86R12129 AAF-D
By: Creighton S.B. No. 2321
A BILL TO BE ENTITLED
AN ACT
relating to issues involving the administration or finances of
state entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 322.008, Government Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) For each state agency, institution, or other entity to
which an appropriation is proposed by a general appropriations
bill, the bill must include for each specific program or activity
administered by the agency, institution, or entity:
(1) a description of the program or activity;
(2) the amount of the proposed appropriation; and
(3) a statement that specifies the source of the
proposed appropriation for the program or activity.
SECTION 2. The heading to Section 322.020, Government Code,
is amended to read as follows:
Sec. 322.020. [MAJOR] CONTRACTS DATABASE.
SECTION 3. Section 322.020, Government Code, is amended by
amending Subsections (a), (b), and (c) and adding Subsections
(b-1), (b-2), (b-3), (b-4), and (b-5) to read as follows:
(a) In this section[, "major contract" means]:
(1) "Contract" means a contract, grant, or agreement
for the purchase or sale of goods or services that is entered into
or paid for, wholly or partly, by a state agency or an amendment,
modification, renewal, or extension of the contract, grant, or
agreement. The term includes a revenue generating contract, an
interagency or interlocal grant or agreement, a purchase order, or
other written expression of terms of agreement. [a contract for
which notice is required under one of the following sections:
[(A) Section 2054.008;
[(B) Section 2166.2551;
[(C) Section 2254.006; or
[(D) Section 2254.0301; or]
(2) "Institution of higher education" has the meaning
assigned by Section 61.003, Education Code.
(3) "State agency" has the meaning assigned by Section
2054.003 [a contract, including an amendment, modification,
renewal, or extension:
[(A) for which notice is not required under a
section listed in Subdivision (1);
[(B) that is not a purchase order, an interagency
contract, or a contract paid only with funds not appropriated by the
General Appropriations Act; and
[(C) with a value that exceeds $50,000].
(b) This section applies only to:
(1) a major consulting services contract, as defined
by Section 2254.021; and
(2) a contract, including any amendment,
modification, renewal, or extension of the contract, that has a
value that exceeds or is reasonably expected to exceed $50,000,
other than a contract of an institution of higher education that:
(A) is paid for solely with institutional funds
or hospital and clinic fees, as described by Section 51.009,
Education Code; or
(B) is for sponsored research.
(b-1) Not later than the 30th calendar day after the date a
contract is awarded, amended, modified, renewed, or extended, a
[Each] state agency shall provide written notice of the contract to
the Legislative Budget Board. The written notice must include
copies of the following documents:
(1) each [major] contract entered into by the agency,
including each amendment, modification, renewal, or extension of
the contract; and
(2) each request for proposal, invitation to bid, or
comparable solicitation related to the [major] contract.
(b-2) The requirement to provide copies of documents under
Subsection (b-1) does not apply to:
(1) an enrollment contract described by 1 T.A.C.
Section 391.183 as that section existed on June 1, 2015; or
(2) a contract of the Texas Department of
Transportation that:
(A) relates to highway construction or
engineering; or
(B) is subject to Section 201.112,
Transportation Code.
(b-3) A state agency may redact from the written notice
provided under Subsection (b-1) information excepted from
disclosure under Chapter 552, including information that may be
used to perpetrate fraud on the agency, such as:
(1) certain commercial or financial information;
(2) credit card, debit card, charge card, and access
device numbers; and
(3) government information related to security or
infrastructure issues for computers.
(b-4) For an institution of higher education, Subsection
(b-1) applies only if:
(1) for a major information system, as defined by
Section 2054.0965, the value exceeds $1 million and the contract is
paid with appropriated funds;
(2) for a construction project, the contract is paid
with appropriated funds; or
(3) for professional services, the contract is for
services other than physician or optometric service and is paid
with appropriated funds.
(b-5) The redaction of information under this section does
not exempt the information from the requirements of Section 552.021
or 552.221.
(c) The Legislative Budget Board shall post on the Internet
a copy of:
(1) each [major] contract, including each amendment,
modification, renewal, or extension of the contract [of a state
agency]; and
(2) each request for proposal, invitation to bid, or
comparable solicitation related to the [major] contract.
SECTION 4. Chapter 322, Government Code, is amended by
adding Sections 322.021, 322.0211, and 322.0212 to read as follows:
Sec. 322.021. STATE AGENCY CONTRACT OVERSIGHT. (a) In this
section:
(1) "Board" means the Legislative Budget Board.
(2) "Institution of higher education" has the meaning
assigned by Section 61.003, Education Code.
(3) "State agency" has the meaning assigned by Section
2054.003.
(b) Subject to Subsection (c), the board may review state
agency contracts to determine compliance with the contract
management guide developed under Section 2054.554, the
comptroller's procurement policy manuals, and each applicable
state contracting law, rule, policy, and procedure. The authority
to review a state agency contract under this subsection applies
regardless of the source of funds or method of financing for the
contract.
(c) This section does not apply to a contract of an
institution of higher education that is paid for solely with
institutional funds or hospital and clinic fees, as described by
Section 51.009, Education Code. The board shall review the
contract management handbook developed by an institution of higher
education as required by Section 51.9337(b)(3), Education Code,
when determining the institution's compliance with contracting
rules and procedures.
(d) Board staff may request, and are entitled to obtain, any
document related to a contract reviewed under this section or to a
purchase under the contract.
(e) Each state agency shall cooperate with the board in
conducting a contract review under this section and in resolving
any issue resulting from the contract review.
Sec. 322.0211. NOTICE OF VIOLATION OF STATE CONTRACTING
LAW; CORRECTIVE ACTION PLAN. (a) If the Legislative Budget Board
determines under Section 322.021 that a state agency contract
violates the contract management guide, the comptroller's
procurement policy manuals, or a state contracting law, rule,
policy, or procedure, the board's director shall provide notice of
the violation to the agency.
(b) A state agency shall provide a written response to the
notice provided under Subsection (a) not later than the 10th
business day after the date the agency receives the notice.
(c) If the board determines that the response provided by a
state agency under Subsection (b) does not adequately address or
resolve the violation determined under Subsection (a), the board's
director may provide to the board and the state agency,
comptroller, and governor written notice of the violation. A
violation notice provided under this subsection must:
(1) detail the specific provision violated by the
contract;
(2) recommend actions to be taken to address the
violation and any identified risks related to the contract;
(3) list potential remedies for the violation; and
(4) state any enforcement mechanism that may be
assessed under Section 322.0212 for the violation.
(d) A state agency that receives notice of a violation under
Subsection (c) shall develop a written corrective action plan
consistent with the board's recommendations and provide the plan to
the board not later than the 30th calendar day after the date the
agency receives the notice.
(e) The board may monitor a state agency's implementation of
the corrective action plan.
Sec. 322.0212. ENFORCEMENT. (a) The Legislative Budget
Board may assess an enforcement mechanism against a state agency
that the board determines under Section 322.021 is in violation of
the contract management guide, the comptroller's procurement
policy manuals, or a state contracting law, rule, policy, or
procedure. The enforcement mechanism must be assessed in
accordance with the schedule developed under Subsection (b).
(b) The board may establish a schedule of enforcement
mechanisms that may be assessed against a state agency for a
violation described by Subsection (a). The enforcement mechanisms
may include:
(1) enhanced monitoring of the state agency's
contracts by board personnel;
(2) required consultation with the Contract Advisory
Team established under Section 2262.101 or the quality assurance
team established under Section 2054.158 before issuance of a
contract by the state agency;
(3) targeted audits by the State Auditor's Office at
the request of the board; and
(4) recommended cancellation of a contract determined
to contain a violation described by Section 322.0211(a).
(c) The board's director may recommend to the board an
enforcement mechanism to be assessed against a state agency for a
contract violation.
(d) The board may increase the severity of an enforcement
mechanism assessed against a state agency for repeated contract
violations described by Section 322.0211(a).
(e) The board may dismiss an enforcement mechanism assessed
against a state agency by the board for a contract violation
described by Section 322.0211(a) on successful implementation of a
corrective action plan by the agency under Section 322.0211(d).
SECTION 5. Chapter 322, Government Code, is amended by
adding Section 322.025 to read as follows:
Sec. 322.025. REPORT ON SPENDING REDUCTION MEASURES. (a)
Not later than September 1 of each even-numbered year, each entity
that is required to submit a legislative appropriations request
shall submit to the board a detailed report identifying measures by
which the entity may reduce its expenditures from general revenue
and general revenue-dedicated accounts by 1 percent, 5 percent, and
10 percent in the next state fiscal biennium.
(b) An entity described by Subsection (a) shall rank each of
the 1 percent, 5 percent, and 10 percent spending reduction
measures from highest to lowest priority. The entity shall assign
higher priority to measures that:
(1) have fewer consequences for the entity's programs
and goals;
(2) have less impact on populations served by the
entity; or
(3) eliminate redundancies and inefficiencies.
(c) An entity described by Subsection (a) may not include in
the report a spending reduction measure that would violate the
state or federal constitution.
(d) The board may exempt certain expenditures from
consideration under this section.
(e) The board may issue guidance regarding:
(1) standards for reports required by this section,
including format, content, and methods of submission; and
(2) prioritizing spending reduction measures under
Subsection (b).
(f) The board may require an entity to submit the report
under this section with the entity's legislative appropriations
request.
(g) Not later than December 1 of each even-numbered year,
the board shall make reports received under this section available
to the governor, lieutenant governor, speaker of the house of
representatives, and members of the legislature.
SECTION 6. Chapter 325, Government Code, is amended by
adding Section 325.026 to read as follows:
Sec. 325.026. REPORT TO SENATE COMMITTEE. (a) A
governmental entity subject to this chapter shall deliver a report
to the legislature that:
(1) explains changes to the entity's rules made since
the commission last completed a review of the entity and the
consequences of those changes; and
(2) provides a justification for making the changes
described by Subdivision (1).
(b) The report required under Subsection (a) must be
delivered not later than November 30 of:
(1) the sixth year after the year in which the
commission completed a review of the entity if the entity was
continued for a period of 12 years under Section 325.015; or
(2) if the entity was continued for a period other than
12 years under Section 325.015, the year that is halfway through the
entity's continuance period.
(c) A legislative committee may compel testimony by a
representative of a governmental entity that is not a state agency
regarding the subject of the report in the same way the committee
may compel testimony from a representative of a state agency.
SECTION 7. Sections 2001.0045(a), (b), and (c), Government
Code, are amended to read as follows:
(a) In this section, "state agency" has the meaning assigned
by Section 2001.006 [means a department, board, commission,
committee, council, agency, office, or other entity in the
executive, legislative, or judicial branch of state
government. This term does not include an agency under the
authority of an elected officer of this state].
(b) [A state agency rule proposal that contains more than
one rule in a single rulemaking action is considered one rule for
purposes of this section.] Except as provided by Subsection (c), a
state agency may not adopt a proposed rule for which the fiscal note
for the notice required by Section 2001.024 states that the rule
imposes a cost on any regulated person [persons], including another
state agency, a special district, and [or] a local government,
unless on or before the effective date of the proposed rule the
state agency:
(1) repeals two state agency rules [a rule] that
impose [imposes a] total costs [cost] on the person in an amount
[regulated persons that is] equal to or greater than the [total]
cost imposed on the person [regulated persons] by the proposed
rule; [or]
(2) amends two state agency rules [a rule] to decrease
the total costs [cost] imposed on the person [regulated persons] by
an amount [that is] equal to or greater than the cost imposed on the
person [persons] by the proposed rule; or
(3) repeals one state agency rule and amends one state
agency rule to decrease the total costs imposed on the person by an
amount equal to or greater than the cost imposed on the person by
the proposed rule.
(c) This section does not apply to a rule that:
(1) relates to state agency procurement;
(2) is amended to:
(A) reduce the burden or responsibilities
imposed on a regulated person [persons] by the rule; or
(B) decrease the person's [persons'] cost for
compliance with the rule;
(3) is adopted in response to a natural disaster; or
(4) [is necessary to receive a source of federal funds
or to comply with federal law;
[(5) is necessary to protect water resources of this
state as authorized by the Water Code;
[(6) is necessary to protect the health, safety, and
welfare of the residents of this state;
[(7)] is adopted by the Department of Family and
Protective Services[, Department of Motor Vehicles, Public Utility
Commission, Texas Commission on Environmental Quality, or Texas
Racing Commission;
[(8) is adopted by a self-directed semi-independent
agency; or
[(9) is necessary to implement legislation, unless the
legislature specifically states this section applies to the rule].
SECTION 8. Section 2054.0965, Government Code, is amended
by amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) Except as otherwise modified by rules adopted by the
department, the review must include:
(1) an inventory of the agency's major information
systems[, as defined by Section 2054.008,] and other operational or
logistical components related to deployment of information
resources as prescribed by the department;
(2) an inventory of the agency's major databases and
applications;
(3) a description of the agency's existing and planned
telecommunications network configuration;
(4) an analysis of how information systems,
components, databases, applications, and other information
resources have been deployed by the agency in support of:
(A) applicable achievement goals established
under Section 2056.006 and the state strategic plan adopted under
Section 2056.009;
(B) the state strategic plan for information
resources; and
(C) the agency's business objectives, mission,
and goals;
(5) agency information necessary to support the state
goals for interoperability and reuse; and
(6) confirmation by the agency of compliance with
state statutes, rules, and standards relating to information
resources.
(c) In this section, "major information system" includes:
(1) one or more computers that in the aggregate cost
more than $100,000;
(2) a service related to computers, including computer
software, that costs more than $100,000; and
(3) a telecommunications apparatus or device that
serves as a voice, data, or video communications network for
transmitting, switching, routing, multiplexing, modulating,
amplifying, or receiving signals on the network and costs more than
$100,000.
SECTION 9. The heading to Section 2261.253, Government
Code, is amended to read as follows:
Sec. 2261.253. REQUIRED POSTING OF [CERTAIN CONTRACTS;
ENHANCED] CONTRACT INFORMATION AND PERFORMANCE MONITORING.
SECTION 10. Sections 2261.253(a), (b), and (d), Government
Code, are amended to read as follows:
(a) Each [For each contract for the purchase of goods or
services from a private vendor, each] state agency shall post on its
Internet website's home page a link to the Legislative Budget
Board's contracts database established under Section 322.020
[website:
[(1) each contract the agency enters into, including
contracts entered into without inviting, advertising for, or
otherwise requiring competitive bidding before selection of the
contractor, until the contract expires or is completed;
[(2) the statutory or other authority under which a
contract that is not competitively bid under Subdivision (1) is
entered into without compliance with competitive bidding
procedures; and
[(3) the request for proposals related to a
competitively bid contract included under Subdivision (1) until the
contract expires or is completed].
(b) For each contract in an amount of $15,000 or more for the
purchase of goods or services from a private vendor that is paid for
solely with institutional funds or hospital and clinic fees, as
described by Section 51.009, Education Code, an institution of
higher education, as defined by Section 61.003, Education Code,
shall post on the institution's Internet website:
(1) the contract, including a contract that does not
require competitive bidding before selection of the contractor,
until the contract expires or is completed;
(2) for a contract that does not require competitive
bidding, the statutory or other authority that allows the contract
to be entered into without compliance with competitive bidding
procedures; and
(3) the request for proposals related to a
competitively bid contract posted under Subdivision (1), until the
contract is completed [A state agency monthly may post contracts
described by Subsection (a) that are valued at less than $15,000].
(d) An institution of higher education may redact
information from the contracts posted on the institution's Internet
website under Subsection (b) to the same extent as permitted under
Section 322.020(b-3). The redaction of information under this
subsection does not exempt the information from the requirements of
Section 552.021 or 552.221 [This section does not apply to a
memorandum of understanding, interagency contract, interlocal
agreement, or contract for which there is not a cost].
SECTION 11. Section 2262.101, Government Code, is amended
by adding Subsection (g) to read as follows:
(g) The team shall provide to the Legislative Budget Board a
copy of:
(1) each recommendation made under Subsection (a)(1)
on a solicitation or contract document not later than the 10th
calendar day after the date the team makes the recommendation; and
(2) any written explanation submitted by a state
agency under Subsection (d)(2) stating the reason a recommendation
is not applicable to the contract under review not later than the
10th calendar day after the date the team receives the explanation.
SECTION 12. Sections 2262.102(a) and (d), Government Code,
are amended to read as follows:
(a) The team consists of the following [six] members:
(1) one member from the Health and Human Services
Commission;
(2) one member from the comptroller's office;
(3) one member from the Department of Information
Resources;
(4) one member from the Texas Facilities Commission;
(5) one member from the governor's office; and
(6) one or more members [member] from any other [a
small] state agencies, as designated by the comptroller as the
comptroller considers necessary [agency].
(d) The comptroller may adopt rules regarding the
membership of the team, as appropriate, to implement this section
[In this section, "small state agency" means a state agency with
fewer than 100 employees].
SECTION 13. The heading to Chapter 2264, Government Code,
is amended to read as follows:
CHAPTER 2264. CERTAIN RESTRICTIONS ON [USE OF CERTAIN] PUBLIC
SUBSIDIES AND STATE CONTRACTS
SECTION 14. Section 2264.101, Government Code, is
transferred to Subchapter B, Chapter 2264, Government Code,
redesignated as Section 2264.054, Government Code, and amended to
read as follows:
Sec. 2264.054 [2264.101]. RECOVERY. (a) A public agency,
local taxing jurisdiction, or economic development corporation, or
the attorney general on behalf of the state or a state agency, may
bring a civil action to recover any amounts owed to the public
agency, state or local taxing jurisdiction, or economic development
corporation under this subchapter [chapter].
(b) The public agency, local taxing jurisdiction, economic
development corporation, or attorney general, as applicable, shall
recover court costs and reasonable attorney's fees incurred in an
action brought under Subsection (a).
(c) A business is not liable for a violation of this
subchapter [chapter] by a subsidiary, affiliate, or franchisee of
the business, or by a person with whom the business contracts.
SECTION 15. The heading to Subchapter C, Chapter 2264,
Government Code, is amended to read as follows:
SUBCHAPTER C. E-VERIFY PROGRAM [ENFORCEMENT]
SECTION 16. Subchapter C, Chapter 2264, Government Code, is
amended by adding Sections 2264.1011, 2264.102, 2264.103, and
2264.104 to read as follows:
Sec. 2264.1011. DEFINITIONS. In this subchapter:
(1) "E-verify program" has the meaning assigned by
Section 673.001.
(2) "State agency" has the meaning assigned by Section
2103.001.
Sec. 2264.102. VERIFICATION BY CONTRACTORS. (a) A state
agency may not award a contract for goods or services within this
state to a contractor unless the contractor registers with and
participates in the E-verify program to verify employee
information. The contractor must continue to participate in the
program during the term of the contract.
(b) Each contract with a state agency must include the
following statement:
"______________ (name of contractor) certifies that
__________ (name of contractor) is not ineligible to receive this
contract under Subchapter C, Chapter 2264, Government Code, and
acknowledges that if this certification is inaccurate or becomes
inaccurate during the term of the contract, the contractor may be
barred from participating in state contracts."
(c) If a state agency determines that a contractor was
ineligible to have the contract awarded under Subsection (a) or
that a contractor has ceased participation in the E-verify program
during the term of the contract, the state agency shall refer the
matter to the comptroller for action.
(d) Each state agency shall develop procedures for the
administration of this section.
Sec. 2264.103. BARRING FROM STATE CONTRACTS. (a) Using
procedures prescribed under Section 2155.077, the comptroller
shall bar a contractor from participating in state contracts if a
state agency under Section 2264.102 determines that the contractor:
(1) was awarded a contract in violation of Section
2264.102; or
(2) has ceased participation in the E-verify program
during the term of the contract.
(b) Debarment under this section is for a period of up to
five years.
(c) A contractor who registers with and participates in the
E-verify program as provided by Section 2264.102 may not be barred
under this section if, as a result of receiving inaccurate
verification information from the E-verify program, the contractor
hires or employs a person in violation of 8 U.S.C. Section 1324a.
Sec. 2264.104. AFFIRMATIVE DEFENSE; DISCRIMINATION
PROHIBITED. (a) It is an affirmative defense to a civil action for
damages or the imposition of a civil penalty for an employer's
refusal to hire or employ a person based on the employer's
participation in the E-verify program as required by this
subchapter that the employer participated in the E-verify program
in accordance with the rules and guidelines of the program and
received inaccurate information.
(b) This section may not be construed to allow intentional
discrimination of any class protected by law.
SECTION 17. The following provisions are repealed:
(1) Section 322.020(f), Government Code;
(2) Section 2054.008, Government Code;
(3) Section 2166.2551, Government Code;
(4) Section 2254.006, Government Code;
(5) Section 2254.0301, Government Code;
(6) Sections 2261.253(e), (f), (g), and (h),
Government Code;
(7) Section 81.072, Natural Resources Code; and
(8) Section 223.051, Transportation Code, as added by
Chapter 533 (S.B. 312), Acts of the 85th Legislature, Regular
Session, 2017.
SECTION 18. Section 322.008, Government Code, as amended by
this Act, applies to the general appropriations bills prepared for
the 2022-2023 state fiscal biennium and subsequent bienniums.
SECTION 19. Section 2001.0045, Government Code, as amended
by this Act, applies only to a rule proposed by a state agency on or
after the effective date of this Act. A rule proposed before that
date is governed by the law in effect on the date the rule was
proposed, and the former law is continued in effect for that
purpose.
SECTION 20. As soon as practicable after the effective date
of this Act, the comptroller of public accounts shall designate one
or more members to the Contract Advisory Team as provided by Section
2262.102, Government Code, as amended by this Act.
SECTION 21. Each state agency subject to Subchapter C,
Chapter 2264, Government Code, as amended by this Act, shall
develop the procedures required under Section 2264.102(d),
Government Code, as added by this Act, not later than October 1,
2019.
SECTION 22. Sections 2264.1011, 2264.102, and 2264.103,
Government Code, as added by this Act, apply only in relation to a
contract for which the request for bids or proposals or other
applicable expression of interest is made public on or after the
effective date of this Act.
SECTION 23. Except as otherwise provided by this Act, the
changes in law made by this Act apply to a contract entered into or
amended, modified, renewed, or extended on or after the effective
date of this Act. A contract entered into or amended, modified,
renewed, or extended before the effective date of this Act is
governed by the law in effect on the date the contract was entered
into or amended, modified, renewed, or extended, and the former law
is continued in effect for that purpose.
SECTION 24. This Act takes effect September 1, 2019.