HBA-ATS C.S.S.C.R. 33 76(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.S.C.R. 33
By: Ratliff
Civil Practices
4/30/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Gibson Recycling, Inc. (corporation) contracted with the Texas Natural
Resource Conservation Commission (TNRCC), to recycle waste tires under the
waste tire recycling program (program).  The corporation alleges that it
performed required obligations under the program, while  TNRCC failed to
meet its obligations under the terms of the agreement between the
corporation and TNRCC, and under the program.  Furthermore, the corporation
alleges that TNRCC caused the corporation to undergo an audit on its
operations under the program, on which TNRCC determined that Gibson had
been overpaid and proceeded to withhold a $400,000 payment.  The
corporation claims that it is lawfully entitled to that payment and that it
has sustained damages as a result of the action of TNRCC. 

C.S.S.C.R. 33 grants Gibson Recycling, Inc., permission to file a claim
against the Texas Natural Resource Conservation Commission with the State
Office of Administrative Hearings (hearings office).  This concurrent
resolution sets forth certain stipulations governing the resolution of the
dispute and the types of remedies available.  The resolution requires an
administrative law judge (ALJ) of the hearings office to hear the claim as
a contested case and to render a written order containing the ALJ's
findings of facts and recommendations.  Any act, finding, ruling, or award
by the ALJ is not subject to appeal to any Texas court.  The ALJ is
authorized to establish a fee to recover the hearings office's costs and to
assess a fee against the party that does not prevail or apportion the fee
against the parties in an equitable manner.   If legislation is enacted
that authorizes the hearings office to hear contract claims against the
state, the hearing authorized by this resolution is required to be heard in
accordance with that legislation and any rules or procedures adopted under
that legislation. 

In the contested case, TNRCC is authorized to assert any counterclaim or
offset that it claims against the corporation with respect to the
agreement.  Nevertheless, TNRCC must pay, exclusively from money
appropriated for this purpose, the claim if the ALJ finds, by a
preponderance of the evidence, the claim is valid.  However, the amount
awarded by the ALJ is prohibited from including any amount attributable to
consequential or punitive or exemplary damages.  In addition, the amount of
the claim paid is prohibited from exceeding the balance due and owing on
the contract price less any amount owed for work not performed under the
contract and less the amount of any valid counterclaim or offset asserted
by TNRCC.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

C.S.S.C.R. 33 grants Gibson Recycling, Inc., permission to file a claim
against the Texas Natural Resource Conservation Commission with the State
Office of Administrative Hearings (hearings office). 

Requires an administrative law judge (ALJ) of the hearings office to hear
the claim as a contested case and to render a written order containing the
ALJ's findings of facts and recommendations. 

 Authorizes TNRCC to assert any counterclaim or offset that it claims
against the corporation with respect to the agreement. 

Provides that TNRCC must pay, exclusively from money appropriated for this
purpose, the claim if the ALJ finds, by a preponderance of the evidence,
the claim is valid. 

Prohibits the amount awarded by the ALJ from including any amount
attributable to consequential or punitive or exemplary damages. 

Prohibits the amount of the claim paid from exceeding the balance due and
owing on the contract price less any amount owed for work not performed
under the contract and less the amount of any valid counterclaim or offset
asserted by TNRCC.   

Provides that any act, finding, ruling, or award by the ALJ is not subject
to appeal to any Texas court. 

Authorizes the ALJ to establish a fee to recover the hearings office's
costs and to assess a fee against the party that does not prevail or
apportion the fee against the parties in an equitable manner. 

Requires the hearing authorized by this resolution, if legislation is
enacted that authorizes the hearings office to hear contract claims against
the state, to be heard in accordance with that legislation and any rules or
procedures adopted under that legislation. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.C.R. 33 differs from the original concurrent resolution by removing
the allegation that the Texas Natural Resource Conservation Commission's
(TNRCC) audit division manipulated figures to suggest that the corporation
was overpaid by TNRCC. 

C.S.S.C.R. 33 differs from the original concurrent resolution by granting
Gibson Recycling, Inc., permission to file a claim against the Texas
Natural Resource Conservation Commission with the State Office of
Administrative Hearings (hearings office), rather than permission to sue
the State of Texas and TNRCC.  Accordingly, the substitute removes those
resolutions that: provided that remedies available to the corporation would
be limited to traditional remedies for breach of contract, but prohibited
the corporation from recovering punitive or exemplary damages; authorized
the corporation and TNRCC to agree to submit the subject of this resolution
to binding arbitration; and provided that the TNRCC executive director
would be served process as provided by the Civil Practice and Remedies
Code. 

Like the original resolution, the substitute sets forth certain
stipulations governing the types of remedies available.  In addition, the
substitute sets forth conditions governing the resolution of the dispute.
To read these stipulations and conditions, please see the Analysis section
in this document.