Bill Text: TX HB363 | 2019-2020 | 86th Legislature | Comm Sub

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Bill Title: Relating to the creation of the office of independent oversight ombudsman for the Texas Department of Criminal Justice.

Sponsorship: Slight Partisan Bill (Democrat 8-3)

Status: (Introduced - Dead) 2019-04-24 - Committee report sent to Calendars [HB363 Detail]

Download: Texas-2019-HB363-Comm_Sub.html

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86R14912 JG-D
By: Johnson of Harris, Allen, Miller, Wu, H.B. No. 363
Sherman, Sr., et al.
Substitute the following for H.B. No. 363:
By: Allen C.S.H.B. No. 363

A BILL TO BE ENTITLED
AN ACT
relating to the creation of the office of independent oversight
ombudsman for the Texas Department of Criminal Justice.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle G, Title 4, Government Code, is amended
by adding Chapter 512 to read as follows:
CHAPTER 512. OFFICE OF INDEPENDENT OVERSIGHT OMBUDSMAN FOR TEXAS
DEPARTMENT OF CRIMINAL JUSTICE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 512.001. DEFINITIONS. In this chapter:
(1) "Facility" means a facility operated by or under
contract with the department that is used primarily for the
confinement of offenders.
(2) "Offender" means an inmate or state jail defendant
confined in a facility.
(3) "Office" means the office of independent oversight
ombudsman.
(4) "Ombudsman" means the individual appointed under
this chapter as ombudsman for the office.
Sec. 512.002. ESTABLISHMENT; PURPOSE. The office is a
state agency established for the purpose of monitoring the
conditions of confinement and treatment of offenders,
investigating, evaluating, and securing the rights of offenders,
and assisting the department in improving its operations. The
office is also responsible for conducting in-depth reviews and
analyses of data, determining long-term needs, identifying
critical issues facing the department and corresponding solutions
to those issues, investigating significant group disturbances and
critical incidents, and assessing the efficacy of existing
programs.
Sec. 512.003. INDEPENDENCE. The ombudsman acts
independently of the department and the board in the performance of
the ombudsman's powers and duties under this chapter.
Sec. 512.004. ADMINISTRATIVE ATTACHMENT; SUPPORT; BUDGET.
(a) The office is administratively attached to the Commission on
Jail Standards.
(b) The Commission on Jail Standards shall provide office
space and administrative support services, including human
resources, accounting, purchasing, payroll, and information
technology services, to the office as necessary to carry out the
purposes of this chapter.
(c) The office, in accordance with the rules and procedures
of the Legislative Budget Board, shall prepare, approve, and submit
a legislative appropriations request that is used to develop the
office's budget structure. The office shall maintain the
legislative appropriations request and budget structure separately
from those of the Commission on Jail Standards and the department.
SUBCHAPTER B. APPOINTMENT AND MANAGEMENT OF OFFICE
Sec. 512.051. APPOINTMENT OF OMBUDSMAN. (a) The governor
shall appoint, with the advice and consent of the senate, a person
to serve as ombudsman from a list of persons recommended by the
chair of each standing committee of the legislature having primary
jurisdiction over the department.
(b) The ombudsman serves a four-year term and may be removed
by the governor only for good cause.
(c) A person may not serve as ombudsman for more than two
terms.
Sec. 512.052. ASSISTANTS. The ombudsman may appoint
assistants to perform, under the direction of the ombudsman, the
same duties and to exercise the same powers as the ombudsman.
Sec. 512.053. CONFLICT OF INTEREST. (a) A person may not
serve as ombudsman or as an assistant ombudsman if the person or the
person's spouse:
(1) is employed by or participates in the management
of a business entity or other organization receiving funds from the
department or the office or was employed by or participated in the
management of such an entity or organization in the five years
preceding the date of the person's appointment;
(2) owns or controls, directly or indirectly, any
interest in a business entity or other organization receiving funds
from the department or the office;
(3) uses or receives any amount of tangible goods,
services, or funds from the department or the office; or
(4) is an officer, employee, manager, or paid
consultant of the department or was an officer, employee, manager,
or paid consultant of the department in the five years preceding the
date of the person's appointment.
(b) A person may not serve as ombudsman or as an assistant
ombudsman if the person or the person's spouse is required to
register as a lobbyist under Chapter 305 because of the person's
activities for compensation on behalf of a profession related to
the operation of the department or the office.
(c) A person may not serve as ombudsman or as an assistant
ombudsman if the person or the person's spouse is an officer,
employee, manager, or paid consultant of a Texas trade association
in the field of criminal or juvenile justice.
(d) In this section, "Texas trade association" means a
nonprofit, cooperative, and voluntarily joined association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
Sec. 512.054. REPORT. (a) The ombudsman shall prepare and
submit to the governor, the lieutenant governor, the state auditor,
and each member of the legislature:
(1) periodic reports that evaluate systemic issues
affecting the department and any current issues at individual
facilities; and
(2) an annual report that is both aggregated and
disaggregated by individual facility and describes:
(A) the work of the ombudsman and office;
(B) the results of any review or investigation
undertaken by the ombudsman, including any review or investigation
of services contracted by the department; and
(C) any recommendations that the ombudsman has
regarding:
(i) the duties of the ombudsman; or
(ii) the operations of the department.
(b) The ombudsman shall immediately report to the executive
director or the executive director's designee, the governor, the
lieutenant governor, the speaker of the house of representatives,
the state auditor, and the office of the inspector general of the
department any particularly serious or flagrant:
(1) confirmed case of abuse or injury of an offender;
(2) problem concerning the administration of a
department program or operation;
(3) problem concerning the delivery of services in a
facility; or
(4) interference by the department with an
investigation conducted by the office.
(c) In response to any recommendation made by the ombudsman
in a report submitted under this section, the department shall:
(1) develop a corrective action plan to specifically
address the recommendation; or
(2) submit to the ombudsman a written objection to the
recommendation that includes the reasons for the objection.
(d) The ombudsman shall publish on the office's Internet
website each:
(1) report submitted under this section;
(2) corrective action plan developed under Subsection
(c)(1); and
(3) objection submitted under Subsection (c)(2).
Sec. 512.055. COMMUNICATION AND CONFIDENTIALITY. (a) The
department shall establish procedures allowing any offender or
facility administrator or employee to communicate with the
ombudsman or an assistant ombudsman regarding a power or duty of the
ombudsman or office. The communication:
(1) may be in person, by mail, or by any other means;
and
(2) is confidential and privileged.
(b) The records of the ombudsman are confidential, except
that the ombudsman shall:
(1) share with the office of the inspector general of
the department a communication with an offender that may involve
abuse or neglect; and
(2) disclose the ombudsman's nonprivileged records if
required by a court order on a showing of good cause.
(c) The ombudsman may make public any report relating to an
investigation after the investigation is complete, except that the
names of all offenders, family members, and employees remain
confidential and must be redacted before the report is made public.
(d) The name, address, and other personally identifiable
information of a person who files a complaint with the office,
information generated by the office in the course of an
investigation, and confidential records obtained by the office are
confidential and not subject to disclosure under Chapter 552,
except that the information and records, other than confidential
information and records concerning a pending law enforcement
investigation or criminal action, may be disclosed to an
appropriate person if the office determines that disclosure is:
(1) in the public interest;
(2) necessary to enable the office or ombudsman to
perform a duty under this chapter; or
(3) necessary to identify, prevent, or treat physical
or sexual assault or neglect of an offender.
Sec. 512.056. PROMOTION OF AWARENESS. The ombudsman shall
promote awareness among the department, the public, and offenders
regarding:
(1) how the office may be contacted;
(2) the purpose of the office; and
(3) the services the office provides.
Sec. 512.057. RULEMAKING AUTHORITY. The office by rule
shall establish policies and procedures for the operations of the
office.
SUBCHAPTER C. POWERS AND DUTIES
Sec. 512.101. POWERS AND DUTIES. (a) The ombudsman shall:
(1) review the procedures established by the
department and evaluate the delivery of services to offenders to
identify alternate procedures or services that would optimize the
use of state resources while ensuring that the rights of offenders
are fully observed;
(2) routinely review grievances and grievance logs to
address any pattern of actions of the department affecting the
treatment of offenders;
(3) conduct investigations of complaints submitted by
offenders, family members, and employees and review criminal
investigations conducted by the office of the inspector general of
the department if the ombudsman determines that a pattern of
complaints exists suggesting that an issue affects more than one
offender;
(4) review or inspect periodically the facilities and
procedures of any institution or residence in which an offender has
been placed by the department, whether public or private, to ensure
that the rights of offenders are fully observed;
(5) conduct immediate investigations of a significant
group disturbance or other critical incident to determine whether a
change in department policy or practice is necessary;
(6) provide assistance to an offender or family member
who the ombudsman determines is in need of assistance, including
advocating with an agency, provider, or other person in the best
interests of the offender;
(7) review court orders as necessary to fulfill the
ombudsman's duties;
(8) recommend changes in any procedure relating to the
treatment of offenders;
(9) make appropriate referrals under any of the powers
and duties listed in this subsection; and
(10) supervise an assistant ombudsman in the
performance of the assistant ombudsman's duties.
(b) The ombudsman may inform persons who are interested in
an offender's welfare of the rights of the offender.
(c) To determine if an offender's rights have been violated,
the ombudsman may, in any matter that does not involve alleged
criminal behavior, contact or consult with an administrator, an
employee, a family member, an expert, another offender, or any
other individual in the course of the ombudsman's investigation or
to secure information.
(d) Notwithstanding any other provision of this chapter,
the ombudsman may not investigate alleged criminal behavior, except
that the ombudsman may review, in accordance with Subsection
(a)(3), a criminal investigation conducted by the office of the
inspector general of the department to ensure that the
investigation was conducted in an accurate, unbiased, and thorough
manner.
(e) An inmate's complaint to the office and any
investigation conducted by the ombudsman under this chapter are
independent of the inmate grievance system developed under Section
501.008 and do not affect the procedures, rights, or duties
established under that system or constitute a grievance under that
system.
Sec. 512.102. RETALIATION PROHIBITED. The department may
not:
(1) discharge, discipline, or in any manner
discriminate or retaliate against an employee who makes a good
faith complaint to the office or cooperates with an investigation
under this chapter; or
(2) discipline or in any manner discriminate or
retaliate against an offender who complains to or communicates or
cooperates with the office in the course of the office carrying out
its duties.
Sec. 512.103. TRAINING. The ombudsman may attend training
sessions for correctional officers or participate in other
appropriate professional training.
SUBCHAPTER D. ACCESS TO INFORMATION, FACILITIES, AND PERSONNEL
Sec. 512.151. ACCESS TO INFORMATION OF CERTAIN GOVERNMENTAL
ENTITIES. The department shall allow the ombudsman access to the
department's records relating to an offender or investigation. In
allowing access to records under this section, the department shall
fully cooperate and collaborate with the office in a prompt manner
in order for the office to carry out its duties and improve facility
operations and conditions.
Sec. 512.152. ACCESS TO INFORMATION OF PRIVATE ENTITIES.
The ombudsman may subpoena the records of a private entity that
relate to a complaint the ombudsman is investigating.
Sec. 512.153. ACCESS TO FACILITIES, RECORDS, AND PERSONNEL.
(a) The office may inspect or review without notice any part of a
facility or any facility operation, policy, procedure, record, or
log relating to:
(1) a condition of confinement;
(2) offender discipline and the use of force against
offenders;
(3) an incident of assault or sexual assault;
(4) death of or serious bodily injury to an offender;
(5) the provision of health care, including mental
health care;
(6) the offender grievance process;
(7) a telephone, mail, or visitation policy;
(8) a rehabilitation, reentry, or reintegration
program;
(9) employee recruitment, training, supervision, or
discipline; and
(10) staffing levels and staffing deployment.
(b) The ombudsman shall coordinate with the office of the
inspector general of the department to develop policies and
procedures that ensure an inspection or review under Subsection (a)
does not interfere with a criminal investigation being conducted by
the office of the inspector general.
(c) In conducting an investigation, the office may:
(1) interview offenders and facility administrators
or employees;
(2) hold public hearings; and
(3) issue a subpoena to compel the attendance of a
relevant witness or the production of relevant records or
documents.
SUBCHAPTER E. ADVISORY BOARD
Sec. 512.201. CREATION AND COMPOSITION OF ADVISORY BOARD.
(a) An advisory board is created to advise the office in carrying
out the office's duties under this chapter.
(b) The advisory board is composed of the following nine
members appointed by the governor:
(1) one family member of an offender or a former
offender;
(2) one health care professional;
(3) one social worker;
(4) one person with expertise in administrative or
criminal investigations;
(5) one person with expertise in sexual assault victim
advocacy;
(6) one person with expertise in occupational safety
and health;
(7) one person with expertise in research and data
analysis;
(8) one former offender; and
(9) one former correctional officer.
(c) The chair of each standing committee of the legislature
having primary jurisdiction over the department and the primary
author and sponsor of the legislation enacting this chapter, but
only if the author or sponsor continues to be a member of the
legislature, may provide the governor with recommendations on any
appointment made under Subsection (b).
(d) Members of the advisory board serve staggered four-year
terms.
(e) A person may not serve as a member of the advisory board
for more than two terms.
(f) Chapter 2110 does not apply to the composition or
duration of the advisory board.
SECTION 2. (a) As soon as practicable after the effective
date of this Act, the governor shall appoint an initial ombudsman
under Chapter 512, Government Code, as added by this Act, to a term
expiring February 1, 2023.
(b) Not later than December 1, 2019, the governor shall
appoint the members of the advisory board under Section 512.201,
Government Code, as added by this Act.
SECTION 3. This Act takes effect September 1, 2019.