Texas 2021 - 87th Regular

Texas Senate Bill SB1980 Compare Versions

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1	1	By: Miles S.B. No. 1980
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the creation of the office of independent oversight
7	7	ombudsman for the Texas Department of Criminal Justice.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle G, Title 4, Government Code, is amended
10	10	by adding Chapter 512 to read as follows:
11	11	CHAPTER 512. OFFICE OF INDEPENDENT OVERSIGHT OMBUDSMAN FOR TEXAS
12	12	DEPARTMENT OF CRIMINAL JUSTICE
13	13	SUBCHAPTER A. GENERAL PROVISIONS
14	14	Sec. 512.001. DEFINITIONS. In this chapter:
15	15	(1) "Facility" means a facility operated by or under
16	16	contract with the department that is used primarily for the
17	17	confinement of offenders.
18	18	(2) "Offender" means an inmate or state jail defendant
19	19	confined in a facility.
20	20	(3) "Office" means the office of independent oversight
21	21	ombudsman.
22	22	(4) "Ombudsman" means the individual appointed under
23	23	this chapter as ombudsman for the office.
24	24	Sec. 512.002. ESTABLISHMENT; PURPOSE. The office is a
25	25	state agency established for the purpose of monitoring the
26	26	conditions of confinement and treatment of offenders,
27	27	investigating, evaluating, and securing the rights of offenders,
28	28	and assisting the department in improving its operations. The
29	29	office is also responsible for conducting in-depth reviews and
30	30	analyses of data, determining long-term needs, identifying
31	31	critical issues facing the department and corresponding solutions
32	32	to those issues, investigating significant group disturbances and
33	33	critical incidents, and assessing the efficacy of existing
34	34	programs.
35	35	Sec. 512.003. INDEPENDENCE. (a) The ombudsman acts
36	36	independently of the department and the board in the performance of
37	37	the ombudsman's powers and duties under this chapter.
38	38	(b) Funding for the office is appropriated separately from
39	39	funding for the department.
40	40	SUBCHAPTER B. APPOINTMENT AND MANAGEMENT OF OFFICE
41	41	Sec. 512.051. APPOINTMENT OF OMBUDSMAN. (a) The governor
42	42	shall appoint, with the advice and consent of the senate, a person
43	43	to serve as ombudsman from a list of persons recommended by the
44	44	chair of each standing committee of the legislature having primary
45	45	jurisdiction over the department.
46	46	(b) The ombudsman serves a four-year term and may be removed
47	47	by the governor only for good cause.
48	48	(c) A person may not serve as ombudsman for more than two
49	49	terms.
50	50	Sec. 512.052. ASSISTANTS. The ombudsman may appoint
51	51	assistants to perform, under the direction of the ombudsman, the
52	52	same duties and to exercise the same powers as the ombudsman.
53	53	Sec. 512.053. CONFLICT OF INTEREST. (a) In this section,
54	54	"Texas trade association" means a cooperative and voluntarily
55	55	joined association of business or professional competitors in this
56	56	state designed to assist its members and its industry or profession
57	57	in dealing with mutual business or professional problems and in
58	58	promoting their common interest.
59	59	(b) A person may not serve as ombudsman or as an assistant
60	60	ombudsman if the person or the person's spouse:
61	61	(1) is employed by or participates in the management
62	62	of a business entity or other organization receiving funds from the
63	63	department or the office or was employed by or participated in the
64	64	management of such an entity or organization in the five years
65	65	preceding the date of the person's appointment;
66	66	(2) owns or controls, directly or indirectly, any
67	67	interest in a business entity or other organization receiving funds
68	68	from the department or the office;
69	69	(3) uses or receives any amount of tangible goods,
70	70	services, or funds from the department or the office;
71	71	(4) is an officer, employee, manager, or paid
72	72	consultant of the department or was an officer, employee, manager,
73	73	or paid consultant of the department in the five years preceding the
74	74	date of the person's appointment;
75	75	(5) is required to register as a lobbyist under
76	76	Chapter 305 because of the person's activities for compensation on
77	77	behalf of a profession related to the operation of the department or
78	78	the office; or
79	79	(6) is an officer, employee, manager, or paid
80	80	consultant of a Texas trade association in the field of criminal or
81	81	juvenile justice.
82	82	Sec. 512.054. REPORT. (a) The ombudsman shall prepare and
83	83	submit to the governor, the lieutenant governor, the state auditor,
84	84	and each member of the legislature:
85	85	(1) periodic reports that evaluate systemic issues
86	86	affecting the department and any current issues at individual
87	87	facilities; and
88	88	(2) an annual report that is both aggregated and
89	89	disaggregated by individual facility and describes:
90	90	(A) the work of the ombudsman and office;
91	91	(B) the results of any review or investigation
92	92	undertaken by the ombudsman, including any review or investigation
93	93	of services contracted by the department; and
94	94	(C) any recommendations that the ombudsman has
95	95	regarding:
96	96	(i) the duties of the ombudsman; or
97	97	(ii) the operations of the department.
98	98	(b) The ombudsman shall immediately report to the executive
99	99	director, or the executive director's designee, and to the
100	100	governor, the lieutenant governor, the speaker of the house of
101	101	representatives, the state auditor, and the office of the inspector
102	102	general of the department any particularly serious or flagrant:
103	103	(1) confirmed case of abuse or injury of an offender;
104	104	(2) problem concerning the administration of a
105	105	department program or operation;
106	106	(3) problem concerning the delivery of services in a
107	107	facility;
108	108	(4) interference by the department with an
109	109	investigation conducted by the office; or
110	110	(5) confirmed outbreak of a communicable disease as
111	111	defined by Section 81.003, Health and Safety Code.
112	112	(c) In response to any recommendation made by the ombudsman
113	113	in a report submitted under this section, the department shall:
114	114	(1) develop a corrective action plan to specifically
115	115	address the recommendation; or
116	116	(2) submit to the ombudsman a written objection to the
117	117	recommendation that includes the reasons for the objection.
118	118	(d) The ombudsman shall publish on the office's Internet
119	119	website each:
120	120	(1) report submitted under this section;
121	121	(2) corrective action plan developed under Subsection
122	122	(c)(1); and
123	123	(3) objection submitted under Subsection (c)(2).
124	124	Sec. 512.055. COMMUNICATION AND CONFIDENTIALITY. (a) The
125	125	department shall establish procedures allowing any offender or
126	126	facility administrator or employee to communicate with the
127	127	ombudsman or an assistant ombudsman regarding a power or duty of the
128	128	ombudsman or office. The communication:
129	129	(1) may be in person, by mail, or by any other means;
130	130	and
131	131	(2) is confidential and privileged.
132	132	(b) The records of the ombudsman are confidential, except
133	133	that the ombudsman shall:
134	134	(1) share with the office of the inspector general of
135	135	the department a communication with an offender that may involve
136	136	abuse or neglect; and
137	137	(2) disclose the ombudsman's nonprivileged records if
138	138	required by a court order on a showing of good cause.
139	139	(c) The ombudsman may make public any report relating to an
140	140	investigation after the investigation is complete, except that the
141	141	names of all offenders, family members, and employees remain
142	142	confidential and must be redacted before the report is made public.
143	143	(d) The name, address, and other personally identifiable
144	144	information of a person who files a complaint with the office,
145	145	information generated by the office in the course of an
146	146	investigation, and confidential records obtained by the office are
147	147	confidential and not subject to disclosure under Chapter 552,
148	148	except that the information and records, other than confidential
149	149	information and records concerning a pending law enforcement
150	150	investigation or criminal action, may be disclosed to an
151	151	appropriate person if the office determines that disclosure is:
152	152	(1) in the public interest;
153	153	(2) necessary to enable the office or ombudsman to
154	154	perform a duty under this chapter; or
155	155	(3) necessary to identify, prevent, or treat physical
156	156	or sexual assault or neglect of an offender.
157	157	Sec. 512.056. PROMOTION OF AWARENESS. The ombudsman shall
158	158	promote awareness among the department, the public, and offenders
159	159	regarding:
160	160	(1) how the office may be contacted;
161	161	(2) the purpose of the office; and
162	162	(3) the services the office provides.
163	163	Sec. 512.057. RULEMAKING AUTHORITY. The office by rule
164	164	shall establish policies and procedures for the operations of the
165	165	office.
166	166	SUBCHAPTER C. POWERS AND DUTIES
167	167	Sec. 512.101. POWERS AND DUTIES. (a) The ombudsman shall:
168	168	(1) review the procedures established by the
169	169	department and evaluate the delivery of services to offenders to
170	170	identify alternate procedures or services that would optimize the
171	171	use of state resources while ensuring that the rights of offenders
172	172	are fully observed;
173	173	(2) routinely review grievances and grievance logs to
174	174	address any pattern of actions of the department affecting the
175	175	treatment of offenders;
176	176	(3) conduct investigations of complaints submitted by
177	177	offenders, family members, and employees and review criminal
178	178	investigations conducted by the office of the inspector general of
179	179	the department if the ombudsman determines that a pattern of
180	180	complaints exists suggesting that an issue affects more than one
181	181	offender;
182	182	(4) review or inspect periodically the facilities and
183	183	procedures of any institution or residence in which an offender has
184	184	been placed by the department, whether public or private, to ensure
185	185	that the rights of offenders are fully observed;
186	186	(5) conduct immediate investigations of a significant
187	187	group disturbance or other critical incident to determine whether a
188	188	change in department policy or practice is necessary;
189	189	(6) provide assistance to an offender or family member
190	190	who the ombudsman determines is in need of assistance, including
191	191	advocating with an agency, provider, or other person in the best
192	192	interests of the offender;
193	193	(7) review court orders as necessary to fulfill the
194	194	ombudsman's duties;
195	195	(8) recommend changes in any procedure relating to the
196	196	treatment of offenders;
197	197	(9) make appropriate referrals under any of the powers
198	198	and duties listed in this subsection; and
199	199	(10) supervise an assistant ombudsman in the
200	200	performance of the assistant ombudsman's duties.
201	201	(b) The ombudsman may inform persons who are interested in
202	202	an offender's welfare of the rights of the offender.
203	203	(c) To determine if an offender's rights have been violated,
204	204	the ombudsman may, in any matter that does not involve alleged
205	205	criminal behavior, contact or consult with an administrator, an
206	206	employee, a family member, an expert, another offender, or any
207	207	other individual in the course of the ombudsman's investigation or
208	208	to secure information.
209	209	(d) Notwithstanding any other provision of this chapter,
210	210	the ombudsman may not investigate alleged criminal behavior, except
211	211	that the ombudsman may review, in accordance with Subsection
212	212	(a)(3), a criminal investigation conducted by the office of the
213	213	inspector general of the department to ensure that the
214	214	investigation was conducted in an accurate, unbiased, and thorough
215	215	manner.
216	216	(e) An inmate's complaint to the office and any
217	217	investigation conducted by the ombudsman under this chapter are
218	218	independent of the inmate grievance system developed under Section
219	219	501.008 and do not affect the procedures, rights, or duties
220	220	established under that system or constitute a grievance under that
221	221	system.
222	222	Sec. 512.102. RETALIATION PROHIBITED. The department may
223	223	not:
224	224	(1) discharge, discipline, or in any manner
225	225	discriminate or retaliate against an employee who makes a good
226	226	faith complaint to the office or cooperates with an investigation
227	227	under this chapter; or
228	228	(2) discipline or in any manner discriminate or
229	229	retaliate against an offender who complains to or communicates or
230	230	cooperates with the office in the course of the office carrying out
231	231	its duties.
232	232	Sec. 512.103. TRAINING. The ombudsman may attend training
233	233	sessions for correctional officers or participate in other
234	234	appropriate professional training.
235	235	SUBCHAPTER D. ACCESS TO INFORMATION, FACILITIES, AND PERSONNEL
236	236	Sec. 512.151. ACCESS TO INFORMATION OF CERTAIN GOVERNMENTAL
237	237	ENTITIES. The department shall allow the ombudsman access to the
238	238	department's records relating to an offender or investigation. In
239	239	allowing access to records under this section, the department shall
240	240	fully cooperate and collaborate with the office in a prompt manner
241	241	in order for the office to carry out its duties and improve facility
242	242	operations and conditions.
243	243	Sec. 512.152. ACCESS TO INFORMATION OF PRIVATE ENTITIES.
244	244	The ombudsman may subpoena the records of a private entity that
245	245	relate to a complaint the ombudsman is investigating.
246	246	Sec. 512.153. ACCESS TO FACILITIES, RECORDS, AND PERSONNEL.
247	247	(a) The office may inspect or review without notice any part of a
248	248	facility or any facility operation, policy, procedure, record, or
249	249	log relating to:
250	250	(1) a condition of confinement;
251	251	(2) offender discipline and the use of force against
252	252	an offender;
253	253	(3) an incident of assault or sexual assault;
254	254	(4) death of or serious bodily injury to an offender;
255	255	(5) the provision of health care, including mental
256	256	health care;
257	257	(6) the offender grievance process;
258	258	(7) a telephone, mail, or visitation policy;
259	259	(8) a rehabilitation, reentry, or reintegration
260	260	program;
261	261	(9) employee recruitment, training, supervision, or
262	262	discipline; and
263	263	(10) staffing levels and staffing deployment.
264	264	(b) The ombudsman shall coordinate with the office of the
265	265	inspector general of the department to develop policies and
266	266	procedures that ensure an inspection or review under Subsection (a)
267	267	does not interfere with a criminal investigation being conducted by
268	268	the office of the inspector general.
269	269	(c) In conducting an investigation, the office may:
270	270	(1) interview offenders and facility administrators
271	271	or employees;
272	272	(2) hold public hearings; and
273	273	(3) issue a subpoena to compel the attendance of a
274	274	relevant witness or the production of relevant records or
275	275	documents.
276	276	SUBCHAPTER E. ADVISORY BOARD
277	277	Sec. 512.201. CREATION AND COMPOSITION OF ADVISORY BOARD.
278	278	(a) An advisory board is created to advise the office in carrying
279	279	out the office's duties under this chapter.
280	280	(b) The advisory board is composed of the following nine
281	281	members appointed by the governor:
282	282	(1) one family member of an offender or a former
283	283	offender;
284	284	(2) one health care professional;
285	285	(3) one social worker;
286	286	(4) one person with expertise in administrative or
287	287	criminal investigations;
288	288	(5) one person with expertise in sexual assault victim
289	289	advocacy;
290	290	(6) one person with expertise in occupational safety
291	291	and health;
292	292	(7) one person with expertise in research and data
293	293	analysis;
294	294	(8) one former offender; and
295	295	(9) one former correctional officer.
296	296	(c) The chair of each standing committee of the legislature
297	297	having primary jurisdiction over the department and the primary
298	298	author and sponsor of the legislation enacting this chapter, but
299	299	only if the author or sponsor continues to be a member of the
300	300	legislature, may provide the governor with recommendations on any
301	301	appointment made under Subsection (b).
302	302	(d) Members of the advisory board serve staggered four-year
303	303	terms.
304	304	(e) A person may not serve as a member of the advisory board
305	305	for more than two terms.
306	306	(f) Chapter 2110 does not apply to the composition or
307	307	duration of the advisory board.
308	308	SECTION 2. (a) As soon as practicable after the effective
309	309	date of this Act, the governor shall appoint an initial ombudsman
310	310	under Chapter 512, Government Code, as added by this Act, to a term
311	311	expiring February 1, 2025.
312	312	(b) Not later than December 1, 2021, the governor shall
313	313	appoint the members of the advisory board under Section 512.201,
314	314	Government Code, as added by this Act.
315	315	SECTION 3. This Act takes effect September 1, 2021.