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