Bill Text: TX HB3114 | 2019-2020 | 86th Legislature | Comm Sub
Bill Title: Relating to contested case hearings on matters under the jurisdiction of the Texas Commission on Environmental Quality.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2019-04-11 - Considered in Calendars [HB3114 Detail]
Download: Texas-2019-HB3114-Comm_Sub.html
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 |
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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 [ |
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(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. [ |
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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 [ |
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commission. | ||
(b) The [ |
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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 [ |
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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 [ |
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heard at a contested case [ |
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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 [ |
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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 [ |
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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 [ |
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(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, [ |
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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 | ||
[ |
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Utility Commission of Texas which are governed by Section [ |
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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. |