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.
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