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A BILL TO BE ENTITLED
|
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AN ACT
|
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relating to the creation of offices of inspectors general within |
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certain state agencies. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle C, Title 10, Government Code, is |
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amended by adding Chapter 2116 to read as follows: |
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CHAPTER 2116. TEXAS INSPECTORS GENERAL |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 2116.001. DEFINITIONS. In this chapter: |
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(1) "Agency" means a state agency to which this |
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chapter applies, as provided by Section 2116.002. |
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(2) "Coordinating council" means the Coordinating |
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Council of Inspectors General established under Section 2116.101. |
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(3) "Inspector general" means an individual appointed |
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as an inspector general at an agency under this chapter. |
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(4) "Presiding officer" means the presiding officer of |
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the governing body of an agency, or the commissioner of an agency if |
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a single commissioner presides over the agency. |
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(5) "Review" includes an inspection, investigation, |
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or similar activity. |
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Sec. 2116.002. APPLICABILITY TO CERTAIN STATE AGENCIES. |
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This chapter applies to the following state agencies: |
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(1) Health and Human Services Commission; |
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(2) Texas Department of Criminal Justice; |
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(3) Texas Department of Transportation; |
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(4) Texas Education Agency; |
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(5) Texas Higher Education Coordinating Board; and |
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(6) Texas Youth Commission. |
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[Sections 2116.003-2116.050 reserved for expansion] |
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SUBCHAPTER B. ADMINISTRATIVE PROVISIONS |
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Sec. 2116.051. CREATION OF OFFICE OF INSPECTOR GENERAL. |
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The office of inspector general is created at each agency as |
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provided by this chapter to conduct investigations, inspections, |
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and other reviews. |
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Sec. 2116.052. APPOINTMENT; TERM. (a) The governor with |
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the advice and consent of the senate shall appoint an inspector |
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general to serve within each agency. |
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(b) An inspector general serves a two-year term expiring |
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February 1 of each odd-numbered year. |
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Sec. 2116.053. QUALIFICATIONS. (a) In appointing a person |
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as inspector general, the governor shall consider the person's |
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integrity, capability for strong leadership, and demonstrated |
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knowledge, skills, abilities, and experience in investigation, |
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prosecution, management analysis, public administration, criminal |
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justice administration, accounting, auditing, financial analysis, |
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law, or other closely related fields. |
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(b) Additional recommended qualifications for appointing an |
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inspector general include licenses or certifications as a lawyer, |
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fraud examiner, public accountant, or internal auditor. |
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Sec. 2116.054. CONFLICT OF INTEREST. (a) An inspector |
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general may not serve as an ex officio member on the governing body |
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of a governmental entity. |
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(b) An inspector general may not have a financial interest |
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in the transactions of the inspector general's agency. |
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Sec. 2116.055. ORGANIZATION. (a) An inspector general |
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shall establish an organizational structure for the inspector |
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general's office that is appropriate to carrying out the |
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responsibilities and functions of the office. |
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(b) The office must be established within the agency only |
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using existing agency resources dedicated to the investigation of |
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fraud, abuse, and employee misconduct. |
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Sec. 2116.056. INDEPENDENCE OF OFFICE. (a) Except as |
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provided by Sections 2116.157, 2116.161, 2116.201, and 2116.202, an |
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inspector general operates independently of the agency in which the |
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inspector general serves. |
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(b) An executive state agency may not impair or prohibit an |
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inspector general from initiating or completing a review. |
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Sec. 2116.057. OPERATION OF OFFICE. An inspector general |
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shall establish policies and procedures to guide the operation of |
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the inspector general's office. |
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Sec. 2116.058. QUALITY ASSURANCE AND CONTROL. (a) An |
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inspector general shall adopt procedures to ensure adequate quality |
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control over the inspector general's work and practices and to |
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ensure that the work of the inspector general's office meets |
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commonly used and adopted professional standards. |
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(b) The inspector general shall implement the quality |
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control program to guarantee that the office is structured |
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appropriately and that the office implements policies and practices |
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to ensure objective and accurate reviews. |
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Sec. 2116.059. PUBLISHING POLICIES AND PROCEDURES IN TEXAS |
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REGISTER. An inspector general shall publish in the Texas Register |
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the policies and procedures adopted under this subchapter. |
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[Sections 2116.060-2116.100 reserved for expansion] |
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SUBCHAPTER C. COORDINATING COUNCIL AND PERSONNEL |
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Sec. 2116.101. COORDINATING COUNCIL. (a) The |
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Coordinating Council of Inspectors General is composed of each |
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inspector general appointed under Section 2116.052 and the state |
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auditor. |
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(b) The state auditor shall serve as presiding officer of |
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the coordinating council. |
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(c) The coordinating council shall meet at least quarterly |
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at the call of the presiding officer. |
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(d) The coordinating council shall: |
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(1) pursuant to Section 321.022, cooperate and |
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coordinate investigations as necessary; |
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(2) focus on fraud prevention activities; and |
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(3) coordinate fraud prevention training. |
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(e) The coordinating council shall submit a report of the |
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coordinating council's activities at least two times each year to: |
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(1) the governor; |
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(2) the lieutenant governor; |
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(3) the speaker of the house of representatives; |
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(4) the state auditor; and |
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(5) the appropriate legislative oversight committees. |
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(f) Chapter 2110 does not apply to the coordinating council. |
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For the purposes of coordinating and cooperating on investigations, |
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Chapter 551 does not apply to the coordinating council. |
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(g) The coordinating council's activities under Subsection |
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(d) may not include making management decisions or directing the |
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operations of a state agency. |
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Sec. 2116.102. PERSONNEL, OFFICE SPACE, AND EQUIPMENT. The |
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presiding officer of the state agency to which an inspector general |
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is appointed, using existing agency resources dedicated to the |
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investigation of fraud, abuse, and employee misconduct, shall |
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provide sufficient personnel and office space and equipment for the |
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inspector general to perform the duties prescribed under this |
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chapter. |
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Sec. 2116.103. EXPERTS. Subject to Sections 2116.055 and |
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321.020, an inspector general may contract with certified public |
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accountants, management consultants, or other professional experts |
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necessary to independently perform the functions of the inspector |
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general's office. The inspector general shall use existing agency |
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resources dedicated to the investigation of fraud, abuse, and |
|
employee misconduct for this purpose. |
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[Sections 2116.104-2116.150 reserved for expansion] |
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SUBCHAPTER D. GENERAL POWERS AND DUTIES OF INSPECTOR GENERAL |
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Sec. 2116.151. REVIEW AUTHORITY. (a) An inspector general |
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may evaluate any activity or operation of the inspector general's |
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agency related to the investigation, detection, or prevention of |
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fraud or employee misconduct. A review may include an |
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investigation or other inquiry into: |
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(1) a specific act or allegation of impropriety, |
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malfeasance, or nonfeasance in the obligation, spending, receipt, |
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or other use of state money; or |
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(2) a specific financial transaction or practice that |
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may involve the impropriety, malfeasance, or nonfeasance. |
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(b) An inspector general may conduct criminal, civil, and |
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administrative reviews related to the course and scope of the |
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duties of the inspector general. |
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Sec. 2116.152. INITIATION OF REVIEW. An inspector general |
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may initiate a review: |
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(1) on the inspector general's own initiative; or |
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(2) based on a complaint from any source concerning a |
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matter described by Section 2116.151 at the agency. |
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Sec. 2116.153. FACTUAL DETERMINATION OF REVIEW. (a) An |
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inspector general is charged solely with making a determination of |
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the truth of a complaint based on a finding of facts and presenting |
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those findings as provided in Subchapter E. |
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(b) An inspector general may not make remedial |
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recommendations. |
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Sec. 2116.154. ACCESS TO INFORMATION. (a) In furtherance |
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of a review conducted by the inspector general's office, an |
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inspector general is entitled to access all books, accounts, |
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reports, vouchers, or other information from any entity receiving |
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money from the inspector general's agency, including confidential |
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information and electronic data. The inspector general may not |
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access data or other information the release of which is restricted |
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under federal law unless the appropriate federal agency approves |
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the release. |
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(b) To the extent that the performance of the powers and |
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duties of the inspector general is not impeded, an inspector |
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general shall make reasonable efforts to coordinate requests for |
|
access under Subsection (a) so as not to hinder the daily operations |
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of the entity. |
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(c) Notwithstanding any other provision of this section, an |
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inspector general's access to information under Subsection (a) is |
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limited to information connected to the specific matter under |
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investigation by the inspector general or a specific contract |
|
related to that investigation. |
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Sec. 2116.155. COOPERATION REQUIRED. (a) In furtherance |
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of a review conducted by the inspector general's office, an |
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inspector general may require the assistance of the administrative |
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head, the governing body, an auditor or accountant, or any other |
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employee of the inspector general's agency. |
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(b) To the extent that the performance of the powers and |
|
duties of the inspector general is not impeded, an inspector |
|
general shall make reasonable efforts to coordinate requests for |
|
assistance under Subsection (a) so as not to hinder the daily |
|
operations of the agency. |
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Sec. 2116.156. EMPLOYEE REPORTS. The presiding officer of |
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the agency to which an inspector general is appointed and the |
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inspector general shall require employees at the agency to report |
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to the agency's office of inspector general information regarding |
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fraud, waste, misuse, corruption, illegal acts, or abuse. |
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Sec. 2116.157. SUBPOENAS. (a) On request of an inspector |
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general, a district attorney or the attorney general may issue a |
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subpoena to compel the attendance of a relevant witness or the |
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production, for inspection or copying, of relevant evidence in |
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connection with a review conducted under this chapter. |
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(b) A subpoena may be served personally or by certified |
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mail. |
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(c) If a person fails to comply with a subpoena, the |
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inspector general, acting through the attorney general, may file |
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suit to enforce the subpoena in a district court in this state. |
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(d) On finding that good cause exists for issuing the |
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subpoena, the court shall order the person to comply with the |
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subpoena. The court may hold in contempt a person who fails to obey |
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the court order. |
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(e) The inspector general shall pay a reasonable fee for |
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photocopies subpoenaed under this section in an amount not to |
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exceed the amount the inspector general may charge for copies of its |
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records. |
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(f) The reimbursement of the expenses of a witness whose |
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attendance is compelled under this section is governed by Section |
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2001.103. |
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Sec. 2116.158. INTERNAL AUDITOR. (a) In this section, |
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"internal auditor" means a person appointed under Section 2102.006. |
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(b) The internal auditor for the agency shall provide the |
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inspector general with a copy of the agency's internal audit plan |
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to: |
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(1) assist in the coordination of efforts between the |
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inspector general and the internal auditor; and |
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(2) limit duplication of effort regarding reviews by |
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the inspector general and internal auditor. |
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(c) The internal auditor shall provide to the inspector |
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general all final audit reports concerning audits of any: |
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(1) part or division of the agency; |
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(2) contract, procurement, or grant; and |
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(3) program conducted by the agency. |
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Sec. 2116.159. COOPERATION WITH LAW ENFORCEMENT OFFICIALS |
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AND OTHER ENTITIES. (a) An inspector general shall provide |
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information and evidence relating to criminal acts to the state |
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auditor's office and appropriate law enforcement officials. |
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(b) An inspector general shall refer matters for further |
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civil, criminal, and administrative action to appropriate |
|
administrative and prosecutorial agencies, including the attorney |
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general. |
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(c) An inspector general may enter into a memorandum of |
|
understanding with a law enforcement or prosecutorial agency, |
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including the office of the attorney general, to assist in |
|
conducting a review under this chapter. |
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Sec. 2116.160. COOPERATION AND COORDINATION WITH STATE |
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AUDITOR. (a) The state auditor may, on request of an inspector |
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general, provide appropriate information or other assistance to the |
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inspector general, as determined by the state auditor. |
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(b) An inspector general may meet with the state auditor's |
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office to coordinate a review conducted under this chapter, share |
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information, or schedule work plans. |
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(c) The state auditor is entitled to access all information |
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maintained by an inspector general, including vouchers and |
|
electronic data and information obtained under Section 2116.154 or |
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subject to 2116.251. |
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(d) Any information obtained or provided by the state |
|
auditor under this section is confidential and not subject to |
|
disclosure under Chapter 552. |
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Sec. 2116.161. PREVENTION. An inspector general may |
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provide training or other education regarding the prevention of |
|
fraud, waste, or abuse at the inspector general's agency. The |
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training or education must be approved by the presiding officer. |
|
Sec. 2116.162. RULEMAKING. (a) An agency may adopt rules |
|
to respond to reports and referrals from the agency's inspector |
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general, including sanctions for violations. |
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(b) The rules shall include due process for referrals and |
|
findings that might result in administrative penalties. |
|
[Sections 2116.163-2116.200 reserved for expansion] |
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SUBCHAPTER E. OVERSIGHT OF INSPECTOR GENERAL; REPORTS |
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Sec. 2116.201. ORGANIZATION PLACEMENT. An inspector |
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general reports to the presiding officer of the inspector general's |
|
agency. |
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Sec. 2116.202. ANNUAL EVALUATION. An agency's presiding |
|
officer shall conduct an annual evaluation of the agency's |
|
inspector general. As part of this evaluation, the presiding |
|
officer may request that the attorney general evaluate the policies |
|
and practices of the inspector general to ensure that the inspector |
|
general complies with professional standards and nationally |
|
accepted policies and practices. |
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Sec. 2116.203. ALLEGATIONS OF MISCONDUCT AGAINST PRESIDING |
|
OFFICER. If allegations that a presiding officer has engaged in |
|
misconduct result in a review by an inspector general, the |
|
inspector general shall report to the governor during the review |
|
until the report is completed or the review is closed without a |
|
finding. |
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Sec. 2116.204. PERIODIC REPORTING TO STATE AUDITOR |
|
REQUIRED. An inspector general shall timely inform the state |
|
auditor of the initiation of a review and the ongoing status of each |
|
review. |
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Sec. 2116.205. REPORTING OFFICE FINDINGS. An inspector |
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general shall report the findings of the inspector general's office |
|
to: |
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(1) the presiding officer of the inspector general's |
|
agency; |
|
(2) the governor; |
|
(3) the lieutenant governor; |
|
(4) the speaker of the house of representatives; |
|
(5) the state auditor's office; |
|
(6) the appropriate legislative oversight committees; |
|
and |
|
(7) appropriate law enforcement and prosecutorial |
|
agencies, including the office of the attorney general, if the |
|
findings relate to a criminal investigation. |
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Sec. 2116.206. FLAGRANT VIOLATIONS; IMMEDIATE REPORT. An |
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inspector general shall immediately report to the presiding officer |
|
of the inspector general's agency, the governor's general counsel, |
|
and the state auditor a particularly serious or flagrant problem |
|
relating to the administration of a program or operation of the |
|
agency or interference with an inspector general operation. |
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Sec. 2116.207. ANNUAL REPORT. (a) An inspector general |
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annually shall prepare a complete and detailed written report |
|
describing the activities of the inspector general during the |
|
fiscal year. The report must separately describe each major |
|
investigation, audit, review, fraud prevention effort, and agency |
|
assistance effort completed during the fiscal year. |
|
(b) The annual report must meet the reporting requirements |
|
applicable to financial reporting provided in the General |
|
Appropriations Act. |
|
(c) The inspector general shall deliver a copy of each |
|
annual report to: |
|
(1) the governor; |
|
(2) the lieutenant governor; |
|
(3) the speaker of the house of representatives; |
|
(4) the presiding officer of each house and senate |
|
committee having jurisdiction over an agency to which this chapter |
|
applies; |
|
(5) the presiding officer of each agency to which this |
|
chapter applies; |
|
(6) the state auditor; and |
|
(7) the comptroller. |
|
(d) Each agency to which this chapter applies shall post the |
|
annual report on its agency Internet website. |
|
(e) The inspector general shall issue the annual report not |
|
later than the 60th day after the last day of each fiscal year. |
|
[Sections 2116.208-2116.250 reserved for expansion] |
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SUBCHAPTER F. PUBLIC RECORDS; EXCEPTIONS |
|
Sec. 2116.251. INFORMATION CONFIDENTIAL. (a) Except as |
|
provided by this section, Sections 2116.160 and 2116.252, and |
|
Subchapter E, all information and material compiled by an inspector |
|
general during a review under this chapter is: |
|
(1) confidential and not subject to disclosure under |
|
Chapter 552; and |
|
(2) not subject to disclosure, discovery, subpoena, or |
|
other means of legal compulsion for release to anyone other than the |
|
state auditor's office, or the inspector general's office or its |
|
agents involved in the review related to that information or |
|
material. |
|
(b) As an inspector general determines appropriate, |
|
information relating to a review shall be disclosed to: |
|
(1) a law enforcement agency; |
|
(2) the attorney general; or |
|
(3) the state auditor's office. |
|
(c) A person that receives information under Subsection (b) |
|
may not disclose the information except to the extent that |
|
disclosure is consistent with the authorized purpose for which the |
|
person first obtained the information. |
|
Sec. 2116.252. FINAL REVIEW REPORTS. (a) An inspector |
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general shall prepare a final report for each review conducted |
|
under this chapter. The final report must include: |
|
(1) a summary of the activities performed by the |
|
inspector general in conducting the review; |
|
(2) a determination of whether wrongdoing was found; |
|
and |
|
(3) a description of any findings of wrongdoing. |
|
(b) An inspector general's final review reports are subject |
|
to disclosure under Chapter 552. |
|
(c) All working papers and other documents related to |
|
compiling the final review reports remain confidential and are not |
|
subject to disclosure under Chapter 552. |
|
(d) Unless otherwise prohibited by this chapter or other |
|
law, the inspector general shall deliver a copy of each final report |
|
that concerns the implementation or administration of a state or |
|
federally funded program to: |
|
(1) the presiding officer of the subject agency; |
|
(2) the governor; |
|
(3) the lieutenant governor; |
|
(4) the speaker of the house of representatives; |
|
(5) the state auditor; and |
|
(6) the appropriate legislative oversight committees. |
|
[Sections 2116.253-2116.300 reserved for expansion] |
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SUBCHAPTER G. STATE AUDITOR AND INSPECTOR GENERAL INDEPENDENCE |
|
Sec. 2116.301. STATE AUDITOR AUDITS, INVESTIGATIONS, AND |
|
ACCESS TO INFORMATION NOT IMPAIRED. This chapter or other law |
|
related to the operation of an inspector general does not prohibit |
|
the state auditor from conducting an audit or an investigation or |
|
other review or from having full and complete access to all records |
|
and other information, including witnesses and electronic data, |
|
that the state auditor considers necessary for the audit or the |
|
investigation or other review. |
|
Sec. 2116.302. ACCESS TO STATE AUDITOR INFORMATION NOT |
|
IMPAIRED. Except as authorized by the state auditor, this chapter |
|
or other law related to the operation of an inspector general does |
|
not permit an inspector general or any other person to access any |
|
working papers, including any documents, notes, and other |
|
information, collected or maintained by the state auditor's office. |
|
Sec. 2116.303. AUTHORITY OF STATE AUDITOR TO CONDUCT AUDITS |
|
NOT IMPAIRED. This chapter or other law related to the operation of |
|
an inspector general does not take precedence over the authority of |
|
the state auditor to conduct an audit under Chapter 321 or other |
|
law. |
|
[Sections 2116.304-2116.350 reserved for expansion] |
|
SUBCHAPTER H. FINANCIAL PROVISIONS |
|
Sec. 2116.351. BUDGET. An inspector general shall submit a |
|
budget to the presiding officer of the inspector general's agency. |
|
Sec. 2116.352. COSTS. (a) An inspector general shall |
|
maintain information regarding the cost of reviews. |
|
(b) An inspector general may cooperate with appropriate |
|
administrative and prosecutorial agencies, including the office of |
|
the attorney general, in recovering costs incurred under this |
|
chapter from nongovernmental entities, including contractors or |
|
individuals involved in: |
|
(1) violations of state and federal rules or statutes; |
|
or |
|
(2) abusive or wilful misconduct. |
|
SECTION 2. Subsections (a), (b), and (h), Section 531.102, |
|
Government Code, are amended to read as follows: |
|
(a) In this section, "office" means [The commission,
|
|
through] the commission's office of inspector general established |
|
under Chapter 2116[, is responsible for the investigation of fraud
|
|
and abuse in the provision of health and human services and the
|
|
enforcement of state law relating to the provision of those
|
|
services.
The commission may obtain any information or technology
|
|
necessary to enable the office to meet its responsibilities under
|
|
this subchapter or other law]. |
|
(b) The [commission, in consultation with the] inspector |
|
general for the commission[,] shall set clear objectives, |
|
priorities, and performance standards for the office that |
|
emphasize[:
|
|
[(1)
coordinating investigative efforts to
|
|
aggressively recover money;
|
|
[(2)
allocating resources to cases that have the
|
|
strongest supportive evidence and the greatest potential for
|
|
recovery of money; and
|
|
[(3)] maximizing opportunities for referral of cases |
|
to the office of the attorney general in accordance with Section |
|
531.103. |
|
(h) In addition to performing functions and duties |
|
otherwise provided by law, the office may: |
|
(1) assess administrative penalties otherwise |
|
authorized by law on behalf of the commission or a health and human |
|
services agency; |
|
(2) request that the attorney general obtain an |
|
injunction to prevent a person from disposing of an asset |
|
identified by the office as potentially subject to recovery by the |
|
office due to the person's fraud or abuse; |
|
(3) provide for coordination between the office and |
|
special investigative units formed by managed care organizations |
|
under Section 531.113 or entities with which managed care |
|
organizations contract under that section; |
|
(4) audit the use and effectiveness of state or |
|
federal funds, including contract and grant funds, administered by |
|
a person or state agency receiving the funds from a health and human |
|
services agency; and |
|
(5) conduct investigations relating to the funds |
|
described by Subdivision (4)[; and
|
|
[(6)
recommend policies promoting economical and
|
|
efficient administration of the funds described by Subdivision (4)
|
|
and the prevention and detection of fraud and abuse in
|
|
administration of those funds]. |
|
SECTION 3. Subsections (a-1), (d), and (e), Section |
|
531.102, and Section 531.1021, Government Code, are repealed. |
|
SECTION 4. (a) The repeal by this Act of certain |
|
provisions of Section 531.102, Government Code, does not affect the |
|
validity of a complaint, investigation, or other proceeding |
|
initiated under that section before the effective date of this Act. |
|
A complaint, investigation, or other proceeding initiated under |
|
that section is continued in accordance with the changes in law made |
|
by this Act. |
|
(b) The repeal by this Act of Section 531.1021, Government |
|
Code, does not affect the validity of a subpoena issued under that |
|
section before the effective date of this Act. A subpoena issued |
|
under that section before the effective date of this Act is governed |
|
by the law that existed when the subpoena was issued, and the former |
|
law is continued in effect for that purpose. |
|
SECTION 5. (a) The person serving as inspector general |
|
under Subsection (a-1), Section 531.102, Government Code, on the |
|
effective date of this Act or any person appointed to fill a vacancy |
|
in the office held by that person shall serve as the inspector |
|
general for the Health and Human Services Commission under Chapter |
|
2116, Government Code, as added by this Act, until February 1, 2009, |
|
and carry out the functions of an inspector general in the same |
|
manner as an inspector general appointed under Chapter 2116. |
|
(b) This section does not prohibit a person described by |
|
Subsection (a) of this section from being appointed under Chapter |
|
2116, Government Code, as added by this Act, if the person has the |
|
qualifications required under that chapter. |
|
SECTION 6. As soon as possible after the effective date of |
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this Act, the governor shall appoint an inspector general for each |
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agency other than the Health and Human Services Commission listed |
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in Section 2116.002, Government Code, as added by this Act, to an |
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initial term expiring February 1, 2009. |
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SECTION 7. This Act takes effect January 1, 2008. |