1-1     By:  Counts (Senate Sponsor - Lucio)                  H.B. No. 3380

 1-2           (In the Senate - Received from the House May 7, 1997;

 1-3     May 8, 1997, read first time and referred to Committee on

 1-4     International Relations, Trade, and Technology; May 15, 1997,

 1-5     reported favorably by the following vote:  Yeas 6, Nays 0;

 1-6     May 15, 1997, sent to printer.)

 1-7                            A BILL TO BE ENTITLED

 1-8                                   AN ACT

 1-9     relating to the adoption of the National Guard Mutual Assistance

1-10     Counter-drug Activities Compact.

1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-12           SECTION 1.  Chapter 431, Government Code, is amended by

1-13     adding Subchapter K to read as follows:

1-14        SUBCHAPTER K.  NATIONAL GUARD MUTUAL ASSISTANCE COUNTER-DRUG

1-15                             ACTIVITIES COMPACT

1-16           Sec. 431.141.  ADOPTION OF COMPACT.  The National Guard

1-17     Mutual Assistance Counter-drug Activities Compact is enacted and

1-18     entered into by this state in the following form:

1-19                      NATIONAL GUARD MUTUAL ASSISTANCE

1-20                       COUNTER-DRUG ACTIVITIES COMPACT

1-21                                  ARTICLE I

1-22                                   Purpose

1-23           The purposes of this compact are to:

1-24                 A.  Provide for mutual assistance and support among the

1-25     party states in the utilization of the national guard in drug

1-26     interdiction, counter-drug and demand reduction activities.

1-27                 B.  Permit the national guard of this state to enter

1-28     into mutual assistance and support agreements, on the basis of

1-29     need, with one or more law enforcement agencies operating within

1-30     this state, for activities within this state, or with a national

1-31     guard of one or more other states, whether said activities are

1-32     within or without this state in order to facilitate and coordinate

1-33     efficient, cooperative enforcement efforts directed toward drug

1-34     interdiction, counter-drug activities and demand reduction.

1-35                 C.  Permit the national guard of this state to act as a

1-36     receiving and a responding state as defined within this compact and

1-37     to ensure the prompt and effective delivery of national guard

1-38     personnel, assets and services to agencies or areas that are in

1-39     need of increased support and presence.

1-40                 D.  Permit and encourage a high degree of flexibility

1-41     in the deployment of national guard forces in the interest of

1-42     efficiency.

1-43                 E.  Maximize the effectiveness of the national guard in

1-44     those situations which call for its utilization under this compact.

1-45                 F.  Provide protection for the rights of national guard

1-46     personnel when performing duty in other states in counter-drug

1-47     activities.

1-48                 G.  Ensure uniformity of state laws in the area of

1-49     national guard involvement in interstate counter-drug activities by

1-50     incorporating said uniform laws within the compact.

1-51                                 ARTICLE II

1-52                       Entry Into Force and Withdrawal

1-53           A.  This compact shall enter into force when enacted into law

1-54     by any two states.  Thereafter, this compact shall become effective

1-55     as to any other state upon its enactment thereof.

1-56           B.  Any party state may withdraw from this compact by

1-57     enacting a statute repealing the same, but no such withdrawal shall

1-58     take effect until one year after the governor of the withdrawing

1-59     state has given notice in writing of such withdrawal to the

1-60     governors of all other party states.

1-61                                 ARTICLE III

1-62                        Mutual Assistance and Support

1-63           A.  As used in this article:

1-64                 1.  "Drug interdiction and counter-drug activities"

 2-1     means the use of national guard personnel, while not in federal

 2-2     service, in any law enforcement support activities that are

 2-3     intended to reduce the supply or use of illegal drugs in the United

 2-4     States.  These activities include, but are not limited to:

 2-5                       (a)  Providing information obtained during either

 2-6     the normal course of military training or operations or during

 2-7     counter-drug activities, to federal, state or local law enforcement

 2-8     officials that may be relevant to a violation of any federal or

 2-9     state law within the jurisdiction of such officials;

2-10                       (b)  Making available any equipment (including

2-11     associated supplies or spare parts), base facilities or research

2-12     facilities of the national guard to any federal, state or local

2-13     civilian law enforcement official for law enforcement purposes, in

2-14     accordance with other applicable law or regulation;

2-15                       (c)  Providing available national guard personnel

2-16     to train federal, state or local civilian law enforcement in the

2-17     operation and maintenance of equipment, including equipment made

2-18     available above, in accordance with other applicable law;

2-19                       (d)  Providing available national guard personnel

2-20     to operate and maintain equipment provided to federal, state or

2-21     local law enforcement officials pursuant to activities defined and

2-22     referred to in this compact;

2-23                       (e)  Operation and maintenance of equipment and

2-24     facilities of the national guard or law enforcement agencies used

2-25     for the purposes of drug interdiction and counter-drug activities;

2-26                       (f)  Providing available national guard personnel

2-27     to operate equipment for the detection, monitoring and

2-28     communication of the movement of air, land and sea traffic, to

2-29     facilitate communications in connection with law enforcement

2-30     programs, to provide transportation for civilian law enforcement

2-31     personnel and to operate bases of operations for civilian law

2-32     enforcement personnel;

2-33                       (g)  Providing available national guard

2-34     personnel, equipment and support for administrative, interpretive,

2-35     analytic or other purposes;

2-36                       (h)  Providing available national guard personnel

2-37     and equipment to aid federal, state and local officials and

2-38     agencies otherwise involved in the prosecution or incarceration of

2-39     individuals processed within the criminal justice system who have

2-40     been arrested for criminal acts involving the use, distribution or

2-41     transportation of controlled substances as defined in 21 U.S.C. 801

2-42     et seq. or otherwise by law, in accordance with other applicable

2-43     law.

2-44                 2.  "Demand reduction" means providing available

2-45     national guard personnel, equipment, support and coordination to

2-46     federal, state, local and civic organizations, institutions and

2-47     agencies for the purposes of the prevention of drug abuse and the

2-48     reduction in the demand for illegal drugs.

2-49                 3.  "Requesting state" means the state whose governor

2-50     requested assistance in the area of counter-drug activities.

2-51                 4.  "Responding state" means the state furnishing

2-52     assistance, or requested to furnish assistance, in the area of

2-53     counter-drug activities.

2-54                 5.  "Law enforcement agency" means a lawfully

2-55     established federal, state or local public agency that is

2-56     responsible for the prevention and detection of crime and the

2-57     enforcement of penal, traffic, regulatory, game, immigration,

2-58     postal, customs or controlled substances laws.

2-59                 6.  "Official" means the appointed, elected, designated

2-60     or otherwise duly selected representative of an agency, institution

2-61     or organization authorized to conduct those activities for which

2-62     support is requested.

2-63                 7.  "Mutual Assistance and Support Agreement" or

2-64     "agreement" means an agreement between the national guard of this

2-65     state and one or more law enforcement agencies or between the

2-66     national guard of this state and the national guard of one or more

2-67     other states, consistent with the purposes of this compact.

2-68                 8.  "Party state" refers to a state that has lawfully

2-69     enacted this compact.

 3-1                 9.  "State" means each of the several states of the

 3-2     United States, the District of Columbia, the Commonwealth of Puerto

 3-3     Rico or a territory or possession of the United States.

 3-4           B.  Upon the request of a governor of a party state for

 3-5     assistance in the area of drug interdiction, counter-drug and

 3-6     demand reduction activities, the governor of a responding state

 3-7     shall have authority under this compact to send without the borders

 3-8     of his or her state and place under the temporary operational

 3-9     control of the appropriate national guard or other military

3-10     authorities of the requesting state, for the purposes of providing

3-11     such requested assistance, all or any part of the national guard

3-12     forces of his or her state as he or she may deem necessary, and the

3-13     exercise of his or her discretion in this regard shall be

3-14     conclusive.

3-15           C.  The governor of a party state may, within his or her

3-16     discretion, withhold the national guard forces of his or her state

3-17     from such use and recall any forces or part or member thereof

3-18     previously deployed in a requesting state.

3-19           D.  The national guard of this state is hereby authorized to

3-20     engage in counter-drug activities and demand reduction.

3-21           E.  The Adjutant General of this state, in order to further

3-22     the purposes of this compact, may enter into a mutual assistance

3-23     and support agreement with one or more law enforcement agencies of

3-24     this state, including federal law enforcement agencies operating

3-25     within this state, or with the national guard of one or more other

3-26     party states to provide personnel, assets and services in the area

3-27     of counter-drug activities, and demand reduction provided that all

3-28     parties to the agreement are not specifically prohibited by law to

3-29     perform said activities.

3-30           F.  The agreement must set forth the powers, rights and

3-31     obligations of the parties to the agreement, where applicable, as

3-32     follows:

3-33                 1.  Its duration;

3-34                 2.  The organization, composition and nature of any

3-35     separate legal entity created thereby;

3-36                 3.  The purpose of the agreement;

3-37                 4.  The manner of financing the agreement and

3-38     establishing and maintaining its budget;

3-39                 5.  The method to be employed in accomplishing the

3-40     partial or complete termination of the agreement and for disposing

3-41     of property upon such partial or complete termination;

3-42                 6.  Provision for administering the agreement, which

3-43     may include creation of a joint board responsible for such

3-44     administration;

3-45                 7.  The manner of acquiring, holding and disposing of

3-46     real and personal property used in this agreement, if necessary;

3-47                 8.  The minimum standards for national guard personnel

3-48     implementing the provisions of this agreement;

3-49                 9.  The minimum insurance required of each party to the

3-50     agreement, if necessary;

3-51                 10.  The chain of command or delegation of authority to

3-52     be followed by national guard personnel acting under the provisions

3-53     of the agreement;

3-54                 11.  The duties and authority that the national guard

3-55     personnel of each party state may exercise; and

3-56                 12.  Any other necessary and proper matters.

3-57     Agreements prepared under the provisions of this statute are exempt

3-58     from any general law pertaining to intergovernmental agreements.

3-59           G.  As a condition precedent to an agreement becoming

3-60     effective under this part, the agreement must be submitted to and

3-61     receive the approval of the office of the attorney general.  The

3-62     attorney general may delegate his or her approval authority to the

3-63     appropriate attorney for the Texas National Guard subject to those

3-64     conditions which he or she decides are appropriate.  Said

3-65     delegation must be in writing:

3-66                 1.  The attorney general, or his or her agent in the

3-67     Texas National Guard as stated above, shall approve an agreement

3-68     submitted to him or her under this part unless he or she finds that

3-69     it is not in proper form, does not meet the requirements set forth

 4-1     in this part, or otherwise does not conform to the laws of Texas.

 4-2     If the Attorney General disapproves an agreement, he or she shall

 4-3     provide a written explanation to the adjutant general of the

 4-4     national guard.

 4-5                 2.  If the attorney general, or his or her authorized

 4-6     agent as stated above, does not disapprove an agreement within

 4-7     thirty days after its submission to him or her, it is considered

 4-8     approved by him or her.

 4-9           H.  Whenever national guard forces of any party state are

4-10     engaged in the performance of duties, in the area of drug

4-11     interdiction, counter-drug and demand reduction activities,

4-12     pursuant to orders, they shall not be held personally liable for

4-13     any acts or omissions which occur during the performance of their

4-14     duty.

4-15                                 ARTICLE IV

4-16                              Responsibilities

4-17           A.  Nothing in this compact shall be construed as a waiver of

4-18     any benefits, privileges, immunities or rights otherwise provided

4-19     for national guard personnel performing duty pursuant to Title 32

4-20     of the United States Code nor shall anything in this compact be

4-21     construed as a waiver of coverage provided for under the Federal

4-22     Tort Claims Act.  In the event that national guard personnel

4-23     performing counter-drug activities do not receive rights, benefits,

4-24     privileges and immunities otherwise provided for national guard

4-25     personnel as stated above, the following provisions shall apply:

4-26                 1.  Whenever national guard forces of any responding

4-27     state are engaged in another state in carrying out the purposes of

4-28     this compact, the members thereof so engaged shall have the same

4-29     powers, duties, rights, privileges and immunities as members of

4-30     national guard forces of the requesting state.  The requesting

4-31     state shall save and hold members of the national guard forces of

4-32     responding states harmless from civil liability, except as

4-33     otherwise provided herein, for acts or omissions which occur in the

4-34     performance of their duty while engaged in carrying out the purpose

4-35     of this compact, whether responding forces are serving the

4-36     requesting state within the borders of the responding state or are

4-37     attached to the requesting state for purposes of operational

4-38     control.

4-39                 2.  Subject to the provisions of paragraphs 3, 4 and 5

4-40     of this article, all liability that may arise under the laws of the

4-41     requesting state or the responding states, on account of or in

4-42     connection with a request for assistance or support, shall be

4-43     assumed and borne by the requesting state.

4-44                 3.  Any responding state rendering aid or assistance

4-45     pursuant to this compact shall be reimbursed by the requesting

4-46     state for any loss or damage to, or expense incurred in the

4-47     operation of, any equipment answering a request for aid, and for

4-48     the cost of the materials, transportation and maintenance of

4-49     national guard personnel and equipment incurred in connection with

4-50     such request, provided that nothing herein contained shall prevent

4-51     any responding state from assuming such loss, damage, expense or

4-52     other cost.

4-53                 4.  Unless there is a written agreement to the

4-54     contrary, each party shall provide, in the same amounts and manner

4-55     as if they were on duty within their state, for pay and allowances

4-56     of the personnel of its national guard units while engaged without

4-57     the state pursuant to this compact and while going to and returning

4-58     from such duty pursuant to this compact.

4-59                 5.  Each party state providing for the payment of

4-60     compensation and death benefits to injured members and the

4-61     representatives of deceased members of its national guard forces in

4-62     case such members sustain injuries or are killed within their own

4-63     state shall provide for the payment of compensation and death

4-64     benefits in the same manner and on the same terms in the event such

4-65     members sustain injury or are killed while rendering assistance or

4-66     support pursuant to this compact.  Such benefits and compensation

4-67     shall be deemed items of expense reimbursable pursuant to paragraph

4-68     3 of this article.

4-69           B.  Officers and enlisted personnel of the national guard

 5-1     performing duties subject to proper orders pursuant to this compact

 5-2     shall be subject to and governed by the provisions of their home

 5-3     state code of military justice whether they are performing duties

 5-4     within or without their home state.  In the event that any national

 5-5     guard member commits, or is suspected of committing, a criminal

 5-6     offense while performing duties pursuant to this compact without

 5-7     his or her home state, he or she may be returned immediately to his

 5-8     or her home state and said home state shall be responsible for any

 5-9     disciplinary action to be taken.  However, nothing in this section

5-10     shall abrogate the general criminal jurisdiction of the state in

5-11     which the offense occurred.

5-12                                  ARTICLE V

5-13                                 Delegation

5-14           Nothing in this compact shall be construed to prevent the

5-15     governor of a party state from delegating any of his or her

5-16     responsibilities or authority respecting the national guard,

5-17     provided that such delegation is otherwise in accordance with law.

5-18     For purposes of this compact, however, the governor shall not

5-19     delegate the power to request assistance from another state.

5-20                                 ARTICLE VI

5-21                                 Limitations

5-22           Nothing in this compact shall:

5-23                 1.  Authorize or permit national guard units or

5-24     personnel to be placed under the operational control of any person

5-25     not having the national guard rank or status required by law for

5-26     the command in question.

5-27                 2.  Deprive a properly convened court of jurisdiction

5-28     over an offense or a defendant merely because of the fact that the

5-29     national guard, while performing duties pursuant to this compact,

5-30     was utilized in achieving an arrest or indictment.

5-31                                 ARTICLE VII

5-32                        Construction and Severability

5-33           This compact shall be liberally construed so as to effectuate

5-34     the purposes thereof.  The provisions of this compact shall be

5-35     severable and if any phrase, clause, sentence or provision of this

5-36     compact is declared to be contrary to the constitution of the

5-37     United States or of any state or the applicability thereof to any

5-38     government, agency, person or circumstance is held invalid, the

5-39     validity of the remainder of this compact and the applicability

5-40     thereof to any government, agency, person or circumstance shall not

5-41     be affected thereby.  If this compact shall be held contrary to the

5-42     constitution of any state participating herein, the compact shall

5-43     remain in full force and effect as to the remaining party states

5-44     and in full force and effect as to the state affected as to all

5-45     severable matters.

5-46           Sec. 431.142.  AUTHORITY OF TEXAS NATIONAL GUARD UNDER

5-47     COMPACT.  (a)  The Texas National Guard may conduct drug

5-48     interdiction, counter-drug, and demand reduction activities in this

5-49     state as provided by the National Guard Mutual Assistance

5-50     Counter-drug Activities Compact.

5-51           (b)  The Texas National Guard may enter into a mutual

5-52     assistance and support agreement with a law enforcement agency

5-53     operating in this state for activities in this state.

5-54           SECTION 2.  The importance of this legislation and the

5-55     crowded condition of the calendars in both houses create an

5-56     emergency and an imperative public necessity that the

5-57     constitutional rule requiring bills to be read on three several

5-58     days in each house be suspended, and this rule is hereby suspended,

5-59     and that this Act take effect and be in force from and after its

5-60     passage, and it is so enacted.

5-61                                  * * * * *