76R10975 SMJ-D
By Greenberg H.B. No. 826
Substitute the following for H.B. No. 826:
By Wolens C.S.H.B. No. 826
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to alternative dispute resolution proceedings of
1-3 governmental bodies.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 2008, Government Code, as added by
1-6 Chapter 934, Acts of the 75th Legislature, Regular Session, 1997,
1-7 is redesignated as Chapter 2009, Government Code, and amended to
1-8 read as follows:
1-9 CHAPTER 2009 [2008]. ALTERNATIVE DISPUTE RESOLUTION FOR USE BY
1-10 GOVERNMENTAL BODIES [AT STATE AGENCIES]
1-11 SUBCHAPTER A. GENERAL PROVISIONS
1-12 Sec. 2009.001. [2008.001.] SHORT TITLE. This chapter may be
1-13 cited as the Governmental Dispute Resolution Act.
1-14 Sec. 2009.002. [2008.002.] POLICY. It is the policy of this
1-15 state that disputes before governmental bodies [state agencies] be
1-16 resolved as fairly and expeditiously as possible and that each
1-17 governmental body [state agency] support this policy by developing
1-18 and using alternative dispute resolution procedures in appropriate
1-19 aspects of the governmental body's [agency's] operations and
1-20 programs.
1-21 Sec. 2009.003. [2008.003.] DEFINITIONS. In this chapter:
1-22 (1) "Alternative dispute resolution procedure"
1-23 includes:
1-24 (A) a procedure described by Chapter 154, Civil
2-1 Practice and Remedies Code; and
2-2 (B) a combination of the procedures described by
2-3 Chapter 154, Civil Practice and Remedies Code.
2-4 (2) "Governmental body" has the meaning assigned by
2-5 Section 552.003.
2-6 (3) [(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 (4) [(3)] The following terms have the meanings
2-15 assigned by Section 2001.003:
2-16 (A) "contested case";
2-17 (B) "party";
2-18 (C) "person"; and
2-19 (D) "rule."
2-20 Sec. 2009.004. [2008.004. AGENCY] CONTRACTS; BUDGETING FOR
2-21 COSTS. (a) A governmental body [state agency] may pay for costs
2-22 necessary to meet the objectives of this chapter, including
2-23 reasonable fees for training, policy review, system design,
2-24 evaluation, and the use of impartial third parties.
2-25 (b) To the extent allowed by the General Appropriations Act,
2-26 a state [the] agency may use [for this purpose] money budgeted for
2-27 legal services, executive administration, or any other appropriate
3-1 aspect of the state agency's operations to pay for costs incurred
3-2 under Subsection (a).
3-3 (c) [(b)] A governmental body [state agency] may contract
3-4 with another governmental body [state agency], including the
3-5 Center for Public Policy Dispute Resolution at The University of
3-6 Texas School of Law, with an alternative dispute resolution system
3-7 created under Chapter 152, Civil Practice and Remedies Code, or
3-8 with a private entity for any service necessary to meet the
3-9 objectives of this chapter.
3-10 Sec. 2009.005. [2008.005.] SOVEREIGN IMMUNITY. (a) This
3-11 chapter does not waive immunity from suit and does not affect a
3-12 waiver of immunity from suit contained in other law.
3-13 (b) The state's sovereign immunity under the Eleventh
3-14 Amendment to the United States Constitution is not waived by this
3-15 chapter.
3-16 (c) Nothing in this chapter authorizes binding arbitration
3-17 as a method of alternative dispute resolution.
3-18 SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION
3-19 Sec. 2009.051. [2008.051.] DEVELOPMENT AND USE OF
3-20 PROCEDURES. (a) Each governmental body [state agency] may develop
3-21 and use alternative dispute resolution procedures. Alternative
3-22 dispute resolution procedures developed and used by a governmental
3-23 body [state agency] must be consistent with Chapter 154, Civil
3-24 Practice and Remedies Code.
3-25 (b) Alternative dispute resolution procedures developed and
3-26 used by a state agency also must be consistent[, and] with the
3-27 administrative procedure law, Chapter 2001. The State Office of
4-1 Administrative Hearings may issue model guidelines for the use of
4-2 alternative dispute resolution procedures by state agencies.
4-3 (c) [(b)] If a state agency that is subject to Chapter 2001
4-4 adopts an alternative dispute resolution procedure, it may do so by
4-5 rule.
4-6 Sec. 2009.052. [2008.052.] SUPPLEMENTAL NATURE OF
4-7 PROCEDURES. (a) Alternative dispute resolution procedures
4-8 developed and used under this chapter supplement and do not limit
4-9 other dispute resolution procedures available for use by [at] a
4-10 governmental body [state agency].
4-11 (b) This chapter may not be applied in a manner that denies
4-12 a person a right granted under other state or federal law or under
4-13 a local charter, ordinance, or other similar provision, including a
4-14 right to an administrative or judicial hearing.
4-15 Sec. 2009.053. [2008.053.] IMPARTIAL THIRD PARTIES. (a) A
4-16 governmental body [state agency] may appoint a governmental officer
4-17 or employee or a private individual to serve as an impartial third
4-18 party in an alternative dispute resolution procedure. The
4-19 governmental body's [agency's] appointment of the impartial third
4-20 party is subject to the approval of the parties, except that when a
4-21 State Office of Administrative Hearings administrative law judge
4-22 has issued an order referring a case involving a state agency to an
4-23 alternative dispute resolution procedure under Section
4-24 2003.042(a)(5) [2003.042(5)], the administrative law judge may
4-25 appoint the impartial third party for the parties if they cannot
4-26 agree on an impartial third party within a reasonable period.
4-27 (b) [The impartial third party must possess the
5-1 qualifications required under Section 154.052, Civil Practice and
5-2 Remedies Code.]
5-3 [(c)] A governmental body [state agency] also may obtain the
5-4 services of a qualified impartial third party through an agreement
5-5 with [the State Office of Administrative Hearings,] the Center for
5-6 Public Policy Dispute Resolution at The University of Texas School
5-7 of Law, an alternative dispute resolution system created under
5-8 Chapter 152, Civil Practice and Remedies Code, [or] another
5-9 governmental body, [state] or a federal agency or through a pooling
5-10 agreement with several governmental bodies [state agencies]. The
5-11 agreements may provide that the using governmental body [agency] or
5-12 the parties will reimburse the furnishing entity [agency], in kind
5-13 or monetarily, for the full or partial cost of providing the
5-14 qualified impartial third party.
5-15 (c) A state agency may also obtain the services of a
5-16 qualified third party through an agreement with the State Office of
5-17 Administrative Hearings.
5-18 (d) The impartial third party must possess the
5-19 qualifications required under Section 154.052, Civil Practice and
5-20 Remedies Code. The impartial third party is subject to the
5-21 standards and duties prescribed by Section 154.053, Civil Practice
5-22 and Remedies Code, and has the qualified immunity prescribed by
5-23 Section 154.055, Civil Practice and Remedies Code, if applicable.
5-24 Sec. 2009.054. [2008.054.] CONFIDENTIALITY OF CERTAIN
5-25 RECORDS AND COMMUNICATIONS. (a) Sections 154.053 and 154.073,
5-26 Civil Practice and Remedies Code, apply to the communications,
5-27 records, conduct, and demeanor of the impartial third party and the
6-1 parties.
6-2 (b) Notwithstanding Section 154.073(d), Civil Practice and
6-3 Remedies Code:
6-4 (1) a communication relevant to the dispute, and a
6-5 record of the communication, made between an impartial third party
6-6 and the parties to the dispute or between the parties to the
6-7 dispute during the course of an alternative dispute resolution
6-8 procedure are confidential and may not be disclosed unless all
6-9 parties to the dispute consent to the disclosure; and
6-10 (2) the notes of an impartial third party are
6-11 confidential except to the extent that the notes consist of a
6-12 record of a communication with a party and all parties have
6-13 consented to disclosure in accordance with Subdivision (1).
6-14 (c) Subsection (b)(1) does not apply to a final written
6-15 agreement to which a governmental body [entity] is a signatory that
6-16 is reached as a result of a dispute resolution procedure conducted
6-17 under this chapter. Information in the final written agreement is
6-18 subject to required disclosure, is excepted from required
6-19 disclosure, or is confidential in accordance with Chapter 552 and
6-20 other law.
6-21 (d) An impartial third party may not be required to testify
6-22 in any proceedings relating to or arising out of the matter in
6-23 dispute.
6-24 Sec. 2009.055. [2008.055. INTERAGENCY] SHARING OF
6-25 INFORMATION; CONSISTENCY OF PROCEDURES. (a) A governmental body
6-26 [state agency] may share the results of its alternative dispute
6-27 resolution program with other governmental bodies [agencies] and
7-1 with the Center for Public Policy Dispute Resolution at The
7-2 University of Texas School of Law. The center may collect and
7-3 analyze the information and report its conclusions and useful
7-4 information to governmental bodies [state agencies] and the
7-5 legislature.
7-6 (b) Governmental bodies [State agencies] should, to the
7-7 extent feasible given [the] differences in their [agency] purpose,
7-8 jurisdiction, and constituency, adopt policies and procedures for
7-9 alternative dispute resolution that are consistent with the
7-10 policies and procedures of other governmental bodies [state
7-11 agencies].
7-12 SECTION 2. Section 154.073, Civil Practice and Remedies
7-13 Code, is amended to read as follows:
7-14 Sec. 154.073. CONFIDENTIALITY OF CERTAIN RECORDS AND
7-15 COMMUNICATIONS [IN DISPUTE RESOLUTION PROCEDURES]. (a) Except as
7-16 provided by Subsections (c), [and] (d), and (e), a communication
7-17 relating to the subject matter of any civil or criminal dispute
7-18 made by a participant in an alternative dispute resolution
7-19 procedure, whether before or after the institution of formal
7-20 judicial proceedings, is confidential, is not subject to
7-21 disclosure, and may not be used as evidence against the participant
7-22 in any judicial or administrative proceeding.
7-23 (b) Any record made at an alternative dispute resolution
7-24 procedure is confidential, and the participants or the third party
7-25 facilitating the procedure may not be required to testify in any
7-26 proceedings relating to or arising out of the matter in dispute or
7-27 be subject to process requiring disclosure of confidential
8-1 information or data relating to or arising out of the matter in
8-2 dispute.
8-3 (c) An oral communication or written material used in or
8-4 made a part of an alternative dispute resolution procedure is
8-5 admissible or discoverable if it is admissible or discoverable
8-6 independent of the procedure.
8-7 (d) A final written agreement to which a governmental body,
8-8 as defined by Section 552.003, Government Code, is a signatory that
8-9 is reached as a result of a dispute resolution procedure conducted
8-10 under this chapter is subject to or excepted from required
8-11 disclosure in accordance with Chapter 552, Government Code.
8-12 (e) If this section conflicts with other legal requirements
8-13 for disclosure of communications, records, or materials, the issue
8-14 of confidentiality may be presented to the court having
8-15 jurisdiction of the proceedings to determine, in camera, whether
8-16 the facts, circumstances, and context of the communications or
8-17 materials sought to be disclosed warrant a protective order of the
8-18 court or whether the communications or materials are subject to
8-19 disclosure.
8-20 SECTION 3. Section 2003.001(2), Government Code, is amended
8-21 to read as follows:
8-22 (2) "Alternative dispute resolution procedure" has the
8-23 meaning assigned by Section 2009.003 [2008.003].
8-24 SECTION 4. Section 2003.042(a), Government Code, is amended
8-25 to read as follows:
8-26 (a) An administrative law judge employed by the office or a
8-27 temporary administrative law judge may:
9-1 (1) administer an oath;
9-2 (2) take testimony;
9-3 (3) rule on a question of evidence;
9-4 (4) issue an order relating to discovery or another
9-5 hearing or prehearing matter, including an order imposing a
9-6 sanction;
9-7 (5) issue an order that refers a case to an
9-8 alternative dispute resolution procedure, determines how the costs
9-9 of the procedure will be apportioned, and appoints an impartial
9-10 third party as described by Section 2009.053 [2008.053] to
9-11 facilitate that procedure;
9-12 (6) issue a proposal for decision that includes
9-13 findings of fact and conclusions of law; [and]
9-14 (7) [(6)] if expressly authorized by a state agency
9-15 rule adopted under Section 2001.058(f), make the final decision in
9-16 a contested case;[.]
9-17 (8) [(7)] serve as an impartial third party as
9-18 described by Section 2009.053 [2008.053] for a dispute referred by
9-19 an administrative law judge, unless one of the parties objects to
9-20 the appointment; and
9-21 (9) [(8)] serve as an impartial third party as
9-22 described by Section 2009.053 [2008.053] for a dispute referred by
9-23 a government agency under a contract.
9-24 SECTION 5. (a) This Act takes effect September 1, 1999.
9-25 (b) This Act applies only to an alternative dispute
9-26 resolution proceeding that begins on or after the effective date of
9-27 this Act. An alternative dispute resolution proceeding that began
10-1 before the effective date of this Act is governed by the law
10-2 applicable to the proceeding immediately before the effective date
10-3 of this Act, and that law is continued in effect for that purpose.
10-4 SECTION 6. The importance of this legislation and the
10-5 crowded condition of the calendars in both houses create an
10-6 emergency and an imperative public necessity that the
10-7 constitutional rule requiring bills to be read on three several
10-8 days in each house be suspended, and this rule is hereby suspended.