CHAPTER 2001. ADMINISTRATIVE PROCEDURE
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE A. ADMINISTRATIVE PROCEDURE AND PRACTICE
CHAPTER 2001. ADMINISTRATIVE PROCEDURE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2001.001. PURPOSE. It is the public policy of the state
through this chapter to:
(1) provide minimum standards of uniform practice and procedure
for state agencies;
(2) provide for public participation in the rulemaking process;
and
(3) restate the law of judicial review of state agency action.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.002. SHORT TITLE. This chapter may be cited as the
Administrative Procedure Act.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.003. DEFINITIONS. In this chapter:
(1) "Contested case" means a proceeding, including a ratemaking
or licensing proceeding, in which the legal rights, duties, or
privileges of a party are to be determined by a state agency
after an opportunity for adjudicative hearing.
(2) "License" includes the whole or a part of a state agency
permit, certificate, approval, registration, or similar form of
permission required by law.
(3) "Licensing" includes a state agency process relating to the
granting, denial, renewal, revocation, suspension, annulment,
withdrawal, or amendment of a license.
(4) "Party" means a person or state agency named or admitted as
a party.
(5) "Person" means an individual, partnership, corporation,
association, governmental subdivision, or public or private
organization that is not a state agency.
(6) "Rule":
(A) means a state agency statement of general applicability
that:
(i) implements, interprets, or prescribes law or policy; or
(ii) describes the procedure or practice requirements of a state
agency;
(B) includes the amendment or repeal of a prior rule; and
(C) does not include a statement regarding only the internal
management or organization of a state agency and not affecting
private rights or procedures.
(7) "State agency" means a state officer, board, commission, or
department with statewide jurisdiction that makes rules or
determines contested cases. The term includes the State Office
of Administrative Hearings for the purpose of determining
contested cases. The term does not include:
(A) a state agency wholly financed by federal money;
(B) the legislature;
(C) the courts;
(D) the Texas Department of Insurance, as regards proceedings
and activities under Title 5, Labor Code, of the department, the
commissioner of insurance, or the commissioner of workers'
compensation; or
(E) an institution of higher education.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Amended by:
Acts 2005, 79th Leg., Ch.
265, Sec. 6.007, eff. September 1, 2005.
Sec. 2001.004. REQUIREMENT TO ADOPT RULES OF PRACTICE AND INDEX
RULES, ORDERS, AND DECISIONS. In addition to other requirements
under law, a state agency shall:
(1) adopt rules of practice stating the nature and requirements
of all available formal and informal procedures;
(2) index, cross-index to statute, and make available for public
inspection all rules and other written statements of policy or
interpretations that are prepared, adopted, or used by the agency
in discharging its functions; and
(3) index, cross-index to statute, and make available for public
inspection all final orders, decisions, and opinions.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.005. RULE, ORDER, OR DECISION NOT EFFECTIVE UNTIL
INDEXED. (a) A state agency rule, order, or decision made or
issued on or after January 1, 1976, is not valid or effective
against a person or party, and may not be invoked by an agency,
until the agency has indexed the rule, order, or decision and
made it available for public inspection as required by this
chapter.
(b) This section does not apply in favor of a person or party
that has actual knowledge of the rule, order, or decision.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.006. ACTIONS PREPARATORY TO IMPLEMENTATION OF STATUTE
OR RULE. (a) In this section:
(1) "State agency" means a department, board, commission,
committee, council, agency, office, or other entity in the
executive, legislative, or judicial branch of state government.
The term includes an institution of higher education as defined
by Section 61.003, Education Code, and includes those entities
excluded from the general definition of "state agency" under
Section 2001.003(7).
(2) Legislation is considered to have "become law" if it has
been passed by the legislature and:
(A) the governor has approved it;
(B) the governor has filed it with the secretary of state,
having neither approved nor disapproved it;
(C) the time for gubernatorial action has expired under Section
14, Article IV, Texas Constitution, the governor having neither
approved nor disapproved it; or
(D) the governor has disapproved it and the legislature has
overridden the governor's disapproval in accordance with Section
14, Article IV, Texas Constitution.
(b) In preparation for the implementation of legislation that
has become law but has not taken effect, a state agency may adopt
a rule or take other administrative action that the agency
determines is necessary or appropriate and that the agency would
have been authorized to take had the legislation been in effect
at the time of the action.
(c) In preparation for the implementation of a rule that has
been finally adopted by a state agency but has not taken effect,
a state agency may take administrative action that the agency
determines is necessary or appropriate and that the agency would
have been authorized to take had the rule been in effect at the
time of the action.
(d) A rule adopted under Subsection (b) may not take effect
earlier than the legislation being implemented takes effect.
Administrative action taken under Subsection (b) or (c) may not
result in implementation or enforcement of the applicable
legislation or rule before the legislation or rule takes effect.
Added by Acts 1999, 76th Leg., ch. 558, Sec. 1, eff. Sept. 1,
1999.
Sec. 2001.007. CERTAIN EXPLANATORY INFORMATION MADE AVAILABLE
THROUGH INTERNET. (a) A state agency shall make available
through a generally accessible Internet site:
(1) the text of its rules; and
(2) any material, such as a letter, opinion, or compliance
manual, that explains or interprets one or more of its rules and
that the agency has issued for general distribution to persons
affected by one or more of its rules.
(b) A state agency shall design the generally accessible
Internet site so that a member of the public may send questions
about the agency's rules to the agency electronically and receive
responses to the questions from the agency electronically. If the
agency's rules and the agency's explanatory and interpretive
materials are made available at different Internet sites, both
sites shall be designed in compliance with this subsection.
(c) Repealed by Acts 2005, 79th Leg., Ch. 750, Sec. 2(a), eff.
September 1, 2006.
(d) A state agency may comply with this section through the
actions of another agency, such as the secretary of state, on the
agency's behalf.
Added by Acts 1999, 76th Leg., ch. 1233, Sec. 1, eff. June 18,
1999. Renumbered from Sec. 2001.006 by Acts 2001, 77th Leg., ch.
1420, Sec. 21.001(63), eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch.
750, Sec. 2(a), eff. September 1, 2006.
SUBCHAPTER B. RULEMAKING
Sec. 2001.021. PETITION FOR ADOPTION OF RULES. (a) An
interested person by petition to a state agency may request the
adoption of a rule.
(b) A state agency by rule shall prescribe the form for a
petition under this section and the procedure for its submission,
consideration, and disposition.
(c) Not later than the 60th day after the date of submission of
a petition under this section, a state agency shall:
(1) deny the petition in writing, stating its reasons for the
denial; or
(2) initiate a rulemaking proceeding under this subchapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.022. LOCAL EMPLOYMENT IMPACT STATEMENTS. (a) A state
agency shall determine whether a rule may affect a local economy
before proposing the rule for adoption. If a state agency
determines that a proposed rule may affect a local economy, the
agency shall prepare a local employment impact statement for the
proposed rule. The impact statement must describe in detail the
probable effect of the rule on employment in each geographic area
affected by the rule for each year of the first five years that
the rule will be in effect and may include other factors at the
agency's discretion.
(b) This section does not apply to the adoption of an emergency
rule.
(c) Failure to comply with this section does not impair the
legal effect of a rule adopted under this chapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 2001, 77th Leg., ch. 871, Sec. 1, eff.
Sept. 1, 2001.
Sec. 2001.0225. REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL
RULES. (a) This section applies only to a major environmental
rule adopted by a state agency, the result of which is to:
(1) exceed a standard set by federal law, unless the rule is
specifically required by state law;
(2) exceed an express requirement of state law, unless the rule
is specifically required by federal law;
(3) exceed a requirement of a delegation agreement or contract
between the state and an agency or representative of the federal
government to implement a state and federal program; or
(4) adopt a rule solely under the general powers of the agency
instead of under a specific state law.
(b) Before adopting a major environmental rule subject to this
section, a state agency shall conduct a regulatory analysis that:
(1) identifies the problem the rule is intended to address;
(2) determines whether a new rule is necessary to address the
problem; and
(3) considers the benefits and costs of the proposed rule in
relationship to state agencies, local governments, the public,
the regulated community, and the environment.
(c) When giving notice of a major environmental rule subject to
this section, a state agency shall incorporate into the fiscal
note required by Section 2001.024 a draft impact analysis
describing the anticipated effects of the proposed rule. The
draft impact analysis, at a minimum, must:
(1) identify the benefits that the agency anticipates from
adoption and implementation of the rule, including reduced risks
to human health, safety, or the environment;
(2) identify the costs that the agency anticipates state
agencies, local governments, the public, and the regulated
community will experience after implementation of the rule;
(3) describe the benefits and costs anticipated from
implementation of the rule in as quantitative a manner as
feasible, but including a qualitative description when a
quantitative description is not feasible or adequately
descriptive;
(4) describe reasonable alternative methods for achieving the
purpose of the rule that were considered by the agency and
provide the reasons for rejecting those alternatives in favor of
the proposed rule;
(5) identify the data and methodology used in performing the
analysis required by this section;
(6) provide an explanation of whether the proposed rule
specifies a single method of compliance, and, if so, explain why
the agency determines that a specified method of compliance is
preferable to adopting a flexible regulatory approach, such as a
performance-oriented, voluntary, or market-based approach;
(7) state that there is an opportunity for public comment on the
draft impact analysis under Section 2001.029 and that all
comments will be addressed in the publication of the final
regulatory analysis; and
(8) provide information in such a manner that a reasonable
person reading the analysis would be able to identify the impacts
of the proposed rule.
(d) After considering public comments submitted under Section
2001.029 and determining that a proposed rule should be adopted,
the agency shall prepare a final regulatory analysis that
complies with Section 2001.033. Additionally, the agency shall
find that, compared to the alternative proposals considered and
rejected, the rule will result in the best combination of
effectiveness in obtaining the desired results and of economic
costs not materially greater than the costs of any alternative
regulatory method considered.
(e) In preparing the draft impact analysis before publication
for comment and the final regulatory analysis for the agency
order adopting the rule, the state agency shall consider that the
purpose of this requirement is to identify for the public and the
regulated community the information that was considered by the
agency, the information that the agency determined to be relevant
and reliable, and the assumptions and facts on which the agency
made its regulatory decision. In making its final regulatory
decision, the agency shall assess:
(1) all information submitted to it, whether quantitative or
qualitative, consistent with generally accepted scientific
standards;
(2) actual data where possible; and
(3) assumptions that reflect actual impacts that the regulation
is likely to impose.
(f) A person who submitted public comment in accordance with
Section 2001.029 may challenge the validity of a major
environmental rule that is not proposed and adopted in accordance
with the procedural requirements of this section by filing an
action for declaratory judgment under Section 2001.038 not later
than the 30th day after the effective date of the rule. If a
court determines that a major environmental rule was not proposed
and adopted in accordance with the procedural requirements of
this section, the rule is invalid.
(g) In this section:
(1) "Benefit" means a reasonably identifiable, significant,
direct or indirect, favorable effect, including a quantifiable or
nonquantifiable environmental, health, or economic effect, that
is expected to result from implementation of a rule.
(2) "Cost" means a reasonably identifiable, significant, direct
or indirect, adverse effect, including a quantifiable or
nonquantifiable environmental, health, or economic effect, that
is expected to result from implementation of a rule.
(3) "Major environmental rule" means a rule the specific intent
of which is to protect the environment or reduce risks to human
health from environmental exposure and that may adversely affect
in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state.
(h) The requirements of this section do not apply to state
agency rules that are proposed or adopted on an emergency basis
to protect the environment or to reduce risks to human health
from environmental exposure.
Added by Acts 1997, 75th Leg., ch. 1034, Sec. 1, eff. Sept. 1,
1997.
Sec. 2001.023. NOTICE OF PROPOSED RULE. (a) A state agency
shall give at least 30 days' notice of its intention to adopt a
rule before it adopts the rule.
(b) A state agency shall file notice of the proposed rule with
the secretary of state for publication in the Texas Register in
the manner prescribed by Chapter 2002.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.024. CONTENT OF NOTICE. (a) The notice of a proposed
rule must include:
(1) a brief explanation of the proposed rule;
(2) the text of the proposed rule, except any portion omitted
under Section 2002.014, prepared in a manner to indicate any
words to be added or deleted from the current text;
(3) a statement of the statutory or other authority under which
the rule is proposed to be adopted, including:
(A) a concise explanation of the particular statutory or other
provisions under which the rule is proposed;
(B) the section or article of the code affected; and
(C) a certification that the proposed rule has been reviewed by
legal counsel and found to be within the state agency's authority
to adopt;
(4) a fiscal note showing the name and title of the officer or
employee responsible for preparing or approving the note and
stating for each year of the first five years that the rule will
be in effect:
(A) the additional estimated cost to the state and to local
governments expected as a result of enforcing or administering
the rule;
(B) the estimated reductions in costs to the state and to local
governments as a result of enforcing or administering the rule;
(C) the estimated loss or increase in revenue to the state or to
local governments as a result of enforcing or administering the
rule; and
(D) if applicable, that enforcing or administering the rule does
not have foreseeable implications relating to cost or revenues of
the state or local governments;
(5) a note about public benefits and costs showing the name and
title of the officer or employee responsible for preparing or
approving the note and stating for each year of the first five
years that the rule will be in effect:
(A) the public benefits expected as a result of adoption of the
proposed rule; and
(B) the probable economic cost to persons required to comply
with the rule;
(6) the local employment impact statement prepared under Section
2001.022, if required;
(7) a request for comments on the proposed rule from any
interested person; and
(8) any other statement required by law.
(b) In the notice of a proposed rule that amends any part of an
existing rule:
(1) the text of the entire part of the rule being amended must
be set out;
(2) the language to be deleted must be bracketed and stricken
through; and
(3) the language to be added must be underlined.
(c) In the notice of a proposed rule that is new or that adds a
complete section to an existing rule, the new rule or section
must be set out and underlined.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 1067, Sec. 1, eff.
Sept. 1, 1997.
Sec. 2001.025. EFFECTIVE DATE OF NOTICE. Notice of a proposed
rule becomes effective as notice when published in the Texas
Register, except as provided by Section 2001.028.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.026. NOTICE TO PERSONS REQUESTING ADVANCE NOTICE OF
PROPOSED RULES. A state agency shall mail notice of a proposed
rule to each person who has made a timely written request of the
agency for advance notice of its rulemaking proceedings. Failure
to mail the notice does not invalidate an action taken or rule
adopted.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.027. WITHDRAWAL OF PROPOSED RULE. A proposed rule is
withdrawn six months after the date of publication of notice of
the proposed rule in the Texas Register if a state agency has
failed by that time to adopt, adopt as amended, or withdraw the
proposed rule.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.028. NOTICE OF PROPOSED LAW ENFORCEMENT RULES. Notice
of the adoption of a proposed rule by the Commission on Jail
Standards or the Commission on Law Enforcement Officer Standards
and Education that affects a law enforcement agency of the state
or of a political subdivision of the state is not effective until
the notice is:
(1) published as required by Section 2001.023; and
(2) mailed to each law enforcement agency that may be affected
by the proposed rule.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.029. PUBLIC COMMENT. (a) Before adopting a rule, a
state agency shall give all interested persons a reasonable
opportunity to submit data, views, or arguments, orally or in
writing.
(b) A state agency shall grant an opportunity for a public
hearing before it adopts a substantive rule if a public hearing
is requested by:
(1) at least 25 persons;
(2) a governmental subdivision or agency; or
(3) an association having at least 25 members.
(c) A state agency shall consider fully all written and oral
submissions about a proposed rule.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.030. STATEMENT OF REASONS FOR OR AGAINST ADOPTION. On
adoption of a rule, a state agency, if requested to do so by an
interested person either before adoption or not later than the
30th day after the date of adoption, shall issue a concise
statement of the principal reasons for and against its adoption.
The agency shall include in the statement its reasons for
overruling the considerations urged against adoption.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.031. INFORMAL CONFERENCES AND ADVISORY COMMITTEES.
(a) A state agency may use an informal conference or
consultation to obtain the opinions and advice of interested
persons about contemplated rulemaking.
(b) A state agency may appoint committees of experts or
interested persons or representatives of the public to advise the
agency about contemplated rulemaking.
(c) The power of a committee appointed under this section is
advisory only.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.032. LEGISLATIVE REVIEW. (a) Each house of the
legislature by rule shall establish a process under which the
presiding officer of each house refers each proposed state agency
rule to the appropriate standing committee for review before the
rule is adopted.
(b) A state agency shall deliver to the lieutenant governor and
the speaker of the house of representatives a copy of the notice
of a proposed rule when the agency files notice with the
secretary of state under Section 2001.023.
(c) On the vote of a majority of its members, a standing
committee may send to a state agency a statement supporting or
opposing adoption of a proposed rule.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.033. STATE AGENCY ORDER ADOPTING RULE. (a) A state
agency order finally adopting a rule must include:
(1) a reasoned justification for the rule as adopted consisting
solely of:
(A) a summary of comments received from parties interested in
the rule that shows the names of interested groups or
associations offering comment on the rule and whether they were
for or against its adoption;
(B) a summary of the factual basis for the rule as adopted which
demonstrates a rational connection between the factual basis for
the rule and the rule as adopted; and
(C) the reasons why the agency disagrees with party submissions
and proposals;
(2) a concise restatement of the particular statutory provisions
under which the rule is adopted and of how the agency interprets
the provisions as authorizing or requiring the rule; and
(3) a certification that the rule, as adopted, has been reviewed
by legal counsel and found to be a valid exercise of the agency's
legal authority.
(b) Nothing in this section shall be construed to require
additional analysis of alternatives not adopted by an agency
beyond that required by Subdivision (1)(C) or to require the
reasoned justification to be stated separately from the
statements required in Subdivision (1).
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 558, Sec. 2, eff.
Sept. 1, 1999.
Sec. 2001.034. EMERGENCY RULEMAKING. (a) A state agency may
adopt an emergency rule without prior notice or hearing, or with
an abbreviated notice and a hearing that it finds practicable, if
the agency:
(1) finds that an imminent peril to the public health, safety,
or welfare, or a requirement of state or federal law, requires
adoption of a rule on fewer than 30 days' notice; and
(2) states in writing the reasons for its finding under
Subdivision (1).
(b) A state agency shall set forth in an emergency rule's
preamble the finding required by Subsection (a).
(c) A rule adopted under this section may be effective for not
longer than 120 days and may be renewed once for not longer than
60 days. An identical rule may be adopted under Sections 2001.023
and 2001.029.
(d) A state agency shall file an emergency rule adopted under
this section and the agency's written reasons for the adoption in
the office of the secretary of state for publication in the Texas
Register in the manner prescribed by Chapter 2002.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.035. SUBSTANTIAL COMPLIANCE REQUIREMENT; TIME LIMIT ON
PROCEDURAL CHALLENGE. (a) A rule is voidable unless a state
agency adopts it in substantial compliance with Sections
2001.0225 through 2001.034.
(b) A person must initiate a proceeding to contest a rule on the
ground of noncompliance with the procedural requirements of
Sections 2001.0225 through 2001.034 not later than the second
anniversary of the effective date of the rule.
(c) A state agency substantially complies with the requirements
of Section 2001.033 if the agency's reasoned justification
demonstrates in a relatively clear and logical fashion that the
rule is a reasonable means to a legitimate objective.
(d) A mere technical defect that does not result in prejudice to
a person's rights or privileges is not grounds for invalidation
of a rule.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 558, Sec. 3, eff.
Sept. 1, 1999.
Sec. 2001.036. EFFECTIVE DATE OF RULES; EFFECT OF FILING WITH
SECRETARY OF STATE. (a) A rule takes effect 20 days after the
date on which it is filed in the office of the secretary of
state, except that:
(1) if a later date is required by statute or specified in the
rule, the later date is the effective date;
(2) if a state agency finds that an expedited effective date is
necessary because of imminent peril to the public health, safety,
or welfare, and subject to applicable constitutional or statutory
provisions, a rule is effective immediately on filing with the
secretary of state, or on a stated date less than 20 days after
the filing date; and
(3) if a federal statute or regulation requires that a state
agency implement a rule by a certain date, the rule is effective
on the prescribed date.
(b) A state agency shall file with its rule the finding
described by Subsection (a)(2), if applicable, and a brief
statement of the reasons for the finding. The agency shall take
appropriate measures to make emergency rules known to persons who
may be affected by them.
(c) A rule adopted as provided by Subsection (a)(3) shall be
filed in the office of the secretary of state and published in
the Texas Register.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.037. OFFICIAL TEXT OF RULE. If a conflict exists, the
official text of a rule is the text on file with the secretary of
state and not the text published in the Texas Register or on file
with the issuing state agency.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.038. DECLARATORY JUDGMENT. (a) The validity or
applicability of a rule, including an emergency rule adopted
under Section 2001.034, may be determined in an action for
declaratory judgment if it is alleged that the rule or its
threatened application interferes with or impairs, or threatens
to interfere with or impair, a legal right or privilege of the
plaintiff.
(b) The action may be brought only in a Travis County district
court.
(c) The state agency must be made a party to the action.
(d) A court may render a declaratory judgment without regard to
whether the plaintiff requested the state agency to rule on the
validity or applicability of the rule in question.
(e) An action brought under this section may not be used to
delay or stay a hearing in which a suspension, revocation, or
cancellation of a license by a state agency is at issue before
the agency after notice of the hearing has been given.
(f) A Travis County district court in which an action is brought
under this section, on its own motion or the motion of any party,
may request transfer of the action to the Court of Appeals for
the Third Court of Appeals District if the district court finds
that the public interest requires a prompt, authoritative
determination of the validity or applicability of the rule in
question and the case would ordinarily be appealed. After filing
of the district court's request with the court of appeals,
transfer of the action may be granted by the court of appeals if
it agrees with the findings of the district court concerning the
application of the statutory standards to the action. On entry of
an order by the court of appeals granting transfer, the action is
transferred to the court of appeals for decision, and the
validity or applicability of the rule in question is subject to
judicial review by the court of appeals. The administrative
record and the district court record shall be filed by the
district clerk with the clerk of the court of appeals. The court
of appeals may direct the district court to conduct any necessary
evidentiary hearings in connection with the action.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 894, Sec. 1, eff.
Sept. 1, 1999.
Sec. 2001.039. AGENCY REVIEW OF EXISTING RULES. (a) A state
agency shall review and consider for readoption each of its rules
in accordance with this section.
(b) A state agency shall review a rule not later than the fourth
anniversary of the date on which the rule takes effect and every
four years after that date. The adoption of an amendment to an
existing rule does not affect the dates on which the rule must be
reviewed except that the effective date of an amendment is
considered to be the effective date of the rule if the agency
formally conducts a review of the rule in accordance with this
section as part of the process of adopting the amendment.
(c) The state agency shall readopt, readopt with amendments, or
repeal a rule as the result of reviewing the rule under this
section.
(d) The procedures of this subchapter relating to the original
adoption of a rule apply to the review of a rule and to the
resulting repeal, readoption, or readoption with amendments of
the rule, except as provided by this subsection. Publishing the
Texas Administrative Code citation to a rule under review
satisfies the requirements of this subchapter relating to
publishing the text of the rule unless the agency readopts the
rule with amendments as a result of the review.
(e) A state agency's review of a rule must include an assessment
of whether the reasons for initially adopting the rule continue
to exist.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 1.11(a), eff. Sept.
1, 1999.
Sec. 2001.040. SCOPE AND EFFECT OF ORDER INVALIDATING AGENCY
RULE. If a court finds that an agency has not substantially
complied with one or more procedural requirements of Sections
2001.0225 through 2001.034, the court may remand the rule, or a
portion of the rule, to the agency and, if it does so remand,
shall provide a reasonable time for the agency to either revise
or readopt the rule through established procedure. During the
remand period, the rule shall remain effective unless the court
finds good cause to invalidate the rule or a portion of the rule,
effective as of the date of the court's order.
Added by Acts 1999, 76th Leg., ch. 558, Sec. 4, eff. Sept. 1,
1999. Renumbered from Sec. 2001.039 by Acts 2001, 77th Leg., ch.
1420, Sec. 21.001(64), eff. Sept. 1, 2001.
Sec. 2001.041. COMPLIANCE WITH LAW ON DECENTRALIZATION. A state
agency rule, order, or guide relating to decentralization of
agency services or programs must include a statement of the
manner in which the agency complied with Section 391.0091, Local
Government Code.
Added by Acts 2003, 78th Leg., ch. 718, Sec. 2, eff. Sept. 1,
2003.
SUBCHAPTER C. CONTESTED CASES: GENERAL RIGHTS AND PROCEDURES
Sec. 2001.051. OPPORTUNITY FOR HEARING AND PARTICIPATION; NOTICE
OF HEARING. In a contested case, each party is entitled to an
opportunity:
(1) for hearing after reasonable notice of not less than 10
days; and
(2) to respond and to present evidence and argument on each
issue involved in the case.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.052. CONTENTS OF NOTICE. (a) Notice of a hearing in
a contested case must include:
(1) a statement of the 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 of the statutes and
rules involved; and
(4) a short, plain statement of the matters asserted.
(b) If a state agency or other party is unable to state matters
in detail at the time notice under this section is served, an
initial notice may be limited to a statement of the issues
involved. On timely written application, a more definite and
detailed statement shall be furnished not less than three days
before the date set for the hearing.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.053. RIGHT TO COUNSEL. (a) Each party to a contested
case is entitled to the assistance of counsel before a state
agency.
(b) A party may expressly waive the right to assistance of
counsel.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.054. LICENSES. (a) The provisions of this chapter
concerning contested cases apply to the grant, denial, or renewal
of a license that is required to be preceded by notice and
opportunity for hearing.
(b) If a license holder makes timely and sufficient application
for the renewal of a license or for a new license for an activity
of a continuing nature, the existing license does not expire
until the application has been finally determined by the state
agency. If the application is denied or the terms of the new
license are limited, the existing license does not expire until
the last day for seeking review of the agency order or a later
date fixed by order of the reviewing court.
(c) A revocation, suspension, annulment, or withdrawal of a
license is not effective unless, before institution of state
agency proceedings:
(1) the agency gives notice by personal service or by registered
or certified mail to the license holder of facts or conduct
alleged to warrant the intended action; and
(2) the license holder is given an opportunity to show
compliance with all requirements of law for the retention of the
license.
(d) A license described in Subsection (a) remains valid unless
it expires without timely application for renewal, is amended,
revoked, suspended, annulled, or withdrawn, or the denial of a
renewal application becomes final. The term or duration of a
license described in Subsection (a) is tolled during the period
the license is subjected to judicial review. However, the term or
duration of a license is not tolled if, during judicial review,
the licensee engages in the activity for which the license was
issued.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 589, Sec. 1, eff.
Sept. 1, 1995.
Sec. 2001.055. INTERPRETERS FOR DEAF OR HEARING IMPAIRED PARTIES
AND WITNESSES. (a) In a contested case, a state agency shall
provide an interpreter whose qualifications are approved by the
Texas Commission for the Deaf and Hard of Hearing to interpret
the proceedings for a party or subpoenaed witness who is deaf or
hearing impaired.
(b) In this section, "deaf or hearing impaired" means having a
hearing impairment, whether or not accompanied by a speech
impairment, that inhibits comprehension of the proceedings or
communication with others.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 835, Sec. 18, eff.
Sept. 1, 1995.
Sec. 2001.056. INFORMAL DISPOSITION OF CONTESTED CASE. Unless
precluded by law, an informal disposition may be made of a
contested case by:
(1) stipulation;
(2) agreed settlement;
(3) consent order; or
(4) default.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.057. CONTINUANCES. (a) A state agency may continue a
hearing in a contested case from time to time and from place to
place.
(b) The notice of the hearing must indicate the times and places
at which the hearing may be continued.
(c) If a hearing is not concluded on the day it begins, a state
agency shall, to the extent possible, proceed with the hearing on
each subsequent working day until the hearing is concluded.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.058. HEARING CONDUCTED BY STATE OFFICE OF
ADMINISTRATIVE HEARINGS. (a) This section applies only to an
administrative law judge employed by the State Office of
Administrative Hearings.
(b) An administrative law judge who conducts a contested case
hearing shall consider applicable agency rules or policies in
conducting the hearing, but the state agency deciding the case
may not supervise the administrative law judge.
(c) A state agency shall provide the administrative law judge
with a written statement of applicable rules or policies.
(d) A state agency may not attempt to influence the finding of
facts or the administrative law judge's application of the law in
a contested case except by proper evidence and legal argument.
(e) A state agency may change a finding of fact or conclusion of
law made by the administrative law judge, or may vacate or modify
an order issued by the administrative judge, only if the agency
determines:
(1) that the administrative law judge did not properly apply or
interpret applicable law, agency rules, written policies provided
under Subsection (c), or prior administrative decisions;
(2) that a prior administrative decision on which the
administrative law judge relied is incorrect or should be
changed; or
(3) that a technical error in a finding of fact should be
changed.
The agency shall state in writing the specific reason and legal
basis for a change made under this subsection.
(f) A state agency by rule may provide that, in a contested case
before the agency that concerns licensing in relation to an
occupational license and that is not disposed of by stipulation,
agreed settlement, or consent order, the administrative law judge
shall render the final decision in the contested case. If a state
agency adopts such a rule, the following provisions apply to
contested cases covered by the rule:
(1) the administrative law judge shall render the decision that
may become final under Section 2001.144 not later than the 60th
day after the latter of the date on which the hearing is finally
closed or the date by which the judge has ordered all briefs,
reply briefs, and other posthearing documents to be filed, and
the 60-day period may be extended only with the consent of all
parties, including the occupational licensing agency;
(2) the administrative law judge shall include in the findings
of fact and conclusions of law a determination whether the
license at issue is primarily a license to engage in an
occupation;
(3) the State Office of Administrative Hearings is the state
agency with which a motion for rehearing or a reply to a motion
for rehearing is filed under Section 2001.146 and is the state
agency that acts on the motion or extends a time period under
Section 2001.146;
(4) the State Office of Administrative Hearings is the state
agency responsible for sending a copy of the decision that may
become final under Section 2001.144 or an order ruling on a
motion for rehearing to the parties, including the occupational
licensing agency, in accordance with Section 2001.142; and
(5) the occupational licensing agency and any other party to the
contested case is entitled to obtain judicial review of the final
decision in accordance with this chapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 1167, Sec. 1, eff.
Sept. 1, 1997.
Sec. 2001.059. TRANSCRIPT. (a) On the written request of a
party to a contested case, proceedings, or any part of the
proceedings, shall be transcribed.
(b) A state agency may pay the cost of a transcript or may
assess the cost to one or more parties.
(c) This chapter does not limit a state agency to a stenographic
record of proceedings.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.060. RECORD. The record in a contested case includes:
(1) each pleading, motion, and intermediate ruling;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections, and rulings on
them;
(5) proposed findings and exceptions;
(6) each decision, opinion, or report by the officer presiding
at the hearing; and
(7) all staff memoranda or data submitted to or considered by
the hearing officer or members of the agency who are involved in
making the decision.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.061. EX PARTE CONSULTATIONS. (a) Unless required for
the disposition of an ex parte matter authorized by law, a member
or employee of a state agency assigned to render a decision or to
make findings of fact and conclusions of law in a contested case
may not directly or indirectly communicate in connection with an
issue of fact or law with a state agency, person, party, or a
representative of those entities, except on notice and
opportunity for each party to participate.
(b) A state agency member may communicate ex parte with another
member of the agency unless prohibited by other law.
(c) Under Section 2001.090, a member or employee of a state
agency assigned to render a decision or to make findings of fact
and conclusions of law in a contested case may communicate ex
parte with an agency employee who has not participated in a
hearing in the case for the purpose of using the special skills
or knowledge of the agency and its staff in evaluating the
evidence.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.062. EXAMINATION OF RECORD BY STATE AGENCY; PROPOSAL
FOR DECISION. (a) In a contested case, if a majority of the
state agency officials who are to render a final decision have
not heard the case or read the record, the decision, if adverse
to a party other than the agency itself, may not be made until:
(1) a proposal for decision is served on each party; and
(2) an opportunity is given to each adversely affected party to
file exceptions and present briefs to the officials who are to
render the decision.
(b) If a party files exceptions or presents briefs, an
opportunity shall be given to each other party to file replies to
the exceptions or briefs.
(c) A proposal for decision must contain a statement of the
reasons for the proposed decision and of each finding of fact and
conclusion of law necessary to the proposed decision. The
statement must be prepared by the individual who conducted the
hearing or by one who has read the record.
(d) A proposal for decision may be amended in response to
exceptions, replies, or briefs submitted by the parties without
again being served on the parties.
(e) The parties by written stipulation may waive compliance with
this section.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
SUBCHAPTER D. CONTESTED CASES: EVIDENCE, WITNESSES, AND DISCOVERY
Sec. 2001.081. RULES OF EVIDENCE. The rules of evidence as
applied in a nonjury civil case in a district court of this state
shall apply to a contested case except that evidence inadmissible
under those rules may be admitted if the evidence is:
(1) necessary to ascertain facts not reasonably susceptible of
proof under those rules;
(2) not precluded by statute; and
(3) of a type on which a reasonably prudent person commonly
relies in the conduct of the person's affairs.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.082. EXCLUSION OF EVIDENCE. In a contested case,
evidence that is irrelevant, immaterial, or unduly repetitious
shall be excluded.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.083. PRIVILEGE. In a contested case, a state agency
shall give effect to the rules of privilege recognized by law.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.084. OBJECTIONS TO EVIDENCE. An objection to an
evidentiary offer in a contested case may be made and shall be
noted in the record.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.085. WRITTEN EVIDENCE. Subject to the requirements of
Sections 2001.081 through 2001.084, any part of the evidence in a
contested case may be received in writing if:
(1) a hearing will be expedited; and
(2) the interests of the parties will not be substantially
prejudiced.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.086. DOCUMENTARY EVIDENCE. A copy or excerpt of
documentary evidence may be received in a contested case if an
original document is not readily available. On request, a party
shall be given an opportunity to compare the copy or excerpt with
the original document.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.087. CROSS-EXAMINATION. In a contested case, a party
may conduct cross-examination required for a full and true
disclosure of the facts.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.088. WITNESSES. A state agency may swear witnesses
and take their testimony under oath in connection with a
contested case held under this chapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.089. ISSUANCE OF SUBPOENA. On its own motion or on
the written request of a party to a contested case pending before
it, a state agency shall issue a subpoena addressed to the
sheriff or to a constable to require the attendance of a witness
or the production of books, records, papers, or other objects
that may be necessary and proper for the purposes of a proceeding
if:
(1) good cause is shown; and
(2) an amount is deposited that will reasonably ensure payment
of the amounts estimated to accrue under Section 2001.103.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.090. OFFICIAL NOTICE; STATE AGENCY EVALUATION OF
EVIDENCE. (a) In connection with a hearing held under this
chapter, official notice may be taken of:
(1) all facts that are judicially cognizable; and
(2) generally recognized facts within the area of the state
agency's specialized knowledge.
(b) Each party shall be notified either before or during the
hearing, or by reference in a preliminary report or otherwise, of
the material officially noticed, including staff memoranda or
information.
(c) Each party is entitled to be given an opportunity to contest
material that is officially noticed.
(d) The special skills or knowledge of the state agency and its
staff may be used in evaluating the evidence.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.091. DISCOVERY FROM PARTIES: ORDERS FOR PRODUCTION OR
INSPECTION. (a) On the motion of a party, on notice to each
other party, and subject to limitations of the kind provided for
discovery under the Texas Rules of Civil Procedure, a state
agency in which a contested case is pending may order a party:
(1) to produce and to permit the party making the motion or a
person on behalf of that party to inspect and to copy or
photograph a designated document, paper, book, account, letter,
photograph, or tangible thing in the party's possession, custody,
or control that:
(A) is not privileged; and
(B) constitutes or contains, or is reasonably calculated to lead
to the discovery of, evidence that is material to a matter
involved in the contested case; and
(2) to permit entry to designated land or other property in the
party's possession or control to inspect, measure, survey, or
photograph the property or a designated object or operation on
the property that may be material to a matter involved in the
contested case.
(b) An order under this section:
(1) must specify the time, place, and manner of making the
inspection, measurement, or survey or of making copies or
photographs; and
(2) may prescribe other terms and conditions that are just.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.092. DISCOVERY FROM PARTIES: IDENTITY OF WITNESS OR
POTENTIAL PARTY; EXPERT REPORTS. (a) The identity and location
of a potential party or witness in a contested case may be
obtained from a communication or other paper in a party's
possession, custody, or control.
(b) A party may be required to produce and permit the inspection
and copying of a report, including factual observations and
opinions, of an expert who will be called as a witness.
(c) This section does not extend to other communications:
(1) made after the occurrence or transaction on which the
contested case is based;
(2) made in connection with the prosecution, investigation, or
defense of the contested case or the circumstances from which the
case arose; and
(3) that are:
(A) written statements of witnesses;
(B) in writing and between agents, representatives, or employees
of a party; or
(C) between a party and the party's agent, representative, or
employee.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.093. DISCOVERY FROM PARTIES: COPY OF PREVIOUS
STATEMENT. (a) On request, a person, including a person who is
not a party, is entitled to obtain a copy of a statement in a
party's possession, custody, or control that the person has
previously made about the contested case or its subject matter.
(b) A person whose request under Subsection (a) is refused may
move for a state agency order under Section 2001.091.
(c) In this section, a statement is considered to be previously
made if it is:
(1) a written statement signed or otherwise adopted or approved
by the person making it; or
(2) a stenographic, mechanical, electrical, or other recording,
or a transcription of the recording, which is a substantially
verbatim recital of an oral statement by the person making it and
that was contemporaneously recorded.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.094. ISSUANCE OF COMMISSION REQUIRING DEPOSITION. (a)
On its own motion or on the written request of a party to a
contested case pending before it, and on deposit of an amount
that will reasonably ensure payment of the amount estimated to
accrue under Section 2001.103, a state agency shall issue a
commission, addressed to the officers authorized by statute to
take a deposition, requiring that the deposition of a witness be
taken.
(b) The commission shall authorize the issuance of any subpoena
necessary to require that the witness appear and produce, at the
time the deposition is taken, books, records, papers, or other
objects that may be necessary and proper for the purpose of the
proceeding.
(c) The commission shall require an officer to whom it is
addressed to:
(1) examine the witness before the officer on the date and at
the place named in the commission; and
(2) take answers under oath to questions asked the witness by a
party to the proceeding, the state agency, or an attorney for a
party or the agency.
(d) The commission shall require the witness to remain in
attendance from day to day until the deposition is begun and
completed.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.095. DEPOSITION OF STATE AGENCY BOARD MEMBER. The
deposition of a member of a state agency board may not be taken
after a date has been set for hearing in a contested case.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.096. PLACE OF DEPOSITION. A deposition in a contested
case shall be taken in the county where the witness:
(1) resides;
(2) is employed; or
(3) regularly transacts business in person.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.097. OBJECTIONS TO DEPOSITION TESTIMONY. (a) The
officer taking an oral deposition in a contested case may not:
(1) sustain an objection to the testimony taken; or
(2) exclude testimony.
(b) An objection to deposition testimony is reserved for the
action of the state agency before which the matter is pending.
(c) The administrator or other officer conducting the contested
case hearing may consider objections other than those made at the
taking of the testimony.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.098. PREPARATION OF DEPOSITION. (a) A deposition
witness in a contested case shall be carefully examined.
(b) The testimony shall be reduced to writing or typewriting by
the officer taking the deposition, a person under the officer's
personal supervision, or the deposition witness in the officer's
presence.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.099. SUBMISSION OF DEPOSITION TO WITNESS; SIGNATURE.
(a) A deposition in a contested case shall be submitted to the
witness for examination after the testimony is fully transcribed
and shall be read to or by the witness.
(b) The witness and the parties may waive in writing the
examination and reading of a deposition under Subsection (a).
(c) If the witness is a party to the contested case pending
before the agency with an attorney of record, the deposition
officer shall notify the attorney of record in writing by
registered or certified mail that the deposition is ready for
examination and reading at the office of the deposition officer
and that if the witness does not appear and examine, read, and
sign the deposition before the 21st day after the date on which
the notice is mailed, the deposition shall be returned as
provided by this subchapter for unsigned depositions.
(d) A witness must sign a deposition at least three days before
the date of the hearing or the deposition shall be returned as an
unsigned deposition as provided by this subchapter.
(e) The officer taking a deposition shall enter on the
deposition:
(1) a change in form or substance that the witness desires to
make; and
(2) a statement of the reasons given by the witness for making
the change.
(f) After the deposition officer has entered any change and a
statement of reasons for the change on the deposition under
Subsection (e), the witness shall sign the deposition unless:
(1) the parties present at the taking of the deposition by
stipulation waive the signing;
(2) the witness is ill;
(3) the witness cannot be found; or
(4) the witness refuses to sign.
(g) If a deposition is not signed by the witness, the officer
shall sign it and state on the record the fact of the witness's
waiver, illness, absence, or refusal to sign and the reason
given, if any, for failure to sign. The deposition may then be
used as though signed by the witness.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.100. RETURN OF DEPOSITION TO STATE AGENCY. (a) A
deposition may be returned to the state agency before which the
contested case is pending by mail or by a party interested in
taking the deposition or another person.
(b) For a deposition returned by mail, the state agency shall:
(1) endorse on the deposition the fact that it was received from
the post office; and
(2) have it signed by the agency employee receiving the
deposition.
(c) For a deposition returned by means other than mail, the
person delivering it to the state agency shall execute an
affidavit before the agency stating that:
(1) the person received it from the hands of the officer before
whom it was taken;
(2) it has not been out of the person's possession since the
person received it; and
(3) it has not been altered.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.101. OPENING OF DEPOSITION BY STATE AGENCY EMPLOYEE.
(a) At the request of a party or the party's counsel, a
deposition in a contested case that is filed with a state agency
may be opened by an employee of the agency.
(b) A state agency employee who opens a deposition shall:
(1) endorse on the deposition the day and at whose request it
was opened; and
(2) sign the deposition.
(c) The deposition shall remain on file with the state agency
for the inspection of any party.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.102. USE OF DEPOSITION. A party is entitled to use a
deposition taken under this subchapter in the contested case
pending before the state agency without regard to whether a
cross-interrogatory has been propounded.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2001.103. EXPENSES OF WITNESS OR DEPONENT. (a) A witness
or deponent in a contested case who is not a party and who is
subpoenaed or otherwise compelled to attend a 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 a proceeding under this chapter is entitled to
receive:
(1) 10 cents for each mile, or a greater amount prescribed by
state agency rule, for going to and returning from the place of
the hearing or deposition if the place is more than 25 miles from
the person's place of residence and the person uses the person's
personally owned or leased motor vehicle for the travel;
(2) reimbursement of the transportation expenses of the witness
or deponent for going to and returning from the place where the
hearing is held or the deposition is taken, if the place is more
than 25 miles from the person's place of residence and the person
does not use the person's personally owned or leased motor
vehicle for the travel;
(3) reimbursement of the meal and lodging expenses of the
witness or deponent while going to and returning from the place
where the hearing is held or deposition is taken, if the place is
more than 25 miles from the person's place of residence; and
(4) $10, or a greater amount prescribed by state agency rule,
for each day or part of a day that the person is necessarily
present.
(b) Amounts required to be reimbursed or paid under this section
shall be reimbursed or paid by the party or agency at whose
request the witness appears or the deposition is taken. An agency
required to make a payment or reimbursement shall present to the
comptroller vouchers:
(1) sworn by the witness or deponent; and
(2) appr