|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to state agency investigations. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
ARTICLE 1. DUE PROCESS IN STATE AGENCY INVESTIGATIONS |
|
SECTION 1.01. Chapter 2001, Government Code, is amended by |
|
adding Subchapter J to read as follows: |
|
SUBCHAPTER J. STATE AGENCY INVESTIGATIONS |
|
Sec. 2001.301. DEFINITIONS. In this subchapter: |
|
(1) "Enabling statute" means the statute or rule that |
|
authorizes a state agency to conduct a state agency investigation. |
|
(2) "Request" means a subpoena, civil investigative |
|
demand, request for documents, sworn interrogatory, request for |
|
admission, or request for deposition issued by a state agency as |
|
part of a state agency investigation. |
|
(3) "Requesting agency" means a state agency issuing a |
|
request. |
|
(4) "Responding party" means a party receiving a |
|
request. |
|
(5) "State agency" means an officer, board, |
|
commission, or department in the executive branch of state |
|
government that has statewide jurisdiction. |
|
(6) "State agency investigation" means the efforts of |
|
a state agency to obtain information from a nongovernmental party. |
|
The term does not include: |
|
(A) discovery conducted during a contested case |
|
proceeding under this chapter; |
|
(B) discovery conducted as part of a lawsuit |
|
subject to state or federal rules of civil procedure; |
|
(C) information sought in a criminal or family |
|
law matter; or |
|
(D) information required to be disclosed, |
|
reported, or tendered pursuant to the terms of a valid contract or |
|
lease between the agency and the nongovernmental party. |
|
Sec. 2001.302. APPLICABILITY; CONFLICT OF LAWS. (a) This |
|
subchapter applies to a state agency investigation conducted by a |
|
state agency. |
|
(b) This subchapter is intended to expand the legal |
|
protections provided to a responding party who is subject to a state |
|
agency investigation. To the extent another statute or rule |
|
provides greater legal protections to a responding party than the |
|
legal protections provided in this subchapter, a responding party |
|
is entitled to rely on and receive the legal protection of the other |
|
statute or rule. |
|
Sec. 2001.303. ENABLING STATUTE AUTHORIZATION. A state |
|
agency investigation must be authorized by an enabling statute that |
|
expressly allows the requesting agency to issue a request. This |
|
subchapter is not an enabling statute and does not provide a state |
|
agency with an independent basis for conducting a state agency |
|
investigation. |
|
Sec. 2001.304. CONTENTS OF REQUEST. Each request submitted |
|
by a state agency must: |
|
(1) reference the enabling statute that authorizes the |
|
requesting agency to make the request; |
|
(2) state the applicable time for the responding party |
|
to respond to the request; |
|
(3) state with specificity the information sought from |
|
the responding party; and |
|
(4) specify the form in which the information must be |
|
provided to the requesting agency. |
|
Sec. 2001.305. PERMISSIBILITY OF AGREEMENTS. A requesting |
|
agency and responding party may agree to any terms to facilitate a |
|
state agency investigation, including terms that modify the |
|
provisions of this subchapter. The requesting agency and the |
|
responding party may agree to extend any response time established |
|
by this subchapter or another time applicable to a state agency |
|
investigation, including the time for filing a petition under |
|
Section 2001.313. |
|
Sec. 2001.306. OBJECTIONS TO REQUEST. A responding party |
|
may object to a request on the basis that it is overly broad, unduly |
|
burdensome, irrelevant, vague, ambiguous, or based on another |
|
ground that would be a valid objection to a discovery request made |
|
under the Texas Rules of Civil Procedure. |
|
Sec. 2001.307. ASSERTIONS OF PRIVILEGE. (a) A responding |
|
party may withhold information responsive to a request if the |
|
information is a trade secret or protected by any privilege |
|
recognized by law, the Texas Rules of Civil Procedure, or the Texas |
|
Rules of Evidence. |
|
(b) If information is withheld under Subsection (a), the |
|
responding party must submit to the requesting agency a response |
|
that includes: |
|
(1) a statement that information or material |
|
responsive to the request has been withheld; |
|
(2) a description of the request to which the |
|
information or material relates; and |
|
(3) the privilege asserted. |
|
(c) After receiving a response indicating that material or |
|
information has been withheld, the requesting agency may serve a |
|
written request that the responding party identify the information |
|
and material withheld. Not later than the 15th day after the date |
|
the request under this subsection is received, the responding party |
|
must submit to the requesting agency a response that: |
|
(1) describes the information or materials withheld |
|
that, without revealing the privileged information or otherwise |
|
waiving the privilege, enables the requesting agency to assess the |
|
applicability of the privilege; and |
|
(2) asserts a specific privilege for each item or |
|
group of items withheld. |
|
(d) Without complying with Subsections (a) and (b), a |
|
responding party may withhold a privileged communication to or from |
|
an attorney or attorney's representative or a privileged document |
|
of an attorney or attorney's representative created or made from |
|
the point at which the responding party consults an attorney with a |
|
view to obtaining professional legal services from the attorney |
|
related to the request. |
|
Sec. 2001.308. COMPLIANCE WITH REQUEST. (a) A responding |
|
party must timely respond to a valid request that complies with this |
|
subchapter. A responding party is not required to respond to a |
|
request that: |
|
(1) does not comply with this subchapter; or |
|
(2) is invalid under the appropriate enabling statute |
|
or other law. |
|
(b) If a responding party objects to a request or asserts a |
|
privilege, the responding party is not required to respond to the |
|
portion of the request covered by the privilege or objection until |
|
ordered to comply: |
|
(1) by a court; or |
|
(2) as part of a final decision in a contested case. |
|
(c) The responding party shall timely respond to the |
|
portions of a request that are not covered by an objection or |
|
assertion of privilege. |
|
Sec. 2001.309. REMEDIES FOR REQUESTING AGENCY: CONTESTED |
|
CASE. (a) A requesting agency may initiate a contested case to |
|
obtain: |
|
(1) a response from a responding party who has failed |
|
to comply with a request; or |
|
(2) a ruling on an objection or assertion of privilege |
|
made by a responding party. |
|
(b) A contested case initiated under Subsection (a) must be |
|
conducted in accordance with the rules and other procedures of the |
|
requesting agency for other contested cases. If the requesting |
|
agency has not adopted rules or procedures for contested cases, the |
|
contested case is governed by this chapter. A decision in a |
|
contested case under this section may be appealed in accordance |
|
with this chapter. |
|
(c) Except as provided by Subsection (d), in a contested |
|
case initiated under this subchapter, the relief sought by the |
|
requesting agency is limited to an order requiring compliance with |
|
the request, and a responding party's failure to comply with this |
|
subchapter does not entitle the requesting agency to seek |
|
administrative penalties, attorney's fees, or other remedies. |
|
(d) If the presiding officer in a contested case initiated |
|
under Subsection (a) determines that a responding party objected to |
|
a request in bad faith or asserted a privilege in bad faith, the |
|
presiding officer may award the agency administrative penalties, |
|
attorney's fees, or other remedies sufficient to deter future bad |
|
faith conduct. |
|
(e) This subchapter does not prohibit a requesting agency |
|
from taking other action to ensure compliance with a state agency |
|
investigation authorized by the requesting agency's enabling |
|
statute. The requesting agency may combine a request for relief |
|
under this subchapter with an action for administrative penalties |
|
and other remedies authorized by the requesting agency's enabling |
|
statute. |
|
Sec. 2001.310. CONDUCT OF STATE AGENCY INVESTIGATIONS. In |
|
a state agency investigation conducted under this subchapter, a |
|
responding party is entitled to be represented by counsel and may |
|
cross-examine witnesses. |
|
Sec. 2001.311. ORAL EXAMINATION. (a) The examination of |
|
any witness under a demand for oral testimony served under this |
|
section must be taken before a person authorized to administer |
|
oaths and affirmations by state or federal law. The person before |
|
whom the testimony is to be taken shall administer the oath or |
|
affirmation and personally, or by someone acting under the person's |
|
direction in the person's presence, record the witness's testimony. |
|
At the expense of the requesting agency, the testimony must be taken |
|
stenographically and may be transcribed. |
|
(b) The witness's oral testimony under this section must be |
|
taken in the county in which the witness resides, is found, or |
|
transacts business or in another place agreed to by the witness and |
|
the requesting agency. |
|
(c) Any witness compelled to appear under this section may |
|
be accompanied, represented, and advised by an attorney. The |
|
attorney may advise the witness in confidence on any question |
|
arising in connection with the examination. |
|
(d) The person conducting the examination on behalf of the |
|
requesting agency shall exclude from the place of examination all |
|
other persons except the witness being examined, the witness's |
|
attorney, the person before whom the testimony is to be taken, any |
|
stenographer taking the testimony, and any persons assisting the |
|
person conducting the examination. |
|
(e) During the examination, the witness being examined or |
|
the witness's attorney may object on the record to any question, |
|
wholly or partly, and shall briefly state for the record the reason |
|
for the objection. An objection may properly be made, received, and |
|
entered on the record when it is claimed that the witness is |
|
entitled to refuse to answer the question on grounds of any |
|
constitutional or other legal right or privilege, including the |
|
privilege against self-incrimination. The witness or the witness's |
|
attorney may not otherwise object to or refuse to answer any |
|
question or interrupt the oral examination. If the witness refuses |
|
to answer any question, the requesting agency may petition the |
|
district court in the county in which the examination is being |
|
conducted for an order compelling the witness to answer the |
|
question. |
|
(f) If the testimony is fully transcribed, the person before |
|
whom the testimony was taken shall promptly transmit the transcript |
|
of the testimony to the witness and a copy of the transcript to the |
|
requesting agency. The witness shall have a reasonable opportunity |
|
to examine the transcript and make any changes in form or substance |
|
accompanied by a statement of the reasons for the changes. The |
|
witness shall sign and return the transcript, unless the witness is |
|
ill, cannot be found, refuses to sign, or in writing waives the |
|
signing. If the witness does not sign the transcript on or before |
|
the 15th day after the date the witness receives the transcript, the |
|
person before whom the testimony has been given shall sign it and |
|
state on the record the reason, if known, for the witness's failure |
|
to sign. The person transcribing the testimony shall certify on the |
|
transcript that the witness was duly sworn and that the transcript |
|
is a true record of the testimony given by the witness and promptly |
|
transmit a copy of the certified transcript to the requesting |
|
agency. |
|
(g) On request, the requesting agency shall furnish a copy |
|
of the certified transcript to the witness. |
|
(h) The witness is entitled to the same fees and mileage |
|
that are paid to witnesses in the district courts of this state. |
|
ARTICLE 2. CONFORMING CHANGES |
|
SECTION 2.01. Section 2001.003(7), Government Code, is |
|
amended to read as follows: |
|
(7) "State agency" means a state officer, board, |
|
commission, or department with statewide jurisdiction that makes |
|
rules or determines contested cases. The term includes the State |
|
Office of Administrative Hearings for the purpose of determining |
|
contested cases. Except as otherwise provided by this chapter, |
|
the [The] term does not include: |
|
(A) a state agency wholly financed by federal |
|
money; |
|
(B) the legislature; |
|
(C) the courts; |
|
(D) the Texas Department of Insurance, as regards |
|
proceedings and activities under Title 5, Labor Code, of the |
|
department, the commissioner of insurance, or the commissioner of |
|
workers' compensation; or |
|
(E) an institution of higher education. |
|
SECTION 2.02. Subchapter B, Chapter 5, Alcoholic Beverage |
|
Code, is amended by adding Section 5.439 to read as follows: |
|
Sec. 5.439. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.03. Subchapter B, Chapter 15, Business & Commerce |
|
Code, is amended by adding Section 15.101 to read as follows: |
|
Sec. 15.101. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.04. Subchapter E, Chapter 14, Finance Code, is |
|
amended by adding Section 14.2029 to read as follows: |
|
Sec. 14.2029. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.05. Subchapter C, Chapter 35, Finance Code, is |
|
amended by adding Section 35.2029 to read as follows: |
|
Sec. 35.2029. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.06. Subchapter B, Chapter 66, Finance Code, is |
|
amended by adding Section 66.0539 to read as follows: |
|
Sec. 66.0539. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.07. Subchapter B, Chapter 96, Finance Code, is |
|
amended by adding Section 96.0569 to read as follows: |
|
Sec. 96.0569. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.08. Subchapter B, Chapter 126, Finance Code, is |
|
amended by adding Section 126.0529 to read as follows: |
|
Sec. 126.0529. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.09. Subchapter C, Chapter 36, Insurance Code, is |
|
amended by adding Section 36.1515 to read as follows: |
|
Sec. 36.1515. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this subtitle is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this subtitle and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.10. Subchapter G, Chapter 51, Occupations Code, |
|
is amended by adding Section 51.35119 to read as follows: |
|
Sec. 51.35119. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.11. Subchapter A, Chapter 153, Occupations Code, |
|
is amended by adding Section 153.0069 to read as follows: |
|
Sec. 153.0069. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.12. Subchapter G, Chapter 204, Occupations Code, |
|
is amended by adding Section 204.307 to read as follows: |
|
Sec. 204.307. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.13. Subchapter H, Chapter 205, Occupations Code, |
|
is amended by adding Section 205.3589 to read as follows: |
|
Sec. 205.3589. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
SECTION 2.14. Subchapter G, Chapter 206, Occupations Code, |
|
is amended by adding Section 206.3079 to read as follows: |
|
Sec. 206.3079. STATE AGENCY INVESTIGATION. (a) In this |
|
section, "responding party" and "request" have the meanings |
|
assigned by Section 2001.301, Government Code. |
|
(b) A request submitted under this chapter is governed by |
|
Subchapter J, Chapter 2001, Government Code. To the extent of any |
|
conflict between the provisions of this chapter and Subchapter J, |
|
Chapter 2001, Government Code, the provisions that provide the |
|
greatest legal protections to a responding party control. |
|
ARTICLE 3. TRANSITION AND EFFECTIVE DATE |
|
SECTION 3.01. Subchapter J, Chapter 2001, Government Code, |
|
as added by this Act, applies only to a request submitted to a |
|
responding party by a state agency on or after the effective date of |
|
this Act. A request submitted before that date is governed by the |
|
law in effect on the date the request was submitted, and that law is |
|
continued in effect for that purpose. |
|
SECTION 3.02. This Act takes effect September 1, 2017. |