TX
Texas House Bill HB2731

Texas 2009 - 81st Regular

Texas House Bill HB2731 Compare Versions

Only one version of the bill is available at this time.
OldNewDifferences
11 81R10583 YDB-D
22 By: Gattis H.B. No. 2731
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to attorney general representation in a contested case
88 hearing of a person licensed or regulated by certain state
99 agencies.
1010 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1111 SECTION 1. Section 153.013, Occupations Code, is amended to
1212 read as follows:
1313 Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL. The
1414 attorney general shall represent the board [shall be represented]
1515 in:
1616 (1) court proceedings; and
1717 (2) contested case proceedings under Chapter 2001,
1818 Government Code, related to an individual licensed or regulated by
1919 the board [attorney general].
2020 SECTION 2. Sections 164.007(a), (b), and (d), Occupations
2121 Code, are amended to read as follows:
2222 (a) The board by rule shall adopt procedures governing
2323 formal disposition of a contested case under Chapter 2001,
2424 Government Code. A formal hearing shall be conducted by an
2525 administrative law judge employed by the State Office of
2626 Administrative Hearings. The attorney general shall represent the
2727 board in the formal hearing. After receiving the administrative
2828 law judge's findings of fact and conclusions of law, the board shall
2929 determine the charges on the merits.
3030 (b) Notwithstanding this subtitle or other law, the board
3131 may employ, retain, and compensate:
3232 (1) attorneys, consultants, and other professionals
3333 as necessary and appropriate to serve as board consultants for [or
3434 special counsel to prosecute] complaints filed with the board on
3535 behalf of the hearings division and investigating division; and
3636 (2) court reporters and other staff necessary to
3737 prepare for or represent the board in the hearings authorized by
3838 this section.
3939 (d) Not later than the 30th day after the date of receipt of
4040 a written request from a license holder who is the subject of a
4141 formal complaint initiated and filed under Section 164.005 or from
4242 the license holder's counsel of record, and subject to any other
4343 privilege or restriction set forth by rule, statute, or legal
4444 precedent, and unless good cause is shown for delay, the attorney
4545 general [board] shall provide the license holder with access to all
4646 information in the attorney general's [its] possession that the
4747 attorney general [board] intends to offer into evidence in
4848 presenting the attorney general's [its] case in chief at the
4949 contested hearing on the complaint. The attorney general [board]
5050 is not required to provide:
5151 (1) a board investigative report or memorandum;
5252 (2) the identity of a nontestifying complainant; or
5353 (3) attorney-client communications, attorney work
5454 product, or other materials covered by a privilege recognized by
5555 the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
5656 SECTION 3. Section 201.206(c), Occupations Code, is amended
5757 to read as follows:
5858 (c) On the completion of the investigation and before a
5959 hearing under Section 201.505, the attorney general [board] shall
6060 provide to the license holder, subject to any other privilege or
6161 restriction set forth by rule, statute, or legal precedent, access
6262 to all information in the attorney general's [board's] possession
6363 that the attorney general [board] intends to offer into evidence in
6464 presenting the attorney general's [its] case in chief at the
6565 contested case hearing on the complaint. The attorney general
6666 [board] is not required to provide:
6767 (1) a board investigative report or memorandum;
6868 (2) the identity of a nontestifying complainant; or
6969 (3) attorney-client communications, attorney work
7070 product, or other materials covered by a privilege recognized by
7171 the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
7272 SECTION 4. Section 201.509, Occupations Code, is amended by
7373 adding Subsection (c) to read as follows:
7474 (c) The attorney general shall represent the board in
7575 contested case proceedings under Chapter 2001, Government Code,
7676 related to an individual licensed or regulated by the board.
7777 SECTION 5. Sections 202.509(b) and (c), Occupations Code,
7878 are amended to read as follows:
7979 (b) Subject to any other privilege or restriction
8080 established by law, not later than the 30th day after the date the
8181 board receives a written request from a license holder, or the
8282 license holder's attorney, who is the subject of a formal
8383 complaint, the attorney general [board] shall provide the license
8484 holder with access to all information in the attorney general's
8585 [board's] possession that the attorney general [board] intends to
8686 offer into evidence at the contested case hearing on the complaint.
8787 The attorney general [board] may provide access to the information
8888 to the license holder after the 30th day after the date the board
8989 receives a request only on a showing of good cause.
9090 (c) The attorney general [board] is not required under
9191 Subsection (b) to provide access to the board's investigative
9292 reports or memoranda, release the identity of a complainant who
9393 will not testify at the hearing, or release information that is an
9494 attorney's work product or protected by the attorney-client
9595 privilege or another privilege recognized by the Texas Rules of
9696 Civil Procedure or Texas Rules of Evidence. The furnishing of
9797 information under Subsection (b) does not constitute a waiver of
9898 any privilege or confidentiality provision under law.
9999 SECTION 6. Section 202.555, Occupations Code, is amended by
100100 adding Subsection (d) to read as follows:
101101 (d) The attorney general shall represent the board in a
102102 hearing conducted under this section.
103103 SECTION 7. Section 202.6015(d), Occupations Code, is
104104 amended to read as follows:
105105 (d) A hearing under this section is subject to Chapter 2001,
106106 Government Code. The attorney general shall represent the board in
107107 the hearing.
108108 SECTION 8. Sections 204.252(a) and (b), Occupations Code,
109109 are amended to read as follows:
110110 (a) The attorney general [physician assistant board] shall
111111 provide a license holder who is the subject of a formal complaint
112112 filed under this chapter with access to all information in the
113113 attorney general's [its] possession that the attorney general
114114 [board] intends to offer into evidence in presenting the attorney
115115 general's [its] case in chief at the contested hearing on the
116116 complaint, subject to any other privilege or restriction
117117 established by rule, statute, or legal precedent. The attorney
118118 general [board] shall provide the information not later than the
119119 30th day after receipt of a written request from the license holder
120120 or the license holder's counsel, unless good cause is shown for
121121 delay.
122122 (b) Notwithstanding Subsection (a), the attorney general
123123 [board] is not required to provide:
124124 (1) board investigative reports;
125125 (2) investigative memoranda;
126126 (3) the identity of a nontestifying complainant;
127127 (4) attorney-client communications;
128128 (5) attorney work product; or
129129 (6) other material covered by a privilege recognized
130130 by the Texas Rules of Civil Procedure or the Texas Rules of
131131 Evidence.
132132 SECTION 9. Sections 206.155(a) and (b), Occupations Code,
133133 are amended to read as follows:
134134 (a) The attorney general [medical board] shall provide a
135135 license holder who is the subject of a formal complaint filed under
136136 this chapter with access to all information in the attorney
137137 general's [its] possession that the attorney general [medical
138138 board] intends to offer into evidence in presenting the attorney
139139 general's [its] case in chief at the contested hearing on the
140140 complaint, subject to any other privilege or restriction
141141 established by rule, statute, or legal precedent. The attorney
142142 general [medical board] shall provide the information not later
143143 than the 30th day after receipt of a written request from the
144144 license holder or the license holder's counsel, unless good cause
145145 is shown for delay.
146146 (b) Notwithstanding Subsection (a), the attorney general
147147 [medical board] is not required to provide:
148148 (1) medical board investigative reports;
149149 (2) investigative memoranda;
150150 (3) the identity of a nontestifying complainant;
151151 (4) attorney-client communications;
152152 (5) attorney work product; or
153153 (6) other material covered by a privilege recognized
154154 by the Texas Rules of Civil Procedure or the Texas Rules of
155155 Evidence.
156156 SECTION 10. Section 263.009, Occupations Code, is amended
157157 to read as follows:
158158 Sec. 263.009. APPEAL. A person aggrieved by a decision of
159159 the board under this chapter is entitled to appeal as provided by
160160 Chapter 2001, Government Code. The attorney general shall
161161 represent the board in contested case proceedings under Chapter
162162 2001, Government Code, related to an individual licensed or
163163 regulated by the board.
164164 SECTION 11. Section 264.005, Occupations Code, is amended
165165 by adding Subsection (d) to read as follows:
166166 (d) The attorney general shall represent the board in a
167167 hearing conducted under this section.
168168 SECTION 12. Section 301.162, Occupations Code, is amended
169169 to read as follows:
170170 Sec. 301.162. LEGAL COUNSEL. (a) The board may retain legal
171171 counsel to represent the board if first:
172172 (1) the board requests the attorney general to
173173 represent the board; and
174174 (2) the attorney general certifies to the board that
175175 the attorney general cannot provide those services, subject to
176176 Subsection (b).
177177 (b) The attorney general shall represent the board in
178178 contested case proceedings under Chapter 2001, Government Code,
179179 related to an individual licensed or regulated by the board.
180180 SECTION 13. Section 301.459, Occupations Code, is amended
181181 by adding Subsection (c) to read as follows:
182182 (c) The attorney general shall represent the board in a
183183 hearing conducted under this section.
184184 SECTION 14. Sections 301.460(a) and (b), Occupations Code,
185185 are amended to read as follows:
186186 (a) Except for good cause shown for delay and subject to any
187187 other privilege or restriction set forth by statute, rule, or legal
188188 precedent, the attorney general [board] shall, not later than the
189189 30th day after the date the board receives a written request from a
190190 license holder who is the subject of a formal charge filed under
191191 Section 301.458 or from the license holder's counsel of record,
192192 provide the license holder with access to:
193193 (1) all known exculpatory information in the attorney
194194 general's [board's] possession; and
195195 (2) information in the attorney general's [board's]
196196 possession that the attorney general [board] intends to offer into
197197 evidence in presenting the attorney general's [its] case in chief
198198 at the contested hearing on the complaint.
199199 (b) The attorney general [board] is not required to provide:
200200 (1) board investigative reports or investigative
201201 memoranda;
202202 (2) the identity of nontestifying complainants;
203203 (3) attorney-client communications;
204204 (4) attorney work product; or
205205 (5) other materials covered by a privilege as
206206 recognized by the Texas Rules of Civil Procedure or the Texas Rules
207207 of Evidence.
208208 SECTION 15. Section 301.511, Occupations Code, is amended
209209 to read as follows:
210210 Sec. 301.511. ADMINISTRATIVE PROCEDURE; REPRESENTATION BY
211211 ATTORNEY GENERAL. (a) A proceeding under this subchapter is subject
212212 to Chapter 2001, Government Code.
213213 (b) The attorney general shall represent the board in
214214 contested case proceedings under Chapter 2001, Government Code,
215215 related to an individual licensed or regulated by the board.
216216 SECTION 16. Section 351.158, Occupations Code, is amended
217217 by adding Subsection (d) to read as follows:
218218 (d) The attorney general shall represent the board in
219219 contested case proceedings under Chapter 2001, Government Code,
220220 related to an individual licensed or regulated by the board.
221221 SECTION 17. Section 351.2045(c), Occupations Code, is
222222 amended to read as follows:
223223 (c) On the completion of the investigation and before a
224224 hearing under Section 351.503, the attorney general [board] shall
225225 provide to the license holder, subject to any other privilege or
226226 restriction set forth by rule, statute, or legal precedent, access
227227 to all information in the attorney general's [board's] possession
228228 that the attorney general [board] intends to offer into evidence in
229229 presenting the attorney general's [its] case in chief at the
230230 contested case hearing on the complaint. The attorney general
231231 [board] is not required to provide:
232232 (1) a board investigative report or memorandum;
233233 (2) the identity of a nontestifying complainant; or
234234 (3) attorney-client communications, attorney work
235235 product, or other materials covered by a privilege recognized by
236236 the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
237237 SECTION 18. Section 351.503(c), Occupations Code, is
238238 amended to read as follows:
239239 (c) Disciplinary proceedings are governed by Chapter 2001,
240240 Government Code. The attorney general shall represent the board in
241241 a contested case proceeding under Chapter 2001, Government Code.
242242 SECTION 19. Section 351.555, Occupations Code, is amended
243243 by adding Subsection (c) to read as follows:
244244 (c) The attorney general shall represent the board in a
245245 hearing under this section.
246246 SECTION 20. Section 501.409, Occupations Code, is amended
247247 to read as follows:
248248 Sec. 501.409. ADMINISTRATIVE PROCEDURE; ATTORNEY GENERAL
249249 REPRESENTATION. (a) A proceeding to refuse, revoke, or suspend a
250250 license or to reprimand a person is governed by Chapter 2001,
251251 Government Code.
252252 (b) The attorney general shall represent the board in
253253 contested case proceedings under Chapter 2001, Government Code,
254254 related to an individual licensed or regulated by the board.
255255 SECTION 21. Section 501.455, Occupations Code, is amended
256256 by adding Subsection (d) to read as follows:
257257 (d) The attorney general shall represent the board in a
258258 hearing under this section.
259259 SECTION 22. Section 554.001(d), Occupations Code, is
260260 amended to read as follows:
261261 (d) The board may be represented by counsel, including the
262262 attorney general, district attorney, or county attorney, if
263263 necessary in a legal action taken under this subtitle. The attorney
264264 general shall represent the board in contested case proceedings
265265 under Chapter 2001, Government Code, related to an individual
266266 licensed or regulated by the board.
267267 SECTION 23. Section 566.009, Occupations Code, is amended
268268 by adding Subsection (c) to read as follows:
269269 (c) The attorney general shall represent the board in
270270 contested case proceedings under Chapter 2001, Government Code,
271271 related to an individual licensed or regulated by the board.
272272 SECTION 24. The changes in law made by this Act apply only
273273 to a written request for a contested case proceeding submitted to
274274 the Texas Medical Board, Texas State Board of Acupuncture
275275 Examiners, Texas Physician Assistant Board, State Board of Dental
276276 Examiners, Texas Board of Nursing, Texas Board of Chiropractic
277277 Examiners, Texas State Board of Podiatric Medical Examiners, Texas
278278 Optometry Board, Texas State Board of Examiners of Psychologists,
279279 or Texas State Board of Pharmacy on or after the effective date of
280280 this Act. A written request submitted before the effective date of
281281 this Act is covered by the law in effect immediately before the
282282 effective date, and that law is continued in effect for that
283283 purpose.
284284 SECTION 25. This Act takes effect September 1, 2009.