                          QBfficeof tip JWmwp Qheral
                                       &ate of aexas
DAN MORALES                              July 24.1992
 ATTORNEY
      GENERAL



     Mr. John Hall                              Opinion No. DM-144

    Texas Water Commission                      Re: Whether a Water Commission hear-
    P. 0. Box 13087, Capitol Station            ings examiner in a contested case about
    Austin, Texas 78711-3087                    issuance of a hazardous waste permit may
                                                communicate a        parte with other
                                                employees of the commission (RQ-97)

    Dear Mr. Halk

            You request an opinion on provisions concerning a parie communications in
    contested cases under Senate Bill 1099 of the 726 Legislature. Acts 1991,72d Leg.,
    ch. 296, amending Health & Safety Code, ch. 361. The bii deals with the
    management of hazardous waste, establishing new requirements for permits for
    hazardous waste processing, storage, and disposal facilities, and allowing greater
    citizen participation in the permitting process. Senate Comm on Natural
    Resources, Bill Analysis. C.S.S.B. 1099,72d Leg. (1991). It amended provisions of
    the Health and Safety Code that govern the Water Commission’s issuance of
    permits to process, store, or dispose of hazardous waste. Id; Health & Safety Code
    0 361.082(a). The restrictions on apartet communications that you inquire about
    are as follows:

                  (a) Unless required for the disposition of ex parte matters
              authorized by Law,a hearings examiner of the commission may
              not communicate, directly or indirectly, with any employee ofthe


          .I..
            .!Ppme” hasbeen deanedto mean‘[o]aone aideoaly;by or for one putu, done for, [or]in
    bchalfof...o&partyonly: B~~sLAwDIc~oNARY~~(~~~~~~~~~). Arc&~iononup~c
    wnununicationsin the cont*xtof amtutcd cww la foundin section17 of the TexasAdrninhative
    Procedureand TexasRegisterAct., V.T.C.S.art.62!%l3b. The primarypurposeof &on 17 ‘is to
    preclude‘litigiousfacts’wmiq beforethe decision-maker
                                                       withoutbecomingpartof the recordin a
    am&ted case: carnly ofG&&m v. Taos Drp’t qfHwlth, 724 S.W2d 1lS (kc ASP.-Austin 15’67,
    writrePdILKC.).



                                            p. 748
Mr. John Hall - Page 2                    m-144)




         commirdon, any commissioner, or any party to a hearing
         conducted by the commission in corm&on with any isrue qffact
         or&w permining to a contested case in which the commission or
         partyisinvoIved.
              (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 apptication of law or roles
         byah-           examiner of the commission except by proper
         evidence, plead&s, and legal argmnent with notice and
         opporhmi~ for all parties to participate.
               (c) If a prohiiited contact is made, the hearings examiner
          shall notify all parties with a summary of that contact and notice
          of their opporhmity to participate and shall give all parties an
          opportunity to respond.
Health & Safety Code 0 361.0831 (emphasis added).

        Your questions relate to a porte communications in connection with
contested case proceedings to which Senate Bill 1099 applies. Contested case
proceed@       before the Texas Water Commtsst      ’ ‘on are subject to the Texas
Administrative Procedure and Texas Register Act (APTRA), V.T.C.S. art. 6252-13a
See Ho& v. Taac Dep’t of Waer Rewwces, 611 S.WZd 417 (Tu 1981)
(harmonizing provisions of APTRA and Water Code on judicial review of waste
discharge permit). Section 17 of APTU governs a pm?e 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 & A.P.Rl! Co. v. State, 95 S.W2d
680 (Tex. 1936). Set ulw Gov’t Code 0 311.026(b). Thus, if section 361.0831 of the
Health and Safety Code is inconsistent with section 17 of APTRA, section 361.0831,
as a special provision for contested cases invoiving the issuance of permits to
process, store, or dispose of hazardous waste, will control a pur?e commmsications
in such~~cases to extent of the inconsistenq.

       Your first questinn is as follw:

          May a Hearings Examiner communicate aporte with employees
          of the agency who have not participated in any hearing in the



                                          p. 749
M.r.JohnHaU - Page 3                      Kt+l44)




          case for the purpose of milking the special skills or knowledge
          of the agency and its staff in evaluating the evidence?

        Section 361.0831(a) of the Health and Safety Code is explicit on this
point unless the communication is required to dispose of a parte matters
authorized by law, a hearings examiner may not communicate a Jnvte with ‘any
employee of the commission.. . in cotmccdon with any issue of fact or law
pertainiq to a contested case”in which the commission is invo~cd. Sa M&r, Inc
v. hvvidew Am. Ins Ca, 658 S.WJd 665 (Tex. App.-Dallas 1983, no writ); Railm&
Chmmh of Terpr v. Tenas & New Odum R Ca, 42 S.W.2d 1091 (Ten. Civ. App.-
Austin 1931, writ refd) (if statutory language clearly reveals legislative intent, there
is no need for construction). Section 361.0831(b) prohiiits commission employees
from attempting to intluencc a hearings examiner% ruling in a contested case.
“except by proper evidence, plead@, and legal argument with notice and
opportunity for all parties to participate.” Thus, in section 361.0831, the legislature
twine expresses its intent that hearing examiners be insulated from off-the-record
wmmunications with other employees in contested cases invohdng permits for
hazardous waste management facilities.

       Section 17 of APPRA, in contrast to section 361.0831 of the Health and
Safety Code, permits the kind of communications about which you inquire.
Although section 17 of APTRA prohibits a hearings examiner in a amtested case
from communicating ame           with any agency, person, party, or their representative
on any issue of fact or law, it provides the following exception:

          pursuant to the authority provided in Subsection (q) of section
          14, members or employees of an agency assigned to render a
          decision or to make Gxlings of fact and conchtsions of law in a
          contested case may c4ummmicatc apurre with empbycas of the
          agency who have not participated in any hearing in the case for
          the purpose of milking the special skills or knowledge of the
          agency and its staff in evaluating the evidence?

V.T.CS. art. 6252l3a. 0 17. Section 14(q) provides that the %pacial skills or
knowledge of the agency and its statf may be utilized in evaluating the evidence.




                                         p. 750
                                                 ,I




Mr.JohnHall    - Page 4               (m-144)




        The adoption of section 361.0831 without the exception quoted above
demonstrates the legislature’s intent to prohibit a hear@ examiner in a contested
case under Senate Bill 1099 from communicating a pwre with employees of the
agency who have not participated in any hearing to use their special skills and
knowledge in evaluating the evidence. In answer to your first question, a hearings
examiner may not communicate a portc with an employee of the agency, in
connection with any issue of fact or Lawpertain@ to a contested case under S.E.
1099 in which the commission is involved even though that employee has not
participatediltanyhearinginthecase.’



          May a Hearings Examiner aanmtmicate a pwte with
          supersising attorneys within the ORice of Hearings Examiners
          (OHE) in comection with issues of fact or Lawpertain@ to the
          contested case?

        ktions 5311 through 5314 of the Water Code apply to the office of hearing
examiners to be created by the Water Commission to assist it in carrymg out its
powers and duties. This office is required to be independent of the executive
director and under the commission’s exclusive controL The chief hearing examiner,
who directs the office of hearing examiners, and all assistant hearing examiners
“shallbeattorneyslicensedtopraaialawinthisstatesndshallbea~bythe
commissior~” Water Code 0 5312 (emphasis added). Supervising attorneys within
the office of hearings examiners are employees of the commission. See genem@
Akiim Ina@. School D&. v. St-,           2&l S.WZd 578 (lb. 1955) (public officer
distinguished from an employee by his independence from supervision in exercising
sovereign function of the government). As employees of the commission, the
attorneys in the office of hearings examiners are subject to the prohiiition on a
pate communications found in section 361.0831 of the Health and safety Code.




                                     p. 751
Mr. John Hall - Page 5                      (xX4-144)




        You suggest that the structure of the office of hearing examiners, with the
office placed under the direction of the chief hearing examiner, seems to recognize
the need for a parte communications between the supervisory attorneys and the
hearings examiners. However, sections 5.311 through 5314 of the Water Code are
silent as to a parte communications. The application of section 361.0831 of the
Health and Safety Code in contested cases under Senate Bill 1099 does not cause
any conflict with the Water Code provisions. See a&o Gov’t Code Q311.025 (where
statutes are irreconcilable, latest in date of enactment prevails). Accordingly, a
hearings examiner in a contested case under Senate Bill 1099 may not communicate
with a supervising attorney in the office of hearing examiners in connection with any
issue of fact or law pertaining to the case.

       Your third question is as follows:

         May Commissioners or the General Counsel communicate a
         pme with supervising attorneys within the OHE regarding the
         state of the record in a contested case following issuance of a
         proposal for decision?

       You state that the commissioners and general counsel usually are not present
during evidentiary hearings conducted by hearings examiners; thus, private
discussions between individual commissioners or the general counsel and
supervisory attorneys help provide the commission with answers to specific
questions about the evident& record. However, depending on the nature of prior
communications between the supervisory attorney and the hearings examiner, you
raise the possibility that the supervisory attorneys communications with the
commissioners and general counsel could be considered indirect ex pme
communications between the hearings examiner and the commissioners and general
counsel. Section 361.0831 of the Health and Safety Code prohibits indirect as well
as direct a parte communications between the hearings examiner and any
commissioner or employee of the agency.

        As we have stated in answer to questions one and two, section 361.0&31(a)of
the Health and Safety Code prohibits the hearings examiner from communicating a
pwte with the supervisory attorney in connection with any issue of fact .or law
pertaining to a contested case. If these direct apmte communicationsdo not occur,
then the supervisory attorney cannot pass on the hearings examiner’s remarks to the
general counsel or commissioners.




                                        p. 752
Mr. John Hall - Page 6                 (m-144)




       If the sequence of wmmunications you descrii      does occur, that is, if the

to the general wunsel or a commissioner, we believe that there would be indirect a
pate wmmunications between the hearings examiner and the general wunsel or
wmmissioner. See Gahmton v. Tapr Dtpt of Health, 724 S.W2d 115, I22
(descC%ing indirect wmmuni cations from employees through general wunsel to
wmmissioner). The wmmissioners and the general counsel may not engage in
indirect apmte wmmunicationswith the hearings examiner through the supetii
attorneys within the office of hearing examiners.

       Your fourth question is as fobws:

         If the Cwnmission overturns an ExamineA finding of fact or
         conclusion of law or rejects a proposal for decision on an
         ultimate finding, may the General Cwtnsel of the Commission
         wmmunia~te a pare with the Examiner or a supervisoty
         attorney within tlte OHE regarding the preparation of the
         explanation of the reasoning and grounds for suck Commission
         action?

       Section 361.0832 of the Healtk and Safety Cku@ requims the hearings
examiner to “make 6ndings of tact, wnclusions of law, and any ultimate blittgs
required by statute.” He or she is to make a proposal for decision to the wmmission
and the commission is to wnsider and act on the proposal for decision. Secdon
361.0832(f) states the fohvi.ng requirement:

             The wmmission shall issue written mliqs       orders, or
         decisionsinallwntestedcssesandsball~arplainina~
         order, or decision the reasoning and grounds for ovemtming
         each finding of fact or wncbion of law or for rejecting any
         proposal for decision on an ultimate Ending.

Health & Safety Code 0 36Los32(f).

        You inform us that when the wmm&!on decides to reject the examiner’s
proposed findings and wnclusions, the wmmissioners generally discuss in open
meeting their reasons for disagreeing with the examiner. The wmmission then
instructs the general wunsel to work witk the examiner to draft a final order in
accordance with the wmmission’s directions.      The question arises whetker


                                       p. 753
Mr.JohnHaU - Page 7                        (m-144)




discusions between the office of the general wunsel and the office of hearings
examiners about the &aft@ of the 6naLorder would violate the aporlc rule.

        Section 17 of APTRA prohibits aparre wmmunications during pcndency of
a wntestcd case. VW              v. Firs Sav. & Lean Ash of Bager, 617 S.WZd 669
(Tex. 1981). Section 361.0831 of the Health and Safety Code restricts a plrrle
wmmunications in wnnection with issues of fact or Jaw *rtainiq                  to a wntested
caseinwhichthcwmmission            . . . is imdved” Health & Safety Code 0 361.083(a).
Thus, the limitation in section 361.0831 on a pwe wmrnunications also applies
duringthependencyofawntcstedcase.                 AwntestedcaseisdefmcdbyAPTRAas
“a proceeding   . . . in which the  legal   rights, duties, or privileges of a party am to be
determined by an agency after an opportunity for adjudicative hearing.” V.T.C.S.
art. 6252-L%, 0 3(2). The commission is involved in a contested case until it makes
its final decision. See VM,             617 S.WZd at 671-72 (section 17 of APTTU does
not apply after the final order in the contested case). Even though the hearings
examiner has issued his proposal for decision and presented it to the wmmission,
the wntested case is still pending, and aprrrtc wmmtmications are still restricted by
section 361.0831 of the Health and Safety Code. AcwrdingLy, the general wunscl
may neither wmmunicate a parle with the examiner about preparing an
expknation of the wmrnksion’s action in overturning a finding of fact or wnclusion
of law or rejecting any proposal for decision on an ultimate finding, nor may he
wmmunicate with the supervisory attorney in a way that would wnstitute indirect a
pme wmmunication with the hearings examiner.

                                    SUMMARY

                Section 361.0831 of the Healtb and Safety Code prohiiits a
           he=&% examiner in a contested case involving a hamrdous
           waste permit from wmmunicating apate with any employee of
           the wmmission.       This provision does not permit a pcuie
           wmmunications between hear@ examiners and employees of
           the agency who have not participated in any heating of the case
           for the purpe    of utilixhg their special skills or knowledge, or
           wmmmications       of beatings examiners with supe4sf.q
           attorneys within the O&x of Hearings &miners.              Section
           361.0831 also prohibits direct and indimct wmmunications
           between the hearings examiner and the wmmissioners or the
           general wunseL If the supervising attorney engages in a prure
           ~~catkms          with the hearings examiner in violation of


                                           p. 754
Mr. John Hall - Page 8               (m-144)




         section 361.0831 and then relays those wmmun~‘cations to a
         wmmissioner or the general wunse~ indirect a parle
         wmmunicatlons between the hearings examiner and the
         wmmissioncr or general wunscl will occur. The restriction on
         a pare wmmunications applies during the pendenfq of the
         wntcsted case. Accordingly, if the wmmission overtums an
         uaminer’n finding of fact or wnclusion of law or rejects a
         proposaI for decision on an ultimate 6nd& the general wunscl
         of the w mndssion may not wmmunicata a pIIlrc with the
         examiner about preparing an @anation of the reasons for the
         wmmission’s actions.




                                               DAN      MORALES
                                               Attorney GeneraI of Texas

WILL PRYOIi
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RBNEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, opinion Committee

PreparedbySusanLGarrison
Assistant AttorneyGeneral




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