Texas 2021 - 87th 1st C.S.

Texas House Bill HB124 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87S10232 MWC-F
2	2	By: Oliverson H.B. No. 124
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the Texas Free Enterprise and Antitrust Act of 1983.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 15.03, Business & Commerce Code, is
10	10	amended by adding Subdivision (2-a) to read as follows:
11	11	(2-a) The term "investigative file" means any
12	12	documentary materials or information collected, assembled, or
13	13	maintained by or on behalf of the attorney general with respect to
14	14	an investigation or litigation conducted under this chapter. The
15	15	term includes:
16	16	(A) interagency or intra-agency communications
17	17	or memoranda;
18	18	(B) notes;
19	19	(C) reports;
20	20	(D) products of discovery;
21	21	(E) records of internal or external meetings;
22	22	(F) civil investigative demands; and
23	23	(G) other documents and communications with the
24	24	attorney general that are relevant to the investigation or
25	25	litigation.
26	26	SECTION 2. Section 15.10, Business & Commerce Code, is
27	27	amended by amending Subsections (b), (c), (e), (g), (h), (i), and
28	28	(k) to read as follows:
29	29	(b) Authority to Issue Demand. Whenever the attorney
30	30	general has reason to believe that any person may be in possession,
31	31	custody, or control of any documentary material or may have any
32	32	information relevant to a civil antitrust investigation, the
33	33	attorney general may, prior to the institution of a civil
34	34	proceeding, issue in writing and serve upon such person a civil
35	35	investigative demand requiring the person to produce or make
36	36	available such documentary material for inspection and copying, to
37	37	answer in writing written interrogatories, to give oral testimony,
38	38	or to provide any combination of such material, answers, and
39	39	testimony; provided, however, that the attorney general may not
40	40	issue and serve a demand for documentary material upon a
41	41	proprietorship or partnership whose annual gross income does not
42	42	exceed $5 million.
43	43	(c) Contents of Demand.
44	44	(1) Each demand shall describe the nature of the
45	45	activities that are the subject of the investigation and shall set
46	46	forth each statute and section of that statute that may have been or
47	47	may be violated as a result of such activities. Each demand shall
48	48	advise the person upon whom the demand is to be served that
49	49	objections [the person has the right to object] to the demand may be
50	50	made in accordance with [as provided for in] this chapter
51	51	[section].
52	52	(2) Each demand for production of documentary material
53	53	shall:
54	54	(A) describe the class or classes of material to
55	55	be produced with reasonable specificity so that the material
56	56	demanded is fairly identified;
57	57	(B) prescribe a return date or dates which will
58	58	provide a reasonable period of time within which the material is to
59	59	be produced; and
60	60	(C) identify the individual or individuals
61	61	acting on behalf of the attorney general to whom the material is to
62	62	be produced or made available for inspection and copying.
63	63	(3) Each demand for answers to written interrogatories
64	64	shall:
65	65	(A) propound the interrogatories with
66	66	definiteness and certainty;
67	67	(B) prescribe a date or dates by which answers to
68	68	interrogatories shall be submitted; and
69	69	(C) identify the individual or individuals
70	70	acting on behalf of the attorney general to whom the answers should
71	71	be submitted.
72	72	(4) Each demand for the giving of oral testimony
73	73	shall:
74	74	(A) prescribe a reasonable date, time, and place
75	75	at which the testimony shall begin; and
76	76	(B) identify the individual or individuals
77	77	acting on behalf of the attorney general who will conduct the
78	78	examination.
79	79	(5) No demand for any product of discovery may be
80	80	returned until 20 days after the attorney general serves a copy of
81	81	the demand upon the person from whom the discovery was obtained.
82	82	(e) Service; Proof of Service.
83	83	(1) Service of any demand or of any petition filed
84	84	under Subsection (f) or (h) of this section may be made upon any
85	85	natural person by delivering a duly executed copy of the demand or
86	86	petition to the person to be served or by mailing such copy by
87	87	registered or certified mail, return receipt requested, to such
88	88	person at his or her residence or principal office or place of
89	89	business.
90	90	(2) Service of any demand or of any petition filed
91	91	under Subsection (f) or (h) of this section may be made upon any
92	92	person other than a natural person by delivering a duly executed
93	93	copy of the demand or petition to a person to whom delivery would be
94	94	appropriate under state law if the demand or petition were process
95	95	in a civil suit.
96	96	(3) A verified return by the individual serving any
97	97	demand or any petition filed under Subsection (f) or (h) setting
98	98	forth the manner of service shall be proof of such service. In the
99	99	case of service by registered or certified mail, the return shall be
100	100	accompanied by the return post office receipt of delivery of the
101	101	demand or petition.
102	102	(4) Service of any demand may be made upon any person
103	103	by e-mail or other electronic means if the person being served has
104	104	consented to the electronic service in writing. Electronic service
105	105	is complete upon sending, but electronic service is not effective
106	106	if the attorney general learns that the demand did not actually
107	107	reach the person to be served. Written confirmation of receipt
108	108	through electronic service by the person being served constitutes
109	109	proof of the service.
110	110	(g) Compliance With Demand.
111	111	(1) A person on whom a demand is served shall comply
112	112	with the terms of the demand unless otherwise provided by court
113	113	order.
114	114	(2) The time for compliance with the demand in whole or
115	115	in part shall not run during the pendency of any petition filed
116	116	under Subsection (f) of this section; provided, however, that the
117	117	petitioner shall comply with any portions of the demand not sought
118	118	to be modified or set aside.
119	119	(3) Documentary Material.
120	120	(A) Any person upon whom any demand for the
121	121	production of documentary material has been duly served under this
122	122	section shall produce or make such material available to the
123	123	attorney general for inspection and copying during normal business
124	124	hours on the return date specified in the demand at the person's
125	125	principal office or place of business or as otherwise may be agreed
126	126	upon by the person and the attorney general. The attorney general
127	127	shall bear the expense of any copying. The person may substitute
128	128	copies for originals of all or part of the requested documents so
129	129	long as the originals are made available for inspection. The person
130	130	shall indicate in writing which if any of the documents produced
131	131	contain trade secrets or confidential information.
132	132	(B) The production of documentary material in
133	133	response to any demand shall be made under a sworn certificate in
134	134	such form as the demand designates by a natural person having
135	135	knowledge of the facts and circumstances relating to such
136	136	production to the effect that all of the requested material in the
137	137	possession, custody, or control of the person to whom the demand is
138	138	directed has been produced.
139	139	(4) Interrogatories.
140	140	(A) Each interrogatory in any demand duly served
141	141	under this section shall be answered separately and fully in
142	142	writing, unless it is objected to, in which case the basis for the
143	143	objection shall be set forth in lieu of an answer. The person shall
144	144	indicate in writing which if any of the answers contain trade
145	145	secrets or confidential information.
146	146	(B) Answers to interrogatories shall be
147	147	submitted under a sworn certificate in such form as the related
148	148	demand designates by a natural person having knowledge of the facts
149	149	and circumstances relating to the preparation of the answers to the
150	150	effect that all of the requested information in the possession,
151	151	custody, control, or knowledge of the person to whom the demand is
152	152	directed has been set forth fully and accurately.
153	153	(5) Oral Examination.
154	154	(A) The examination of any person pursuant to a
155	155	demand for oral testimony duly served under this section shall be
156	156	taken before any person authorized to administer oaths and
157	157	affirmations by the laws of Texas or the United States. The person
158	158	before whom the testimony is to be taken shall put the witness on
159	159	oath or affirmation and shall personally or by someone acting under
160	160	his or her direction and in his or her presence record the witness's
161	161	testimony. At the expense of the attorney general, the testimony
162	162	shall be taken stenographically and may be transcribed.
163	163	(B) The oral testimony of any person taken
164	164	pursuant to a demand served under this section shall be taken in the
165	165	county where the person resides, is found, transacts business, or
166	166	in such other place as may be agreed upon by the person and the
167	167	attorney general.
168	168	(C) Any person compelled to appear under a demand
169	169	for oral testimony under this section may be accompanied,
170	170	represented, and advised by counsel. Counsel may advise such
171	171	person in confidence, either upon the request of such person or upon
172	172	counsel's own initiative, with respect to any question arising in
173	173	connection with the examination.
174	174	(D) The individual conducting the examination on
175	175	behalf of the attorney general shall exclude from the place of
176	176	examination all other persons except the person being examined, the
177	177	person's counsel, the counsel of the person to whom the demand has
178	178	been issued, the person before whom the testimony is to be taken,
179	179	any stenographer taking the testimony, and any persons assisting
180	180	the individual conducting the examination.
181	181	(E) During the examination, the person being
182	182	examined or his or her counsel may object on the record to any
183	183	question, in whole or in part, and shall briefly state for the
184	184	record the reason for the objection. An objection may properly be
185	185	made, received, and entered upon the record when it is claimed that
186	186	such person is entitled to refuse to answer the question on grounds
187	187	of any constitutional or other legal right or privilege, including
188	188	the privilege against self-incrimination. Neither such person nor
189	189	his or her counsel shall otherwise object to or refuse to answer any
190	190	question or interrupt the oral examination. If the person refuses
191	191	to answer any question, the attorney general may petition the
192	192	district court in the county where the examination is being
193	193	conducted for an order compelling the person to answer the
194	194	question.
195	195	(F) If and when the testimony has been fully
196	196	transcribed, the person before whom the testimony was taken shall
197	197	promptly transmit the transcript of the testimony to the witness
198	198	and a copy of the transcript to the attorney general. The witness
199	199	shall have a reasonable opportunity to examine the transcript and
200	200	make any changes in form or substance accompanied by a statement of
201	201	the reasons for such changes. The witness shall then sign and
202	202	return the transcript, unless he or she is ill, cannot be found,
203	203	refuses to sign, or in writing waives the signing. If the witness
204	204	does not sign the transcript within 15 days of receiving it, the
205	205	person before whom the testimony has been given shall sign it and
206	206	state on the record the reason, if known, for the witness's failure
207	207	to sign. The officer shall then certify on the transcript that the
208	208	witness was duly sworn and that the transcript is a true record of
209	209	the testimony given by the witness and promptly transmit a copy of
210	210	the certified transcript to the attorney general.
211	211	(G) Upon request, the attorney general shall
212	212	furnish a copy of the certified transcript to the witness.
213	213	(H) The witness shall be entitled to the same
214	214	fees and mileage that are paid to witnesses in the district courts
215	215	of Texas.
216	216	(h) Failure To Comply With Demand.
217	217	(1) Petition for Enforcement. Whenever any person
218	218	fails to comply with any demand duly served on such person under
219	219	this section, the attorney general may file in the district court in
220	220	Travis County or in the county in which the person resides, is
221	221	found, or transacts business and serve on the person a petition for
222	222	an order of the court for enforcement of this section. [If the
223	223	person transacts business in more than one county, the petition
224	224	shall be filed in the county of the person's principal office or
225	225	place of business in the state or in any other county as may be
226	226	agreed upon by the person and the attorney general.]
227	227	(2) Deliberate Noncompliance. Any person, who, with
228	228	intent to avoid, evade, or prevent compliance in whole or part with
229	229	a demand issued under this section, removes from any place,
230	230	conceals, withholds, destroys, mutilates, alters, or by any other
231	231	means falsifies any documentary material or otherwise provides
232	232	inaccurate information is guilty of a misdemeanor and on conviction
233	233	is punishable by a fine of not more than $5,000 or by confinement in
234	234	county jail for not more than one year or by both.
235	235	(i) Disclosure and Use of Material and Information.
236	236	(1) No [Except as provided in this section or ordered
237	237	by a court for good cause shown, no] documentary material, answers
238	238	to interrogatories, or transcripts of oral testimony, or copies or
239	239	contents thereof, shall be available for examination or used by any
240	240	person other than by an authorized official, employee, or agent of
241	241	the attorney general, except:
242	242	(A) by court order for good cause shown;
243	243	(B) with [without] the consent of:
244	244	(i) the person who produced the material,
245	245	answers, or testimony; and
246	246	(ii) [,] in the case of any product of
247	247	discovery, [of] the person from whom the discovery was obtained;
248	248	(C) to an agency of this state, the United
249	249	States, or another state or territory for official law enforcement
250	250	purposes; or
251	251	(D) as provided elsewhere in this section.
252	252	(2) The attorney general may make available for
253	253	inspection or prepare copies of documentary material, answers to
254	254	interrogatories, or transcripts of oral testimony in his or her
255	255	possession as he or she determines may be required by the state in
256	256	the course of any investigation or a judicial proceeding in which
257	257	the state is a party.
258	258	(3) The attorney general may make available for
259	259	inspection or prepare copies of documentary material, answers to
260	260	interrogatories, or transcripts of oral testimony in his or her
261	261	possession as he or she determines may be required for official use
262	262	by any officer of the State of Texas, [or of] the United States, or
263	263	another state or territory charged with the enforcement of the laws
264	264	of the State of Texas, [or] the United States, or that state or
265	265	territory, as applicable; provided that any material disclosed
266	266	under this subsection may not be used for criminal law enforcement
267	267	purposes.
268	268	(3-a) The attorney general may make available for
269	269	inspection or prepare copies of documentary material, answers to
270	270	interrogatories, or transcripts of oral testimony in the attorney
271	271	general's possession as may be required for official use by any
272	272	authorized official, employee, or agent of the attorney general.
273	273	(4) Upon request, the attorney general shall make
274	274	available copies of documentary material, answers to
275	275	interrogatories, and transcripts of oral testimony for inspection
276	276	by the person who produced such material or information and, in the
277	277	case of a product of discovery, the person from whom the discovery
278	278	was obtained or by any duly authorized representative of the
279	279	person, including his or her counsel.
280	280	(5) Not later than 15 days prior to making public
281	281	[disclosing] any documentary material or answers to written
282	282	interrogatories designated as containing trade secrets or
283	283	confidential information under this subsection, the attorney
284	284	general shall notify the person who produced the material of the
285	285	attorney general's intent to make the information public [such
286	286	disclosure]. The person who produced the documentary material or
287	287	answers to written interrogatories may petition a district court in
288	288	any county of this state in which the person resides, does business,
289	289	or maintains its principal office for a protective order limiting
290	290	the terms under which the attorney general may use the [disclose
291	291	such] trade secrets or confidential information in public,
292	292	including in public court filings.
293	293	(6) Upon written request, the attorney general shall
294	294	return documentary material produced under this section in
295	295	connection with an antitrust investigation to the person who
296	296	produced it whenever:
297	297	(A) any case or proceeding before any court
298	298	arising out of the investigation has been completed; or
299	299	(B) the attorney general has decided after
300	300	completing an examination and analysis of such material not to
301	301	institute any case or proceeding before a court in connection with
302	302	the investigation.
303	303	(k) Nonexclusive Procedures. Nothing in this section shall
304	304	preclude the attorney general from using procedures not specified
305	305	in the section in conducting an antitrust investigation; provided,
306	306	however, that in conducting such an investigation, the attorney
307	307	general shall use the procedures set forth in this section in lieu
308	308	of those set forth in Article 1302-5.01 through Article 1302-5.06,
309	309	Texas Miscellaneous Corporation Laws Act. Information, documentary
310	310	materials, and communication with the attorney general provided
311	311	under a procedure not specified in this section is confidential but
312	312	may be used in a judicial proceeding at the attorney general's
313	313	discretion.
314	314	SECTION 3. Section 15.12, Business & Commerce Code, is
315	315	amended to read as follows:
316	316	Sec. 15.12. ADDITIONAL PROCEDURES. (a) In addition to the
317	317	procedures set forth in this subchapter, the attorney general and
318	318	any other party to a suit brought by the attorney general to enforce
319	319	any of the prohibitions in Section 15.05 of this Act may request
320	320	discovery and production of documents and other things, serve
321	321	written interrogatories, and subpoena and depose witnesses in
322	322	accordance with the applicable provisions of the Texas Rules of
323	323	Civil Procedure and other state law relating to discovery.
324	324	(b) Documents and other information discovered or produced
325	325	under Subsection (a) are confidential.
326	326	SECTION 4. Subchapter B, Chapter 15, Business & Commerce
327	327	Code, is amended by adding Section 15.14 to read as follows:
328	328	Sec. 15.14. CONFIDENTIALITY OF INVESTIGATIVE FILES AND
329	329	OTHER INFORMATION. The attorney general's investigative file,
330	330	wholly or partly, and any other information or documentary material
331	331	provided to the attorney general under this chapter are
332	332	confidential and not subject to disclosure under Chapter 552,
333	333	Government Code.
334	334	SECTION 5. The changes in law made by this Act apply only to
335	335	a cause of action that accrues on or after the effective date of
336	336	this Act. A cause of action that accrues before the effective date
337	337	of this Act is governed by the law applicable to the cause of action
338	338	immediately before that date, and that law is continued in effect
339	339	for that purpose.
340	340	SECTION 6. This Act takes effect on the 91st day after the
341	341	last day of the legislative session.