By: Wentworth S.B. No. 1048
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
AN ACT
1-1 relating to alternative dispute resolution records and proceedings
1-2 of governmental bodies.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 441.031, Government Code, is amended to
1-5 read as follows:
1-6 Sec. 441.031. DEFINITIONS. In this subchapter, "state [:]
1-7 [(5) "State] record" means a document, book, paper,
1-8 photograph, sound recording, or other material, regardless of
1-9 physical form or characteristic, made or received by a state
1-10 department or institution according to law or in connection with
1-11 the transaction of official state business. The term does not
1-12 include library or museum material made or acquired and preserved
1-13 solely for reference or exhibition purposes, an extra copy of a
1-14 document preserved only for convenience of reference, or a stock of
1-15 publications or of processed documents[, or any records,
1-16 correspondence, notes, memoranda, or other documents associated
1-17 with a matter conducted under an alternative dispute resolution
1-18 procedure in which personnel of a state department or institution,
1-19 local government, special district, or other political subdivision
1-20 of the state participated as a party, facilitated as an impartial
1-21 third party, or facilitated as the administrator of a dispute
1-22 resolution system or organization].
2-1 SECTION 2. Section 441.091, Government Code, is amended to
2-2 read as follows:
2-3 Sec. 441.091. DEFINITIONS. In this subchapter, "county[:]
2-4 [(1) "County] record" means any document, paper,
2-5 letter, book, map, photograph, sound or video recording, microfilm,
2-6 magnetic tape, electronic medium, or other information recording
2-7 medium, regardless of physical form or characteristic and
2-8 regardless of whether public access to it is open or restricted
2-9 under the laws of the state, created or received by a county or
2-10 precinct or any county or precinct officers or employees, including
2-11 the district clerk, pursuant to law, including an ordinance or
2-12 order of the commissioners court of the county, or in the
2-13 transaction of public business. The term does not include:
2-14 (1) [(A)] extra identical copies of documents created
2-15 only for convenience of reference or research by county or precinct
2-16 officers or employees;
2-17 (2) [(B)] notes, journals, diaries, and similar
2-18 documents created by a county or precinct officer or employee for
2-19 the officer's or employee's personal convenience;
2-20 (3) [(C)] blank forms;
2-21 (4) [(D)] stocks of publications;
2-22 (5) [(E)] library and museum materials acquired solely
2-23 for the purposes of reference or display; or
2-24 (6) [(F)] copies of documents in any media furnished
2-25 to members of the public to which they are entitled under Chapter
2-26 552, or other state law[; or]
3-1 [(G) any records, correspondence, notes,
3-2 memoranda, or other documents associated with a matter conducted
3-3 under an alternative dispute resolution procedure in which
3-4 personnel of a state department or institution, local government,
3-5 special district, or other political subdivision of the state
3-6 participated as a party, facilitated as an impartial third party,
3-7 or facilitated as the administrator of a dispute resolution system
3-8 or organization].
3-9 SECTION 3. Section 201.003(8), Local Government Code, is
3-10 amended to read as follows:
3-11 (8) "Local government record" means any document,
3-12 paper, letter, book, map, photograph, sound or video recording,
3-13 microfilm, magnetic tape, electronic medium, or other information
3-14 recording medium, regardless of physical form or characteristic and
3-15 regardless of whether public access to it is open or restricted
3-16 under the laws of the state, created or received by a local
3-17 government or any of its officers or employees pursuant to law,
3-18 including an ordinance, or in the transaction of public business.
3-19 The term does not include:
3-20 (A) extra identical copies of documents created
3-21 only for convenience of reference or research by officers or
3-22 employees of the local government;
3-23 (B) notes, journals, diaries, and similar
3-24 documents created by an officer or employee of the local government
3-25 for the officer's or employee's personal convenience;
3-26 (C) blank forms;
4-1 (D) stocks of publications;
4-2 (E) library and museum materials acquired solely
4-3 for the purposes of reference or display; or
4-4 (F) copies of documents in any media furnished
4-5 to members of the public to which they are entitled under Chapter
4-6 552, Government Code, or other state law[; or
4-7 (G) any records, correspondence, notes,
4-8 memoranda, or other documents associated with a matter conducted
4-9 under an alternative dispute resolution procedure in which
4-10 personnel of a state department or institution, local government,
4-11 special district, or other political subdivision of the state
4-12 participated as a party, facilitated as an impartial third party,
4-13 or facilitated as the administrator of a dispute resolution system
4-14 or organization].
4-15 SECTION 4. Chapter 2008, Government Code, as added by
4-16 Chapter 934, Acts of the 75th Legislature, Regular Session, 1997,
4-17 is redesignated as Chapter 2009, Government Code, and amended to
4-18 read as follows:
4-19 CHAPTER 2009 [2008]. ALTERNATIVE DISPUTE RESOLUTION FOR USE BY
4-20 [AT] GOVERNMENTAL BODIES [STATE AGENCIES]
4-21 SUBCHAPTER A. GENERAL PROVISIONS
4-22 Sec. 2009.001. [2008.001.] SHORT TITLE. This chapter may be
4-23 cited as the Governmental Dispute Resolution Act.
4-24 Sec. 2009.002. [2008.002.] POLICY. It is the policy of this
4-25 state that disputes before governmental bodies [state agencies] be
4-26 resolved as fairly and expeditiously as possible and that each
5-1 governmental body [state agency] support this policy by developing
5-2 and using alternative dispute resolution procedures in appropriate
5-3 aspects of the governmental body's [agency's] operations and
5-4 programs.
5-5 Sec. 2009.003. [2008.003.] DEFINITIONS. In this chapter:
5-6 (1) "Alternative dispute resolution procedure"
5-7 includes:
5-8 (A) a procedure described by Chapter 154, Civil
5-9 Practice and Remedies Code; and
5-10 (B) a combination of the procedures described by
5-11 Chapter 154, Civil Practice and Remedies Code.
5-12 (2) "Governmental body" has the meaning assigned by
5-13 Section 552.003.
5-14 (3) [(2)] "State agency" means an officer, board,
5-15 commission, department, or other agency in the executive branch of
5-16 state government with statewide jurisdiction that makes rules or
5-17 determines contested cases. The term includes:
5-18 (A) the attorney general;
5-19 (B) an institution of higher education as
5-20 defined by Section 61.003, Education Code; and
5-21 (C) the State Office of Administrative Hearings.
5-22 (4) [(3)] The following terms have the meanings
5-23 assigned by Section 2001.003:
5-24 (A) "contested case";
5-25 (B) "party";
5-26 (C) "person"; and
6-1 (D) "rule."
6-2 Sec. 2009.004. [2008.004. AGENCY] CONTRACTS; BUDGETING FOR
6-3 COSTS. (a) A governmental body [state agency] may pay for costs
6-4 necessary to meet the objectives of this chapter, including
6-5 reasonable fees for training, policy review, system design,
6-6 evaluation, and the use of impartial third parties.
6-7 (b) To the extent allowed by the General Appropriations Act,
6-8 a state [the] agency may use [for this purpose] money budgeted for
6-9 legal services, executive administration, or any other appropriate
6-10 aspect of the state agency's operations to pay for costs incurred
6-11 under Subsection (a).
6-12 (c) [(b)] A governmental body [state agency] may contract
6-13 with another governmental body [state agency], including the Center
6-14 for Public Policy Dispute Resolution at The University of Texas
6-15 School of Law, with an alternative dispute resolution system
6-16 created under Chapter 152, Civil Practice and Remedies Code, or
6-17 with a private entity for any service necessary to meet the
6-18 objectives of this chapter.
6-19 Sec. 2009.005. [2008.005.] SOVEREIGN IMMUNITY. (a) This
6-20 chapter does not waive immunity from suit and does not affect a
6-21 waiver of immunity from suit contained in other law.
6-22 (b) The state's sovereign immunity under the Eleventh
6-23 Amendment to the United States Constitution is not waived by this
6-24 chapter.
6-25 (c) Nothing in this chapter authorizes binding arbitration
6-26 as a method of alternative dispute resolution.
7-1 SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION
7-2 Sec. 2009.051. [2008.051.] DEVELOPMENT AND USE OF
7-3 PROCEDURES. (a) Each governmental body [state agency] may develop
7-4 and use alternative dispute resolution procedures. Alternative
7-5 dispute resolution procedures developed and used by a governmental
7-6 body [state agency] must be consistent with Chapter 154, Civil
7-7 Practice and Remedies Code.
7-8 (b) Alternative dispute resolution procedures developed and
7-9 used by a state agency also must be consistent[, and] with the
7-10 administrative procedure law, Chapter 2001. The State Office of
7-11 Administrative Hearings may issue model guidelines for the use of
7-12 alternative dispute resolution procedures by state agencies.
7-13 (c) [(b)] If a state agency that is subject to Chapter 2001
7-14 adopts an alternative dispute resolution procedure, it may do so by
7-15 rule.
7-16 Sec. 2009.052. [2008.052.] SUPPLEMENTAL NATURE OF
7-17 PROCEDURES. (a) Alternative dispute resolution procedures
7-18 developed and used under this chapter supplement and do not limit
7-19 other dispute resolution procedures available for use by [at] a
7-20 governmental body [state agency].
7-21 (b) This chapter may not be applied in a manner that denies
7-22 a person a right granted under other state or federal law or under
7-23 a local charter, ordinance, or other similar provision, including a
7-24 right to an administrative or judicial hearing.
7-25 Sec. 2009.053. [2008.053.] IMPARTIAL THIRD PARTIES. (a) A
7-26 governmental body [state agency] may appoint a governmental officer
8-1 or employee or a private individual to serve as an impartial third
8-2 party in an alternative dispute resolution procedure. The
8-3 governmental body's [agency's] appointment of the impartial third
8-4 party is subject to the approval of the parties, except that when a
8-5 State Office of Administrative Hearings administrative law judge
8-6 has issued an order referring a case involving a state agency to an
8-7 alternative dispute resolution procedure under Section 2003.042(5),
8-8 the administrative law judge may appoint the impartial third party
8-9 for the parties if they cannot agree on an impartial third party
8-10 within a reasonable period.
8-11 (b) [The impartial third party must possess the
8-12 qualifications required under Section 154.052, Civil Practice and
8-13 Remedies Code.]
8-14 [(c)] A governmental body [state agency] also may obtain the
8-15 services of a qualified impartial third party through an agreement
8-16 with [the State Office of Administrative Hearings,] the Center for
8-17 Public Policy Dispute Resolution at The University of Texas School
8-18 of Law, an alternative dispute resolution system created under
8-19 Chapter 152, Civil Practice and Remedies Code, [or] another
8-20 governmental body, [state] or a federal agency or through a pooling
8-21 agreement with several governmental bodies [state agencies]. The
8-22 agreements may provide that the using governmental body [agency] or
8-23 the parties will reimburse the furnishing entity [agency], in kind
8-24 or monetarily, for the full or partial cost of providing the
8-25 qualified impartial third party.
8-26 (c) A state agency may also obtain the services of a
9-1 qualified third party through an agreement with the State Office of
9-2 Administrative Hearings.
9-3 (d) The impartial third party must possess the
9-4 qualifications required under Section 154.052, Civil Practice and
9-5 Remedies Code. The impartial third party is subject to the
9-6 standards and duties prescribed by Section 154.053, Civil Practice
9-7 and Remedies Code, and has the qualified immunity prescribed by
9-8 Section 154.055, Civil Practice and Remedies Code, if applicable.
9-9 Sec. 2009.054. [2008.054.] CONFIDENTIALITY OF CERTAIN
9-10 RECORDS AND COMMUNICATIONS. (a) Sections 154.053 and 154.073,
9-11 Civil Practice and Remedies Code, apply to the communications,
9-12 records, conduct, and demeanor of the impartial third party and the
9-13 parties.
9-14 (b) Notwithstanding Section 154.073(d), Civil Practice and
9-15 Remedies Code:
9-16 (1) a communication relevant to the dispute, and a
9-17 record of the communication, made between an impartial third party
9-18 and the parties to the dispute or between the parties to the
9-19 dispute during the course of an alternative dispute resolution
9-20 procedure are confidential and may not be disclosed unless all
9-21 parties to the dispute consent to the disclosure; and
9-22 (2) the notes of an impartial third party are
9-23 confidential except to the extent that the notes consist of a
9-24 record of a communication with a party and all parties have
9-25 consented to disclosure in accordance with Subdivision (1).
9-26 (c) Subsection (b)(1) does not apply to a final written
10-1 agreement to which a governmental body [entity] is a signatory that
10-2 is reached as a result of a dispute resolution procedure conducted
10-3 under this chapter. Information in the final written agreement is
10-4 subject to required disclosure, is excepted from required
10-5 disclosure, or is confidential in accordance with Chapter 552 and
10-6 other law.
10-7 (d) An impartial third party may not be required to testify
10-8 in any proceedings relating to or arising out of the matter in
10-9 dispute.
10-10 Sec. 2009.055. [2008.055. INTERAGENCY] SHARING OF
10-11 INFORMATION; CONSISTENCY OF PROCEDURES. (a) A governmental body
10-12 [state agency] may share the results of its alternative dispute
10-13 resolution program with other governmental bodies [agencies] and
10-14 with the Center for Public Policy Dispute Resolution at The
10-15 University of Texas School of Law. The center may collect and
10-16 analyze the information and report its conclusions and useful
10-17 information to governmental bodies [state agencies] and the
10-18 legislature.
10-19 (b) Governmental bodies [State agencies] should, to the
10-20 extent feasible given [the] differences in their [agency] purpose,
10-21 jurisdiction, and constituency, adopt policies and procedures for
10-22 alternative dispute resolution that are consistent with the
10-23 policies and procedures of other governmental bodies [state
10-24 agencies].
10-25 SECTION 5. (a) This Act takes effect September 1, 1999.
10-26 (b) This Act applies only to an alternative dispute
11-1 resolution proceeding that begins on or after the effective date of
11-2 this Act. An alternative dispute resolution proceeding that began
11-3 before the effective date of this Act and a record associated with
11-4 that proceeding are governed by the law applicable to the
11-5 proceeding immediately before the effective date of this Act, and
11-6 that law is continued in effect for that purpose.