SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE — REGULAR SESSION

AUSTIN, TEXAS

PROCEEDINGS

SIXTY-NINTH DAY

(Continued)

(Friday, May 29, 2009)

AFTER RECESS

The Senate met at 11:20 a.m. and was called to order by Senator Eltife.

The Reverend Don Long, former Senate Doorkeeper, offered the invocation as follows:

Heavenly Father, let the first thoughts we have this day be on You. Let our first impulse be to worship You by being obedient to Your blessed will as we seek the relief of others who are in need. You have entrusted to these who are in the Senate Chamber today the responsibility of preserving the freedoms and liberties which our Texas forefathers gave much time, energy, and some even their lives to establish. Endue these who labor here in this Texas legislative body the wisdom and courage to be good stewards, good statesmen, and good stateswomen in order that the precious treasures You have given to our state may be available for our children and our children's children. Let this be the prayer of our hearts today: When I have come to the end of the road, I should like to look back and see that I have done my very best with the trust that's placed in me. I should like to know I never have by action, word, or deed betrayed a confidence given or forsaken a friend in need. I should like the consolation, when I've traveled the very last mile, to know I've meant something to someone and caused those in sorrow to smile. I know that I shall be happy if in the heart of each one, I can leave a lingering memory of something good I've done. Amen.

PHYSICIAN OF THE DAY

Senator Duncan was recognized and presented Dr. Tom Stephen Carter of Childress as the Physician of the Day.

The Senate welcomed Dr. Carter and thanked him for his participation in the Physician of the Day program sponsored by the Texas Academy of Family Physicians.

SENATE RESOLUTION 1058

Senator Whitmire offered the following resolution:

WHEREAS, The Texas Senate takes sincere pride in recognizing the outstanding service of the resolute individuals who came together in a moment of need to render lifesaving assistance to Representative Edmund Kuempel on the night of May 12, 2009; and

WHEREAS, The actions of Jennifer Irby, Trooper Edwin Carpenter, Trooper Antonio Rico, Trooper Diane Riojas, and Representative John Zerwas saved the life of Representative Kuempel when he was stricken by cardiac arrest while working at the Capitol; and

WHEREAS, Representative Kuempel was discovered collapsed and unconscious in a Capitol Extension elevator by Jennifer Irby, a messenger employed in the sergeant-at-arms office in the House; Jennifer's quick thinking was the beginning of a lifesaving process that unfolded in the Capitol shortly after 10:00 p.m.; and

WHEREAS, Responding swiftly to the severity of the situation and thinking that she would be able to locate a trooper on the first floor of the Capitol for assistance, Jennifer remained with Representative Kuempel and pushed the first floor elevator button; upon arriving on the first floor, she alerted Trooper Carpenter, who immediately began to attend to Representative Kuempel, and, after ascertaining that emergency medical services had been called, used his radio to ask for more assistance from other Texas Department of Public Safety personnel; and

WHEREAS, Trooper Rico, one of the officers who responded to the call, brought an automated external defibrillator to the scene, and he and Trooper Carpenter made the proper preparations for its use; Trooper Rico began to operate the defibrillator while Trooper Diane Riojas administered rescue breathing to Representative Kuempel; Representative John Zerwas, an anesthesiologist, had been alerted to the emergency and had quickly arrived at the scene; he began chest compressions on Representative Kuempel while giving guidance to the others who were working to save Representative Kuempel's life; and

WHEREAS, Each of these individuals worked hastily, yet with great care; maintaining their composure in the face of a struggle to save another's life, they persevered in their efforts toward reviving Representative Kuempel, even after most would have considered the situation to be hopeless; because of their courage, sound judgment, quick thinking, and tenacity, Representative Kuempel received the emergency aid that was necessary to save his life; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 81st Legislature, hereby pay tribute to Jennifer Irby, Trooper Edwin Carpenter, Trooper Antonio Rico, Trooper Diane Riojas, and Representative John Zerwas for their successful lifesaving efforts and commend them for the determined spirit and perseverance with which they handled this potentially tragic event; and, be it further

RESOLVED, That a copy of this Resolution be prepared for them as an expression of highest esteem from the Texas Senate.

SR 1058 was read and was adopted without objection.

4210 81st Legislature — Regular Session 69th Day (Cont.)

GUESTS PRESENTED

Senator Whitmire, joined by Senator Gallegos, was recognized and introduced to the Senate Jennifer Irby, House Messenger; Trooper Diane Riojas; Trooper Antonio Rico; Trooper Edwin Carpenter; Representative John Zerwas; and Colonel Lamar Beckworth, Director, Department of Public Safety.

The Senate welcomed its guests.

SENATE RESOLUTION 1013

Senator Ogden offered the following resolution:

WHEREAS, The citizens of Texas lost a passionate leader and dynamic trailblazer with the death of Richard F. "Ric" Williamson on December 30, 2007, at the age of 55; and

WHEREAS, Mr. Williamson was a brilliant and visionary leader whose extraordinary efforts on behalf of this state were as grand as Texas itself; a man who cared deeply about the well-being of his community and his state, he epitomized the "Spirit of Texas" with his bold ideas for the betterment of this state and his wholehearted efforts to put them into practice; and

WHEREAS, Born on January 25, 1952, in Abilene, Mr. Williamson attended The University of Texas in Austin, where he married a fellow Longhorn, Mary Ann Welsch, in 1973 and earned his bachelor's degree in 1974; the couple settled in Weatherford and raised three beautiful daughters, Melissa, Katherine, and Sara, and they had two grandchildren; and

WHEREAS, Mr. Williamson was an avid hunter and a devoted fan of women's fast-pitch softball; he was a cofounder of RAW Energy, and he and his wife established MKS Consulting Corporation; and

WHEREAS, Mr. Williamson began his service to the State of Texas in 1985 when he was elected to the Texas House of Representatives, where he served for 14 years; and

WHEREAS, While serving as Vice Chairman of the Appropriations Committee, Mr. Williamson, a proponent of performance budgeting, became fondly known as one of the "Pit Bulls," conservative lawmakers who seriously questioned state spending practices; and

WHEREAS, Professional and legislative accomplishments earned Mr. Williamson many awards through the years; he was particularly proud of his recognition by Texas Monthly magazine in both 1989 and 1991 as one of Texas' "Ten Best Legislators"; and

WHEREAS, In 2001, Mr. Williamson was appointed to serve on the Texas Transportation Commission, and in January of 2004, he became chairman of the commission, a position he held until his death; and

WHEREAS, Mr. Williamson was a longtime close friend and trusted advisor to Governor Rick Perry, and he contributed immeasurably to the growth and progress of the state through his dedication to public service, his ambitious and farsighted planning, and his steadfast leadership; now, therefore, be it

Friday, May 29, 2009 SENATE JOURNAL 4211

RESOLVED, That the Senate of the State of Texas, 81st Legislature, hereby honor the memory of Ric Williamson, a great Texan and a cherished friend to many, whose legacy will continue to shape the state's infrastructure and inspire the lives of others for years to come; and, be it further

RESOLVED, That a copy of this Resolution be prepared for his family, and that when the Senate adjourns this day, it do so in memory of Richard F. "Ric" Williamson.

SR 1013 was read and was adopted by a rising vote of the Senate.

GUESTS PRESENTED

Senator Ogden, joined by Senators Deuell, Nelson, Shapleigh, Whitmire, Nichols, Lucio, West, and Harris, was recognized and introduced to the Senate the widow of Richard F. "Ric" Williamson, Mary Ann Williamson; their daughter, Melissa Meyer; and his brother-in-law, Linden Welsch.

The Senate welcomed its guests.

GUESTS PRESENTED

Senator Ellis, joined by Senator West, was recognized and introduced to the Senate Dallas County District Attorney Craig Watkins, accompanied by Terri Moore, First Assistant District Attorney; Michael Moore, Assistant District Attorney, and Chief, Conviction Integrity Unit; Michelle Moore, Assistant Public Defender, Dallas County Public Defender's Office; and Jim Hammond, Investigator, Criminal District Attorney's Office.

The Senate welcomed its guests.

SENATE BILL 282 WITH HOUSE AMENDMENT

Senator Nelson called SBi282 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi282 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to grant and outreach programs to provide nutrition education to children.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiChapter 12, Agriculture Code, is amended by adding Section 12.0027 to read as follows:

Sec.i12.0027.iiNUTRITION OUTREACH PROGRAM. (a)iiThe department may develop an outreach program to promote better health and nutrition programs and prevent obesity among children in this state.

(b)iiThe department may solicit and accept gifts, grants, and donations from any public or private source for the purposes of this section.

(c)iiThe department may adopt rules as necessary to administer an outreach program established under this section.

4212 81st Legislature — Regular Session 69th Day (Cont.)

SECTIONi2.iiSubchapter A, Chapter 38, Education Code, is amended by adding Section 38.026 to read as follows:

Sec.i38.026.iiGRANT PROGRAM FOR BEST PRACTICES IN NUTRITION EDUCATION. (a)iiThe Department of Agriculture shall develop a program under which the department awards grants to public school campuses for best practices in nutrition education.

(b)iiThe Department of Agriculture may solicit and accept gifts, grants, and donations from any public or private source for the purposes of this section.

(c)iiThe Department of Agriculture may adopt rules as necessary to administer a grant program established under this section.

SECTIONi3.iiChapter 33, Human Resources Code, is amended by adding Section 33.028 to read as follows:

Sec.i33.028.iiGRANT PROGRAMS FOR NUTRITION EDUCATION. (a)iiThe Department of Agriculture shall develop a program under which the department awards grants to:

(1)iiparticipants in the Child and Adult Care Food Program, Head Start program, or other early childhood education programs to operate nutrition education programs for children who are at least three years of age but younger than five years of age; and

(2)iicommunity and faith-based initiatives that provide recreational, social, volunteer, leadership, mentoring, or developmental programs to incorporate nutrition education into programs provided for children younger than 19 years of age.

(b)iiThe Department of Agriculture may solicit and accept gifts, grants, and donations from any public or private source for the purposes of this section.

(c)iiThe Department of Agriculture may adopt rules as necessary to administer the grant programs established under this section.

SECTIONi4.ii(a) This Act does not make an appropriation. A provision in this Act that creates a new governmental program, creates a new entitlement, or imposes a new duty on a governmental entity is not mandatory during a fiscal period for which the legislature has not made a specific appropriation to implement the provision.

(b)iiIt is the intent of the legislature that not more than $4 million may be appropriated for the implementation of this Act for the state fiscal biennium beginning September 1, 2009.

SECTIONi5.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Nelson moved to concur in the House amendment to SBi282.

The motion prevailed by the following vote:iiYeasi30, Naysi0.

Absent:iiOgden.

SENATE BILL 271 WITH HOUSE AMENDMENT

Senator Harris called SBi271 from the President's table for consideration of the House amendment to the bill.

Friday, May 29, 2009 SENATE JOURNAL 4213

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 271 by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill as appropriate:

SECTION ____. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Section 161.076 to read as follows:

Sec. 161.076. INFORMAL CAREGIVER SERVICES. (a) In this section:

(1) "Area agency on aging" has the meaning assigned by Section 161.075.

(2) "Local entity" means an area agency on aging or other entity that provides services and support for older or disabled persons and their caregivers.

(b) The department shall coordinate with area agencies on aging and, to the extent considered feasible by the department, may coordinate with other local entities to coordinate public awareness outreach efforts regarding the role of informal caregivers in long-term care situations, including efforts to raise awareness of support services available in this state for informal caregivers.

(c) The department shall perform the following duties to assist a local entity with outreach efforts under this section:

(1) expand an existing department website to provide a link through which a local entity may post and access best practices information regarding informal caregiver support; and

(2) create a document template that a local entity may adapt as necessary to reflect resources available to informal caregivers in the area supported by the entity.

(d) The department shall create or modify a form to be included in the functional eligibility determination process for long-term care benefits for older persons under the Medicaid program and, to the extent considered feasible by the department, may include a form in systems for other long-term care support services. The department shall use the form to identify informal caregivers for the purpose of enabling the department to refer the caregivers to available support services. The form may be based on an existing form, may include optional questions for an informal caregiver, or may include questions from similar forms used in other states.

(e) The department shall coordinate with area agencies on aging and, to the extent considered feasible by the department, may coordinate with other local entities to develop and implement a protocol to evaluate the needs of certain informal caregivers. The protocol must:

(1) provide guidance on the type of caregivers who should receive an assessment; and

(2) include the use of a standardized assessment tool that may be based on similar tools used in other states, including the Tailored Caregiver Assessment and Referral process.

(f) The department shall require area agencies on aging and, to the extent considered feasible by the department, other local entities to use the protocol and assessment tool under Subsection (e) and report the data gathered from the assessment tool to the department.

4214 81st Legislature — Regular Session 69th Day (Cont.)

(g) The department shall analyze the data reported under Subsection (f) and collected from the form under Subsection (d) and shall submit a report not later than December 1 of each even-numbered year to the governor and the Legislative Budget Board that summarizes the data analysis.

(g-1) Notwithstanding Subsection (g), the department shall submit the initial report required by that subsection not later than December 1, 2012. This subsection expires January 1, 2013.

(h) The department shall use the data analyzed under Subsection (g) to:

(1) evaluate the needs of assessed informal caregivers;

(2) measure the effectiveness of certain informal caregiver support interventions;

(3) improve existing programs;

(4) develop new services as necessary to sustain informal caregivers; and

(5) determine the effect of informal caregiving on employment and employers.

SECTION ____. If before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.

The amendment was read.

Senator Harris moved to concur in the House amendment to SBi271.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 283 WITH HOUSE AMENDMENTS

Senator Nelson called SBi283 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SB 283 (House committee report) as follows:

(1)iiIn SECTION 1 of the bill, in the introductory language, on page 1, linei6, strike "Subsection (d)" and substitute "Subsections (d) and (i)".

(2)iiIn SECTION 1 of the bill, in the introductory language, on page 1, linei6, between "(d-1)," and "(m)," insert "(i-1),".

(3)iiIn SECTION 1 of the bill, between added Sections 28.004(d-1) and (m), Education Code (page 2, between lines 2 and 3), insert the following:

(i)iiBefore each school year, a [A] school district shall provide written notice to [notify] a parent of each student enrolled in the district of the board of trustees' decision regarding whether the district will provide human sexuality instruction to district students. If instruction will be provided, the notice must include:

(1)iia summary of the basic content of the district's human sexuality instruction to be provided to the student, including a statement informing the parent of the instructional requirements under state law; [and]

(2)iia statement of the parent's right to:

Friday, May 29, 2009 SENATE JOURNAL 4215

(A)iireview curriculum materials as provided by Subsection (j); and

(B)iiremove the student from any part of the district's human sexuality instruction without subjecting the student to any disciplinary action, academic penalty, or other sanction imposed by the district or the student's school; and

(3)iiinformation describing the opportunities for parental involvement in the development of the curriculum to be used in human sexuality instruction, including information regarding the local school health advisory council established under Subsection (a).

(i-1)iiA parent may use the grievance procedure adopted under Section 26.011 concerning a complaint of a violation of Subsection (i).

Floor Amendment No. 2

Amend SB 283 (House committee report) in SECTION 1 of the bill, in amended Section 28.004(d), Education Code (page 1, line 8), between "appoint" and "members" by inserting "at least five".

The amendments were read.

Senator Nelson moved to concur in the House amendments to SBi283.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 229 WITH HOUSE AMENDMENT

Senator West called SBi229 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi229 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the procurement methods authorized for public projects by certain local governments.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 271.182, Local Government Code, is amended to read as follows:

Sec.i271.182.iiAPPLICABILITY. This [(a) Before September 1, 2009, this subchapter applies to a local governmental entity with a population of 500,000 or more within its geographic boundaries or service area.

[(b)iiOn or after September 1, 2009, and before September 1, 2011, this] subchapter applies to a local governmental entity with a population of more than 100,000 within its geographic boundaries or service area.

SECTIONi2.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator West moved to concur in the House amendment to SBi229.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

4216 81st Legislature — Regular Session 69th Day (Cont.)

SENATE BILL 627 WITH HOUSE AMENDMENTS

Senator Carona called SBi627 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Amendment

Amend SBi627 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the liability of in-home service companies and residential delivery companies for negligent hiring.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 145.001, Civil Practice and Remedies Code, is amended by adding Subdivision (1-a) to read as follows:

(1-a)ii"Residence" means a person's principal or ordinary home or dwelling place and includes:

(A)iiany garage that is attached to the home or dwelling place; and

(B)iiany construction area that is attached to and accessible from the inhabited area or the attached garage of the home or dwelling place.

SECTIONi2.iiChapter 145, Civil Practice and Remedies Code, is amended by adding Section 145.0015 to read as follows:

Sec.i145.0015.iiSHORT TITLE. This chapter may be cited as the Sue Weaver Act.

SECTIONi3.iiSection 145.002, Civil Practice and Remedies Code, is amended to read as follows:

Sec.i145.002.iiCRIMINAL HISTORY BACKGROUND CHECK.iBefore associating with or hiring an officer, employee, or prospective employee in a position whose duties include entry into another person's residence an [An] in-home service company or residential delivery company shall:

(1)iiobtain from the Department of Public Safety or a private vendor approved by the department and offering services comparable to the services offered by the department all criminal history record information relating to the [an] officer, employee, or prospective employee; or

(2)iiascertain that the person holds in good standing an occupational license issued by a licensing authority in this state that has, before issuing or renewing the license, performed a criminal history background check [of the company whose job duties require or will require entry into another person's residence].

SECTIONi4.iiSections 145.003(a) and (b), Civil Practice and Remedies Code, are amended to read as follows:

(a)iiThis section applies only to an action against an in-home service company or residential delivery company that:

(1)iiarises out of a criminal act or omission by an officer or employee of the company as to whom the company has obtained [is required to obtain] criminal history record information under Section 145.002(1) [145.002];

Friday, May 29, 2009 SENATE JOURNAL 4217

(2)iiis brought by or on behalf of a person whose home the officer or employee entered while in the performance of the employee's job duties, without regard to where the criminal act or omission occurred; and

(3)iiseeks damages from the company for the negligent hiring of the officer or employee.

(b)iiIn an action to which this section applies, an in-home service company or residential delivery company is rebuttably presumed to have not acted negligently if:

(1)iiat the time a person was hired, the company obtained criminal history record information regarding the officer or employee under Section 145.002(1); and

(2)iithe criminal history record information shows that, in the 20 years preceding the date the information was obtained for a felony or in the 10 years preceding the date the information was obtained for a Class A or Class B misdemeanor, the officer or employee had not been convicted of, or placed on deferred adjudication for:

(A)iian offense in this state classified as:

(i)iian offense against the person or the family;

(ii)iian offense against property; or

(iii)iipublic indecency; or

(B)iian offense in another jurisdiction that would be classified in a category described by Paragraph (A) if the offense had occurred in this state.

SECTIONi5.iiSection 411.1181(b), Government Code, is amended to read as follows:

(b)iiAn in-home service company or residential delivery company is entitled to obtain from the Department of Public Safety [or a private vendor approved by the department and offering services comparable to the services offered by the department] criminal history record information maintained by the department that relates to:

(1)iian officer of or person employed by the company whose job duties require entry into another person's residence; or

(2)iian applicant to whom an offer of employment is made for a position of employment with the company, the job duties of which require entry into another person's residence.

SECTIONi6.ii(a) The changes in law made by Sections 1 and 4 of this Act to Sections 145.001 and 145.003, Civil Practice and Remedies Code, apply only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

(b)iiSections 3 and 5 of this Act apply only to criminal history background check information obtained by an in-home service company or residential delivery company on or after the effective date of this Act. Criminal history background check information obtained before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTIONi7.iiThis Act takes effect September 1, 2009.

4218 81st Legislature — Regular Session 69th Day (Cont.)

Floor Amendment No.i1

Amend CSSB 627, in SECTION 3 of the bill, amending Section 145.002, Civil Practice and Remedies Code (House committee report, page 2, lines 1-5), by striking Subdivision (1) and substituting the following:

(1)iiobtain from the Department of Public Safety or a private vendor [approved by the department and offering services comparable to the services offered by the department] all criminal history record information relating to an officer, employee, or prospective employee; or

The amendments were read.

Senator Carona moved to concur in the House amendments to SBi627.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 860 WITH HOUSE AMENDMENT

Senator Hegar called SBi860 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi860 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the Fort Bend-Waller Counties Municipal Utility District No. 2; providing authority to impose a tax and issue bonds; granting a limited power of eminent domain.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubtitle F, Title 6, Special District Local Laws Code, is amended by adding Chapter 8329 to read as follows:

CHAPTERi8329.iiFORT BEND-WALLER COUNTIES MUNICIPAL UTILITY DISTRICT NO. 2

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i8329.001.iiDEFINITIONS. In this chapter:

(1)ii"Board" means the district's board of directors.

(2)ii"Director" means a board member.

(3)ii"District" means the Fort Bend-Waller Counties Municipal Utility District No. 2.

Sec.i8329.002.iiNATURE OF DISTRICT. The district is a municipal utility district created under Section 59, Article XVI, Texas Constitution.

Sec.i8329.003.iiCONFIRMATION AND DIRECTORS' ELECTION REQUIRED. The temporary directors shall hold an election to confirm the creation of the district and to elect five permanent directors as provided by Section 49.102, Water Code.

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Sec.i8329.004.iiCONSENT OF MUNICIPALITY REQUIRED. The temporary directors may not hold an election under Section 8329.003 until each municipality in whose corporate limits or extraterritorial jurisdiction the district is located has consented by ordinance or resolution to the creation of the district and to the inclusion of land in the district.

Sec.i8329.005.iiFINDINGS OF PUBLIC PURPOSE AND BENEFIT. (a) The district is created to serve a public purpose and benefit.

(b)iiThe district is created to accomplish the purposes of:

(1)iia municipal utility district as provided by general law and Section 59, Article XVI, Texas Constitution; and

(2)iiSection 52, Article III, Texas Constitution, that relate to the construction, acquisition, improvement, operation, or maintenance of macadamized, graveled, or paved roads, or improvements, including storm drainage, in aid of those roads.

Sec.i8329.006.iiINITIAL DISTRICT TERRITORY. (a) The district is initially composed of the territory described by Section 2 of the Act creating this chapter.

(b)iiThe boundaries and field notes contained in Section 2 of the Act creating this chapter form a closure. A mistake made in the field notes or in copying the field notes in the legislative process does not affect the district's:

(1)iiorganization, existence, or validity;

(2)iiright to issue any type of bond for the purposes for which the district is created or to pay the principal of and interest on a bond;

(3)iiright to impose a tax; or

(4)iilegality or operation.

[Sections 8329.007-8329.050 reserved for expansion]

SUBCHAPTERiB.iiBOARD OF DIRECTORS

Sec.i8329.051.iiGOVERNING BODY; TERMS. (a) The district is governed by a board of five elected directors.

(b)iiExcept as provided by Section 8329.052, directors serve staggered four-year terms.

Sec.i8329.052.iiTEMPORARY DIRECTORS. (a) The temporary board consists of:

(1)iiSuzanne Corbin;

(2)iiCarolyn Davis;

(3)iiJeff Hayes;

(4)iiSharon Wallingford; and

(5)iiRay Deyoe.

(b)iiTemporary directors serve until the earlier of:

(1)iithe date permanent directors are elected under Section 8329.003; or

(2)iithe fourth anniversary of the effective date of the Act creating this chapter.

(c)iiIf permanent directors have not been elected under Section 8329.003 and the terms of the temporary directors have expired, successor temporary directors shall be appointed or reappointed as provided by Subsection (d) to serve terms that expire on the earlier of:

(1)iithe date permanent directors are elected under Section 8329.003; or

(2)iithe fourth anniversary of the date of the appointment or reappointment.

4220 81st Legislature — Regular Session 69th Day (Cont.)

(d)iiIf Subsection (c) applies, the owner or owners of a majority of the assessed value of the real property in the district may submit a petition to the commission requesting that the commission appoint as successor temporary directors the five persons named in the petition. The commission shall appoint as successor temporary directors the five persons named in the petition.

[Sections 8329.053-8329.100 reserved for expansion]

SUBCHAPTERiC.iiPOWERS AND DUTIES

Sec.i8329.101.iiGENERAL POWERS AND DUTIES. The district has the powers and duties necessary to accomplish the purposes for which the district is created.

Sec.i8329.102.iiMUNICIPAL UTILITY DISTRICT POWERS AND DUTIES. The district has the powers and duties provided by the general law of this state, including Chapters 49 and 54, Water Code, applicable to municipal utility districts created under Section 59, Article XVI, Texas Constitution.

Sec.i8329.103.iiAUTHORITY FOR ROAD PROJECTS. Under Section 52, Article III, Texas Constitution, the district may design, acquire, construct, finance, issue bonds for, improve, operate, maintain, and convey to this state, a county, or a municipality for operation and maintenance macadamized, graveled, or paved roads, or improvements, including storm drainage, in aid of those roads.

Sec.i8329.104.iiROAD STANDARDS AND REQUIREMENTS. (a) A road project must meet all applicable construction standards, zoning and subdivision requirements, and regulations of each municipality in whose corporate limits or extraterritorial jurisdiction the road project is located.

(b)iiIf a road project is not located in the corporate limits or extraterritorial jurisdiction of a municipality, the road project must meet all applicable construction standards, zoning and subdivision requirements, and regulations of each county in which the road project is located.

(c)iiIf the state will maintain and operate the road, the Texas Transportation Commission must approve the plans and specifications of the road project.

Sec.i8329.105.iiCOMPLIANCE WITH MUNICIPAL CONSENT ORDINANCE OR RESOLUTION. The district shall comply with all applicable requirements of any ordinance or resolution that is adopted under Section 54.016 or 54.0165, Water Code, and that consents to the creation of the district or to the inclusion of land in the district.

Sec.i8329.106.iiLIMITATION ON USE OF EMINENT DOMAIN. The district may not exercise the power of eminent domain outside the district to acquire a site or easement for:

(1)iia road project authorized by Section 8329.103; or

(2)iia recreational facility as defined by Section 49.462, Water Code.

[Sections 8329.107-8329.150 reserved for expansion]

SUBCHAPTERiD.iiGENERAL FINANCIAL PROVISIONS

Sec.i8329.151.iiELECTIONS REGARDING TAXES OR BONDS. (a) The district may issue, without an election, bonds and other obligations secured by:

(1)iirevenue other than ad valorem taxes; or

(2)iicontract payments described by Section 8329.153.

Friday, May 29, 2009 SENATE JOURNAL 4221

(b)iiThe district must hold an election in the manner provided by Chapters 49 and 54, Water Code, to obtain voter approval before the district may impose an ad valorem tax or issue bonds payable from ad valorem taxes.

(c)iiThe district may not issue bonds payable from ad valorem taxes to finance a road project unless the issuance is approved by a vote of a two-thirds majority of the district voters voting at an election held for that purpose.

Sec.i8329.152.iiOPERATION AND MAINTENANCE TAX. (a) If authorized at an election held under Section 8329.151, the district may impose an operation and maintenance tax on taxable property in the district in accordance with Section 49.107, Water Code.

(b)iiThe board shall determine the tax rate. The rate may not exceed the rate approved at the election.

Sec.i8329.153.iiCONTRACT TAXES. (a) In accordance with Section 49.108, Water Code, the district may impose a tax other than an operation and maintenance tax and use the revenue derived from the tax to make payments under a contract after the provisions of the contract have been approved by a majority of the district voters voting at an election held for that purpose.

(b)iiA contract approved by the district voters may contain a provision stating that the contract may be modified or amended by the board without further voter approval.

[Sections 8329.154-8329.200 reserved for expansion]

SUBCHAPTERiE.iiBONDS AND OTHER OBLIGATIONS

Sec.i8329.201.iiAUTHORITY TO ISSUE BONDS AND OTHER OBLIGATIONS. The district may issue bonds or other obligations payable wholly or partly from ad valorem taxes, impact fees, revenue, contract payments, grants, or other district money, or any combination of those sources, to pay for any authorized district purpose.

Sec.i8329.202.iiTAXES FOR BONDS. At the time the district issues bonds payable wholly or partly from ad valorem taxes, the board shall provide for the annual imposition of a continuing direct ad valorem tax, without limit as to rate or amount, while all or part of the bonds are outstanding as required and in the manner provided by Sections 54.601 and 54.602, Water Code.

Sec.i8329.203.iiBONDS FOR ROAD PROJECTS. At the time of issuance, the total principal amount of bonds or other obligations issued or incurred to finance road projects and payable from ad valorem taxes may not exceed one-fourth of the assessed value of the real property in the district.

SECTIONi2.iiThe Fort Bend-Waller Counties Municipal Utility District No. 2 initially includes all the territory contained in the following area:

FIELD NOTES FOR A 472.573 ACRE TRACT OF LAND IN THE THOMAS CRESOP SURVEY, ABSTRACT 405, WALLER COUNTY, TEXAS, ABSTRACT 369, FORT BEND COUNTY, TEXAS, AND THE P. M. CUNY SURVEY, ABSTRACT 355, WALLER COUNTY, TEXAS, THE ROBERT T. VAN SLYKE SURVEY, ABSTRACT 395, WALLER COUNTY, TEXAS, AND THE W. W. BAINS SURVEY, ABSTRACT 385, WALLER COUNTY, TEXAS, SAID 472.573 ACRE TRACT BEING COMPRISED OF THAT CERTAIN CALLED 137.322 ACRE TRACT RECORDED IN VOLUME 1131, PAGE 26, OFFICIAL RECORDS,

4222 81st Legislature — Regular Session 69th Day (Cont.)

BEGINNING at a 3/4 inch iron rod found at the intersection of the south right-of-way line U. S. Highway 90 (100-feet wide) with the east line of a 40-foot wide private road (marked Alt Lane) for the northwest corner of said called 137.322 acre tract, and the most westerly northwest corner and Place of Beginning of the herein described tract, said point bears North 88 degrees 21 minutes 47 seconds East, 39.90 feet from a 5/8 inch iron rod with cap marked "Tri-Tech";

THENCE North 88 degrees 44 minutes 46 seconds East along the north line of the herein described tract and the north line of said called 137.322 acre tract, same being the south right-of-way line U. S. Highway 90, 2,037.44 feet to a 5/8 inch iron rod with cap marked "3438" found for the northeast corner of the herein described tract, same being the northwest corner of an adjoining called 0.0971 acre tract described in deed recorded in Volume 0966, Page 132, Official Records, Waller County, Texas;

THENCE South 04 degrees 55 minutes 35 seconds East along the east line of the herein described tract, same being the west line of said adjoining called 0.0971 acre tract, 411.10 feet to a 3/4 inch iron pipe found for a reentry corner to the herein described tract, same being the south corner of said adjoining called 0.0971 acre tract, the southwest corner of an adjoining called 5.00 acre tract described in deed recorded in Volume 0595, Page 540, Official Records, Waller County, Texas, and the northwest corner of the aforementioned called 54.00 acre tract, said point also being a reentry corner of said W. W. Bains Survey, Abstract 385, same being the upper northwest corner of the Robert T. Van Slyke Survey, Abstract 395, and an angle point in the east line of said called 137.322 acre tract;

THENCE North 88 degrees 17 minutes 20 seconds East along a north line of the herein described tract, the north line of said called 54.00 acre tract, the north line of said Robert T. Van Slyke Survey, Abstract 395, and the north line of said Thomas Cresop Survey, Abstract 405, same being the south line of said W. W. Bains Survey, Abstract 385, and the south line of said adjoining called 5.00 acre tract, 533.04 feet to a 3/4 inch iron rod found for an angle point in the north line of the herein described tract, being the southeast corner of said adjoining called 5.00 acre tract, same being the southwest corner of an adjoining called 1.417 acre tract described in Volume 0609, Page 784, Official Records, Waller County, Texas;

Friday, May 29, 2009 SENATE JOURNAL 4223

THENCE North 88 degrees 07 minutes 31seconds East along a north line of the herein described tract, the north line of said called 54.00 acre tract, and the north line of said Thomas Cresop Survey, Abstract 405, same being the south line of said W. W. Bains Survey, Abstract 385, same being the south line of said adjoining called 1.417 acre tract, the south line of an adjoining called 2.0 acre tract recorded in Volume 0562, Page 757, Official Records, Waller County, Texas, and the south line of an adjoining called 1.0 acre tract (Tract 2) and an adjoining called 1.0 acre tract (Tract 1) recorded in Volume 0519, Page 703, Official Records, Waller County, Texas, at 152.37 feet pass a 3/4 inch iron pipe found on said line for the southeast corner of said adjoining called 1.417 acre tract, same being the southwest corner of said adjoining called 2.0 acre tract, at 410.73 feet pass a 1/2 inch iron pipe with cap marked "Kalkomey Surveying" found for the northeast corner of said called 54.00 acre tract, same being the lower northwest corner of said called 136.8 acre tract, and continuing for a total distance of 586.81 feet to a railroad iron found for a reentry corner to the herein described tract and a reentry corner to said called 136.8 acre tract, being the southeast corner of said adjoining called 1.0 acre tract (Tract 1), and the upper southeast corner of said W. W. Bains Survey, Abstract 385, same being the southwest corner of the aforementioned P. M. Cuny Survey, Abstract 355, said point also being in the west right-of-way line of Apache Road (60-feet wide);

THENCE North 02 degrees 06 minutes 10 seconds West along the upper west line of the herein described tract, the upper west line of said called 136.8 acre tract, and the west line of said P. M. Cuny Survey, Abstract 355, same being the east line of said adjoining called 1.0 acre tract (Tract 1), and the upper east line of said W. W. Bains Survey, Abstract 385, 399.97 feet to a 1/2 inch iron pipe with cap marked "Kalkomey Surveying" found for a northwest corner of the herein described tract, and a northwest corner of said called 136.8 acre tract, same being the northeast corner of said adjoining called 1.0 acre tract (Tract 1), said point also being in the south right-of-way line of U. S. Highway 90 (100-feet wide);

THENCE North 88 degrees 43 minutes 13 seconds East along the upper north line of the herein described tract and the north line of said called 136.8 acre tract, same being the south right-of-way line of U. S. Highway 90, 60.00 feet to a 1-inch iron pipe found for the most westerly northeast corner of the herein described tract and the upper northeast corner of said called 136.8 acre tract, same being the upper northwest corner of the adjoining Katy West Business Park, according to map or plat thereof recorded in Volume 348, Page 221, Deed Records, Waller County, Texas;

THENCE South 02 degrees 06 minutes 10 seconds East along the common line of the herein described tract and said adjoining Katy West Business Park, being the east right-of-way line of Apache Road, 395.44 feet to a 1/2 inch iron pipe found for angle point;

THENCE South 09 degrees 00 minutes 01 second East continuing along said common line, 56.44 feet to a 1/2 inch iron pipe found for corner, said point being the upper southeast corner of said called 136.8 acre tract, same being a reentry corner to said adjoining Katy West Business Park;

THENCE South 80 degrees 59 minutes 59 seconds West continuing along said common line, departing said east right-of-way line of Apache Road, 60.00 feet to a 1/2 inch iron pipe found for a reentry corner to the herein described tract and a reentry

4224 81st Legislature — Regular Session 69th Day (Cont.)

THENCE South 09 degrees 00 minutes 01 second East continuing along said common line, 1,124.04 feet to a 5/8 inch iron rod found for a reentry corner to the herein described tract and a reentry corner to said called 136.8 acre tract, same being the southwest corner of said adjoining Katy West Business Park, and being at the intersection of the west right-of-way line of Apache Road with the south right-of-way line of Comanche Road (60-feet wide);

THENCE North 88 degrees 03 minutes 14 seconds East continuing along said common line, 1,060.64 feet to a 3/4 inch iron rod found for a reentry corner to the herein described tract and a reentry corner to said called 136.8 acre tract, same being the southeast corner of said adjoining Katy West Business Park;

THENCE North 01 degree 56 minutes 47 seconds West continuing along said common line, 1,561.00 feet to a 3/4 inch iron pipe found for the most easterly northwest corner of the herein described tract and a northwest corner of said called 136.8 acre tract, same being the northeast corner of said adjoining Katy West Business Park, and being in the south right-of-way line of U. S. Highway 90;

THENCE North 88 degrees 42 minutes 48 seconds East along the most easterly north line of the herein described tract, and the north line of said called 136.8 acre tract, same being the south right-of-way line of U. S. Highway 90, 1,828.82 feet to a 1/2 inch iron rod with cap marked "RPLS 2085" found for the most easterly northeast corner of the herein described tract and the most easterly northeast corner of said called 136.8 acre tract, same being the northwest corner of an adjoining called 1.924 acre tract recorded in Volume 0727, Page 844, Official Records, Waller County, Texas;

THENCE South 01 degree 12 minutes 15 seconds East along the common line of the herein described tract and said adjoining called 1.924 acre tract, 183.46 feet to a 1/2 inch iron rod with cap marked "RPLS 2085" found for corner;

THENCE South 62 degrees 41 minutes 42 seconds East continuing along said common line, 383.31 feet to a 1/2 inch iron rod with cap marked "RPLS 2085" found for a reentry corner to the herein described tract, being the south corner of said adjoining called 1.924 acre tract, and east corner of said called 136.8 acre tract, and being in the northwest line of the aforementioned called 8.429 acre tract, said point being in a curve to the left;

THENCE along said curve to the left having a central angle of 10 degrees 56 minutes 03 seconds, a radius of 940.00 feet, an arc length of 179.39 feet, and a chord bearing North 15 degrees 16 minutes 58 seconds East, 179.11 feet to a point in the centerline of Snake Creek for corner, being the east corner of said adjoining called 1.924 acre tract, and being in the southwest line of an adjoining called 5.6687 acre tract recorded in Volume 478, Page 631, Deed Records, Waller County, Texas;

THENCE along the centerline of Snake Creek, being the northeast line of the herein described tract, the northeast line of said called 8.426 acre tract, and the northeast line of the aforementioned called 135.5 acre tract, same being the southwest line of said adjoining called 5.6687 acre tract, the southwest line of an adjoining called 1.6327 acre tract described in deed recorded in Volume 0785, Page 649,

Friday, May 29, 2009 SENATE JOURNAL 4225

South 55 degrees 05 minutes 56 seconds East, 131.02 feet;

South 54 degrees 20 minutes 06 seconds East, 550.23 feet

South 64 degrees 50 minutes 22 seconds East, 329.51 feet

South 55 degrees 03 minutes 33 seconds East, 61.69 feet

South 45 degrees 08 minutes 57 seconds East, 128.52 feet

South 46 degrees 52 minutes 01 second East, 1,243.02 feet

South 49 degrees 37 minutes 43 seconds East, 273.13 feet to a point in the centerline of Snake Creek for the lower northeast corner of the herein described tract and the northeast corner of said called 135.5 acre tract, same being the southeast corner of said adjoining called 24.356 acre tract, the southwest corner of an adjoining called 1.035 acre tract recorded in Volume 251, Page 228, Deed Records, Waller County, Texas, and the lower northwest corner of the adjoining residue of a called 5.418 acre tract recorded in Volume 218, Page 223, Volume 219, Page 327, and Volume 219, Page 241, Deed Records, Waller County, Texas, and Volume 539, Page 471, Deed Records, Fort Bend County, Texas, from which point a found 1/2 inch iron pipe with cap marked "Kalkomey Surveying" bears North 01 degree 44 minutes 58 seconds West, 49.62 feet;

THENCE South 01 degree 45 minutes 28 seconds East along the upper east line of the herein described tract and the east line of said called 135.5 acre tract, same being the west line of said adjoining residue of a called 5.418 acre tract, at 589.52 feet pass a 1/2 inch iron rod found on said line, and continuing for a total distance of 629.50 feet to a 1/2 inch iron rod found for the upper southeast corner of the herein described tract and the upper southeast corner of said called 135.5 acre tract, same being the southwest corner of said adjoining residue of a called 5.418 acre tract, the northwest corner of an adjoining called 3.204 acre tract recorded in Volume 522, Page 647, Deed Records, Fort Bend County, Texas, and the northeast corner of an adjoining called 1.2086 acre tract recorded under County Clerk's File Number 2005006745, Official Public Records, Fort Bend County, Texas;

THENCE South 88 degrees 04 minutes 25 seconds West along the upper south line of the herein described tract and the upper south line of said called 135.5 acre tract, same being the north line of said adjoining called 1.2086 acre tract, at 119.83 feet pass a 1-1/4 inch iron pipe found on said line for the northwest corner of said adjoining called 1.2086 acre tract, same being the northeast corner of an adjoining called 5.07 acre tract recorded under County Clerk's File Number 2002092170, Official Public Records, Fort Bend County, Texas, and continuing for a total distance of 775.68 feet to a 1-1/4 inch iron pipe found on said line for a reentry corner to the herein described tract and a reentry corner to said called 135.5 acre tract, same being the northwest corner of said adjoining called 5.07 acre tract;

THENCE South 01 degree 43 minutes 48 seconds East along the lower east line of the herein described tract and the lower east line of said called 135.5 acre tract, same being the west line of said adjoining called 5.07 acre tract, 338.08 feet to a

4226 81st Legislature — Regular Session 69th Day (Cont.)

THENCE South 88 degrees 14 minutes 06 seconds West along the south line of the herein described tract and the south line of said called 135.5 acre tract, being the north right-of-way line of Interstate Highway 10, 103.78 feet to a concrete monument found on said line for angle point;

THENCE South 87 degrees 19 minutes 06 seconds West continuing along said line, 2,169.25 feet to a concrete monument found on said line at the beginning of a curve to the right;

THENCE along said curve to the right, being the south line of the herein described tract, the south line of said called 135.5 acre tract, the south line of the aforementioned called 0.506 acre tract, the south line of the aforementioned called 8.429 acre tract, and the south line of the aforementioned called 136.8 acre tract, being the north right-of-way line of Interstate Highway 10, having a central angle of 04 degrees 36 minutes 42 seconds, a radius of 11,299.16 feet, an arc length of 909.48 feet, and a chord bearing South 89 degrees 39 minutes 23 seconds West, 909.24 feet to a concrete monument found at the end of said curve;

THENCE North 88 degrees 02 minutes 16 seconds West continuing along the south line of the herein described tract and the south line of said called 136.8 acre tract, being the north right-of-way line of Interstate Highway 10, 304.68 feet to a 3/4 inch iron pipe found on said line for angle point;

THENCE North 88 degrees 04 minutes 11 seconds West along the south line of the herein described tract and the south line of said called 136.8 acre tract, being the north right-of-way line of Interstate Highway 10, 325.07 feet to a 1/2 inch iron pipe with cap marked "Kalkomey Surveying" found on said line at the beginning of a curve to the left, from which point a found concrete monument bears South 56 degrees 15 minutes 06 seconds East, 0.36 feet;

THENCE along said curve to the left having a central angle of 03 degrees 38 minutes 39 seconds, a radius of 11,619.16 feet, an arc length of 739.01 feet, and a chord bearing North 89 degrees 53 minutes 30 seconds West, 738.89 feet to a concrete monument found at the end of said curve;

THENCE South 88 degrees 17 minutes 10 seconds West continuing along the south line of the herein described tract and the south line of said called 136.8 acre tract, being the north right-of-way line of Interstate Highway 10, at 319.40 feet pass a 1/2 inch iron pipe with cap marked "Kalkomey Surveying" found on said line for the southeast corner of the aforementioned called 54.00 acre tract, and continuing for a total distance of 1,263.18 feet to a 1/2 inch iron rod found for angle point, said point being the southeast corner of the aforementioned called 137.322 acre tract, same being the southwest corner of said called 54.00 acre tract, and being in the west line of the aforementioned Robert T. Van Slyke Survey, Abstract 407, same being the east line of the aforementioned W. W. Bains Survey, Abstract 385;

THENCE South 88 degrees 17 minutes 40 seconds West along the south line of the herein described tract and the south line of said called 137.322 acre tract, same being the north right-of-way line of Interstate Highway 10, 2,054.95 feet to a 1/2 inch

Friday, May 29, 2009 SENATE JOURNAL 4227

THENCE North 02 degrees 01 minute 18 seconds West along the west line of the herein described tract and the west line of said called 137.322 acre tract, same being the east line of said adjoining called 2.4915 acre tract, and along the east line of the aforementioned adjoining 40-foot wide private road (marked Alt Lane), at 119.02 feet (adjoiner called 120.13 feet) pass a 5/8 inch iron rod found 0.23 feet right of said line, and continuing for a total distance of 2,918.57 feet to the Place of Beginning and containing 472.573 acres of land, more or less, with 95.187 acres within Fort Bend County, Texas, and 377.386 acres within Waller County, Texas.

SECTIONi3.ii(a) The legal notice of the intention to introduce this Act, setting forth the general substance of this Act, has been published as provided by law, and the notice and a copy of this Act have been furnished to all persons, agencies, officials, or entities to which they are required to be furnished under Section 59, Article XVI, Texas Constitution, and Chapter 313, Government Code.

(b)iiThe governor, one of the required recipients, has submitted the notice and Act to the Texas Commission on Environmental Quality.

(c)iiThe Texas Commission on Environmental Quality has filed its recommendations relating to this Act with the governor, the lieutenant governor, and the speaker of the house of representatives within the required time.

(d)iiAll requirements of the constitution and laws of this state and the rules and procedures of the legislature with respect to the notice, introduction, and passage of this Act are fulfilled and accomplished.

SECTIONi4.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Hegar moved to concur in the House amendment to SBi860.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 866 WITH HOUSE AMENDMENT

Senator Harris called SBi866 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi866 by substituting in lieu thereof the following:

4228 81st Legislature — Regular Session 69th Day (Cont.)

A BILL TO BE ENTITLED

AN ACT

relating to the rights and liabilities of the parties in a suit for dissolution of a marriage and certain post-dissolution proceedings.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubsection (d), Section 3.007, Family Code, is amended to read as follows:

(d)iiA spouse who is a participant in an employer-provided stock option plan or an employer-provided restricted stock plan has a separate property interest in the options or restricted stock granted to the spouse under the plan as follows:

(1)iiif the option or stock was granted to the spouse before marriage but required continued employment during marriage before the grant could be exercised or the restriction removed, the spouse's separate property interest is equal to the fraction of the option or restricted stock in which:

(A)iithe numerator is the sum of:

(i)iithe period from the date the option or stock was granted until the date of marriage; and

(ii)iiif the option or stock also required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed; and

(B)iithe denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed; and

(2)iiif the option or stock was granted to the spouse during the marriage but required continued employment following the date of dissolution of the [after] marriage before the grant could be exercised or the restriction removed, the spouse's separate property interest is equal to the fraction of the option or restricted stock in which:

(A)iithe numerator is the period from the date of dissolution [or termination] of the marriage until the date the grant could be exercised or the restriction removed; and

(B)iithe denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed.

SECTIONi2.iiThe heading to Subchapter E, Chapter 3, Family Code, is amended to read as follows:

SUBCHAPTER E. CLAIMS FOR [ECONOMIC CONTRIBUTION AND] REIMBURSEMENT

SECTIONi3.iiSection 3.402, Family Code, is amended to read as follows:

Sec.i3.402.iiCLAIM FOR REIMBURSEMENT; OFFSETS [ECONOMIC CONTRIBUTION]. (a)iiFor purposes of this subchapter, a claim for reimbursement includes:

(1)iipayment by one marital estate of the unsecured liabilities of another marital estate;

(2)iiinadequate compensation for the time, toil, talent, and effort of a spouse by a business entity under the control and direction of that spouse;

(3)ii["economic contribution" is the dollar amount of:

Friday, May 29, 2009 SENATE JOURNAL 4229

[(1)]iithe reduction of the principal amount of a debt secured by a lien on property owned before marriage, to the extent the debt existed at the time of marriage;

(4)i[(2)]iithe reduction of the principal amount of a debt secured by a lien on property received by a spouse by gift, devise, or descent during a marriage, to the extent the debt existed at the time the property was received;

(5)i[(3)]iithe reduction of the principal amount of that part of a debt, including a home equity loan:

(A)iiincurred during a marriage;

(B)iisecured by a lien on property; and

(C)iiincurred for the acquisition of, or for capital improvements to, property;

(6)i[(4)]iithe reduction of the principal amount of that part of a debt:

(A)iiincurred during a marriage;

(B)iisecured by a lien on property owned by a spouse;

(C)iifor which the creditor agreed to look for repayment solely to the separate marital estate of the spouse on whose property the lien attached; and

(D)iiincurred for the acquisition of, or for capital improvements to, property;

(7)i[(5)]iithe refinancing of the principal amount described by Subdivisions (3)-(6) [(1)-(4)], to the extent the refinancing reduces that principal amount in a manner described by the applicable [appropriate] subdivision; [and]

(8)i[(6)]iicapital improvements to property other than by incurring debt; and

(9)iithe reduction by the community property estate of an unsecured debt incurred by the separate estate of one of the spouses.

(b)iiThe court shall resolve a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset against each other if the court determines it to be appropriate.

(c)iiBenefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate, except that the separate estate of a spouse may not claim an offset for use and enjoyment of a primary or secondary residence owned wholly or partly by the separate estate against contributions made by the community estate to the separate estate.

(d)iiReimbursement for funds expended by a marital estate for improvements to another marital estate shall be measured by the enhancement in value to the benefited marital estate.

(e)iiThe party seeking an offset to a claim for reimbursement has the burden of proof with respect to the offset ["Economic contribution" does not include the dollar amount of:

[(1)iiexpenditures for ordinary maintenance and repair or for taxes, interest, or insurance; or

[(2)iithe contribution by a spouse of time, toil, talent, or effort during the marriage].

SECTIONi4.iiSubsection (b), Section 3.404, Family Code, is amended to read as follows:

4230 81st Legislature — Regular Session 69th Day (Cont.)

(b)iiA [The] claim for reimbursement [economic contribution created] under this subchapter does not create an ownership interest in property, but does create a claim against the property of the benefited estate by the contributing estate. The claim matures on dissolution of the marriage or the death of either spouse.

SECTIONi5.iiSubsections (a) and (b), Section 3.406, Family Code, are amended to read as follows:

(a)iiOn dissolution of a marriage, the court may [shall] impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement against [economic contribution in] that property by a contributing [another] marital estate.

(b)iiOn the death of a spouse, a court may [shall], on application for a claim for reimbursement [of economic contribution] brought by the surviving spouse, the personal representative of the estate of the deceased spouse, or any other person interested in the estate, as defined by Section 3, Texas Probate Code, impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement against that property [economic contribution] by a contributing marital estate.

SECTIONi6.iiSection 3.410, Family Code, is amended to read as follows:

Sec.i3.410.iiEFFECT OF MARITAL PROPERTY AGREEMENTS. A premarital or marital property agreement, whether executed before, on, or after September 1, 2009 [1999], that satisfies the requirements of Chapter 4 is effective to waive, release, assign, or partition a claim for economic contribution, reimbursement, or both, under this subchapter to the same extent the agreement would have been effective to waive, release, assign, or partition a claim for economic contribution, reimbursement, or both under the law as it existed immediately before September 1, 2009 [1999], unless the agreement provides otherwise.

SECTIONi7.iiSection 7.007, Family Code, is amended to read as follows:

Sec.i7.007.iiDISPOSITION OF CLAIM FOR [ECONOMIC CONTRIBUTION OR CLAIM FOR] REIMBURSEMENT. [(a)iiIn a decree of divorce or annulment, the court shall determine the rights of both spouses in a claim for economic contribution as provided by Subchapter E, Chapter 3, and in a manner that the court considers just and right, having due regard for the rights of each party and any children of the marriage, shall:

[(1)iiorder a division of a claim for economic contribution of the community marital estate to the separate marital estate of one of the spouses;

[(2)iiorder that a claim for an economic contribution by one separate marital estate of a spouse to the community marital estate of the spouses be awarded to the owner of the contributing separate marital estate; and

[(3)iiorder that a claim for economic contribution of one separate marital estate in the separate marital estate of the other spouse be awarded to the owner of the contributing marital estate.

[(b)]iiIn a decree of divorce or annulment, the court shall determine the rights of both spouses in a claim for reimbursement as provided by Subchapter E, Chapter 3, and shall apply equitable principles to:

Friday, May 29, 2009 SENATE JOURNAL 4231

(1)iidetermine whether to recognize the claim after taking into account all the relative circumstances of the spouses; and

(2)iiorder a division of the claim for reimbursement, if appropriate, in a manner that the court considers just and right, having due regard for the rights of each party and any children of the marriage.

SECTIONi8.iiSection 9.014, Family Code, is amended to read as follows:

Sec.i9.014.iiATTORNEY'S FEES. The court may award reasonable attorney's fees [as costs] in a proceeding under this subchapter. The court may order the attorney's fees to be paid directly to the attorney, who may enforce the order for fees in the attorney's own name by any means available for the enforcement of a judgment for debt.

SECTIONi9.iiSubchapter B, Chapter 9, Family Code, is amended by adding Section 9.106 to read as follows:

Sec.i9.106.iiATTORNEY'S FEES. In a proceeding under this subchapter, the court may award reasonable attorney's fees incurred by a party to a divorce or annulment against the other party to the divorce or annulment. The court may order the attorney's fees to be paid directly to the attorney, who may enforce the order for fees in the attorney's own name by any means available for the enforcement of a judgment for debt.

SECTIONi10.iiSection 9.205, Family Code, is amended to read as follows:

Sec.i9.205.iiATTORNEY'S FEES. In a proceeding to divide property previously undivided in a decree of divorce or annulment as provided by this subchapter, the court may award reasonable attorney's fees [as costs]. The court may order the attorney's fees to be paid directly to the attorney, who may enforce the order in the attorney's own name by any means available for the enforcement of a judgment for debt.

SECTIONi11.iiThe following laws are repealed:

(1)iiSubsections (a), (b), and (f), Section 3.007, Family Code;

(2)iiSubdivisions (1), (2), and (3), Section 3.401, Family Code;

(3)iiSection 3.403, Family Code;

(4)iiSubsection (c), Section 3.406, Family Code; and

(5)iiSections 3.407 and 3.408, Family Code.

SECTIONi12.iiThe changes in law made by this Act to Section 3.007, Family Code, apply to:

(1)iia suit for dissolution of a marriage pending before a trial court on or filed on or after the effective date of this Act; and

(2)iithe estate of a person who dies on or after the effective date of this Act.

SECTIONi13.ii(a)iiIn regard to a claim under Subchapter E, Chapter 3, Family Code, that arises from a suit for dissolution of a marriage, the changes in law made by this Act to that subchapter apply only to a claim made in a suit filed on or after the effective date of this Act. A claim made in a suit filed before the effective date of this Act is governed by the law in effect on the date the suit was filed, and the former law is continued in effect for that purpose.

4232 81st Legislature — Regular Session 69th Day (Cont.)

(b)iiIn regard to a claim under Subchapter E, Chapter 3, Family Code, that arises from the death of a spouse, the changes in law made by this Act to that subchapter apply only to a claim arising from a death that occurs on or after the effective date of this Act. A claim arising from a death that occurs before the effective date of this Act is governed by the law in effect on the date of death, and the former law is continued in effect for that purpose.

SECTIONi14.iiThe changes in law made by this Act to Chapter 9, Family Code, apply only to a proceeding commenced under that chapter on or after the effective date of this Act. A proceeding commenced under Chapter 9, Family Code, before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

SECTIONi15.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator Harris moved to concur in the House amendment to SBi866.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 703 WITH HOUSE AMENDMENT

Senator Nelson called SBi703 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 703 (House committee printing) by inserting the following appropriately numbered SECTIONS and renumbering existing SECTIONS of the bill accordingly:

SECTION ____. Section 191.028, Health and Safety Code, is amended by adding Subsection (c) to read as follows:

(c) Not later than the 30th business day after the date the department receives an amending certificate, the department shall notify the individual of whether the amendment has been accepted for filing.

SECTION ____. This Act applies only to amending certificates filed on or after the effective date of this Act. Amending certificates filed before the effective date of this Act are governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

The amendment was read.

Senator Nelson moved to concur in the House amendment to SBi703.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 654 WITH HOUSE AMENDMENTS

Senator Zaffirini called SBi654 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer, Senator Eltife in Chair, laid the bill and the House amendments before the Senate.

Friday, May 29, 2009 SENATE JOURNAL 4233

Amendment No. 1

Amend SB 654 (House committee report) as follows:

(1) After SECTION 4 of the bill (page 5, between lines 11 and 12), insert the following:

SECTION 5. Section 172.003(3) is amended to read as follows:

(3) "Political Subdivision" means a county, municipality, special district, school district, junior college district, housing authority, or other political subdivision of this [the] state or any other state.

(2) Renumber SECTIONS of the bill appropriately.

Floor Amendment No. 2

Amend SB 654 as follows:

(1)iiAdd the following appropriately numbered SECTION to the bill (page 1, between lines 22 and 23):

SECTIONi____.iiChapter 175, Local Government Code, is amended by adding Section 175.0015 to read as follows:

Sec.i175.0015.iiDEFINITION. In this chapter, "early retiree" means a person who retires from county or municipal employment before the person is eligible for federal Medicare benefits.

(2)iiIn SECTION 3 of the bill, in the recital for that section (page 1, lines 23 and 24), strike "Subsections (a) and (b), Section 175.002, Local Government Code, are amended" and substitute "Section 175.002, Local Government Code, is amended by amending Subsections (a) and (b) and adding Subsections (a-1) and (a-2)".

(3)iiIn SECTION 3 of the bill, in amended Section 175.002(a), Local Government Code (page 2, line 5), strike "The" and substitute "Except as provided by Subsections (a-1) and (a-2), the [The]".

(4)iiIn SECTION 3 of the bill, in amended Section 175.002, Local Government Code (page 2, between lines 8 and 9), insert the following:

(a-1)iiIn addition to providing health benefits coverage for early retirees under a group health insurance plan or group health coverage plan offered to active employees, a county or municipality may provide coverage for early retirees under:

(1)iia fully insured health benefits plan or a self-insured health benefits plan that is separate from the plans offered to its active employees; or

(2)iia group health insurance plan or group health coverage plan offered by a pool established under Chapter 172 or a health benefits plan issuer authorized to do business in this state and designated by the municipality or county as exclusively for early retirees.

(a-2)iiParticipation by an early retiree in the health benefits coverage provided under Subsection (a-1) is at the early retiree's discretion. An early retiree may not be forced to change coverage from a group health insurance plan or group health coverage plan offered to active employees. An early retiree may elect to return to participation in the active employee group health insurance plans during open enrollment.

4234 81st Legislature — Regular Session 69th Day (Cont.)

(5)iiIn SECTION 4 of the bill, in amended Section 175.003(b), Local Government Code (page 2, line 27, through page 3, line 2), strike "is the same level of coverage provided to current employees of the political subdivision [county or municipality] at that time." and substitute the following:

is:

(1)iifor persons other than early retirees who do not choose to use the early retiree health benefits coverage provided under Section 175.002(a-1), the same level of coverage provided to current employees of the political subdivision [county or municipality] at that time; and

(2)iifor early retirees, a level of coverage that is comparable to the level of coverage provided to active employees of the political subdivision, as determined by the governing body of the political subdivision for each enrollment period.

(b-1)iiFor purposes of Subsection (b)(2), "comparable" means the health benefits defined in the contract and summary plan description do not limit the choices of the person or the person's health care provider in any way that is not also limited for active employees.

(6)iiIn SECTION 5 of the bill, immediately after Subsection (b) of that section (page 5, between lines 24 and 25), insert the following:

(c)iiSections 175.002 and 175.003, Local Government Code, as amended by this Act, apply to a person who retires from county or municipal employment regardless of the date on which the person retires.

Floor Amendment No. 1 on Third Reading

Amend SB 654 on third reading as follows:

(1)iiStrike the SECTION of the bill that adds Section 175.0015, Local Government Code, as added by amendment No. 2 by Guillen.

(2)iiIn the recital to the SECTION of the bill that amends Section 175.002, Local Government Code, strike "Section 175.002, Local Government Code, is amended by amending Subsections (a) and (b) and adding Subsections (a-1) and (a-2)" and substitute "Subsections (a) and (b), Section 175.002, Local Government Code, are amended".

(3)iiIn amended Section 175.002(a), Local Government Code, strike "Except as provided by Subsection (a-1) and (a-2), the [The]" and substitute "The".

(4)iiIn amended Section 175.002, Local Government Code, strike Subsections (a-1) and (a-2), as added by amendment No. 2 by Guillen.

(5)iiIn amended Section 175.003(b), Local Government Code, strike "is:

(1)iifor persons other than early retirees who do not choose to use the early retiree health benefits coverage provided under Section 175.002(a-1), the same level of coverage provided to current employees of the political subdivision [county or municipality] at that time; and

(2)iifor early retirees, a level of coverage that is comparable to the level of coverage provided to active employees of the political subdivision, as determined by the governing body of the political subdivision for each enrollment period.

(b-1)iiFor purposes of Subsection (b)(2), "comparable" means the health benefits defined in the contract and summary plan description do not limit the choices of the person or the person's health care provider in any way that is not also limited for active employees." and substitute the following:

Friday, May 29, 2009 SENATE JOURNAL 4235

"is the same level of coverage provided to current employees of the political subdivision [county or municipality] at that time."

(6)iiStrike the following provision as added by amendment No. 2 by Guillen:

(c)iiSections 175.002 and 175.003, Local Government Code, as amended by this Act, apply to a person who retires from county or municipal employment regardless of the date on which the person retires.

The amendments were read.

Senator Zaffirini moved to concur in the House amendments to SBi654.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 476 WITH HOUSE AMENDMENT

Senator Nelson called SBi476 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi476 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to staffing, overtime, and other employment protections for nurses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubtitle B, Title 4, Health and Safety Code, is amended by adding Chapters 257 and 258 to read as follows:

CHAPTER 257. NURSE STAFFING

Sec.i257.001.iiDEFINITIONS. In this chapter:

(1)ii"Committee" means a nurse staffing committee required by this chapter.

(2)ii"Department" means the Department of State Health Services.

(3)ii"Hospital" means:

(A)iia general hospital or special hospital, as those terms are defined by Section 241.003, including a hospital maintained or operated by this state; or

(B)iia mental hospital licensed under Chapter 577.

(4)ii"Patient care unit" means a unit or area of a hospital in which registered nurses provide patient care.

Sec.i257.002.iiLEGISLATIVE FINDINGS. (a)iiThe legislature finds that:

(1)iiresearch supports a conclusion that adequate nurse staffing is directly related to positive patient outcomes and nurse satisfaction with the practice environment;

(2)iinurse satisfaction with the practice environment is in large measure determined by providing an adequate level of nurse staffing based on research findings and patient intensity;

(3)iinurse satisfaction and patient safety can be adversely affected when nurses work excessive hours; and

(4)iihospitals and nurses share a mutual interest in patient safety initiatives that create a healthy environment for nurses and appropriate care for patients.

4236 81st Legislature — Regular Session 69th Day (Cont.)

(b)iiIn order to protect patients, support greater retention of registered nurses, and promote adequate nurse staffing, the legislature intends to establish a mechanism whereby nurses and hospital management shall participate in a joint process regarding decisions about nurse staffing.

Sec.i257.003.iiNURSE STAFFING POLICY AND PLAN. (a)iiThe governing body of a hospital shall adopt, implement, and enforce a written nurse staffing policy to ensure that an adequate number and skill mix of nurses are available to meet the level of patient care needed. The policy must include a process for:

(1)iirequiring the hospital to give significant consideration to the nurse staffing plan recommended by the hospital's nurse staffing committee and to that committee's evaluation of any existing plan;

(2)iiadopting, implementing, and enforcing an official nurse services staffing plan that is based on the needs of each patient care unit and shift and on evidence relating to patient care needs;

(3)iiusing the official nurse services staffing plan as a component in setting the nurse staffing budget;

(4)iiencouraging nurses to provide input to the committee relating to nurse staffing concerns;

(5)iiprotecting from retaliation nurses who provide input to the committee; and

(6)iiensuring compliance with rules adopted by the executive commissioner of the Health and Human Services Commission relating to nurse staffing.

(b)iiThe official nurse services staffing plan adopted under Subsection (a) must:

(1)iireflect current standards established by private accreditation organizations, governmental entities, national nursing professional associations, and other health professional organizations;

(2)iiset minimum staffing levels for patient care units that are:

(A)iibased on multiple nurse and patient considerations; and

(B)iidetermined by the nursing assessment and in accordance with evidence-based safe nursing standards;

(3)iiinclude a method for adjusting the staffing plan for each patient care unit to provide staffing flexibility to meet patient needs; and

(4)iiinclude a contingency plan when patient care needs unexpectedly exceed direct patient care staff resources.

(c)iiThe hospital shall:

(1)iiuse the official nurse services staffing plan:

(A)iias a component in setting the nurse staffing budget; and

(B)iito guide the hospital in assigning nurses hospital-wide; and

(2)iimake readily available to nurses on each patient care unit at the beginning of each shift the official nurse services staffing plan levels and current staffing levels for that unit and that shift.

Sec.i257.004.iiNURSE STAFFING COMMITTEE. (a)iiA hospital shall establish a nurse staffing committee as a standing committee of the hospital.

(b)iiThe committee shall be composed of members who are representative of the types of nursing services provided in the hospital.

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(c)iiThe chief nursing officer of the hospital is a voting member of the committee.

(d)iiAt least 60 percent of the members of the committee must be registered nurses who:

(1)iiprovide direct patient care during at least 50 percent of their work time; and

(2)iiare selected by their peers who provide direct patient care during at least 50 percent of their work time.

(e)iiThe committee shall meet at least quarterly.

(f)iiParticipation on the committee by a hospital employee as a committee member is part of the employee's work time, and the hospital shall compensate that member for that time accordingly. The hospital shall relieve a committee member of other work duties during committee meetings.

(g)iiThe committee shall:

(1)iidevelop and recommend to the hospital's governing body a nurse staffing plan that meets the requirements of Section 257.003;

(2)iireview, assess, and respond to staffing concerns expressed to the committee;

(3)iiidentify the nurse-sensitive outcome measures the committee will use to evaluate the effectiveness of the official nurse services staffing plan;

(4)iievaluate, at least semiannually, the effectiveness of the official nurse services staffing plan and variations between the plan and the actual staffing; and

(5)iisubmit to the hospital's governing body, at least semiannually, a report on nurse staffing and patient care outcomes, including the committee's evaluation of the effectiveness of the official nurse services staffing plan and aggregate variations between the staffing plan and actual staffing.

(h)iiIn evaluating the effectiveness of the official nurse services staffing plan, the committee shall consider patient needs, nursing-sensitive quality indicators, nurse satisfaction measures collected by the hospital, and evidence-based nurse staffing standards.

Sec.i257.005.iiREPORTING OF STAFFING INFORMATION TO DEPARTMENT. (a)iiA hospital shall annually report to the department on:

(1)iiwhether the hospital's governing body has adopted a nurse staffing policy as required by Section 257.003;

(2)iiwhether the hospital has established a nurse staffing committee as required by Section 257.004 that meets the membership requirements of that section;

(3)iiwhether the nurse staffing committee has evaluated the hospital's official nurse services staffing plan as required by Section 257.004 and has reported the results of the evaluation to the hospital's governing body as provided by that section; and

(4)iithe nurse-sensitive outcome measures the committee adopted for use in evaluating the hospital's official nurse services staffing plan.

(b)iiInformation reported under Subsection (a) is public information.

(c)iiTo the extent possible, the department shall collect the data required under Subsection (a) as part of a survey required by the department under other law.

4238 81st Legislature — Regular Session 69th Day (Cont.)

CHAPTER 258. MANDATORY OVERTIME FOR NURSES PROHIBITED

Sec.i258.001.iiDEFINITIONS. In this chapter:

(1)ii"Hospital" means:

(A)iia general hospital or special hospital, as those terms are defined by Section 241.003, including a hospital maintained or operated by this state; or

(B)iia mental hospital licensed under Chapter 577.

(2)ii"Nurse" means a registered nurse or vocational nurse licensed under Chapter 301, Occupations Code.

(3)ii"On-call time" means time spent by a nurse who is not working but who is compensated for availability.

Sec.i258.002.iiMANDATORY OVERTIME. For purposes of this chapter, "mandatory overtime" means a requirement that a nurse work hours or days that are in addition to the hours or days scheduled, regardless of the length of a scheduled shift or the number of scheduled shifts each week. In determining whether work is mandatory overtime, prescheduled on-call time or time immediately before or after a scheduled shift necessary to document or communicate patient status to ensure patient safety is not included.

Sec.i258.003.iiPROHIBITION OF MANDATORY OVERTIME. (a)iiA hospital may not require a nurse to work mandatory overtime, and a nurse may refuse to work mandatory overtime.

(b)iiThis section does not prohibit a nurse from volunteering to work overtime.

(c)iiA hospital may not use on-call time as a substitute for mandatory overtime.

Sec.i258.004.iiEXCEPTIONS. (a)iiSection 258.003 does not apply if:

(1)iia health care disaster, such as a natural or other type of disaster that increases the need for health care personnel, unexpectedly affects the county in which the nurse is employed or affects a contiguous county;

(2)iia federal, state, or county declaration of emergency is in effect in the county in which the nurse is employed or is in effect in a contiguous county;

(3)iithere is an emergency or unforeseen event of a kind that:

(A)iidoes not regularly occur;

(B)iiincreases the need for health care personnel at the hospital to provide safe patient care; and

(C)iicould not prudently be anticipated by the hospital; or

(4)iithe nurse is actively engaged in an ongoing medical or surgical procedure and the continued presence of the nurse through the completion of the procedure is necessary to ensure the health and safety of the patient.

(b)iiIf a hospital determines that an exception exists under Subsection (a)(3), the hospital shall, to the extent possible, make a good faith effort to meet the staffing need through voluntary overtime, including calling per diems and agency nurses, assigning floats, or requesting an additional day of work from off-duty employees.

Sec.i258.005.iiRETALIATION PROHIBITED. A hospital may not suspend, terminate, or otherwise discipline or discriminate against a nurse who refuses to work mandatory overtime.

SECTIONi2.iiSubchapter H, Chapter 301, Occupations Code, is amended by adding Section 301.356 to read as follows:

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Sec.i301.356.iiREFUSAL OF MANDATORY OVERTIME. The refusal by a nurse to work mandatory overtime as authorized by Chapter 258, Health and Safety Code, does not constitute patient abandonment or neglect.

SECTIONi3.iiSubsections (b), (c), and (e), Section 301.413, Occupations Code, are amended to read as follows:

(b)iiA person may not suspend, [or] terminate [the employment of], or otherwise discipline or discriminate against[,] a person who:

(1)iireports, without malice, under this subchapter; [or]

(2)iirequests, in good faith, a nursing peer review committee determination under Section 303.005; or

(3)iirefuses to engage in conduct as authorized by Section 301.352.

(c)iiA person who reports under this subchapter, refuses to engage in conduct as authorized by Section 301.352, or requests a nursing peer review committee determination under Section 303.005 has a cause of action against a person who violates Subsection (b), and may recover:

(1)iithe greater of:

(A)iiactual damages, including damages for mental anguish even if no other injury is shown; or

(B)ii$5,000;

(2)iiexemplary damages;

(3)iicourt costs; and

(4)iireasonable attorney's fees.

(e)iiA person who brings an action under this section has the burden of proof. It is a rebuttable presumption that the person [person's employment] was suspended, [or] terminated, or otherwise disciplined or discriminated against for reporting under this subchapter, for refusing to engage in conduct as authorized by Section 301.352, or for requesting a peer review committee determination under Section 303.005 if:

(1)iithe person was suspended, [or] terminated, or otherwise disciplined or discriminated against within 60 days after the date the report, refusal, or request was made; and

(2)iithe board or a court determines that:

(A)iithe report that is the subject of the cause of action was:

(i)iiauthorized or required under Section 301.402, 301.4025, 301.403, 301.405, 301.406, 301.407, 301.408, 301.409, or 301.410; and

(ii)iimade without malice;

(B)iithe request for a peer review committee determination that is the subject of the cause of action was:

(i)iiauthorized under Section 303.005; and

(ii)iimade in good faith; or

(C)iithe refusal to engage in conduct was authorized by Section 301.352.

SECTIONi4.iiIt is not the intent of the legislature that the executive commissioner of the Health and Human Services Commission rewrite the current rules of the Department of State Health Services relating to nurse staffing except to the extent the current rules conflict with this Act.

4240 81st Legislature — Regular Session 69th Day (Cont.)

SECTIONi5.ii(a)iiThe executive commissioner of the Health and Human Services Commission shall adopt rules for the Department of State Health Services as required by this Act as soon as practicable after the effective date of this Act, but not later than January 1, 2010.

(b)iiThe change in law made by this Act to Section 301.413, Occupations Code, applies to an action commenced on or after the effective date of this Act. An action commenced before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTIONi6.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator Nelson moved to concur in the House amendment to SBi476.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 39 WITH HOUSE AMENDMENTS

Senator Zaffirini called SBi39 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1

Amend SBi39 (engrossed version) as follows:

(1)iiOn page 3, between lines 20 and 21, insert the following and reletter the subsequent sections accordingly:

(D)iifor a specified disease or diseases;

Floor Amendment No. 2

Amend SBi39 (House committee report) as follows:

In Section 1 of the bill, strike Sec. 1379.002(c) (page 2, lines 19-22).

The amendments were read.

Senator Zaffirini moved to concur in the House amendments to SBi39.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 891 WITH HOUSE AMENDMENTS

Senator Nelson called SBi891 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No.i1

Amend SB 891 (House committee printing) as follows:

(1)iiOn page 1, line 5, between "Subsection (d)" and "to", insert "and amending Subsection (l)".

(2)iiOn page 2, between lines 26 and 27, insert the following:

(l)iiA school district shall require a student enrolled in full-day prekindergarten, in kindergarten, or in a grade level below grade six to participate in moderate or vigorous daily physical activity for at least 30 minutes throughout the school year as

Friday, May 29, 2009 SENATE JOURNAL 4241

(1)iiany student who is unable to participate in the required physical activity because of illness or disability; and

(2)iia middle school or junior high school student who participates in an extracurricular activity with a moderate or vigorous physical activity component that is considered a structured activity under rules adopted by the commissioner.

(3)iiOn page 3, between lines 13 and 14, insert the following appropriately numbered SECTION and renumber the subsequent SECTIONS accordingly:

SECTIONi____.iiSection 28.002(l), Education Code, as amended by this Act, applies beginning with the 2009-2010 school year.

Floor Amendment No.i1 on Third Reading

Amend SB 891 on third reading as follows:

(1)iiIn SECTION 2 of the bill, in added Section 25.114, Education Code (House committee report, page 3, line 3), strike "CLASSES." and substitute "CLASSES; CLASS SIZE. (a)".

(2)iiIn SECTION 2 of the bill, in added Section 25.114, Education Code (House committee report, page 3, between lines 13 and 14), immediately following Subdivision (2), insert the following:

(b)iiIf a district establishes a student to teacher ratio greater than 45 to 1 in a physical education class, the district shall specifically identify the manner in which the safety of the students will be maintained.

The amendments were read.

Senator Nelson moved to concur in the House amendments to SBi891.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1827 WITH HOUSE AMENDMENT

Senator Huffman called SBi1827 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

4242 81st Legislature — Regular Session 69th Day (Cont.)

Amendment

Amend SBi1827 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the constituting of certain sales of a used motor vehicle as a private disposition for purposes of Chapter 9, Business & Commerce Code.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubchapter B, Chapter 503, Transportation Code, is amended by adding Section 503.040 to read as follows:

Sec.i503.040.iiSALES OF CERTAIN USED MOTOR VEHICLES CONSTITUTE PRIVATE DISPOSITION. (a) This section applies only to the sale of a used motor vehicle that constitutes collateral by a secured party acting under Chapter 9, Business & Commerce Code, and occurs at an auction conducted by an independent motor vehicle dealer:

(1)iiat which neither the debtor nor the secured party is permitted to bid; and

(2)iifor which there has been no advertisement or public notice before the sale that specifically describes the collateral to be sold, other than the inclusion of the motor vehicle in a list of the vehicles to be offered at the auction made available to potential bidders at the auction.

(b)iiThe sale of the used motor vehicle constitutes a private disposition for purposes of Chapter 9, Business & Commerce Code.

SECTIONi2.iiThe change in law made by Section 503.040, Transportation Code, as added by this Act, applies only to a sale of collateral consisting of a used motor vehicle that occurs on or after the effective date of this Act. A sale of such collateral that occurs before the effective date of this Act is governed by the law applicable to the sale immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTIONi3.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator Huffman moved to concur in the House amendment to SBi1827.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1878 WITH HOUSE AMENDMENT

Senator Nelson called SBi1878 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 1878 (Senate engrossed version) in SECTION 1 of the bill as follows:

(1)iiIn added Section 2306.1092(b)(4)(A), Government Code (page 2, lines 12-14), strike "an advisory committee to the Department of Aging and Disability Services that promotes independence for older adults and persons with disabilities" and substitute "the Health and Human Services Commission Promoting Independence Advisory Committee".

Friday, May 29, 2009 SENATE JOURNAL 4243

(2)iiIn added Section 2306.1092(b)(5)(D), Government Code (page 2, line 21), between "nonprofit organizations" and the underlined semicolon, insert "that advocate for affordable housing and consumer-directed long-term services and support".

(3)iiIn added Section 2306.1092(c)(2), Government Code (page 3, line 5), strike "that integrate" and substitute "that coordinate integrated".

The amendment was read.

Senator Nelson moved to concur in the House amendment to SBi1878.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 2197 WITH HOUSE AMENDMENT

Senator Williams called SBi2197 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi2197 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to fees paid to a constable for serving civil process.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 86.021(d), Local Government Code, is amended to read as follows:

(d)iiRegardless of the Texas Rules of Civil Procedure, all civil process may be served by a constable in the constable's county or in a county contiguous to the constable's county, except that a constable who is a party to or interested in the outcome of a suit may not serve any process related to the suit. All civil process served by a constable at any time or place is presumed to be served in the constable's official capacity if under the law the constable may serve that process in the constable's official capacity. A constable may not under any circumstances retain a fee paid for serving civil process in the constable's official capacity other than the constable's regular salary or compensation. Any fee paid to a constable for serving civil process in the constable's official capacity shall be deposited with the county treasurer of the constable's county.

SECTIONi2.iiThe change in law made by this Act applies only to civil process served by a constable on or after the effective date of this Act. Civil process served by a constable before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTIONi3.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator Williams moved to concur in the House amendment to SBi2197.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

4244 81st Legislature — Regular Session 69th Day (Cont.)

SENATE BILL 839 WITH HOUSE AMENDMENT

Senator Hinojosa called SBi839 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi839 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the punishment for a capital felony committed by a juvenile whose case is transferred to criminal court.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 12.31, Penal Code, is amended to read as follows:

Sec.i12.31.iiCAPITAL FELONY. (a)iiAn individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice [institutional division] for life without parole or by death.iiAn individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice [institutional division] for:

(1)iilife, if the individual's case was transferred to the court under Section 54.02, Family Code; or

(2)iilife without parole.

(b)iiIn a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony.iiIn a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:

(1)iia sentence of life imprisonment is mandatory on conviction of the capital felony, if the case was transferred to the court under Section 54.02, Family Code; or

(2)iia sentence of life imprisonment without parole is mandatory on conviction of the capital felony.

SECTIONi2.iiSection 508.145, Government Code, is amended by adding Subsection (b) to read as follows:

(b)iiAn inmate serving a life sentence under Section 12.31(a)(1), Penal Code, for a capital felony is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years.

SECTIONi3.iiThe change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTIONi4.iiThis Act takes effect September 1, 2009.

Friday, May 29, 2009 SENATE JOURNAL 4245

The amendment was read.

Senator Hinojosa moved to concur in the House amendment to SBi839.

The motion prevailed by the following vote:iiYeasi30, Naysi1.

Nays:iiHuffman.

SENATE BILL 1526 WITH HOUSE AMENDMENT

Senator Shapleigh called SBi1526 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1526 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the composition, administration, and duties, including reporting requirements, of the Border Health Institute.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 151.002(b), Education Code, is amended to read as follows:

(b)iiThe institute shall operate in a manner that facilitates and assists the activities of international, national, regional, or local health-related institutions working in the Texas-Mexico border region [to:

[(1)iicreate and fund centers or component units within the institute to facilitate research in fields of study affecting public health in the border region, including research related to diabetes, Hispanic health issues, infectious diseases, emerging infections, environmental health issues, and children's health issues;

[(2)iideliver health care or provide health education to persons living in the border region; and

[(3)iiconduct and facilitate research in fields of study affecting public health in the border region, including research related to diabetes, Hispanic health issues, infectious diseases, emerging infections, environmental health issues, and children's health issues].

SECTIONi2.iiSection 151.003(a), Education Code, is amended to read as follows:

(a)iiSubject to Subsection (b), the [The] institute is [initially] composed of the following institutions:

(1)iiThe University of Texas at El Paso;

(2)iiTexas Tech University Health Sciences Center at El Paso;

(3)iiEl Paso Community College District;

(4)iiR. E. Thomason General Hospital;

(5)iiEl Paso City/County Health District;

(6)iiDepartment of State Health Services; and

(7)iiMedical Center of the Americas Foundation [The University of Texas Health Science Center at Houston, School of Public Health;

[(7)iiEl Paso County Medical Society;

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[(8)iiPaso del Norte Health Foundation; and

[(9)iithe Texas Department of Health].

SECTIONi3.iiSection 151.008, Education Code, is amended to read as follows:

Sec.i151.008.iiBIENNIAL [ANNUAL] REPORTING. (a) Not later than December 1 of each even-numbered [Each] year, each member of the institute shall provide a long-term strategic plan for that member to:

(1)iieach member of the governing board of the institute;

(2)ii[and to] each member of the legislature whose district includes any portion of a county where the Border Health Institute is established or operating; and

(3)iithe Texas Higher Education Coordinating Board [an annual audited financial statement and a status report of each project undertaken by the institute].

(b)iiThe long-term strategic plan for each member must include a statement of the member's goals and objectives for:

(1)iiproviding health care services to persons living in the border region;

(2)iiproviding health care education to persons living in the border region; and

(3)iiconducting research into issues affecting public health in the border region, including research related to:

(A)iidiabetes;

(B)iihealth issues of particular concern to persons of Hispanic descent;

(C)iiinfectious diseases;

(D)iiemerging infections;

(E)iitrauma care;

(F)iienvironmental health; and

(G)iichildren's health.

SECTIONi4.iiSections 151.004(d), 151.006, 151.007, and 151.010, Education Code, are repealed.

SECTIONi5.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Shapleigh moved to concur in the House amendment to SBi1526.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 643 WITH HOUSE AMENDMENTS

Senator Nelson called SBi643 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer, Senator Eltife in Chair, laid the bill and the House amendments before the Senate.

Amendment

Amend SBi643 by substituting in lieu thereof the following:

Friday, May 29, 2009 SENATE JOURNAL 4247

A BILL TO BE ENTITLED

AN ACT

relating to the protection and care of individuals with mental retardation; providing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 261.105, Family Code, is amended by adding Subsection (c-1) to read as follows:

(c-1)iiNotwithstanding Subsections (b) and (c), if a report under this section relates to a child with mental retardation receiving services in a state supported living center as defined by Section 531.002, Health and Safety Code, or the ICF-MR component of the Rio Grande State Center, the department shall proceed with the investigation of the report as provided by Section 261.404.

SECTIONi2.iiSection 261.109(b), Family Code, is amended to read as follows:

(b)iiAn offense under this section is a Class A [B] misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

SECTIONi3.iiSection 261.401(b), Family Code, is amended to read as follows:

(b)iiExcept as provided by Section 261.404, a [A] state agency that operates, licenses, certifies, or registers a facility in which children are located or provides oversight of a program that serves children shall make a prompt, thorough investigation of a report that a child has been or may be abused, neglected, or exploited in the facility or program.iiThe primary purpose of the investigation shall be the protection of the child.

SECTIONi4.iiSection 261.404, Family Code, is amended to read as follows:

Sec.i261.404.iiINVESTIGATIONS REGARDING CERTAIN CHILDREN WITH MENTAL ILLNESS OR [IN FACILITIES UNDER DEPARTMENT OF MENTAL HEALTH AND] MENTAL RETARDATION. (a)iiThe department shall, to the extent provided by this section, investigate a report of abuse, neglect, or exploitation of a child receiving services:

(1)iiin a facility operated by the [Texas] Department of Aging and Disability Services or a mental health facility operated by the Department of State [Mental] Health Services [and Mental Retardation];

(2)iiin or from a community center, a local mental health authority, or a local mental retardation authority; [or]

(3)iithrough a program providing services to that child by contract with a facility operated by the [Texas] Department of Aging and Disability Services, a mental health facility operated by the Department of State [Mental] Health Services [and Mental Retardation], a community center, a local mental health authority, or a local mental retardation authority;

(4)iifrom a provider of home and community-based services who contracts with the Department of Aging and Disability Services; or

(5)iiin a facility licensed under Chapter 252, Health and Safety Code.

4248 81st Legislature — Regular Session 69th Day (Cont.)

(b)iiThe department shall investigate the report under rules developed by the executive commissioner of the Health and Human Services Commission with the advice and assistance of [jointly between] the department, [and] the [Texas] Department of Aging and Disability Services, and the Department of State [Mental] Health Services [and Mental Retardation].

(c)iiIf a report under this section relates to a child with mental retardation receiving services in a state supported living center or the ICF-MR component of the Rio Grande State Center, the department shall, within one hour of receiving the report:

(1)iinotify the facility in which the child is receiving services of the allegations in the report;

(2)iiforward a copy of the initial intake report to the commission's office of inspector general for evaluation and investigation as provided by Subchapter D, Chapter 555, Health and Safety Code; and

(3)iiplace the department's investigation under this section on hold.

(d)iiThe department is required to proceed with and complete an investigation of a report related to a child described by Subsection (c) only if, not more than 24 hours after the department forwards a report to the commission's office of inspector general, the office of inspector general notifies the department that the office of inspector general does not have cause to investigate a possible criminal offense related to the report.

(e)iiThe department may provide assistance, including assistance in conducting interviews, to the commission's office of inspector general when the office of inspector general conducts an investigation of a report of abuse, neglect, or exploitation at a state supported living center or the ICF-MR component of the Rio Grande State Center.

(f)iiIf during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a child with mental retardation described by Subsection (c) has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker or supervisor shall:

(1)iiimmediately notify the commission's office of inspector general;

(2)iiin a timely manner provide the commission's office of inspector general with the evidence collected by the department during the investigation; and

(3)iiplace the department's investigation on hold and proceed with the investigation only in accordance with Subsection (d).

(g)iiThe definitions of "abuse" and "neglect" prescribed by Section 261.001 do not apply to an investigation under this section.

(h)i[(d)]iiIn this section:

(1)ii[,] "Community [community] center," "local mental health authority," [and] "local mental retardation authority," and "state supported living center" have the meanings assigned by Section 531.002, Health and Safety Code.

(2)ii"Provider" has the meaning assigned by Section 48.351, Human Resources Code.

SECTIONi5.iiSubchapter F, Chapter 411, Government Code, is amended by adding Section 411.1144 to read as follows:

Friday, May 29, 2009 SENATE JOURNAL 4249

Sec.i411.1144.iiACCESS TO CRIMINAL HISTORY RECORD INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT STATE SUPPORTED LIVING CENTERS. (a) The Department of State Health Services and the Department of Aging and Disability Services are entitled to obtain from the department criminal history record information maintained by the department that relates to a person:

(1)iiwho is:

(A)iian applicant for employment with the agency;

(B)iian employee of the agency;

(C)iia volunteer with the agency; or

(D)iian applicant for a volunteer position with the agency; and

(2)iiwho would be placed in direct contact with a resident or client of a state supported living center or the ICF-MR component of the Rio Grande State Center.

(b)iiCriminal history record information obtained by an agency under Subsection (a) may not be released or disclosed to any person except:

(1)iion court order;

(2)iiwith the consent of the person who is the subject of the criminal history record information;

(3)iifor purposes of an administrative hearing held by the agency concerning the person who is the subject of the criminal history record information; or

(4)iias provided by Subsection (c).

(c)iiAn agency is not prohibited from releasing criminal history record information obtained under Subsection (a) or (d) to the person who is the subject of the criminal history record information.

(d)iiSubject to Section 411.087, the Department of State Health Services and the Department of Aging and Disability Services are entitled to:

(1)iiobtain through the Federal Bureau of Investigation criminal history record information maintained or indexed by that bureau that pertains to a person described by Subsection (a); and

(2)iiobtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to a person described by Subsection (a).

(e)iiThis section does not prohibit an agency from obtaining and using criminal history record information as provided by other law.

SECTIONi6.iiChapter 531, Government Code, is amended by adding Subchapter U to read as follows:

SUBCHAPTER U. MORTALITY REVIEW FOR CERTAIN INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES

Sec.i531.851.iiMORTALITY REVIEW. (a)iiThe executive commissioner shall establish an independent mortality review system to review the death of a person with a developmental disability who, at the time of the person's death:

(1)iiresided in or received services from:

(A)iian intermediate care facility for persons with mental retardation (ICF-MR) operated or licensed by the Department of Aging and Disability Services or a community center; or

(B)iithe ICF-MR component of the Rio Grande State Center; or

4250 81st Legislature — Regular Session 69th Day (Cont.)

(2)iireceived residential assistance through a Section 1915(c) waiver program serving individuals who are eligible for ICF-MR services in a residence in which residential assistance is provided to three or more persons and in which the waiver program provider has a property interest.

(b)iiA review under this subchapter must be conducted in addition to any review conducted by the facility in which the person resided or the facility, agency, or provider from which the person received services. A review under this subchapter must be conducted after any investigation of alleged or suspected abuse, neglect, or exploitation is completed.

(c)iiThe executive commissioner shall contract with a patient safety organization certified in accordance with 42 C.F.R. Part 3, as effective on January 19, 2009, to conduct independent mortality reviews required by this subchapter. The contract must require the patient safety organization to conduct an independent mortality review using a team consisting of:

(1)iia physician with expertise regarding the medical treatment of individuals with mental retardation;

(2)iia registered nurse with expertise regarding the medical treatment of individuals with mental retardation;

(3)iia clinician or other professional with expertise in the delivery of services and supports for individuals with mental retardation; and

(4)iiany other appropriate person as provided by the executive commissioner.

(d)iiThe executive commissioner shall adopt rules regarding the manner in which the death of a person described by Subsection (a) must be reported to the patient safety organization by a facility or waiver program provider described by that subsection.

(e)iiTo ensure consistency across mortality review systems, a review under this section must collect information consistent with the information required to be collected by any other independent mortality review process established specifically for persons with mental retardation.

Sec.i531.852.iiACCESS TO INFORMATION. (a) A patient safety organization may request information and records regarding a deceased person as necessary to carry out the patient safety organization's duties. Records and information that may be requested under this section include:

(1)iimedical, dental, and mental health care information; and

(2)iiinformation and records maintained by any state or local government agency, including:

(A)iia birth certificate;

(B)iilaw enforcement investigative data;

(C)iimedical examiner investigative data;

(D)iijuvenile court records;

(E)iiparole and probation information and records; and

(F)iiadult or child protective services information and records.

(b)iiOn request of the patient safety organization, the custodian of the relevant information and records relating to a deceased person shall provide those records to the patient safety organization at no charge.

Friday, May 29, 2009 SENATE JOURNAL 4251

Sec.i531.853.iiMORTALITY REVIEW REPORT. The patient safety organization shall, to the extent allowed by federal law, submit:

(1)iito the Department of Aging and Disability Services, the Department of Family and Protective Services, the office of independent ombudsman for state supported living centers, and the commission's office of inspector general a report of the findings of the mortality review; and

(2)iisemiannually to the governor, the lieutenant governor, the speaker of the house of representatives, and the standing committees of the senate and house of representatives with primary jurisdiction over the Department of Aging and Disability Services a report that contains:

(A)iiaggregate information regarding the deaths for which the patient safety organization performed an independent mortality review;

(B)iitrends in the causes of death identified by the patient safety organization; and

(C)iiany suggestions for system-wide improvements to address conditions that contributed to deaths reviewed by the patient safety organization.

Sec.i531.854.iiUSE AND PUBLICATION RESTRICTIONS; CONFIDENTIALITY. (a) The commission may use or publish information under this subchapter only to advance statewide practices regarding the treatment and care of individuals with developmental disabilities. A summary of the data in the patient safety organization's reports or a statistical compilation of data reports may be released by the commission for general publication if the summary or statistical compilation does not contain any information that would permit the identification of an individual or that is patient safety work product.

(b)iiInformation and records acquired by the patient safety organization in the exercise of its duties under this subchapter are confidential and exempt from disclosure under the open records law, Chapter 552, and may be disclosed only as necessary to carry out the patient safety organization's duties.

(c)iiThe identity of a person whose death was reviewed in accordance with this subchapter is confidential and may not be revealed.

(d)iiThe identity of a health care provider or the name of a facility or agency that provided services to or was the residence of a person whose death was reviewed in accordance with this subchapter is confidential and may not be revealed.

(e)iiReports, information, statements, memoranda, and other information furnished under this subchapter and any findings or conclusions resulting from a review by the patient safety organization are privileged.

Sec.i531.855.iiLIMITATION ON LIABILITY. A health care provider or other person is not civilly or criminally liable for furnishing information to the patient safety organization or to the commission for use by the patient safety organization in accordance with this subchapter unless the person acted in bad faith or knowingly provided false information to the patient safety organization or the commission.

SECTIONi7.iiSubchapter B, Chapter 252, Health and Safety Code, is amended by adding Section 252.0311 to read as follows:

4252 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i252.0311.iiPERSON INELIGIBLE FOR LICENSE. (a) In this section, "controlling person" means a person who, acting alone or with others, has the ability to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of a facility or a person who operates a facility. The term includes:

(1)iia management company or other business entity that operates or contracts with others for the operation of a facility;

(2)iia person who is a controlling person of a management company or other business entity that operates a facility or that contracts with another person for the operation of a facility; and

(3)iiany other individual who, because of a personal, familial, or other relationship with the owner, manager, or provider of a facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility.

(b)iiA controlling person described by Subsection (a)(3) does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of a facility.

(c)iiThe executive commissioner of the Health and Human Services Commission may adopt rules that specify the ownership interests and other relationships that qualify a person as a controlling person.

(d)iiA person is not eligible for a license or to renew a license if the applicant, a controlling person with respect to the applicant, or an administrator or chief financial officer of the applicant has been convicted of an offense that would bar a person's employment at a facility in accordance with Chapter 250.

SECTIONi8.iiSection 252.039, Health and Safety Code, is amended to read as follows:

Sec.i252.039.iiPOSTING. Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors:

(1)iithe license issued under this chapter;

(2)iia sign prescribed by the department that specifies complaint procedures established under this chapter or rules adopted under this chapter and that specifies how complaints may be registered with the department;

(3)iia notice in a form prescribed by the department stating that inspection and related reports are available at the facility for public inspection and providing the department's toll-free telephone number that may be used to obtain information concerning the facility;

(4)iia concise summary of the most recent inspection report relating to the facility; [and]

(5)iia notice providing instructions for reporting an allegation of abuse, neglect, or exploitation to the Department of Family and Protective Services; and

(6)iia notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by Sections 252.132 and 252.133.

Friday, May 29, 2009 SENATE JOURNAL 4253

SECTIONi9.iiThe heading to Subchapter E, Chapter 252, Health and Safety Code, is amended to read as follows:

SUBCHAPTERiE.iiINVESTIGATIONS [REPORTS] OF ABUSE,

[AND] NEGLECT, AND EXPLOITATION AND REPORTS OF RETALIATION

SECTIONi10.iiSections 252.121, 252.122, 252.125, and 252.126, Health and Safety Code, are amended to read as follows:

Sec.i252.121.iiAUTHORITY TO RECEIVE REPORTS AND INVESTIGATE [DEFINITION]. (a) A person, including an owner or employee of a facility, who has cause to believe that [In this subchapter, "designated agency" means an agency designated by a court to be responsible for the protection of] a resident is being or has been subjected to [who is the subject of a report of] abuse, [or] neglect, or exploitation shall report the suspected abuse, neglect, or exploitation to the Department of Family and Protective Services, as required by Chapter 48, Human Resources Code, or Chapter 261, Family Code, as appropriate. The Department of Family and Protective Services shall investigate the allegation of abuse, neglect, or exploitation in the manner provided by Chapter 48, Human Resources Code, or Section 261.404, Family Code, as applicable.

(b)iiIf the department receives a report of suspected abuse, neglect, or exploitation of a resident of a facility licensed under this chapter, the department shall immediately refer the report to the Department of Family and Protective Services for investigation.

Sec.i252.122.iiNOTIFICATION OF DUTY TO REPORT [REPORTING OF] ABUSE, [AND] NEGLECT, AND EXPLOITATION. [(a) A person, including an owner or employee of a facility, who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse or neglect caused by another person shall report the abuse or neglect to the department, to a designated agency, or to both the department and the designated agency, as specified in department rules.

[(b)]iiEach facility shall require each employee of the facility, as a condition of employment with the facility, to sign a statement that the employee realizes that the employee may be criminally liable for failure to report abuse, [or] neglect, or exploitation.

[(c)iiA person shall make an oral report immediately on learning of abuse or neglect and shall make a written report to the same agency not later than the fifth day after the oral report is made.]

Sec.i252.125.iiIMMEDIATE REMOVAL TO PROTECT RESIDENT [INVESTIGATION AND REPORT OF RECEIVING AGENCY]. [(a) The department or the designated agency shall make a thorough investigation promptly after receiving either the oral or written report.

[(b)iiThe primary purpose of the investigation is the protection of the resident.

[(c)iiIn the investigation, the department or the designated agency shall determine:

[(1)iithe nature, extent, and cause of the abuse or neglect;

[(2)iithe identity of the person responsible for the abuse or neglect;

[(3)iithe names and conditions of the other residents;

[(4)iian evaluation of the persons responsible for the care of the residents;

4254 81st Legislature — Regular Session 69th Day (Cont.)

[(5)iithe adequacy of the facility environment; and

[(6)iiany other information required by the department.

[(d)iiThe investigation may include a visit to the resident's facility and an interview with the resident, if considered appropriate by the department.

[(e)iiIf the department attempts to carry out an on-site investigation and it is shown that admission to the facility or any place where a resident is located cannot be obtained, a probate or county court shall order the person responsible for the care of the resident or the person in charge of a place where the resident is located to allow admission for the investigation and any interview with the resident.

[(f)]iiBefore the completion of the investigation by the Department of Family and Protective Services, the department shall file a petition for temporary care and protection of a [the] resident if the department determines, based on information provided to the department by the Department of Family and Protective Services, that immediate removal is necessary to protect the resident from further abuse, [or] neglect, or exploitation.

[(g)iiThe department or the designated agency shall make a complete written report of the investigation and submit the report and its recommendations to the district attorney and the appropriate law enforcement agency and, if necessary, to the department on the department's request.]

Sec.i252.126.iiCONFIDENTIALITY; DISCLOSURE OF INVESTIGATION REPORT. (a) A report, record, or working paper used or developed in an investigation made under this subchapter is confidential and may be disclosed only as provided by Chapter 48, Human Resources Code, Chapter 261, Family Code, or this section [for purposes consistent with the rules adopted by the board or the designated agency].

(b)iiThe Department of Family and Protective Services shall provide a copy of a completed investigation report to the department and may disclose information related to the investigation at any time to the department as necessary to protect a resident of a facility from abuse, neglect, or exploitation.

SECTIONi11.iiSection 252.132(h), Health and Safety Code, is amended to read as follows:

(h)iiEach facility shall require each employee of the facility, as a condition of employment with the facility, to sign a statement that the employee understands the employee's rights under this section. The statement must be part of the statement required under Section 252.122 [252.122(b)]. If a facility does not require an employee to read and sign the statement, the periods prescribed by Subsection (e) do not apply, and the petitioner must bring suit not later than the second anniversary of the date on which the person's employment is suspended or terminated.

SECTIONi12.iiSection 253.001(4), Health and Safety Code, is amended to read as follows:

(4)ii"Facility" means:

(A)iia facility:

(i)iilicensed by the department; or

(ii)iilicensed under Chapter 252;

(B)iian adult foster care provider that contracts with the department; or

(C)iia home and community support services agency licensed by the department under Chapter 142.

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SECTIONi13.iiSection 253.002, Health and Safety Code, is amended to read as follows:

Sec.i253.002.iiINVESTIGATION BY DEPARTMENT. (a) If the department receives a report that an employee of a facility, other than a facility licensed under Chapter 252, committed reportable conduct, the department shall investigate the report to determine whether the employee has committed the reportable conduct.

(b)iiIf the Department of Aging and Disability Services receives a report that an employee of a facility licensed under Chapter 252 committed reportable conduct, the department shall forward that report to the Department of Family and Protective Services for investigation.

SECTIONi14.iiSection 531.002(17), Health and Safety Code, is amended to read as follows:

(17)ii"State supported living center [school]" means a state-supported and structured residential facility operated by the Department of Aging and Disability Services [department] to provide to clients with mental retardation a variety of services, including medical treatment, specialized therapy, and training in the acquisition of personal, social, and vocational skills.

SECTIONi15.iiChapter 531, Health and Safety Code, is amended by adding Section 531.0021 to read as follows:

Sec.i531.0021.iiREFERENCE TO STATE SCHOOL OR SUPERINTENDENT. (a) A reference in law to a "state school" means a state supported living center.

(b)iiA reference in law to a "superintendent," to the extent the term is intended to refer to the person in charge of a state supported living center, means the director of a state supported living center.

SECTIONi16.iiSection 532.001(b), Health and Safety Code, is amended to read as follows:

(b)iiThe Department of Aging and Disability Services and the Department of State Health Services [department] also include [includes] community services operated by those departments [the department] and the following facilities, as appropriate:

(1)iithe central office of each [the] department;

(2)iithe Austin State Hospital;

(3)iithe Big Spring State Hospital;

(4)iithe Kerrville State Hospital;

(5)iithe Rusk State Hospital;

(6)iithe San Antonio State Hospital;

(7)iithe Terrell State Hospital;

(8)iithe North Texas State Hospital;

(9)iithe Abilene State Supported Living Center [School];

(10)iithe Austin State Supported Living Center [School];

(11)iithe Brenham State Supported Living Center [School];

(12)iithe Corpus Christi State Supported Living Center [School];

(13)iithe Denton State Supported Living Center [School];

(14)iithe Lubbock State Supported Living Center [School];

(15)iithe Lufkin State Supported Living Center [School];

(16)iithe Mexia State Supported Living Center [School];

4256 81st Legislature — Regular Session 69th Day (Cont.)

(17)iithe Richmond State Supported Living Center [School];

(18)iithe San Angelo State Supported Living Center [School];

(19)iithe San Antonio State Supported Living Center [School];

(20)iithe El Paso State Supported Living Center;

(21)iithe Rio Grande State Center; and

(22)iithe Waco Center for Youth.

SECTIONi17.iiSection 551.022, Health and Safety Code, is amended by adding Subsection (e) to read as follows:

(e)iiThis section does not apply to a state supported living center or the director of a state supported living center.

SECTIONi18.iiSubchapter B, Chapter 551, Health and Safety Code, is amended by adding Section 551.0225 to read as follows:

Sec.i551.0225.iiPOWERS AND DUTIES OF STATE SUPPORTED LIVING CENTER DIRECTOR. (a) The director of a state supported living center is the administrative head of the center.

(b)iiThe director of a state supported living center has the custody of and responsibility to care for the buildings, grounds, furniture, and other property relating to the center.

(c)iiThe director of a state supported living center shall:

(1)iioversee the admission and discharge of residents and clients;

(2)iikeep a register of all residents and clients admitted to or discharged from the center;

(3)iiensure that the civil rights of residents and clients of the center are protected;

(4)iiensure the health, safety, and general welfare of residents and clients of the center;

(5)iisupervise repairs and improvements to the center;

(6)iiensure that center money is spent judiciously and economically;

(7)iikeep an accurate and detailed account of all money received and spent, stating the source of the money and on whom and the purpose for which the money is spent;

(8)iikeep a full record of the center's operations;

(9)iimonitor the arrival and departure of individuals to and from the center as appropriate to ensure the safety of residents; and

(10)iiensure that residents' family members and legally authorized representatives are notified of serious events that may indicate problems in the care or treatment of residents.

(d)iiIn accordance with department rules and operating procedures, the director of a state supported living center may:

(1)iiestablish policy to govern the center that the director considers will best promote the residents' interest and welfare;

(2)iihire subordinate officers, teachers, and other employees and set their salaries, in the absence of other law; and

(3)iidismiss a subordinate officer, teacher, or employee.

SECTIONi19.iiSubtitle B, Title 7, Health and Safety Code, is amended by adding Chapter 555 to read as follows:

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CHAPTER 555. STATE SUPPORTED LIVING CENTERS

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i555.001.iiDEFINITIONS. In this chapter:

(1)ii"Alleged offender resident" means a person with mental retardation who:

(A)iiwas committed to or transferred to a state supported living center under Chapter 46B or 46C, Code of Criminal Procedure, as a result of being charged with or convicted of a criminal offense; or

(B)iiis a child committed to or transferred to a state supported living center under Chapter 55, Family Code, as a result of being alleged by petition or having been found to have engaged in delinquent conduct constituting a criminal offense.

(2)ii"Center" means the state supported living centers and the ICF-MR component of the Rio Grande State Center.

(3)ii"Center employee" means an employee of a state supported living center or the ICF-MR component of the Rio Grande State Center.

(4)ii"Client" means a person with mental retardation who receives ICF-MR services from a state supported living center or the ICF-MR component of the Rio Grande State Center.

(5)ii"Commission" means the Health and Human Services Commission.

(6)ii"Complaint" means information received by the office of independent ombudsman regarding a possible violation of a right of a resident or client and includes information received regarding a failure by a state supported living center or the ICF-MR component of the Rio Grande State Center to comply with the department's policies and procedures relating to the community living options information process.

(7)ii"Department" means the Department of Aging and Disability Services.

(8)ii"Direct care employee" means a center employee who provides direct delivery of services to a resident or client.

(9)ii"Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(10)ii"High-risk alleged offender resident" means an alleged offender resident who has been determined under Section 555.003 to be at risk of inflicting substantial physical harm to another.

(11)ii"Independent ombudsman" means the individual who has been appointed to the office of independent ombudsman for state supported living centers.

(12)ii"Inspector general" means the Health and Human Services Commission's office of inspector general.

(13)ii"Interdisciplinary team" has the meaning assigned by Section 591.003.

(14)ii"Office" means the office of independent ombudsman for state supported living centers established under Subchapter C.

(15)ii"Resident" means a person with mental retardation who resides in a state supported living center or the ICF-MR component of the Rio Grande State Center.

(16)ii"State supported living center" has the meaning assigned by Section 531.002.

4258 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i555.002.iiFORENSIC STATE SUPPORTED LIVING CENTER. (a) The department shall establish a separate forensic state supported living center for the care apart from other clients and residents of high-risk alleged offender residents. The department shall designate the Mexia State Supported Living Center for this purpose.

(b)iiIn establishing the forensic state supported living center, the department shall:

(1)iitransfer an alleged offender resident already residing in a center who is classified as a high-risk alleged offender resident in accordance with Section 555.003, to the forensic state supported living center;

(2)iiplace high-risk alleged offender residents in separate homes at the forensic state supported living center based on whether an individual is:

(A)iian adult or a person younger than 18 years of age; or

(B)iimale or female;

(3)iiplace all alleged offender residents, at the time the residents are initially committed to or transferred to a center, in the forensic state supported living center until a determination under Section 555.003 has been completed;

(4)iitransfer all residents who request a transfer, other than high-risk alleged offender residents and alleged offender residents for whom a determination has not been completed under Section 555.003, from the forensic state supported living center; and

(5)iiprovide training regarding the service delivery system for high-risk alleged offender residents to direct care employees of the forensic state supported living center.

(c)iiAn alleged offender resident committed to the forensic state supported living center, for whom a determination under Section 555.003 has been completed and who is not classified as a high-risk alleged offender resident, may request a transfer to another center in accordance with Subchapter B, Chapter 594.

(d)iiThe department shall ensure that the forensic state supported living center:

(1)iicomplies with the requirements for ICF-MR certification under the Medicaid program, as appropriate; and

(2)iihas additional center employees, including direct care employees, to protect the safety of center employees, residents, and the community.

(e)iiThe department shall collect data regarding the commitment of alleged offender residents to the forensic state supported living center, including any offense with which an alleged offender resident is charged, the location of the committing court, whether the alleged offender resident has previously been in the custody of the Texas Youth Commission or the Department of Family and Protective Services, and whether the alleged offender resident receives mental health services or previously received any services under a Section 1915(c) waiver program. The department shall annually submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the standing committees of the legislature with primary subject matter jurisdiction over state supported living centers a report of the information collected under this section. The report may not contain personally identifiable information for any person in the report.

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Sec.i555.003.iiDETERMINATION OF HIGH-RISK ALLEGED OFFENDER STATUS. (a) Not later than the 30th day after the date an alleged offender resident is first committed to the forensic state supported living center and, if the resident is classified as a high-risk alleged offender resident, annually on the anniversary of that date, an interdisciplinary team shall determine whether the alleged offender resident is at risk of inflicting substantial physical harm to another and should be classified or remain classified as a high-risk alleged offender resident.

(b)iiIn making a determination under Subsection (a), the interdisciplinary team shall document and collect evidence regarding the reason the alleged offender resident is determined to be at risk of inflicting substantial physical harm to another.

(c)iiThe interdisciplinary team shall provide the team's findings regarding whether the alleged offender resident is at risk of inflicting substantial physical harm to another and the documentation and evidence collected under this section to:

(1)iithe department;

(2)iithe director of the forensic state supported living center;

(3)iithe independent ombudsman;

(4)iithe alleged offender resident or the alleged offender resident's parent if the resident is a minor; and

(5)iithe alleged offender resident's legally authorized representative.

(d)iiAn alleged offender resident who is determined to be at risk of inflicting substantial physical harm to another and is classified as a high-risk alleged offender resident is entitled to an administrative hearing with the department to contest that determination and classification.

(e)iiAn individual who has exhausted the administrative remedies provided by Subsection (d) may bring a suit to appeal the determination and classification in district court in Travis County. The suit must be filed not later than the 30th day after the date the final order in the administrative hearing is provided to the individual. An appeal under this section is by trial de novo.

[Sections 555.004-555.020 reserved for expansion]

SUBCHAPTER B. POWERS AND DUTIES

Sec.i555.021.iiREQUIRED CRIMINAL HISTORY CHECKS FOR EMPLOYEES AND VOLUNTEERS OF CENTERS. (a) The department and the Department of State Health Services shall perform a state and federal criminal history background check on a person:

(1)iiwho is:

(A)iian applicant for employment with the agency;

(B)iian employee of the agency;

(C)iia volunteer with the agency; or

(D)iian applicant for a volunteer position with the agency; and

(2)iiwho would be placed in direct contact with a resident or client.

(b)iiThe department and the Department of State Health Services shall require a person described by Subsection (a) to submit fingerprints in a form and of a quality acceptable to the Department of Public Safety and the Federal Bureau of Investigation for use in conducting a criminal history background check.

(c)iiEach agency shall obtain electronic updates from the Department of Public Safety of arrests and convictions of a person:

4260 81st Legislature — Regular Session 69th Day (Cont.)

(1)iifor whom the agency performs a background check under Subsection (a); and

(2)iiwho remains an employee or volunteer of the agency and continues to have direct contact with a resident or client.

Sec.i555.022.iiDRUG TESTING; POLICY. (a) The executive commissioner shall adopt a policy regarding random testing and reasonable suspicion testing for the illegal use of drugs by a center employee.

(b)iiThe policy adopted under Subsection (a) must provide that a center employee may be terminated solely on the basis of a single positive test for illegal use of a controlled substance. The policy must establish an appeals process for a center employee who tests positively for illegal use of a controlled substance.

(c)iiThe director of a state supported living center or the superintendent of the Rio Grande State Center shall enforce the policy adopted under Subsection (a) by performing necessary drug testing of the center employees for the use of a controlled substance as defined by Section 481.002.

(d)iiTesting under this section may be performed on a random basis or on reasonable suspicion of the use of a controlled substance.

(e)iiFor purposes of this section, a report made under Section 555.023 is considered reasonable suspicion of the use of a controlled substance.

Sec.i555.023.iiREPORTS OF ILLEGAL DRUG USE; POLICY. The executive commissioner shall adopt a policy requiring a center employee who knows or reasonably suspects that another center employee is illegally using or under the influence of a controlled substance, as defined by Section 481.002, to report that knowledge or reasonable suspicion to the director of the state supported living center or the superintendent of the Rio Grande State Center, as appropriate.

Sec.i555.024.iiCENTER EMPLOYEE TRAINING. (a) Before a center employee begins to perform the employee's duties without direct supervision, the department shall provide the employee with competency training and a course of instruction about the general duties of a center employee. The department shall ensure the basic center employee competency course focuses on:

(1)iithe uniqueness of the individuals the center employee serves;

(2)iitechniques for improving quality of life for and promoting the health and safety of individuals with mental retardation; and

(3)iithe conduct expected of center employees.

(b)iiThe department shall ensure the training required by Subsection (a) provides instruction and information regarding the following topics:

(1)iithe general operation and layout of the center at which the person is employed, including armed intruder lockdown procedures;

(2)iian introduction to mental retardation;

(3)iian introduction to autism;

(4)iian introduction to mental illness and dual diagnosis;

(5)iithe rights of individuals with mental retardation who receive services from the department;

(6)iirespecting personal choices made by residents and clients;

(7)iithe safe and proper use of restraints;

(8)iirecognizing and reporting:

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(A)iievidence of abuse, neglect, and exploitation of individuals with mental retardation;

(B)iiunusual incidents;

(C)iireasonable suspicion of illegal drug use in the workplace;

(D)iiworkplace violence; or

(E)iisexual harassment in the workplace;

(9)iipreventing and treating infection;

(10)iifirst aid;

(11)iicardiopulmonary resuscitation;

(12)iithe Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191); and

(13)iithe rights of center employees.

(c)iiIn addition to the training required by Subsection (a) and before a direct care employee begins to perform the direct care employee's duties without direct supervision, the department shall provide a direct care employee with training and instructional information regarding implementation of the interdisciplinary treatment program for each resident or client for whom the direct care employee will provide direct care, including the following topics:

(1)iiprevention and management of aggressive or violent behavior;

(2)iiobserving and reporting changes in behavior, appearance, or health of residents and clients;

(3)iipositive behavior support;

(4)iiemergency response;

(5)iiperson-directed plans;

(6)iiself-determination;

(7)iiseizure safety;

(8)iitechniques for:

(A)iilifting;

(B)iipositioning; and

(C)iimovement and mobility;

(9)iiworking with aging residents and clients;

(10)iiassisting residents and clients:

(A)iiwho have a visual impairment;

(B)iiwho have a hearing deficit; or

(C)iiwho require the use of adaptive devices and specialized equipment;

(11)iicommunicating with residents and clients who use augmentative and alternative devices for communication;

(12)iiassisting residents and clients with personal hygiene;

(13)iirecognizing appropriate food textures;

(14)iiusing proper feeding techniques to assist residents and clients with meals;

(15)iiphysical and nutritional management plans; and

(16)iihome and community-based services, including the principles of community inclusion and participation and the community living options information process.

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(d)iiThe executive commissioner shall adopt rules that require a center to provide refresher training courses to direct care employees on a regular basis.

(e)iiA center may allow an employee of an intermediate care facility for persons with mental retardation licensed by the department, an employee of a person licensed or certified to provide Section 1915(c) waiver program services, or another employee or professional involved in the provision of services to persons with mental retardation to receive information and training under this section, as appropriate. The center may charge an administrative fee in an amount not to exceed the cost of providing the information or training.

Sec.i555.025.iiVIDEO SURVEILLANCE. (a) In this section, "private space" means a place in a center in which a resident or client has a reasonable expectation of privacy, including:

(1)iia bedroom;

(2)iia bathroom;

(3)iia place in which a resident or client receives medical or nursing services;

(4)iia place in which a resident or client meets privately with visitors; or

(5)iia place in which a resident or client privately makes phone calls.

(b)iiThe department shall install and operate video surveillance equipment in a center for the purpose of detecting and preventing the exploitation or abuse of residents and clients.

(c)iiThe department may not install or operate video surveillance equipment in a private space or in a location in which video surveillance equipment can capture images within a private space.

(d)iiThe department shall ensure that the use of video surveillance equipment under this section complies with federal requirements for ICF-MR certification.

[Sections 555.026-555.050 reserved for expansion]

SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE SUPPORTED LIVING CENTERS

Sec.i555.051.iiESTABLISHMENT; PURPOSE. The office of independent ombudsman is established for the purpose of investigating, evaluating, and securing the rights of residents and clients of state supported living centers and the ICF-MR component of the Rio Grande State Center. The office is administratively attached to the department. The department shall provide administrative support and resources to the office as necessary for the office to perform its duties.

Sec.i555.052.iiINDEPENDENCE. The independent ombudsman in the performance of the ombudsman's duties and powers under this subchapter acts independently of the department.

Sec.i555.053.iiAPPOINTMENT OF INDEPENDENT OMBUDSMAN. (a) The governor shall appoint the independent ombudsman.

(b)iiThe governor may appoint as independent ombudsman only an individual with at least five years of experience managing and ensuring the quality of care and services provided to individuals with mental retardation.

Sec.i555.054.iiASSISTANT OMBUDSMEN. (a) The independent ombudsman shall:

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(1)iihire assistant ombudsmen to perform, under the direction of the independent ombudsman, the same duties and exercise the same powers as the independent ombudsman; and

(2)iistation an assistant ombudsman at each center.

(b)iiThe independent ombudsman may hire as assistant ombudsmen only individuals with at least five years of experience ensuring the quality of care and services provided to individuals with mental retardation.

Sec.i555.055.iiCONFLICT OF INTEREST. A person may not serve as independent ombudsman or as an assistant ombudsman if the person or the person's spouse:

(1)iiis employed by or participates in the management of a business entity or other organization receiving funds from the department;

(2)iiowns or controls, directly or indirectly, any interest in a business entity or other organization receiving funds from the department; or

(3)iiis required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities or compensation on behalf of a profession related to the operation of the department.

Sec.i555.056.iiREPORT. (a) The independent ombudsman shall submit on a biannual basis to the governor, the lieutenant governor, the speaker of the house of representatives, and the chairs of the standing committees of the senate and the house of representatives with primary jurisdiction over state supported living centers a report that is both aggregated and disaggregated by individual center and describes:

(1)iithe work of the independent ombudsman;

(2)iithe results of any review or investigation undertaken by the independent ombudsman, including a review or investigation of services contracted by the department;

(3)iiany recommendations that the independent ombudsman has in relation to the duties of the independent ombudsman; and

(4)iiany recommendations that the independent ombudsman has for systemic improvements needed to decrease incidents of abuse, neglect, or exploitation at an individual center or at all centers.

(b)iiThe independent ombudsman shall ensure that information submitted in a report under Subsection (a) does not permit the identification of an individual.

(c)iiThe independent ombudsman shall immediately report to the governor, the lieutenant governor, and the speaker of the house of representatives any particularly serious or flagrant:

(1)iicase of abuse or injury of a resident or client about which the independent ombudsman is made aware;

(2)iiproblem concerning the administration of a center program or operation; or

(3)iiinterference by a center, the department, or the commission, other than actions by the commission's office of inspector general in accordance with the office's duties, with an investigation conducted by the independent ombudsman.

4264 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i555.057.iiCOMMUNICATION AND CONFIDENTIALITY. (a) The department shall allow any resident or client, authorized representative of a resident or client, family member of a resident or client, or other interested party to communicate with the independent ombudsman or an assistant ombudsman. The communication:

(1)iimay be in person, by mail, or by any other means; and

(2)iiis confidential and privileged.

(b)iiThe records of the independent ombudsman are confidential, except that the independent ombudsman shall:

(1)iishare with the Department of Family and Protective Services a communication that may involve the abuse, neglect, or exploitation of a resident or client;

(2)iishare with the inspector general a communication that may involve an unusual incident;

(3)iishare with the regulatory services division of the department a communication that may involve a violation of an ICF-MR standard or condition of participation; and

(4)iidisclose the ombudsman's nonprivileged records if required by a court order on a showing of good cause.

(c)iiThe independent ombudsman may make reports relating to an investigation by the independent ombudsman public after the investigation is complete but only if the name and any other personally identifiable information of a resident or client, legally authorized representative of a resident or client, family member of a resident or client, center, center employee, or other individual are redacted from the report and remain confidential. The independent ombudsman may provide an unredacted report to the center involved in the investigation, the department, the Department of Family and Protective Services, and the inspector general.

(d)iiThe name, address, or other personally identifiable information of a person who files a complaint with the office of independent ombudsman, information generated by the office of independent ombudsman in the course of an investigation, and confidential records obtained by the office of independent ombudsman are confidential and not subject to disclosure under Chapter 552, Government Code, except as provided by this section.

Sec.i555.058.iiPROMOTION OF AWARENESS OF OFFICE. The independent ombudsman shall promote awareness among the public, residents, clients, and center employees of:

(1)iihow the office may be contacted;

(2)iithe purpose of the office; and

(3)iithe services the office provides.

Sec.i555.059.iiDUTIES AND POWERS. (a) The independent ombudsman shall:

(1)iievaluate the process by which a center investigates, reviews, and reports an injury to a resident or client or an unusual incident;

(2)iievaluate the delivery of services to residents and clients to ensure that the rights of residents and clients are fully observed, including ensuring that each center conducts sufficient unannounced patrols;

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(3)iiimmediately refer a complaint alleging the abuse, neglect, or exploitation of a resident or client to the Department of Family and Protective Services;

(4)iirefer a complaint alleging employee misconduct that does not involve abuse, neglect, or exploitation or a possible violation of an ICF-MR standard or condition of participation to the regulatory services division of the department;

(5)iirefer a complaint alleging an unusual incident to the inspector general;

(6)iiconduct investigations of complaints, other than complaints alleging criminal offenses or the abuse, neglect, or exploitation of a resident or client, if the office determines that:

(A)iia resident or client or the resident's or client's family may be in need of assistance from the office; or

(B)iia complaint raises the possibility of a systemic issue in the center's provision of services;

(7)iiconduct an annual audit of each center's policies, practices, and procedures to ensure that each resident and client is encouraged to exercise the resident's or client's rights, including:

(A)iithe right to file a complaint; and

(B)iithe right to due process;

(8)iiprepare and deliver an annual report regarding the findings of each audit to the:

(A)iiexecutive commissioner;

(B)iicommissioner;

(C)iiAging and Disability Services Council;

(D)iigovernor;

(E)iilieutenant governor;

(F)iispeaker of the house of representatives;

(G)iistanding committees of the senate and house of representatives with primary jurisdiction over state supported living centers; and

(H)iistate auditor;

(9)iirequire a center to provide access to all records, data, and other information under the control of the center that the independent ombudsman determines is necessary to investigate a complaint or to conduct an audit under this section;

(10)iireview all final reports produced by the Department of Family and Protective Services, the regulatory services division of the department, and the inspector general regarding a complaint referred by the independent ombudsman;

(11)iiprovide assistance to a resident, client, authorized representative of a resident or client, or family member of a resident or client who the independent ombudsman determines is in need of assistance, including advocating with an agency, provider, or other person in the best interests of the resident or client;

(12)iimake appropriate referrals under any of the duties and powers listed in this subsection; and

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(13)iimonitor and evaluate the department's actions relating to any problem identified or recommendation included in a report received from the inspector general or from the Department of Family and Protective Services relating to an investigation of alleged abuse, neglect, or exploitation of a resident or client.

(b)iiThe independent ombudsman may apprise a person who is interested in a resident's or client's welfare of the rights of the resident or client.

(c)iiTo assess whether a resident's or client's rights have been violated, the independent ombudsman may, in any matter that does not involve an alleged criminal offense or the abuse, neglect, or exploitation of a resident or client, contact or consult with an administrator, employee, resident, client, family member of a resident or client, expert, or other individual in the course of the investigation or to secure information.

(d)iiNotwithstanding any other provision of this chapter, the independent ombudsman may not investigate an alleged criminal offense or the alleged abuse, neglect, or exploitation of a resident or client.

Sec.i555.060.iiRETALIATION PROHIBITED. The department or a center may not retaliate against a department employee, center employee, or any other person who in good faith makes a complaint to the office of independent ombudsman or cooperates with the office in an investigation.

Sec.i555.061.iiTOLL-FREE NUMBER. (a) The office shall establish a permanent, toll-free number for the purpose of receiving any information concerning the violation of a right of a resident or client.

(b)iiThe office shall ensure that:

(1)iithe toll-free number is prominently displayed in the main administration area and other appropriate common areas of a center; and

(2)iia resident, a client, the legally authorized representative of a resident or client, and a center employee have confidential access to a telephone for the purpose of calling the toll-free number.

[Sections 555.062-555.100 reserved for expansion]

SUBCHAPTER D.iINSPECTOR GENERAL INVESTIGATIONS

Sec.i555.101.iiCONDUCTING AND ASSISTING LAW ENFORCEMENT AGENCIES WITH CERTAIN INVESTIGATIONS. (a) The inspector general shall employ and commission peace officers for the purpose of conducting criminal investigations relating to a center and assisting a state or local law enforcement agency in the investigation of an alleged criminal offense relating to a center. A peace officer employed and commissioned by the inspector general is a peace officer for purposes of Article 2.12, Code of Criminal Procedure.

(b)iiThe inspector general shall immediately initiate a prompt and thorough evaluation to determine whether the inspector general has cause to investigate a possible criminal offense related to a report submitted to the inspector general by:

(1)iithe Department of Family and Protective Services in accordance with Chapter 48, Human Resources Code, or Chapter 261, Family Code, regarding an allegation of abuse, neglect, or exploitation of a resident or client; or

(2)iithe independent ombudsman in accordance with Subchapter C, regarding an unusual incident relating to a center.

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(c)iiIf the inspector general determines, not later than 24 hours after receiving a report under Subsection (b), that there is not a reason to investigate a possible criminal offense related to the report, the inspector general shall provide notice of that determination and a copy of any report to:

(1)iithe Department of Family and Protective Services and the department if the report relates to the alleged abuse, neglect, or exploitation of a resident or client after which notice the Department of Family and Protective Services shall proceed with and complete the investigation of the report; or

(2)iithe independent ombudsman and the department if the report does not relate to the alleged abuse, neglect, or exploitation of a resident or client.

(d)iiIf the inspector general determines that there is cause to investigate a possible criminal offense related to the report submitted under Subsection (b) or if, not later than 24 hours after receiving the report, the inspector general cannot determine whether there is cause to investigate a possible criminal offense related to the report, the inspector general shall conduct or assist a law enforcement agency in conducting an investigation of the report in the manner provided by this section and other law and regulations applicable to investigations of abuse, neglect, or exploitation that would apply to a similar investigation performed by the Department of Family and Protective Services.

(e)iiIn making a determination or conducting an investigation regarding a report under this section, the inspector general shall:

(1)iiwithin one hour of determining the identity of an alleged perpetrator of abuse, neglect, or exploitation or another criminal offense, notify the center and the department;

(2)iiwithin one hour of determining that there is cause to believe that a criminal offense relating to a center occurred:

(A)iinotify the appropriate local law enforcement agency; and

(B)iiprovide the local law enforcement agency with information or assistance as needed;

(3)iicomplete and provide an investigative report that is redacted as necessary as provided by the memorandum of understanding adopted under Section 48.007, Human Resources Code, to:

(A)iithe appropriate center not later than the fifth working day after the date the inspector general receives a report of alleged abuse, neglect, or exploitation for which the inspector general conducts an investigation; and

(B)iithe appropriate center, the Department of Family and Protective Services, the department, and the assistant independent ombudsman for the appropriate center not later than the 14th day after the date the inspector general receives a report of alleged abuse, neglect, or exploitation for which the inspector general conducts an investigation;

(4)iiif the inspector general believes that a criminal prosecution is appropriate, refer the findings of an investigation conducted and the evidence obtained by the inspector general:

(A)iito the appropriate local prosecuting attorney; or

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(B)iiif the appropriate local prosecuting attorney does not proceed with a prosecution before the 30th day after the date the inspector general refers findings and evidence to the local prosecuting attorney under this section, to the attorney general; and

(5)iirefer the inspector general's findings and the evidence obtained to the department if the evidence indicates that employee misconduct occurred.

(f)iiThe attorney general, if requested to do so by a local prosecuting attorney, may assist the local prosecuting attorney in the prosecution of an offense involving a center.

(g)iiThe inspector general shall ensure that an investigation report completed by the inspector general conforms to the requirements of the Department of Family and Protective Services single tracking system for reports and investigations established under Section 48.256, Human Resources Code.

(h)iiThe inspector general shall analyze each report received under Subsection (b), regardless of whether the inspector general investigates the report, in order to detect patterns indicating abuse, neglect, or exploitation at a center. The inspector general may investigate patterns identified under this subsection that indicate possible criminal offenses and may recommend additional action or investigation related to those patterns, as appropriate, to the department, the Department of Family and Protective Services, the appropriate center, and the independent ombudsman.

Sec.i555.102.iiSUMMARY REPORT. (a) The inspector general shall prepare a summary report for each investigation conducted under this subchapter. The inspector general shall ensure that the report does not contain personally identifiable information of an individual mentioned in the report.

(b)iiThe summary report must include:

(1)iia summary of the activities performed by the inspector general in conducting the investigation;

(2)iia statement regarding whether the investigation resulted in a finding that an alleged criminal offense was committed; and

(3)iia description of the alleged criminal offense that was committed.

(c)iiThe inspector general shall deliver the summary report to the:

(1)iiexecutive commissioner;

(2)iicommissioner of the department;

(3)iicommissioner of the Department of Family and Protective Services;

(4)iiAging and Disability Services Council;

(5)iigovernor;

(6)iilieutenant governor;

(7)iispeaker of the house of representatives;

(8)iistanding committees of the senate and house of representatives with primary jurisdiction over centers;

(9)iistate auditor;

(10)iithe independent ombudsman and the assistant ombudsman for the center involved in the report; and

(11)iithe alleged victim or the alleged victim's legally authorized representative.

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(d)iiA summary report regarding an investigation is subject to required disclosure under Chapter 552, Government Code. All information and materials compiled by the inspector general in connection with an investigation are confidential, and not subject to disclosure under Chapter 552, Government Code, and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the inspector general or the inspector general's employees or agents involved in the investigation conducted by the inspector general, except that this information may be disclosed to the Department of Family and Protective Services, the office of the attorney general, the state auditor's office, and law enforcement agencies.

Sec.i555.103.iiANNUAL STATUS REPORT. (a) The inspector general shall prepare an annual status report of the inspector general's activities under this subchapter. The annual report may not contain personally identifiable information of an individual mentioned in the report.

(b)iiThe annual status report must include information that is aggregated and disaggregated by individual center regarding:

(1)iithe number and type of investigations conducted by the inspector general;

(2)iithe number and type of investigations involving a center employee;

(3)iithe relationship of an alleged victim to an alleged perpetrator, if any;

(4)iithe number of investigations conducted that involve the suicide, death, or hospitalization of an alleged victim; and

(5)iithe number of completed investigations in which commission of an alleged offense was confirmed or unsubstantiated or in which the investigation was inconclusive, and a description of the reason that allegations were unsubstantiated or the investigation was inconclusive.

(c)iiThe inspector general shall submit the annual status report to the:

(1)iiexecutive commissioner;

(2)iicommissioner of the department;

(3)iicommissioner of the Department of Family and Protective Services;

(4)iiAging and Disability Services Council;

(5)iiFamily and Protective Services Council;

(6)iigovernor;

(7)iilieutenant governor;

(8)iispeaker of the house of representatives;

(9)iistanding committees of the senate and house of representatives with primary jurisdiction over centers;

(10)iistate auditor; and

(11)iicomptroller.

(d)iiAn annual status report submitted under this section is public information under Chapter 552, Government Code.

Sec.i555.104.iiRETALIATION PROHIBITED. The department or a center may not retaliate against a department employee, a center employee, or any other person who in good faith cooperates with the inspector general under this subchapter.

SECTIONi20.iiSection 40.001, Human Resources Code, is amended by adding Subdivision (6) to read as follows:

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(6)ii"State supported living center" has the meaning assigned by Section 531.002, Health and Safety Code.

SECTIONi21.iiSection 40.0315(b), Human Resources Code, is amended to read as follows:

(b)iiAn investigator in the unit shall determine whether an elderly or disabled person who is the subject of a report made under Section 48.051(a) may have suffered from abuse, neglect, or exploitation as a result of the criminal conduct of another person.iiIf the investigator determines that criminal conduct may have occurred, the investigator shall immediately notify:

(1)iithe commission's office of inspector general if the disabled person who is the subject of the report resides in a state supported living center or the ICF-MR component of the Rio Grande State Center; or

(2)iithe appropriate law enforcement agency.

SECTIONi22.iiSubchapter A, Chapter 48, Human Resources Code, is amended by adding Section 48.007 to read as follows:

Sec.i48.007.iiMEMORANDUM OF UNDERSTANDING REGARDING CERTAIN ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The Health and Human Services Commission, the department, the Department of Aging and Disability Services, the office of independent ombudsman for state supported living centers, and the Health and Human Services Commission's office of inspector general shall enter into a memorandum of understanding regarding investigations of alleged abuse, neglect, or exploitation of residents or clients of state supported living centers or the ICF-MR component of the Rio Grande State Center that delineates the responsibilities of each agency under this chapter, Chapter 261, Family Code, and Chapter 555, Health and Safety Code, and amend the memorandum of understanding as necessary to reflect changes in those responsibilities. The Health and Human Services Commission is the final arbiter of any dispute regarding the memorandum of understanding under this section.

SECTIONi23.iiSections 48.051(a) and (b), Human Resources Code, are amended to read as follows:

(a)iiExcept as prescribed by Subsection (b), a person having cause to believe that an elderly or disabled person is in the state of abuse, neglect, or exploitation, including a disabled person receiving services as described by Section 48.252, shall report the information required by Subsection (d) immediately to the department.

(b)iiIf a person has cause to believe that an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency [other than the Texas Department of Mental Health and Mental Retardation], the person shall report the information to the state agency that operates, licenses, certifies, or registers the facility for investigation by that agency.

SECTIONi24.iiSection 48.052(a), Human Resources Code, is amended to read as follows:

(a)iiA person commits an offense if the person has cause to believe that an elderly or disabled person has been abused, neglected, or exploited or is in the state of abuse, neglect, or exploitation and knowingly fails to report in accordance with this chapter. An offense under this subsection is a Class A misdemeanor, except that the

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SECTIONi25.iiSection 48.1522, Human Resources Code, is amended to read as follows:

Sec.i48.1522.iiREPORTS OF CRIMINAL CONDUCT TO LAW ENFORCEMENT AGENCY.ii(a) Except as provided by Subsection (b), if [If] during the course of the department's or another state agency's investigation of reported abuse, neglect, or exploitation a caseworker of the department or other state agency, as applicable, or the caseworker's supervisor has cause to believe that the elderly or disabled person has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker or supervisor shall:

(1)iiimmediately notify an appropriate law enforcement agency; and

(2)iiprovide the law enforcement agency with a copy of the investigation report of the department or other state agency, as applicable, in a timely manner.

(b)iiIf during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a disabled person who is a resident or client of a state supported living center or the ICF-MR component of the Rio Grande State Center has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker or supervisor shall:

(1)iiimmediately notify the commission's office of inspector general;

(2)iiin a timely manner provide the commission's office of inspector general with the evidence collected by the department during the investigation; and

(3)iiplace the department's investigation on hold and proceed with the investigation only in accordance with Section 48.252(d).

SECTIONi26.iiThe heading to Subchapter F, Chapter 48, Human Resources Code, is amended to read as follows:

SUBCHAPTER F. INVESTIGATIONS IN CERTAIN [TDMHMR] FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND MENTAL RETARDATION [MHMR] AUTHORITIES

SECTIONi27.iiSection 48.252, Human Resources Code, is amended to read as follows:

Sec.i48.252.iiINVESTIGATION OF REPORTS IN CERTAIN [MHMR] FACILITIES AND IN COMMUNITY CENTERS.i (a)iiThe department shall receive and investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:

(1)iiin:

(A)iia mental health facility operated by the [Texas] Department of State [Mental] Health Services [and Mental Retardation]; or

(B)iia facility licensed under Chapter 252, Health and Safety Code;

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(2)iiin or from a community center, a local mental health authority, or a local mental retardation authority; or

(3)iithrough a program providing services to that person by contract with a mental health facility operated by the [Texas] Department of State [Mental] Health Services [and Mental Retardation], a community center, a local mental health authority, or a local mental retardation authority.

(b)iiThe department shall receive and, to the extent provided by this section, shall investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:

(1)iiin a state supported living center or the ICF-MR component of the Rio Grande State Center; or

(2)iithrough a program providing services to that person by contract with a state supported living center or the ICF-MR component of the Rio Grande State Center.

(c)iiThe department shall, within one hour of receiving a report relating to an individual described by Subsection (b):

(1)iinotify the facility in which the individual is receiving services of the allegations in the report;

(2)iiforward a copy of the initial intake report to the commission's office of inspector general for evaluation and investigation as provided by Subchapter D, Chapter 555, Health and Safety Code; and

(3)iiplace the department's investigation under this chapter on hold.

(d)iiThe department is required to proceed with and complete an investigation of a report relating to an individual described by Subsection (b) only if, not more than 24 hours after the department forwards a report to the commission's office of inspector general, the office of inspector general notifies the department that the office of inspector general does not have cause to investigate a possible criminal offense related to the report.

(e)iiThe department may provide assistance, including assistance in conducting interviews, to the commission's office of inspector general when the office of inspector general conducts an investigation of a report of abuse, neglect, or exploitation at a state supported living center or the ICF-MR component of the Rio Grande State Center.

(f)iiThe department by rule shall define who is "an individual with a disability receiving services."

(g)i[(c)]iiIn this section, "community center," "local mental health authority," and "local mental retardation authority" have the meanings assigned by Section 531.002, Health and Safety Code.

SECTIONi28.iiSection 48.254, Human Resources Code, is amended to read as follows:

Sec.i48.254.iiFORWARDING OF CERTAIN REPORTS [COMPLETED INVESTIGATION REPORT]. In accordance with department rules, the [The] department shall forward a copy of the initial intake report and a copy of the completed investigation report relating to alleged or suspected abuse, neglect, or exploitation to the appropriate [a state mental health or mental retardation] facility, [a]

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[(1)iia copy of any report the department receives relating to alleged or suspected abuse, neglect, or exploitation of an individual receiving services from that facility, community center, authority, or program; and

[(2)iia copy of the department's investigation findings and report].

SECTIONi29.iiSection 48.255, Human Resources Code, is amended by amending Subsections (a), (b), (c), and (d) and adding Subsection (c-1) to read as follows:

(a)iiThe department, the Department of Aging and Disability Services, and the [Texas] Department of State [Mental] Health Services [and Mental Retardation] shall develop joint rules to facilitate investigations in state mental health facilities and state supported living centers [mental retardation facilities].

(b)iiThe department, the Department of Aging and Disability Services, and the [Texas] Department of State [Mental] Health Services [and Mental Retardation] by joint rules shall establish procedures for resolving disagreements between the department and the [Texas] Department of Aging and Disability Services or the Department of State [Mental] Health Services [and Mental Retardation] concerning the department's investigation findings.

(c)iiThe department, the Department of Aging and Disability Services, and the [Texas] Department of State [Mental] Health Services [and Mental Retardation] shall develop joint rules to facilitate investigations in community centers, mental health authorities, and mental retardation authorities.

(c-1)iiThe executive commissioner shall adopt rules regarding investigations in a facility licensed under Chapter 252, Health and Safety Code, to ensure that those investigations are as consistent as practicable with other investigations conducted under this subchapter.

(d)iiA confirmed investigation finding by the department may not be changed by a superintendent of a state mental health [or mental retardation] facility, by a director of a state supported living center, by a director of a community center, or by a mental health authority or mental retardation authority.

SECTIONi30.iiSection 48.256, Human Resources Code, is amended to read as follows:

Sec.i48.256.iiSINGLE TRACKING SYSTEM FOR REPORTS AND INVESTIGATIONS. (a) The department, [and] the [Texas] Department of Aging and Disability Services, and the Department of State [Mental] Health Services [and Mental Retardation] shall jointly develop and implement a single system to track reports and investigations under this subchapter [section].

(b)iiTo facilitate implementation of the system, the department, [and] the [Texas] Department of Aging and Disability Services, and the Department of State [Mental] Health Services [and Mental Retardation] shall use appropriate methods of measuring the number and outcome of reports and investigations under this subchapter [section].

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(c)iiThe department shall inform the commission's office of inspector general of the methods used to measure the number and outcomes of reports and investigations under this section. The commission's office of inspector general shall ensure that the same methods are used for investigations performed by the office under this chapter and Chapter 261, Family Code.

SECTIONi31.iiSections 48.301(a) and (c), Human Resources Code, are amended to read as follows:

(a)iiIf the department receives a report of suspected abuse, neglect, or exploitation of [under this section relating to] an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, in a facility operated, licensed, certified, or registered by a state agency [other than the Texas Department of Mental Health and Mental Retardation], the department shall refer the report to that agency.

(c)iiEach state agency that may receive reports under this section [, other than the Texas Department of Mental Health and Mental Retardation, that operates, licenses, certifies, or registers a facility in which elderly or disabled persons are located] shall adopt rules relating to the investigation and resolution of reports received under this section.

SECTIONi32.iiSections 48.401(1) and (4), Human Resources Code, are amended to read as follows:

(1)ii"Agency" means:

(A)iian entity licensed under Chapter 142, Health and Safety Code; [or]

(B)iia person exempt from licensing under Section 142.003(a)(19), Health and Safety Code; or

(C)iia facility licensed under Chapter 252, Health and Safety Code.

(4)ii"Executive director" means the commissioner [executive director] of the Department of Family and Protective [and Regulatory] Services.

SECTIONi33.iiSubchapter C, Chapter 161, Human Resources Code, is amended by adding Section 161.0515 to read as follows:

Sec.i161.0515.iiASSISTANT COMMISSIONER OF STATE SUPPORTED LIVING CENTERS. (a) The commissioner shall employ an assistant commissioner of state supported living centers. The assistant commissioner must be selected based on education, training, experience, and demonstrated ability.

(b)iiThe assistant commissioner reports directly to the commissioner.

(c)iiThe assistant commissioner shall supervise the operation of the state supported living centers. As part of that duty, the assistant commissioner shall:

(1)iiverify that quality health and medical services are being provided in state supported living centers;

(2)iiverify and certify employee qualifications for employees of a state supported living center; and

(3)iiwork with the commissioner to create administrative guidelines for proper implementation of federal and state statutory law and judicial decisions.

(d)iiThe assistant commissioner shall coordinate with the appropriate staff of the Department of State Health Services to ensure that the ICF-MR component of the Rio Grande State Center implements and enforces state law and rules that apply to the operation of state supported living centers.

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(e)iiThe assistant commissioner shall consult with the appropriate staff at the Department of State Health Services to ensure that an individual with a dual diagnosis of mental illness and mental retardation who is a resident of a state supported living center or the ICF-MR component of the Rio Grande State Center is provided with appropriate care and treatment.

SECTIONi34.iiSubchapter D, Chapter 161, Human Resources Code, is amended by adding Sections 161.076 and 161.077 to read as follows:

Sec.i161.076.iiON-SITE SURVEYS OF CERTAIN PROVIDERS. At least every 12 months, the department shall conduct an unannounced on-site survey in each group home, other than a foster home, at which a Home and Community-based Services (HCS) provider provides services.

Sec.i161.077.iiINVESTIGATION DATABASE. (a) The department, in consultation with the Department of Family and Protective Services and the commission's office of inspector general, shall develop and maintain an electronic database to collect and analyze information regarding the investigation and prevention of abuse, neglect, and exploitation of individuals with mental retardation who reside in a publicly or privately operated intermediate care facility for persons with mental retardation or in a group home, other than a foster home, at which a Home and Community-based Services (HCS) provider provides services and the results of regulatory investigations or surveys performed by the department regarding those facilities or providers.

(b)iiThe information collected in the database regarding investigations must be detailed, be easily retrievable, and include information relating to abuse, neglect, and exploitation investigations performed by either department and the commission's office of inspector general and regulatory investigations performed by the department that are capable of being sorted by home, provider, and facility.

(c)iiThe database must facilitate the entry of required information and the sharing of information between the department and the Department of Family and Protective Services. At a minimum, the database must include the following information regarding investigations of abuse, neglect, or exploitation:

(1)iithe number of allegations of abuse, neglect, or exploitation received relating to a facility or group home, other than a foster home; and

(2)iithe number of allegations relating to a facility or group home, other than a foster home, substantiated through an investigation.

(d)iiEach allegation involving a unique individual in a facility or group home, other than a foster home, is considered a separate allegation for purposes of Subsection (c).

(e)iiThe department shall ensure that information related to findings concerning failure to comply with regulatory standards directly related to the prevention of abuse, neglect, or exploitation in a facility or group home, other than a foster home, is collected and stored in the database and may be disaggregated by home, provider, and facility.

(f)iiThe department and the Department of Family and Protective Services may not release or distribute information in the database in a form that contains personally identifiable information related to an individual in a facility or group home or to a victim of abuse, neglect, or exploitation.

4276 81st Legislature — Regular Session 69th Day (Cont.)

SECTIONi35.iiSection 22.04(f), Penal Code, is amended to read as follows:

(f)iiAn offense under Subsection (a)(3) or (a-1)(3) or (4) is a felony of the third degree when the conduct is committed intentionally or knowingly, except that an offense under Subsection (a)(3) is a felony of the second degree when the conduct is committed intentionally or knowingly and the victim is a disabled individual residing in a center, as defined by Section 555.001, Health and Safety Code, or in a facility licensed under Chapter 252, Health and Safety Code, and the actor is an employee of the center or facility whose employment involved providing direct care for the victim.iiWhen the conduct is engaged in recklessly, the offense is a state jail felony.

SECTIONi36.ii(a) Sections 252.123, 252.124, 252.127, 252.128, 252.129, 252.130, and 252.131, Health and Safety Code, are repealed.

(b)iiSection 5(c), Chapter 693 (S.B. 1248), Acts of the 75th Legislature, Regular Session, 1997, is repealed.

SECTIONi37.ii(a) Not later than December 1, 2009, the Health and Human Services Commission, the Department of Family and Protective Services, the Department of Aging and Disability Services, the office of independent ombudsman for state supported living centers, and the Health and Human Services Commission's office of inspector general shall enter into a memorandum of understanding as required by Section 48.007, Human Resources Code, as added by this Act.

(b)iiNotwithstanding any other provision of this Act, the changes in law made by this Act relating to the investigation of suspected abuse, neglect, or exploitation involving a state supported living center or the ICF-MR component of the Rio Grande State Center apply only to a report of suspected abuse, neglect, or exploitation involving a state supported living center or the ICF-MR component of the Rio Grande State Center that is made on or after January 1, 2010.

(c)iiNotwithstanding any other provision of this Act, the changes in law made by this Act relating to the investigation of suspected abuse, neglect, or exploitation involving a facility licensed under Chapter 252, Health and Safety Code, apply only to a report of suspected abuse, neglect, or exploitation involving a facility licensed under Chapter 252, Health and Safety Code, that is made on or after June 1, 2010.

SECTIONi38.ii(a)iiThe Interim Select Committee on Criminal Commitments of Individuals with Mental Retardation is established to study the criminal commitment process for individuals with mental retardation who are found incompetent to stand trial or are acquitted by reason of insanity. The committee's study must include an analysis of:

(1)iithe advantages and disadvantages of the existing system for criminal commitments of individuals with mental retardation or individuals with a dual diagnosis of mental illness and mental retardation who are found incompetent to stand trial or are acquitted by reason of insanity;

(2)iithe number of individuals with mental retardation who are criminally committed on an annual basis and the number of individuals with mental retardation who are found to be violent or dangerous through the criminal commitment process;

(3)iiwhether the criminal commitment process should be modified to provide for the commitment of certain individuals with mental retardation who are found to be violent or dangerous to a mental retardation facility instead of to a mental health facility; and

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(4)iithe costs associated with modifying the criminal commitment process as described by Subdivision (3) of this subsection.

(b)iiThe committee is composed of six members as follows:

(1)iithe chairs of the following standing committees of the house of representatives:

(A)iicriminal jurisprudence;

(B)iihuman services; and

(C)iipublic health; and

(2)iithe chairs of the following standing committees of the senate:

(A)iicriminal justice;

(B)iihealth and human services; and

(C)iistate affairs.

(c)iiThe co-presiding officers of the committee are the chair of the Senate Health and Human Services Committee and the chair of the House Committee on Human Services.

(d)iiThe committee has all other powers and duties provided to a special or select committee by the rules of the senate and house of representatives, by Subchapter B, Chapter 301, Government Code, and by policies of the senate and house committees on administration.

(e)iiFrom the contingent expense fund of the senate and the contingent expense fund of the house of representatives equally, the members of the committee are entitled to reimbursement for expenses incurred in carrying out this section in accordance with the rules of the senate and house of representatives and the policies of the senate and house committees on administration.

(f)iiNot later than December 1, 2010, the committee shall report the committee's findings and recommendations resulting from the study to the governor, lieutenant governor, speaker of the house of representatives, and members of the legislature.

SECTIONi39.iiThe Department of Aging and Disability Services shall evaluate and determine the types of training that an employee or owner of a facility licensed by the department under Chapter 252, Health and Safety Code, or an employee or owner of a provider licensed or certified by the department as a Section 1915(c) waiver program provider needs and whether that training is available. Not later than December 1, 2010, the department shall provide a report to the governor, lieutenant governor, speaker of the house of representatives, and chairs of the standing committees of the senate and house of representatives with primary jurisdiction regarding persons with mental retardation regarding:

(1)iithe types of training identified as necessary by the department;

(2)iithe availability of that training in this state; and

(3)iirecommended legislation or actions necessary to ensure the appropriate training is received by the persons described by this section.

SECTIONi40.iiOn the effective date of this Act, an individual who is an employee of the Department of Aging and Disability Services and who performs duties primarily related to consumer rights and services at state schools is required to reapply for an employment position with the department and may apply for a position as an assistant independent ombudsman.

4278 81st Legislature — Regular Session 69th Day (Cont.)

SECTIONi41.ii(a) The commissioner of the Department of Aging and Disability Services shall employ an assistant commissioner of state supported living centers as soon as possible after the effective date of Section 161.0515, Human Resources Code, as added by this Act. On the date the assistant commissioner is employed, the position of section director over state schools is eliminated.

(b)iiAs soon as practicable after the effective date of this Act, the Department of Aging and Disability Services shall develop the database required by Section 161.077, Human Resources Code, as added by this Act.

(c)iiNot later than December 1, 2009, the Health and Human Services Commission's office of inspector general shall begin employing and commissioning peace officers as required by Section 555.101, Health and Safety Code, as added by this Act.

(d)iiNot later than December 1, 2009, the executive commissioner shall contract for mortality review services as required by Subchapter U, Chapter 531, Government Code, as added by this Act.

(e)iiNot later than September 1, 2009, the governor shall appoint the independent ombudsman as required by Section 555.053, Health and Safety Code, as added by this Act.

(f)iiNot later than September 1, 2010, the executive commissioner of the Health and Human Services Commission shall require the Department of Aging and Disability Services, and any facility the department licenses under Chapter 252, Health and Safety Code, to conduct a criminal history check on each employee and shall require the department or licensed facility to discharge any person whose criminal history check reveals a conviction of an offense that bars employment under Chapter 250, Health and Safety Code.

(g)iiNot later than January 1, 2010, the Department of Aging and Disability Services shall develop the training required by Section 555.024, Health and Safety Code, as added by this Act.

(h)iiThe Department of Aging and Disability Services shall ensure that each center employee and direct care employee receives the training required by Section 555.024, Health and Safety Code, as added by this Act, regardless of when the employee was hired, not later than September 1, 2010.

(i)iiNot later than September 1, 2011, the Department of Aging and Disability Services shall begin operating the Mexia State Supported Living Center as the forensic state supported living center as required by Section 555.002, Health and Safety Code, as added by this Act.

SECTIONi42.ii(a) Not later than September 1, 2011, the Department of Aging and Disability Services shall ensure that an interdisciplinary team has completed a determination in the manner provided by Section 555.003, Health and Safety Code, as added by this Act, for each alleged offender resident residing in a state supported living center or the ICF-MR component of the Rio Grande State Center on the effective date of this Act.

(b)iiAn alleged offender resident for whom a determination is completed in accordance with Subsection (a) of this section and who is classified as a high-risk alleged offender resident is entitled to:

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(1)iian administrative hearing and appeal provided by Section 555.003, Health and Safety Code, as added by this Act, regarding that determination and classification; and

(2)iian administrative hearing regarding the resident's proposed transfer to the forensic state supported living center as provided by Section 594.014, Health and Safety Code.

(c)iiThe Department of Aging and Disability Services may not transfer an alleged offender resident residing in a state supported living center or the ICF-MR component of the Rio Grande State Center on the effective date of this Act to the forensic state supported living center while the resident is pursuing the administrative remedies listed in Subsection (b) of this section.

(d)iiExcept as provided by Subsection (c) of this section, the department shall transfer an alleged offender resident classified as a high-risk alleged offender resident to the forensic state supported living center on the date the Mexia State Supported Living Center begins operating as the forensic state supported living center, or as soon as possible after that date.

(e)iiThis section expires September 1, 2013.

SECTIONi43.ii(a)iiThe changes in law made by this Act to Section 261.109, Family Code, Section 48.052, Human Resources Code, and Section 22.04, Penal Code, apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

(b)iiSection 411.1144, Government Code, as added by this Act, and Section 555.021, Health and Safety Code, as added by this Act, apply only to background and criminal history checks performed on or after the effective date of this Act.

(c)iiThe change in law made by Section 551.022(e), Health and Safety Code, as added by this Act, and the change in law made by Section 551.0225, Health and Safety Code, as added by this Act, apply to the dismissal of an officer, teacher, or other employee of a state developmental center hired before, on, or after the effective date of this Act.

SECTIONi44.iiIf before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.

SECTIONi45.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

Floor Amendment No. 1

Amend CSSB 643 (House committee printing) as follows:

(1)iiIn SECTION 4 of the bill, in amended Section 261.404(a), Family Code (page 2, lines 12 and 13), strike ", to the extent provided by this section,".

4280 81st Legislature — Regular Session 69th Day (Cont.)

(2)iiIn SECTION 4 of the bill, strike amended Sections 261.404(c), (d), (e), and (f), Family Code (page 3, line 11, through page 4, line 23), substitute the following, and reletter subsequent subsections accordingly:

(c)iiIf a report under this section relates to a child with mental retardation receiving services in a state supported living center or the ICF-MR component of the Rio Grande State Center, the department shall, within one hour of receiving the report, notify the facility in which the child is receiving services of the allegations in the report.

(d)iiIf during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a child with mental retardation described by Subsection (c) has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker shall immediately notify the commission's office of inspector general and promptly provide the commission's office of inspector general with a copy of the department's investigation report.

(3)iiIn SECTION 19 of the bill, in added Section 555.057(b)(2), Health and Safety Code (page 36, line 27), strike "unusual incident" and substitute "alleged criminal offense".

(4)iiIn SECTION 19 of the bill, in added Section 555.059(a)(5), Health and Safety Code (page 38, lines 19 and 20), strike "an unusual incident to the inspector general" and substitute "a criminal offense, other than an allegation of abuse, neglect, or exploitation of a resident or client, to the inspector general".

(5)iiIn SECTION 19 of the bill, in added Section 555.059(a)(13), Health and Safety Code (page 40, line 11), strike "from the inspector general or".

(6)iiIn SECTION 19 of the bill, in the heading to added Subchapter D, Chapter 555, Health and Safety Code (page 41, line 19), strike "INVESTIGATIONS" and substitute "DUTIES".

(7)iiIn SECTION 19 of the bill, strike added Section 555.101, Health and Safety Code (page 41, line 20, through page 45, line 11), and substitute the following:

Sec.i555.101.iiASSISTING LAW ENFORCEMENT AGENCIES WITH CERTAIN INVESTIGATIONS. The inspector general shall employ and commission peace officers for the purpose of assisting a state or local law enforcement agency in the investigation of an alleged criminal offense involving a resident or client of a center. A peace officer employed and commissioned by the inspector general is a peace officer for purposes of Article 2.12, Code of Criminal Procedure.

(8)iiIn SECTION 19 of the bill, in added Section 555.102(a), Health and Safety Code (page 45, line 13), between "conducted" and "under this subchapter", insert "with the assistance of the inspector general".

(9)iiIn SECTION 19 of the bill, in added Section 555.102(b)(1), Health and Safety Code (page 45, lines 18 and 19), strike "by the inspector general in conducting the investigation" and substitute "during an investigation for which the inspector general provided assistance".

(10)iiIn SECTION 19 of the bill, in added Section 555.102(d), Health and Safety Code (page 46, line 23), strike "conducted by the inspector general".

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(11)iiIn SECTION 19 of the bill, in added Section 555.103(b)(1), Health and Safety Code (page 47, line 7), strike "by" and substitute "with the assistance of".

(12)iiIn SECTION 25 of the bill, strike added Section 48.1522(b), Human Resources Code (page 51, line 16, through page 52, line 4), and substitute the following:

(b)iiIf during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a disabled person who is a resident or client of a state supported living center or the ICF-MR component of the Rio Grande State Center has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker shall immediately notify the commission's office of inspector general and promptly provide the commission's office of inspector general with a copy of the department's investigation report.

(13)iiIn SECTION 27 of the bill, in amended Section 48.252(b), Human Resources Code (page 53, lines 2 and 3), strike ", to the extent provided by this section, shall".

(14)iiIn SECTION 27 of the bill, strike added Sections 48.252(c), (d), and (e), Human Resources Code (page 53, line 11, through page 54, line 6), and reletter subsequent subsections accordingly.

(15)iiIn SECTION 30 of the bill, strike added Section 48.256(c), Human Resources Code (page 56, lines 21 through 26).

(16)iiIn SECTION 34 of the bill, in added Section 161.077(a), Human Resources Code (page 59, line 13), strike "and the commission's office of inspector general".

(17)iiIn SECTION 34 of the bill, in added Section 161.077(b), Human Resources Code (page 59, lines 26 and 27), strike "and the commission's office of inspector general".

Floor Amendment No. 2

Amend CSSB 643 (House committee printing) as follows:

(1)iiIn SECTION 19 of the bill, in added Section 555.002(b)(3), Health and Safety Code (page 24, line 20), strike "all alleged offender residents," and substitute "alleged offender residents who are charged with or convicted of a felony offense or who are alleged by petition or have been found to have engaged in delinquent conduct defined as a felony offense,".

(2)iiIn SECTION 19 of the bill, in added Section 555.002(b)(4), Health and Safety Code (page 24, line 26), between "residents" and "for" insert "described by Subdivision (3) and".

(3)iiIn SECTION 19 of the bill, in added Section 555.002(e), Health and Safety Code (page 25, lines 18 and 19), strike "the forensic state supported living center" and substitute "state supported living centers".

(4)iiIn SECTION 19 of the bill, in added Section 555.003(a), Health and Safety Code (page 26, line 8), strike "the forensic" and substitute "a".

(5)iiIn SECTION 19 of the bill, in added Section 555.003(c)(2), Health and Safety Code (page 26, line 24), strike "forensic".

4282 81st Legislature — Regular Session 69th Day (Cont.)

Floor Amendment No. 4

Amend CSSB 643 (House committee report) in SECTION 19 of the bill, in added Section 555.056(c), Health and Safety Code (page 36, lines 2 and 3), strike "and the speaker of the house of representatives" and substitute "the speaker of the house of representatives, and the chairs of the standing committees of the senate and the house of representatives having primary jurisdiction over the Department of Aging and Disability Services".

Floor Amendment No. 6

Amend CSSB 643 (House committee report) by inserting into the bill the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiChapter 29, Education Code, is amended by adding Subchapter L to read as follows:

SUBCHAPTER L. SCHOOL DISTRICT PROGRAM FOR RESIDENTS OF FORENSIC STATE SUPPORTED LIVING CENTER

Sec.i29.451.iiDEFINITIONS. In this subchapter, "alleged offender resident," "interdisciplinary team," and "state supported living center" have the meanings assigned by Section 555.001, Health and Safety Code.

Sec.i29.452.iiAPPLICABILITY. This subchapter applies only to an alleged offender resident of the forensic state supported living center established under Section 555.002, Health and Safety Code.

Sec.i29.453.iiSCHOOL DISTRICT SERVICES. (a) A school district shall provide educational services, including services required under Subchapter A, to each alleged offender resident who is under 22 years of age and otherwise eligible under Section 25.001 to attend school in the district. The district shall provide educational services to each alleged offender resident who is 21 years of age on September 1 of the school year and otherwise eligible to attend school in the district until the earlier of:

(1)iithe end of that school year; or

(2)iithe student's graduation from high school.

(b)iiThe educational placement of an alleged offender resident and the educational services to be provided by a school district to the resident shall be determined by the resident's admission, review, and dismissal committee consistent with federal law and regulations regarding the placement of students with disabilities in the least restrictive environment. The resident's admission, review, and dismissal committee shall:

(1)iiinform the resident's interdisciplinary team of a determination the committee makes in accordance with this subsection; and

(2)iiconsult, to the extent practicable, with the resident's interdisciplinary team concerning such a determination.

Sec.i29.454.iiBEHAVIOR MANAGEMENT; BEHAVIOR SUPPORT SPECIALISTS. (a) The discipline of an alleged offender resident by a school district is subject to Sections 37.0021 and 37.004 and to federal law governing the discipline of students with disabilities.

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(b)iiA school district in which alleged offender residents are enrolled shall employ one or more behavior support specialists to serve the residents while at school. A behavior support specialist must:

(1)iihold a baccalaureate degree;

(2)iihave training in providing to students positive behavioral support and intervention, as determined by the commissioner of education; and

(3)iimeet any other requirement jointly determined by the commissioner of education and the commissioner of the Department of Aging and Disability Services.

(c)iiA behavior support specialist shall conduct for each alleged offender resident enrolled in the school district a functional behavioral assessment that includes:

(1)iidata collection, through interviews with and observation of the resident;

(2)iidata analysis; and

(3)iidevelopment of an individualized school behavioral intervention plan for the resident.

(d)iiEach behavior support specialist shall:

(1)iiensure that each alleged offender resident enrolled in the school district is provided behavior management services under a school behavioral intervention plan based on the resident's functional behavioral assessment, as described by Subsection (c);

(2)iicommunicate and coordinate with the resident's interdisciplinary team to ensure that behavioral intervention actions of the district and of the forensic state supported living center do not conflict;

(3)iiin the case of a resident who regresses:

(A)iiensure that necessary corrective action is taken in the resident's individualized education program or school behavioral intervention plan, as appropriate; and

(B)iicommunicate with the resident's interdisciplinary team concerning the regression and encourage the team to aggressively address the regression;

(4)iiparticipate in the resident's admission, review, and dismissal committee meetings in conjunction with:

(A)iideveloping and implementing the resident's school behavioral intervention plan; and

(B)iidetermining the appropriate educational placement for each resident, considering all available academic and behavioral information;

(5)iicoordinate each resident's school behavioral intervention plan with the resident's program of active treatment provided by the forensic state supported living center to ensure consistency of approach and response to the resident's identified behaviors;

(6)iiprovide training for school district staff and, as appropriate, state supported living center staff in implementing behavioral intervention plans for each resident; and

(7)iiremain involved with the resident during the school day.

(e)iiSection 22.0511 applies to a behavior support specialist employed under this section by a school district.

4284 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i29.455.iiMEMORANDUM OF UNDERSTANDING. (a) A school district in which alleged offender residents are enrolled in school and the forensic state supported living center shall enter into a memorandum of understanding to:

(1)iiestablish the duties and responsibilities of the behavior support specialist to ensure the safety of all students and teachers while educational services are provided to a resident at a school in the district; and

(2)iiensure the provision of appropriate facilities for providing educational services and of necessary technological equipment if a resident's admission, review, and dismissal committee determines that the resident must receive educational services at the forensic state supported living center.

(b)iiA memorandum of understanding under Subsection (a) remains in effect until superseded by a subsequent memorandum of understanding between the school district and the forensic state supported living center or until otherwise rescinded.

Sec.i29.456.iiFAILURE OF SCHOOL DISTRICT AND CENTER TO AGREE. (a) If a school district in which alleged offender residents are enrolled in school and the forensic state supported living center fail to agree on the services required for residents or responsibility for those services, the district or center may refer the issue in disagreement to the commissioner of education and the commissioner of the Department of Aging and Disability Services.

(b)iiIf the commissioner of education and the commissioner of the Department of Aging and Disability Services are unable to bring the school district and forensic state supported living center to agreement, the commissioners shall jointly submit a written request to the attorney general to appoint a neutral third party knowledgeable in special education and mental retardation issues to resolve each issue on which the district and the center disagree. The decision of the neutral third party is final and may not be appealed. The district and the center shall implement the decision of the neutral third party. The commissioner of education or the commissioner of the Department of Aging and Disability Services shall ensure that the district and the center implement the decision of the neutral third party.

Sec.i29.457.iiFUNDING. (a) In addition to other funding to which a school district is entitled under this code, each district in which alleged offender residents attend school is entitled to an annual allotment of $5,100 for each resident in average daily attendance or a different amount for any year provided by appropriation.

(b)iiNot later than December 1 of each year, a school district that receives an allotment under this section shall submit a report accounting for the expenditure of funds received under this section to the governor, the lieutenant governor, the speaker of the house of representatives, the chairs of the standing committees of the senate and house of representatives with primary jurisdiction regarding persons with mental retardation and public education, and each member of the legislature whose district contains any portion of the territory included in the school.

Sec.i 29.458.iiRULES.iiThe commissioner may adopt rules as necessary to administer this subchapter.

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SECTIONi____.iiSubchapter L, Chapter 29, Education Code, as added by this Act, applies beginning with the school year in which the Department of Aging and Disability Services begins operating the Mexia State Supported Living Center as the forensic state supported living center as required by Section 555.002, Health and Safety Code, as added by this Act.

Floor Amendment No. 9

Amend CSSB 643 (House committee printing) on page 21, line 26, between "employee" and the period, by inserting "for good cause".

Floor Amendment No. 10

Amend CSSB 643 (House committee report) in SECTION 22 of the bill, in added Section 48.007, Human Resources Code (page 49, line 19), between "responsibilities." and "The" insert the following:

During the negotiation of the memorandum of understanding, the agencies shall jointly determine whether the forensic training received by relevant staff of the Department of Family and Protective Services is adequate. Specifically, the agencies shall assess and, if necessary, develop a plan to enhance the ability of department staff to identify and report incidences that constitute a potential criminal offense.

Floor Amendment No. 11

Amend CSSB 643 (House committee report) in SECTION 19 of the bill, in added Section 555.059(a), Health and Safety Code, immediately following added Subdivision (6) (page 39, line 1), by adding the following new Subdivision (7) and renumbering the current Subdivision (7) and subsequent subdivisions in that subsection accordingly:

(7)iiconduct biennial on-site audits at each center of:

(A)iithe ratio of direct care employees to residents;

(B)iithe provision and adequacy of training to:

(i)iicenter employees; and

(ii)iidirect care employees; and

(C)iiif the center serves alleged offender residents, the provision of specialized training to direct care employees;

Floor Amendment No. 12

Amend CSSB 643 (House committee printing), in SECTION 39 of the bill, (page 64, between lines 23 and 24), by adding the following new Subdivision (1) to the section and renumbering subsequent subdivisions accordingly:

(1)iithe types of training required by federal law;

Floor Amendment No. 2 on Third Reading

Amend CSSB 643 (House committee printing) on third reading by adding the following SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiArticle 38.072, Code of Criminal Procedure, is amended to read as follows:

Art.i38.072.iiHEARSAY STATEMENT OF CERTAIN [CHILD] ABUSE VICTIMS [VICTIM]

4286 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i1.iiThis article applies to a proceeding in the prosecution of an offense under any of the following provisions of the Penal Code, if committed against a child 12 years of age or younger or a person with a disability:

(1)iiChapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

(2)iiSection 25.02 (Prohibited Sexual Conduct); or

(3)iiSection 43.25 (Sexual Performance by a Child).

Sec.i2.ii(a)iiThis article applies only to statements that describe the alleged offense that:

(1)iiwere made by the child or person with a disability against whom the offense was allegedly committed; and

(2)iiwere made to the first person, 18 years of age or older, other than the defendant, to whom the child or person with a disability made a statement about the offense.

(b)iiA statement that meets the requirements of Subsection (a) [of this article] is not inadmissible because of the hearsay rule if:

(1)iion or before the 14th day before the date the proceeding begins, the party intending to offer the statement:

(A)iinotifies the adverse party of its intention to do so;

(B)iiprovides the adverse party with the name of the witness through whom it intends to offer the statement; and

(C)iiprovides the adverse party with a written summary of the statement;

(2)iithe trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and

(3)iithe child or person with a disability testifies or is available to testify at the proceeding in court or in any other manner provided by law.

Sec.i3.iiIn this article, "person with a disability" means a person 13 years of age or older who because of age or physical or mental disease, disability, or injury is substantially unable to protect the person's self from harm or to provide food, shelter, or medical care for the person's self.

SECTIONi____.iiSection 54.031, Family Code, is amended to read as follows:

Sec.i54.031.iiHEARSAY STATEMENT OF CERTAIN [CHILD] ABUSE VICTIMS [VICTIM].i (a)iiThis section applies to a hearing under this title in which a child is alleged to be a delinquent child on the basis of a violation of any of the following provisions of the Penal Code, if a child 12 years of age or younger or a person with a disability is the alleged victim of the violation:

(1)iiChapter 21 (Sexual Offenses) or 22 (Assaultive Offenses);

(2)iiSection 25.02 (Prohibited Sexual Conduct); or

(3)iiSection 43.25 (Sexual Performance by a Child).

(b)iiThis section applies only to statements that describe the alleged violation that:

(1)iiwere made by the child or person with a disability who is the alleged victim of the violation; and

(2)iiwere made to the first person, 18 years of age or older, to whom the child or person with a disability made a statement about the violation.

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(c)iiA statement that meets the requirements of Subsection (b) [of this section] is not inadmissible because of the hearsay rule if:

(1)iion or before the 14th day before the date the hearing begins, the party intending to offer the statement:

(A)iinotifies each other party of its intention to do so;

(B)iiprovides each other party with the name of the witness through whom it intends to offer the statement; and

(C)iiprovides each other party with a written summary of the statement;

(2)iithe juvenile court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and

(3)iithe child or person with a disability who is the alleged victim testifies or is available to testify at the hearing in court or in any other manner provided by law.

(d)iiIn this section, "person with a disability" means a person 13 years of age or older who because of age or physical or mental disease, disability, or injury is substantially unable to protect the person's self from harm or to provide food, shelter, or medical care for the person's self.

SECTIONi____.iiThe changes in law made by Article 38.072, Code of Criminal Procedure, as amended by this Act, and Section 54.031, Family Code, as amended by this Act, apply only to a criminal proceeding that commences on or after the effective date of this Act. A criminal proceeding that commences before the effective date of this Act is governed by the law in effect when the proceeding commenced, and the former law is continued in effect for that purpose.

Floor Amendment No. 3 on Third Reading

Amend CSSB 643 on third reading, in added Section 551.0225, Health and Safety Code (SECTION 18, House committee report), by adding the following new Subsection (e) to that section:

(e)iiThe Department of Aging and Disability Services shall, with input from residents of a state supported living center, and the family members and legally authorized representatives of those residents, develop a policy that defines "serious event" for purposes of Subsection (c)(10).

The amendments were read.

Senator Nelson moved to concur in the House amendments to SBi643.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 29, 2009

The Honorable President of the Senate

Senate Chamber

Austin, Texas

Mr. President:

4288 81st Legislature — Regular Session 69th Day (Cont.)

I am directed by the House to inform the Senate that the House has taken the following action:

THE HOUSE HAS CONCURRED IN THE SENATE AMENDMENTS TO THE FOLLOWING MEASURES:

HB 673 (144 Yeas, 0 Nays, 1 Present, not voting)

HB 1138 (140 Yeas, 0 Nays, 1 Present, not voting)

HB 1633 (144 Yeas, 0 Nays, 1 Present, not voting)

HB 1841 (146 Yeas, 0 Nays, 1 Present, not voting)

HB 2932 (141 Yeas, 1 Nays, 1 Present, not voting)

HB 3635 (141 Yeas, 0 Nays, 1 Present, not voting)

HB 3785 (143 Yeas, 0 Nays, 1 Present, not voting)

HB 4435 (123 Yeas, 21 Nays, 1 Present, not voting)

HB 4456 (144 Yeas, 0 Nays, 1 Present, not voting)

HB 4461 (143 Yeas, 0 Nays, 1 Present, not voting)

HB 4755 (144 Yeas, 0 Nays, 1 Present, not voting)

HB 4759 (141 Yeas, 0 Nays, 1 Present, not voting)

HB 4778 (144 Yeas, 0 Nays, 1 Present, not voting)

HB 4799 (140 Yeas, 0 Nays, 1 Present, not voting)

THE HOUSE HAS REFUSED TO CONCUR IN THE SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:

HB 2682 (non-record vote)

House Conferees:iiAlvarado - Chair/Bohac/Guillen/McClendon/Merritt

HB 2908 (non-record vote)

House Conferees:iiPaxton - Chair/Giddings/Isett/King, Phil/Menendez

HB 3768 (non-record vote)

House Conferees:iiPaxton - Chair/Gonzalez Toureilles/Hughes/King, Phil/Kleinschmidt

THE HOUSE HAS ADOPTED THE FOLLOWING CONFERENCE COMMITTEE REPORTS:

SB 58 (145 Yeas, 0 Nays, 1 Present, not voting)

Respectfully,

/s/Robert Haney, Chief Clerk

House of Representatives

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SENATE BILL 1368 WITH HOUSE AMENDMENTS

Senator Shapleigh called SBi1368 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Amendment

Amend SBi1368 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the creation of a county ethics commission in certain counties; providing civil and criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubtitle B, Title 5, Local Government Code, is amended by adding Chapter 161 to read as follows:

CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i161.001.iiAPPLICABILITY OF CHAPTER.iiThis chapter applies only to a county that:

(1)iihas a population of 650,000 or more;

(2)iiis located on the international border; and

(3)iibefore September 1, 2009, had a county ethics board appointed by the commissioners court.

Sec.i161.002.iiDEFINITIONS. In this chapter:

(1)ii"Commission" means a county ethics commission created under this chapter.

(2)ii"Commission staff" means county employees assigned to provide administrative support to the commission.

(3)ii"Communicates directly with" has the meaning assigned by Section 305.002, Government Code.

(4)ii"County affiliate" means a person described and determined by order of the commissioners court on recommendation of the commission. As determined by the commissioners court, the term includes:

(A)iiany person whose goods and services are purchased under the terms of a purchase order or contractual agreement with the county; and

(B)iias determined by the county, any other persons doing business with the county.

(5)ii"County employee" means a person employed by the county or a county officer and includes a person employed in the judicial branch of the county government who is not subject to the Code of Judicial Conduct. The term does not include a county officer.

(6)ii"County office" means a position held by a county officer.

(7)ii"County officer" means a county judge, county commissioner, county attorney, sheriff, county tax assessor-collector, county clerk, district clerk, county treasurer, county auditor, county purchasing agent, and constable.

4290 81st Legislature — Regular Session 69th Day (Cont.)

(8)ii"County public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for or assumed the duties of office:

(A)iia county officer or county employee;

(B)iia person appointed by the commissioners court or a county officer to a position on one of the following, whether the position is compensated or not:

(i)iian authority, board, bureau, commission, committee, council, department, district, division, or office of the county; or

(ii)iia multi-jurisdictional board;

(C)iian attorney at law or notary public when participating in the performance of a governmental function;

(D)iia candidate for nomination or election to an elected county office; or

(E)iia person who is performing a governmental function under a claim of right although the person is not legally qualified or authorized to do so.

(9)ii"Lobbyist" means a person who, for compensation in excess of an amount established by the commission, communicates directly with a county officer or county employee to influence official action. The term does not include an attorney who communicates directly with a county officer or county employee to the extent that such communication relates to the attorney's representation of a party in a civil or criminal proceeding.

Sec.i161.003.iiCONFLICT WITH CIVIL SERVICE AGREEMENT. (a) This chapter may not be construed to affect:

(1)iithe terms of an agreement authorized by Chapter 174 between the county and county employees; or

(2)iiany provision of a civil service statute applicable to a county employee.

(b)iiIf an agreement authorized by Chapter 174 or a civil service statute applicable toia county employee conflicts with this chapter orian ethics code adopted or enforcediunder this chapter, the agreement or civil service statute prevails.

[Sections 161.004-161.050 reserved for expansion]

SUBCHAPTER B. CREATION OF COMMISSION; APPOINTMENT OF COMMISSION MEMBERS

Sec.i161.051.iiCREATION OF COMMISSION BY ORDER. (a) The commissioners court of a county, by an order adopted by a majority of the court's full membership, may create a county ethics commission.

(b)iiA copy of an order adopted under this section shall be placed in the minutes of the court's proceedings. The copy of the order is public information.

Sec.i161.052.iiCREATION OF COMMISSION BY ELECTION.i (a)iiA county ethics commission may be created by approval of the system by a majority of the qualified voters of the county voting at an election called for that purpose.

(b)iiThe commissioners court by order may call an election on the question of the creation of a county ethics commission.

(c)iiThe commissioners court shall hold the election called under this section on the first authorized uniform election date prescribed by Chapter 41, Election Code, that allows sufficient time for publication of the notice required by Subsection (d) and for compliance with any other requirements established by law.

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(d)iiIn addition to the notice required by Chapter 4, Election Code, the commissioners court must publish in a newspaper of general circulation in the county, and on the home page of the county's Internet website, a substantial copy of the order calling the election. The first newspaper publication must be made on or before the 15th day before the date of the election and continue once a week for two consecutive weeks, and the notice on the county's Internet website shall remain on the home page each day beginning not later than the 16th day before the election and ending on the date of the election.

Sec.i161.053.iiBALLOT.iThe commissioners court shall order the ballot at the election to be printed to provide for voting for or against the proposition: "Creation of a county ethics commission."

Sec.i161.054.iiRESULT OF ELECTION.iIf the proposition is approved, the commissioners court shall declare the result and by order create the county ethics commission. A copy of the order creating the commission shall be placed in the minutes of the court's proceedings.

Sec.i161.055.iiAPPOINTMENT OF COMMISSION. (a) The commission is composed of:

(1)iifive members, each of whom is appointed by the county judge or a county commissioner; and

(2)iifive members appointed by the commissioners court, with one member appointed from a list of nominees submitted by each of the following entities:

(A)iithe county civil service commission;

(B)iia bar association in the county;

(C)iithe sheriff's civil service commission;

(D)iia dispute resolution center in the county that is affiliated with a council of governments; and

(E)iia human resources management association in the county.

(a-1)iiThe commissioners court shall designate the entities described by Subsections (a)(2)(B), (D), and (E) that may submit nominees for membership on the commission. If a designated entity does not wish to submit nominees, the commissioners court shall select a similar entity that has experience with grievance or mediation structures or processes.

(b)iiNot later than the 60th day after the date of the order creating the commission as provided in Section 161.051 or Section 161.054:

(1)iithe county judge and each county commissioner shall each appoint one member of the commission; and

(2)iieach entity described by Subsection (a)(2) or alternate entity designated under Subsection (a-1) shall deliver to the commissioners court the entity's nominees for membership on the commission.

(c)iiThe commissioners court shall set the date for the first meeting of the initial members. The first meeting must be set not earlier than the 60th day after the date of the order creating the commission and not later than the 90th day after the date of that order.

Sec.i161.056.iiELIGIBILITY. (a) To be eligible for appointment to the commission, a person must:

(1)iibe at least 18 years old;

4292 81st Legislature — Regular Session 69th Day (Cont.)

(2)iibe a property tax payer in the county; and

(3)iihave resided in the county for the two years immediately preceding the date on which the person's term will begin.

(b)iiA person is not eligible for appointment to the commission if the person is:

(1)iian elected officer;

(2)iia county employee;

(3)iia county affiliate;

(4)iia person employed as a lobbyist;

(5)iia person convicted of a misdemeanor involving moral turpitude or a felony; or

(6)iia person who is delinquent in payment of local, state, or federal taxes.

Sec.i161.057.iiTERMS. (a) Members of the commission serve terms of two years beginning on February 1 of each odd-numbered year.

(b)iiA member may serve more than one term.

Sec.i161.058.iiVACANCIES. (a) A vacancy on the commission shall be filled for the remainder of the unexpired term as follows:

(1)iiif the vacancy involves a member appointed by the county judge or a county commissioner, the vacancy is filled, except as provided by Subsection (b), by appointment of that officer or the officer's successor in office; or

(2)iiif the vacancy involves a member appointed under Section 161.055(a)(2), the vacancy is filled as provided by that section for an appointment to a full term.

(b)iiIf the county judge or county commissioner, as applicable, does not fill the vacancy before the 60th day after the date the position becomes vacant, the commission may fill the vacancy by a majority vote of the remaining members.

Sec.i161.059.iiMEETINGS. (a) The commission shall meet on a regular basis.

(b)iiThe commission is a governmental body for purposes of Chapter 551, Government Code.

(c)iiExcept as otherwise provided by this chapter, a majority of the commission constitutes a quorum.

Sec.i161.0591.iiCHAIR. (a) The position of chair alternates every six months between members appointed under Section 161.055(a)(1) and members appointed under Section 161.055(a)(2) and rotates so that each position on the commission serves as chair, as follows:

(1)iithe rotation of members appointed under Section 161.055(a)(1) begins with the member appointed by the county judge, followed by the members appointed by the county commissioners in order of precinct number; and

(2)iithe rotation of members appointed under Section 161.055(a)(2) begins with the member appointed under Section 161.055(a)(2)(A), followed by the members appointed under Sections 161.055(a)(2)(B), (C), (D), and (E) in that order.

(b)iiThe member serving as chair may not vote on a matter before the commission except to break a tie vote.

Sec.i161.060.iiREMOVAL OF COMMISSION MEMBER. A member of the commission is a county officer described by Section 87.012(15) and may be removed as provided by Chapter 87 if, after a trial, the jury finds good cause for removal, including:

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(1)iifailure to pay local, state, or federal taxes when due;

(2)iiviolation of the ethics code adopted by the commission;

(3)iiconviction of a felony or misdemeanor;

(4)iiexcessive absenteeism as determined by the commission; and

(5)iiofficial misconduct.

Sec.i161.061.iiLEGAL REPRESENTATION. The county attorney, or district attorney, or criminal district attorney, as appropriate, with the duty to represent the county in civil matters shall represent the commission in all legal matters.

[Sections 161.062-161.100 reserved for expansion]

SUBCHAPTER C. POWERS

Sec.i161.101.iiGENERAL POWERS. (a) The commission shall adopt, publish, and enforce an ethics code governing county public servants.

(b)iiThe commission may adopt or use as a guide any ethics law or rule of the United States, this state, or a political subdivision in this state to the extent that the law or rule promotes the purposes of this chapter and serves the needs of the county. For purposes of Section 161.002(9), in determining the applicable amount of compensation of a person who communicates directly with a county officer or employee to influence official action and engages in such communication as part of the person's regular employment, the commission shall adopt rules that are substantially similar to the rules or interpretations of the Texas Ethics Commission under Chapter 305, Government Code, to calculate the compensation.

(c)iiThe commission may adopt bylaws, rules, forms, policies, or procedures to assist in the administration of the commission's duties under this chapter. The commission may be guided by Robert's Rules of Order to the extent that it does not conflict with the constitution and laws of the United States and this state or conflict with other guidelines adopted by the commission.

(d)iiThe commission shall be assigned staff by the county and provided access to county resources to assist in its duties.

(e)iiThe commission shall develop and implement policies that provide the public with information on the commission and the ethics code.

(f)iiThe commission shall enforce the provisions of the ethics code by issuing appropriate orders or recommendations or by imposing appropriate penalties.

Sec.i161.102.iiADVISORY OPINIONS. On the request of any person covered by the ethics code adopted by the commission, the commission may issue a written ethics advisory opinion regarding the application of the ethics code to a specified existing or hypothetical factual situation. The commission may not issue an opinion that includes the name of any person who may be affected by the opinion. The name of the person requesting the opinion shall be deemed confidential.

Sec.i161.103.iiPUBLIC INTEREST INFORMATION. (a) The commission shall develop plain-language materials as described by this section. The commission shall post the information on the county's Internet website and make the information otherwise available to the public.

(b)iiThe materials must include:

(1)iia description of:

(A)iithe commission's responsibilities;

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(B)iithe types of conduct that constitute a violation of the ethics code adopted by the commission;

(C)iithe types of sanctions the commission may impose;

(D)iithe commission's policies and procedures relating to complaint investigation and resolution; and

(E)iithe duties of a person filing a complaint with the commission; and

(2)iia diagram showing the basic steps in the commission's procedures relating to complaint investigation and resolution.

(c)iiThe commission shall provide the materials described by this section to each complainant and respondent.

(d)iiThe commission shall adopt a policy to effectively distribute materials as required by this section.

Sec.i161.104.iiCOMMISSION MEMBER EDUCATION AND TRAINING. (a) Not later than the 60th day after the date a person is appointed to the commission, the person must complete training on the following matters:

(1)iithe legislation that created the commission;

(2)iithe role and functions of the commission; and

(3)iithe requirements of:

(A)iithe open meetings law, Chapter 551, Government Code;

(B)iithe public information law, Chapter 552, Government Code; and

(C)iiother laws relating to public officials, including conflict-of-interest laws.

(b)iiA member of the commission must complete subsequent training programs on the following matters:

(1)iithe ethics code adopted by the commission; and

(2)iithe procedural rules adopted by the commission.

(c)iiOther than the initial appointees and public representatives, a person who is appointed to and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this section.

Sec.i161.105.iiEDUCATION AND TRAINING FOR PERSONS COVERED BY ETHICS CODE. (a) The commission and commission staff shall provide periodic training for persons covered by the ethics code adopted by the commission on at least a quarterly basis.

(b)iiThe training program must provide information regarding:

(1)iithe ethics code;

(2)iithe role and functions of the commission; and

(3)iiplain-language materials as further described by Section 161.103.

(c)iiIn addition to the qualifications under Subchapter C, Chapter 262, before submitting a bid, responding to a request for qualifications or proposals, or otherwise contracting with the county, an officer, principal, or other person with the authority to bind the vendor shall complete training on the ethics code.

(d)iiA lobbyist intending to meet with a person covered by the ethics code shall complete training on the ethics code.

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Sec.i161.106.iiCERTAIN DISCUSSIONS OF PENDING COMPLAINTS PROHIBITED. Until a sworn complaint alleging a violation of the ethics code is resolved:

(1)iia member of the commission appointed under Section 161.055(a)(1) may not discuss the complaint with the member of the commissioners court who appointed the commission member; and

(2)iia member of the commission appointed under Section 161.055(a)(2) may not discuss the complaint with any member of the commissioners court.

[Sections 161.107-161.150 reserved for expansion]

SUBCHAPTER D. COMPLAINT PROCEDURES AND HEARINGS

Sec.i161.151.iiDEFINITIONS. In this subchapter:

(1)ii"Category One violation" means a violation of the ethics code adopted by the commission as to which it is generally not difficult to ascertain whether the violation occurred or did not occur, including:

(A)iithe failure by a person required to file a statement or report required under the ethics code to:

(i)iifile the statement or report in a manner that complies with applicable requirements; or

(ii)iifile the statement or report in a timely manner;

(B)iia misrepresentation in a report required under the ethics code; or

(C)iia failure to respond in a timely manner to a written notice under Section 161.156(b).

(2)ii"Category Two violation" means a violation of the ethics code adopted by the commission that is not a Category One violation.

Sec.i161.152.iiCOMPLAINT PROCEDURES AND HEARINGS. The commission shall adopt the complaint procedures and hearings set forth in this subchapter. The commission may adopt additional procedures not in conflict with this subchapter.

Sec.i161.153.iiHEARINGS AND SETTLEMENT. (a) The commission may:

(1)iihold a hearing on a sworn complaint and render a decision on a complaint or report of a violation as provided by this chapter; and

(2)iiagree to the settlement of issues.

(b)iiThe commission may not:

(1)iiconsider a complaint or vote to investigate a matter outside the commission's jurisdiction; or

(2)iiinvestigate any matter except in response to a sworn complaint.

Sec.i161.154.iiCATEGORIZATION OF VIOLATIONS. An allegation of a violation listed as a Category One violation shall be treated as a Category Two violation if the commission at any time determines that:

(1)iithe allegation arises out of the same set of facts as those that give rise to an allegation of a Category Two violation, and the interests of justice or efficiency require resolution of the allegations together; or

(2)iithe facts and law related to a particular allegation or a defense to the allegation present a level of complexity that prevents resolution through the preliminary review procedures for Category One violations prescribed by Section 161.159(a).

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Sec.i161.155.iiFILING OF COMPLAINT; CONTENTS. (a) An individual may file with the commission a sworn complaint, on a form prescribed by the commission, alleging that a person subject to the ethics code has violated the ethics code. The commission shall make the complaint form available on the county website.

(b)iiA complaint filed under this section must be in writing and under oath and must set forth in simple, concise, and direct statements:

(1)iithe name of the complainant;

(2)iithe street or mailing address of the complainant;

(3)iithe name of each respondent;

(4)iithe position or title of each respondent;

(5)iithe nature of the alleged violation, including if possible the specific rule or provision of the ethics code alleged to have been violated;

(6)iia statement of the facts constituting the alleged violation and the dates on which or period of time in which the alleged violation occurred; and

(7)iiall documents or other material available to the complainant that are relevant to the allegation, a list of all documents or other material within the knowledge of the complainant and available to the complainant that are relevant to the allegation but that are not in the possession of the complainant, including the location of the documents, if known, and a list of all documents or other material within the knowledge of the complainant that are unavailable to the complainant and that are relevant to the complaint, including the location of the documents, if known.

(c)iiThe complaint must be accompanied by an affidavit stating either that the information contained in the complaint is correct or that the complainant has good reason to believe and does believe that the violation occurred. If the complaint is based on information and belief, the complaint shall state the source and basis of the information and belief. The complainant may swear to the facts by oath before a notary public or other authorized official.

(d)iiThe complaint must state on its face an allegation that, if true, constitutes a violation of the ethics code.

Sec.i161.1551.iiSTANDING PRELIMINARY REVIEW COMMITTEE. (a) The standing preliminary review committee shall perform the actions prescribed by this subchapter in conducting a preliminary review of each sworn complaint filed with the commission.

(b)iiThe standing preliminary review committee consists of:

(1)iitwo members of the commission, determined as provided by Subsection (c); and

(2)iia review officer selected and retained by the commission.

(c)iiThe initial standing preliminary review committee consists of one commission member, chosen by lot, from the members of the commission appointed under Section 161.055(a)(1), and one commission member, chosen by lot, from the members appointed under Section 161.055(a)(2).

(d)iiA commission member serves on the standing preliminary review committee for six months. After the end of a commission member term on the standing preliminary review committee, service on the committee rotates as provided by

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(e)iiThe review officer must be a practicing attorney or former judge.

Sec.i161.156.iiPROCESSING OF COMPLAINT. (a) The standing preliminary review committee shall determine whether a sworn complaint filed with the commission complies with the form requirements of Section 161.155.

(b)iiNot later than the 10th business day after the date a complaint is filed, the standing preliminary review committee shall send written notice to the complainant and the respondent. The notice must state whether the complaint complies with the form requirements of Section 161.155 and include the information required by Section 161.158(c).

(c)iiIf the standing preliminary review committee determines that the complaint does not comply with the form requirements, the committee shall send the complaint to the complainant with the written notice, a statement explaining how the complaint fails to comply, and a copy of the rules for filing sworn complaints. The complainant may resubmit the complaint not later than the 21st day after the date the notice under Subsection (b) is mailed. If the standing preliminary review committee determines that the complaint is not resubmitted within the 21-day period, the committee shall:

(1)iidismiss the complaint; and

(2)iinot later than the 10th business day after the date of the dismissal, send written notice to the complainant and the respondent of the dismissal and the grounds for dismissal.

(d)iiIf the standing preliminary review committee determines that a complaint is resubmitted under Subsection (c) within the 21-day period but is not in proper form, the committee shall send the notice required under Subsection (c), and the complainant may resubmit the complaint under that subsection.

(e)iiIf the standing preliminary review committee determines that a complaint returned to the complainant under Subsection (c) or (d) is resubmitted within the 21-day period and that the complaint complies with the form requirements, the committee shall send the written notice under Subsection (b).

(f)iiIf a complaint filed with the commission is within the jurisdiction of the commission but may also be brought under the provisions of a collective bargaining agreement authorized by Chapter 174, a civil service rule under Section 158.0025, or a rule of the sheriff's department, the commission shall defer jurisdiction over the complaint to the sheriff for disposition. The sheriff may return a complaint deferred under this subsection to the commission for additional proceedings as the commission determines appropriate if the sheriff determines that the conduct alleged in the complaint is not within the scope of the collective bargaining agreement, civil service rule, or sheriff's department rule. The sheriff may not return a complaint deferred under this section if:

(1)iithe sheriff disciplines the employee under the collective bargaining agreement, civil service rule, or sheriff's department rule for the conduct alleged in the sworn complaint; or

(2)iithe sheriff determines that the employee did not commit the conduct alleged in the sworn complaint.

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Sec.i161.157.iiRETALIATION AGAINST COUNTY EMPLOYEE REPORTING VIOLATION OF ETHICS CODE PROHIBITED. (a) The county may not suspend or terminate the employment of or take other adverse action against a county employee who in good faith files a complaint or otherwise reports to the commission, commission staff, or another law enforcement authority a violation of the ethics code by a person subject to the ethics code.

(b)iiThe county may not suspend or terminate the employment of or take other adverse action against a county employee who in good faith participates in the complaint processing, preliminary review, hearing, or any other aspect of the investigation and resolution by the commission of an alleged violation of the ethics code by a person subject to the ethics code.

(c)iiA commission created by a county under this chapter is a part of the "local governmental entity" for purposes of Section 554.002, Government Code.

(d)iiAn ethics code adopted by a commission pursuant to this chapter is a "law" as defined by Section 554.001, Government Code.

Sec.i161.158.iiPRELIMINARY REVIEW: INITIATION. (a) The standing preliminary review committee shall promptly conduct a preliminary review on receipt of a written complaint that is in compliance with the form requirements of Section 161.155.

(b)iiThe standing preliminary review committee shall determine in writing whether the commission has jurisdiction over the violation of the ethics code provision alleged in a sworn complaint processed under Section 161.156.

(c)iiIf the standing preliminary review committee determines that the commission has jurisdiction, the committee shall issue a notice under Section 161.156(b) that must include:

(1)iia statement that the commission has jurisdiction over the violation alleged in the complaint;

(2)iia statement of whether the complaint will be processed as a Category One violation or a Category Two violation, subject to reconsideration as provided for by Section 161.154;

(3)iithe date by which the respondent is required to respond to the notice;

(4)iia copy of the complaint and the rules of procedure of the commission;

(5)iia statement of the rights of the respondent;

(6)iia statement inviting the respondent to provide to the commission any information relevant to the complaint; and

(7)iia statement that a failure to timely respond to the notice will be treated as a separate violation.

(d)iiIf the standing preliminary review committee determines that the commission does not have jurisdiction over the violation alleged in the complaint, the committee shall:

(1)iidismiss the complaint; and

(2)iinot later than the 10th business day after the date of the dismissal, send to the complainant and the respondent written notice of the dismissal and the grounds for the dismissal.

Sec.i161.159.iiPRELIMINARY REVIEW: RESPONSE BY RESPONDENT. (a) If the alleged violation is a Category One violation:

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(1)iithe respondent must respond to the notice required by Section 161.156(b) not later than the 10th business day after the date the respondent receives the notice; and

(2)iiif the matter is not resolved by agreement between the commission and the respondent before the 30th business day after the date the respondent receives the notice under Section 161.156(b), the standing preliminary review committee shall set the matter for a preliminary review hearing to be held at the next committee meeting for which notice has not yet been posted.

(b)iiIf the alleged violation is a Category Two violation:

(1)iithe respondent must respond to the notice required by Section 161.156(b) not later than the 25th business day after the date the respondent receives the notice under Section 161.156(b); and

(2)iiif the matter is not resolved by agreement between the commission and the respondent before the 75th business day after the date the respondent receives the notice under Section 161.156(b), the standing preliminary review committee shall set the matter for a preliminary review hearing to be held at the next committee meeting for which notice has not yet been posted.

(c)iiA respondent's failure to timely respond as required by Subsection (a)(1) or (b)(1) is a Category One violation.

(d)iiThe response required by Subsection (a) or (b) must include any challenge the respondent seeks to raise to the commission's exercise of jurisdiction. In addition, the respondent may:

(1)iiacknowledge the occurrence or commission of a violation;

(2)iideny the allegations contained in the complaint and provide evidence supporting the denial; or

(3)iiagree to enter into an assurance of voluntary compliance or other agreed order, which may include an agreement to immediately cease and desist.

(e)iiIf the standing preliminary review committee sets the matter for a preliminary review hearing, the committee shall promptly send to the complainant and the respondent written notice of the date, time, and place of the preliminary review hearing.

Sec.i161.160.iiPRELIMINARY REVIEW: WRITTEN QUESTIONS. During a preliminary review, the commission staff may submit to the complainant or respondent written questions reasonably intended to lead to the discovery of matters relevant to the investigation.

Sec.i161.161.iiPRELIMINARY REVIEW AND PRELIMINARY REVIEW PROCEDURES. The commission shall adopt procedures for the conduct of preliminary reviews and preliminary review hearings. The procedures must include:

(1)iia reasonable time for responding to questions submitted by the commission and commission staff and subpoenas issued by the commission; and

(2)iithe tolling or extension of otherwise applicable deadlines where:

(A)iithe commission issues a subpoena and the standing preliminary review committee's meeting schedule makes it impossible both to provide a reasonable time for response and to comply with the otherwise applicable deadlines; or

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(B)iithe commission determines that, despite the standing preliminary review committee's diligence and the reasonable cooperation of the respondent, a matter is too complex to resolve within the otherwise applicable deadlines without compromising either the committee's investigation or the rights of the respondent.

Sec.i161.162.iiPRELIMINARY REVIEW HEARING: PROCEDURE. (a) The standing preliminary review committee shall conduct a preliminary review hearing if:

(1)iifollowing the preliminary review, the standing preliminary review committee and the respondent cannot agree to the disposition of the complaint; or

(2)iithe respondent in writing requests a hearing.

(b)iiThe standing preliminary review committee shall provide written notice to the complainant and the respondent of the date, time, and place the committee will conduct the preliminary review hearing.

(c)iiAt or after the time the standing preliminary review committee provides notice of a preliminary review hearing, the committee may submit to the complainant and the respondent written questions and require those questions to be answered under oath within a reasonable time. After receiving answers to any questions submitted to the complainant under this subsection and before the preliminary review hearing, the committee shall provide the respondent both the questions and the answers to the questions submitted by the complainant. This subsection may not be construed to require a person to give evidence that violates the person's right against self-incrimination under the United States Constitution or the Texas Constitution.

(d)iiOn the request of the respondent, the standing preliminary review committee shall request that any information in the possession or control of the complainant, including exculpatory information, that is directly related to the complaint be provided the respondent and the committee.

(e)iiDuring a preliminary review hearing, the standing preliminary review committee:

(1)iimay consider all submitted evidence related to the complaint;

(2)iimay review any documents or material related to the complaint; and

(3)iishall determine whether there is credible evidence that provides cause for the committee to conclude that a violation within the jurisdiction of the commission has occurred.

(f)iiDuring a preliminary review hearing, the respondent may appear before the standing preliminary review committee with the assistance of counsel, if desired by the respondent, and present any relevant evidence, including a written statement.

Sec.i161.163.iiPRELIMINARY REVIEW HEARING: RESOLUTION. (a) As soon as practicable after the completion of a preliminary review hearing, the standing preliminary review committee by vote shall issue a decision stating:

(1)iiwhether there is credible evidence for the committee to determine that a violation within the jurisdiction of the commission has occurred and whether the violation is technical or de minimis; or

(2)iithat there is insufficient evidence for the committee to determine whether a violation within the jurisdiction of the commission has occurred.

(b)iiIf the standing preliminary review committee determines that there is credible evidence for the committee to determine that a violation has occurred, the committee shall resolve and settle the complaint to the extent possible. If the

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(1)iiorder a formal hearing to be held in accordance with Sections 161.164 through 161.167; and

(2)iinot later than the 10th business day after the date of the order, send to the complainant and the respondent:

(A)iia copy of the order;

(B)iiwritten notice of the date, time, and place of the formal hearing;

(C)iia statement of the nature of the alleged violation;

(D)iia description of the evidence of the alleged violation;

(E)iia copy of the complaint;

(F)iia copy of the commission's rules of procedure; and

(G)iia statement of the rights of the respondent.

(c)iiIf the standing preliminary review committee determines that there is credible evidence for the committee to determine that a violation within the jurisdiction of the commission has not occurred, the committee shall:

(1)iidismiss the complaint; and

(2)iinot later than the fifth business day after the date of the dismissal, send to the complainant and the respondent a copy of the order stating the committee's determination and written notice of the dismissal and the grounds for dismissal.

(d)iiIf the standing preliminary review committee determines that there is insufficient credible evidence for the committee to determine that a violation within the jurisdiction of the commission has occurred, the commission may dismiss the complaint or order a formal hearing under Sections 161.164 through 161.167. Not later than the fifth business day after the date of the committee's determination under this subsection, the committee shall send to the complainant and the respondent a copy of the decision stating the committee's determination and written notice of the grounds for the determination.

Sec.i161.164.iiFORMAL HEARING: STANDARD OF EVIDENCE. During a formal hearing, the commission shall determine by a preponderance of the evidence whether a violation within the jurisdiction of the commission has occurred.

Sec.i161.165.iiFORMAL HEARING: SUBPOENAS AND WITNESSES. (a) A subpoena or other request to testify shall be served sufficiently in advance of the scheduled appearance at a formal hearing to allow a reasonable period, as determined by the commission, for the person subpoenaed to prepare for the hearing and to employ counsel if desired.

(b)iiExcept as provided by Section 161.166(a)(1), the commission may order that a person may not, except as specifically authorized by the presiding officer, make public the name of a witness subpoenaed by the commission before the date of that witness's scheduled appearance.

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(c)iiA witness may read a written statement or present a brief oral opening statement at a formal hearing, subject to the rules of evidence applicable to a contested case under Section 2001.081, Government Code.

(d)iiA person whose name is mentioned or who is identified or referred to in testimony or in statements made by a commission member, commission staff member, or witness and who reasonably believes that the statement tends to adversely affect the person's reputation may:

(1)iirequest to appear personally before the commission to testify in the person's own behalf; or

(2)iifile a sworn statement of facts relevant to the testimony or statement that the person believes adversely affects the person's reputation.

(e)iiA witness who testifies at a formal hearing must be sworn.

Sec.i161.166.iiFORMAL HEARING: PROCEDURE. (a) Not later than the fifth business day before the date of a scheduled formal hearing or on the granting of a motion for discovery by the respondent, the commission shall provide to the respondent:

(1)iia list of proposed witnesses to be called at the hearing;

(2)iicopies of all documents expected to be introduced as exhibits at the hearing; and

(3)iia brief statement as to the nature of the testimony expected to be given by each witness to be called at the hearing.

(b)iiThe respondent may not be compelled to give evidence or testimony that violates the respondent's right against self-incrimination under the United States Constitution or the Texas Constitution.

(c)iiThe commission shall adopt rules governing discovery, hearings, and related procedures consistent with this chapter and Chapter 2001, Government Code.

Sec.i161.167.iiFORMAL HEARING: RESOLUTION. (a) Not later than the 30th business day after the date of the formal hearing, the commission shall convene a meeting and by motion shall issue:

(1)iia final decision stating the resolution of the formal hearing; and

(2)iia written report stating the commission's findings of fact, conclusions of law, and recommendation of imposition of a civil penalty, if any.

(b)iiSix members of the commission are required for a quorum at a formal hearing.

(c)iiNot later than the 10th business day after the date the commission issues the final decision and written report, the commission shall:

(1)iisend a copy of the decision and report to the complainant and to the respondent; and

(2)iimake a copy of the decision and report available to the public during reasonable business hours.

Sec.i161.168.iiSTATUS OF COMPLAINT. (a) The commission shall keep an information file about each sworn or other complaint filed with the commission. The file must include:

(1)iithe name of the person who filed the complaint;

(2)iithe date the complaint is received by the commission;

(3)iithe subject matter of the complaint;

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(4)iithe name of each person contacted in relation to the complaint;

(5)iia summary of the results of the review or investigation of the complaint; and

(6)iian explanation of the reason the file was closed, if the commission closed the file without taking action other than to investigate the complaint.

(b)iiThe commission shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the commission's policies and procedures relating to complaint investigation and resolution.

(c)iiIn addition to the notice required by Sections 161.156 and 161.167, the commission, at least quarterly until final disposition of a complaint, shall notify the person who filed the complaint and each person who is a subject of the complaint of the status of the sworn complaint.

(d)iiThe commission shall resolve a complaint within six months of its receipt unless it makes a determination that additional time is required to resolve the matter. On a determination that additional time is required, the commission may extend the investigation in three-month increments. Each extension requires separate approval by the commission.

(e)iiIf the commission does not resolve the matter within six months or within an authorized extension, the complaint shall be deemed to have been dismissed without prejudice.

Sec.i161.169.iiEXTENSION OF DEADLINE.i The commission may, on its own motion or on the reasonable request of a respondent, extend any deadline for action relating to a sworn complaint, preliminary review hearing, or formal hearing.

Sec.i161.170.iiSUBPOENA. (a) In connection with a formal hearing, the commission, as authorized by this chapter, may subpoena and examine witnesses and documents that directly relate to a sworn complaint.

(b)iiIn connection with a preliminary review, the commission, for good cause and as authorized by this chapter, may subpoena documents and witnesses on application by the commission staff and a motion adopted by a vote of at least five members of the commission, for the purpose of attempting to obtain from the documents or witnesses specifically identified information, if the commission reasonably believes that the specifically identified information:

(1)iiis likely to be determinative as to whether the subject of an investigation has violated a provision of the ethics code;

(2)iican be determined from the documents or is known by the witnesses; and

(3)iiis not reasonably available through a less intrusive means.

(c)iiThe commission shall adopt procedures for the issuance of subpoenas under this section.

(d)iiSection 2001.089, Government Code, applies to a subpoena issued under this subchapter. On the request of the respondent, the commission shall subpoena any information in the possession or control of any person identified in the request, including exculpatory information, that is directly related to the complaint and provide the information to the respondent.

(e)iiA copy of a subpoena issued under this section must be delivered to the respondent.

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(f)iiAt the written request of at least five members of the commission, a peace officer shall serve a subpoena of the commission in the manner prescribed for service of a district court subpoena.

(g)iiIf a person to whom a subpoena is directed refuses to appear, refuses to answer inquiries, or fails or refuses to produce books, records, or other documents that were under the person's control when the demand was made, the commission shall report that fact to a district court in the county. The district court shall enforce the subpoena by attachment proceedings for contempt in the same manner as the court enforces a subpoena issued by the court.

(h)iiA respondent has the right to quash a subpoena in a district court in the county as provided by law.

(i)iiA subpoenaed witness who attends a commission hearing is entitled to the same mileage and per diem payments as a witness who appears before a grand jury. A person who provides subpoenaed documents to the commission is entitled to reimbursement from the commission for the person's reasonable cost of producing the documents.

Sec.i161.171.iiSTATUS OF COMPLAINANT. The complainant is not a party to a preliminary review, preliminary review hearing, or formal hearing under this subchapter.

Sec.i161.172.iiAPPLICABILITY OF OTHER ACTS. (a) Except as provided by Section 161.173(b), Chapter 552, Government Code, does not apply to documents or any additional evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint.

(b)iiChapter 551, Government Code, does not apply to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint, but does apply to a formal hearing held under Sections 161.164 through 161.167.

(c)iiSubchapters C through H, Chapter 2001, Government Code, apply only to a formal hearing under this subchapter, the resolution of a formal hearing, and the appeal of a final order of the commission, and only to the extent consistent with this chapter.

Sec.i161.173.iiCONFIDENTIALITY; OFFENSE. (a) Except as provided by Subsection (b), (c), or (m), proceedings at a preliminary review hearing performed by the commission, a sworn complaint, and documents and any additional evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint are confidential and may not be disclosed unless entered into the record of a formal hearing or a judicial proceeding, except that a document or statement that was previously public information remains public information.

(b)iiAn order issued by the commission after the completion of a preliminary review or hearing determining that a violation other than a technical or de minimis violation has occurred is not confidential.

(c)iiCommission staff may, for the purpose of investigating a sworn complaint, disclose to the complainant, the respondent, or a witness information that is otherwise confidential and relates to the sworn complaint if:

(1)iithe employee makes a good faith determination that the disclosure is necessary to conduct the investigation;

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(2)iithe employee's determination under Subdivision (1) is objectively reasonable;

(3)iithe commission specifically authorizes the disclosure; and

(4)iithe employee discloses only the information necessary to conduct the investigation.

(d)iiA person commits an offense if the person intentionally:

(1)iidestroys, mutilates, or alters information obtained under this chapter; or

(2)iiremoves information obtained under this chapter without permission as provided by this chapter.

(e)iiAn offense under Subsection (d) is a misdemeanor punishable by:

(1)iia fine of not less than $25 or more than $4,000;

(2)iiconfinement in the county jail for not less than three days or more than three months; or

(3)iiboth the fine and confinement.

(f)iiA person commits an offense if the person distributes information considered confidential under the terms of this chapter.

(g)iiA person who obtains access to confidential information under this chapter commits an offense if that person knowingly:

(1)iiuses the confidential information for a purpose other than the purpose for which the information was received or for a purpose unrelated to this chapter, including solicitation of political contributions or solicitation of clients;

(2)iipermits inspection of the confidential information by a person who is not authorized to inspect the information; or

(3)iidiscloses the confidential information to a person who is not authorized to receive the information.

(h)iiAn offense under Subsection (f) or (g) is a misdemeanor punishable by:

(1)iia fine of not more than $1,000;

(2)iiconfinement in the county jail for not more than six months; or

(3)iiboth the fine and confinement.

(i)iiIf conduct that constitutes an offense under this section also constitutes an offense under the Penal Code, including under Section 37.10 or 39.06 of that code, the person may be prosecuted under this section or the Penal Code, as applicable.

(j)iiA violation under this section constitutes official misconduct.

(k)iiIn addition to other penalties, the respondent may commence a civil action for damages on the respondent's own behalf against any person who is alleged to have disclosed information made confidential by this subchapter. Any action under this chapter must be brought in a district court in the county. The court may award costs and attorney's fees.

(l)iiA county employee is subject to discipline, including termination of employment, for disclosing confidential information under this chapter.

(m)iiThe commission may disclose confidential information in making a referral to a prosecuting attorney concerning an offense under this section.

(n)iiA county employee who discloses confidential information in compliance with Subsection (c) or (m) is not subject to Subsections (d)-(l).

4306 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i161.174.iiAVAILABILITY OF COMMISSION ORDERS ON INTERNET. (a) As soon as practicable following a preliminary review, preliminary review hearing, or formal hearing at which the commission determines that a person has committed a violation within the commission's jurisdiction, the commission shall make available on the Internet:

(1)iia copy of the commission's order stating the determination; or

(2)iia summary of the commission's order.

(b)iiThis section does not apply to a determination of a violation that is technical or de minimis.

[Sections 161.175-161.200 reserved for expansion]

SUBCHAPTER E. ENFORCEMENT

Sec.i161.201.iiORDER. The commission may:

(1)iiissue and enforce a cease and desist order to stop a violation;

(2)iiissue an affirmative order to require compliance with the laws administered and enforced by the commission; and

(3)iiissue an order of public censure with or without a civil penalty imposed under Section 161.202.

Sec.i161.202.iiCIVIL PENALTY FOR DELAY OR VIOLATION. (a) The commission may impose a civil penalty of not more than $500 for each delay in complying with a commission order.

(b)iiThe commission may impose a civil penalty of not more than $4,000 for a violation of the ethics code adopted by the commission.

(c)iiA penalty paid under this section shall be deposited to the credit of the general fund of the county.

(d)iiThis section is cumulative of any other available sanctions under this chapter.

Sec.i161.203.iiWAIVER OR REDUCTION OF PENALTY. (a) A person may request the waiver or reduction of a civil penalty by submitting an affidavit to the commission that states the filer's reasons for requesting a waiver or reduction.

(b)iiThe commission may waive or reduce a civil penalty if the commission finds that a waiver or reduction is in the public interest and in the interest of justice. The commission shall consider the following before acting to waive or reduce a civil penalty:

(1)iithe facts and circumstances supporting the person's request for a waiver or reduction;

(2)iithe seriousness of the violation, including the nature, circumstances, consequences, extent, and gravity of the violation, and the amount of the penalty;

(3)iiany history of previous violations by the person;

(4)iithe demonstrated good faith of the person, including actions taken to rectify the consequences of the violation;

(5)iithe penalty necessary to deter future violations; and

(6)iiany other matter that justice may require.

(c)iiAfter hearing the waiver request, the commission may affirm, reduce, or waive the civil penalty.

Friday, May 29, 2009 SENATE JOURNAL 4307

Sec.i161.204.iiNOTIFICATION OF REGULATORY OR SUPERVISORY ENTITY. The commission may notify the appropriate regulatory or supervisory entity, including any agency, the State Commission on Judicial Conduct, or the State Bar of Texas, of a violation of the ethics code adopted by the commission.

Sec.i161.205.iiCIVIL PENALTY FOR FRIVOLOUS OR BAD-FAITH COMPLAINT. (a) The commission may impose a civil penalty of not more than $4,000 for the filing of a frivolous or bad-faith complaint. In this subsection, "frivolous complaint" means a complaint that is groundless and brought in bad faith or is groundless and brought for the purpose of harassment.

(b)iiIn addition to other penalties, the respondent may commence a civil action on the respondent's own behalf against any person who filed a frivolous complaint against the respondent. Any action under this chapter shall be brought in a district court in the county. The court may award costs and attorney's fees.

(c)iiA person may file a sworn complaint with the commission, in accordance with Section 161.155, alleging that a complaint relating to that person filed with the commission is frivolous or brought in bad faith. A complaint may be filed under this subsection without regard to whether the complaint alleged to be frivolous or brought in bad faith is pending before the commission or has been resolved. The commission shall act on a complaint made under this subsection as provided by Subchapter D.

Sec.i161.206.iiFACTORS CONSIDERED FOR ASSESSMENT OF SANCTION. The commission shall consider the following factors in assessing a sanction:

(1)iithe seriousness of the violation, including the nature, circumstances, consequences, extent, and gravity of the violation;

(2)iithe history and extent of previous violations;

(3)iithe demonstrated good faith of the violator, including actions taken to rectify the consequences of the violation;

(4)iithe penalty necessary to deter future violations; and

(5)iiany other matters that justice may require.

Sec.i161.207.iiAPPEALS. (a) A respondent may appeal the decision by filing a petition in a district court in the county within 30 days after the date of the decision.

(b)iiAn appeal brought under this section is not limited to questions of law, and the substantial evidence rule does not apply. The action shall be determined by trial de novo. The reviewing court shall try all issues of fact and law in the manner applicable to other civil suits in this state but may not admit in evidence the fact of prior action by the commission or the nature of that action, except to the limited extent necessary to show compliance with statutory provisions that vest jurisdiction in the court. A party is entitled, on demand, to a jury determination of any issue of fact on which a jury determination is available in other civil suits in this state.

(c)iiIf the district court renders judgment for the petitioner, and the petitioner is a county employee, the court may order reinstatement of the county employee, payment of back pay, or other appropriate relief.

(d)iiIf the district court renders judgment for the petitioner, the court may order appropriate relief, including costs and attorney's fees.

4308 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i161.208.iiDELIVERY OF RECORD TO REVIEWING COURT. (a) After service of the petition on the commission and within the time permitted for filing an answer or within additional time allowed by the court, the commission shall send to the reviewing court the original or a certified copy of the entire record of the proceeding under review.

(b)iiThe record shall be filed with the clerk of the court. The record may be shortened by stipulation of all parties to the review proceedings. The court may assess additional costs against a party who unreasonably refuses to stipulate to limit the record, unless the party pays all costs of record preparation.

(c)iiThe court may require or permit later corrections or additions to the record.

Sec.i161.209.iiCOST OF PREPARING COMMISSION RECORD. (a) The commission may require a party who appeals a final decision under Section 161.207 to pay one-half of the cost of preparation of the original or a certified copy of the record of the commission proceeding that is required to be sent to the reviewing court.

(b)iiA charge imposed under this section is a court cost and may be assessed by the court in accordance with the Texas Rules of Civil Procedure.

Sec.i161.210.iiCOLLECTIONS. The county attorney may collect a fine or other penalty imposed by the commission under this chapter in the same manner as provided for the collection of a debt owed to the county.

[Sections 161.211-161.300 reserved for expansion]

SUBCHAPTER F. DISSOLUTION OF COMMISSION

Sec.i161.301.iiPETITION FOR DISSOLUTION OF COMMISSION. If, after an ethics commission created pursuant to Section 161.052 has been in effect for at least one year, 10 percent of the qualified voters of the county petition the commissioners court to dissolve the commission, the commissioners court shall call an election to determine whether the commission will be dissolved.

Sec.i161.302.iiDISSOLUTION ELECTION. (a)iiAn election under this subchapter must be held in the manner provided for an election to create a county ethics commission.

(b)iiThe ballot for the election shall be printed to provide for voting for or against the proposition: "Dissolution of the county ethics commission."

Sec.i161.303.iiDISSOLUTION OF COMMISSION. If the proposition is approved by a majority of the qualified voters voting at the election, the commissioners court shall declare the result and by order dissolve the ethics commission. A copy of the order dissolving the commission shall be placed in the minutes of the court's proceedings.

Sec.i161.304.iiSAVING PROVISIONS. The dissolution of a county ethics commission under this subchapter does not affect:

(1)iithe prior operation of the ethics code adopted by the commission or any prior action taken under it; or

(2)iiany penalty, forfeiture, or punishment incurred for a violation of the ethics code before the effective date of the dissolution.

SECTIONi2.iiThis Act takes effect September 1, 2009.

Friday, May 29, 2009 SENATE JOURNAL 4309

Floor Amendment No. 1

Amend CSSB 1368 (House committee report) as follows:

(1)iiIn SECTION 1 of the bill, in added Section 161.104(c), Local Government Code (page 12, lines 8 and 9), strike "Other than the initial appointees and public representatives, a" and substitute "A".

(2)iiIn SECTION 1 of the bill, strike added Section 161.106, Local Government Code (page 13, lines 4-12), and substitute the following:

Sec.i161.106.iiCERTAIN DISCUSSIONS OF PENDING COMPLAINTS PROHIBITED. Until a sworn complaint alleging a violation of the ethics code is resolved, a member of the commission may not discuss the complaint with a member of the commissioners court.

The amendments were read.

Senator Shapleigh moved to concur in the House amendments to SBi1368.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1945 WITH HOUSE AMENDMENT

Senator West called SBi1945 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Committee Amendment No.i1

Amend SB 1945 as follows:

On page 1, line 12 strike second business and replace with fifth calendar.

The amendment was read.

Senator West moved to concur in the House amendment to SBi1945.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1402 WITH HOUSE AMENDMENT

Senator Hinojosa called SBi1402 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1402 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to requiring certain political subdivisions to enter a contract with the county elections administrator to perform election services.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubchapter D, Chapter 31, Election Code, is amended by adding Section 31.0925 to read as follows:

Sec.i31.0925.iiREQUEST FOR SERVICES REQUIRED. (a) This section applies only to a political subdivision:

(1)iithat is located entirely in a county:

4310 81st Legislature — Regular Session 69th Day (Cont.)

(A)iiwith a population of more than 500,000 that is served by a county elections administrator; and

(B)iithat does not contain a municipality with a population of more than 150,000; and

(2)iithat is not an irrigation district created under the authority of Section 52(b)(1) or (2), Article III, or Section 59, Article XVI, Texas Constitution.

(b)iiThe governing body of a political subdivision shall request an election services contract with the county elections administrator to perform all duties and functions of the political subdivision in relation to an election that may be transferred under this subchapter if the political subdivision receives a petition requesting the contract signed by a number of registered voters residing in the political subdivision that is equal to or exceeds one percent of all votes cast in the most recent general election held by the political subdivision.

(c)iiA petition under this section must be submitted to the clerk of the political subdivision before January 1 of the year in which the election to be administered under the requested election services contract will be held.

SECTIONi2.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Hinojosa moved to concur in the House amendment to SBi1402.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 911 WITH HOUSE AMENDMENT

Senator Williams called SBi911 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 911 (House committee printing) in SECTION 1 of the bill as follows:

(1)iiAt the end of proposed Section 167.002(6), Occupations Code (page 2, line 1), strike "or".

(2)iiAt the end of proposed Section 167.002(7), Occupations Code (page 2, line 5), strike "patients." and substitute "patients; or".

(3)iiImmediately following proposed Section 167.002(7), Occupations Code (page 2, between lines 5 and 6), insert the following:

(8)iia clinic owned or operated by an advanced practice nurse licensed in this state who treats patients in the nurse's area of specialty and uses other forms of treatment with the issuance of a prescription for a majority of the patients.

The amendment was read.

Senator Williams moved to concur in the House amendment to SBi911.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

Friday, May 29, 2009 SENATE JOURNAL 4311

SENATE BILL 2570 WITH HOUSE AMENDMENT

Senator Lucio called SBi2570 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi2570 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the board of directors of the Kenedy County Groundwater Conservation District.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiChapter 1152, Acts of the 78th Legislature, Regular Session, 2003, is amended by adding Section 9A to read as follows:

Sec.i9A.iiMETHOD OF ELECTING DIRECTORS: SINGLE-MEMBER DISTRICTS. (a)iiAs soon as practicable after the effective date of the Act by which this section is enacted into law, the board shall:

(1)iidivide the district into five single-member districts for electing directors; and

(2)iiassign each of the existing board positions to one of the new single-member districts.

(b)iiIn dividing the district into single-member districts under Subsection (a) of this section, the board shall:

(1)iitake into account the existing at-large board position elected by the voters of the Santa Gertrudis Independent School District; and

(2)iidraw the single-member districts in a manner that retains the existing district lines as closely as possible.

(c)iiIf the district annexes territory, the annexed territory becomes part of one or more of the single-member districts as determined by the board.

(d)iiOne director shall be elected from each single-member district.

(e)iiTo be a candidate for or to serve as a director, a person must be a registered voter in the single-member district the person represents or seeks to represent.

(f)iiA person shall indicate on the application for a place on the ballot the single-member district the person seeks to represent.

(g)iiAfter each federal decennial census or as needed, the board may redraw the single-member districts to reflect population changes. A director in office on the effective date of a change in the boundaries of a single-member district, or a director elected or appointed before the effective date of the change whose term of office begins on or after the effective date of the change, shall serve for the remainder of the director's term in the single-member district to which elected or appointed even though the change in boundaries places the director's residence outside the district to which the director was elected or appointed.

SECTIONi2.iiChapter 1162, Acts of the 78th Legislature, Regular Session, 2003, is amended by adding Section 8A to read as follows:

4312 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i8A.iiMETHOD OF ELECTING DIRECTORS: SINGLE-MEMBER DISTRICTS. (a)iiAs soon as practicable after the effective date of the Act by which this section is enacted into law, the board shall:

(1)iidivide the district into five single-member districts for electing directors; and

(2)iiassign each of the existing board positions to one of the new single-member districts.

(b)iiIn dividing the district into single-member districts under Subsection (a) of this section, the board shall:

(1)iitake into account the existing at-large board position elected by the voters of the Santa Gertrudis Independent School District; and

(2)iidraw the single-member districts in a manner that retains the existing district lines as closely as possible.

(c)iiIf the district annexes territory, the annexed territory becomes part of one or more of the single-member districts as determined by the board.

(d)iiOne director shall be elected from each single-member district.

(e)iiTo be a candidate for or to serve as a director, a person must be a registered voter in the single-member district the person represents or seeks to represent.

(f)iiA person shall indicate on the application for a place on the ballot the single-member district the person seeks to represent.

(g)iiAfter each federal decennial census or as needed, the board may redraw the single-member districts to reflect population changes. A director in office on the effective date of a change in the boundaries of a single-member district, or a director elected or appointed before the effective date of the change whose term of office begins on or after the effective date of the change, shall serve for the remainder of the director's term in the single-member district to which elected or appointed even though the change in boundaries places the director's residence outside the district to which the director was elected or appointed.

SECTIONi3.iiThe following laws are repealed:

(1)iiSection 9, Chapter 1152, Acts of the 78th Legislature, Regular Session, 2003; and

(2)iiSection 8, Chapter 1162, Acts of the 78th Legislature, Regular Session, 2003.

SECTIONi4.ii(a)iiThe change in law made by this Act applies only to a director elected or appointed to serve on the board of directors of the Kenedy County Groundwater Conservation District on or after the effective date of this Act.

(b)iiThe change in law made by this Act does not affect the term of office of a director serving on the board of directors of the Kenedy County Groundwater Conservation District on the effective date of this Act.

SECTIONi5.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Lucio moved to concur in the House amendment to SBi2570.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

Friday, May 29, 2009 SENATE JOURNAL 4313

SENATE BILL 1646 WITH HOUSE AMENDMENT

Senator VanideiPutte called SBi1646 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1646 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the Council on Children and Families.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiChapter 531, Government Code, is amended by adding Subchapter T to read as follows:

SUBCHAPTER T. COUNCIL ON CHILDREN AND FAMILIES

Sec.i531.801.iiDEFINITION. In this subchapter, "council" means the Council on Children and Families.

Sec.i531.802.iiCOUNCIL ON CHILDREN AND FAMILIES. (a) The Council on Children and Families is established to:

(1)iicoordinate the state's health, education, and human services systems to ensure that children and families have access to needed services;

(2)iiimprove coordination and efficiency in state agencies, advisory councils on issues affecting children, and local levels of service;

(3)iiprioritize and mobilize resources for children; and

(4)iifacilitate an integrated approach to providing services for children and youth.

(b)iiThe council shall:

(1)iipromote a common vision of desired outcomes for children and youth and of family and community supports;

(2)iipromote shared accountability for outcomes for children and youth; and

(3)iialign allocations of resources with policies for children and youth.

(c)iiSubject to Subsection (d), the council is composed of the following:

(1)iithe executive commissioner;

(2)iithe commissioner of state health services;

(3)iithe commissioner of the Department of Family and Protective Services;

(4)iithe commissioner of aging and disability services;

(5)iithe commissioner of assistive and rehabilitative services;

(6)iithe commissioner of education;

(7)iithe executive director of the Texas Juvenile Probation Commission;

(8)iithe executive commissioner of the Texas Youth Commission;

(9)iithe executive director of the Texas Workforce Commission;

(10)iithe director of the Texas Correctional Office on Offenders with Medical or Mental Impairments;

(11)iitwo public representatives who are parents of children who have received services from an agency represented on the council, appointed by the executive commissioner; and

4314 81st Legislature — Regular Session 69th Day (Cont.)

(12)iitwo representatives who are young adults or adolescents who have received services from an agency represented on the council, appointed by the executive commissioner.

(d)iiAn individual listed in Subsections (c)(1)-(10) may designate another individual as having authority to act on behalf of the individual at council meetings and with respect to council functions.

(e)iiThe members of the council annually shall elect one member to serve as the presiding officer.

(f)iiCouncil meetings are held at the call of the presiding officer.

(g)iiThe council is administratively attached to the commission but is independent of direction by the commission or the executive commissioner. The commission, through the commission's Office of Program Coordination for Children and Youth, shall provide administrative support and resources to the council as necessary to enable the council to perform its duties.

(h)iiThe agencies represented on the council shall provide periodic staff support of specialists as needed to the council.

(i)iiThe council is not subject to Chapter 2110.

Sec.i531.803.iiDUTIES. (a) The council shall:

(1)iianalyze the biennial legislative appropriations requests of members of the council for services provided to children and their families and identify appropriations that, through the coordination of members of the council, could be modified in the next legislative appropriation request to eliminate waste or increase available services and, not later than May 1 of each even-numbered year, prepare a report recommending those modifications for consideration during the development of the next biennial legislative appropriations request;

(2)iiinvestigate opportunities to increase flexible funding for health, education, and human services provided to children and their families;

(3)iiidentify methods to remove barriers to local coordination of health, education, and human services provided to children and their families;

(4)iiidentify methods to ensure that children and youth receive appropriate assessment, diagnoses, and intervention services;

(5)iidevelop methods to prevent unnecessary parental relinquishment of custody of children;

(6)iiprioritize assisting children in family settings rather than institutional settings; and

(7)iimake recommendations about family involvement in the provision and planning of health, education, and human services for a child, including family partner and liaison models.

(b)iiThe state agency members of the council may, as appropriate, enter into memoranda of understanding with other agencies to implement any method, process, policy, or recommendation identified or developed under Subsection (a). Before a method, process, policy, or recommendation is implemented, the council shall:

Friday, May 29, 2009 SENATE JOURNAL 4315

(1)iiidentify:

(A)iithe timeline and proposed outcome of implementing the method, process, policy, or recommendation; and

(B)iibenchmarks that may be used to measure the success of the implementation of the method, process, policy, or recommendation; and

(2)iiassign to the appropriate members of the council responsibility for implementing the method, process, policy, or recommendation.

(c)iiThe council may collect data necessary to conduct the council's duties or implement the council's recommendations and shall use any reports or information produced by other entities related to children, youth, and families to inform the council.

Sec.i531.804.iiREPORT BY COUNCIL REGARDING CHILD WELFARE. Not later than December 1 of each even-numbered year, the council shall submit a report to the governor, lieutenant governor, speaker of the house of representatives, and members of the legislature that contains:

(1)iithe requests, plans, and recommendations of the council, including recommendations of any legislation that is needed to further develop and maintain a statewide system of quality health, education, and human services for children and families; and

(2)iiinformation regarding the implementation by the members of the council of any method, process, policy, or recommendation, including information regarding whether the implementation has proceeded in accordance with the timeline, outcome, and benchmarks identified by the council.

Sec.i531.805.iiSUNSET PROVISION. The Council on Children and Families is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the council is abolished and this subchapter expires September 1, 2019.

SECTIONi2.iiThe Council on Children and Families established by Section 531.802, Government Code, as added by this Act, shall convene its initial meeting not later than October 1, 2009.

SECTIONi3.iiThis Act does not make an appropriation. A provision in this Act that creates a new governmental program, creates a new entitlement, or imposes a new duty on a governmental entity is not mandatory during a fiscal period for which the legislature has not made a specific appropriation to implement the provision.

SECTIONi4.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator VanideiPutte moved to concur in the House amendment to SBi1646.

The motion prevailed by the following vote:iiYeasi30, Naysi0.

Absent:iiWilliams.

4316 81st Legislature — Regular Session 69th Day (Cont.)

SENATE BILL 1592 WITH HOUSE AMENDMENT

Senator Fraser called SBi1592 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer, Senator Eltife in Chair, laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1592 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the assignment of security interests in certain collateral.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 261.004(a), Business & Commerce Code, is amended to read as follows:

(a)iiSubject to Subsection (b), the filing with the secretary of state of a utility security instrument executed by a utility and described by Section 261.003(1) and payment of the filing fee prescribed by Section 261.008:

(1)iiconstitute perfection of a security interest created by the instrument in any personal property:

(A)iiin which a security interest may be perfected by filing under Chapter 9, including any goods that are or will become a fixture;

(B)iithat is located in this state; and

(C)iithat was owned by the utility when the instrument was executed or is to be acquired by the utility after the instrument is executed; [and]

(2)iiif the instrument is proven, acknowledged, or certified as otherwise required by law for the recording of real property mortgages, serve as notice to all persons of the existence of the instrument and the security interest granted by the instrument in any real property, or in any fixture on or to be placed on the property, that:

(A)iiis located in this state; and

(B)iiwas owned by the utility when the instrument was executed or is to be acquired by the utility after the instrument is executed; and

(3)iiresult in priority of the secured party reflected on the utility security instrument and assignees under Section 261.012 over the rights of a lien creditor, as defined by Section 9.102, for so long as the lien is recorded on the utility security instrument.

SECTIONi2.iiChapter 261, Business & Commerce Code, is amended by adding Section 261.012 to read as follows:

Sec.i261.012.iiASSIGNMENT OF SECURITY INTEREST. (a) A secured party may assign a security interest recorded under Section 261.004 without making any filing or giving any notice under this chapter. The security interest assigned remains valid and perfected and retains its priority, securing the obligation assigned to the assignee, against transferees from and creditors of the debtor utility, including lien creditors, as defined by Section 9.102.

Friday, May 29, 2009 SENATE JOURNAL 4317

(b)iiAn assignee or assignor may, but need not to retain the validity, perfection, and priority of the security interest assigned, as evidence of the assignment of the security interest recorded under Section 261.004, apply to the secretary of state for the assignee to be reflected as secured party on the utility security instrument and notify the debtor utility of the assignment. Failure to make application under this section or notify a debtor utility of an assignment does not create a cause of action against the secured party reflected on the utility security instrument, the assignor, or the assignee or affect the continuation of the perfected status of the assigned security interest in favor of the assignee against transferees from and creditors of the debtor utility, including lien creditors, as defined by Section 9.102.

SECTIONi3.iiSection 31.052, Parks and Wildlife Code, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:

(a)iiExcept as provided by this section and Section 31.050(c), [in Subsection (c) of Section 31.050 of this code] and except for statutory liens, security interests in a vessel or outboard motor shall be noted on the certificate of title of the vessel or outboard motor to which the security interest applies. On recordation of a security interest on the certificate of title, the recorded security interest owner and assignees under Subsection (c) obtain priority over the rights of a lien creditor, as defined by Section 9.102, Business & Commerce Code, for so long as the security interest is recorded on the certificate of title.

(c)iiA security interest owner may assign a security interest recorded under this chapter without making any filing or giving any notice under this chapter. The security interest assigned remains valid and perfected and retains its priority, securing the obligation assigned to the assignee, against transferees from and creditors of the debtor, including lien creditors, as defined by Section 9.102, Business & Commerce Code.

(d)iiAn assignee or assignor may, but need not to retain the validity, perfection, and priority of the security interest assigned, as evidence of the assignment of the security interest recorded under this chapter, apply to the department or a county assessor-collector for the assignee to be named as security interest owner on the certificate of title and notify the debtor of the assignment. Failure to make application under this subsection or notify a debtor of an assignment does not create a cause of action against the recorded security interest owner, the assignor, or the assignee or affect the continuation of the perfected status of the assigned security interest in favor of the assignee against transferees from and creditors of the debtor, including lien creditors, as defined by Section 9.102, Business & Commerce Code.

SECTIONi4.iiSection 501.113(b), Transportation Code, is amended to read as follows:

(b)iiFor purposes of Chapter 9, Business & Commerce Code, the time of recording a lien under this chapter is considered to be the time of filing the security interest, and on such recordation, the recorded lienholder and assignees under Section 501.114 obtain priority over the rights of a lien creditor, as defined by Section 9.102, Business & Commerce Code, for so long as the lien is recorded on the certificate of title.

SECTIONi5.iiSection 501.114, Transportation Code, is amended to read as follows:

4318 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i501.114.iiASSIGNMENT OF LIEN.i (a)iiA lienholder may assign a lien recorded under Section 501.113 without making any filing or giving any notice under this chapter. The lien assigned remains valid and perfected and retains its priority, securing the obligation assigned to the assignee, against transferees from and creditors of the debtor, including lien creditors, as defined by Section 9.102, Business & Commerce Code.

(b)iiAn assignee or assignor may, but need not to retain the validity, perfection, and priority of the lien assigned, as evidence of the assignment of a lien recorded under Section 501.113 [by]:

(1)iiapplyii[applying] to the county assessor-collector for the assignee to be named as lienholder on the certificate of title [assignment of the lien]; and

(2)iinotifyii[notifying] the debtor of the assignment.

(c)iiFailure [(b)iiA lienholder's failure] to make application under Subsection (b) or notify a debtor of an assignment does not create a cause of action against the recorded lienholder, the assignor, or the assignee or affect the continuation of the perfected status of the assigned lien in favor of the assignee against transferees from and creditors of the debtor, including lien creditors, as defined by Section 9.102, Business & Commerce Code.

(d)i[(c)]iiAn application under Subsection (b) [(a)] must be:

(1)iisigned by the assignee [person to whom the lien is assigned]; and

(2)iiaccompanied by:

(A)iithe applicable fee;

(B)iia copy of the assignment agreement executed by the parties; and

(C)iithe certificate of title on which the lien to be assigned is recorded.

(e)i[(d)]iiOn receipt of the completed application and fee, the department:

(1)iimay amend the department's records to substitute the assignee [subsequent lienholder] for the recorded [previous] lienholder; and

(2)iishall issue a new certificate of title as provided by Section 501.027.

(f)i[(e)]iiThe issuance of a certificate of title under Subsection (e) [(d)] is recordation of the assignment.

(g)iiRegardless of whether application is made for the assignee to be named as lienholder on the certificate of title, the [The] time of the recordation of a lien assigned under this section is considered to be the time the lien was initially recorded under Section 501.113.

(h)iiNotwithstanding Subsections (a) through (g), and procedures that may be conducted under those subsections, the assignment of a lien does not affect the procedures applicable to the foreclosure of a worker's lien under Chapter 70, Property Code, or the rights of the holder of a worker's lien. Notice given to the last known lienholder of record, as provided by that chapter, is adequate to allow foreclosure under that chapter.

(i)iiNotwithstanding Subsections (a) through (g), and the procedures that may be conducted under those subsections, the assignment of a lien does not affect the procedures applicable to the release of a holder's lien under Section 348.408, Finance Code.

Friday, May 29, 2009 SENATE JOURNAL 4319

SECTIONi6.iiThis Act is intended to clarify that under existing law, an assignment of a recorded security interest may be recorded on the title, but does not have to be recorded on the title to retain the validity, perfection, and priority of the security interest securing the obligation assigned to the assignee.

SECTIONi7.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Fraser moved to concur in the House amendment to SBi1592.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1717 WITH HOUSE AMENDMENT

Senator West called SBi1717 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 1717 by adding the following appropriately numbered SECTION and renumbering subsequent SECTIONS accordingly:

SECTION ____. Subchapter L, Chapter 2306, Government Code, is amended by adding Section 2306.2631 to read as follows:

Sec. 2306.2631. REPORTS BY SPONSORS OF CERTAIN MULTIFAMILY HOUSING DEVELOPMENTS. (a) This section applies only to a housing sponsor of a multifamily housing development that:

(1) receives financial assistance from the state;

(2) receives financial assistance from the federal government, including an allocation of low incoming housing tax credits; or

(3) is subject to a land use restriction agreement.

(b) The department by rule shall require the housing sponsor of a multifamily housing development to submit a quarterly report to the department. The report must include information that identifies:

(1) the number of vacant units in the development at the time of the report; and

(2) the number of days that each unit has been vacant.

(c) The department shall provide to each member of the legislature, on request of that member, a report that disaggregates the information collected under Subsection (b) by zip code in the member's district.

The amendment was read.

Senator West moved to concur in the House amendment to SBi1717.

The motion prevailed by the following vote:iiYeasi28, Naysi3.

4320 81st Legislature — Regular Session 69th Day (Cont.)

Yeas:iiAveritt, Carona, Davis, Deuell, Duncan, Ellis, Eltife, Estes, Fraser, Gallegos, Harris, Hegar, Hinojosa, Huffman, Jackson, Lucio, Nelson, Nichols, Shapiro, Shapleigh, Uresti, VanideiPutte, Watson, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiOgden, Patrick, Seliger.

SENATE BILL 1940 WITH HOUSE AMENDMENT

Senator VanideiPutte called SBi1940 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1 on Third Reading

Amend SB 1940, on third reading, by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiSubtitle E, Title 7, Health and Safety Code, is amended by adding Chapter 617 to read as follows:

Sec.i617.001.iiVETERANS COURT PROGRAM DEFINED; PROCEDURES FOR CERTAIN DEFENDANTS. (a)iiIn this chapter, "veterans court program" means a program that has the following essential characteristics:

(1)iithe integration of services in the processing of cases in the judicial system;

(2)iithe use of a nonadversarial approach involving prosecutors and defense attorneys to promote public safety and to protect the due process rights of program participants;

(3)iiearly identification and prompt placement of eligible participants in the program;

(4)iiaccess to a continuum of alcohol, controlled substance, mental health, and other related treatment and rehabilitative services;

(5)iicareful monitoring of treatment and services provided to program participants;

(6)iia coordinated strategy to govern program responses to participants' compliance;

(7)iiongoing judicial interaction with program participants;

(8)iimonitoring and evaluation of program goals and effectiveness;

(9)iicontinuing interdisciplinary education to promote effective program planning, implementation, and operations; and

(10)iidevelopment of partnerships with public agencies and community organizations, including the United States Department of Veterans Affairs.

(b)iiIf a defendant successfully completes a veterans court program, as authorized under Section 76.011, Government Code, after notice to the attorney representing the state and a hearing in the veterans court at which that court determines that a dismissal is in the best interest of justice, the court in which the criminal case is pending shall dismiss the criminal action against the defendant.

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Sec.i617.002.iiAUTHORITY TO ESTABLISH PROGRAM; ELIGIBILITY. (a)iiThe commissioners court of a county may establish a veterans court program for persons arrested for or charged with any misdemeanor or felony offense. A defendant is eligible to participate in a veterans court program established under this chapter only if the attorney representing the state consents to the defendant's participation in the program and if the court in which the criminal case is pending finds that the defendant:

(1)iiis a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard; and

(2)iisuffers from a brain injury, mental illness, or mental disorder, including post-traumatic stress disorder, that:

(A)iiresulted from the defendant's military service in a combat zone or other similar hazardous duty area; and

(B)iimaterially affected the defendant's criminal conduct at issue in the case.

(b)iiThe court in which the criminal case is pending shall allow an eligible defendant to choose whether to proceed through the veterans court program or otherwise through the criminal justice system.

(c)iiProof of matters described by Subsection (a) may be submitted to the court in which the criminal case is pending in any form the court determines to be appropriate, including military service and medical records, previous determinations of a disability by a veteran's organization or by the United States Department of Veterans Affairs, testimony or affidavits of other veterans or service members, and prior determinations of eligibility for benefits by any state or county veterans office. The court's findings must accompany any docketed case.

Sec.i617.003.iiDUTIES OF VETERANS COURT. (a)iiA veterans court program established under this chapter must:

(1)iiensure a person eligible for the program is provided legal counsel before volunteering to proceed through the program and while participating in the program;

(2)iiallow a participant to withdraw from the program at any time before a trial on the merits has been initiated;

(3)iiprovide a participant with a court-ordered individualized treatment plan indicating the services that will be provided to the participant; and

(4)iiensure that the jurisdiction of the veterans court continues for a period of not less than six months but does not continue beyond the period of community supervision for the offense charged.

(b)iiA veterans court program established under this chapter shall make, establish, and publish local procedures to ensure maximum participation of eligible defendants in the county or counties in which those defendants reside.

(c)iiThis chapter does not prevent the initiation of procedures under Chapter 46B, Code of Criminal Procedure.

Sec.i617.004.iiESTABLISHMENT OF REGIONAL PROGRAM. The commissioners courts of two or more counties may elect to establish a regional veterans court program under this chapter for the participating counties.

4322 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i617.005.iiOVERSIGHT. (a)iiThe lieutenant governor and the speaker of the house of representatives may assign to appropriate legislative committees duties relating to the oversight of veterans court programs established under this chapter.

(b)iiA legislative committee or the governor may request the state auditor to perform a management, operations, or financial or accounting audit of a veterans court program established under this chapter.

(c)iiA veterans court program established under this chapter shall:

(1)iinotify the criminal justice division of the governor's office before or on implementation of the program; and

(2)iiprovide information regarding the performance of the program to that division on request.

Sec.i617.006.iiFEES. (a)iiA veterans court program established under this chapter may collect from a participant in the program:

(1)iia reasonable program fee not to exceed $1,000; and

(2)iia testing, counseling, and treatment fee in an amount necessary to cover the costs of any testing, counseling, or treatment performed or provided under the program.

(b)iiFees collected under this section may be paid on a periodic basis or on a deferred payment schedule at the discretion of the judge, magistrate, or program director administering the program. The fees must be:

(1)iibased on the participant's ability to pay; and

(2)iiused only for purposes specific to the program.

SECTIONi____.iiSubsection (a), Article 55.01, Code of Criminal Procedure, is amended to read as follows:

(a)iiA person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1)iithe person is tried for the offense for which the person was arrested and is:

(A)iiacquitted by the trial court, except as provided by Subsection (c) of this section; or

(B)iiconvicted and subsequently pardoned; or

(2)iieach of the following conditions exist:

(A)iian indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i)iithe limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii)iithe court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

Friday, May 29, 2009 SENATE JOURNAL 4323

(B)iithe person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and

(C)iithe person has not been convicted of a felony in the five years preceding the date of the arrest.

The amendment was read.

Senator VanideiPutte moved to concur in the House amendment to SBi1940.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 2456 WITH HOUSE AMENDMENTS

Senator Hinojosa called SBi2456 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No. 1 on Third Reading

Amend SB 2456 (House committee printing) on third reading as follows:

(1) In SECTION 1 of the bill, on Page 3, line 11, between "(7)" and ";" strike "William P. Goranson" and insert "A person appointed by the Commissioners Courts of Brooks and Jim Hogg Counties within 60 days of the effective date of this Act".

(2) In SECTION 1 of the bill, on Page 4, line 12, between "(5)" and "," strike "William P. Goranson" and insert "A person appointed by the Commissioners Courts of Brooks and Jim Hogg Counties".

(3) In SECTION 2 of the bill, on Page 15, line 14, between "area" and ":" insert "and which is not located within the Kenedy County Groundwater Conservation District as of the effective date of this Act".

Floor Amendment No. 2 on Third Reading

Amend SB 2456 (House committee printing) on third reading in SECTION 1 of the bill, following added Section 8852.026, Special Districts Local Laws Code (page 8, line 5), by striking the reservation clause and substituting the following:

Sec.i8852.027.iiLIMITATION OF POWERS OF TEMPORARY BOARD. (a) The temporary board may exercise only the powers described by Sections 8852.022, 8852.023, and 8852.025.

(b)iiExcept as required by a law or rule relating to participation in a groundwater management area in which the district is located, the temporary board may not:

(1)iiadopt rules, including rules regarding wells; or

(2)iidevelop a draft or final management plan.

[Sections 8852.028-8852.050 reserved for expansion]

The amendments were read.

Senator Hinojosa moved to concur in the House amendments to SBi2456.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

4324 81st Legislature — Regular Session 69th Day (Cont.)

SENATE BILL 1034 WITH HOUSE AMENDMENT

Senator Fraser called SBi1034 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1034 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to allowing the governing bodies of certain municipalities to order a local option election relating to the sale of alcoholic beverages.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiThe heading to Section 501.021, Election Code, is amended to read as follows:

Sec.i501.021.iiELECTION TO BE HELD BY PETITION.

SECTIONi2.iiSubchapter B, Chapter 501, Election Code, is amended by adding Section 501.0211 to read as follows:

Sec.i501.0211.iiELECTION CALLED BY GOVERNING BODY OF MUNICIPALITY. (a) This section applies only to a municipality:

(1)iiwith a population of at least 112,000 located in a county with a population of not more than 135,000;

(2)iiin which the sale of one or more types or classifications of alcoholic beverage is legal in the municipality as a result of a local option election held in the municipality; and

(3)iithat, after the election is held, annexes territory in which the sale of one or more of those types or classifications of alcoholic beverage is not legal.

(b)iiAfter holding a public hearing, the governing body of a municipality described by Subsection (a) may, by resolution, order a local option election to be held in the municipality on the ballot issue the passage of which would legalize the sale of the same types and classifications of alcoholic beverages the sale of which was legalized by the results of the local option election described by Subsection (a).

(c)iiThe resolution ordering the election must state in its heading and text that the local option election to be held is for the purpose of legalizing the sale of the alcoholic beverages and set out the ballot issue to be voted on in the election.

(d)iiAn election ordered by the governing body of a municipality under this section shall be conducted by the municipality instead of the county. For the purposes of an election conducted under this section, a reference in this code:

(1)iito the county is considered to refer to the municipality;

(2)iito the commissioners court is considered to refer to the governing body of the municipality;

(3)iito the county clerk or registrar of voters is considered to refer to the secretary of the municipality or, if the municipality does not have a secretary, to the person performing the functions of a secretary of the municipality; and

Friday, May 29, 2009 SENATE JOURNAL 4325

(4)iito the county judge is considered to refer to the mayor of the municipality or, if the municipality does not have a mayor, to the presiding officer of the governing body of the municipality.

(e)iiThe municipality shall pay the expense of the election.

(f)iiThis section expires September 1, 2015.

SECTIONi3.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator Fraser moved to concur in the House amendment to SBi1034.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 768 WITH HOUSE AMENDMENT

Senator Hegar called SBi768 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 768 (House committee report) as follows:

(1)iiIn the recital to SECTION 1 of the bill (page 1, line 6), strike "Sections 1951.058, 1951.059, and 1951.060" and substitute "Sections 1951.058 and 1951.059".

(2)iiIn SECTION 1 of the bill, strike added Section 1951.059, Occupations Code (page 1, line 23, through page 2, line 9).

(3)iiIn SECTION 1 of the bill, in added Section 1951.060, Occupations Code (page 2, line 10), strike "Sec. 1951.060" and substitute "Sec. 1951.059".

(4)iiIn SECTION 1 of the bill, in added Section 1951.060(a), Occupations Code (page 2, line 12), between "chapter" and "if", insert ", other than a requirement under Section 1951.212,".

The amendment was read.

Senator Hegar moved to concur in the House amendment to SBi768.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1374 WITH HOUSE AMENDMENT

Senator West called SBi1374 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1374 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

Relating to annual reports by the Texas Juvenile Probation Commission on the operations and conditions of probation services in this state.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

4326 81st Legislature — Regular Session 69th Day (Cont.)

SECTIONi1.iiSubsection (a), Section 141.024, Human Resources Code, is amended to read as follows:

(a)iiThe commission shall report annually to the governor and the legislature on the commission's operations and the condition of probation services in the state during the previous year. The report:

(1)iimay include recommendations; and

(2)iimust include:

(A)iian evaluation of the effectiveness of the community-based programs operated under Section 54.0401, Family Code; and

(B)iiinformation comparing the cost of a child participating in a program described by Paragraph (A) with the cost of committing the child to the Texas Youth Commission.

SECTIONi2.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator West moved to concur in the House amendment to SBi1374.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1091 WITH HOUSE AMENDMENT

Senator Ellis called SBi1091 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1091 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the capital writs committee and the office of capital writs and to the appointment and compensation of certain counsel for indigent defendants in a capital case.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubtitle F, Title 2, Government Code, is amended by adding Chapter 78 to read as follows:

CHAPTER 78. CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS

SUBCHAPTER A. CAPITAL WRITS COMMITTEE

Sec.i78.001.iiDEFINITIONS. In this subchapter:

(1)ii"Committee" means the capital writs committee established under this subchapter.

(2)ii"Office of capital writs" means the office of capital writs established under Subchapter B.

Sec.i78.002.iiESTABLISHMENT OF COMMITTEE; DUTIES. (a) The capital writs committee is established.

(b)iiThe committee shall recommend to the Court of Criminal Appeals as provided by Section 78.004 a director for the office of capital writs when a vacancy exists for the position of director.

Friday, May 29, 2009 SENATE JOURNAL 4327

Sec.i78.003.iiAPPOINTMENT AND COMPOSITION OF COMMITTEE. (a) The committee is composed of the following five members who are appointed by the president of the State Bar of Texas, with ratification by the executive committee of the State Bar of Texas:

(1)iithree attorneys who are members of the State Bar of Texas and who are not employed as prosecutors or law enforcement officials, all of whom must have criminal defense experience with death penalty proceedings in this state; and

(2)iitwo state district judges, one of whom serves as presiding judge of an administrative judicial region.

(b)iiThe committee shall elect one member of the committee to serve as the presiding officer of the committee.

(c)iiThe committee members serve at the pleasure of the president of the State Bar of Texas, and the committee meets at the call of the presiding officer of the committee.

Sec.i78.004.iiRECOMMENDATION AND APPOINTMENT OF DIRECTOR OF OFFICE OF CAPITAL WRITS. (a) The committee shall submit to the Court of Criminal Appeals, in order of the committee's preference, a list of the names of not more than five persons the committee recommends that the court consider in appointing the director of the office of capital writs when a vacancy exists for the position of director. If the committee finds that three or more persons under the committee's consideration are qualified to serve as the director of the office of capital writs, the committee must include at least three names in the list submitted under this subsection.

(b)iiEach person recommended to the Court of Criminal Appeals by the committee under Subsection (a):

(1)iimust exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases, as described by the Guidelines and Standards for Texas Capital Counsel, as published by the State Bar of Texas; and

(2)iimay not have been found by a state or federal court to have rendered ineffective assistance of counsel during the trial or appeal of a death penalty case.

(c)iiWhen a vacancy for the position exists, the Court of Criminal Appeals shall appoint from the list of persons submitted to the court under Subsection (a) the director of the office of capital writs.

[Sections 78.005-78.050 reserved for expansion]

SUBCHAPTER B. OFFICE OF CAPITAL WRITS

Sec.i78.051.iiDEFINITIONS. In this subchapter:

(1)ii"Committee" means the capital writs committee established under Subchapter A.

(2)ii"Office" means the office of capital writs established under this subchapter.

Sec.i78.052.iiESTABLISHMENT; FUNDING. (a) The office of capital writs is established and operates under the direction and supervision of the director of the office.

(b)iiThe office shall receive funds for personnel costs and expenses:

(1)iias specified in the General Appropriations Act; and

4328 81st Legislature — Regular Session 69th Day (Cont.)

(2)iifrom the fair defense account under Section 71.058, in an amount sufficient to cover personnel costs and expenses not covered by appropriations described by Subdivision (1).

Sec.i78.053.iiDIRECTOR; STAFF. (a) The Court of Criminal Appeals shall appoint a director to direct and supervise the operation of the office. The director serves a four-year term and continues to serve until a successor has been appointed and qualified. The Court of Criminal Appeals may remove the director only for good cause. The director may be reappointed for a second or subsequent term.

(b)iiThe director shall employ attorneys and employ or retain licensed investigators and other personnel necessary to perform the duties of the office. To be employed by the director, an attorney may not have been found by a state or federal court to have rendered ineffective assistance of counsel during the trial or appeal of a death penalty case.

(c)iiThe director and any attorney employed by the office may not:

(1)iiengage in the private practice of criminal law; or

(2)iiaccept anything of value not authorized by law for services rendered under this subchapter.

Sec.i78.054.iiPOWERS AND DUTIES. (a) The office may not accept an appointment under Article 11.071, Code of Criminal Procedure, if:

(1)iia conflict of interest exists;

(2)iithe office has insufficient resources to provide adequate representation for the defendant;

(3)iithe office is incapable of providing representation for the defendant in accordance with the rules of professional conduct; or

(4)iiother good cause is shown for not accepting the appointment.

(b)iiThe office may not represent a defendant in a federal habeas review. The office may not represent a defendant in an action or proceeding in state court other than an action or proceeding that:

(1)iiis conducted under Article 11.071, Code of Criminal Procedure;

(2)iiis collateral to the preparation of an application under Article 11.071, Code of Criminal Procedure; or

(3)iiconcerns any other post-conviction matter in a death penalty case other than a direct appeal, including an action or proceeding under Article 46.05 or Chapter 64, Code of Criminal Procedure.

(c)iiNotwithstanding Article 26.04(p), Code of Criminal Procedure, the office may independently investigate the financial condition of any person the office is appointed to represent. The office shall report the results of the investigation to the appointing judge. The judge may hold a hearing to determine if the person is indigent and entitled to representation under this section.

Sec.i78.055.iiCOMPENSATION OF OTHER APPOINTED ATTORNEYS. If it is necessary that an attorney other than an attorney employed by the office be appointed, that attorney shall be compensated as provided by Articles 11.071 and 26.05, Code of Criminal Procedure.

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Sec.i78.056.iiAPPOINTMENT LIST. (a) The presiding judges of the administrative judicial regions shall maintain a statewide list of competent counsel available for appointment under Section 2(f), Article 11.071, Code of Criminal Procedure, if the office does not accept or is prohibited from accepting an appointment under Section 78.054. Each attorney on the list:

(1)iimust exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases; and

(2)iimay not have been found by a state or federal court to have rendered ineffective assistance of counsel during the trial or appeal of a death penalty case.

(b)iiThe Office of Court Administration of the Texas Judicial System and the Task Force on Indigent Defense shall provide administrative support necessary under this section.

SECTIONi2.iiSections 2(b), (c), (e), and (f), Article 11.071, Code of Criminal Procedure, are amended to read as follows:

(b)iiIf a defendant is sentenced to death the convicting court, immediately after judgment is entered under Article 42.01, shall determine if the defendant is indigent and, if so, whether the defendant desires appointment of counsel for the purpose of a writ of habeas corpus. If the defendant desires appointment of counsel for the purpose of a writ of habeas corpus, the court shall appoint the office of capital writs to represent the defendant as provided by Subsection (c).

(c)iiAt the earliest practical time, but in no event later than 30 days, after the convicting court makes the findings required under Subsections (a) and (b), the convicting court shall appoint the office of capital writs or, if the office of capital writs does not accept or is prohibited from accepting an appointment under Section 78.054, Government Code, other competent counsel under Subsection (f), unless the applicant elects to proceed pro se or is represented by retained counsel. On appointing counsel under this section, the convicting court shall immediately notify the court of criminal appeals of the appointment, including in the notice a copy of the judgment and the name, address, and telephone number of the appointed counsel.

(e)iiIf the court of criminal appeals denies an applicant relief under this article, an attorney appointed under this section to represent the applicant shall, not later than the 15th day after the date the court of criminal appeals denies relief or, if the case is filed and set for submission, the 15th day after the date the court of criminal appeals issues a mandate on the initial application for a writ of habeas corpus under this article, move for the appointment of [to be appointed as] counsel in federal habeas review under 18 U.S.C. Section 3599 [21 U.S.C. Section 848(q) or equivalent provision or, if necessary, move for the appointment of other counsel under 21 U.S.C. Section 848(q) or equivalent provision]. The attorney shall immediately file a copy of the motion with the court of criminal appeals, and if the attorney fails to do so, the court may take any action to ensure that the applicant's right to federal habeas review is protected, including initiating contempt proceedings against the attorney.

(f)iiIf the office of capital writs does not accept or is prohibited from accepting an appointment under Section 78.054, Government Code, the [The] convicting court shall appoint counsel from a list of competent counsel maintained by the presiding judges of the administrative judicial regions under Section 78.056, Government Code. The convicting court shall reasonably compensate as provided by Section 2A an

4330 81st Legislature — Regular Session 69th Day (Cont.)

SECTIONi3.iiSection 2A(a), Article 11.071, Code of Criminal Procedure, is amended to read as follows:

(a)iiThe state shall reimburse a county for compensation of counsel under Section 2, other than for compensation of counsel employed by the office of capital writs, and for payment of expenses under Section 3, regardless of whether counsel is employed by the office of capital writs. The total amount of reimbursement to which a county is entitled under this section for an application under this article may not exceed $25,000. Compensation and expenses in excess of the $25,000 reimbursement provided by the state are the obligation of the county.

SECTIONi4.iiSection 3, Article 11.071, Code of Criminal Procedure, is amended by adding Subsection (f) to read as follows:

(f)iiThis section applies to counsel's investigation of the factual and legal grounds for the filing of an application for a writ of habeas corpus, regardless of whether counsel is employed by the office of capital writs.

SECTIONi5.iiSections 4A(e) and (f), Article 11.071, Code of Criminal Procedure, are amended to read as follows:

(e)iiSections 2A and 3 apply to compensation and reimbursement of counsel appointed under Subsection (b)(3) in the same manner as if counsel had been appointed by the convicting court, unless the attorney is employed by the office of capital writs, in which case the compensation of that attorney is governed by Subchapter B, Chapter 78, Government Code.

(f)iiNotwithstanding any other provision of this article, the court of criminal appeals shall appoint counsel and establish a new filing date for application, which may be no later than the 270th day after the date on which counsel is appointed, for each applicant who before September 1, 1999, filed an untimely application or failed to file an application before the date required by Section 4(a) or (b). Section 2A applies to the compensation and payment of expenses of counsel appointed by the court of criminal appeals under this subsection, unless the attorney is employed by the office of capital writs, in which case the compensation of that attorney is governed by Subchapter B, Chapter 78, Government Code.

SECTIONi6.iiArticle 26.04(b), Code of Criminal Procedure, is amended to read as follows:

(b)iiProcedures adopted under Subsection (a) shall:

(1)iiauthorize only the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges' designee, to appoint counsel for indigent defendants in the county;

(2)iiapply to each appointment of counsel made by a judge or the judges' designee in the county;

Friday, May 29, 2009 SENATE JOURNAL 4331

(3)iiensure that each indigent defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings;

(4)iirequire appointments for defendants in capital cases in which the death penalty is sought to comply with any applicable [the] requirements under Articles 11.071 and [Article] 26.052;

(5)iiensure that each attorney appointed from a public appointment list to represent an indigent defendant perform the attorney's duty owed to the defendant in accordance with the adopted procedures, the requirements of this code, and applicable rules of ethics; and

(6)iiensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory.

SECTIONi7.iiArticle 26.044(a), Code of Criminal Procedure, is amended by adding Subdivision (3) to read as follows:

(3)ii"Office of capital writs" means the office of capital writs established under Subchapter B, Chapter 78, Government Code.

SECTIONi8.iiArticle 26.044, Code of Criminal Procedure, is amended by adding Subsection (n) to read as follows:

(n)iiAn attorney employed by a public defender's office may be appointed with respect to an application for a writ of habeas corpus only if:

(1)iian attorney employed by the office of capital writs is not appointed in the case; and

(2)iithe attorney employed by the public defender's office is on the list of competent counsel maintained under Section 78.056, Government Code.

SECTIONi9.iiArticle 26.05(a), Code of Criminal Procedure, is amended to read as follows:

(a)iiA counsel, other than an attorney with a public defender or an attorney employed by the office of capital writs, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel:

(1)iitime spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited;

(2)iireasonable and necessary time spent out of court on the case, supported by any documentation that the court requires;

(3)iipreparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Court of Criminal Appeals; and

(4)iipreparation of a motion for rehearing.

SECTIONi10.iiSection 71.058, Government Code, is amended to read as follows:

Sec.i71.058.iiFAIR DEFENSE ACCOUNT. The fair defense account is an account in the general revenue fund that may be appropriated only to:

4332 81st Legislature — Regular Session 69th Day (Cont.)

(1)iithe Task Force on Indigent Defense for the purpose of implementing this subchapter; and

(2)iithe office of capital writs for the purpose of implementing Subchapter B, Chapter 78.

SECTIONi11.iiSection 2(d), Article 11.071, Code of Criminal Procedure, is repealed, effective January 1, 2010.

SECTIONi12.ii(a) Not later than January 1, 2010, in accordance with Section 78.056, Government Code, as added by this Act, the presiding judges of the administrative judicial regions shall complete the statewide list of competent counsel available for appointment to represent defendants in applications for writs of habeas corpus.

(b)iiNot later than January 15, 2010, the president of the State Bar of Texas shall appoint the members of the capital writs committee.

(c)iiNot later than May 15, 2010, the capital writs committee shall submit to the Court of Criminal Appeals the list of candidates for the position of the director of the office of capital writs.

(d)iiNot later than September 1, 2010, the Court of Criminal Appeals shall appoint the director of the office of capital writs under Chapter 78, Government Code, as added by this Act.

SECTIONi13.iiThis Act takes effect September 1, 2009.

The amendment was read.

Senator Ellis moved to concur in the House amendment to SBi1091.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1290 WITH HOUSE AMENDMENT

Senator VanideiPutte called SBi1290 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi1290 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED
AN ACT

relating to authorization for school districts to provide mentors for teachers assigned to a new subject or grade level.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 21.458(a), Education Code, is amended to read as follows:

(a)iiEach school district may assign a mentor teacher to each classroom teacher who has less than two years of teaching experience in the subject or grade level to which the teacher is assigned.iiA teacher assigned as a mentor must:

(1)iito the extent practicable, teach in the same school;

(2)iito the extent practicable, teach the same subject or grade level, as applicable; and

(3)iimeet the qualifications prescribed by commissioner rules adopted under Subsection (b).

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SECTIONi2.iiThis Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

The amendment was read.

Senator Van de Putte moved to concur in the House amendment to SBi1290.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 2169 WITH HOUSE AMENDMENT

Senator Ellis called SBi2169 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No.i1

Amend SB 2169 (House committee printing) as follows:

(1)iiIn SECTION 1 of the bill, strike added Sections 2060.002(a)(11) and (12), Government Code (page 2, lines 1 through 3), and substitute the following:

(11)iithe Texas Education Agency;

(12)iithe Texas Water Development Board; and

(13)iiother state or regional agencies considered necessary by the co-presiding officers of the work group.

(2)iiIn SECTION 1 of the bill, in added Section 2060.003(b), Government Code (page 2, lines 13 and 14), strike "consider and develop policies" and substitute "make recommendations to the legislature".

(3)iiIn SECTION 1 of the bill, immediately following added Section 2060.004, Government Code (page 3, between lines 12 and 13), insert the following:

Sec.i2060.005.iiEXPIRATION. This chapter expires August 31, 2013.

The amendment was read.

Senator Ellis moved to concur in the House amendment to SBi2169.

The motion prevailed by the following vote:iiYeasi31, Naysi0.

SENATE BILL 1410 WITH HOUSE AMENDMENTS

Senator Jackson called SBi1410 from the President's table for consideration of the House amendments to the bill.

The Presiding Officer laid the bill and the House amendments before the Senate.

Floor Amendment No.i1

Amend SB 1410 (House committee report) as follows:

(1)iiIn the recital to SECTION 1 of the bill (page 1, line 6), strike "Subdivision (9-a)" and substitute "Subdivisions (5-a) and (9-a)".

(2)iiIn SECTION 1 of the bill, in amended Section 1301.002, Occupations Code, between amended Subdivisions (5) and (6) of that section (page 2, between lines 25 and 26), insert the following:

4334 81st Legislature — Regular Session 69th Day (Cont.)

(5-a)ii"Multipurpose residential fire protection sprinkler specialist" means a person who holds an endorsement issued under Section 1301.3565.

(3)iiAdd the following appropriately numbered SECTIONS to the bill and renumber subsequent SECTIONS of the bill accordingly:

SECTIONi____.iiSection 1301.352, Occupations Code, is amended to read as follows:

Sec.i1301.352.iiEXAMINATION REQUIRED. The board shall issue a license or endorsement as a master plumber, journeyman plumber, plumbing inspector, tradesman plumber-limited license holder, medical gas piping installation endorsement holder, [or] water supply protection specialist, or multipurpose residential fire protection sprinkler specialist to a person who demonstrates the fitness, competence, and qualifications to receive the license or endorsement by passing a uniform, reasonable examination.

SECTIONi____.iiSubchapter G, Chapter 1301, Occupations Code, is amended by adding Section 1301.3565 to read as follows:

Sec.i1301.3565.iiENDORSEMENT: MULTIPURPOSE RESIDENTIAL FIRE PROTECTION SPRINKLER SPECIALIST. (a) A person may not engage in the installation of a multipurpose residential fire protection sprinkler system that uses a single piping system to provide potable water for fire protection sprinklers and for domestic plumbing fixtures and appliances unless the person:

(1)iiis licensed under this chapter as a master plumber or journeyman plumber; and

(2)iiholds an endorsement issued under this section.

(b)iiThe board shall issue an endorsement as a multipurpose residential fire protection sprinkler specialist to a person who:

(1)iiholds the license described by Subsection (a);

(2)iiapplies to the board on a form prescribed by the board;

(3)iipays a fee set by the board;

(4)iipresents evidence satisfactory to the board of successful completion of a training program approved by the board that provides the training necessary for the proper installation of a multipurpose residential fire protection sprinkler system as required by the applicable codes and standards recognized by the state; and

(5)iipasses an examination required by the board.

(c)iiAn endorsement issued under this section is valid until the third anniversary of the date of issuance and may be renewed on compliance with any requirements prescribed by board rule.

(d)iiA person who holds an endorsement under this section may represent to the public that the person is a multipurpose residential fire protection sprinkler specialist.

(e)iiNotwithstanding any other law, a person who holds an endorsement under this section is not required to hold a license or registration issued by another state agency in order to install a multipurpose residential fire protection sprinkler system.

(f)iiA plumbing inspector who meets the requirements of the board may inspect a multipurpose residential fire protection sprinkler installation.

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SECTIONi____.iiThe Texas State Board of Plumbing Examiners shall collaborate with the state fire marshal in adopting rules necessary to implement Section 1301.3565, Occupations Code, as added by this Act.

SECTIONi____.ii(a) Not later than February 1, 2010, the Texas State Board of Plumbing Examiners shall adopt rules necessary to implement Section 1301.3565, Occupations Code, as added by this Act.

(b)iiNot later than March 1, 2010, the Texas State Board of Plumbing Examiners shall begin administering examinations and issuing multipurpose residential fire protection sprinkler specialist endorsements under Section 1301.3565, Occupations Code, as added by this Act.

(4)iiStrike SECTION 12 of the bill (page 8, line 10) and substitute the following appropriately numbered SECTION:

SECTIONi____.ii(a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2009.

(b)iiSection 1301.3565(a), Occupations Code, as added by this Act, takes effect June 1, 2010.

Floor Amendment No.i3

Amend Amendment No. 1 by Chisum to SB 1410 on page 2, line 31 by inserting the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTION ____. Section 1301.551, Occupations Code is amended by adding subsections (e) and (f) to read as follows:

(e) Notwithstanding any other provision of state law, after January 1, 2009, a municipality may not enact an ordinance, bylaw, order, building code, or rule requiring the installation of a multipurpose residential fire protection sprinkler system or any other fire sprinkler protection system in a new or existing one or two-family dwelling. A municipality may adopt an ordinance, bylaw, order, or rule allowing a multipurpose residential fire protection sprinkler specialist or other contractor to offer, for a fee, the installation of a fire sprinkler protection system in a new one or two-family dwelling.

(f) A multipurpose residential fire protection sprinkler specialist may install a multipurpose residential fire protection sprinkler system in a new or existing one or two-family dwelling in municipality described by subsections (a) and (b).

The amendments were read.

Senator Jackson moved to concur in the House amendments to SBi1410.

The motion prevailed by the following vote:iiYeasi25, Naysi6.

Yeas:iiAveritt, Carona, Deuell, Duncan, Ellis, Eltife, Estes, Fraser, Harris, Hegar, Hinojosa, Jackson, Lucio, Nelson, Nichols, Ogden, Patrick, Seliger, Shapiro, Uresti, Wentworth, West, Whitmire, Williams, Zaffirini.

Nays:iiDavis, Gallegos, Huffman, Shapleigh, VanideiPutte, Watson.

SENATE BILL 1235 WITH HOUSE AMENDMENT

Senator Davis called SBi1235 from the President's table for consideration of the House amendment to the bill.

4336 81st Legislature — Regular Session 69th Day (Cont.)

The Presiding Officer laid the bill and the House amendment before the Senate.

Floor Amendment No. 1

Amend SB 1235 (House committee printing) by striking SECTIONS 16 and 17 of the bill and renumber subsequent SECTIONS accordingly.

The amendment was read.

Senator Davis moved to concur in the House amendment to SBi1235.

The motion prevailed by the following vote:iiYeasi30, Naysi0.

Absent:iiOgden.

SENATE BILL 660 WITH HOUSE AMENDMENT

Senator Hegar called SBi660 from the President's table for consideration of the House amendment to the bill.

The Presiding Officer laid the bill and the House amendment before the Senate.

Amendment

Amend SBi660 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the Caldwell County Municipal Utility District No. 1; providing authority to impose a tax and issue bonds; granting a limited power of eminent domain.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubtitle F, Title 6, Special District Local Laws Code, is amended by adding Chapter 8307 to read as follows:

CHAPTERi8307.iiCALDWELL COUNTY MUNICIPAL UTILITY DISTRICT NO.i1

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i8307.001.iiDEFINITIONS. In this chapter:

(1)ii"Board" means the district's board of directors.

(2)ii"Director" means a board member.

(3)ii"District" means the Caldwell County Municipal Utility District No. 1.

Sec.i8307.002.iiNATURE OF DISTRICT. The district is a municipal utility district created under Section 59, Article XVI, Texas Constitution.

Sec.i8307.003.iiCONFIRMATION AND DIRECTORS' ELECTION REQUIRED. The temporary directors shall hold an election to confirm the creation of the district and to elect five permanent directors as provided by Section 49.102, Water Code.

Sec.i8307.004.iiCONSENT OF MUNICIPALITY REQUIRED. The temporary directors may not hold an election under Section 8307.003 until each municipality in whose corporate limits or extraterritorial jurisdiction the district is located has consented by ordinance or resolution to the creation of the district and to the inclusion of land in the district.

Sec.i8307.005.iiFINDINGS OF PUBLIC PURPOSE AND BENEFIT. (a)iiThe district is created to serve a public purpose and benefit.

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(b)iiThe district is created to accomplish the purposes of:

(1)iia municipal utility district as provided by general law and Section 59, Article XVI, Texas Constitution; and

(2)iiSection 52, Article III, Texas Constitution, that relate to the construction, acquisition, improvement, operation, or maintenance of macadamized, graveled, or paved roads, or improvements, including storm drainage, in aid of those roads.

Sec.i8307.006.iiINITIAL DISTRICT TERRITORY. (a)iiThe district is initially composed of the territory described by Section 2 of the Act creating this chapter.

(b)iiThe boundaries and field notes contained in Section 2 of the Act creating this chapter form a closure. A mistake made in the field notes or in copying the field notes in the legislative process does not affect the district's:

(1)iiorganization, existence, or validity;

(2)iiright to issue any type of bond for the purposes for which the district is created or to pay the principal of and interest on a bond;

(3)iiright to impose a tax; or

(4)iilegality or operation.

[Sections 8307.007-8307.050 reserved for expansion]

SUBCHAPTER B. BOARD OF DIRECTORS

Sec.i8307.051.iiGOVERNING BODY; TERMS. (a)iiThe district is governed by a board of five elected directors.

(b)iiExcept as provided by Section 8307.052, directors serve staggered four-year terms.

Sec.i8307.052.iiTEMPORARY DIRECTORS. (a)iiThe temporary board consists of:

(1)iiJoseph John Mazzola III;

(2)iiHunter Wallace Dehn;

(3)iiSeth Thatcher;

(4)iiScott Guesner; and

(5)iiMark Solomon.

(b)iiTemporary directors serve until the earlier of:

(1)iithe date permanent directors are elected under Section 8307.003; or

(2)iithe fourth anniversary of the effective date of the Act creating this chapter.

(c)iiIf permanent directors have not been elected under Section 8307.003 and the terms of the temporary directors have expired, successor temporary directors shall be appointed or reappointed as provided by Subsection (d) to serve terms that expire on the earlier of:

(1)iithe date permanent directors are elected under Section 8307.003; or

(2)iithe fourth anniversary of the date of the appointment or reappointment.

(d)iiIf Subsection (c) applies, the owner or owners of a majority of the assessed value of the real property in the district may submit a petition to the Texas Commission on Environmental Quality requesting that the commission appoint as successor temporary directors the five persons named in the petition. The commission shall appoint as successor temporary directors the five persons named in the petition.

4338 81st Legislature — Regular Session 69th Day (Cont.)

[Sections 8307.053-8307.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES

Sec.i8307.101.iiGENERAL POWERS AND DUTIES. The district has the powers and duties necessary to accomplish the purposes for which the district is created.

Sec.i8307.102.iiMUNICIPAL UTILITY DISTRICT POWERS AND DUTIES. The district has the powers and duties provided by the general law of this state, including Chapters 49 and 54, Water Code, applicable to municipal utility districts created under Section 59, Article XVI, Texas Constitution.

Sec.i8307.103.iiAUTHORITY FOR ROAD PROJECTS. Under Section 52, Article III, Texas Constitution, the district may design, acquire, construct, finance, issue bonds for, improve, operate, maintain, and convey to this state, a county, or a municipality for operation and maintenance macadamized, graveled, or paved roads, or improvements, including storm drainage, in aid of those roads.

Sec.i8307.104.iiROAD STANDARDS AND REQUIREMENTS. (a)iiA road project must meet all applicable construction standards, zoning and subdivision requirements, and regulations of each municipality in whose corporate limits or extraterritorial jurisdiction the road project is located.

(b)iiIf a road project is not located in the corporate limits or extraterritorial jurisdiction of a municipality, the road project must meet all applicable construction standards, subdivision requirements, and regulations of each county in which the road project is located.

(c)iiIf the state will maintain and operate the road, the Texas Transportation Commission must approve the plans and specifications of the road project.

Sec.i8307.105.iiCOMPLIANCE WITH MUNICIPAL CONSENT ORDINANCE OR RESOLUTION. The district shall comply with all applicable requirements of any ordinance or resolution that is adopted under Section 54.016 or 54.0165, Water Code, and that consents to the creation of the district or to the inclusion of land in the district.

Sec.i8307.106.iiLIMITATION ON CONSTRUCTION AND DEVELOPMENT IN DISTRICT. A developer may not begin construction or development of a project in the district unless the developer has entered into a contract with an appropriate entity for the provision of water and sewer services for the project.

Sec.i8307.107.iiLOCAL ROADWAY IMPROVEMENT. A developer who undertakes a project in the district shall enter into an agreement with the Texas Department of Transportation, the commissioners court of any county in whose jurisdiction the district is located, or another appropriate entity to make improvements in the roads surrounding the district to mitigate any problems with traffic the proposed project is anticipated to cause or create.

Sec.i8307.108.iiLIMITATION ON USE OF EMINENT DOMAIN. The district may not exercise the power of eminent domain outside the district to acquire a site or easement for:

(1)iia road project authorized by Section 8307.103; or

(2)iia recreational facility as defined by Section 49.462, Water Code.

Sec.i8307.109.iiDIVISION OF DISTRICT. (a)iiThe district may be divided into two or more new districts only if the district:

Friday, May 29, 2009 SENATE JOURNAL 4339

(1)iihas no outstanding bonded debt; and

(2)iiis not imposing ad valorem taxes.

(b)iiThis chapter applies to any new district created by the division of the district, and a new district has all the powers and duties of the district.

(c)iiAny new district created by the division of the district may not, at the time the new district is created:

(1)iicontain any land outside the area described by Section 2 of the Act creating this chapter; or

(2)iicontain less than 100 acres.

(d)iiThe board, on its own motion or on receipt of a petition signed by the owner or owners of a majority of the assessed value of the real property in the district according to the most recent certified appraisal roll for each county in which the district is located, may adopt an order dividing the district.

(e)iiThe board may adopt an order dividing the district before or after the date the board holds an election under Section 8307.003 to confirm the district's creation.

(f)iiAn order dividing the district shall:

(1)iiname each new district;

(2)iiinclude the metes and bounds description of the territory of each new district;

(3)iiappoint temporary directors for each new district; and

(4)iiprovide for the division of assets and liabilities between or among the new districts.

(g)iiOn or before the 30th day after the date of adoption of an order dividing the district, the district shall file the order with the Texas Commission on Environmental Quality and record the order in the real property records of each county in which the district is located.

(h)iiAny new district created by the division of the district shall hold a confirmation and directors' election as required by Section 8307.003.

(i)iiAny new district created by the division of the district must hold an election as required by this chapter to obtain voter approval before the district may impose a maintenance tax or issue bonds payable wholly or partly from ad valorem taxes.

(j)iiAny new district created by the division of the district may divide into two or more districts as provided by this section.

[Sections 8307.110-8307.150 reserved for expansion]

SUBCHAPTER D. GENERAL FINANCIAL PROVISIONS

Sec.i8307.151.iiELECTIONS REGARDING TAXES OR BONDS. (a)iiThe district may issue, without an election, bonds and other obligations secured by:

(1)iirevenue other than ad valorem taxes; or

(2)iicontract payments described by Section 8307.153.

(b)iiThe district must hold an election in the manner provided by Chapters 49 and 54, Water Code, to obtain voter approval before the district may impose an ad valorem tax or issue bonds payable from ad valorem taxes.

(c)iiThe district may not issue bonds payable from ad valorem taxes to finance a road project unless the issuance is approved by a vote of a two-thirds majority of the district voters voting at an election held for that purpose.

4340 81st Legislature — Regular Session 69th Day (Cont.)

Sec.i8307.152.iiOPERATION AND MAINTENANCE TAX. (a)iiIf authorized at an election held under Section 8307.151, the district may impose an operation and maintenance tax on taxable property in the district in accordance with Section 49.107, Water Code.

(b)iiThe board shall determine the tax rate. The rate may not exceed the rate approved at the election.

Sec.i8307.153.iiCONTRACT TAXES. (a)iiIn accordance with Section 49.108, Water Code, the district may impose a tax other than an operation and maintenance tax and use the revenue derived from the tax to make payments under a contract after the provisions of the contract have been approved by a majority of the district voters voting at an election held for that purpose.

(b)iiA contract approved by the district voters may contain a provision stating that the contract may be modified or amended by the board without further voter approval.

[Sections 8307.154-8307.200 reserved for expansion]

SUBCHAPTER E. BONDS AND OTHER OBLIGATIONS

Sec.i8307.201.iiAUTHORITY TO ISSUE BONDS AND OTHER OBLIGATIONS. The district may issue bonds or other obligations payable wholly or partly from ad valorem taxes, impact fees, revenue, contract payments, grants, or other district money, or any combination of those sources, to pay for any authorized district purpose.

Sec.i8307.202.iiTAXES FOR BONDS. At the time the district issues bonds payable wholly or partly from ad valorem taxes, the board shall provide for the annual imposition of a continuing direct ad valorem tax, without limit as to rate or amount, while all or part of the bonds are outstanding as required and in the manner provided by Sections 54.601 and 54.602, Water Code.

Sec.i8307.203.iiBONDS FOR ROAD PROJECTS. At the time of issuance, the total principal amount of bonds or other obligations issued or incurred to finance road projects and payable from ad valorem taxes may not exceed one-fourth of the assessed value of the real property in the district.

SECTIONi2.iiThe Caldwell County Municipal Utility District No. 1 initially includes all the territory contained in the following area:

TRACT 1 - 3473.37 ACRES

All that certain tract or parcel of land situated in Caldwell County, Texas out of the Eason Tyson Survey, Abstract No. 291 and the Almerion Dickinson Survey, Abstract No. 5, Caldwell County, Texas and being those tracts described as 256.38 acres in a Special Warranty Deed granted to Don Ray George, et ux, and recorded in Volume 81, Page 50, Official Public Records of Caldwell County, Texas, and 339.33 acres in a Special Warranty Deed with Vendor's Lien granted to Don Ray George, et ux, and recorded in Volume 81, Page 558, of said official public records and 1638.30 acres in a Special Warranty Deed granted to Don Ray George, et ux, and recorded in Volume 80, Page 901, of said official public records and 384-1/4 acres (First Tract), 157 acres (Tract One of Second Tract), 200 acres (Tract Two of Second Tract), Tract Four of Second Tract, 100 acres (Tract Two of Third Tract), 100 acres (Tract One of Third Tract), 100 acres (Tract Three of Second Tract), and 200 acres (Seventh Tract) in a

Friday, May 29, 2009 SENATE JOURNAL 4341

BEGINNING at a 1/2" iron pin found at the intersection of the northeast line of Highway 80, a.k.a. San Marcos Highway, right-of-way varies, and the northwest line of County Road 110, a.k.a. Long Road, right-of-way varies, for the southwest corner of said Don Ray George, et ux tract (81/50) and this tract;

THENCE, with the northeast line of said Highway 80 and the southwest line of said Don Ray George, et ux tracts (81/50), (81/558), and (80/901) and this tract in the following twenty one (21) courses;

1.iN 25859'34" W 115.79 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

2.iN 61810'25" E 15.80 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

3.iN 25858'07" W 597.09 feet to a concrete monument found,

4.iS 70849'29" W 15.15 feet to a 1/2" iron pin found,

5.iN 25856'19" W 997.88 feet to a concrete monument,

6.iN 66858'22" E 5.66 feet to a concrete monument,

7.iN 25859'32" W 399.21 feet to a concrete monument,

8.iS 77804'13" W 6.02 feet to a concrete monument,

9.iN 25853'15" W at 1298.67 feet and 0.17 feet to the left passing a concrete monument found, in all 1364.69 feet to a 1/2" iron pin found for the northwest corner of said Don Ray George, et ux tract (81/50) and the southwest corner of said Don Ray George, et ux tract (81/558),

10.iN 25851'03" W 1331.32 feet to a concrete monument,

11.iN 63837'33" E 9.12 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

12.iN 26805'30" W 200.05 feet to a concrete monument found,

13.iS 70824'55" W 10.36 feet to a concrete monument with a 60d nail found in it,

14.iN 25852'07" W 999.81 feet to a 1/2" pipe found,

15.iN 64806'49" E 139.42 feet to a 1/2" iron pin found,

16.iN 26806'10" W 128.89 feet to a 1/2" pipe found for the northwest corner of said Don Ray George, et ux tract (81/558) and an angle point of said Don Ray George, et ux tract (80/901),

17.iN 25848'08" W 221.34 feet to a 1/2" iron pin found,

18.iS 63852'16" W 130.00 feet to a calculated point inundated by Dickerson Creek,

19.iN 25855'54" W 749.61 feet to a concrete monument,

20.iS 68837'09" W 9.87 feet to a concrete monument,

21.iN 25'55"39" W at 1400.02 feet and 0.40 feet to the left passing a right-of-way monument found, in all 1907.70 feet to a 1/2" iron pin found at the intersection of the northeast line of said Highway 80 and the southeast line of County Road 107, a.k.a. Dickerson Road, right-of-way varies, for the northwest corner of said Don Ray George, et ux tract (80/901) and this tract;

4342 81st Legislature — Regular Session 69th Day (Cont.)

THENCE, with the southeast line of said County Road 107 and the northwest line of said Don Ray George, et ux tract (80/901), said Sidney Camille Brewster Young tracts (First Tract), (Tract One of Second Tract), and (Tract Two of Second Tract) and this tract in the following twenty one (21) courses,

1.iN 27850'19" E 99.49 feet to a 1/2" iron pin found,

2.iN 48830'05" E 1090.68 feet to a 1/2" iron pin found,

3.iN 48830'04" E 1359.07 feet to a 1/2" iron pin found,

4.iN 48838'19" E 1936.21 feet to a 1/2" iron pin found,

5.iN 48835'39" E 1168.70 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS,LTD." set,

6.iN 49805'39" E 540.52 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

7.iN 73835'13" E 43.60 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

8.iS 84827'23" E 365.52 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set in the southwest line of that tract described as 607.42 acres in a Special Warranty Deed granted to The Revocable Living Trust of Arthur Don Purswell and Marian Young Purswell and recorded in Volume 177, Page 133, of said official public records and leaving said County Road 107,

9.iS 41829'30" E 275.84 feet to a 1/2" iron pin found for the southwest corner of said Arthur Don Purswell and Marian Young Purswell tract and an interior ell corner of said Don Ray George, et ux tract and this tract,

10.iN 48841'10" E 316.93 feet with the southeast line of said Arthur Don Purswell and Marian Young Purswell tract to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set in the southeast line of said County Road 107,

11.iN 48818'17" E 510.35' feet continuing with the southeast line of said Arthur Don Purswell and Marian Young Purswell tract to a 1/2" iron pin found,

12.iN 48839'36" E 615.14 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

13.iN 48847'27" E 244.10 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

14.iN 52842'18" E 172.20 feet to a 1/2" iron pin found,

15.iN 61858'35" E 114.42 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

16.iN 48818'51" E 689.17 feet to a 1/2" iron pin found,

17.iN 48816'14" E 456.03 feet to a 1/2" iron pin found,

18.iN 48854'32" E 642.45 feet to a 5/8" iron pin found for the northwest corner of said Sidney Camille Brewster Young tract (First Tract) and the northeast corner of said Don Ray George, et ux tract (80/901),

19.iN 48849'02" E 2107.30 feet to a nail found at the top of a post for the northwest corner of said Sidney Camille Brewster Young tract (Tract One of Second Tract) and the northeast of said Sidney Camille Brewster Young tract (First Tract),

Friday, May 29, 2009 SENATE JOURNAL 4343

20.iN 48824'33" E 844.46 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set for the northwest corner of said Sidney Camille Brewster Young tract (Tract Two of Second Tract) and the northeast corner of said Sidney Camille Brewster Young tract (Tract One of Second Tract),

21.iN 47854'42" E 1089.86 feet to a 5/8" iron pin found for the northwest corner of that tract described as 5.41 acres (First Tract) in a Warranty Deed granted to Nazario Reyna, et al, and recorded in Volume 109, Page 311, of said official public records and the northeast corner of said Sidney Camille Brewster Young tract (Tract Two of Second Tract) and the most westerly northeast corner of this tract,

THENCE, with the southwest line of said Nazario Reyna, et al tract (First Tract) and that tract described as 7.67 acres (Second Tract) in said Nazario Reyna, et al, Warranty Deed and those tracts described as 6.04 acres (Tract One), 6.05 acres (Tract Two), 7.55 acres (Tract Three), and 7.55 acres (Tract Four) in a Warranty Deed with Vendor's Lien granted to Michael Henry and recorded in Volume 66, Page 504, of said official public records and that tract described as 10.29 acres in a Warranty Deed granted to Thomas J. Chrystal, et al, and recorded in Volume 496, Page 677, of said deed records and the northeast line of said Sidney Camille Brewster Young tract (Tract Two of Second Tract) and continuing with the northwest line of this tract in the following seven (7) courses,

1.iS 41822'58" E 700.00 feet to a 1/2" iron pin found for the northwest corner of said Nazario Reyna, et al tract (Second Tract) and the southwest corner of said Nazario Reyna, et al tract (First Tract),

2.iS 41830'13" E 337.71 feet to a 1/2" iron pin found for the northwest corner of said Michael Henry tract (Tract Four) and the southwest corner of said Nazario Reyna, et al tract (Second Tract),

3.iS 41848'01" E 326.67 feet to a 1/2" iron pin found for the northwest corner of said Michael Henry tract (Tract Three) and the southwest corner of said Michael Henry tract (Tract Four),

4.iS 42806'52" E 326.93 feet to a 1/2" iron pin found for the northwest corner of said Michael Henry tract (Tract Two) and the southwest corner of said Michael Henry tract (Tract Three),

5.iS 42811'00" E 262.18 feet to a 1/2" iron pin found for the northwest corner of said Michael Henry tract (Tract One) and the southwest corner of said Michael Henry tract (Tract Two),

6.iS 42821'52" E 261.98 feet to a 1/2" iron pin found for the northwest corner of said Thomas J. Chrystal, et al tract and the southwest corner of said Michael Henry tract (Tract One),

7.iS 42828'15" E 448.18 feet to a 1/2" iron pin found for the northwest corner of said Sidney Camille Brewster Young tract (Tract Two of Third Tract) and the southwest corner of said Thomas J. Chrystal, et al tract and an interior ell corner of this tract;

THENCE, with the southeast line of said Thomas J. Chrystal, et al tract and that tract described as 10.20 acres in a Warranty Deed granted to Anna Lowe, et al, and recorded in Volume 120, Page 785, of said official public records and that tract described as 25.00 acres in a Contract For Deed granted to Wayne Carlton Latham, et

4344 81st Legislature — Regular Session 69th Day (Cont.)

1.iN 47859'47" E 399.12 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

2.iN 47859'47" E 399.62 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

3.iN 47851'49" E at 176.33 feet passing a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set for the southwest corner of an unimproved 50 foot roadway, in all 201.32 feet to a 1/2" iron pin with a red cap inscribed "Hinkle Surveyor" found for the southwest corner of said Anna Lowe, et al tract and the southeast corner of said Thomas J. Chrystal, et al tract,

4.iN 48833'39" E at 25.04 feet passing a 60d nail found at the base of a 20" Elm Tree for the southeast corner of said roadway, in all 199.14 feet to a 5/8" iron pin found,

5.iN 47826'44" E 398.26 feet to a 5/8" iron pin found at a 12" Twin Elm Tree,

6.iN 47848'57" E 400.42 feet to a 1/2" iron pin with an aluminum cap inscribed "Burn & Assoc. Surveying" found for the southwest corner of said Wayne Carlton Latham, et ux tract (75/46) and the southeast corner of said Anna Lowe, et al tract,

7.iN 48821'48" E 318.40 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

8.iN 48802'21" E 515.92 feet to a 12" treated fence post found for the southwest corner of said Wayne Carlton Latham, et ux tract (318/900) and the southeast corner of said Wayne Carlton Latham, et ux tract (75/46),

9.iN 48806'50" E 1165.61 feet to a 5/8" iron pin found in the southwest line of that tract described as 433.16 acres in a Deed granted to Everett F. Johnson, et al, and recorded in Volume 320, Page 3, of said deed records for the southeast corner of said Wayne Carlton Latham, et ux tract (318/900) and the northeast corner of said Sidney Camille Brewster Young tract (Tract Two of Third Tract) and the most easterly northeast corner of this tract;

THENCE, with the southwest line of said Everett F. Johnson, et al tract as fenced and that tract described as 97.20 acres in an Extension Agreement granted to Jo Ann Simmons, and recorded in Volume 127, Page 303, of said deed records and the northeast line of said Sidney Camille Brewster Young tracts (Tract Two of Third Tract), (Tract One of Third Tract), (Tract Three of Second Tract), and (Seventh Tract) and this tract as fenced in the following nine (9) courses,

1.iS 41820'59" E 1086.22 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set for the northeast corner of said Sidney Camille Brewster Young tract (Tract One of Third Tract) and the southeast corner of said Sidney Camille Brewster Young tract (Tract Two of Third Tract),

2.iS 41847'44" E 476.92 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set at a fence corner,

Friday, May 29, 2009 SENATE JOURNAL 4345

3.iS 41855'29" E 609.13 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set for the northeast corner of said Sidney Camille Brewster Young tract (Tract Three of Second Tract) and the southeast corner of said Sidney Camille Brewster Young tract (Tract One of Third Tract),

4.iS 41810'50" E 1091.49 feet to a 1/2" iron pin found for the northwest corner of said Jo Ann Simmons tract and the northeast corner of said Sidney Camille Brewster Young tract (Seventh Tract) and the southeast corner of said Sidney Camille Brewster Young tract (Tract Three of Second Tract),

5.iS 41833'35" E 500.01 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

6.iS 41855'23" E 500.01 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

7.iS 41816'46" E 652.96 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

8.iS 42836'00" E 270.74 feet to a 1/2" iron pin found for the most westerly southwest corner of said Jo Ann Simmons tract,

9.iS 41833'20" E 213.33 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD."

set in the fenced northwest line of said County Road 110 for the southeast corner of said Sidney Camille Brewster Young tract (Seventh Tract) and this tract;

THENCE, with the northwest line of said County Road 110 as occupied and the southeast line of said Sidney Camille Brewster Young tracts (Seventh Tract), (Tract Two of Second Tract), (Tract One of Second Tract), and (First Tract) and said Don Ray George, et ux tracts (80/901) and (81/50) as occupied and this tract in the following thirty (30) courses,

1.iS 48825'35" W 3998.39 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set at a fence corner post for the southeast corner of said Sidney Camille Brewster Young tract (Tract Two of Second Tract) and the southwest corner of said Sidney Camille Brewster Young tract (Seventh Tract),

2.iS 47859'23" W 1101.35 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set for the southeast corner of said Sidney Camille Brewster Young tract (Tract One of Second Tract) and the southwest corner of said Sidney Camille Brewster Young tract (Tract Two of Second Tract),

3.iS 48814'02" W 846.20 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set at a fence corner post for the southeast corner of said Sidney Camille Brewster Young tract (First Tract) and the southwest corner of said Sidney Camille Brewster Young tract (Tract One of Second Tract),

4.iS 48855'00" W 2089.02 feet to a 1/2" iron pin found for the southeast corner of said Don Ray George, et ux tract (80/901) and the southwest corner of said Sidney Camille Brewster Young tract (First Tract),

5.iS 47815'53" W 828.29 feet to a 1/2" iron pin found,

6.iS 48814'38" W 1800.54 feet to a 1/2" iron pin found,

7.iS 45853'08" W 29.28 feet to a 1/2" iron pin found,

8.iS 47842'12" W 1192.83 feet to a concrete monument,

9.iS 55848'36" W 86.13 feet to a 1/2" iron pin found,

10.iS 44850'37" W 86.74 feet to a 1/2" iron pin found,

4346 81st Legislature — Regular Session 69th Day (Cont.)

11.iS 46859'47" W 1025.64 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

12.iS 51814'20" W 63.03 feet to a 1/2" iron pin found,

13.iS 48831'46" W 323.13 feet to a 1/2" iron pin found,

14.iS 48810'15" W 419.02 feet to a 1/2" iron pin found,

15.iS 52857'23" W 267.70 feet leaving said fence to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

16.iS 49827'07" W 266.78 feet to a 1/2" iron pin found,

17.iS 41816'15" E 29.52 feet back to said fence and to a 1/2" iron pin found,

18.iS 48819'28" W 383.14 feet to a 1/2" iron pin found,

19.iS 48820'59" W 761.56 feet to a 1/2" iron pin found,

20.iS 48844'26" W 698.20 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

21.iS 48809'58" W 530.04 feet to a 1/2" iron pin found,

22.iS 48839'32" W 124.20 feet to a 1/2" iron pin found for the southeast corner of said Don Ray George, et ux tract (81/50) and the southwest corner of said Don Ray George, et ux tract (80/901),

23.iS 48827'11" W 825.07 feet to a 1/2" iron pin found,

24.iS 52837'55" W 62.98 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

25.iS 48849'11" W 50.25 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

26.iS 41828'02" W 18.93 feet to a 1/2" iron pin found,

27.iS 48816'14" W 843.13 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

28.iS 48823'56" W 434.47 feet to a 1/2" iron pin found,

29.iS 48828'12" W 1554.39 feet to a 1/2" iron pin with a yellow plastic cap inscribed "CS, LTD." set,

30.iS 58827'42" W 11.24 feet to the Point of Beginning and containing 3473.37 acres of land within this metes and bounds description.