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A BILL TO BE ENTITLED
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AN ACT
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relating to attorney general representation in a contested case |
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hearing of a person licensed or regulated by certain state |
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agencies. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 153.013, Occupations Code, is amended to |
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read as follows: |
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Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL. The |
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attorney general shall represent the board [shall be represented] |
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in: |
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(1) court proceedings; and |
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(2) contested case proceedings under Chapter 2001, |
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Government Code, related to an individual licensed or regulated by |
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the board [attorney general]. |
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SECTION 2. Sections 164.007(a), (b), and (d), Occupations |
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Code, are amended to read as follows: |
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(a) The board by rule shall adopt procedures governing |
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formal disposition of a contested case under Chapter 2001, |
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Government Code. A formal hearing shall be conducted by an |
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administrative law judge employed by the State Office of |
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Administrative Hearings. The attorney general shall represent the |
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board in the formal hearing. After receiving the administrative |
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law judge's findings of fact and conclusions of law, the board shall |
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determine the charges on the merits. |
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(b) Notwithstanding this subtitle or other law, the board |
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may employ, retain, and compensate: |
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(1) attorneys, consultants, and other professionals |
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as necessary and appropriate to serve as board consultants for [or
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special counsel to prosecute] complaints filed with the board on |
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behalf of the hearings division and investigating division; and |
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(2) court reporters and other staff necessary to |
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prepare for or represent the board in the hearings authorized by |
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this section. |
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(d) Not later than the 30th day after the date of receipt of |
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a written request from a license holder who is the subject of a |
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formal complaint initiated and filed under Section 164.005 or from |
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the license holder's counsel of record, and subject to any other |
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privilege or restriction set forth by rule, statute, or legal |
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precedent, and unless good cause is shown for delay, the attorney |
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general [board] shall provide the license holder with access to all |
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information in the attorney general's [its] possession that the |
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attorney general [board] intends to offer into evidence in |
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presenting the attorney general's [its] case in chief at the |
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contested hearing on the complaint. The attorney general [board] |
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is not required to provide: |
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(1) a board investigative report or memorandum; |
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(2) the identity of a nontestifying complainant; or |
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(3) attorney-client communications, attorney work |
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product, or other materials covered by a privilege recognized by |
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the Texas Rules of Civil Procedure or the Texas Rules of Evidence. |
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SECTION 3. Section 201.206(c), Occupations Code, is amended |
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to read as follows: |
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(c) On the completion of the investigation and before a |
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hearing under Section 201.505, the attorney general [board] shall |
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provide to the license holder, subject to any other privilege or |
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restriction set forth by rule, statute, or legal precedent, access |
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to all information in the attorney general's [board's] possession |
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that the attorney general [board] intends to offer into evidence in |
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presenting the attorney general's [its] case in chief at the |
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contested case hearing on the complaint. The attorney general |
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[board] is not required to provide: |
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(1) a board investigative report or memorandum; |
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(2) the identity of a nontestifying complainant; or |
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(3) attorney-client communications, attorney work |
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product, or other materials covered by a privilege recognized by |
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the Texas Rules of Civil Procedure or the Texas Rules of Evidence. |
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SECTION 4. Section 201.509, Occupations Code, is amended by |
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adding Subsection (c) to read as follows: |
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(c) The attorney general shall represent the board in |
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contested case proceedings under Chapter 2001, Government Code, |
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related to an individual licensed or regulated by the board. |
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SECTION 5. Sections 202.509(b) and (c), Occupations Code, |
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are amended to read as follows: |
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(b) Subject to any other privilege or restriction |
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established by law, not later than the 30th day after the date the |
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board receives a written request from a license holder, or the |
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license holder's attorney, who is the subject of a formal |
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complaint, the attorney general [board] shall provide the license |
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holder with access to all information in the attorney general's |
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[board's] possession that the attorney general [board] intends to |
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offer into evidence at the contested case hearing on the complaint. |
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The attorney general [board] may provide access to the information |
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to the license holder after the 30th day after the date the board |
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receives a request only on a showing of good cause. |
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(c) The attorney general [board] is not required under |
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Subsection (b) to provide access to the board's investigative |
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reports or memoranda, release the identity of a complainant who |
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will not testify at the hearing, or release information that is an |
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attorney's work product or protected by the attorney-client |
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privilege or another privilege recognized by the Texas Rules of |
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Civil Procedure or Texas Rules of Evidence. The furnishing of |
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information under Subsection (b) does not constitute a waiver of |
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any privilege or confidentiality provision under law. |
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SECTION 6. Section 202.555, Occupations Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) The attorney general shall represent the board in a |
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hearing conducted under this section. |
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SECTION 7. Section 202.6015(d), Occupations Code, is |
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amended to read as follows: |
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(d) A hearing under this section is subject to Chapter 2001, |
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Government Code. The attorney general shall represent the board in |
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the hearing. |
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SECTION 8. Sections 204.252(a) and (b), Occupations Code, |
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are amended to read as follows: |
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(a) The attorney general [physician assistant board] shall |
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provide a license holder who is the subject of a formal complaint |
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filed under this chapter with access to all information in the |
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attorney general's [its] possession that the attorney general |
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[board] intends to offer into evidence in presenting the attorney |
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general's [its] case in chief at the contested hearing on the |
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complaint, subject to any other privilege or restriction |
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established by rule, statute, or legal precedent. The attorney |
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general [board] shall provide the information not later than the |
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30th day after receipt of a written request from the license holder |
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or the license holder's counsel, unless good cause is shown for |
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delay. |
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(b) Notwithstanding Subsection (a), the attorney general |
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[board] is not required to provide: |
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(1) board investigative reports; |
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(2) investigative memoranda; |
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(3) the identity of a nontestifying complainant; |
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(4) attorney-client communications; |
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(5) attorney work product; or |
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(6) other material covered by a privilege recognized |
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by the Texas Rules of Civil Procedure or the Texas Rules of |
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Evidence. |
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SECTION 9. Sections 206.155(a) and (b), Occupations Code, |
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are amended to read as follows: |
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(a) The attorney general [medical board] shall provide a |
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license holder who is the subject of a formal complaint filed under |
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this chapter with access to all information in the attorney |
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general's [its] possession that the attorney general [medical
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board] intends to offer into evidence in presenting the attorney |
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general's [its] case in chief at the contested hearing on the |
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complaint, subject to any other privilege or restriction |
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established by rule, statute, or legal precedent. The attorney |
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general [medical board] shall provide the information not later |
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than the 30th day after receipt of a written request from the |
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license holder or the license holder's counsel, unless good cause |
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is shown for delay. |
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(b) Notwithstanding Subsection (a), the attorney general |
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[medical board] is not required to provide: |
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(1) medical board investigative reports; |
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(2) investigative memoranda; |
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(3) the identity of a nontestifying complainant; |
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(4) attorney-client communications; |
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(5) attorney work product; or |
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(6) other material covered by a privilege recognized |
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by the Texas Rules of Civil Procedure or the Texas Rules of |
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Evidence. |
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SECTION 10. Section 263.009, Occupations Code, is amended |
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to read as follows: |
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Sec. 263.009. APPEAL. A person aggrieved by a decision of |
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the board under this chapter is entitled to appeal as provided by |
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Chapter 2001, Government Code. The attorney general shall |
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represent the board in contested case proceedings under Chapter |
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2001, Government Code, related to an individual licensed or |
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regulated by the board. |
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SECTION 11. Section 264.005, Occupations Code, is amended |
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by adding Subsection (d) to read as follows: |
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(d) The attorney general shall represent the board in a |
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hearing conducted under this section. |
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SECTION 12. Section 301.162, Occupations Code, is amended |
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to read as follows: |
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Sec. 301.162. LEGAL COUNSEL. (a) The board may retain legal |
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counsel to represent the board if first: |
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(1) the board requests the attorney general to |
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represent the board; and |
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(2) the attorney general certifies to the board that |
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the attorney general cannot provide those services, subject to |
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Subsection (b). |
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(b) The attorney general shall represent the board in |
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contested case proceedings under Chapter 2001, Government Code, |
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related to an individual licensed or regulated by the board. |
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SECTION 13. Section 301.459, Occupations Code, is amended |
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by adding Subsection (c) to read as follows: |
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(c) The attorney general shall represent the board in a |
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hearing conducted under this section. |
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SECTION 14. Sections 301.460(a) and (b), Occupations Code, |
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are amended to read as follows: |
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(a) Except for good cause shown for delay and subject to any |
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other privilege or restriction set forth by statute, rule, or legal |
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precedent, the attorney general [board] shall, not later than the |
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30th day after the date the board receives a written request from a |
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license holder who is the subject of a formal charge filed under |
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Section 301.458 or from the license holder's counsel of record, |
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provide the license holder with access to: |
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(1) all known exculpatory information in the attorney |
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general's [board's] possession; and |
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(2) information in the attorney general's [board's] |
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possession that the attorney general [board] intends to offer into |
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evidence in presenting the attorney general's [its] case in chief |
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at the contested hearing on the complaint. |
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(b) The attorney general [board] is not required to provide: |
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(1) board investigative reports or investigative |
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memoranda; |
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(2) the identity of nontestifying complainants; |
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(3) attorney-client communications; |
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(4) attorney work product; or |
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(5) other materials covered by a privilege as |
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recognized by the Texas Rules of Civil Procedure or the Texas Rules |
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of Evidence. |
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SECTION 15. Section 301.511, Occupations Code, is amended |
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to read as follows: |
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Sec. 301.511. ADMINISTRATIVE PROCEDURE; REPRESENTATION BY |
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ATTORNEY GENERAL. (a) A proceeding under this subchapter is subject |
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to Chapter 2001, Government Code. |
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(b) The attorney general shall represent the board in |
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contested case proceedings under Chapter 2001, Government Code, |
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related to an individual licensed or regulated by the board. |
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SECTION 16. Section 351.158, Occupations Code, is amended |
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by adding Subsection (d) to read as follows: |
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(d) The attorney general shall represent the board in |
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contested case proceedings under Chapter 2001, Government Code, |
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related to an individual licensed or regulated by the board. |
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SECTION 17. Section 351.2045(c), Occupations Code, is |
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amended to read as follows: |
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(c) On the completion of the investigation and before a |
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hearing under Section 351.503, the attorney general [board] shall |
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provide to the license holder, subject to any other privilege or |
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restriction set forth by rule, statute, or legal precedent, access |
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to all information in the attorney general's [board's] possession |
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that the attorney general [board] intends to offer into evidence in |
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presenting the attorney general's [its] case in chief at the |
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contested case hearing on the complaint. The attorney general |
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[board] is not required to provide: |
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(1) a board investigative report or memorandum; |
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(2) the identity of a nontestifying complainant; or |
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(3) attorney-client communications, attorney work |
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product, or other materials covered by a privilege recognized by |
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the Texas Rules of Civil Procedure or the Texas Rules of Evidence. |
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SECTION 18. Section 351.503(c), Occupations Code, is |
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amended to read as follows: |
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(c) Disciplinary proceedings are governed by Chapter 2001, |
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Government Code. The attorney general shall represent the board in |
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a contested case proceeding under Chapter 2001, Government Code. |
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SECTION 19. Section 351.555, Occupations Code, is amended |
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by adding Subsection (c) to read as follows: |
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(c) The attorney general shall represent the board in a |
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hearing under this section. |
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SECTION 20. Section 501.409, Occupations Code, is amended |
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to read as follows: |
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Sec. 501.409. ADMINISTRATIVE PROCEDURE; ATTORNEY GENERAL |
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REPRESENTATION. (a) A proceeding to refuse, revoke, or suspend a |
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license or to reprimand a person is governed by Chapter 2001, |
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Government Code. |
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(b) The attorney general shall represent the board in |
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contested case proceedings under Chapter 2001, Government Code, |
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related to an individual licensed or regulated by the board. |
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SECTION 21. Section 501.455, Occupations Code, is amended |
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by adding Subsection (d) to read as follows: |
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(d) The attorney general shall represent the board in a |
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hearing under this section. |
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SECTION 22. Section 554.001(d), Occupations Code, is |
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amended to read as follows: |
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(d) The board may be represented by counsel, including the |
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attorney general, district attorney, or county attorney, if |
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necessary in a legal action taken under this subtitle. The attorney |
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general shall represent the board in contested case proceedings |
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under Chapter 2001, Government Code, related to an individual |
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licensed or regulated by the board. |
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SECTION 23. Section 566.009, Occupations Code, is amended |
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by adding Subsection (c) to read as follows: |
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(c) The attorney general shall represent the board in |
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contested case proceedings under Chapter 2001, Government Code, |
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related to an individual licensed or regulated by the board. |
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SECTION 24. The changes in law made by this Act apply only |
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to a written request for a contested case proceeding submitted to |
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the Texas Medical Board, Texas State Board of Acupuncture |
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Examiners, Texas Physician Assistant Board, State Board of Dental |
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Examiners, Texas Board of Nursing, Texas Board of Chiropractic |
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Examiners, Texas State Board of Podiatric Medical Examiners, Texas |
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Optometry Board, Texas State Board of Examiners of Psychologists, |
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or Texas State Board of Pharmacy on or after the effective date of |
|
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this Act. A written request submitted before the effective date of |
|
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this Act is covered by the law in effect immediately before the |
|
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effective date, and that law is continued in effect for that |
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purpose. |
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SECTION 25. This Act takes effect September 1, 2009. |