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.