AN ANALYSIS OF THE PROPOSED TEXAS
ADMINISTRATIVE PROCEDURE ACT
RICHARD
W.
CARTER
AUTlil)OR'SNoTE '
"
. The writing ·of tlilsarti"cle -..~as; inspired . and super- ..
vised by Professor Ruth Kirby, Professor 01' J.dministrativeLaw at
.
l
•
;
...
.
TexasT~ch, Uni,v_eJ:sitY"f1
""
.
,S chool , of Law.
The
author wishes to thank Professor Kirby for her guidance
,
and constructive criticisms. The author also wishes to
.
express his. thanks to Mr. Austin L. Hatchell (Chairman
of the state Ear Committee on Administrative Law) and
state Senator Jim Wallace (Chairman of the Senate's Inter...
governmental Relations ' Commi tt.ee ) ·f ortheir ass.1stance, .in
securing
greatly needed:. information
,concerning
the ' two
.
.
.
.'
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bills -,'.proposing. an
administrative
act 'for Tex';';
'
,' . .
... procedure
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~,.
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'
a.s .
, Richard
April 27, . 1973 '
.Texas T.e ch university
,:", School ·ot"r.aw"
. , ..
", ' .,
,
Lubbock, T.e xas'
'
W~
Carter
AN ANALYSIS OF THE PROPOSED TEXAS
ADMINISTRATIVE .PROCEDURE ACT
At the present time,
the State of Texas has no ad-
ministrative procedur;· .act to . provide fair, effective, and,
.
.
:
.
,-
so far as practicable,. uniform procedures for administrative agencies. · ,The over one hundred state agencies have
.
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v
,
.~
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setup their own rules and
i-egul~tions, but there is a
.,.
wide variance in theirap~lica.tiO'n : and enforcement.'
Un-
. til the Texas Legislature 'enacts an administrative procedureact, .the statutes~drules p,ertaining to and adopted
by each agency must be examined for guidance.
The dispar-
ity · in practice :among' thevarious · agenci~s is confusing,
to say the least, and, for the most part, unnecessary.
Passage of an administrative procedure act (APA) would
represent a great gain in providing guidelines for those
who appear before the agencies.
The need for an APA in Texas has been considered,
with ever-varying degrees of enthusiasm, since the early
1950's.
In thesprlng of 1951, Whitney R. Harris, a law
professor at Southern Methodist University, and Co-Chairman of the State Bar Committee on Administrative Law,
drafted a .. proposed APAwhich was based in part, upon the
Model. State Adm1Iiistrative Procedu~eAc.t,
2 .and similar
.
. ":"- .
legislation enacted in other sta.tes.>
The draft was re-
vised by the Administrative Law Committee in 1952 and
overwhelmingly approvedby · the members of the Bar by a
referendum in February of 1953. 4 The draft was to be submi t ,ted to the 54th Legislature in 1955 but was delayed
by a ,decision to await a study by the Texas Ch:tl Judicj,al
Council.
However, the report of the Council was not is-
sued until July of 1957 and it was then too late to introduce the bill to the 55th Legislature in 1957.
By this
time, it appeared that both the Texas Civil JUdicial Council and the B'a r Committee on Administrative Law were disenchanted with the idea of enacting an APA.
The reasons
for the new disenchantment are not clear, but it is suspected that it was caused. by a combination of changes in
Committee personnel, hostility to the proposed act by some
· of the principa;l agencies, and a mistrust of administrative processes which took the form of an attack upon the
substantial evidence rule provided for in ,the proposal. 5
In 1957, the Bar Committee abandoned the idea of an
APA in favor of a measure regulating the filing of rules
promulgated by the various agencies.
The Legislature
passed s uch a . statute in 1961 .which required agencies,
authorized by law to make rules, to ' adopt rules concerning their formal and informal procedures, including rules
of practice before the agency, and to file such rules with
the Secretary of state. 6
The next effort to enact an APA came in 1969 under
' ",.
the direction of DavidM. ·. .(}uinn'"
of Administrative
.
- ,,·l>rOfessor
,
'
Law at Baylor University, and the Committee on Administrative Law of the State Bar of Texas.
act
This time the proposed
wa~
based in large part upon the 1961 revision of the
. Model State Administrative Procedure Act. 7 The Revised
MpgQl Aot of 1961 was ohansed and supplemented where necessary to provide additional procedural safeguards and to
adapt certain aspects of the Model Act to Texas practice.
The newly proposed APA was introduced to the Texas Legislature during 1971.8
Still, Texas was left without an APA
as the Legislature failed to enact the Bar-sponsored bill.
In 1972 an APA was approved by the Legislative Committee of the State ·Bar of Texas for introduction in the
63rd session of the Legislature.
The Bar's bill (S.B. 81)
was introduced in. the Senate by Senator Max Sherman of
Amarillo and the same bill was introduced in the House
by Representative Dave Finney of Fort Worth as H.B. 248.
The House Bill has been referred to the Judiciary Committee and the Senate Bill to the Intergovernmental Relations Committee. 9 It is interesting to note that another
administrative procedure bill, S.B. 139, was also introduced which is the same bill the Bar sponsored in the last
Legislative session. 10 Senate Bill No. 139 was introduced
by Senator Jim Wallace of Houston (a member of the Bar),
Chairman of the Senate's Intergovernmental Relations Committee, which will hear both Senate Bills 81 and 139. 11
Both the Bar-sponsored APA
(S.B. 81) and S.B. 139 are
based largely upon the 1970 version of the Model State Administrative Procedure Act 12 (hereinafter referred to as
3
·the Model Act).
This discussion ·will attempt to analyze
the Bar-sponsored APA section by section.
The analysis
will include a general description of what law each section
provides, how the language of the Act changes the current
administrative law of Texas, and general
comm~nts
the advantages and disadvantages of the Act.
as to
In addition,
there will be a comparison .of the Bar-sponsored S.B. 81 to
S.B. 139 in areas where the two bills differ.
The text of
the state Bar bill can be found in the Appendix.
The purpose of the proposed Act is set forth in Section
1, as follows:
It is declared the public policy of this
state to afford minimum standards of uniform
practice and procedure of s t ate agencies, to
provide for public participation in the rule
making process, to restate the law of judicial review of agency actions, and to require
agencies to give notice and current information of their actions.
Thus, the Act provides for (a) minimum standards of uniformity; (b) encouraging full public participation in the making
of rules; Cc)a clarification of the existing law of judicial review of agency actions (note that the Act adopts the
substantial evidence rule for the reviewing courts, however);
and (d) proper and reasonable notice and information to be
given by the agencies.
Although the view is widely held
that rules of adnlinistrative procedure should be uniform,
the Act does not pretend to establish uniform rules per see
Instead, the. proposed
APA ,will provide "statutory guidelines"
.
d~signedto obtain efficient adminiatration while affording
;
optimum
:. '
,
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~ ,"
protection~.f. ,.~:~~0':l~l ;~d;j~o:p~:rty rights.
Because
of the variety of subjects with which agencies must deal,
the proper goal is to eliminate needless diversity of procedural regulations, not the achievement of total uniform-
ity.
The short title of the Act is stated in Section 2 of
the statute as being
~'The
Administrative Procedure Act."
This popular name for the Act is the most common among the
sixteen United States jurisdictions (Arkansas, Delaware,
Di s t.rict. of Columbia, Georgia, Havlaii, Louisiaru.,., . MaI1',
.
..
lor~n.)
land, Michigan, Missouri, . Oklahoma, Rhode Island, Washington, West Virginia, Wisconsin, and Wyoming) already having
such a statute. 13
Definitions of the seven most-often used terms (agency,
conte s ted case, license, licensing, party, person, and rule)
are given in Section 3 of the proposed Act.
Section 3(1)
defines "agencY" s o as to include only state agencies.
Profes s or Davis, a noted authority on administrative law,
has suggested that it might be preferable to incluQe agencies of loc al governmen,t as well. 14
In addition to exclud-
ing agencies of local governments from the scope of the
Act, a g encies wholly financed by federal funds, the Legislature, the courts, the Industrial Accident Board, and
stitut;ions of higher education are also excluded.
in~
Senate
Bill No. 139 goes one step further than the Bar-sponsored
bill in its exclusion of the Attorney General's office
.from the . definition of "agency."
be an unre a sonable exclusion.
This does not appear to
As to the exclusion of the
Industrial Accident Bbard, one can only speculate the
5
reasen fer its exclusion.
Perhaps the agency exerted pres-
sure upen the State Bar's Administrative Law Cemmittee and
cenvinced the Cemmittee that the Industrial Accident Beard
~e Board~s
deserved special treatment.
functien is to.
settledisputes ·as to. werkmen's cempensatien claims, thus
l' t ·,aciB as a · "mini-ceurt."
Under the current statute 15 the
Eoardfsprecedures are summary butit.s subject matter highly t ,echnical. ·
In the d*finitien ef "centested case" in Sectien 3(2),
the State Bar bill states that an agency must give an "adjudicative" hearing whereas
S.B~.
ing" relatd.ng ,te legal rights.
nitien ef "centested case."
139 requires enly a "hearDavis favers the Bar defi-
He prefers that the test will
no.t be "o.ppo.rtunity for hearing" but rather "o.ppo.rtunity
fo.r a trial-type" hearing. , The Barfs term "adjudicative"
is synenymo.us, with a "trial-type" hearing. 16
Anether co.ntro.v:ersial defini tien'· is that ef "rule"
in Sectio.n 3(7).
The Bar's prepo.sal do.esnet exclude "intra-
agency memo.randa" fremthe definitfen ef a rule whereas
S.B. 139 expres,sly excludes "intra-agency memo.randa."
appears that neither pro.po.sal is entirely adequate.
It
Intra-
agency memo.randa sheuld net be. exclude·Ci frem the defini tio.n
because agencies eften have .a tendency to. maintain systems
o.f secret law by classifying as · instructio.ns to. their staffs
instructiens which are in truth the sUbstantive law o.f the
subject.
Yet, .there may be certain 'memoranda and instructiens which sheuld fer goed cause b~ keptcen£idential. 17
. Sectien. 4 0.'£ the Act requires ,each administrative agency
6
t .o publish written rules setting f'orth the nature and requirements of' all f'ormal and inforl;llali procedures b\:!f'ore it;
r ,equires the indexing a.nd maktng available ' for . public inspection such rules as are adopt.ed; · and requires the indexing and making availablef'or public inspection all final
orders, decisions, and
opinion~
of' the agency.
The section
also requires the iiling of'· rules "with the Secretary of
State.
Section 4(b) provides that no rule, order, or de-
cision will be valid or eff'ective until It has been properly indexed and made available for public inspection.
Row-
ever, there is an exception which allows the enforcement
of an unindexed or unavailable rule, order, or decision if
a person has actual knowledge of the rule, order, or decision.
Section 4 is substantially the same as the statute
. currently,; on the books which establishes the procedure for
the adoption and filing of administrative rules and regulations. 18 Ifowever, Section 4 has expanded the present law
by includ.ing orders and decisions.
Senate Eill 139' s ,S ection 4 is much different from
. the Ear-sponsored bill's provision.
S.R. 139 has a dif-·
ferent SUbsection 1 which requires an agency to adopt, as
a rule, the general description of its organization and
method of operatipnas well ' as its channels of information
. and how ' the public may gain access to this information.
' The State Bar bill has no such requ,irement at all.
Senate
.' B'ill ' 139 also provides that agencies must adopt, as a rule,
a description of all ' formsand instructions used by the
'. agency. 19 Section 4 of S.R. 139 is identical to the Model
7
Act.
Senate Hill 139 is sound in requiring publication
of a description of organization, but it is unsound in requiring rule-making procedure for a "description."
S.B'. 139's
Section 4 requirement of describing "all forms and instructions used by the agency" may also be objectionable.
True,
, the agency should make the forms and instructions available
(unless they are for good cause kept confidential), but it
may be awkward for them to be described in a formal rule. 20
The procedure for adoption of rules is given in Section
5.
The section provides for 30 days' notice prior to the
adoption, amendment,or repeal of , any rule.
The notice must
contain such information as to apprise interested persons
of the nature of the intend'e d action.
in ,a newspaper of
gene~al
in each o,f the five most
Notice must be given
circulation in Travis County and
POPUIOUD
ing to the la,t est U.S. Census.
counties in Texas, accord-
Notice should also be mail-
ed to all persons making timely written requests of the
agency for advance notice of its rule-making proceedings.
The section also states 'that inter,ested persons must be
given an opportunity , t ,ID submit data.
In the case of sub-
stantive rules, opplDrtunity for oral argument must be granted if requested by 25 persons, by a governmental subdivision
or agency, or
members.
b~ . an
association having not less than 25
If an emergency exists, an agency may adopt an
emergency rule for no longer than 120 days with one 60 day
extension.
There is a 2 year statute ' 01' limitations on
challenging a, rule for non-compliance with this section.
S.E. 139diUelts from the ,S tate Bar bill Section 5 in
8
a startling way.
Senate Bill 139 requires that the agency
submit any proposed rule to the Attorney General for his
opinion as to its constitutionality and as to the statutory authority to make the rule before initiating proceedings for adoption.
ion.
The State Bar bill has no such provis-
Cebtainl-y \ this , 'r equirement ',would aid ,':Ln !.the adoption
of valid rules, but the value of this provision must still
be questioned.
First, one must consider whether the Attorney
General would be able to deliver opinions on every rule
proposed by the over one hundred state agencies.
Second,
the possible delay while awaiting an opinion of the Attorney
General may- thwart the expediency of administrative acti.on
which has always been one of the greatest achievements of
this division of our government,.
Section 6 of the proposed APA states the procedure
for the filing and taking effect of rules.
Each agency
must file a certified copy of its rules existing at the
time the APA becomes effective, and all newly adopted rules
thereafter, in the Secretary of State's office.
Rules be-
come effective 20 days after filing, with two exceptions.
A rule may become effective at a date beyond 20 days after
filing if required by statute or specified in the rule itself.
The second exception to the 20 day requirement is
that an emergency rule is effective' when filed or at a
specified date less than 20 days thereafter.
This section
would supersede the existing statute relating to the filing
and taking effect of rules.
At the present time, a rule
will not take effect until at least 30 days after filing. 21
9
Thus, the APA would allow. rules to become effective 10
days sooner than under existing law.
The proposed Act re-
quires that all rules existing at the effective date. of
the APA must be filed immediately.
asi t may at first seem.
This is not as harsh
Since at the present time no new
rule is effective unless it is filed, the existing rules
.s hould already be on file and there should be no hardship
upon the agency.22
.. Section 7 provides for the a,ailability of rules.
The
Secretary of State must make copies available to the public in indexed form • . The Secretary is given the authority
to set. a f ·i xed price for copies, and to prescribe rules
which will assist him in the executi6n ,·, of the Act.
This
section is an improvement over the present filing statute.
The present statute requires only that the Secretary of
State keep a permanent file, register, or record of filed
rules open to the public. 23 Thus, at the present time
there is no requirement that the rules be indexed.
Nor
is there any mandate wi.t hin the present statute which makes
the Secretary of State· furnish copies of the rules to the
public.
The only duty of the Secretary in this regard is
that he make the rules "open to public inspection."
Under Section 8, any person may petition an agency
for rule changes.
Aft.er the agency is petitioned it must
act within 60 days to either deny the request in writing
or to initiate proceedings under Section 5.
It should be
remembered that under present law the rules of each individual agency must be examined t .o determine the proper
10
',method for petitioning an agency in regard to rule changes.
The uniform application of this section would assure a petitioner that his request would be dealt with before the expiration of 60 days.
An
agency would neither be permitted
to ignore a request nor to summarily deny the request without explanation.
The agency must state, in writing, its
reasons for all petitions denied.
Each agency is required by Section 9 to prescribe rules
governing petitions for declaratory rulings.
These declara-
tory rulings are given the same effect as agency decisions
or orders in contested cases.
It is unclear whether the
agency must issue a declaratory ruling upon every request.
It is suggested that no mandatory requirement should be
made since the agency must retain control over the use of
its time. 24 However, since declaratory rulings are given
the status of, a decision or an order, it might be advisable
for the agency to prepare a written statement giving the
reasons why it has refused to render a declaratory ruling.
Declaratory judgments on" the validity or applicability of rules are dealt with by Section 10.
An
action for
declaratory judgment of the validity or applicability of
rules, including emergency rules, may be had in the District
Court of Travis C{)unty if it is alleged that the rule"or
its threatened application, iIiterferes with or impairs or
threatens to do so the legal rights or privileges of the
plaintiff.
A plaintiff ' is allowed to bring an action for
a declaratory judgment . even though ' he ha.s not previously
asked. the agency for a l'uling.
" ,::
'This section of the
"1'( '"
proposed Act seems to be in need of revision.
For exam-
pIe, the court should not be forced to render a declaratory judgment solely because it is "alleged" that a rule
impairs plaintiff's legal rights or privileges.
The court
should be allowed to dismiss the declaratory action without rendering an opinion if it has not "found"
that the
rule, or its threatened application, interferes with or
impairs or threatens to do so plaintiff's legal rights or
privileges.
Also, another revision seems necessary.
A
plaintiff should not be allowed to request a declaratory
ruling unless he has first requested the agency to pass
upon the validity or applicability of the rule in question.
This would be in line with the usual requirement of exhaustion of administrative remedies.
The right to request a declaratory judgment, afforded
by the above Section 10, is a right presently granted un- .
der the Uniform Declaratory Judgments Act which was enacted in Texas in 1943. 25
That Act confers upon Texas courts
the authority to administer declaratory relief.
Most Tex-
as statutes dealing with administrative review provide that
it is not necessary for the petitioner to show legal injury or damages. He need only be an interested party af26
fected.
For example, see Article 6049(c) §8, which refers to declaratory judgments in oil and gas cases.
That
article allows "any interested person affected by" a law,
rule, regulation, or order, and who is dissatisfied therewith, to file a suit in the District Court of Travis County
to test the validity of such law, rule, regulation or
12
orders.
27
It is good that the proposed APA will direct
declaratory judgments to the District Court of Travis
County rather than to any district court.
That court will
be familiar with this type of case and the special considerations which must 'be given to administrative proceedings.
There may be some doubt, however, as to whether the APA
provision for declaratory judgments will be effective.
One writer has suggested that the intended remedial benefits of the existing statute (Declaratory Judgments Act)
are not being realized because Texas courts broadly construe the constitutional prohibitions against judicially
rendered "advisory opinions.,,28
Section 11 deals with notice, hearings, and records,
as they relate to contested cases.
Notice of a hearing
in a contested case must be given at least 10 days in advance.
The
n~tice
must include:
a statement of legal
authority and jurisdiction; reference to particular secti.ons of the statutes and rules involved; and a short and
plain statement of the matters asserted.
Under current
law, notice is sometimes required by statute but even when
not, the requirements of due process of law demand that
intere s ted persons be given .notice and an opportunity to
be hea rd . 29
The ,section goes on to provide for an oppor- ·
tunity for all parties to respond. and preeeI!.t evidence on
all issues involved.
Informal disposition, unless pre-
cluded by law, is .allowed by stipulation, agreed settlement, consent order, or default.
The record ina
conte~ted
case mus.t , 'according to
13
Section 11, include the following: . all plead1ngs, motions, intermediate rulings; evidence received or consid- '
ered; a stateinentof matters . ot'ficially noticed'; questions
and offers of proof, objections and rulings thereon; proposed f1ndingsand except1ons; any decision, opinion, or
report by the officer presiding at thehearing'l, and ,all
staff .memoranda or .data . submilttedto the hearing officer
or members of the agency in connection with their considerationof the case.
Proceedings shall be transcribed 'if re-
quested by any party.
se~:tion ' concludes , by
The
stating
that findings of fact shall . be ',based oniy on evidence and
matters oificHi.l.ly noticed • .
There are cert.a inpro:"isions of Section 11 which could
b.e improved. ,For instance, Jarties should not be given a
statutory right. to present '''i:!'videno'e '' on every issue of
law or policy,.
Rathe,r they sh()uld
be allowed to , present
. ,
evidence on issues bffaot and "argument'" on issues of law ,
~
or policy.
, ,
Another' possible change would be to delete the
requirement, of including
",a brief
statement · of all matters
- ":.- . . '
.
officially noticed" in the re.cord of a contested case.
Davis believes that to include in the record all matters
officially noticed would be an absurdity. 30
The number
of matters .officially
noticed\ ,may , oo lunlimitedi
and the "im-'
.
.
"
portt;rivial.
The matters officially noticed, in the true
meaning of the phrase, . areadequately- covered in Section
12 of the proposed APA. 31And,fin~lly'" the provisi~n of
Section)
1{requiring
. the ' record · toinclud~ "allataff mem": '
,'.
.
".. .
~
branda .or datasubmi ttedto the he'aring offi~er or members
14-.
' .
of the agency in connection with their consideration of
the case 'i should be deleted.
The inclusion of such memor-
anda is the equivalent, of, requiring a j'u dge to include in
the record a m~m6raridum prepared fo';;' 'a -judge by a law clerk.
, Such a requirement is ,not, 'necessary'.
' Section ' 12 of the proposed Texas , Administrati '. e Procedure Act ,is much , more', "power-pa.c ked" than the Model Act
upon which 't he proposed Act is largely based.
The pro-
posed Act contains in' Section 12 ' not only general rules of
evidence and a provision, for the taking of official notice,
as ' d,oes the MOQel Act, but ' it goe.s fur,t her to give agencies
the 'power of subpoena, and ' it, lays out in, 'detail the procedures for the ,taking, ,o f depositions.
' Subsectlon1 'of "Section 12 provides that in contested
cases, irrelevant, immaterial, or 'undulY ,-repetitious evidentre shall be ' excluded. , Rules of evidence as applied in
nonjury, civil cases in Texas district courts are to be ,
followed.
Irowever, evidence not admissible under those
rules may be admissible' t ,o prove facts , not readily ascertainable under ' those rules if, the evidence is of a type
commonly relied upon bY ,. reasonablY , prudent men in the conduct, of their affairs ; ' The ,a gency is' ,req:Uired, of course, '
.
~
to give effect to' rules of privilege ', recognized by law.
,
,
'
All ob,jections to evidentiary,
offers shall be noted in
,
,
the record.
'.
",
,
,
Evidence may be received ,in written form if
a hearing will bee e~pedited'; 'SUbjeCtto';'thereqUirement
.
I
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'
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that the. interests
of'
,s:' party
wil1 ,hot. be
prejudiced
sub,
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.
.
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.
.
,
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'
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.
stantially,- , thereby.,U~der present law, administrative
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agencies have no established rules of evidence, and are
not bound b:w rules of evidence that govern judicial:' proceedings. 32 . Proceedings before administrative agencies
are generally informal in character.
Section 12 gives agenoies the power in contested cases
. to swear' witnesses and to take their testimony under oath;
to issue
sUbPo~n~s :; and to require depositions and subpoen-
as duces · tecum. ' The section set,s forth in great detail the '
procedural rules for the .. taking ,of
tions.
.
These details
Calf
be . examined by: referring to the
'
.
the use of deposi- '
, an~
'.
"
,
" ,.
Act itself, which is appemded: ,tothls ' dis~u~sion.
Under
present law, an agency has 'no, implied power to authorize
thet,a king of dep'o sitions. 33 ' cur:rently, an agencyts au,
I
,
'
~
I
.
thority to summon witnesSes
depends, on,' the statute by which.
.
" . '
.i t was created or by which powers , were conferred upon it • .
The power to. punish a, witness
..for,
.
con~eIIlpt, '
,
-.
in regard to
failure to comply :with ~. subpoena, is ' judicial, but cert .ain agencies already have been expressly: given this pow",:,
er. 34 The, proposed Act, provides that a suit to enforce a
subpoena may be brought in the county of the witness's
' residence in the district court.
Upon a showing of good ,
cause, the court may order compliance. and prosecute fail.
.
I
'
ure t .o comply as ,contempt. 35
Section 12(7) permits a party" in a cont.ested case,
to conduct , cross-exaniinations requlred for a fUll and true
disclosure of ' 'the facts~
Under existing ,law,cross';exam-
ination of witnesses, 'may or may not be allowed, . depending
upon the rules of ' the agency or the individual conducting
.
, .. ' ,
. <.' " 16 '
.the hearing. 36
Of course, the right of cross-examination
. is . notvery useful to a party unskilled in administrative
practice.
Thus, section 12.(9) entitles all parties, in a
contested case, to the
a~sistance
of. their counsel before ·
administrative agencies.
!Ilhe final provision of Section 12 to be discussed . is .
subsection 8, which deals with official notice.
An
agency
is allowed to take notice of judicially cognizable facts.
The agency may also take official notice . of generally re'. cognized facts wi thin the area of the agency's ' specialized
knowledge •.. Hbwever, the parties must b.e informed by the
agency as t6the material noticed, and. the parties must
be gi-ven
. noticed~
an
opportunity to contest the: materia;t officially
'The 'Act allows the agency to utilize lts (and its·
staff's) special skills or knowledge in evaluating the
evidence;
We , allow official notice t .o be taken to promote
. convenience and fairness. 37 As IO.n g as . the parties are
allowed an opportuiJ.i ty to challenge. the officially noticed
facts, as they are under ·t he proposed
APA, procedural fair- .
.. .
,
ness exists.
.
Procedural fairness :should
never be allowed
.
. to yield to convenience, however.
'As ' to allowing the agen-
cy to utiiize the special skl1lsor 'knowledge
of its staff,
,
",
'
it would be bette;r if.o'" some ,.limitation was placed upon. reliance which .couldbe·;.plao:ed ' upon"'the staff.
' .
.
It would seem
improper ' to allow a . memb.e r of
. the staff' to aid in the evalu.
"
ation . Ofth~evidenp~ ; ~fthat ~.~aff·member; 'had engaged in
investigating,
. pr~sec:uting,
or
. .
.
, . advocatlng~ . There needs
to be a re spe~:t
'f?~ se.p~~a:tlon
of !unctions within the
F
;~
.
administrative process.
Section 13 establishes the procedure for examination
· of evidence by.· an agency.
When in a , contested case a ma-
jority of the officials of the .agency have neither heard the
· case nor read ' the record and ,'the ,decision is adverse to a
',
',
."
party other than: the agency
itself" a . "proposal ror decis.,
\
ion" must be served up'o n "each party. ' 'An opportunity must
then be given for each 'p il-rty adversely affected to respond '
wi th exceptions, ora1 arguments and .·b riefs to the agency
officials.
Th~ proposal must 'contain a brief statement
of the reasons for the decisi6:iland.
of ' each issue of fact
.. , '
, "'
'
,\"
or law necessary to the propose,d o,d'ecision.
The proposed
· decision', it should benoted{. has to be , prepared
by. the
.
.'
person who either conducted the hearing or" has read the
record.
The' rights under thi.s section can be waived by
written stipulation • .
Section 13, as some. of the other sections of the pro- ·
posed APA, has its weaknesses in drafting.
For example,
if .the off'icer who conducted the he.a ring is available,. then ·
. he should prepare the ,proposed decision rather than leav-,
ing the opinion Viri ting to either t .h e hearing officer or
one who has read the record.
This is especia11y true in
a case where the ,f indings are based upon the demeanor or
a witness.
If the hearing officer that presided over the
hearing is unavailable, and, demeanor is an important. fact-.
" ',
' --
or, then the. agency should either rehear the ' case, await,
the return of such officer i f the ..dei~
batoo
....
. , wo'\lld
'. . : :ilot
.
-
great, or elseAlsmi~s >theactioI?-;
18
-
'section 14 relates to administrative decisions and
orders. ' The state Bar bill and S.E. 139 differ, and both
expand upon the Model Act.
Each of the two bills includes
th:e entire section , on decisions and orders as c,o ntained
in the Model , Act" then continues by establishing
time li,
,
mitations' for agency ,and party actions.
Both proposed bills
arid. the Model Act provide tha t final decisions and orders
which are ' adverse to a 'party in a contested case must
e'i ther be stated in writing or included in the record.
Findings ,of fact and conclusions, of law must be included
in a final deoision, and they must be:, stated separately.
If the , findings of fact are set f ,orth iIi statutory lang.. :
uage then they must be acc,ompanied by a , concise and explicit statement of the underlying ;facts supporting such findings.
,
"
It has been suggested that there should also be a
provision whi,c h would re<l.uire each conclusion of law to
be support,ed by authority or by a reasoned opinion. 38
Ifowev.er, neither of :tne two proposed' bills nor the Model
Ac~
has such.
Both bilis, require that if a party has
sub~
mi t ,t ed proposed findings 6f fact, the decision must then
inc;tude a ruling upon ' each proposed finding.
"
After any
';
decision or order is rendered, the parties are to be notified either personally
~~
by mail.
A
copy ,of
the decision
. .'
.
.
,
/
or order must be mailed to any' party ' or his attorney if
there is a wri ttenrequest,.
.. ' ..
Hoth, bills ' arevery specific in setting time limits '
in Section 14 for agency ' actions. < Finai ' decisions ,or orders must be in'-Titing and filed within' 60. days o:!
' 19 ,
'
hearing.
If an emergency exists, such shall be stated
in. the order· or decision and it: will be ef'fective from
the
· (with no motion for re.
. date rendered and appealable
.
~\
hearing).
Other final '. a.ecisions ,or] orders are appealable
from the date of the overruling
of a . +motion,
for rehearing.
.
,
,
M·o tions for rehearing mus't "be · filed '·~i.thin 15 days of ren.
dition. and
repl1~s
.,
. .
must be 'filed within 25 days from rendi-
From this poi;nt . on, the State,. Bar .bill and S.B. 139
tion.
differ.
S.B. 139 reClu.i res an agency f to act. upon a motion
for rehearing within 30 days ' after rendition, while the
State Bar bill · allows " 45 ' days. '' Tb,e . declsion or order is
overrul.e d by operation of law if the motion for rehearing
is not acted upon within the 30 or 45 day period,
respect~ :
ively • . The State Bar bill, however, allows for an exten- ·
sion of· the statutory periods.
Under the State Bar bill,
the agency may by written order extend the time for filing
motions· for rehearing and replies and agency action.
How-
ever,nosuch extension shall extend the period for agency
action beyond 90 days after the date . of rendition of such
final decision or ord.er.
It seems that the State Bar bill
,is preferable to, S .F. 1·39 in that it. provides more lati-
,.
tude to the agency in contested cases by affording enough
time to the agency to· issue a final order in certain instances. 39
Section 15 of the proposed APA prohibits agency members, their staff·, or . their agents from ' .communicating
di.
"
. rectly or indirectly ,i n .c onnection .Wi th anY' issue of fact
,
or law with anypart.
y',.,or
his . representative without notice
.
. '
"
.'
, 2.0
and opportunity for' all interested parties to participate.
This section, which is identical in both proposed bills,
differs slightly from the . Model Act, in that the Model Act ,
expressly states in its sections 13(1) and (2) that an
.agency member maycommUIllicate with other members of the
agency, "and may nave ,the aid and. advice of one or more
personal assistants • . The Texas proposals are definitely
an improvement upon the Model Act.
By deleting the pro-
visions contained in sections 13(1) and (2) of the Model "
Act, Texas willb.e impliedly giving the agency an opportunity to capitalize ,upon the use of its staff.
However,
·the section on ex parte consultations could be improved
,by
a. proY-ision which would forbid communications between
,,'
those who are participating in the deciSion of a contested
case and those staff
members who participated in investi,,
gating, prose,cut1Iig,' 'or advocati~g 'that particular case. 40
Another suggestib,n is that not ' only should agency officials"
be forbidden from improperly ' communicating with the parties
.,',
..'
..
or their representative's, 'b'u t, the Pl,r ties and their representatives should be forbidden from improperly communicating ' with agency officials.
A special section, Section 16; is devoted to adminisstrative procedures concerning licenses.
It is provided
that whenever notice and opportunity for hearing is required for the
grant, <renewal, or .denial of a license, the
,
"
"
rules in !l3(2)' for "contested case~" apply.
I f an appli-
cation for renewal or continuing activity is denied, , the
,
,"
pre's ent license does ,n ot expire until ,the agency finally
,
21 ·
acts, and in case the applic a tion is denied or the terms
of the new license limited, until the last day for s eeking review of the agency order or a later date fixed by
order of the reviewing court.
And, if a license is re-
voked, suspended, annulled, or withdrawn, notice must be
given to the licensee with a statement of the facts or
conduct alleged to be the basis of revocation..
ment must also show
tha~ '
The state-
the licensee was ,given an oppor;.. ,
tunity ' to comply with all lawful requirements for the retention of a license.
The state Bar bill differs in one
respect from, both S.B. 139 and the Model Act.
Act and
S.B~
The Model
139 both provide for emergency suspension,
revocation, etc., pending further regular proceedings if
the agency finds it to be a public necessity.
The state
Ear bill has no such provision relating to emergency actions taken concerning licenses.
It is not apparent ,whY
the state Bar bill does not make an exception for an emergency here.
Perhaps the reasoning of the state Bar is that
one should have some security in the pos s ession of his
license and that the regular procedure for revocation is
adequate.
Section 17 contains, without a doubt, the most controversial proVi'sion in any administrative procedure act--the
provi s i on for judicial review of contested cases.
The State
Ear bill and S.E. 139 are identical with one exception.
The Sta te Bar bill uses ' the "substantial evidence" rule
upon review while
test.
S.],),.'
139 employs the "clearly erroneous"
Before examining ,the differences between the two
22
rule s , the s ection a s a whole should be s tudied.
The
proposed APA requires that a person must first exhaust all
remedie s within the agency before judicial review can be
allowed.
Intermediate orders are reviewable if a final
agency dec ision would. not provide an ' adequate remedy.
Under. current Texas law, the doctrine of exhaustion of administrative remedies depends upon the particular statute
dealing with the judicial review of a particular agency.
Generally, as a condition precedent to the right of judicial review, an aggrieved person is not required, absent
statutory requirement therefor, to first apply to the agency to rescind or modify the action it has taken.
However,
where a s tatute provides a mandatory method of review by
an administrative agency, resort must first be had to such
metho d before the courts will entertain jurisdiction.
N'evertheless" even under a mandatory s tatute, it is not
necessary to resort to further administrative proceedings
if the administrative agency or commission has refused to
act, or has acted illegally, arbitrarily, - or beyond the
scope of its authority}1
Section 17 of the proposed Act requires petitions for
judicial r eview to be filed in the District Court of Travis County within 30 day s after an administrative decision becomes final.
The agency must transmit the record,
which may be shortened by stipulation. 42 Before the date
i s set for hearing in the District Court, application may
be made to present additional evidence.
The court may
order the agency to accept additional evidence which shall
23
be included in the record.
ruling : at such time.
The agency could modify its
In the event the agency does not
satisfactorily modify its ruling, the review shall be
before the court (nonjury) and confined to the record.
However, material outside the record may be introduced
to show agency irregularities.
The weighing of evidence,
if it was within the agency's discretion, shall be final.
The court may reverse or remand if sUbstantial rights of
the petitioner have been prejudiced because the ' adminis ... ··
trative findings"inferences, conclusions, or decisions
are:
in violation of constitutional or statutory provi...
sions; in excess of the statutory authority of the agency; made upon unlawful procedure; affected by other error
of· law; not reasonably supported by substantial evidence
in view of the reliable .and probative evidence in the record as a whole; or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Section 17 concludes with a provision
, which pre serves the right of trial de novo of rate cases
appealed from the Railroad Commission of Texas.
As stated previously, the State Bar bill and S.B. 139
differ as to the use of the substantial evidence rule and
the clearly erropeous te s t.
Both S.B. 139 and the Model
Act u se the clearly erroneous test while the State Bar bill
invokes the substantial evidence ' rul'e. ' It has been a tradition in both state courts ,and federal courts to choose
' the sUbstantial evidence rule. 43 The substantial evidence rule was stated in Elssence by-the Texas Supreme Court,
24
as follows:
If the findings and orders of the agency
had any reasonable basis in fact, and were not
shown to be arbitrary and unreasonable, they
must be supported by the court. The court cannot sub s titute its judgment for that of the commission, unles s it be shown that said judgment
of the commission was without foulr~ation in fact,
or was unreasonable or arbitrary.
Thus the court decides questions of law, but limits itself
to the te s t of unreasonableness in reviewing findings of
fact.
The SUbstantial evidence rule is a compromise be-
tween the opposing theories of broad or de novo review and
restricted review or complete abstention.
The "clearly erroneous" t es t, in theory, is generally
regarded as permitting a more intensive review than the
substantial evidence rule, although it is still a limited
review and not a de novo trial of facts.
Under the clearly
erroneous test, a court may set aside a determination of
fact which it adjudges to be clearly wrong,45
against the weight of the eVidence,46
whelming we ight of the eVidence;47
clearly
or against the over-
or, in the classic
statement, when, although there is evidence to support the
find ing, the reviewing court on the entire evidence i s
left with the definite and firm conviction that a mi s take
has been committed. 48 As between the two rules, it is
much easi er for a reviewing court to reverse a case under
the clearly erroneous test than under the substantial evidence rule.'
Texas presently conducts the -trial of the appeal ei':"
ther under the substantial evidenc.,e rule or as a trial de
25
novo (a completely new hearing as if there had been no
hearing before).
The extent of judicial review, whether
the trial will be considereu under t .h e substantial evidence rUle or de novo, will depend upon either statutory
provisions or the character of the agency's action. 49
Generally, when a statute provides for a particular type
of appeal, the method so prescribed must be followed to
the exclusion of all others.
Occasionally, the language
of the statute is not clear so the type of review will
depend upon judicial interpretation of the review statute
and sometimes on constitutional grOunds. 50 In a case where
there is doubt as to the applicable rule of judicial review, the substantial evidence rule will be applied if
the decision made by the agency is a question of "pure public policy" or if the agency utilizes a broad discretion
in the exerci'se of "quasi-legislative powers."
Otherwise,
if the court were to independently re-determine such questions it would violate Section 1 of Article II of the Consti tu·tion of Texas, providing for separation of governmental ' powers. 51
As between the two current methods of judicial review in Texas, the substantial evidence rule seems preferable since uniformity of treatment ,of the subject of regulation i s vital, and independent court trials (de novo)
would tend to destroy it.
In contrast is the fact that
Texas has not usually been favorable to administrative
agencies.
There is a strong belief that ,administrative
agencies should be subject to close 'judicial supervision. 52
26
However, Texas is now faced with the choice of either the
substantial evidence rule or the clearly erroneous test,
rather than a choice between the sUbstantial evidence rule
and trial de novo.
Of course, it would be possible to
amend the proposed Act so as to make exceptions for trial
de novo as was done for rate cases involving the Railroad
Gommission.
It seems, however, tha.t the better choice is
the substantial evidence rule.
The substantial evidence
rule is broad enough and capable of sufficient flexibility
in its application to enable the reviewing court to correct
whatever ascertainable abuses may arise in administrative
adjudication.
On the other hand, it is entirely consist-
· ent with effective administration.
In contrast, the clear-
ly erroneous test makes it possible to thwart the policies
. which the agencies were created to promulgate.
Under the
clearly erroneous test, courts would be tempted to substitute their judgment for that of the agency simply because
the agency had made a "mistake."
Section 18 of the proposed APA provides that appeals
from any final judgment of the district court may be had
as in other civil cases, but no ' appeal bond, shall be required of the agency.
Section 19 merely states that the holding of any. part
of the Act to be unconstitutional will not affect the validity of the remaining portions of the Act.
The State Bar bill and S.B. 139 differ in Section 20,
which relates to the repeal of conflicting laws.
Both bills
repeal Article 6252-13, the filing provision which is
27
superseded in the Act.
However, S.B'. 139 repeals all other
l aws and parts of laws in conflict. with the Act, while the
State Bar bill states tha t "nothing shall be deemed to
repea l any existing statutory provisions conferring investigatory a uthority upon any agency, , '1 ncl.ud,ing any provision
thereof wh ich grants such agency the power (in connectioI'J
with such inve st igatory authority) to take depositions, adminis ter oa th s or affirmations, examine witnesses, receive
witnes s e s , receive evidence, conduct hearings, or is s ue
subpoenas or summons."
The St.ate Bar bill is correct in
its effort to ret,ain some of the prior authority in regard
to inve st i gatory authority.
Some diversity in administra-
tive procedures may be de s irable, and some agencies may
prefer to follow for the time being, the inve s tigatory
practice s pre s cribed by statutes under which they ar e now
functioning. ' If thi s retention of such s t a tutes slows
needed reforms, the delay
i s just ified by the protection
'.
of the exi s t .i ng a g enc ies. 53
Perhaps an even st ronger re-
as on why the APA should not repeal any exi sting statutory
provisions conferring inve st igatory powers upon an agency
is that the APA does not grant any- investigatory powers
ot,h er than the authority to ' t ake depositions, examine witne s ses, i s sue summons, 'and related powers contained in
Section 12.
Obvious ly these ', powers d.o not cover the broad
scope of a full investigation. '
The t wo bills ' also differ as to when each "rould take
effe ct.
This may be a minor point, but as proposed, the
State Bll,r bill would take effect on J,anuary 1, 1974 while
28
S.B'. 139 would take ef'fect September 1, 1973.
However,
since Section 22 (the f'inal section of both bills) declares
a state of emergency exists and provides for speedy enactment, then the e arlier date of S.B'. ' 139' is. more logical.
C'ONC'LUSION
At the time of this writing, both Senate Bills 81 (the
State Bar bill) and 139 have been heard by the Senate's Intergovernmental Relations Committee.
The bills were then
sent to a subcommittee which was instructed to report the
bills back to the full committee within two weeks.
Some
pressures have been brought upon the Committee by the Alcoholic Beverage Commission which has requested some changes
applicable to that
agency~
However, the. opinion has been
expressed that "there is a good possibility that this bill
will pass this Legislature.,,54
The question is, which bill?
The important ,thing, however, is that an Administrative Procedure Act be enacted in Texas.
The general public needs
.,
to be provided a fair and adequate hearing before an agency, the agencies need .t o give adequate not.i ce, the. members
of the agency who actually pas s upon questions need to be
acces s ible to the pa rties for presentation
o:tf
their posi-
tion, the party ne eds ·the opportunity to know the issues
that. he is to meet and the general character of evidence
that he may expect to encounter or be required to produce,
and, above all, these procedures need to be knowable.
It
is time for T.exas to join the growing number of jurisdictions having such a statute (the federal government, the
District of Columbia, and the fi.fteen states mentioned
29
previously·, have an APA).
The absence of uniform statu-
tory administrative procedural requirements leaves the
constitutional command of due process . as the test of sufficiency in most cases.
due process meet
~
But does the vague. concept of
test of sufficiency?
no.
30
The answer is
FOOTNOTES
1. Letter from Senator H.J. "Doc" Blanchard to Rich.ard W. Carter, March 2, 1973.
2. Uniform Law Commissioners' Model State Administrative Procedure Act (1946).
3. Harris, An Administrative Procedure Act For Texas,
5 Sw. L.J. 125 (1951).
4.
16 Tex. B.J. 391 (1953).
5. Werkenthin, Administrative Procedure Act Needed,
24 Tex. B.J. 213, 213-14 (1961).
6.
Tex. Rev. Civ. Stat. Ann. art. 6252-13 (1970).
7. Uniform Law Commissioners' Revised Model State Administratlve procedure Act (1961 verslon).
See
8.~cCalla, The Proposed Administrative Procedure Act,
33 Tex. B.J. 965 (1970).
9. Letter from Austin L. Hatchell to Members of Administrative Law Committee, Feb. 8, 1973.
10. Letter from Austin L. Hatchell to Richard W. Carter,
Feb • .26, 1973.
11. Letter from Senator Jim Wallace to Richard W. Carter,
March 6, 1973.
12. Uniform Law Commissioners' Revised Model State Administrative procedure Ac·e t 19'10 'rersl0n).
13.
Am. Jur. Desk Book 199 (Supp. 1972).
14. K.
581 (1965).
15.
Davis~
Administrative Law:
Tex. Rev. Civ. Stat. Ann. art. 8)07 (1967), !:! amended,
(Supp. 1972).
.
16. K. Davis, Administrative Law:
581 (1965).
17.
Cases--Text--Problems
Id. at 581-82.
.31
Cases--Text--Problems
18.
Tex. Rev. Civ. stat. Ann. art. 6252-13 (1970).
19.
S.E. 139, 63d Legis. §4(a)(2) (1973).
20. K. Davis, Administrative Law:
582 (1965).
Cases--Text--Problems
21.
Tex. Rev. Civ. stat. Ann. art. 6252-13 §3(b) (1970).
22.
Id. i'l4.
23.
Id. §3(a).
24. K. Davis, Administrative Law:
583 (1965) • .
25.
Cases--Text--Problems
Tex • .Rev. Civ. St a t. Ann. art. 2524-1 (1965).
26. D. Kidder, The Me thods and Nature of Judicial
Review of Order s of the o~l and Gas D~vision of the Railroad Comm~s s ion, 33 Texas L.Rev. 680, at 688-89 (1955).
27.
Tex. Rev. Civ. Stat. Ann. art. 6049(c) §8 (1962).
28. Jr. McElhaney, Texas Civil Procedure, 24 Sw. L.J. 179,
196 (1970).
29.
eiv.
Franci s co
App.--Au s i~n
V.
Dental
Examin~rsi
30. K. Davis, Admini s trative Law:
585 (1965).
31.
149 S.W.2d 619 (Tex.
1941, writ refid, reh. · den.).
Cas es--Text--Problems
S. E. 81, 63d Legis. §12(8) (1973).
32. Trad ers & General Ins. Co. v. Lincecum, 126 S.W.2d
692 (Tex. civ. App.--Fori Worth 1939, no wnt); Booth v. Texas Employers' Ins. Ass'n, 132 Tex. 237~ 123 S.W.2d 322 (Tex.
Commin App'. Section B 1938, no writ).
33. Lambert v. Texas Em 10 ers' Ins. As~n., 121 S.W.2d
406 (Tex . ~Y. pp.--Da as
, no wr~ •
34.
Tex. Rev. Civ. Stat. Ann. art. 6451 (1926).
35.
S.E. 81, 63d Legis. §12(5) (1973).
36. McCalla, Texas Administrative Law, in State Junior
Bar of Texas, Texas PractIce Guide E!47.07, at 44Z (1971).
32
37.
K. Davis, Administrative Law Text 314 (3rd ed. 1972).
38. K. Davis, Administrative Law:
586 (1965).
Cases--Text--Problems
39. I,etter from Austin L. Hatchell to Richard W. Carter,
February 26, 1973.
40. K. Davis, Administrative Law:
586 (1965).
Cases--Text--Problems
.
41. James v. Consolidated Stee l Corp., 195 S.W.2d 955
(Tex. Civ. App.--Austln 1946, writ refia n.r.e.).
42. Hatchell, Administrative Procedure Act, 35 Tex. B.J.
1119 (1972).
43.
K.: Davis, Administrative Law Text, 525 (3rd ed. 1972).
44. Shupee v. Railroad Commission, 73 S.W.2d 505, 508
(Tex. 1934).
45.
District of Columbia v. Pace, 320 U.S. 698 (1944).
46. wri~ht-Bernet, Inc. v. Commissioner, 172 F.2d 343
(6th Cir. 194 ).
47. peo~l e ex reI. Hull v. Graves, 289
N.'E • 2d 1 61 (1 42).
If. Y.
173, 45
48.
Commi s sioner v. Duberstein, 363 U.S. 278 (1960).
49.
1 Tex. Jur. 2d, Administrative Law §42 (1959).
50. McCalla, Texas Admini s trative Law, in State Junior
Bar of Texas , Texas Practice Guide §47.10, at 446 (19'71).
51.
Davis v. City of Lubb ock, 326 S.W.2d 699 (Tex. 1959).
52. Lar son, The Substantial Evidence Rule:
s ion, 5 Sw. I,.J. 152, 166 (1951).
Texas Ver-
53. Harris, An Administrative Procedure Act For Texas,
5 SW. L.J. 125, 150-51 (1951).
54. Letter from Senator Jim Wallace to Richard W. Carter,
March 29, 1973.
33
APPENDIX
A BILL TO BE ENTITLED
AN ACT
providing standard s for state administrative agency practice and procedure; providing for review of state agency proceedings; repealing Chapter 274, Acts of the
57th Legislature, Regular Session, 1961
(Article 6252-13, Vernon's Texas Civil Statutes), and other laws in conflict; and declaring an emergency
E IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
Section
1~
PURPOSE.
It is declared the public policy
of this s tate to afford minimum standards of uniform practice
a nd procedure of state agencies, to ' provide for public participation in the rule making process, to restate the law of
judicial review of agency actions, and to require agencies to
give .notice and current information of their actions.
Section . 2.
SHORT TITLE.
This Act shall be known and
may be cited as "The Administrative Procedure Act."
Section 3.
DEFINITIONS • . As used in this Act:
(1) "Agency" means any state board, commission,
department, or officer having statewide jurisdiction (other
than an agency wholly financed by federal funds. the Legislature, the court·s , the Industrial Accident B'o ard, and institutions of higher education) which makes rules or determines contested cases.
(2) "Contested case" means a proceeding, including
but not restricted to rate-making and licensing, in which
the legal rights, duties, or privileges of a party are to
A-1
be determined by an agency after an opportunity for adjudicative hearing.
(3) "License" · includes the whole or part of any
agency permit,certificate, approval, registration, or similar form of permission required by law.
(4) "Licensing n includes the agency process respecting the grant, denial, removal, revocation, suspension,
annulment, withdrawal, or amendment of a license.
(5) "Party" .means each person or agency named or
admi tt.ed as a party.
(6,) · "Person" means any- individual, partnership,
corporation, association, governmental subdivision, or public or private organization of any character other than an
agency.
(7) "Rule" means any agency statement of general
applicability that . implements, interprets, or prescribes
law or policy, or describes the organization, procedure, or
practice requirements of any agency.
The term includes the
amendment or repeal ofa prior rule, but does not include
(A) . statements concerning only the internal management of
any .a gency and not affecting priva.te rlghts or procedures,
or (B) declaratory rulings on petitions pursuant to Section
9 hereof.
Section 4.
PUBLIC INFORMATION; ADOPTION OF RULES;
AVAILABILITY OF RULES AND ORDERS.
(a) In addition to other rule-making requirements
imposed by law, each agency shall:
(1) adopt rules of pract.ice setting forth
A-2
.'
the nature and requirements of all. formal and informal
procedures available;
(2) index and make available for public
inspection all rules and all other written statements of
policy or interpretations formulated, adopted, or used by
the agency in the discharge of its functions; and
(3) index and make available for public inpection all final o'rders, decisions, and opinions.
(b) No agency rule, order, or decision is valid
or effective against any person or party, nor may it be
invoked by the agency for any purpose, until it has been
indexed and made available for public inspection as requir..,
ed by this
Act~
The. indexing requirement applies to all
materials listed in Section 4(a), (1) and (2), and to all
ma terials in Section 4(a)(3) which are issued after the
effective date of this Act.
This provision is not appli-
cable in favor of any' person '.who has actual knowledge 01'
the rule, order, or decision.
Section 5.
PROCEDURE FOR ADOPTION. OF RULES.
(a) Prior to the adoption,
~endment,
or repeal
. of any rule , the agency shall:
(1) give at least 30 days' notice of its
intended a ction. , The notice shall include a statement of
either the expres s ed terms or an in1'ormative summary of
the propos ed action, and the time when, the place where,
and the manner in which interested persons may present
their views thereon.
The notice shall be published not
less than 30 nor more than 60 days prior t .o' such intended
A-3
action in a newspaper of general circulation in Travis
County and in each of the five most populous counties in
Texas, according' to the latest U.S. Census.
In addition,
the notice is to be mailed to all persons who have made
timely written requests of the agency for advance notice
of its rule-making proceedings; provided, however, that
failure to mail such notice shall not invalidate any actions taken or rul es adopted; and
(2) afford, all intere s ted persons reasonable
opportunity to submit data, views, or arguments, orally or
in writing,
In case of substantive rules, opportunity for
oral argument must be granted if requested by 25 persons,
by a governmental subdivision or agency, or by an association having not less than 25 members.
The agency shall
consi der fully all written and oral submissions respecting
the proposed rule.
Upon
adoption of a rule, the agency,
if requested to do s o by an interested person either prior
to adoption or within 30 days thereafter, shall issue a
, , concise statement of the principii 1 reasons for and a gainst
its adoption, incorporating therein its reasons for overruling the considerations urged a gainst its adoption.
(b) If an agency finds that an imminent peril
to the public health, safety, or welfare requires adoption of a rule upon fewer than 30 days' notice and states
in' writing its reasons for that finding, it may proceed
without prior notice or ,hearing or upon any abbreviated
notice and hearing that it finds , practicable, to adopt an
emergency rule.
The rule , ,may be effective for a period of
A-4'
not l onger than 120 days renewable once for a period not
exce ed ing 60 days, but the adoption of an identical rule
. und er Subsections (a)(1) and (a)(2) of this section iR not
precluded.
(c) No rul e hereafter ad.opted is valid unless
adopted in substantial compliance with this section.
A
proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this section must
be commenced within two years from the effective date of
the rule.
Cd) An agency may use informal conferences and
consultations as means of obtaining the viewpoints and advice of interested persons with respect to contemplated
rule-making.
Each agency also is authorized to appoint
committees of experts or interested persons or representatives of the
~ener al
public to advise it with respect to
any contemplated rule-making.
The powers of such commi t-
tees shall be advisory only.
Section 6.
FILING AND TAKING EFFECT OF RULES,
(a) Each agency shall file in the office of the
Secretary of State a certified copy of each rule adopted
by it, including all rules existing on the effective date
of this Act.
The Secretary of State shall keep a permanent
r egist er properly indexed of the rules open to public inspection.
(b) Each rule hereafter adopted is effective 20
d ays after .:f ilip.g except that:
(1) if a later date is required by statute
A-5
or specified in the rule, the later date is the effective
date;
(2) sub 'j ect to applicable constitutional
or statutory provisions, an emergency rule becomes effective immediately upon filing with the Secretary of State,
or at a stated date less than 20 days thereafter, if the
agency finds that this effective date is necessary because
of imminent peril to the public health, safety, or welfare.
The agencyts finding and a brief statement of the reasons
therefor shall be filed with the rule.
The agency shall
take appropriate measures to make emergency rules known
to the persons who may be affected by them.
Section 7.
AVAILABILITY OF RULES.
(a) The Secretary of State shall file, index9
and make available all effective rules adopted by each
agency.
(b) Rules filed with the Secretary of State shall
be made available upon request to any person at prices
fixed by the Secretary of State to cover costs of mailing,
publication, and copying.
(c) The Secretary of State may prescribe such
reasonable rules and regulations necessary to enable him
to effec tively administer this. Act.
Sec tion 8.
PETITION FOR ADOPTION OF RULES.
Any in-
terest ed person may petition an .a gency requesting the promulgation, amendment, · or repeal of a rule.
Each agency
shall prescribe .by rule ' the form for' petitions and the procedure for their: submission, consideration, and disposition.
"
A';" 6
Within 60 days after submission of a petition, the agency
either shall deny the petition in writing (stating its
r ·e asons for the denial) or shall insti tui;e rule-making
proceedings in accordance with Section 5.
Section 9.
DECLARATORY RULINGS BY AGENCIES.
Each
agency shall provide by rule for the filing and prompt
disposition of petitions for declaratory rulings as to the
applicability of any statutory provision or of any rule or
order of the agency.
Rulings disposing of petitions have
the same status as agency decisions or orders in contested
cases.
Section 10.
DECLARATORY JUDGMENT ON VALIDITY OR AP-
PLICABILITY OF RULES.
The validity or applicability of any
rule, including emergency rules adopted under Section 5(b)
of this Act, may be determined in an action for declaratory
judgment in the District Court of Travis County, and not
elsewhere, if it is alleged that the rule, or its threatened application, interferes with or impairs or threatens
to interfere with or impair, the legal rights or privileges
of the plaintiff.
action.
The agency shall be made a party to the
A declaratory judgment may be rendered whether
or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.
Section 11.
CONTESTED CASES; NOTICE; HEARINGS; RECORDS.
(a) In a contested case, all parties shall be
afforded an opportunity for hearing after reasonable notice of not. less than 10 days.
(b-.) The notice shall include:
A-7
(1) a statement of time, place, and nature
of the hearing;
(2) a statement of the legal authority and
. jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections
to the statutes and rules involved;
(4) a short and plain statement of the matters a ss erted.
If the agency or other party is unable to
state the matters in detail at the time the notice
,1S
ser-
ved, the initial notice may be limited to a statement of
the is sue s involved.
Thereafter, upon timely written appli-
cation,a .more definite and detailed statement shall be furnished not less than 3 days prior to the date set for the
hearing.
(c) Opportunity shall be afforded all parties to
respond and present evidence and argument on all issues involved.
(d) Unless precluded by law, informal disposition .may be made of any . conte s ted case by stipulation,
agreed settlem·e nt, consent order or default.
(e) The record in a contested case shall include:
·(1) all pleadings, motions, intermediate
rulings
(2) evidence received or considered;
(~) a stat~ment of ' matt~rs officially noticed;
(4) questions and offers of proof, objections, and rulings thereon;
(5) proposed findings and exceptions;
A-8
(6) any decision, opinion, or report by
the officer presiding at the hearing; and
(7) all staff memoranda or data submitted
to the hearing officer or members of the agency in connection with their considera tion of the case.
en
Proceedings, or any part thereof, shall be ,
transcribed upon written request of any party.
(g) Findings of fact shall be based exclusively
on the evidence and on matters officially noticed.
Section 12.
RULES OF EVIDENCE; OFFICIAL NOTICE.
(1) In conte s ted cases, irrelevant, immaterial,
or und.uly repetitious evidence shall be excluded.
The
rules of evidence as applied in nonjury civil cases in the
district courts of this state shall be followed.
When
necessary to ascertain facts not re as onably sus ceptible
of proof
unde~
tho se rules, evidence not admi ss ible there-
under may be admitted (except where precluded by statute)
if it is of a type commonly relied upon by reasonably prudent men in the conduct. of their affairs • . Agencies shall
give eff e ct to the rules of privilege recognized by law.
Objections to evidentiary offers may be made and shall be
noted in the record.
Subject to these requirements, when
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 written form.
(2) In connection with any contested case held
under the provisions of this Act, an agency:
(a) Shall have the power to swear witnesses
A-9
and take their testimony under oath.
(b) Upon the written request of any party
to a contested ' case pending before it or upon its own motion,
shall ,upon good cause shown on deposit of such sums as will
reasonably insure payment, 0'1' the amounts estimated to accrueunder the following Paragraphs 3(a,) and (b) of this
Section, issue a subpoena addressed to the sheriff or any ,
constable to require the attendance of such witnesses 'and
the production of such books, records, ' papers, or other
objects as may be necessary and proper for the purposes
of ,the proceedings.'
(c) Upon -the written request of any party ,
to a contested case pending before it or upon its own motion, shall upon good cause shown and on deposit of such
sum as will reasonably insure payment of the amounts estimated to accrue under Paragraphs 3(a) and (b) of this Section 12, issue a commission, addressed to the several officers' authorized by statute to' take depositions, to require that the deposition ofa wi,t ness be taken, which commission shall authorize '·the issuance of any subpoenas necessary to require that such witness appearan<;l produce, at
the time his deposition i is taken,such , books, records, papers, or other objects as may :b:e necessary and proper for
the purposes of the proceeding.
(d) The, place of taking ' such depositions
shall be in the county of the witness's ' residence, or where
he 1s emplo,y ed" orregUlar~y ' :: lIransaclls "
,
;',
i '
bu$iness :-, in;,perso:g,.
,
Such commission shall authorize and require the officer
11.-10 "
or officers to whom the same is addressed, or either of
them, to examine said witnesses before him on the date and
at the place named in the commission and to take his answers
under oath to such questions as may be propounded to him
by the parties to the proceeding, the agency, or the attorn. eys for such . parties or the agency.
Such commis s ion shall
require such witnes s ' to remain in attendance from day to
day until such deposition is pegun and completed.
(e) The witness shall be carefully examined, his testimonyilhall be reduced to writing or typewriting by the officer taking the deposition, or by some
person under his personal supervision, or by the deponent
himself in the officer' s presence, and by no other person,
and shall, after it has been reduced to writing or typewriting, be subscribed by the deponent.
(f) The officer taking such oral deposition shall not sustain objections" to any of the testimony
taken, nor exclUde same; but any of the parties or attorneys
engaged in taking testimony shall have such rulings r eserved
for the action of the agency before which the matter is
pending, but the administrator or other officer conducting the hearing shall not be confined to objections made
at the taking of .the testimony.
(g) When the testimony is fully transcribed,
the deposition shall be submitted to the witness for examination a nd shall be read to or by him,unless such examinati on and reading are waived by the witness and by the parties in writing; provided that when the witness is a party
A.,..11
,
.
to the contested case pending before the agency with an
attorney of record iR 'lIFitiRg "By Fsgietsl!'eil. Blail SF ceFt!
f'ied laail bhat
the~posi tion
officer shall notify such at-
torney of record in writing by registered mail or certified mail that the deposition is ready for such examination and reading at the office of such deposition officer,
and if the witness does not appear and examine, read, and
sign his deposition within 20 days after the mailing of
s~chnotice,
the deposition shall be returned as provided
herein for unsigned depositions.
In any event the witness
shall sign the deposition at least 3 days prior to the
hearing or it shall be returned as provided herein for unsigned depositions.
Any changes in form or substance which
the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given
by the witness for making them.
The deposition shall then
be signed by the witnes s , unles s the parties present at the
taking 'of the deposition by stipulation waive the signing
or the witness .is .ill or cannot be found or refuses to sign.
If the deposition is not signed by the witness, the officer
shall sign it and state on the record. the ' fact of the waiver or of the illness or absence . of .the witness or the fact
of the refusal to. sign together with .the reason, if any,
given therefor; and the d.eposition may then be used. as fully as though signed. ·
(h) Depositions may be returned to the agency
beforewhich ~tha
contested case is pending either by mail,
or by a party interested in taking the same, or by any other
A-12
person.
If returned by mail, the agency shall endorse
on the deposition that it was recelved from the post of,....
fice and shall cause the agency employee so receivlng the
deposition to agn his name thereto.
If not sent by mall,
the .person delivering them to the agency shall make affidavlt
b.efore the agency that he recelved them from ·the ha::lds of
the officer before whom they were taken, that they have
not been out of his possession slnce, and that they have
undergone no alteration.
(i) Depositions, after being filed with the
agency, may be opened by any ,eIllployee of the agency at the
request of either party or his counsel; and such employee
shall endo rse on such depositlons on what day and at whose
request they were opened, signing his name thereto, and
they shall remain on file with the agency for the inspection ·of any party.
(j) Regardless of whether cross interrog-
atories have been propounded, any party has a rlght to use
the deposi tlons ln the ·contested case pending before the
agency.
(3) A witness or deponent who is not a party
and who is subpoenaed or otherwise compelled to attend
any hearing or proceeding, to give hls deposition, or to
produce such books, records, papers, or other objects as
may be necessary and proper for the purposes of the pro..
ceeding . under the authority of thls
section~
is enti-
tled to receive:
(a) mileage of 10 . cents per mile, or such
A-:-13
greater amount as an agency may prescribe by rule, for
going to, and returning from the place of the hearing or
the place where his deposition is taken, if such place is
more than 25 miles from his place of residence; and
(b) a fee of $10 a day, or such greater
amount as an agency may prescribe by rule, for each day
or part thereof he is necessarily present as a witness or
deponent.
(4) 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, upon presentation of proper vouchers sworn
by the witness and approved by the agency.
(5) In the case of 'the failure of any person to
comply with any subpoena or commission issued under the
authority of this Act, the agency issuing the same (through
the Attorney General of Texas) or the party requesting
s~me
may bring s uit to enforce the subpoena or commission
in any district court in the county of the witness's residence.
The court, if it determines , that good cause ex-
ists for the issuance of such subpoena or commission shall
thereupon order compliance with the , requirements of such
subpoena or commission, and failure to obey the order of
such court may be punished by the court as contempt thereof.
(6.) In contested cases, documentary evidence may
be received in the form of copies or excerpts, if the ori ginal is not readily available.
011 request, parties shall
be given an opportunity to compare the copy with the
A-14
· original.
(7) In contest ed cases, a party shall be permitted to conduct cross-examinations required for a full
and true disclosure of the facts.
(8) In connection with any hearing held under
the provi s ions of this Act, notice may be taken of judicia lly coznizable facts .
In addition, notice may be taken
of ge nerally recognized facts within the area of the agency's specialized knowledge.
Parties shall be notified
either before or during the he aring, or by reference in
preliminary .reports or otherwise, of the material noticed,
. including a ny staff memoranda or data, and they shall be
afforded an opportunity to contest the material so noticed.
The special skills or knowledge of the agency and its
staff may be utilized in evaluating the evidence.
(9) In contested cases, all parties are entitIed to the assistance of the ir counsel before administrative agencies.
Section 13.
This right may be expressly waived.
EXAMINATION OF EVIDENCE BY AGENCY.
When
in a conte s ted case a majority of the officials of the agency who are to render the final decision have not heard
the c ase or read the record, the decision if adverse to
a pa rty to the proce e ding other than the agency itself,
shall not be made until a proposal for decision is served
upon the part ies, a nd an opportunity i s afforded to each
party a dverse ly affected to file exceptions and pres ent
brief s and oral arguineint ' to the officials who are to render the decision.
The proposal for decision shall contain
·
A-15
a statement of the reasons therefor and of each issue of
f a ct or l aw necessary to the proposed decision, prepared
by the person who conducted the hearing or by one who has
read the record.
The parties by written stipulation may
waive compliance with this section.
Section 14.
DECISIONS AND ORDERS.
A final
de~ision
or orde r adverse to a party in a contested case shall be
in writing or stated in the record.
(1) A final decision shall include findings of
fact and conclusions of law, separately stated.
Findings
of fact, if set forth in statutory language, shall be accompanied by a concise and explic ite statement of the underlying facts supporting the findings.
If,in accordance
with agency rules, a party submitted proposed findings of
fact, the de cision shall include a ruling upon each propo s ed finding .
Parties shall be notified either person-
ally or by mail of any decision or order.
On writ t en re-
quest, a copy of the decision or order shall be
delivered
or mailed to any party and to his attorney of record.
(2) Such orders shall be final in the absence
of a timely motion for rehearing upon the expiration of
the period for filing such a motion or be final and appealable from and after the date of' rendition of the order
overruling the motion for rehearing, or ,from the date
such moti on is overruled by operation of law.
If an agen-
cy find s t hat an eminent peril to the public health, safety, or welfare requires immediate effect of a final decision or order in ,' a contested case , it shall recite such
A-16
finding in such deci s ion or order as well as the fact
that such decision or order is final and effective from
the date rendered, in which event such decision or order
shall be final and appealable from the date rendered and
no motion for rehearing shall be required as a prerequisi te for appeal.
(3) Such final decision or order shall be rendered within sixty days after the da te the hea ring is finally closed.
In a contested ca se he ard by other than a
majority of the officials of the agency, the agency may
prescribe a longer period of time in which the final order or deci s ion of · the agency shall be is s ued.
Provided
that such extens ion, if so prescribed, shall be announced
at the conclusion of the hearing .
(4) Except as provided in (1) above, a motion
for rehearing, shall b e a prerequisite to an appeal.
Mo-
tions for rehearing shall be filed within fift e en days
after the da te of rendition of a final de c i s ion or order;
replie s to such motion for rehearing shall be filed with
the ag ency within twenty-five day s after the da te of rendition of the final decsion or order; and agency action
on such motion shall be taken within forty-five day s after
the dat e of rendition of such final decision or order.
I f agency action is not taken within such forty-five day
perio d , the motion for .rehearing shall be overruled by
oper a tion of law.
The agency may by written order extend
the period ' of ·time for filing such motions and replie s
and agency action provided that such extension shall not
A-17
' extend the period for agency action beyond ninety days
after the . date of rendition of such final decision or or." der.
(5) The parties may by agreement with the ap-
. proval of the agency provide for a modification of the
.' times hereinabove provided.
Section 15.
EX PARTE CONSULTATIONS.
Unless required
for the disposition of ex parte matters authorized by law,
meJ.Ilbers or employees of an agency assigned to render a decision or to make. findings of fact and conclusions of law
.
".
in a contested case shall not communicate, directly or in. directly, in connection with any. issue of fact or law with
any party or his representative, except upon notice and
opportunity :tior all parties to participate.
Section 16.
,LICENSES •
. (a) ' When the grant, denial, or renewal of a license is required to be preceded by notice and opportunity
f .or hearing, the provisions of this Act concerning contested cases as defined in Section 3(2) apply.
(b) When a licensee has made timely and sufficient application for ' the renewal of a li.c ense or a new
. license with reference to any activity of a continuing nature, the existing license does not expire until the ap' . plication has been finally determined by the agency, and
in case the. application is denied . or the terms. of the new
, l .i cens e limited, 'until 'the last day for' seeking review of.
the agency order ora, later ,date fixed by order of the
reviewing court. ,
A-18
(c)lfb revocation, suspension, annulment, or
withdr awal of any license is lawful unless, prior to the
institution of agency proceedings, the agency gave notice
' by registered or certified mail to the licensee of facts
or conduct alleged to warrant the intended action, and
the licensee was given an opportunity to show compliance
with all lawful requirements for the retention of the licens e.
,Section 17.
JUDICIAL REVIEW OF CONTESTED CASES.
(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case as defined
in Section 3(2) i s entitled to judicial review under this
Act.
A preliminary, procedural, or intermediate agency
action or ruling is immediately reviewable if review of the
final agency decision would not provide an adequate remedy.
(b) Proceedings for review are instituted by
filing a petition within 30 days after the decision or
I
order complained of is final and appealable, in the District
Court of Travis County, and not els ewhere, except in cases
where v enu,e is otherwise provided by statute.
(c) After service of the petition on the agency,
and within the time permitted for filing an answer, the
agency shall transmit to the reviewing court the original
or a c ertified copy of the entire record of the proceeding
under review.
By stipulation of all parties to the review
proceedings, the , record may be shortened. , A party unreasonably refusing to stipulate to limit the record may be taxed
'A-19
by the court for the additional costs.
The court may re-
quire or permit subsequent corrections or additions to the
record.
(d) If, before the date set for hearing, application is made to the court for leave to present additional
evidence, and it is shown to the satisfaction of the court
that the additional evidence is material and that there
were good re as ons for failure to pre s ent it in the proceeding before the agency, the court may order that the additional evidence betaken before the agency upon conditions
determined by the court.
The agency may modify its find-
ing s and decision by reason of the additional evidence and
shall file such evidence and any modifications, new findings, or decisions with the reviewing court.
(e) The review shall be conducted by the court
without a jury and shall be confined to the record.
In
. cases of alleged irregularities in procedure before the
agency, not s hown in the record, proof thereon may be taken
in the court.
(f) The court shall not substitute its judgment
for that of the agency as to the weight of the evidence
on questions of fact committed to agency discretion.
The
court; may affirm ·the decision of the agency in whole or
in part; the court shall reverse or remand the case for
further proceeding if substantial rights of the appellant
have be en prejudiced because of the administrative findings, inferences, conclusiGns, or decisions are:
C1 ) . in
violation of constitutional or
A-20
statut.o ry provisions;
(2) in excess of the statutory authority
of the agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not reasonably supported by substantial evidence in the record as a whole; or
(6) arbitrary or capricious or character. ized by abuse of discretion or clearly unwarranted exercise
of discretion.
(g) Nbthing herein conta'ined in Section 17 shall
affect the right of trial de novo of rate cases appealed
from the Railroad Commission
Sect.ion 18.
APPEALS.
of Texas.
Appeals from any final judgment
. of the d.istrict court may be taken by any party in the manner provided for in civil actions generally, but no appeal
bond shall be required of th,e agency.
Section 19.
SEVERABII,ITY.
section, paragraph, sentence,
If any part, section, sub-
clause~phrase,
or word con-
tained in this · Act shall be upheld by the courts to be invalid or unconstitutional, such holding shall not affect
the validity of theremainitlg portions of the Act, and the
Legislature hereby declares that it would have passed such
remaining portion despite such invalidity •
. Section 20.
REPEAL OF CONFLICTING ·LAWS.
Chapter 274,
Acts of the 57th Legislature, Regular Sess ion, 1969 (Article
6252-13, Vernon's Texas Civil. Statutes), and all other laws
and parts o.f laws in conflict with this Act are repealed.
1\.-21
Nothing herein shall be deemed to repeal a:ny existing
st a tutory provisions conferring inve s tigatory authority
upon a:ny a g ency, including any provision thereof which
grants such ,agency the power ('in connection with such inve s tigatory authority) to take depositions, administer
oaths or affirmations, examine witnesses, receive evidence,
conduct he arings, or i ssue subpoenas or summons.
Section 21.
EFFECTIVE DATE.
This Act shall take ef-
fect on January 1, 1974.
Section 22.
EMERGENCY.
The importance of this legis-
lation and the crowded- condition of the calendars in both
Hbuse s crea te an emergency and an imperative public necessity tha t the Constitutional Rule requiring bills to be
re ad on three several days in each House be suspended, and
this Rule i s h ereby suspended; and that this Act shall take
effect a:nd be. in force from and after January 1. 1974, and
it is so enacted.
A-22
LAW
LANHAM,
HATCH~I-L
SUIT~
, UTIN ~. M"'TCM~~~
O~F"ICE 5
11 0 2
AND SEDBERRY
p~~ Ry·er:tOOK S
BUILDING
AUSTIN. TE XAS 7B701
february 8, 1973
TO: MEMBERS OF ADMINISTRATIVE lAW COMMITTEE
A committee meeUng of the Administrative Law Committee of the State
Bar has been set at the Joe C. Thompson Conference Center on March
23111, at 10:30 A.M . You are requested to attend this meeUnq if at
all possible.
The Administrative Procedure Act has been introduced in the Senate by
,Senator Max Shennan of AmarUlo as S. B. 81. The same Bill haa been
introduced in the House by Dave Finney of Fort Worth as H~ B. 248.
The House Bm has been referred to the Judiciary Committee which ia
composed of the following members :
'"
"
· DeWitt Hale, Chairman - Corpus Ct-nsU
· Ben Grant, Vice Chatnnan - M~rshall ,
Andrew Baker - Galveston
Larry Bales - Au.tin
. Ronald Coleman - £1 Paso
C. C. Cook - Cleburne
Woody Denson - Houston
' Jerry Donaldson - Gatesvllle
Chodes Evans - Arlinqton
. Matt Garcia - San Antonio
• W. S. "Bill" Heatiy - Paducah
Don Henderson - ~custon
Samuel W. Hudson,. :" Dalla,S
A-23 ,
February 8, ' 1973
Page i2
Gene Jones - Houston
Robert Maloney - Dallas
James R. Nowlln - San Antonio '
" Wayne Peveto - Orange
· Pike Powers - Beaumont
" Renal Rosson - Snyder
Bill Suillvant - Gatesville
• Hm Vecchio.,. Grand Prairie
Larry Vick - Houston
Craig Washington - Houston
The Senate Blll has been referred to the Interqovemmental Relations
Committee of the Senate and members of that Committee are:
· James P. Wallace, Chairman - Houston
• Roy Herrington, Vice Chairman - Port, Arthur
" H. Jerry "Doc" Blanchard - Lubbock
R. A. "Bob" Gammage - Houston
• Charle sF. Herring - Austin
Michael McKinnon - Corpus Christi
" Wllllam N. Patman - Ganado
• W. E. "Pete" Snelson - Midland
,' You are urqed to contact any of the above named committeemen With whom '
, you are acquainted and urge their support of our Bills '. You are lllso re';;'
quested to contact both the senator and house members from your town ,;',
and urge their support of the Blli.
' '.
"
.,:-0 .
',Your cooperation is appreciated.
"
Yours truly,
Austin L. Hatchell
co: Davis Grant
P. O. Box 1.2487
Austin , TX 78711 ,
cc: Jack Hebdon
911 Frost N atlonal Bank Bldg.
San Antonio, TX 78205 : '
cc: Gene Cavin
cc: Jim Bowman
P. O. Box 12487
Austin, TX 78711
Box 844
Temple,"TX 76501
:itG24
LAW OF"F"ICE 5
LANHAM, HATCHELL AND SEDBERRY
T. L"'Ni-I"'''''
:;'N
•• ,"' .
SUITE 1102 PERRY·BAOOKS BUILDING
L . H"'TCH £ LL
AUSTIN , TEXAS 7870 i
I': 511: 015EAAY
Febr4ary 26, 1973
Mr. Richard W. Carter
2105 33rd. #67
Lubbock, Texas 79411
Dear Mr. Carter:
Enclosed herewith 1s a copy of the Admin i strative Procedure Act which
is be ing sponsored by the State Bar of Texa s.
I am also e nclos ing a copy of the lette r that I have written t o members
of the Administrative Law Committee g iv ing information as to the progress
of these bills. No committee hearlngs have been scheduled on these
bills as of t he present time.
Another administrative bill, Senate Bil l No. 139, has been introduced
which is the same bill which the Bar sponsored in the last Legislative
session. I am enclosing herewith a document which I have prepared
which shows the differences in Senate Bill 81 and 139. S.B. 139 is
not being sponsored by the Bar and I am unable to say at this time
why it was introduced. In my opin ion S.B. 81 does have certain
objectionable features, particularly Section 1 4 which does not, in
my opinion, afford enough time to the affected agencies to i ssue a
final order in certain instances. My committee has re-written Section ·
14 tOj!U'O'IIide more latitude to the agency in contested cases, I am
also opposed to Section 16(c) and Section 17(f)(5) of Senate B1ll139.
Your interest in this Bill 1s appreCiated. I will try to keep you informed
of progress of the Bill and woul!! appreciate any help that you can give,
in' securing itspa ssage.
9 :\
Yo~rs t ruly, . .
~
. alh/ms
(encl. )
eo
~(~""
Austin L. Hatchell
A-25
eM
r
H. J, "DOC" BLANCHARD
Sta1. Senator
Mr.
SU1I C.pitol
Oif(riet 28
1607 Broadway
" bbock, TIKII 79401
1'63,' 045 A.C, 80&
March 2, 1973
Austin. lex .. 78711
4U·4177 A ,C,612
Richard W. Carter
2105 - 33rd., #67
Lubtock, Texas 79411
Dear Mr. Carter:
Thank you for your letter of February 26
concerning standard administrative procedure.
I have not read the proposed code, but l
have been urging such an act for years. The
Agencies have set up their own rules and regulations, but there is a wide variance in their
application and enforcement .
Accordingly, r would favor a good administrative procedure act for all state agencies.
H. J. "Doc"
HJB:jjd
A-26
Blanc~ard ',.
COM MITTEES :
VICE CHAIRMAN:
puallc HE ... LTH
MEMBER:
BANKING
C Q J04MERCE AND INDUST"'"
EDUCATION
H .OERAL PROOf'A",a AND
RELATIONS
' M WALLACE
" ......... CE
INSURANCE
'STAICT NO. e
March 6. 1973
'AAla eOUNTY
X ... S AVENUE BL.DG.
JURISPRUDENCE
LABOlt "NO ror"NAOErorENT
"ELATIONS
TON , TEXA. 77002
TRANS~O"T"'TION
WA.TER AND CON'I"~ATION
Richard W. Carter
2105-33rd Street #67
Lubbock. Texas 79411
Dear Mr. Carter:
. Thank you very much for your 1 etter of
March 2nd in which you expressed your support
for an administrative procedures act in Texas.
I am authoring Senate Bil l 139 which is an
administrative procedures act for Texas which
is a refinement of the state bar proposal.
Enclosed please find a copy of S.B. 139
together with an analysis of that bill.
Whi 'le the differences are slight between
this bill and S.B. 81 by Senator Sherman. I
do believe that my bill refines in some degree
the state bar model and makes it somewhat more
effective.
'
.
Thank you again for your letter and if 'r'
can ever be of further ! service to you. please
let me know.
: .< " ,,'
I
Si ncerely.
JW/bg
, A-l.~
w~e j;tate nf Wexas
iiUllst nf 1Representatiues
P. O. BOX 2910
AUSTIN, TEXAS 78761
iPEVETO
P. O. BOX 189
REPRESENTATIVE
ORANGE, TEXAS 77630
March 12, 1973
Mr. Richard W. Carter
2105 33rd, #67
Lubbock, Texas 79411
Dear Mr. Carter:
Thank you for your letter regarding
H. B. 248.
I agree with you that H. B.248 will restore
some due process before agencies of Texas.
I will support
the bill and do everything I can to see that its passage.
Again, let me thank you for taking the time
to write me, and if I can be of further assistance to you
in any way, ple~se do nothesitate to call •
., .WAYNE
PEVETO ·
..
WP/map
is -28
DISTRICT 8
,.
OAA~QE
•
JEFFERSON
.w~~ ~~ml\ltJe $jf
W~Af ~tw Jl1li W~~
~1m~ti~
COMMITTEES:
CHAIRMAN :
INT(RGOvERNMENTAL R(LA.TlON S
MEMBER :
FINANCE
JURISPRUDENCE
SUBCO ... ,..ITT.U: ON CIVIL ...... neRs
JIM WALLACE
DISTRICT NO . to
. March 29, 1973
IA""IS COU .... TY
I EXAS
"'V~NU~
BLDG.
. STON , Tt.XAS 77002
Mr, Rjchard W, Carte~
2105 33rd Street #67
Lubbock, Texas' 79411
Dear Mr. Carter:
In r egard to your 'letter of Marc h 25th,
the Senate Bills 81 and 139 were heard before
the Intergovernmental Relations Committee on
Monday , March 26th . The bil ls were sent to
a subcommittee at that time wh ich was i nstructed
to report the bi lls back to the ful l comm i ttee
within two weeks. There are some problems with
certain state agenc i es suc h as the Alcoholic
Beverage Commission which has some legitimate
suggestions as f a r a s changes to the bil l.
I do not think the bill will be changed
drast ically but I do foresee some a djustments
and po ssi bly an e xce pti on for the Alcoholic
Bevera ge Commission . I am s orry that I cannot
be more sPecific at this ti me but I do not know
what ac t io ~ the subcommittee wil l take. I anticipate there is a good possibility that this bill
will pass this l egis l a t ure and I plan to bring it
to the f 10cr soon after it i s r epo r ted out of
committee which as! said s ho ul d be within two
weeks . .
'
I' app r eciate you r interest i n this matter and
free
to ca ll on me.
i f you ~ haVE any other questions , please feel
m~
JW/ bg
tA-29