Bill Text: MS HB276 | 2019 | Regular Session | Introduced
Bill Title: Declaratory opinions; permit electronic submission of requests for.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2019-02-05 - Died In Committee [HB276 Detail]
Download: Mississippi-2019-HB276-Introduced.html
MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary A
By: Representative Henley
House Bill 276
AN ACT TO AMEND SECTION 25-43-2.103, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY PERSON WHO MAKES A REQUEST OF AN AGENCY FOR A DECLARATORY OPINION MAY MAKE THE REQUEST ELECTRONICALLY OR IN WRITING; TO REQUIRE EACH AGENCY TO INCLUDE INSTRUCTIONS ON ITS WEBSITE DETAILING HOW AN ELECTRONIC REQUEST OF AN AGENCY FOR A DECLARATORY OPINION MAY BE MADE AND WHAT INFORMATION MUST BE CONTAINED IN EACH SUCH REQUEST; TO REQUIRE AN AGENCY TO ESTABLISH THE PROPER ONLINE PORTALS TO ALLOW A PERSON TO SUBMIT AN ELECTRONIC REQUEST FOR A DECLARATORY OPINION; TO AMEND SECTION 41-7-205, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 25-43-2.103, Mississippi Code of 1972, is amended as follows:
25-43-2.103. Declaratory
opinions. (1) Any person with a substantial interest in the subject
matter may make a written or electronic request of an agency for a
declaratory opinion as to the applicability to specified circumstances of a
statute, rule or order within the primary jurisdiction of the agency. Each
agency shall include instructions on its website detailing how a person may
submit an electronic request of that agency for a declaratory opinion and what
information must be contained in each such request. The person may choose
whether to submit a request of an agency for a declaratory opinion in writing
or electronically. * * *
The written or electronic request must clearly set forth the
specific facts upon which an opinion is asked for and shall be limited to a
single transaction or occurrence. An agency, through the agency head or its
designee(s) by rule, shall issue a declaratory opinion in response to a written
or electronic request for that opinion unless the agency determines that
issuance of the opinion under the circumstances would be contrary to a rule
adopted in accordance with subsection (2) of this section.
(2) Each agency shall issue rules that provide for: (a) the form, contents and filing of written and electronic requests for declaratory opinions; (b) the procedural rights of persons in relation to the written and electronic requests; and (c) the disposition of the written and electronic requests. Those rules must describe the classes of circumstances in which the agency will not issue a declaratory opinion.
(3) Within forty-five (45) days after receipt of a written or electronic request for a declaratory opinion, an agency, in writing or electronically, shall:
(a) Issue an opinion declaring the applicability of the statute, rule or order in question to the specified circumstances;
(b) Agree to issue a declaratory opinion by a specified time but no later than ninety (90) days after receipt of the written or electronic request; or
(c) Decline to issue a declaratory opinion, stating the reasons for its action.
(4) A copy of all opinions issued in response to a written request for a declaratory opinion must be mailed promptly to the requesting person. A copy of all opinions issued in response to an electronic request for a declaratory opinion must be electronically delivered promptly to the requesting person.
(5) (a) When any person
receives a declaratory opinion from an agency and * * * has stated all the facts to
govern * * *
that opinion, the agency shall take no civil or criminal action against * * * the person who, in good faith,
follows the direction of * * *such the opinion and acts in accordance * * * with the opinion unless a court
of competent jurisdiction, after a full hearing, * * *judicially declares that * * * the opinion is manifestly wrong and
without any substantial support. No declaratory opinion shall be given or
considered if the opinion is requested after suit is filed or prosecution
begun. Any declaratory opinion rendered pursuant to this chapter shall not be
binding or effective for any third party or person other than the agency
issuing the declaratory opinion and the person to whom the opinion is issued and
shall not be used as precedent for any other transaction or occurrence beyond
that set forth by the requesting person.
(b) The authority of persons to request and receive agency declaratory opinions in no way affects the ability of any person authorized by Section 7-5-25 to request a legal opinion from the Attorney General.
(c) Subject to any
confidentiality provisions established by law, each agency shall make all
declaratory opinions available for public inspection and copying and shall
index them by name and subject, unless information contained within * * * the opinions is confidential by
statute or exempt from public disclosure pursuant to another provision of law.
(6) Without in any way limiting a person's right to request and receive a declaratory opinion under this section, or an agency's duty to issue a declaratory opinion under this section, nothing contained in this section shall prohibit an agency from providing informal responses or advice, orally or in writing, to any inquiries or requests for information submitted to the agency. Informal responses shall not be considered a declaratory opinion under this section.
SECTION 2. Section 41-7-205, Mississippi Code of 1972, is amended as follows:
41-7-205. An applicant
proposing a project which may be governed by the provisions of Section 41-7-171
et seq. may submit a determination of reviewability request to obtain a written
or electronic declaratory opinion regarding the reviewability of the
proposed project. If such an opinion is sought, the requestor and
department shall abide by the provisions of Section 25-43-2.103 as they are
effective on July 1, * * *
2019, except that the department's response shall be provided within
forty-five (45) days of the request.
SECTION 3. This act shall take effect and be in force from and after July 1, 2019.
