HBA-DMD, PDH C.S.H.B. 826 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 826 By: Greenberg State Affairs 4/15/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, the Texas Alternative Dispute Resolution (ADR) Act governs court-ordered use of ADR and the Government Dispute Resolution (GDR) Act applies to state agency use of ADR. The ability of local governments to use ADR when it is not ordered remains unclear. C.S.H.B. 826 replaces all references to "state agencies" in the GDR Act with "governmental bodies," making the GDR Act applicable to local governments as well as state agencies. The bill extends the confidentiality provisions of the GDR Act to local governments, protecting communications relevant to the dispute made by the parties during the dispute resolution procedure, and subjecting all final written agreements involving local governments to the Open Records Act. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 2008, Government Code, to redesignate Chapter 2008 to Chapter 2009, Government Code, and amend, as follows: New Title: CHAPTER 2009. ALTERNATIVE DISPUTE RESOLUTION FOR USE BY GOVERNMENTAL BODIES. Deletes "state agencies" from existing title. SUBCHAPTER A. GENERAL PROVISIONS Sec. 2009.001. SHORT TITLE. Makes a conforming change. Sec. 2009.002. POLICY. Makes conforming changes. Sec. 2009.003. DEFINITIONS. Includes a definition for "governmental body" in the list of definitions. Redesignates Subsections (2) - (3) to Subsections (3) - (4). Makes a conforming change. Sec. 2009.004. New title: CONTRACTS; BUDGETING FOR COSTS. Deletes "agency" from existing title. Makes conforming and nonsubstantive changes. Sec. 2009.005. SOVEREIGN IMMUNITY. Makes a conforming change. SUBCHAPTER B. ALTERNATIVE DISPUTE RESOLUTION Sec. 2009.051. DEVELOPMENT AND USE OF PROCEDURES. Provides that alternative dispute resolution procedures developed and used by a state agency must be consistent with Chapter 2001 (Administrative Procedure), Government Code. Redesignates existing Subsection (b) to Subsection (c). Makes conforming and nonsubstantive changes. Sec. 2009.052. SUPPLEMENTAL NATURE OF PROCEDURES. Includes a right granted under a local charter, ordinance, or other similar provision among the rights that may not be denied by this chapter. Makes conforming and nonsubstantive changes. Sec. 2009.053. IMPARTIAL THIRD PARTIES. (a) Makes conforming changes. (b) Creates subsection from existing text. Moves impartial third party qualifications required under Section 154.052 (Qualifications of Impartial Third Party), Civil Practice and Remedies Code to Subsection (d). Makes conforming changes. (c) Authorizes a state agency to obtain the services of a qualified third party through an agreement with the State Office of Administrative Hearings. (d) Requires an impartial third party to possess the qualifications required under Section 154.052 (Qualifications of Impartial Third Party), Civil Practice and Remedies Code. Sec.2009.054. CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONS. Makes information in a final written agreement confidential in accordance with Chapter 552 (Public Information), Government Code. Makes conforming changes. Sec. 2009.055. New Title: SHARING OF INFORMATION; CONSISTENCY OF PROCEDURES. Deletes "interagency" from the existing title. Makes conforming changes. SECTION 2. Amends Section 154.073, Civil Practice and Remedies Code, as follows: Sec. 154.073. New Title: CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONS. (a) Includes Subsection (e) as an exception to the provision that a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, is confidential, is not subject to disclosure, and is prohibited from being used as evidence against the participant in any judicial or administrative proceeding. (d) Provides that a final written agreement to which a governmental body, as defined by Section 552.003 (Definitions), Government Code, is a signatory that is reached as a result of a dispute resolution procedure conducted under this chapter is subject to or excepted from required disclosure in accordance with Chapter 552, Government Code. (e) Includes conflicts with other legal requirements for disclosure of records, which is authorized to be presented to the court having jurisdiction of the proceedings to determine whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the court or whether the communications or materials are subject to disclosure. Redesignated from Subsection (d). SECTION 3. Amends Section 2003.001(2), Government Code, to provide that the definition of "alternative dispute resolution procedure" has the meaning assigned by Section 2009.003, rather than 2008.003, Government Code. SECTION 4. Amends Section 2003.042(a), Government Code, to make conforming changes with respect to section redesignations in this bill and to redesignate Subdivision (6), as added by Acts of the 75th Legislature, 1997, Chapter 1167, Section 2, as Subdivision (7) and to renumber all subsequent subdivisions accordingly. SECTION 5.Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 6.Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE This substitute differs from the original bill in SECTION 1 (proposed Section 2009.053, Government Code), by correcting a statutory reference. This substitute redesignates SECTIONS 2 and 3 of the original bill to SECTIONS 5 and 6 of the substitute, respectively. This substitute differs from the original bill by adding new SECTION 2 (Section 154.073, Civil Practice and Remedies Code), by changing the title from "Confidentiality of Communications in Dispute Resolution Procedures" to "Confidentiality of Certain Records and Communications." This substitute includes an exception to the provision that a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, is confidential, is not subject to disclosure, and is prohibited from being used as evidence against the participant in any judicial or administrative proceeding. This substitute also provides in new text designated as Subsection (d) that a final written agreement to which a governmental body is a signatory that is reached as a result of a dispute resolution procedure conducted under this chapter is subject to or excepted from required disclosure in accordance with Chapter 552 (Public Information), Government Code. In addition, this substitute includes in new Subsection (e), redesignated from existing Subsection (d), a conflict with other legal requirements regarding the disclosure of records, as a proper subject for an in camera determination by the appropriate court. This substitute differs from the original bill by adding new SECTION 3 (Section 2003.001(2), Government Code), to make conforming changes with respect to section redesignations in this bill. This substitute differs from the original bill by adding new SECTION 4 (Section 2003.042(a), Government Code), to make conforming changes with respect to section redesignations in this bill and to redesignate Subdivision (6), as added by Acts of the 75th Legislature, 1997, Chapter 1167, Section 2, as Subdivision (7) and to renumber all subsequent subdivisions accordingly.