Texas 2019 - 86th Regular

Texas House Bill HB363 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	86R14912 JG-D
2		-	By: Johnson of Harris, Allen, Miller, Wu, H.B. No. 363
3		-	Sherman, Sr., et al.
4		-	Substitute the following for H.B. No. 363:
5		-	By: Allen C.S.H.B. No. 363
	1	+	86R1992 JG-D
	2	+	By: Johnson of Harris H.B. No. 363
6	3
7	4
8	5		A BILL TO BE ENTITLED
9	6		AN ACT
10	7		relating to the creation of the office of independent oversight
11	8		ombudsman for the Texas Department of Criminal Justice.
12	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	10		SECTION 1. Subtitle G, Title 4, Government Code, is amended
14	11		by adding Chapter 512 to read as follows:
15	12		CHAPTER 512. OFFICE OF INDEPENDENT OVERSIGHT OMBUDSMAN FOR TEXAS
16	13		DEPARTMENT OF CRIMINAL JUSTICE
17	14		SUBCHAPTER A. GENERAL PROVISIONS
18	15		Sec. 512.001. DEFINITIONS. In this chapter:
19	16		(1) "Facility" means a facility operated by or under
20	17		contract with the department that is used primarily for the
21	18		confinement of offenders.
22	19		(2) "Offender" means an inmate or state jail defendant
23	20		confined in a facility.
24	21		(3) "Office" means the office of independent oversight
25	22		ombudsman.
26	23		(4) "Ombudsman" means the individual appointed under
27	24		this chapter as ombudsman for the office.
28	25		Sec. 512.002. ESTABLISHMENT; PURPOSE. The office is a
29	26		state agency established for the purpose of monitoring the
30		-	conditions of confinement and treatment of offenders,
31		-	investigating, evaluating, and securing the rights of offenders,
32		-	and assisting the department in improving its operations. The
33		-	office is also responsible for conducting in-depth reviews and
34		-	analyses of data, determining long-term needs, identifying
35		-	critical issues facing the department and corresponding solutions
36		-	to those issues, investigating significant group disturbances and
37		-	critical incidents, and assessing the efficacy of existing
38		-	programs.
	27	+	conditions of confinement and treatment of offenders and
	28	+	investigating, evaluating, and securing the rights of offenders.
	29	+	The office is also responsible for in-depth review and analysis of
	30	+	data, determination of long-term needs, identification of critical
	31	+	issues and corresponding solutions, and assessment of the efficacy
	32	+	of existing programs.
39	33		Sec. 512.003. INDEPENDENCE. The ombudsman acts
40	34		independently of the department and the board in the performance of
41	35		the ombudsman's powers and duties under this chapter.
42	36		Sec. 512.004. ADMINISTRATIVE ATTACHMENT; SUPPORT; BUDGET.
43	37		(a) The office is administratively attached to the Commission on
44	38		Jail Standards.
45	39		(b) The Commission on Jail Standards shall provide office
46	40		space and administrative support services, including human
47		-	resources, accounting, purchasing, payroll, ~~and~~ information
48		-	technology services, to the office as necessary ~~to carry out the~~
49		-	purposes of this chapter.
	41	+	resources, budgetary, accounting, purchasing, payroll, information
	42	+	technology, and legal support services, to the office as necessary
	43	+	to carry out the purposes of this chapter.
50	44		(c) The office, in accordance with the rules and procedures
51	45		of the Legislative Budget Board, shall prepare, approve, and submit
52	46		a legislative appropriations request that is used to develop the
53	47		office's budget structure. The office shall maintain the
54	48		legislative appropriations request and budget structure separately
55	49		from those of the Commission on Jail Standards and the department.
56	50		SUBCHAPTER B. APPOINTMENT AND MANAGEMENT OF OFFICE
57	51		Sec. 512.051. APPOINTMENT OF OMBUDSMAN. (a) The governor
58		-	shall appoint, with the advice and consent of the senate, a person
59		-	to serve as ombudsman from a list of persons recommended by the
60		-	chair of each standing committee of the legislature having primary
61		-	jurisdiction over the department.
62		-	(b) The ombudsman serves a four-year term and may be removed
63		-	by the governor only for good cause.
64		-	(c) A person may not serve as ombudsman for more than two
	52	+	shall appoint the ombudsman with the advice and consent of the
	53	+	senate for a term of four years. The ombudsman may be removed by the
	54	+	governor only for good cause.
	55	+	(b) A person may not serve as ombudsman for more than two
65	56		terms.
66	57		Sec. 512.052. ASSISTANTS. The ombudsman may appoint
67	58		assistants to perform, under the direction of the ombudsman, the
68		-	same duties and to exercise the same powers as the ombudsman.
	59	+	same duties and exercise the same powers as the ombudsman.
69	60		Sec. 512.053. CONFLICT OF INTEREST. (a) A person may not
70	61		serve as ombudsman or as an assistant ombudsman if the person or the
71	62		person's spouse:
72	63		(1) is employed by or participates in the management
73	64		of a business entity or other organization receiving funds from the
74	65		department or the office or was employed by or participated in the
75	66		management of such an entity or organization in the five years
76	67		preceding the date of the person's appointment;
77	68		(2) owns or controls, directly or indirectly, any
78	69		interest in a business entity or other organization receiving funds
79	70		from the department or the office;
80	71		(3) uses or receives any amount of tangible goods,
81	72		services, or funds from the department or the office; or
82	73		(4) is an officer, employee, manager, or paid
83		-	consultant of the department or was an officer, employee, manager,
84		-	or paid consultant of the department in the five years preceding the
85		-	date of the person's appointment.
	74	+	consultant of the department.
86	75		(b) A person may not serve as ombudsman or as an assistant
87	76		ombudsman if the person or the person's spouse is required to
88	77		register as a lobbyist under Chapter 305 because of the person's
89	78		activities for compensation on behalf of a profession related to
90	79		the operation of the department or the office.
91	80		(c) A person may not serve as ombudsman or as an assistant
92	81		ombudsman if the person or the person's spouse is an officer,
93	82		employee, manager, or paid consultant of a Texas trade association
94	83		in the field of criminal or juvenile justice.
95	84		(d) In this section, "Texas trade association" means a
96	85		nonprofit, cooperative, and voluntarily joined association of
97	86		business or professional competitors in this state designed to
98	87		assist its members and its industry or profession in dealing with
99	88		mutual business or professional problems and in promoting their
100	89		common interest.
101	90		Sec. 512.054. REPORT. (a) The ombudsman shall prepare and
102	91		submit to the governor, the lieutenant governor, the state auditor,
103	92		and each member of the legislature:
104		-	(1) periodic reports that evaluate systemic issues
105		-	affecting the department and any current issues at individual
106		-	facilities; and
	93	+	(1) periodic reports that evaluate any current issues
	94	+	at individual facilities; and
107	95		(2) an annual report that is both aggregated and
108	96		disaggregated by individual facility and describes:
109	97		(A) the work of the ombudsman and office;
110	98		(B) the results of any review or investigation
111	99		undertaken by the ombudsman, including any review or investigation
112	100		of services contracted by the department; and
113	101		(C) any recommendations that the ombudsman has
114	102		regarding:
115	103		(i) the duties of the ombudsman; or
116	104		(ii) the operations of the department.
117	105		(b) The ombudsman shall immediately report to the executive
118	106		director or the executive director's designee, the governor, the
119	107		lieutenant governor, the speaker of the house of representatives,
120	108		the state auditor, and the office of the inspector general of the
121	109		department any particularly serious or flagrant:
122		-	(1) ~~confirmed~~ case of abuse or injury of an offender;
	110	+	(1) case of abuse or injury of an offender;
123	111		(2) problem concerning the administration of a
124	112		department program or operation;
125	113		(3) problem concerning the delivery of services in a
126	114		facility; or
127	115		(4) interference by the department with an
128	116		investigation conducted by the office.
129		-	(c) In response to any recommendation made by the ombudsman
130		-	in a report submitted under this section, the department shall:
131		-	(1) develop a corrective action plan to specifically
132		-	address the recommendation; or
133		-	(2) submit to the ombudsman a written objection to the
134		-	recommendation that includes the reasons for the objection.
135		-	(d) The ombudsman shall publish on the office's Internet
136		-	website each:
137		-	(1) report submitted under this section;
138		-	(2) corrective action plan developed under Subsection
139		-	(c)(1); and
140		-	(3) objection submitted under Subsection (c)(2).
	117	+	(c) The department shall develop a corrective action plan to
	118	+	specifically address any recommendation made by the ombudsman in a
	119	+	report submitted under this section.
	120	+	(d) The ombudsman shall make public each report submitted
	121	+	and corrective action plan developed under this section.
141	122		Sec. 512.055. COMMUNICATION AND CONFIDENTIALITY. (a) The
142	123		department shall establish procedures allowing any offender or
143	124		facility administrator or employee to communicate with the
144	125		ombudsman or an assistant ombudsman regarding a power or duty of the
145	126		ombudsman or office. The communication:
146	127		(1) may be in person, by mail, or by any other means;
147	128		and
148	129		(2) is confidential and privileged.
149	130		(b) The records of the ombudsman are confidential, except
150	131		that the ombudsman shall:
151		-	(1) share with the office of ~~the~~ inspector general of
152		-	~~the~~ department a communication with an offender that may involve
153		-	~~abuse~~ or neglect; and
	132	+	(1) share with the office of inspector general of the
	133	+	department a communication with an offender that may involve abuse
	134	+	or neglect; and
154	135		(2) disclose the ombudsman's nonprivileged records if
155	136		required by a court order on a showing of good cause.
156	137		(c) The ombudsman may make public any report relating to an
157	138		investigation after the investigation is complete, except that the
158	139		names of all offenders, family members, and employees remain
159	140		confidential and must be redacted before the report is made public.
160	141		(d) The name, address, and other personally identifiable
161	142		information of a person who files a complaint with the office,
162	143		information generated by the office in the course of an
163	144		investigation, and confidential records obtained by the office are
164	145		confidential and not subject to disclosure under Chapter 552,
165	146		except that the information and records, other than confidential
166	147		information and records concerning a pending law enforcement
167	148		investigation or criminal action, may be disclosed to an
168	149		appropriate person if the office determines that disclosure is:
169	150		(1) in the public interest;
170	151		(2) necessary to enable the office or ombudsman to
171	152		perform a duty under this chapter; or
172	153		(3) necessary to identify, prevent, or treat physical
173	154		or sexual assault or neglect of an offender.
174	155		Sec. 512.056. PROMOTION OF AWARENESS. The ombudsman shall
175	156		promote awareness among the department, the public, and offenders
176	157		regarding:
177	158		(1) how the office may be contacted;
178	159		(2) the purpose of the office; and
179	160		(3) the services the office provides.
180	161		Sec. 512.057. RULEMAKING AUTHORITY. The office by rule
181	162		shall establish policies and procedures for the operations of the
182	163		office.
	164	+	Sec. 512.058. AUTHORITY OF STATE AUDITOR. The office is
	165	+	subject to audit by the state auditor in accordance with Chapter
	166	+	321.
183	167		SUBCHAPTER C. POWERS AND DUTIES
184	168		Sec. 512.101. POWERS AND DUTIES. (a) The ombudsman shall:
185	169		(1) review the procedures established by the
186	170		department and evaluate the delivery of services to offenders to
187	171		identify alternate procedures or services that would optimize the
188	172		use of state resources while ensuring that the rights of offenders
189	173		are fully observed;
190		-	(2) routinely review grievances and grievance logs to
191		-	address any pattern of actions of the department affecting the
192		-	treatment of offenders;
193		-	(3) conduct investigations of complaints submitted by
194		-	offenders, family members, and employees and review criminal
195		-	investigations conducted by the office of the inspector general of
196		-	the department if the ombudsman determines that a pattern of
197		-	complaints exists suggesting that an issue affects more than one
198		-	offender;
199		-	(4) review or inspect periodically the facilities and
	174	+	(2) review complaints concerning actions of the
	175	+	department;
	176	+	(3) conduct investigations of complaints and review
	177	+	criminal investigations conducted by the office of the inspector
	178	+	general of the department if the ombudsman determines that:
	179	+	(A) an offender or an offender's family may be in
	180	+	need of assistance from the ombudsman; or
	181	+	(B) a pattern of complaints exists suggesting
	182	+	that an issue affects more than one offender;
	183	+	(4) conduct audits to ensure compliance with the
	184	+	Prison Rape Elimination Act of 2003 (34 U.S.C. Section 30301 et
	185	+	seq.) and any regulation adopted under that act;
	186	+	(5) review or inspect periodically the facilities and
200	187		procedures of any institution or residence in which an offender has
201	188		been placed by the department, whether public or private, to ensure
202	189		that the rights of offenders are fully observed;
203		-	(5) conduct immediate investigations of a significant
204		-	group disturbance or other critical incident to determine whether a
205		-	change in department policy or practice is necessary;
206	190		(6) provide assistance to an offender or family member
207	191		who the ombudsman determines is in need of assistance, including
208	192		advocating with an agency, provider, or other person in the best
209	193		interests of the offender;
210	194		(7) review court orders as necessary to fulfill the
211	195		ombudsman's duties;
212	196		(8) recommend changes in any procedure relating to the
213	197		treatment of offenders;
214	198		(9) make appropriate referrals under any of the powers
215	199		and duties listed in this subsection; and
216	200		(10) supervise an assistant ombudsman in the
217		-	performance of the assistant ombudsman's duties.
	201	+	assistant's representation of offenders in internal administrative
	202	+	and disciplinary hearings.
218	203		(b) The ombudsman may inform persons who are interested in
219	204		an offender's welfare of the rights of the offender.
220	205		(c) To determine if an offender's rights have been violated,
221	206		the ombudsman may, in any matter that does not involve alleged
222	207		criminal behavior, contact or consult with an administrator, an
223	208		employee, a family member, an expert, another offender, or any
224	209		other individual in the course of the ombudsman's investigation or
225	210		to secure information.
226	211		(d) Notwithstanding any other provision of this chapter,
227	212		the ombudsman may not investigate alleged criminal behavior, except
228	213		that the ombudsman may review, in accordance with Subsection
229	214		(a)(3), a criminal investigation conducted by the office of the
230	215		inspector general of the department to ensure that the
231	216		investigation was conducted in an accurate, unbiased, and thorough
232	217		manner.
233		-	(e) An inmate's complaint to the office and any
234		-	investigation conducted by the ombudsman under this chapter are
235		-	independent of the inmate grievance system developed under Section
236		-	501.008 and do not affect the procedures, rights, or duties
237		-	established under that system or constitute a grievance under that
238		-	system.
	218	+	(e) The office may contract with subject matter experts as
	219	+	necessary to carry out a duty under this chapter.
239	220		Sec. 512.102. RETALIATION PROHIBITED. The department may
240	221		not:
241	222		(1) discharge, discipline, or in any manner
242	223		discriminate or retaliate against an employee who makes a good
243	224		faith complaint to the office or cooperates with an investigation
244	225		under this chapter; or
245	226		(2) discipline or in any manner discriminate or
246	227		retaliate against an offender who complains to or communicates or
247	228		cooperates with the office in the course of the office carrying out
248	229		its duties.
249	230		Sec. 512.103. TRAINING. The ombudsman may attend training
250	231		sessions for correctional officers or participate in other
251	232		appropriate professional training.
252	233		SUBCHAPTER D. ACCESS TO INFORMATION, FACILITIES, AND PERSONNEL
253	234		Sec. 512.151. ACCESS TO INFORMATION OF CERTAIN GOVERNMENTAL
254		-	ENTITIES. The department shall allow the ombudsman access to the
255		-	department's records relating to an offender or investigation. In
256		-	allowing access to records under this section, the department shall
257		-	fully cooperate and collaborate with the office in a prompt manner
258		-	in order for the office to carry out its duties and improve facility
259		-	operations and conditions.
	235	+	ENTITIES. (a) The department shall allow the ombudsman access to
	236	+	the department's records relating to an offender or investigation.
	237	+	(b) The Department of Public Safety and any local law
	238	+	enforcement agency shall allow the ombudsman access to their
	239	+	records relating to any offender.
	240	+	(c) In allowing access to records under this section, the
	241	+	department, the Department of Public Safety, or a local law
	242	+	enforcement agency shall fully cooperate and collaborate with the
	243	+	office in a prompt manner in order for the office to carry out its
	244	+	duties and improve facility operations and conditions.
260	245		Sec. 512.152. ACCESS TO INFORMATION OF PRIVATE ENTITIES.
261	246		The ombudsman may subpoena the records of a private entity that
262	247		relate to a complaint the ombudsman is investigating.
263		-	Sec. 512.153. ACCESS TO FACILITIES~~, RECORDS,~~ AND PERSONNEL.
264		-	~~(a) The~~ office may inspect or review without notice any part of a
265		-	~~facility~~ or any facility operation, policy, procedure, ~~record, or~~
266		-	~~log~~ relating to:
	248	+	Sec. 512.153. ACCESS TO FACILITIES AND PERSONNEL. (a) The
	249	+	office may inspect or review without notice any part of a facility
	250	+	or any facility operation, policy, or procedure, including any
	251	+	operation, policy, or procedure relating to:
267	252		(1) a condition of confinement;
268	253		(2) offender discipline and the use of force against
269	254		offenders;
270	255		(3) an incident of assault or sexual assault;
271	256		(4) death of or serious bodily injury to an offender;
272	257		(5) the provision of health care, including mental
273	258		health care;
274	259		(6) the offender grievance process;
275	260		(7) a telephone, mail, or visitation policy;
276	261		(8) a rehabilitation, reentry, or reintegration
277		-	program;
	262	+	program; and
278	263		(9) employee recruitment, training, supervision, or
279		-	discipline; and
280		-	(10) staffing levels and staffing deployment.
281		-	(b) The ombudsman shall coordinate with the office of the
282		-	inspector general of the department to develop policies and
283		-	procedures that ensure an inspection or review under Subsection (a)
284		-	does not interfere with a criminal investigation being conducted by
285		-	the office of the inspector general.
286		-	(c) In conducting an investigation, the office may:
	264	+	discipline.
	265	+	(b) In conducting an investigation, the office may:
287	266		(1) interview offenders and facility administrators
288	267		or employees;
289	268		(2) hold public hearings; and
290	269		(3) issue a subpoena to compel the attendance of a
291	270		relevant witness or the production of relevant records or
292	271		documents.
293	272		SUBCHAPTER E. ADVISORY BOARD
294	273		Sec. 512.201. CREATION AND COMPOSITION OF ADVISORY BOARD.
295	274		(a) An advisory board is created to advise the office in carrying
296	275		out the office's duties under this chapter.
297		-	(b) The advisory board is composed of the following nine
298		-	members appointed by the governor:
299		-	(1) one family member of an offender or a former
300		-	offender;
301		-	(2) one health care professional;
302		-	(3) one social worker;
303		-	(4) one person with expertise in administrative or
	276	+	(b) The advisory board is composed of the following members:
	277	+	(1) three members appointed by the governor;
	278	+	(2) three members appointed by the chair of the
	279	+	standing committee of the house of representatives having primary
	280	+	jurisdiction over the department;
	281	+	(3) three members appointed by the chair of the
	282	+	standing committee of the senate having primary jurisdiction over
	283	+	the department;
	284	+	(4) one member appointed by the primary author of the
	285	+	legislation enacting this chapter, but only if the author continues
	286	+	to be a member of the legislature; and
	287	+	(5) one member appointed by the primary sponsor of the
	288	+	legislation enacting this chapter, but only if the sponsor
	289	+	continues to be a member of the legislature.
	290	+	(c) The members appointed under Subsection (b) must
	291	+	include:
	292	+	(1) one member who is a family member of an offender or
	293	+	a former offender;
	294	+	(2) one member who is a health care professional;
	295	+	(3) one member who is a social worker;
	296	+	(4) one member with expertise in administrative or
304	297		criminal investigations;
305		-	(5) one ~~person~~ with expertise in sexual assault victim
	298	+	(5) one member with expertise in sexual assault victim
306	299		advocacy;
307		-	(6) one person with expertise in occupational safety
308		-	and health;
309		-	(7) one person with expertise in research and data
310		-	analysis;
311		-	(8) one former offender; and
312		-	(9) one former correctional officer.
313		-	(c) The chair of each standing committee of the legislature
314		-	having primary jurisdiction over the department and the primary
315		-	author and sponsor of the legislation enacting this chapter, but
316		-	only if the author or sponsor continues to be a member of the
317		-	legislature, may provide the governor with recommendations on any
318		-	appointment made under Subsection (b).
319		-	(d) Members of the advisory board serve staggered four-year
320		-	terms.
321		-	(e) A person may not serve as a member of the advisory board
322		-	for more than two terms.
323		-	(f) Chapter 2110 does not apply to the composition or
	300	+	(6) one member with expertise in occupational safety
	301	+	and health; and
	302	+	(7) one member with expertise in research and data
	303	+	analysis.
	304	+	(d) Chapter 2110 does not apply to the composition or
324	305		duration of the advisory board.
325		-	SECTION 2. ~~(a)~~ As soon as practicable after the effective
326		-	~~date~~ of this Act, the governor shall appoint an initial ombudsman
327		-	~~under~~ Chapter 512, Government Code, as added by this Act, to a term
	306	+	SECTION 2. As soon as practicable after the effective date
	307	+	of this Act, the governor shall appoint an initial ombudsman under
	308	+	Chapter 512, Government Code, as added by this Act, to a term
328	309		expiring February 1, 2023.
329		-	(b) Not later than December 1, 2019, the governor shall
330		-	appoint the members of the advisory board under Section 512.201,
331		-	Government Code, as added by this Act.
332	310		SECTION 3. This Act takes effect September 1, 2019.