By Luna S.B. No. 1116
75R4959 PB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation, funding, powers, and duties of the Office
1-3 of Public Workers' Compensation Counsel.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 5, Labor Code, is amended by
1-6 adding Chapter 405 to read as follows:
1-7 CHAPTER 405. OFFICE OF PUBLIC WORKERS' COMPENSATION COUNSEL
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 405.001. DEFINITIONS. In this chapter:
1-10 (1) "Claimant" means an injured employee or the legal
1-11 beneficiary of an employee.
1-12 (2) "Office" means the Office of Public Workers'
1-13 Compensation Counsel.
1-14 Sec. 405.002. APPLICATION OF SUNSET ACT. The Office of
1-15 Public Workers' Compensation Counsel is subject to Chapter 325,
1-16 Government Code (Texas Sunset Act). Unless continued in existence
1-17 as provided by that chapter, the office is abolished and this
1-18 chapter expires September 1, 2007.
1-19 (Sections 405.003-405.020 reserved for expansion
1-20 SUBCHAPTER B. POWERS AND DUTIES OF OFFICE
1-21 Sec. 405.021. OFFICE OF PUBLIC WORKERS' COMPENSATION
1-22 COUNSEL. The independent office of public workers' compensation
1-23 counsel represents the interests of claimants in contested workers'
1-24 compensation cases.
2-1 Sec. 405.022. OFFICE POWERS AND DUTIES. (a) The office:
2-2 (1) shall assist the Research and Oversight Council on
2-3 Workers' Compensation to assess the effect of litigation and
2-4 controversy relating to workers' compensation;
2-5 (2) shall advocate in the office's own name a position
2-6 determined by the public counsel to be most advantageous to a
2-7 substantial number of claimants;
2-8 (3) may appear or intervene, as a party or otherwise,
2-9 as a matter of right on behalf of claimants, as a class, in any
2-10 proceeding before the commission;
2-11 (4) is entitled to the same access as a party, other
2-12 than commission staff, to records gathered by the commission under
2-13 Subchapter E, Chapter 402;
2-14 (5) is entitled to discovery of any nonprivileged
2-15 matter that is relevant to the subject matter of a proceeding or
2-16 petition before the commission;
2-17 (6) may represent an unrepresented claimant with
2-18 respect to the claimant's disputed claim in a contested case
2-19 hearing under Chapter 410; and
2-20 (7) may recommend legislation to the legislature that
2-21 the office determines would positively affect the interests of
2-22 claimants.
2-23 (b) This section does not affect the authority of the
2-24 commission to provide assistance to claimants through the ombudsman
2-25 program established under Chapter 409.
2-26 (c) The appearance of the public counsel in a proceeding
2-27 does not preclude the appearance of other parties on behalf of
3-1 claimants.
3-2 (Sections 405.023-405.040 reserved for expansion
3-3 SUBCHAPTER C. PUBLIC COUNSEL
3-4 Sec. 405.041. APPOINTMENT; TERM. (a) The executive
3-5 director of the office is the public counsel.
3-6 (b) The public counsel is appointed by the governor with the
3-7 advice and consent of the senate.
3-8 (c) The appointment of the public counsel shall be made
3-9 without regard to the race, color, disability, sex, religion, age,
3-10 or national origin of the appointee.
3-11 (d) The public counsel serves a two-year term that expires
3-12 on February 1 of the final year of the term.
3-13 Sec. 405.042. QUALIFICATIONS. (a) The public counsel must:
3-14 (1) be licensed to practice law in this state;
3-15 (2) have demonstrated a strong commitment to and
3-16 involvement in efforts to safeguard the rights of the public; and
3-17 (3) possess the knowledge and experience necessary to
3-18 practice effectively in workers' compensation proceedings.
3-19 (b) A person is not eligible for appointment as public
3-20 counsel if the person or the person's spouse:
3-21 (1) is employed by or participates in the management
3-22 of a business entity or other organization that is regulated by or
3-23 receives funds from the commission;
3-24 (2) directly or indirectly owns or controls more than
3-25 a 10 percent interest or a pecuniary interest with a value
3-26 exceeding $10,000 in a business entity or other organization that
3-27 is regulated by or receives funds from the commission or the
4-1 office; or
4-2 (3) uses or receives a substantial amount of tangible
4-3 goods, services, or funds from the commission or the office, other
4-4 than compensation or reimbursement authorized by law for service as
4-5 public counsel or for commission membership, attendance, or
4-6 expenses.
4-7 (c) A person required to register as a lobbyist under
4-8 Chapter 305, Government Code, because of the person's activities
4-9 for compensation on behalf of a profession related to the operation
4-10 of the commission or the office may not serve as public counsel.
4-11 (d) A person otherwise ineligible because of Subsection
4-12 (b)(2) may be appointed and serve as public counsel if the person:
4-13 (1) notifies the attorney general and commission that
4-14 the person is ineligible because of Subsection (b)(2); and
4-15 (2) divests the person or the person's spouse of the
4-16 ownership or control:
4-17 (A) before beginning service; or
4-18 (B) if the person is already serving, within a
4-19 reasonable time.
4-20 Sec. 405.043. GROUNDS FOR REMOVAL. (a) It is a ground for
4-21 removal from office if the public counsel:
4-22 (1) does not have at the time of appointment or
4-23 maintain during service as public counsel the qualifications
4-24 required by Section 405.042;
4-25 (2) violates a prohibition provided by Section
4-26 405.044, 405.062, or 405.063; or
4-27 (3) cannot discharge the public counsel's duties for a
5-1 substantial part of the term for which the public counsel is
5-2 appointed because of illness or disability.
5-3 (b) The validity of an action of the office is not affected
5-4 by the fact that the action is taken when a ground for removal of
5-5 the public counsel exists.
5-6 Sec. 405.044. PROHIBITED ACTS. (a) The public counsel may
5-7 not:
5-8 (1) have a direct or indirect interest in a business
5-9 entity regulated under this title; or
5-10 (2) provide legal services directly or indirectly to
5-11 or be employed in any capacity by a business entity regulated under
5-12 this title, its parent, or its subsidiaries.
5-13 (b) The prohibition under Subsection (a) applies during the
5-14 period of the public counsel's service and until the second
5-15 anniversary of the date the public counsel ceases to serve as
5-16 public counsel.
5-17 (c) This section does not prohibit a person from otherwise
5-18 engaging in the private practice of law after the person ceases to
5-19 serve as public counsel.
5-20 (Sections 405.045-405.060 reserved for expansion
5-21 SUBCHAPTER D. OFFICE PERSONNEL
5-22 Sec. 405.061. PERSONNEL. The public counsel may employ
5-23 lawyers, clerical staff, and other employees as the public counsel
5-24 considers necessary to carry out this chapter.
5-25 Sec. 405.062. RELATIONSHIP WITH TRADE ASSOCIATION. (a) A
5-26 person may not serve as public counsel or be an employee of the
5-27 office who is exempt from the state's position classification plan
6-1 or is compensated at or above the amount prescribed by the General
6-2 Appropriations Act for step 1, salary group 17, of the position
6-3 classification salary schedule if the person is:
6-4 (1) an officer, employee, or paid consultant of a
6-5 Texas trade association; or
6-6 (2) the spouse of an officer, employee, or paid
6-7 consultant of a Texas trade association.
6-8 (b) For purposes of this section, "Texas trade association"
6-9 has the meaning assigned by Section 402.012.
6-10 Sec. 405.063. PROHIBITION ON EMPLOYMENT OR REPRESENTATION.
6-11 (a) The public counsel or an employee of the office may not:
6-12 (1) be employed by an insurer or other business entity
6-13 that was in the scope of the public counsel's or employee's
6-14 official responsibility while the public counsel or employee was
6-15 associated with the office; or
6-16 (2) represent a person before the commission or a
6-17 court in a matter:
6-18 (A) in which the public counsel or employee was
6-19 personally involved while associated with the office; or
6-20 (B) that was within the public counsel's or
6-21 employee's official responsibility while the public counsel or
6-22 employee was associated with the office.
6-23 (b) The prohibition of Subsection (a)(1) applies until the:
6-24 (1) second anniversary of the date the public counsel
6-25 ceases to serve as a public counsel; or
6-26 (2) first anniversary of the date the employee's
6-27 employment with the office ceases.
7-1 (c) The prohibition of Subsection (a)(2) applies while a
7-2 public counsel or employee of the office is associated with the
7-3 office and at any time after.
7-4 Sec. 405.064. CAREER LADDER PROGRAM; PERFORMANCE
7-5 EVALUATIONS; MERIT PAY. (a) The public counsel or the public
7-6 counsel's designee shall develop an intra-agency career ladder
7-7 program that addresses opportunities for mobility and advancement
7-8 for office employees. The program shall require intra-agency
7-9 postings of each position concurrently with any public posting.
7-10 (b) The public counsel or the public counsel's designee
7-11 shall develop a system of annual performance evaluations that are
7-12 based on documented employee performance. Merit pay for office
7-13 employees must be based on the system established under this
7-14 subsection.
7-15 Sec. 405.065. EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT.
7-16 (a) The public counsel or the public counsel's designee shall
7-17 prepare and maintain a written policy statement to ensure
7-18 implementation of a program of equal employment opportunity under
7-19 which all personnel transactions are made without regard to race,
7-20 color, disability, sex, religion, age, or national origin.
7-21 (b) The policy statement under Subsection (a) must include:
7-22 (1) personnel policies, including policies related to
7-23 recruitment, evaluation, selection, appointment, training, and
7-24 promotion of personnel, that are in compliance with the
7-25 requirements of Chapter 21;
7-26 (2) a comprehensive analysis of the office workforce
7-27 that meets federal and state guidelines;
8-1 (3) procedures by which a determination can be made
8-2 about the extent of underuse in the office workforce of all persons
8-3 for whom federal or state guidelines encourage a more equitable
8-4 balance; and
8-5 (4) reasonable methods to appropriately address the
8-6 underuse.
8-7 (c) A policy statement prepared under Subsection (b) must:
8-8 (1) cover an annual period;
8-9 (2) be updated at least annually;
8-10 (3) be reviewed by the Commission on Human Rights for
8-11 compliance with Subsection (b)(1); and
8-12 (4) be filed with the governor's office.
8-13 (d) The governor's office shall deliver a biennial report to
8-14 the legislature based on the information received under Subsection
8-15 (c). The report may be made separately or as a part of other
8-16 biennial reports to the legislature.
8-17 Sec. 405.066. QUALIFICATIONS AND STANDARDS OF CONDUCT
8-18 INFORMATION. The office shall provide to office employees as often
8-19 as necessary information regarding their:
8-20 (1) qualifications for employment under this title;
8-21 and
8-22 (2) responsibilities under applicable laws relating to
8-23 standards of conduct for employees.
8-24 (Sections 405.067-405.080 reserved for expansion
8-25 SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND REPORTS
8-26 Sec. 405.081. PUBLIC INTEREST INFORMATION. The office shall
8-27 prepare information of public interest describing the functions of
9-1 the office. The office shall make the information available to the
9-2 public and appropriate state agencies.
9-3 Sec. 405.082. PUBLIC PARTICIPATION. (a) The office shall
9-4 comply with federal and state laws related to program and facility
9-5 accessibility.
9-6 (b) The office shall prepare and maintain a written plan
9-7 that describes how a person who does not speak English may be
9-8 provided reasonable access to the office's programs and services.
9-9 Sec. 405.083. ANNUAL REPORT. The office shall prepare
9-10 annually a complete and detailed written report accounting for all
9-11 funds received and disbursed by the office during the preceding
9-12 fiscal year. The annual report must meet the reporting
9-13 requirements applicable to financial reporting in the General
9-14 Appropriations Act.
9-15 (Sections 405.084-405.100 reserved for expansion
9-16 SUBCHAPTER F. FUNDING OF OFFICE
9-17 Sec. 405.101. OFFICE FUNDING; MAINTENANCE TAX. (a) The
9-18 office is funded through the assessment of a maintenance tax
9-19 collected annually from all insurance carriers except governmental
9-20 entities.
9-21 (b) The office shall set the rate of the maintenance tax
9-22 based on the expenditures authorized and the receipts anticipated
9-23 in legislative appropriations. The tax rate for insurance
9-24 companies may not exceed one-tenth of one percent of the correctly
9-25 reported gross workers' compensation insurance premiums. The tax
9-26 rate for certified self-insurers may not exceed one-tenth of one
9-27 percent of the total tax base of all certified self-insurers, as
10-1 computed under Section 407.103(b).
10-2 (c) The tax imposed under Subsection (a) is in addition to
10-3 all other taxes imposed on those insurance carriers for workers'
10-4 compensation purposes.
10-5 (d) The tax on insurance companies shall be collected and
10-6 paid in the same manner and at the same time as the maintenance tax
10-7 established for the support of the Texas Department of Insurance
10-8 under Article 5.68, Insurance Code. The tax on certified
10-9 self-insurers shall be collected and paid in the same manner and at
10-10 the same time as the self-insurer maintenance tax collected under
10-11 Section 407.104.
10-12 (e) Amounts received under this section shall be deposited
10-13 in the state treasury to the credit of a special account to be
10-14 used:
10-15 (1) for the operation of the office; and
10-16 (2) to reimburse the general revenue fund in
10-17 accordance with Article 4.19, Insurance Code.
10-18 SECTION 2. This Act takes effect September 1, 1997, and
10-19 applies only to a claim for workers' compensation benefits based on
10-20 a compensable injury that occurs on or after that date. A claim
10-21 based on a compensable injury that occurs before that date is
10-22 governed by the law in effect on the date that the compensable
10-23 injury occurred, and the former law is continued in effect for that
10-24 purpose.
10-25 SECTION 3. The importance of this legislation and the
10-26 crowded condition of the calendars in both houses create an
10-27 emergency and an imperative public necessity that the
11-1 constitutional rule requiring bills to be read on three several
11-2 days in each house be suspended, and this rule is hereby suspended.