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.