By: Brown S.B. No. 694
97S0464/1
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 (Sections 2008.005 to 2008.050 reserved for expansion
3-2 SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION
3-3 Sec. 2008.051. DEVELOPMENT AND USE OF PROCEDURES.
3-4 (a) Alternative dispute resolution procedures developed and used
3-5 by a state agency shall be consistent with Chapter 154, Civil
3-6 Practice and Remedies Code, and with administrative procedure law,
3-7 Chapter 2001. The State Office of Administrative Hearings may
3-8 issue model guidelines for the use of alternative dispute
3-9 resolution procedures by state agencies.
3-10 (b) Each agency that is subject to Chapter 2001 shall adopt
3-11 its alternative dispute resolution procedures by rule.
3-12 Sec. 2008.052. SUPPLEMENTAL NATURE OF PROCEDURES.
3-13 (a) Alternative dispute resolution procedures developed and used
3-14 under this chapter supplement and do not limit other dispute
3-15 resolution procedures available at a state agency.
3-16 (b) This chapter may not be applied in a manner that denies
3-17 a person a right granted under other state or federal law,
3-18 including a right to an administrative or judicial hearing, except
3-19 to the extent that an informed person voluntarily agrees in advance
3-20 to be bound by the outcome of an alternative dispute resolution
3-21 procedure.
3-22 Sec. 2008.053. IMPARTIAL THIRD PARTIES. (a) A state agency
3-23 may appoint a governmental officer or employee or a private
3-24 individual to serve as an impartial third party in an alternative
3-25 dispute resolution procedure. The agency's appointment of the
4-1 impartial third party is subject to the approval of the parties,
4-2 except that where a State Office of Administrative Hearings
4-3 administrative law judge has issued an order to an alternative
4-4 dispute resolution procedure under Section 2003.042(5), the
4-5 administrative law judge may appoint the impartial third party for
4-6 the parties if they cannot agree on a third party within a
4-7 reasonable period of time.
4-8 (b) The impartial third party must possess the
4-9 qualifications required under Section 154.052, Civil Practice and
4-10 Remedies Code.
4-11 (c) A state agency also may obtain the services of a
4-12 qualified impartial third party through an agreement with the State
4-13 Office of Administrative Hearings, the Center for Public Policy
4-14 Dispute Resolution at The University of Texas School of Law, or
4-15 another state or federal agency or through a pooling agreement with
4-16 several state agencies. The agreements may provide that the using
4-17 agency or the parties will reimburse the furnishing agency, in kind
4-18 or monetarily, for the full or partial cost of providing the
4-19 qualified impartial third party.
4-20 (d) The impartial third party is subject to the standards
4-21 and duties prescribed by Section 154.053, Civil Practice and
4-22 Remedies Code, and has the qualified immunity prescribed by Section
4-23 154.055, Civil Practice and Remedies Code, if applicable.
4-24 Sec. 2008.054. CONFIDENTIALITY OF CERTAIN RECORDS AND
4-25 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice
5-1 and Remedies Code, apply to the communications, records, conduct,
5-2 and demeanor of the impartial third party and the parties.
5-3 (b) In an alternative dispute resolution procedure conducted
5-4 under this chapter the attorney general, subject to review by a
5-5 Travis County district court, determines in accordance with Section
5-6 154.073(d), Civil Practice and Remedies Code, whether a
5-7 communication or material subject to Section 154.073(d) is
5-8 confidential, excepted from required disclosure, or subject to
5-9 required disclosure.
5-10 (c) Notwithstanding Section 154.073(d), Civil Practice and
5-11 Remedies Code:
5-12 (1) a communication relevant to the dispute, and a
5-13 record of the communication, made between an impartial third party
5-14 and the parties to the dispute or between the parties to the
5-15 dispute during the course of an alternative dispute resolution
5-16 procedure are confidential and may not be disclosed unless all
5-17 parties to the dispute consent to the disclosure; and
5-18 (2) the notes of an impartial third party are
5-19 confidential except to the extent that the notes consist of a
5-20 record of a communication with a party and all parties have
5-21 consented to disclosure in accordance with Subdivision (1).
5-22 (d) A final written agreement to which a government entity
5-23 is a signatory reached as a result of a dispute resolution
5-24 procedure is not a communication under Subsection (c)(1).
5-25 Information in the final written agreement is subject to required
6-1 disclosure, excepted from required disclosure, or confidential in
6-2 accordance with other law.
6-3 Sec. 2008.055. INTERAGENCY SHARING OF INFORMATION;
6-4 CONSISTENCY OF PROCEDURES. (a) A state agency may share the
6-5 results of its alternative dispute resolution program with other
6-6 agencies and with the Center for Public Policy Dispute Resolution
6-7 at The University of Texas School of Law. The center may collect
6-8 and analyze the information and report its conclusions and useful
6-9 information to state agencies and the legislature.
6-10 (b) State agencies should, to the extent feasible given the
6-11 differences in agency purpose, jurisdiction, and constituency,
6-12 adopt policies and procedures for alternative dispute resolution
6-13 that are consistent with the policies and procedures of other state
6-14 agencies.
6-15 SECTION 2. Section 2003.001, Government Code, is amended to
6-16 read as follows:
6-17 Sec. 2003.001. DEFINITIONS. In this chapter:
6-18 (1) "Administrative law judge" means an individual who
6-19 presides at an administrative hearing held under Chapter 2001.
6-20 (2) "Alternative dispute resolution procedure" has the
6-21 meaning assigned by Section 2008.003.
6-22 (3) "Office" means the State Office of Administrative
6-23 Hearings.
6-24 (4) [(3)] "State agency" means:
6-25 (A) a state board, commission, department, or
7-1 other agency that is subject to Chapter 2001; and
7-2 (B) to the extent provided by Title 5, Labor
7-3 Code, the Texas Workers' Compensation Commission.
7-4 SECTION 3. Subsection (b), Section 2003.021, Government
7-5 Code, is amended to read as follows:
7-6 (b) The office shall conduct all administrative hearings in
7-7 contested cases under Chapter 2001 that are before a state agency
7-8 that does not employ an individual whose only duty is to preside as
7-9 a hearings officer over matters related to contested cases before
7-10 the agency and may conduct alternative dispute resolution
7-11 procedures as described in Section 2008.002.
7-12 SECTION 4. Section 2003.042, Government Code, is amended to
7-13 read as follows:
7-14 Sec. 2003.042. POWERS OF ADMINISTRATIVE LAW JUDGE. (a) An
7-15 administrative law judge may:
7-16 (1) administer an oath;
7-17 (2) take testimony;
7-18 (3) rule on a question of evidence;
7-19 (4) subject to review by the state agency before which
7-20 the contested case is brought, issue an order relating to discovery
7-21 or another hearing or prehearing matter, including an order
7-22 imposing a sanction that the agency may impose; [and]
7-23 (5) issue an order that refers a case to an
7-24 alternative dispute resolution procedure, determines how the costs
7-25 of the procedure will be apportioned, and appoints an impartial
8-1 third party as described in Section 2008.053, to facilitate that
8-2 procedure;
8-3 (6) issue a proposal for decision that includes
8-4 findings of fact and conclusions of law;
8-5 (7) serve as an impartial third party as described in
8-6 Section 2008.053 for a dispute referred by an administrative law
8-7 judge, unless either of the parties objects to such appointment;
8-8 and
8-9 (8) serve as an impartial third party as described in
8-10 Section 2008.053 for a dispute referred by a government agency
8-11 pursuant to a contract.
8-12 (b) An administrative law judge may not serve as an
8-13 impartial third party for a dispute that he or she refers to an
8-14 alternative dispute resolution procedure.
8-15 SECTION 5. Section 2003.047, Government Code, as added by
8-16 Section 1, Chapter 106, Acts of the 74th Legislature, 1995, is
8-17 amended by adding Subsection (j) to read as follows:
8-18 (j) An administrative law judge hearing a case on behalf of
8-19 the commission may not, without the agreement of all parties, issue
8-20 an order referring the case to an alternative dispute resolution
8-21 procedure if the commission has already conducted an unsuccessful
8-22 alternative dispute resolution procedure. If the commission has
8-23 not already conducted an alternative dispute resolution procedure,
8-24 the administrative law judge shall consider the commission's
8-25 recommendation in determining whether to issue an order referring
9-1 the case to the procedure.
9-2 SECTION 6. This Act takes effect September 1, 1997.
9-3 SECTION 7. The importance of this legislation and the
9-4 crowded condition of the calendars in both houses create an
9-5 emergency and an imperative public necessity that the
9-6 constitutional rule requiring bills to be read on three several
9-7 days in each house be suspended, and this rule is hereby suspended.