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 * * * * *