Texas 2009 - 81st Regular

Texas Senate Bill SB1169 Compare Versions

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1	1	By: Nichols S.B. No. 1169
2	2	(In the Senate - Filed February 26, 2009; March 13, 2009,
3	3	read first time and referred to Committee on Criminal Justice;
4	4	April 24, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 4, Nays 0; April 24, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1169 By: Carona
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to abolishing the Private Sector Prison Industries
13	13	Oversight Authority and to the certification and operation of
14	14	private sector prison industries programs.
15	15	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
16	16	SECTION 1. Chapter 492, Government Code, is amended by
17	17	adding Section 492.0011 to read as follows:
18	18	Sec. 492.0011. PRIVATE SECTOR PRISON INDUSTRIES PROGRAM
19	19	MANAGEMENT. (a) The board shall approve, certify, and supervise
20	20	private sector prison industries programs operated by the
21	21	department, the Texas Youth Commission, and county correctional
22	22	facilities in accordance with Subchapter C, Chapter 497.
23	23	(b) This section does not authorize the board to direct the
24	24	general operations of or to govern the Texas Youth Commission or
25	25	county correctional facilities in any manner not specifically
26	26	described by Subsection (a).
27	27	SECTION 2. Subsections (a) and (c), Section 492.003,
28	28	Government Code, are amended to read as follows:
29	29	(a) Each member of the board must be representative of the
30	30	general public. A person is not eligible for appointment as a
31	31	member if the person or the person's spouse:
32	32	(1) is a person, other than a judge participating in
33	33	the management of a community supervision and corrections
34	34	department, who is employed by or participates in the management of
35	35	a business entity or other organization regulated by the department
36	36	or receiving funds from the department;
37	37	(2) owns, or controls directly or indirectly, more
38	38	than a 10 percent interest in a business entity or other
39	39	organization regulated by the department or receiving funds from
40	40	the department, including an entity or organization with which the
41	41	department contracts under Subchapter C, Chapter 497; [or]
42	42	(3) uses or receives a substantial amount of tangible
43	43	goods, services, or funds from the department, other than
44	44	compensation or reimbursement authorized by law for board
45	45	membership, attendance, or expenses; or
46	46	(4) owns, controls directly or indirectly, or is
47	47	employed by a business entity or other organization with which the
48	48	department contracts concerning a private sector prison industries
49	49	program approved and certified by the board under Subchapter C,
50	50	Chapter 497.
51	51	(c) A person may not be a member of the board and may not be a
52	52	department employee employed in a "bona fide executive,
53	53	administrative, or professional capacity," as that phrase is used
54	54	for purposes of establishing an exemption to the overtime
55	55	provisions of the federal Fair Labor Standards Act of 1938 (29
56	56	U.S.C. Section 201 et seq.) and its subsequent amendments, if:
57	57	(1) the person is an officer, employee, or paid
58	58	consultant of a Texas trade association in the field of criminal
59	59	justice or private sector prison industries; or
60	60	(2) the person's spouse is an officer, manager, or paid
61	61	consultant of a Texas trade association in the field of criminal
62	62	justice or private sector prison industries.
63	63	SECTION 3. Section 492.0031, Government Code, is amended by
64	64	adding Subsections (b-1) and (d) to read as follows:
65	65	(b-1) In addition to the information described by
66	66	Subsection (b), the training program must provide the person with
67	67	information regarding:
68	68	(1) the legislative history of Subchapter C, Chapter
69	69	497;
70	70	(2) the history and operation of programs under that
71	71	subchapter; and
72	72	(3) any applicable federal law concerning the
73	73	operation or certification of a program under that subchapter.
74	74	(d) A person who is a member of the board on September 1,
75	75	2009, shall complete the training described by Subsection (b-1) not
76	76	later than January 1, 2010. This subsection expires September 1,
77	77	2011.
78	78	SECTION 4. Subsection (a), Section 497.004, Government
79	79	Code, is amended to read as follows:
80	80	(a) The board may develop by rule and the department may
81	81	administer an incentive pay scale for work program participants
82	82	consistent with rules adopted by the board [Private Sector Prison
83	83	Industries Oversight Authority] under Subchapter C. Prison
84	84	industries may be financed through contributions donated for this
85	85	purpose by private businesses contracting with the department. The
86	86	department shall apportion pay earned by a work program participant
87	87	in the same manner as is required by rules adopted by the board
88	88	[Private Sector Prison Industries Oversight Authority] under
89	89	Section 497.0581.
90	90	SECTION 5. Subsection (c), Section 497.006, Government
91	91	Code, is amended to read as follows:
92	92	(c) A contract for the provision of services under this
93	93	section must:
94	94	(1) be certified by the board [Private Sector Prison
95	95	Industries Oversight Authority] as complying with all requirements
96	96	of the Private Sector/Prison Industry Enhancement Certification
97	97	Program operated by the Bureau of Justice Assistance and authorized
98	98	by 18 U.S.C. Section 1761, other than a requirement relating to the
99	99	payment of prevailing wages, so long as the contract requires
100	100	payment of not less than the federal minimum wage;
101	101	(2) be certified by the board [authority], under rules
102	102	adopted under Section 497.059, that the contract would not cause
103	103	the loss of existing jobs of a specific type provided by any
104	104	employer [the contracting party] in this state; and
105	105	(3) be approved by the board.
106	106	SECTION 6. The heading to Subchapter C, Chapter 497,
107	107	Government Code, is amended to read as follows:
108	108	SUBCHAPTER C. PRIVATE SECTOR PRISON INDUSTRIES PROGRAMS [OVERSIGHT
109	109	AUTHORITY]
110	110	SECTION 7. Section 497.051, Government Code, is amended to
111	111	read as follows:
112	112	Sec. 497.051. PURPOSE; DEFINITIONS [DEFINITION]. (a) The
113	113	board shall [Private Sector Prison Industries Oversight Authority
114	114	is created to] approve, certify, and supervise [oversee] the
115	115	operation of private sector prison industries programs in the
116	116	department, the Texas Youth Commission, and in county correctional
117	117	facilities in compliance with the federal prison enhancement
118	118	certification program established under 18 U.S.C. Section 1761.
119	119	The board may use board and department employees to [executive
120	120	director shall] provide the [authority with] clerical and technical
121	121	support [as] necessary for the board [authority] to perform the
122	122	board's duties under [imposed on the authority by] this subchapter
123	123	and shall ensure that the department implements the policies
124	124	adopted by the board [authority] that relate to the operation of
125	125	private sector prison industries programs.
126	126	(a-1) The board shall ensure that private sector prison
127	127	industries programs are operated under this subchapter in a manner
128	128	that is designed to avoid the loss of existing jobs for employees in
129	129	this state who are not incarcerated or imprisoned.
130	130	(b) In this subchapter:
131	131	(1) "Governmental entity" means the department, the
132	132	Texas Youth Commission, and any county that operates a private
133	133	sector prison industries program under this subchapter
134	134	["Authority" means the Private Sector Prison Industries Oversight
135	135	Authority].
136	136	(2) "Participant" means a participant in a private
137	137	sector prison industries program.
138	138	(c) This subchapter does not authorize the board to direct
139	139	the general operations of or to govern the Texas Youth Commission or
140	140	county correctional facilities in any manner not specifically
141	141	described by Subsection (a).
142	142	SECTION 8. Section 497.0527, Government Code, is amended to
143	143	read as follows:
144	144	Sec. 497.0527. COMPLAINTS. (a) The board [authority]
145	145	shall maintain a file on each written complaint filed with the board
146	146	in relation to a private sector prison industries program
147	147	[authority]. The file must include:
148	148	(1) the name of the person who filed the complaint;
149	149	(2) the date the complaint is received by the board
150	150	[authority];
151	151	(3) the subject matter of the complaint;
152	152	(4) the name of each person contacted in relation to
153	153	the complaint;
154	154	(5) a summary of the results of the review or
155	155	investigation of the complaint; and
156	156	(6) an explanation of the reason the file was closed,
157	157	if the board [authority] closed the file without taking action
158	158	other than to investigate the complaint.
159	159	(b) The board [authority] shall provide to the person filing
160	160	the complaint and to each person who is a subject of the complaint a
161	161	copy of the board's [authority's] policies and procedures relating
162	162	to complaint investigation and resolution.
163	163	(c) The board [authority], at least quarterly until final
164	164	disposition of the complaint, shall notify the person filing the
165	165	complaint and each person who is a subject of the complaint of the
166	166	status of the investigation, unless the notice would jeopardize an
167	167	undercover investigation.
168	168	SECTION 9. The heading to Section 497.056, Government Code,
169	169	is amended to read as follows:
170	170	Sec. 497.056. PRIVATE SECTOR PRISON INDUSTRIES [EXPANSION]
171	171	ACCOUNT.
172	172	SECTION 10. Subsections (b) and (c), Section 497.056,
173	173	Government Code, are amended to read as follows:
174	174	(b) The [To construct more facilities and increase the
175	175	number of participants, the] private sector prison industry
176	176	[expansion] account is created as an account in the general revenue
177	177	fund. Money in the account may be appropriated only to [construct
178	178	work facilities,] recruit corporations to participate as private
179	179	sector industries programs[,] and pay costs of the board
180	180	[authority] and department in implementing this subchapter,
181	181	including the cost to the department in reimbursing board
182	182	[authority] members [and the employer liaison] for expenses.
183	183	(c) On each certification by the department that an amount
184	184	has been deposited to the credit of the general revenue fund from
185	185	deductions from participants' wages under Section 497.0581, the
186	186	comptroller shall transfer an equivalent amount from the general
187	187	revenue fund to the private sector prison industry [expansion]
188	188	account, until the balance in the account is $1 [$2] million. The
189	189	balance of the account may not exceed $1 million [On a certification
190	190	occurring when the balance in the account is more than $2 million,
191	191	the comptroller shall transfer to the account an amount equal to
192	192	one-half of the amount deposited to the credit of the general
193	193	revenue fund from deductions from participants' wages].
194	194	SECTION 11. Section 497.057, Government Code, is amended to
195	195	read as follows:
196	196	Sec. 497.057. RULES. The board [authority] shall adopt
197	197	rules as necessary to ensure that the private sector prison
198	198	industries program authorized by this subchapter is in compliance
199	199	with the federal prison enhancement certification program
200	200	established under 18 U.S.C. Section 1761.
201	201	SECTION 12. Subsection (a), Section 497.058, Government
202	202	Code, is amended to read as follows:
203	203	(a) The board [authority] by rule shall require that
204	204	participants at each private sector prison industries program be
205	205	paid not less than the prison industry enhancement certification
206	206	program (PIECP) wage as computed by the Texas Workforce Commission,
207	207	except that:
208	208	(1) the board [authority] may permit employers to pay
209	209	a participant the federal minimum wage for the two-month period
210	210	beginning on the date participation begins; and
211	211	(2) the minimum wage for participants committed to
212	212	[under the supervision of] the Texas Youth Commission, because of
213	213	the age of the participants and the extensive training component of
214	214	their employment, is the federal minimum wage.
215	215	SECTION 13. Section 497.0581, Government Code, is amended
216	216	to read as follows:
217	217	Sec. 497.0581. PARTICIPANT CONTRIBUTIONS; ASSISTANCE
218	218	ACCOUNT. (a) The board [authority] by rule shall determine the
219	219	amount of deductions to be taken from wages received by the
220	220	participant under this subchapter and the disbursement of those
221	221	deductions. The board [authority] may establish deductions for
222	222	participants committed to [under the supervision of] the Texas
223	223	Youth Commission that are different than deductions established for
224	224	other participants in the program. In determining the amount of
225	225	deductions under this section, the board [authority] shall ensure
226	226	that the deductions do not place the private sector prison
227	227	industries programs in the department in noncompliance with the
228	228	federal prison enhancement certification program established under
229	229	18 U.S.C. Section 1761.
230	230	(b) The private sector prison industry crime victims
231	231	assistance account is created as an account in the general revenue
232	232	fund. Money in the account may be appropriated only to the board
233	233	[authority] for the purpose of aiding victims of crime, under rules
234	234	adopted by the board [authority].
235	235	SECTION 14. The heading to Section 497.059, Government
236	236	Code, is amended to read as follows:
237	237	Sec. 497.059. LIMITING IMPACT OF CERTIFICATION ON
238	238	NON-PRISON INDUSTRY.
239	239	SECTION 15. Subsections (a) and (b), Section 497.059,
240	240	Government Code, are amended to read as follows:
241	241	(a) The board [authority] may not grant initial
242	242	certification to a private sector prison industries program if the
243	243	board [authority] determines that the operation of the program
244	244	would result in the loss of existing jobs provided by any [the]
245	245	employer in this state.
246	246	(b) The board [authority] shall adopt rules to determine
247	247	whether a program would cause the loss of existing jobs of a
248	248	specific type provided by an [the] employer in this state.
249	249	SECTION 16. Subchapter C, Chapter 497, Government Code, is
250	250	amended by adding Sections 497.0595 and 497.0596 to read as
251	251	follows:
252	252	Sec. 497.0595. LIMITATION ON CONTRACTS. (a) A
253	253	governmental entity may not enter into a contract or renew a
254	254	contract with an employer for a private sector prison industries
255	255	program under this subchapter if the board determines that the
256	256	contract has negatively affected or would negatively affect any
257	257	employer in this state, including through the loss of existing jobs
258	258	provided by the employer to employees in this state who are not
259	259	incarcerated or imprisoned.
260	260	(b) The board shall adopt rules that establish a procedure
261	261	to be used in making the determination described by Subsection (a).
262	262	The procedure must allow an aggrieved employer in this state to
263	263	submit a sworn statement to the board alleging that the employer has
264	264	been or would be negatively affected by the contract to be entered
265	265	into or renewed.
266	266	(c) For the purposes of this section, a contract does not
267	267	negatively affect an employer if the only negative effect alleged
268	268	in a sworn statement by the employer is the loss of existing jobs
269	269	that, at the time the sworn statement is submitted to the board, are
270	270	performed by workers in a foreign country.
271	271	Sec. 497.0596. NOTICE CONCERNING CERTAIN CONTRACTS.
272	272	(a) Not later than the 60th day before the date a governmental
273	273	entity intends to enter into a contract with an employer for a
274	274	private sector prison industries program under this subchapter, the
275	275	governmental entity shall notify:
276	276	(1) the state senator and state representative in
277	277	whose district the program covered by the contract is or will be
278	278	located;
279	279	(2) the executive heads of the Texas AFL-CIO, the
280	280	Texas Association of Manufacturers, the National Federation of
281	281	Independent Business/Texas, the Texas Association of Business, and
282	282	the Texas Association of Workforce Boards;
283	283	(3) the chamber of commerce in any municipality or
284	284	county in which the program covered by the contract is or will be
285	285	located; and
286	286	(4) any employer that employs persons in this state
287	287	who are not incarcerated or imprisoned and who, as determined under
288	288	rules adopted by the Texas Workforce Commission to implement this
289	289	subdivision:
290	290	(A) perform work in the same job descriptions as
291	291	participants in the program covered by the contract will perform;
292	292	or
293	293	(B) are otherwise engaged in the manufacture of
294	294	the same or a substantially similar product as will be manufactured
295	295	under the contract.
296	296	(b) The notice required by Subsection (a) must include a
297	297	specific description, in plain language and in an easily readable
298	298	and understandable format, of any product that will be manufactured
299	299	under the contract.
300	300	(c) A governmental entity that provides notice under
301	301	Subsection (a) may charge the employer with whom the governmental
302	302	entity intends to enter into the contract for the cost of providing
303	303	that notice.
304	304	SECTION 17. Sections 497.060, 497.061, and 497.062,
305	305	Government Code, are amended to read as follows:
306	306	Sec. 497.060. WORKERS' COMPENSATION. The board [authority]
307	307	by rule shall require private sector prison industries program
308	308	employers to meet or exceed all federal requirements for providing
309	309	compensation to participants injured while working.
310	310	Sec. 497.061. RECIDIVISM STUDIES. The board [authority,
311	311	with the cooperation of the Criminal Justice Policy Council,] shall
312	312	gather data to determine whether participation in a private sector
313	313	prison industries program is a factor that reduces recidivism among
314	314	participants.
315	315	Sec. 497.062. LIMITATION ON NUMBER OF PARTICIPANTS AND COST
316	316	ACCOUNTING CENTERS[; GOALS]. (a) The board [authority] may
317	317	certify [any number of] private sector prison industries programs
318	318	that meet or exceed the requirements of federal law and the rules of
319	319	the board. Except as provided by Subsection (b), the board may not
320	320	allow [authority, but in no event may the authority permit] more
321	321	than 750 [5,000] participants in the program at any one time or
322	322	authorize the operation of more than 11 cost accounting centers at
323	323	any one time.
324	324	(b) The board may allow more than 750 participants in the
325	325	program at one time on a temporary basis if:
326	326	(1) an employer that operates a private sector prison
327	327	industries program requests in writing that the board temporarily
328	328	allow more than 750 participants in the program; and
329	329	(2) the board determines that there is good cause to
330	330	temporarily allow more than 750 participants in the program
331	331	[authority shall establish as a goal that the program have at least
332	332	1,800 participants by January 1, 2006].
333	333	SECTION 18. Subchapter C, Chapter 497, Government Code, is
334	334	amended by adding Sections 497.063 and 497.064 to read as follows:
335	335	Sec. 497.063. CONTRACT REQUIREMENTS. (a) The board shall
336	336	adopt rules requiring a contract entered into by a governmental
337	337	entity concerning a private sector prison industries program
338	338	operated under this subchapter to:
339	339	(1) include specific job descriptions for any work
340	340	that will be performed by participants under the contract;
341	341	(2) include a specific description, in plain language
342	342	and in an easily readable and understandable format, of any product
343	343	that will be manufactured under the contract; and
344	344	(3) charge a private sector prison industries employer
345	345	or other participating entity the fair market value for the lease of
346	346	any property owned by the governmental entity and leased to the
347	347	employer or entity under the contract.
348	348	(b) For the purposes of Subsection (a), "fair market value"
349	349	means an amount or rate that is equal to or greater than the average
350	350	amount or rate paid by the state for the lease of substantially
351	351	similar property.
352	352	Sec. 497.064. AVAILABILITY OF CERTAIN INFORMATION ON
353	353	INTERNET. The board shall make the following information available
354	354	on any publicly accessible Internet website that is maintained by
355	355	the board and contains any information concerning the private
356	356	sector prison industries programs operated under this subchapter:
357	357	(1) a copy of each current contract entered into by a
358	358	governmental entity;
359	359	(2) a list of hourly wages paid to participants under
360	360	each contract described by Subdivision (1); and
361	361	(3) minutes of any meeting of the board in which the
362	362	board discusses or takes action concerning:
363	363	(A) the board's powers and duties under this
364	364	subchapter; or
365	365	(B) one or more private sector prison industries
366	366	programs operated under this subchapter.
367	367	SECTION 19. Subchapter A, Chapter 302, Labor Code, is
368	368	amended by adding Section 302.016 to read as follows:
369	369	Sec. 302.016. RULES REGARDING PRIVATE SECTOR PRISON
370	370	INDUSTRIES PROGRAMS. The commission shall adopt rules necessary to
371	371	implement Section 497.0596(a)(4), Government Code.
372	372	SECTION 20. Sections 497.009, 497.052, 497.0521, 497.0522,
373	373	497.0523, 497.0524, 497.0525, 497.0526, 497.053, 497.054, and
374	374	497.055, Government Code, are repealed.
375	375	SECTION 21. (a) On the date on which the Texas Board of
376	376	Criminal Justice is designated as the certificate holder for this
377	377	state by the Bureau of Justice Assistance, the Private Sector
378	378	Prison Industries Oversight Authority is abolished and all powers,
379	379	duties, obligations, rights, contracts, appropriations, records,
380	380	real or personal property, and personnel of the Private Sector
381	381	Prison Industries Oversight Authority are transferred to the Texas
382	382	Board of Criminal Justice in accordance with Subchapter C, Chapter
383	383	497, Government Code, as amended by this Act. Notwithstanding any
384	384	other provision of this Act, before the date on which the Texas
385	385	Board of Criminal Justice is designated as the certificate holder
386	386	for this state by the Bureau of Justice Assistance, the Private
387	387	Sector Prison Industries Oversight Authority shall continue to
388	388	fulfill all duties and exercise all powers given to the authority
389	389	under Subchapter C, Chapter 497, Government Code, as that law
390	390	existed immediately before the effective date of this Act, and the
391	391	former law is continued in effect for that purpose.
392	392	(b) A rule, policy, procedure, or decision of the Private
393	393	Sector Prison Industries Oversight Authority continues in effect as
394	394	a rule, policy, procedure, or decision of the Texas Board of
395	395	Criminal Justice until repealed or otherwise superseded by an act
396	396	of the board.
397	397	(c) On or after the date on which the Texas Board of Criminal
398	398	Justice is designated as the certificate holder for this state by
399	399	the Bureau of Justice Assistance, a reference in law to the Private
400	400	Sector Prison Industries Oversight Authority means the Texas Board
401	401	of Criminal Justice.
402	402	SECTION 22. (a) Except as provided by Subsection (d),
403	403	Section 492.0031, Government Code, as added by this Act, Subsection
404	404	(c), Section 492.003, Governmental Code, as amended by this Act,
405	405	and Subsection (b-1), Section 492.0031, Government Code, as added
406	406	by this Act, apply only to a member of the Texas Board of Criminal
407	407	Justice who is appointed on or after the effective date of this Act.
408	408	Except as provided by Subsection (d), Section 492.0031, Government
409	409	Code, as added by this Act, a member who is appointed to the board
410	410	before the effective date of this Act is governed by the law in
411	411	effect when the member was appointed, and the former law is
412	412	continued in effect for that purpose.
413	413	(b) As soon as practicable after the effective date of this
414	414	Act and not later than January 1, 2010, the Texas Workforce
415	415	Commission shall adopt rules as required by Section 302.016, Labor
416	416	Code, as added by this Act.
417	417	(c) Subsection (a-1), Section 497.051, Government Code, as
418	418	added by this Act, applies only to the operation of a private sector
419	419	prison industries program that is certified on or after the
420	420	effective date of this Act or to a private sector prison industries
421	421	program that was certified before the effective date of this Act but
422	422	is not in operation on the effective date of this Act. Subsection
423	423	(a-1), Section 497.051, Government Code, as added by this Act, does
424	424	not apply to the operation of a private sector prison industries
425	425	program that was certified before the effective date of this Act and
426	426	is in operation on the effective date of this Act. The operation of
427	427	that program is governed by the law in effect when the program was
428	428	certified, and the former law is continued in effect for that
429	429	purpose.
430	430	(d) Section 497.059, Government Code, as amended by this
431	431	Act, applies only to the certification of a private sector prison
432	432	industries program that occurs on or after the effective date of
433	433	this Act. The certification of a private sector prison industries
434	434	program that occurs before the effective date of this Act is
435	435	governed by the law in effect when the program was certified, and
436	436	the former law is continued in effect for that purpose.
437	437	(e) Sections 497.0595 and 497.0596, Government Code, as
438	438	added by this Act, apply only to a contract that is entered into or
439	439	renewed in connection with a private sector prison industries
440	440	program that is certified on or after the effective date of this Act
441	441	or a private sector prison industries program that was certified
442	442	before the effective date of this Act but is not in operation on the
443	443	effective date of this Act. A contract that is entered into or
444	444	renewed in connection with a private sector prison industries
445	445	program that was certified before the effective date of this Act and
446	446	is in operation on the effective date of this Act is governed by the
447	447	law in effect when the program was certified, and the former law is
448	448	continued in effect for that purpose.
449	449	(f) A rule adopted by the Texas Board of Criminal Justice
450	450	under Section 497.063, Government Code, as added by this Act,
451	451	applies only to a contract in connection with a private sector
452	452	prison industries program that is certified on or after the
453	453	effective date of this Act or to a contract in connection with a
454	454	private sector prison industries program that was certified before
455	455	the effective date of this Act but is not in operation on the
456	456	effective date of this Act.
457	457	SECTION 23. This Act takes effect immediately if it
458	458	receives a vote of two-thirds of all the members elected to each
459	459	house, as provided by Section 39, Article III, Texas Constitution.
460	460	If this Act does not receive the vote necessary for immediate
461	461	effect, this Act takes effect September 1, 2009.
462	462	* * * * *