ADMINISTRATIVE HEARINGS BEFORE  GROUNDWATER CONSERVATION           DISTRICTS                     J.D. Head                ...
SUBCHAPTER M OF CHAPTER 36,              TEX. WATER CODEADDRESSES NOTICE AND HEARING PROCEDURES FORPERMIT AND PERMIT AMEND...
CONTESTED CASESBY RULE, A DISTRICT SHALL:(1) DEFINE UNDER WHICH CIRCUMSTANCES AN    APPLICATION IS CONSIDERED CONTESTED, A...
GCD CAN PROVIDE, BY RULE, THAT CERTAIN PERMITS OR PERMIT AMENDMENTS DO NOT           REQUIRE A HEARING- GENERAL MANAGER (G...
TWO TYPES OF PERMIT HEARINGS- UNCONTESTED- CONTESTED
§ 36.403 – GM OR BOARD MAY SCHEDULE A   HEARING ON A PERMIT APPLICATIONMAY SCHEDULE MORE THAN ONEAPPLICATION FOR CONSIDERA...
§ 36.404 – NOTICENOTICE OF HEARING INCLUDES:-   NAME OF APPLICANT-   ADDRESS AND LOCATION OF WELL-   BRIEF EXPLANATION OF ...
§ 36.406 - HEARING PROCEDURES- HEARING MUST BE CONDUCTED BY (1) QUORUM OF THE BOARD; OR (2) INDIVIDUAL WHOM BOARD HAS     ...
§ 36.406 - POWERS OF PRESIDING OFFICER- CONVENE HEARING- SET ADDITIONAL HEARING DATES- DESIGNATE PARTIES REGARDING A CONTE...
§ 36.406 - POWERS OF PRESIDING OFFICER – CONT’DDISTRICT MAY ALLOW ANYONE TO COMMENT ONUNCONTESTED APPLICATIONMAY ALLOW WRI...
§ 36.408 – RECORDING OF HEARING- IF CONTESTED HEARING – A PARTY CAN  REQUEST A COURT REPORTER TRANSCRIBE  THE HEARING – PR...
§ 36.410 – THE REPORT-   PRESIDING OFFICER SUBMITS A REPORT TO BOARD NOT LATER    THAN 30TH DAY AFTER HEARING CONCLUDEDREP...
§ 36.412 – REQUEST FOR REHEARING OR FINDINGS AND                         CONCLUSIONSAN APPLICANT IN A CONTESTED OR UNCONTE...
SENATE BILL 693 – SOAH HEARINGSRELATES TO PERMIT HEARINGS CONDUCTED BY AGCD AND STATE OFFICE OF ADMINISTRATIVEHEARINGS (SO...
SENATE BILL 693 – SOAH       HEARING (CONT’D)KEY POINTS:-   GCD MAY ADOPT RULES FOR HEARINGS THAT ARE    CONSISTENT WITH P...
SENATE BILL 693 – SOAH HEARINGS (CONT’D)PARTY REQUESTING THE SOAH HEARING PAYS COSTS ASSOCIATEDWITH CONTRACT FOR HEARING –...
GONZALES COUNTY UNDERGROUND WATER CONSERVATION DISTRICT                     ADMINISTRATIVE HEARINGS-    SAN ANTONIO WATER ...
SAWS HEARING INVOLVED COMPLEX EVIDENCE ON DRAWDOWN MODELSPRIMARY ISSUES:- WOULD DRAWDOWN FROM SAWS PUMPING CAUSE  MORE THA...
- GCUWCD -  3 EXPORTER PERMIT APPLICATIONS        CURRENTLY PENDING- CANYON REGIONAL WATER  AUTHORITY – 4,400 ACRE FEET- H...
ALL THREE APPLICATIONS PROTESTED- APPLICANTS ARE PROTESTING EACH OTHERS  PERMITS- NUMEROUS CITIZENS OPPOSE PERMITS- BOARD ...
BOARD VOTED ON INDIVIDUAL PARTYSTATUS FOR EACH APPLICATION – BASEDON HEARINGS EXAMINER’SRECOMMENDATIONS- ALL APPLICATIONS ...
OBSERVATIONS, ISSUES AND RECOMMENDATIONS ON              ADMINISTRATIVE HEARINGS- IF GM IS AUTOMATIC PARTY IN HOTLY CONTES...
OBSERVATIONS, ISSUES AND RECOMMENDATIONS ON         ADMINISTRATIVE HEARINGS (CONT’D)- CONSIDER HAVING PUBLIC NOTICE SPELL ...
“EX PARTE” COMMUNICATIONMEANS A COMMUNICATIONWITH A DECISION MAKER BYONE PARTY TO A MATTERWITHOUT NOTICE TO THEOTHER PARTY...
RULE 3.05 OF THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT“MAINTAINING IMPARTIALITY OF TRIBUNALA LAWYER SHALL NOT:(...
RULE 1.10(f) PROVIDES THAT THETERM “MATTER” DOES NOTINCLUDE REGULATION-MAKING ORRULE-MAKING PROCEEDINGS ORASSIGNMENTS, BUT...
CHAPTER 36 TEX. WATER CODE DOESNOT CONTAIN ANY EXPLICITPROHIBITION OF EX PARTECOMMUNICATIONSBUTCASES HEARD BY STATE OFFICE...
SECTION 2001.061(a), TEX. GOV’T CODE PROVIDES:(a) UNLESS REQUIRED FOR THE DISPOSITION OF AN EX PARTE MATTERAUTHORIZED BY L...
THE EX PARTE PROHIBITIONAPPLIES TO COMMUNICATIONWITH THE ULTIMATE DECISIONMAKER AND HE/SHE WHOMAKES FINDINGS OF FACT ANDCO...
THE RULE 3.05 EX PARTE PROHIBITIONAPPLIES TO LAWYERSIS APPLICABLE TO ANY PENDING MATTERBEFORE A GCD BOARD OR SOAHTHE GOV’T...
MANY GCD PROCEDURAL RULESSPECIFICALLY PROHIBITING EX PARTECOMMUNICATIONS IN CONTESTED CASEHEARINGS BEFORE THE BOARDRULES T...
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J.D. Head, Administrative Hearings before Groundwater Conservation Districts

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J.D. Head, Administrative Hearings before Groundwater Conservation Districts

  1. 1. ADMINISTRATIVE HEARINGS BEFORE GROUNDWATER CONSERVATION DISTRICTS J.D. Head Managing Partner Fritz, Byrne, Head & Harrison, PLLC 98 San Jacinto Blvd., Suite 2000 Austin, TX 78701 TEL: 512/476-2020 E-MAIL: jdhead@fbhh.com
  2. 2. SUBCHAPTER M OF CHAPTER 36, TEX. WATER CODEADDRESSES NOTICE AND HEARING PROCEDURES FORPERMIT AND PERMIT AMENDMENT APPLICATIONS- ADDED TO CHAPTER 36 IN 2005 BY HB 1763- SOMEWHAT CONFUSING BECAUSE OF FAILURE TO CLEARLY DISTINGUISH BETWEEN PROCEDURES FOR CONTESTED AND UNCONTESTED HEARINGS§ 36.415 – GROUNDWATER CONSERVATION DISTRICTS(GCDs) WERE REQUIRED TO ADOPT PROCEDURAL RULESTO IMPLEMENT SUBCHAPTER MGCDs MAY ADOPT NOTICE AND HEARING PROCEDURES INADDITION TO THOSE PROVIDED IN STATUTE
  3. 3. CONTESTED CASESBY RULE, A DISTRICT SHALL:(1) DEFINE UNDER WHICH CIRCUMSTANCES AN APPLICATION IS CONSIDERED CONTESTED, AND(2) LIMIT PARTICIPATION IN A HEARING ON A CONTESTED APPLICATION TO PERSONS WHO HAVE A PERSONAL JUSTICIABLE INTEREST RELATED TO A LEGAL RIGHT, DUTY, PRIVILEGE, POWER OR ECONOMIC INTEREST THAT IS WITHIN THE DISTRICT’S REGULATORY AUTHORITY AND AFFECTED BY A PERMIT OR PERMIT AMENDMENT APPLICATION – NOT INCLUDING PERSONS WHO HAVE AN INTEREST COMMON TO MEMBERS OF GENERAL PUBLIC
  4. 4. GCD CAN PROVIDE, BY RULE, THAT CERTAIN PERMITS OR PERMIT AMENDMENTS DO NOT REQUIRE A HEARING- GENERAL MANAGER (GM) MAY ACT ON APPLICATION, OR- BOARD ACTS ON APPLICATION AT REGULAR BOARD MEETING§ 36.114
  5. 5. TWO TYPES OF PERMIT HEARINGS- UNCONTESTED- CONTESTED
  6. 6. § 36.403 – GM OR BOARD MAY SCHEDULE A HEARING ON A PERMIT APPLICATIONMAY SCHEDULE MORE THAN ONEAPPLICATION FOR CONSIDERATION AT AHEARING – VERY COMMON IN ACTIVEGCDsHEARING MAY BE HELD IN CONJUNCTIONWITH REGULARLY SCHEDULED BOARDMEETING – LIMITS AMOUNT OF TIME AGCD BOARD MUST MEET
  7. 7. § 36.404 – NOTICENOTICE OF HEARING INCLUDES:- NAME OF APPLICANT- ADDRESS AND LOCATION OF WELL- BRIEF EXPLANATION OF PROPOSED PERMIT – AMOUNT OF GROUNDWATER REQUESTED AND PURPOSE OF USE- TIME, DATE AND LOCATION OF HEARINGNO LATER THAN THE 10TH DAY BEFORE HEARING:- POST NOTICE AT DISTRICT OFFICE- PROVIDE NOTICE TO COUNTY CLERK FOR EACH COUNTY IN DISTRICT- PROVIDE NOTICE BY MAIL TO: - APPLICANT - ANY PERSON WHO HAS REQUESTED NOTICE - ANY OTHER PERSON ENTITLED TO NOTICE UNDER DISTRICT RULES
  8. 8. § 36.406 - HEARING PROCEDURES- HEARING MUST BE CONDUCTED BY (1) QUORUM OF THE BOARD; OR (2) INDIVIDUAL WHOM BOARD HAS DELEGATED IN WRITING RESPONSIBILITY TO PRESIDE AS HEARINGS EXAMINERBOARD PRESIDENT OR HEARINGS EXAMINERSHALL SERVE AS PRESIDING OFFICER
  9. 9. § 36.406 - POWERS OF PRESIDING OFFICER- CONVENE HEARING- SET ADDITIONAL HEARING DATES- DESIGNATE PARTIES REGARDING A CONTESTED APPLICATION- ESTABLISH ORDER FOR PRESENTATION OF EVIDENCE- ADMINISTER OATHS- EXAMINE PERSONS PRESENTING TESTIMONY- ENSURE THAT INFORMATION AND TESTIMONY ARE INTRODUCED AS CONVENIENTLY AND EXPEDITIOUSLY AS POSSIBLE WITHOUT PREJUDICING RIGHTS OF PARTIES- PRESCRIBE REASONABLE TIME LIMITS FOR TESTIMONY AND PRESENTATION OF EVIDENCE (VERY GOOD IDEA IN COMPLEX, MULTI-PARTY HEARING)
  10. 10. § 36.406 - POWERS OF PRESIDING OFFICER – CONT’DDISTRICT MAY ALLOW ANYONE TO COMMENT ONUNCONTESTED APPLICATIONMAY ALLOW WRITTEN SWORN TESTIMONYMAY EXCLUDE WRITTEN TESTIMONY IF NO OPPORTUNITYFOR CROSS EXAMINATION BY PARTY TO CONTESTEDHEARINGMAY ALLOW TESTIMONY TO BE SUPPLEMENTED WITHNOTICE TO ALL COMMENTERS AND PARTIES - PERSONSMAY RESPOND TO SUPPLEMENTAL TESTIMONYMAY ORDER PARTIES TO CONTESTED CASE HEARING TOMEDIATION
  11. 11. § 36.408 – RECORDING OF HEARING- IF CONTESTED HEARING – A PARTY CAN REQUEST A COURT REPORTER TRANSCRIBE THE HEARING – PRESIDING OFFICER CAN ASSESS COSTS- OTHERWISE – PRESIDING OFFICER SHALL KEEP A RECORD OF EACH HEARING IN FORM OF VIDEO, AUDIO OR A COURT REPORTER- IN UNCONTESTED HEARING, PRESIDING OFFICER MAY SUBSTITUTE MINUTES OR § 36.410 REPORT AS METHOD OF RECORDING
  12. 12. § 36.410 – THE REPORT- PRESIDING OFFICER SUBMITS A REPORT TO BOARD NOT LATER THAN 30TH DAY AFTER HEARING CONCLUDEDREPORT INCLUDES:- SUMMARY OF SUBJECT MATTER OF HEARING- SUMMARY OF EVIDENCE OR PUBLIC COMMENTS RECEIVED- PRESIDING OFFICER’S RECOMMENDATIONAPPLICANT, PARTIES OR COMMENTERS MAY SUBMIT WRITTENEXCEPTIONS TO THE BOARDIF HEARING CONDUCTED BY A QUORUM AND IF PRESIDINGOFFICER HAS RECORD OF HEARING, THE PRESIDING OFFICERSHALL DECIDE WHETHER TO PREPARE A REPORT TO THE BOARDBOARD ACTION – NO LATER THAN 60 DAYS AFTER DATE FINALHEARING IS CONCLUDED
  13. 13. § 36.412 – REQUEST FOR REHEARING OR FINDINGS AND CONCLUSIONSAN APPLICANT IN A CONTESTED OR UNCONTESTED HEARING ORA PARTY TO A CONTESTED CASE MAY ADMINISTRATIVELYAPPEAL THE DECISION BY REQUESTING FINDINGS ANDCONCLUSIONS OR A REHEARING BEFORE THE BOARDBOARD MUST MAKE WRITTEN FINDINGS AND CONCLUSIONS, IFTIMELY REQUEST FILED, WITHIN 35 DAYS OF REQUEST.A PERSON WHO RECEIVES A CERTIFIED COPY OF FINDINGS ANDCONCLUSIONS MAY REQUEST A REHEARING NOT LATER THAN20TH DAY AFTER BOARD ISSUES FINDINGS AND CONCLUSIONSIF REQUEST GRANTED, BOARD SHALL SCHEDULE HEARINGWITHING 45 DAYS AFTER REQUEST GRANTEDREQUEST OVERRULED BY OPERATION OF LAW 91 DAYS AFTERDATE OF REQUEST
  14. 14. SENATE BILL 693 – SOAH HEARINGSRELATES TO PERMIT HEARINGS CONDUCTED BY AGCD AND STATE OFFICE OF ADMINISTRATIVEHEARINGS (SOAH)AUTHOR’S INTENT:- PROVIDE OBJECTIVITY AND BALANCE IN PERMITTING PROCESS- PROVIDE DISTRICTS WITH NEUTRAL 3RD PARTY EXAMINERS BETTER EQUIPPED TO HANDLE ADMINISTRATIVE ISSUES ASSOCIATED WITH CONTESTED CASE HEARINGS- MORE ECONOMICAL FOR GCDs
  15. 15. SENATE BILL 693 – SOAH HEARING (CONT’D)KEY POINTS:- GCD MAY ADOPT RULES FOR HEARINGS THAT ARE CONSISTENT WITH PROCEDURAL RULES OF STATE OFFICE OF ADMINISTRATIVE HEARINGS- IF APPLICANT OR OTHER PARTY TO CONTESTED CASE REQUESTS A HEARING BEFORE SOAH, GCD MUST CONTRACT WITH SOAH TO CONDUCT HEARING- REQUEST FOR HEARING BEFORE SOAH MUST BE MADE NOT LATER THAN 14 DAYS BEFORE DATE OF EVIDENTIARY HEARING – OR OTHER DEADLINE BY GCD RULE- GCD CHOSES LOCATION OF SOAH HEARING – CAN BE IN AUSTIN OR IN DISTRICT
  16. 16. SENATE BILL 693 – SOAH HEARINGS (CONT’D)PARTY REQUESTING THE SOAH HEARING PAYS COSTS ASSOCIATEDWITH CONTRACT FOR HEARING – MONEY DEPOSITED WITH GCDPRIOR TO HEARING – EXCESS MONEY REFUNDED.IF SOAH PRESIDES OVER HEARING, GCD BOARD MAKES FINALDECISION BASED ON SOAH’S PROPOSAL FOR DECISION. (BOARDNOT REQUIRED TO ADOPT SOAH RECOMMENDATION.)GCDs SHALL ADOPT RULES TO:(1) ESTABLISH A PROCEDURE FOR PRELIMINARY ANDEVIDENTIARY HEARINGS.(2) ALLOW THE PRESIDING OFFICER, AT THE PRELIMINARYHEARING, TO DETERMINE A PARTY’S RIGHTS TO PARTICIPATE IN AHEARING.(3) SET A DEADLINE FOR A PARTY TO FILE A REQUEST TO REFER ACONTESTED CASE TO SOAH.
  17. 17. GONZALES COUNTY UNDERGROUND WATER CONSERVATION DISTRICT ADMINISTRATIVE HEARINGS- SAN ANTONIO WATER SYSTEM PERMIT HEARING - GM OBJECTED TO PERMITS - BOARD DESIGNATED HEARINGS EXAMINER – SAWS PAID COST OF HEARINGS EXAMINER- HEARINGS EXAMINER CONDUCTED PARTY STATUS HEARING AND FULL BOARD VOTED ON PARTIES- PARTIES INCLUDED GM, SSLGC, CRWA, WPA, CITY OF NIXON, CITY OF SMILEY- HEARINGS EXAMINER CONVENED PREHEARING CONFERENCE WITH ALL PARTIES TO SET DISCOVERY SCHEDULE- MULTIPLE MEDIATION SESSIONS- ALL PARTIES FILED WRITTEN TESTIMONY- NUMEROUS DEPOSITIONS- HEARINGS EXAMINER PRESIDED OVER 6 DAY HEARING- 13 WITNESSES- 1,500 PAGES OF HEARING TRANSCRIPT- 2,500 PAGES OF EXHIBITS AT HEARING- 270 PAGES OF BRIEFING- 175 PAGES OF HEARINGS OFFICER REPORT- BOARD VOTED 3 TO 2 TO ISSUE PERMITS TO SAWS- BOARD DECISION IS ON APPEAL- 13TH COURT OF APPEALS DECISION PENDING
  18. 18. SAWS HEARING INVOLVED COMPLEX EVIDENCE ON DRAWDOWN MODELSPRIMARY ISSUES:- WOULD DRAWDOWN FROM SAWS PUMPING CAUSE MORE THAN 100 FEET OF DRAWDOWN IN CARRIZO AQUIFER- WOULD SAWS PUMPING IMPACT EXISTING WELLS- WAS THERE A NEED FOR WATER IN SAWS SERVICE AREA* TESTIMONY ON DRAWDOWN MODELS WAS LENGTHY AND MIND NUMBING
  19. 19. - GCUWCD - 3 EXPORTER PERMIT APPLICATIONS CURRENTLY PENDING- CANYON REGIONAL WATER AUTHORITY – 4,400 ACRE FEET- HAYS CALDWELL PUBLIC UTILITY AGENCY – 10,300 ACRE FEET- TEXAS WATER ALLIANCE – 15,000 ACRE FEET
  20. 20. ALL THREE APPLICATIONS PROTESTED- APPLICANTS ARE PROTESTING EACH OTHERS PERMITS- NUMEROUS CITIZENS OPPOSE PERMITS- BOARD DESIGNATED OUTSIDE HEARINGS EXAMINER- GM DID NOT OPPOSE PERMITS OR SEEK PARTY STATUS- HEARING ON PARTY STATUS BEFORE BOARD CONVENED AT 1 P.M. AND ENDED AT 11:30 P.M. – OVER 10 HOURS!- COURT REPORTER LEFT BEFORE END OF HEARING
  21. 21. BOARD VOTED ON INDIVIDUAL PARTYSTATUS FOR EACH APPLICATION – BASEDON HEARINGS EXAMINER’SRECOMMENDATIONS- ALL APPLICATIONS CURRENTLY IN MEDIATION- HEARINGS EXAMINER WILL CONDUCT HEARINGS AND PREPARE REPORT TO BOARD
  22. 22. OBSERVATIONS, ISSUES AND RECOMMENDATIONS ON ADMINISTRATIVE HEARINGS- IF GM IS AUTOMATIC PARTY IN HOTLY CONTESTED CASE, THIS CAN BE EXTREMELY TIME CONSUMING FOR GM- HAVING A GCD BOARD BEING A PROTESTING PARTY IS VERY PROBLEMATIC- IF QUORUM OF BOARD HEARS A CONTESTED CASE, THE PRESIDING OFFICER SHOULD GET LEGAL ASSISTANCE- IF BOARD DENIES PERMIT WITHOUT A HEARING OFFICER’S REPORT, IT MAY HAVE TO PREPARE FINDINGS AND CONCLUSIONS JUSTIFYING ITS ACTION
  23. 23. OBSERVATIONS, ISSUES AND RECOMMENDATIONS ON ADMINISTRATIVE HEARINGS (CONT’D)- CONSIDER HAVING PUBLIC NOTICE SPELL OUT HOW TO REQUEST A CONTESTED CASE HEARING- SEND PARTIES TO MEDIATION!!- GCDs RULES REGARDING HEARINGS RUN THE GAMUT FROM NON-COMPLIANCE WITH SUBCHAPTER M OF CHAPTER 36 TO VERY DETAILED PROCEDURES- ADOPT NEW RULES TO IMPLEMENT SB 693- CONSIDER ADOPTING RULE INDICATING WHEN MATTER BECOMES CONTESTED WITH RESPECT TO EX PARTE COMMUNICATIONS
  24. 24. “EX PARTE” COMMUNICATIONMEANS A COMMUNICATIONWITH A DECISION MAKER BYONE PARTY TO A MATTERWITHOUT NOTICE TO THEOTHER PARTY OR PARTIES TOTHE MATTER
  25. 25. RULE 3.05 OF THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT“MAINTAINING IMPARTIALITY OF TRIBUNALA LAWYER SHALL NOT:(a) EXCEPT AS OTHERWISE PERMITTED BY LAW AND NOT PROHIBITED BY APPLICABLE RULES OF PRACTICE OR PROCEDURE, COMMUNICATE OR CAUSE ANOTHER TO COMMUNICATE EX PARTE WITH A TRIBUNAL FOR THE PURPOSE OF INFLUENCING THAT ENTITY OR PERSON CONCERNING A PENDING MATTER OTHER THAN: (1) IN THE COURSE OF OFFICIAL PROCEEDINGS IN THE CAUSE; (2) IN WRITING IF HE PROMPTLY DELIVERS A COPY OF THE WRITING TO OPPOSING COUNSEL OR THE ADVERSE PARTY IF HE IS NOT REPRESENTED BY A LAWYER; (3) ORALLY UPON ADEQUATE NOTICE TO OPPOSING COUNSEL OR TO THE ADVERSE PARTY IF HE IS NOT REPRESENTED BY A LAWYER.(b) FOR PURPOSES OF THIS RULE: (1) “MATTER” HAS THE MEANINGS ASCRIBED BY IT IN RULE 1.10(f) OF THESE RULES; (2) A MATTER IS “PENDING” BEFORE A PARTICULAR TRIBUNAL EITHER WHEN THAT ENTITY HAS BEEN SELECTED TO DETERMINE THE MATTER OR WHEN IT IS REASONABLY FORESEEABLE THAT THAT ENTITY WILL BE SO SELECTED.
  26. 26. RULE 1.10(f) PROVIDES THAT THETERM “MATTER” DOES NOTINCLUDE REGULATION-MAKING ORRULE-MAKING PROCEEDINGS ORASSIGNMENTS, BUT THE TERMINCLUDES THE FOLLOWING: (1) ANY ADJUDICATORYPROCEEDING, APPLICATION,REQUEST FOR A RULING OR OTHERDETERMINATION . . . INVOLVING ASPECIFIC PARTY OR PARTIES
  27. 27. CHAPTER 36 TEX. WATER CODE DOESNOT CONTAIN ANY EXPLICITPROHIBITION OF EX PARTECOMMUNICATIONSBUTCASES HEARD BY STATE OFFICE OFADMINISTRATIVE HEARINGS ARECONTROLLED BY CERTAINSECTIONS OF CHAPTER 2001, GOV’TCODE – INCLUDING A PROHIBITIONOF EX PARTE COMMUNICATIONS.
  28. 28. SECTION 2001.061(a), TEX. GOV’T CODE PROVIDES:(a) UNLESS REQUIRED FOR THE DISPOSITION OF AN EX PARTE MATTERAUTHORIZED BY LAW, A MEMBER OR EMPLOYEE OF A STATE AGENCYASSIGNED TO RENDER A DECISION OR TO MAKE FINDINGS OF FACTAND CONCLUSIONS OF LAW IN A CONTESTED CASE MAY NOTDIRECTLY OR INDIRECTLY COMMUNICATE IN CONNECTION WITH ANISSUE OF FACT OR LAW WITH A STATE AGENCY, PERSON, PARTY, OR AREPRESENTATIVE OF THOSE ENTITIES, EXCEPT ON NOTICE ANDOPPORTUNITY FOR EACH PARTY TO PARTICIPATE.(b) A STATE AGENCY MEMBER MAY COMMUNICATE EX PARTE WITHANOTHER MEMBER OF THE AGENCY UNLESS PROHIBITED BY OTHERLAW.(c) UNDER SECTION 2001.090, A MEMBER OR EMPLOYEE OF A STATEAGENCY ASSIGNED TO RENDER A DECISION OR TO MAKE FINDINGS OFFACT AND CONCLUSIONS OF LAW IN A CONTESTED CASE MAYCOMMUNICATE EX PARTE WITH AN AGENCY EMPLOYEE WHO HASNOT PARTICIPATED IN A HEARING IN THE CASE FOR THE PURPOSE OFUSING THE SPECIAL SKILLS OR KNOWLEDGE OF THE AGENCY AND ITSSTAFF IN EVALUATING THE EVIDENCE.THIS PROVISION GENERALLY PROHIBITS CERTAIN EX PARTECOMMUNICATIONS IN CONNECTION WITH AN ISSUE OF FACT OR LAWIN A CONTESTED CASE.
  29. 29. THE EX PARTE PROHIBITIONAPPLIES TO COMMUNICATIONWITH THE ULTIMATE DECISIONMAKER AND HE/SHE WHOMAKES FINDINGS OF FACT ANDCONCLUSIONS OF LAW- THE BOARD- THE HEARINGS EXAMINER OR SOAH ALJ
  30. 30. THE RULE 3.05 EX PARTE PROHIBITIONAPPLIES TO LAWYERSIS APPLICABLE TO ANY PENDING MATTERBEFORE A GCD BOARD OR SOAHTHE GOV’T CODE EX PARTE PROHIBITIONAPPLIES MORE BROADLY – TO PARTIES,PERSONS OR REPRESENTATIVESIS APPLICABLE TO CASES REFERRED BY AGCD TO SOAHAPPLIES TO SOAH JUDGE AND GCD BOARD INA CONTESTED CASE
  31. 31. MANY GCD PROCEDURAL RULESSPECIFICALLY PROHIBITING EX PARTECOMMUNICATIONS IN CONTESTED CASEHEARINGS BEFORE THE BOARDRULES TYPICALLY APPLY TO ALLPARTIES AND PERSONSGCD EX PARTE PROHIBITION RULE CANBE USED TO CURTAIL DISCUSSION OFCONTESTED PERMITS IN PUBLICCOMMENT SESSION OF AGENDA
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