TITLE 31.NATURAL RESOURCES AND CONSERVATION

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 proposes the repeal of §13.79 relating to the Appointment of Surveyor and §13.81 relating to the Disqualification of a Surveyor and simultaneously proposes new §13.79 relating to the Appointment of Surveyor and §13.81 relating to the Disqualification of a Surveyor. Tex. Nat. Res. 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 current §13.79 and §13.81 do not fully explicate these statutory requirements and so the new §13.79 and §13.81 are necessary to comply with the specific direction in Tex. Nat. Res. Code §51.178.

The General Land Office proposes new §13.79 relating to Appointment of Surveyor. The purpose of the proposed new §13.79 is to provide more detailed procedures for the appointments of surveyors. The proposed 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 proposing a new §13.79 because the current §13.79 may unnecessarily restrict 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 proposed §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. Proposed §13.79(b) details the new method for appointment. The statute mandates the greatest practicable opportunity for appointment and, to effectuate that command, proposed §13.79(b)(1) 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. §13.79(b)(3). 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.

Proposed new §13.81 relating to the Disqualification of a Surveyor provides detailed 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.

Section 13.81(c) and §13.81(d) 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) 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). §13.81(d)(3) 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.

Proposed 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 are 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). §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 Logan v. Armstrong , 694 S.W.2d 68, the Corpus Christi Court of Appeals, construing the previous vacancy statute, discussed the general rule of "final administrative order." The Court noted that unless an administrative order is final, there is no appeal; an order is final when it leaves nothing open for future disposition. At the time of a petition to remove an appointed surveyor, the vacancy proceeding is in its earliest stages. Under the current statutory scheme, the ultimate issue, inter alia , remains after the hearing on removal of a surveyor. Accordingly there is no appeal from the interlocutory order regarding the removal of a surveyor.

Proposed 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.

Tex. Nat. Res. Code §51.178 is affected by these proposed new rules.

These rules are being proposed under Texas Nat. Res. 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 proposed rules and has determined that the adoption of these rules is within the jurisdiction and the authority of the General Land Office.

C.B. Thomson, Chief Surveyor for the General Land Office, has determined that for each year of the first five years the proposed rules are in effect, there will be no fiscal impact on state and local government. Similarly there will be no effect on costs to state and local government. Under the chapter 51 of the Tex. Nat. Res. Code, the costs of vacancy proceedings are generally borne by the applicant and state and local governments are not responsible for any costs. The General Land Office's costs in administering the proposed rules will be subsumed into ordinary operating expenses. There may be an increase in mailing costs as the General Land Office provides greater notice about appointments of surveyors; however these slight additional costs will not have a significant impact and are required to comply with the statutory mandate. Mr. Thomson has determined that these proposed rules will not have any impact on revenue for state or local governments. These rules detail processes required by law and their implementation and enforcement are part of the normal operating expenses of the General Land Office Surveying Division. The administration and enforcement of these rules will not have any foreseeable effect on the revenues of state or local government.

Mr. Thomson has also determined that for each year of the first five years these rules are in effect, the public benefit anticipated as a result of enforcing these rules will be enhanced access to appointment for all eligible surveyors. Also there will be a public benefit in the streamlined procedure for motions to remove an appointed surveyor for bias, prejudice or conflict of interest. The procedures should result in shorter hearings that will minimize the costs to all parties in a vacancy proceeding. An analysis of the probable economic costs to persons required to comply with the rule is not particularly applicable to these rules, which relate to procedures for the General Land Office and for persons seeking to remove an appointed surveyor. For persons seeking to remove an appointed surveyor, the streamlined procedures should lessen the costs of the vacancy proceeding. There will be no adverse effect on small businesses or micro-businesses. There may be a benefit to surveying businesses that previously did not have a practicable opportunity to participate in the General Land Office appointment process. There will be no impact on local employment.

Comments on the proposed rules may be submitted to Ms. Melinda Tracy, Texas Register Liaison, General Land Office, P.O. Box 12873, Austin, Texas 78711, within 30 days of publication in the Texas Register .

The General Land Office has prepared a takings impact assessment for these proposed rules and has determined that the proposed rules do not constitute a taking of private real property within the meaning of chapter 2007, Government Code. For a copy of the takings impact assessment, please send a written request to Ms. Tracy.

The proposed rules are not subject to consistency review under the Texas Coastal Management Plan. Texas Nat. Res. 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.

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the General Land Office or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed 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 proposed repealed rules affect chapter 51 of the Tex. Nat. Res. Code. 31 TAC §13.79 and §13.81.

§13.79.Appointment of Surveyor.

§13.81.Disqualification of a Surveyor.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 12, 2000.

TRD-200003337

Larry Soward

Chief Clerk

General Land Office

Earliest possible date of adoption: June 25, 2000

For further information, please call: (512) 305-9129

The new sections are proposed 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 proposed new rules affect chapter 51 of the Tex. Nat. Res. Code.

§13.79.Appointment of Surveyor.

(a)

Qualifications of Appointed Surveyor: A surveyor is eligible for appointment if the surveyor is a licensed state land surveyor (LSLS) or a county surveyor for the county in which the alleged vacancy is situated, and is licensed pursuant to the Professional Land Surveying Practices Act, Article 5282c, Vernon's Texas Civil Statutes.

(b)

Method of Selection of an Appointed Surveyor.

(1)

The Commissioner shall obtain the roster of all LSLS' currently licensed with the Texas Board of Professional Land Surveying and notify them annually of their eligibility for appointment pursuant to Tex. Nat. Res. Code 51.179. The Commissioner may seek the assistance of the Texas Board of Professional Land Surveying in providing the greatest practicable opportunity for all qualified surveyors to obtain appointment.

(2)

Any surveyor so notified may advise the Commissioner, by first class U.S. mail, that he is not interested in such appointments and does not want future notices.

(3)

The Commissioner shall notify, by first-class U.S. mail, all LSLS', who have not declined appointments pursuant to subsection (b)(2), and any eligible county surveyors when a surveyor is required for a vacancy application. A copy of the application shall be included with the notice.

(4)

The Commissioner will consider the following factors when appointing a surveyor:

(A)

the estimated dollar amount, including expenses, of the proposal;

(B)

the surveyor's ability to meet statutory timelines;

(C)

the surveyor's familiarity with historical surveys;

(D)

the surveyor's prior experience conducting surveys of similar complexity or character;

(E)

whether the surveyor is a former employee of the General Land Office and subject to the restriction in Government Code §572.054;

(F)

whether the surveyor may be biased, prejudiced or have a conflict of interest as described in 31 TAC §13.81; and

(G)

any other factor the Commissioner deems relevant to the quality of the work required.

(c)

Notification of Appointment. The Commissioner shall notify all interested persons of the appointment of a surveyor pursuant Tex. Nat. Res. Code §51.179.

§13.81. Disqualification of a Surveyor.

(a)

Petition for Removal.

(1)

Any interested person may petition the Commissioner for the removal of an appointed surveyor because of bias, prejudice, or conflict of interest.

(2)

The petition must be post marked no later than the ten days after notice to interested persons under Tex. Nat. Res. Code §51.179 is complete.

(3)

Any petition for removal of an appointed surveyor must comply with the time limits in this section. The Commissioner will not consider petitions for removal or reply to petitions not timely received.

(b)

Form and Contents of Petition. A petition to the Commissioner for removal of an appointed surveyor shall be in writing and shall contain the following information:

(1)

The name and address of the interested person and a succinct statement of the basis of the person's status as an interested person pursuant to the definition in Tex. Nat. Res. Code §51.172(5).

(2)

The style, including the number assigned by the General Land Office, of the pending vacancy application and the name of the surveyor.

(3)

The petition shall be limited to fifteen standard 8 1/2 by 11 inch pages and shall be typewritten in font no smaller than 12 points. In addition to the affidavits required by subsection (b)(4), other relevant documents and evidence may be appended to the petition. The total number of appended pages, including affidavits, shall not exceed twenty-five. The Commissioner may, upon request and for good cause, allow additional pages.

(4)

An allegation that the appointed surveyor exhibits bias, is prejudiced or has a conflict of interest and the factual basis for such claim or claims. Each allegation shall clearly state whether it is founded on bias, prejudice or conflict of interest. Affidavits alleging facts in support of each allegation must be appended to the petition. The Commissioner may summarily deny any petition that does not include such affidavits.

(c)

Notices. Interested persons seeking removal of the surveyor shall provide a copy of the petition to the surveyor and all other interested persons by first class U.S. Mail sent simultaneously with the petition to the Commissioner.

(d)

Reply to Petition.

(1)

The surveyor, any interested persons and the General Land Office may reply to the petition within 20 days of the date of the notice of the petition.

(2)

A reply petition may be filed for the purpose of joining in or urging further grounds for disqualification. A reply that urges additional grounds for removal shall comply with the affidavit requirements of §13.81(b)(4).

(3)

Failure to submit a reply to the petition shall not be deemed an admission of or agreement with any allegation in the petition. The Commissioner shall not consider failures to reply in determining whether a surveyor should be removed.

(4)

The appointed surveyor may renounce his appointment by notifying the Commissioner of the General Land Office who will then notify all interested persons. If the surveyor so renounces, the petition for removal is moot and the Commissioner shall appoint another surveyor pursuant to Tex. Nat. Res. Code §51.178.

(5)

A reply to a petition for removal of an appointed surveyor shall be in the same form, and comply with the requirements for a petition set forth in subsections (b) and (c).

(e)

Hearing. A hearing conducted pursuant to Tex. Nat. Res. Code, §51.178 shall conform to the requirements of that section and the applicable provisions of the Texas Administrative Procedures Act, Government Code, §2001.001 et seq., the General Land Office hearing rules at 31 T.A.C. chapter 2, and any other applicable law.

(f)

Scope of Hearing. The hearing shall be limited to matters relevant to bias, prejudice or conflict of interest. Evidence is not relevant to bias, prejudice or conflict of interest and is not admissible at a hearing to determine whether the surveyor should be removed if it:

(1)

relates to the surveyor's professional competence or judgment;

(2)

relates to the substantive surveying issues in the vacancy proceeding;

(3)

relates to the surveyor's compliance with Article 5282c, Vernon's Texas Civil Statutes or any technical standards promulgated thereunder; or

(4)

relates to procedural irregularities in the appointment of the surveyor.

(g)

Commissioner's Determination. The Commissioner shall issue his written decision within sixty days of the close of the hearing and a copy will be sent, by first class, U.S. Mail, to the surveyor, the person seeking disqualification, and all other interested persons.

(h)

Reconsideration and Appeal. No petition to remove a surveyor shall be re-opened or re-urged unless the Commissioner finds that relevant facts, which could not have been discovered timely through due diligence, compel re-opening or re-urging to avoid a gross injustice. The Commissioner's decision regarding the removal of a surveyor is not a final administrative order and is not subject to appeal.

(i)

Prejudice. The Commissioner will consider the following factors to determine whether an appointed surveyor should be disqualified because of prejudice.

(1)

The surveyor has made known to another person orally or in writing a personal animus against interested persons or against their position in the vacancy proceeding.

(2)

The surveyor has made known to another person orally or in writing a personal preference for interested persons or for their position in the vacancy proceeding.

(3)

Any other facts relevant to the prejudice alleged by an interested person seeking removal.

(j)

Bias. The Commissioner will consider the following factors to determine whether an appointed surveyor should be disqualified because of bias.

(1)

The surveyor has made known to another person orally or in writing an opinion, not based upon or supported by his work as a surveyor, regarding the existence of the vacancy at issue.

(2)

The surveyor is a relative of an interested person, the Land Commissioner or an employee of the General Land Office who participates in vacancy determinations. For purposes of this subsection, "participates" means decides, approves, disapproves, recommends, gives advice, investigates, influences or takes other similar action.

(3)

For purposes of this subsection a "relative" is: a person's parent or child;

(A)

a person's grandparent, grandchild, brother or sister; a person's great-grandparent, great-grandchild, uncle who is a brother of a parent, aunt who is the sister of a parent, or a nephew or niece who is the child of a sister or brother ( person within the third degree of consanguinity (blood) kinship ); or a person's spouse, or the spouse's parent, child, grandchild, brother, or sister; or the spouse of anyone related to the person as specified above ( person within the second degree by affinity (marriage) kinship ).

(B)

Adopted and stepchildren are treated as the natural children of the adoptive parents.

(C)

Any other facts relevant to the bias alleged by an interested person seeking removal.

(k)

Conflict of Interest. The Commissioner will consider the following factors to determine whether an appointed surveyor should be disqualified because of conflict of interest.

(1)

The surveyor has a significant financial or other interest in the outcome of a vacancy proceeding that may influence the performance of his services, including the rendition of an independent judgment, under the appointment.

(2)

The surveyor agrees to accept any significant benefit, financial or otherwise, or has accepted any significant benefit, financial or otherwise, from any person interested in the outcome of the survey. Neither the acceptance of an appointment nor receipt of funds from a person required to pay for the survey constitutes a conflict of interest requiring removal.

(3)

The surveyor is a relative of any person who has a significant direct or indirect financial interest in the determination of the vacancy application or in any project or enterprise dependent upon the final determination on the vacancy application. Relative is defined in §13.81(j)(3).

(4)

For purposes of this subsection, financial interest includes ordinary investments, real property interests, including contingent or conditional interests, and other ordinary interests which monetarily benefit the surveyor or his estate presently or in the reasonably foreseeable future.

(5)

Any other facts relevant to the conflict of interest alleged by an interested person seeking removal.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 12, 2000.

TRD-200003338

Larry Soward

Chief Clerk

General Land Office

Earliest possible date of adoption: June 25, 2000

For further information, please call: (512) 305-9129