By Ratliff                                            S.R. No. 1189
         76R18177 JRD-D                           
                                 R E S O L U T I O N
 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.  Section 2155.074(g), Government Code, as added
2-23     by Chapter 508, Acts of the 75th Legislature, Regular Session,
2-24     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
2-27     includes all information necessary to make a successful bid,
 3-1     proposal, or other applicable expression of interest for the
 3-2     procurement contract, including at a minimum the following
 3-3     information for each procurement that the state agency will make
 3-4     that is estimated to exceed $25,000 in value:
 3-5                 (1)  a brief description of the goods or services to be
 3-6     procured and any applicable state product or service codes for the
 3-7     goods and services;
 3-8                 (2)  the last date on which bids, proposals, or other
 3-9     applicable expressions of interest will be accepted;
3-10                 (3)  the estimated quantity of goods or services to be
3-11     procured;
3-12                 (4)  if applicable, the previous price paid by the
3-13     state agency for the same or similar goods or services;
3-14                 (5)  the estimated date on which the goods or services
3-15     to be procured will be needed; and
3-16                 (6)  the name, business mailing address, and business
3-17     telephone number of the state agency employee a person may contact
3-18     to inquire about [obtain] all necessary information related to
3-19     making a bid or proposal or other  applicable expression of
3-20     interest for the procurement contract.
3-21           SECTION 2.02.  Subchapter A, Chapter 2161, Government Code,
3-22     is amended by adding Section 2161.0015 to read as follows:
3-23           Sec. 2161.0015.  DETERMINING SIZE STANDARDS FOR HISTORICALLY
3-24     UNDERUTILIZED BUSINESSES.  The commission may establish size
3-25     standards that a business may not exceed if it is to be considered
3-26     a historically underutilized business under this chapter.  In
3-27     determining the size standards, the commission shall determine the
 4-1     size at which a business should be considered sufficiently large
 4-2     that the business probably does not significantly suffer from the
 4-3     effects of past discriminatory practices.
 4-4           SECTION 2.03.  Sections 2161.061(b) and (c), Government Code,
 4-5     are amended to read as follows:
 4-6           (b)  As one [part] of its certification procedures, the
 4-7     commission may:
 4-8                 (1)  approve the [another] certification program of one
 4-9     or more local governments in this state that certify [certifies]
4-10     historically underutilized businesses, minority business
4-11     enterprises, women's business enterprises, or disadvantaged
4-12     business enterprises under substantially the same definition, to
4-13     the extent applicable, used by Section 2161.001; and
4-14                 (2)  certify a business certified under the local
4-15     government program as a historically underutilized business under
4-16     this chapter.
4-17           (c)  To maximize the number of certified historically
4-18     underutilized businesses, the commission shall enter into
4-19     agreements with local governments in this state that conduct
4-20     certification programs described by Subsection (b).  The agreements
4-21     must take effect immediately and:
4-22                 (1)  allow for automatic certification of businesses
4-23     certified under the local government program;
4-24                 (2)  provide for the efficient updating of the
4-25     commission database containing information about historically
4-26     underutilized businesses and potential historically underutilized
4-27     businesses; and
 5-1                 (3)  provide for a method by which the commission may
 5-2     efficiently communicate with businesses certified under the local
 5-3     government program and provide those businesses with information
 5-4     about the state historically underutilized business program.  [A
 5-5     municipality, in certifying historically underutilized businesses,
 5-6     may adopt the certification program of the commission, of the
 5-7     federal Small Business Administration, or of another political
 5-8     subdivision or other governmental entity.]
 5-9           SECTION 2.04.  Section 2161.062, Government Code, is amended
5-10     by adding Subsections (d) and (e) to read as follows:
5-11           (d)  The commission shall send historically underutilized
5-12     businesses an orientation package on certification or
5-13     recertification.  The package shall include:
5-14                 (1)  a certificate issued in the historically
5-15     underutilized business's name;
5-16                 (2)  a description of the significance and value of
5-17     certification;
5-18                 (3)  a list of state purchasing personnel;
5-19                 (4)  information regarding electronic commerce
5-20     opportunities;
5-21                 (5)  information regarding the Texas Marketplace
5-22     website; and
5-23                 (6)  additional information about the state procurement
5-24     process.
5-25           (e)  A state agency with a biennial budget that exceeds $10
5-26     million shall designate a staff member to serve as the historically
5-27     underutilized businesses coordinator for the agency during the
 6-1     fiscal year.  The procurement director may serve as the
 6-2     coordinator.  In agencies that employ a historically underutilized
 6-3     businesses coordinator, the position of coordinator, within the
 6-4     agency's structure, must be at least equal to the position of
 6-5     procurement director.  In addition to any other responsibilities,
 6-6     the coordinator shall:
 6-7                 (1)  coordinate training programs for the recruitment
 6-8     and retention of historically underutilized businesses;
 6-9                 (2)  report required information to the commission; and
6-10                 (3)  match historically underutilized businesses with
6-11     key staff within the agency.
6-12           SECTION 2.05.  Section 2161.063(b), Government Code, is
6-13     amended to read as follows:
6-14           (b)  The commission shall assist the Texas Department of
6-15     Economic Development [Commerce] in performing the department's
6-16     duties under Section 481.0068 [481.103].
6-17           SECTION 2.06.  Section 2161.064(b), Government Code, is
6-18     amended to read as follows:
6-19           (b)  The commission at least semiannually shall update the
6-20     directory and provide access to the directory electronically or in
6-21     another form [a copy of the directory] to each state agency.
6-22           SECTION 2.07.  Sections 2161.121(a) and (e), Government Code,
6-23     are amended to read as follows:
6-24           (a)  The commission shall prepare a consolidated report that:
6-25                 (1)  includes the number and dollar amount of contracts
6-26     awarded and paid to historically underutilized businesses certified
6-27     by the commission; [and]
 7-1                 (2)  analyzes the relative level of opportunity for
 7-2     historically underutilized businesses for various categories of
 7-3     acquired goods and services; and
 7-4                 (3)  tracks, by vendor identification number and, to
 7-5     the extent allowed by federal law, by social security number, the
 7-6     graduation rates for historically underutilized businesses that
 7-7     grew to exceed the size standards determined by the commission.
 7-8           (e)  The commission shall send on October 15 of each year a
 7-9     report on the preceding fiscal year to the presiding officer of
7-10     each house of the legislature[, the members of the legislature,]
7-11     and the joint committee.
7-12           SECTION 2.08.  Subchapter B, Chapter 2161, Government Code,
7-13     is amended by adding Sections 2161.065 and 2161.066 to read as
7-14     follows:
7-15           Sec. 2161.065.  MENTOR-PROTEGE PROGRAM.  (a)  The commission
7-16     shall design a mentor-protege program to foster long-term
7-17     relationships between prime contractors and historically
7-18     underutilized businesses and to increase the ability of
7-19     historically underutilized businesses to contract with the state or
7-20     to receive subcontracts under a state contract.  Each state agency
7-21     with a biennial appropriation that exceeds $10 million shall
7-22     implement the program designed by the commission.
7-23           (b)  Participation in the program must be voluntary for both
7-24     the contractor and the historically underutilized business
7-25     subcontractor.
7-26           Sec. 2161.066.  HISTORICALLY UNDERUTILIZED BUSINESS FORUMS.
7-27     (a)  The commission shall design a program of forums in which
 8-1     historically underutilized businesses are invited by state agencies
 8-2     to deliver technical and business presentations that demonstrate
 8-3     their capability to do business with the agency:
 8-4                 (1)  to senior managers and procurement personnel at
 8-5     state agencies that acquire goods and services of a type supplied
 8-6     by the historically underutilized businesses; and
 8-7                 (2)  to contractors with the state who may be
 8-8     subcontracting for goods and services of a type supplied by the
 8-9     historically underutilized businesses.
8-10           (b)  The forums shall be held at state agency offices.
8-11           (c)  Each state agency with a biennial appropriation that
8-12     exceeds $10 million shall participate in the program by sending
8-13     senior managers and procurement personnel to attend relevant
8-14     presentations and by informing the agency's contractors about
8-15     presentations that may be relevant to anticipated subcontracting
8-16     opportunities.
8-17           (d)  Each state agency that has a historically underutilized
8-18     businesses coordinator shall:
8-19                 (1)  design its own program and model the program to
8-20     the extent appropriate on the program developed by the commission
8-21     under this section; and
8-22                 (2)  sponsor presentations by historically
8-23     underutilized businesses at the agency.
8-24           (e)  The commission and each state agency that has a
8-25     historically underutilized businesses coordinator shall
8-26     aggressively identify and notify individual historically
8-27     underutilized businesses regarding opportunities to make a
 9-1     presentation regarding the types of goods and services supplied by
 9-2     the historically underutilized business and shall advertise in
 9-3     appropriate trade publications that target historically
 9-4     underutilized businesses regarding opportunities to make a
 9-5     presentation.
 9-6           SECTION 2.09.  Subchapter C, Chapter 2161, Government Code,
 9-7     is amended by adding Sections 2161.126 and 2161.127 to read as
 9-8     follows:
 9-9           Sec. 2161.126.  EDUCATION AND OUTREACH BY COMMISSION.  Before
9-10     September 1 of each year, the commission shall report to the
9-11     governor, the lieutenant governor, and the speaker of the house of
9-12     representatives on the education and training efforts that the
9-13     commission has made toward historically underutilized businesses.
9-14     The report must include the following as related to historically
9-15     underutilized businesses:
9-16                 (1)  the commission's vision, mission, and philosophy;
9-17                 (2)  marketing materials and other educational
9-18     materials distributed by the commission;
9-19                 (3)  the commission's policy regarding education,
9-20     outreach, and dissemination of information;
9-21                 (4)  goals that the commission has attained during the
9-22     fiscal year;
9-23                 (5)  the commission's goals, objectives, and expected
9-24     outcome measures for each outreach and education event; and
9-25                 (6)  the commission's planned future initiatives on
9-26     education and outreach.
9-27           Sec. 2161.127.  LEGISLATIVE APPROPRIATIONS REQUESTS.  Each
 10-1    state agency must include as part of its legislative appropriations
 10-2    request a detailed report for consideration by the budget
 10-3    committees of the legislature that shows the extent to which the
 10-4    agency complied with this chapter and rules of the commission
 10-5    adopted under this chapter during the two calendar years preceding
 10-6    the calendar year in which the request is submitted.  To the extent
 10-7    the state agency did not comply, the report must demonstrate the
 10-8    reasons for that fact.  The extent to which a state agency complies
 10-9    with this chapter and rules of the commission adopted under this
10-10    chapter is considered a performance measure for purposes of the
10-11    appropriations process.
10-12          SECTION 2.10.  Chapter 2161, Government Code, is amended by
10-13    adding Subchapter F to read as follows:
10-14                       SUBCHAPTER F.  SUBCONTRACTING
10-15          Sec. 2161.251.  APPLICABILITY.  (a)  This subchapter applies
10-16    to all contracts entered into by a state agency with an expected
10-17    value of $100,000 or more, including:
10-18                (1)  contracts for the acquisition of a good or
10-19    service; and
10-20                (2)  contracts for or related to the construction of a
10-21    public building, road, or other public work.
10-22          (b)  This subchapter applies to the contract without regard
10-23    to:
10-24                (1)  whether the contract is otherwise subject to this
10-25    subtitle; or
10-26                (2)  the source of funds for the contract, except that
10-27    to the extent federal funds are used to pay for the contract, this
 11-1    subchapter does not apply if federal law prohibits the application
 11-2    of this subchapter in relation to the expenditure of federal funds.
 11-3          Sec. 2161.252.  AGENCY DETERMINATION REGARDING SUBCONTRACTING
 11-4    OPPORTUNITIES; BUSINESS SUBCONTRACTING PLAN.  (a)  Each state
 11-5    agency that considers entering into a contract with an expected
 11-6    value of $100,000 or more shall, before the agency solicits bids,
 11-7    proposals, offers, or other applicable expressions of interest for
 11-8    the contract, determine whether there will be subcontracting
 11-9    opportunities under the contract. If the state agency determines
11-10    that there is that probability, the agency shall require that each
11-11    bid, proposal, offer, or other applicable expression of interest
11-12    for the contract include a historically underutilized business
11-13    subcontracting plan.
11-14          (b)  When a state agency requires a historically
11-15    underutilized business subcontracting plan under Subsection (a), a
11-16    bid, proposal, offer, or other applicable expression of interest
11-17    for the contract must contain a plan to be considered responsive.
11-18          Sec. 2161.253.  GOOD FAITH COMPLIANCE WITH BUSINESS
11-19    SUBCONTRACTING PLAN.  (a)  When a state agency requires a
11-20    historically underutilized business subcontracting plan under
11-21    Section 2161.252, the awarded contract shall contain, as a
11-22    provision of the contract that must be fulfilled, the plan that the
11-23    contractor submitted in its bid, proposal, offer, or other
11-24    applicable expression of interest for the contract. The contractor
11-25    shall make good faith efforts to implement the plan.
11-26          (b)  To the extent that subcontracts are not contracted for
11-27    as originally submitted in the historically underutilized business
 12-1    subcontracting plan, the contractor shall report to the state
 12-2    agency all the circumstances that explain that fact and describe
 12-3    the good faith efforts made to find and subcontract with another
 12-4    historically underutilized business.
 12-5          (c)  The state agency shall audit the contractor's compliance
 12-6    with the historically underutilized business subcontracting plan.
 12-7    In determining whether the contractor made the required good faith
 12-8    effort, the agency may not consider the success or failure of the
 12-9    contractor to subcontract with historically underutilized
12-10    businesses in any specific quantity. The agency's determination is
12-11    restricted to considering factors indicating good faith.
12-12          (d)  If a determination is made that the contractor failed to
12-13    implement the plan in good faith, the agency, in addition to any
12-14    other remedies, may bar the contractor from further contracting
12-15    opportunities with the agency.
12-16          (e)  The commission shall adopt rules to administer this
12-17    subchapter.
12-18          SECTION 2.11.  Subchapter F, Chapter 2161, Government Code,
12-19    as added by this Act, applies only to subcontracting under a
12-20    contract entered into by a state agency for which the request for
12-21    bids, proposals, offers, or other applicable expressions of
12-22    interest is disseminated on or after April 1, 2000.
12-23          Explanation:  This addition is necessary to make changes in
12-24    the state's historically underutilized businesses purchasing
12-25    program.
12-26          (5)  Senate Rule 12.03(4) is suspended to permit the
12-27    committee to add a new Article 3 to the bill to read as follows:
 13-1              ARTICLE 3.  PROVISIONS RELATING TO STATE AGENCY
 13-2               CONTINGENCY FEE CONTRACTS FOR LEGAL SERVICES
 13-3          SECTION 3.01.  (a)  The legislature finds that:
 13-4                (1)  a payment to a private attorney or law firm under
 13-5    a contingent fee contract for legal services entered into by a
 13-6    state governmental entity constitutes compensation paid to a public
 13-7    contractor for which the legislature must provide by law under
 13-8    Section 44, Article III, Texas Constitution; and
 13-9                (2)  funds recovered by a state governmental entity in
13-10    litigation or in settlement of a matter that could have resulted in
13-11    litigation are state funds that must be deposited in the state
13-12    treasury and made subject to the appropriations process.
13-13          (b)  It is the policy of this state that all funds recovered
13-14    by a state governmental entity from an opposing party in litigation
13-15    or in settlement of a matter that could have resulted in
13-16    litigation, including funds designated as damages, amounts adjudged
13-17    or awarded, attorney's fees, costs, interest, settlement proceeds,
13-18    or expenses, are the property of the state governmental entity that
13-19    must be deposited in the manner that public funds of the entity
13-20    must be deposited.  Legal fees and expenses may be paid from the
13-21    recovered funds under a contingent fee contract for legal services
13-22    only after the funds have been appropriately deposited and only in
13-23    accordance with applicable law.
13-24          SECTION 3.02.  Subchapter F, Chapter 404, Government Code, is
13-25    amended by adding Section 404.097 to read as follows:
13-26          Sec. 404.097.  DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR
13-27    SETTLEMENT.  (a)  Notwithstanding Section 404.093, this section
 14-1    applies by its terms to each state governmental entity.
 14-2          (b)  In this section, "contingent fee contract" and "state
 14-3    governmental entity" have the meanings assigned by Section
 14-4    2254.101.
 14-5          (c)  All funds recovered by a state governmental entity in
 14-6    litigation or in settlement of a matter that could have resulted in
 14-7    litigation, including funds designated as damages, amounts adjudged
 14-8    or awarded, attorney's fees, costs, interest, settlement proceeds,
 14-9    or expenses, are public funds of the state or the state
14-10    governmental entity and shall be deposited in the state treasury to
14-11    the credit of the appropriate fund or account.
14-12          (d)  Legal fees and expenses may be paid from the recovered
14-13    funds under a contingent fee contract for legal services only:
14-14                (1)  after the funds are deposited in accordance with
14-15    this section; and
14-16                (2)  in accordance with Subchapter C, Chapter 2254.
14-17          SECTION 3.03.  Chapter 2254, Government Code, is amended by
14-18    adding Subchapter C to read as follows:
14-19         SUBCHAPTER C.  CONTINGENT FEE CONTRACT FOR LEGAL SERVICES
14-20          Sec. 2254.101.  DEFINITIONS.  In this subchapter:
14-21                (1)  "Contingent fee" means that part of a fee for
14-22    legal services, under a contingent fee contract, the amount or
14-23    payment of which is contingent on the outcome of the matter for
14-24    which the services were obtained.
14-25                (2)  "Contingent fee contract" means a contract for
14-26    legal services under which the amount or the payment of the fee for
14-27    the services is contingent in whole or in part on the outcome of
 15-1    the matter for which the services were obtained.
 15-2                (3)  "State governmental entity":
 15-3                      (A)  means the state or a board, commission,
 15-4    department, office, or other agency in the executive branch of
 15-5    state government created under the constitution or a statute of the
 15-6    state, including an institution of higher education as defined by
 15-7    Section 61.003, Education Code;
 15-8                      (B)  includes the state when a state officer is
 15-9    bringing a parens patriae proceeding in the name of the state; and
15-10                      (C)  does not include a state agency or state
15-11    officer acting as a receiver, special deputy receiver, liquidator,
15-12    or liquidating agent in connection with the administration of the
15-13    assets of an insolvent entity under Article 21.28, Insurance Code,
15-14    or Chapter 36, 66, 96, or 126, Finance Code.
15-15          Sec. 2254.102.  APPLICABILITY.  (a)  This subchapter applies
15-16    only to a contingent fee contract for legal services entered into
15-17    by a state governmental entity.
15-18          (b)  The legislature by this subchapter is providing, in
15-19    accordance with Section 44, Article III, Texas Constitution, for
15-20    the manner in which and the situations under which a state
15-21    governmental entity may compensate a public contractor under a
15-22    contingent fee contract for legal services.
15-23          Sec. 2254.103.  CONTRACT APPROVAL; SIGNATURE.  (a)  A state
15-24    governmental entity that has authority to enter into a contract for
15-25    legal services in its own name may enter into a contingent fee
15-26    contract for legal services only if:
15-27                (1)  the governing body of the state governmental
 16-1    entity approves the contract and the approved contract is signed by
 16-2    the presiding officer of the governing body; or
 16-3                (2)  for an entity that is not governed by a
 16-4    multimember governing body, the elected or appointed officer who
 16-5    governs the entity approves and signs the contract.
 16-6          (b)  The attorney general may enter into a contingent fee
 16-7    contract for legal services in the name of the state in relation to
 16-8    a matter that has been referred to the attorney general under law
 16-9    by another state governmental entity only if the other state
16-10    governmental entity approves and signs the contract in accordance
16-11    with Subsection (a).
16-12          (c)  A state governmental entity, including the state, may
16-13    enter into a contingent fee contract for legal services that is not
16-14    described by Subsection (a) or (b) only if the governor approves
16-15    and signs the contract.
16-16          (d)  Before approving the contract, the governing body,
16-17    elected or appointed officer, or governor, as appropriate, must
16-18    find that:
16-19                (1)  there is a substantial need for the legal
16-20    services;
16-21                (2)  the legal services cannot be adequately performed
16-22    by the attorneys and supporting personnel of the state governmental
16-23    entity or by the attorneys and supporting personnel of another
16-24    state governmental entity; and
16-25                (3)  the legal services cannot reasonably be obtained
16-26    from attorneys in private practice under a contract providing only
16-27    for the payment of hourly fees, without regard to the outcome of
 17-1    the matter, because of the nature of the matter for which the
 17-2    services will be obtained or because the state governmental entity
 17-3    does not have appropriated funds available to pay the estimated
 17-4    amounts required under a contract providing only for the payment of
 17-5    hourly fees.
 17-6          (e)  Before entering into a contingent fee contract for legal
 17-7    services in which the estimated amount that may be recovered
 17-8    exceeds $100,000, a state governmental entity that proposes to
 17-9    enter into the contract in its own name or in the name of the state
17-10    must also notify the Legislative Budget Board that the entity
17-11    proposes to enter into the contract, send the board copies of the
17-12    proposed contract, and send the board information demonstrating
17-13    that the conditions required by Subsection (d)(3) exist.  If the
17-14    state governmental entity finds under Subsection (d)(3) that the
17-15    state governmental entity does not have appropriated funds
17-16    available to pay the estimated amounts required under a contract
17-17    for the legal services providing only for the payment of hourly
17-18    fees, the state governmental entity may not enter into the proposed
17-19    contract in its own name or in the name of the state unless the
17-20    Legislative Budget Board finds that the state governmental entity's
17-21    finding with regard to available appropriated funds is correct.
17-22          (f)  A contingent fee contract for legal services that is
17-23    subject to Subsection (e) and requires a finding by the Legislative
17-24    Budget Board is void unless the board has made the finding required
17-25    by Subsection (e).
17-26          Sec. 2254.104.  TIME AND EXPENSE RECORDS REQUIRED; FINAL
17-27    STATEMENT.  (a)  The contract must require that the contracting
 18-1    attorney or law firm keep current and complete written time and
 18-2    expense records that describe in detail the time and money spent
 18-3    each day in performing the contract.
 18-4          (b)  The contracting attorney or law firm shall permit the
 18-5    governing body or governing officer of the state governmental
 18-6    entity, the attorney general, and the state auditor each to inspect
 18-7    or obtain copies of the time and expense records at any time on
 18-8    request.
 18-9          (c)  On conclusion of the matter for which legal services
18-10    were obtained, the contracting attorney or law firm shall provide
18-11    the contracting state governmental entity with a complete written
18-12    statement that describes the outcome of the matter, states the
18-13    amount of any recovery, shows the contracting attorney's or law
18-14    firm's computation of the amount of the contingent fee, and
18-15    contains the final complete time and expense records required by
18-16    Subsection (a).  The complete written statement required by this
18-17    subsection is public information under Chapter 552 and may not be
18-18    withheld from a requestor under that chapter under Section 552.103
18-19    or any other exception from required disclosure.
18-20          (d)  This subsection does not apply to the complete written
18-21    statement required by Subsection (c).  All time and expense records
18-22    required under this section are public information subject to
18-23    required public disclosure under Chapter 552.  Information in the
18-24    records may be withheld from a member of the public under Section
18-25    552.103 only if, in addition to meeting the requirements of Section
18-26    552.103, the chief legal officer or employee of the state
18-27    governmental entity determines that withholding the information is
 19-1    necessary to protect the entity's strategy or position in pending
 19-2    or reasonably anticipated litigation.  Information withheld from
 19-3    public disclosure under this subsection shall be segregated from
 19-4    information that is subject to required public disclosure.
 19-5          Sec. 2254.105.  CERTAIN GENERAL CONTRACT REQUIREMENTS.  The
 19-6    contract must:
 19-7                (1)  provide for the method by which the contingent fee
 19-8    is computed;
 19-9                (2)  state the differences, if any, in the method by
19-10    which the contingent fee is computed if the matter is settled,
19-11    tried, or tried and appealed;
19-12                (3)  state how litigation and other expenses will be
19-13    paid and, if reimbursement of any expense is contingent on the
19-14    outcome of the matter or reimbursable from the amount recovered in
19-15    the matter, state whether the amount recovered for purposes of the
19-16    contingent fee computation is considered to be the amount obtained
19-17    before or after expenses are deducted;
19-18                (4)  state that any subcontracted legal or support
19-19    services performed by a person who is not a contracting attorney or
19-20    a partner, shareholder, or employee of a contracting attorney or
19-21    law firm is an expense subject to reimbursement only in accordance
19-22    with this subchapter; and
19-23                (5)  state that the amount of the contingent fee and
19-24    reimbursement of expenses under the contract will be paid and
19-25    limited in accordance with this subchapter.
19-26          Sec. 2254.106.  CONTRACT REQUIREMENTS: COMPUTATION OF
19-27    CONTINGENT FEE; REIMBURSEMENT OF EXPENSES.  (a)  The contract must
 20-1    establish the reasonable hourly rate for work performed by an
 20-2    attorney, law clerk, or paralegal who will perform legal or support
 20-3    services under the contract based on the reasonable and customary
 20-4    rate in the relevant locality for the type of work performed and on
 20-5    the relevant experience, demonstrated ability, and standard hourly
 20-6    billing rate, if any, of the person performing the work.  The
 20-7    contract may establish the reasonable hourly rate for one or more
 20-8    persons by name and may establish a rate schedule for work
 20-9    performed by unnamed persons.  The highest hourly rate for a named
20-10    person or under a rate schedule may not exceed $1,000 an hour.
20-11    This subsection applies to subcontracted work performed by an
20-12    attorney, law clerk, or paralegal who is not a contracting attorney
20-13    or a partner, shareholder, or employee of a contracting attorney or
20-14    law firm as well as to work performed by a contracting attorney or
20-15    by a partner, shareholder, or employee of a contracting attorney or
20-16    law firm.
20-17          (b)  The contract must establish a base fee to be computed as
20-18    follows.  For each attorney, law clerk, or paralegal who is a
20-19    contracting attorney or a partner, shareholder, or employee of a
20-20    contracting attorney or law firm, multiply the number of hours the
20-21    attorney, law clerk, or paralegal works in providing legal or
20-22    support services under the contract times the reasonable hourly
20-23    rate for the work performed by that attorney, law clerk, or
20-24    paralegal.  Add the resulting amounts to obtain the base fee.  The
20-25    computation of the base fee may not include hours or costs
20-26    attributable to work performed by a person who is not a contracting
20-27    attorney or a partner, shareholder, or employee of a contracting
 21-1    attorney or law firm.
 21-2          (c)  Subject to Subsection (d), the contingent fee is
 21-3    computed by multiplying the base fee by a multiplier.  The contract
 21-4    must establish a reasonable multiplier based on any expected
 21-5    difficulties in performing the contract, the amount of expenses
 21-6    expected to be risked by the contractor, the expected risk of no
 21-7    recovery, and any expected long delay in recovery.  The multiplier
 21-8    may not exceed four without prior approval by the legislature.
 21-9          (d)  In addition to establishing the method of computing the
21-10    fee under Subsections (a), (b), and (c), the contract must limit
21-11    the amount of the contingent fee to a stated percentage of the
21-12    amount recovered.  The contract may state different percentage
21-13    limitations for different ranges of possible recoveries and
21-14    different percentage limitations in the event the matter is
21-15    settled, tried, or tried and appealed.  The percentage limitation
21-16    may not exceed 35 percent without prior approval by the
21-17    legislature.  The contract must state that the amount of the
21-18    contingent fee will not exceed the lesser of the stated percentage
21-19    of the amount recovered or the amount  computed under Subsections
21-20    (a), (b), and (c).
21-21          (e)  The contract also may:
21-22                (1)  limit the amount of expenses that may be
21-23    reimbursed; and
21-24                (2)  provide that the amount or payment of only part of
21-25    the fee is contingent on the outcome of the matter for which the
21-26    services were obtained, with the amount and payment of the
21-27    remainder of the fee payable on a regular hourly rate basis without
 22-1    regard to the outcome of the matter.
 22-2          (f)  Except as provided by Section 2254.107, this section
 22-3    does not apply to a contingent fee contract for legal services:
 22-4                (1)  in which the expected amount to be recovered and
 22-5    the actual amount recovered do not exceed $100,000; or
 22-6                (2)  under which a series of recoveries is contemplated
 22-7    and the amount of each individual recovery is not expected to and
 22-8    does not exceed $100,000.
 22-9          (g)  This section applies to a contract described by
22-10    Subsection (f) for each individual recovery under the contract that
22-11    actually exceeds $100,000, and the contract must provide for
22-12    computing the fee in accordance with this section for each
22-13    individual recovery that actually exceeds $100,000.
22-14          Sec. 2254.107.  MIXED HOURLY AND CONTINGENT FEE CONTRACTS;
22-15    REIMBURSEMENT FOR SUBCONTRACTED WORK. (a)  This section applies
22-16    only to a contingent fee contract:
22-17                (1)  under which 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; or
22-22                (2)  under which reimbursable expenses are incurred for
22-23    subcontracted legal or support services performed by a person who
22-24    is not a contracting attorney or a partner, shareholder, or
22-25    employee of a contracting attorney or law firm.
22-26          (b)  Sections 2254.106(a) and (e) apply to the contract
22-27    without regard to the expected or actual amount of recovery under
 23-1    the contract.
 23-2          (c)  The limitations prescribed by Section 2254.106 on the
 23-3    amount of the contingent fee apply to the entire amount of the fee
 23-4    under the contingent fee contract, including the part of the fee
 23-5    the amount and payment of which is not contingent on the outcome of
 23-6    the matter.
 23-7          (d)  The limitations prescribed by Section 2254.108 on
 23-8    payment of the fee apply only to payment of the contingent portion
 23-9    of the fee.
23-10          Sec. 2254.108.  FEE PAYMENT AND EXPENSE REIMBURSEMENT.
23-11    (a)  Except as provided by Subsection (b), a contingent fee and a
23-12    reimbursement of an expense under a contract with a state
23-13    governmental entity is payable only from funds the legislature
23-14    specifically appropriates to pay the fee or reimburse the expense.
23-15    An appropriation to pay the fee or reimburse the expense must
23-16    specifically describe the individual contract, or the class of
23-17    contracts classified by subject matter, on account of which the fee
23-18    is payable or expense is reimbursable.  A general reference to
23-19    contingent fee contracts for legal services or to contracts subject
23-20    to this subchapter or a similar general description is not a
23-21    sufficient description for purposes of this subsection.
23-22          (b)  If the legislature has not specifically appropriated
23-23    funds for paying the fee or reimbursing the expense, a state
23-24    governmental entity may pay the fee or reimburse the expense from
23-25    other available funds only if:
23-26                (1)  the legislature is not in session; and
23-27                (2)  the Legislative Budget Board gives its prior
 24-1    approval for that payment or reimbursement under Section 69,
 24-2    Article XVI, Texas Constitution, after examining the statement
 24-3    required under Section 2254.104(c) and determining that the
 24-4    requested payment and the contract under which payment is requested
 24-5    meet all the requirements of this subchapter.
 24-6          (c)  A payment or reimbursement under the contract may not be
 24-7    made until:
 24-8                (1)  final and unappealable arrangements have been made
 24-9    for depositing all recovered funds to the credit of the appropriate
24-10    fund or account in the state treasury; and
24-11                (2)  the state governmental entity and the state
24-12    auditor have received from the contracting attorney or law firm the
24-13    statement required under Section 2254.104(c).
24-14          (d)  Litigation and other expenses payable under the
24-15    contract, including expenses attributable to attorney, paralegal,
24-16    accountant, expert, or other professional work performed by a
24-17    person who is not a contracting attorney or a partner, shareholder,
24-18    or employee of a contracting attorney or law firm, may be
24-19    reimbursed only if the state governmental entity and the state
24-20    auditor determine that the expenses were reasonable, proper,
24-21    necessary, actually incurred on behalf of the state governmental
24-22    entity, and paid for by the contracting attorney or law firm.  The
24-23    contingent fee may not be paid until the state auditor has reviewed
24-24    the relevant time and expense records and verified that the hours
24-25    of work on which the fee computation is based were actually worked
24-26    in performing reasonable and necessary services for the state
24-27    governmental entity under the contract.
 25-1          Sec. 2254.109.  EFFECT ON OTHER LAW.  (a)  This subchapter
 25-2    does not limit the right of a state governmental entity to recover
 25-3    fees and expenses from opposing parties under other law.
 25-4          (b)  Compliance with this subchapter does not relieve a
 25-5    contracting attorney or law firm of an obligation or responsibility
 25-6    under other law, including under the Texas Disciplinary Rules of
 25-7    Professional Conduct.
 25-8          (c)  A state officer, employee, or governing body, including
 25-9    the attorney general, may not waive the requirements of this
25-10    subchapter or prejudice the interests of the state under this
25-11    subchapter.  This subchapter does not waive the state's sovereign
25-12    immunity from suit or its immunity from suit in federal court under
25-13    the Eleventh Amendment to the federal constitution.
25-14          SECTION 3.04.  The changes in law made by this article apply
25-15    only to a contract entered into on or after September 1, 1999.
25-16          Explanation:  This addition is necessary to regulate matters
25-17    relating to contingent fee contracts for legal services entered
25-18    into by state agencies.