81R10583 YDB-D
By: Gattis H.B. No. 2731
A BILL TO BE ENTITLED
AN ACT
relating to attorney general representation in a contested case
hearing of a person licensed or regulated by certain state
agencies.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 153.013, Occupations Code, is amended to
read as follows:
Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL. The
attorney general shall represent the board [shall be represented]
in:
(1) court proceedings; and
(2) contested case proceedings under Chapter 2001,
Government Code, related to an individual licensed or regulated by
the board [attorney general].
SECTION 2. Sections 164.007(a), (b), and (d), Occupations
Code, are amended to read as follows:
(a) The board by rule shall adopt procedures governing
formal disposition of a contested case under Chapter 2001,
Government Code. A formal hearing shall be conducted by an
administrative law judge employed by the State Office of
Administrative Hearings. The attorney general shall represent the
board in the formal hearing. After receiving the administrative
law judge's findings of fact and conclusions of law, the board shall
determine the charges on the merits.
(b) Notwithstanding this subtitle or other law, the board
may employ, retain, and compensate:
(1) attorneys, consultants, and other professionals
as necessary and appropriate to serve as board consultants for [or
special counsel to prosecute] complaints filed with the board on
behalf of the hearings division and investigating division; and
(2) court reporters and other staff necessary to
prepare for or represent the board in the hearings authorized by
this section.
(d) Not later than the 30th day after the date of receipt of
a written request from a license holder who is the subject of a
formal complaint initiated and filed under Section 164.005 or from
the license holder's counsel of record, and subject to any other
privilege or restriction set forth by rule, statute, or legal
precedent, and unless good cause is shown for delay, the attorney
general [board] shall provide the license holder with access to all
information in the attorney general's [its] possession that the
attorney general [board] intends to offer into evidence in
presenting the attorney general's [its] case in chief at the
contested hearing on the complaint. The attorney general [board]
is not required to provide:
(1) a board investigative report or memorandum;
(2) the identity of a nontestifying complainant; or
(3) attorney-client communications, attorney work
product, or other materials covered by a privilege recognized by
the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
SECTION 3. Section 201.206(c), Occupations Code, is amended
to read as follows:
(c) On the completion of the investigation and before a
hearing under Section 201.505, the attorney general [board] shall
provide to the license holder, subject to any other privilege or
restriction set forth by rule, statute, or legal precedent, access
to all information in the attorney general's [board's] possession
that the attorney general [board] intends to offer into evidence in
presenting the attorney general's [its] case in chief at the
contested case hearing on the complaint. The attorney general
[board] is not required to provide:
(1) a board investigative report or memorandum;
(2) the identity of a nontestifying complainant; or
(3) attorney-client communications, attorney work
product, or other materials covered by a privilege recognized by
the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
SECTION 4. Section 201.509, Occupations Code, is amended by
adding Subsection (c) to read as follows:
(c) The attorney general shall represent the board in
contested case proceedings under Chapter 2001, Government Code,
related to an individual licensed or regulated by the board.
SECTION 5. Sections 202.509(b) and (c), Occupations Code,
are amended to read as follows:
(b) Subject to any other privilege or restriction
established by law, not later than the 30th day after the date the
board receives a written request from a license holder, or the
license holder's attorney, who is the subject of a formal
complaint, the attorney general [board] shall provide the license
holder with access to all information in the attorney general's
[board's] possession that the attorney general [board] intends to
offer into evidence at the contested case hearing on the complaint.
The attorney general [board] may provide access to the information
to the license holder after the 30th day after the date the board
receives a request only on a showing of good cause.
(c) The attorney general [board] is not required under
Subsection (b) to provide access to the board's investigative
reports or memoranda, release the identity of a complainant who
will not testify at the hearing, or release information that is an
attorney's work product or protected by the attorney-client
privilege or another privilege recognized by the Texas Rules of
Civil Procedure or Texas Rules of Evidence. The furnishing of
information under Subsection (b) does not constitute a waiver of
any privilege or confidentiality provision under law.
SECTION 6. Section 202.555, Occupations Code, is amended by
adding Subsection (d) to read as follows:
(d) The attorney general shall represent the board in a
hearing conducted under this section.
SECTION 7. Section 202.6015(d), Occupations Code, is
amended to read as follows:
(d) A hearing under this section is subject to Chapter 2001,
Government Code. The attorney general shall represent the board in
the hearing.
SECTION 8. Sections 204.252(a) and (b), Occupations Code,
are amended to read as follows:
(a) The attorney general [physician assistant board] shall
provide a license holder who is the subject of a formal complaint
filed under this chapter with access to all information in the
attorney general's [its] possession that the attorney general
[board] intends to offer into evidence in presenting the attorney
general's [its] case in chief at the contested hearing on the
complaint, subject to any other privilege or restriction
established by rule, statute, or legal precedent. The attorney
general [board] shall provide the information not later than the
30th day after receipt of a written request from the license holder
or the license holder's counsel, unless good cause is shown for
delay.
(b) Notwithstanding Subsection (a), the attorney general
[board] is not required to provide:
(1) board investigative reports;
(2) investigative memoranda;
(3) the identity of a nontestifying complainant;
(4) attorney-client communications;
(5) attorney work product; or
(6) other material covered by a privilege recognized
by the Texas Rules of Civil Procedure or the Texas Rules of
Evidence.
SECTION 9. Sections 206.155(a) and (b), Occupations Code,
are amended to read as follows:
(a) The attorney general [medical board] shall provide a
license holder who is the subject of a formal complaint filed under
this chapter with access to all information in the attorney
general's [its] possession that the attorney general [medical
board] intends to offer into evidence in presenting the attorney
general's [its] case in chief at the contested hearing on the
complaint, subject to any other privilege or restriction
established by rule, statute, or legal precedent. The attorney
general [medical board] shall provide the information not later
than the 30th day after receipt of a written request from the
license holder or the license holder's counsel, unless good cause
is shown for delay.
(b) Notwithstanding Subsection (a), the attorney general
[medical board] is not required to provide:
(1) medical board investigative reports;
(2) investigative memoranda;
(3) the identity of a nontestifying complainant;
(4) attorney-client communications;
(5) attorney work product; or
(6) other material covered by a privilege recognized
by the Texas Rules of Civil Procedure or the Texas Rules of
Evidence.
SECTION 10. Section 263.009, Occupations Code, is amended
to read as follows:
Sec. 263.009. APPEAL. A person aggrieved by a decision of
the board under this chapter is entitled to appeal as provided by
Chapter 2001, Government Code. The attorney general shall
represent the board in contested case proceedings under Chapter
2001, Government Code, related to an individual licensed or
regulated by the board.
SECTION 11. Section 264.005, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) The attorney general shall represent the board in a
hearing conducted under this section.
SECTION 12. Section 301.162, Occupations Code, is amended
to read as follows:
Sec. 301.162. LEGAL COUNSEL. (a) The board may retain legal
counsel to represent the board if first:
(1) the board requests the attorney general to
represent the board; and
(2) the attorney general certifies to the board that
the attorney general cannot provide those services, subject to
Subsection (b).
(b) The attorney general shall represent the board in
contested case proceedings under Chapter 2001, Government Code,
related to an individual licensed or regulated by the board.
SECTION 13. Section 301.459, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The attorney general shall represent the board in a
hearing conducted under this section.
SECTION 14. Sections 301.460(a) and (b), Occupations Code,
are amended to read as follows:
(a) Except for good cause shown for delay and subject to any
other privilege or restriction set forth by statute, rule, or legal
precedent, the attorney general [board] shall, not later than the
30th day after the date the board receives a written request from a
license holder who is the subject of a formal charge filed under
Section 301.458 or from the license holder's counsel of record,
provide the license holder with access to:
(1) all known exculpatory information in the attorney
general's [board's] possession; and
(2) information in the attorney general's [board's]
possession that the attorney general [board] intends to offer into
evidence in presenting the attorney general's [its] case in chief
at the contested hearing on the complaint.
(b) The attorney general [board] is not required to provide:
(1) board investigative reports or investigative
memoranda;
(2) the identity of nontestifying complainants;
(3) attorney-client communications;
(4) attorney work product; or
(5) other materials covered by a privilege as
recognized by the Texas Rules of Civil Procedure or the Texas Rules
of Evidence.
SECTION 15. Section 301.511, Occupations Code, is amended
to read as follows:
Sec. 301.511. ADMINISTRATIVE PROCEDURE; REPRESENTATION BY
ATTORNEY GENERAL. (a) A proceeding under this subchapter is subject
to Chapter 2001, Government Code.
(b) The attorney general shall represent the board in
contested case proceedings under Chapter 2001, Government Code,
related to an individual licensed or regulated by the board.
SECTION 16. Section 351.158, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) The attorney general shall represent the board in
contested case proceedings under Chapter 2001, Government Code,
related to an individual licensed or regulated by the board.
SECTION 17. Section 351.2045(c), Occupations Code, is
amended to read as follows:
(c) On the completion of the investigation and before a
hearing under Section 351.503, the attorney general [board] shall
provide to the license holder, subject to any other privilege or
restriction set forth by rule, statute, or legal precedent, access
to all information in the attorney general's [board's] possession
that the attorney general [board] intends to offer into evidence in
presenting the attorney general's [its] case in chief at the
contested case hearing on the complaint. The attorney general
[board] is not required to provide:
(1) a board investigative report or memorandum;
(2) the identity of a nontestifying complainant; or
(3) attorney-client communications, attorney work
product, or other materials covered by a privilege recognized by
the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
SECTION 18. Section 351.503(c), Occupations Code, is
amended to read as follows:
(c) Disciplinary proceedings are governed by Chapter 2001,
Government Code. The attorney general shall represent the board in
a contested case proceeding under Chapter 2001, Government Code.
SECTION 19. Section 351.555, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The attorney general shall represent the board in a
hearing under this section.
SECTION 20. Section 501.409, Occupations Code, is amended
to read as follows:
Sec. 501.409. ADMINISTRATIVE PROCEDURE; ATTORNEY GENERAL
REPRESENTATION. (a) A proceeding to refuse, revoke, or suspend a
license or to reprimand a person is governed by Chapter 2001,
Government Code.
(b) The attorney general shall represent the board in
contested case proceedings under Chapter 2001, Government Code,
related to an individual licensed or regulated by the board.
SECTION 21. Section 501.455, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) The attorney general shall represent the board in a
hearing under this section.
SECTION 22. Section 554.001(d), Occupations Code, is
amended to read as follows:
(d) The board may be represented by counsel, including the
attorney general, district attorney, or county attorney, if
necessary in a legal action taken under this subtitle. The attorney
general shall represent the board in contested case proceedings
under Chapter 2001, Government Code, related to an individual
licensed or regulated by the board.
SECTION 23. Section 566.009, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The attorney general shall represent the board in
contested case proceedings under Chapter 2001, Government Code,
related to an individual licensed or regulated by the board.
SECTION 24. The changes in law made by this Act apply only
to a written request for a contested case proceeding submitted to
the Texas Medical Board, Texas State Board of Acupuncture
Examiners, Texas Physician Assistant Board, State Board of Dental
Examiners, Texas Board of Nursing, Texas Board of Chiropractic
Examiners, Texas State Board of Podiatric Medical Examiners, Texas
Optometry Board, Texas State Board of Examiners of Psychologists,
or Texas State Board of Pharmacy on or after the effective date of
this Act. A written request submitted before the effective date of
this Act is covered by the law in effect immediately before the
effective date, and that law is continued in effect for that
purpose.
SECTION 25. This Act takes effect September 1, 2009.