Tepper Bill Makes Every Agency Rule Wait For A New Commission

The text as introduced · 3,522 words

89R1590 CJC-F

By: Tepper
H.B. No. 1259

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the State Agency Rules Review

Commission and the procedures by which state agencies adopt rules.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle C, Title 3, Government Code, is amended

by adding Chapter 330 to read as follows:

CHAPTER 330. STATE AGENCY RULES REVIEW COMMISSION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 330.0001. DEFINITIONS. In this chapter:

(1) "Commission" means the State Agency Rules Review

Commission.

(2) "Final rule" means a rule adopted by a state agency

that has not been approved by the commission. The term does not

include an emergency rule adopted under Section 2001.034.

(3) "Revised rule" means a final rule that has been

revised by the agency in response to an objection by the commission

to a prior version of the rule.

(4) "Rule" has the meaning assigned by Section

2001.003.

(5) "State agency" means a state officer, board,

commission, or department with statewide jurisdiction that makes

rules.

Sec. 330.0002. APPLICABILITY OF PUBLIC MEETING AND PUBLIC

INFORMATION LAW. The commission is subject to Chapters 551 and 552.

Sec. 330.0003. RULES. (a) The commission shall adopt rules

as necessary to carry out this chapter.

(b) Chapter 2001 applies to the commission.

Sec. 330.0004. SUNSET PROVISION. (a) The commission is

subject to a limited review under Chapter 325 (Texas Sunset Act) but

may not be abolished under that chapter. The limited review must

assess the commission's:

(1) governance;

(2) management;

(3) operating structure; and

(4) compliance with legislative requirements.

(b) The commission shall be reviewed as provided by this

section every 12th year after the year the commission is first

reviewed.

(c) The first review of the commission shall be completed

not later than December 31, 2030. This subsection expires August

31, 2031.

SUBCHAPTER B. ESTABLISHMENT AND GOVERNANCE

Sec. 330.0051. STATE AGENCY RULES REVIEW COMMISSION. The

State Agency Rules Review Commission is established as an agency of

the legislative branch of state government.

Sec. 330.0052. MEMBERSHIP. (a) The commission consists

of:

(1) four senators appointed by the lieutenant

governor;

(2) four members of the house of representatives

appointed by the speaker of the house of representatives; and

(3) three public members appointed by the governor.

(b) The governor, lieutenant governor, and speaker of the

house of representatives shall appoint a chair and two vice chairs

as the presiding officers of the commission. The positions of chair

and vice chairs must alternate every two years between the three

membership groups appointed by the governor, lieutenant governor,

and speaker of the house of representatives under Subsection (a).

The governor, lieutenant governor, and speaker of the house of

representatives shall each designate a presiding officer from their

appointed membership group. The chair and the vice chairs may not

be from the same membership group.

(c) A public member acts on behalf of the legislature when

participating on the commission in furtherance of the legislature's

duty to provide oversight of the process by which state agencies

adopt rules.

Sec. 330.0053. TERMS; VACANCY. (a) Members of the

commission serve two-year terms.

(b) Members appointed by the lieutenant governor and

speaker of the house of representatives serve terms staggered so

that the terms of half of the members appointed by the lieutenant

governor and the terms of half of the members appointed by the

speaker of the house of representatives expire September 1 of each

odd-numbered year. Members appointed by the governor serve terms

that expire September 1 of each odd-numbered year.

(c) If a vacancy occurs, the appropriate appointing

authority shall appoint a person to serve for the remainder of the

unexpired term in the same manner as the original appointment.

(d) If a member of the legislature appointed to the

commission ceases to be a member of the house of the legislature

from which the member was appointed, the member vacates the

member's place on the commission.

Sec. 330.0054. LIMITATION ON TERM OF SERVICE. (a) An

individual is not eligible for reappointment to another term or

part of a term on the commission:

(1) if the individual is a member of the legislature

and has served two terms on the commission; or

(2) if the member is a public member and has served

three terms on the commission.

(b) For purposes of this section, an individual is

considered to have served a term if the individual served more than

half of the term.

Sec. 330.0055. ELIGIBILITY PROVISIONS APPLICABLE TO PUBLIC

MEMBERS. An individual is not eligible for appointment to or

service on the commission as a public member if the individual or

the individual's spouse is:

(1) regulated by a state agency whose rules the

commission will review during the term for which the individual

would serve;

(2) employed by, participates in the management of, or

directly or indirectly has more than a 10 percent ownership

interest in a business entity or other organization regulated by a

state agency whose rules the commission will review during the term

for which the individual would serve; or

(3) required to register as a lobbyist under Chapter

305 because of the individual's activities for compensation on

behalf of a profession or entity related to the operation of an

agency whose rules are subject to review under this chapter.

Sec. 330.0056. REMOVAL OF PUBLIC MEMBER. (a) It is a

ground for removal of a public member appointed to the commission

that the member, for a reason provided under Section 330.0055:

(1) was not eligible for appointment to the commission

at the time of appointment; or

(2) is not eligible to continue to serve on the

commission.

(b) The validity of an action by the commission is not

affected by the fact that the action was taken when a ground for

removal of a public member of the commission existed.

Sec. 330.0057. QUORUM; ACTION BY COMMISSION. (a) Six

members of the commission constitute a quorum.

(b) A final action may not be taken or recommendation may

not be made by the commission unless the action or recommendation is

approved by a record vote of a majority of the members of the

commission.

Sec. 330.0058. EXPENSES. (a) A member of the commission is

entitled to reimbursement for actual and necessary expenses

incurred by the member in performing commission duties.

(b) A member of the commission who is a member of the

legislature is entitled to reimbursement from the appropriate fund

of the member's respective house.

(c) A public member of the commission is entitled to

reimbursement from money appropriated to the commission for that

purpose.

Sec. 330.0059. EXECUTIVE DIRECTOR; EMPLOYEES. (a) The

commission shall employ an executive director to act as the

executive head of the commission.

(b) The executive director shall employ persons necessary

to carry out this chapter using money appropriated to the

commission by the legislature for that purpose.

Sec. 330.0060. EMPLOYMENT OF STAFF BY MEMBER. (a) A member

of the commission may employ a staff to work for the member on

matters related to the member's service on the commission.

(b) Unless an appropriation is made to the commission

specifically for the purpose of paying staff employed by the

members of the commission, members are responsible for paying the

costs associated with the members' staff.

SUBCHAPTER C. REVIEW OF RULES; EFFECT OF REVIEW

Sec. 330.0101. REVIEW OF FINAL RULE BY COMMISSION. (a) A

state agency shall submit each final rule adopted by the agency to

the commission on the date the agency by order finally adopts the

rule.

(b) Not later than the 30th day after the date the

commission receives a rule from a state agency, the commission

shall determine whether:

(1) the agency that adopted the rule:

(A) has the authority to adopt the rule; and

(B) complied with Chapter 2001 when adopting the

rule; and

(2) the rule is:

(A) clear and unambiguous; and

(B) reasonably necessary to implement or

interpret an enactment of the legislature or a federal statute or

regulation.

(c) Not later than the fifth day after the date the

commission makes a determination under Subsection (b), the

commission shall:

(1) if the commission determines that the requirements

of Subsection (b) are satisfied:

(A) approve the rule; and

(B) notify the state agency that adopted the rule

and the secretary of state of the commission's approval of the rule;

or

(2) if the commission determines that the requirements

of Subsection (b) are not satisfied:

(A) return the rule to the agency; and

(B) provide a clear written statement of the

commission's determination, including an explanation of the

commission's objection to the rule.

(d) If a state agency submits to the commission a final rule

that is an amendment to an existing rule, the commission may

consider both the final rule and the rule amended by the final rule

when making a determination under Subsection (c).

(e) The commission shall make a determination required

under this section in an open meeting.

Sec. 330.0102. STATE AGENCY ACTION ON RETURNED RULE. Not

later than the 30th day after the date the commission returns a rule

to a state agency under Section 330.0101(c)(2), the agency shall:

(1) revise the rule to address the commission's

objection to the rule and submit the revised rule to the commission;

or

(2) submit a written response to the commission

stating that the agency declines to revise the final rule and will

withdraw the rule.

Sec. 330.0103. REVIEW OF REVISED RULE BY COMMISSION. (a)

Not later than the 30th day after the date a state agency submits a

revised rule to the commission under Section 330.0102, the

commission shall determine whether the revised rule:

(1) satisfies the requirements of Section

330.0101(b); and

(2) is substantially different from the final rule

adopted by the agency before the agency revised the final rule.

(b) Not later than the fifth day after the date the

commission makes a determination under Subsection (a), the

commission shall:

(1) if the commission determines that the revised rule

satisfies the requirements of Section 330.0101(b) and is not

substantially different from the final rule:

(A) approve the rule; and

(B) notify the state agency that adopted the rule

and the secretary of state of the commission's approval of the rule;

(2) if the commission determines that the revised rule

does not satisfy the requirements of Section 330.0101(b):

(A) return the rule to the agency for additional

revision in the manner prescribed by Section 330.0102; and

(B) provide a clear written statement of the

commission's determination, including an explanation of the

commission's objection to the rule; or

(3) if the commission determines that the revised rule

satisfies the requirements of Section 330.0101(b) but is

substantially different from the final rule:

(A) return the rule to the agency for action by

the agency under Section 330.0104; and

(B) provide a clear written statement of the

commission's determination.

(c) In determining whether a revised rule satisfies the

requirements of Section 330.0101(b) under this section, the

commission shall make the determination based solely on whether the

revised rule addresses the commission's objections to the adopted

rule provided to the state agency under Section 330.0101(c)(2)(B).

(d) The commission shall make a determination required

under this section in an open meeting.

Sec. 330.0104. STATE AGENCY ACTION ON REVISED RULE THAT IS

SUBSTANTIALLY DIFFERENT. (a) Not later than the 30th day after the

date the commission notifies a state agency that a revised rule is

substantially different from a final rule under Section

330.0103(b)(3), the agency shall:

(1) readopt the revised rule as a new rule following

the procedures prescribed by Subchapter B, Chapter 2001, including

the procedures contained in Sections 2001.029, 2001.030, and

2001.031, and submit the rule to the commission for an abbreviated

review under Section 330.0105; or

(2) withdraw the rule.

(b) This section does not prohibit a state agency from

making changes to a revised rule in response to information

received by the agency under Sections 2001.029, 2001.030, and

2001.031.

Sec. 330.0105. COMMISSION ACTION ON REVISED RULE THAT IS

SUBSTANTIALLY DIFFERENT. (a) Not later than the 30th day after the

date the commission receives a revised rule from a state agency

under Section 330.0104(a)(1), the commission shall:

(1) if the agency changed the revised rule under

Section 330.0104, determine whether the revised rule satisfies the

requirements of Section 330.0101(b); or

(2) if the agency did not change the revised rule under

Section 330.0104:

(A) approve the rule; and

(B) notify the state agency that adopted the rule

and the secretary of state of the commission's approval of the rule.

(b) Not later than the fifth day after the date the

commission makes a determination under Subsection (a)(1), the

commission shall:

(1) if the commission determines that the revised rule

satisfies the requirements of Section 330.0101(b):

(A) approve the rule; and

(B) notify the state agency that adopted the rule

and the secretary of state of the commission's approval of the rule;

or

(2) if the commission determines that the revised rule

does not satisfy the requirements of Section 330.0101(b):

(A) return the rule to the agency; and

(B) provide a clear written statement of the

commission's determination, including an explanation of the

commission's objection to the rule.

(c) Except as otherwise provided by this subsection, a

revised rule returned to a state agency by the commission under

Subsection (b)(2) may not take effect or again be revised by the

agency. If the agency is required to adopt a rule on the subject of

the revised rule by state or federal law, the agency shall adopt a

new rule on the subject in the manner prescribed by Chapter 2001 and

this chapter.

(d) The commission shall make a determination required

under this section in an open meeting.

Sec. 330.0106. STATE AGENCY APPEAL OF COMMISSION

DETERMINATION. (a) A state agency may appeal a determination of the

commission under this chapter.

(b) An appeal under this section shall be conducted by the

State Office of Administrative Hearings. The appeal is a contested

case under Chapter 2001.

Sec. 330.0107. EXPEDITED REVIEW PROCEDURE. The commission

may adopt a procedure providing for the expedited review of rules a

state agency is required to adopt by a certain date to comply with a

federal statute or regulation.

SUBCHAPTER D. DETERMINATION OF CERTAIN APPEALS

Sec. 330.0151. DETERMINATION OF APPEAL OF PETITION FOR

ADOPTION OF RULES. (a) Not later than the 30th day after the date

the commission receives an appeal under Section 2001.021(e), the

commission shall adopt a final order determining the appeal at an

open meeting of the commission.

(b) A final order adopted under this section must:

(1) grant the interested person's appeal and order the

state agency that is the subject of the appeal to initiate a

rulemaking proceeding under Chapter 2001 in response to the

interested person's petition; or

(2) deny the interested person's appeal and provide a

clear written statement of the reasons for the commission's denial.

SECTION 2. Subchapter F, Chapter 551, Government Code, is

amended by adding Section 551.1284 to read as follows:

Sec. 551.1284. STATE AGENCY RULES REVIEW COMMISSION:

INTERNET POSTING OF MEETING MATERIALS AND BROADCAST OF OPEN

MEETING. (a) In this section, "commission" has the meaning

assigned by Section 330.0001.

(b) The commission, for any regularly scheduled meeting of

the commission for which notice is required under this chapter,

shall:

(1) post as early as practicable in advance of the

meeting on the Internet website of the commission any written

agenda and related supplemental written materials provided to the

commission members in advance of the meeting by the commission for

the members' use during the meeting;

(2) broadcast the meeting, other than any portion of

the meeting closed to the public as authorized by law, over the

Internet in the manner prescribed by Section 551.128; and

(3) record the broadcast and make that recording

publicly available in an online archive located on the commission's

Internet website.

(c) Subsection (b)(1) does not apply to written materials

that the general counsel or another appropriate attorney for the

commission certifies are confidential or may be withheld from

public disclosure under Chapter 552.

(d) The commission is not required to comply with the

requirements of this section if compliance is not possible because

of an act of God, force majeure, or a similar cause not reasonably

within the commission's control.

(e) The commission shall maintain a publicly accessible

Internet website for the purpose of complying with this section.

SECTION 3. Section 2001.021, Government Code, is amended by

adding Subsections (e) and (f) to read as follows:

(e) If a state agency denies an interested person's petition

under this section, the interested person may appeal the decision

to the State Agency Rules Review Commission for determination under

Section 330.0151.

(f) Notwithstanding any other provision of this section, a

state agency shall initiate a rulemaking proceeding under this

subchapter if the State Agency Rules Review Commission adopts a

final order requiring the agency to do so under Section 330.0151.

SECTION 4. Section 2001.024, Government Code, is amended by

adding Subsection (e) to read as follows:

(e) In addition to any other information required by this

section, the notice for a rule that is subject to review by the

State Agency Rules Review Commission must state that the rule may

not take effect until the commission notifies the secretary of

state that the commission has approved the rule.

SECTION 5. Section 2001.036, Government Code, is amended by

amending Subsection (a) and adding Subsection (a-1) to read as

follows:

(a) A rule takes effect on the later of:

(1) the 20th day [ 20 days ] after the date on which the

rule [ it ] is filed in the office of the secretary of state ; or

(2) the date the State Agency Rules Review Commission

notifies the secretary of state that the commission has approved

the rule.

(a-1) Notwithstanding Subsection (a), a rule may take

effect on a date other than the date prescribed by that subsection

if [ , except that ]:

(1) [ if ] a later date is required by statute or

specified in the rule, in which case that [ the ] later date is the

effective date of the rule ;

(2) subject to applicable constitutional or statutory

provisions, [ if ] a state agency finds that an expedited effective

date for the rule is necessary because of imminent peril to the

public health, safety, or welfare, in which case the [ 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; or [ and ]

(3) [ if ] a federal statute or regulation requires

[ that ] a state agency to implement the [ a ] rule by a certain date,

in which case the rule is effective on the prescribed date , provided

that the date may not be earlier than the date prescribed by

Subsection (a)(2) .

SECTION 6. Section 141.008(a), Health and Safety Code, is

amended to read as follows:

(a) The executive commissioner may adopt rules to implement

this chapter. In adopting the rules the executive commissioner

shall comply with Subchapter B, Chapter 2001, Government Code,

including Section [ Sections 2001.032(b) and ] 2001.033, Government

Code. In developing the rules to be adopted by the executive

commissioner, the department shall consult parents, youth camp

operators, and appropriate public and private officials and

organizations.

SECTION 7. Section 2001.032, Government Code, is repealed.

SECTION 8. (a) Not later than November 1, 2025, the

governor, lieutenant governor, and speaker of the house of

representatives shall make their initial appointments to the State

Agency Rules Review Commission as required by Section 330.0052(a),

Government Code, as added by this Act.

(b) Notwithstanding Section 330.0053, Government Code, as

added by this Act, with respect to the initial members appointed

under Subsection (a) of this section:

(1) the three members appointed by the governor serve

an initial term that begins November 1, 2025, and expires September

1, 2027;

(2) two of the four members appointed by the

lieutenant governor and two of the four members appointed by the

speaker of the house of representatives serve an initial term that

begins November 1, 2025, and expires September 1, 2026; and

(3) two of the four members appointed by the

lieutenant governor and two of the four members appointed by the

speaker of the house of representatives serve an initial term that

begins November 1, 2025, and expires September 1, 2027.

SECTION 9. The changes in law made by this Act apply to a

rule adopted by a state agency on or after the effective date of

this Act. A rule adopted before the effective date of this Act is

governed by the law in effect on the date the rule is adopted, and

the former law is continued in effect for that purpose.

SECTION 10. (a) Except as provided by Subsection (b) of

this section, this Act takes effect January 1, 2026.

(b) Section 8 of this Act takes effect September 1, 2025.