81R11429 YDB-D
By: Rose H.B. No. 4161
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the office of inspector general and the
appointment of inspectors general at the Health and Human Services
Commission, Texas Youth Commission, Department of Public Safety of
the State of Texas, Texas Education Agency, and Texas Department of
Transportation; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Government Code, is amended
by adding Chapter 422 to read as follows:
CHAPTER 422. OFFICES OF INSPECTORS GENERAL
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 422.001. SHORT TITLE. This chapter may be cited as the
Texas Inspector General Act.
Sec. 422.002. PURPOSE. The purpose of this chapter is to
establish guidelines for the offices of inspectors general at
certain state agencies.
Sec. 422.003. DEFINITIONS. In this chapter:
(1) "Agency" means a state agency subject to this
chapter under Section 422.004.
(2) "Inspector general" means the person appointed
under this chapter to serve as inspector general for an agency.
(3) "Office" means the office of inspector general
established under this chapter.
(4) "Review" includes an inspection, investigation,
audit, or similar activity regarding any act or operation of an
agency, a provider, if applicable, or a person in this state that is
related to the investigation, detection, or prevention of fraud,
waste, abuse, or employee misconduct in an agency program or state
or federally funded program implemented, administered, or overseen
by or for the agency.
(5) "State funds" or "state money" includes federal
funds or money received and appropriated by the state or for which
the state has oversight responsibility.
Sec. 422.004. APPLICABILITY. (a) This chapter applies
only to the:
(1) Health and Human Services Commission;
(2) Texas Youth Commission;
(3) Department of Public Safety of the State of Texas;
(4) Texas Education Agency; and
(5) Texas Department of Transportation.
(b) A state agency may not establish an office of inspector
general without specific legislative authorization.
Sec. 422.005. REFERENCE IN OTHER LAW. Notwithstanding any
other provision of law, a reference in law or rule to an agency's
office of inspector general means the office of inspector general
established under this chapter.
[Sections 422.006-422.050 reserved for expansion]
SUBCHAPTER B. OFFICE OF INSPECTOR GENERAL
Sec. 422.051. ESTABLISHMENT OF OFFICE. (a) The office of
inspector general is established as an agency of the state.
(b) The office is governed by the inspector general for the
office. The inspector general supervises the office staff and
manages operations for the office.
Sec. 422.052. INDEPENDENCE OF OFFICE. Except as otherwise
provided by this chapter, the office, the inspector general for the
office, and the inspector general for each agency operate
independently of the agency.
Sec. 422.053. ADMINISTRATIVE ATTACHMENT. The agency shall
provide to the office administrative support services for the
inspector general for the agency.
Sec. 422.054. SERVICE LEVEL AGREEMENT. (a) The agency and
the office shall enter into a service level agreement that
establishes the performance standards and deliverables with regard
to administrative support by the agency.
(b) The service level agreement must be reviewed at least
annually to ensure that services and deliverables are provided in
accordance with the agreement.
Sec. 422.055. DUTIES OF AGENCY. (a) The agency shall:
(1) provide administrative assistance to the office;
and
(2) coordinate administrative responsibilities with
the office to avoid unnecessary duplication of duties.
(b) The agency may not take an action that affects or
relates to the validity, status, or terms of an interagency
agreement or a contract to which the office is a party without the
office's approval.
[Sections 422.056-422.100 reserved for expansion]
SUBCHAPTER C. INSPECTOR GENERAL AND PERSONNEL
Sec. 422.101. APPOINTMENT. (a) The governor with the
advice and consent of the senate shall appoint an inspector general
to serve as director of the office and appoint an inspector general
for each agency to which this chapter applies.
(b) Appointments shall be made without regard to race,
color, disability, sex, religion, age, or national origin of the
appointee.
(c) In making the appointments, the governor shall consider
the person's knowledge of laws, experience in the enforcement of
law, education, training, and executive ability.
Sec. 422.102. TERM. Each inspector general serves a
two-year term that expires on February 1 of each odd-numbered year.
Sec. 422.103. CONFLICT OF INTEREST. (a) An inspector
general may not serve as an ex officio member on the governing body
of a governmental entity.
(b) An inspector general may not have a financial interest
in the transactions of the office, the agency, or any of the
office's or agency's contractors or providers.
Sec. 422.104. PEACE OFFICERS. (a) The office may employ
and commission peace officers to assist an inspector general in
carrying out the duties of the office relating to the
investigation, detection, and prevention of fraud, waste, and abuse
in agency programs or in programs receiving state or federal funds
that are implemented, administered, or overseen by or for a state
agency.
(b) A commissioned peace officer or otherwise designated
law enforcement officer employed by the office is not entitled to
supplemental benefits from the law enforcement and custodial
officer supplemental retirement fund unless the officer transfers
from a position, without a break in service, that qualifies for
supplemental retirement benefits from the fund.
Sec. 422.105. EMPLOYEES; TRAINING. (a) The inspector
general for the office may employ personnel as necessary to
implement the duties of the office.
(b) The inspector general for the office shall train office
personnel to pursue, efficiently and as necessary, fraud, waste,
and abuse cases in state agency programs or other state or federally
funded programs implemented, administered, or overseen by or for
the agency.
[Sections 422.106-422.150 reserved for expansion]
SUBCHAPTER D. GENERAL POWERS AND DUTIES
Sec. 422.151. GENERAL RESPONSIBILITIES. The office is
responsible for:
(1) the review of fraud, waste, and abuse in the
provision or funding of services by or for the agency or under a
program implemented, administered, or overseen by or for the
agency;
(2) the enforcement of state law and the protection of
the public relating to the provision of those services; and
(3) the prevention and detection of crime relating to
the provision of those services.
Sec. 422.152. RULEMAKING BY INSPECTOR GENERAL. (a)
Notwithstanding Section 531.0055(e) and any other law, the
inspector general for the office shall adopt the rules necessary to
administer the functions of the office, including rules to address
the imposition of sanctions and penalties for violations and due
process requirements for imposing sanctions and penalties.
(b) A rule, standard, or form of the agency that is
necessary to accomplish the duties of the office is considered to
also be a rule, standard, or form of the office and remains in
effect as a rule, standard, or form of the office until changed by
the inspector general.
Sec. 422.153. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
(a) The office shall develop and implement policies that provide
the public a reasonable opportunity to appear before the office and
to speak on any issue under the office's jurisdiction.
(b) The office shall prepare information of public interest
describing the functions of the office and the office's procedures
by which complaints are filed with and resolved by the office. The
office shall make the information available to the public and
appropriate state agencies.
(c) The office shall keep an information file about each
complaint filed with the office relating to a state agency or entity
receiving state or federal money and falling under the
investigatory jurisdiction of the office.
[Sections 422.154-422.200 reserved for expansion]
SUBCHAPTER E. REVIEWS, INVESTIGATIONS, AND AUDITS
Sec. 422.201. REVIEW, INVESTIGATION, AND AUDIT AUTHORITY.
(a) An inspector general may review any activity or operation of
the agency or a person in this state that is related to the
investigation, detection, or prevention of fraud, waste, abuse, or
employee misconduct in an agency program or state or federally
funded program implemented, administered, or overseen by or for the
agency.
(b) The office shall conduct reviews and inspections to
protect the public and detect and prevent fraud, waste, and abuse in
the provision or funding of services or programs described by
Subsection (a).
(c) The office shall conduct internal affairs
investigations in instances of suspected fraud, waste, and abuse
and in instances of suspected misconduct by employees, contractors,
subcontractors, and vendors.
(d) A state agency or the governing body or governing
officer of a state agency may not impair, prohibit, or attempt to
influence the inspector general in initiating, conducting, or
completing a review.
(e) An inspector general may conduct reviews, including
financial or performance audits regarding the use and effectiveness
of state or federal funds, including contract and grant funds,
administered by a person or state agency receiving the funds in
connection with an agency or state or federally funded program
implemented, administered, or overseen by or for the agency.
Sec. 422.202. INITIATION OF REVIEW. An inspector general
may initiate a review:
(1) on the inspector general's own initiative;
(2) at the request of the agency or the governing body
or governing officer of the agency; or
(3) based on a complaint from any source concerning a
matter described by Section 422.201.
Sec. 422.203. ACCESS TO INFORMATION. To further a review
conducted by the office, an inspector general is entitled to access
all books, records, accounts, documents, reports, vouchers,
databases, systems, or other information, including confidential
information, electronic data, and internal records relevant to the
functions of the office that are maintained by or for a person,
state agency, or provider, if applicable, in connection with an
agency or a state or federally funded program implemented,
administered, or overseen by or for the agency.
Sec. 422.204. COOPERATION REQUIRED. To further a review
conducted by an inspector general, the inspector general is
entitled to full and unrestricted access to all offices, limited
access or restricted areas, employees, equipment, and computers,
including areas, equipment, and computers that contain
confidential information and internal records, relevant to the
functions of the office that are maintained by or for a person,
agency, or provider, if applicable, in connection with an agency or
a state or federally funded program implemented, administered, or
overseen by or for the agency.
Sec. 422.205. SUBPOENAS. (a) An inspector general may
issue a subpoena to compel the attendance of a relevant witness or
the production, for inspection or copying, of relevant evidence in
connection with a review conducted under this subchapter.
(b) A subpoena may be served personally or by certified
mail.
(c) If a person fails to comply with a subpoena, the
inspector general, acting through the attorney general, may file
suit to enforce the subpoena in a district court in this state.
(d) On finding that good cause exists for issuing the
subpoena, the court shall order the person to comply with the
subpoena. The court may hold in contempt a person who fails to obey
the court order.
(e) The reimbursement of the expenses of a witness whose
attendance is compelled under this section is governed by Section
2001.103.
Sec. 422.206. COOPERATION WITH LAW ENFORCEMENT OFFICIALS
AND OTHER ENTITIES. (a) An inspector general may provide
information and evidence relating to criminal acts to the state
auditor's office and appropriate law enforcement officials.
(b) An inspector general may refer matters for further
civil, criminal, and administrative action to appropriate
administrative and prosecutorial agencies, including the attorney
general.
(c) An inspector general may enter into a memorandum of
understanding with a law enforcement or prosecutorial agency,
including the office of the attorney general, to assist in
conducting a review under this subchapter.
Sec. 422.207. COOPERATION AND COORDINATION WITH STATE
AUDITOR. (a) The state auditor may, on request of an inspector
general, provide appropriate information or other assistance to an
inspector general or the office, as determined by the state
auditor.
(b) An inspector general may meet with the state auditor's
office to coordinate a review conducted under this subchapter,
share information, or schedule work plans.
(c) The state auditor is entitled to access all information
maintained by an inspector general, including vouchers, electronic
data, internal records, and information obtained under Section
422.203 or subject to Section 422.254.
(d) Any information obtained or provided by the state
auditor under this section is confidential and not subject to
disclosure under Chapter 552.
[Sections 422.208-422.250 reserved for expansion]
SUBCHAPTER F. REPORTS
Sec. 422.251. PERIODIC REPORTING TO STATE AUDITOR AND
AGENCY REQUIRED. An inspector general shall timely inform the
state auditor and the agency director of the initiation of a review
of an agency program and the ongoing status of each review.
Sec. 422.252. REPORTING OFFICE FINDINGS. An inspector
general shall report the findings for any review conducted under
Subchapter E to:
(1) the governing body or governing officer of the
agency, as applicable;
(2) the governor;
(3) the lieutenant governor;
(4) the speaker of the house of representatives;
(5) the state auditor's office; and
(6) appropriate law enforcement and prosecutorial
agencies, including the office of the attorney general, if the
findings suggest the probability of criminal conduct.
Sec. 422.253. FLAGRANT VIOLATIONS; IMMEDIATE REPORT. An
inspector general shall immediately report to the governing body or
governing officer of the agency, as applicable, the governor's
general counsel, and the state auditor a problem the inspector
general determines is particularly serious or flagrant relating to
the administration of a program, operation of a state agency, or
interference with an inspector general review.
Sec. 422.254. INFORMATION CONFIDENTIAL. (a) Except as
provided by this section and Sections 422.251, 422.252, 531.103,
and 531.1031, all information and material compiled or maintained
by an inspector general during a review under this chapter is:
(1) confidential and not subject to disclosure under
Chapter 552; and
(2) not subject to disclosure, discovery, subpoena, or
other means of legal compulsion for release to anyone other than the
state auditor's office, the agency, or the office or its agents
involved in the review related to that information or material.
(b) As an inspector general determines appropriate based on
evidence sufficient to support an allegation, information relating
to a review may be disclosed to:
(1) a law enforcement agency;
(2) the attorney general's office;
(3) the state auditor's office; or
(4) the agency.
(c) A person that receives information under Subsection (b)
may not disclose the information except to the extent that
disclosure is consistent with the authorized purpose for which the
person first obtained the information.
Sec. 422.255. COSTS. (a) An inspector general shall
maintain information regarding the cost of reviews.
(b) The inspector general may cooperate with appropriate
administrative and prosecutorial agencies, including the office of
the attorney general, in recovering costs incurred under this
chapter from nongovernmental entities, including contractors or
individuals involved in:
(1) violations of applicable state or federal rules or
statutes;
(2) abusive or wilful misconduct; or
(3) violations of a provider contract or program
policy.
(c) The office of the attorney general, in all criminal
prosecutions under this chapter, shall request that the court order
restitution to be made to the appropriate agency as a condition of
probation or parole.
[Sections 422.256-422.300 reserved for expansion]
SUBCHAPTER G. PENALTIES
Sec. 422.301. ADMINISTRATIVE OR CIVIL PENALTY; INJUNCTION.
(a) The office may:
(1) act for a state agency in the assessment by the
office of administrative or civil penalties the agency is
authorized to assess under applicable law; and
(2) request that the attorney general obtain an
injunction to prevent a person from disposing of an asset
identified by the office as potentially subject to recovery by the
office due to the person's fraud, waste, or abuse.
(b) If the office imposes an administrative or civil penalty
under Subsection (a) for an agency:
(1) the agency may not impose an administrative or
civil penalty against the same person for the same violation; and
(2) the office shall impose the penalty under
applicable rules of the office, this chapter, and applicable laws,
including laws governing the imposition of a penalty by the agency.
SECTION 2. Article 2.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.12. WHO ARE PEACE OFFICERS. The following are peace
officers:
(1) sheriffs, their deputies, and those reserve
deputies who hold a permanent peace officer license issued under
Chapter 1701, Occupations Code;
(2) constables, deputy constables, and those reserve
deputy constables who hold a permanent peace officer license issued
under Chapter 1701, Occupations Code;
(3) marshals or police officers of an incorporated
city, town, or village, and those reserve municipal police officers
who hold a permanent peace officer license issued under Chapter
1701, Occupations Code;
(4) rangers and officers commissioned by the Public
Safety Commission and the Director of the Department of Public
Safety;
(5) investigators of the district attorneys', criminal
district attorneys', and county attorneys' offices;
(6) law enforcement agents of the Texas Alcoholic
Beverage Commission;
(7) each member of an arson investigating unit
commissioned by a city, a county, or the state;
(8) officers commissioned under Section 37.081,
Education Code, or Subchapter E, Chapter 51, Education Code;
(9) officers commissioned by the General Services
Commission;
(10) law enforcement officers commissioned by the
Parks and Wildlife Commission;
(11) airport police officers commissioned by a city
with a population of more than 1.18 million that operates an airport
that serves commercial air carriers;
(12) airport security personnel commissioned as peace
officers by the governing body of any political subdivision of this
state, other than a city described by Subdivision (11), that
operates an airport that serves commercial air carriers;
(13) municipal park and recreational patrolmen and
security officers;
(14) security officers and investigators commissioned
as peace officers by the comptroller;
(15) officers commissioned by a water control and
improvement district under Section 49.216, Water Code;
(16) officers commissioned by a board of trustees
under Chapter 54, Transportation Code;
(17) investigators commissioned by the Texas Medical
Board;
(18) officers commissioned by the board of managers of
the Dallas County Hospital District, the Tarrant County Hospital
District, or the Bexar County Hospital District under Section
281.057, Health and Safety Code;
(19) county park rangers commissioned under
Subchapter E, Chapter 351, Local Government Code;
(20) investigators employed by the Texas Racing
Commission;
(21) officers commissioned under Chapter 554,
Occupations Code;
(22) officers commissioned by the governing body of a
metropolitan rapid transit authority under Section 451.108,
Transportation Code, or by a regional transportation authority
under Section 452.110, Transportation Code;
(23) investigators commissioned by the attorney
general under Section 402.009, Government Code;
(24) security officers and investigators commissioned
as peace officers under Chapter 466, Government Code;
(25) an officer employed by the Department of State
Health Services under Section 431.2471, Health and Safety Code;
(26) officers appointed by an appellate court under
Subchapter F, Chapter 53, Government Code;
(27) officers commissioned by the state fire marshal
under Chapter 417, Government Code;
(28) an investigator commissioned by the commissioner
of insurance under Section 701.104, Insurance Code;
(29) apprehension specialists [and inspectors
general] commissioned by the Texas Youth Commission as officers
under Section [Sections 61.0451 and] 61.0931, Human Resources Code;
(30) officers appointed by the inspector general of
the Texas Department of Criminal Justice under Section 493.019,
Government Code;
(31) investigators commissioned by the Commission on
Law Enforcement Officer Standards and Education under Section
1701.160, Occupations Code;
(32) commission investigators commissioned by the
Texas Private Security Board under Section 1702.061(f),
Occupations Code;
(33) the fire marshal and any officers, inspectors, or
investigators commissioned by an emergency services district under
Chapter 775, Health and Safety Code;
(34) officers commissioned by the State Board of
Dental Examiners under Section 254.013, Occupations Code, subject
to the limitations imposed by that section; [and]
(35) investigators commissioned by the Texas Juvenile
Probation Commission as officers under Section 141.055, Human
Resources Code; and
(36) officers commissioned by the office of inspector
general established under Chapter 422, Government Code.
SECTION 3. (a) A person serving on the effective date of
this Act as inspector general for a state agency subject to Chapter
422, Government Code, as added by this Act, shall continue to serve
as the inspector general for the agency under Chapter 422,
Government Code, as added by this Act, until February 1, 2011, and
may be reappointed under Chapter 422 if the person has the
qualifications required under that chapter.
(b) Not later than February 1, 2011, and except as provided
by Subsection (a) of this section, the governor shall appoint the
inspector general for the office of inspector general and an
inspector general for each state agency subject to Chapter 422,
Government Code, as added by this Act, to a term expiring February
1, 2013.
SECTION 4. A contract or proceeding primarily related to a
function transferred to the office of inspector general established
under this Act is transferred to the office. The transfer does not
affect the status of a proceeding or the validity of a contract.
SECTION 5. (a) All personnel and assets currently assigned
to the inspector general of a state agency subject to Chapter 422,
Government Code, as added by this Act, shall be promptly
transferred to the office of inspector general for that agency
established under Chapter 422 along with any equipment, documents,
and records currently assigned to or used by the inspector general
of that agency. Inventory of personnel, equipment, documents,
records, and assets to be transferred under this section shall be
accomplished jointly by the transferring agency and the inspector
general considered appointed under Chapter 422 for that agency.
All funds previously appropriated or used, from any source, by the
transferring agency in support of the transferred functions,
personnel, equipment, documents, records, or assets shall also be
contemporaneously transferred to the office.
(b) For purposes of this section, "currently assigned"
means:
(1) all personnel and vacant full-time equivalent
positions assigned to or supporting a transferred function at any
time during the state fiscal biennium beginning September 1, 2007;
and
(2) all inventory and equipment assigned to a
transferred function or transferring personnel or that was in the
possession of transferring personnel on or at any time after
October 31, 2008.
(c) All state and federal funding, including funding for
overhead costs, support costs, and lease or colocation lease costs,
for the functions to be transferred to an office of inspector
general established under Chapter 422, Government Code, as added by
this Act, shall be reallocated to that office.
(d) For purposes of federal single state agency funding
requirements, any federal funds that may not be appropriated
directly to the office of inspector general for an agency subject to
Chapter 422, Government Code, as added by this Act, shall be
transferred from the single state agency receiving the funds to the
office of inspector general if the funds are intended for a function
performed by the office.
SECTION 6. On the effective date of this Act:
(1) all functions, activities, employees, rules,
forms, money, property, contracts, memorandums of understanding,
records, and obligations of a previously established office of
inspector general of an agency subject to Chapter 422, Government
Code, as added by this Act, become functions, activities,
employees, rules, forms, money, property, contracts, memorandums
of understanding, records, and obligations of the office of
inspector general established under Chapter 422, without a change
in status; and
(2) all money appropriated for the operations of a
previously established office of inspector general at an agency
subject to Chapter 422, Government Code, as added by this Act,
including money for providing administrative support, is
considered appropriated to the office of inspector general
established under Chapter 422.
SECTION 7. (a) Each agency subject to Chapter 422,
Government Code, as added by this Act, shall take all action
necessary to provide for the orderly transfer of the assets and
responsibilities of any previously established office of inspector
general for that agency to the office of inspector general
established under Chapter 422.
(b) A rule or form adopted by a previously established
office of inspector general of an agency subject to Chapter 422,
Government Code, as added by this Act, is a rule or form of the
office of inspector general established under Chapter 422 and
remains in effect until changed by the office of inspector general.
(c) A reference in law or administrative rule to a
previously established office of inspector general of an agency
subject to Chapter 422, Government Code, as added by this Act, means
the office of inspector general established under Chapter 422.
SECTION 8. If before implementing any provision of this Act
a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 9. 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.