By Gutierrez H.B. No. 2486 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to actions by the State Postsecondary Review Entity. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Chapter 61, Education Code, is amended by adding 1-5 Subchapter P to read as follows: 1-6 SUBCHAPTER P. STATE POSTSECONDARY REVIEW PROGRAM 1-7 Sec. 1.01. PURPOSE. The purpose of this subchapter is to 1-8 facilitate implementation of the State Postsecondary Review Program 1-9 authorized under the Higher Education Act of 1965, as amended. 1-10 Sec. 1.02. DEFINITIONS. (a) "Entity" means the Texas State 1-11 Postsecondary Review Entity as designated by the Governor, in an 1-12 agreement with the United States Secretary of Education, to 1-13 administer the State Postsecondary Review Program. The Texas 1-14 Higher Education Coordinating Board has been designated as the 1-15 State Postsecondary Review Entity in Texas. For purposes of this 1-16 subchapter, entity means the Higher Education Coordinating Board 1-17 and any designee or successor designated by the Governor; and 1-18 (b) "Program" means the State Postsecondary Review Program 1-19 authorized under the Higher Education Act of 1965 (Title IV, Part 1-20 H, Subpart I, United States Code Annotated, as amended) to reduce 1-21 waste, fraud and abuse in the federally guaranteed student loan 1-22 program through state oversight and review of identified 1-23 postsecondary educational institutions. 2-1 Sec. 1.03. JURISDICTION. The district court of Travis 2-2 County shall have jurisdiction to hear and determine appeals of a 2-3 decision rendered by the entity in a contested case brought 2-4 pursuant to the program. The scope of judicial review of any 2-5 appeal shall be pursuant to the substantial evidence rule. 2-6 Sec. 1.04. VENUE. Except as provided in section 1.08(g), 2-7 any action brought pursuant to the program shall be brought in 2-8 district court in Travis County. Any action brought against the 2-9 entity arising from the program shall be brought in district court 2-10 in Travis County. 2-11 Sec. 1.05. IMMUNITY. There shall be no private cause of 2-12 action against any person who, in good faith, assists the entity in 2-13 the performance of program review activities. 2-14 Sec. 1.06. NOTICE. The entity shall provide an institution 2-15 that is the subject of a review with notice that a review of its 2-16 activities has been commenced. The notice shall contain a 2-17 description of the acts, conduct and circumstances giving rise to 2-18 the review in sufficient detail to provide the institution with 2-19 knowledge of the allegations made. 2-20 Sec. 1.07. CONFIDENTIALITY. (a) All investigative 2-21 information obtained by the entity or its employees or agents as a 2-22 result of the review of an institution, including complaints 2-23 received, investigation files and reports, and documentary material 2-24 produced pursuant to section 1.04, are privileged and confidential. 2-25 Except as provided in subsections (c), (d), and (e), no information 3-1 obtained during the review of an institution, unless otherwise 3-2 ordered by a court for good cause shown, shall be disclosed or 3-3 produced to any person other than the entity or an authorized 3-4 employee or agent of the entity. 3-5 (b) The entity may use investigative information obtained 3-6 during a review of an institution in any enforcement action brought 3-7 pursuant to the program. Except as provided by the Texas Rules of 3-8 Civil Procedure or the Texas Rules of Civil Evidence, during the 3-9 pendency of an action brought against a postsecondary institution, 3-10 the entity shall not be required to produce investigative reports 3-11 or memoranda, the identity of non-testifying complainants, 3-12 attorney-client communications, attorney-work product, or other 3-13 materials protected by a privilege. Upon final adjudication of an 3-14 action brought against a postsecondary institution by the entity or 3-15 when a review is completed with no action taken against an 3-16 institution, the entity shall make records concerning the review 3-17 available as required by the Texas Open Records Act. 3-18 (c) Investigative information in the possession of the 3-19 entity or its authorized employees or agents may be disclosed to an 3-20 appropriate law enforcement authority when it relates to an 3-21 investigation of an institution in another state, territory, or 3-22 country when that institution also has a branch campus or home 3-23 office in the State of Texas. 3-24 (d) If investigative information in the possession of the 3-25 entity or its authorized employees or agents indicates that a crime 4-1 may have been committed, the entity shall report the information to 4-2 the appropriate law enforcement agency in accordance with law. Any 4-3 information disclosed by the entity to a law enforcement agency 4-4 shall remain confidential and shall not be disclosed by the 4-5 investigating agency except as necessary to further the 4-6 investigation or prosecute a criminal violation. 4-7 (e) If investigative information in the possession of the 4-8 entity or its authorized employees or agents indicates a potential 4-9 violation of another law for which the institution may be liable 4-10 the entity may disclose relevant investigative information to the 4-11 institution's governing board. 4-12 Sec. 1.08. CIVIL INVESTIGATIVE DEMAND. (a) An authorized 4-13 employee or agent of the entity may execute in writing and serve on 4-14 the institution under review a civil investigative demand requiring 4-15 the institution to produce documents and records and/or permit 4-16 inspection and copying of such documents and records. 4-17 (b) Each civil investigative demand shall: 4-18 (1) describe the documents and records to be produced 4-19 with reasonable specificity so as to fairly indicate the material 4-20 demanded; 4-21 (2) prescribe a return date within which the documents 4-22 and records are to be produced; and 4-23 (3) identify the entity employee or agent to whom the 4-24 documents and records are to be produced or made available for 4-25 inspection and copying. 5-1 (c) For purposes of this section, service upon the 5-2 institution may be accomplished by serving the institution's 5-3 president, its chief financial officer or its registered agent for 5-4 service of process. 5-5 (d) Service of the demand may be made by: 5-6 (1) delivery of a duly executed copy of the demand; or 5-7 (2) mailing a duly executed copy of the demand by 5-8 certified mail. 5-9 (e) Documents or records demanded pursuant to this section 5-10 shall be produced during normal business hours at the institution's 5-11 normal place of business or at such time and place as may be agreed 5-12 upon by the institution and entity staff. 5-13 (f) If an institution fails to comply with a civil 5-14 investigative demand for documents or records served on it pursuant 5-15 to this section, or if satisfactory copying or reproduction of the 5-16 material cannot be performed and the institution refuses to 5-17 surrender the material, the entity may file in the district court 5-18 in the county in which the institution is located, and serve on any 5-19 of the individuals designated in subsection (c), a petition for an 5-20 order of enforcement. 5-21 (g) A district court in the county where the institution is 5-22 located shall have jurisdiction to hear and determine this matter 5-23 and enter any order required to carry into effect the provisions of 5-24 this section. Any final order entered is subject to appeal to the 5-25 Texas Supreme Court. Failure to comply with any final order 6-1 entered under this section is punishable by contempt. 6-2 SECTION 2. The importance of this legislation and the 6-3 crowded condition of the calendars in both houses create an 6-4 emergency and in imperative public necessity that the 6-5 constitutional rule requiring bills to be read on three several 6-6 days in each house be suspended, and this rule is hereby suspended.