75R9891 JRD-F
By Brown S.B. No. 694
Substitute the following for S.B. No. 694:
By Wolens C.S.S.B. No. 694
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the use of alternative dispute resolution procedures by
1-3 state agencies.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 10, Government Code, is amended
1-6 by adding Chapter 2008 to read as follows:
1-7 CHAPTER 2008. ALTERNATIVE DISPUTE RESOLUTION AT STATE AGENCIES
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 2008.001. SHORT TITLE. This chapter may be cited as
1-10 the Governmental Dispute Resolution Act.
1-11 Sec. 2008.002. POLICY. It is the policy of this state that
1-12 disputes before state agencies be resolved as fairly and
1-13 expeditiously as possible and that each state agency support this
1-14 policy by developing and using alternative dispute resolution
1-15 procedures in appropriate aspects of the agency's operations and
1-16 programs.
1-17 Sec. 2008.003. DEFINITIONS. In this chapter:
1-18 (1) "Alternative dispute resolution procedure"
1-19 includes:
1-20 (A) a procedure described by Chapter 154, Civil
1-21 Practice and Remedies Code; and
1-22 (B) a combination of the procedures described by
1-23 Chapter 154, Civil Practice and Remedies Code.
1-24 (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
2-26 Remedies Code, or with a private entity for any service necessary
2-27 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 2008.006-2008.050 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 must 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 may do so by rule.
3-21 Sec. 2008.052. SUPPLEMENTAL NATURE OF PROCEDURES. (a)
3-22 Alternative dispute resolution procedures developed and used under
3-23 this chapter supplement and do not limit other dispute resolution
3-24 procedures available at a state agency.
3-25 (b) This chapter may not be applied in a manner that denies
3-26 a person a right granted under other state or federal law,
3-27 including a right to an administrative or judicial hearing.
4-1 Sec. 2008.053. IMPARTIAL THIRD PARTIES. (a) A state agency
4-2 may appoint a governmental officer or employee or a private
4-3 individual to serve as an impartial third party in an alternative
4-4 dispute resolution procedure. The agency's appointment of the
4-5 impartial third party is subject to the approval of the parties,
4-6 except that when a State Office of Administrative Hearings
4-7 administrative law judge has issued an order referring a case to an
4-8 alternative dispute resolution procedure under Section 2003.042(5),
4-9 the administrative law judge may appoint the impartial third party
4-10 for the parties if they cannot agree on an impartial third party
4-11 within a reasonable period.
4-12 (b) The impartial third party must possess the
4-13 qualifications required under Section 154.052, Civil Practice and
4-14 Remedies Code.
4-15 (c) A state agency also may obtain the services of a
4-16 qualified impartial third party through an agreement with the State
4-17 Office of Administrative Hearings, the Center for Public Policy
4-18 Dispute Resolution at The University of Texas School of Law, an
4-19 alternative dispute resolution system created under Chapter 152,
4-20 Civil Practice and Remedies Code, or another state or federal
4-21 agency or through a pooling agreement with several state agencies.
4-22 The agreements may provide that the using agency or the parties
4-23 will reimburse the furnishing agency, in kind or monetarily, for
4-24 the full or partial cost of providing the qualified impartial third
4-25 party.
4-26 (d) The impartial third party is subject to the standards
4-27 and duties prescribed by Section 154.053, Civil Practice and
5-1 Remedies Code, and has the qualified immunity prescribed by Section
5-2 154.055, Civil Practice and Remedies Code, if applicable.
5-3 Sec. 2008.054. CONFIDENTIALITY OF CERTAIN RECORDS AND
5-4 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice
5-5 and Remedies Code, apply to the communications, records, conduct,
5-6 and demeanor of the impartial third party and the parties.
5-7 (b) Notwithstanding Section 154.073(d), Civil Practice and
5-8 Remedies Code:
5-9 (1) a communication relevant to the dispute, and a
5-10 record of the communication, made between an impartial third party
5-11 and the parties to the dispute or between the parties to the
5-12 dispute during the course of an alternative dispute resolution
5-13 procedure are confidential and may not be disclosed unless all
5-14 parties to the dispute consent to the disclosure; and
5-15 (2) the notes of an impartial third party are
5-16 confidential except to the extent that the notes consist of a
5-17 record of a communication with a party and all parties have
5-18 consented to disclosure in accordance with Subdivision (1).
5-19 (c) Subsection (b)(1) does not apply to a final written
5-20 agreement to which a governmental entity is a signatory that is
5-21 reached as a result of a dispute resolution procedure conducted
5-22 under this chapter. Information in the final written agreement is
5-23 subject to required disclosure, is excepted from required
5-24 disclosure, or is confidential in accordance with other law.
5-25 (d) An impartial third party may not be required to testify
5-26 in any proceedings relating to or arising out of the matter in
5-27 dispute.
6-1 Sec. 2008.055. INTERAGENCY SHARING OF INFORMATION;
6-2 CONSISTENCY OF PROCEDURES. (a) A state agency may share the
6-3 results of its alternative dispute resolution program with other
6-4 agencies and with the Center for Public Policy Dispute Resolution
6-5 at The University of Texas School of Law. The center may collect
6-6 and analyze the information and report its conclusions and useful
6-7 information to state agencies and the legislature.
6-8 (b) State agencies should, to the extent feasible given the
6-9 differences in agency purpose, jurisdiction, and constituency,
6-10 adopt policies and procedures for alternative dispute resolution
6-11 that are consistent with the policies and procedures of other state
6-12 agencies.
6-13 SECTION 2. Section 2003.001, Government Code, is amended to
6-14 read as follows:
6-15 Sec. 2003.001. DEFINITIONS. In this chapter:
6-16 (1) "Administrative law judge" means an individual who
6-17 presides at an administrative hearing held under Chapter 2001.
6-18 (2) "Alternative dispute resolution procedure" has the
6-19 meaning assigned by Section 2008.003.
6-20 (3) "Office" means the State Office of Administrative
6-21 Hearings.
6-22 (4) [(3)] "State agency" means:
6-23 (A) a state board, commission, department, or
6-24 other agency that is subject to Chapter 2001; and
6-25 (B) to the extent provided by Title 5, Labor
6-26 Code, the Texas Workers' Compensation Commission.
6-27 SECTION 3. Section 2003.021(b), Government Code, is amended
7-1 to read as follows:
7-2 (b) The office shall conduct all administrative hearings in
7-3 contested cases under Chapter 2001 that are before a state agency
7-4 that does not employ an individual whose only duty is to preside as
7-5 a hearings officer over matters related to contested cases before
7-6 the agency and may conduct alternative dispute resolution
7-7 procedures.
7-8 SECTION 4. Section 2003.042, Government Code, is amended to
7-9 read as follows:
7-10 Sec. 2003.042. POWERS OF ADMINISTRATIVE LAW JUDGE. (a) An
7-11 administrative law judge may:
7-12 (1) administer an oath;
7-13 (2) take testimony;
7-14 (3) rule on a question of evidence;
7-15 (4) subject to review by the state agency before which
7-16 the contested case is brought, issue an order relating to discovery
7-17 or another hearing or prehearing matter, including an order
7-18 imposing a sanction that the agency may impose; [and]
7-19 (5) issue an order that refers a case to an
7-20 alternative dispute resolution procedure, determines how the costs
7-21 of the procedure will be apportioned, and appoints an impartial
7-22 third party as described by Section 2008.053 to facilitate that
7-23 procedure;
7-24 (6) issue a proposal for decision that includes
7-25 findings of fact and conclusions of law;
7-26 (7) serve as an impartial third party as described by
7-27 Section 2008.053 for a dispute referred by an administrative law
8-1 judge, unless one of the parties objects to the appointment; and
8-2 (8) serve as an impartial third party as described by
8-3 Section 2008.053 for a dispute referred by a government agency
8-4 under a contract.
8-5 (b) An administrative law judge may not serve as an
8-6 impartial third party for a dispute that the administrative law
8-7 judge refers to an alternative dispute resolution procedure.
8-8 SECTION 5. Section 2003.047, Government Code, as added by
8-9 Section 1, Chapter 106, Acts of the 74th Legislature, Regular
8-10 Session, 1995, is amended by adding Subsection (j) to read as
8-11 follows:
8-12 (j) An administrative law judge hearing a case on behalf of
8-13 the commission may not, without the agreement of all parties, issue
8-14 an order referring the case to an alternative dispute resolution
8-15 procedure if the commission has already conducted an unsuccessful
8-16 alternative dispute resolution procedure. If the commission has
8-17 not already conducted an alternative dispute resolution procedure,
8-18 the administrative law judge shall consider the commission's
8-19 recommendation in determining whether to issue an order referring
8-20 the case to the procedure.
8-21 SECTION 6. This Act takes effect September 1, 1997.
8-22 SECTION 7. The importance of this legislation and the
8-23 crowded condition of the calendars in both houses create an
8-24 emergency and an imperative public necessity that the
8-25 constitutional rule requiring bills to be read on three several
8-26 days in each house be suspended, and this rule is hereby suspended.