Texas Attorney General Opinion: DM-144 Page: 2 of 8
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Mr. John Hall - Page 2
commission, any commissioner, or any party to a hearing
conducted by the commission in connection with any issue of fact
or law pertaining to a contested case in which the commission or
party is involved.
(b) An employee of the commission, a commissioner, or a
party to a hearing conducted by the commission may not attempt
to influence the finding of facts or the application of law or rules
by a hearings examiner of the commission except by proper
evidence, pleading and legal argument with notice and
opportunity for all parties to participate.
(c) If a prohibited contact is made, the hearings examiner
shall notify all parties with a summary of that contact and notice
of their opportunity to participate and shall give all parties an
opportunity to respond.
Health & Safety Code 5 361.0831 (emphasis added).
Your questions relate to a parte communications in connection with
contested case proceedings to which Senate Bill 1099 applies. Contested case
proceedings before the Texas Water Commission are subject to the Texas
Administrative Procedure and Texas Register Act (APTRA), V.T.CS. art. 6252-13a.
See Hooks v. Teas Dep't of Water Resowurea, 611 S.W.2d 417 (Tex. 1981)
(harmonizing provisions of AFTRA and Water Code on judicial review of waste
discharge permit). Section 17 of AFTRA governs a parte communications in
contested cases. However, in case of conflict between a general provision and a
special provision dealing with the same subject, the general law is controlled or
limited by the special law, since a specific statute more clearly evidences the intent
of the legislature than a general one. San Antonio & APRY. Co. v. State, 95 S.W.2d
680 (Tex. 1936). See also Gov't Code 311.026(b). Thus, if section 361.0831 of the
Health and Safety Code is inconsistent with section 17 of AflRA, section 361.0831,
as a special provision for contested cases involving the issuance of permits to
process, store, or dispose of hazardous waste, will control a pare communications
in such cases to extent of the inconsistency.
Your first question is as follows:
May a Hearings Examiner communicate a parte with employees
of the agency who have not participated in any hearing in thep. 749
(m-144)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-144, text, July 24, 1992; (https://texashistory.unt.edu/ark:/67531/metapth273953/m1/2/: accessed April 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.