SRC-JEC C.S.H.B. 2359 78(R)BILL ANALYSIS


Senate Research CenterC.S.H.B. 2359
78R17168 E
By: Ritter (Armbrister) 
State Affairs
5/21/2003
Committee Report (Substituted)

DIGEST AND PURPOSE 

The Employees Retirement System of Texas (ERS) administers a retirement
system providing service, disability, and death benefits for state
employees and public officers; two retirement systems providing service,
disability, and death benefits for district and appellate judges; an
insurance program for state officers and employees, including employees of
most institutions of higher education; a program providing death benefits
for the survivors of public service personnel; and programs providing
deferred compensation benefits.  C.S.H.B. 2359 
clarifies existing law as amended by the 77th Texas Legislature and makes
minor changes in the laws administered by ERS to attempt to make the
benefits provided by ERS more uniform and consistent among programs and
systems. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Employees Retirement
System of Texas in SECTION 5 (Section 609.508, Government Code) of this
bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 609.008, Government Code, to provide that
interest earned on an employee's deferred amounts and investment income
deposited in any of the deferred compensation trust funds as defined by
Section 609.101, or to which Section 609.512 applies, is credited to the
employee.  Removes a specific reference to the TexaSaver trust fund. 

SECTION 2.  Amends Sections 609.011 and 609.012, Government Code, as
follows: 

Sec. 609.011.  New heading:  NOTIFICATION BY PLAN ADMINISTRATOR.  (a)
Removes a reference to a 457 plan and replaces it with "plan established
under this chapter." 

(b)  Specifies that a plan administrator is not liable to a participating
employee for a loss resulting from the failure to notify the employee
under this section. 

Sec. 609.012.  New heading:  TRANSFER FROM A PLAN VENDOR.  Prohibits a
vendor from charging a fee or penalty as the result of a plan
administrator's transfer under this section.  Makes conforming changes. 

SECTION 3.  Amends Section 609.502, Government Code, as follows:

(a)  Provides that the board of trustees (board) of the Employees
Retirement System of Texas (ERS) is the trustee and the plan administrator
of a 401(k) plan and a 457 plan, collectively known as the TexaSaver
program, established under this subchapter. 

(b)  Removes a provision establishing ERS as the administrator of a 457
plan, redesignates the text of Subsection (c) as (b), and redesignates
subsequent subsections accordingly. 

SECTION 4.  Amends Section 609.505(a), Government Code, to authorize a
third party administrator approved by the ERS board, in addition to the
ERS board, to contract with a vendor qualified to participate in a
deferred compensation plan, in accordance with rules adopted under  this
subchapter. 

SECTION 5.  Amends Section 609.508, Government Code, as follows:

(a)  Created from existing text.  Authorizes the ERS board to adopt rules,
including plans and procedures, and orders necessary to carry out the
purposes of this subchapter, including rules or orders relating to the
regulation of the practices of agents employed by vendors and a
participating employee's use and reimbursement of investment advisors
participating in the program. 

(b)  Authorizes the plan administrator of the TexaSaver 401(k) or the
TexaSaver 457 plan to adopt rules and procedures to allow a participating
employee, subject to applicable requirements of the Internal Revenue Code
of 1986, to obtain a loan from the employee's account. 

SECTION 6.  Amends Sections 609.512(a) and (b), Government Code, to make
conforming changes. 

SECTION 7.  Reenacts Section 615.023, Government Code, as amended by
Chapter 1231 and repealed by Chapter 1438, Acts of the 77th Legislature,
Regular Session, 2001, as follows: 

Sec. 615.023.  PAYMENT TO SURVIVING MINOR CHILD.  (a)  Requires the state
to pay to the duly appointed or qualified guardian or other legal
representative of an eligible surviving minor child a certain amount. 
  
(b)  Provides that a child's entitlement to assistance payable under this
section ends on the child's 18th birthday.  Requires, at that time,
payments to any other surviving minor children to be adjusted, as
necessary, to conform to the amounts payable under Subsection (a). 

(c)  Provides that a payment under this section is in addition to any
payment made under Section 615.022. 

SECTION 8.  Amends Section 615.045(a), Government Code, to provide that
records of certain individuals and survivors that are in the custody of
ERS or an administering firm as defined by Section 1551.003, Insurance
Code, rather than the Texas Employees Uniform Group Insurance Benefits Act
(Article 3.50-2, Insurance Code), or another governmental agency acting
with or on behalf of ERS are confidential and not subject to public
disclosure, and provides that ERS is not required to accept or comply with
a request for a record or information about a record or to seek an opinion
from the attorney general, because the records are exempt from the public
information provisions of Chapter 552 (Public Information), except as
otherwise provided by this section. 

SECTION 9.  Amends Section 659.102, Government Code, by amending
Subsection (c) and adding Subsection (d), as follows: 

(c)  Authorizes the inclusion of a qualified transportation benefit in the
supplemental optional benefits program.  

(d)  Provides that a qualified transportation benefit is a transportation
benefit meeting the requirements of Section 132(f), Internal Revenue Code
of 1986.  Requires ERS to determine a fee or charge that may be paid as a
qualified transportation benefit. 

SECTION 10.  Amends Section 811.001(12), Government Code, to redefine
"occupational death or disability." 

SECTION 11.  Amends Subchapter A, Chapter 811, Government Code, by adding
Sections 811.007 and 811.008, as follows: 

Sec. 811.007.  IMMUNITY FROM LIABILITY.  Provides that the board,
executive  director, and employees of ERS are not liable for any action
taken or omission made or suffered by them in good faith in the
performance of any duty in connection with any program or system
administered by ERS. 

Sec. 811.008.  INSURANCE.  Authorizes the ERS board, notwithstanding any
other law, to self-insure or purchase any insurance in amounts the ERS
board considers reasonable and prudent.  

SECTION 12.  Amends Section 812.003(a), Government Code, to delete
"persons disqualified from membership under Section 812.004" from the
exceptions to membership in the employee class of ERS. 

SECTION 13.  Amends Section 812.203, Government Code, as follows:

Sec. 812.203.  BENEFITS AFFECTED.  (a) Redesignated from former Subsection
(d) requiring ERS to suspend annuity payments to a person for service that
was credited in that class, until the person no longer holds that
position, if a retiree takes the oath for a position included in the
elected class of membership.  Deletes former Subsection (c), relating to
the time during which retirement benefits are suspended. 

(b)  Provides that time during which annuity payments are suspended as
provided by this section does not reduce the number of months payments are
to be made under an optional benefit selection providing for a specific
amount of benefits for a guaranteed number of months after retirement. 

  (c) Redesignated from former Subsection (e).  

SECTION 14.  Amends the heading to Section 813.104, Government Code, to
read as follows: 

Sec. 813.104.  ALTERNATIVE PAYMENTS AND METHODS TO ESTABLISH OR
REESTABLISH SERVICE CREDIT. 

SECTION 15.  Amends Section 813.104, Government Code,  by adding
Subsection (e), to 
authorize ERS to provide for the electronic filing of agreements to
establish or reestablish service credit.  Provides that in this
subsection, "electronic filing" has the meaning assigned by Section
814.010(a). 

SECTION 16.  Amends Subchapter A, Chapter 814, Government Code,  by adding
Section 814.010, as follows: 

Sec. 814.010.  ELECTRONIC FILING OF BENEFICIARY DESIGNATION.  (a) Defines
"electronic filing." 

(b)  Authorizes a person entitled to designate a beneficiary under any
system or program administered by ERS to make the designation by
electronic filing under procedures adopted by ERS. 

SECTION 17.  Amends Section 814.104(b), Government Code, to remove from
those peace officers eligible to retire and receive a service retirement
annuity an employee of the Railroad Commission of Texas who is licensed by
the Commission on Law Enforcement Officer Standards and Education and has
served at least five years as an investigator for the oil field theft
detection division. 

SECTION 18.  Amends Section 814.108(f), Government Code, to replace the
term "sex" with "gender." 

SECTION 19.  Amends Section 814.203, Government Code,  as follows:

Sec. 814.203.  CERTIFICATION OF DISABILITY.  Removes the condition that "a
member should be retired" from the medical board's determination of
factors in issuing a certification of disability. 

SECTION 20.  Amends Sections 814.207(a) and (e), Government Code, to make
conforming and nonsubstantive changes. 

SECTION 21.  Amends Section 814.603, Government Code, as follows:

Sec. 814.603.  New heading:  SUPPLEMENTAL PAYMENTS .  (a)  Authorizes,
rather than requires, ERS to make a supplemental payment as provided by
this section, rather than Subsection (d), to persons whose annuities are
described by Section 814.107, 814.207, 814.305, or 814.601(a) and that are
based on service retirements, disability retirements, or deaths.  Provides
that a supplemental payment made under this section is in addition to the
regular monthly annuity payment.  Deletes text regarding a person who
receives an annuity.  Makes a conforming change. 

(b)  Requires the board of trustees (board) of ERS to determine the amount
and timing of a supplemental payment and the manner in which the payment
is made. 

(c)  Creates this subsection from the existing text of Subsection (b).
Deletes former Subsection (c) authorizing the board to adopt rules to
implement the payment, including rules that govern the timing of the
supplemental payment described by Subsection (a).  Deletes Subsection (d),
requiring ERS to make a supplemental payment under this section in the
fiscal year ending August 31, 1997, and authorizing the board by rule to
authorize similar supplemental payments in succeeding fiscal years, if the
payments are in compliance with Section 811.006. 

SECTION 22.  Amends Section 815.008(c), Government Code, to replace the
term "chairman" with "presiding officer." 

SECTION 23.  Amends Section 815.103, Government Code, by adding Subsection
(f), to provide that Chapter 412 (State Office of Risk Management), Labor
Code, does not apply to ERS.  Authorizes the ERS board to acquire services
described by that chapter in any manner or amount the ERS board considers
reasonable. 

SECTION 24.  Amends Section 815.201, Government Code, as follows:

Sec. 815.201.  New heading:  PRESIDING OFFICER.  Requires the board to
elect a presiding officer from the membership of the board.  Makes a
conforming change. 

SECTION 25.  Amends Section 815.202(c), Government Code, to require that
in order to be eligible to serve as the executive director, a person must
be a citizen of the United States and have been a resident, rather than
citizen, of the state for the three years immediately preceding the
person's appointment and have executive ability and experience to carry
out the duties of the office. 

SECTION 26.  Amends Section 815.207(b), Government Code, to make a
conforming change. 

SECTION 27.  Amends Section 815.307, Government Code, to provide that a
determination of whether the ERS board has exercised prudence with respect
to an investment decision must be made taking into consideration the
investment of all assets of the trust or all assets of the collective
investment vehicle, as applicable, over which the ERS board has management
and control, rather than considering the prudence of a single investment
of the trust or the collective investment vehicle, as applicable.  Deletes
a provision that investment decisions are subject to the standard provided
in the Texas Trust Code by Section 113.056(a), Property Code. 

SECTION 28.  Amends Section 815.503(a), Government Code, to provide that
ERS is not required to accept or comply with a request for a record or
information about a record or to seek  an opinion from the attorney
general, because the records are exempt from the public access provisions
of Chapter 552, except as otherwise provided by this section. 

SECTION 29.  Amends Section 815.511, Government Code, as follows:

(a)  Authorizes a person aggrieved by a decision of ERS relating to any
program or system administered by ERS under this code denying or limiting
membership, service credit, or eligibility for or the amount of benefits
payable under the program or system to appeal the decision to the ERS
board. 

(b)  Authorizes the executive director of the ERS (executive director) or
the executive director's designee to refer an appeal made under Subsection
(a) to the State Office of Administrative Hearings (SOAH) for a hearing,
or to employ, select, or contract for the services of an administrative
law judge or hearing examiner not affiliated with SOAH to conduct a
hearing.  Provides that this subsection prevails over any other law to the
extent of any conflict. 

(c)  Provides that an appeal under this section is considered to be a
contested case under Chapter 2001 (Administrative Procedure).  Provides
that the appellant in a contested case under this section has the burden
of proof on all issues, including issues in the nature of an affirmative
defense. 

(d)  Authorizes the ERS board in its sole discretion to make a final
decision on a contested case under this section.  Authorizes the ERS
board, notwithstanding any other law, in its sole discretion, to modify,
refuse to accept, or delete any proposed finding of fact or conclusion of
law contained in a certain proposal.  Authorizes the ERS board to delegate
its authority under this subsection to the executive director, and
authorizes the executive director to delegate the authority to another
employee of ERS. 

(e)  Authorizes ERS and a person aggrieved by a decision of ERS,
notwithstanding Subsections (c) and (d), at any time, to informally
negotiate an award of benefits. Prohibits negotiated benefits from
exceeding the maximum benefits otherwise available or required by law. 

(f)  Entitles a person aggrieved by a final decision of ERS in a contested
case under this section to judicial review under Chapter 2001.  Provides
that venue of the appeal is only in a district court in Travis County.
Deletes much of the existing text of Subsection (b), and redesignates the
remaining text of Subsection (b) as part of Subsection (f). 

Deletes the existing text of Subsections (c) and (d).

SECTION 30.  Amends Section 838.103(b), Government Code,  to remove
"currently contributes to the retirement system" from the eligibility
requirements  for an individual to establish military service credit. 
  
SECTION 31.  Amends Section 838.106(a), Government Code, to make a
conforming change. 

SECTION 32.  Amends Section 840.303, Government Code, to make conforming
changes. 

SECTION 33.  Amends Section 1551.063(a), Insurance Code, as effective June
1, 2003, to make conforming changes. 

SECTION 34.  Amends Section 1551.102(d), Insurance Code, as effective June
1, 2003, to include retirement under the optional retirement program with
at least 10 years of eligible service, and a "disability" retirement
annuity in relation to eligibility to participate in the group benefits
program as provided by Subsection (a).  

SECTION 35.  (a)  Conforms Section 1551.205, Insurance Code as effective
June 1,2003, to Section 30, Chapter 1231, Acts of the 77th Legislature,
Regular Session, 2001, and further  amends it, as follows: 

(a)  Creates the subsection from existing text.  Prohibits the ERS board
from contracting for or providing a coverage plan that provides coverage
for serious mental illness that is less extensive than the minium coverage
for serious mental illness required by Section 3, Article 3.51-14, rather
than less extensive than the coverage provided for any physical illness. 

(b)  Prohibits the ERS board from contracting for or providing a coverage
plan that excludes from participation in the network a general hospital
that is located in a county, all or part of which is located within the
geographical service area of the health coverage plan, in which at least
two, but not more than four, general hospitals are located, and agrees to
provide medical and health care services under the plan subject to the
same terms and conditions as other hospital providers under the plan. 

(b)  Repealer:  Section 30 (making the same changes regarding serious
mental health coverage as above), Chapter 1231, Acts of the 77th
Legislature, Regular Session, 2001. 

SECTION 36.  Amends Section 1551.209, Insurance Code, as effective June 1,
2003, as follows: 

Sec. 1551.209.  New heading:  COVERAGE EXEMPT FROM INSURANCE LAW. Provides
that a coverage plan provided under this chapter is exempt from any other
insurance law, including common law, that does not expressly apply to the
plan or this chapter.  Deletes references to self-funded plans. 

SECTION 37.  Conforms  Section 1551.351(d), Insurance Code, as effective
June 1, 2003, to Section 33, Chapter 1231, Acts of the 77th Legislature,
Regular Session, 2001, and further amends it to make conforming changes. 

SECTION 38.  Amends Section 1551.355(b), Insurance Code, as effective June
1, 2003, to make conforming changes. 

SECTION 39.  Conforms Section 1551.356, Insurance Code, as effective June
1, 2003, to Section 29, Chapter 1231, Acts of the 77th Legislature,
Regular Session, 2001, and further amends it as follows: 

(a)  Created from existing text.  

(b)  Provides that a person has no standing to appeal a determination of
the executive director under this subchapter or to pursue a private cause
of action against the state, the ERS board, ERS, the executive director,
an administering firm, or an employee of any of those persons based on a
determination or the implementation by the ERS board or executive director
of the type or scope of plan design features under the group benefits
program. 

SECTION 40.  Amends Section 1551.357, Insurance Code, as effective June 1,
2003, by amending Subsection (a) and adding Subsection (d), as follows: 

(a)  Makes conforming changes.

(d)  Provides that the appellant in a contested case under this subchapter
has the burden of proof on all issues, including issues in the nature of
an affirmative defense. 

SECTION 41.  Amends Section 1551.359, Insurance Code, as effective June 1,
2003, as follows: 

Sec. 1551.359.  New heading:  JUDICIAL REVIEW.  Entitles a person
aggrieved by a final decision of ERS in a contested case under this
subchapter to judicial review of the decision.  Provides that venue of
appeal under this subchapter is only in a district court in  Travis
County. 

SECTION 42.  (a)  Provides that the change in law made by this Act to
Section 1551.102(d), Insurance Code, applies only to a person who was not
participating in the program provided by Chapter 1551, Insurance Code, as
an annuitant on the effective date of this Act. 

(b)  Provides that the changes in law made by this Act to Section 815.511,
Government Code, and Sections 1551.355 and 1551.357, Insurance Code, as
effective June 1, 2003, prevail over any other Act of the 78th
Legislature, Regular Session, 2003, regardless of the relative dates of
enactment, that purports to deprive ERS of the powers described by the
above statutes, and provides that to that extent that other Act has no
effect. 

(c)  Provides that the changes in law made by this Act to Section 815.511,
Government Code, and Section 1551.359, Insurance Code, prevail over any
other Act of the 78th Legislature, Regular Session, 2003, regardless of
the relative dates of enactment, that purports to establish venue for
judicial review of a final decision in a contested case by the ERS board,
and provides that to that extent that other Act has no effect. 

(d)  Makes application of the changes in law made by this Act to Section
811.001(12), Government Code, prospective. 

SECTION 43.  Repealers:

(1)  Section 609.515 (Fiduciary Insurance), Government Code.

(2)  Section 805.002(e) (regarding reinstatement of service credit),
Government Code. 

  (3)  Section 812.004 (Temporary Employees Over 65), Government Code.

(4)  Section 813.504(b) (Eligibility for Service Credit Previously
Canceled), Government Code. 

(5)  Section 814.1041 (Temporary Service Retirement Option for Members
Affected by Privatization or Other Reduction in Workforce), Government
Code. 

(6)  Section 815.211 (Fiduciary Insurance), Government Code.

(7)  Section 815.502 (Transfer of Accumulated Contributions in Certain
Circumstances), Government Code. 

(8)  Section 840.210 (Fiduciary Insurance), Government Code.

(9)  Section 1551.054 (Liability Insurance), Insurance Code, as effective
June 1, 2003. 

(10)  Section 3(b), Chapter 22, Acts of the 57th Legislature, 3rd Called
Session, 1962 (Article 6228a-5 (relating to a state agency's sponsorship
of a certain program), V.T.C.S.). 

SECTION 44.  Provides that, to the extent of any conflict, this Act
prevails over another Act of the 78th Legislature, Regular Session, 2003,
relating to nonsubstantive additions to and corrections in enacted codes. 

SECTION 45.  Effective date:  September 1, 2003.