Bill Text: TX SB522 | 2013-2014 | 83rd Legislature | Engrossed
Bill Title: Relating to contested cases conducted under the Administrative Procedure Act.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Engrossed - Dead) 2013-05-21 - Placed on General State Calendar [SB522 Detail]
Download: Texas-2013-SB522-Engrossed.html
By: Estes | S.B. No. 522 |
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relating to contested cases conducted under the Administrative | ||
Procedure Act. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 2001.052, Government Code, is amended to | ||
read as follows: | ||
Sec. 2001.052. CONTENTS OF NOTICE. (a) Notice of a | ||
hearing in a contested case must include: | ||
(1) a statement of the time, place, and nature of the | ||
hearing; | ||
(2) a statement of the legal authority and | ||
jurisdiction under which the hearing is to be held; | ||
(3) a reference to the particular sections of the | ||
statutes and rules involved; and | ||
(4) a short, plain statement of the factual matters | ||
asserted. | ||
(b) If a state agency or other party is unable to state | ||
factual matters in detail at the time notice under this section is | ||
served, an initial notice may be limited to a statement of the | ||
issues involved. On timely written application, a more definite | ||
and detailed statement of the facts shall be furnished not less than | ||
seven [ |
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proceeding in which the state agency has the burden of proof, a | ||
state agency that intends to rely on a section of a statute or rule | ||
not previously referenced in the notice of hearing must amend the | ||
notice to refer to the section of the statute or rule not later than | ||
the seventh day before the date set for the hearing. This | ||
subsection does not prohibit the state agency from filing an | ||
amendment during the hearing of a contested case provided the | ||
opposing party is granted a continuance of at least seven days to | ||
prepare its case on request of the opposing party. | ||
(c) In a suit for judicial review of a final decision or | ||
order of a state agency in a contested case, the state agency's | ||
failure to comply with Subsection (a)(3) or (b) shall constitute | ||
prejudice to the substantial rights of the appellant under Section | ||
2001.174(2) unless the court finds that the failure did not | ||
unfairly surprise and prejudice the appellant. | ||
SECTION 2. Section 2001.054, Government Code, is amended by | ||
adding Subsections (c-1) and (e) to read as follows: | ||
(c-1) If a state agency that has been granted the power to | ||
summarily suspend a license under another statute determines that | ||
an imminent peril to the public health, safety, or welfare requires | ||
emergency action and incorporates a factual and legal basis | ||
establishing that imminent peril in an order, the agency may issue | ||
an order to summarily suspend the license holder's license pending | ||
proceedings for revocation or other action. Unless expressly | ||
provided otherwise by another statute, the agency shall initiate | ||
the proceedings for revocation or other action not later than the | ||
30th day after the date the summary suspension order is signed. The | ||
proceedings must be promptly determined, and if the proceedings are | ||
not initiated before the 30th day after the date the order is | ||
signed, the license holder may appeal the summary suspension order | ||
to a Travis County district court. This subsection does not grant | ||
any state agency the power to suspend a license without notice or a | ||
hearing. | ||
(e) In a suit for judicial review of a final decision or | ||
order of a state agency brought by a license holder, the agency's | ||
failure to comply with Subsection (c) shall constitute prejudice to | ||
the substantial rights of the license holder under Section | ||
2001.174(2) unless the court determines that the failure did not | ||
unfairly surprise and prejudice the license holder. | ||
SECTION 3. Subsections (a) and (e), Section 2001.141, | ||
Government Code, are amended to read as follows: | ||
(a) A decision or order of a state agency that may become | ||
final under Section 2001.144 that is adverse to any [ |
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contested case must be in writing and signed by a person authorized | ||
by the agency to sign the agency decision or order [ |
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(e) If a party submits under a state agency rule proposed | ||
findings of fact or conclusions of law, the decision shall include a | ||
ruling on each proposed finding or conclusion. | ||
SECTION 4. Section 2001.142, Government Code, is amended to | ||
read as follows: | ||
Sec. 2001.142. NOTIFICATION OF DECISIONS AND ORDERS. | ||
(a) A state agency shall notify each party to [ |
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decision or order of the agency in the following manner: | ||
(1) personally; | ||
(2) if agreed to by the party to be notified, by | ||
electronic means to the current e-mail address or telecopier number | ||
of the party or the party's attorney of record; or | ||
(3) by first class, certified, or registered mail sent | ||
to the last known address of the party or to the party's attorney of | ||
record. | ||
(b) When a decision or order [ |
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case [ |
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signed or when an order ruling on a motion for rehearing is signed, | ||
a state agency shall send a copy of the decision or order to each | ||
party in accordance with Subsection (a). The state agency shall | ||
keep a record documenting the provision of the notice provided to | ||
each party in accordance with Subsection (a) [ |
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(c) If an adversely affected party or the party's attorney | ||
of record does not receive the notice required by Subsection (a) or | ||
acquire actual knowledge of a signed decision or order before the | ||
15th day after the date the decision or order is signed, a period | ||
specified by or agreed to under Section 2001.144(a), 2001.146, | ||
2001.147, or 2001.176(a) relating to a decision or motion for | ||
rehearing begins, with respect to that party, on the date the party | ||
receives the notice or acquires actual knowledge of the signed | ||
decision or order, whichever occurs first. The period may not begin | ||
earlier than the 15th day or later than the 90th day after the date | ||
the decision or order was signed [ |
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(d) To establish a revised period under Subsection (c), the | ||
adversely affected party must prove, on sworn motion and notice, | ||
that the date the party received notice from the state agency or | ||
acquired actual knowledge of the signing of the decision or order | ||
was after the 14th day after the date the decision or order was | ||
signed. The state agency governing board must grant or deny the | ||
sworn motion not later than the board's next meeting or, for a state | ||
agency without a governing board, not later than the 10th day after | ||
the date the agency receives the sworn motion. If a state agency | ||
fails to grant or deny the motion at the next meeting, or before the | ||
10th day after the date the agency receives the motion, as | ||
appropriate, the motion is considered granted. | ||
SECTION 5. The heading to Section 2001.143, Government | ||
Code, is amended to read as follows: | ||
Sec. 2001.143. TIME OF [ |
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SECTION 6. Subsections (a) and (b), Section 2001.143, | ||
Government Code, are amended to read as follows: | ||
(a) A decision or order that may become final under Section | ||
2001.144 in a contested case must be signed [ |
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than the 60th day after the date on which the hearing is finally | ||
closed. | ||
(b) In a contested case heard by other than a majority of the | ||
officials of a state agency, the agency or the person who conducts | ||
the contested case hearing may extend the period in which the | ||
decision or order may be signed [ |
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SECTION 7. Section 2001.144, Government Code, is amended to | ||
read as follows: | ||
Sec. 2001.144. DECISIONS OR ORDERS; WHEN FINAL. (a) A | ||
decision or order in a contested case is final: | ||
(1) if a motion for rehearing is not filed on time, on | ||
the expiration of the period for filing a motion for rehearing; | ||
(2) if a motion for rehearing is filed on time, on the | ||
date: | ||
(A) the order overruling the motion for rehearing | ||
is signed [ |
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(B) the motion is overruled by operation of law; | ||
(3) if a state agency finds that an imminent peril to | ||
the public health, safety, or welfare requires immediate effect of | ||
a decision or order, on the date the decision or order is signed and | ||
incorporates in the decision or order a factual and legal basis | ||
establishing an imminent peril to the public health, safety, or | ||
welfare [ |
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(4) on the date specified in the decision or order for | ||
a case in which all parties agree to the specified date in writing | ||
or on the record, provided that if the agreed specified date is | ||
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decision or order is signed is the date the decision or order is | ||
final for purposes of this section [ |
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(b) If a decision or order is final under Subsection (a)(3), | ||
a state agency must recite in the decision or order the finding made | ||
under Subsection (a)(3) and the fact that the decision or order is | ||
final and effective on the date signed [ |
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SECTION 8. Subsection (b), Section 2001.145, Government | ||
Code, is amended to read as follows: | ||
(b) A decision or order that is final under Section | ||
2001.144(a)(2), (3), or (4) is appealable. | ||
SECTION 9. Section 2001.146, Government Code, is amended by | ||
amending Subsections (a), (b), (c), (e), and (f) and adding | ||
Subsections (g), (h), and (i) to read as follows: | ||
(a) A motion for rehearing in a contested case must be filed | ||
by a party not later than the 20th day after the date [ |
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decision or order that is the subject of the motion is signed, | ||
unless the time for filing the motion for rehearing has been | ||
extended by an agreement under Section 2001.147 or by a written | ||
state agency order issued under Subsection (e). On filing of the | ||
motion for rehearing, copies of the motion shall be sent to all | ||
other parties using the notification procedures specified by | ||
Section 2001.142(a) [ |
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(b) A party must file with the state agency a reply, if any, | ||
to a motion for rehearing [ |
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later than the 30th day after the date [ |
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is signed, or not later than the 10th day after the date a motion for | ||
rehearing is filed if the time for filing the motion for rehearing | ||
has been extended by an agreement under Section 2001.147 or by a | ||
written state agency order under Subsection (e). On filing of the | ||
reply, copies of the reply shall be sent to all other parties using | ||
the notification procedures specified by Section 2001.142(a) [ |
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(c) A state agency shall act on a motion for rehearing not | ||
later than the 45th day after the date [ |
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is signed [ |
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motion for rehearing is overruled by operation of law. | ||
(e) A state agency may, on its own initiative or on the | ||
motion of any party for cause shown, by written order extend the | ||
time for filing a motion or reply or taking agency action under this | ||
section if the agency extends the time or takes the action not later | ||
than the 10th day after the date the period for filing a motion or | ||
reply or taking agency action expires. An[ |
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extension may not extend the period for agency action beyond the | ||
90th day after the date [ |
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decision or order that is the subject of the motion is signed [ |
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(f) In the event of an extension, a motion for rehearing is | ||
overruled by operation of law on the date fixed by the order or, in | ||
the absence of a fixed date, the 90th day [ |
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subject of the motion is signed [ |
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(g) A motion for rehearing must identify with particularity | ||
findings of fact or conclusions of law that are the subject of the | ||
complaint and any evidentiary or legal ruling claimed to be | ||
erroneous. The motion must also state the legal and factual basis | ||
for the claimed error. | ||
(h) A subsequent motion for rehearing is not required after | ||
a state agency rules on a motion for rehearing unless the order | ||
disposing of the original motion for rehearing: | ||
(1) modifies, corrects, or reforms in any respect the | ||
decision or order that is the subject of the complaint, other than a | ||
typographical, grammatical, or other clerical change identified as | ||
such by the agency in the order, including any modification, | ||
correction, or reformation that does not change the outcome of the | ||
contested case; or | ||
(2) vacates the decision or order that is the subject | ||
of the motion and provides for a new decision or order. | ||
(i) A subsequent motion for rehearing required by | ||
Subsection (h) must be filed not later than the 20th day after the | ||
date the order disposing of the original motion for rehearing is | ||
signed. | ||
SECTION 10. Subsection (a), Section 2001.176, Government | ||
Code, is amended to read as follows: | ||
(a) A person initiates judicial review in a contested case | ||
by filing a petition not later than the 30th day after the date [ |
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final and appealable. In a contested case in which a motion for | ||
rehearing is a prerequisite for seeking judicial review, a | ||
prematurely filed petition is effective to initiate judicial review | ||
and is considered to be filed: | ||
(1) on the date the last timely motion for rehearing is | ||
overruled; and | ||
(2) after the motion is overruled. | ||
SECTION 11. The changes in law made by this Act to Chapter | ||
2001, Government Code, apply only to an administrative hearing that | ||
is set by the State Office of Administrative Hearings, or another | ||
state agency conducting an administrative hearing, on or after the | ||
effective date of this Act. A hearing set before the effective date | ||
of this Act, or any decision issued or appeal from the hearing, is | ||
governed by the law in effect when the hearing was set, and the | ||
former law is continued in effect for that purpose. | ||
SECTION 12. This Act takes effect September 1, 2013. |