By: Barrientos S.B. No. 1358
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the creation and administration of the state
1-2 postsecondary review program.
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 P to read as follows:
1-6 SUBCHAPTER P. STATE POSTSECONDARY REVIEW PROGRAM
1-7 Sec. 1.01. PURPOSE; CREATION; ADMINISTRATION. The purpose
1-8 of this subchapter is to facilitate implementation of the state
1-9 postsecondary review program authorized under the Higher Education
1-10 Act of 1965, as amended (20 U.S.C. Section 1001 et seq.). The
1-11 state postsecondary review program is created to reduce waste,
1-12 fraud, and abuse in the federally guaranteed student loan program
1-13 through state oversight and review of identified postsecondary
1-14 educational institutions. The Texas Higher Education Coordinating
1-15 Board, which has been designated by the governor in agreement with
1-16 the Secretary of Education as the Texas state postsecondary review
1-17 entity, shall administer the program.
1-18 Sec. 1.02. DEFINITIONS. In this subchapter:
1-19 (1) "Entity" means the Texas Higher Education
1-20 Coordinating Board, acting as the Texas state postsecondary review
1-21 entity, or its successor designated by the governor.
1-22 (2) "Program" means the state postsecondary review
1-23 program authorized under Title IV, Part G, Subpart 1, Higher
2-1 Education Act of 1965, as amended (20 U.S.C. Section 1099 et seq.).
2-2 Sec. 1.03. JURISDICTION. The district court of Travis
2-3 County has jurisdiction to hear and determine appeals of a decision
2-4 rendered by the entity in a contested case brought pursuant to the
2-5 program. The scope of judicial review of any appeal shall be under
2-6 the substantial evidence rule.
2-7 Sec. 1.04. VENUE. Except as provided in Section 1.08(g), an
2-8 action brought pursuant to the program shall be brought in district
2-9 court in Travis County. Any action brought against the entity
2-10 arising from its administration of the program shall be brought in
2-11 district court in Travis County.
2-12 Sec. 1.05. IMMUNITY. No private cause of action may be
2-13 asserted against any person who in good faith assists the entity in
2-14 the performance of program review activities.
2-15 Sec. 1.06. NOTICE. The entity shall provide an institution
2-16 that is the subject of a review with notice that a review of its
2-17 activities has been commenced. The notice shall contain a
2-18 description of the acts, conduct, and circumstances giving rise to
2-19 the review in sufficient detail to provide the institution with
2-20 knowledge of the allegations made.
2-21 Sec. 1.07. CONFIDENTIALITY. (a) All investigative
2-22 information obtained by the entity or its employees or agents as a
2-23 result of the review of an institution, including complaints
2-24 received, investigation files and reports, and documentary material
2-25 produced pursuant to Section 1.04, is privileged and confidential.
3-1 Except as provided in Subsections (c), (d), and (e), no information
3-2 obtained during the review of an institution, unless otherwise
3-3 ordered by a court for good cause shown, shall be disclosed to or
3-4 produced for any person other than the entity or an authorized
3-5 employee or agent of the entity.
3-6 (b) The entity may use investigative information obtained
3-7 during a review of an institution in any enforcement action brought
3-8 pursuant to the program. Except as provided by the Texas Rules of
3-9 Civil Procedure or the Texas Rules of Civil Evidence, during the
3-10 pendency of an action brought against a postsecondary institution
3-11 the entity shall not be required to produce investigative reports
3-12 or memoranda, the identity of nontestifying complainants,
3-13 attorney-client communications, attorney work product, or other
3-14 materials protected by a privilege. On final adjudication of an
3-15 action brought against a postsecondary institution by the entity or
3-16 when a review is completed with no action taken against an
3-17 institution, the entity shall make available records concerning the
3-18 review as required by the open records law, Chapter 552, Government
3-19 Code.
3-20 (c) Investigative information in the possession of the
3-21 entity or its authorized employees or agents may be disclosed to an
3-22 appropriate law enforcement authority when it relates to an
3-23 investigation of an institution in another state, territory, or
3-24 country when that institution also has a branch campus or home
3-25 office in the State of Texas.
4-1 (d) If investigative information in the possession of the
4-2 entity or its authorized employees or agents indicates that a crime
4-3 may have been committed, the entity shall report the information to
4-4 the appropriate law enforcement agency in accordance with law. Any
4-5 information disclosed by the entity to a law enforcement agency
4-6 remains confidential and may not be disclosed by the investigating
4-7 agency except as necessary to further the investigation or
4-8 prosecute a criminal violation.
4-9 (e) If investigative information in the possession of the
4-10 entity or its authorized employees or agents indicates a potential
4-11 violation of another law for which the institution may be liable,
4-12 the entity may disclose relevant investigative information to the
4-13 institution's governing board.
4-14 Sec. 1.08. CIVIL INVESTIGATIVE DEMAND. (a) An authorized
4-15 employee or agent of the entity may execute in writing and serve on
4-16 the institution under review a civil investigative demand requiring
4-17 the institution to produce documents and records or permit
4-18 inspection and copying of such documents and records.
4-19 (b) Each civil investigative demand shall:
4-20 (1) describe the documents and records to be produced
4-21 with reasonable specificity so as to fairly indicate the material
4-22 demanded;
4-23 (2) prescribed a return date by which the documents
4-24 and records are to be produced; and
4-25 (3) identify the entity employee or agent to whom the
5-1 documents and records are to be produced or made available for
5-2 inspection and copying.
5-3 (c) For purposes of this section, service on the institution
5-4 may be accomplished by serving the institution's president, its
5-5 chief financial officer, or its registered agent for service of
5-6 process.
5-7 (d) Service of the demand may be made by:
5-8 (1) delivery of a duly executed copy of the demand; or
5-9 (2) mailing a duly executed copy of the demand by
5-10 certified mail.
5-11 (e) Documents or records demanded pursuant to this section
5-12 shall be produced during normal business hours at the institution's
5-13 normal place of business or at such time and place as may be agreed
5-14 on by the institution and entity staff.
5-15 (f) If an institution fails to comply with a civil
5-16 investigative demand for documents or records served on it pursuant
5-17 to this section or if satisfactory copying or reproduction of the
5-18 material cannot be performed and the institution refuses to
5-19 surrender the material, the entity may file in the district court
5-20 in the county in which the institution is located and serve on any
5-21 of the individuals designated in Subsection (c) a petition for an
5-22 order of enforcement.
5-23 (g) A district court in the county in which the institution
5-24 is located has jurisdiction to hear and determine disputes relating
5-25 to civil investigative demands under this section and enter any
6-1 order required to carry into effect the provisions of this section.
6-2 Any final order entered is subject to appeal to the Supreme Court
6-3 of Texas. Failure to comply with any final order entered under
6-4 this section is punishable by contempt.
6-5 SECTION 2. The importance of this legislation and the
6-6 crowded condition of the calendars in both houses create an
6-7 emergency and an imperative public necessity that the
6-8 constitutional rule requiring bills to be read on three several
6-9 days in each house be suspended, and this rule is hereby suspended.