TITLE 16. ECONOMIC REGULATION

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 1. PRACTICE AND PROCEDURE

The Railroad Commission of Texas adopts the repeal of rules in Chapter 1, Subchapters A through H, §§1.1 - 1.10, 1.21 - 1.30, 1.41 - 1.49, 1.61 - 1.65, 1.81 - 1.87, 1.101 - 1.108, 1.121 - 1.130, 1.141 - 1.152, and simultaneously adopts the following new subchapters and rules in Chapter 1: in new subchapter A, new §§1.1 - 1.10, relating to Definitions and General Provisions; in new subchapter B, new §§1.21 - 1.27, relating to Initiation of Contested Case Proceeding; in new subchapter C, new §§1.31 - 1.38, relating to Pleadings, Motions, and Other Documents; in new subchapter D, new §§1.41 - 1.45, relating to Notice and Service; in new subchapter E, new §§1.51 - 1.57, relating to Discovery; in new subchapter F, new §§1.61 - 1.68, relating to Evidence; in new Subchapter G, new §§1.101 - 1.112, relating to Hearings; and in new Subchapter H, §§1.121 - 1.131, relating to Decision; and in new Subchapter J, new §1.301, relating to Rulemaking. The repeals and new rules are adopted without changes from the proposed text as published in the March 17, 2017, issue of the Texas Register (42 TexReg 1214), except for §§1.1, 1.42, 1.52, 1.53, 1.55, 1.61, 1.126, 1.128, and 1.130, which are adopted with changes. In addition, §1.23 was withdrawn and re-proposed, and is adopted without change from the proposed text as published in the June 23, 2017, issue of the Texas Register (42 TexReg 3222).

The Commission adopts the repeals and new sections to reorganize and update the rules in this chapter to clarify current Commission practice and procedures and reflect changes in statutory requirements.

Two bills passed by the 85th Legislature require non-substantive changes to §§1.1, 1.42, 1.126, 1.128, and 1.130. First, the Commission’s Sunset Bill, House Bill 1818, requires that the Commission adopt a policy to encourage the use of alternative dispute resolution. That policy is reflected in subsection (c) of §1.1.

Second, Senate Bill 1446 made several non-substantive amendments to the Administrative Procedure Act (APA), Chapter 2001 of the Government Code, prompting conforming changes to §§1.42, 1.126, 1.128, and 1.130. Section 1.42 incorporates changes made to §2001.052, which permit an attachment that incorporates by reference the factual matters asserted in the complaint or petition to be included in the notice of hearing. Section 1.126 is adopted with changes to reflect amendments to §2001.142, which clarify the requirements for serving a final decision or order. Section 1.128 incorporates changes made to §2001.142, which clarify requirements and deadlines for motions for rehearing. Section 1.130 incorporates changes made to §2001.144, which clarify when a decision or order in a contested case is final.

The Commission received four comments on the proposed repeals and new rules. Two comments were from law firms, one was from a company, and one was from an individual. No associations submitted comments.

VideoPortal, an individual, submitted a general comment that the rules contain no provision for public notice to landowners and no provision for comment, protest, or a hearing on common carrier or gas utility status prior to the application being considered. The Commission disagrees that such language should be included in Chapter 1 as those topics are more appropriately addressed in substantive provisions governing the relevant application or permit, not the Commission's general rules of practice and procedure.

McElroy, Sullivan, Miller, Weber & Olmstead, LLP (McElroy Sullivan) submitted a comment on §1.3, regarding Exceptions and Suspension of Rules, suggesting that the ability to grant exceptions to "this chapter" be changed to "this part," so the Commission can retain broad power to grant exceptions to prevent waste or protect correlative rights. The Commission disagrees. "This chapter" is more appropriate because §1.3 addresses exceptions for rules governing Commission proceedings. Exceptions to substantive requirements, if available, are already provided in the applicable division's rules.

CenterPoint Energy, Inc. (Centerpoint) commented regarding proposed §1.23. Centerpoint expressed concern over a potential conflict between §1.23 and §7.45, relating to Quality of Service, and suggested that the Commission include language in §1.23 to resolve the conflict. The Commission agrees. On June 23, 2017, the Commission withdrew §1.23 as originally published and proposed a new version to address Centerpoint's concern. The new version of §1.23 includes subsection (g) to clarify that when a retail customer files a complaint against a gas utility, the parties must first attempt an informal resolution under §7.45 before utilizing the complaint procedure in §1.23. The revised version received no comments.

McElroy Sullivan suggested that §1.51 include "unless modified by the Commission's rules" in case the Texas Rules of Civil Procedure conflict with specific Commission rules. The Commission disagrees because it is not aware of any Commission rules that address the scope of discovery, as addressed in Texas Rule of Civil Procedure 192.3.

Similarly, McElroy Sullivan suggested that §1.61 include "unless modified by Commission rules" to prevent a conflict between the authorities cited in §1.61 and other Commission rules. The Commission agrees and adopts §1.61 with changes to address this comment.

McElroy Sullivan also commented on §1.124, relating to Oral Argument Before the Commission. The comment suggested a change to allow a party two minutes to respond to the presentation made by an examiner or ALJ at conference to ensure the Commissioners have relevant information to assist their decision-making process. The Commission disagrees. A decision may only be based on information that is in the record. Parties are already provided an opportunity to include any relevant information concerning a Proposal for Decision in the record by providing that information in the party's exceptions or replies.

The Commission also received several comments from Scott Douglass & McConnico LLP (SDM), which were filed after the comment deadline.

SDM commented that §1.36 creates an absolute deadline for filing motions before the contested case is included on an open meeting agenda "without offering any assurances that the parties will receive sufficient advance notice for when an item is placed on the open meeting agenda," and suggested the Commission provide notice no less than 20 days before the item is placed on the agenda. The Commission disagrees and has not included the suggested change. Chapter 1 does not contemplate filings after the Proposal for Decision is issued other than exceptions and replies, which are addressed in §1.122. The deadline in §1.36 will ensure Commission staff has sufficient time to prepare the contested case materials for presentation at conference.

SDM also commented on §1.37, suggesting that the Commission clarify the standard for granting petitions for leave to intervene. The Commission declines to include the suggested change. The language addressed in SDM’s comment is existing language. Proposed §1.37 makes no substantive changes to the rights of parties or intervenors.

SDM commented on §1.51, suggesting that the Commission include language regarding discovery levels, similar to the Texas Rules of Civil Procedure, to clarify any ambiguity regarding the scope of discovery under §1.51. The Commission disagrees. The scope of discovery is covered by Texas Rule of Civil Procedure 192.3, which addresses the types of matters that are discoverable, not the methods or timelines for conducting discovery. The Commission is not aware of any Commission rules addressing the scope of discovery.

SDM commented on §1.52, suggesting the Commission move subsections (b) and (c) into another rule because they are related to a different subject matter. The Commission agrees and has reorganized sections 1.52 and 1.53 to separate language addressing discovery requests and responses from language specifically addressing depositions. Subsections (b) and (c) are stricken from §1.52 and moved to §1.53, and the language from §1.53 has been moved to new subsection (c) in §1.52. The Commission has also changed the title of §1.53 to reflect that the rule now includes the deposition-specific language from §1.52.

SDM also suggested a minor change to §1.53 to ensure consistency with §1.52. The Commission agrees and has clarified that discovery responses are due within 14 days of the date of the day the discovery request is served. That change is implemented in subsection (b) of §1.52, where the language from §1.53 was moved.

SDM commented that both sworn statements required in §1.55 are not necessary and suggested deleting the sworn statement required by subsection (c). The Commission agrees that both statements are not necessary and has reorganized §1.55 to eliminate one of the statements.

SDM’s comment on §1.65 suggests the Commission include "by a party" to clarify that a late-filed exhibit may only be requested by a party and permitted by the Commissioners, the Hearings Director, or the examiner. The Commission disagrees. The proposed language allows the Commission to request an exhibit after the hearing, even if a party has not requested permission to file one.

SUBCHAPTER A. DEFINITIONS AND GENERAL PROVISIONS

16 TAC §§1.1 - 1.10

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702856

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER B. PLEADINGS

16 TAC §§1.21 - 1.30

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702857

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER C. DOCKETING, NOTICE, AND SERVICE

16 TAC §§1.41 - 1.49

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702858

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER D. PARTIES AND INTERVENTION

16 TAC §§1.61 - 1.65

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702859

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER E. DISCOVERY

16 TAC §§1.81 - 1.87

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702860

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER F. EVIDENCE IN CONTESTED CASES

16 TAC §§1.101 - 1.108

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702861

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER G. HEARINGS

16 TAC §§1.121 - 1.130

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702862

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER H. DECISION

16 TAC §§1.141 - 1.152

The Commission adopts the repeals under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702863

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER A. DEFINITIONS AND GENERAL PROVISIONS

16 TAC §§1.1 - 1.10

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

§1.1.Purpose, Scope, and Conflict with Other Rules.

(a) This chapter establishes a system for practice and procedure before the Railroad Commission of Texas to enable the just disposition of proceedings and public participation in contested case proceedings pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001.

(b) This chapter governs the institution, conduct, and determination of Commission proceedings required or permitted by law, whether instituted by order of the Commission or by filing an application, complaint, petition, or other pleading. This chapter does not and shall not be construed to enlarge, diminish, modify, or otherwise alter the jurisdiction, powers, or authority of the Commission or the substantive rights of any person or agency.

(c) It is the policy of the Commission to encourage the fair and prompt resolution of internal and external disputes under the Commission’s jurisdiction through alternative dispute resolution (ADR). ADR includes any procedure or combination of procedures described by Texas Civil Practice and Remedies Code Chapter 154, such as mediation, arbitration, and mini-trial.

(d) This chapter sets forth the general rules of practice and procedure for proceedings before the Commission. If a general provision of these rules conflicts with a statutory or other special provision governing the same proceeding, and the conflict is irreconcilable, then the special provision controls.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702864

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER B. INITIATION OF CONTESTED CASE PROCEEDING

16 TAC §§1.21, 1.22, 1.24 - 1.27

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702865

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


16 TAC §1.23

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702866

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: June 23, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER C. PLEADINGS, MOTIONS, AND OTHER DOCUMENTS

16 TAC §§1.31 - 1.38

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702867

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER D. NOTICE AND SERVICE

16 TAC §§1.41 - 1.45

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

§1.42.Notice of Hearing.

(a) In a contested case, each party is entitled to an opportunity:

(1) for hearing after reasonable notice of not less than 10 days; and

(2) to respond and to present evidence and argument on each issue involved in the case.

(b) Each notice of hearing shall include the following:

(1) a statement of the time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular sections of the statutes and rules involved;

(4) either a short, plain statement of the factual matters asserted or an attachment that incorporates by reference the factual matters asserted in the complaint or petition; and

(5) any other statements required by law or directed by the Commission.

(c) If the Commission or a party is unable to state the factual matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. On timely written application, a more definite and detailed statement of the facts shall be submitted in writing to the Hearings Division, which shall issue an amended notice not less than seven days prior to the date set for the hearing.

(d) In a proceeding in which the Commission has the burden of proof, if the Commission intends to rely on a section of a statute or rule not previously referenced in the notice of hearing, the Hearings Division shall amend the notice to refer to the section of the statute or rule not less than seven days before the date set for the hearing. This subsection does not prohibit the Commission from filing an amended notice of hearing after the hearing has commenced. If the Commission files an amended notice of hearing after the hearing has commenced, the examiner shall grant a continuance of at least seven days at the request of any other party.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702868

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER E. DISCOVERY

16 TAC §§1.51 - 1.57

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

§1.52.Discovery Requests and Responses.

(a) Requests for discovery and responses shall be served using a method of service authorized by §1.45 of this title (relating to Service in Protested Contested Cases) and should not be filed with the Commission.

(b) Except for good cause shown, all requests for discovery shall be served at least 20 days prior to the hearing unless otherwise agreed by the parties.

(c) Responses to discovery requests shall be served within 14 days after the date of service of the request. The examiner or the Hearings Director may alter this deadline on the request of any party.

§1.53.Request for Deposition.

(a) If the parties disagree on the scheduling or scope of a deposition, a deposition request and proposed deposition discovery order shall be filed with the Docket Services Section and the examiner will set the matter for consideration at a prehearing conference.

(b) The deposition shall be returned to the Commission as provided in the APA, §2001.100.

§1.55.Discovery Orders.

(a) Discovery orders generally. The Hearings director or the examiner may issue protective orders, orders compelling discovery responses, and orders creating a discovery control plan. Requests for discovery orders shall contain a sworn statement that, after due diligence, the desired information cannot be obtained through informal means, and that good cause exists for requiring discovery. The request for a discovery order may be denied:

(1) if the request is untimely or unduly burdensome in light of the complexity of the proceeding;

(2) if the requesting party has failed to exercise due diligence;

(3) if the discovery would result in undue cost to the parties or unnecessary delay in the proceeding; or

(4) for other good cause in the interest of justice.

(b) Motion to compel. Unless otherwise ordered, a party alleging another party's failure to comply with discovery requests shall file a sworn motion to compel with the Docket Services Section at least 10 days prior to the hearing on the merits.

(c) Deposition discovery orders. The Hearings Director or the examiner is authorized to issue a subpoena to take a deposition, which shall require that the witness appear and produce, at the time the deposition is taken, books, records, papers, or other objects that may be necessary and proper for the purposes of the proceeding.

(d) In camera inspection. The Hearings Director or the examiner may conduct in camera inspections of materials when requested by a party or when necessary to determine facts required to issue appropriate discovery orders.

(e) Review by Commissioners. Any discovery order issued by the examiner or the Hearings Director is subject to review by an appeal to the Commissioners. Any party that chooses to appeal a discovery order shall follow the requirements set forth in §1.38 of this title (relating to Interim Rulings and Appeals of Interim Rulings). A discovery order does not constitute a final order or decision.

(f) Compliance. The Commission may enforce compliance with any discovery order or subpoena pursuant to Texas Government Code §§2001.089, 2001.094, and 2001.201, and the Texas Natural Resources Code, §81.053 and §81.064, or as otherwise permitted by law.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702869

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER F. EVIDENCE

16 TAC §§1.61 - 1.68

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

§1.61.Rules of Evidence.

The Texas rules of evidence and Texas law with regard to evidence in nonjury civil cases shall apply in contested cases unless Commission rules specify otherwise. Irrelevant, immaterial, or unduly repetitious evidence may be excluded. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may nevertheless be admitted by the examiner (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. The rules of privilege recognized by law shall apply in Commission proceedings. Objections to evidentiary offers may be made and shall be noted in the record.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702870

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER G. HEARINGS

16 TAC §§1.101 - 1.112

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702871

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER H. DECISION

16 TAC §§1.121 - 1.131

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

§1.126.Final Decisions and Orders.

(a) A final decision or final order adverse to any party in a contested case shall be in writing and shall be signed by two or more Commissioners. Final decisions or final orders shall include findings of fact and conclusions of law separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If in accordance with §1.121 of this title (relating to Proposals for Decision) a party submits proposed findings of fact or conclusions of law as required by the examiner, the decision shall include a ruling or order on each proposed finding. All parties shall be notified of any decision or order pursuant to subsections (b) and (c) of this section.

(b) When a decision or order in a contested case that may become final under Texas Government Code, §2001.144 is signed or when an order ruling on a motion for rehearing is signed, the Commission shall deliver or send a copy of the decision or order to each party in accordance with subsection (c) of this section. The Commission shall keep a record documenting the provisions of the notice provided to each party.

(c) Methods of notice. The Commission shall notify each party to a contested case of any decision or order of the Commission using at least one of the following methods of service:

(1) personal service;

(2) if agreed to by the party to be notified, service by email to the party's current email address or fax number of the party's authorized representative, or of the party if the party is not represented;

(3) service by first class, certified, or registered mail, or commercial delivery service sent to the last known address of the party's authorized representative or of the party if the party is not represented; or

(4) service by a method required by a rule or order of the Commission.

§1.128.Motions for Rehearing.

(a) Motions for rehearing, if filed, must be filed by a party not later than the 25th day after the decision or order that is the subject of the motion is signed, unless the time for filing the motion for rehearing has been extended under subsection (e) of this section. A motion for rehearing must identify with particularity the findings of facts or conclusions of law that are the subject of the complaint and any evidentiary or legal ruling claimed to be erroneous. The motion must also state the legal and factual basis for the claimed error. On filing of the motion for rehearing, the movant shall serve copies of the motion on all other parties in accordance with §1.45 of this title (relating to Service in Protested Contested Cases).

(b) Replies to motions for rehearing must be filed not later than the 40th day after the date the decision or order that is subject of the motion is signed, or not later than the 10th day after the date a motion for rehearing is filed if the time for filing the motion for rehearing has been extended pursuant to subsection (e) of this section. On filing of the reply, copies of the reply shall be served on all other parties in accordance with §1.45 of this title.

(c) Motions for rehearing and replies to motions for rehearing may not be filed by fax or email unless permitted by the examiner or the Hearings director. The number of copies required to be filed will be determined by the examiner as noted in the notice to the parties issued with the proposal for decision. All copies shall be unstapled and three-hole punched for a three-ring binder.

(d) Commissioners shall act on a motion for rehearing not later than the 55th day after the date the decision or order that is the subject of the motion is signed or the motion for rehearing is overruled by operation of law.

(e) The deadline for filing a motion for rehearing may be extended as follows:

(1) The Commission may, on its own initiative or on the motion of any party for cause shown, by written order, extend the period of time for filing these motions and replies and for taking Commission action, provided that the Commission extends the time or takes the action not later than the 10th day after the date the period for filing a motion or reply or taking agency action expires. An extension shall not extend the period for Commission action beyond the 100th day after the date the decision or order that is the subject of the motion is signed. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order or, in the absence of a fixed date, on the 100th day after the decision or order that is the subject of the motion is signed;

(2) The parties may, by agreement and with the approval of the Commission, provide for a modification of the time periods provided in this section; or

(3) Pursuant to Texas Government Code, §2001.142.

(f) A subsequent motion for rehearing is not required after the Commission rules on a motion for rehearing unless the order disposing of the original motion for rehearing:

(1) modifies, corrects, or reforms in any respect the decision or order that is the subject of the complaint, other than a typographical, grammatical, or other clerical change identified as such by the agency in the order, including any modification, correction, or reformation that does not change the outcome of the contested case; or

(2) vacates the decision or order that is the subject of the motion and provides for a new decision or order.

(g) A subsequent motion for rehearing required by subsection (f) of this section must be filed not later than the 25th day after the date the order disposing of the original motion for rehearing is signed unless the deadline for filing the motion has been extended pursuant to applicable law.

§1.130.Finality of Decisions or Orders.

(a) A decision or order in a contested case is final:

(1) if a motion for rehearing is not filed on time, on the expiration of the period for filing a motion for rehearing;

(2) if a motion for rehearing is timely filed, on the date:

(A) the order denying the latest filed motion for rehearing is signed; or

(B) the latest filed motion for rehearing is overruled by operation of law;

(3) if the Commission finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a decision or order, on the date the decision or order is signed, provided that the agency incorporates in the decision or order a factual and legal basis establishing an imminent peril to the public health, safety, or welfare; or

(4) on:

(A) the date specified in the decision or order for a case in which all parties agree to the specified date in writing or on the record; or

(B) if the agreed specified date is before the date the decision or order is signed, the date the decision or order is signed.

(b) If a decision or order is final under subsection (a)(3) of this section, the Commission shall recite in the decision or order the finding made under that subsection and the fact that the decision or order is final and effective on the date signed.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702872

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295


SUBCHAPTER J. RULEMAKING

16 TAC §1.301

The Commission adopts the new rules under Texas Government Code §2001.004, which requires a state agency to adopt rules of practice stating the nature and requirements of all available formal and informal procedures, and Texas Natural Resources Code §81.01006, which allows the Commissioners to adopt all rules necessary for the Commission's government and proceedings.

Cross-reference to statute: Texas Government Code §2001.004; Texas Natural Resources Code §81.01006.

Issued in Austin, Texas, on August 1, 2017.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 1, 2017.

TRD-201702873

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Effective date: August 21, 2017

Proposal publication date: March 17, 2017

For further information, please call: (512) 475-1295