AN ACT
1-1 relating to state agency practices and duties, including
1-2 codification of certain state agency practices and duties currently
1-3 prescribed by the General Appropriations Act.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. PROVISIONS RELATED TO STATE AGENCY
1-6 PRACTICES AND DUTIES IN GENERAL APPROPRIATIONS ACT
1-7 SECTION 1.01. Subsection (a), Section 101.027, Civil
1-8 Practice and Remedies Code, is amended to read as follows:
1-9 (a) Each governmental unit other than a unit of state
1-10 government may purchase insurance policies protecting the unit and
1-11 the unit's employees against claims under this chapter. A unit of
1-12 state government may purchase such a policy only to the extent that
1-13 the unit is authorized or required to do so under other law.
1-14 SECTION 1.02. Section 106.001, Civil Practice and Remedies
1-15 Code, is amended by adding Subsection (c) to read as follows:
1-16 (c) This section does not prohibit the adoption of a program
1-17 designed to increase the participation of businesses owned and
1-18 controlled by women, minorities, or disadvantaged persons in public
1-19 contract awards.
1-20 SECTION 1.03. Chapter 306, Government Code, is amended by
1-21 adding Section 306.007 to read as follows:
1-22 Sec. 306.007. MINUTES AND REPORTS ELECTRONICALLY AVAILABLE
1-23 TO LEGISLATURE. A state officer or board, commission, or other
1-24 agency in the executive branch of state government, and an agency
2-1 in the judicial branch of state government other than a court,
2-2 shall make reports required by law and minutes of meetings of the
2-3 agency's governing body available to members of the legislature and
2-4 to agencies in the legislative branch of state government in an
2-5 electronic format determined by the Texas Legislative Council.
2-6 SECTION 1.04. Subsection (c), Section 321.013, Government
2-7 Code, is amended to read as follows:
2-8 (c) The State Auditor shall recommend [determine] the audit
2-9 plan for the state for each fiscal year to the committee. In
2-10 devising the plan, the State Auditor shall consider recommendations
2-11 concerning coordination of agency functions made jointly by
2-12 representatives [the committee composed] of the Legislative Budget
2-13 Board, Sunset Advisory Commission, and State Auditor's Office. The
2-14 State Auditor shall also consider the extent to which a department
2-15 has received a significant increase in appropriations, including a
2-16 significant increase in federal or other money passed through to
2-17 the department, and shall review procurement activities for
2-18 compliance with Section 2161.123. The plan shall provide for
2-19 auditing of federal programs at least once in each fiscal biennium
2-20 and shall ensure that audit requirements of all bond covenants and
2-21 other credit or financial agreements are satisfied. The committee
2-22 shall review and approve the plan.
2-23 SECTION 1.05. Subsection (c), Section 321.014, Government
2-24 Code, is amended to read as follows:
2-25 (c) The State Auditor shall submit each report to the
2-26 committee prior to publication. The State Auditor shall file a
3-1 copy of each report prepared under this section with:
3-2 (1) the governor;
3-3 (2) the lieutenant governor;
3-4 (3) the speaker of the house of representatives;
3-5 (4) the secretary of state;
3-6 (5) the Legislative Reference Library;
3-7 (6) each member of [the chairman of] the governing
3-8 body and the administrative head of each entity that is the subject
3-9 of the report; and
3-10 (7) members of the legislature on a committee with
3-11 oversight responsibility for the entity or program that is the
3-12 subject of the report.
3-13 SECTION 1.06. Section 325.011, Government Code, is amended
3-14 to read as follows:
3-15 Sec. 325.011. CRITERIA FOR REVIEW. The commission and its
3-16 staff shall consider the following criteria in determining whether
3-17 a public need exists for the continuation of a state agency or its
3-18 advisory committees or for the performance of the functions of the
3-19 agency or its advisory committees:
3-20 (1) the efficiency with which the agency or advisory
3-21 committee operates;
3-22 (2) an identification of the objectives intended for
3-23 the agency or advisory committee and the problem or need that the
3-24 agency or advisory committee was intended to address, the extent to
3-25 which the objectives have been achieved, and any activities of the
3-26 agency in addition to those granted by statute and the authority
4-1 for these activities;
4-2 (3) an assessment of less restrictive or alternative
4-3 methods of performing any regulation that the agency performs that
4-4 could adequately protect the public;
4-5 (4) the extent to which the advisory committee is
4-6 needed and is used;
4-7 (5) the extent to which the jurisdiction of the agency
4-8 and the programs administered by the agency overlap or duplicate
4-9 those of other agencies and the extent to which the programs
4-10 administered by the agency can be consolidated with the programs of
4-11 other state agencies;
4-12 (6) whether the agency has recommended to the
4-13 legislature statutory changes calculated to be of benefit to the
4-14 public rather than to an occupation, business, or institution that
4-15 the agency regulates;
4-16 (7) the promptness and effectiveness with which the
4-17 agency disposes of complaints concerning persons affected by the
4-18 agency;
4-19 (8) the extent to which the agency has encouraged
4-20 participation by the public in making its rules and decisions as
4-21 opposed to participation solely by those it regulates and the
4-22 extent to which the public participation has resulted in rules
4-23 compatible with the objectives of the agency;
4-24 (9) the extent to which the agency has complied with
4-25 applicable requirements of:
4-26 (A) an agency of the United States or of this
5-1 state regarding equality of employment opportunity and the rights
5-2 and privacy of individuals; and
5-3 (B) state law and applicable rules of any state
5-4 agency regarding purchasing goals and programs for historically
5-5 underutilized businesses;
5-6 (10) the extent to which changes are necessary in the
5-7 enabling statutes of the agency so that the agency can adequately
5-8 comply with the criteria listed in this section;
5-9 (11) the extent to which the agency issues and
5-10 enforces rules relating to potential conflicts of interest of its
5-11 employees;
5-12 (12) the extent to which the agency complies with
5-13 Chapter 552, and with Chapter 551; and
5-14 (13) the effect of federal intervention or loss of
5-15 federal funds if the agency is abolished.
5-16 SECTION 1.07. Subchapter F, Chapter 403, Government Code, is
5-17 amended by adding Section 403.097 to read as follows:
5-18 Sec. 403.097. FUNDS EXPENDED IN PROPORTION TO METHOD OF
5-19 FINANCING. (a) The comptroller may prescribe rules to ensure
5-20 that, when it is necessary to preserve cash balances in the funds
5-21 and accounts in the state treasury, appropriations are drawn from
5-22 the treasury in proportion to the methods of financing specified in
5-23 the Acts authorizing the appropriations.
5-24 (b) The rules may include procedures relating to the deposit
5-25 of receipts and the issuance of warrants.
5-26 (c) This section does not affect other powers of the
6-1 comptroller under this subchapter, Subchapter H of Chapter 404, or
6-2 other law.
6-3 (d) This section does not apply if the method of financing
6-4 specified for an agency or an institution of higher education in
6-5 the Act authorizing appropriations includes interest earned or to
6-6 be earned on local funds of the agency or institution.
6-7 SECTION 1.08. Subsection (b), Section 403.245, Government
6-8 Code, is amended to read as follows:
6-9 (b) The replenishment of a petty cash account is an
6-10 expenditure from the corresponding fund and shall be drawn from the
6-11 appropriation from which the expenditure would otherwise have been
6-12 made.
6-13 SECTION 1.09. Section 771.008, Government Code, is amended
6-14 by adding Subsection (d) to read as follows:
6-15 (d) This subsection applies only if the services or
6-16 resources are provided under a written contract or agreement. The
6-17 receiving agency shall reimburse the providing agency within 30
6-18 days after the date by which the services or resources are provided
6-19 and an invoice is received. If the receiving agency does not
6-20 accept the services or resources or finds an error in the invoice,
6-21 it shall notify the providing agency of the fact in writing as soon
6-22 as possible within the 30-day period and make payment within 10
6-23 days after the date the agencies agree the problems are corrected
6-24 or the error resolved. If the agencies cannot agree on the amount
6-25 of the reimbursement, the comptroller shall determine the
6-26 appropriate amount. If the receiving agency does not, within the
7-1 30-day period, reimburse the providing agency or give the providing
7-2 agency written notice of a problem or error, the comptroller on
7-3 request of the providing agency may transfer from amounts
7-4 appropriated to the receiving agency the appropriate amount in
7-5 accordance with this section.
7-6 SECTION 1.10. Subdivision (7), Section 811.001, Government
7-7 Code, is amended to read as follows:
7-8 (7) "Compensation" means the base salary of a person;
7-9 amounts that would otherwise qualify as compensation but are not
7-10 received directly by a person pursuant to a good faith, voluntary,
7-11 written salary reduction agreement in order to finance payments to
7-12 a deferred compensation or tax sheltered annuity program
7-13 specifically authorized by state law or to finance benefit options
7-14 under a cafeteria plan qualifying under Section 125 of the Internal
7-15 Revenue Code of 1986 (26 U.S.C. Section 125); longevity and
7-16 hazardous duty pay; nonmonetary compensation, the value of which
7-17 is determined by the retirement system; amounts by which a person's
7-18 salary is reduced under a salary reduction agreement authorized by
7-19 Chapter 610; and the benefit replacement pay a person earns under
7-20 Subchapter H, Chapter 659, as added by Chapter 417, Acts of the
7-21 74th Legislature, 1995, except for the benefit replacement pay a
7-22 person earns as a result of a payment made under Subchapter B, C,
7-23 or D, Chapter 661. The term excludes overtime pay and a cleaning
7-24 or clothing allowance.
7-25 SECTION 1.11. (a) Subchapter B, Chapter 2001, Government
7-26 Code, is amended by adding Section 2001.039 to read as follows:
8-1 Sec. 2001.039. AGENCY REVIEW OF EXISTING RULES. (a) A
8-2 state agency shall review and consider for readoption each of its
8-3 rules in accordance with this section.
8-4 (b) A state agency shall review a rule not later than the
8-5 fourth anniversary of the date on which the rule takes effect and
8-6 every four years after that date. The adoption of an amendment to
8-7 an existing rule does not affect the dates on which the rule must
8-8 be reviewed except that the effective date of an amendment is
8-9 considered to be the effective date of the rule if the agency
8-10 formally conducts a review of the rule in accordance with this
8-11 section as part of the process of adopting the amendment.
8-12 (c) The state agency shall readopt, readopt with amendments,
8-13 or repeal a rule as the result of reviewing the rule under this
8-14 section.
8-15 (d) The procedures of this subchapter relating to the
8-16 original adoption of a rule apply to the review of a rule and to
8-17 the resulting repeal, readoption, or readoption with amendments of
8-18 the rule, except as provided by this subsection. Publishing the
8-19 Texas Administrative Code citation to a rule under review satisfies
8-20 the requirements of this subchapter relating to publishing the text
8-21 of the rule unless the agency readopts the rule with amendments as
8-22 a result of the review.
8-23 (e) A state agency's review of a rule must include an
8-24 assessment of whether the reasons for initially adopting the rule
8-25 continue to exist.
8-26 (b) The duties prescribed by this subsection apply only to
9-1 state agency rules that are in effect on September 1, 1999, and
9-2 that have not already been reviewed in accordance with Section 167,
9-3 Article IX, Chapter 1452, Acts of the 75th Legislature, Regular
9-4 Session, 1997 (General Appropriations Act). A state agency shall
9-5 review each of those rules in accordance with Section 2001.039,
9-6 Government Code, as added by this Act, and in accordance with this
9-7 subsection not later than August 31, 2003. Not later than August
9-8 31, 2000, each state agency shall develop and send to the secretary
9-9 of state for publication in the Texas Register a plan under which
9-10 the agency will review its existing rules. The plan must state for
9-11 each of those rules the date by which the state agency will begin
9-12 the review required by Section 2001.039, Government Code, as added
9-13 by this Act.
9-14 (c) For purposes of subsequent reviews under Section
9-15 2001.039, Government Code, as added by this Act, the effective date
9-16 of an existing rule initially reviewed under Subsection (b) of this
9-17 section or under Section 167, Article IX, Chapter 1452, Acts of the
9-18 75th Legislature, Regular Session, 1997 (General Appropriations
9-19 Act), is considered to be the date on which the state agency begins
9-20 the review of the rule by publishing in the Texas Register the
9-21 notice for the review required under Section 2001.024, Government
9-22 Code, through either Subsection (d), Section 2001.039, or Section
9-23 167.
9-24 SECTION 1.12. Subchapter D, Chapter 2052, Government Code,
9-25 is amended by adding Section 2052.304 to read as follows:
9-26 Sec. 2052.304. USE OF CERTAIN PRINTING STOCK. (a) A state
10-1 officer or board, court, commission, or other agency in the
10-2 executive or judicial branch of state government may not publish a
10-3 report or other printed materials on enamel-coated, cast-coated, or
10-4 dull-coated printing stock unless the agency imposes a fee for
10-5 receipt of the printed materials.
10-6 (b) This section does not apply to a publication that
10-7 promotes tourism or economic development.
10-8 SECTION 1.13. Subdivision (6), Section 2054.003, Government
10-9 Code, is amended to read as follows:
10-10 (6) "Information resources" means the procedures,
10-11 equipment, and software that are employed, designed, built,
10-12 operated, and maintained to collect, record, process, store,
10-13 retrieve, display, and transmit information, and associated
10-14 personnel including consultants and contractors.
10-15 SECTION 1.14. Subchapter F, Chapter 2054, Government Code,
10-16 is amended by adding Sections 2054.121 and 2054.122 to read as
10-17 follows:
10-18 Sec. 2054.121. COORDINATION AMONG INSTITUTIONS OF HIGHER
10-19 EDUCATION. An institution of higher education shall coordinate its
10-20 use of information technologies with other such institutions to
10-21 more effectively provide education, research, and community
10-22 service.
10-23 Sec. 2054.122. COORDINATED TECHNOLOGY TRAINING. A state
10-24 agency each calendar quarter shall coordinate agency training for
10-25 the use of information resources technologies with training offered
10-26 or coordinated by the department. The agency shall use training
11-1 offered or coordinated by the department if it meets agency
11-2 requirements and is cost-competitive.
11-3 SECTION 1.15. Subchapter C, Chapter 2101, Government Code,
11-4 is amended by adding Section 2101.0377 to read as follows:
11-5 Sec. 2101.0377. REPORTING ACCOUNTING IRREGULARITIES TO STATE
11-6 AUDITOR. On determining that a state agency, as defined by Section
11-7 658.001, or an institution of higher education, as defined by
11-8 Section 61.003, Education Code, has inaccurately reported the
11-9 expenditure of appropriated funds or engaged in recurring
11-10 accounting irregularities, the comptroller shall report the agency
11-11 or institution to the state auditor for appropriate action,
11-12 including a comprehensive financial audit.
11-13 SECTION 1.16. Subchapter B, Chapter 2155, Government Code,
11-14 is amended by adding Section 2155.084 to read as follows:
11-15 Sec. 2155.084. PURCHASES FROM FEDERAL GOVERNMENT. (a) The
11-16 commission or the governing body of an institution of higher
11-17 education may negotiate purchases of goods of any kind needed by a
11-18 state agency or the institution of higher education with the
11-19 appropriate agency of the federal government. The governing body
11-20 of an institution of higher education may act under this section
11-21 either directly or through the commission or another state agency.
11-22 (b) The price of goods that are purchased from the federal
11-23 government may not exceed the fair market value of the goods.
11-24 (c) In negotiating purchases of goods from the federal
11-25 government under this section or under Subchapter G, Chapter 2175,
11-26 the commission or the governing body of the institution of higher
12-1 education may waive the requirement of a bidder's bond and
12-2 performance bond that otherwise would be required.
12-3 SECTION 1.17. Subsection (a), Section 2155.132, Government
12-4 Code, is amended to read as follows:
12-5 (a) A state agency is delegated the authority to purchase
12-6 goods and services if the purchase does not exceed $15,000. If the
12-7 commission determines that a state agency has not followed the
12-8 commission's rules or the laws related to the delegated purchases,
12-9 the commission shall report its determination to the members of the
12-10 state agency's governing body and to the governor, lieutenant
12-11 governor, speaker of the house of representatives, and Legislative
12-12 Budget Board.
12-13 SECTION 1.18. Section 2155.268, Government Code, is amended
12-14 to read as follows:
12-15 Sec. 2155.268. USE OF STATE AGENCY BIDDERS LIST. (a) A
12-16 state agency may not maintain and use its own bidders list [only if
12-17 the commission determines by rule that the agency has specialized
12-18 needs that can best be met through maintaining and using its own
12-19 specialized bidders list]. The prohibition of this subsection does
12-20 not apply to the Texas Department of Transportation or to an
12-21 institution of higher education as defined by Section 61.003,
12-22 Education Code, but an institution of higher education should use
12-23 the master bidders list when possible.
12-24 (b) [The commission by rule may prescribe the categories of
12-25 purchases or other acquisitions for which a state agency's
12-26 specialized bidders list may be used.]
13-1 [(c)] A state agency may supplement the bidders list with
13-2 its own list of historically underutilized businesses if it
13-3 determines that the supplementation will increase the number of
13-4 historically underutilized businesses that submit bids.
13-5 (c) [(d)] A state agency may purchase goods and services
13-6 from a vendor who is not on the bidders list if the purchase price
13-7 does not exceed $5,000.
13-8 SECTION 1.19. Subchapter H, Chapter 2155, Government Code,
13-9 is amended by adding Section 2155.4441 to read as follows:
13-10 Sec. 2155.4441. PREFERENCE UNDER SERVICE CONTRACTS. A state
13-11 agency that contracts for services shall require the contractor, in
13-12 performing the contract, to purchase products and materials
13-13 produced in this state when they are available at a price and time
13-14 comparable to products and materials produced outside this state.
13-15 SECTION 1.20. Subchapter A, Chapter 2158, Government Code,
13-16 is amended by adding Section 2158.0031 to read as follows:
13-17 Sec. 2158.0031. PURCHASE PREFERENCE FOR AMERICAN VEHICLES.
13-18 A state agency authorized to purchase passenger vehicles or other
13-19 ground transportation vehicles for general use shall purchase
13-20 economical, fuel-efficient vehicles assembled in the United States
13-21 unless such a purchase would have a significant detrimental effect
13-22 on the use to which the vehicles will be put.
13-23 SECTION 1.21. Subdivisions (2) and (3), Section 2161.001,
13-24 Government Code, are amended to read as follows:
13-25 (2) "Historically underutilized business" means an
13-26 entity with its principal place of business in this state that is:
14-1 (A) a corporation formed for the purpose of
14-2 making a profit in which 51 percent or more of all classes of the
14-3 shares of stock or other equitable securities are owned by one or
14-4 more economically [socially] disadvantaged persons who have a
14-5 proportionate interest and actively participate in the
14-6 corporation's control, operation, and management;
14-7 (B) a sole proprietorship created for the
14-8 purpose of making a profit that is completely owned, operated, and
14-9 controlled by an economically [a socially] disadvantaged person;
14-10 (C) a partnership formed for the purpose of
14-11 making a profit in which 51 percent or more of the assets and
14-12 interest in the partnership are owned by one or more economically
14-13 [socially] disadvantaged persons who have a proportionate interest
14-14 and actively participate in the partnership's control, operation,
14-15 and management;
14-16 (D) a joint venture in which each entity in the
14-17 venture is a historically underutilized business, as determined
14-18 under another paragraph of this subdivision; or
14-19 (E) a supplier contract between a historically
14-20 underutilized business as determined under another paragraph of
14-21 this subdivision and a prime contractor under which the
14-22 historically underutilized business is directly involved in the
14-23 manufacture or distribution of the goods or otherwise warehouses
14-24 and ships the goods.
14-25 (3) "Economically [Socially] disadvantaged person"
14-26 means a person who is economically [socially] disadvantaged because
15-1 of the person's identification as a member of a certain group,
15-2 including Black Americans, Hispanic Americans, women, Asian Pacific
15-3 Americans, and Native Americans, and who has suffered the effects
15-4 of discriminatory practices or other similar insidious
15-5 circumstances over which the person has no control.
15-6 SECTION 1.22. Section 2161.002, Government Code, is amended
15-7 by adding Subsection (c) to read as follows:
15-8 (c) In adopting rules to administer this chapter, the
15-9 commission shall adopt rules that are based on the results of the
15-10 "State of Texas Disparity Study, A Report to the Texas Legislature
15-11 as Mandated by H.B. 2626, 73rd Legislature, December 1994"
15-12 (prepared by National Economic Research Associates, Inc.). The
15-13 commission shall revise the rules in response to the findings of
15-14 any updates of the study that are prepared on behalf of the state.
15-15 SECTION 1.23. Subchapter A, Chapter 2161, Government Code,
15-16 is amended by adding Sections 2161.003, 2161.004, and 2161.005 to
15-17 read as follows:
15-18 Sec. 2161.003. AGENCY RULES. A state agency, including an
15-19 institution of higher education, shall adopt the commission's rules
15-20 under Section 2161.002 as the agency's or institution's own rules.
15-21 Those rules apply to the agency's construction projects and
15-22 purchases of goods and services paid for with appropriated money
15-23 without regard to whether a project or purchase is otherwise
15-24 subject to this subtitle.
15-25 Sec. 2161.004. APPLICABILITY; INTENT. (a) This chapter and
15-26 rules adopted by the commission under this chapter apply to state
16-1 agency construction projects and purchases of goods and services
16-2 that are paid for with appropriated money and made under the
16-3 authority of this subtitle or other law.
16-4 (b) The legislature intends that all qualified businesses
16-5 have access to compete for business from the state.
16-6 (c) Section 2161.003 and Subsections (a) and (b) of this
16-7 section do not apply to a project or contract subject to Section
16-8 201.702, Transportation Code.
16-9 Sec. 2161.005. TRANSFER OF FUNDS FOR PURCHASING. If the
16-10 state auditor reports to the commission under Section 2161.123(d)
16-11 that a state agency is not complying with Section 2161.123, the
16-12 commission shall report that fact to the Legislative Budget Board.
16-13 If the Legislative Budget Board determines that, one year after the
16-14 date of the state auditor's report to the commission, the agency is
16-15 still not complying with Section 2161.123, the budget board may,
16-16 under Section 69, Article XVI, Texas Constitution, direct the
16-17 emergency transfer of the agency's appropriated funds for making
16-18 purchases under purchasing authority delegated under Section
16-19 2155.131 or 2155.133 to the appropriate state agency. The amount
16-20 transferred from the agency's funds to the appropriate agency shall
16-21 be an amount determined by the Legislative Budget Board.
16-22 SECTION 1.24. Section 2161.122, Government Code, is amended
16-23 by adding a new Subsection (c) and redesignating Subsections (c)
16-24 and (d) as Subsections (d) and (e) to read as follows:
16-25 (c) Each state agency shall report to the commission in
16-26 accordance with Section 2161.125 the following information with
17-1 regard to the expenditure of both treasury and nontreasury funds:
17-2 (1) the total dollar amount of purchases and payments
17-3 made under contracts awarded to historically underutilized
17-4 businesses;
17-5 (2) the number of businesses participating in any
17-6 issuance of state bonds by the agency;
17-7 (3) the number of contracts awarded to businesses with
17-8 regard to the agency's acquisition, construction, or equipping of a
17-9 facility or implementation of a program; and
17-10 (4) the number of bids, proposals, or other applicable
17-11 expressions of interest made by historically underutilized
17-12 businesses with regard to the agency's acquisition, construction,
17-13 or equipping of a facility or implementation of a program.
17-14 (d) A state agency participating in a group purchasing
17-15 program [described under Section 2155.139(b)] shall send to the
17-16 commission in the agency's report under Section 2161.121 a separate
17-17 list of purchases from historically underutilized businesses that
17-18 are made through the group purchasing program, including the dollar
17-19 amount of each purchase allocated to the reporting agency.
17-20 (e) [(d)] A state agency's report is a record of the
17-21 agency's purchases for which the agency selected the vendor. If
17-22 the vendor was selected by the commission as part of its state
17-23 contract program, the commission shall include the purchase in the
17-24 commission's report of its own purchases unless the commission made
17-25 a sole source purchase for the agency under Section 2155.067. The
17-26 state agency for which the purchase was made shall report the
18-1 selection of the vendor on its report as if the agency selected the
18-2 vendor when the agency drew specifications for goods or services
18-3 that are proprietary to one vendor.
18-4 SECTION 1.25. Section 2161.123, Government Code, is amended
18-5 by adding Subsections (d), (e), and (f) to read as follows:
18-6 (d) The commission and the state auditor shall cooperate to
18-7 develop procedures to periodically monitor state agency compliance
18-8 with this section. The state auditor shall report to the
18-9 commission a state agency that is not complying with this section.
18-10 In determining whether a state agency is making a good faith effort
18-11 to comply, the state auditor shall consider whether the agency:
18-12 (1) has adopted rules under Section 2161.003;
18-13 (2) has used the commission's directory under Section
18-14 2161.064 and other resources to identify historically underutilized
18-15 businesses that are able and available to contract with the agency;
18-16 (3) made good faith, timely efforts to contact
18-17 identified historically underutilized businesses regarding
18-18 contracting opportunities; and
18-19 (4) conducted its procurement program in accordance
18-20 with the good faith effort methodology set out in commission rules.
18-21 (e) In conducting an audit of an agency's compliance with
18-22 this section or an agency's making of a good faith effort to
18-23 implement the plan adopted under this section, the state auditor
18-24 shall not consider the success or failure of the agency to contract
18-25 with historically underutilized businesses in any specific
18-26 quantity. The state auditor's review shall be restricted to the
19-1 agency's procedural compliance with Subsection (d).
19-2 (f) If the state auditor reports to the commission that a
19-3 state agency is not complying with this section, the commission
19-4 shall assist the agency in complying.
19-5 SECTION 1.26. Section 2161.181, Government Code, is amended
19-6 to read as follows:
19-7 Sec. 2161.181. GOALS FOR PURCHASES OF GOODS AND SERVICES. A
19-8 state agency, including the commission, shall make a good faith
19-9 effort to increase the [assist historically underutilized
19-10 businesses to receive not less than 30 percent of the total value
19-11 of all] contract awards for the purchase of goods or services that
19-12 the agency expects to make during a fiscal year to historically
19-13 underutilized businesses based on rules adopted by the commission
19-14 to implement the disparity study described by Section 2161.002(c).
19-15 SECTION 1.27. Subsection (a), Section 2161.182, Government
19-16 Code, is amended to read as follows:
19-17 (a) A state agency that contracts for a construction
19-18 project, including a project under Section 2166.003, shall make a
19-19 good faith effort to increase the construction contract awards
19-20 [assist historically underutilized businesses to receive not less
19-21 than 30 percent of the total value of each construction contract
19-22 award] that the agency expects to make during a fiscal year to
19-23 historically underutilized businesses based on rules adopted by the
19-24 commission to implement the disparity study described by Section
19-25 2161.002(c).
19-26 SECTION 1.28. Subsection (c), Section 2165.104, Government
20-1 Code, is amended to read as follows:
20-2 (c) To the extent possible without sacrificing critical
20-3 public or client services, the commission may not allocate usable
20-4 office space, as defined by the commission, to a state agency under
20-5 Article I, [or] II, V, VI, VII, or VIII of the General
20-6 Appropriations Act or to the Texas Higher Education Coordinating
20-7 Board, the Texas Education Agency, the State Board for Educator
20-8 Certification, the Telecommunications Infrastructure Fund Board, or
20-9 the Office of Court Administration of the Texas Judicial System in
20-10 an amount that exceeds an average of 153 square feet per agency
20-11 employee for each agency site. To the extent that any of those
20-12 agencies allocates its own usable office space, as defined by the
20-13 commission, the agency shall allocate the space to achieve the
20-14 required ratio. This subsection does not apply to:
20-15 (1) an agency site at which fewer than 16 employees
20-16 are located;
20-17 (2) warehouse space;
20-18 (3) laboratory space;
20-19 (4) storage space exceeding 1,000 gross square feet;
20-20 (5) library space;
20-21 (6) space for hearing rooms used to conduct hearings
20-22 required under the administrative procedure law, Chapter 2001; or
20-23 (7) another type of space specified by commission
20-24 rule, if the commission determines that it is not practical to
20-25 apply this subsection to that space.
20-26 SECTION 1.29. Subchapter A, Chapter 2170, Government Code,
21-1 is amended by adding Sections 2170.009 and 2170.010 to read as
21-2 follows:
21-3 Sec. 2170.009. PAY TELEPHONES AUTHORIZED. (a) A pay
21-4 telephone may be located in the capitol complex only with the
21-5 approval of the commission. The commission shall collect the
21-6 revenue from the installation and operation of the pay telephone
21-7 and deposit it to the credit of the general revenue fund.
21-8 (b) In a state-owned or state-leased building or on
21-9 state-owned land to which Subsection (a) does not apply, a pay
21-10 telephone may be installed only with the approval of the governing
21-11 body of the state entity that has charge and control of the
21-12 building or land. The entity shall collect the revenue from the
21-13 installation and operation of the pay telephone and deposit it to
21-14 the credit of the general revenue fund unless the disposition of
21-15 the revenue is governed by other law.
21-16 (c) The commission or other state entity shall account for
21-17 the revenue collected under this section in the entity's annual
21-18 report.
21-19 Sec. 2170.010. UNLISTED TELEPHONE NUMBERS PROHIBITED. A
21-20 state agency and its officers and employees may not buy, rent, or
21-21 pay toll charges for a telephone for which the telephone number is
21-22 not listed or available from directory assistance to the general
21-23 public unless the unlisted telephone number is used:
21-24 (1) to provide access to computers, telephone system
21-25 control centers, long-distance networks, elevator control systems,
21-26 and other tone-controlled devices for which restricted access to
22-1 the telephone number is justified for security or other purposes;
22-2 (2) in narcotics undercover operations;
22-3 (3) in the detection of illegal sales of securities;
22-4 or
22-5 (4) in the investigation of motor fuels tax fraud.
22-6 SECTION 1.30. Section 2170.051, Government Code, is amended
22-7 to read as follows:
22-8 Sec. 2170.051. MANAGEMENT AND USE OF SYSTEM. (a) The
22-9 commission shall manage the operation of a system of
22-10 telecommunications services for all state agencies. Each agency
22-11 shall identify its particular requirements for telecommunications
22-12 services and the site at which the services are to be provided.
22-13 (b) The commission shall fulfill the telecommunications
22-14 requirements of each state agency to the extent possible and to the
22-15 extent that money is appropriated or available for that purpose.
22-16 (c) A state agency shall use the consolidated
22-17 telecommunications system to the fullest extent possible. A state
22-18 agency may not acquire telecommunications services unless the
22-19 telecommunications planning group determines that the agency's
22-20 requirement for telecommunications services cannot be met at a
22-21 comparable cost by the consolidated telecommunications system.
22-22 (d) A state agency may not enter into or renew a contract
22-23 with a carrier or other provider of telecommunications services
22-24 without obtaining a waiver from the telecommunications planning
22-25 group certifying that the requested telecommunications services
22-26 cannot be provided at a comparable cost on the consolidated
23-1 telecommunications system. The telecommunications planning group
23-2 shall evaluate requests for waivers based on cost-effectiveness to
23-3 the state government as a whole. A waiver may be granted only for
23-4 a specific period and will automatically expire on the stated
23-5 expiration date unless an extension is approved by the
23-6 telecommunications planning group. A contract for
23-7 telecommunications services obtained under waiver may not extend
23-8 beyond the expiration date of the waiver. If the
23-9 telecommunications planning group becomes aware of any state agency
23-10 receiving telecommunications services without a waiver, the
23-11 telecommunications planning group shall notify the agency and the
23-12 comptroller. The state agency shall have 60 days after
23-13 notification by the telecommunications planning group in which to
23-14 submit a waiver request to the telecommunications planning group
23-15 documenting the agency's reasoning for bypassing the consolidated
23-16 telecommunications system and otherwise providing all information
23-17 required by the waiver application form.
23-18 SECTION 1.31. Subsection (b), Section 2170.057, Government
23-19 Code, is amended to read as follows:
23-20 (b) The comptroller shall establish in the state treasury a
23-21 revolving fund account for the administration of this chapter. The
23-22 account shall be used as a depository for money received from
23-23 entities served. Receipts attributable to the centralized capitol
23-24 complex telephone system shall be deposited into the account but
23-25 separately identified within the account.
23-26 SECTION 1.32. Section 2201.002, Government Code, is amended
24-1 by adding Subsection (c) to read as follows:
24-2 (c) The fund may not be used to pay salaries.
24-3 SECTION 1.33. Chapter 2203, Government Code, is amended by
24-4 adding Sections 2203.004 and 2203.005 to read as follows:
24-5 Sec. 2203.004. REQUIREMENT TO USE STATE PROPERTY FOR STATE
24-6 PURPOSES. State property may be used only for state purposes. A
24-7 person may not entrust state property to a state officer or
24-8 employee or to any other person if the property is not to be used
24-9 for state purposes.
24-10 Sec. 2203.005. VENDING MACHINES AUTHORIZED. (a) In a
24-11 state-owned or state-leased building or on state-owned or
24-12 state-leased property that is not served by a vendor operating
24-13 under the supervision of the Texas Commission for the Blind, a
24-14 vending machine may be located in the building or on the property
24-15 only with the approval of the governing body of the state agency
24-16 that has charge and control of the building or property. The
24-17 approval must be recorded in the minutes of a meeting of the
24-18 governing body.
24-19 (b) The state agency shall file with the General Services
24-20 Commission a copy of all contracts between the state agency and the
24-21 vendor related to the vending machine and a written description of
24-22 the location of the vending machine.
24-23 (c) All rentals, commissions, or other net revenue the state
24-24 agency receives in connection with the vending machine shall be
24-25 accounted for as state money and deposited to the credit of the
24-26 general revenue fund unless the disposition of the revenue is
25-1 governed by other law. The state agency shall account for the
25-2 revenue received under this section in the agency's annual report.
25-3 (d) In a state-owned or state-leased building or on
25-4 state-owned or state-leased property that is served by a vendor
25-5 operating under the supervision of the Texas Commission for the
25-6 Blind, a vending machine may be located and operated in the
25-7 building or on the property only under a joint contract with the
25-8 owners of the vending machine and the vendor operating under the
25-9 supervision of the Texas Commission for the Blind.
25-10 SECTION 1.34. Subchapter A, Chapter 2204, Government Code,
25-11 is amended by adding Sections 2204.002 and 2204.003 to read as
25-12 follows:
25-13 Sec. 2204.002. RESTRICTION ON ACQUISITION OF REAL PROPERTY.
25-14 A state agency, as defined by Section 658.001, may not accept a
25-15 gift or devise of real property or spend appropriated money to
25-16 purchase real property without statutory authority or other
25-17 legislative authorization.
25-18 Sec. 2204.003. GIFTS OF REAL PROPERTY TO INSTITUTIONS OF
25-19 HIGHER EDUCATION. An institution of higher education, as defined
25-20 by Section 61.003, Education Code, may accept a gift or devise of
25-21 real property from a private entity to establish scholarships or
25-22 professorships or to be held in trust for other educational
25-23 purposes only if done consistently with rules and regulations
25-24 adopted by the Texas Higher Education Coordinating Board pursuant
25-25 to its power to adopt such rules and regulations under Chapter 61,
25-26 Education Code.
26-1 SECTION 1.35. Section 2251.030, Government Code, is amended
26-2 to read as follows:
26-3 Sec. 2251.030. PROMPT OR EARLY PAYMENT DISCOUNT. (a) The
26-4 intent of the legislature is that a governmental entity should take
26-5 advantage of an offer for an early payment discount. A state
26-6 agency shall when possible negotiate a prompt payment discount with
26-7 a vendor.
26-8 (b) A governmental entity may not take an early payment
26-9 discount a vendor offers unless the governmental entity makes a
26-10 full payment within the discount period.
26-11 (c) If a governmental entity takes an early payment discount
26-12 later, the unpaid balance accrues interest beginning on the date
26-13 the discount offer expires.
26-14 (d) A state agency, when paying for goods and services
26-15 purchased under an agreement that includes a prompt or early
26-16 payment discount, shall submit the necessary payment documents or
26-17 information to the comptroller sufficiently in advance of the
26-18 prompt or early payment deadline to allow the comptroller or the
26-19 agency to pay the vendor in time to obtain the discount.
26-20 SECTION 1.36. Section 2252.901, Government Code, is amended
26-21 to read as follows:
26-22 Sec. 2252.901. CONTRACTS WITH FORMER OR RETIRED AGENCY
26-23 EMPLOYEES. (a) A state agency may not enter into an employment
26-24 contract, a professional services contract under Chapter 2254, or a
26-25 consulting services contract under Chapter 2254 with a former or
26-26 retired employee of the agency before the first anniversary of the
27-1 last date on which the individual was employed by the agency, if
27-2 appropriated money will be used to make payments under the
27-3 contract. This section does not prohibit an agency from entering
27-4 into a professional services contract with a corporation, firm, or
27-5 other business entity that employs a former or retired employee of
27-6 the agency within one year of the employee's leaving the agency,
27-7 provided that the former or retired employee does not perform
27-8 services on projects for the corporation, firm, or other business
27-9 entity that the employee worked on while employed by the agency.
27-10 (b) A state agency that contracts at any time with a retired
27-11 agency employee to perform services substantially similar to the
27-12 services the retiree performed for the agency during the last 12
27-13 months of service before retirement may not make payments under the
27-14 contract from any source of revenue at an annualized rate that
27-15 exceeds the lesser of:
27-16 (1) the rate of compensation the retiree received from
27-17 the state during the last 12 months of service before retirement;
27-18 or
27-19 (2) $60,000.
27-20 (c) [(b)] The contract payment limitation provided by
27-21 Subsection (b) [(a)] does not apply during the first six months a
27-22 retiree performs services under a contract after retirement, except
27-23 that if a retiree performs services under the contract for more
27-24 than six months, the limitation applies to the entire term of the
27-25 contract.
27-26 (d) [(c)] In this section:
28-1 (1) "Employment contract" includes a personal services
28-2 contract regardless of whether the performance of the contract
28-3 involves the traditional relationship of employer and employee.
28-4 The term does not apply to an at-will employment relationship that
28-5 involves the traditional relationship of employer and employee.
28-6 (2) "Retired agency employee" means a person:
28-7 (A) whose last state service before retirement
28-8 was for the state agency with which the retiree contracts to
28-9 perform services; and
28-10 (B) who is a retiree of:
28-11 (i) the employee class of membership of
28-12 the Employees Retirement System of Texas; or
28-13 (ii) the Teacher Retirement System of
28-14 Texas, the majority of whose service was credited in that system in
28-15 a position with a state agency.
28-16 (3) [(2)] "State agency" includes a "public senior
28-17 college or university," as that term is defined by Section 61.003,
28-18 Education Code.
28-19 SECTION 1.37. Subchapter A, Chapter 2254, Government Code,
28-20 is amended by adding Section 2254.0031 to read as follows:
28-21 Sec. 2254.0031. INDEMNIFICATION. A state governmental
28-22 entity may require a contractor selected under this subchapter to
28-23 indemnify or hold harmless the state from claims and liabilities
28-24 resulting from the negligent acts or omissions of the contractor or
28-25 persons employed by the contractor. A state governmental entity
28-26 may not require a contractor to indemnify or hold harmless the
29-1 state for claims or liabilities resulting from the negligent acts
29-2 or omissions of the state governmental entity or its employees.
29-3 SECTION 1.38. Subchapter B, Chapter 205, Labor Code, is
29-4 amended by adding Section 205.019 to read as follows:
29-5 Sec. 205.019. REIMBURSEMENT FROM NON-TREASURY FUNDS. (a) A
29-6 branch, department, or other instrumentality of this state that
29-7 reimburses the commission with funds that are held outside the
29-8 state treasury shall reimburse the commission by writing a check to
29-9 the commission for deposit into the appropriate unemployment
29-10 compensation account. A deposit under this section shall be made
29-11 not later than the 30th day after the date the instrumentality
29-12 receives the commission's statement of amounts due.
29-13 (b) The commission shall send a copy of each statement of
29-14 amounts due from a branch, department, or other instrumentality of
29-15 this state that reimburses the commission with funds that are held
29-16 outside the state treasury to the comptroller and the state
29-17 auditor.
29-18 (c) A branch, department, or other instrumentality affected
29-19 by this section may allocate appropriate funds to a revolving
29-20 account on its books to receive contributions from funds other than
29-21 general revenue funds, based on an assessment it determines to be
29-22 appropriate for the purpose of reimbursing the appropriate
29-23 unemployment compensation account for benefits paid.
29-24 (d) The state auditor shall review affected entities for
29-25 compliance with this section.
29-26 SECTION 1.39. The chapter heading to Chapter 506, Labor
30-1 Code, is amended to read as follows:
30-2 CHAPTER 506. MISCELLANEOUS PROVISIONS APPLICABLE TO GOVERNMENT
30-3 EMPLOYEES [PAYMENT OF CERTAIN JUDGMENTS]
30-4 SECTION 1.40. Chapter 506, Labor Code, is amended by adding
30-5 Section 506.002 to read as follows:
30-6 Sec. 506.002. REIMBURSEMENT FROM NON-TREASURY FUNDS.
30-7 (a) An agency or other instrumentality of state government that,
30-8 with funds that are held outside the state treasury, reimburses the
30-9 general revenue fund for workers' compensation payments made out of
30-10 the general revenue fund to former or current employees of the
30-11 agency or other instrumentality shall reimburse the general revenue
30-12 fund by writing a check to the comptroller:
30-13 (1) for deposit into the appropriate account in the
30-14 general revenue fund; and
30-15 (2) not later than 30 days after receiving the
30-16 statement of amounts due.
30-17 (b) The workers' compensation division of the office of the
30-18 attorney general shall send to the comptroller and the state
30-19 auditor a copy of each statement of amounts due from an agency or
30-20 other instrumentality of state government that, with funds that are
30-21 held outside the state treasury, reimburses the general revenue
30-22 fund for workers' compensation payments made out of the general
30-23 revenue fund.
30-24 (c) An agency or other instrumentality of state government
30-25 affected by this section may allocate appropriate funds to a
30-26 revolving account on its books to receive contributions from funds
31-1 other than general revenue funds, based on an assessment it
31-2 determines to be appropriate for the purpose of reimbursing the
31-3 general revenue fund for the workers' compensation payments made to
31-4 its current or former employees.
31-5 (d) The state auditor shall review affected entities for
31-6 compliance with this section.
31-7 SECTION 1.41. Subchapter D, Chapter 11, Natural Resources
31-8 Code, is amended by adding Section 11.0791 to read as follows:
31-9 Sec. 11.0791. OTHER PROVISIONS REGARDING ACCESS TO STATE
31-10 LANDS. When a state governmental entity sells state land, the
31-11 entity shall require that the state have the right of ingress and
31-12 egress to remaining state land in the immediate area by an easement
31-13 to a public thoroughfare.
31-14 SECTION 1.42. Subchapter D, Chapter 11, Natural Resources
31-15 Code, is amended by adding Section 11.083 to read as follows:
31-16 Sec. 11.083. RETENTION OF MINERAL RIGHTS. The state shall
31-17 retain the mineral rights to state land that is sold unless it is
31-18 impractical to do so.
31-19 SECTION 1.43. Section 31.401, Natural Resources Code, is
31-20 amended to read as follows:
31-21 Sec. 31.401. NATURAL GAS ACQUISITION CONTRACTS. (a) The
31-22 land office shall review and must approve any contract entered into
31-23 by a state agency for the acquisition of an annual average of 100
31-24 MCF per day or more of natural gas used to meet its [in the
31-25 production of] energy requirements.
31-26 (b) Before approving a contract described by Subsection (a)
32-1 of this section, the land office shall ensure that the agency, to
32-2 meet its energy requirements, is using, to the greatest extent
32-3 practical, natural gas produced from land leased from:
32-4 (1) the school land board;
32-5 (2) a board for lease other than the Board for Lease
32-6 of University Lands; or
32-7 (3) the surface owner of Relinquishment Act land.
32-8 (c) If the land office is able to substitute a contract
32-9 using in-kind royalty gas from state-owned lands or using other gas
32-10 for a contract under which a state agency acquires or proposes to
32-11 acquire its natural gas supplies, the commissioner shall inform the
32-12 comptroller each month of the amount of savings attributable to the
32-13 substitution.
32-14 (d) In this section, "state agency" has the meaning assigned
32-15 by Subchapter A, Chapter 572, Government Code.
32-16 SECTION 1.44. Subsection (d), Section 403.273, Government
32-17 Code, is repealed.
32-18 SECTION 1.45. Subsection (c), Section 2165.104, Government
32-19 Code, as amended by this Act, does not apply to the Texas Higher
32-20 Education Coordinating Board or the State Board for Educator
32-21 Certification until the expiration of all leases under which the
32-22 board occupies office space on the effective date of this Act.
32-23 SECTION 1.46. This Act does not affect the authority of an
32-24 institution of higher education to collect, account for, and
32-25 control local funds and institutional funds in the manner
32-26 authorized by Subchapter A, Chapter 51, Education Code.
33-1 SECTION 1.47. This section provides, for information
33-2 purposes only, a derivation table for the provisions of the General
33-3 Appropriations Act that are codified in general law by other
33-4 sections of this Act. The first column identifies the codified
33-5 law; all references are to the Government Code unless otherwise
33-6 noted. The second column identifies for each codified law the
33-7 applicable source provision in Article IX of the General
33-8 Appropriations Act for the fiscal biennium ending August 31, 1999
33-9 (Chapter 1452, Acts of the 75th Legislature, Regular Session,
33-10 1997).
33-11 Codified Law Source Provision
33-12 Sec. 101.027(a), Civil Practice Sec. 61
33-13 and Remedies Code
33-14 Sec. 106.001(c), Civil Practice Sec. 124.11
33-15 and Remedies Code
33-16 Sec. 306.007 Sec. 40.2
33-17 Sec. 321.013(c) Sec. 176, 124.8 (part)
33-18 Sec. 321.014(c) Sec. 91
33-19 Sec. 325.011(9)(b) Sec. 124.10
33-20 Sec. 403.097 Sec. 32.2
33-21 Sec. 403.245(b) Sec. 126
33-22 Sec. 771.008(d) Sec. 78
33-23 Sec. 811.001(7) Sec. 181, last sent.
33-24 Sec. 2001.039 Sec. 167
33-25 Sec. 2052.304 Sec. 40.3
33-26 Sec. 2054.003(6) Sec. 43.1.a
34-1 Sec. 2054.121 Sec. 43.5
34-2 Sec. 2054.122 Sec. 156
34-3 Sec. 2101.0377 Sec. 70
34-4 Sec. 2155.084 Sec. 135, 1st 2 par.
34-5 Sec. 2155.132(a) Sec. 90
34-6 Sec. 2155.268 Sec. 56
34-7 Sec. 2155.4441 Sec. 53
34-8 Sec. 2158.0031 Sec. 20.3, 1st sent.
34-9 Sec. 2161.001(2), (3) Sec. 124.3
34-10 Sec. 2161.002(c) Sec. 124.5
34-11 Sec. 2161.003 Sec. 124.2, 124.5
34-12 Sec. 2161.004 Sec. 124.1, 124.2
34-13 Sec. 2161.005 Sec. 124.9
34-14 Sec. 2161.122(c) Sec. 124.6, 124.7
34-15 Sec. 2161.123(d), (e) Sec. 124.8, 124.9
34-16 Sec. 2161.181 Sec. 124.5
34-17 Sec. 2161.182(a) Sec. 124.5
34-18 Sec. 2165.104(c) Sec. 154, except last
34-19 sent.
34-20 Sec. 2170.009 Sec. 111 (most)
34-21 Sec. 2170.010 Sec. 141
34-22 Secs. 2170.051(c), (d) Sec. 140
34-23 Sec. 2170.057(b) Sec. 139, 2nd par.
34-24 Sec. 2201.002(c) Sec. 150.2
34-25 Sec. 2203.004 Sec. 149
34-26 Sec. 2203.005 Sec. 110 (most)
35-1 Sec. 2204.002 Sec. 135, 3rd par., 1st
35-2 sent.
35-3 Sec. 2204.003 Sec. 135, 3rd par., 2nd
35-4 sent.
35-5 Sec. 2251.030 Sec. 79
35-6 Sec. 2252.901 Sec. 52
35-7 Sec. 2254.0031 Sec. 51
35-8 Sec. 205.019, Labor Code Sec. 80 (part)
35-9 Sec. 506.002, Labor Code Sec. 81 (part)
35-10 Sec. 11.0791, Natural Resources Code Sec. 148, 1st par.
35-11 Sec. 11.083, Natural Resources Code Sec. 147
35-12 Sec. 31.401, Natural Resources Code Sec. 144 (part)
35-13 ARTICLE 2. CERTAIN OTHER PROVISIONS RELATED TO STATE AGENCY
35-14 CONTRACTING WITH HISTORICALLY UNDERUTILIZED BUSINESSES
35-15 SECTION 2.01. Subsection (g), Section 2155.074, Government
35-16 Code, as added by Chapter 508, Acts of the 75th Legislature,
35-17 Regular Session, 1997, is amended to read as follows:
35-18 (g) A state agency shall post in the business daily either
35-19 the entire bid or proposal solicitation package or a notice that
35-20 includes all information necessary to make a successful bid,
35-21 proposal, or other applicable expression of interest for the
35-22 procurement contract, including at a minimum the following
35-23 information for each procurement that the state agency will make
35-24 that is estimated to exceed $25,000 in value:
35-25 (1) a brief description of the goods or services to be
35-26 procured and any applicable state product or service codes for the
36-1 goods and services;
36-2 (2) the last date on which bids, proposals, or other
36-3 applicable expressions of interest will be accepted;
36-4 (3) the estimated quantity of goods or services to be
36-5 procured;
36-6 (4) if applicable, the previous price paid by the
36-7 state agency for the same or similar goods or services;
36-8 (5) the estimated date on which the goods or services
36-9 to be procured will be needed; and
36-10 (6) the name, business mailing address, and business
36-11 telephone number of the state agency employee a person may contact
36-12 to inquire about [obtain] all necessary information related to
36-13 making a bid or proposal or other applicable expression of
36-14 interest for the procurement contract.
36-15 SECTION 2.02. Subchapter A, Chapter 2161, Government Code,
36-16 is amended by adding Section 2161.0015 to read as follows:
36-17 Sec. 2161.0015. DETERMINING SIZE STANDARDS FOR HISTORICALLY
36-18 UNDERUTILIZED BUSINESSES. The commission may establish size
36-19 standards that a business may not exceed if it is to be considered
36-20 a historically underutilized business under this chapter. In
36-21 determining the size standards, the commission shall determine the
36-22 size at which a business should be considered sufficiently large
36-23 that the business probably does not significantly suffer from the
36-24 effects of past discriminatory practices.
36-25 SECTION 2.03. Subsections (b) and (c), Section 2161.061,
36-26 Government Code, are amended to read as follows:
37-1 (b) As one [part] of its certification procedures, the
37-2 commission may:
37-3 (1) approve the [another] certification program of one
37-4 or more local governments in this state that certify [certifies]
37-5 historically underutilized businesses, minority business
37-6 enterprises, women's business enterprises, or disadvantaged
37-7 business enterprises under substantially the same definition, to
37-8 the extent applicable, used by Section 2161.001; and
37-9 (2) certify a business certified under the local
37-10 government program as a historically underutilized business under
37-11 this chapter.
37-12 (c) To maximize the number of certified historically
37-13 underutilized businesses, the commission shall enter into
37-14 agreements with local governments in this state that conduct
37-15 certification programs described by Subsection (b). The agreements
37-16 must take effect immediately and:
37-17 (1) allow for automatic certification of businesses
37-18 certified under the local government program;
37-19 (2) provide for the efficient updating of the
37-20 commission database containing information about historically
37-21 underutilized businesses and potential historically underutilized
37-22 businesses; and
37-23 (3) provide for a method by which the commission may
37-24 efficiently communicate with businesses certified under the local
37-25 government program and provide those businesses with information
37-26 about the state historically underutilized business program. [A
38-1 municipality, in certifying historically underutilized businesses,
38-2 may adopt the certification program of the commission, of the
38-3 federal Small Business Administration, or of another political
38-4 subdivision or other governmental entity.]
38-5 SECTION 2.04. Section 2161.062, Government Code, is amended
38-6 by adding Subsections (d) and (e) to read as follows:
38-7 (d) The commission shall send historically underutilized
38-8 businesses an orientation package on certification or
38-9 recertification. The package shall include:
38-10 (1) a certificate issued in the historically
38-11 underutilized business's name;
38-12 (2) a description of the significance and value of
38-13 certification;
38-14 (3) a list of state purchasing personnel;
38-15 (4) information regarding electronic commerce
38-16 opportunities;
38-17 (5) information regarding the Texas Marketplace
38-18 website; and
38-19 (6) additional information about the state procurement
38-20 process.
38-21 (e) A state agency with a biennial budget that exceeds $10
38-22 million shall designate a staff member to serve as the historically
38-23 underutilized businesses coordinator for the agency during the
38-24 fiscal year. The procurement director may serve as the
38-25 coordinator. In agencies that employ a historically underutilized
38-26 businesses coordinator, the position of coordinator, within the
39-1 agency's structure, must be at least equal to the position of
39-2 procurement director. In addition to any other responsibilities,
39-3 the coordinator shall:
39-4 (1) coordinate training programs for the recruitment
39-5 and retention of historically underutilized businesses;
39-6 (2) report required information to the commission; and
39-7 (3) match historically underutilized businesses with
39-8 key staff within the agency.
39-9 SECTION 2.05. Subsection (b), Section 2161.063, Government
39-10 Code, is amended to read as follows:
39-11 (b) The commission shall assist the Texas Department of
39-12 Economic Development [Commerce] in performing the department's
39-13 duties under Section 481.0068 [481.103].
39-14 SECTION 2.06. Subsection (b), Section 2161.064, Government
39-15 Code, is amended to read as follows:
39-16 (b) The commission at least semiannually shall update the
39-17 directory and provide access to the directory electronically or in
39-18 another form [a copy of the directory] to each state agency.
39-19 SECTION 2.07. Subsections (a) and (e), Section 2161.121,
39-20 Government Code, are amended to read as follows:
39-21 (a) The commission shall prepare a consolidated report that:
39-22 (1) includes the number and dollar amount of contracts
39-23 awarded and paid to historically underutilized businesses certified
39-24 by the commission; [and]
39-25 (2) analyzes the relative level of opportunity for
39-26 historically underutilized businesses for various categories of
40-1 acquired goods and services; and
40-2 (3) tracks, by vendor identification number and, to
40-3 the extent allowed by federal law, by social security number, the
40-4 graduation rates for historically underutilized businesses that
40-5 grew to exceed the size standards determined by the commission.
40-6 (e) The commission shall send on October 15 of each year a
40-7 report on the preceding fiscal year to the presiding officer of
40-8 each house of the legislature[, the members of the legislature,]
40-9 and the joint committee.
40-10 SECTION 2.08. Subchapter B, Chapter 2161, Government Code,
40-11 is amended by adding Sections 2161.065 and 2161.066 to read as
40-12 follows:
40-13 Sec. 2161.065. MENTOR-PROTEGE PROGRAM. (a) The commission
40-14 shall design a mentor-protege program to foster long-term
40-15 relationships between prime contractors and historically
40-16 underutilized businesses and to increase the ability of
40-17 historically underutilized businesses to contract with the state or
40-18 to receive subcontracts under a state contract. Each state agency
40-19 with a biennial appropriation that exceeds $10 million shall
40-20 implement the program designed by the commission.
40-21 (b) Participation in the program must be voluntary for both
40-22 the contractor and the historically underutilized business
40-23 subcontractor.
40-24 Sec. 2161.066. HISTORICALLY UNDERUTILIZED BUSINESS FORUMS.
40-25 (a) The commission shall design a program of forums in which
40-26 historically underutilized businesses are invited by state agencies
41-1 to deliver technical and business presentations that demonstrate
41-2 their capability to do business with the agency:
41-3 (1) to senior managers and procurement personnel at
41-4 state agencies that acquire goods and services of a type supplied
41-5 by the historically underutilized businesses; and
41-6 (2) to contractors with the state who may be
41-7 subcontracting for goods and services of a type supplied by the
41-8 historically underutilized businesses.
41-9 (b) The forums shall be held at state agency offices.
41-10 (c) Each state agency with a biennial appropriation that
41-11 exceeds $10 million shall participate in the program by sending
41-12 senior managers and procurement personnel to attend relevant
41-13 presentations and by informing the agency's contractors about
41-14 presentations that may be relevant to anticipated subcontracting
41-15 opportunities.
41-16 (d) Each state agency that has a historically underutilized
41-17 businesses coordinator shall:
41-18 (1) design its own program and model the program to
41-19 the extent appropriate on the program developed by the commission
41-20 under this section; and
41-21 (2) sponsor presentations by historically
41-22 underutilized businesses at the agency.
41-23 (e) The commission and each state agency that has a
41-24 historically underutilized businesses coordinator shall
41-25 aggressively identify and notify individual historically
41-26 underutilized businesses regarding opportunities to make a
42-1 presentation regarding the types of goods and services supplied by
42-2 the historically underutilized business and shall advertise in
42-3 appropriate trade publications that target historically
42-4 underutilized businesses regarding opportunities to make a
42-5 presentation.
42-6 SECTION 2.09. Subchapter C, Chapter 2161, Government Code,
42-7 is amended by adding Sections 2161.126 and 2161.127 to read as
42-8 follows:
42-9 Sec. 2161.126. EDUCATION AND OUTREACH BY COMMISSION. Before
42-10 September 1 of each year, the commission shall report to the
42-11 governor, the lieutenant governor, and the speaker of the house of
42-12 representatives on the education and training efforts that the
42-13 commission has made toward historically underutilized businesses.
42-14 The report must include the following as related to historically
42-15 underutilized businesses:
42-16 (1) the commission's vision, mission, and philosophy;
42-17 (2) marketing materials and other educational
42-18 materials distributed by the commission;
42-19 (3) the commission's policy regarding education,
42-20 outreach, and dissemination of information;
42-21 (4) goals that the commission has attained during the
42-22 fiscal year;
42-23 (5) the commission's goals, objectives, and expected
42-24 outcome measures for each outreach and education event; and
42-25 (6) the commission's planned future initiatives on
42-26 education and outreach.
43-1 Sec. 2161.127. LEGISLATIVE APPROPRIATIONS REQUESTS. Each
43-2 state agency must include as part of its legislative appropriations
43-3 request a detailed report for consideration by the budget
43-4 committees of the legislature that shows the extent to which the
43-5 agency complied with this chapter and rules of the commission
43-6 adopted under this chapter during the two calendar years preceding
43-7 the calendar year in which the request is submitted. To the extent
43-8 the state agency did not comply, the report must demonstrate the
43-9 reasons for that fact. The extent to which a state agency complies
43-10 with this chapter and rules of the commission adopted under this
43-11 chapter is considered a performance measure for purposes of the
43-12 appropriations process.
43-13 SECTION 2.10. Chapter 2161, Government Code, is amended by
43-14 adding Subchapter F to read as follows:
43-15 SUBCHAPTER F. SUBCONTRACTING
43-16 Sec. 2161.251. APPLICABILITY. (a) This subchapter applies
43-17 to all contracts entered into by a state agency with an expected
43-18 value of $100,000 or more, including:
43-19 (1) contracts for the acquisition of a good or
43-20 service; and
43-21 (2) contracts for or related to the construction of a
43-22 public building, road, or other public work.
43-23 (b) This subchapter applies to the contract without regard
43-24 to:
43-25 (1) whether the contract is otherwise subject to this
43-26 subtitle; or
44-1 (2) the source of funds for the contract, except that
44-2 to the extent federal funds are used to pay for the contract, this
44-3 subchapter does not apply if federal law prohibits the application
44-4 of this subchapter in relation to the expenditure of federal funds.
44-5 Sec. 2161.252. AGENCY DETERMINATION REGARDING SUBCONTRACTING
44-6 OPPORTUNITIES; BUSINESS SUBCONTRACTING PLAN. (a) Each state
44-7 agency that considers entering into a contract with an expected
44-8 value of $100,000 or more shall, before the agency solicits bids,
44-9 proposals, offers, or other applicable expressions of interest for
44-10 the contract, determine whether there will be subcontracting
44-11 opportunities under the contract. If the state agency determines
44-12 that there is that probability, the agency shall require that each
44-13 bid, proposal, offer, or other applicable expression of interest
44-14 for the contract include a historically underutilized business
44-15 subcontracting plan.
44-16 (b) When a state agency requires a historically
44-17 underutilized business subcontracting plan under Subsection (a), a
44-18 bid, proposal, offer, or other applicable expression of interest
44-19 for the contract must contain a plan to be considered responsive.
44-20 Sec. 2161.253. GOOD FAITH COMPLIANCE WITH BUSINESS
44-21 SUBCONTRACTING PLAN. (a) When a state agency requires a
44-22 historically underutilized business subcontracting plan under
44-23 Section 2161.252, the awarded contract shall contain, as a
44-24 provision of the contract that must be fulfilled, the plan that the
44-25 contractor submitted in its bid, proposal, offer, or other
44-26 applicable expression of interest for the contract. The contractor
45-1 shall make good faith efforts to implement the plan.
45-2 (b) To the extent that subcontracts are not contracted for
45-3 as originally submitted in the historically underutilized business
45-4 subcontracting plan, the contractor shall report to the state
45-5 agency all the circumstances that explain that fact and describe
45-6 the good faith efforts made to find and subcontract with another
45-7 historically underutilized business.
45-8 (c) The state agency shall audit the contractor's compliance
45-9 with the historically underutilized business subcontracting plan.
45-10 In determining whether the contractor made the required good faith
45-11 effort, the agency may not consider the success or failure of the
45-12 contractor to subcontract with historically underutilized
45-13 businesses in any specific quantity. The agency's determination is
45-14 restricted to considering factors indicating good faith.
45-15 (d) If a determination is made that the contractor failed to
45-16 implement the plan in good faith, the agency, in addition to any
45-17 other remedies, may bar the contractor from further contracting
45-18 opportunities with the agency.
45-19 (e) The commission shall adopt rules to administer this
45-20 subchapter.
45-21 SECTION 2.11. Subchapter F, Chapter 2161, Government Code,
45-22 as added by this Act, applies only to subcontracting under a
45-23 contract entered into by a state agency for which the request for
45-24 bids, proposals, offers, or other applicable expressions of
45-25 interest is disseminated on or after April 1, 2000.
46-1 ARTICLE 3. PROVISIONS RELATING TO STATE AGENCY
46-2 CONTINGENCY FEE CONTRACTS FOR LEGAL SERVICES
46-3 SECTION 3.01. (a) The legislature finds that:
46-4 (1) a payment to a private attorney or law firm under
46-5 a contingent fee contract for legal services entered into by a
46-6 state governmental entity constitutes compensation paid to a public
46-7 contractor for which the legislature must provide by law under
46-8 Section 44, Article III, Texas Constitution; and
46-9 (2) funds recovered by a state governmental entity in
46-10 litigation or in settlement of a matter that could have resulted in
46-11 litigation are state funds that must be deposited in the state
46-12 treasury and made subject to the appropriations process.
46-13 (b) It is the policy of this state that all funds recovered
46-14 by a state governmental entity from an opposing party in litigation
46-15 or in settlement of a matter that could have resulted in
46-16 litigation, including funds designated as damages, amounts adjudged
46-17 or awarded, attorney's fees, costs, interest, settlement proceeds,
46-18 or expenses, are the property of the state governmental entity that
46-19 must be deposited in the manner that public funds of the entity
46-20 must be deposited. Legal fees and expenses may be paid from the
46-21 recovered funds under a contingent fee contract for legal services
46-22 only after the funds have been appropriately deposited and only in
46-23 accordance with applicable law.
46-24 SECTION 3.02. Subchapter F, Chapter 404, Government Code, is
46-25 amended by adding Section 404.097 to read as follows:
46-26 Sec. 404.097. DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR
47-1 SETTLEMENT. (a) Notwithstanding Section 404.093, this section
47-2 applies by its terms to each state governmental entity.
47-3 (b) In this section, "contingent fee contract" and "state
47-4 governmental entity" have the meanings assigned by Section
47-5 2254.101.
47-6 (c) All funds recovered by a state governmental entity in
47-7 litigation or in settlement of a matter that could have resulted in
47-8 litigation, including funds designated as damages, amounts adjudged
47-9 or awarded, attorney's fees, costs, interest, settlement proceeds,
47-10 or expenses, are public funds of the state or the state
47-11 governmental entity and shall be deposited in the state treasury to
47-12 the credit of the appropriate fund or account.
47-13 (d) Legal fees and expenses may be paid from the recovered
47-14 funds under a contingent fee contract for legal services only:
47-15 (1) after the funds are deposited in accordance with
47-16 this section; and
47-17 (2) in accordance with Subchapter C, Chapter 2254.
47-18 SECTION 3.03. Chapter 2254, Government Code, is amended by
47-19 adding Subchapter C to read as follows:
47-20 SUBCHAPTER C. CONTINGENT FEE CONTRACT FOR LEGAL SERVICES
47-21 Sec. 2254.101. DEFINITIONS. In this subchapter:
47-22 (1) "Contingent fee" means that part of a fee for
47-23 legal services, under a contingent fee contract, the amount or
47-24 payment of which is contingent on the outcome of the matter for
47-25 which the services were obtained.
47-26 (2) "Contingent fee contract" means a contract for
48-1 legal services under which the amount or the payment of the fee for
48-2 the services is contingent in whole or in part on the outcome of
48-3 the matter for which the services were obtained.
48-4 (3) "State governmental entity":
48-5 (A) means the state or a board, commission,
48-6 department, office, or other agency in the executive branch of
48-7 state government created under the constitution or a statute of the
48-8 state, including an institution of higher education as defined by
48-9 Section 61.003, Education Code;
48-10 (B) includes the state when a state officer is
48-11 bringing a parens patriae proceeding in the name of the state; and
48-12 (C) does not include a state agency or state
48-13 officer acting as a receiver, special deputy receiver, liquidator,
48-14 or liquidating agent in connection with the administration of the
48-15 assets of an insolvent entity under Article 21.28, Insurance Code,
48-16 or Chapter 36, 66, 96, or 126, Finance Code.
48-17 Sec. 2254.102. APPLICABILITY. (a) This subchapter applies
48-18 only to a contingent fee contract for legal services entered into
48-19 by a state governmental entity.
48-20 (b) The legislature by this subchapter is providing, in
48-21 accordance with Section 44, Article III, Texas Constitution, for
48-22 the manner in which and the situations under which a state
48-23 governmental entity may compensate a public contractor under a
48-24 contingent fee contract for legal services.
48-25 Sec. 2254.103. CONTRACT APPROVAL; SIGNATURE. (a) A state
48-26 governmental entity that has authority to enter into a contract for
49-1 legal services in its own name may enter into a contingent fee
49-2 contract for legal services only if:
49-3 (1) the governing body of the state governmental
49-4 entity approves the contract and the approved contract is signed by
49-5 the presiding officer of the governing body; or
49-6 (2) for an entity that is not governed by a
49-7 multimember governing body, the elected or appointed officer who
49-8 governs the entity approves and signs the contract.
49-9 (b) The attorney general may enter into a contingent fee
49-10 contract for legal services in the name of the state in relation to
49-11 a matter that has been referred to the attorney general under law
49-12 by another state governmental entity only if the other state
49-13 governmental entity approves and signs the contract in accordance
49-14 with Subsection (a).
49-15 (c) A state governmental entity, including the state, may
49-16 enter into a contingent fee contract for legal services that is not
49-17 described by Subsection (a) or (b) only if the governor approves
49-18 and signs the contract.
49-19 (d) Before approving the contract, the governing body,
49-20 elected or appointed officer, or governor, as appropriate, must
49-21 find that:
49-22 (1) there is a substantial need for the legal
49-23 services;
49-24 (2) the legal services cannot be adequately performed
49-25 by the attorneys and supporting personnel of the state governmental
49-26 entity or by the attorneys and supporting personnel of another
50-1 state governmental entity; and
50-2 (3) the legal services cannot reasonably be obtained
50-3 from attorneys in private practice under a contract providing only
50-4 for the payment of hourly fees, without regard to the outcome of
50-5 the matter, because of the nature of the matter for which the
50-6 services will be obtained or because the state governmental entity
50-7 does not have appropriated funds available to pay the estimated
50-8 amounts required under a contract providing only for the payment of
50-9 hourly fees.
50-10 (e) Before entering into a contingent fee contract for legal
50-11 services in which the estimated amount that may be recovered
50-12 exceeds $100,000, a state governmental entity that proposes to
50-13 enter into the contract in its own name or in the name of the state
50-14 must also notify the Legislative Budget Board that the entity
50-15 proposes to enter into the contract, send the board copies of the
50-16 proposed contract, and send the board information demonstrating
50-17 that the conditions required by Subsection (d)(3) exist. If the
50-18 state governmental entity finds under Subsection (d)(3) that the
50-19 state governmental entity does not have appropriated funds
50-20 available to pay the estimated amounts required under a contract
50-21 for the legal services providing only for the payment of hourly
50-22 fees, the state governmental entity may not enter into the proposed
50-23 contract in its own name or in the name of the state unless the
50-24 Legislative Budget Board finds that the state governmental entity's
50-25 finding with regard to available appropriated funds is correct.
50-26 (f) A contingent fee contract for legal services that is
51-1 subject to Subsection (e) and requires a finding by the Legislative
51-2 Budget Board is void unless the board has made the finding required
51-3 by Subsection (e).
51-4 Sec. 2254.104. TIME AND EXPENSE RECORDS REQUIRED; FINAL
51-5 STATEMENT. (a) The contract must require that the contracting
51-6 attorney or law firm keep current and complete written time and
51-7 expense records that describe in detail the time and money spent
51-8 each day in performing the contract.
51-9 (b) The contracting attorney or law firm shall permit the
51-10 governing body or governing officer of the state governmental
51-11 entity, the attorney general, and the state auditor each to inspect
51-12 or obtain copies of the time and expense records at any time on
51-13 request.
51-14 (c) On conclusion of the matter for which legal services
51-15 were obtained, the contracting attorney or law firm shall provide
51-16 the contracting state governmental entity with a complete written
51-17 statement that describes the outcome of the matter, states the
51-18 amount of any recovery, shows the contracting attorney's or law
51-19 firm's computation of the amount of the contingent fee, and
51-20 contains the final complete time and expense records required by
51-21 Subsection (a). The complete written statement required by this
51-22 subsection is public information under Chapter 552 and may not be
51-23 withheld from a requestor under that chapter under Section 552.103
51-24 or any other exception from required disclosure.
51-25 (d) This subsection does not apply to the complete written
51-26 statement required by Subsection (c). All time and expense records
52-1 required under this section are public information subject to
52-2 required public disclosure under Chapter 552. Information in the
52-3 records may be withheld from a member of the public under Section
52-4 552.103 only if, in addition to meeting the requirements of Section
52-5 552.103, the chief legal officer or employee of the state
52-6 governmental entity determines that withholding the information is
52-7 necessary to protect the entity's strategy or position in pending
52-8 or reasonably anticipated litigation. Information withheld from
52-9 public disclosure under this subsection shall be segregated from
52-10 information that is subject to required public disclosure.
52-11 Sec. 2254.105. CERTAIN GENERAL CONTRACT REQUIREMENTS. The
52-12 contract must:
52-13 (1) provide for the method by which the contingent fee
52-14 is computed;
52-15 (2) state the differences, if any, in the method by
52-16 which the contingent fee is computed if the matter is settled,
52-17 tried, or tried and appealed;
52-18 (3) state how litigation and other expenses will be
52-19 paid and, if reimbursement of any expense is contingent on the
52-20 outcome of the matter or reimbursable from the amount recovered in
52-21 the matter, state whether the amount recovered for purposes of the
52-22 contingent fee computation is considered to be the amount obtained
52-23 before or after expenses are deducted;
52-24 (4) state that any subcontracted legal or support
52-25 services performed by a person who is not a contracting attorney or
52-26 a partner, shareholder, or employee of a contracting attorney or
53-1 law firm is an expense subject to reimbursement only in accordance
53-2 with this subchapter; and
53-3 (5) state that the amount of the contingent fee and
53-4 reimbursement of expenses under the contract will be paid and
53-5 limited in accordance with this subchapter.
53-6 Sec. 2254.106. CONTRACT REQUIREMENTS: COMPUTATION OF
53-7 CONTINGENT FEE; REIMBURSEMENT OF EXPENSES. (a) The contract must
53-8 establish the reasonable hourly rate for work performed by an
53-9 attorney, law clerk, or paralegal who will perform legal or support
53-10 services under the contract based on the reasonable and customary
53-11 rate in the relevant locality for the type of work performed and on
53-12 the relevant experience, demonstrated ability, and standard hourly
53-13 billing rate, if any, of the person performing the work. The
53-14 contract may establish the reasonable hourly rate for one or more
53-15 persons by name and may establish a rate schedule for work
53-16 performed by unnamed persons. The highest hourly rate for a named
53-17 person or under a rate schedule may not exceed $1,000 an hour.
53-18 This subsection applies to subcontracted work performed by an
53-19 attorney, law clerk, or paralegal who is not a contracting attorney
53-20 or a partner, shareholder, or employee of a contracting attorney or
53-21 law firm as well as to work performed by a contracting attorney or
53-22 by a partner, shareholder, or employee of a contracting attorney or
53-23 law firm.
53-24 (b) The contract must establish a base fee to be computed as
53-25 follows. For each attorney, law clerk, or paralegal who is a
53-26 contracting attorney or a partner, shareholder, or employee of a
54-1 contracting attorney or law firm, multiply the number of hours the
54-2 attorney, law clerk, or paralegal works in providing legal or
54-3 support services under the contract times the reasonable hourly
54-4 rate for the work performed by that attorney, law clerk, or
54-5 paralegal. Add the resulting amounts to obtain the base fee. The
54-6 computation of the base fee may not include hours or costs
54-7 attributable to work performed by a person who is not a contracting
54-8 attorney or a partner, shareholder, or employee of a contracting
54-9 attorney or law firm.
54-10 (c) Subject to Subsection (d), the contingent fee is
54-11 computed by multiplying the base fee by a multiplier. The contract
54-12 must establish a reasonable multiplier based on any expected
54-13 difficulties in performing the contract, the amount of expenses
54-14 expected to be risked by the contractor, the expected risk of no
54-15 recovery, and any expected long delay in recovery. The multiplier
54-16 may not exceed four without prior approval by the legislature.
54-17 (d) In addition to establishing the method of computing the
54-18 fee under Subsections (a), (b), and (c), the contract must limit
54-19 the amount of the contingent fee to a stated percentage of the
54-20 amount recovered. The contract may state different percentage
54-21 limitations for different ranges of possible recoveries and
54-22 different percentage limitations in the event the matter is
54-23 settled, tried, or tried and appealed. The percentage limitation
54-24 may not exceed 35 percent without prior approval by the
54-25 legislature. The contract must state that the amount of the
54-26 contingent fee will not exceed the lesser of the stated percentage
55-1 of the amount recovered or the amount computed under Subsections
55-2 (a), (b), and (c).
55-3 (e) The contract also may:
55-4 (1) limit the amount of expenses that may be
55-5 reimbursed; and
55-6 (2) provide that the amount or payment of only part of
55-7 the fee is contingent on the outcome of the matter for which the
55-8 services were obtained, with the amount and payment of the
55-9 remainder of the fee payable on a regular hourly rate basis without
55-10 regard to the outcome of the matter.
55-11 (f) Except as provided by Section 2254.107, this section
55-12 does not apply to a contingent fee contract for legal services:
55-13 (1) in which the expected amount to be recovered and
55-14 the actual amount recovered do not exceed $100,000; or
55-15 (2) under which a series of recoveries is contemplated
55-16 and the amount of each individual recovery is not expected to and
55-17 does not exceed $100,000.
55-18 (g) This section applies to a contract described by
55-19 Subsection (f) for each individual recovery under the contract that
55-20 actually exceeds $100,000, and the contract must provide for
55-21 computing the fee in accordance with this section for each
55-22 individual recovery that actually exceeds $100,000.
55-23 Sec. 2254.107. MIXED HOURLY AND CONTINGENT FEE CONTRACTS;
55-24 REIMBURSEMENT FOR SUBCONTRACTED WORK. (a) This section applies
55-25 only to a contingent fee contract:
55-26 (1) under which the amount or payment of only part of
56-1 the fee is contingent on the outcome of the matter for which the
56-2 services were obtained, with the amount and payment of the
56-3 remainder of the fee payable on a regular hourly rate basis without
56-4 regard to the outcome of the matter; or
56-5 (2) under which reimbursable expenses are incurred for
56-6 subcontracted legal or support services performed by a person who
56-7 is not a contracting attorney or a partner, shareholder, or
56-8 employee of a contracting attorney or law firm.
56-9 (b) Sections 2254.106(a) and (e) apply to the contract
56-10 without regard to the expected or actual amount of recovery under
56-11 the contract.
56-12 (c) The limitations prescribed by Section 2254.106 on the
56-13 amount of the contingent fee apply to the entire amount of the fee
56-14 under the contingent fee contract, including the part of the fee
56-15 the amount and payment of which is not contingent on the outcome of
56-16 the matter.
56-17 (d) The limitations prescribed by Section 2254.108 on
56-18 payment of the fee apply only to payment of the contingent portion
56-19 of the fee.
56-20 Sec. 2254.108. FEE PAYMENT AND EXPENSE REIMBURSEMENT.
56-21 (a) Except as provided by Subsection (b), a contingent fee and a
56-22 reimbursement of an expense under a contract with a state
56-23 governmental entity is payable only from funds the legislature
56-24 specifically appropriates to pay the fee or reimburse the expense.
56-25 An appropriation to pay the fee or reimburse the expense must
56-26 specifically describe the individual contract, or the class of
57-1 contracts classified by subject matter, on account of which the fee
57-2 is payable or expense is reimbursable. A general reference to
57-3 contingent fee contracts for legal services or to contracts subject
57-4 to this subchapter or a similar general description is not a
57-5 sufficient description for purposes of this subsection.
57-6 (b) If the legislature has not specifically appropriated
57-7 funds for paying the fee or reimbursing the expense, a state
57-8 governmental entity may pay the fee or reimburse the expense from
57-9 other available funds only if:
57-10 (1) the legislature is not in session; and
57-11 (2) the Legislative Budget Board gives its prior
57-12 approval for that payment or reimbursement under Section 69,
57-13 Article XVI, Texas Constitution, after examining the statement
57-14 required under Section 2254.104(c) and determining that the
57-15 requested payment and the contract under which payment is requested
57-16 meet all the requirements of this subchapter.
57-17 (c) A payment or reimbursement under the contract may not be
57-18 made until:
57-19 (1) final and unappealable arrangements have been made
57-20 for depositing all recovered funds to the credit of the appropriate
57-21 fund or account in the state treasury; and
57-22 (2) the state governmental entity and the state
57-23 auditor have received from the contracting attorney or law firm the
57-24 statement required under Section 2254.104(c).
57-25 (d) Litigation and other expenses payable under the
57-26 contract, including expenses attributable to attorney, paralegal,
58-1 accountant, expert, or other professional work performed by a
58-2 person who is not a contracting attorney or a partner, shareholder,
58-3 or employee of a contracting attorney or law firm, may be
58-4 reimbursed only if the state governmental entity and the state
58-5 auditor determine that the expenses were reasonable, proper,
58-6 necessary, actually incurred on behalf of the state governmental
58-7 entity, and paid for by the contracting attorney or law firm. The
58-8 contingent fee may not be paid until the state auditor has reviewed
58-9 the relevant time and expense records and verified that the hours
58-10 of work on which the fee computation is based were actually worked
58-11 in performing reasonable and necessary services for the state
58-12 governmental entity under the contract.
58-13 Sec. 2254.109. EFFECT ON OTHER LAW. (a) This subchapter
58-14 does not limit the right of a state governmental entity to recover
58-15 fees and expenses from opposing parties under other law.
58-16 (b) Compliance with this subchapter does not relieve a
58-17 contracting attorney or law firm of an obligation or responsibility
58-18 under other law, including under the Texas Disciplinary Rules of
58-19 Professional Conduct.
58-20 (c) A state officer, employee, or governing body, including
58-21 the attorney general, may not waive the requirements of this
58-22 subchapter or prejudice the interests of the state under this
58-23 subchapter. This subchapter does not waive the state's sovereign
58-24 immunity from suit or its immunity from suit in federal court under
58-25 the Eleventh Amendment to the federal constitution.
58-26 SECTION 3.04. The changes in law made by this article apply
S.B. No. 178
59-1 only to a contract entered into on or after September 1, 1999.
59-2 ARTICLE 4. EFFECTIVE DATE; EMERGENCY
59-3 SECTION 4.01. This Act takes effect September 1, 1999.
59-4 SECTION 4.02. The importance of this legislation and the
59-5 crowded condition of the calendars in both houses create an
59-6 emergency and an imperative public necessity that the
59-7 constitutional rule requiring bills to be read on three several
59-8 days in each house be suspended, and this rule is hereby suspended.
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 178 passed the Senate on
March 16, 1999, by a viva-voce vote; May 20, 1999, Senate refused
to concur in House amendment and requested appointment of
Conference Committee; May 24, 1999, House granted request of the
Senate; May 30, 1999, Senate adopted Conference Committee Report by
a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 178 passed the House, with
amendment, on May 19, 1999, by a non-record vote; May 24, 1999,
House granted request of the Senate for appointment of Conference
Committee; May 30, 1999, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor