81R734 KCR-D

By: Madden H.B. No. 553

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the office of criminal and juvenile justice ombudsman.

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

SECTION 1. Subtitle G, Title 4, Government Code, is amended by adding Chapter 502 to read as follows:

CHAPTER 502. OFFICE OF CRIMINAL AND JUVENILE JUSTICE OMBUDSMAN

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 502.001. DEFINITIONS. In this chapter:

(1) "Criminal or juvenile justice agency" means:

(A) the Department of Public Safety;

(B) the Texas Department of Criminal Justice;

(C) the Board of Pardons and Paroles;

(D) a community supervision and corrections department established under Chapter 76;

(E) the Texas Youth Commission;

(F) the Texas Juvenile Probation Commission; and

(G) a local juvenile probation department receiving state aid under Subchapter E, Chapter 141, Human Resources Code.

(2) "Office" means the office of criminal and juvenile justice ombudsman created under this chapter.

(3) "Ombudsman" means the individual who has been appointed under this chapter to the office of criminal and juvenile justice ombudsman.

Sec. 502.002. ESTABLISHMENT; PURPOSE. The office of criminal and juvenile justice ombudsman is a state agency established to investigate, evaluate, and secure the rights of individuals arrested, detained, confined, released, or supervised by or committed to a criminal or juvenile justice agency.

Sec. 502.003. CONSTRUCTION WITH OTHER LAW OR AGENCY POLICIES, PROCEDURES, OR RULES. (a) Notwithstanding any other law or any policy, procedure, or rule of a criminal or juvenile justice agency, the office of the criminal and juvenile justice ombudsman is the single ombudsman for each criminal or juvenile justice agency.

(b) An ombudsman established by an individual criminal or juvenile justice agency by policy, procedure, or rule is abolished.

Sec. 502.004. INDEPENDENCE. (a) The criminal and juvenile justice ombudsman in the performance of its duties and powers under this chapter acts independently of a criminal or juvenile justice agency.

(b) Funding for the criminal and juvenile justice ombudsman is appropriated separately from funding for a criminal or juvenile justice agency.

[Sections 502.005-502.050 reserved for expansion]

SUBCHAPTER B. APPOINTMENT AND MANAGEMENT OF OFFICE

Sec. 502.051. APPOINTMENT OF OMBUDSMAN. (a) The executive commissioner of the Texas Youth Commission, the executive director of the Texas Department of Criminal Justice, and the public safety director of the Department of Public Safety shall jointly appoint the criminal and juvenile justice ombudsman for a two-year term of office expiring February 1 of each odd-numbered year.

(b) A person appointed as criminal and juvenile justice ombudsman is eligible for reappointment but may not serve more than three terms in that capacity.

Sec. 502.052. ASSISTANTS. The criminal and juvenile justice ombudsman may hire assistants to perform, under the direction of the ombudsman, the same duties and exercise the same powers as the ombudsman.

Sec. 502.053. CONFLICT OF INTEREST. (a) A person may not serve as criminal and juvenile justice ombudsman or as an assistant to the ombudsman if the person or the person's spouse:

(1) is employed by or participates in the management of a business entity or other organization receiving funds from a criminal or juvenile justice agency;

(2) owns or controls, directly or indirectly, any interest in a business entity or other organization receiving funds from a criminal or juvenile justice agency; or

(3) uses or receives any amount of tangible goods, services, or funds from a criminal or juvenile justice agency.

(b) A person may not serve as criminal and juvenile justice ombudsman or as an assistant to the ombudsman if the person or the person's spouse is required to register as a lobbyist under Chapter 305 because of the person's activities for compensation on behalf of a profession related to the operation of a criminal or juvenile justice agency.

(c) A person may not serve as criminal and juvenile justice ombudsman or as an assistant to the ombudsman if the person or the person's spouse is an officer, employee, manager, or paid consultant of a Texas trade association in the field of criminal or juvenile justice.

(d) For the purposes of this section, a Texas trade association is a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

Sec. 502.054. SUNSET PROVISION. The office is subject to review under Chapter 325 (Texas Sunset Act) but is not abolished under that chapter. The office shall be reviewed during the periods in which state agencies reviewed or abolished in 2011 and every 12th year after 2011 are reviewed.

Sec. 502.055. REPORT. (a) The criminal and juvenile justice ombudsman shall submit on a quarterly basis to the governor, the lieutenant governor, the state auditor, and each member of the legislature a report that is both aggregated and disaggregated by each criminal or juvenile justice agency and describes:

(1) the work of the criminal and juvenile justice ombudsman;

(2) the results of any review or investigation undertaken by the ombudsman, including reviews or investigation of services contracted by a criminal or juvenile justice agency; and

(3) any recommendations that the ombudsman has in relation to the duties of the ombudsman.

(b) The criminal and juvenile justice ombudsman shall immediately report to the governor, the lieutenant governor, the speaker of the house of representatives, the state auditor, and the executive officer of the relevant criminal or juvenile justice agency any particularly serious or flagrant:

(1) case of abuse or injury of an individual arrested, detained, confined, released, or supervised by or committed to the agency;

(2) problem concerning the administration of an agency program or operation;

(3) problem concerning the delivery of services in a facility operated by or under contract with the agency; or

(4) interference by the agency with an investigation conducted by the office.

Sec. 502.056. COMMUNICATION AND CONFIDENTIALITY. (a) A criminal or juvenile justice agency shall allow any individual arrested, detained, confined, released, or supervised by or committed to the agency to communicate with the criminal and juvenile justice ombudsman or an assistant to the ombudsman. The communication:

(1) may be in person, by mail, or by any other means; and

(2) is confidential and privileged.

(b) The records of the criminal and juvenile justice ombudsman are confidential, except that the ombudsman shall:

(1) share with the executive officer of the relevant criminal or juvenile justice agency a communication with an individual that may involve the abuse or neglect of the individual; and

(2) disclose the nonprivileged records of the office, if required by a court order on a showing of good cause.

(c) The criminal and juvenile justice ombudsman may make reports relating to an investigation public after the investigation is complete but only if the names of any individual arrested, detained, confined, released, or supervised by or committed to a criminal or juvenile justice agency and employees of the agency are redacted from the report and remain confidential.

(d) The name, address, or other personally identifiable information of a person who files a complaint with the office, information generated by the office in the course of an investigation, and confidential records obtained by the office are confidential and not subject to disclosure under Chapter 552, except that the information and records, other than confidential information and records concerning a pending law enforcement investigation or criminal action, may be disclosed to the appropriate person if the office determines that disclosure is:

(1) in the general public interest;

(2) necessary to enable the office to perform the responsibilities provided under this section; or

(3) necessary to identify, prevent, or treat the abuse or neglect by a criminal or juvenile justice agency of an individual arrested, detained, confined, released, or supervised by or committed to the agency.

Sec. 502.057. PROMOTION OF AWARENESS OF OFFICE. The criminal and juvenile justice ombudsman shall promote awareness among the public and individuals arrested, detained, confined, released, or supervised by or committed to a criminal or juvenile justice agency of:

(1) how the office may be contacted;

(2) the purpose of the office; and

(3) the services the office provides.

Sec. 502.058. RULEMAKING AUTHORITY. The office by rule shall establish policies and procedures for the operations of the office of criminal and juvenile justice ombudsman.

Sec. 502.059. AUTHORITY OF STATE AUDITOR. The office is subject to audit by the state auditor in accordance with Chapter 321.

[Sections 502.060-502.100 reserved for expansion]

SUBCHAPTER C. DUTIES AND POWERS

Sec. 502.101. DUTIES AND POWERS. (a) The criminal and juvenile justice ombudsman shall:

(1) review any procedures established by each criminal or juvenile justice agency and evaluate the delivery of services to individuals arrested, detained, confined, released, or supervised by or committed to a criminal or juvenile justice agency to ensure that the rights of those individuals are fully observed;

(2) review complaints filed with the ombudsman concerning the actions of a criminal or juvenile justice agency and investigate each complaint in which it appears that an individual described by Subdivision (1) may be in need of assistance from the ombudsman;

(3) conduct investigations of complaints, other than complaints alleging criminal behavior, if the office determines that:

(A) an individual described by Subdivision (1) or the individual's family may be in need of assistance from the office; or

(B) a systemic issue in the provision of services by a criminal or juvenile justice agency is raised by a complaint;

(4) review or inspect periodically the facilities, whether public or private, and the procedures of any criminal or juvenile justice agency to ensure that the rights of individuals described by Subdivision (1) are fully observed;

(5) provide assistance to an individual described by Subdivision (1), or the individual's family, who the ombudsman determines is in need of assistance, including advocating with an agency, provider, or other person in the best interests of the individual;

(6) review court orders as necessary to fulfill the office's duties;

(7) recommend changes in any procedure relating to the treatment of individuals described by Subdivision (1);

(8) make appropriate referrals under any of the duties and powers listed in this subsection; and

(9) supervise assistants who are serving as advocates in their representation of individuals described by Subdivision (1) in internal administrative and disciplinary hearings.

(b) The criminal and juvenile justice ombudsman may apprise a person who has legal custody, care, or control of an individual described by Subsection (a)(1) of the individual's rights.

(c) To assess if an individual's rights have been violated, the criminal and juvenile justice ombudsman may, in any matter that does not involve alleged criminal behavior, contact or consult with an administrator, employee, child, parent, expert, or any other individual in the course of its investigation or to secure information.

(d) Notwithstanding any other provision of this chapter, the criminal and juvenile justice ombudsman may not investigate alleged criminal behavior.

Sec. 502.102. TREATMENT OF AGENCY EMPLOYEES WHO COOPERATE WITH OMBUDSMAN. A criminal or juvenile justice agency may not discharge or in any manner discriminate or retaliate against an employee who in good faith makes a complaint to the office of criminal and juvenile justice ombudsman or cooperates with the office in an investigation.

Sec. 502.103. TRAINING. The criminal and juvenile justice ombudsman shall attend annual professional training sessions.

[Sections 502.104-502.150 reserved for expansion]

SUBCHAPTER D. ACCESS TO INFORMATION

Sec. 502.151. ACCESS TO INFORMATION OF GOVERNMENTAL ENTITIES. (a) A criminal or juvenile justice agency shall allow the criminal and juvenile justice ombudsman access to the agency's records relating to an individual arrested, detained, confined, released, or supervised by or committed to the agency.

(b) The Department of Public Safety shall allow the criminal and juvenile justice ombudsman access to the juvenile justice information system established under Subchapter B, Chapter 58, Family Code, and the computerized criminal history system established under Chapter 60, Code of Criminal Procedure.

(c) A local law enforcement agency shall allow the criminal and juvenile justice ombudsman access to the agency's records relating to any individual arrested, detained, confined, released, or supervised by or committed to a criminal or juvenile justice agency.

Sec. 502.152. ACCESS TO INFORMATION OF PRIVATE ENTITIES. The criminal and juvenile justice ombudsman shall have access to the records of a private entity that relate to an individual arrested, detained, confined, released, or supervised by or committed to a criminal or juvenile justice agency.

SECTION 2. Chapter 60, Code of Criminal Procedure, is amended by adding Article 60.022 to read as follows:

Art. 60.022. ACCESS TO COMPUTERIZED CRIMINAL HISTORY SYSTEM BY NONCRIMINAL JUSTICE AGENCY. The Department of Public Safety shall give the office of criminal and juvenile justice ombudsman established under Chapter 502, Government Code, access to the computerized criminal history system.

SECTION 3. Section 58.106(a), Family Code, is amended to read as follows:

(a) Except as otherwise provided by this section, information contained in the juvenile justice information system is confidential information for the use of the department and may not be disseminated by the department except:

(1) with the permission of the juvenile offender, to military personnel of this state or the United States;

(2) to a person or entity to which the department may grant access to adult criminal history records as provided by Section 411.083, Government Code;

(3) to a juvenile justice agency;

(4) to the Texas Youth Commission and the Texas Juvenile Probation Commission for analytical purposes; and

(5) to the office of criminal and juvenile justice [independent] ombudsman established under Chapter 502, Government Code [of the Texas Youth Commission].

SECTION 4. Section 61.0763(a), Human Resources Code, as added by Section 49, Chapter 263 (S.B. 103), Acts of the 80th Legislature, Regular Session, 2007, is amended to read as follows:

(a) The commission, in consultation with advocacy and support groups such as those described in Section 61.0386(a), shall develop a parent's bill of rights for distribution to the parent or guardian of a child who is under 18 years of age and committed to the commission. The parent's bill of rights must include:

(1) a description of the commission's grievance policies and procedures, including contact information for the office of inspector general and the office of criminal and juvenile justice [the independent] ombudsman established under Chapter 502, Government Code [Chapter 64];

(2) a list of possible incidents that require parental notification;

(3) policies concerning visits and telephone conversations with a child committed to the commission;

(4) a description of commission caseworker responsibilities;

(5) a statement that the commission caseworker assigned to a child may assist the child's parent or guardian in obtaining information and services from the commission and other resources concerning:

(A) counseling, including substance abuse and mental health counseling;

(B) assistance programs, including financial and travel assistance programs for visiting a child committed to the commission;

(C) workforce preparedness programs;

(D) parenting programs; and

(E) commission seminars; and

(6) information concerning the indeterminate sentencing structure at the commission, an explanation of reasons that a child's commitment at the commission could be extended, and an explanation of the review process under Sections 61.0815 and 61.0816 for a child committed to the commission without a determinate sentence.

SECTION 5. Chapter 64, Human Resources Code, is repealed.

SECTION 6. The executive commissioner of the Texas Youth Commission, the executive director of the Texas Department of Criminal Justice, and the public safety director of the Department of Public Safety shall jointly appoint the criminal and juvenile justice ombudsman under Section 502.051, Government Code, as added by this Act, as soon as practicable after the effective date of this Act, and in no event later than January 1, 2010.

SECTION 7. 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, 2009.