TX
Texas Senate Bill SB1603

Texas 2017 - 85th Regular

Texas Senate Bill SB1603 Compare Versions

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11 By: Estes S.B. No. 1603
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44 A BILL TO BE ENTITLED
55 AN ACT
66 relating to state agency investigations.
77 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
88 ARTICLE 1. DUE PROCESS IN STATE AGENCY INVESTIGATIONS
99 SECTION 1.01. Chapter 2001, Government Code, is amended by
1010 adding Subchapter J to read as follows:
1111 SUBCHAPTER J. STATE AGENCY INVESTIGATIONS
1212 Sec. 2001.301. DEFINITIONS. In this subchapter:
1313 (1) "Enabling statute" means the statute or rule that
1414 authorizes a state agency to conduct a state agency investigation.
1515 (2) "Request" means a subpoena, civil investigative
1616 demand, request for documents, sworn interrogatory, request for
1717 admission, or request for deposition issued by a state agency as
1818 part of a state agency investigation.
1919 (3) "Requesting agency" means a state agency issuing a
2020 request.
2121 (4) "Responding party" means a party receiving a
2222 request.
2323 (5) "State agency" means an officer, board,
2424 commission, or department in the executive branch of state
2525 government that has statewide jurisdiction.
2626 (6) "State agency investigation" means the efforts of
2727 a state agency to obtain information from a nongovernmental party.
2828 The term does not include:
2929 (A) discovery conducted during a contested case
3030 proceeding under this chapter;
3131 (B) discovery conducted as part of a lawsuit
3232 subject to state or federal rules of civil procedure;
3333 (C) information sought in a criminal or family
3434 law matter; or
3535 (D) information required to be disclosed,
3636 reported, or tendered pursuant to the terms of a valid contract or
3737 lease between the agency and the nongovernmental party.
3838 Sec. 2001.302. APPLICABILITY; CONFLICT OF LAWS. (a) This
3939 subchapter applies to a state agency investigation conducted by a
4040 state agency.
4141 (b) This subchapter is intended to expand the legal
4242 protections provided to a responding party who is subject to a state
4343 agency investigation. To the extent another statute or rule
4444 provides greater legal protections to a responding party than the
4545 legal protections provided in this subchapter, a responding party
4646 is entitled to rely on and receive the legal protection of the other
4747 statute or rule.
4848 Sec. 2001.303. ENABLING STATUTE AUTHORIZATION. A state
4949 agency investigation must be authorized by an enabling statute that
5050 expressly allows the requesting agency to issue a request. This
5151 subchapter is not an enabling statute and does not provide a state
5252 agency with an independent basis for conducting a state agency
5353 investigation.
5454 Sec. 2001.304. CONTENTS OF REQUEST. Each request submitted
5555 by a state agency must:
5656 (1) reference the enabling statute that authorizes the
5757 requesting agency to make the request;
5858 (2) state the applicable time for the responding party
5959 to respond to the request;
6060 (3) state with specificity the information sought from
6161 the responding party; and
6262 (4) specify the form in which the information must be
6363 provided to the requesting agency.
6464 Sec. 2001.305. PERMISSIBILITY OF AGREEMENTS. A requesting
6565 agency and responding party may agree to any terms to facilitate a
6666 state agency investigation, including terms that modify the
6767 provisions of this subchapter. The requesting agency and the
6868 responding party may agree to extend any response time established
6969 by this subchapter or another time applicable to a state agency
7070 investigation, including the time for filing a petition under
7171 Section 2001.313.
7272 Sec. 2001.306. OBJECTIONS TO REQUEST. A responding party
7373 may object to a request on the basis that it is overly broad, unduly
7474 burdensome, irrelevant, vague, ambiguous, or based on another
7575 ground that would be a valid objection to a discovery request made
7676 under the Texas Rules of Civil Procedure.
7777 Sec. 2001.307. ASSERTIONS OF PRIVILEGE. (a) A responding
7878 party may withhold information responsive to a request if the
7979 information is a trade secret or protected by any privilege
8080 recognized by law, the Texas Rules of Civil Procedure, or the Texas
8181 Rules of Evidence.
8282 (b) If information is withheld under Subsection (a), the
8383 responding party must submit to the requesting agency a response
8484 that includes:
8585 (1) a statement that information or material
8686 responsive to the request has been withheld;
8787 (2) a description of the request to which the
8888 information or material relates; and
8989 (3) the privilege asserted.
9090 (c) After receiving a response indicating that material or
9191 information has been withheld, the requesting agency may serve a
9292 written request that the responding party identify the information
9393 and material withheld. Not later than the 15th day after the date
9494 the request under this subsection is received, the responding party
9595 must submit to the requesting agency a response that:
9696 (1) describes the information or materials withheld
9797 that, without revealing the privileged information or otherwise
9898 waiving the privilege, enables the requesting agency to assess the
9999 applicability of the privilege; and
100100 (2) asserts a specific privilege for each item or
101101 group of items withheld.
102102 (d) Without complying with Subsections (a) and (b), a
103103 responding party may withhold a privileged communication to or from
104104 an attorney or attorney's representative or a privileged document
105105 of an attorney or attorney's representative created or made from
106106 the point at which the responding party consults an attorney with a
107107 view to obtaining professional legal services from the attorney
108108 related to the request.
109109 Sec. 2001.308. COMPLIANCE WITH REQUEST. (a) A responding
110110 party must timely respond to a valid request that complies with this
111111 subchapter. A responding party is not required to respond to a
112112 request that:
113113 (1) does not comply with this subchapter; or
114114 (2) is invalid under the appropriate enabling statute
115115 or other law.
116116 (b) If a responding party objects to a request or asserts a
117117 privilege, the responding party is not required to respond to the
118118 portion of the request covered by the privilege or objection until
119119 ordered to comply:
120120 (1) by a court; or
121121 (2) as part of a final decision in a contested case.
122122 (c) The responding party shall timely respond to the
123123 portions of a request that are not covered by an objection or
124124 assertion of privilege.
125125 Sec. 2001.309. REMEDIES FOR REQUESTING AGENCY: CONTESTED
126126 CASE. (a) A requesting agency may initiate a contested case to
127127 obtain:
128128 (1) a response from a responding party who has failed
129129 to comply with a request; or
130130 (2) a ruling on an objection or assertion of privilege
131131 made by a responding party.
132132 (b) A contested case initiated under Subsection (a) must be
133133 conducted in accordance with the rules and other procedures of the
134134 requesting agency for other contested cases. If the requesting
135135 agency has not adopted rules or procedures for contested cases, the
136136 contested case is governed by this chapter. A decision in a
137137 contested case under this section may be appealed in accordance
138138 with this chapter.
139139 (c) Except as provided by Subsection (d), in a contested
140140 case initiated under this subchapter, the relief sought by the
141141 requesting agency is limited to an order requiring compliance with
142142 the request, and a responding party's failure to comply with this
143143 subchapter does not entitle the requesting agency to seek
144144 administrative penalties, attorney's fees, or other remedies.
145145 (d) If the presiding officer in a contested case initiated
146146 under Subsection (a) determines that a responding party objected to
147147 a request in bad faith or asserted a privilege in bad faith, the
148148 presiding officer may award the agency administrative penalties,
149149 attorney's fees, or other remedies sufficient to deter future bad
150150 faith conduct.
151151 (e) This subchapter does not prohibit a requesting agency
152152 from taking other action to ensure compliance with a state agency
153153 investigation authorized by the requesting agency's enabling
154154 statute. The requesting agency may combine a request for relief
155155 under this subchapter with an action for administrative penalties
156156 and other remedies authorized by the requesting agency's enabling
157157 statute.
158158 Sec. 2001.310. CONDUCT OF STATE AGENCY INVESTIGATIONS. In
159159 a state agency investigation conducted under this subchapter, a
160160 responding party is entitled to be represented by counsel and may
161161 cross-examine witnesses.
162162 Sec. 2001.311. ORAL EXAMINATION. (a) The examination of
163163 any witness under a demand for oral testimony served under this
164164 section must be taken before a person authorized to administer
165165 oaths and affirmations by state or federal law. The person before
166166 whom the testimony is to be taken shall administer the oath or
167167 affirmation and personally, or by someone acting under the person's
168168 direction in the person's presence, record the witness's testimony.
169169 At the expense of the requesting agency, the testimony must be taken
170170 stenographically and may be transcribed.
171171 (b) The witness's oral testimony under this section must be
172172 taken in the county in which the witness resides, is found, or
173173 transacts business or in another place agreed to by the witness and
174174 the requesting agency.
175175 (c) Any witness compelled to appear under this section may
176176 be accompanied, represented, and advised by an attorney. The
177177 attorney may advise the witness in confidence on any question
178178 arising in connection with the examination.
179179 (d) The person conducting the examination on behalf of the
180180 requesting agency shall exclude from the place of examination all
181181 other persons except the witness being examined, the witness's
182182 attorney, the person before whom the testimony is to be taken, any
183183 stenographer taking the testimony, and any persons assisting the
184184 person conducting the examination.
185185 (e) During the examination, the witness being examined or
186186 the witness's attorney may object on the record to any question,
187187 wholly or partly, and shall briefly state for the record the reason
188188 for the objection. An objection may properly be made, received, and
189189 entered on the record when it is claimed that the witness is
190190 entitled to refuse to answer the question on grounds of any
191191 constitutional or other legal right or privilege, including the
192192 privilege against self-incrimination. The witness or the witness's
193193 attorney may not otherwise object to or refuse to answer any
194194 question or interrupt the oral examination. If the witness refuses
195195 to answer any question, the requesting agency may petition the
196196 district court in the county in which the examination is being
197197 conducted for an order compelling the witness to answer the
198198 question.
199199 (f) If the testimony is fully transcribed, the person before
200200 whom the testimony was taken shall promptly transmit the transcript
201201 of the testimony to the witness and a copy of the transcript to the
202202 requesting agency. The witness shall have a reasonable opportunity
203203 to examine the transcript and make any changes in form or substance
204204 accompanied by a statement of the reasons for the changes. The
205205 witness shall sign and return the transcript, unless the witness is
206206 ill, cannot be found, refuses to sign, or in writing waives the
207207 signing. If the witness does not sign the transcript on or before
208208 the 15th day after the date the witness receives the transcript, the
209209 person before whom the testimony has been given shall sign it and
210210 state on the record the reason, if known, for the witness's failure
211211 to sign. The person transcribing the testimony shall certify on the
212212 transcript that the witness was duly sworn and that the transcript
213213 is a true record of the testimony given by the witness and promptly
214214 transmit a copy of the certified transcript to the requesting
215215 agency.
216216 (g) On request, the requesting agency shall furnish a copy
217217 of the certified transcript to the witness.
218218 (h) The witness is entitled to the same fees and mileage
219219 that are paid to witnesses in the district courts of this state.
220220 ARTICLE 2. CONFORMING CHANGES
221221 SECTION 2.01. Section 2001.003(7), Government Code, is
222222 amended to read as follows:
223223 (7) "State agency" means a state officer, board,
224224 commission, or department with statewide jurisdiction that makes
225225 rules or determines contested cases. The term includes the State
226226 Office of Administrative Hearings for the purpose of determining
227227 contested cases. Except as otherwise provided by this chapter,
228228 the [The] term does not include:
229229 (A) a state agency wholly financed by federal
230230 money;
231231 (B) the legislature;
232232 (C) the courts;
233233 (D) the Texas Department of Insurance, as regards
234234 proceedings and activities under Title 5, Labor Code, of the
235235 department, the commissioner of insurance, or the commissioner of
236236 workers' compensation; or
237237 (E) an institution of higher education.
238238 SECTION 2.02. Subchapter B, Chapter 5, Alcoholic Beverage
239239 Code, is amended by adding Section 5.439 to read as follows:
240240 Sec. 5.439. STATE AGENCY INVESTIGATION. (a) In this
241241 section, "responding party" and "request" have the meanings
242242 assigned by Section 2001.301, Government Code.
243243 (b) A request submitted under this chapter is governed by
244244 Subchapter J, Chapter 2001, Government Code. To the extent of any
245245 conflict between the provisions of this chapter and Subchapter J,
246246 Chapter 2001, Government Code, the provisions that provide the
247247 greatest legal protections to a responding party control.
248248 SECTION 2.03. Subchapter B, Chapter 15, Business & Commerce
249249 Code, is amended by adding Section 15.101 to read as follows:
250250 Sec. 15.101. STATE AGENCY INVESTIGATION. (a) In this
251251 section, "responding party" and "request" have the meanings
252252 assigned by Section 2001.301, Government Code.
253253 (b) A request submitted under this chapter is governed by
254254 Subchapter J, Chapter 2001, Government Code. To the extent of any
255255 conflict between the provisions of this chapter and Subchapter J,
256256 Chapter 2001, Government Code, the provisions that provide the
257257 greatest legal protections to a responding party control.
258258 SECTION 2.04. Subchapter E, Chapter 14, Finance Code, is
259259 amended by adding Section 14.2029 to read as follows:
260260 Sec. 14.2029. STATE AGENCY INVESTIGATION. (a) In this
261261 section, "responding party" and "request" have the meanings
262262 assigned by Section 2001.301, Government Code.
263263 (b) A request submitted under this chapter is governed by
264264 Subchapter J, Chapter 2001, Government Code. To the extent of any
265265 conflict between the provisions of this chapter and Subchapter J,
266266 Chapter 2001, Government Code, the provisions that provide the
267267 greatest legal protections to a responding party control.
268268 SECTION 2.05. Subchapter C, Chapter 35, Finance Code, is
269269 amended by adding Section 35.2029 to read as follows:
270270 Sec. 35.2029. STATE AGENCY INVESTIGATION. (a) In this
271271 section, "responding party" and "request" have the meanings
272272 assigned by Section 2001.301, Government Code.
273273 (b) A request submitted under this chapter is governed by
274274 Subchapter J, Chapter 2001, Government Code. To the extent of any
275275 conflict between the provisions of this chapter and Subchapter J,
276276 Chapter 2001, Government Code, the provisions that provide the
277277 greatest legal protections to a responding party control.
278278 SECTION 2.06. Subchapter B, Chapter 66, Finance Code, is
279279 amended by adding Section 66.0539 to read as follows:
280280 Sec. 66.0539. STATE AGENCY INVESTIGATION. (a) In this
281281 section, "responding party" and "request" have the meanings
282282 assigned by Section 2001.301, Government Code.
283283 (b) A request submitted under this chapter is governed by
284284 Subchapter J, Chapter 2001, Government Code. To the extent of any
285285 conflict between the provisions of this chapter and Subchapter J,
286286 Chapter 2001, Government Code, the provisions that provide the
287287 greatest legal protections to a responding party control.
288288 SECTION 2.07. Subchapter B, Chapter 96, Finance Code, is
289289 amended by adding Section 96.0569 to read as follows:
290290 Sec. 96.0569. STATE AGENCY INVESTIGATION. (a) In this
291291 section, "responding party" and "request" have the meanings
292292 assigned by Section 2001.301, Government Code.
293293 (b) A request submitted under this chapter is governed by
294294 Subchapter J, Chapter 2001, Government Code. To the extent of any
295295 conflict between the provisions of this chapter and Subchapter J,
296296 Chapter 2001, Government Code, the provisions that provide the
297297 greatest legal protections to a responding party control.
298298 SECTION 2.08. Subchapter B, Chapter 126, Finance Code, is
299299 amended by adding Section 126.0529 to read as follows:
300300 Sec. 126.0529. STATE AGENCY INVESTIGATION. (a) In this
301301 section, "responding party" and "request" have the meanings
302302 assigned by Section 2001.301, Government Code.
303303 (b) A request submitted under this chapter is governed by
304304 Subchapter J, Chapter 2001, Government Code. To the extent of any
305305 conflict between the provisions of this chapter and Subchapter J,
306306 Chapter 2001, Government Code, the provisions that provide the
307307 greatest legal protections to a responding party control.
308308 SECTION 2.09. Subchapter C, Chapter 36, Insurance Code, is
309309 amended by adding Section 36.1515 to read as follows:
310310 Sec. 36.1515. STATE AGENCY INVESTIGATION. (a) In this
311311 section, "responding party" and "request" have the meanings
312312 assigned by Section 2001.301, Government Code.
313313 (b) A request submitted under this subtitle is governed by
314314 Subchapter J, Chapter 2001, Government Code. To the extent of any
315315 conflict between the provisions of this subtitle and Subchapter J,
316316 Chapter 2001, Government Code, the provisions that provide the
317317 greatest legal protections to a responding party control.
318318 SECTION 2.10. Subchapter G, Chapter 51, Occupations Code,
319319 is amended by adding Section 51.35119 to read as follows:
320320 Sec. 51.35119. STATE AGENCY INVESTIGATION. (a) In this
321321 section, "responding party" and "request" have the meanings
322322 assigned by Section 2001.301, Government Code.
323323 (b) A request submitted under this chapter is governed by
324324 Subchapter J, Chapter 2001, Government Code. To the extent of any
325325 conflict between the provisions of this chapter and Subchapter J,
326326 Chapter 2001, Government Code, the provisions that provide the
327327 greatest legal protections to a responding party control.
328328 SECTION 2.11. Subchapter A, Chapter 153, Occupations Code,
329329 is amended by adding Section 153.0069 to read as follows:
330330 Sec. 153.0069. STATE AGENCY INVESTIGATION. (a) In this
331331 section, "responding party" and "request" have the meanings
332332 assigned by Section 2001.301, Government Code.
333333 (b) A request submitted under this chapter is governed by
334334 Subchapter J, Chapter 2001, Government Code. To the extent of any
335335 conflict between the provisions of this chapter and Subchapter J,
336336 Chapter 2001, Government Code, the provisions that provide the
337337 greatest legal protections to a responding party control.
338338 SECTION 2.12. Subchapter G, Chapter 204, Occupations Code,
339339 is amended by adding Section 204.307 to read as follows:
340340 Sec. 204.307. STATE AGENCY INVESTIGATION. (a) In this
341341 section, "responding party" and "request" have the meanings
342342 assigned by Section 2001.301, Government Code.
343343 (b) A request submitted under this chapter is governed by
344344 Subchapter J, Chapter 2001, Government Code. To the extent of any
345345 conflict between the provisions of this chapter and Subchapter J,
346346 Chapter 2001, Government Code, the provisions that provide the
347347 greatest legal protections to a responding party control.
348348 SECTION 2.13. Subchapter H, Chapter 205, Occupations Code,
349349 is amended by adding Section 205.3589 to read as follows:
350350 Sec. 205.3589. STATE AGENCY INVESTIGATION. (a) In this
351351 section, "responding party" and "request" have the meanings
352352 assigned by Section 2001.301, Government Code.
353353 (b) A request submitted under this chapter is governed by
354354 Subchapter J, Chapter 2001, Government Code. To the extent of any
355355 conflict between the provisions of this chapter and Subchapter J,
356356 Chapter 2001, Government Code, the provisions that provide the
357357 greatest legal protections to a responding party control.
358358 SECTION 2.14. Subchapter G, Chapter 206, Occupations Code,
359359 is amended by adding Section 206.3079 to read as follows:
360360 Sec. 206.3079. STATE AGENCY INVESTIGATION. (a) In this
361361 section, "responding party" and "request" have the meanings
362362 assigned by Section 2001.301, Government Code.
363363 (b) A request submitted under this chapter is governed by
364364 Subchapter J, Chapter 2001, Government Code. To the extent of any
365365 conflict between the provisions of this chapter and Subchapter J,
366366 Chapter 2001, Government Code, the provisions that provide the
367367 greatest legal protections to a responding party control.
368368 ARTICLE 3. TRANSITION AND EFFECTIVE DATE
369369 SECTION 3.01. Subchapter J, Chapter 2001, Government Code,
370370 as added by this Act, applies only to a request submitted to a
371371 responding party by a state agency on or after the effective date of
372372 this Act. A request submitted before that date is governed by the
373373 law in effect on the date the request was submitted, and that law is
374374 continued in effect for that purpose.
375375 SECTION 3.02. This Act takes effect September 1, 2017.