HBA-ALS, NIK C.S.H.B. 2556 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2556 By: Cuellar Civil Practices 3/28/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE C.S.H.B. 2556 clarifies the purpose of the State Office of Administrative Hearings (office), the independence of its judges, and issues related to the office's method of funding for the utility and natural resources divisions. It allows the office to adopt a seal authenticating the official acts of the office, delineates the scope of responsibilities of the chief administrative law judge (judge), establishes minimum standards for appointment by the chief administrative law judge to the position of senior judge or master judge, and adds the Texas Center for the Judiciary to the list of entities from which the judges may receive training. This bill also delegates rulemaking authority to the judge as to the types of alternative dispute resolution procedures that are permitted and prohibited. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the chief administrative law judge of the State Office of Administrative Hearings in SECTION 4 (Section 2003.0412) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 2003.021, Government Code, by amending Subsections (a) and (b) and adding Subsection (e), as follows: (a) Provides that the State Office of Administrative Hearings (office) is a state agency created as an independent forum for the conduct of adjudicative hearings in the executive branch of state government. Provides that the purpose of the office is to separate the adjudicative function from the investigative, prosecutorial, and policymaking functions in the executive branch in relation to hearings that the office is authorized to conduct. (b) Requires the office to conduct administrative hearings in matters for which the office is required to conduct the hearing under other law. Requires, rather than authorizes, the office to conduct alternative dispute resolution (ADR) procedures that the office is required to conduct under law. Authorizes the office to conduct, for a fee and under a contract, administrative hearings or alternate dispute resolution procedures in matters voluntarily referred to the office by a governmental entity. (e) Authorizes the office to adopt a seal to authenticate the official acts of the office and of its administrative law judges. SECTION 2. Amends Section 2003.022, Government Code, by amending Subsection (a) and adding Subsections (c) and (d), to (a) Provide that the chief administrative law judge (judge) is eligible for reappointment. (c) Prohibit the judge from engaging in the practice of law while serving as judge. Provides that the judge serves in a full-time position. (d) Set forth responsibilities required of the judge. SECTION 3. Amends Section 2003.041, Government Code, by adding Subsection (c), as follows: (c) Provides that an administrative law judge employed by the office is responsible and subject only to the judge or a senior or master administrative law judge designated by the judge. SECTION 4. Amends Subchapter C, Chapter 2003, Government Code, by adding Sections 2003.0411 and 2003.0412, as follows: Sec. 2003.0411. SENIOR AND MASTER ADMINISTRATIVE LAW JUDGES. Authorizes the judge to appoint senior or master administrative law judges to perform duties assigned by the judge. Sets forth the requirements necessary to be appointed a senior administrative law judge. Sets forth the requirements necessary to be appointed a master administrative law judge. Sec. 2003.0412. EX PARTE CONSULTATIONS. (a ) Provides that, except as provided by Subchapter (b), the provisions of Section 2001.061(Ex Parte Consultations) apply in relation to a matter before the office without regard to whether the matter is considered a contested case under Chapter 2001. (b) Provides that the provisions of Section 2001.061 do not apply to a matter before the office to the extent that the office is conducting an ADR procedure in relation to the matter. Requires the judge to adopt rules prescribing the types of ADR procedures in which ex parte consultations are prohibited and the types that are permitted. Requires the judge in adopting rules for ADR procedures in which ex parte consultations are prohibited, to model the prohibition after Section 2001.061 (ex Parte Consultations), but authorized the judge to vary the extent of the prohibition if it is necessary to take into account the nature of the ADR procedures. SECTION 5. Amends Section 2003.045, Government Code, as follows: Sec. 2003.045. New title: OVERSIGHT OF ADMINISTRATIVE LAW JUDGES. Authorizes the judge to designate senior or master administrative law judges, rather than an administrative division in the office, to oversee the training, evaluation, discipline, and promotion of administrative law judges employed by the office. Makes nonsubstantive change. SECTION 6. Amends Section 2003.0451(a), Government Code, to include the Texas Center for the Judiciary in the external sources through which the office is required to offer specified courses and training. SECTION 7. Amends Section 2003.046, Government Code, as follows: (a) Provides that a central hearings panel in the office is composed of administrative law judges and senior or master administrative law judges, rather than six senior administrative law judges assigned to the panel, rather than appointed, by the judge. (b) Authorizes the judge to create teams within the central panel, including an administrative license revocation division, according to the subject matter or types of hearings conducted by the central panel, rather than requiring the central panel to coordinate and supervise the operation of administrative hearings conducted by the office. Makes conforming and nonsubstantive changes. SECTION 8. Amends Section 2003.048, the Government Code, as follows: Sec. 2003.048. New title: TEXAS NATURAL RESOURCE CONSERVATION COMMISSION HEARINGS FEE. (a) Provides that this section applies only to the extent the legislature does not appropriate money directly to the office for services rendered by the office to the Texas Natural Resource Conservation Commission (TNRCC). (b) Requires the office to charge the TNRCC a fixed annual fee rather than an hourly rate for services to the commission that is consistent with any fee for the services that is established by rider in the General Appropriations Act. Deletes the requirement that the office and the TNRCC negotiate 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. Amends Section 2003.049(1), Government Code, to require the office to charge the commission a fixed annual fee that is consistent with any fee for the services established by the rider in the General Appropriations Act. Provides that this subsection applies only to the extent the legislature does not appropriate money directly to the office for services rendered by the utility division to the commission. Makes a conforming change. SECTION 10. Amends Subchapter C, Chapter 2003, Government Code, by adding Section 2003.051 as follows: Sec. 2003.051. ROLE OF REFERRING AGENCY. Prohibits a state agency that has referred a matter to the office in which the office will conduct a hearing from taking any adjudicative action relating to the matter until the office has issued its proposal for decision or otherwise conclude its involvement in the matter. Authorizes the state agency to exercise its advocacy rights in the matter before the office in the same manner as any other party. SECTION 11. Emergency clause. Effective date: upon passage. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the original in SECTION 4 (Section 2003.0411, Government Code) to authorize the chief administrative law judge of the State Office of Administrative Hearings to appoint master administrative law judges, in addition to senior administrative law judges, to perform duties assigned by the chief administrative law judge. The substitute also modifies the original in SECTION 4 (Section 2003.412) by delegating rulemaking authority to the judge relating to the types of alternative dispute resolution procedures that are permitted and prohibited.