By: Nichols S.B. No. 1169
(In the Senate - Filed February 26, 2009; March 13, 2009,
read first time and referred to Committee on Criminal Justice;
April 24, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 4, Nays 0; April 24, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1169 By: Carona
A BILL TO BE ENTITLED
AN ACT
relating to abolishing the Private Sector Prison Industries
Oversight Authority and to the certification and operation of
private sector prison industries programs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 492, Government Code, is amended by
adding Section 492.0011 to read as follows:
Sec. 492.0011. PRIVATE SECTOR PRISON INDUSTRIES PROGRAM
MANAGEMENT. (a) The board shall approve, certify, and supervise
private sector prison industries programs operated by the
department, the Texas Youth Commission, and county correctional
facilities in accordance with Subchapter C, Chapter 497.
(b) This section does not authorize the board to direct the
general operations of or to govern the Texas Youth Commission or
county correctional facilities in any manner not specifically
described by Subsection (a).
SECTION 2. Subsections (a) and (c), Section 492.003,
Government Code, are amended to read as follows:
(a) Each member of the board must be representative of the
general public. A person is not eligible for appointment as a
member if the person or the person's spouse:
(1) is a person, other than a judge participating in
the management of a community supervision and corrections
department, who is employed by or participates in the management of
a business entity or other organization regulated by the department
or receiving funds from the department;
(2) owns, or controls directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by the department or receiving funds from
the department, including an entity or organization with which the
department contracts under Subchapter C, Chapter 497; [or]
(3) uses or receives a substantial amount of tangible
goods, services, or funds from the department, other than
compensation or reimbursement authorized by law for board
membership, attendance, or expenses; or
(4) owns, controls directly or indirectly, or is
employed by a business entity or other organization with which the
department contracts concerning a private sector prison industries
program approved and certified by the board under Subchapter C,
Chapter 497.
(c) A person may not be a member of the board and may not be a
department employee employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.) and its subsequent amendments, if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of criminal
justice or private sector prison industries; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of criminal
justice or private sector prison industries.
SECTION 3. Section 492.0031, Government Code, is amended by
adding Subsections (b-1) and (d) to read as follows:
(b-1) In addition to the information described by
Subsection (b), the training program must provide the person with
information regarding:
(1) the legislative history of Subchapter C, Chapter
497;
(2) the history and operation of programs under that
subchapter; and
(3) any applicable federal law concerning the
operation or certification of a program under that subchapter.
(d) A person who is a member of the board on September 1,
2009, shall complete the training described by Subsection (b-1) not
later than January 1, 2010. This subsection expires September 1,
2011.
SECTION 4. Subsection (a), Section 497.004, Government
Code, is amended to read as follows:
(a) The board may develop by rule and the department may
administer an incentive pay scale for work program participants
consistent with rules adopted by the board [Private Sector Prison
Industries Oversight Authority] under Subchapter C. Prison
industries may be financed through contributions donated for this
purpose by private businesses contracting with the department. The
department shall apportion pay earned by a work program participant
in the same manner as is required by rules adopted by the board
[Private Sector Prison Industries Oversight Authority] under
Section 497.0581.
SECTION 5. Subsection (c), Section 497.006, Government
Code, is amended to read as follows:
(c) A contract for the provision of services under this
section must:
(1) be certified by the board [Private Sector Prison
Industries Oversight Authority] as complying with all requirements
of the Private Sector/Prison Industry Enhancement Certification
Program operated by the Bureau of Justice Assistance and authorized
by 18 U.S.C. Section 1761, other than a requirement relating to the
payment of prevailing wages, so long as the contract requires
payment of not less than the federal minimum wage;
(2) be certified by the board [authority], under rules
adopted under Section 497.059, that the contract would not cause
the loss of existing jobs of a specific type provided by any
employer [the contracting party] in this state; and
(3) be approved by the board.
SECTION 6. The heading to Subchapter C, Chapter 497,
Government Code, is amended to read as follows:
SUBCHAPTER C. PRIVATE SECTOR PRISON INDUSTRIES PROGRAMS [OVERSIGHT
AUTHORITY]
SECTION 7. Section 497.051, Government Code, is amended to
read as follows:
Sec. 497.051. PURPOSE; DEFINITIONS [DEFINITION]. (a) The
board shall [Private Sector Prison Industries Oversight Authority
is created to] approve, certify, and supervise [oversee] the
operation of private sector prison industries programs in the
department, the Texas Youth Commission, and in county correctional
facilities in compliance with the federal prison enhancement
certification program established under 18 U.S.C. Section 1761.
The board may use board and department employees to [executive
director shall] provide the [authority with] clerical and technical
support [as] necessary for the board [authority] to perform the
board's duties under [imposed on the authority by] this subchapter
and shall ensure that the department implements the policies
adopted by the board [authority] that relate to the operation of
private sector prison industries programs.
(a-1) The board shall ensure that private sector prison
industries programs are operated under this subchapter in a manner
that is designed to avoid the loss of existing jobs for employees in
this state who are not incarcerated or imprisoned.
(b) In this subchapter:
(1) "Governmental entity" means the department, the
Texas Youth Commission, and any county that operates a private
sector prison industries program under this subchapter
["Authority" means the Private Sector Prison Industries Oversight
Authority].
(2) "Participant" means a participant in a private
sector prison industries program.
(c) This subchapter does not authorize the board to direct
the general operations of or to govern the Texas Youth Commission or
county correctional facilities in any manner not specifically
described by Subsection (a).
SECTION 8. Section 497.0527, Government Code, is amended to
read as follows:
Sec. 497.0527. COMPLAINTS. (a) The board [authority]
shall maintain a file on each written complaint filed with the board
in relation to a private sector prison industries program
[authority]. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the board
[authority];
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the board [authority] closed the file without taking action
other than to investigate the complaint.
(b) The board [authority] shall provide to the person filing
the complaint and to each person who is a subject of the complaint a
copy of the board's [authority's] policies and procedures relating
to complaint investigation and resolution.
(c) The board [authority], at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation, unless the notice would jeopardize an
undercover investigation.
SECTION 9. The heading to Section 497.056, Government Code,
is amended to read as follows:
Sec. 497.056. PRIVATE SECTOR PRISON INDUSTRIES [EXPANSION]
ACCOUNT.
SECTION 10. Subsections (b) and (c), Section 497.056,
Government Code, are amended to read as follows:
(b) The [To construct more facilities and increase the
number of participants, the] private sector prison industry
[expansion] account is created as an account in the general revenue
fund. Money in the account may be appropriated only to [construct
work facilities,] recruit corporations to participate as private
sector industries programs[,] and pay costs of the board
[authority] and department in implementing this subchapter,
including the cost to the department in reimbursing board
[authority] members [and the employer liaison] for expenses.
(c) On each certification by the department that an amount
has been deposited to the credit of the general revenue fund from
deductions from participants' wages under Section 497.0581, the
comptroller shall transfer an equivalent amount from the general
revenue fund to the private sector prison industry [expansion]
account, until the balance in the account is $1 [$2] million. The
balance of the account may not exceed $1 million [On a certification
occurring when the balance in the account is more than $2 million,
the comptroller shall transfer to the account an amount equal to
one-half of the amount deposited to the credit of the general
revenue fund from deductions from participants' wages].
SECTION 11. Section 497.057, Government Code, is amended to
read as follows:
Sec. 497.057. RULES. The board [authority] shall adopt
rules as necessary to ensure that the private sector prison
industries program authorized by this subchapter is in compliance
with the federal prison enhancement certification program
established under 18 U.S.C. Section 1761.
SECTION 12. Subsection (a), Section 497.058, Government
Code, is amended to read as follows:
(a) The board [authority] by rule shall require that
participants at each private sector prison industries program be
paid not less than the prison industry enhancement certification
program (PIECP) wage as computed by the Texas Workforce Commission,
except that:
(1) the board [authority] may permit employers to pay
a participant the federal minimum wage for the two-month period
beginning on the date participation begins; and
(2) the minimum wage for participants committed to
[under the supervision of] the Texas Youth Commission, because of
the age of the participants and the extensive training component of
their employment, is the federal minimum wage.
SECTION 13. Section 497.0581, Government Code, is amended
to read as follows:
Sec. 497.0581. PARTICIPANT CONTRIBUTIONS; ASSISTANCE
ACCOUNT. (a) The board [authority] by rule shall determine the
amount of deductions to be taken from wages received by the
participant under this subchapter and the disbursement of those
deductions. The board [authority] may establish deductions for
participants committed to [under the supervision of] the Texas
Youth Commission that are different than deductions established for
other participants in the program. In determining the amount of
deductions under this section, the board [authority] shall ensure
that the deductions do not place the private sector prison
industries programs in the department in noncompliance with the
federal prison enhancement certification program established under
18 U.S.C. Section 1761.
(b) The private sector prison industry crime victims
assistance account is created as an account in the general revenue
fund. Money in the account may be appropriated only to the board
[authority] for the purpose of aiding victims of crime, under rules
adopted by the board [authority].
SECTION 14. The heading to Section 497.059, Government
Code, is amended to read as follows:
Sec. 497.059. LIMITING IMPACT OF CERTIFICATION ON
NON-PRISON INDUSTRY.
SECTION 15. Subsections (a) and (b), Section 497.059,
Government Code, are amended to read as follows:
(a) The board [authority] may not grant initial
certification to a private sector prison industries program if the
board [authority] determines that the operation of the program
would result in the loss of existing jobs provided by any [the]
employer in this state.
(b) The board [authority] shall adopt rules to determine
whether a program would cause the loss of existing jobs of a
specific type provided by an [the] employer in this state.
SECTION 16. Subchapter C, Chapter 497, Government Code, is
amended by adding Sections 497.0595 and 497.0596 to read as
follows:
Sec. 497.0595. LIMITATION ON CONTRACTS. (a) A
governmental entity may not enter into a contract or renew a
contract with an employer for a private sector prison industries
program under this subchapter if the board determines that the
contract has negatively affected or would negatively affect any
employer in this state, including through the loss of existing jobs
provided by the employer to employees in this state who are not
incarcerated or imprisoned.
(b) The board shall adopt rules that establish a procedure
to be used in making the determination described by Subsection (a).
The procedure must allow an aggrieved employer in this state to
submit a sworn statement to the board alleging that the employer has
been or would be negatively affected by the contract to be entered
into or renewed.
(c) For the purposes of this section, a contract does not
negatively affect an employer if the only negative effect alleged
in a sworn statement by the employer is the loss of existing jobs
that, at the time the sworn statement is submitted to the board, are
performed by workers in a foreign country.
Sec. 497.0596. NOTICE CONCERNING CERTAIN CONTRACTS.
(a) Not later than the 60th day before the date a governmental
entity intends to enter into a contract with an employer for a
private sector prison industries program under this subchapter, the
governmental entity shall notify:
(1) the state senator and state representative in
whose district the program covered by the contract is or will be
located;
(2) the executive heads of the Texas AFL-CIO, the
Texas Association of Manufacturers, the National Federation of
Independent Business/Texas, the Texas Association of Business, and
the Texas Association of Workforce Boards;
(3) the chamber of commerce in any municipality or
county in which the program covered by the contract is or will be
located; and
(4) any employer that employs persons in this state
who are not incarcerated or imprisoned and who, as determined under
rules adopted by the Texas Workforce Commission to implement this
subdivision:
(A) perform work in the same job descriptions as
participants in the program covered by the contract will perform;
or
(B) are otherwise engaged in the manufacture of
the same or a substantially similar product as will be manufactured
under the contract.
(b) The notice required by Subsection (a) must include a
specific description, in plain language and in an easily readable
and understandable format, of any product that will be manufactured
under the contract.
(c) A governmental entity that provides notice under
Subsection (a) may charge the employer with whom the governmental
entity intends to enter into the contract for the cost of providing
that notice.
SECTION 17. Sections 497.060, 497.061, and 497.062,
Government Code, are amended to read as follows:
Sec. 497.060. WORKERS' COMPENSATION. The board [authority]
by rule shall require private sector prison industries program
employers to meet or exceed all federal requirements for providing
compensation to participants injured while working.
Sec. 497.061. RECIDIVISM STUDIES. The board [authority,
with the cooperation of the Criminal Justice Policy Council,] shall
gather data to determine whether participation in a private sector
prison industries program is a factor that reduces recidivism among
participants.
Sec. 497.062. LIMITATION ON NUMBER OF PARTICIPANTS AND COST
ACCOUNTING CENTERS[; GOALS]. (a) The board [authority] may
certify [any number of] private sector prison industries programs
that meet or exceed the requirements of federal law and the rules of
the board. Except as provided by Subsection (b), the board may not
allow [authority, but in no event may the authority permit] more
than 750 [5,000] participants in the program at any one time or
authorize the operation of more than 11 cost accounting centers at
any one time.
(b) The board may allow more than 750 participants in the
program at one time on a temporary basis if:
(1) an employer that operates a private sector prison
industries program requests in writing that the board temporarily
allow more than 750 participants in the program; and
(2) the board determines that there is good cause to
temporarily allow more than 750 participants in the program
[authority shall establish as a goal that the program have at least
1,800 participants by January 1, 2006].
SECTION 18. Subchapter C, Chapter 497, Government Code, is
amended by adding Sections 497.063 and 497.064 to read as follows:
Sec. 497.063. CONTRACT REQUIREMENTS. (a) The board shall
adopt rules requiring a contract entered into by a governmental
entity concerning a private sector prison industries program
operated under this subchapter to:
(1) include specific job descriptions for any work
that will be performed by participants under the contract;
(2) include a specific description, in plain language
and in an easily readable and understandable format, of any product
that will be manufactured under the contract; and
(3) charge a private sector prison industries employer
or other participating entity the fair market value for the lease of
any property owned by the governmental entity and leased to the
employer or entity under the contract.
(b) For the purposes of Subsection (a), "fair market value"
means an amount or rate that is equal to or greater than the average
amount or rate paid by the state for the lease of substantially
similar property.
Sec. 497.064. AVAILABILITY OF CERTAIN INFORMATION ON
INTERNET. The board shall make the following information available
on any publicly accessible Internet website that is maintained by
the board and contains any information concerning the private
sector prison industries programs operated under this subchapter:
(1) a copy of each current contract entered into by a
governmental entity;
(2) a list of hourly wages paid to participants under
each contract described by Subdivision (1); and
(3) minutes of any meeting of the board in which the
board discusses or takes action concerning:
(A) the board's powers and duties under this
subchapter; or
(B) one or more private sector prison industries
programs operated under this subchapter.
SECTION 19. Subchapter A, Chapter 302, Labor Code, is
amended by adding Section 302.016 to read as follows:
Sec. 302.016. RULES REGARDING PRIVATE SECTOR PRISON
INDUSTRIES PROGRAMS. The commission shall adopt rules necessary to
implement Section 497.0596(a)(4), Government Code.
SECTION 20. Sections 497.009, 497.052, 497.0521, 497.0522,
497.0523, 497.0524, 497.0525, 497.0526, 497.053, 497.054, and
497.055, Government Code, are repealed.
SECTION 21. (a) On the date on which the Texas Board of
Criminal Justice is designated as the certificate holder for this
state by the Bureau of Justice Assistance, the Private Sector
Prison Industries Oversight Authority is abolished and all powers,
duties, obligations, rights, contracts, appropriations, records,
real or personal property, and personnel of the Private Sector
Prison Industries Oversight Authority are transferred to the Texas
Board of Criminal Justice in accordance with Subchapter C, Chapter
497, Government Code, as amended by this Act. Notwithstanding any
other provision of this Act, before the date on which the Texas
Board of Criminal Justice is designated as the certificate holder
for this state by the Bureau of Justice Assistance, the Private
Sector Prison Industries Oversight Authority shall continue to
fulfill all duties and exercise all powers given to the authority
under Subchapter C, Chapter 497, Government Code, as that law
existed immediately before the effective date of this Act, and the
former law is continued in effect for that purpose.
(b) A rule, policy, procedure, or decision of the Private
Sector Prison Industries Oversight Authority continues in effect as
a rule, policy, procedure, or decision of the Texas Board of
Criminal Justice until repealed or otherwise superseded by an act
of the board.
(c) On or after the date on which the Texas Board of Criminal
Justice is designated as the certificate holder for this state by
the Bureau of Justice Assistance, a reference in law to the Private
Sector Prison Industries Oversight Authority means the Texas Board
of Criminal Justice.
SECTION 22. (a) Except as provided by Subsection (d),
Section 492.0031, Government Code, as added by this Act, Subsection
(c), Section 492.003, Governmental Code, as amended by this Act,
and Subsection (b-1), Section 492.0031, Government Code, as added
by this Act, apply only to a member of the Texas Board of Criminal
Justice who is appointed on or after the effective date of this Act.
Except as provided by Subsection (d), Section 492.0031, Government
Code, as added by this Act, a member who is appointed to the board
before the effective date of this Act is governed by the law in
effect when the member was appointed, and the former law is
continued in effect for that purpose.
(b) As soon as practicable after the effective date of this
Act and not later than January 1, 2010, the Texas Workforce
Commission shall adopt rules as required by Section 302.016, Labor
Code, as added by this Act.
(c) Subsection (a-1), Section 497.051, Government Code, as
added by this Act, applies only to the operation of a private sector
prison industries program that is certified on or after the
effective date of this Act or to a private sector prison industries
program that was certified before the effective date of this Act but
is not in operation on the effective date of this Act. Subsection
(a-1), Section 497.051, Government Code, as added by this Act, does
not apply to the operation of a private sector prison industries
program that was certified before the effective date of this Act and
is in operation on the effective date of this Act. The operation of
that program is governed by the law in effect when the program was
certified, and the former law is continued in effect for that
purpose.
(d) Section 497.059, Government Code, as amended by this
Act, applies only to the certification of a private sector prison
industries program that occurs on or after the effective date of
this Act. The certification of a private sector prison industries
program that occurs before the effective date of this Act is
governed by the law in effect when the program was certified, and
the former law is continued in effect for that purpose.
(e) Sections 497.0595 and 497.0596, Government Code, as
added by this Act, apply only to a contract that is entered into or
renewed in connection with a private sector prison industries
program that is certified on or after the effective date of this Act
or a private sector prison industries program that was certified
before the effective date of this Act but is not in operation on the
effective date of this Act. A contract that is entered into or
renewed in connection with a private sector prison industries
program that was certified before the effective date of this Act and
is in operation on the effective date of this Act is governed by the
law in effect when the program was certified, and the former law is
continued in effect for that purpose.
(f) A rule adopted by the Texas Board of Criminal Justice
under Section 497.063, Government Code, as added by this Act,
applies only to a contract in connection with a private sector
prison industries program that is certified on or after the
effective date of this Act or to a contract in connection with a
private sector prison industries program that was certified before
the effective date of this Act but is not in operation on the
effective date of this Act.
SECTION 23. 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.
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