31 TAC §§17.1 - 17.3, 17.7, 17.39, 17.41, 17.46 - 17.48, 17.50
The Texas General Land Office (GLO) proposes amendments to §§17.1
- 17.3, 17.7, 17.39, 17.41, 17.46 - 17.48, and 17.50, relating to Hearing
Procedures for Administrative Penalties and Removal of Unauthorized or Dangers
Structures on State Land. These rule amendments have been undertaken as a
result of the comprehensive review of the GLO's rules mandated by Texas Government
Code §2001.039. The amendments are non-substantive updates and will ensure
that the rules are current, clear, and necessary. The proposed amendments
to Chapter 17 update references to legal citations, update definitions and
update the mailing address of the GLO Legal Division that changed since the
last time this chapter was reviewed.
The GLO proposes the amendment to §17.1 relating to Purpose and Scope.
Currently, §17.1(c) refers to the Administrative Procedure Act (APA)
as Texas Civil Statutes, Article 6252-13a (Supp. 1991). The APA is codified
in Texas Government Code §2001.001, et seq. The proposed amendment would
update the citation in §17.1(c) to Texas Government Code, §2001.001,
et seq. The proposed citation amendment would create consistency for these
citations throughout Chapter 17.
The GLO proposes the amendment to §17.2 relating to Definitions. The
proposed amendment would update the title of the Deputy Commissioner to Deputy
Commissioner of the Asset Management Division or Coastal Resources Division,
as applicable.
The GLO proposes the amendment to §17.3 relating to Filing of Documents.
The proposed amendment would update the mailing address for the Legal Services
Division of the General Land Office, to 9th Floor, Austin, Texas 78701-1496.
The GLO proposes the amendment to §17.7 relating to Initiation of
General Land Office Action. Currently, §17.7(3) references the Administrative
Procedure Act. The APA is codified in Texas Government Code §2001.001,
et seq. The proposed amendment in §17.7(3) would update the citation
to Texas Government Code §2001.001, et seq. The proposed citation amendment
would create consistency for these citations throughout Chapter 17.
The GLO proposes the amendment to §17.39 relating to Commissioner's
Orders. Currently, §17.39(c) references Texas Civil Statutes, Article
6252-13(a), §16. The APA is codified in Texas Government Code §2001.001,
et seq. The proposed amendment would update the citation in §17.39(c)
to Texas Government Code, §2001.141, et seq. The proposed citation amendment
would create consistency for these citations throughout Chapter 17.
The GLO proposes the amendment to §17.41 relating to Compliance or
Petition for Judicial Review. Currently, §17.41(b) references the Administrative
Procedure and Texas Register Act, §19. The APA is codified in Texas Government
Code §2001.001, et seq. The proposed amendment would update the citation
in §17.41(b) to Texas Government Code §2001.171, et seq. The proposed
citation amendment would create consistency for these citations throughout
Chapter 17.
The GLO proposes the amendment to §17.46 relating to Ex Parte Communications.
Currently, §17.46 references the Administrative Procedure and Texas Register
Act, §14(q). The APA is codified in Texas Government Code §2001.001,
et seq. The proposed amendment would update the citation to Texas Government
Code, §2001.061. The proposed citation amendment would create consistency
for these citations throughout Chapter 17.
The GLO proposes the amendment to §17.47 relating to Subpoenas. Currently, §17.47(a)
references the Administrative Procedure and Texas Register Act, §14.
The APA is codified in Texas Government Code §2001.001, et seq. The proposed
amendment would update the citation in §17.47(a) to Texas Government
Code, §2001.089. The proposed citation amendments would create consistency
for these citations throughout Chapter 17.
The GLO proposes the amendment to §17.48 relating to Depositions.
Currently, §17.48 references the Administrative Procedure and Texas Register
Act, §14 and §14a. The APA is codified in Texas Government Code §2001.001,
et seq. The proposed amendment would update the citation to Texas Government
Code, §2001.081, et seq. The proposed citation amendment would create
consistency for these citations throughout Chapter 17.
The GLO proposes the amendment to §17.50 relating to Remedies Not
Exclusive. The proposed amendment updates the citations and edits §17.50
to ensure the section is clear and readable. The reference to Texas Natural
Resources Code, §51.302 "as amended" will now be deleted because the
term>
Code §51.3021 will be deleted because §51.3021 is no longer a new
statute.
Larry L. Laine, Chief Clerk of the GLO, has determined that for each year
of the first five years the amendments are in effect there will be no fiscal
implications for state or local government as a result of enforcing or administering
the amendments.
Mr. Laine has also determined that for each year of the first five years
the amendments are in effect the public benefit anticipated as a result of
enforcing or administering the amendments will be updating references to legal
citations, updating definitions and updating the GLO Legal Department mailing
address. There will be no effect on small business. There are no economic
costs to persons who are required to comply with the proposed amendments.
The GLO invites comments from the public during the review process and
will address any comments received. Any questions or comments should be directed
to Walter Talley, Texas Register Liaison, Texas General Land Office, P. O.
Box 12873, Austin, TX 78711, facsimile number (512) 463-6311 or email to walter.talley@glo.state.tx.us.
Written comments must be received no later than thirty (30) days from the
date of publication of this notice.
The amendments are proposed under the Natural Resources Code, §31.051,
which authorizes the commissioner to make and enforce rules consistent with
the law.
Texas Natural Resources Code §51.302 and §51.3021 are not affected
by the proposed amendments due to the fact that there are no substantive changes
proposed. The proposed amendments update references to legal citations, changes
the title of the deputy commissioner and updates the mailing address of the
GLO Legal Division.
No other codes, articles or statutes are affected by these proposed amendments.
§17.1.Purpose and Scope.
(a) - (b)
(No change.)
(c)
These sections shall supplement the provisions of
Texas Government Code, §2001.001, et seq. (APA)
[
Texas Civil
Statutes, Article 6252-13a (Supp. 1991), hereinafter referred to as APTRA
]. All practices and procedures provided for by
APA
[
APTRA
], even though not specifically included herein, shall be applicable
to practice before the General Land Office.
§17.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1) - (5)
(No change.)
(6)
Deputy commissioner--The deputy commissioner of the Asset
Management Division or
Coastal Resources
[
Resource Management
] Division, as applicable, of the General Land Office.
(7) - (17)
(No change.)
§17.3.Filing of Documents.
(a)
All documents shall be filed with the administrative hearings
clerk at the following address: Administrative Hearings Clerk, General Land
Office, 1700 North Congress Avenue,
9th Floor
[
Room 630
],
Austin, Texas 78701-
1496
[
1495
].
(b)
The administrative hearings clerk shall deliver a copy
of all documents submitted under this section to the assigned agency hearings
attorney at the following address: Legal Services Division: Environment Law
Section, General Land Office, 1700 North Congress Avenue,
9th Floor
[
Room 630
], Austin, Texas 78701-
1496
[
1495
].
(c) - (e)
(No change.)
§17.7.Initiation of General Land Office Action.
(a)
The commissioner may recover a penalty of not less than
$50 or more than $1,000 for each day that a person constructs, owns, operates,
possesses, or exercises control over an unauthorized structure or facility
on state land.
(1) - (2)
(No change.)
(3)
Prior to a final order of the commissioner assessing a
penalty or ordering the removal of an unauthorized facility or structure,
the owner or operator shall be entitled to a hearing. The hearing shall be
conducted in accordance with the provisions of Texas Government Code, [
Administrative Procedure Act, §
] §2001.001 et seq.
(b) - (f)
(No change.)
§17.39.Commissioner's Orders.
(a) - (b)
(No change.)
(c)
Not later than the 20th day after the date on which the
notice is served in accordance with subsection (b) of this section, the owner
or operator charged may consent in writing to the report, including the commissioner's
recommendations, or the owner or operator charged or any party to the administrative
hearing may file a motion for rehearing in accordance with
Texas Government
Code, §2001.141, et seq
[
Texas Civil Statutes, Article 6252-13(a), §16
].
(d) - (f)
(No change.)
§17.41.Compliance or Petition for Judicial Review.
(a)
(No change.)
(b)
Judicial review of the order or decision of the commissioner
shall be under the
Texas Government Code, §2001.171, et seq
[
Administrative Procedure and Texas Register Act, §19 (Texas Government
Code, Chapter 2001)
].
(c) - (d)
(No change.)
§17.46.Ex Parte Communications.
Unless otherwise authorized by law, a hearing examiner in a contested
case may not communicate, directly or indirectly, with any agency, person,
party, or its representative regarding any issue of fact or law relating to
such case, except on notice and opportunity for all parties to participate.
Pursuant to the authority provided in the
Texas Government Code, §2001.061
[
Administrative Procedure and Texas Register Act, §14(q)
], however, the commissioner, chief clerk, or an employee of the General
Land Office who is assigned to render a decision or to make findings of fact
and conclusions of law in a contested case may communicate ex parte with employees
of the General Land Office who have not participated in any way in preparation
for or as a participant or witness in such contested case in order to utilize
the special skills of the agency and its staff in evaluating the evidence.
§17.47.Subpoenas.
(a)
The issuance of subpoenas in any proceeding shall be governed
by the
Texas Government Code, §2001.089
[
Administrative
Procedure and Texas Register Act, §14
]. The General Land Office
may issue subpoenas addressed to any sheriff or constable to require the attendance
of witnesses and the production of books, records, papers, or other objects
as may be necessary and proper for the purposes of a proceeding. A subpoena
may be issued by the commissioner, the chief clerk, or during the course of
a hearing, by a hearing examiner.
(b)
(No change.)
(c)
Subpoenas shall be issued only after a showing of good
cause and after the deposit of sufficient funds to ensure payment of expenses
incident to the issuance of such subpoenas. Service of subpoenas and payment
of witness fees shall be made in the manner prescribed in the
Texas Government
Code, §2001.103
[
Administrative Procedure and Texas Register
Act, §14
].
(d) - (e)
(No change.)
§17.48.Depositions.
The taking and use of depositions in any proceeding shall be governed
by the
Texas Government Code, §2001.081, et seq
[
Administrative
Procedure and Texas Register Act, §14 and §14a
].
§17.50.Remedies Not Exclusive.
The remedies under
Texas Natural Resources Code
[
amended
] §51.302 and [
new
] §51.3021 [
of the Texas
Natural Resources Code
] are cumulative and not exclusive. The Texas
Natural Resources Code does not require exhaustion of administrative remedies
as a condition precedent to any other remedy, nor does it prohibit any person
from bringing an action at common law or under any other law consistent with
Texas Natural Resources Code
[
amended
] §51.302 and [
new
] §51.3021 [
of the Texas Natural Resources Code
].
No such action shall collaterally estop or bar the commissioner in any proceeding
under this chapter or under the Texas Natural Resources Code.
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 25, 2005.
TRD-200502122
Trace Finley
Policy Director
General Land Office
Earliest possible date of adoption: July 10, 2005
For further information, please call: (512) 475-1859