Part 1.
GENERAL LAND OFFICE
Chapter 13.
LAND RESOURCES
Subchapter F. APPLICATION TO PURCHASE OR LEASE VACANT AND UNSURVEYED PUBLIC SCHOOL LAND
31 TAC §13.79, §13.81
The General Land Office adopts the repeal of §13.79
relating to the Appointment of Surveyor and §13.81 relating to the Disqualification
of a Surveyor and simultaneously adopts new §13.79 relating to the Appointment
of Surveyor and §13.81 relating to the Disqualification of a Surveyor.
The proposed repeals and proposed new rules are adopted without changes to
the proposed text published in the May 26, 2000, edition of the
Texas Register
(25 TexReg 4711).
Texas Natural Resources Code §51.178 relating to Appointment of Surveyor
requires the General Land Office to promulgate rules setting out the qualifications
and method of selection of surveyors. The rules must provide the greatest
practicable opportunity for all qualified surveyors to obtain appointment.
Also the rules must provide procedures for an interested party to move for
the removal of an appointed surveyor on the grounds of bias, prejudice, or
conflict of interest. The statute allows removal of an appointed surveyor
only upon notice to the surveyor and all interested persons and after hearing.
The repealed §13.79 and §13.81 did not fully explicate these statutory
requirements and so the new §13.79 and §13.81 were necessary to
comply with the specific direction in Texas Natural Resources Code §51.178.
The General Land Office adopts new §13.79 relating to Appointment
of Surveyor. The purpose of the new §13.79 is to provide more detailed
procedures for the appointments of surveyors. The new §13.79 lists the
necessary qualifications of surveyors and requires notice to all qualified
surveyors to ensure the greatest practicable opportunity for appointment.
The General Land Office is adopting a new §13.79 because the previous §13.79
may have unnecessarily restricted appointments to those surveyors who have
experience in the particular geographic area and who are located closest the
alleged vacancy. These criteria may unduly limit the number of eligible surveyors
for any particular appointment. The adopted new §13.79(a) follows the
statutory requirements for eligibility: the surveyor must be a licensed state
land surveyor or a county surveyor in the county where the claimed vacancy
is located. The adopted new §13.79(b) details the new method for appointment.
The statute mandates the greatest practicable opportunity for appointment
and, to effectuate that command, the adopted new §13.79(b)(1) now requires
the General Land Office to notify all currently licensed state land surveyors
about the opportunities for appointment under the vacancy statute at least
once a year. This subsection allows the Commissioner, in his discretion, to
provide for wider dissemination of the notices of available appointment by
utilizing the services of the Texas Board of Professional Land Surveying.
Further, for each appointment, a specific notice and copy of the vacancy application
shall be sent to all licensed state land surveyors and eligible county surveyors.
Any potentially eligible surveyor may, at his option, withdraw his name from
consideration for appointments, §13.79(b)(2). The factors listed at §13.79(b)(4)
allow the Commissioner to consider a wider range of factors not tied to location
of the surveyor and so provide greater opportunity for all eligible surveyors.
The section lists possible bias, prejudice and conflict of interest as factor
for consideration in an appointment. The General Land Office may be able to
avoid future motions for removal of a surveyor by making this inquiry at an
earlier stage of the vacancy proceeding.
Adopted new §13.81 relating to the Disqualification of a Surveyor
provides details the procedures for seeking removal of an appointed surveyor
because of bias, prejudice, or conflict of interest. The section also defines
bias, prejudice and conflict of interest. The procedures provide time limits
for seeking removal, §13.81(a); the form and contents of petitions for
removal, §13.81(b)(1) and §13.81(b)(2) and §13.81(b)(3); and
specific statements of fact to support an allegation of bias, prejudice or
conflict of interest, §13.81(b)(4). The General Land Office is requiring
affidavits of fact so that the seriousness of the removal petition may be
properly evaluated at an early stage of the proceeding, §13.81(b)(4).
Motions for removal of an appointed surveyor should not be filed routinely
but only upon sufficient factual information. The stringency of §13.81(b)
is necessary to avoid delay and unnecessary expense in the vacancy proceeding.
Sections 13.81(c) and §13.81(d) now contain additional procedural
rules for notices and replies to petitions. The §13.81(d) reply requirements
are designed to minimize the paperwork and to consolidate all challenges to
a particular appointment in one proceeding. Thus §13.81(d)(2) now allows
an interested person to urge additional grounds for removal instead of requiring
a new petition and a separate proceeding. An interested person's failure to
reply to a petition for removal does not have any adverse effect so unnecessary
paperwork is eliminated, §13.81(d)(4). Section 13.81(d)(3) now allows
the appointed surveyor to voluntarily renounce his appointment thereby eliminating
the need for a hearing. In the event of such renunciation, the Commissioner
begins the appointment process anew.
Adopted new §13.81(e), (f), (g) and (h) describe the legal nature
of the hearing, limit the scope of the hearing to the facts alleged in affidavits,
require a written decision, and limit re-opening of the issues raised in the
petition for removal. These sections were designed to expedite the vacancy
proceeding by disallowing collateral appeals, §13.81(h), and focus the
hearing on only the statutory bases for removal of a surveyor, §13.81(f).
Section 13.81(f) governs the scope of the hearing to remove an appointed surveyor.
The scope is narrow because the questions raised should be narrow, i.e. is
there sufficient evidence of bias, prejudice, or conflict of interest to warrant
removal of an appointed surveyor? The hearing should not become a discovery
device or a preview of issues related to the ultimate question, i.e. whether
a vacancy exists. Similarly facts related to the surveyor's general competence
or the quality of his work are not relevant to bias, prejudice or conflict
of interest. Such issues can be raised as impeachment matters at the hearing
on the merits of the vacancy application.
Section 13.81(h) clarifies that there is no appeal from the Commissioner's
determination on the petition for removal. The statute does not provide for
an appeal from a surveyor disqualification decision and a challenge to the
decision can be raised in an appeal of the final vacancy determination. In
Adopted new §13.81(i), (j), and (k) define prejudice, bias and conflict
of interest by listing the kinds of facts that may lead to removal of an appointed
surveyor. The lists are not intended to encompass all possible situations
so the rules allow the Commissioner to consider other relevant factors, e.g. §13.81(i)(3).
The definition of "relative" used in §13.81(j)(3) is taken from the General
Land Office Employee Handbook relating to nepotism. The conflict of interest
section, §13.81(k) uses the term "significant" when referring to benefit
and financial interest, e.g. §13.81(k)(1) and (2). The term "significant"
was intentionally not defined so that the sound exercise of discretion, judgment
and common sense are not inhibited. Adoption of a rigid percentage or dollar
amount automatically constituting a conflict of interest may not be meaningful
in the context of a specific vacancy and may permit an injustice considering
the unique circumstances of a case. Similarly an objectively small percentage
can be a significant amount of money in the context of a mineral interest.
Therefore, the General Land Office will be flexible when evaluating whether
the alleged interest or benefit is considered significant enough to constitute
a conflict of interest.
Texas Natural Resources Code §51.178 is affected by these adopted
new rules.
These rules are being adopted under Texas Natural Resources Code §51.178
which requires the Commissioner to promulgate rules setting out the qualifications
and method of selection of surveyors and to provide for the greatest practicable
opportunity for all qualified surveyors to obtain appointment and to provide
the opportunity for an interested person to move for the removal of a surveyor.
Agency counsel has reviewed these rules and has determined that the adoption
of these rules is within the jurisdiction and the authority of the General
Land Office.
No comments concerning the proposed repeal of these rules were received.
No comments concerning the adoption of the new rules were received.
The new rules are not subject to consistency review under the Texas Coastal
Management Plan. Texas Natural Resources Code §33.2051 and §33.2051
list the state agency actions subject to consistency review and rules related
to vacancy proceedings are not among those actions.
The repeals are adopted under the Natural Resources Code, §51.178
which provides the General Land Office with the authority to administer the
selection and appointment of surveyors and the procedures for seeking removal
of an appointed surveyor.
The repealed rules affect chapter 51 of the Texas Natural Resources Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 20, 2000.
TRD-200005006
Larry Soward
Chief Clerk
General Land Office
Effective date: August 9, 2000
Proposal publication date: May 26, 2000
For further information, please call: (512) 305-9129
The new sections are adopted under the
Natural Resources Code, §51.178 which provides the General Land Office
with the authority to administer the selection and appointment of surveyors
and the procedures for seeking removal of an appointed surveyor.
The adopted new rules affect chapter 51 of the Texas Natural Resources
Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 20, 2000.
TRD-200005007
Larry Soward
Chief Clerk
General Land Office
Effective date: August 9, 2000
Proposal publication date: May 26, 2000
For further information, please call: (512) 305-9129
Chapter 363.
FINANCIAL ASSISTANCE PROGRAMS
Subchapter F. STORAGE ACQUISITION AND STATE PARTICIPATION
Part 10.
TEXAS WATER DEVELOPMENT BOARD