3) rule on a question of evidence;
(4) issue an order relating to discovery or another
hearing or prehearing matter, including an order imposing a
sanction;
(5) issue an order that refers a case to an alternative
dispute resolution procedure, determines how the costs of the
procedure will be apportioned, and appoints an impartial third
party as described by Section 2009.053, Government Code, to
facilitate that procedure;
(6) issue a proposal for decision that includes
findings of fact and conclusions of law; and
(7) serve as an impartial third party as described by
Section 2009.053, Government Code, for a dispute referred by the
commission or an administrative law judge, unless one of the
parties objects to the appointment.
(b) An administrative law judge may not serve as an
impartial third party for a dispute that the administrative law
judge refers to an alternative dispute resolution procedure.
Sec. 5.302. EX PARTE CONSULTATIONS. (a) Except as provided
by Subsection (b), the provisions of Section 2001.061, Government
Code, apply in relation to a matter before the commission without
regard to whether the matter is considered a contested case under
this chapter.
(b) The provisions of Section 2001.061, Government Code, do
not apply to a matter before the commission to the extent that the
commission is conducting an alternative dispute resolution
procedure in relation to the matter. The commission shall adopt
rules that prescribe the types of alternative dispute resolution
procedures in which ex parte consultations are prohibited and the
types of alternative dispute resolution procedures in which ex
parte consultations are allowed. For alternative dispute
resolution procedures in which ex parte consultations are
prohibited, the commission in adopting rules under this subsection
shall model the prohibition after Section 2001.061, Government
Code, but may vary the extent of the prohibition if necessary to
take into account the nature of alternative dispute resolution
procedures.
Sec. 5.310. APPLICABILITY. This subchapter applies to
hearings held for matters under the jurisdiction of the commission.
SECTION 1.06. Section 5.311, Water Code, is amended to read
as follows:
Sec. 5.311. DELEGATION OF RESPONSIBILITY. (a) The
commission may delegate to an administrative law judge employed or
contracted by [of] the commission [State Office of Administrative
Hearings] the responsibility to hear any matter before the
commission.
(b) The [Except as provided in Subsection (a), the]
administrative law judge shall report to the commission on the
hearing in the manner provided by law.
SECTION 1.07. Section 5.312(a), Water Code, is amended to
read as follows:
(a) Except as provided in Subsection (b) and otherwise in
this subchapter and Subchapter H-1, all permit decisions shall be
made within 180 days of the receipt of the permit application or
application amendment or the determination of administrative
completeness, whichever is later.
SECTION 1.08. Section 5.315, Water Code, is amended to read
as follows:
Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN
TESTIMONY. In a contested case hearing delegated by the commission
to an administrative law judge [the State Office of Administrative
Hearings] that uses prefiled written testimony, all discovery must
be completed before the deadline set by the administrative law
judge for the submission of that testimony in accordance with
Section 5.318.
SECTION 1.09. Subchapter H, Chapter 5, Water Code, is
amended by adding Sections 5.316 through 5.325 to read as follows:
Sec. 5.316. HEARING BEFORE COMMISSION; APPLICABILITY OF
OTHER LAW. (a) An administrative law judge to whom the commission
has delegated a contested case hearing shall conduct the hearing.
(b) The provisions of Chapter 2001, Government Code, apply
to contested case hearings for the commission to the extent not
inconsistent with this subchapter.
Sec. 5.317. ADMINISTRATIVE LAW JUDGES. (a) The commission
may employ or contract with qualified individuals to serve as
temporary or permanent administrative law judges or technical
advisors as necessary.
(b) To be eligible to preside at a hearing on behalf of the
commission, an administrative law judge, regardless of temporary or
permanent status, must:
(1) be licensed to practice law in this state; and
(2) have the expertise necessary to conduct hearings
regarding technical or other specialized subjects that may come
before the commission.
Sec. 5.318. HEARING TIMELINES. (a) The commission shall
specify the date by which the administrative law judge is expected
to complete the proceeding and provide a proposal for decision to
the commission. The administrative law judge may extend the
proceeding if the administrative law judge determines that failure
to grant an extension would deprive a party of due process or
another constitutional right. The administrative law judge shall
establish a procedural scheduling order designed to complete the
proceeding by the date specified by the commission.
(b) For a matter relating to an application described by
Section 11.122(b-1), the administrative law judge must complete the
proceeding and provide a proposal for decision to the commission
not later than the 270th day after the date the commission's interim
order was signed.
(c) The timeline specified by Subsection (b) may be
extended:
(1) by agreement of the parties with the approval of
the administrative law judge; or
(2) by the administrative law judge if the judge
determines that failure to extend the timeline would unduly deprive
a party of due process or another constitutional right.
Sec. 5.319. SCOPE OF HEARING. In delegating a matter for
hearing, the commission shall provide to the administrative law
judge a list of specified issues. Except as otherwise provided by
this section, the scope of the hearing is limited to the issues
specified by the commission. On the request of a party, the
administrative law judge may consider an issue that was not
specified by the commission if the administrative law judge
determines that:
(1) the issue is material;
(2) the issue is supported by evidence; and
(3) there are good reasons for the failure to supply
available information regarding the issue during the public comment
period.
Sec. 5.320. DISCOVERY. (a) The scope of permissible
discovery is limited to:
(1) any matter that:
(A) is reasonably calculated to lead to the
discovery of admissible evidence regarding any issue;
(B) is specified by the commission; or
(C) the administrative law judge has agreed to
consider; and
(2) the production of documents:
(A) reviewed or relied on in preparing
application materials or selecting the site of the proposed
facility; or
(B) relating to the ownership of the applicant or
the owner or operator of the facility or proposed facility.
(b) The commission by rule shall:
(1) provide for subpoenas and commissions for
depositions; and
(2) require that discovery be conducted in accordance
with the Texas Rules of Civil Procedure, except that the commission
by rule shall determine the level of discovery under Rule 190, Texas
Rules of Civil Procedure, appropriate for each type of case
considered by the commission, taking into account the nature and
complexity of the case.
Sec. 5.321. CERTIFICATION OF ISSUES. The commission shall
adopt rules providing for certification to the commission of an
issue that involves an ultimate finding of compliance with or
satisfaction of a statutory standard the determination of which is
committed to the discretion or judgment of the commission by law.
The rules must address, at a minimum:
(1) the issues that are appropriate for certification;
and
(2) the procedure to be used in certifying an issue.
Sec. 5.322. SANCTIONS. (a) An administrative law judge
hearing a case on behalf of the commission, on the judge's own
motion or on motion of a party and after notice and an opportunity
for a hearing, may impose appropriate sanctions as provided by
Subsection (b) against a party or its representative for:
(1) filing a motion or pleading that is groundless and
brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose, such as to
cause unnecessary delay or needless increase in the cost of the
proceeding;
(2) abuse of the discovery process in seeking, making,
or resisting discovery; or
(3) failure to obey an order of the administrative law
judge or the commission.
(b) A sanction imposed under Subsection (a) may include, as
appropriate and justified, issuance of an order:
(1) disallowing further discovery of any kind or of a
particular kind by the offending party;
(2) charging all or any part of the expenses of
discovery against the offending party or its representatives;
(3) holding that designated facts be considered
admitted for purposes of the proceeding;
(4) refusing to allow the offending party to support
or oppose a designated claim or defense or prohibiting the party
from introducing designated matters into evidence;
(5) wholly or partly disallowing requests for relief
by the offending party and excluding evidence in support of those
requests; and
(6) wholly or partly striking pleadings or testimony,
or both.
Sec. 5.323. PROPOSAL FOR DECISION. (a) After hearing
evidence and receiving legal argument, an administrative law judge
shall:
(1) separately state findings of fact, conclusions of
law, and any ultimate findings required by statute; and
(2) make a proposal for decision to the commission and
serve the proposal for decision on all parties.
(b) An opportunity shall be given to each party to file
exceptions to the proposal for decision and briefs related to the
issues addressed in the proposal for decision.
(c) The commission shall consider and act on the proposal
for decision.
Sec. 5.324. COMMISSION CONSIDERATION OF AND ACTION ON
PROPOSAL FOR DECISION. (a) Except as provided by Section 361.0832,
Health and Safety Code, the commission shall consider the proposal
for decision prepared by the administrative law judge, the
exceptions of the parties, and the briefs and argument of the
parties.
(b) The commission may amend the proposal for decision,
including any finding of fact, but an amendment to the proposal for
decision and order must be based solely on the record made before
the administrative law judge. An amendment by the commission must
be accompanied by an explanation of the basis of the amendment.
(c) The commission may return the matter back to the
administrative law judge to:
(1) reconsider any findings and conclusions set forth
in the proposal for decision; or
(2) take additional evidence or to make additional
findings of fact or conclusions of law.
(d) The commission shall issue its decision and order in
accordance with Subchapter F, Chapter 2001, Government Code.
Sec. 5.325. ALTERNATIVE DISPUTE RESOLUTION. (a) On a joint
motion agreed to by all parties, an administrative law judge
hearing a case on behalf of the commission may issue an order
referring the case to an alternative dispute resolution procedure.
(b) If the commission has not already conducted an
alternative dispute resolution procedure, the administrative law
judge shall consider the commission's recommendation in
determining whether to issue an order referring the case to the
procedure.
SECTION 1.10. Chapter 5, Water Code, is amended by adding
Subchapter H-1 to read as follows:
SUBCHAPTER H-1. HEARINGS ON CERTAIN APPLICATIONS
Sec. 5.340. APPLICABILITY. This subchapter applies to
contested cases regarding permit applications:
(1) filed on or after September 1, 2015; and
(2) referred to hearing under Section 5.555 or 5.557.
Sec. 5.341. HEARING TIMELINES. (a) An administrative law
judge shall complete a proceeding to which this subchapter applies
and provide a proposal for decision to the commission not later than
the earlier of:
(1) the 180th day after the date of the preliminary
hearing; or
(2) the date specified by the commission.
(b) The timeline specified by Subsection (a) or Section
5.318, as applicable, may be extended:
(1) by agreement of the parties with the approval of
the administrative law judge; or
(2) by the administrative law judge if the judge
determines that failure to extend the timeline would unduly deprive
a party of due process or another constitutional right.
(c) For the purposes of Subsection (b)(2), a political
subdivision has the same constitutional rights as an individual.
(d) This subsection applies only to a matter sent to hearing
under Section 5.557. The administrative law judge may not hold a
preliminary hearing until after the executive director has issued a
response to public comments under Section 5.555.
Sec. 5.342. SCOPE OF HEARING. This section applies only to
a matter referred to hearing under Section 5.556. Each issue
specified by the commission for hearing must have been raised by an
affected person in a comment submitted by that affected person in
response to a permit application in a timely manner. The list of
issues provided must:
(1) be detailed and complete; and
(2) contain either:
(A) only factual questions; or
(B) mixed questions of fact and law.
Sec. 5.343. PRIMA FACIE DEMONSTRATION. (a) In a contested
case regarding a permit application to which this subchapter
applies, the filing with the administrative law judge of the
application, the draft permit prepared by the executive director,
the preliminary decision issued by the executive director, and
other sufficient supporting documentation in the administrative
record of the permit application establishes a prima facie
demonstration that:
(1) the draft permit meets all state and federal legal
and technical requirements; and
(2) a permit, if issued consistent with the draft
permit, would protect human health and safety, the environment, and
physical property.
(b) A party may rebut a demonstration under Subsection (a)
by presenting evidence that:
(1) relates to a matter sent to hearing under Section
5.557, or an issue included in a list submitted under Section 5.342
in connection with a matter specified under Section 5.556; and
(2) demonstrates that one or more provisions in the
draft permit violate a specifically applicable state or federal
requirement.
(c) If in accordance with Subsection (b) a party rebuts a
presumption established under Subsection (a), the applicant and the
executive director may present additional evidence to support the
draft permit.
SECTION 1.11. Sections 5.556(d) and (e), Water Code, are
amended to read as follows:
(d) The commission may not specify [refer] an issue to be
heard at a contested case [the State Office of Administrative
Hearings for a] hearing unless the commission determines that the
issue:
(1) involves a disputed question of fact;
(2) was raised during the public comment period; and
(3) is relevant and material to the decision on the
application.
(e) If the commission grants a request for a contested case
hearing it shall:
(1) limit the number and scope of the issues to be
specified [referred to the State Office of Administrative Hearings]
for a hearing; and
(2) consistent with the nature and number of the
issues to be considered at the hearing, specify the maximum
expected duration of the hearing.
SECTION 1.12. Section 5.557(b), Water Code, is amended to
read as follows:
(b) Sections 5.318, 5.319, 5.554, 5.555, and 5.556 [of this
code and Sections 2003.047(e) and (f), Government Code,] do not
apply to an application referred for a hearing under Subsection
(a).
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Section 2003.024(d), Government Code, is
amended to read as follows:
(d) This section does not apply to hearings conducted:
(1) under Section [2003.047 or] 2003.049; or
(2) under the administrative license revocation
program.
SECTION 2.02. Section 2003.025(a), Government Code, is
amended to read as follows:
(a) This section applies to a state agency that has entered
into a contract with the office for the conduct of hearings and
alternative dispute resolution procedures for the agency,
including a contract under Section 2003.024, [2003.048,] 2003.049,
or 2003.105, during any of the three most recent state fiscal years.
SECTION 2.03. Section 2003.0421(c), Government Code, is
amended to read as follows:
(c) This section applies to any contested case hearing
conducted by the office, except hearings conducted on behalf of
[the Texas Commission on Environmental Quality or] the Public
Utility Commission of Texas which are governed by Section [Sections
2003.047 and] 2003.049.
ARTICLE 3. REPEALER
SECTION 3.01. The following provisions are repealed:
(1) Section 2003.047, Government Code;
(2) Section 2003.048, Government Code; and
(3) Section 5.313, Water Code.
ARTICLE 4. TRANSITION; EFFECTIVE DATE
SECTION 4.01. Not later than September 1, 2020, the Texas
Commission on Environmental Quality shall adopt rules to implement
the changes in law made by this Act.
SECTION 4.02. As soon as practicable after the effective
date of this Act, the chief administrative law judge of the State
Office of Administrative Hearings and the executive director of the
Texas Commission on Environmental Quality shall enter into a
memorandum of understanding to:
(1) determine the number of administrative law judges
necessary to conduct hearings for the Texas Commission on
Environmental Quality effectively and other details related to the
qualification and requirements of those administrative law judges;
(2) make the necessary changes in the State Office of
Administrative Hearings to implement the changes in law made by
this Act; and
(3) arrange for the transfer from the State Office of
Administrative Hearings to the Texas Commission on Environmental
Quality all equipment, data, facilities, and other items related to
hearings conducted on behalf of the commission, to occur not later
than September 1, 2020.
SECTION 4.03. The changes in law made by this Act apply only
to a contested case hearing referred by the Texas Commission on
Environmental Quality to an administrative law judge on or after
September 1, 2020. A contested case hearing referred by the Texas
Commission on Environmental Quality to an administrative law judge
before September 1, 2020, is governed by the law in effect at the
time the case was referred, and the former law is continued in
effect for that purpose.
SECTION 4.04. This Act takes effect September 1, 2019.