discovery fights in permit cases go to the commission

The text as introduced · 355 words

By: Hagenbuch
S.B. No. 168

A BILL TO BE ENTITLED

AN ACT

relating to the certification of discovery issues to the Texas

Commission on Environmental Quality in contested cases referred to

the State Office of Administrative Hearings by the commission.

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

SECTION 1. Section 2003.047, Government Code, is amended by

amending Subsection (i) and adding Subsection (i-4) to read as

follows:

(i) The office and the commission jointly shall adopt rules

providing for certification to the commission of an issue that

involves an ultimate finding of compliance with or satisfaction of

a statutory standard the determination of which is committed to the

discretion or judgment of the commission by law. Each agency shall

publish the jointly adopted rules. The rules must :

(1) address, at a minimum, the issues that are

appropriate for certification and the procedure to be used in

certifying the issue ;

(2) provide that on a motion made by a party, the

administrative law judge shall promptly certify to the commission

any issue relating to the scope of discovery under Subsection (g);

and

(3) provide that certification of an issue expires by

operation of law if the certified issue is not set for the

commission's consideration within 15 days after the date the

administrative law judge files with the chief clerk a request for

the commission to answer the certified issue . [ Each agency shall

publish the jointly adopted rules. ]

(i-4) Following certification to the commission of an issue

relating to the scope of discovery under Subsection (g), the

administrative law judge may abate the deadline specified by

Subsection (e-2) until the first business day following the earlier

of:

(1) the commission's consideration of the certified

issue; or

(2) the expiration by operation of law of the issue's

certification.

SECTION 2. This Act takes effect immediately if it receives

a vote of two-thirds of all the members elected to each house, as

provided by Section 39, Article III, Texas Constitution. If this

Act does not receive the vote necessary for immediate effect, this

Act takes effect September 1, 2027.