1-1 By: Counts (Senate Sponsor - Lucio) H.B. No. 3380 1-2 (In the Senate - Received from the House May 7, 1997; 1-3 May 8, 1997, read first time and referred to Committee on 1-4 International Relations, Trade, and Technology; May 15, 1997, 1-5 reported favorably by the following vote: Yeas 6, Nays 0; 1-6 May 15, 1997, sent to printer.) 1-7 A BILL TO BE ENTITLED 1-8 AN ACT 1-9 relating to the adoption of the National Guard Mutual Assistance 1-10 Counter-drug Activities Compact. 1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-12 SECTION 1. Chapter 431, Government Code, is amended by 1-13 adding Subchapter K to read as follows: 1-14 SUBCHAPTER K. NATIONAL GUARD MUTUAL ASSISTANCE COUNTER-DRUG 1-15 ACTIVITIES COMPACT 1-16 Sec. 431.141. ADOPTION OF COMPACT. The National Guard 1-17 Mutual Assistance Counter-drug Activities Compact is enacted and 1-18 entered into by this state in the following form: 1-19 NATIONAL GUARD MUTUAL ASSISTANCE 1-20 COUNTER-DRUG ACTIVITIES COMPACT 1-21 ARTICLE I 1-22 Purpose 1-23 The purposes of this compact are to: 1-24 A. Provide for mutual assistance and support among the 1-25 party states in the utilization of the national guard in drug 1-26 interdiction, counter-drug and demand reduction activities. 1-27 B. Permit the national guard of this state to enter 1-28 into mutual assistance and support agreements, on the basis of 1-29 need, with one or more law enforcement agencies operating within 1-30 this state, for activities within this state, or with a national 1-31 guard of one or more other states, whether said activities are 1-32 within or without this state in order to facilitate and coordinate 1-33 efficient, cooperative enforcement efforts directed toward drug 1-34 interdiction, counter-drug activities and demand reduction. 1-35 C. Permit the national guard of this state to act as a 1-36 receiving and a responding state as defined within this compact and 1-37 to ensure the prompt and effective delivery of national guard 1-38 personnel, assets and services to agencies or areas that are in 1-39 need of increased support and presence. 1-40 D. Permit and encourage a high degree of flexibility 1-41 in the deployment of national guard forces in the interest of 1-42 efficiency. 1-43 E. Maximize the effectiveness of the national guard in 1-44 those situations which call for its utilization under this compact. 1-45 F. Provide protection for the rights of national guard 1-46 personnel when performing duty in other states in counter-drug 1-47 activities. 1-48 G. Ensure uniformity of state laws in the area of 1-49 national guard involvement in interstate counter-drug activities by 1-50 incorporating said uniform laws within the compact. 1-51 ARTICLE II 1-52 Entry Into Force and Withdrawal 1-53 A. This compact shall enter into force when enacted into law 1-54 by any two states. Thereafter, this compact shall become effective 1-55 as to any other state upon its enactment thereof. 1-56 B. Any party state may withdraw from this compact by 1-57 enacting a statute repealing the same, but no such withdrawal shall 1-58 take effect until one year after the governor of the withdrawing 1-59 state has given notice in writing of such withdrawal to the 1-60 governors of all other party states. 1-61 ARTICLE III 1-62 Mutual Assistance and Support 1-63 A. As used in this article: 1-64 1. "Drug interdiction and counter-drug activities" 2-1 means the use of national guard personnel, while not in federal 2-2 service, in any law enforcement support activities that are 2-3 intended to reduce the supply or use of illegal drugs in the United 2-4 States. These activities include, but are not limited to: 2-5 (a) Providing information obtained during either 2-6 the normal course of military training or operations or during 2-7 counter-drug activities, to federal, state or local law enforcement 2-8 officials that may be relevant to a violation of any federal or 2-9 state law within the jurisdiction of such officials; 2-10 (b) Making available any equipment (including 2-11 associated supplies or spare parts), base facilities or research 2-12 facilities of the national guard to any federal, state or local 2-13 civilian law enforcement official for law enforcement purposes, in 2-14 accordance with other applicable law or regulation; 2-15 (c) Providing available national guard personnel 2-16 to train federal, state or local civilian law enforcement in the 2-17 operation and maintenance of equipment, including equipment made 2-18 available above, in accordance with other applicable law; 2-19 (d) Providing available national guard personnel 2-20 to operate and maintain equipment provided to federal, state or 2-21 local law enforcement officials pursuant to activities defined and 2-22 referred to in this compact; 2-23 (e) Operation and maintenance of equipment and 2-24 facilities of the national guard or law enforcement agencies used 2-25 for the purposes of drug interdiction and counter-drug activities; 2-26 (f) Providing available national guard personnel 2-27 to operate equipment for the detection, monitoring and 2-28 communication of the movement of air, land and sea traffic, to 2-29 facilitate communications in connection with law enforcement 2-30 programs, to provide transportation for civilian law enforcement 2-31 personnel and to operate bases of operations for civilian law 2-32 enforcement personnel; 2-33 (g) Providing available national guard 2-34 personnel, equipment and support for administrative, interpretive, 2-35 analytic or other purposes; 2-36 (h) Providing available national guard personnel 2-37 and equipment to aid federal, state and local officials and 2-38 agencies otherwise involved in the prosecution or incarceration of 2-39 individuals processed within the criminal justice system who have 2-40 been arrested for criminal acts involving the use, distribution or 2-41 transportation of controlled substances as defined in 21 U.S.C. 801 2-42 et seq. or otherwise by law, in accordance with other applicable 2-43 law. 2-44 2. "Demand reduction" means providing available 2-45 national guard personnel, equipment, support and coordination to 2-46 federal, state, local and civic organizations, institutions and 2-47 agencies for the purposes of the prevention of drug abuse and the 2-48 reduction in the demand for illegal drugs. 2-49 3. "Requesting state" means the state whose governor 2-50 requested assistance in the area of counter-drug activities. 2-51 4. "Responding state" means the state furnishing 2-52 assistance, or requested to furnish assistance, in the area of 2-53 counter-drug activities. 2-54 5. "Law enforcement agency" means a lawfully 2-55 established federal, state or local public agency that is 2-56 responsible for the prevention and detection of crime and the 2-57 enforcement of penal, traffic, regulatory, game, immigration, 2-58 postal, customs or controlled substances laws. 2-59 6. "Official" means the appointed, elected, designated 2-60 or otherwise duly selected representative of an agency, institution 2-61 or organization authorized to conduct those activities for which 2-62 support is requested. 2-63 7. "Mutual Assistance and Support Agreement" or 2-64 "agreement" means an agreement between the national guard of this 2-65 state and one or more law enforcement agencies or between the 2-66 national guard of this state and the national guard of one or more 2-67 other states, consistent with the purposes of this compact. 2-68 8. "Party state" refers to a state that has lawfully 2-69 enacted this compact. 3-1 9. "State" means each of the several states of the 3-2 United States, the District of Columbia, the Commonwealth of Puerto 3-3 Rico or a territory or possession of the United States. 3-4 B. Upon the request of a governor of a party state for 3-5 assistance in the area of drug interdiction, counter-drug and 3-6 demand reduction activities, the governor of a responding state 3-7 shall have authority under this compact to send without the borders 3-8 of his or her state and place under the temporary operational 3-9 control of the appropriate national guard or other military 3-10 authorities of the requesting state, for the purposes of providing 3-11 such requested assistance, all or any part of the national guard 3-12 forces of his or her state as he or she may deem necessary, and the 3-13 exercise of his or her discretion in this regard shall be 3-14 conclusive. 3-15 C. The governor of a party state may, within his or her 3-16 discretion, withhold the national guard forces of his or her state 3-17 from such use and recall any forces or part or member thereof 3-18 previously deployed in a requesting state. 3-19 D. The national guard of this state is hereby authorized to 3-20 engage in counter-drug activities and demand reduction. 3-21 E. The Adjutant General of this state, in order to further 3-22 the purposes of this compact, may enter into a mutual assistance 3-23 and support agreement with one or more law enforcement agencies of 3-24 this state, including federal law enforcement agencies operating 3-25 within this state, or with the national guard of one or more other 3-26 party states to provide personnel, assets and services in the area 3-27 of counter-drug activities, and demand reduction provided that all 3-28 parties to the agreement are not specifically prohibited by law to 3-29 perform said activities. 3-30 F. The agreement must set forth the powers, rights and 3-31 obligations of the parties to the agreement, where applicable, as 3-32 follows: 3-33 1. Its duration; 3-34 2. The organization, composition and nature of any 3-35 separate legal entity created thereby; 3-36 3. The purpose of the agreement; 3-37 4. The manner of financing the agreement and 3-38 establishing and maintaining its budget; 3-39 5. The method to be employed in accomplishing the 3-40 partial or complete termination of the agreement and for disposing 3-41 of property upon such partial or complete termination; 3-42 6. Provision for administering the agreement, which 3-43 may include creation of a joint board responsible for such 3-44 administration; 3-45 7. The manner of acquiring, holding and disposing of 3-46 real and personal property used in this agreement, if necessary; 3-47 8. The minimum standards for national guard personnel 3-48 implementing the provisions of this agreement; 3-49 9. The minimum insurance required of each party to the 3-50 agreement, if necessary; 3-51 10. The chain of command or delegation of authority to 3-52 be followed by national guard personnel acting under the provisions 3-53 of the agreement; 3-54 11. The duties and authority that the national guard 3-55 personnel of each party state may exercise; and 3-56 12. Any other necessary and proper matters. 3-57 Agreements prepared under the provisions of this statute are exempt 3-58 from any general law pertaining to intergovernmental agreements. 3-59 G. As a condition precedent to an agreement becoming 3-60 effective under this part, the agreement must be submitted to and 3-61 receive the approval of the office of the attorney general. The 3-62 attorney general may delegate his or her approval authority to the 3-63 appropriate attorney for the Texas National Guard subject to those 3-64 conditions which he or she decides are appropriate. Said 3-65 delegation must be in writing: 3-66 1. The attorney general, or his or her agent in the 3-67 Texas National Guard as stated above, shall approve an agreement 3-68 submitted to him or her under this part unless he or she finds that 3-69 it is not in proper form, does not meet the requirements set forth 4-1 in this part, or otherwise does not conform to the laws of Texas. 4-2 If the Attorney General disapproves an agreement, he or she shall 4-3 provide a written explanation to the adjutant general of the 4-4 national guard. 4-5 2. If the attorney general, or his or her authorized 4-6 agent as stated above, does not disapprove an agreement within 4-7 thirty days after its submission to him or her, it is considered 4-8 approved by him or her. 4-9 H. Whenever national guard forces of any party state are 4-10 engaged in the performance of duties, in the area of drug 4-11 interdiction, counter-drug and demand reduction activities, 4-12 pursuant to orders, they shall not be held personally liable for 4-13 any acts or omissions which occur during the performance of their 4-14 duty. 4-15 ARTICLE IV 4-16 Responsibilities 4-17 A. Nothing in this compact shall be construed as a waiver of 4-18 any benefits, privileges, immunities or rights otherwise provided 4-19 for national guard personnel performing duty pursuant to Title 32 4-20 of the United States Code nor shall anything in this compact be 4-21 construed as a waiver of coverage provided for under the Federal 4-22 Tort Claims Act. In the event that national guard personnel 4-23 performing counter-drug activities do not receive rights, benefits, 4-24 privileges and immunities otherwise provided for national guard 4-25 personnel as stated above, the following provisions shall apply: 4-26 1. Whenever national guard forces of any responding 4-27 state are engaged in another state in carrying out the purposes of 4-28 this compact, the members thereof so engaged shall have the same 4-29 powers, duties, rights, privileges and immunities as members of 4-30 national guard forces of the requesting state. The requesting 4-31 state shall save and hold members of the national guard forces of 4-32 responding states harmless from civil liability, except as 4-33 otherwise provided herein, for acts or omissions which occur in the 4-34 performance of their duty while engaged in carrying out the purpose 4-35 of this compact, whether responding forces are serving the 4-36 requesting state within the borders of the responding state or are 4-37 attached to the requesting state for purposes of operational 4-38 control. 4-39 2. Subject to the provisions of paragraphs 3, 4 and 5 4-40 of this article, all liability that may arise under the laws of the 4-41 requesting state or the responding states, on account of or in 4-42 connection with a request for assistance or support, shall be 4-43 assumed and borne by the requesting state. 4-44 3. Any responding state rendering aid or assistance 4-45 pursuant to this compact shall be reimbursed by the requesting 4-46 state for any loss or damage to, or expense incurred in the 4-47 operation of, any equipment answering a request for aid, and for 4-48 the cost of the materials, transportation and maintenance of 4-49 national guard personnel and equipment incurred in connection with 4-50 such request, provided that nothing herein contained shall prevent 4-51 any responding state from assuming such loss, damage, expense or 4-52 other cost. 4-53 4. Unless there is a written agreement to the 4-54 contrary, each party shall provide, in the same amounts and manner 4-55 as if they were on duty within their state, for pay and allowances 4-56 of the personnel of its national guard units while engaged without 4-57 the state pursuant to this compact and while going to and returning 4-58 from such duty pursuant to this compact. 4-59 5. Each party state providing for the payment of 4-60 compensation and death benefits to injured members and the 4-61 representatives of deceased members of its national guard forces in 4-62 case such members sustain injuries or are killed within their own 4-63 state shall provide for the payment of compensation and death 4-64 benefits in the same manner and on the same terms in the event such 4-65 members sustain injury or are killed while rendering assistance or 4-66 support pursuant to this compact. Such benefits and compensation 4-67 shall be deemed items of expense reimbursable pursuant to paragraph 4-68 3 of this article. 4-69 B. Officers and enlisted personnel of the national guard 5-1 performing duties subject to proper orders pursuant to this compact 5-2 shall be subject to and governed by the provisions of their home 5-3 state code of military justice whether they are performing duties 5-4 within or without their home state. In the event that any national 5-5 guard member commits, or is suspected of committing, a criminal 5-6 offense while performing duties pursuant to this compact without 5-7 his or her home state, he or she may be returned immediately to his 5-8 or her home state and said home state shall be responsible for any 5-9 disciplinary action to be taken. However, nothing in this section 5-10 shall abrogate the general criminal jurisdiction of the state in 5-11 which the offense occurred. 5-12 ARTICLE V 5-13 Delegation 5-14 Nothing in this compact shall be construed to prevent the 5-15 governor of a party state from delegating any of his or her 5-16 responsibilities or authority respecting the national guard, 5-17 provided that such delegation is otherwise in accordance with law. 5-18 For purposes of this compact, however, the governor shall not 5-19 delegate the power to request assistance from another state. 5-20 ARTICLE VI 5-21 Limitations 5-22 Nothing in this compact shall: 5-23 1. Authorize or permit national guard units or 5-24 personnel to be placed under the operational control of any person 5-25 not having the national guard rank or status required by law for 5-26 the command in question. 5-27 2. Deprive a properly convened court of jurisdiction 5-28 over an offense or a defendant merely because of the fact that the 5-29 national guard, while performing duties pursuant to this compact, 5-30 was utilized in achieving an arrest or indictment. 5-31 ARTICLE VII 5-32 Construction and Severability 5-33 This compact shall be liberally construed so as to effectuate 5-34 the purposes thereof. The provisions of this compact shall be 5-35 severable and if any phrase, clause, sentence or provision of this 5-36 compact is declared to be contrary to the constitution of the 5-37 United States or of any state or the applicability thereof to any 5-38 government, agency, person or circumstance is held invalid, the 5-39 validity of the remainder of this compact and the applicability 5-40 thereof to any government, agency, person or circumstance shall not 5-41 be affected thereby. If this compact shall be held contrary to the 5-42 constitution of any state participating herein, the compact shall 5-43 remain in full force and effect as to the remaining party states 5-44 and in full force and effect as to the state affected as to all 5-45 severable matters. 5-46 Sec. 431.142. AUTHORITY OF TEXAS NATIONAL GUARD UNDER 5-47 COMPACT. (a) The Texas National Guard may conduct drug 5-48 interdiction, counter-drug, and demand reduction activities in this 5-49 state as provided by the National Guard Mutual Assistance 5-50 Counter-drug Activities Compact. 5-51 (b) The Texas National Guard may enter into a mutual 5-52 assistance and support agreement with a law enforcement agency 5-53 operating in this state for activities in this state. 5-54 SECTION 2. The importance of this legislation and the 5-55 crowded condition of the calendars in both houses create an 5-56 emergency and an imperative public necessity that the 5-57 constitutional rule requiring bills to be read on three several 5-58 days in each house be suspended, and this rule is hereby suspended, 5-59 and that this Act take effect and be in force from and after its 5-60 passage, and it is so enacted. 5-61 * * * * *