By Counts                                             H.B. No. 3380

                                A BILL TO BE ENTITLED

 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.