HBA-ATS S.B. 757 76(R)            BILL ANALYSIS


Office of House Bill AnalysisS.B. 757
By: Duncan
Civil Practices
4/16/1999
Engrossed



BACKGROUND AND PURPOSE 

S.B. 757 clarifies the purpose of the State Office of Administrative
Hearings (office), the independence of its judges, and issues related to
the office's method of funding for the utility and natural resources
divisions.  It allows the office to adopt a seal authenticating the
official acts of the office, delineates the scope of responsibilities of
the chief administrative law judge (judge), establishes minimum standards
for appointment by the chief administrative law judge to the position of
senior judge or master judge, and adds the Texas Center for the Judiciary
to the list of entities from which the judges may receive training. This
bill also delegates rulemaking authority to the judge as to the types of
alternative dispute resolution procedures that are permitted and
prohibited. 
 
RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the chief administrative law judge of
the State Office of Administrative Hearings in SECTION 5 (Section
2003.0412, Government Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 2003.021, Government Code, by amending
Subsections (a) and (b) and adding Subsection (e), as follows: 

(a)  Provides that the State Office of Administrative Hearings (office) is
a state agency created as an independent forum for the conduct of
adjudicative hearings in the executive branch of state government.
Provides that the purpose of the office is to separate the adjudicative
function from the investigative, prosecutorial, and policymaking functions
in the executive branch in relation to hearings that the office is
authorized to conduct. 

(b)  Requires the office to conduct administrative hearings in matters for
which the office is required to conduct the hearing under other law.
Requires, rather than authorizes, the office to conduct alternative dispute
resolution procedures that the office is required to conduct under law.
Authorizes the office to conduct, for a fee and under a contract,
administrative hearings or alternate dispute resolution procedures in
matters voluntarily referred to the office by a governmental entity. 

(e)  Authorizes the office to adopt a seal to authenticate the official
acts of the office and of its administrative law judges. 

SECTION 2.  Amends Section 2003.022, Government Code, by amending
Subsection (a) and adding Subsections (c) and (d), to 

(a) Provide that the chief administrative law judge (judge) is eligible for
reappointment. 

(c) Prohibit the judge from engaging in the practice of law while serving
as judge.  Provides that the judge serves in a full-time position. 

(d) Set forth responsibilities required of the judge.

 SECTION 3.  Amends Subchapter B, Chapter 2003, Government Code, by adding
Section 2003.024, as follows: 

Sec. 2003.024. INTERAGENCY CONTRACTS.  (a) Requires the office and a state
agency that refers matters to the office, to enter into an interagency
contract for the biennium under which the referring agency pays the office
the costs of conducting a hearing or procedure, if the costs to the office
of conducting hearings and alternative dispute resolution procedures for an
agency are not otherwise paid by appropriations.  Provides that the costs
paid under the contract be based on an hourly rate set by the office.
Requires the rate to be set in time for it to be reviewed by the
legislature during the review of the office's legislative appropriations
request for the biennium. 

(b) Requires the office that conducts hearings and alternative dispute
resolution procedures and a state agency that refers matters to the office
that are not paid by certain appropriations, to enter into an interagency
contract for each state fiscal year under which the referring agency pays
the office the costs for the number of hours spent by the office conducting
hearings or alternate dispute resolution procedures that exceed by 10
percent or more the number of hours spent by the office during the state
fiscal year that ended August 31, 1998.  Provides that the costs paid under
the contract be based on an hourly rate set by the office. Requires the
rate to be set in time for it to be reviewed by the legislature during the
review of the office's legislative appropriations request for the biennium. 

(c) Requires the office to file an estimate of its hourly costs in
conducting each type of hearing or dispute resolution procedure, based on
the average cost per hour during the preceding state fiscal year of certain
costs incurred in conducting hearings or dispute resolutions. 

(d) Provides that this section does not apply to certain hearings.

SECTION 4.  Amends Section 2003.041, Government Code, by adding Subsection
(c), as follows: 

(c)  Provides that an administrative law judge employed by the office is
responsible and subject only to the judge or a senior or master
administrative law judge designated by the judge. 

SECTION 5.  Amends Subchapter C, Chapter 2003, Government Code, by adding
Sections 2003.0411 and 2003.0412, as follows: 

Sec. 2003.0411.  SENIOR AND MASTER ADMINISTRATIVE LAW JUDGES. Authorizes
the judge to appoint senior administrative law judges to perform duties
assigned by the judge.  Sets forth the requirements necessary to be
appointed a senior administrative law judge.  Sets forth the requirements
necessary to be appointed a master administrative law judge. 

Sec. 2003.0412. EX PARTE CONSULTATIONS.  (a ) Provides that, except as
provided by Subsection (b), the provisions of Section 2001.061(Ex Parte
Consultations) apply in relation to a matter before the office without
regard to whether the matter is considered a contested case under Chapter
2001. 

(b) Provides that the provisions of Section 2001.061 do not apply to a
matter before the office to the extent that the office is conducting an ADR
procedure in relation to the matter. Requires the judge to adopt rules
prescribing the types of ADR procedures in which ex parte consultations are
prohibited and the types that are allowed.  Requires the judge in adopting
rules for ADR procedures in which ex parte consultations are prohibited, to
model the prohibition after Section 2001.061, but  authorized the judge to
vary the extent of the prohibition if it is necessary to take into account
the nature of the ADR procedures. 

 SECTION 6.  Amends Section 2003.045, Government Code, as follows:

Sec. 2003.045.   New title:  OVERSIGHT OF ADMINISTRATIVE LAW JUDGES.
Authorizes the judge to designate senior or master administrative law
judges, rather than an administrative division in the office, to oversee
the training, evaluation, discipline, and promotion of administrative law
judges employed by the office.  Makes nonsubstantive change. 

SECTION 7. Amends Section 2003.0451(a), Government Code, to include the
Texas Center for the Judiciary in the external sources through which the
office is required to offer specified courses and training.  

SECTION 8.  Amends Section 2003.046, Government Code, as follows:

(a) Provides that a central hearings panel in the office is composed of
administrative law judges and senior or master administrative law judges,
rather than six senior administrative law judges assigned to the panel,
rather than appointed, by the judge. 

(b) Authorizes the judge to create teams within the central panel,
including an administrative license revocation division, according to the
subject matter or types of hearings conducted by the central panel, rather
than requiring the central panel to coordinate and supervise the operation
of administrative hearings conducted by the office.  Makes conforming and
nonsubstantive changes. 

SECTION 9.  Amends Section 2003.048, Government Code, as follows:

Sec. 2003.048.  NATURAL RESOURCE CONSERVATION COMMISSION HEARINGS FEE.
Prohibits a fee charged to the Texas Natural Resource Conservation
Commission (commission) for certain services from being less than the
amount appropriated to the commission in the General Appropriations Act for
payment to the natural resource conservation division to conduct commission
hearings.  Requires the fee to be based on costs incurred to conduct such
hearings. 

SECTION 10.  Amends Section 2003.049(1), Government Code, to make a
conforming change. 

SECTION 11.  Amends Subchapter C, Chapter 2003, Government Code, by adding
Section 2003.051, as follows: 

Sec.  2003.051.  ROLE OF REFERRING AGENCY.  Prohibits a state agency that
has referred a matter to the office in which the office will conduct a
hearing from taking any adjudicative action relating to the matter until
the office has issued its proposal for decision or otherwise concluded its
involvement in the matter.  Authorizes the state agency to exercise its
advocacy rights in the matter before the office in the same manner as any
other party. 

SECTION 12.  Effective date: September 1, 1999, except as provided by
Subsection (b) of this section.  Effective date for Section 2003.024,
Government Code, as added by this Act, and the changes in law made by this
Act to Sections 2003.048 and 2003.049, Government Code:  September 1, 2000. 

SECTION 13.  Emergency clause.