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A BILL TO BE ENTITLED
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AN ACT
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relating to contested cases conducted under the Administrative |
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Procedures Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 2001.052(a) and (b), Government Code, |
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are amended to read as follows: |
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(a) Notice of a hearing in a contested case must include: |
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(1) a statement of the time, place, and nature of the |
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hearing; |
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(2) a statement of the legal authority and |
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jurisdiction under which the hearing is to be held; |
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(3) a reference to the particular sections of the |
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statutes and rules involved; and |
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(4) a short, plain statement of the factual matters |
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asserted or incorporating by reference the factual allegations or |
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assertions made in a complaint or petition filed with the state |
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agency and attached to the notice of hearing. |
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(b) If a state agency or other party is unable to state |
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factual matters in detail at the time notice under this section is |
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served, an initial notice may be limited to a statement of the |
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issues involved. On timely written application, a more definite |
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and detailed statement of the facts shall be furnished not less than |
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seven days before the date set for the hearing. In a proceeding in |
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which the state agency has the burden of proof, a state agency that |
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intends to rely on a section of a statute or rule not previously |
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referenced in the notice of hearing must amend the notice or its |
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complaint or petition to refer to the section of the statute or rule |
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not later than the seventh day before the date set for the hearing. |
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This subsection does not prohibit the state agency from filing an |
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amendment during the hearing of a contested case provided the |
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opposing party is granted a continuance of at least seven days to |
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prepare its case on request of the opposing party. |
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SECTION 2. Section 2001.054(e), Government Code, is amended |
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to read as follows: |
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(e) In a suit for judicial review of a final decision or |
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order of a state agency brought by a license holder, the agency's |
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failure to comply with Subsection (c) shall constitute prejudice to |
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the substantial rights of the license holder under Section |
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2001.174(2) unless the court determines that the failure did not |
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unfairly surprise and prejudice the license holder or that the |
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license holder waived the opportunity in Subsection (c)(2) to show |
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compliance with all requirements of law for the retention of the |
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license. |
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SECTION 3. Sections 2001.142(a), (c), (d), (e), (f), and |
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(g), Government Code, are amended to read as follows: |
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(a) A state agency shall notify each party to a contested |
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case of any decision or order of the agency using at least one of the |
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following methods of service [in the following manner]: |
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(1) personally; |
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(2) if agreed to by the party to be notified, by |
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electronic means sent to the current e-mail address or facsimile |
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[telecopier] number of the party's attorney of record or of the |
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party if the party is not represented by counsel; [or] |
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(3) by first class, certified, or registered mail sent |
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to the last known address of the party's attorney of record or of |
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the party if the party is not represented by counsel; or |
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(4) a method specified in the state agency's rules or |
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orders by which parties must serve copies of pleadings in a |
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contested case. |
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(c) If an adversely affected party or the party's attorney |
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of record does not receive the notice required by Subsections (a) |
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and (b) or acquire actual knowledge of a signed decision or order |
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before the 15th day after the date the decision or order is signed, |
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a period specified by or agreed to under Section 2001.144(a), |
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2001.146, 2001.147, or 2001.176(a) relating to a decision or order |
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or motion for rehearing begins, with respect to that party, on the |
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date the party or the party's attorney of record receives the notice |
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or acquires actual knowledge of the signed decision or order, |
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whichever occurs first. The period may not begin earlier than the |
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15th day or later than the 45th [90th] day after the date the |
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decision or order was signed. |
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(d) To establish a revised period under Subsection (c), the |
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adversely affected party must prove, on sworn motion and notice, |
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that: |
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(1) the date the party or the party's attorney of |
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record first received notice from the state agency or acquired |
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actual knowledge of the signing of the decision or order was after |
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the 14th day after the date the decision or order was signed; |
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(2) the adversely affected party exercised due |
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diligence by keeping the state agency and all other parties to the |
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contested case apprised of the current mailing address and |
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electronic contact information, if any, of the adversely affected |
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party or the adversely affected party's attorney of record; and |
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(3) neither the adversely affected party nor the |
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party's attorney of record took any action that impeded or |
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prevented receipt of notice of the signing of the decision or order. |
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(e) The state agency or a person authorized to act for the |
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agency must grant or deny the sworn motion not later than the date |
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of the agency's governing board's next meeting or, for a state |
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agency without a governing board with decision-making authority in |
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contested cases, not later than the 10th day after the date the |
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agency receives the sworn motion. |
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(f) If the state agency or a person authorized to act for the |
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agency fails to grant or deny the motion at the next meeting or |
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before the 10th day after the date the agency receives the motion, |
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as appropriate, the motion is considered granted. |
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(g) If a [the] sworn motion filed under Subsection (d) is |
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granted with respect to the adversely affected party filing that |
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motion, then all the periods specified by or agreed to under Section |
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2001.144(a), 2001.146, 2001.147, or 2001.176(a) relating to a |
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decision or order, or motion for rehearing, shall begin, with |
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respect to the movant, on the date specified in the sworn motion |
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that the movant or the movant's attorney of record [party] first |
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received the notice required by Subsections (a) and (b) or acquired |
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actual knowledge of the signed decision or order. The date |
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specified in the sworn motion shall be considered the date the |
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decision or order was signed with respect to the movant. With |
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respect to motions for rehearing, the timely filing of a sworn |
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motion pursuant to Subsection (d) shall extend the period for |
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taking agency action on any motion for rehearing to the 100th day |
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after the date the decision or order that is the subject of the |
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motion for rehearing is signed. |
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SECTION 4. Section 2001.144(a), Government Code, is amended |
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to read as follows: |
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(a) A decision or order in a contested case is final: |
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(1) if a motion for rehearing is not filed on time, on |
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the expiration of the period for filing a motion for rehearing; |
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(2) if a motion for rehearing is timely filed [filed on
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time], on the date: |
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(A) the order overruling the last-filed motion |
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for rehearing is signed; or |
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(B) the last-filed motion for rehearing is |
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overruled by operation of law; |
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(3) if a state agency finds that an imminent peril to |
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the public health, safety, or welfare requires immediate effect of |
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a decision or order, on the date the decision or order is signed, |
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provided that the agency incorporates in the decision or order a |
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factual and legal basis establishing an imminent peril to the |
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public health, safety, or welfare; or |
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(4) on: |
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(A) the date specified in the decision or order |
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for a case in which all parties agree to the specified date in |
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writing or on the record; or |
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(B) if the agreed specified date is before the |
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date the decision or order is signed, the date the decision or order |
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is signed. |
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SECTION 5. Sections 2001.146(a), (b), (e), and (i), |
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Government Code, are amended to read as follows: |
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(a) A motion for rehearing in a contested case must be filed |
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by a party not later than the 25th day after the date the decision or |
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order that is the subject of the motion is signed, unless the time |
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for filing the motion for rehearing has been extended under Section |
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2001.142, by an agreement under Section 2001.147, or by a written |
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state agency order issued under Subsection (e). On filing [of] the |
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motion for rehearing, the movant shall send copies of the motion |
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[shall be sent] to all other parties using the notification methods |
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[procedures] specified by Section 2001.142(a). |
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(b) A party must file with the state agency a reply, if any, |
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to a motion for rehearing not later than the 40th day after the date |
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the decision or order that is the subject of the motion is signed, |
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or not later than the 10th day after the date a motion for rehearing |
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is filed if the time for filing the motion for rehearing has been |
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extended under Section 2001.142, by an agreement under Section |
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2001.147, or by a written state agency order under Subsection (e). |
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On filing [of] the reply, the party filing the reply shall send |
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copies of the reply [shall be sent] to all other parties using the |
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notification methods [procedures] specified by Section |
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2001.142(a). |
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(e) A state agency or a person authorized to act for the |
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agency may, on its own initiative or on the motion of any party for |
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cause shown, by written order extend the time for filing a motion or |
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reply or taking agency action under this section, provided that the |
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agency extends the time or takes the action not later than the 10th |
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day after the date the period for filing a motion or reply or taking |
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agency action expires. An extension may not extend the period for |
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agency action beyond the 100th day after the date the decision or |
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order that is the subject of the motion is signed. |
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(i) The time limits and other requirements for filing a |
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subsequent motion for rehearing, a reply to the subsequent motion |
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for rehearing, and a ruling on the subsequent motion for rehearing |
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are governed by this section and Sections 2001.142, 2001.144, |
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2001.145, and 2001.147 [A subsequent motion for rehearing required
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by Subsection (h) must be filed not later than the 20th day after
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the date the order disposing of the original motion for rehearing is
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signed]. |
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SECTION 6. The changes in law made by Sections 1 and 2 of |
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this Act to Chapter 2001, Government Code, apply only to an |
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administrative proceeding or a contested case that is initiated on |
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or after the effective date of this Act. An administrative |
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proceeding or a contested case that is initiated before the |
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effective date of this Act is governed by the law in effect when |
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such proceeding was initiated, and the former law is continued in |
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effect for that purpose. |
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SECTION 7. The changes in law made by Sections 3 and 4 of |
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this Act to Chapter 2001, Government Code, apply only to orders or |
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decisions made by a state agency in a contested case on or after the |
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effective date of this Act. An order or decision made in a |
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contested case before the effective date of this Act is governed by |
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the law in effect when the final order or decision was made, and the |
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former law is continued in effect for that purpose. |
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SECTION 8. This Act takes effect September 1, 2017. |