By: Turner H.B. No. 3639

A BILL TO BE ENTITLED

AN ACT

relating to an independent office of Inspector General to investigate abuse in facilities operated by the Texas Department of Criminal Justice or the Texas Youth Commission.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 4, Government Code, is amended by adding new CHAPTER 512 as follows:

CHAPTER 512. OFFICE OF INSPECTOR GENERAL

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 512.001. DEFINITION. In this chapter, "office" means the Office of Inspector General.

Sec. 512.002. OFFICE OF INSPECTOR GENERAL. The independent office of inspector general conducts audits of policies and procedures and investigates allegations of sexual, physical and psychological abuse within facilities controlled or contracted by the Texas Department of Criminal Justice and the Texas Youth Commission (hereinafter, Departments).

Sec. 512.003. SUNSET PROVISION. The office is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished September 1, 2018.

Sec. 512.004. PUBLIC INTEREST INFORMATION. (a) The office shall prepare information of public interest describing the functions of the office including statistical information about allegations investigated, the outcome of each investigation, and the disciplinary action taken for each allegation affirmed.

(b) The office shall make the information available to the public and appropriate state agencies.

Sec. 512.005. ACCESS TO PROGRAMS AND FACILITIES. (a) The office shall prepare and maintain a written plan that describes how a person who does not speak English can request an investigation by the Office of Inspector General.

(b)The office shall comply with federal and state laws for program and facility accessibility.

SUBCHAPTER B. INSPECTOR GENERAL

Sec. 512.100. APPOINTMENT; TERM. (a) The governor, with the advice and consent of the senate, shall appoint an Inspector General. The Inspector General serves a two-year term that expires on February 1 of each odd-numbered year.

(b) The governor shall appoint the inspector general without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.

Sec. 512.101. QUALIFICATIONS. To be eligible to serve as public counsel, a person must:

(1) be licensed to practice law in this state;

(2) have demonstrated a strong commitment to and involvement in efforts to safeguard the rights of the public.

Sec. 512.102. BUSINESS INTEREST; SERVICE AS INSPECTOR GENERAL. A person is not eligible for appointment as Inspector General if the person or the person's spouse:

(1) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the Texas Department of Criminal Justice or the Texas Youth Commission;

(2) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the Texas Department of Criminal Justice or the Texas Youth Commission;

(3) an officer, employee, or paid consultant of a trade association acting on behalf of corporations contracting with the Texas Department of Criminal Justice or the Texas Youth Commission;

(2) the spouse of an officer, manager, or paid consultant of a trade association in on behalf of corporations contracting with the Texas Department of Criminal Justice or the Texas Youth Commission; or

(3) uses or receives a substantial amount of tangible goods, services, or funds from the Texas Department of Criminal Justice or the Texas Youth Commission, other than compensation or reimbursement authorized by law for department or office membership, attendance, or expenses.

Sec. 512.103. LOBBYING ACTIVITIES. A person may not serve as Inspector General or act as general counsel to the office if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation related to the corporations contracting with the Texas Department of Criminal Justice or the Texas Youth Commission.

Sec. 512.104. GROUNDS FOR REMOVAL.(a) It is a ground for removal from office if Inspector General:

(1) does not have at the time of appointment or maintain during service as public counsel the qualifications required by Section 501.052;

(2) violates a prohibition established by Section 501.053, 501.054, 501.056, or 501.102; or

(3) cannot, because of illness or disability, discharge the inspector general's duties for a substantial part of the inspector general's term.

(b) The validity of an action of the office is not affected by the fact that the action is taken when a ground for removal of the Inspector General exists.

Sec. 512.105. PROHIBITED REPRESENTATION OR EMPLOYMENT. A former Inspector General may not represent any person or receive compensation for services rendered on behalf of any person regarding a case pending before any court or jurisdiction related to offenses within the Texas Department of Criminal Justice or the Texas Youth Commission before the second anniversary of the date the person ceases to serve as public counsel.

SUBCHAPTER C. PERSONNEL

Sec. 512.106. OFFICE PERSONNEL. (a) The inspector general shall employ professional, technical, and other employees necessary to implement this chapter.

(b)Compensation for an employee shall be set under the General Appropriations Act as provided by the legislature.

Sec. 512.107. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The Inspector General or the Inspector General's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.

(b) The Inspector General or the Inspector General's designee shall develop a system of annual performance evaluations. All merit pay for office employees must be based on the system established under this subsection.

Sec. 512.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The Inspector General or the Inspector General's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1) personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel that are in compliance with the requirements of Chapter 21, Labor Code;

(2) a comprehensive analysis of the office workforce that meets federal and state guidelines;

(3) procedures by which a determination can be made about areas of significant underuse in the office workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4) reasonable methods to appropriately address those areas of significant underuse.

(b) A policy statement prepared under Subsection (a) must:

(1) cover an annual period;

(2) be updated at least annually;

(3) be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4) be filed with the governor.

(c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports to the legislature.

SUBCHAPTER D. POWERS AND DUTIES

Sec. 512.200. POWERS AND DUTIES OF OFFICE.

(a) (1) With respect to the Texas Department of Criminal Justice and the Texas Youth Commission, the Inspector General shall review departmental policy and procedures, conduct audits of investigatory practices and other audits, and conduct investigations of the Departments, as requested by the Director of the Texas Department of Criminal Justice, the Director of the Texas Youth Commission or a Member of the Legislature, under policies to be developed by the Inspector General. The Inspector General may, under policies developed by the Inspector General, initiate an investigation or an audit on his or her own accord.

(2) The Inspector General shall audit each correctional institution at least once every six years. These audit reports shall be provided to the Legislature and shall be made public. The requirements of this paragraph shall be phased in by the Inspector General so that they are fully met by July 1, 2010.

(b) Upon completion of an investigation or audit, the Inspector General shall provide a response to the requester and the parties to any specific incident under investigation.

(c) The Inspector General shall, during the course of an investigatory audit or investigation, identify areas of full and partial compliance, or noncompliance, with departmental investigatory policies and procedures, specify deficiencies in the completion and documentation of investigatory processes, and recommend corrective actions, including, but not limited to, additional training with respect to investigative policies, additional policies, or changes in policy, as well as any other findings or recommendations that the Inspector General deems appropriate.

(d) In connection with an audit or investigation pursuant to this chapter, the Inspector General, or his or her designee, may do any of the following:

(1) Administer oaths.

(2) Certify to all official acts.

(3) Issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, or documents in any medium, or for the making of oral or written sworn statements, in any investigative interview conducted as part of an audit or investigation.

(e) Any subpoena issued under this chapter extends as process to all parts of the state and may be served by any person authorized to serve process of courts of record. The person serving this process may receive compensation as is allowed by the Inspector General, or his or her designee, not to exceed the fees prescribed by law for similar service.

(f) The district court in the county in which any investigative interview is held under the direction of the Inspector General or his or her designee has jurisdiction to compel the attendance of witnesses, the making of oral or written sworn statements, and the production of papers, books, accounts, and documents, as required by any subpoena issued by the Inspector General or his or her designee.

(g) If any witness refuses to attend or testify or produce any papers required by the subpoena, the Inspector General or his or her designee may petition the district court for an order compelling the person to attend and answer questions under penalty of perjury or produce the papers required by the subpoena before the person named in the subpoena.

(h) The office of the Inspector General may, in accordance with policies and procedures set out by the Office of the Inspector General, receive communications from any individual, including those employed by any department, board, or authority who believes he or she may have information that may describe incidents of sexual, physical and psychological abuse within facilities controlled by the Departments.

(i) In order to properly respond to any allegation of improper governmental activity, the Inspector General shall establish a toll-free public telephone number for the purpose of identifying any alleged wrongdoing by an employee of the Departments. This telephone number shall be posted by the Departments, and their respective subdivisions, in clear view of all employees, inmates and the public. When appropriate, the Inspector General shall initiate an investigation or audit of any alleged improper governmental activity in accordance with policies and procedures set out by the Office of the Inspector General. However, any request to conduct an investigation shall be in writing.

(j) All identifying information, and any personal papers or correspondence from any person who initiated the investigation shall not be disclosed, except in those cases where the Inspector General determines that disclosure of the information is necessary in the interests of justice.

(k) Retaliation against employees of the Departments who provide information to the Office of Inspector General related to alleged wrongdoing by any other employee of the Departments is prohibited.

(1) For purposes of this section, "employee" means any person employed by the Departments.

(2) For purposes of this section, "retaliation" means intentionally engaging in acts of reprisal, retaliation, threats, coercion, or similar acts against another employee who has done either of the following:

(A) Has disclosed or is disclosing to any employee at a supervisory or managerial level, what the employee, in good faith, believes to be improper governmental activities.

(B) Has cooperated or is cooperating with any investigation of improper governmental activities.

(C) Has refused to obey an illegal order or

directive.

(3) Upon receiving a complaint of retaliation from an employee against a member of management, the Inspector General may commence an inquiry into the complaint and shall conduct a formal investigation where a legally cognizable cause of action is presented. The Inspector General may refer all other matters for investigation by the appropriate employing entity, subject to investigative oversight by the Inspector General. In a case in which the employing entity declines to investigate the complaint, it shall, within 30 days of receipt of the referral by the Inspector General, notify the Inspector General of its decision. The Inspector General may thereafter, conduct his or her own inquiry into the complaint. If, after reviewing the complaint, the Inspector General determines that a legally cognizable cause of action has not been presented by the complaint, the Inspector General shall thereafter notify the complaining employee and the Department that a formal investigation is not warranted.

Sec. 512.201. ADMINISTRATION OF OFFICE. The Inspector General shall administer and enforce this chapter, including preparing and submitting to the legislature a budget for the office and approving expenditures for professional services, travel, per diem, and other actual and necessary expenses incurred in administering the office.

Sec. 512.202. RECOMMENDATION OF LEGISLATION. The Inspector General may recommend legislation to the legislature that the Inspector General determines would reduce or eliminate abuse of inmates in Texas juvenile and adult correctional facilities.

Sec. 512.203. ACCESS TO INFORMATION. (a) The office is entitled to information that is confidential under any law of this state, including Chapter 552, Government Code, but subsequent release of that information shall be controlled by Chapter 552, Government Code, and information collected during an investigation of an individual complaint shall be considered law enforcement information subject to confidentiality in accordance with Chapter 552.108.

(b) The office may not make public any otherwise confidential information provided to the office under this subchapter but may disclose a summary of the information that generally describes incidents that have been investigated, failures of policy or procedure that facilitated incidents of abuse, and recommendations for improvements in facility supervision to prevent further incidents.

SECTION 2. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

SECTION 3. EFFECTIVE DATE. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.