86R1992 JG-D
By: Miles S.B. No. 188
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the office of independent oversight
ombudsman for the Texas Department of Criminal Justice.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle G, Title 4, Government Code, is amended
by adding Chapter 512 to read as follows:
CHAPTER 512. OFFICE OF INDEPENDENT OVERSIGHT OMBUDSMAN FOR TEXAS
DEPARTMENT OF CRIMINAL JUSTICE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 512.001. DEFINITIONS. In this chapter:
(1) "Facility" means a facility operated by or under
contract with the department that is used primarily for the
confinement of offenders.
(2) "Offender" means an inmate or state jail defendant
confined in a facility.
(3) "Office" means the office of independent oversight
ombudsman.
(4) "Ombudsman" means the individual appointed under
this chapter as ombudsman for the office.
Sec. 512.002. ESTABLISHMENT; PURPOSE. The office is a
state agency established for the purpose of monitoring the
conditions of confinement and treatment of offenders and
investigating, evaluating, and securing the rights of offenders.
The office is also responsible for in-depth review and analysis of
data, determination of long-term needs, identification of critical
issues and corresponding solutions, and assessment of the efficacy
of existing programs.
Sec. 512.003. INDEPENDENCE. The ombudsman acts
independently of the department and the board in the performance of
the ombudsman's powers and duties under this chapter.
Sec. 512.004. ADMINISTRATIVE ATTACHMENT; SUPPORT; BUDGET.
(a) The office is administratively attached to the Commission on
Jail Standards.
(b) The Commission on Jail Standards shall provide office
space and administrative support services, including human
resources, budgetary, accounting, purchasing, payroll, information
technology, and legal support services, to the office as necessary
to carry out the purposes of this chapter.
(c) The office, in accordance with the rules and procedures
of the Legislative Budget Board, shall prepare, approve, and submit
a legislative appropriations request that is used to develop the
office's budget structure. The office shall maintain the
legislative appropriations request and budget structure separately
from those of the Commission on Jail Standards and the department.
SUBCHAPTER B. APPOINTMENT AND MANAGEMENT OF OFFICE
Sec. 512.051. APPOINTMENT OF OMBUDSMAN. (a) The governor
shall appoint the ombudsman with the advice and consent of the
senate for a term of four years. The ombudsman may be removed by the
governor only for good cause.
(b) A person may not serve as ombudsman for more than two
terms.
Sec. 512.052. ASSISTANTS. The ombudsman may appoint
assistants to perform, under the direction of the ombudsman, the
same duties and exercise the same powers as the ombudsman.
Sec. 512.053. CONFLICT OF INTEREST. (a) A person may not
serve as ombudsman or as an assistant ombudsman if the person or the
person's spouse:
(1) is employed by or participates in the management
of a business entity or other organization receiving funds from the
department or the office or was employed by or participated in the
management of such an entity or organization in the five years
preceding the date of the person's appointment;
(2) owns or controls, directly or indirectly, any
interest in a business entity or other organization receiving funds
from the department or the office;
(3) uses or receives any amount of tangible goods,
services, or funds from the department or the office; or
(4) is an officer, employee, manager, or paid
consultant of the department.
(b) A person may not serve as ombudsman or as an assistant
ombudsman if the person or the person's spouse is required to
register as a lobbyist under Chapter 305 because of the person's
activities for compensation on behalf of a profession related to
the operation of the department or the office.
(c) A person may not serve as ombudsman or as an assistant
ombudsman if the person or the person's spouse is an officer,
employee, manager, or paid consultant of a Texas trade association
in the field of criminal or juvenile justice.
(d) In this section, "Texas trade association" means a
nonprofit, cooperative, and voluntarily joined association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
Sec. 512.054. REPORT. (a) The ombudsman shall prepare and
submit to the governor, the lieutenant governor, the state auditor,
and each member of the legislature:
(1) periodic reports that evaluate any current issues
at individual facilities; and
(2) an annual report that is both aggregated and
disaggregated by individual facility and describes:
(A) the work of the ombudsman and office;
(B) the results of any review or investigation
undertaken by the ombudsman, including any review or investigation
of services contracted by the department; and
(C) any recommendations that the ombudsman has
regarding:
(i) the duties of the ombudsman; or
(ii) the operations of the department.
(b) The ombudsman shall immediately report to the executive
director or the executive director's designee, the governor, the
lieutenant governor, the speaker of the house of representatives,
the state auditor, and the office of the inspector general of the
department any particularly serious or flagrant:
(1) case of abuse or injury of an offender;
(2) problem concerning the administration of a
department program or operation;
(3) problem concerning the delivery of services in a
facility; or
(4) interference by the department with an
investigation conducted by the office.
(c) The department shall develop a corrective action plan to
specifically address any recommendation made by the ombudsman in a
report submitted under this section.
(d) The ombudsman shall make public each report submitted
and corrective action plan developed under this section.
Sec. 512.055. COMMUNICATION AND CONFIDENTIALITY. (a) The
department shall establish procedures allowing any offender or
facility administrator or employee to communicate with the
ombudsman or an assistant ombudsman regarding a power or duty of the
ombudsman or office. The communication:
(1) may be in person, by mail, or by any other means;
and
(2) is confidential and privileged.
(b) The records of the ombudsman are confidential, except
that the ombudsman shall:
(1) share with the office of inspector general of the
department a communication with an offender that may involve abuse
or neglect; and
(2) disclose the ombudsman's nonprivileged records if
required by a court order on a showing of good cause.
(c) The ombudsman may make public any report relating to an
investigation after the investigation is complete, except that the
names of all offenders, family members, and employees remain
confidential and must be redacted before the report is made public.
(d) The name, address, and other personally identifiable
information of a person who files a complaint with the office,
information generated by the office in the course of an
investigation, and confidential records obtained by the office are
confidential and not subject to disclosure under Chapter 552,
except that the information and records, other than confidential
information and records concerning a pending law enforcement
investigation or criminal action, may be disclosed to an
appropriate person if the office determines that disclosure is:
(1) in the public interest;
(2) necessary to enable the office or ombudsman to
perform a duty under this chapter; or
(3) necessary to identify, prevent, or treat physical
or sexual assault or neglect of an offender.
Sec. 512.056. PROMOTION OF AWARENESS. The ombudsman shall
promote awareness among the department, the public, and offenders
regarding:
(1) how the office may be contacted;
(2) the purpose of the office; and
(3) the services the office provides.
Sec. 512.057. RULEMAKING AUTHORITY. The office by rule
shall establish policies and procedures for the operations of the
office.
Sec. 512.058. AUTHORITY OF STATE AUDITOR. The office is
subject to audit by the state auditor in accordance with Chapter
321.
SUBCHAPTER C. POWERS AND DUTIES
Sec. 512.101. POWERS AND DUTIES. (a) The ombudsman shall:
(1) review the procedures established by the
department and evaluate the delivery of services to offenders to
identify alternate procedures or services that would optimize the
use of state resources while ensuring that the rights of offenders
are fully observed;
(2) review complaints concerning actions of the
department;
(3) conduct investigations of complaints and review
criminal investigations conducted by the office of the inspector
general of the department if the ombudsman determines that:
(A) an offender or an offender's family may be in
need of assistance from the ombudsman; or
(B) a pattern of complaints exists suggesting
that an issue affects more than one offender;
(4) conduct audits to ensure compliance with the
Prison Rape Elimination Act of 2003 (34 U.S.C. Section 30301 et
seq.) and any regulation adopted under that act;
(5) review or inspect periodically the facilities and
procedures of any institution or residence in which an offender has
been placed by the department, whether public or private, to ensure
that the rights of offenders are fully observed;
(6) provide assistance to an offender or family member
who the ombudsman determines is in need of assistance, including
advocating with an agency, provider, or other person in the best
interests of the offender;
(7) review court orders as necessary to fulfill the
ombudsman's duties;
(8) recommend changes in any procedure relating to the
treatment of offenders;
(9) make appropriate referrals under any of the powers
and duties listed in this subsection; and
(10) supervise an assistant ombudsman in the
assistant's representation of offenders in internal administrative
and disciplinary hearings.
(b) The ombudsman may inform persons who are interested in
an offender's welfare of the rights of the offender.
(c) To determine if an offender's rights have been violated,
the ombudsman may, in any matter that does not involve alleged
criminal behavior, contact or consult with an administrator, an
employee, a family member, an expert, another offender, or any
other individual in the course of the ombudsman's investigation or
to secure information.
(d) Notwithstanding any other provision of this chapter,
the ombudsman may not investigate alleged criminal behavior, except
that the ombudsman may review, in accordance with Subsection
(a)(3), a criminal investigation conducted by the office of the
inspector general of the department to ensure that the
investigation was conducted in an accurate, unbiased, and thorough
manner.
(e) The office may contract with subject matter experts as
necessary to carry out a duty under this chapter.
Sec. 512.102. RETALIATION PROHIBITED. The department may
not:
(1) discharge, discipline, or in any manner
discriminate or retaliate against an employee who makes a good
faith complaint to the office or cooperates with an investigation
under this chapter; or
(2) discipline or in any manner discriminate or
retaliate against an offender who complains to or communicates or
cooperates with the office in the course of the office carrying out
its duties.
Sec. 512.103. TRAINING. The ombudsman may attend training
sessions for correctional officers or participate in other
appropriate professional training.
SUBCHAPTER D. ACCESS TO INFORMATION, FACILITIES, AND PERSONNEL
Sec. 512.151. ACCESS TO INFORMATION OF CERTAIN GOVERNMENTAL
ENTITIES. (a) The department shall allow the ombudsman access to
the department's records relating to an offender or investigation.
(b) The Department of Public Safety and any local law
enforcement agency shall allow the ombudsman access to their
records relating to any offender.
(c) In allowing access to records under this section, the
department, the Department of Public Safety, or a local law
enforcement agency shall fully cooperate and collaborate with the
office in a prompt manner in order for the office to carry out its
duties and improve facility operations and conditions.
Sec. 512.152. ACCESS TO INFORMATION OF PRIVATE ENTITIES.
The ombudsman may subpoena the records of a private entity that
relate to a complaint the ombudsman is investigating.
Sec. 512.153. ACCESS TO FACILITIES AND PERSONNEL. (a) The
office may inspect or review without notice any part of a facility
or any facility operation, policy, or procedure, including any
operation, policy, or procedure relating to:
(1) a condition of confinement;
(2) offender discipline and the use of force against
offenders;
(3) an incident of assault or sexual assault;
(4) death of or serious bodily injury to an offender;
(5) the provision of health care, including mental
health care;
(6) the offender grievance process;
(7) a telephone, mail, or visitation policy;
(8) a rehabilitation, reentry, or reintegration
program; and
(9) employee recruitment, training, supervision, or
discipline.
(b) In conducting an investigation, the office may:
(1) interview offenders and facility administrators
or employees;
(2) hold public hearings; and
(3) issue a subpoena to compel the attendance of a
relevant witness or the production of relevant records or
documents.
SUBCHAPTER E. ADVISORY BOARD
Sec. 512.201. CREATION AND COMPOSITION OF ADVISORY BOARD.
(a) An advisory board is created to advise the office in carrying
out the office's duties under this chapter.
(b) The advisory board is composed of the following members:
(1) three members appointed by the governor;
(2) three members appointed by the chair of the
standing committee of the house of representatives having primary
jurisdiction over the department;
(3) three members appointed by the chair of the
standing committee of the senate having primary jurisdiction over
the department;
(4) one member appointed by the primary author of the
legislation enacting this chapter, but only if the author continues
to be a member of the legislature; and
(5) one member appointed by the primary sponsor of the
legislation enacting this chapter, but only if the sponsor
continues to be a member of the legislature.
(c) The members appointed under Subsection (b) must
include:
(1) one member who is a family member of an offender or
a former offender;
(2) one member who is a health care professional;
(3) one member who is a social worker;
(4) one member with expertise in administrative or
criminal investigations;
(5) one member with expertise in sexual assault victim
advocacy;
(6) one member with expertise in occupational safety
and health; and
(7) one member with expertise in research and data
analysis.
(d) Chapter 2110 does not apply to the composition or
duration of the advisory board.
SECTION 2. As soon as practicable after the effective date
of this Act, the governor shall appoint an initial ombudsman under
Chapter 512, Government Code, as added by this Act, to a term
expiring February 1, 2023.
SECTION 3. This Act takes effect September 1, 2019.