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, with an alternative dispute
2-25 resolution system created under Chapter 152, Civil Practice and
3-1 Remedies Code, or with a private entity for any service necessary
3-2 to meet the objectives of this chapter.
3-3 Sec. 2008.005. SOVEREIGN IMMUNITY. (a) This chapter does
3-4 not waive immunity from suit and does not affect a waiver of
3-5 immunity from suit contained in other law.
3-6 (b) The state's sovereign immunity under the Eleventh
3-7 Amendment to the United States Constitution is not waived by this
3-8 chapter.
3-9 (c) Nothing in this chapter authorizes binding arbitration
3-10 as a method of alternative dispute resolution.
3-11 (Sections 2008.006-2008.050 reserved for expansion
3-12 SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION
3-13 Sec. 2008.051. DEVELOPMENT AND USE OF PROCEDURES. (a) Each
3-14 state agency may develop and use alternative dispute resolution
3-15 procedures. Alternative dispute resolution procedures developed
3-16 and used by a state agency must be consistent with Chapter 154,
3-17 Civil Practice and Remedies Code, and with the administrative
3-18 procedure law, Chapter 2001. The State Office of Administrative
3-19 Hearings may issue model guidelines for the use of alternative
3-20 dispute resolution procedures by state agencies.
3-21 (b) If a state agency that is subject to Chapter 2001 adopts
3-22 an alternative dispute resolution procedure, it may do so by rule.
3-23 Sec. 2008.052. SUPPLEMENTAL NATURE OF PROCEDURES.
3-24 (a) Alternative dispute resolution procedures developed and used
3-25 under this chapter supplement and do not limit other dispute
4-1 resolution procedures available at a state agency.
4-2 (b) This chapter may not be applied in a manner that denies
4-3 a person a right granted under other state or federal law,
4-4 including a right to an administrative or judicial hearing.
4-5 Sec. 2008.053. IMPARTIAL THIRD PARTIES. (a) A state agency
4-6 may appoint a governmental officer or employee or a private
4-7 individual to serve as an impartial third party in an alternative
4-8 dispute resolution procedure. The agency's appointment of the
4-9 impartial third party is subject to the approval of the parties,
4-10 except that when a State Office of Administrative Hearings
4-11 administrative law judge has issued an order referring a case to an
4-12 alternative dispute resolution procedure under Section 2003.042(5),
4-13 the administrative law judge may appoint the impartial third party
4-14 for the parties if they cannot agree on an impartial third party
4-15 within a reasonable period.
4-16 (b) The impartial third party must possess the
4-17 qualifications required under Section 154.052, Civil Practice and
4-18 Remedies Code.
4-19 (c) A state agency also may obtain the services of a
4-20 qualified impartial third party through an agreement with the State
4-21 Office of Administrative Hearings, the Center for Public Policy
4-22 Dispute Resolution at The University of Texas School of Law, an
4-23 alternative dispute resolution system created under Chapter 152,
4-24 Civil Practice and Remedies Code, or another state or federal
4-25 agency or through a pooling agreement with several state agencies.
5-1 The agreements may provide that the using agency or the parties
5-2 will reimburse the furnishing agency, in kind or monetarily, for
5-3 the full or partial cost of providing the qualified impartial third
5-4 party.
5-5 (d) The impartial third party is subject to the standards
5-6 and duties prescribed by Section 154.053, Civil Practice and
5-7 Remedies Code, and has the qualified immunity prescribed by Section
5-8 154.055, Civil Practice and Remedies Code, if applicable.
5-9 Sec. 2008.054. CONFIDENTIALITY OF CERTAIN RECORDS AND
5-10 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice
5-11 and Remedies Code, apply to the communications, records, conduct,
5-12 and demeanor of the impartial third party and the parties.
5-13 (b) Notwithstanding Section 154.073(d), Civil Practice and
5-14 Remedies Code:
5-15 (1) a communication relevant to the dispute, and a
5-16 record of the communication, made between an impartial third party
5-17 and the parties to the dispute or between the parties to the
5-18 dispute during the course of an alternative dispute resolution
5-19 procedure are confidential and may not be disclosed unless all
5-20 parties to the dispute consent to the disclosure; and
5-21 (2) the notes of an impartial third party are
5-22 confidential except to the extent that the notes consist of a
5-23 record of a communication with a party and all parties have
5-24 consented to disclosure in accordance with Subdivision (1).
5-25 (c) Subsection (b)(1) does not apply to a final written
6-1 agreement to which a governmental entity is a signatory that is
6-2 reached as a result of a dispute resolution procedure conducted
6-3 under this chapter. Information in the final written agreement is
6-4 subject to required disclosure, is excepted from required
6-5 disclosure, or is confidential in accordance with other law.
6-6 (d) An impartial third party may not be required to testify
6-7 in any proceedings relating to or arising out of the matter in
6-8 dispute.
6-9 Sec. 2008.055. INTERAGENCY SHARING OF INFORMATION;
6-10 CONSISTENCY OF PROCEDURES. (a) A state agency may share the
6-11 results of its alternative dispute resolution program with other
6-12 agencies and with the Center for Public Policy Dispute Resolution
6-13 at The University of Texas School of Law. The center may collect
6-14 and analyze the information and report its conclusions and useful
6-15 information to state agencies and the legislature.
6-16 (b) State agencies should, to the extent feasible given the
6-17 differences in agency purpose, jurisdiction, and constituency,
6-18 adopt policies and procedures for alternative dispute resolution
6-19 that are consistent with the policies and procedures of other state
6-20 agencies.
6-21 SECTION 2. Section 2003.001, Government Code, is amended to
6-22 read as follows:
6-23 Sec. 2003.001. DEFINITIONS. In this chapter:
6-24 (1) "Administrative law judge" means an individual who
6-25 presides at an administrative hearing held under Chapter 2001.
7-1 (2) "Alternative dispute resolution procedure" has the
7-2 meaning assigned by Section 2008.003.
7-3 (3) "Office" means the State Office of Administrative
7-4 Hearings.
7-5 (4) [(3)] "State agency" means:
7-6 (A) a state board, commission, department, or
7-7 other agency that is subject to Chapter 2001; and
7-8 (B) to the extent provided by Title 5, Labor
7-9 Code, the Texas Workers' Compensation Commission.
7-10 SECTION 3. Subsection (b), Section 2003.021, Government
7-11 Code, is amended to read as follows:
7-12 (b) The office shall conduct all administrative hearings in
7-13 contested cases under Chapter 2001 that are before a state agency
7-14 that does not employ an individual whose only duty is to preside as
7-15 a hearings officer over matters related to contested cases before
7-16 the agency and may conduct alternative dispute resolution
7-17 procedures.
7-18 SECTION 4. Section 2003.042, Government Code, is amended to
7-19 read as follows:
7-20 Sec. 2003.042. POWERS OF ADMINISTRATIVE LAW JUDGE. (a) An
7-21 administrative law judge may:
7-22 (1) administer an oath;
7-23 (2) take testimony;
7-24 (3) rule on a question of evidence;
7-25 (4) subject to review by the state agency before which
8-1 the contested case is brought, issue an order relating to discovery
8-2 or another hearing or prehearing matter, including an order
8-3 imposing a sanction that the agency may impose; [and]
8-4 (5) issue an order that refers a case to an
8-5 alternative dispute resolution procedure, determines how the costs
8-6 of the procedure will be apportioned, and appoints an impartial
8-7 third party as described by Section 2008.053 to facilitate that
8-8 procedure;
8-9 (6) issue a proposal for decision that includes
8-10 findings of fact and conclusions of law;
8-11 (7) serve as an impartial third party as described by
8-12 Section 2008.053 for a dispute referred by an administrative law
8-13 judge, unless one of the parties objects to the appointment; and
8-14 (8) serve as an impartial third party as described by
8-15 Section 2008.053 for a dispute referred by a government agency
8-16 under a contract.
8-17 (b) An administrative law judge may not serve as an
8-18 impartial third party for a dispute that the administrative law
8-19 judge refers to an alternative dispute resolution procedure.
8-20 SECTION 5. Section 2003.047, Government Code, as added by
8-21 Section 1, Chapter 106, Acts of the 74th Legislature, 1995, is
8-22 amended by adding Subsection (j) to read as follows:
8-23 (j) An administrative law judge hearing a case on behalf of
8-24 the commission may not, without the agreement of all parties, issue
8-25 an order referring the case to an alternative dispute resolution
9-1 procedure if the commission has already conducted an unsuccessful
9-2 alternative dispute resolution procedure. If the commission has
9-3 not already conducted an alternative dispute resolution procedure,
9-4 the administrative law judge shall consider the commission's
9-5 recommendation in determining whether to issue an order referring
9-6 the case to the procedure.
9-7 SECTION 6. This Act takes effect September 1, 1997.
9-8 SECTION 7. The importance of this legislation and the
9-9 crowded condition of the calendars in both houses create an
9-10 emergency and an imperative public necessity that the
9-11 constitutional rule requiring bills to be read on three several
9-12 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 694 passed the Senate on
March 20, 1997, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 24, 1997, by a
viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 694 passed the House, with
amendment, on May 21, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor