Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Greenberg H.B. No. 1146
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the use of alternative dispute resolution procedures by
1-3 state agencies.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 10, Government Code, is amended
1-6 by adding Chapter 2008 to read as follows:
1-7 CHAPTER 2008. ALTERNATIVE DISPUTE RESOLUTION AT STATE AGENCIES
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 2008.001. SHORT TITLE. This chapter may be cited as
1-10 the Governmental Dispute Resolution Act.
1-11 Sec. 2008.002. POLICY. It is the policy of this state that
1-12 disputes before state agencies be resolved as fairly and
1-13 expeditiously as possible, and that each state agency support this
1-14 policy by developing and using alternative dispute resolution
1-15 procedures in appropriate aspects of the agency's operations and
1-16 programs.
1-17 Sec. 2008.003. DEFINITIONS. In this chapter:
1-18 (1) "Alternative dispute resolution procedure"
1-19 includes:
1-20 (A) a procedure described by Chapter 154, Civil
1-21 Practice and Remedies Code; and
1-22 (B) a combination of these procedures.
1-23 (2) "State agency" means an officer, board,
1-24 commission, department, or other agency in the executive branch of
2-1 state government with statewide jurisdiction that makes rules or
2-2 determines contested cases. The term includes:
2-3 (A) the attorney general;
2-4 (B) an institution of higher education as
2-5 defined by Section 61.003, Education Code; and
2-6 (C) the State Office of Administrative Hearings.
2-7 (3) The following terms have the meanings assigned by
2-8 Section 2001.003:
2-9 (A) "contested case";
2-10 (B) "party";
2-11 (C) "person"; and
2-12 (D) "rule".
2-13 Sec. 2008.004. AGENCY CONTRACTS; BUDGETING FOR COSTS. (a)
2-14 A state agency may pay for costs necessary to meet the objectives
2-15 of this chapter, including reasonable fees for training, policy
2-16 review, system design, evaluation, and the use of impartial third
2-17 parties. To the extent allowed by the General Appropriations Act,
2-18 the agency may use for this purpose money budgeted for legal
2-19 services, executive administration, or any other appropriate aspect
2-20 of the agency's operations.
2-21 (b) A state agency may contract with another state agency,
2-22 including the Center for Public Policy Dispute Resolution at The
2-23 University of Texas School of Law, or with a private entity for any
2-24 service necessary to meet the objectives of this chapter.
2-25 (Sections 2008.005-2008.050 reserved for expansion
2-26 SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION
2-27 Sec. 2008.051. DEVELOPMENT AND USE OF PROCEDURES. (a)
2-28 Alternative dispute resolution procedures developed and used by a
2-29 state agency shall be consistent with Chapter 154, Civil Practice
2-30 and Remedies Code, and with the administrative procedure law,
3-1 Chapter 2001. The State Office of Administrative Hearings may
3-2 issue model guidelines for use of alternative dispute resolution
3-3 procedures by state agencies.
3-4 (b) Each agency that is subject to Chapter 2001 shall adopt
3-5 its alternative dispute resolution procedures by rule.
3-6 Sec. 2008.052. SUPPLEMENTAL NATURE OF PROCEDURES. (a)
3-7 Alternative dispute resolution procedures developed and used under
3-8 this chapter supplement and do not limit other dispute resolution
3-9 procedures available at the agency.
3-10 (b) This chapter may not be applied in a manner that denies
3-11 a person a right granted under other state or federal law,
3-12 including a right to an administrative or judicial hearing, except
3-13 to the extent that an informed person voluntarily agrees in advance
3-14 to be bound by the outcome of an alternative dispute resolution
3-15 procedure.
3-16 Sec. 2008.053. IMPARTIAL THIRD PARTIES. (a) A state agency
3-17 may appoint a governmental officer or employee or a private
3-18 individual to serve as the impartial third party in an alternative
3-19 dispute resolution procedure. The agency's appointment of the
3-20 impartial third party is subject to the approval of the parties,
3-21 except that where a State Office of Administrative Hearings (SOAH)
3-22 administrative law judge has issued an order to an alternative
3-23 dispute resolution procedure under Section 2003.042(5), the SOAH
3-24 judge may appoint an impartial third party for the parties if they
3-25 can not agree on one within a reasonable period of time.
3-26 (b) The impartial third party must possess the
3-27 qualifications required under Section 154.052, Civil Practice and
3-28 Remedies Code.
3-29 (c) A state agency also may obtain the services of a
3-30 qualified impartial third party through an agreement with the State
4-1 Office of Administrative Hearings, the Center for Public Policy
4-2 Dispute Resolution at The University of Texas School of Law, or
4-3 another state or federal agency or through a pooling agreement with
4-4 several state agencies. The agreements may provide that the using
4-5 agency or the parties will reimburse the furnishing agency, in kind
4-6 or monetarily, for the full or partial cost of providing the
4-7 qualified impartial third party.
4-8 (d) An impartial third party is subject to the standards and
4-9 duties prescribed by Section 154.053, Civil Practice and Remedies
4-10 Code, and has the qualified immunity prescribed by Section 154.055,
4-11 Civil Practices and Remedies Code, if applicable.
4-12 Sec. 2008.054. CONFIDENTIALITY OF CERTAIN RECORDS AND
4-13 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice
4-14 and Remedies Code, apply to the communications, records, conduct,
4-15 and demeanor of the impartial third party and the parties.
4-16 (b) In an alternative dispute resolution procedure conducted
4-17 under this chapter the attorney general, subject to review by a
4-18 Travis County district court, determines in accordance with Section
4-19 154.073(d), Civil Practice and Remedies Code, whether a
4-20 communication or material subject to Section 154.073(d) is
4-21 confidential, excepted from required disclosure, or subject to
4-22 required disclosure.
4-23 (c) Notwithstanding Section 154.073(d), Civil Practice and
4-24 Remedies Code:
4-25 (1) a communication relevant to the dispute, and a
4-26 record of the communication, made between an impartial third party
4-27 and the parties to the dispute or among the parties to the dispute
4-28 during the course of an alternative dispute resolution procedure
4-29 are confidential and may not be disclosed unless all parties to the
4-30 dispute consent to the disclosure; and
5-1 (2) the notes of an impartial third party are
5-2 confidential except to the extent that the notes consist of a
5-3 record of a communication with a party and all parties have
5-4 consented to disclosure in accordance with Subdivision (1).
5-5 (d) A final written agreement to which a government entity
5-6 is a signatory reached as a result of a dispute resolution
5-7 procedure is not a communication under Subsection (c)(1).
5-8 Information in the final written agreement is subject to required
5-9 disclosure, excepted from required disclosure, or confidential in
5-10 accordance with other law.
5-11 Sec. 2008.055. INTERAGENCY SHARING OF INFORMATION;
5-12 CONSISTENCY OF PROCEDURES. (a) A state agency may share the
5-13 results of its alternative dispute resolution program with other
5-14 agencies and the Center for Public Policy Dispute Resolution at The
5-15 University of Texas School of Law. The Center may collect and
5-16 analyze the information and report its conclusions and useful
5-17 information to state agencies and the legislature.
5-18 (b) State agencies should, to the extent feasible given the
5-19 differences in agency purpose, jurisdiction, and constituency,
5-20 adopt policies and procedures for alternative dispute resolution
5-21 that are consistent with the policies and procedures of other state
5-22 agencies.
5-23 SECTION 2. Section 2003.001, Government Code, is amended to
5-24 read as follows:
5-25 Sec. 2003.001. DEFINITIONS. In this chapter:
5-26 (1) "Administrative law judge" means an individual who
5-27 presides at an administrative hearing held under Chapter 2001.
5-28 (2) "Alternative dispute resolution procedure" has the
5-29 meaning assigned by Section 2008.003.
5-30 (3) "Office" means the State Office of Administrative
6-1 Hearings.
6-2 (4) [(3)] "State agency" means:
6-3 (A) a state board, commission, department, or
6-4 other agency that is subject to Chapter 2001; and
6-5 (B) to the extent provided by Title 5, Labor
6-6 Code, the Texas Workers' Compensation Commission.
6-7 SECTION 3. Section 2003.021, Government Code, is amended to
6-8 read as follows:
6-9 Sec. 2003.021. Office. (a) The State Office of
6-10 Administrative Hearings is a state agency.
6-11 (b) The office shall conduct all administrative hearings in
6-12 contested cases under Chapter 2001 that are before a state agency
6-13 that does not employ an individual whose only duty is to preside as
6-14 a hearings officer over matters related to contested cases before
6-15 the agency, and may conduct alternative dispute resolution
6-16 procedures as described in the Governmental Dispute Resolution Act,
6-17 Sec. 2008.002.
6-18 (c) The office shall conduct hearings under Title 5, Labor
6-19 Code, as provided by that title. In conducting hearings under
6-20 Title 5, Labor Code, the office shall consider the applicable rules
6-21 and policies of the Texas Workers' Compensation Commission. The
6-22 office and the Texas Workers' Compensation Commission shall enter
6-23 into an interagency contract under Chapter 771 to pay the costs
6-24 incurred by the office in implementing this subsection.
6-25 (d) The office shall conduct hearings under the Agriculture
6-26 Code as provided under Section 12.032, Agriculture Code. In
6-27 conducting hearings under the Agriculture Code, the office shall
6-28 consider the applicable substantive rules and policies of the
6-29 Department of Agriculture.
6-30 SECTION 4. Section 2003.042, Government Code, is amended to
7-1 read as follows:
7-2 Sec. 2003.042. POWERS OF ADMINISTRATIVE LAW JUDGE. (a) An
7-3 administrative law judge may:
7-4 (1) administer an oath;
7-5 (2) take testimony;
7-6 (3) rule on a question of evidence;
7-7 (4) subject to review by the state agency before which
7-8 the contested case is brought, issue an order relating to discovery
7-9 or another hearing or prehearing matter, including an order
7-10 imposing a sanction that the agency may impose;
7-11 (5) issue an order that refers a case to an
7-12 alternative dispute resolution procedure, determines how the costs
7-13 of the procedure will be apportioned and appoints an impartial
7-14 third party as defined in the Governmental Dispute Resolution Act,
7-15 Sec. 2008.053, to facilitate that procedure;
7-16 (6) [(5)] issue a proposal for decision that includes
7-17 findings of fact and conclusions of law.
7-18 (7) serve as an impartial third party as defined in
7-19 the Governmental Dispute Resolution Act, Sec. 2008.053 for a
7-20 dispute referred by an administrative law judge, unless either of
7-21 the parties objects to such appointment;
7-22 (8) serve as an impartial third party as defined in
7-23 the Governmental Dispute Resolution Act, Sec. 2008.053 for a
7-24 dispute referred by a government agency pursuant to contract.
7-25 (b) An administrative law judge may not serve as an
7-26 impartial third party for a dispute which he or she refers to an
7-27 alternative dispute resolution procedure.
7-28 SECTION 5. Section 2003.047, Government Code, as added by
7-29 Section 1, Chapter 106, Acts of the 74th Legislature, Regular
7-30 Session, 1995, is amended by adding Subsection (j) to read as
8-1 follows:
8-2 (j) An administrative law judge hearing a case on behalf of
8-3 the commission may not, without the agreement of all parties, issue
8-4 an order referring the case to an alternative dispute resolution
8-5 procedure if the commission has already conducted an unsuccessful
8-6 alternative dispute resolution procedure. If the commission has not
8-7 already conducted an alternative dispute resolution procedure, the
8-8 administrative law judge shall consider the commission's
8-9 recommendation in determining whether to issue an order referring
8-10 the case to the procedure.
8-11 SECTION 6. This Act takes effect September 1, 1997.
8-12 SECTION 7. The importance of this legislation and the
8-13 crowded condition of the calendars in both houses create an
8-14 emergency and an imperative public necessity that the
8-15 constitutional rule requiring bills to be read on three several
8-16 days in each house be suspended, and this rule is hereby suspended.