1-1 By: Brown S.B. No. 694
1-2 (In the Senate - Filed February 20, 1997; February 25, 1997,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 March 11, 1997, reported favorably, as amended, by the following
1-5 vote: Yeas 7, Nays 0; March 11, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Cain
1-7 Amend S.B. No. 694 in SECTION 1, (page 2, line 32) following the
1-8 end of Section 2008.004, by adding:
1-9 "Sec. 2008.005. SOVEREIGN IMMUNITY. (a) This chapter does
1-10 not waive immunity from suit and does not affect a waiver of
1-11 immunity from suit contained in other law.
1-12 (b) The state's sovereign immunity under the Eleventh
1-13 Amendment to the United States Constitution is not waived by this
1-14 chapter.
1-15 (c) Nothing in this chapter authorizes binding arbitration
1-16 as a method of alternative dispute resolution."
1-17 COMMITTEE AMENDMENT NO. 2 By: Cain
1-18 Amend S.B. No. 694 as follows:
1-19 (1) In SECTION 1, Section 2008.051, Subsection (a), (page 2,
1-20 line 35) between "(a)" and "Alternative", insert "Each state agency
1-21 may develop and use alternative dispute resolution procedures."
1-22 (2) In SECTION 1, Section 2008.051, Subsection (b), (page 2,
1-23 lines 41-42) strike "Each agency that is subject to Chapter 2001
1-24 shall adopt its alternative dispute resolution procedure by rule."
1-25 and substitute "If a state agency that is subject to Chapter 2001
1-26 adopts an alternative dispute resolution procedure, it shall do so
1-27 by rule."
1-28 COMMITTEE AMENDMENT NO. 3 By: Cain
1-29 Amend S.B. No. 694 in SECTION 1, Section 2008.052, Subsection (b),
1-30 (page 2, lines 49-52) by striking ", except to the extent that an
1-31 informed person voluntarily agrees in advance to be bound by the
1-32 outcome of an alternative dispute resolution procedure".
1-33 COMMITTEE AMENDMENT NO. 4 By: Cain
1-34 Amend S.B. No. 694 in SECTION 1, Section 2008.054, by adding
1-35 Subsection (e) to read as follows:
1-36 "(e) An impartial third party may not be required to testify
1-37 in any proceedings relating to or arising out of the matter in
1-38 dispute."
1-39 A BILL TO BE ENTITLED
1-40 AN ACT
1-41 relating to the use of alternative dispute resolution procedures by
1-42 state agencies.
1-43 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-44 SECTION 1. Subtitle A, Title 10, Government Code, is amended
1-45 by adding Chapter 2008 to read as follows:
1-46 CHAPTER 2008. ALTERNATIVE DISPUTE RESOLUTION AT STATE AGENCIES
1-47 SUBCHAPTER A. GENERAL PROVISIONS
1-48 Sec. 2008.001. SHORT TITLE. This chapter may be cited as
1-49 the Governmental Dispute Resolution Act.
1-50 Sec. 2008.002. POLICY. It is the policy of this state that
1-51 disputes before state agencies be resolved as fairly and
1-52 expeditiously as possible and that each state agency support this
1-53 policy by developing and using alternative dispute resolution
1-54 procedures in appropriate aspects of the agency's operations and
1-55 programs.
1-56 Sec. 2008.003. DEFINITIONS. In this chapter:
1-57 (1) "Alternative dispute resolution procedure"
2-1 includes:
2-2 (A) a procedure described by Chapter 154, Civil
2-3 Practice and Remedies Code; and
2-4 (B) a combination of the procedures described by
2-5 Chapter 154, Civil Practice and Remedies Code.
2-6 (2) "State agency" means an officer, board,
2-7 commission, department, or other agency in the executive branch of
2-8 state government with statewide jurisdiction that makes rules or
2-9 determines contested cases. The term includes:
2-10 (A) the attorney general;
2-11 (B) an institution of higher education as
2-12 defined by Section 61.003, Education Code; and
2-13 (C) the State Office of Administrative Hearings.
2-14 (3) The following terms have the meanings assigned by
2-15 Section 2001.003:
2-16 (A) "contested case";
2-17 (B) "party";
2-18 (C) "person"; and
2-19 (D) "rule."
2-20 Sec. 2008.004. AGENCY CONTRACTS; BUDGETING FOR COSTS.
2-21 (a) A state agency may pay for costs necessary to meet the
2-22 objectives of this chapter, including reasonable fees for training,
2-23 policy review, system design, evaluation, and the use of impartial
2-24 third parties. To the extent allowed by the General Appropriations
2-25 Act, the agency may use for this purpose money budgeted for legal
2-26 services, executive administration, or any other appropriate aspect
2-27 of the agency's operations.
2-28 (b) A state agency may contract with another state agency,
2-29 including the Center for Public Policy Dispute Resolution at The
2-30 University of Texas School of Law, or with a private entity for any
2-31 service necessary to meet the objectives of this chapter.
2-32 (Sections 2008.005 to 2008.050 reserved for expansion
2-33 SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION
2-34 Sec. 2008.051. DEVELOPMENT AND USE OF PROCEDURES.
2-35 (a) Alternative dispute resolution procedures developed and used
2-36 by a state agency shall be consistent with Chapter 154, Civil
2-37 Practice and Remedies Code, and with the administrative procedure
2-38 law, Chapter 2001. The State Office of Administrative Hearings may
2-39 issue model guidelines for the use of alternative dispute
2-40 resolution procedures by state agencies.
2-41 (b) Each agency that is subject to Chapter 2001 shall adopt
2-42 its alternative dispute resolution procedures by rule.
2-43 Sec. 2008.052. SUPPLEMENTAL NATURE OF PROCEDURES.
2-44 (a) Alternative dispute resolution procedures developed and used
2-45 under this chapter supplement and do not limit other dispute
2-46 resolution procedures available at a state agency.
2-47 (b) This chapter may not be applied in a manner that denies
2-48 a person a right granted under other state or federal law,
2-49 including a right to an administrative or judicial hearing, except
2-50 to the extent that an informed person voluntarily agrees in advance
2-51 to be bound by the outcome of an alternative dispute resolution
2-52 procedure.
2-53 Sec. 2008.053. IMPARTIAL THIRD PARTIES. (a) A state agency
2-54 may appoint a governmental officer or employee or a private
2-55 individual to serve as an impartial third party in an alternative
2-56 dispute resolution procedure. The agency's appointment of the
2-57 impartial third party is subject to the approval of the parties,
2-58 except that where a State Office of Administrative Hearings
2-59 administrative law judge has issued an order to an alternative
2-60 dispute resolution procedure under Section 2003.042(5), the
2-61 administrative law judge may appoint the impartial third party for
2-62 the parties if they cannot agree on a third party within a
2-63 reasonable period of time.
2-64 (b) The impartial third party must possess the
2-65 qualifications required under Section 154.052, Civil Practice and
2-66 Remedies Code.
2-67 (c) A state agency also may obtain the services of a
2-68 qualified impartial third party through an agreement with the State
2-69 Office of Administrative Hearings, the Center for Public Policy
3-1 Dispute Resolution at The University of Texas School of Law, or
3-2 another state or federal agency or through a pooling agreement with
3-3 several state agencies. The agreements may provide that the using
3-4 agency or the parties will reimburse the furnishing agency, in kind
3-5 or monetarily, for the full or partial cost of providing the
3-6 qualified impartial third party.
3-7 (d) The impartial third party is subject to the standards
3-8 and duties prescribed by Section 154.053, Civil Practice and
3-9 Remedies Code, and has the qualified immunity prescribed by Section
3-10 154.055, Civil Practice and Remedies Code, if applicable.
3-11 Sec. 2008.054. CONFIDENTIALITY OF CERTAIN RECORDS AND
3-12 COMMUNICATIONS. (a) Sections 154.053 and 154.073, Civil Practice
3-13 and Remedies Code, apply to the communications, records, conduct,
3-14 and demeanor of the impartial third party and the parties.
3-15 (b) In an alternative dispute resolution procedure conducted
3-16 under this chapter, the attorney general, subject to review by a
3-17 Travis County district court, determines in accordance with Section
3-18 154.073(d), Civil Practice and Remedies Code, whether a
3-19 communication or material subject to Section 154.073(d) is
3-20 confidential, excepted from required disclosure, or subject to
3-21 required disclosure.
3-22 (c) Notwithstanding Section 154.073(d), Civil Practice and
3-23 Remedies Code:
3-24 (1) a communication relevant to the dispute, and a
3-25 record of the communication, made between an impartial third party
3-26 and the parties to the dispute or between the parties to the
3-27 dispute during the course of an alternative dispute resolution
3-28 procedure are confidential and may not be disclosed unless all
3-29 parties to the dispute consent to the disclosure; and
3-30 (2) the notes of an impartial third party are
3-31 confidential except to the extent that the notes consist of a
3-32 record of a communication with a party and all parties have
3-33 consented to disclosure in accordance with Subdivision (1).
3-34 (d) A final written agreement to which a government entity
3-35 is a signatory reached as a result of a dispute resolution
3-36 procedure is not a communication under Subsection (c)(1).
3-37 Information in the final written agreement is subject to required
3-38 disclosure, is excepted from required disclosure, or is
3-39 confidential in accordance with other law.
3-40 Sec. 2008.055. INTERAGENCY SHARING OF INFORMATION;
3-41 CONSISTENCY OF PROCEDURES. (a) A state agency may share the
3-42 results of its alternative dispute resolution program with other
3-43 agencies and with the Center for Public Policy Dispute Resolution
3-44 at The University of Texas School of Law. The center may collect
3-45 and analyze the information and report its conclusions and useful
3-46 information to state agencies and the legislature.
3-47 (b) State agencies should, to the extent feasible given the
3-48 differences in agency purpose, jurisdiction, and constituency,
3-49 adopt policies and procedures for alternative dispute resolution
3-50 that are consistent with the policies and procedures of other state
3-51 agencies.
3-52 SECTION 2. Section 2003.001, Government Code, is amended to
3-53 read as follows:
3-54 Sec. 2003.001. DEFINITIONS. In this chapter:
3-55 (1) "Administrative law judge" means an individual who
3-56 presides at an administrative hearing held under Chapter 2001.
3-57 (2) "Alternative dispute resolution procedure" has the
3-58 meaning assigned by Section 2008.003.
3-59 (3) "Office" means the State Office of Administrative
3-60 Hearings.
3-61 (4) [(3)] "State agency" means:
3-62 (A) a state board, commission, department, or
3-63 other agency that is subject to Chapter 2001; and
3-64 (B) to the extent provided by Title 5, Labor
3-65 Code, the Texas Workers' Compensation Commission.
3-66 SECTION 3. Subsection (b), Section 2003.021, Government
3-67 Code, is amended to read as follows:
3-68 (b) The office shall conduct all administrative hearings in
3-69 contested cases under Chapter 2001 that are before a state agency
4-1 that does not employ an individual whose only duty is to preside as
4-2 a hearings officer over matters related to contested cases before
4-3 the agency and may conduct alternative dispute resolution
4-4 procedures as described in Section 2008.003.
4-5 SECTION 4. Section 2003.042, Government Code, is amended to
4-6 read as follows:
4-7 Sec. 2003.042. POWERS OF ADMINISTRATIVE LAW JUDGE. (a) An
4-8 administrative law judge may:
4-9 (1) administer an oath;
4-10 (2) take testimony;
4-11 (3) rule on a question of evidence;
4-12 (4) subject to review by the state agency before which
4-13 the contested case is brought, issue an order relating to discovery
4-14 or another hearing or prehearing matter, including an order
4-15 imposing a sanction that the agency may impose; [and]
4-16 (5) issue an order that refers a case to an
4-17 alternative dispute resolution procedure, determines how the costs
4-18 of the procedure will be apportioned, and appoints an impartial
4-19 third party as described in Section 2008.053 to facilitate that
4-20 procedure;
4-21 (6) issue a proposal for decision that includes
4-22 findings of fact and conclusions of law;
4-23 (7) serve as an impartial third party as described in
4-24 Section 2008.053 for a dispute referred by an administrative law
4-25 judge, unless either of the parties objects to such appointment;
4-26 and
4-27 (8) serve as an impartial third party as described in
4-28 Section 2008.053 for a dispute referred by a government agency
4-29 pursuant to a contract.
4-30 (b) An administrative law judge may not serve as an
4-31 impartial third party for a dispute that he or she refers to an
4-32 alternative dispute resolution procedure.
4-33 SECTION 5. Section 2003.047, Government Code, as added by
4-34 Section 1, Chapter 106, Acts of the 74th Legislature, 1995, is
4-35 amended by adding Subsection (j) to read as follows:
4-36 (j) An administrative law judge hearing a case on behalf of
4-37 the commission may not, without the agreement of all parties, issue
4-38 an order referring the case to an alternative dispute resolution
4-39 procedure if the commission has already conducted an unsuccessful
4-40 alternative dispute resolution procedure. If the commission has
4-41 not already conducted an alternative dispute resolution procedure,
4-42 the administrative law judge shall consider the commission's
4-43 recommendation in determining whether to issue an order referring
4-44 the case to the procedure.
4-45 SECTION 6. This Act takes effect September 1, 1997.
4-46 SECTION 7. The importance of this legislation and the
4-47 crowded condition of the calendars in both houses create an
4-48 emergency and an imperative public necessity that the
4-49 constitutional rule requiring bills to be read on three several
4-50 days in each house be suspended, and this rule is hereby suspended.
4-51 * * * * *