By: Counts H.B. No. 1573
73R5477 NSC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adoption of the National Guard Mutual Assistance
1-3 Counter-drug Activities Compact.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 431, Government Code, is amended by
1-6 adding Subchapter K to read as follows:
1-7 SUBCHAPTER K. NATIONAL GUARD MUTUAL ASSISTANCE COUNTER-DRUG
1-8 ACTIVITIES COMPACT
1-9 Sec. 431.141. ADOPTION OF COMPACT. The National Guard
1-10 Mutual Assistance Counter-drug Activities Compact is enacted and
1-11 entered into by this state in the following form:
1-12 NATIONAL GUARD MUTUAL ASSISTANCE
1-13 COUNTER-DRUG ACTIVITIES COMPACT
1-14 ARTICLE I
1-15 Purpose
1-16 The purposes of this compact are to:
1-17 A. Provide for mutual assistance and support among the
1-18 party states in the utilization of the national guard in drug
1-19 interdiction, counter-drug and demand reduction activities.
1-20 B. Permit the national guard of this state to enter
1-21 into mutual assistance and support agreements, on the basis of
1-22 need, with one or more law enforcement agencies operating within
1-23 this state, for activities within this state, or with a national
1-24 guard of one or more other states, whether said activities are
2-1 within or without this state in order to facilitate and coordinate
2-2 efficient, cooperative enforcement efforts directed toward drug
2-3 interdiction, counter-drug activities and demand reduction.
2-4 C. Permit the national guard of this state to act as a
2-5 receiving and a responding state as defined within this compact and
2-6 to ensure the prompt and effective delivery of national guard
2-7 personnel, assets and services to agencies or areas that are in
2-8 need of increased support and presence.
2-9 D. Permit and encourage a high degree of flexibility
2-10 in the deployment of national guard forces in the interest of
2-11 efficiency.
2-12 E. Maximize the effectiveness of the national guard in
2-13 those situations which call for its utilization under this compact.
2-14 F. Provide protection for the rights of national guard
2-15 personnel when performing duty in other states in counter-drug
2-16 activities.
2-17 G. Ensure uniformity of state laws in the area of
2-18 national guard involvement in interstate counter-drug activities by
2-19 incorporating said uniform laws within the compact.
2-20 ARTICLE II
2-21 Entry Into Force and Withdrawal
2-22 A. This compact shall enter into force when enacted into law
2-23 by any two states. Thereafter, this compact shall become effective
2-24 as to any other state upon its enactment thereof.
2-25 B. Any party state may withdraw from this compact by
2-26 enacting a statute repealing the same, but no such withdrawal shall
2-27 take effect until one year after the governor of the withdrawing
3-1 state has given notice in writing of such withdrawal to the
3-2 governors of all other party states.
3-3 ARTICLE III
3-4 Mutual Assistance and Support
3-5 A. As used in this article:
3-6 1. "Drug interdiction and counter-drug activities"
3-7 means the use of national guard personnel, while not in federal
3-8 service, in any law enforcement support activities that are
3-9 intended to reduce the supply or use of illegal drugs in the United
3-10 States. These activities include, but are not limited to:
3-11 (a) Providing information obtained during either
3-12 the normal course of military training or operations or during
3-13 counter-drug activities, to federal, state or local law enforcement
3-14 officials that may be relevant to a violation of any federal or
3-15 state law within the jurisdiction of such officials;
3-16 (b) Making available any equipment (including
3-17 associated supplies or spare parts), base facilities or research
3-18 facilities of the national guard to any federal, state or local
3-19 civilian law enforcement official for law enforcement purposes, in
3-20 accordance with other applicable law or regulation;
3-21 (c) Providing available national guard personnel
3-22 to train federal, state or local civilian law enforcement in the
3-23 operation and maintenance of equipment, including equipment made
3-24 available above, in accordance with other applicable law;
3-25 (d) Providing available national guard personnel
3-26 to operate and maintain equipment provided to federal, state or
3-27 local law enforcement officials pursuant to activities defined and
4-1 referred to in this compact;
4-2 (e) Operation and maintenance of equipment and
4-3 facilities of the national guard or law enforcement agencies used
4-4 for the purposes of drug interdiction and counter-drug activities;
4-5 (f) Providing available national guard personnel
4-6 to operate equipment for the detection, monitoring and
4-7 communication of the movement of air, land and sea traffic, to
4-8 facilitate communications in connection with law enforcement
4-9 programs, to provide transportation for civilian law enforcement
4-10 personnel and to operate bases of operations for civilian law
4-11 enforcement personnel;
4-12 (g) Providing available national guard
4-13 personnel, equipment and support for administrative, interpretive,
4-14 analytic or other purposes;
4-15 (h) Providing available national guard personnel
4-16 and equipment to aid federal, state and local officials and
4-17 agencies otherwise involved in the prosecution or incarceration of
4-18 individuals processed within the criminal justice system who have
4-19 been arrested for criminal acts involving the use, distribution or
4-20 transportation of controlled substances as defined in 21 U.S.C. 801
4-21 et seq. or otherwise by law, in accordance with other applicable
4-22 law.
4-23 2. "Demand reduction" means providing available
4-24 national guard personnel, equipment, support and coordination to
4-25 federal, state, local and civic organizations, institutions and
4-26 agencies for the purposes of the prevention of drug abuse and the
4-27 reduction in the demand for illegal drugs.
5-1 3. "Requesting state" means the state whose governor
5-2 requested assistance in the area of counter-drug activities.
5-3 4. "Responding state" means the state furnishing
5-4 assistance, or requested to furnish assistance, in the area of
5-5 counter-drug activities.
5-6 5. "Law enforcement agency" means a lawfully
5-7 established federal, state or local public agency that is
5-8 responsible for the prevention and detection of crime and the
5-9 enforcement of penal, traffic, regulatory, game, immigration,
5-10 postal, customs or controlled substances laws.
5-11 6. "Official" means the appointed, elected, designated
5-12 or otherwise duly selected representative of an agency, institution
5-13 or organization authorized to conduct those activities for which
5-14 support is requested.
5-15 7. "Mutual Assistance and Support Agreement" or
5-16 "agreement" means an agreement between the national guard of this
5-17 state and one or more law enforcement agencies or between the
5-18 national guard of this state and the national guard of one or more
5-19 other states, consistent with the purposes of this compact.
5-20 8. "Party state" refers to a state that has lawfully
5-21 enacted this compact.
5-22 9. "State" means each of the several states of the
5-23 United States, the District of Columbia, the Commonwealth of Puerto
5-24 Rico or a territory or possession of the United States.
5-25 B. Upon the request of a governor of a party state for
5-26 assistance in the area of drug interdiction, counter-drug and
5-27 demand reduction activities, the governor of a responding state
6-1 shall have authority under this compact to send without the borders
6-2 of his or her state and place under the temporary operational
6-3 control of the appropriate national guard or other military
6-4 authorities of the requesting state, for the purposes of providing
6-5 such requested assistance, all or any part of the national guard
6-6 forces of his or her state as he or she may deem necessary, and the
6-7 exercise of his or her discretion in this regard shall be
6-8 conclusive.
6-9 C. The governor of a party state may, within his or her
6-10 discretion, withhold the national guard forces of his or her state
6-11 from such use and recall any forces or part or member thereof
6-12 previously deployed in a requesting state.
6-13 D. The national guard of this state is hereby authorized to
6-14 engage in counter-drug activities and demand reduction.
6-15 E. The Adjutant General of this state, in order to further
6-16 the purposes of this compact, may enter into a mutual assistance
6-17 and support agreement with one or more law enforcement agencies of
6-18 this state, including federal law enforcement agencies operating
6-19 within this state, or with the national guard of one or more other
6-20 party states to provide personnel, assets and services in the area
6-21 of counter-drug activities, and demand reduction provided that all
6-22 parties to the agreement are not specifically prohibited by law to
6-23 perform said activities.
6-24 F. The agreement must set forth the powers, rights and
6-25 obligations of the parties to the agreement, where applicable, as
6-26 follows:
6-27 1. Its duration;
7-1 2. The organization, composition and nature of any
7-2 separate legal entity created thereby;
7-3 3. The purpose of the agreement;
7-4 4. The manner of financing the agreement and
7-5 establishing and maintaining its budget;
7-6 5. The method to be employed in accomplishing the
7-7 partial or complete termination of the agreement and for disposing
7-8 of property upon such partial or complete termination;
7-9 6. Provision for administering the agreement, which
7-10 may include creation of a joint board responsible for such
7-11 administration;
7-12 7. The manner of acquiring, holding and disposing of
7-13 real and personal property used in this agreement, if necessary;
7-14 8. The minimum standards for national guard personnel
7-15 implementing the provisions of this agreement;
7-16 9. The minimum insurance required of each party to the
7-17 agreement, if necessary;
7-18 10. The chain of command or delegation of authority to
7-19 be followed by national guard personnel acting under the provisions
7-20 of the agreement;
7-21 11. The duties and authority that the national guard
7-22 personnel of each party state may exercise; and
7-23 12. Any other necessary and proper matters.
7-24 Agreements prepared under the provisions of this statute are exempt
7-25 from any general law pertaining to intergovernmental agreements.
7-26 G. As a condition precedent to an agreement becoming
7-27 effective under this part, the agreement must be submitted to and
8-1 receive the approval of the office of the attorney general. The
8-2 attorney general may delegate his or her approval authority to the
8-3 appropriate attorney for the Texas National Guard subject to those
8-4 conditions which he or she decides are appropriate. Said
8-5 delegation must be in writing:
8-6 1. The attorney general, or his or her agent in the
8-7 Texas National Guard as stated above, shall approve an agreement
8-8 submitted to him or her under this part unless he or she finds that
8-9 it is not in proper form, does not meet the requirements set forth
8-10 in this part, or otherwise does not conform to the laws of Texas.
8-11 If the Attorney General disapproves an agreement, he or she shall
8-12 provide a written explanation to the adjutant general of the
8-13 national guard.
8-14 2. If the attorney general, or his or her authorized
8-15 agent as stated above, does not disapprove an agreement within
8-16 thirty days after its submission to him or her, it is considered
8-17 approved by him or her.
8-18 H. Whenever national guard forces of any party state are
8-19 engaged in the performance of duties, in the area of drug
8-20 interdiction, counter-drug and demand reduction activities,
8-21 pursuant to orders, they shall not be held personally liable for
8-22 any acts or omissions which occur during the performance of their
8-23 duty.
8-24 ARTICLE IV
8-25 Responsibilities
8-26 A. Nothing in this compact shall be construed as a waiver of
8-27 any benefits, privileges, immunities or rights otherwise provided
9-1 for national guard personnel performing duty pursuant to Title 32
9-2 of the United States Code nor shall anything in this compact be
9-3 construed as a waiver of coverage provided for under the Federal
9-4 Tort Claims Act. In the event that national guard personnel
9-5 performing counter-drug activities do not receive rights, benefits,
9-6 privileges and immunities otherwise provided for national guard
9-7 personnel as stated above, the following provisions shall apply:
9-8 1. Whenever national guard forces of any responding
9-9 state are engaged in another state in carrying out the purposes of
9-10 this compact, the members thereof so engaged shall have the same
9-11 powers, duties, rights, privileges and immunities as members of
9-12 national guard forces of the requesting state. The requesting
9-13 state shall save and hold members of the national guard forces of
9-14 responding states harmless from civil liability, except as
9-15 otherwise provided herein, for acts or omissions which occur in the
9-16 performance of their duty while engaged in carrying out the purpose
9-17 of this compact, whether responding forces are serving the
9-18 requesting state within the borders of the responding state or are
9-19 attached to the requesting state for purposes of operational
9-20 control.
9-21 2. Subject to the provisions of paragraphs 3, 4 and 5
9-22 of this article, all liability that may arise under the laws of the
9-23 requesting state or the responding states, on account of or in
9-24 connection with a request for assistance or support, shall be
9-25 assumed and borne by the requesting state.
9-26 3. Any responding state rendering aid or assistance
9-27 pursuant to this compact shall be reimbursed by the requesting
10-1 state for any loss or damage to, or expense incurred in the
10-2 operation of, any equipment answering a request for aid, and for
10-3 the cost of the materials, transportation and maintenance of
10-4 national guard personnel and equipment incurred in connection with
10-5 such request, provided that nothing herein contained shall prevent
10-6 any responding state from assuming such loss, damage, expense or
10-7 other cost.
10-8 4. Unless there is a written agreement to the
10-9 contrary, each party shall provide, in the same amounts and manner
10-10 as if they were on duty within their state, for pay and allowances
10-11 of the personnel of its national guard units while engaged without
10-12 the state pursuant to this compact and while going to and returning
10-13 from such duty pursuant to this compact.
10-14 5. Each party state providing for the payment of
10-15 compensation and death benefits to injured members and the
10-16 representatives of deceased members of its national guard forces in
10-17 case such members sustain injuries or are killed within their own
10-18 state shall provide for the payment of compensation and death
10-19 benefits in the same manner and on the same terms in the event such
10-20 members sustain injury or are killed while rendering assistance or
10-21 support pursuant to this compact. Such benefits and compensation
10-22 shall be deemed items of expense reimbursable pursuant to paragraph
10-23 3 of this article.
10-24 B. Officers and enlisted personnel of the national guard
10-25 performing duties subject to proper orders pursuant to this compact
10-26 shall be subject to and governed by the provisions of their home
10-27 state code of military justice whether they are performing duties
11-1 within or without their home state. In the event that any national
11-2 guard member commits, or is suspected of committing, a criminal
11-3 offense while performing duties pursuant to this compact without
11-4 his or her home state, he or she may be returned immediately to his
11-5 or her home state and said home state shall be responsible for any
11-6 disciplinary action to be taken. However, nothing in this section
11-7 shall abrogate the general criminal jurisdiction of the state in
11-8 which the offense occurred.
11-9 ARTICLE V
11-10 Delegation
11-11 Nothing in this compact shall be construed to prevent the
11-12 governor of a party state from delegating any of his or her
11-13 responsibilities or authority respecting the national guard,
11-14 provided that such delegation is otherwise in accordance with law.
11-15 For purposes of this compact, however, the governor shall not
11-16 delegate the power to request assistance from another state.
11-17 ARTICLE VI
11-18 Limitations
11-19 Nothing in this compact shall:
11-20 1. Authorize or permit national guard units or
11-21 personnel to be placed under the operational control of any person
11-22 not having the national guard rank or status required by law for
11-23 the command in question.
11-24 2. Deprive a properly convened court of jurisdiction
11-25 over an offense or a defendant merely because of the fact that the
11-26 national guard, while performing duties pursuant to this compact,
11-27 was utilized in achieving an arrest or indictment.
12-1 ARTICLE VII
12-2 Construction and Severability
12-3 This compact shall be liberally construed so as to effectuate
12-4 the purposes thereof. The provisions of this compact shall be
12-5 severable and if any phrase, clause, sentence or provision of this
12-6 compact is declared to be contrary to the constitution of the
12-7 United States or of any state or the applicability thereof to any
12-8 government, agency, person or circumstance is held invalid, the
12-9 validity of the remainder of this compact and the applicability
12-10 thereof to any government, agency, person or circumstance shall not
12-11 be affected thereby. If this compact shall be held contrary to the
12-12 constitution of any state participating herein, the compact shall
12-13 remain in full force and effect as to the remaining party states
12-14 and in full force and effect as to the state affected as to all
12-15 severable matters.
12-16 Sec. 431.142. AUTHORITY OF TEXAS NATIONAL GUARD UNDER
12-17 COMPACT. (a) The Texas National Guard may conduct drug
12-18 interdiction, counter-drug, and demand reduction activities in this
12-19 state as provided by the National Guard Mutual Assistance
12-20 Counter-drug Activities Compact.
12-21 (b) The Texas National Guard may enter into a mutual
12-22 assistance and support agreement with a law enforcement agency
12-23 operating in this state for activities in this state.
12-24 SECTION 2. The importance of this legislation and the
12-25 crowded condition of the calendars in both houses create an
12-26 emergency and an imperative public necessity that the
12-27 constitutional rule requiring bills to be read on three several
13-1 days in each house be suspended, and this rule is hereby suspended,
13-2 and that this Act take effect and be in force from and after its
13-3 passage, and it is so enacted.