HBA-MPM H.B. 235 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 235 By: Puente State Affairs 2/10/1999 Introduced BACKGROUND AND PURPOSE Currently, the Texas Natural Resource Conservation Commission (TNRCC) Office of Public Interest Counsel represents the public interest and is a party to all proceedings that come before TNRCC. The office does not operate independently of TNRCC. Other entities, however, have independent advisory offices to ensure broad consideration of the public's interest in certain decisions. H.B. 235 abolishes TNRCC's Office of Public Interest Counsel and creates the Office of Natural Resource Public Interest Counsel, which will represent the public interest in all matters that come before TNRCC. It also grants the Office of Natural Resource Public Interest Counsel the power to appeal actions taken by TNRCC and to participate in other judicial proceedings. 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. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter G, Chapter 5, Water Code, as follows: SUBCHAPTER G. OFFICE OF NATURAL RESOURCE PUBLIC INTEREST COUNSEL Sec. 5.271. DEFINITIONS. Defines "counsel" as the natural resource public interest counsel and "office" as the Office of Natural Resource Public Interest Counsel. Defines "public interest" as any environmental, consumer, or community interest, and any right or privilege promoting public health, environmental quality, preservation of property or property rights, or conservation or judicious use of the state's natural resources. Sec. 5.272. CREATION AND GENERAL RESPONSIBILITY OF OFFICE OF NATURAL RESOURCE PUBLIC INTEREST COUNSEL. Creates the Office of Natural Resource Public Interest Counsel (office) to represent the public interest in matters that come before the Texas Natural Resource Conservation Commission (commission). Deletes existing text. Sec. 5.273. NATURAL RESOURCE PUBLIC INTEREST COUNSEL. (a) Requires the governor, with the advice and consent of the senate, to appoint a natural resource public interest counsel to serve as the executive director of this office. (b) Sets forth that to serve as counsel a person must be eligible to practice law in this state, have demonstrated a commitment to and involvement in environmental quality and consumer protection efforts, and have knowledge and experience necessary to practice effectively in proceedings before the commission and in court. (c) Provides that the counsel serves a two-year term to expire February 1 of each oddnumbered year. (d) Authorizes the counsel to serve on a board, committee, or advisory group unless prohibited by law. Deletes existing text. Sec. 5.274. POWERS AND DUTIES OF COUNSEL AND COMMISSION. (a) Authorizes the counsel to represent the public interest in issues arising in proceedings before the commission. Entitles the counsel to be admitted as a party to any proceeding before the commission. (b) Requires the counsel to administer the office, prepare and submit a budget to the legislature, hire and maintain all employees, and ensure that the office does not expend resources in proceedings in which the public interest is adequately represented otherwise. (c) Provides that the counsel is responsible for approving actual and necessary expenditures incurred in office administration, including expenses for professional services, travel, and per diem pay. (d) Authorizes the counsel to recommend legislation to the legislature that the counsel deems necessary to protect consumers, public health, or the environment and to recommend rules or amendments to the commission which would protect consumers, public health, or the environment. (e) Requires the counsel to participate in meetings of any commission advisory committees to ensure that the committee takes the public interest perspective into consideration. (f) Requires the commission to provide the counsel with a copy of each notice related to a matter under the commission's jurisdiction which is required by statute or commission rule to be mailed, published, or posted in any manner. (g) Requires the commission to give the office access to the commission's technical staff and resources to assist the counsel in a proceeding before the commission, unless the staff member is expected to participate in the proceeding on the commission's behalf. Deletes existing text. Sec. 5.275. REPRESENTATION BY FORMER COUNSEL; PENALTY. (a) Prohibits a former counsel from communicating to or appearing before the commission or an officer or employee of the commission for two years from the date the former counsel ceases to serve in that capacity if the communication or appearance is made on behalf of another person seeking official action in a matter or with intent to influence a commission decision or action. (b) Prohibits a former counsel from representing any person or receiving compensation for services rendered on behalf of any person regarding a matter before the commission for two years from the date the former counsel ceases to serve in that capacity. (c) Provides that if a person violates this section it is a Class A misdemeanor. Deletes existing text. Sec. 5.276. JUDICIAL REVIEW AND APPEAL. Authorizes the counsel to appeal on the public's behalf an action taken by the commission in a proceeding in which the counsel participated. Authorizes the counsel to intervene as a matter of right or appear in an appropriate capacity in a judicial proceeding arising out of a commission proceeding in which the counsel participated. SECTION 2. Provides for the transfer, effective January 1, 2000, of all personnel, office space, facilities, equipment, information, records, case files, and other possessions of the commission's old office of public interest counsel to the new Office of Natural Resource Public Interest Counsel created by this Act. Provides that all unexpended and unobligated money appropriated to the commission for the fiscal biennium ending August 31, 2001, for use for the functions of the commission's office of public interest counsel are to be transferred to the Office of Natural Resource Public Interest Counsel. Requires the Legislative Budget Board to identify and inform the comptroller about the amount and source of money transferred. SECTION 3. (a) Requires the public interest counsel of the commission's office of public interest counsel to serve as the natural resource public interest counsel of the Office of Natural Resource Public Interest Counsel from January 1, 2000, to February 1, 2001, and until the natural resource public interest counsel for the office is appointed and has qualified. (b) Requires the governor to appoint a natural resource public interest counsel of the Office of Natural Resource Public Interest Counsel on or before February 1, 2001. (c) Provides that the first proposed budget for the Office of Natural Resource Public Interest Counsel may not exceed the amount expended by the commission's office of public interest counsel in the previous fiscal biennium, as set forth in Section 5.274, Water Code (Powers and Duties of Counsel and Commission). SECTION 4. Effective date: January 1, 2000. SECTION 5. Emergency clause.