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