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.