CHAPTER 2006. AGENCY ACTIONS AFFECTING SMALL BUSINESSES
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE A. ADMINISTRATIVE PROCEDURE AND PRACTICE
CHAPTER 2006. AGENCY ACTIONS AFFECTING SMALL BUSINESSES
SUBCHAPTER A. ADOPTION OF RULES
Sec. 2006.001. DEFINITIONS. In this subchapter:
(1) "Micro-business" means a legal entity, including a
corporation, partnership, or sole proprietorship, that:
(A) is formed for the purpose of making a profit;
(B) is independently owned and operated; and
(C) has not more than 20 employees.
(2) "Small business" means a legal entity, including a
corporation, partnership, or sole proprietorship, that:
(A) is formed for the purpose of making a profit;
(B) is independently owned and operated; and
(C) has fewer than 100 employees or less than $6 million in
annual gross receipts.
(3) "State agency" means a department, board, bureau,
commission, division, office, council, or other agency of the
state and includes an officer who is authorized by law to
determine contested cases.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1999, 76th Leg., ch. 558, Sec. 5, eff.
Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1270, Sec. 2, eff. October 1, 2007.
Sec. 2006.002. ADOPTION OF RULES WITH ADVERSE ECONOMIC EFFECT.
(a) A state agency considering adoption of a rule that would
have an adverse economic effect on small businesses or
micro-businesses shall reduce that effect if doing so is legal
and feasible considering the purpose of the statute under which
the rule is to be adopted.
(b) To reduce an adverse effect on small businesses, an agency
may:
(1) establish separate compliance or reporting requirements for
small businesses;
(2) use performance standards in place of design standards for
small businesses; or
(3) exempt small businesses from all or part of the rule.
(c) Before adopting a rule that may have an adverse economic
effect on small businesses, a state agency shall prepare:
(1) an economic impact statement that estimates the number of
small businesses subject to the proposed rule, projects the
economic impact of the rule on small businesses, and describes
alternative methods of achieving the purpose of the proposed
rule; and
(2) a regulatory flexibility analysis that includes the agency's
consideration of alternative methods of achieving the purpose of
the proposed rule.
(c-1) The analysis under Subsection (c) shall consider, if
consistent with the health, safety, and environmental and
economic welfare of the state, using regulatory methods that will
accomplish the objectives of applicable rules while minimizing
adverse impacts on small businesses. The state agency must
include in the analysis several proposed methods of reducing the
adverse impact of a proposed rule on a small business.
(d) The agency shall include the economic impact statement and
regulatory flexibility analysis as part of the notice of the
proposed rule that the agency files with the secretary of state
for publication in the Texas Register and shall provide copies to
the standing committee of each house of the legislature that is
charged with reviewing the proposed rule.
(e) This section does not apply to a rule adopted under Title 2,
Tax Code.
(f) To reduce an adverse effect of rules on micro-businesses, a
state agency shall adopt provisions concerning micro-businesses
that are uniform with those outlined in Subsections (b)-(d) for
small businesses.
(g) The attorney general, in consultation with the comptroller,
shall prepare guidelines to assist a state agency:
(1) in determining a proposed rule's potential adverse economic
effects on small businesses; and
(2) in identifying and evaluating alternative methods of
achieving the purpose of a proposed rule.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 1041, Sec. 50, eff.
Sept. 1, 1997; Acts 1999, 76th Leg., ch. 558, Sec. 6, eff. Sept.
1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1270, Sec. 3, eff. October 1, 2007.
SUBCHAPTER B. RECOVERY OF COURT COSTS AND ATTORNEY FEES
Sec. 2006.011. DEFINITIONS. In this subchapter:
(1) "Groundless" means having no basis in law or fact.
(2) "Small business" means a legal entity, including a
corporation, partnership, or sole proprietorship that:
(A) is formed for the purpose of making a profit;
(B) is independently owned and operated;
(C) is not a publicly held corporation; and
(D) has fewer than 100 employees or less than $1 million in
annual gross receipts at the end of the fiscal year preceding the
year of the filing of an administrative adjudicatory proceeding
or civil action in which the entity is seeking recovery under
this subchapter.
(3) "State agency" means a board, commission, department, or
office that:
(A) is in the executive branch of state government;
(B) was created by the constitution or a statute of this state;
and
(C) has statewide jurisdiction.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2006.012. EXCEPTIONS. This subchapter does not apply to a
proceeding or action that is:
(1) filed before September 1, 1987; or
(2) brought under:
(A) Subchapter E, Chapter 17, Business & Commerce Code
(Deceptive Trade Practices-Consumer Protection Act); or
(B) Chapter 21, Insurance Code.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2006.013. REQUIREMENTS FOR RECOVERY. (a) In an
administrative adjudicatory proceeding or a civil action
resulting from a complaint issued by a state agency against a
small business under the agency's administrative or regulatory
functions, the small business may be awarded reasonable attorney
fees and court costs if:
(1) it is a small business at the time it becomes a party to the
proceeding or action;
(2) it prevails in the proceeding or action; and
(3) the proceeding or action was groundless and brought:
(A) in bad faith; or
(B) for purposes of harassment.
(b) For purposes of this section, a small business prevails in a
proceeding or action if there is not:
(1) an adjudication, stipulation, or acceptance of liability; or
(2) a determination of noncompliance, violation, infringement,
deficiency, or breach on the part of the small business.
(c) A small business may not recover under this subchapter if
the parties have executed a settlement agreement that, while not
stipulating liability or violation, requires the small business
to take corrective action or pay a monetary sum.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2006.014. MOTION FOR RECOVERY. (a) To recover under this
subchapter, a small business, not later than the 30th day after
the date of the filing of the administrative adjudicatory
proceeding or civil action, must file a written motion that:
(1) alleges that the proceeding or action was groundless and
brought:
(A) in bad faith; or
(B) for purposes of harassment;
(2) states the facts that justify the small business's claim;
and
(3) states that if the claim is dismissed or judgment is awarded
to the small business, the small business will seek recovery of
attorney fees and court costs.
(b) A small business may not recover attorney fees and court
costs under this subchapter if, not later than the 30th day after
the date the small business gives notice that it has filed a
motion under Subsection (a), the state agency:
(1) amends the pleadings so that the small business that has
filed the motion is no longer a party to the proceeding or
action; or
(2) dismisses the proceeding or action.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2006.015. DETERMINATION OF CLAIM. (a) The hearings
officer in an administrative adjudicatory proceeding or the court
in a civil action shall determine whether the proceeding or
action is groundless and brought:
(1) in bad faith; or
(2) for purposes of harassment.
(b) In making the determination, the hearings officer or court
shall consider:
(1) the multiplicity of parties;
(2) the complexity of the claims and defenses;
(3) the length of time available to the agency to investigate
and conduct discovery; and
(4) affidavits, depositions, and any other relevant matters.
(c) In making a determination, a hearings officer or a court may
not consider the amount of damages, civil penalties, fines,
taxes, or other monetary recovery sought by the state agency.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.
Sec. 2006.016. EFFECT OF DETERMINATION OR ORDER. A
determination made or order issued under this subchapter is not
grounds for any liability, sanction, or grievance except as
provided by this subchapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,
1993.