1-1 By: Barrientos S.B. No. 1228
1-2 (In the Senate - Filed March 10, 1995; March 16, 1995, read
1-3 first time and referred to Committee on Education; April 26, 1995,
1-4 reported adversely, with favorable Committee Substitute by the
1-5 following vote: Yeas 10, Nays 0; April 26, 1995, sent to printer.)
1-6 COMMITTEE SUBSTITUTE FOR S.B. No. 1228 By: Barrientos
1-7 A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to review of public institutions of higher education by
1-10 the state postsecondary review entity.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Chapter 61, Education Code, is amended by adding
1-13 Subchapter Q to read as follows:
1-14 SUBCHAPTER Q. STATE POSTSECONDARY REVIEW PROGRAM
1-15 Sec. 61.791. DEFINITIONS. In this subchapter:
1-16 (1) "Entity" means the state postsecondary review
1-17 entity designated by the governor by agreement with the United
1-18 States Secretary of Education under 20 U.S.C. Chapter 28,
1-19 Subchapter IV, Part G, Subpart 1 (20 U.S.C. Section 1099a et seq.).
1-20 (2) "Program" means the state postsecondary review
1-21 program authorized under 20 U.S.C. Chapter 28, Subchapter IV, Part
1-22 G, Subpart 1 (20 U.S.C. Section 1099a et seq.).
1-23 Sec. 61.792. AGREEMENT. The governor may enter into an
1-24 agreement with the United States Secretary of Education under 20
1-25 U.S.C. Chapter 28, Subchapter IV, Part G, Subpart 1 (20 U.S.C.
1-26 Section 1099a et seq.), to participate in the program. The
1-27 agreement must designate the entity to administer the program.
1-28 Sec. 61.793. NOTICE. As soon as practicable after beginning
1-29 the review, the entity shall notify an institution of higher
1-30 education whose activities are being reviewed under the program
1-31 that the review has begun. The notice shall describe the acts and
1-32 circumstances giving rise to the review in sufficient detail to
1-33 provide the institution with notice of the allegations made.
1-34 Sec. 61.794. CIVIL INVESTIGATIVE DEMAND. (a) An authorized
1-35 employee or agent of the entity may execute in writing and serve on
1-36 an institution of higher education under review a civil
1-37 investigative demand requiring the institution to produce documents
1-38 and records or permit inspection and copying of documents and
1-39 records.
1-40 (b) A civil investigative demand must:
1-41 (1) describe the documents and records to be produced
1-42 or made available with reasonable specificity so as to fairly
1-43 identify the material demanded;
1-44 (2) state the date the documents and records are to be
1-45 produced or made available; and
1-46 (3) identify the employee or agent of the entity to
1-47 whom the documents and records are to be delivered or made
1-48 available.
1-49 (c) The entity may serve a civil investigative demand on an
1-50 institution of higher education's president, chief financial
1-51 officer, or registered agent for service of process.
1-52 (d) Service of a civil investigative demand may be made by:
1-53 (1) personal service of an executed copy of the
1-54 demand; or
1-55 (2) mailing of an executed copy of the demand by
1-56 certified mail.
1-57 (e) An institution of higher education shall produce
1-58 documents or records demanded under this section during normal
1-59 business hours at the institution's normal place of business or at
1-60 the time and place on which the institution and the staff of the
1-61 entity agree.
1-62 (f) If an institution of higher education does not comply
1-63 with a civil investigative demand under this section, the entity
1-64 may file a petition for an order of enforcement in a district court
1-65 in the county in which the institution is located and serve the
1-66 petition on a person designated in Subsection (c). The court may
1-67 enter any order necessary to enforce the demand. Failure to comply
1-68 with a final order entered under this subsection is punishable by
2-1 contempt. A final order entered under this subsection may be
2-2 appealed to the Supreme Court of Texas.
2-3 Sec. 61.795. JUDICIAL REVIEW. (a) An institution of higher
2-4 education may appeal a decision rendered by the entity in a
2-5 contested case brought under the program. The court shall
2-6 determine the appeal under the substantial evidence rule.
2-7 (b) Except as provided by Section 61.794, an action brought
2-8 under the program shall be brought in a district court in Travis
2-9 County.
2-10 Sec. 61.796. CONFIDENTIALITY. (a) Investigative
2-11 information obtained by the entity or an employee or agent of the
2-12 entity as a result of the review of an institution of higher
2-13 education, including complaints received, investigation files and
2-14 reports, and documentary material produced under Section 61.794, is
2-15 privileged and confidential. Except as provided by Subsection (c),
2-16 (d), or (e) or as ordered by a court for good cause shown,
2-17 investigative information obtained during the review of an
2-18 institution may not be disclosed to a person other than the entity
2-19 or an authorized employee or agent of the entity.
2-20 (b) The entity may use investigative information obtained
2-21 during a review of an institution in an enforcement action brought
2-22 under the program. Except as provided by the Texas Rules of Civil
2-23 Procedure or the Texas Rules of Civil Evidence, while an action
2-24 against an institution of higher education is pending the entity
2-25 may not be required to produce investigative reports or memoranda,
2-26 attorney-client communications, attorney-work product, or other
2-27 materials protected by a privilege or to disclose the identity of
2-28 nontestifying complainants. On final adjudication of an action
2-29 brought by the entity against an institution of higher education or
2-30 on completion of a review of the institution without any action
2-31 being taken against the institution, the investigative information
2-32 obtained during the review is available as provided by the open
2-33 records law, Chapter 552, Government Code.
2-34 (c) Investigative information in the possession of the
2-35 entity or an authorized employee or agent of the entity may be
2-36 disclosed to an appropriate law enforcement authority if it relates
2-37 to an investigation of an institution of higher education in
2-38 another state, territory, or country if that institution has a
2-39 branch campus or home office in this state.
2-40 (d) If investigative information in the possession of the
2-41 entity or an authorized employee or agent of the entity indicates
2-42 that a crime may have been committed, the entity shall report the
2-43 information to the appropriate law enforcement agency in accordance
2-44 with law. Confidential information disclosed by the entity to a
2-45 law enforcement agency remains confidential and may not be
2-46 disclosed by the investigating agency except as necessary to
2-47 further the investigation or prosecute a criminal violation.
2-48 (e) If investigative information in the possession of the
2-49 entity or an authorized employee or agent of the entity indicates a
2-50 potential violation of another law for which an institution of
2-51 higher education may be liable, the entity may disclose relevant
2-52 investigative information to the institution's governing board.
2-53 Sec. 61.797. IMMUNITY. A person who, in good faith, assists
2-54 the entity in the performance of the program is immune from suit by
2-55 a private party.
2-56 SECTION 2. This Act takes effect September 1, 1995.
2-57 SECTION 3. The importance of this legislation and the
2-58 crowded condition of the calendars in both houses create an
2-59 emergency and an imperative public necessity that the
2-60 constitutional rule requiring bills to be read on three several
2-61 days in each house be suspended, and this rule is hereby suspended.
2-62 * * * * *