Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 1.
MANAGEMENT
The Texas Department of Transportation proposes the repeal of §§1.21-1.61
and new §1.21-1.33, concerning procedures in contested cases.
EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS
Government Code, §2003.050, enacted in 1997, provides that in contested
cases before the State Office of Administrative Hearings (SOAH), all proceedings
are governed by SOAH's procedural rules unless SOAH has specifically adopted
the procedural rules of the agency. In addition, the 76th Legislature, 1999,
enacted Senate Bill 757, which amended Government Code, §2003.051, and
provided that a state agency may take no adjudicative action in a contested
case that is pending before SOAH until the SOAH administrative law judge issues
a proposal for decision.
The department recommends the repeal of existing §§1.21-1.61
and simultaneously proposes new §§1.21-1.33. The new sections delete
large portions of the former rules governing procedures in contested cases
because those rules have been superceded by the procedural rules of SOAH.
Minor nonsubstantive changes have been made to correct spelling, enhance clarity,
and improve grammar. Changes are also made to streamline and clarify contested
case procedures.
Former §§1.26-1.34, §§1.37-1.41, §§1.43-1.52, §§1.56-1.58, §1.60,
and §1.61 are eliminated entirely. In the case of former §1.50 and §§1.56-1.58,
the former sections are unnecessary because they merely repeat standards clearly
set forth in Government Code, §2001. In the case of the other eliminated
sections, Government Code, §2003.050 provides that all proceedings before
SOAH are governed by SOAH's procedural rules. Because all the department's
contested cases are conducted before SOAH, the former sections no longer apply
to any proceedings and are therefore unnecessary.
New §1.21 sets out the scope and purpose of the subchapter. It excludes
contested cases arising under the Motor Vehicle Commission Code, Texas Civil
Statutes, Article 4413(36), or under Transportation Code, Chapter 503. These
cases are litigated before administrative law judges in the department's Motor
Vehicle Division and are governed by procedural rules contained in 16 TAC
Chapter 111. New §1.21 also clarifies that contested cases are governed
generally by the procedural rules of the State Office of Administrative Hearings,
as provided by Government Code, §2003.050.
New §1.22 is based on former §1.21. Definitions of APA, Commission,
Hearing Officer, Intervenor, and Pleading are eliminated as unnecessary because
they are not contained in the new sections. A new definition of administrative
law judge is added to replace the former definition of Hearing Examiner. The
new definition of Contract Claim better reflects the scope of contract claims
under Transportation Code, §201.112, which authorizes the promulgation
of procedural rules governing certain contract claims. The definition of executive
director is changed to include a designee, if permitted by law. Minor changes
are made in the definitions of party, person, petition, and petitioner to
clarify the meaning of those terms.
New §1.23 is based on former §1.22. The new section eliminates
the requirement that signed copies of a petition must be filed for the executive
director and for each commissioner, for a total of four originals. When this
provision was originally adopted, all contested cases were decided by the
commission, except contract claims. Now motor carrier and vehicle storage
facility cases are decided by the executive director or his designee. It would
be cumbersome and confusing to specify different numbers and types of copies
for each kind of case, and so the filing requirement is simplified to the
filing of an original and four copies in all cases. This allows for an original
for the files and copies for the executive director and each commissioner,
if necessary. The language in this section is otherwise simplified without
any substantive change.
New §1.24 is based on former §1.23. No substantive change is
intended, except that the new language strengthens the prohibition against
mentioning settlement offers or proceedings before the contract claim committee.
New §1.25 is based on former §1.24. Subsection (a) clarifies
the scope of the preliminary review by the executive director as including
both technical review and a substantive legal review to ensure that the petitioner
has a legal right to initiate a contested case. To be consistent with current
practice, subsection (b) establishes a minimum time in which the petitioner
may file a corrected petition. Subsection (c) provides that a petitioner will
not be permitted to correct an already-corrected petition, if it is rejected
a second time. Subsection (d) clarifies that the executive director's preliminary
determination of the petition's sufficiency does not prevent the Attorney
General's Office from seeking to dismiss a case on the grounds that the petition
is insufficient. This is intended to eliminate any risk that the preliminary
review by the executive director will be seen as binding on the administrative
law judge or the Attorney General's Office.
New §1.26 is based on former §1.25. The new language eliminates
many of the detailed provisions in former §1.25 because the procedure
for initiating a contested case is now governed by SOAH's procedural rules.
The last sentence in §1.26(b) is added to conform to the State Office
of Administrative Hearings' procedural rules governing service in default
proceedings.
New §1.27 is based on former §1.35 and §1.36. Subsection
(a) incorporates the substance of former §1.35 regarding depositions,
subsection (b) incorporates the substance of former §1.36(2) regarding
subpoenas for the production of documents, and subsection (c) incorporates
the substance of former §1.36(1) regarding subpoenas for the attendance
of witnesses at hearings. Subsection (d) includes provisions drawn from former §1.35,
former §1.36, and Government Code, Chapter 2001, to limit the risk that
discovery will be used to abuse or harass an opposing party.
New §1.28 is based on former §1.42. The new section incorporates
the substance of the former section and strengthens the ban on the admissibility
of settlement offers or references to contract claims proceedings.
New §1.29 is added to clarify the ability of the administrative law
judge to withdraw or amend a proposal for decision until a final order is
issued. This provision is intended to ensure that proposal's for decision
represent the administrative law judge's most complete analysis of the relevant
issues.
New §1.30 is based on former §1.53. Subsection (a) incorporates
the substance of former §1.53 without substantive change. Subsection
(b) adds a new requirement providing that exceptions must be filed directly
with the department, with a copy provided simultaneously to the administrative
law judge. This permits but does not require the administrative law judge
to consider withdrawing or amending a proposal for decision under §1.29
in response to exceptions. Subsection (c) provides that motions for an extension
of time must be filed at least three days before a due date and must be served,
if possible, by hand delivery or facsimile on the same day, or if not, by
overnight delivery service. This is intended to eliminate the possibility
that a party, in order to obtain a strategic advantage, will file a motion
for an extension of time at the last minute and serve it on the opposing party
after the opposing party's due date.
New §1.31 is based on former §1.54. The new section incorporates
the substance of the former section without substantive change, except that
specific exceptions must now be separately numbered for ease of reference.
New §1.32 is based on former §1.56. While the former section
focused on the standards for granting a rehearing, the new section instead
focuses on the procedural requirements for filing a motion for a rehearing.
These standards are made to mirror those for filing exceptions and replies,
except that a motion for an extension of time will not be granted because
Government Code, §2001.144(a)(1) provides that an order automatically
becomes final when a motion for rehearing is not filed within the specified
time.
New §1.33 is based on former §1.59. The new section directs the
administrative law judge to announce at the end of a hearing that the time
for a final decision will be extended if a final order cannot reasonably be
issued within 60 days, as required by Government Code, §2001.143. The
announcement must be incorporated in the proposal for decision, and the extension
must be for at least 45 days to allow the parties time to file exceptions
and replies.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the repeals and new sections are in effect, there will be
no fiscal implications for state or local governments as a result of enforcing
or administering the repeals and new sections. There are no anticipated economic
costs for persons required to comply with the sections as proposed.
Richard D. Monroe, General Counsel, has certified that there will be no
significant impact on local economies or overall employment as a result of
enforcing or administering the repeals and new sections.
PUBLIC BENEFIT
Richard D. Monroe has also determined that for each year of the first five
years the sections are in effect, the public benefit anticipated as a result
of enforcing or administering the repeals and new sections will be to provide
the public with more accurate information about the procedures followed in
the department's contested cases.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals and new sections may be submitted
to Richard D. Monroe, General Counsel, 125 East 11th Street, Austin, Texas
78701-2483. The deadline for receipt of comments is 5:00 p.m. on August 14,
2000.
Subchapter E. CONTESTED CASE PROCEDURE