|(a) Policy. It is the department's policy to encourage
the use of negotiated rulemaking and alternative dispute resolution
procedures in appropriate situations.
(b) Negotiated Rulemaking. When the department finds
that a rule to be proposed is likely to be complex, controversial,
or affect disparate groups, the department may propose to engage in
negotiated rulemaking in accordance with Government Code, Chapter
(1) When negotiated rulemaking is considered, the department's
General Counsel, or designee, shall be the department's negotiated
(A) The convener shall assist in identifying persons
who are likely to be affected by a proposed rule, including those
who oppose issuance of a rule. The convener shall discuss with those
persons or their representatives as provided in Government Code §2008.052(c).
(B) The convener shall then recommend to the department
whether negotiated rulemaking is a feasible method to develop the
proposed rule and shall report to the agency on the relevant considerations,
including those listed in Government Code §2008.052(d).
(2) Upon the convener's recommendation to proceed,
the department may initiate negotiated rulemaking according to the
provisions of Government Code, Chapter 2008 and Government Code §2054.121(c)
(c) Alternative Dispute Resolution. The department
encourages the fair and expeditious resolution of disputes through
alternative dispute resolution (ADR) procedures.
(1) ADR procedures include any procedure or combination
of procedures described by Civil Practice and Remedies Code, Chapter
154. ADR procedures are intended to supplement and not limit other
dispute resolution procedures available for use by the department.
(2) Any ADR procedure used to resolve disputes with
the department shall conform with Government Code, Chapter 2009, and,
to the extent possible, the model guidelines for the use of ADR issued
by the State Office of Administrative Hearings (SOAH).
(3) Upon receipt of notice of a dispute, the department's
Executive Director, in consultation with the department's General
Counsel, shall determine whether use of an ADR procedure is an appropriate
method for resolving the dispute.
(4) If an ADR procedure is determined to be appropriate,
the department's Executive Director shall recommend to the claimant
the use of ADR to resolve the dispute. The department's General Counsel
will collaborate with the claimant to select an appropriate procedure
for dispute resolution and implement the agreed upon procedure consistent
with SOAH's model guidelines.
(5) ADR for Breach of Contract Claims. Resolution of
breach of certain contract claims brought by a contractor against
the department shall conform to the requirements of Government Code,
Chapter 2260. The department adopts by reference the Office of the
Attorney General's rules regarding the negotiation and mediation of
certain contract disputes (1 Texas Administrative Code Part 3, Chapter
(6) The requirements of Government Code, Chapter 2260,
and the Office of the Attorney General's model rules are required
prerequisites to a contractor filing suit in accordance with Civil
Practices and Remedies Code, Chapter 107.
(d) The department's General Counsel, or designee,
shall coordinate the implementation of the policy set out in subsection
(a) of this section in accordance with state law and provide necessary
training. The department's General Counsel, or designee, is designated
as the coordinator to implement the department's policy under this
rule, provide necessary training, and collect data concerning the
effectiveness of the implemented procedures.