Bill Text: TX SB216 | 2015-2016 | 84th Legislature | Introduced
Bill Title: Relating to the functions and operation of the State Office of Administrative Hearings.
Spectrum: Moderate Partisan Bill (Republican 4-1)
Status: (Introduced - Dead) 2015-03-10 - Referred to State Affairs [SB216 Detail]
Download: Texas-2015-SB216-Introduced.html
84R7566 AAF-D | ||
By: Birdwell, et al. | S.B. No. 216 |
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relating to the functions and operation of the State Office of | ||
Administrative Hearings. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 2001.058, Government Code, is amended by | ||
adding Subsection (d-1) to read as follows: | ||
(d-1) On making a finding that a party to a contested case | ||
has defaulted under the rules of the State Office of Administrative | ||
Hearings, the administrative law judge may dismiss the case from | ||
the docket of the State Office of Administrative Hearings and | ||
remand it to the referring agency for informal disposition under | ||
Section 2001.056. After the case is dismissed and remanded, the | ||
agency may informally dispose of the case by applying its own rules | ||
or the procedural rules of the State Office of Administrative | ||
Hearings relating to default proceedings. This subsection does not | ||
apply to a contested case in which the administrative law judge is | ||
authorized to render a final decision. | ||
SECTION 2. Section 2003.023, Government Code, is amended to | ||
read as follows: | ||
Sec. 2003.023. SUNSET PROVISION. The State Office of | ||
Administrative Hearings is subject to review under Chapter 325 | ||
(Texas Sunset Act), but is not abolished under that chapter. The | ||
office shall be reviewed during the periods in which state agencies | ||
abolished in 2027 [ |
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reviewed. | ||
SECTION 3. Section 2003.024, Government Code, is amended by | ||
amending Subsections (a), (a-2), (c), and (d) and adding | ||
Subsections (a-3) and (a-4) to read as follows: | ||
(a) If a state agency referred matters to the office during | ||
any of the three most recent state fiscal years for which complete | ||
information about the agency's hourly usage is available and the | ||
costs to the office of conducting hearings and alternative dispute | ||
resolution procedures for the state agency are not to be paid by | ||
appropriations to the office during a state fiscal biennium, the | ||
office and the agency shall enter into an interagency contract for | ||
the biennium under which the referring agency pays the office | ||
either a lump-sum amount[ |
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biennium or a fixed amount at the start of each fiscal quarter of | ||
the biennium for[ |
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conducting all hearings and procedures for the agency during the | ||
fiscal year. The office shall report to the Legislative Budget | ||
Board any agency that fails to make a timely payment under the | ||
contract. The lump-sum or quarterly amount paid to the office under | ||
the contract must be based on: | ||
(1) an hourly rate that is set by the office: | ||
(A) in an amount that sufficiently covers the | ||
office's full costs in conducting a hearing or procedure for the | ||
agency, including costs for items listed in Subsection (c)(2); and | ||
(B) in time for the rate to be reviewed by the | ||
legislature, as part of the legislature's review of the office's | ||
legislative appropriations request for the biennium, in | ||
determining the office's legislative appropriations for the | ||
biennium; and | ||
(2) the anticipated hourly usage of the office's | ||
services by the referring agency for each fiscal year of the | ||
biennium, as estimated by the office under Subsection (a-1). | ||
(a-2) The office, for a contract entered into as provided by | ||
Subsection (a): | ||
(1) may only require the referring agency to make an | ||
additional payment to the office if the agency's actual hourly | ||
usage of the office's services is greater than the agency's | ||
anticipated hourly usage of the office's services as estimated | ||
under Subsection (a-1) for a fiscal year by more than 10 percent; | ||
and | ||
(2) is only required to reimburse the referring agency | ||
if the agency's actual hourly usage of the office's services is less | ||
than the agency's anticipated hourly usage of the office's services | ||
as estimated under Subsection (a-1) for a fiscal year by more than | ||
10 percent. | ||
(a-3) The office, for a contract entered into as provided | ||
under Subsection (a) under which a quarterly amount is paid by the | ||
referring agency to the office, shall: | ||
(1) track the agency's actual hourly usage of the | ||
office's services during each fiscal quarter and forecast, after | ||
each fiscal quarter, the agency's anticipated hourly usage for the | ||
rest of the fiscal year; and | ||
(2) make adjustments to the quarterly amount if the | ||
office forecasts under Subdivision (1) that the agency's actual | ||
hourly usage of the office's services will differ from anticipated | ||
hourly usage of the office's services estimated under Subsection | ||
(a-1) by 10 percent or more at the end of the fiscal year. | ||
(a-4) If a state agency did not refer matters to the office | ||
during any of the three state fiscal years preceding a state fiscal | ||
biennium for which complete information about the agency's hourly | ||
usage would have been available and did not provide information to | ||
the office sufficient for the office to reasonably and timely | ||
estimate anticipated usage and enter into a contract with the | ||
agency before the start of the state fiscal biennium, and the costs | ||
to the office of conducting hearings and alternative dispute | ||
resolution procedures for the state agency are not paid by | ||
appropriations to the office for the state fiscal biennium, the | ||
referring agency shall pay the office the costs of conducting | ||
hearings or procedures for the agency based on the hourly rate that | ||
is set by the office under Subsection (a) and on the agency's actual | ||
usage of the office's services. | ||
(c) Each state fiscal biennium, the office as part of its | ||
legislative appropriation request shall file: | ||
(1) information, as estimated under Subsection (a-1), | ||
related to the anticipated hourly usage of each state agency that | ||
refers matters to the office for which the costs of hearings and | ||
alternative dispute resolution procedures are anticipated to be | ||
paid by appropriations to the office; and | ||
(2) an estimate of its hourly costs in conducting each | ||
type of hearing or dispute resolution procedure[ |
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the preceding state fiscal year of: | ||
(A) the salaries of its administrative law | ||
judges; | ||
(B) the travel expenses, hearing costs, and | ||
telephone charges directly related to the conduct of a hearing or | ||
procedure; and | ||
(C) the administrative costs of the office, | ||
including docketing costs [ |
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(d) This section does not apply to hearings conducted: | ||
(1) under Section 2003.047 or 2003.049 [ |
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(2) under the administrative license revocation | ||
program. | ||
SECTION 4. Subchapter B, Chapter 2003, Government Code, is | ||
amended by adding Section 2003.025 to read as follows: | ||
Sec. 2003.025. REQUIRED INFORMATION REGARDING ANTICIPATED | ||
HOURLY USAGE. (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. | ||
(b) On a date determined by the office before the beginning | ||
of each state fiscal biennium, a state agency to which this section | ||
applies shall submit to the office and the Legislative Budget Board | ||
information regarding the agency's anticipated hourly usage of the | ||
office's services for each fiscal year of that biennium. | ||
SECTION 5. 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 [ |
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Quality or the Public Utility Commission of Texas which are | ||
governed by Sections 2003.047 and 2003.049. | ||
SECTION 6. The heading to Section 2003.047, Government | ||
Code, is amended to read as follows: | ||
Sec. 2003.047. HEARINGS FOR TEXAS COMMISSION ON | ||
ENVIRONMENTAL QUALITY [ |
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SECTION 7. Sections 2003.047(a), (b), and (c), Government | ||
Code, are amended to read as follows: | ||
(a) The office shall [ |
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the Texas [ |
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Environmental Quality. | ||
(b) The office [ |
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to contested cases before the commission, other than a hearing | ||
conducted by one or more commissioners. The commission by rule may | ||
delegate to the office [ |
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other matter before the commission if consistent with the | ||
responsibilities of the office [ |
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(c) [ |
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serve as temporary administrative law judges as necessary. | ||
SECTION 8. Section 2003.048, Government Code, is amended to | ||
read as follows: | ||
Sec. 2003.048. TEXAS [ |
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COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall | ||
charge the Texas [ |
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Environmental Quality a fixed annual fee rather than an hourly rate | ||
for services rendered by the office to the commission. The amount | ||
of the fee may not be less than the amount appropriated to the Texas | ||
[ |
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Quality in the General Appropriations Act for payment to the office | ||
[ |
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hearings. The amount of the fee shall be based on the costs of | ||
conducting the hearings, the costs of travel expenses and telephone | ||
charges directly related to the hearings, docketing costs, and | ||
other applicable administrative costs of the office [ |
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the amount of the fixed fee biennially, subject to the approval of | ||
the governor, to coincide with the commission's legislative | ||
appropriations request. | ||
SECTION 9. The heading to Section 2003.049, Government | ||
Code, is amended to read as follows: | ||
Sec. 2003.049. UTILITY HEARINGS [ |
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SECTION 10. Sections 2003.049(a), (b), (c), (k), and (l), | ||
Government Code, are amended to read as follows: | ||
(a) The office shall [ |
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perform [ |
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Commission of Texas as prescribed by the Public Utility Regulatory | ||
Act of 1995 and other applicable law. | ||
(b) The office [ |
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relating to contested cases before the commission, other than a | ||
hearing conducted by one or more commissioners. The commission by | ||
rule may delegate the responsibility to hear any other matter | ||
before the commission if consistent with the duties and | ||
responsibilities of the office [ |
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(c) [ |
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[ |
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individuals to serve as temporary administrative law judges as | ||
necessary. | ||
(k) Hearings conducted for the commission by the office | ||
shall be held in hearing rooms provided by the commission. The | ||
commission shall also provide the office [ |
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to its computer systems, databases, and library resources. | ||
(l) The office shall charge the commission a fixed annual | ||
fee rather than an hourly rate for services rendered [ |
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than the amount appropriated to the commission in the General | ||
Appropriations Act for payment to the office [ |
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conduct commission hearings. The amount of the fee shall be based | ||
on the costs of conducting the hearings, the costs of travel | ||
expenses and telephone charges directly related to the hearings, | ||
docketing costs, and other applicable administrative costs of the | ||
office [ |
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amount of the fixed fee biennially, subject to the approval of the | ||
governor, to coincide with the commission's legislative | ||
appropriations request. | ||
SECTION 11. Section 2003.051, Government Code, is amended | ||
to read as follows: | ||
Sec. 2003.051. ROLE OF REFERRING AGENCY. (a) Except in | ||
connection with interim appeals of orders or questions certified to | ||
an agency by an administrative law judge, as permitted by law, a | ||
state agency that has referred a matter to the office in which the | ||
office will conduct a hearing may not take any adjudicative action | ||
relating to the matter until the office has issued its proposal for | ||
decision or otherwise concluded its involvement in the matter. The | ||
state agency may exercise its advocacy rights in the matter before | ||
the office in the same manner as any other party. | ||
(b) If the office issues a proposal for decision in a matter | ||
referred to the office by a state agency, the referring agency shall | ||
send to the office an electronic copy of the agency's final decision | ||
or order in the matter. | ||
SECTION 12. The heading to Subchapter D, Chapter 2003, | ||
Government Code, is amended to read as follows: | ||
SUBCHAPTER D. TAX HEARINGS [ |
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SECTION 13. The heading to Section 2003.101, Government | ||
Code, is amended to read as follows: | ||
Sec. 2003.101. TAX HEARINGS [ |
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SECTION 14. Sections 2003.101(a), (b), (d), and (i), | ||
Government Code, are amended to read as follows: | ||
(a) The office shall [ |
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hearings relating to contested cases involving the collection, | ||
receipt, administration, and enforcement of taxes, fees, and other | ||
amounts as prescribed by Section 111.00455, Tax Code. | ||
(b) An administrative law judge who presides at a [ |
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tax hearing [ |
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law judge II." Section 2003.0411 does not apply to this section. | ||
(d) To be eligible to preside at a tax [ |
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an administrative law judge, including a temporary administrative | ||
law judge contracted with under Section 2003.043, must: | ||
(1) be a United States citizen; | ||
(2) be an attorney in good standing with the State Bar | ||
of Texas; | ||
(3) have been licensed in this state to practice law | ||
for at least seven years; and | ||
(4) have substantial experience in tax cases in making | ||
the record suitable for administrative review [ |
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[ |
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(i) For each hearing conducted under this section, an | ||
administrative law judge [ |
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proposal for decision that includes findings of fact and | ||
conclusions of law. In addition, the proposal for decision must | ||
include the legal reasoning and other analysis considered by the | ||
judge in reaching the decision. Each finding of fact or conclusion | ||
of law made by the judge must be: | ||
(1) independent and impartial; and | ||
(2) based on state law and the evidence presented at | ||
the hearing. | ||
SECTION 15. Sections 2003.103(a) and (b), Government Code, | ||
are amended to read as follows: | ||
(a) The office [ |
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under this subchapter in a timely manner. | ||
(b) The office [ |
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means to expedite a case under this subchapter when the comptroller | ||
requests that the office [ |
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SECTION 16. The heading to Section 2003.104, Government | ||
Code, is amended to read as follows: | ||
Sec. 2003.104. CONFIDENTIALITY OF TAX HEARING [ |
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INFORMATION. | ||
SECTION 17. The heading to Section 2003.105, Government | ||
Code, is amended to read as follows: | ||
Sec. 2003.105. TAX [ |
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SECTION 18. Section 2003.109, Government Code, is amended | ||
to read as follows: | ||
Sec. 2003.109. RULES; EARLY REFERRAL. (a) The comptroller | ||
may adopt rules to provide for the referral to the office [ |
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111.00455, Tax Code, to resolve a procedural or other preliminary | ||
dispute between the comptroller and a party. | ||
(b) After a referral under this section, the office [ |
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judge under Section 2003.101. If additional proceedings are | ||
required after the consideration of the procedural or other | ||
preliminary dispute, the office [ |
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same administrative law judge to hear the case. | ||
SECTION 19. The heading to Section 111.00455, Tax Code, is | ||
amended to read as follows: | ||
Sec. 111.00455. CONTESTED CASES CONDUCTED BY [ |
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SECTION 20. Sections 111.00455(a) and (c), Tax Code, are | ||
amended to read as follows: | ||
(a) The [ |
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Hearings shall conduct any contested case hearing as provided by | ||
Section 2003.101, Government Code, in relation to the collection, | ||
receipt, administration, and enforcement of: | ||
(1) a tax imposed under this title; and | ||
(2) any other tax, fee, or other amount that the | ||
comptroller is required to collect, receive, administer, or enforce | ||
under a law not included in this title. | ||
(c) A reference in law to the comptroller that relates to | ||
the performance of a contested case hearing described by Subsection | ||
(a) means the [ |
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Hearings. | ||
SECTION 21. Section 524.032(b), Transportation Code, is | ||
amended to read as follows: | ||
(b) A hearing shall be rescheduled if, before the fifth day | ||
before the date scheduled for the hearing, [ |
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the hearing is received in accordance with the memorandum of | ||
understanding adopted under Section 524.033(c). Unless both | ||
parties agree otherwise, the hearing shall be rescheduled for a | ||
date not earlier than the fifth day after the date [ |
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SECTION 22. Section 524.033, Transportation Code, is | ||
amended by adding Subsections (c) and (d) to read as follows: | ||
(c) The department and chief administrative law judge of the | ||
State Office of Administrative Hearings shall adopt and at least | ||
biennially update a memorandum of understanding establishing that | ||
the State Office of Administrative Hearings has primary scheduling | ||
responsibility for a hearing under this subchapter. The memorandum | ||
of understanding must, at a minimum: | ||
(1) set out the roles and responsibilities of the | ||
State Office of Administrative Hearings and the department in | ||
scheduling a hearing under this subchapter, including which agency | ||
is responsible for scheduling each stage of a hearing; | ||
(2) ensure that the State Office of Administrative | ||
Hearings and the department have timely access to scheduling and | ||
continuance information; and | ||
(3) provide for the transfer of funding for department | ||
employees responsible for scheduling hearings under this | ||
subchapter from the department to the State Office of | ||
Administrative Hearings when the State Office of Administrative | ||
Hearings assumes responsibility for initial scheduling of hearings | ||
under this subchapter. | ||
(d) The State Office of Administrative Hearings and the | ||
department shall consult with the Department of Information | ||
Resources and the Office of Court Administration of the Texas | ||
Judicial System in developing any information technology solutions | ||
needed to complete the transfer of scheduling responsibilities, as | ||
outlined in the memorandum of understanding adopted under | ||
Subsection (c). | ||
SECTION 23. Section 14.052(a), Utilities Code, is amended | ||
to read as follows: | ||
(a) The commission shall adopt and enforce rules governing | ||
practice and procedure before the commission and, as applicable, | ||
practice and procedure before the [ |
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Office of Administrative Hearings. | ||
SECTION 24. Sections 14.053(a) and (b), Utilities Code, are | ||
amended to read as follows: | ||
(a) The [ |
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Administrative Hearings shall conduct each hearing in a contested | ||
case that is not conducted by one or more commissioners. | ||
(b) The commission may delegate to the [ |
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a final decision and to issue findings of fact, conclusions of law, | ||
and other necessary orders in a proceeding in which there is not a | ||
contested issue of fact or law. | ||
SECTION 25. Sections 102.006(a), (b), (c), and (e), | ||
Utilities Code, are amended to read as follows: | ||
(a) The railroad commission by rule shall provide for | ||
administrative hearings in contested cases to be conducted by one | ||
or more members of the railroad commission, by railroad commission | ||
hearings examiners, or by the [ |
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Office of Administrative Hearings. The rules must provide for a | ||
railroad commission hearings examiner or the [ |
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hearing in a contested case that is not conducted by one or more | ||
members of the railroad commission. A hearing must be conducted in | ||
accordance with the rules and procedures adopted by the railroad | ||
commission. | ||
(b) The railroad commission may delegate to a railroad | ||
commission hearings examiner or to the [ |
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State Office of Administrative Hearings the authority to make a | ||
final decision and to issue findings of fact, conclusions of law, | ||
and other necessary orders in a proceeding in which there is not a | ||
contested issue of fact or law. | ||
(c) The railroad commission by rule shall define the | ||
procedures by which it delegates final decision-making authority | ||
under Subsection (b) to a railroad commission hearings examiner or | ||
to the [ |
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Hearings. | ||
(e) The State Office of Administrative Hearings shall | ||
charge the railroad commission a fixed annual rate for hearings | ||
conducted by the office under this section only if the legislature | ||
appropriates money for that purpose. If the legislature does not | ||
appropriate money for the payment of a fixed annual rate under this | ||
section, the State Office of Administrative Hearings shall charge | ||
the railroad commission an hourly rate set by the office under | ||
Section 2003.024(a), Government Code, [ |
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SECTION 26. The following provisions of the Government Code | ||
are repealed: | ||
(1) Section 2003.101(c); | ||
(2) Section 2003.102; | ||
(3) Section 2003.106; and | ||
(4) Section 2003.107. | ||
SECTION 27. (a) Section 2001.058(d-1), Government Code, as | ||
added by this Act, applies only to a case referred to the State | ||
Office of Administrative Hearings on or after September 1, 2015. | ||
(b) The State Office of Administrative Hearings shall | ||
develop and submit a legislative appropriations request in | ||
accordance with Section 2003.024, Government Code, as amended by | ||
this Act, beginning with the office's legislative appropriations | ||
request for the 2018-2019 state fiscal biennium. | ||
(c) Section 2003.024, Government Code, as amended by this | ||
Act, applies only to a contract entered into on or after the | ||
effective date of this Act. A contract entered into before that | ||
date is governed by the law in effect immediately before the | ||
effective date of this Act, and the former law is continued in | ||
effect for that purpose. | ||
(d) Not later than September 1, 2016, the Texas Department | ||
of Transportation and the chief administrative law judge of the | ||
State Office of Administrative Hearings shall adopt an initial | ||
memorandum of understanding under Section 524.033(c), | ||
Transportation Code, as added by this Act. | ||
SECTION 28. (a) Except as provided by Subsection (b) of this | ||
section, this Act takes effect September 1, 2015. | ||
(b) Section 524.032(b), Transportation Code, as amended by | ||
this Act, takes effect September 1, 2016. |