R E S O L U T I O N
 1-1           BE IT RESOLVED by the House of Representatives of the State
 1-2     of Texas, 76th Legislature, Regular Session, 1999, That House Rule
 1-3     13, Section 9(a), be suspended in part as provided by House Rule
 1-4     13, Section 9(f), to enable the conference committee appointed to
 1-5     resolve the differences on Senate Bill No.  178, relating to state
 1-6     agency practices and duties, including codification of certain
 1-7     state agency practices and duties currently prescribed by the
 1-8     General Appropriations Act, to consider and take action on the
 1-9     following matters:
1-10           (1)  House Rule 13, Section 9(a)(3), is suspended to permit
1-11     the committee to add the following Subsection (c) to Section
1-12     2161.004, Government Code, as added by the bill:
1-13           (c)  Section 2161.003 and Subsections (a) and (b) of this
1-14     section do not apply to a project or contract subject to Section
1-15     201.702, Transportation Code.
1-16           Explanation:  This addition is necessary to clarify that the
1-17     historically underutilized businesses provisions of Sections
1-18     2161.003 and 2161.004, Government Code, as added by the bill, that
1-19     are generally applicable to state agencies do not override the
1-20     disadvantaged businesses provisions of current law in Section
1-21     201.702, Transportation Code, that are applicable to the Texas
1-22     Department of Transportation.
1-23           (2)  House Rule 13, Section 9(a)(1), is suspended to permit
1-24     the committee to amend Section 2161.122(d), Government Code, as
 2-1     redesignated by the bill, as follows:
 2-2           (d)  A state agency participating in a group purchasing
 2-3     program [described under Section 2155.139(b)] shall send to the
 2-4     commission in the agency's report under Section 2161.121 a separate
 2-5     list of purchases from historically underutilized businesses that
 2-6     are made through the group purchasing program, including the dollar
 2-7     amount of each purchase allocated to the reporting agency.
 2-8           Explanation:  This amendment is necessary to clarify that a
 2-9     state agency shall report its purchases from historically
2-10     underutilized businesses under any group purchasing program.
2-11           (3)  House Rule 13, Section 9(a)(3), is suspended to permit
2-12     the committee to add the following Subdivision (4) to Section
2-13     2170.010, Government Code, as added by the bill:
2-14                 (4)  in the investigation of motor fuels tax fraud.
2-15           Explanation:  This addition is necessary to allow the use of
2-16     unlisted telephone numbers in the investigation of motor fuels tax
2-17     fraud.
2-18           (4)  House Rule 13,  Section 9(a)(4), is suspended to permit
2-19     the committee to add a new Article 2 to the bill to read as
2-20     follows:
2-21                    ARTICLE 2.  CERTAIN OTHER PROVISIONS
2-22                  RELATED TO STATE AGENCY CONTRACTING WITH
2-23                    HISTORICALLY UNDERUTILIZED BUSINESSES
2-24           SECTION 2.01.  Section 2155.074(g), Government Code, as added
2-25     by Chapter 508, Acts of the 75th Legislature, Regular Session,
2-26     1997, is amended to read as follows:
2-27           (g)  A state agency shall post in the business daily either
 3-1     the entire bid or proposal solicitation package or a notice that
 3-2     includes all information necessary to make a successful bid,
 3-3     proposal, or other applicable expression of interest for the
 3-4     procurement contract, including at a minimum the following
 3-5     information for each procurement that the state agency will make
 3-6     that is estimated to exceed $25,000 in value:
 3-7                 (1)  a brief description of the goods or services to be
 3-8     procured and any applicable state product or service codes for the
 3-9     goods and services;
3-10                 (2)  the last date on which bids, proposals, or other
3-11     applicable expressions of interest will be accepted;
3-12                 (3)  the estimated quantity of goods or services to be
3-13     procured;
3-14                 (4)  if applicable, the previous price paid by the
3-15     state agency for the same or similar goods or services;
3-16                 (5)  the estimated date on which the goods or services
3-17     to be procured will be needed; and
3-18                 (6)  the name, business mailing address, and business
3-19     telephone number of the state agency employee a person may contact
3-20     to inquire about [obtain] all necessary information related to
3-21     making a bid or proposal or other applicable expression of interest
3-22     for the procurement contract.
3-23           SECTION 2.02.  Subchapter A, Chapter 2161, Government Code,
3-24     is amended by adding Section 2161.0015 to read as follows:
3-25           Sec. 2161.0015.  DETERMINING SIZE STANDARDS FOR HISTORICALLY
3-26     UNDERUTILIZED BUSINESSES.  The commission may establish size
3-27     standards that a business may not exceed if it is to be considered
 4-1     a historically underutilized business under this chapter.  In
 4-2     determining the size standards, the commission shall determine the
 4-3     size at which a business should be considered sufficiently large
 4-4     that the business probably does not significantly suffer from the
 4-5     effects of past discriminatory practices.
 4-6           SECTION 2.03.  Sections 2161.061(b) and (c), Government Code,
 4-7     are amended to read as follows:
 4-8           (b)  As one [part] of its certification procedures, the
 4-9     commission may:
4-10                 (1)  approve the [another] certification program of one
4-11     or more local governments in this state that certify [certifies]
4-12     historically underutilized businesses, minority business
4-13     enterprises, women's business enterprises, or disadvantaged
4-14     business enterprises under substantially the same definition, to
4-15     the extent applicable, used by Section 2161.001; and
4-16                 (2)  certify a business certified under the local
4-17     government program as a historically underutilized business under
4-18     this chapter.
4-19           (c)  To maximize the number of certified historically
4-20     underutilized businesses, the commission shall enter into
4-21     agreements with local governments in this state that conduct
4-22     certification programs described by Subsection (b).  The agreements
4-23     must take effect immediately and:
4-24                 (1)  allow for automatic certification of businesses
4-25     certified under the local government program;
4-26                 (2)  provide for the efficient updating of the
4-27     commission database containing information about historically
 5-1     underutilized businesses and potential historically underutilized
 5-2     businesses; and
 5-3                 (3)  provide for a method by which the commission may
 5-4     efficiently communicate with businesses certified under the local
 5-5     government program and provide those businesses with information
 5-6     about the state historically underutilized business program.  [A
 5-7     municipality, in certifying historically underutilized businesses,
 5-8     may adopt the certification program of the commission, of the
 5-9     federal Small Business Administration, or of another political
5-10     subdivision or other governmental entity.]
5-11           SECTION 2.04.  Section 2161.062, Government Code, is amended
5-12     by adding Subsections (d) and (e) to read as follows:
5-13           (d)  The commission shall send historically underutilized
5-14     businesses an orientation package on certification or
5-15     recertification.  The package shall include:
5-16                 (1)  a certificate issued in the historically
5-17     underutilized business's name;
5-18                 (2)  a description of the significance and value of
5-19     certification;
5-20                 (3)  a list of state purchasing personnel;
5-21                 (4)  information regarding electronic commerce
5-22     opportunities;
5-23                 (5)  information regarding the Texas Marketplace
5-24     website; and
5-25                 (6)  additional information about the state procurement
5-26     process.
5-27           (e)  A state agency with a biennial budget that exceeds $10
 6-1     million shall designate a staff member to serve as the historically
 6-2     underutilized businesses coordinator for the agency during the
 6-3     fiscal year.  The procurement director may serve as the
 6-4     coordinator.  In agencies that employ a historically underutilized
 6-5     businesses coordinator, the position of coordinator, within the
 6-6     agency's structure, must be at least equal to the position of
 6-7     procurement director.  In addition to any other responsibilities,
 6-8     the coordinator shall:
 6-9                 (1)  coordinate training programs for the recruitment
6-10     and retention of historically underutilized businesses;
6-11                 (2)  report required information to the commission; and
6-12                 (3)  match historically underutilized businesses with
6-13     key staff within the agency.
6-14           SECTION 2.05.  Section 2161.063(b), Government Code, is
6-15     amended to read as follows:
6-16           (b)  The commission shall assist the Texas Department of
6-17     Economic Development [Commerce] in performing the department's
6-18     duties under Section 481.0068 [481.103].
6-19           SECTION 2.06.  Section 2161.064(b), Government Code, is
6-20     amended to read as follows:
6-21           (b)  The commission at least semiannually shall update the
6-22     directory and provide access to the directory electronically or in
6-23     another form [a copy of the directory] to each state agency.
6-24           SECTION 2.07.  Sections 2161.121(a) and (e), Government Code,
6-25     are amended to read as follows:
6-26           (a)  The commission shall prepare a consolidated report that:
6-27                 (1)  includes the number and dollar amount of contracts
 7-1     awarded and paid to historically underutilized businesses certified
 7-2     by the commission; [and]
 7-3                 (2)  analyzes the relative level of opportunity for
 7-4     historically underutilized businesses for various categories of
 7-5     acquired goods and services; and
 7-6                 (3)  tracks, by vendor identification number and, to
 7-7     the extent allowed by federal law, by social security number, the
 7-8     graduation rates for historically underutilized businesses that
 7-9     grew to exceed the size standards determined by the commission.
7-10           (e)  The commission shall send on October 15 of each year a
7-11     report on the preceding fiscal year to the presiding officer of
7-12     each house of the legislature[, the members of the legislature,]
7-13     and the joint committee.
7-14           SECTION 2.08.  Subchapter B, Chapter 2161, Government Code,
7-15     is amended by adding Sections 2161.065 and 2161.066 to read as
7-16     follows:
7-17           Sec. 2161.065.  MENTOR-PROTEGE PROGRAM.  (a)  The commission
7-18     shall design a mentor-protege program to foster long-term
7-19     relationships between prime contractors and historically
7-20     underutilized businesses and to increase the ability of
7-21     historically underutilized businesses to contract with the state or
7-22     to receive subcontracts under a state contract.  Each state agency
7-23     with a biennial appropriation that exceeds $10 million shall
7-24     implement the program designed by the commission.
7-25           (b)  Participation in the program must be voluntary for both
7-26     the contractor and the historically underutilized business
7-27     subcontractor.
 8-1           Sec. 2161.066.  HISTORICALLY UNDERUTILIZED BUSINESS FORUMS.
 8-2     (a)  The commission shall design a program of forums in which
 8-3     historically underutilized businesses are invited by state agencies
 8-4     to deliver technical and business presentations that demonstrate
 8-5     their capability to do business with the agency:
 8-6                 (1)  to senior managers and procurement personnel at
 8-7     state agencies that acquire goods and services of a type supplied
 8-8     by the historically underutilized businesses; and
 8-9                 (2)  to contractors with the state who may be
8-10     subcontracting for goods and services of a type supplied by the
8-11     historically underutilized businesses.
8-12           (b)  The forums shall be held at state agency offices.
8-13           (c)  Each state agency with a biennial appropriation that
8-14     exceeds $10 million shall participate in the program by sending
8-15     senior managers and procurement personnel to attend relevant
8-16     presentations and by informing the agency's contractors about
8-17     presentations that may be relevant to anticipated subcontracting
8-18     opportunities.
8-19           (d)  Each state agency that has a historically underutilized
8-20     businesses coordinator shall:
8-21                 (1)  design its own program and model the program to
8-22     the extent appropriate on the program developed by the commission
8-23     under this section; and
8-24                 (2)  sponsor presentations by historically
8-25     underutilized businesses at the agency.
8-26           (e)  The commission and each state agency that has a
8-27     historically underutilized businesses coordinator shall
 9-1     aggressively identify and notify individual historically
 9-2     underutilized businesses regarding opportunities to make a
 9-3     presentation regarding the types of goods and services supplied by
 9-4     the historically underutilized business and shall advertise in
 9-5     appropriate trade publications that target historically
 9-6     underutilized businesses regarding opportunities to make a
 9-7     presentation.
 9-8           SECTION 2.09.  Subchapter C, Chapter 2161, Government Code,
 9-9     is amended by adding Sections 2161.126 and 2161.127 to read as
9-10     follows:
9-11           Sec. 2161.126.  EDUCATION AND OUTREACH BY COMMISSION.  Before
9-12     September 1 of each year, the commission shall report to the
9-13     governor, the lieutenant governor, and the speaker of the house of
9-14     representatives on the education and training efforts that the
9-15     commission has made toward historically underutilized businesses.
9-16     The report must include the following as related to historically
9-17     underutilized businesses:
9-18                 (1)  the commission's vision, mission, and philosophy;
9-19                 (2)  marketing materials and other educational
9-20     materials distributed by the commission;
9-21                 (3)  the commission's policy regarding education,
9-22     outreach, and dissemination of information;
9-23                 (4)  goals that the commission has attained during the
9-24     fiscal year;
9-25                 (5)  the commission's goals, objectives, and expected
9-26     outcome measures for each outreach and education event; and
9-27                 (6)  the commission's planned future initiatives on
 10-1    education and outreach.
 10-2          Sec. 2161.127.  LEGISLATIVE APPROPRIATIONS REQUESTS.  Each
 10-3    state agency must include as part of its legislative appropriations
 10-4    request a detailed report for consideration by the budget
 10-5    committees of the legislature that shows the extent to which the
 10-6    agency complied with this chapter and rules of the commission
 10-7    adopted under this chapter during the two calendar years preceding
 10-8    the calendar year in which the request is submitted.  To the extent
 10-9    the state agency did not comply, the report must demonstrate the
10-10    reasons for that fact.  The extent to which a state agency complies
10-11    with this chapter and rules of the commission adopted under this
10-12    chapter is considered a performance measure for purposes of the
10-13    appropriations process.
10-14          SECTION 2.10.  Chapter 2161, Government Code, is amended by
10-15    adding Subchapter F to read as follows:
10-16                       SUBCHAPTER F.  SUBCONTRACTING
10-17          Sec. 2161.251.  APPLICABILITY.  (a)  This subchapter applies
10-18    to all contracts entered into by a state agency with an expected
10-19    value of $100,000 or more, including:
10-20                (1)  contracts for the acquisition of a good or
10-21    service; and
10-22                (2)  contracts for or related to the construction of a
10-23    public building, road, or other public work.
10-24          (b)  This subchapter applies to the contract without regard
10-25    to:
10-26                (1)  whether the contract is otherwise subject to this
10-27    subtitle; or
 11-1                (2)  the source of funds for the contract, except that
 11-2    to the extent federal funds are used to pay for the contract, this
 11-3    subchapter does not apply if federal law prohibits the application
 11-4    of this subchapter in relation to the expenditure of federal funds.
 11-5          Sec. 2161.252.  AGENCY DETERMINATION REGARDING SUBCONTRACTING
 11-6    OPPORTUNITIES; BUSINESS SUBCONTRACTING PLAN.  (a)  Each state
 11-7    agency that considers entering into a contract with an expected
 11-8    value of $100,000 or more shall, before the agency solicits bids,
 11-9    proposals, offers, or other applicable expressions of interest for
11-10    the contract, determine whether there will be subcontracting
11-11    opportunities under the contract. If the state agency determines
11-12    that there is that probability, the agency shall require that each
11-13    bid, proposal, offer, or other applicable expression of interest
11-14    for the contract include a historically underutilized business
11-15    subcontracting plan.
11-16          (b)  When a state agency requires a historically
11-17    underutilized business subcontracting plan under Subsection (a), a
11-18    bid, proposal, offer, or other applicable expression of interest
11-19    for the contract must contain a plan to be considered responsive.
11-20          Sec. 2161.253.  GOOD FAITH COMPLIANCE WITH BUSINESS
11-21    SUBCONTRACTING PLAN.  (a)  When a state agency requires a
11-22    historically underutilized business subcontracting plan under
11-23    Section 2161.252, the awarded contract shall contain, as a
11-24    provision of the contract that must be fulfilled, the plan that the
11-25    contractor submitted in its bid, proposal, offer, or other
11-26    applicable expression of interest for the contract. The contractor
11-27    shall make good faith efforts to implement the plan.
 12-1          (b)  To the extent that subcontracts are not contracted for
 12-2    as originally submitted in the historically underutilized business
 12-3    subcontracting plan, the contractor shall report to the state
 12-4    agency all the circumstances that explain that fact and describe
 12-5    the good faith efforts made to find and subcontract with another
 12-6    historically underutilized business.
 12-7          (c)  The state agency shall audit the contractor's compliance
 12-8    with the historically underutilized business subcontracting plan.
 12-9    In determining whether the contractor made the required good faith
12-10    effort, the agency may not consider the success or failure of the
12-11    contractor to subcontract with historically underutilized
12-12    businesses in any specific quantity. The agency's determination is
12-13    restricted to considering factors indicating good faith.
12-14          (d)  If a determination is made that the contractor failed to
12-15    implement the plan in good faith, the agency, in addition to any
12-16    other remedies, may bar the contractor from further contracting
12-17    opportunities with the agency.
12-18          (e)  The commission shall adopt rules to administer this
12-19    subchapter.
12-20          SECTION 2.11.  Subchapter F, Chapter 2161, Government Code,
12-21    as added by this Act, applies only to subcontracting under a
12-22    contract entered into by a state agency for which the request for
12-23    bids, proposals, offers, or other applicable expressions of
12-24    interest is disseminated on or after April 1, 2000.
12-25          Explanation:  This addition is necessary to make changes in
12-26    the state's historically underutilized businesses purchasing
12-27    program.
 13-1          (5)  House Rule 13, Section 9(a)(4), is suspended to permit
 13-2    the committee to add a new Article 3 to the bill to read as
 13-3    follows:
 13-4              ARTICLE 3.  PROVISIONS RELATING TO STATE AGENCY
 13-5                       CONTINGENCY FEE CONTRACTS FOR
 13-6                              LEGAL SERVICES
 13-7          SECTION 3.01.(a)  The legislature finds that:
 13-8                (1)  a payment to a private attorney or law firm under
 13-9    a contingent fee contract for legal services entered into by a
13-10    state governmental entity constitutes compensation paid to a public
13-11    contractor for which the legislature must provide by law under
13-12    Section 44, Article III, Texas Constitution; and
13-13                (2)  funds recovered by a state governmental entity in
13-14    litigation or in settlement of a matter that could have resulted in
13-15    litigation are state funds that must be deposited in the state
13-16    treasury and made subject to the appropriations process.
13-17          (b)  It is the policy of this state that all funds recovered
13-18    by a state governmental entity from an opposing party in litigation
13-19    or in settlement of a matter that could have resulted in
13-20    litigation, including funds designated as damages, amounts adjudged
13-21    or awarded, attorney's fees, costs, interest, settlement proceeds,
13-22    or expenses, are the property of the state governmental entity that
13-23    must be deposited in the manner that public funds of the entity
13-24    must be deposited.  Legal fees and expenses may be paid from the
13-25    recovered funds under a contingent fee contract for legal services
13-26    only after the funds have been appropriately deposited and only in
13-27    accordance with applicable law.
 14-1          SECTION 3.02.  Subchapter F, Chapter 404, Government Code, is
 14-2    amended by adding Section 404.097 to read as follows:
 14-3          Sec. 404.097.  DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR
 14-4    SETTLEMENT.  (a)  Notwithstanding Section 404.093, this section
 14-5    applies by its terms to each state governmental entity.
 14-6          (b)  In this section, "contingent fee contract" and "state
 14-7    governmental entity" have the meanings assigned by Section
 14-8    2254.101.
 14-9          (c)  All funds recovered by a state governmental entity in
14-10    litigation or in settlement of a matter that could have resulted in
14-11    litigation, including funds designated as damages, amounts adjudged
14-12    or awarded, attorney's fees, costs, interest, settlement proceeds,
14-13    or expenses, are public funds of the state or the state
14-14    governmental entity and shall be deposited in the state treasury to
14-15    the credit of the appropriate fund or account.
14-16          (d)  Legal fees and expenses may be paid from the recovered
14-17    funds under a contingent fee contract for legal services only:
14-18                (1)  after the funds are deposited in accordance with
14-19    this section; and
14-20                (2)  in accordance with Subchapter C, Chapter 2254.
14-21          SECTION 3.03.  Chapter 2254, Government Code, is amended by
14-22    adding Subchapter C to read as follows:
14-23         SUBCHAPTER C.  CONTINGENT FEE CONTRACT FOR LEGAL SERVICES
14-24          Sec. 2254.101.  DEFINITIONS.  In this subchapter:
14-25                (1)  "Contingent fee" means that part of a fee for
14-26    legal services, under a contingent fee contract, the amount or
14-27    payment of which is contingent on the outcome of the matter for
 15-1    which the services were obtained.
 15-2                (2)  "Contingent fee contract" means a contract for
 15-3    legal services under which the amount or the payment of the fee for
 15-4    the services is contingent in whole or in part on the outcome of
 15-5    the matter for which the services were obtained.
 15-6                (3)  "State governmental entity":
 15-7                      (A)  means the state or a board, commission,
 15-8    department, office, or other agency in the executive branch of
 15-9    state government created under the constitution or a statute of the
15-10    state, including an institution of higher education as defined by
15-11    Section 61.003, Education Code;
15-12                      (B)  includes the state when a state officer is
15-13    bringing a parens patriae proceeding in the name of the state; and
15-14                      (C)  does not include a state agency or state
15-15    officer acting as a receiver, special deputy receiver, liquidator,
15-16    or liquidating agent in connection with the administration of the
15-17    assets of an insolvent entity under Article 21.28, Insurance Code,
15-18    or Chapter 36, 66, 96, or 126, Finance Code.
15-19          Sec. 2254.102.  APPLICABILITY.  (a)  This subchapter applies
15-20    only to a contingent fee contract for legal services entered into
15-21    by a state governmental entity.
15-22          (b)  The legislature by this subchapter is providing, in
15-23    accordance with Section 44, Article III, Texas Constitution, for
15-24    the manner in which and the situations under which a state
15-25    governmental entity may compensate a public contractor under a
15-26    contingent fee contract for legal services.
15-27          Sec. 2254.103.  CONTRACT APPROVAL; SIGNATURE.  (a)  A state
 16-1    governmental entity that has authority to enter into a contract for
 16-2    legal services in its own name may enter into a contingent fee
 16-3    contract for legal services only if:
 16-4                (1)  the governing body of the state governmental
 16-5    entity approves the contract and the approved contract is signed by
 16-6    the presiding officer of the governing body; or
 16-7                (2)  for an entity that is not governed by a
 16-8    multimember governing body, the elected or appointed officer who
 16-9    governs the entity approves and signs the contract.
16-10          (b)  The attorney general may enter into a contingent fee
16-11    contract for legal services in the name of the state in relation to
16-12    a matter that has been referred to the attorney general under law
16-13    by another state governmental entity only if the other state
16-14    governmental entity approves and signs the contract in accordance
16-15    with Subsection (a).
16-16          (c)  A state governmental entity, including the state, may
16-17    enter into a contingent fee contract for legal services that is not
16-18    described by Subsection (a) or (b) only if the governor approves
16-19    and signs the contract.
16-20          (d)  Before approving the contract, the governing body,
16-21    elected or appointed officer, or governor, as appropriate, must
16-22    find that:
16-23                (1)  there is a substantial need for the legal
16-24    services;
16-25                (2)  the legal services cannot be adequately performed
16-26    by the attorneys and supporting personnel of the state governmental
16-27    entity or by the attorneys and supporting personnel of another
 17-1    state governmental entity; and
 17-2                (3)  the legal services cannot reasonably be obtained
 17-3    from attorneys in private practice under a contract providing only
 17-4    for the payment of hourly fees, without regard to the outcome of
 17-5    the matter, because of the nature of the matter for which the
 17-6    services will be obtained or because the state governmental entity
 17-7    does not have appropriated funds available to pay the estimated
 17-8    amounts required under a contract providing only for the payment of
 17-9    hourly fees.
17-10          (e)  Before entering into a contingent fee contract for legal
17-11    services in which the estimated amount that may be recovered
17-12    exceeds $100,000, a state governmental entity that proposes to
17-13    enter into the contract in its own name or in the name of the state
17-14    must also notify the Legislative Budget Board that the entity
17-15    proposes to enter into the contract, send the board copies of the
17-16    proposed contract, and send the board information demonstrating
17-17    that the conditions required by Subsection (d)(3) exist.  If the
17-18    state governmental entity finds under Subsection (d)(3) that the
17-19    state governmental entity does not have appropriated funds
17-20    available to pay the estimated amounts required under a contract
17-21    for the legal services providing only for the payment of hourly
17-22    fees, the state governmental entity may not enter into the proposed
17-23    contract in its own name or in the name of the state unless the
17-24    Legislative Budget Board finds that the state governmental entity's
17-25    finding with regard to available appropriated funds is correct.
17-26          (f)  A contingent fee contract for legal services that is
17-27    subject to Subsection (e) and requires a finding by the Legislative
 18-1    Budget Board is void unless the board has made the finding required
 18-2    by Subsection (e).
 18-3          Sec. 2254.104.  TIME AND EXPENSE RECORDS REQUIRED; FINAL
 18-4    STATEMENT.  (a)  The contract must require that the contracting
 18-5    attorney or law firm keep current and complete written time and
 18-6    expense records that describe in detail the time and money spent
 18-7    each day in performing the contract.
 18-8          (b)  The contracting attorney or law firm shall permit the
 18-9    governing body or governing officer of the state governmental
18-10    entity, the attorney general, and the state auditor each to inspect
18-11    or obtain copies of the time and expense records at any time on
18-12    request.
18-13          (c)  On conclusion of the matter for which legal services
18-14    were obtained, the contracting attorney or law firm shall provide
18-15    the contracting state governmental entity with a complete written
18-16    statement that describes the outcome of the matter, states the
18-17    amount of any recovery, shows the contracting attorney's or law
18-18    firm's computation of the amount of the contingent fee, and
18-19    contains the final complete time and expense records required by
18-20    Subsection (a).  The complete written statement required by this
18-21    subsection is public information under Chapter 552 and may not be
18-22    withheld from a requestor under that chapter under Section 552.103
18-23    or any other exception from required disclosure.
18-24          (d)  This subsection does not apply to the complete written
18-25    statement required by Subsection (c).  All time and expense records
18-26    required under this section are public information subject to
18-27    required public disclosure under Chapter 552.  Information in the
 19-1    records may be withheld from a member of the public under Section
 19-2    552.103 only if, in addition to meeting the requirements of Section
 19-3    552.103, the chief legal officer or employee of the state
 19-4    governmental entity determines that withholding the information is
 19-5    necessary to protect the entity's strategy or position in pending
 19-6    or reasonably anticipated litigation.  Information withheld from
 19-7    public disclosure under this subsection shall be segregated from
 19-8    information that is subject to required public disclosure.
 19-9          Sec. 2254.105.  CERTAIN GENERAL CONTRACT REQUIREMENTS.  The
19-10    contract must:
19-11                (1)  provide for the method by which the contingent fee
19-12    is computed;
19-13                (2)  state the differences, if any, in the method by
19-14    which the contingent fee is computed if the matter is settled,
19-15    tried, or tried and appealed;
19-16                (3)  state how litigation and other expenses will be
19-17    paid and, if reimbursement of any expense is contingent on the
19-18    outcome of the matter or reimbursable from the amount recovered in
19-19    the matter, state whether the amount recovered for purposes of the
19-20    contingent fee computation is considered to be the amount obtained
19-21    before or after expenses are deducted;
19-22                (4)  state that any subcontracted legal or support
19-23    services performed by a person who is not a contracting attorney or
19-24    a partner, shareholder, or employee of a contracting attorney or
19-25    law firm is an expense subject to reimbursement only in accordance
19-26    with this subchapter; and
19-27                (5)  state that the amount of the contingent fee and
 20-1    reimbursement of expenses under the contract will be paid and
 20-2    limited in accordance with this subchapter.
 20-3          Sec. 2254.106.  CONTRACT REQUIREMENTS: COMPUTATION OF
 20-4    CONTINGENT FEE; REIMBURSEMENT OF EXPENSES.  (a)  The contract must
 20-5    establish the reasonable hourly rate for work performed by an
 20-6    attorney, law clerk, or paralegal who will perform legal or support
 20-7    services under the contract based on the reasonable and customary
 20-8    rate in the relevant locality for the type of work performed and on
 20-9    the relevant experience, demonstrated ability, and standard hourly
20-10    billing rate, if any, of the person performing the work.  The
20-11    contract may establish the reasonable hourly rate for one or more
20-12    persons by name and may establish a rate schedule for work
20-13    performed by unnamed persons.  The highest hourly rate for a named
20-14    person or under a rate schedule may not exceed $1,000 an hour.
20-15    This subsection applies to subcontracted work performed by an
20-16    attorney, law clerk, or paralegal who is not a contracting attorney
20-17    or a partner, shareholder, or employee of a contracting attorney or
20-18    law firm as well as to work performed by a contracting attorney or
20-19    by a partner, shareholder, or employee of a contracting attorney or
20-20    law firm.
20-21          (b)  The contract must establish a base fee to be computed as
20-22    follows.  For each attorney, law clerk, or paralegal who is a
20-23    contracting attorney or a partner, shareholder, or employee of a
20-24    contracting attorney or law firm, multiply the number of hours the
20-25    attorney, law clerk, or paralegal works in providing legal or
20-26    support services under the contract times the reasonable hourly
20-27    rate for the work performed by that attorney, law clerk, or
 21-1    paralegal.  Add the resulting amounts to obtain the base fee.  The
 21-2    computation of the base fee may not include hours or costs
 21-3    attributable to work performed by a person who is not a contracting
 21-4    attorney or a partner, shareholder, or employee of a contracting
 21-5    attorney or law firm.
 21-6          (c)  Subject to Subsection (d), the contingent fee is
 21-7    computed by multiplying the base fee by a multiplier.  The contract
 21-8    must establish a reasonable multiplier based on any expected
 21-9    difficulties in performing the contract, the amount of expenses
21-10    expected to be risked by the contractor, the expected risk of no
21-11    recovery, and any expected long delay in recovery.  The multiplier
21-12    may not exceed four without prior approval by the legislature.
21-13          (d)  In addition to establishing the method of computing the
21-14    fee under Subsections (a), (b), and (c), the contract must limit
21-15    the amount of the contingent fee to a stated percentage of the
21-16    amount recovered.  The contract may state different percentage
21-17    limitations for different ranges of possible recoveries and
21-18    different percentage limitations in the event the matter is
21-19    settled, tried, or tried and appealed.  The percentage limitation
21-20    may not exceed 35 percent without prior approval by the
21-21    legislature.  The contract must state that the amount of the
21-22    contingent fee will not exceed the lesser of the stated percentage
21-23    of the amount recovered or the amount  computed under Subsections
21-24    (a), (b), and (c).
21-25          (e)  The contract also may:
21-26                (1)  limit the amount of expenses that may be
21-27    reimbursed; and
 22-1                (2)  provide that the amount or payment of only part of
 22-2    the fee is contingent on the outcome of the matter for which the
 22-3    services were obtained, with the amount and payment of the
 22-4    remainder of the fee payable on a regular hourly rate basis without
 22-5    regard to the outcome of the matter.
 22-6          (f)  Except as provided by Section 2254.107, this section
 22-7    does not apply to a contingent fee contract for legal services:
 22-8                (1)  in which the expected amount to be recovered and
 22-9    the actual amount recovered do not exceed $100,000; or
22-10                (2)  under which a series of recoveries is contemplated
22-11    and the amount of each individual recovery is not expected to and
22-12    does not exceed $100,000.
22-13          (g)  This section applies to a contract described by
22-14    Subsection (f) for each individual recovery under the contract that
22-15    actually exceeds $100,000, and the contract must provide for
22-16    computing the fee in accordance with this section for each
22-17    individual recovery that actually exceeds $100,000.
22-18          Sec. 2254.107.  MIXED HOURLY AND CONTINGENT FEE CONTRACTS;
22-19    REIMBURSEMENT FOR SUBCONTRACTED WORK. (a)  This section applies
22-20    only to a contingent fee contract:
22-21                (1)  under which the amount or payment of only part of
22-22    the fee is contingent on the outcome of the matter for which the
22-23    services were obtained, with the amount and payment of the
22-24    remainder of the fee payable on a regular hourly rate basis without
22-25    regard to the outcome of the matter; or
22-26                (2)  under which reimbursable expenses are incurred for
22-27    subcontracted legal or support services performed by a person who
 23-1    is not a contracting attorney or a partner, shareholder, or
 23-2    employee of a contracting attorney or law firm.
 23-3          (b)  Sections 2254.106(a) and (e) apply to the contract
 23-4    without regard to the expected or actual amount of recovery under
 23-5    the contract.
 23-6          (c)  The limitations prescribed by Section 2254.106 on the
 23-7    amount of the contingent fee apply to the entire amount of the fee
 23-8    under the contingent fee contract, including the part of the fee
 23-9    the amount and payment of which is not contingent on the outcome of
23-10    the matter.
23-11          (d)  The limitations prescribed by Section 2254.108 on
23-12    payment of the fee apply only to payment of the contingent portion
23-13    of the fee.
23-14          Sec. 2254.108.  FEE PAYMENT AND EXPENSE REIMBURSEMENT.
23-15    (a)  Except as provided by Subsection (b), a contingent fee and a
23-16    reimbursement of an expense under a contract with a state
23-17    governmental entity is payable only from funds the legislature
23-18    specifically appropriates to pay the fee or reimburse the expense.
23-19    An appropriation to pay the fee or reimburse the expense must
23-20    specifically describe the individual contract, or the class of
23-21    contracts classified by subject matter, on account of which the fee
23-22    is payable or expense is reimbursable.  A general reference to
23-23    contingent fee contracts for legal services or to contracts subject
23-24    to this subchapter or a similar general description is not a
23-25    sufficient description for purposes of this subsection.
23-26          (b)  If the legislature has not specifically appropriated
23-27    funds for paying the fee or reimbursing the expense, a state
 24-1    governmental entity may pay the fee or reimburse the expense from
 24-2    other available funds only if:
 24-3                (1)  the legislature is not in session; and
 24-4                (2)  the Legislative Budget Board gives its prior
 24-5    approval for that payment or reimbursement under Section 69,
 24-6    Article XVI, Texas Constitution, after examining the statement
 24-7    required under Section 2254.104(c) and determining that the
 24-8    requested payment and the contract under which payment is requested
 24-9    meet all the requirements of this subchapter.
24-10          (c)  A payment or reimbursement under the contract may not be
24-11    made until:
24-12                (1)  final and unappealable arrangements have been made
24-13    for depositing all recovered funds to the credit of the appropriate
24-14    fund or account in the state treasury; and
24-15                (2)  the state governmental entity and the state
24-16    auditor have received from the contracting attorney or law firm the
24-17    statement required under Section 2254.104(c).
24-18          (d)  Litigation and other expenses payable under the
24-19    contract, including expenses attributable to attorney, paralegal,
24-20    accountant, expert, or other professional work performed by a
24-21    person who is not a contracting attorney or a partner, shareholder,
24-22    or employee of a contracting attorney or law firm, may be
24-23    reimbursed only if the state governmental entity and the state
24-24    auditor determine that the expenses were reasonable, proper,
24-25    necessary, actually incurred on behalf of the state governmental
24-26    entity, and paid for by the contracting attorney or law firm.  The
24-27    contingent fee may not be paid until the state auditor has reviewed
 25-1    the relevant time and expense records and verified that the hours
 25-2    of work on which the fee computation is based were actually worked
 25-3    in performing reasonable and necessary services for the state
 25-4    governmental entity under the contract.
 25-5          Sec. 2254.109.  EFFECT ON OTHER LAW.  (a)  This subchapter
 25-6    does not limit the right of a state governmental entity to recover
 25-7    fees and expenses from opposing parties under other law.
 25-8          (b)  Compliance with this subchapter does not relieve a
 25-9    contracting attorney or law firm of an obligation or responsibility
25-10    under other law, including under the Texas Disciplinary Rules of
25-11    Professional Conduct.
25-12          (c)  A state officer, employee, or governing body, including
25-13    the attorney general, may not waive the requirements of this
25-14    subchapter or prejudice the interests of the state under this
25-15    subchapter.  This subchapter does not waive the state's sovereign
25-16    immunity from suit or its immunity from suit in federal court under
25-17    the Eleventh Amendment to the federal constitution.
25-18          SECTION 3.04.  The changes in law made by this article apply
25-19    only to a contract entered into on or after September 1, 1999.
25-20          Explanation:  This addition is necessary to regulate matters
25-21    relating to contingent fee contracts for legal services entered
25-22    into by state agencies.
                                                                      Junell
                                             _______________________________
                                                   Speaker of the House
               I certify that H.R. No. 1348 was adopted by the House on May
         30, 1999, by a non-record vote.
                                             _______________________________
                                                 Chief Clerk of the House