By:  Ratliff                                          S.R. No. 1189
                                  SENATE RESOLUTION
 1-1           BE IT RESOLVED by the Senate of the State of Texas, 76th
 1-2     Legislature, Regular Session, 1999, That Senate Rule 12.03 be
 1-3     suspended in part as provided by Senate Rule 12.08 to enable the
 1-4     conference committee appointed to resolve the differences on Senate
 1-5     Bill No. 178, relating to state agency practices and duties,
 1-6     including codification of certain state agency practices and duties
 1-7     currently prescribed by the General Appropriations Act, to consider
 1-8     and take action on the following matters:
 1-9           (1)  Senate Rule 12.03(3) is suspended to permit the
1-10     committee to add the following Subsection (c) to Section 2161.004,
1-11     Government Code, as added by the bill:
1-12           (c)  Section 2161.003 and Subsections (a) and (b) of this
1-13     section do not apply to a project or contract subject to Section
1-14     201.702, Transportation Code.
1-15           Explanation:  This addition is necessary to clarify that the
1-16     historically underutilized businesses provisions of Sections
1-17     2161.003 and 2161.004, Government Code, as added by the bill, that
1-18     are generally applicable to state agencies do not override the
1-19     disadvantaged businesses provisions of current law in Section
1-20     201.702, Transportation Code, that are applicable to the Texas
1-21     Department of Transportation.
1-22           (2)  Senate Rule 12.03(1) is suspended to permit the
1-23     committee to amend Section 2161.122(d), Government Code, as
1-24     redesignated by the bill, as follows:
 2-1           (d)  A state agency participating in a group purchasing
 2-2     program [described under Section 2155.139(b)] shall send to the
 2-3     commission in the agency's report under Section 2161.121 a separate
 2-4     list of purchases from historically underutilized businesses that
 2-5     are made through the group purchasing program, including the dollar
 2-6     amount of each purchase allocated to the reporting agency.
 2-7           Explanation:  This amendment is necessary to clarify that a
 2-8     state agency shall report its purchases from historically
 2-9     underutilized businesses under any group purchasing program.
2-10           (3)  Senate Rule 12.03(3) is suspended to permit the
2-11     committee to add the following Subdivision (4) to Section 2170.010,
2-12     Government Code, as added by the bill:
2-13                 (4)  in the investigation of motor fuels tax fraud.
2-14           Explanation:  This addition is necessary to allow the use of
2-15     unlisted telephone numbers in the investigation of motor fuels tax
2-16     fraud.
2-17           (4)  Senate Rule 12.03(4) is suspended to permit the
2-18     committee to add a new Article 2 to the bill to read as follows:
2-19                    ARTICLE 2.  CERTAIN OTHER PROVISIONS
2-20                  RELATED TO STATE AGENCY CONTRACTING WITH
2-21                    HISTORICALLY UNDERUTILIZED BUSINESSES
2-22           SECTION 2.01.  Subsection (g), Section 2155.074, Government
2-23     Code, as added by Chapter 508, Acts of the 75th Legislature,
2-24     Regular Session, 1997, is amended to read as follows:
2-25           (g)  A state agency shall post in the business daily either
2-26     the entire bid or proposal solicitation package or a notice that
 3-1     includes all information necessary to make a successful bid,
 3-2     proposal, or other applicable expression of interest for the
 3-3     procurement contract, including at a minimum the following
 3-4     information for each procurement that the state agency will make
 3-5     that is estimated to exceed $25,000 in value:
 3-6                 (1)  a brief description of the goods or services to be
 3-7     procured and any applicable state product or service codes for the
 3-8     goods and services;
 3-9                 (2)  the last date on which bids, proposals, or other
3-10     applicable expressions of interest will be accepted;
3-11                 (3)  the estimated quantity of goods or services to be
3-12     procured;
3-13                 (4)  if applicable, the previous price paid by the
3-14     state agency for the same or similar goods or services;
3-15                 (5)  the estimated date on which the goods or services
3-16     to be procured will be needed; and
3-17                 (6)  the name, business mailing address, and business
3-18     telephone number of the state agency employee a person may contact
3-19     to inquire about [obtain] all necessary information related to
3-20     making a bid or proposal or other applicable expression of interest
3-21     for the procurement contract.
3-22           SECTION 2.02.  Subchapter A, Chapter 2161, Government Code,
3-23     is amended by adding Section 2161.0015 to read as follows:
3-24           Sec. 2161.0015.  DETERMINING SIZE STANDARDS FOR HISTORICALLY
3-25     UNDERUTILIZED BUSINESSES.  The commission may establish size
3-26     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.  Subsections (b) and (c), Section 2161.061,
 4-7     Government Code, 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
 5-1     commission database containing information about historically
 5-2     underutilized businesses and potential historically underutilized
 5-3     businesses; and
 5-4                 (3)  provide for a method by which the commission may
 5-5     efficiently communicate with businesses certified under the local
 5-6     government program and provide those businesses with information
 5-7     about the state historically underutilized business program.  [A
 5-8     municipality, in certifying historically underutilized businesses,
 5-9     may adopt the certification program of the commission, of the
5-10     federal Small Business Administration, or of another political
5-11     subdivision or other governmental entity.]
5-12           SECTION 2.04.  Section 2161.062, Government Code, is amended
5-13     by adding Subsections (d) and (e) to read as follows:
5-14           (d)  The commission shall send historically underutilized
5-15     businesses an orientation package on certification or
5-16     recertification.  The package shall include:
5-17                 (1)  a certificate issued in the historically
5-18     underutilized business's name;
5-19                 (2)  a description of the significance and value of
5-20     certification;
5-21                 (3)  a list of state purchasing personnel;
5-22                 (4)  information regarding electronic commerce
5-23     opportunities;
5-24                 (5)  information regarding the Texas Marketplace
5-25     website; and
5-26                 (6)  additional information about the state procurement
 6-1     process.
 6-2           (e)  A state agency with a biennial budget that exceeds $10
 6-3     million shall designate a staff member to serve as the historically
 6-4     underutilized businesses coordinator for the agency during the
 6-5     fiscal year.  The procurement director may serve as the
 6-6     coordinator.  In agencies that employ a historically underutilized
 6-7     businesses coordinator, the position of coordinator, within the
 6-8     agency's structure, must be at least equal to the position of
 6-9     procurement director.  In addition to any other responsibilities,
6-10     the coordinator shall:
6-11                 (1)  coordinate training programs for the recruitment
6-12     and retention of historically underutilized businesses;
6-13                 (2)  report required information to the commission; and
6-14                 (3)  match historically underutilized businesses with
6-15     key staff within the agency.
6-16           SECTION 2.05.  Subsection (b), Section 2161.063, Government
6-17     Code, is amended to read as follows:
6-18           (b)  The commission shall assist the Texas Department of
6-19     Economic Development [Commerce] in performing the department's
6-20     duties under Section 481.0068 [481.103].
6-21           SECTION 2.06.  Subsection (b), Section 2161.064, Government
6-22     Code, is amended to read as follows:
6-23           (b)  The commission at least semiannually shall update the
6-24     directory and provide access to the directory electronically or in
6-25     another form [a copy of the directory] to each state agency.
6-26           SECTION 2.07.  Subsections (a) and (e), Section 2161.121,
 7-1     Government Code, are amended to read as follows:
 7-2           (a)  The commission shall prepare a consolidated report that:
 7-3                 (1)  includes the number and dollar amount of contracts
 7-4     awarded and paid to historically underutilized businesses certified
 7-5     by the commission; [and]
 7-6                 (2)  analyzes the relative level of opportunity for
 7-7     historically underutilized businesses for various categories of
 7-8     acquired goods and services; and
 7-9                 (3)  tracks, by vendor identification number and, to
7-10     the extent allowed by federal law, by social security number, the
7-11     graduation rates for historically underutilized businesses that
7-12     grew to exceed the size standards determined by the commission.
7-13           (e)  The commission shall send on October 15 of each year a
7-14     report on the preceding fiscal year to the presiding officer of
7-15     each house of the legislature[, the members of the legislature,]
7-16     and the joint committee.
7-17           SECTION 2.08.  Subchapter B, Chapter 2161, Government Code,
7-18     is amended by adding Sections 2161.065 and 2161.066 to read as
7-19     follows:
7-20           Sec. 2161.065.  MENTOR-PROTEGE PROGRAM.  (a)  The commission
7-21     shall design a mentor-protege program to foster long-term
7-22     relationships between prime contractors and historically
7-23     underutilized businesses and to increase the ability of
7-24     historically underutilized businesses to contract with the state or
7-25     to receive subcontracts under a state contract.  Each state agency
7-26     with a biennial appropriation that exceeds $10 million shall
 8-1     implement the program designed by the commission.
 8-2           (b)  Participation in the program must be voluntary for both
 8-3     the contractor and the historically underutilized business
 8-4     subcontractor.
 8-5           Sec. 2161.066.  HISTORICALLY UNDERUTILIZED BUSINESS FORUMS.
 8-6     (a)  The commission shall design a program of forums in which
 8-7     historically underutilized businesses are invited by state agencies
 8-8     to deliver technical and business presentations that demonstrate
 8-9     their capability to do business with the agency:
8-10                 (1)  to senior managers and procurement personnel at
8-11     state agencies that acquire goods and services of a type supplied
8-12     by the historically underutilized businesses; and
8-13                 (2)  to contractors with the state who may be
8-14     subcontracting for goods and services of a type supplied by the
8-15     historically underutilized businesses.
8-16           (b)  The forums shall be held at state agency offices.
8-17           (c)  Each state agency with a biennial appropriation that
8-18     exceeds $10 million shall participate in the program by sending
8-19     senior managers and procurement personnel to attend relevant
8-20     presentations and by informing the agency's contractors about
8-21     presentations that may be relevant to anticipated subcontracting
8-22     opportunities.
8-23           (d)  Each state agency that has a historically underutilized
8-24     businesses coordinator shall:
8-25                 (1)  design its own program and model the program to
8-26     the extent appropriate on the program developed by the commission
 9-1     under this section; and
 9-2                 (2)  sponsor presentations by historically
 9-3     underutilized businesses at the agency.
 9-4           (e)  The commission and each state agency that has a
 9-5     historically underutilized businesses coordinator shall
 9-6     aggressively identify and notify individual historically
 9-7     underutilized businesses regarding opportunities to make a
 9-8     presentation regarding the types of goods and services supplied by
 9-9     the historically underutilized business and shall advertise in
9-10     appropriate trade publications that target historically
9-11     underutilized businesses regarding opportunities to make a
9-12     presentation.
9-13           SECTION 2.09.  Subchapter C, Chapter 2161, Government Code,
9-14     is amended by adding Sections 2161.126 and 2161.127 to read as
9-15     follows:
9-16           Sec. 2161.126.  EDUCATION AND OUTREACH BY COMMISSION.  Before
9-17     September 1 of each year, the commission shall report to the
9-18     governor, the lieutenant governor, and the speaker of the house of
9-19     representatives on the education and training efforts that the
9-20     commission has made toward historically underutilized businesses.
9-21     The report must include the following as related to historically
9-22     underutilized businesses:
9-23                 (1)  the commission's vision, mission, and philosophy;
9-24                 (2)  marketing materials and other educational
9-25     materials distributed by the commission;
9-26                 (3)  the commission's policy regarding education,
 10-1    outreach, and dissemination of information;
 10-2                (4)  goals that the commission has attained during the
 10-3    fiscal year;
 10-4                (5)  the commission's goals, objectives, and expected
 10-5    outcome measures for each outreach and education event; and
 10-6                (6)  the commission's planned future initiatives on
 10-7    education and outreach.
 10-8          Sec. 2161.127.  LEGISLATIVE APPROPRIATIONS REQUESTS.  Each
 10-9    state agency must include as part of its legislative appropriations
10-10    request a detailed report for consideration by the budget
10-11    committees of the legislature that shows the extent to which the
10-12    agency complied with this chapter and rules of the commission
10-13    adopted under this chapter during the two calendar years preceding
10-14    the calendar year in which the request is submitted.  To the extent
10-15    the state agency did not comply, the report must demonstrate the
10-16    reasons for that fact.  The extent to which a state agency complies
10-17    with this chapter and rules of the commission adopted under this
10-18    chapter is considered a performance measure for purposes of the
10-19    appropriations process.
10-20          SECTION 2.10.  Chapter 2161, Government Code, is amended by
10-21    adding Subchapter F to read as follows:
10-22                       SUBCHAPTER F.  SUBCONTRACTING
10-23          Sec. 2161.251.  APPLICABILITY.  (a)  This subchapter applies
10-24    to all contracts entered into by a state agency with an expected
10-25    value of $100,000 or more, including:
10-26                (1)  contracts for the acquisition of a good or
 11-1    service; and
 11-2                (2)  contracts for or related to the construction of a
 11-3    public building, road, or other public work.
 11-4          (b)  This subchapter applies to the contract without regard
 11-5    to:
 11-6                (1)  whether the contract is otherwise subject to this
 11-7    subtitle; or
 11-8                (2)  the source of funds for the contract, except that
 11-9    to the extent federal funds are used to pay for the contract, this
11-10    subchapter does not apply if federal law prohibits the application
11-11    of this subchapter in relation to the expenditure of federal funds.
11-12          Sec. 2161.252.  AGENCY DETERMINATION REGARDING SUBCONTRACTING
11-13    OPPORTUNITIES; BUSINESS SUBCONTRACTING PLAN.  (a)  Each state
11-14    agency that considers entering into a contract with an expected
11-15    value of $100,000 or more shall, before the agency solicits bids,
11-16    proposals, offers, or other applicable expressions of interest for
11-17    the contract, determine whether there will be subcontracting
11-18    opportunities under the contract.  If the state agency determines
11-19    that there is that probability, the agency shall require that each
11-20    bid, proposal, offer, or other applicable expression of interest
11-21    for the contract include a historically underutilized business
11-22    subcontracting plan.
11-23          (b)  When a state agency requires a historically
11-24    underutilized business subcontracting plan under Subsection (a), a
11-25    bid, proposal, offer, or other applicable expression of interest
11-26    for the contract must contain a plan to be considered responsive.
 12-1          Sec. 2161.253.  GOOD FAITH COMPLIANCE WITH BUSINESS
 12-2    SUBCONTRACTING PLAN.  (a)  When a state agency requires a
 12-3    historically underutilized business subcontracting plan under
 12-4    Section 2161.252, the awarded contract shall contain, as a
 12-5    provision of the contract that must be fulfilled, the plan that the
 12-6    contractor submitted in its bid, proposal, offer, or other
 12-7    applicable expression of interest for the contract.  The contractor
 12-8    shall make good faith efforts to implement the plan.
 12-9          (b)  To the extent that subcontracts are not contracted for
12-10    as originally submitted in the historically underutilized business
12-11    subcontracting plan, the contractor shall report to the state
12-12    agency all the circumstances that explain that fact and describe
12-13    the good faith efforts made to find and subcontract with another
12-14    historically underutilized business.
12-15          (c)  The state agency shall audit the contractor's compliance
12-16    with the historically underutilized business subcontracting plan.
12-17    In determining whether the contractor made the required good faith
12-18    effort, the agency may not consider the success or failure of the
12-19    contractor to subcontract with historically underutilized
12-20    businesses in any specific quantity.  The agency's determination is
12-21    restricted to considering factors indicating good faith.
12-22          (d)  If a determination is made that the contractor failed to
12-23    implement the plan in good faith, the agency, in addition to any
12-24    other remedies, may bar the contractor from further contracting
12-25    opportunities with the agency.
12-26          (e)  The commission shall adopt rules to administer this
 13-1    subchapter.
 13-2          SECTION 2.11.  Subchapter F, Chapter 2161, Government Code,
 13-3    as added by this Act, applies only to subcontracting under a
 13-4    contract entered into by a state agency for which the request for
 13-5    bids, proposals, offers, or other applicable expressions of
 13-6    interest is disseminated on or after April 1, 2000.
 13-7          Explanation:  This addition is necessary to make changes in
 13-8    the state's historically underutilized businesses purchasing
 13-9    program.
13-10          (5)  Senate Rule 12.03(4) is suspended to permit the
13-11    committee to add a new Article 3 to the bill to read as follows:
13-12              ARTICLE 3.  PROVISIONS RELATING TO STATE AGENCY
13-13               CONTINGENCY FEE CONTRACTS FOR LEGAL SERVICES
13-14          SECTION 3.01.  (a)  The legislature finds that:
13-15                (1)  a payment to a private attorney or law firm under
13-16    a contingent fee contract for legal services entered into by a
13-17    state governmental entity constitutes compensation paid to a public
13-18    contractor for which the legislature must provide by law under
13-19    Section 44, Article III, Texas Constitution; and
13-20                (2)  funds recovered by a state governmental entity in
13-21    litigation or in settlement of a matter that could have resulted in
13-22    litigation are state funds that must be deposited in the state
13-23    treasury and made subject to the appropriations process.
13-24          (b)  It is the policy of this state that all funds recovered
13-25    by a state governmental entity from an opposing party in litigation
13-26    or in settlement of a matter that could have resulted in
 14-1    litigation, including funds designated as damages, amounts adjudged
 14-2    or awarded, attorney's fees, costs, interest, settlement proceeds,
 14-3    or expenses, are the property of the state governmental entity that
 14-4    must be deposited in the manner that public funds of the entity
 14-5    must be deposited.  Legal fees and expenses may be paid from the
 14-6    recovered funds under a contingent fee contract for legal services
 14-7    only after the funds have been appropriately deposited and only in
 14-8    accordance with applicable law.
 14-9          SECTION 3.02.  Subchapter F, Chapter 404, Government Code, is
14-10    amended by adding Section 404.097 to read as follows:
14-11          Sec. 404.097.  DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR
14-12    SETTLEMENT.  (a)  Notwithstanding Section 404.093, this section
14-13    applies by its terms to each state governmental entity.
14-14          (b)  In this section, "contingent fee contract" and "state
14-15    governmental entity" have the meanings assigned by Section
14-16    2254.101.
14-17          (c)  All funds recovered by a state governmental entity in
14-18    litigation or in settlement of a matter that could have resulted in
14-19    litigation, including funds designated as damages, amounts adjudged
14-20    or awarded, attorney's fees, costs, interest, settlement proceeds,
14-21    or expenses, are public funds of the state or the state
14-22    governmental entity and shall be deposited in the state treasury to
14-23    the credit of the appropriate fund or account.
14-24          (d)  Legal fees and expenses may be paid from the recovered
14-25    funds under a contingent fee contract for legal services only:
14-26                (1)  after the funds are deposited in accordance with
 15-1    this section; and
 15-2                (2)  in accordance with Subchapter C, Chapter 2254.
 15-3          SECTION 3.03.  Chapter 2254, Government Code, is amended by
 15-4    adding Subchapter C to read as follows:
 15-5         SUBCHAPTER C.  CONTINGENT FEE CONTRACT FOR LEGAL SERVICES
 15-6          Sec. 2254.101.  DEFINITIONS.  In this subchapter:
 15-7                (1)  "Contingent fee" means that part of a fee for
 15-8    legal services, under a contingent fee contract, the amount or
 15-9    payment of which is contingent on the outcome of the matter for
15-10    which the services were obtained.
15-11                (2)  "Contingent fee contract" means a contract for
15-12    legal services under which the amount or the payment of the fee for
15-13    the services is contingent in whole or in part on the outcome of
15-14    the matter for which the services were obtained.
15-15                (3)  "State governmental entity":
15-16                      (A)  means the state or a board, commission,
15-17    department, office, or other agency in the executive branch of
15-18    state government created under the constitution or a statute of the
15-19    state, including an institution of higher education as defined by
15-20    Section 61.003, Education Code;
15-21                      (B)  includes the state when a state officer is
15-22    bringing a parens patriae proceeding in the name of the state; and
15-23                      (C)  does not include a state agency or state
15-24    officer acting as a receiver, special deputy receiver, liquidator,
15-25    or liquidating agent in connection with the administration of the
15-26    assets of an insolvent entity under Article 21.28, Insurance Code,
 16-1    or Chapter 36, 66, 96, or 126, Finance Code.
 16-2          Sec. 2254.102.  APPLICABILITY.  (a)  This subchapter applies
 16-3    only to a contingent fee contract for legal services entered into
 16-4    by a state governmental entity.
 16-5          (b)  The legislature by this subchapter is providing, in
 16-6    accordance with Section 44, Article III, Texas Constitution, for
 16-7    the manner in which and the situations under which a state
 16-8    governmental entity may compensate a public contractor under a
 16-9    contingent fee contract for legal services.
16-10          Sec. 2254.103.  CONTRACT APPROVAL; SIGNATURE.  (a)  A state
16-11    governmental entity that has authority to enter into a contract for
16-12    legal services in its own name may enter into a contingent fee
16-13    contract for legal services only if:
16-14                (1)  the governing body of the state governmental
16-15    entity approves the contract and the approved contract is signed by
16-16    the presiding officer of the governing body; or
16-17                (2)  for an entity that is not governed by a
16-18    multimember governing body, the elected or appointed officer who
16-19    governs the entity approves and signs the contract.
16-20          (b)  The attorney general may enter into a contingent fee
16-21    contract for legal services in the name of the state in relation to
16-22    a matter that has been referred to the attorney general under law
16-23    by another state governmental entity only if the other state
16-24    governmental entity approves and signs the contract in accordance
16-25    with Subsection (a).
16-26          (c)  A state governmental entity, including the state, may
 17-1    enter into a contingent fee contract for legal services that is not
 17-2    described by Subsection (a) or (b) only if the governor approves
 17-3    and signs the contract.
 17-4          (d)  Before approving the contract, the governing body,
 17-5    elected or appointed officer, or governor, as appropriate, must
 17-6    find that:
 17-7                (1)  there is a substantial need for the legal
 17-8    services;
 17-9                (2)  the legal services cannot be adequately performed
17-10    by the attorneys and supporting personnel of the state governmental
17-11    entity or by the attorneys and supporting personnel of another
17-12    state governmental entity; and
17-13                (3)  the legal services cannot reasonably be obtained
17-14    from attorneys in private practice under a contract providing only
17-15    for the payment of hourly fees, without regard to the outcome of
17-16    the matter, because of the nature of the matter for which the
17-17    services will be obtained or because the state governmental entity
17-18    does not have appropriated funds available to pay the estimated
17-19    amounts required under a contract providing only for the payment of
17-20    hourly fees.
17-21          (e)  Before entering into a contingent fee contract for legal
17-22    services in which the estimated amount that may be recovered
17-23    exceeds $100,000, a state governmental entity that proposes to
17-24    enter into the contract in its own name or in the name of the state
17-25    must also notify the Legislative Budget Board that the entity
17-26    proposes to enter into the contract, send the board copies of the
 18-1    proposed contract, and send the board information demonstrating
 18-2    that the conditions required by Subsection (d)(3) exist.  If the
 18-3    state governmental entity finds under Subsection (d)(3) that the
 18-4    state governmental entity does not have appropriated funds
 18-5    available to pay the estimated amounts required under a contract
 18-6    for the legal services providing only for the payment of hourly
 18-7    fees, the state governmental entity may not enter into the proposed
 18-8    contract in its own name or in the name of the state unless the
 18-9    Legislative Budget Board finds that the state governmental entity's
18-10    finding with regard to available appropriated funds is correct.
18-11          (f)  A contingent fee contract for legal services that is
18-12    subject to Subsection (e) and requires a finding by the Legislative
18-13    Budget Board is void unless the board has made the finding required
18-14    by Subsection (e).
18-15          Sec. 2254.104.  TIME AND EXPENSE RECORDS REQUIRED; FINAL
18-16    STATEMENT.  (a)  The contract must require that the contracting
18-17    attorney or law firm keep current and complete written time and
18-18    expense records that describe in detail the time and money spent
18-19    each day in performing the contract.
18-20          (b)  The contracting attorney or law firm shall permit the
18-21    governing body or governing officer of the state governmental
18-22    entity, the attorney general, and the state auditor each to inspect
18-23    or obtain copies of the time and expense records at any time on
18-24    request.
18-25          (c)  On conclusion of the matter for which legal services
18-26    were obtained, the contracting attorney or law firm shall provide
 19-1    the contracting state governmental entity with a complete written
 19-2    statement that describes the outcome of the matter, states the
 19-3    amount of any recovery, shows the contracting attorney's or law
 19-4    firm's computation of the amount of the contingent fee, and
 19-5    contains the final complete time and expense records required by
 19-6    Subsection (a).  The complete written statement required by this
 19-7    subsection is public information under Chapter 552 and may not be
 19-8    withheld from a requestor under that chapter under Section 552.103
 19-9    or any other exception from required disclosure.
19-10          (d)  This subsection does not apply to the complete written
19-11    statement required by Subsection (c).  All time and expense records
19-12    required under this section are public information subject to
19-13    required public disclosure under Chapter 552.  Information in the
19-14    records may be withheld from a member of the public under Section
19-15    552.103 only if, in addition to meeting the requirements of Section
19-16    552.103, the chief legal officer or employee of the state
19-17    governmental entity determines that withholding the information is
19-18    necessary to protect the entity's strategy or position in pending
19-19    or reasonably anticipated litigation.  Information withheld from
19-20    public disclosure under this subsection shall be segregated from
19-21    information that is subject to required public disclosure.
19-22          Sec. 2254.105.  CERTAIN GENERAL CONTRACT REQUIREMENTS.  The
19-23    contract must:
19-24                (1)  provide for the method by which the contingent fee
19-25    is computed;
19-26                (2)  state the differences, if any, in the method by
 20-1    which the contingent fee is computed if the matter is settled,
 20-2    tried, or tried and appealed;
 20-3                (3)  state how litigation and other expenses will be
 20-4    paid and, if reimbursement of any expense is contingent on the
 20-5    outcome of the matter or reimbursable from the amount recovered in
 20-6    the matter, state whether the amount recovered for purposes of the
 20-7    contingent fee computation is considered to be the amount obtained
 20-8    before or after expenses are deducted;
 20-9                (4)  state that any subcontracted legal or support
20-10    services performed by a person who is not a contracting attorney or
20-11    a partner, shareholder, or employee of a contracting attorney or
20-12    law firm is an expense subject to reimbursement only in accordance
20-13    with this subchapter; and
20-14                (5)  state that the amount of the contingent fee and
20-15    reimbursement of expenses under the contract will be paid and
20-16    limited in accordance with this subchapter.
20-17          Sec. 2254.106.  CONTRACT REQUIREMENTS: COMPUTATION OF
20-18    CONTINGENT FEE; REIMBURSEMENT OF EXPENSES.  (a)  The contract must
20-19    establish the reasonable hourly rate for work performed by an
20-20    attorney, law clerk, or paralegal who will perform legal or support
20-21    services under the contract based on the reasonable and customary
20-22    rate in the relevant locality for the type of work performed and on
20-23    the relevant experience, demonstrated ability, and standard hourly
20-24    billing rate, if any, of the person performing the work.  The
20-25    contract may establish the reasonable hourly rate for one or more
20-26    persons by name and may establish a rate schedule for work
 21-1    performed by unnamed persons.  The highest hourly rate for a named
 21-2    person or under a rate schedule may not exceed $1,000 an hour.
 21-3    This subsection applies to subcontracted work performed by an
 21-4    attorney, law clerk, or paralegal who is not a contracting attorney
 21-5    or a partner, shareholder, or employee of a contracting attorney or
 21-6    law firm as well as to work performed by a contracting attorney or
 21-7    by a partner, shareholder, or employee of a contracting attorney or
 21-8    law firm.
 21-9          (b)  The contract must establish a base fee to be computed as
21-10    follows.  For each attorney, law clerk, or paralegal who is a
21-11    contracting attorney or a partner, shareholder, or employee of a
21-12    contracting attorney or law firm, multiply the number of hours the
21-13    attorney, law clerk, or paralegal works in providing legal or
21-14    support services under the contract times the reasonable hourly
21-15    rate for the work performed by that attorney, law clerk, or
21-16    paralegal.  Add the resulting amounts to obtain the base fee.  The
21-17    computation of the base fee may not include hours or costs
21-18    attributable to work performed by a person who is not a contracting
21-19    attorney or a partner, shareholder, or employee of a contracting
21-20    attorney or law firm.
21-21          (c)  Subject to Subsection (d), the contingent fee is
21-22    computed by multiplying the base fee by a multiplier.  The contract
21-23    must establish a reasonable multiplier based on any expected
21-24    difficulties in performing the contract, the amount of expenses
21-25    expected to be risked by the contractor, the expected risk of no
21-26    recovery, and any expected long delay in recovery.  The multiplier
 22-1    may not exceed four without prior approval by the legislature.
 22-2          (d)  In addition to establishing the method of computing the
 22-3    fee under Subsections (a), (b), and (c), the contract must limit
 22-4    the amount of the contingent fee to a stated percentage of the
 22-5    amount recovered.  The contract may state different percentage
 22-6    limitations for different ranges of possible recoveries and
 22-7    different percentage limitations in the event the matter is
 22-8    settled, tried, or tried and appealed.  The percentage limitation
 22-9    may not exceed 35 percent without prior approval by the
22-10    legislature.  The contract must state that the amount of the
22-11    contingent fee will not exceed the lesser of the stated percentage
22-12    of the amount recovered or the amount  computed under Subsections
22-13    (a), (b), and (c).
22-14          (e)  The contract also may:
22-15                (1)  limit the amount of expenses that may be
22-16    reimbursed; and
22-17                (2)  provide that the amount or payment of only part of
22-18    the fee is contingent on the outcome of the matter for which the
22-19    services were obtained, with the amount and payment of the
22-20    remainder of the fee payable on a regular hourly rate basis without
22-21    regard to the outcome of the matter.
22-22          (f)  Except as provided by Section 2254.107, this section
22-23    does not apply to a contingent fee contract for legal services:
22-24                (1)  in which the expected amount to be recovered and
22-25    the actual amount recovered do not exceed $100,000; or
22-26                (2)  under which a series of recoveries is contemplated
 23-1    and the amount of each individual recovery is not expected to and
 23-2    does not exceed $100,000.
 23-3          (g)  This section applies to a contract described by
 23-4    Subsection (f) for each individual recovery under the contract that
 23-5    actually exceeds $100,000, and the contract must provide for
 23-6    computing the fee in accordance with this section for each
 23-7    individual recovery that actually exceeds $100,000.
 23-8          Sec. 2254.107.  MIXED HOURLY AND CONTINGENT FEE CONTRACTS;
 23-9    REIMBURSEMENT FOR SUBCONTRACTED WORK.  (a)  This section applies
23-10    only to a contingent fee contract:
23-11                (1)  under which the amount or payment of only part of
23-12    the fee is contingent on the outcome of the matter for which the
23-13    services were obtained, with the amount and payment of the
23-14    remainder of the fee payable on a regular hourly rate basis without
23-15    regard to the outcome of the matter; or
23-16                (2)  under which reimbursable expenses are incurred for
23-17    subcontracted legal or support services performed by a person who
23-18    is not a contracting attorney or a partner, shareholder, or
23-19    employee of a contracting attorney or law firm.
23-20          (b)  Sections 2254.106(a) and (e) apply to the contract
23-21    without regard to the expected or actual amount of recovery under
23-22    the contract.
23-23          (c)  The limitations prescribed by Section 2254.106 on the
23-24    amount of the contingent fee apply to the entire amount of the fee
23-25    under the contingent fee contract, including the part of the fee
23-26    the amount and payment of which is not contingent on the outcome of
 24-1    the matter.
 24-2          (d)  The limitations prescribed by Section 2254.108 on
 24-3    payment of the fee apply only to payment of the contingent portion
 24-4    of the fee.
 24-5          Sec. 2254.108.  FEE PAYMENT AND EXPENSE REIMBURSEMENT.
 24-6    (a)  Except as provided by Subsection (b), a contingent fee and a
 24-7    reimbursement of an expense under a contract with a state
 24-8    governmental entity is payable only from funds the legislature
 24-9    specifically appropriates to pay the fee or reimburse the expense.
24-10    An appropriation to pay the fee or reimburse the expense must
24-11    specifically describe the individual contract, or the class of
24-12    contracts classified by subject matter, on account of which the fee
24-13    is payable or expense is reimbursable.  A general reference to
24-14    contingent fee contracts for legal services or to contracts subject
24-15    to this subchapter or a similar general description is not a
24-16    sufficient description for purposes of this subsection.
24-17          (b)  If the legislature has not specifically appropriated
24-18    funds for paying the fee or reimbursing the expense, a state
24-19    governmental entity may pay the fee or reimburse the expense from
24-20    other available funds only if:
24-21                (1)  the legislature is not in session; and
24-22                (2)  the Legislative Budget Board gives its prior
24-23    approval for that payment or reimbursement under Section 69,
24-24    Article XVI, Texas Constitution, after examining the statement
24-25    required under Section 2254.104(c) and determining that the
24-26    requested payment and the contract under which payment is requested
 25-1    meet all the requirements of this subchapter.
 25-2          (c)  A payment or reimbursement under the contract may not be
 25-3    made until:
 25-4                (1)  final and unappealable arrangements have been made
 25-5    for depositing all recovered funds to the credit of the appropriate
 25-6    fund or account in the state treasury; and
 25-7                (2)  the state governmental entity and the state
 25-8    auditor have received from the contracting attorney or law firm the
 25-9    statement required under Section 2254.104(c).
25-10          (d)  Litigation and other expenses payable under the
25-11    contract, including expenses attributable to attorney, paralegal,
25-12    accountant, expert, or other professional work performed by a
25-13    person who is not a contracting attorney or a partner, shareholder,
25-14    or employee of a contracting attorney or law firm, may be
25-15    reimbursed only if the state governmental entity and the state
25-16    auditor determine that the expenses were reasonable, proper,
25-17    necessary, actually incurred on behalf of the state governmental
25-18    entity, and paid for by the contracting attorney or law firm.  The
25-19    contingent fee may not be paid until the state auditor has reviewed
25-20    the relevant time and expense records and verified that the hours
25-21    of work on which the fee computation is based were actually worked
25-22    in performing reasonable and necessary services for the state
25-23    governmental entity under the contract.
25-24          Sec. 2254.109.  EFFECT ON OTHER LAW.  (a)  This subchapter
25-25    does not limit the right of a state governmental entity to recover
25-26    fees and expenses from opposing parties under other law.
 26-1          (b)  Compliance with this subchapter does not relieve a
 26-2    contracting attorney or law firm of an obligation or responsibility
 26-3    under other law, including under the Texas Disciplinary Rules of
 26-4    Professional Conduct.
 26-5          (c)  A state officer, employee, or governing body, including
 26-6    the attorney general, may not waive the requirements of this
 26-7    subchapter or prejudice the interests of the state under this
 26-8    subchapter.  This subchapter does not waive the state's sovereign
 26-9    immunity from suit or its immunity from suit in federal court under
26-10    the Eleventh Amendment to the federal constitution.
26-11          SECTION 3.04.  The changes in law made by this article apply
26-12    only to a contract entered into on or after September 1, 1999.
26-13          Explanation:  This addition is necessary to regulate matters
26-14    relating to contingent fee contracts for legal services entered
26-15    into by state agencies.
26-16                                 ______________________________________
26-17                                         President of the Senate
26-18                                      I hereby certify that the above
26-19                                 Resolution was adopted by the Senate
26-20                                 on May 30, 1999, by the following
26-21                                 vote:  Yeas 30, Nays 0.
26-22                                 ______________________________________
26-23                                         Secretary of the Senate