By:  Brown                                             S.B. No. 694

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the use of alternative dispute resolution procedures by

 1-2     state agencies.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Subtitle A, Title 10, Government Code, is amended

 1-5     by adding Chapter 2008 to read as follows:

 1-6       CHAPTER 2008.  ALTERNATIVE DISPUTE RESOLUTION AT STATE AGENCIES

 1-7                      SUBCHAPTER A.  GENERAL PROVISIONS

 1-8           Sec. 2008.001.  SHORT TITLE.  This chapter may be cited as

 1-9     the Governmental Dispute Resolution Act.

1-10           Sec. 2008.002.  POLICY.  It is the policy of this state that

1-11     disputes before state agencies be resolved as fairly and

1-12     expeditiously as possible and that each state agency support this

1-13     policy by developing and using alternative dispute resolution

1-14     procedures in appropriate aspects of the agency's operations and

1-15     programs.

1-16           Sec. 2008.003.  DEFINITIONS.  In this chapter:

1-17                 (1)  "Alternative dispute resolution procedure"

1-18     includes:

1-19                       (A)  a procedure described by Chapter 154, Civil

1-20     Practice and Remedies Code; and

1-21                       (B)  a combination of the procedures described by

1-22     Chapter 154, Civil Practice and Remedies Code.

1-23                 (2)  "State agency" means an officer, board,

 2-1     commission, department, or other agency in the executive branch of

 2-2     state government with statewide jurisdiction that makes rules or

 2-3     determines contested cases.  The term includes:

 2-4                       (A)  the attorney general;

 2-5                       (B)  an institution of higher education as

 2-6     defined by Section 61.003, Education Code; and

 2-7                       (C)  the State Office of Administrative Hearings.

 2-8                 (3)  The following terms have the meanings assigned by

 2-9     Section 2001.003:

2-10                       (A)  "contested case";

2-11                       (B)  "party";

2-12                       (C)  "person"; and

2-13                       (D)  "rule."

2-14           Sec. 2008.004.  AGENCY CONTRACTS; BUDGETING FOR COSTS.

2-15     (a)  A state agency may pay for costs necessary to meet the

2-16     objectives of this chapter, including reasonable fees for training,

2-17     policy review, system design, evaluation, and the use of impartial

2-18     third parties.  To the extent allowed by the General Appropriations

2-19     Act, the agency may use for this purpose money budgeted for legal

2-20     services, executive administration, or any other appropriate aspect

2-21     of the agency's operations.

2-22           (b)  A state agency may contract with another state agency,

2-23     including the Center for Public Policy Dispute Resolution at The

2-24     University of Texas School of Law, or with a private entity for any

2-25     service necessary to meet the objectives of this chapter.

 3-1           Sec. 2008.005.  SOVEREIGN IMMUNITY.  (a)  This chapter does

 3-2     not waive immunity from suit and does not affect a waiver of

 3-3     immunity from suit contained in other law.

 3-4           (b)  The state's sovereign immunity under the Eleventh

 3-5     Amendment to the United States Constitution is not waived by this

 3-6     chapter.

 3-7           (c)  Nothing in this chapter authorizes binding arbitration

 3-8     as a method of alternative dispute resolution.

 3-9           (Sections 2008.006 to 2008.050 reserved for expansion

3-10                SUBCHAPTER B.  ALTERNATIVE DISPUTE RESOLUTION

3-11           Sec. 2008.051.  DEVELOPMENT AND USE OF PROCEDURES.  (a)  Each

3-12     state agency may develop and use alternative dispute resolution

3-13     procedures.  Alternative dispute resolution procedures developed

3-14     and used by a state agency shall be consistent with Chapter 154,

3-15     Civil Practice and Remedies Code, and with the administrative

3-16     procedure law, Chapter 2001.  The State Office of Administrative

3-17     Hearings may issue model guidelines for the use of alternative

3-18     dispute resolution procedures by state agencies.

3-19           (b)  If a state agency that is subject to Chapter 2001 adopts

3-20     an alternative dispute resolution procedure, it shall do so by

3-21     rule.

3-22           Sec. 2008.052.  SUPPLEMENTAL NATURE OF PROCEDURES.

3-23     (a)  Alternative dispute resolution procedures developed and used

3-24     under this chapter supplement and do not limit other dispute

3-25     resolution procedures available at a state agency.

 4-1           (b)  This chapter may not be applied in a manner that denies

 4-2     a person a right granted under other state or federal law,

 4-3     including a right to an administrative or judicial hearing.

 4-4           Sec. 2008.053.  IMPARTIAL THIRD PARTIES.  (a)  A state agency

 4-5     may appoint a governmental officer or employee or a private

 4-6     individual to serve as an impartial third party in an alternative

 4-7     dispute resolution procedure.  The agency's appointment of the

 4-8     impartial third party is subject to the approval of the parties,

 4-9     except that where a State Office of Administrative Hearings

4-10     administrative law judge has issued an order to an alternative

4-11     dispute resolution procedure under Section 2003.042(5), the

4-12     administrative law judge may appoint the impartial third party for

4-13     the parties if they cannot agree on a third party within a

4-14     reasonable period of time.

4-15           (b)  The impartial third party must possess the

4-16     qualifications required under Section 154.052, Civil Practice and

4-17     Remedies Code.

4-18           (c)  A state agency also may obtain the services of a

4-19     qualified impartial third party through an agreement with the State

4-20     Office of Administrative Hearings, the Center for Public Policy

4-21     Dispute Resolution at The University of Texas School of Law, or

4-22     another state or federal agency or through a pooling agreement with

4-23     several state agencies.  The agreements may provide that the using

4-24     agency or the parties will reimburse the furnishing agency, in kind

4-25     or monetarily, for the full or partial cost of providing the

 5-1     qualified impartial third party.

 5-2           (d)  The impartial third party is subject to the standards

 5-3     and duties prescribed by Section 154.053, Civil Practice and

 5-4     Remedies Code, and has the qualified immunity prescribed by Section

 5-5     154.055, Civil Practice and Remedies Code, if applicable.

 5-6           Sec. 2008.054.  CONFIDENTIALITY OF CERTAIN RECORDS AND

 5-7     COMMUNICATIONS.  (a)  Sections 154.053 and 154.073, Civil Practice

 5-8     and Remedies Code, apply to the communications, records, conduct,

 5-9     and demeanor of the impartial third party and the parties.

5-10           (b)  In an alternative dispute resolution procedure conducted

5-11     under this chapter, the attorney general, subject to review by a

5-12     Travis County district court, determines in accordance with Section

5-13     154.073(d), Civil Practice and Remedies Code, whether a

5-14     communication or material subject to Section 154.073(d) is

5-15     confidential, excepted from required disclosure, or subject to

5-16     required disclosure.

5-17           (c)  Notwithstanding Section 154.073(d), Civil Practice and

5-18     Remedies Code:

5-19                 (1)  a communication relevant to the dispute, and a

5-20     record of the communication, made between an impartial third party

5-21     and the parties to the dispute or between the parties to the

5-22     dispute during the course of an alternative dispute resolution

5-23     procedure are confidential and may not be disclosed unless all

5-24     parties to the dispute consent to the disclosure; and

5-25                 (2)  the notes of an impartial third party are

 6-1     confidential except to the extent that the notes consist of a

 6-2     record of a communication with a party and all parties have

 6-3     consented to disclosure in accordance with Subdivision (1).

 6-4           (d)  A final written agreement to which a government entity

 6-5     is a signatory reached as a result of a dispute resolution

 6-6     procedure is not a communication under Subsection (c)(1).

 6-7     Information in the final written agreement is subject to required

 6-8     disclosure, is excepted from required disclosure, or is

 6-9     confidential in accordance with other law.

6-10           (e)  An impartial third party may not be required to testify

6-11     in any proceedings relating to or arising out of the matter in

6-12     dispute.

6-13           Sec. 2008.055.  INTERAGENCY SHARING OF INFORMATION;

6-14     CONSISTENCY OF PROCEDURES.  (a)  A state agency may share the

6-15     results of its alternative dispute resolution program with other

6-16     agencies and with the Center for Public Policy Dispute Resolution

6-17     at The University of Texas School of Law.  The center may collect

6-18     and analyze the information and report its conclusions and useful

6-19     information to state agencies and the legislature.

6-20           (b)  State agencies should, to the extent feasible given the

6-21     differences in agency purpose, jurisdiction, and constituency,

6-22     adopt policies and procedures for alternative dispute resolution

6-23     that are consistent with the policies and procedures of other state

6-24     agencies.

6-25           SECTION 2.  Section 2003.001, Government Code, is amended to

 7-1     read as follows:

 7-2           Sec. 2003.001.  DEFINITIONS.  In this chapter:

 7-3                 (1)  "Administrative law judge" means an individual who

 7-4     presides at an administrative hearing held under Chapter 2001.

 7-5                 (2)  "Alternative dispute resolution procedure" has the

 7-6     meaning assigned by Section 2008.003.

 7-7                 (3)  "Office" means the State Office of Administrative

 7-8     Hearings.

 7-9                 (4) [(3)]  "State agency" means:

7-10                       (A)  a state board, commission, department, or

7-11     other agency that is subject to Chapter 2001; and

7-12                       (B)  to the extent provided by Title 5, Labor

7-13     Code, the Texas Workers' Compensation Commission.

7-14           SECTION 3.  Subsection (b), Section 2003.021, Government

7-15     Code, is amended to read as follows:

7-16           (b)  The office shall conduct all administrative hearings in

7-17     contested cases under Chapter 2001 that are before a state agency

7-18     that does not employ an individual whose only duty is to preside as

7-19     a hearings officer over matters related to contested cases before

7-20     the agency and may conduct alternative dispute resolution

7-21     procedures as described in Section 2008.003.

7-22           SECTION 4.  Section 2003.042, Government Code, is amended to

7-23     read as follows:

7-24           Sec. 2003.042.  POWERS OF ADMINISTRATIVE LAW JUDGE.  (a)  An

7-25     administrative law judge may:

 8-1                 (1)  administer an oath;

 8-2                 (2)  take testimony;

 8-3                 (3)  rule on a question of evidence;

 8-4                 (4)  subject to review by the state agency before which

 8-5     the contested case is brought, issue an order relating to discovery

 8-6     or another hearing or prehearing matter, including an order

 8-7     imposing a sanction that the agency may impose; [and]

 8-8                 (5)  issue an order that refers a case to an

 8-9     alternative dispute resolution procedure, determines how the costs

8-10     of the procedure will be apportioned, and appoints an impartial

8-11     third party as described in Section 2008.053 to facilitate that

8-12     procedure;

8-13                 (6)  issue a proposal for decision that includes

8-14     findings of fact and conclusions of law;

8-15                 (7)  serve as an impartial third party as described in

8-16     Section 2008.053 for a dispute referred by an administrative law

8-17     judge, unless either of the parties objects to such appointment;

8-18     and

8-19                 (8)  serve as an impartial third party as described in

8-20     Section 2008.053 for a dispute referred by a government agency

8-21     pursuant to a contract.

8-22           (b)  An administrative law judge may not serve as an

8-23     impartial third party for a dispute that he or she refers to an

8-24     alternative dispute resolution procedure.

8-25           SECTION 5.  Section 2003.047, Government Code, as added by

 9-1     Section 1, Chapter 106, Acts of the 74th Legislature, 1995, is

 9-2     amended by adding Subsection (j) to read as follows:

 9-3           (j)  An administrative law judge hearing a case on behalf of

 9-4     the commission may not, without the agreement of all parties, issue

 9-5     an order referring the case to an alternative dispute resolution

 9-6     procedure if the commission has already conducted an unsuccessful

 9-7     alternative dispute resolution procedure.  If the commission has

 9-8     not already conducted an alternative dispute resolution procedure,

 9-9     the administrative law judge shall consider the commission's

9-10     recommendation in determining whether to issue an order referring

9-11     the case to the procedure.

9-12           SECTION 6.  This Act takes effect September 1, 1997.

9-13           SECTION 7.  The importance of this legislation and the

9-14     crowded condition of the calendars in both houses create an

9-15     emergency and an imperative public necessity that the

9-16     constitutional rule requiring bills to be read on three several

9-17     days in each house be suspended, and this rule is hereby suspended.