1-1 AN ACT 1-2 relating to the adoption of the National Guard Mutual Assistance 1-3 Counter-drug Activities Compact. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 431, Government Code, is amended by 1-6 adding Subchapter K to read as follows: 1-7 SUBCHAPTER K. NATIONAL GUARD MUTUAL ASSISTANCE COUNTER-DRUG 1-8 ACTIVITIES COMPACT 1-9 Sec. 431.141. ADOPTION OF COMPACT. The National Guard 1-10 Mutual Assistance Counter-drug Activities Compact is enacted and 1-11 entered into by this state in the following form: 1-12 NATIONAL GUARD MUTUAL ASSISTANCE 1-13 COUNTER-DRUG ACTIVITIES COMPACT 1-14 ARTICLE I 1-15 Purpose 1-16 The purposes of this compact are to: 1-17 A. Provide for mutual assistance and support among the 1-18 party states in the utilization of the national guard in drug 1-19 interdiction, counter-drug and demand reduction activities. 1-20 B. Permit the national guard of this state to enter 1-21 into mutual assistance and support agreements, on the basis of 1-22 need, with one or more law enforcement agencies operating within 1-23 this state, for activities within this state, or with a national 1-24 guard of one or more other states, whether said activities are 2-1 within or without this state in order to facilitate and coordinate 2-2 efficient, cooperative enforcement efforts directed toward drug 2-3 interdiction, counter-drug activities and demand reduction. 2-4 C. Permit the national guard of this state to act as a 2-5 receiving and a responding state as defined within this compact and 2-6 to ensure the prompt and effective delivery of national guard 2-7 personnel, assets and services to agencies or areas that are in 2-8 need of increased support and presence. 2-9 D. Permit and encourage a high degree of flexibility 2-10 in the deployment of national guard forces in the interest of 2-11 efficiency. 2-12 E. Maximize the effectiveness of the national guard in 2-13 those situations which call for its utilization under this compact. 2-14 F. Provide protection for the rights of national guard 2-15 personnel when performing duty in other states in counter-drug 2-16 activities. 2-17 G. Ensure uniformity of state laws in the area of 2-18 national guard involvement in interstate counter-drug activities by 2-19 incorporating said uniform laws within the compact. 2-20 ARTICLE II 2-21 Entry Into Force and Withdrawal 2-22 A. This compact shall enter into force when enacted into law 2-23 by any two states. Thereafter, this compact shall become effective 2-24 as to any other state upon its enactment thereof. 2-25 B. Any party state may withdraw from this compact by 2-26 enacting a statute repealing the same, but no such withdrawal shall 2-27 take effect until one year after the governor of the withdrawing 3-1 state has given notice in writing of such withdrawal to the 3-2 governors of all other party states. 3-3 ARTICLE III 3-4 Mutual Assistance and Support 3-5 A. As used in this article: 3-6 1. "Drug interdiction and counter-drug activities" 3-7 means the use of national guard personnel, while not in federal 3-8 service, in any law enforcement support activities that are 3-9 intended to reduce the supply or use of illegal drugs in the United 3-10 States. These activities include, but are not limited to: 3-11 (a) Providing information obtained during either 3-12 the normal course of military training or operations or during 3-13 counter-drug activities, to federal, state or local law enforcement 3-14 officials that may be relevant to a violation of any federal or 3-15 state law within the jurisdiction of such officials; 3-16 (b) Making available any equipment (including 3-17 associated supplies or spare parts), base facilities or research 3-18 facilities of the national guard to any federal, state or local 3-19 civilian law enforcement official for law enforcement purposes, in 3-20 accordance with other applicable law or regulation; 3-21 (c) Providing available national guard personnel 3-22 to train federal, state or local civilian law enforcement in the 3-23 operation and maintenance of equipment, including equipment made 3-24 available above, in accordance with other applicable law; 3-25 (d) Providing available national guard personnel 3-26 to operate and maintain equipment provided to federal, state or 3-27 local law enforcement officials pursuant to activities defined and 4-1 referred to in this compact; 4-2 (e) Operation and maintenance of equipment and 4-3 facilities of the national guard or law enforcement agencies used 4-4 for the purposes of drug interdiction and counter-drug activities; 4-5 (f) Providing available national guard personnel 4-6 to operate equipment for the detection, monitoring and 4-7 communication of the movement of air, land and sea traffic, to 4-8 facilitate communications in connection with law enforcement 4-9 programs, to provide transportation for civilian law enforcement 4-10 personnel and to operate bases of operations for civilian law 4-11 enforcement personnel; 4-12 (g) Providing available national guard 4-13 personnel, equipment and support for administrative, interpretive, 4-14 analytic or other purposes; 4-15 (h) Providing available national guard personnel 4-16 and equipment to aid federal, state and local officials and 4-17 agencies otherwise involved in the prosecution or incarceration of 4-18 individuals processed within the criminal justice system who have 4-19 been arrested for criminal acts involving the use, distribution or 4-20 transportation of controlled substances as defined in 21 U.S.C. 801 4-21 et seq. or otherwise by law, in accordance with other applicable 4-22 law. 4-23 2. "Demand reduction" means providing available 4-24 national guard personnel, equipment, support and coordination to 4-25 federal, state, local and civic organizations, institutions and 4-26 agencies for the purposes of the prevention of drug abuse and the 4-27 reduction in the demand for illegal drugs. 5-1 3. "Requesting state" means the state whose governor 5-2 requested assistance in the area of counter-drug activities. 5-3 4. "Responding state" means the state furnishing 5-4 assistance, or requested to furnish assistance, in the area of 5-5 counter-drug activities. 5-6 5. "Law enforcement agency" means a lawfully 5-7 established federal, state or local public agency that is 5-8 responsible for the prevention and detection of crime and the 5-9 enforcement of penal, traffic, regulatory, game, immigration, 5-10 postal, customs or controlled substances laws. 5-11 6. "Official" means the appointed, elected, designated 5-12 or otherwise duly selected representative of an agency, institution 5-13 or organization authorized to conduct those activities for which 5-14 support is requested. 5-15 7. "Mutual Assistance and Support Agreement" or 5-16 "agreement" means an agreement between the national guard of this 5-17 state and one or more law enforcement agencies or between the 5-18 national guard of this state and the national guard of one or more 5-19 other states, consistent with the purposes of this compact. 5-20 8. "Party state" refers to a state that has lawfully 5-21 enacted this compact. 5-22 9. "State" means each of the several states of the 5-23 United States, the District of Columbia, the Commonwealth of Puerto 5-24 Rico or a territory or possession of the United States. 5-25 B. Upon the request of a governor of a party state for 5-26 assistance in the area of drug interdiction, counter-drug and 5-27 demand reduction activities, the governor of a responding state 6-1 shall have authority under this compact to send without the borders 6-2 of his or her state and place under the temporary operational 6-3 control of the appropriate national guard or other military 6-4 authorities of the requesting state, for the purposes of providing 6-5 such requested assistance, all or any part of the national guard 6-6 forces of his or her state as he or she may deem necessary, and the 6-7 exercise of his or her discretion in this regard shall be 6-8 conclusive. 6-9 C. The governor of a party state may, within his or her 6-10 discretion, withhold the national guard forces of his or her state 6-11 from such use and recall any forces or part or member thereof 6-12 previously deployed in a requesting state. 6-13 D. The national guard of this state is hereby authorized to 6-14 engage in counter-drug activities and demand reduction. 6-15 E. The Adjutant General of this state, in order to further 6-16 the purposes of this compact, may enter into a mutual assistance 6-17 and support agreement with one or more law enforcement agencies of 6-18 this state, including federal law enforcement agencies operating 6-19 within this state, or with the national guard of one or more other 6-20 party states to provide personnel, assets and services in the area 6-21 of counter-drug activities, and demand reduction provided that all 6-22 parties to the agreement are not specifically prohibited by law to 6-23 perform said activities. 6-24 F. The agreement must set forth the powers, rights and 6-25 obligations of the parties to the agreement, where applicable, as 6-26 follows: 6-27 1. Its duration; 7-1 2. The organization, composition and nature of any 7-2 separate legal entity created thereby; 7-3 3. The purpose of the agreement; 7-4 4. The manner of financing the agreement and 7-5 establishing and maintaining its budget; 7-6 5. The method to be employed in accomplishing the 7-7 partial or complete termination of the agreement and for disposing 7-8 of property upon such partial or complete termination; 7-9 6. Provision for administering the agreement, which 7-10 may include creation of a joint board responsible for such 7-11 administration; 7-12 7. The manner of acquiring, holding and disposing of 7-13 real and personal property used in this agreement, if necessary; 7-14 8. The minimum standards for national guard personnel 7-15 implementing the provisions of this agreement; 7-16 9. The minimum insurance required of each party to the 7-17 agreement, if necessary; 7-18 10. The chain of command or delegation of authority to 7-19 be followed by national guard personnel acting under the provisions 7-20 of the agreement; 7-21 11. The duties and authority that the national guard 7-22 personnel of each party state may exercise; and 7-23 12. Any other necessary and proper matters. 7-24 Agreements prepared under the provisions of this statute are exempt 7-25 from any general law pertaining to intergovernmental agreements. 7-26 G. As a condition precedent to an agreement becoming 7-27 effective under this part, the agreement must be submitted to and 8-1 receive the approval of the office of the attorney general. The 8-2 attorney general may delegate his or her approval authority to the 8-3 appropriate attorney for the Texas National Guard subject to those 8-4 conditions which he or she decides are appropriate. Said 8-5 delegation must be in writing: 8-6 1. The attorney general, or his or her agent in the 8-7 Texas National Guard as stated above, shall approve an agreement 8-8 submitted to him or her under this part unless he or she finds that 8-9 it is not in proper form, does not meet the requirements set forth 8-10 in this part, or otherwise does not conform to the laws of Texas. 8-11 If the Attorney General disapproves an agreement, he or she shall 8-12 provide a written explanation to the adjutant general of the 8-13 national guard. 8-14 2. If the attorney general, or his or her authorized 8-15 agent as stated above, does not disapprove an agreement within 8-16 thirty days after its submission to him or her, it is considered 8-17 approved by him or her. 8-18 H. Whenever national guard forces of any party state are 8-19 engaged in the performance of duties, in the area of drug 8-20 interdiction, counter-drug and demand reduction activities, 8-21 pursuant to orders, they shall not be held personally liable for 8-22 any acts or omissions which occur during the performance of their 8-23 duty. 8-24 ARTICLE IV 8-25 Responsibilities 8-26 A. Nothing in this compact shall be construed as a waiver of 8-27 any benefits, privileges, immunities or rights otherwise provided 9-1 for national guard personnel performing duty pursuant to Title 32 9-2 of the United States Code nor shall anything in this compact be 9-3 construed as a waiver of coverage provided for under the Federal 9-4 Tort Claims Act. In the event that national guard personnel 9-5 performing counter-drug activities do not receive rights, benefits, 9-6 privileges and immunities otherwise provided for national guard 9-7 personnel as stated above, the following provisions shall apply: 9-8 1. Whenever national guard forces of any responding 9-9 state are engaged in another state in carrying out the purposes of 9-10 this compact, the members thereof so engaged shall have the same 9-11 powers, duties, rights, privileges and immunities as members of 9-12 national guard forces of the requesting state. The requesting 9-13 state shall save and hold members of the national guard forces of 9-14 responding states harmless from civil liability, except as 9-15 otherwise provided herein, for acts or omissions which occur in the 9-16 performance of their duty while engaged in carrying out the purpose 9-17 of this compact, whether responding forces are serving the 9-18 requesting state within the borders of the responding state or are 9-19 attached to the requesting state for purposes of operational 9-20 control. 9-21 2. Subject to the provisions of paragraphs 3, 4 and 5 9-22 of this article, all liability that may arise under the laws of the 9-23 requesting state or the responding states, on account of or in 9-24 connection with a request for assistance or support, shall be 9-25 assumed and borne by the requesting state. 9-26 3. Any responding state rendering aid or assistance 9-27 pursuant to this compact shall be reimbursed by the requesting 10-1 state for any loss or damage to, or expense incurred in the 10-2 operation of, any equipment answering a request for aid, and for 10-3 the cost of the materials, transportation and maintenance of 10-4 national guard personnel and equipment incurred in connection with 10-5 such request, provided that nothing herein contained shall prevent 10-6 any responding state from assuming such loss, damage, expense or 10-7 other cost. 10-8 4. Unless there is a written agreement to the 10-9 contrary, each party shall provide, in the same amounts and manner 10-10 as if they were on duty within their state, for pay and allowances 10-11 of the personnel of its national guard units while engaged without 10-12 the state pursuant to this compact and while going to and returning 10-13 from such duty pursuant to this compact. 10-14 5. Each party state providing for the payment of 10-15 compensation and death benefits to injured members and the 10-16 representatives of deceased members of its national guard forces in 10-17 case such members sustain injuries or are killed within their own 10-18 state shall provide for the payment of compensation and death 10-19 benefits in the same manner and on the same terms in the event such 10-20 members sustain injury or are killed while rendering assistance or 10-21 support pursuant to this compact. Such benefits and compensation 10-22 shall be deemed items of expense reimbursable pursuant to paragraph 10-23 3 of this article. 10-24 B. Officers and enlisted personnel of the national guard 10-25 performing duties subject to proper orders pursuant to this compact 10-26 shall be subject to and governed by the provisions of their home 10-27 state code of military justice whether they are performing duties 11-1 within or without their home state. In the event that any national 11-2 guard member commits, or is suspected of committing, a criminal 11-3 offense while performing duties pursuant to this compact without 11-4 his or her home state, he or she may be returned immediately to his 11-5 or her home state and said home state shall be responsible for any 11-6 disciplinary action to be taken. However, nothing in this section 11-7 shall abrogate the general criminal jurisdiction of the state in 11-8 which the offense occurred. 11-9 ARTICLE V 11-10 Delegation 11-11 Nothing in this compact shall be construed to prevent the 11-12 governor of a party state from delegating any of his or her 11-13 responsibilities or authority respecting the national guard, 11-14 provided that such delegation is otherwise in accordance with law. 11-15 For purposes of this compact, however, the governor shall not 11-16 delegate the power to request assistance from another state. 11-17 ARTICLE VI 11-18 Limitations 11-19 Nothing in this compact shall: 11-20 1. Authorize or permit national guard units or 11-21 personnel to be placed under the operational control of any person 11-22 not having the national guard rank or status required by law for 11-23 the command in question. 11-24 2. Deprive a properly convened court of jurisdiction 11-25 over an offense or a defendant merely because of the fact that the 11-26 national guard, while performing duties pursuant to this compact, 11-27 was utilized in achieving an arrest or indictment. 12-1 ARTICLE VII 12-2 Construction and Severability 12-3 This compact shall be liberally construed so as to effectuate 12-4 the purposes thereof. The provisions of this compact shall be 12-5 severable and if any phrase, clause, sentence or provision of this 12-6 compact is declared to be contrary to the constitution of the 12-7 United States or of any state or the applicability thereof to any 12-8 government, agency, person or circumstance is held invalid, the 12-9 validity of the remainder of this compact and the applicability 12-10 thereof to any government, agency, person or circumstance shall not 12-11 be affected thereby. If this compact shall be held contrary to the 12-12 constitution of any state participating herein, the compact shall 12-13 remain in full force and effect as to the remaining party states 12-14 and in full force and effect as to the state affected as to all 12-15 severable matters. 12-16 Sec. 431.142. AUTHORITY OF TEXAS NATIONAL GUARD UNDER 12-17 COMPACT. (a) The Texas National Guard may conduct drug 12-18 interdiction, counter-drug, and demand reduction activities in this 12-19 state as provided by the National Guard Mutual Assistance 12-20 Counter-drug Activities Compact. 12-21 (b) The Texas National Guard may enter into a mutual 12-22 assistance and support agreement with a law enforcement agency 12-23 operating in this state for activities in this state. 12-24 SECTION 2. The importance of this legislation and the 12-25 crowded condition of the calendars in both houses create an 12-26 emergency and an imperative public necessity that the 12-27 constitutional rule requiring bills to be read on three several 13-1 days in each house be suspended, and this rule is hereby suspended, 13-2 and that this Act take effect and be in force from and after its 13-3 passage, and it is so enacted. _______________________________ _______________________________ President of the Senate Speaker of the House I certify that H.B. No. 3380 was passed by the House on May 6, 1997, by the following vote: Yeas 140, Nays 0, 1 present, not voting. _______________________________ Chief Clerk of the House I certify that H.B. No. 3380 was passed by the Senate on May 22, 1997, by the following vote: Yeas 31, Nays 0. _______________________________ Secretary of the Senate APPROVED: _____________________ Date _____________________ Governor