By: Barrientos S.B. No. 1228 A BILL TO BE ENTITLED AN ACT 1-1 relating to review of public institutions of higher education by 1-2 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 Q to read as follows: 1-6 SUBCHAPTER Q. STATE POSTSECONDARY REVIEW PROGRAM 1-7 Sec. 61.791. DEFINITIONS. In this subchapter: 1-8 (1) "Entity" means the state postsecondary review 1-9 entity designated by the governor by agreement with the United 1-10 States Secretary of Education under 20 U.S.C. Chapter 28, 1-11 Subchapter IV, Part G, Subpart 1 (20 U.S.C. Section 1099a et seq.). 1-12 (2) "Program" means the state postsecondary review 1-13 program authorized under 20 U.S.C. Chapter 28, Subchapter IV, Part 1-14 G, Subpart 1 (20 U.S.C. Section 1099a et seq.). 1-15 Sec. 61.792. AGREEMENT. The governor may enter into an 1-16 agreement with the United States Secretary of Education under 20 1-17 U.S.C. Chapter 28, Subchapter IV, Part G, Subpart 1 (20 U.S.C. 1-18 Section 1099a et seq.), to participate in the program. The 1-19 agreement must designate the entity to administer the program. 1-20 Sec. 61.793. NOTICE. As soon as practicable after beginning 1-21 the review, the entity shall notify an institution of higher 1-22 education whose activities are being reviewed under the program 1-23 that the review has begun. The notice shall describe the acts and 2-1 circumstances giving rise to the review in sufficient detail to 2-2 provide the institution with notice of the allegations made. 2-3 Sec. 61.794. CIVIL INVESTIGATIVE DEMAND. (a) An authorized 2-4 employee or agent of the entity may execute in writing and serve on 2-5 an institution of higher education under review a civil 2-6 investigative demand requiring the institution to produce documents 2-7 and records or permit inspection and copying of documents and 2-8 records. 2-9 (b) A civil investigative demand must: 2-10 (1) describe the documents and records to be produced 2-11 or made available with reasonable specificity so as to fairly 2-12 identify the material demanded; 2-13 (2) state the date the documents and records are to be 2-14 produced or made available; and 2-15 (3) identify the employee or agent of the entity to 2-16 whom the documents and records are to be delivered or made 2-17 available. 2-18 (c) The entity may serve a civil investigative demand on an 2-19 institution of higher education's president, chief financial 2-20 officer, or registered agent for service of process. 2-21 (d) Service of a civil investigative demand may be made by: 2-22 (1) personal service of an executed copy of the 2-23 demand; or 2-24 (2) mailing of an executed copy of the demand by 2-25 certified mail. 3-1 (e) An institution of higher education shall produce 3-2 documents or records demanded under this section during normal 3-3 business hours at the institution's normal place of business or at 3-4 the time and place on which the institution and the staff of the 3-5 entity agree. 3-6 (f) If an institution of higher education does not comply 3-7 with a civil investigative demand under this section, the entity 3-8 may file a petition for an order of enforcement in a district court 3-9 in the county in which the institution is located and serve the 3-10 petition on a person designated in Subsection (c). The court may 3-11 enter any order necessary to enforce the demand. Failure to comply 3-12 with a final order entered under this subsection is punishable by 3-13 contempt. A final order entered under this subsection may be 3-14 appealed to the Supreme Court of Texas. 3-15 Sec. 61.795. JUDICIAL REVIEW. (a) An institution of higher 3-16 education may appeal a decision rendered by the entity in a 3-17 contested case brought under the program. The court shall 3-18 determine the appeal under the substantial evidence rule. 3-19 (b) Except as provided by Section 61.794, an action brought 3-20 under the program shall be brought in a district court in Travis 3-21 County. 3-22 Sec. 61.796. CONFIDENTIALITY. (a) Investigative 3-23 information obtained by the entity or an employee or agent of the 3-24 entity as a result of the review of an institution of higher 3-25 education, including complaints received, investigation files and 4-1 reports, and documentary material produced under Section 61.794, is 4-2 privileged and confidential. Except as provided by Subsection (c), 4-3 (d), or (e) or as ordered by a court for good cause shown, 4-4 investigative information obtained during the review of an 4-5 institution may not be disclosed to a person other than the entity 4-6 or an authorized employee or agent of the entity. 4-7 (b) The entity may use investigative information obtained 4-8 during a review of an institution in an enforcement action brought 4-9 under the program. Except as provided by the Texas Rules of Civil 4-10 Procedure or the Texas Rules of Civil Evidence, while an action 4-11 against an institution of higher education is pending the entity 4-12 may not be required to produce investigative reports or memoranda, 4-13 attorney-client communications, attorney-work product, or other 4-14 materials protected by a privilege or to disclose the identity of 4-15 nontestifying complainants. On final adjudication of an action 4-16 brought by the entity against an institution of higher education or 4-17 on completion of a review of the institution without any action 4-18 being taken against the institution, the investigative information 4-19 obtained during the review is available as provided by the open 4-20 records law, Chapter 552, Government Code. 4-21 (c) Investigative information in the possession of the 4-22 entity or an authorized employee or agent of the entity may be 4-23 disclosed to an appropriate law enforcement authority if it relates 4-24 to an investigation of an institution of higher education in 4-25 another state, territory, or country if that institution has a 5-1 branch campus or home office in this state. 5-2 (d) If investigative information in the possession of the 5-3 entity or an authorized employee or agent of the entity indicates 5-4 that a crime may have been committed, the entity shall report the 5-5 information to the appropriate law enforcement agency in accordance 5-6 with law. Confidential information disclosed by the entity to a 5-7 law enforcement agency remains confidential and may not be 5-8 disclosed by the investigating agency except as necessary to 5-9 further the investigation or prosecute a criminal violation. 5-10 (e) If investigative information in the possession of the 5-11 entity or an authorized employee or agent of the entity indicates a 5-12 potential violation of another law for which an institution of 5-13 higher education may be liable, the entity may disclose relevant 5-14 investigative information to the institution's governing board. 5-15 Sec. 61.797. IMMUNITY. A person who, in good faith, assists 5-16 the entity in the performance of the program is immune from suit by 5-17 a private party. 5-18 SECTION 2. This Act takes effect September 1, 1995. 5-19 SECTION 3. The importance of this legislation and the 5-20 crowded condition of the calendars in both houses create an 5-21 emergency and an imperative public necessity that the 5-22 constitutional rule requiring bills to be read on three several 5-23 days in each house be suspended, and this rule is hereby suspended.