Can a Texas hazardous waste permit hearings examiner talk privately with agency staff about the case?

Plain-English summary

The Texas Water Commission asked how far a special "no off-the-record contact" rule reaches when one of its hearings examiners is deciding a hazardous waste permit case. In 1991 the Legislature passed Senate Bill 1099, overhauling how the state permits facilities that process, store, or dispose of hazardous waste and opening the process to more citizen participation. As part of that bill, section 361.0831 of the Health and Safety Code told the hearings examiner who runs these permit cases that, unless a law requires it to handle authorized ex parte matters, the examiner "may not communicate, directly or indirectly, with any employee of the commission, any commissioner, or any party" about any issue of fact or law in the contested case. The statute also forbids employees, commissioners, and parties from trying to sway the examiner except through proper evidence and argument with notice to everyone, and it tells the examiner to disclose any prohibited contact to all parties.

The general law governing administrative hearings, APTRA, has a softer rule. It also bars ex parte contact, but it carves out an exception: a decision-maker can talk privately with agency staff who did not take part in the hearing, in order to draw on the agency's special skills and knowledge in evaluating the evidence. The whole case turned on the fact that the Legislature wrote section 361.0831 without that exception. Under the rule that a specific statute controls over a general one, the Attorney General concluded section 361.0831 governs hazardous-waste-permit cases and is stricter than APTRA, so the special-skills exception does not apply.

With that framework, the opinion answered four questions, all the same way. First, the examiner may not communicate ex parte with agency employees who did not participate in the hearing, even to tap their expertise in weighing the evidence; the omission of APTRA's exception shows the Legislature meant to forbid exactly that. Second, the examiner may not communicate ex parte with the supervising attorneys in the Office of Hearings Examiners. Even though that office is set up under the chief hearing examiner and is independent of the executive director, its attorneys are still employees of the commission, so they fall within the ban. Third, commissioners and the general counsel, who usually are not present at the evidentiary hearings, may not get around the rule by talking to the supervising attorneys and having them relay information; if the supervising attorney had improper contact with the examiner and then passed it up to a commissioner or the general counsel, that would be an indirect ex parte communication with the examiner, which the statute also forbids.

Fourth, the timing question. After the commission overturns an examiner's finding or rejects a proposal for decision, section 361.0832(f) requires it to explain in writing its reasoning and grounds. The commission usually discusses its reasons in open meeting and then has the general counsel work with the examiner to draft the final order. The opinion concluded the general counsel cannot do that part ex parte with the examiner, because the ex parte ban runs for as long as the contested case is pending, and a contested case stays pending until the commission makes its final decision. The examiner's proposal for decision is not the end of the case, so the restriction still applies. The general counsel therefore cannot communicate ex parte with the examiner about preparing the explanation, and cannot use the supervising attorney as an indirect channel to the examiner either.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas Water Commission's functions were later absorbed into the Texas Natural Resource Conservation Commission and then the Texas Commission on Environmental Quality, APTRA (former art. 6252-13a) was recodified as the Administrative Procedure Act in Government Code chapter 2001, and the hazardous-waste and ex parte provisions have been amended since 1992, so confirm current law and the current agency structure before relying on anything described here.

Background and statutory framework

Senate Bill 1099 of the 72d Legislature (Acts 1991, 72d Leg., ch. 296) amended chapter 361 of the Health and Safety Code, establishing new permit requirements for hazardous waste processing, storage, and disposal facilities and allowing greater citizen participation in permitting. See Health & Safety Code § 361.082(a). The ex parte restrictions are in section 361.0831, which provides: (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 of the 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, commissioner, or party may not attempt to influence the examiner's finding of facts or application of law or rules except by proper evidence, pleadings, and legal argument with notice and opportunity for all parties to participate; and (c) if a prohibited contact is made, the examiner shall notify all parties with a summary of the contact and an opportunity to respond.

Contested cases before the commission are subject to APTRA, V.T.C.S. art. 6252-13a. See Hooks v. Texas Dep't of Water Resources, 611 S.W.2d 417 (Tex. 1981) (harmonizing APTRA and the Water Code on judicial review of a waste discharge permit). APTRA section 17 governs ex parte communications in contested cases. But where a general provision and a special provision deal with the same subject, the general law is controlled or limited by the special law, because a specific statute more clearly evidences legislative intent than a general one. San Antonio & A.P. Ry. Co. v. State, 95 S.W.2d 680 (Tex. 1936); see also Gov't Code § 311.026(b). Thus, to the extent section 361.0831 is inconsistent with APTRA section 17, section 361.0831, as the special provision for hazardous-waste-permit contested cases, controls.

On the first question, whether the examiner may communicate ex parte with agency employees who did not participate in the hearing, to use their special skills in evaluating evidence, the opinion found section 361.0831(a) explicit: absent an authorized ex parte matter, the examiner may not communicate ex parte with "any employee of the commission . . . in connection with any issue of fact or law pertaining to a contested case" in which the commission is involved. See Matrix, Inc. v. Provident American Insurance Co., 658 S.W.2d 665 (Tex. App.-Dallas 1983, no writ); Railroad Comm'n of Texas v. Texas & New Orleans R. Co., 42 S.W.2d 1091 (Tex. Civ. App.-Austin 1931, writ ref'd) (if statutory language clearly reveals legislative intent, there is no need for construction). Section 361.0831(b) also bars employees from influencing the examiner except by proper evidence and argument with notice. By contrast, APTRA section 17 permits the inquired-about communications: it bars the examiner from ex parte contact on any issue of fact or law but, "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 findings of fact and conclusions of law in a contested case may communicate ex parte with employees of the agency who have not participated in any hearing in the case for the purpose of utilizing the special skills or knowledge of the agency and its staff in evaluating the evidence." V.T.C.S. art. 6252-13a, § 17. Section 14(q) provides that the agency's special skills or knowledge may be used in evaluating evidence. The adoption of section 361.0831 without that exception demonstrated legislative intent to prohibit the examiner from such ex parte consultation. The opinion answered that an examiner may not communicate ex parte with an agency employee about any issue of fact or law in a Senate Bill 1099 contested case, even one who did not participate in the hearing.

On the second question, the office of hearing examiners is created under Water Code sections 5.311 through 5.314 to assist the commission, is independent of the executive director, and is under the commission's exclusive control; the chief hearing examiner and all assistant hearing examiners must be attorneys licensed in Texas and are appointed by the commission. Water Code § 5.312. Supervising attorneys within that office are employees of the commission. See generally Aldine Independent School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955) (distinguishing a public officer from an employee by independence from supervision in exercising a sovereign function). As commission employees, those attorneys are subject to section 361.0831's ex parte prohibition. Although the office's structure under the chief hearing examiner might seem to contemplate ex parte communications between the supervising attorneys and the examiners, the Water Code is silent on ex parte communications, so applying section 361.0831 creates no conflict with it. See also Gov't Code § 311.025 (where statutes are irreconcilable, the latest in date of enactment prevails). The examiner therefore may not communicate with a supervising attorney about any issue of fact or law in a Senate Bill 1099 case.

On the third question, the commissioners and general counsel usually are not present during evidentiary hearings, and private discussions with supervisory attorneys help answer the commission's questions about the record. But depending on the supervisory attorney's prior contacts with the examiner, those discussions could be indirect ex parte communications between the examiner and the commissioners or general counsel, which section 361.0831 also prohibits. If the prohibited direct ex parte communications between examiner and supervisory attorney do not occur, the attorney has nothing to pass on. If the described sequence does occur, the opinion concluded there would be indirect ex parte communications between the examiner and the general counsel or commissioner. See County of Galveston v. Texas Dep't of Health, 724 S.W.2d 115, 122 (Tex. App.-Austin 1987, writ ref'd n.r.e.) (describing indirect communications from employees through general counsel to commissioner). The commissioners and general counsel may not engage in indirect ex parte communications with the examiner through the supervising attorneys.

On the fourth question, section 361.0832 requires the examiner to make findings of fact, conclusions of law, and any ultimate findings required by statute, and to make a proposal for decision; the commission considers and acts on it. Section 361.0832(f) requires the commission to issue written rulings, orders, or decisions in all contested cases and to explain in the order the reasoning and grounds for overturning each finding of fact or conclusion of law or for rejecting any proposal for decision on an ultimate finding. When the commission rejects the examiner's proposal, it generally discusses its reasons in open meeting and then instructs the general counsel to work with the examiner to draft a final order. Section 17 of APTRA prohibits ex parte communications during the pendency of a contested case, Vandygriff v. First Savings & Loan Ass'n of Borger, 617 S.W.2d 669 (Tex. 1981), and section 361.0831 restricts ex parte communications on issues of fact or law in a contested case the commission is involved in, so it too applies during the case's pendency. A contested case is defined by APTRA as a proceeding "in which the legal rights, duties, or privileges of a party are to be determined by an agency after an opportunity for adjudicative hearing." V.T.C.S. art. 6252-13a, § 3(2). The commission is involved until it makes its final decision; section 17 does not apply after the final order. Vandygriff, 617 S.W.2d at 671-72. Even after the examiner issues the proposal for decision, the case is still pending, so the general counsel may neither communicate ex parte with the examiner about preparing an explanation of the commission's action in overturning a finding or rejecting a proposal for decision, nor communicate with the supervisory attorney in a way that would constitute indirect ex parte communication with the examiner.

Common questions

Why is the ex parte rule stricter for hazardous waste cases than for other agency cases?
Because the Legislature wrote a special statute for them. The opinion explained that section 361.0831, enacted in Senate Bill 1099, left out the "special skills" exception that the general administrative procedure act (APTRA) contains, and a specific statute controls over a general one.

Can the examiner ask the agency's own technical experts for help understanding the evidence?
No, not off the record, in these cases. The opinion concluded the examiner may not communicate ex parte with agency employees even to use their special skills, because section 361.0831 omits the APTRA exception that would otherwise allow it.

Are the lawyers in the Office of Hearings Examiners treated as commission employees?
Yes. The opinion held that the supervising attorneys there are employees of the commission, so the ex parte ban covers communications between them and the hearings examiner, and they cannot be used as a back channel to commissioners or the general counsel.

After the commission rejects the examiner's recommendation, can the general counsel help the examiner write up the reasons?
Not ex parte. The opinion concluded the case is still pending until the commission's final decision, so the general counsel cannot communicate ex parte with the examiner about drafting the explanation required when the commission overturns a finding or rejects a proposal for decision.

Citations

• Health & Safety Code §§ 361.082(a), 361.0831, 361.0832(f); ch. 361
• S.B. 1099, Acts 1991, 72d Leg., ch. 296
• V.T.C.S. art. 6252-13a (APTRA), §§ 3(2), 14(q), 17
• Water Code §§ 5.311-5.314, 5.312
• Gov't Code §§ 311.025, 311.026(b)
• County of Galveston v. Texas Dep't of Health, 724 S.W.2d 115 (Tex. App.-Austin 1987, writ ref'd n.r.e.)
• Hooks v. Texas Dep't of Water Resources, 611 S.W.2d 417 (Tex. 1981)
• San Antonio & A.P. Ry. Co. v. State, 95 S.W.2d 680 (Tex. 1936)
• Matrix, Inc. v. Provident American Insurance Co., 658 S.W.2d 665 (Tex. App.-Dallas 1983, no writ)
• Railroad Comm'n of Texas v. Texas & New Orleans R. Co., 42 S.W.2d 1091 (Tex. Civ. App.-Austin 1931, writ ref'd)
• Aldine Independent School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Vandygriff v. First Savings & Loan Ass'n of Borger, 617 S.W.2d 669 (Tex. 1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0144
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0144.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and case names and reporter citations degraded in the scan are corrected here against the reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 24, 1992

Mr. John Hall
Chairman
Texas Water Commission
P. O. Box 13087, Capitol Station
Austin, Texas 78711-3087

Opinion No. DM-144

Re: Whether a Water Commission hearings examiner in a contested case about issuance of a hazardous waste permit may communicate ex parte with other employees of the commission (RQ-97)

Dear Mr. Hall:

You request an opinion on provisions concerning ex parte communications in contested cases under Senate Bill 1099 of the 72d Legislature. Acts 1991, 72d Leg., ch. 296, amending Health & Safety Code, ch. 361. The bill 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 § 361.082(a). The restrictions on ex parte 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 of the 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, pleadings, 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 § 361.0831 (emphasis added).

[Footnote 1: "Ex parte" has been defined to mean "[o]n one side only; by or for one party; done for, [or] in behalf of . . . one party only." Black's Law Dictionary 576 (6th ed. 1990). A restriction on ex parte communications in the context of contested cases is found in section 17 of the Texas Administrative Procedure and Texas Register Act, V.T.C.S. art. 6252-13a. The primary purpose of section 17 "is to preclude 'litigious facts' coming before the decision-maker without becoming part of the record in a contested case." County of Galveston v. Texas Dep't of Health, 724 S.W.2d 115 (Tex. App.-Austin 1987, writ ref'd n.r.e.).]

Your questions relate to ex 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.C.S. art. 6252-13a. See Hooks v. Texas Dep't of Water Resources, 611 S.W.2d 417 (Tex. 1981) (harmonizing provisions of APTRA and Water Code on judicial review of waste discharge permit). Section 17 of APTRA governs ex 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 & A.P. Ry. 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 APTRA, 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 ex parte communications in such cases to the extent of the inconsistency.

Your first question is as follows:

  May a Hearings Examiner communicate ex parte with employees of the agency who have not participated in any hearing in the case for the purpose of utilizing 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 ex parte matters authorized by law, a hearings examiner may not communicate ex parte with "any employee of the commission . . . in connection with any issue of fact or law pertaining to a contested case" in which the commission is involved. See Matrix, Inc. v. Provident American Insurance Co., 658 S.W.2d 665 (Tex. App.-Dallas 1983, no writ); Railroad Comm'n of Texas v. Texas & New Orleans R. Co., 42 S.W.2d 1091 (Tex. Civ. App.-Austin 1931, writ ref'd) (if statutory language clearly reveals legislative intent, there is no need for construction). Section 361.0831(b) prohibits commission employees from attempting to influence a hearings examiner's ruling in a contested case "except by proper evidence, pleadings, and legal argument with notice and opportunity for all parties to participate." Thus, in section 361.0831, the legislature twice expresses its intent that hearing examiners be insulated from off-the-record communications with other employees in contested cases involving permits for hazardous waste management facilities.

Section 17 of APTRA, 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 contested case from communicating ex parte 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 findings of fact and conclusions of law in a contested case may communicate ex parte with employees of the agency who have not participated in any hearing in the case for the purpose of utilizing the special skills or knowledge of the agency and its staff in evaluating the evidence.

V.T.C.S. art. 6252-13a, § 17. Section 14(q) provides that the special skills or knowledge of the agency and its staff may be utilized in evaluating the evidence.

The adoption of section 361.0831 without the exception quoted above demonstrates the legislature's intent to prohibit a hearings examiner in a contested case under Senate Bill 1099 from communicating ex parte 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 ex parte with an employee of the agency, in connection with any issue of fact or law pertaining to a contested case under S.B. 1099 in which the commission is involved, even though that employee has not participated in any hearing in the case.

[Second question:]

  May a Hearings Examiner communicate ex parte with supervising attorneys within the Office of Hearings Examiners (OHE) in connection with issues of fact or law pertaining to the contested case?

Sections 5.311 through 5.314 of the Water Code apply to the office of hearing examiners to be created by the Water Commission to assist it in carrying 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 "shall be attorneys licensed to practice law in this state and shall be appointed by the commission." Water Code § 5.312 (emphasis added). Supervising attorneys within the office of hearings examiners are employees of the commission. See generally Aldine Independent School Dist. v. Standley, 280 S.W.2d 578 (Tex. 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 prohibition on ex parte communications found in section 361.0831 of the Health and Safety Code.

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 ex parte communications between the supervisory attorneys and the hearings examiners. However, sections 5.311 through 5.314 of the Water Code are silent as to ex 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 also Gov't Code § 311.025 (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 ex parte 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 evidentiary record. However, depending on the nature of prior communications between the supervisory attorney and the hearings examiner, you raise the possibility that the supervisory attorney's communications with the commissioners and general counsel could be considered indirect ex parte 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 ex 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 361.0831(a) of the Health and Safety Code prohibits the hearings examiner from communicating ex parte with the supervisory attorney in connection with any issue of fact or law pertaining to a contested case. If these direct ex parte communications do not occur, then the supervisory attorney cannot pass on the hearings examiner's remarks to the general counsel or commissioners.

If the sequence of communications you describe does occur, that is, if the supervisory attorney relays an examiner's remarks to the general counsel or a commissioner, we believe that there would be indirect ex parte communications between the hearings examiner and the general counsel or commissioner. See County of Galveston v. Texas Dep't of Health, 724 S.W.2d 115, 122 (describing indirect communications from employees through general counsel to commissioner). The commissioners and the general counsel may not engage in indirect ex parte communications with the hearings examiner through the supervising attorneys within the office of hearing examiners.

Your fourth question is as follows:

  If the Commission overturns an Examiner's finding of fact or conclusion of law or rejects a proposal for decision on an ultimate finding, may the General Counsel of the Commission communicate ex parte with the Examiner or a supervisory attorney within the OHE regarding the preparation of the explanation of the reasoning and grounds for such Commission action?

Section 361.0832 of the Health and Safety Code requires the hearings examiner to "make findings of fact, conclusions of law, and any ultimate findings required by statute." He or she is to make a proposal for decision to the commission, and the commission is to consider and act on the proposal for decision. Section 361.0832(f) states the following requirement:

  The commission shall issue written rulings, orders, or decisions in all contested cases and shall explain in a ruling, order, or decision the reasoning and grounds for overturning each finding of fact or conclusion of law or for rejecting any proposal for decision on an ultimate finding.

Health & Safety Code § 361.0832(f).

You inform us that when the commission decides to reject the examiner's proposed findings and conclusions, the commissioners generally discuss in open meeting their reasons for disagreeing with the examiner. The commission then instructs the general counsel to work with the examiner to draft a final order in accordance with the commission's directions. The question arises whether discussions between the office of the general counsel and the office of hearings examiners about the drafting of the final order would violate the ex parte rule.

Section 17 of APTRA prohibits ex parte communications during pendency of a contested case. Vandygriff v. First Savings & Loan Ass'n of Borger, 617 S.W.2d 669 (Tex. 1981). Section 361.0831 of the Health and Safety Code restricts ex parte communications in connection with issues of fact or law "pertaining to a contested case in which the commission . . . is involved." Health & Safety Code § 361.0831(a). Thus, the limitation in section 361.0831 on ex parte communications also applies during the pendency of a contested case. A contested case is defined by APTRA as "a proceeding . . . in which the legal rights, duties, or privileges of a party are to be determined by an agency after an opportunity for adjudicative hearing." V.T.C.S. art. 6252-13a, § 3(2). The commission is involved in a contested case until it makes its final decision. See Vandygriff, 617 S.W.2d at 671-72 (section 17 of APTRA 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 commission, the contested case is still pending, and ex parte communications are still restricted by section 361.0831 of the Health and Safety Code. Accordingly, the general counsel may neither communicate ex parte with the examiner about preparing an explanation of the commission's action in overturning a finding of fact or conclusion of law or rejecting any proposal for decision on an ultimate finding, nor may he communicate with the supervisory attorney in a way that would constitute indirect ex parte communication with the hearings examiner.

                               SUMMARY

      Section 361.0831 of the Health and Safety Code prohibits a hearings examiner in a contested case involving a hazardous waste permit from communicating ex parte with any employee of the commission. This provision does not permit ex parte communications between hearings examiners and employees of the agency who have not participated in any hearing of the case for the purpose of utilizing their special skills or knowledge, or communications of hearings examiners with supervising attorneys within the Office of Hearings Examiners. Section 361.0831 also prohibits direct and indirect communications between the hearings examiner and the commissioners or the general counsel. If the supervising attorney engages in ex parte communications with the hearings examiner in violation of section 361.0831 and then relays those communications to a commissioner or the general counsel, indirect ex parte communications between the hearings examiner and the commissioner or general counsel will occur. The restriction on ex parte communications applies during the pendency of the contested case. Accordingly, if the commission overturns an examiner's finding of fact or conclusion of law or rejects a proposal for decision on an ultimate finding, the general counsel of the commission may not communicate ex parte with the examiner about preparing an explanation of the reasons for the commission's actions.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General