Emergency Sections
An agency may adopt a new or amended section or repeal an existing section on an 
emergency basis if it determines that such action is necessary for the public 
health, safety, or welfare of this state. The section may become effective 
immediately upon filing with the Texas Register, or on a stated date less than 
20 days after filing, for no more than 120 days. The emergency action is 
renewable once for no more than 60 days.
Symbology in amended emergency sections. New language added to an existing 
section is indicated by the use of bold text. [Brackets] indicate deletion of 
existing material within a section.
TITLE 28. INSURANCE
Part I. Texas Department of Insurance
Chapter 5. Property and Casualty Insurance
Subchapter C. Texas Medical Liability Insurance Underwriting Association
28 TAC sec.5.2002
The State Board of Insurance adopts on an emergency basis an amendment to 
sec.5.2002, concerning the Texas Medical Liability Underwriting Association. 
Section 5.2002(d) addresses the selection of members to the board of directors 
of the Texas Medical Liability Underwriting Association. The amendment is needed 
to conform the procedures for selecting directors to recent legislation which 
amended the Insurance Code, Article 21.49-3 sec.6, and to otherwise 
appropriately revise the procedure for selecting directors. This emergency rule 
amendment was proposed and published in the September 20, 1991, issue of the 
Texas Register (16 TexReg 5197). The Insurance Code, Article 21.49-3 sec.6, was 
amended in sec.9.11 of House Bill 2 by the 72nd Legislature to require that the 
board of directors consist of nine directors to be selected annually as follows: 
five directors are to be representatives of insurers required to be members of 
the Texas Medical Liability Underwriting Association and are elected by members 
of the Association; one director is to be a physician selected by the Texas 
Medical Association or its successor; one director is to be representative of 
hospitals and appointed by the Texas Hospital association or its successor; and 
two directors are to be members of the public and appointed by the State Board 
of Insurance. Heretofore, all nine directors have been selected by the 
membership of the association. The board's members are required to take office 
on October 1 of each year. In order to have a duly constituted board of 
directors, the board must be selected and properly operating by October 1. The 
need for a properly functioning board of directors for the Texas Medical 
Liability Association to properly conduct the affairs of the association on and 
after October 1 creates an imminent peril to the public welfare requiring the 
adoption of the amendment to Section 5.2002(d) on an emergency basis.
The amendment is adopted an emergency basis under the Insurance Code, Article 
21.49-3 sec.3(c), which authorizes the State Board of Insurance to promulgate a 
plan of operation for the Texas Medical Liability Insurance Underwriting 
Association.
sec.5.2002. Operation of the Texas Medical Liability Insurance Underwriting 
Association.
(a)-(c) (No change)
(d)  Directors.
(1) <nl>Selection.<ol> [Election]. At <nl>a special<ol> [the first annual] 
meeting of members <nl>to be held prior to October 1, 1991,<ol> and at each 
annual meeting [thereafter], the members shall elect <nl>five<ol> directors from 
among member companies <nl>for the categories set forth in paragraph (2)(B) and 
(C) of this subsection<ol> [to hold office until the next succeeding annual 
meeting].  <nl>Four directors shall be selected in the manner set forth in 
paragraph (2)(D)-(F) of this subsection. Members of the board of directors take 
office on October 1 of each year<ol>. [Such an elected director shall designate 
at least two individuals to act as primary and alternate representatives on its 
behalf.]
(2)  Membership.
(A) The number of the directors of the association [to be elected at annual 
meetings] shall be nine.
(B) <nl>Three<ol> [Five] directors to be [so] elected <nl>in accordance with 
paragraph (1) of this subsection shall be elected by the members and<ol> shall 
be separate members of the association representing each of the following:
<nl>(i) National Association of Independent Insurers;
<nl>(ii) American Insurance Association; <nl>and
<nl>(iii)  Alliance of American Insurers [; Association of Fire and Casualty 
Companies in Texas; an insurer organized under the laws of and domiciled in the 
State of Texas.]
<nl>(C) Two directors shall be elected by the members and shall be:
<nl>(i)<nl> a member insurer organized under the laws of and domiciled in the 
State of Texas; and<ol> [.]
<nl>(ii) <nl> a member insurer that is not a member of those associations 
described in subparagraph (B) of this paragraph.
<nl>(D) One director shall be a physician who is appointed by the Texas Medical 
Association or its successor.
<nl>(E) One director shall be a representative of hospitals appointed by the 
Texas Hospital Association or its successor.
<nl>(F) Two directors shall be members of the public to be appointed by the 
board.
<nl>(G) [The remaining four directors shall be any members elected by the 
members at the annual meeting.] No member <nl>of the board of directors <ol> 
shall fill more than one seat on the board of directors, and no member 
affiliated by ownership, management, or control shall simultaneously occupy 
seats on the board of directors. No later than 60 days prior to the annual 
meeting, the board of directors shall select a nominating committee of <nl>three 
<ol> [five] member companies.
<nl>(H)  The three<ol> [five] directors representing the <nl>organizations set 
forth in subparagraph (B) of this paragraph<ol> [previously listed categories] 
shall be nominated by the nominating committee. The <nl>two <ol> [remaining 
four] directors <nl>described in subparagraph (C) of this paragraph <ol> may be 
nominated by any member of the association by submitting such nominee's name to 
the nominating committee. In order to be eligible for  <nl>selection<ol> 
[election] to the board of directors <nl>by the members,<ol> a member must be 
nominated at least 30 days prior to the annual meeting at which <nl>such<ol> 
directors are <nl>selected <ol> [elected].
(3) Term of office. Unless removed in accordance with <nl>this subchapter<ol> 
[these sections], each director shall hold office for the term of one year [from 
the date of election] or until a successor shall have been <nl>selected <ol> 
[elected] and qualified.
(4)-(15) (No change.)
(e)-(j) (No change.)
Issued in Austin, Texas, on September 24, 1991.
TRD-9111729
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
Effective date: September 24, 1991
Expiration date: January 22, 1992
For further information, please call: (512) 463-6327
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part I. General Land Office
Chapter 17. Hearing Procedures for Administrative Penalties and Removal of 
Unauthorized or Dangerous Structures on State Land
31 TAC sec.sec.17.1-17.50
The General Land Office adopts on an emergency basis new  ssec.17.1-17.50, 
concerning notice and hearings required by the land commissioner before imposing 
administrative penalties and removing unauthorized or dangerous structures from 
state land. The new chapter is adopted on an emergency basis to bring the agency 
into compliance with the Act of June 11, 1991, House Bill 478, Chapter 465, 72nd 
Legislature (to be codified at Texas Natural Resources Code, sec.51.302 and 
sec.51. 3021), relating to the removal of certain unauthorized or imminently 
dangerous structures from state land.
The new sections are adopted on an emergency basis under House Bill 478, Chapter 
465, 72nd Legislature (to be codified at Texas Natural Resources Code, 
sec.51.302 and sec.51.3021), which authorizes the commissioner to promulgate 
rules necessary and convenient to the administration of hearings under House 
Bill 478.
sec.17.1. Purpose and Scope.
(a) These sections are intended to provide orderly and efficient procedures for 
the General Land Office (GLO) to assess administrative penalties and pursue the 
removal of unauthorized facilities or structures on state land and for the 
appeal of administrative penalties and removal of unauthorized facilities or 
structures on state land in accordance with the Texas Natural Resources Code, 
sec.51.302 and sec.51.3021.
(b) These procedures shall apply to the initiation, conduct, and determination 
of hearings on administrative penalties for unauthorized facilities or 
structures and for the removal of unauthorized facilities or structures on state 
land pursuant to the Texas Natural Resources Code, sec.51.302 and sec.51.3021, 
where notice and hearing are required.
(c) These sections shall supplement the provisions of Texas Civil Statutes, 
Article 6252-13a (Supplement 1991), hereinafter referred to as APTRA. All 
practices and procedures provided for by APTRA, even though not specifically 
included herein, shall be applicable to practice before the General Land Office.
sec.17.2. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise.
 Agency-The General Land Office of the State of Texas.
 Chief clerk-The chief clerk of the General Land Office. The chief clerk may 
perform any of the duties of the commissioner if the commissioner is sick, 
absent, dies, or resigns.
 Commissioner-The commissioner of the General Land Office.
 Interested party -Person having a vested property interest in an unauthorized 
structure or facility.
 Lienholder-Person having a security interest in an unauthorized structure or 
facility and whose interest is recorded in the county in which the property is 
located.
 Owner or operator -Any person:
(A) owning, operating, constructing, possessing, or exercising control over an 
unauthorized structure or facility; or
(B) operating an unauthorized structure or facility by lease, contract, or other 
form of agreement.
 Person-Any individual, partnership, corporation, association, governmental 
subdivision, or public or private organization of any character.
 Petitioner-In a contested case, the person or persons filing a statement of 
grounds contesting an agency action or assessment.
 Proceeding-Any hearing, investigation, inquiry, or other fact-finding or 
decision-making procedure, including the denial of relief or the dismissal of a 
complaint.
 State land-Any land set apart to the permanent school fund under the 
constitution and laws of this state.
 Structure or facility-Includes, without limitation, any structure, work, or 
improvement constructed on or affixed to or worked on state land, including 
fixed or floating piers, wharves, docks, ramps, booms, weirs, jetties, groins, 
backwaters, bulkheads, artificial reefs or islands, permanent mooring 
structures, retaining walls, levies, pilings, permanently moored floating 
vessels, abandoned vessels, cabins, houses, shelters, power transmission lines, 
pipelines, equipment for production, storage, or treatment of oil, gas, or other 
minerals, roads, fences, or posts. A work or improvement includes, without 
limitation, any dredging or disposal of dredged material, excavation, filling, 
land canals, channels, or propwashing.
 Unauthorized structure or facility-Any facility or structure on state land not 
authorized by a proper easement or lease from the state.
 Uncontested proceeding or case-Any proceeding other than a contested case.
sec.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, Room 630, Austin, Texas 78701-1495.
(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, Room 630, Austin, Texas 78701-1495.
(c) Except as provided in subsection (d) of this section, all documents relating 
to an administrative hearing before the agency shall be deemed filed only when 
actually received and accepted by the administrative hearings clerk.
(d) A document required to be filed under this chapter which is properly 
addressed to the administrative hearings clerk, which is properly stamped, and 
which is postmarked at least one day prior to the last day for filing the 
document, shall be deemed to have been filed timely if it is received not more 
than 10 days after the filing deadline.
(e) Where the time period for filing any responsive documents (replies to 
exceptions, replies to motions, etc.) is initiated by the filing of another 
document, the initiating document shall be deemed filed when it is actually 
received and accepted for filing by the administrative hearings clerk, if filed 
on or after the filing deadline. Documents filed before the filing deadline 
shall be deemed filed on the day of the filing deadline.
sec.17.4. Computation and Extension of Time Periods.
(a)  Counting days. In computing any relevant period of time, the period shall 
begin on the day after the act, event, or default in question and shall conclude 
on the last day of that designated period, unless such last day falls on a 
Saturday, Sunday, or legal holiday. In that case, the period shall be extended 
until the end of the next day which is neither a Saturday, Sunday, nor a legal 
holiday.
(b) Extensions.
(1) Unless otherwise provided by statute, the time for filing any documents 
covered by this title may be extended. A written motion must be filed prior to 
the expiration of the applicable period of time asserting that there is good 
cause for the extension of time and that the need for the extension is not 
caused by the neglect, indifference, or lack of diligence of the movant. A copy 
of any such motion shall be served upon all parties of record concurrently with 
its filing with the administrative hearings clerk.
(2) Upon a showing of good cause by petitioner, the hearing examiner may extend 
the time for submission of a statement of grounds.
sec.17.5. All Agreements Must Be In Writing.  No stipulation or agreement 
between the parties, their attorneys, or representatives shall be enforceable 
unless it has been reduced to writing and signed by the parties or their 
authorized representatives, or unless dictated into the record during the course 
of a hearing, or incorporated into an order bearing written approval of all 
parties. This section shall not limit a party's ability to waive, modify, or 
stipulate any right or privilege afforded by these sections, unless otherwise 
precluded by law.
sec.17.6. Conduct and Decorum.
(a) Comportment. All parties, witnesses, attorneys, and other representatives 
shall conduct themselves during all agency proceedings with dignity, courtesy, 
and respect for the agency, its hearing examiner, and all other parties and 
participants. Attorneys shall observe all rules of professional and ethical 
behavior prescribed for the profession by the Code of Professional 
Responsibility.
(b) Compliance. Any party, witness, attorney, or other representative who 
violates subsection (a) of this section may be excluded by the agency from any 
proceeding or may be subject to such other reasonable and lawful disciplinary 
action as the agency may prescribe.
sec.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.
(b)  The commissioner may remove and dispose of a facility or structure on state 
land if the commissioner finds the facility or structure to be:
(1) not authorized by a proper easement or lease from the state; or
(2) an imminent and unreasonable threat to public health, safety, or welfare.
(c)  An owner or operator of an abandoned facility or structure includes, for 
purposes of this chapter, the person who last owned, possessed, constructed, 
operated, or exercised control over the facility or structure.
(d)  Before the commissioner imposes a penalty and/or removes a structure under 
the Texas Natural Resources Code (the code) sec.51.302 and sec.51.3021, the 
commissioner shall give written notice to the owner or operator of the structure 
or facility and any lienholders stating:
(1) the specific facility or structure that is not authorized by a proper 
easement or lease from the state or that threatens public health, safety, or 
welfare;
(2) the nature of the threat, if alleged, to public health, safety, or welfare;
(3) that the owner or operator of the facility or structure shall remove the 
facility or structure:
(A) not later than the 30th day after the date on which the notice is served, if 
the facility or structure is on state land and not authorized by a proper lease 
or easement; or
(B) within a reasonable time specified by the commissioner if the facility or 
structure is an imminent and unreasonable threat to public health, safety, or 
welfare;
(4) that failure to remove the facility or structure may result in liability for 
a penalty under the Code, sec.51.302(b) in an amount specified, removal by the 
commissioner, and liability for the costs of removal, or both; and
(5) that the owner or operator, lienholder, or interested party of the facility 
or structure may submit, not later than the 30th day after the date on which the 
notice is served, written request for a hearing.
(e) The notice required by subsection (d) of this section must be given:
(1) to the owner or operator:
(A) by service in person or by registered or certified mail, return receipt 
requested; or
(B) if personal service cannot be obtained or the address of the owner or 
operator responsible is unknown, by posting a copy of the notice on the facility 
or structure and by publishing notice in a newspaper with general circulation in 
the county in which the facility or structure is located two times within 10 
consecutive days;
(2) to the lienholders by registered or certified mail, return receipt 
requested.
sec.17.8. Request for Hearing.
(a) An owner or operator, lienholder, or interested party who disagrees with the 
proposed removal, disposal, and/or penalty, and who wishes to request a hearing 
for reconsideration or redetermination by the agency of the proposed action 
and/or penalty, shall file with the agency a request for hearing and a statement 
of grounds as described in sec.17.3 of this title (relating to filing of 
documents) and sec.17.9 of this title (relating to statement of grounds).
(b) If the owner or operator charged consents to the commissioner's 
recommendation, or if the owner or operator, lienholder, or interested party 
fails to request a hearing within 30 days after receipt of notice of the 
proposed action and/or penalty, the commissioner, by order, shall take the 
recommended action or order a hearing to be held on the findings and 
recommendations in the notice as described by sec.17.7 of this title (relating 
to initiation of General Land Office action). If the commissioner takes the 
recommended action, the commissioner shall serve written notice of the decision 
to the owner or operator and lienholders. The owner or operator charged must 
comply with the order and pay any penalty assessed.
(c) A request for hearing must be filed in a timely manner regardless of any 
extension of time granted for the filing of a statement of grounds.
sec.17.9. Statement of Grounds.
(a) A statement of grounds must set out in detail the reasons for disagreement 
with the proposed action and/or penalty assessed and shall include the factual 
and legal basis for the dispute.
(b) To the extent practicable, a statement of grounds shall be accompanied by 
the following documents:
(1) documentary evidence, if any, in support of petitioner's claim;
(2) a list of all other parties whom petitioner claims are liable under the 
charges of the notice as described by  s17.7 of this title (relating to 
Initiation of General Land Office Action).
(c) A statement of grounds or a letter requesting an extension of time to file a 
statement of grounds must be filed within 20 days after receipt of the notice of 
the proposed action and/or penalty.
(d) Upon a showing of good cause by petitioner, the hearing examiner may extend 
the time for submission of a statement of grounds.
(e) The time for submission of a statement of grounds will be automatically 
extended 15 days if the petitioner, having requested a hearing, requests an 
informal conference with the hearing examiner prior to the original date set for 
submission of the statement of grounds. In order to receive the automatic 15-day 
extension, the petitioner must file a letter with the administrative hearing 
clerk before the original date the statement of grounds is due which sets out 
the date and place of the informal conference, as agreed upon by the petitioner 
and the hearing examiner.
sec.17.10. Docketing and Notice. When the administrative hearings clerk of the 
General Land Office receives a request for hearing or other pleading intended to 
initiate a hearing, the clerk shall determine whether the request for hearing or 
other pleading complies with these sections in form and content. If the request 
for hearing or other pleading complies with these sections in form and content, 
the clerk shall docket it as a pending proceeding, and shall number it in 
accordance with the established docket numbering system of the agency. Notice of 
such action shall be served on all parties of record. If the request for hearing 
or other pleading does not comply with these sections in form and content, the 
clerk shall return the request for hearing or other pleading to the sender to be 
amended in accordance with sec.17.12(d) of this title (relating to Pleadings).
sec.17.11. Notice.
(a) Notice of proceeding. In any administrative hearing, the clerk shall send a 
notice of hearing to each party of record at least 10 days prior to the hearing 
date.
(b) Contents of notice. All notices required by these sections shall be sent by 
certified mail, return receipt requested, and shall contain the following:
(1) a statement of the time, place, and nature of the hearing;
(2) a statement citing the legal authority under which the hearing is to be 
held;
(3) a short and plain statement of the matters asserted;
(4) a statement citing the specific statute(s) or rule(s) involved; and
(5)  in the case of administrative penalties, the amount of penalties alleged to 
be due.
sec.17.12. Pleadings.
(a) Classification of pleadings.
(1)  A pleading is any written document filed by a party alleging its claim, its 
response to a claim, or its request for specific relief or action.
(2)  All pleadings must be in writing, must be filed as required in sec.17.3 of 
this title (relating to Filing of Documents), and must be served on all parties 
of record.
(3) Pleadings shall be classified as applications or petitions, statement of 
grounds, pre-hearing and post-hearing briefs, protests, responses, complaints, 
exceptions, replies, motions, or answers. Any error in the designation of a 
pleading shall not prevent it from being accorded its true status in the 
proceeding in which it is filed.
(b) Service of pleadings. A copy of each pleading must be sent or delivered to 
each party of record or to the designated representative of such party of record 
at the time the pleading is filed with the agency.
(c) Form and content of pleadings. All pleadings shall have the following:
(1) the name, address, and telephone number of the party filing the document and 
the name, business address, telephone number, and fax number of its 
representative, if applicable;
(2) a concise statement of the facts relied upon and the legal basis for the 
relief sought;
(3) a prayer stating the specific relief, action, or order sought by the 
pleader; and
(4) a certificate of service stating that a copy of the pleading has been sent 
or delivered to each party of record.
(d) Amended pleadings. A pleading may be amended at any time unless the 
amendment would operate as a surprise to another party or delay a hearing, 
unless a delay is necessary to prevent injustice or to protect the public 
interest. An amended pleading which operates as a surprise to another party may 
be allowed upon a written motion and a showing that no harm will result from 
such pleading.
(e)  Incorporation of agency records by reference. Any pleading may adopt and 
incorporate by specific reference any document or entry, or any part thereof, in 
the official files and records of the General Land Office. This section shall 
not act to relieve any party from the necessity of alleging and providing those 
facts necessary to sustain its burden of proof as imposed by law or by agency 
rule.
sec.17.13. Motions Before the Examiner and Responses to Motions Before the 
Examiner.
(a) Any motion in any proceeding, unless made on the record during a hearing, 
shall be in writing, shall be filed in accordance with sec.17.3 of this title 
(relating to Filing of Documents), shall be served on all parties of record, and 
shall set forth the relief sought and the specific reasons and grounds for such 
relief. If based upon matters which do not appear of record, it shall be 
supported by written affidavit or certificate. If the movant desires an oral 
argument on the motion before the examiner, the motion shall so state.
(b) If the party filing a response to a motion desires an oral argument on the 
motion before the examiner, the response to the motion shall so state.
sec.17.14. Pre-filed Testimony and Exhibits. The hearing examiner may require 
that prepared testimony and exhibits be pre-filed and served on all other 
parties of record prior to the date set for hearing on any pleading.
sec.17.15. Motions to Retract. A party may, at any time in the administrative 
process, indicate acceptance of the opposing position on any of the issues 
presented by filing a motion to retract. The motion to retract shall concisely 
state which issue or issues are no longer in controversy and need not be 
considered in a hearing.
sec.17.16. Dismissal Without Hearing. The hearing examiner may dismiss a 
proceeding without a hearing, with or without prejudice, for any of the 
following reasons:
(1) failure to comply in a timely manner with any requirement of this chapter or 
to respond to any directive of the hearing examiner with regard to the matter in 
issue;
(2) unnecessary duplication of proceedings or res judicata;
(3) withdrawal of petition or upon submission of a motion to retract;
(4) moot questions or obsolete petitions;
(5) lack of agency jurisdiction; or
(6)  withdrawal of a preliminary report.
sec.17.17. Pre-hearing Conference.
(a) The hearing examiner may, by written notice, either on his own initiative or 
in response to a request by one of the parties, direct the parties or their 
representatives to appear before him at a specified time and place for a 
conference with the examiner to consider any of the following:
(1) formulation or simplification of issues;
(2) admissions, stipulations of fact or stipulations concerning the use of 
public records, or other evidence;
(3) hearing procedures;
(4) limitation, where possible, of the number of witnesses; or
(5)  any other matters which may aid in shortening or simplifying the 
proceedings, or in the disposition of matters in controversy.
(b) Action taken at a pre-hearing conference shall be recorded by the examiner, 
or by an official or licensed court reporter, or reduced to writing by the 
parties and filed as a part of the record of the proceeding.
sec.17.18. Motion for Consolidation. Two or more proceedings may be consolidated 
upon written notice by the hearing examiner or upon written motion of a party 
filed as provided in sec.17.3 of this title (relating to Filing of Documents) 
and served on all parties of record prior to the hearing date. Protest to such 
motion and to the examiner's ruling shall be made as provided in sec.17.12 of 
this title (relating to Pleadings). No proceedings shall be consolidated or 
heard jointly without either consent of all parties involved or a finding by the 
examiner that the proceedings to be consolidated or heard jointly involve common 
questions of law or fact, or both, and that separate hearings would result in 
unwarranted expense, delay, or injustice. Separate hearings on specific issues 
may be allowed by the examiner after consolidation of proceedings.
sec.17.19. Motion for Postponement or Continuance.  A motion for postponement or 
continuance shall be in writing, shall be filed in accordance with sec.17.3 of 
this title (relating to Filing of Documents), and shall be served on all parties 
of record prior to the hearing date. The motion shall set forth the specific 
grounds upon which it is sought. Protest to such motion and to the examiner's 
ruling shall be made as provided in  s17.12 of this title (relating to 
Pleadings). Within 10 days prior to a hearing, or during a hearing, a 
postponement may be granted by an examiner only if good cause is shown upon 
either oral (by conference call if a hearing is not in progress) or written 
motion.
sec.17.20. Time and Place of Hearings.
(a) A hearing shall be held, unless otherwise provided by the commissioner, 
within 30 days of receipt of the request for hearing.
(b) All administrative proceedings shall be conducted in Austin, unless for good 
cause the examiner designates another place for the hearing.
sec.17.21. Hearing Examiner.
(a) Hearings shall be held by a hearing examiner designated by the commissioner. 
The hearing examiner shall make findings of fact and promptly issue to the 
commissioner a written decision as to the unauthorized nature of the structure, 
the imposition of penalties, and the need for removal of the structure and make 
a recommendation as to the removal requirements, the amount of any proposed 
penalty and costs, or both.
(b)  A hearing examiner assigned to a particular proceeding or case shall have 
the authority to:
(1) convene a hearing;
(2) administer oaths to all persons presenting testimony;
(3) rule on motions;
(4)  rule on the admissibility of evidence;
(5) designate and align parties and establish the order for presentation of 
evidence;
(6)  examine witnesses;
(7) set hearing dates;
(8) set pre-hearing conferences;
(9) when required, issue subpoenas to compel the attendance of witnesses or the 
production of papers and documents related to a hearing;
(10) commission and require the taking of depositions;
(11) define the jurisdiction of the General Land Office concerning the matter 
under consideration;
(12) limit testimony to matters within the jurisdiction of the General Land 
Office;
(13) ensure that information and testimony are introduced as conveniently and 
expeditiously as possible without prejudicing the rights of any party to the 
proceeding;
(14)  recess, continue, or reschedule any hearing; and
(15) exercise any other appropriate powers necessary or convenient to carry out 
the examiner's responsibilities.
(c) If a hearing examiner fails for any reason to complete an assigned case 
before a proposal for decision is prepared, the commissioner may designate 
another examiner to complete the assigned case without the necessity for 
duplicating any duty or function performed by the previous examiner.
sec.17.22. Parties to the Hearings. The General Land Office and all persons 
named in the hearing notice are parties to the hearing. Except for good cause, 
no person shall be admitted as a party unless the written request is received by 
the administrative hearings clerk of the General Land Office in Austin by the 
time set in the notice. The examiner shall notify, in writing or by telephone, 
if necessary, the persons admitted and the other parties. At the hearing, only 
those persons admitted as parties will be permitted to present evidence and 
argument and to cross-examine witnesses. The commissioner or his designee shall 
determine by whom and in what manner the agency will be represented at a 
hearing.
sec.17.23. Order of Procedure.
(a) The examiner shall open the hearing and make a concise statement of its 
scope and purposes. A record of all proceedings during such hearing shall be 
made. Once the hearing has begun, parties or their representatives may be off 
the record only when permitted by the examiner. If a discussion off the record 
is determined by the examiner to be pertinent to the issues to be decided in the 
hearing, the examiner may summarize such discussion for the record. Appearances 
by all parties or their representatives, and any witnesses who may testify 
during their proceeding are to be entered in the record. All witnesses present, 
who may testify, will then be placed under oath. Thereafter, parties may present 
motions or opening statements.
(b) Following opening statements, if any, the party with the burden of proof may 
be directed to proceed with its direct case.
(c)  Where the proceeding is initiated by the General Land Office, or where 
several proceedings are heard on a consolidated record, the examiner shall 
designate which party shall open and close and the stage at which other parties 
shall be permitted to offer evidence. The party with the burden of proof shall 
be entitled to open and to close.
(d) Opportunity for cross-examination of witnesses and presentation of a direct 
case shall be afforded all parties of record. After all parties have completed 
the presentation of their evidence and have been afforded the opportunity to ask 
clarifying questions and to cross-examine opposition witnesses, closing 
statements may be allowed.
(e) The parties may, by agreement, alter the order of these proceedings with the 
consent of the hearing examiner.
sec.17.24. Reporters and Transcripts
(a) All contested cases shall be recorded on audio tape, cassette, or by an 
official or licensed court reporter. Upon written request by any party, a 
transcript shall be made of the hearing. The cost of such transcript shall be 
borne by the requesting party. As many copies of the transcript as may be 
required for the purposes of the General Land Office shall be made by such 
requesting party and filed with the hearing examiner. No copies of the 
transcript will be furnished to the parties by the General Land Office, but 
copies may be purchased from the official reporter upon payment of applicable 
charges.
(b) Errors claimed in any transcription shall be noted in writing and suggested 
corrections may be offered within 10 days after the transcript is filed with the 
examiner. Such time for suggested corrections may be extended by the examiner. 
Suggested corrections shall be served in writing upon each party of record and 
upon the examiner. If not objected to within 10 days after being offered, the 
examiner shall direct that such suggested corrections be made and shall 
stipulate the manner of making such corrections. In the event that parties 
disagree on suggested corrections, the examiner, with the aid of argument and 
testimony from the parties, shall then determine the manner in which the record 
shall be changed.
sec.17.25. Formal Exceptions. <ol> Formal exceptions to rulings of the examiner 
during a hearing shall not be necessary in order to preserve an objection until 
a later stage of the proceeding.
sec.17.26. Offer of Proof. When testimony is excluded by ruling of the examiner, 
a party shall be permitted to offer such testimony by dictating it into the 
record or by submitting the substance of the proposed testimony, in writing, 
prior to the conclusion of the hearing. Such an offer of proof shall be 
sufficient to preserve such offer for review by the commissioner. The examiner 
may ask such questions of a witness as are necessary to determine that the 
witness would, if allowed, testify as represented in the offer of proof.
sec.17.27. Interim Order. <ol> Prior to any final order of the commissioner, a 
party may seek, upon motion submitted to the hearing examiner, approval of a 
written interim order on any substantive issue where the facts are not disputed. 
An interim order shall not be subject to exceptions or application for rehearing 
until the close of the hearing and the proposal for decision is filed, but any 
party who would be aggrieved by such an interim order shall be provided an 
opportunity to file a motion to set aside, or to modify such interim order 
within three days before such order is entered.
sec.17.28. Witnesses to be Sworn. Oral testimony shall be presented under oath 
administered by the examiner.
sec.17.29. Rules of Evidence. The rules of evidence as applied in nonjury civil 
cases in the district courts of this state shall be followed. Irrelevant, 
immaterial, or unduly repetitious evidence may be excluded. When necessary to 
ascertain facts not reasonably susceptible to proof under those rules, evidence 
not admissible under them may be admitted (except where precluded by statute) if 
it is of a type commonly relied upon by reasonably prudent people in the conduct 
of their affairs. The rules of privilege recognized by law shall be effective in 
agency proceedings. Objections to evidentiary offers may be made and shall be 
noted in the record. Subject to these requirements, if a hearing will be 
expedited and the interests of the parties will not be prejudiced substantially, 
any part of the evidence may be received in writing.
sec.17.30. Official Notice. <ol> Official notice may be taken of judicially 
cognizable facts and of generally recognized facts within an area of General 
Land Office specialized knowledge or expertise, and the special skills or 
knowledge of the agency and its staff may be utilized in evaluating the 
evidence. Parties shall be notified of the material noticed, including any staff 
memoranda or data, and shall be afforded an opportunity to contest the material 
so noticed.
sec.17.31. Documentary Evidence.
(a) Documentary evidence may be received in the form of copies or excerpts where 
an original document is not readily available. On request, however, parties 
shall be given an opportunity to compare the copy with the original.
(b) Where a large number of similar documents is offered, the examiner may limit 
those admitted to a representative sample and may require the abstracting of 
relevant data from the documents and presentation of the abstracts in the form 
of an exhibit. The examiner shall allow all parties of record, or their 
representatives, an opportunity to examine the documents from which such 
abstracts are made.
sec.17.32. Admissibility of Prepared Testimony and Exhibits.  Where a proceeding 
will be expedited and the interests of the parties will not be substantially 
prejudiced, evidence may be received in written form. The prepared testimony of 
a witness upon direct examination, either in narrative or question-and-answer 
form, may be incorporated into the record as if read or received as an exhibit. 
A witness upon direct examination shall be sworn and shall identify the prepared 
testimony as a true and accurate reflection of what the testimony would be if 
given orally. The witness shall be subject to cross-examination and the prepared 
testimony shall be subject to a motion to strike either in whole or in part.
sec.17.33. Introduction of Exhibits. Exhibits of documentary character shall not 
unduly encumber the files and records of the General Land Office.
(1) Tender and service. Where practical, the original of each exhibit offered 
shall be tendered to the examiner for identification. At the discretion of the 
examiner, a copy of an original exhibit may be accepted in lieu of the original. 
One copy shall be furnished to the examiner and one copy shall be furnished to 
each party of record or its representative. Written or printed documents and 
maps received in evidence may not be withdrawn except with the approval of the 
examiner.
(2) Excluded exhibits. If an exhibit is identified, objected to, and excluded, 
the party offering the exhibit may withdraw the exhibit and the examiner may 
permit its return. If the excluded exhibit is not withdrawn, it shall be 
identified, endorsed with the examiner's ruling, and included in the record for 
the limited purpose of preserving an exception to the examiner's ruling.
sec.17.34. Testimony Limited. <ol> The examiner shall have the right in any 
proceeding to limit testimony which is merely cumulative.
sec.17.35. Post-hearing Briefs.
(a) Post-hearing briefs may be requested by the examiner prior to and after the 
filing of the examiner's proposal for decision.
(b) Briefs shall conform, where practicable, to the requirements set out in 
sec.17.12 of this title (relating to Pleadings). The issues involved shall be 
concisely stated, the evidence adduced in the hearing in support of each 
contention shall be summarized, and the arguments and authorities shall be 
organized and directed to each contention in a concise and logical manner.
sec.17.36. The Record.
(a) Contents of record. The record in a contested case includes:
(1) all pleadings, motions, briefs, and interim orders;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections, and rulings on objections;
(5) any decision, opinion, or report by the examiner presiding at the hearing;
(6) all staff memoranda or data submitted to or considered by the hearing 
examiner or members of the agency who are involved in making the decision;
(7) proposed findings and exceptions;
(8) any findings of fact or conclusions of law;
(9) the final order of the commissioner.
(b) Findings of fact. Findings of fact shall be based exclusively on the 
evidence presented and on matters officially noticed.
sec.17.37. Proposal for Decision. In either a contested or an uncontested case, 
if the commissioner has not personally heard the evidence in the case or read 
the entire record, a decision adverse to a party other than the agency shall not 
be issued until after a proposal for decision has been prepared by the hearing 
examiner, served on all parties, and each party has been afforded the 
opportunity to file exceptions and present briefs to the commissioner. If any 
party files exceptions or presents briefs, an opportunity must be afforded to 
all other parties to file replies to the exceptions or briefs. A proposal for 
decision must contain a statement of the issues in dispute, the reasons for the 
proposed decision, and findings of fact and conclusions of law necessary to 
support the proposed decision. Such examiner's proposal for decision shall be 
prepared by the hearing examiner and served on all parties of record within 30 
days after conclusion of the evidence in the case, unless the hearing examiner, 
at that time, specifies a longer period of time within which the proposal for 
decision may be issued.
sec.17.38. Filing of Exceptions and Replies.
(a) Any party of record may, within 10 days after service of the examiner's 
proposal for decision, file with the commissioner exceptions to the proposal for 
decision. Replies to such exceptions shall be filed within seven days after the 
date of the filing of exceptions. The examiner may extend the time for filing of 
exceptions and replies. A request for extension of time within which to file 
exceptions or replies shall be filed with the examiner and shall be served on 
all parties of record prior to the expiration of the relevant filing period. The 
examiner shall rule promptly on requests for extension of time and notify all 
parties of such ruling.
(b) Exceptions and replies to exceptions shall concisely state, with 
particularity, the relied upon evidence, arguments, and legal authority.
(c) Upon the expiration of the time for filing exceptions or replies to 
exceptions, or after such replies and exceptions have been filed and considered, 
the examiner's proposal for decision shall be considered by the commissioner, 
who shall render a decision and issue an order.
sec.17.39. Commissioners Orders.
(a) Based on the findings of fact and the recommendations of the hearing 
examiner, the commissioner, by order, may find that a violation has occurred and 
assess a penalty and costs and/or order the removal and disposal of an 
unauthorized structure or facility, or may find that no violation occurred.
(b) If the commissioner finds that a violation has occurred and assesses a 
penalty or orders the removal and disposal of an unauthorized structure or 
facility, the commissioner shall give the owner or operator charged, 
lienholders, and any party to the administrative hearing written notice of:
(1) the commissioner's findings;
(2) the amount of the penalty and costs and/or the terms of the order for 
removal and disposal of the structure or facility; and
(3) the right of the owner or operator, lienholder, and any party to the 
administrative hearing to judicial review of the commissioner's order.
(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 
Civil Statutes, Article 6252-13(a), sec.16.
(d) All final orders shall be in writing and shall be signed and dated by the 
commissioner. A final decision must include findings of fact and conclusions of 
law, separately stated. Findings of fact, if set forth in statutory language, 
must be accompanied by a concise and explicit statement of the underlying facts 
supporting the findings. If, in accordance with agency rules, a party submitted 
proposed findings of fact, the decision shall include a ruling on each proposed 
finding. Parties shall be notified either personally or by first class mail of 
any decision or order. When an agency issues a final decision or order ruling on 
a motion for rehearing, the agency shall send a copy of that final decision or 
order by first class mail to the attorneys of record and shall keep an 
appropriate record of that mailing. If a party is not represented by an attorney 
of record, then the agency shall send a copy of a final decision or order ruling 
on a motion for rehearing by first class mail to that party, and the agency 
shall keep an appropriate record of that mailing. A party or attorney of record 
notified by mail of a final decision or order, as required by this section, 
shall be presumed to have been notified on the date such notice is mailed.
(e) The final decision or order of the commissioner must be rendered within 60 
days from the last date for filing of exceptions and replies to exceptions to 
the examiner's proposal for decision, unless the hearing examiner, at the 
conclusion of the hearing, specifies a longer period of time within which the 
order may be issued.
(f) The parties may by agreement, with the approval of the agency, provide for a 
modification of the times provided in this section.
sec.17.40. Rehearing.  Except as provided in  s17.44 of this title (relating to 
Emergency Orders), a motion for rehearing is a prerequisite to an appeal. A 
motion for rehearing must be filed by a party within 20 days after the date the 
party or the attorney of record is notified of the final decision or order as 
required by sec.17.39 of this title (relating to Commissioner's Orders). Replies 
to a motion for rehearing must be filed with the agency within 30 days after the 
date that the party or the attorney of record is notified of the final decision 
or order as required by sec.17.39. If agency action is not taken within the 45-
day period, the motion for rehearing is overruled by operation of law 45 days 
after the date the party or the attorney of record is notified of the final 
decision or order required by sec.17.39. The commissioner may, by written order, 
extend the period of time for filing motions for rehearing and replies and for 
agency action on a motion for rehearing except that an extension may not extend 
the period for agency action beyond 90 days after the date that the parties of 
record are notified of the commissioner's order as required by sec.17.39. In the 
event of an extension, the motion for rehearing is overruled by operation of law 
on the date fixed by the order or in the absence of a fixed date, 90 days after 
the date the party or the attorney of record is notified of the final decision 
or order as required by sec.17.39.
sec.17.41. Compliance or Petition for Judicial Review.
(a) Not later than the 30th day after the date on which the commissioner's order 
is final, the order shall be complied with or a petition for judicial review 
shall be filed.
(b) Judicial review of the order or decision of the commissioner shall be under 
the Administrative Procedure and Texas Register Act, sec.19 (Texas Civil 
Statutes, Article 6252-13a).
sec.17.42. Administrative Finality. <ol> Administrative action shall become 
final upon the occurrence of any of the following:
(1) failure to submit a written request for a hearing not later than the 3Oth 
day after the date on which the notice is served in accordance with sec.17.7(d) 
of this title (relating to Initiation of General Land Office Action).
(2) issuance by the commissioner of an order and failure to file a motion for 
rehearing in accordance with sec.17.40 of this title (relating to Rehearing); or
(3)  issuance by the commissioner of an order and denial of a motion for 
rehearing, either expressly or by operation of law; or
(4) issuance by the commissioner of an order which includes a statement that no 
motion for rehearing will be entertained because the threat of imminent peril to 
the public health, safety, or welfare requires immediate effect be given to such 
order.
sec.17.43. Effective Date of Order. The effective date of an order, unless 
otherwise stated, is the date of its signing by the commissioner. That date 
shall be incorporated into the body of the order.
sec.17.44. Emergency Order. <ol> If the commissioner finds that an imminent 
peril to public health, safety, or welfare requires immediate effect of an 
order, such finding shall be stated in the order. The commissioner shall also 
state that such order is final and effective from and after the date signed. 
Such an order shall be final and appealable from and after the date signed and 
no motion for rehearing shall be required as a prerequisite for appeal.
sec.17.45. Show Cause Orders and Complaints.  The commissioner may, at any time 
after notice to all interested parties, cite any person or agency under his 
jurisdiction to appear at a public hearing and require such person or agency to 
show cause why it should not comply with any applicable statute, rule, 
regulation, or general order of the General Land Office relating to the Texas 
Natural Resources Code, sec.51.302, with which it is allegedly in noncompliance 
or why the agency should not take a particular action permitted by law. All such 
show cause hearings shall be conducted in accordance with the provisions of 
these sections.
sec.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 Administrative 
Procedure and Texas Register Act, sec.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.
sec.17.47. Subpoenas.
(a) The issuance of subpoenas in any proceeding shall be governed by 
Administrative Procedure and Texas Register Act (APTRA), sec.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)  Motions for subpoenas to compel the production of books, records, papers, 
or other objects shall be addressed to the hearing examiner, shall be verified, 
and shall specify as specifically as possible the books, records, papers, or 
other objects desired.
(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 APTRA, sec.14.
(d) A witness or deponent who is not a party and who is subpoenaed or otherwise 
compelled to attend any hearing or proceeding to give a deposition or to produce 
books, records, papers, or other objects that may be necessary and proper for 
the purposes of the proceeding under the authority of this section is entitled 
to receive:
(1) mileage of $.10 a mile, or a greater amount as prescribed by agency rule, 
for going to, and returning from the place of the hearing or the place where the 
deposition is taken, if the place is more than 25 miles from the person's place 
of residence; and
(2) a fee of $10 a day, or a greater amount as prescribed by agency rule, for 
each day or part of a day the person is necessarily present as a witness or 
deponent.
(e) Mileage and fees to which a witness is entitled under this section shall be 
paid by the party or agency at whose request the witness appears or the 
deposition is taken, on presentation of proper vouchers sworn by the witness and 
approved by the agency.
sec.17.48. Depositions.  The taking and use of depositions in any proceeding 
shall be governed by the Administrative Procedure and Texas Register Act, sec.14 
and sec.14a.
sec.17.49. Appeals.  Appeals from any final judgment of the district court may 
be taken by any party in the manner provided for in civil actions generally, but 
no appeal bond may be required of an agency.
sec.17.50. Remedies Not Exclusive. The remedies under the Texas Natural 
Resources Code, amended  s51.302 and new sec.51.3021 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 the Texas Natural Resources Code, amended sec.51.302 and new 
sec.51.3021. No such action shall collaterally estop or bar the commissioner in 
any proceeding under this chapter or under the Texas Natural Resources Code.
Issued in Austin, Texas, on September 23, 1991.
TRD-9111726
Garry Mauro
Chairman
General Land Office
Effective date: September 24, 1991
Expiration date: January 22, 1992
For further information, please call: (512) 463-5394