HBA-DMD H.B. 2204 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2204 By: Bosse Public Safety 4/4/1999 Introduced BACKGROUND AND PURPOSE The Department of Public Safety (DPS) was created in 1935 as a result of the consolidation of the Texas Highway Patrol and the Texas Ranger Force. DPS is responsible for enforcing the law, protecting public safety, and providing protection and detection of crime. DPS also maintains crime records and histories, licenses for concealed handgun instructors and owners, operates a Division of Emergency Management, and maintains a large information system for state and local police departments. DPS is subject to the Sunset Act and will be abolished on September 1, 1999, unless continued by the Legislature. H.B. 2204 continues the DPS until September 1, 2009 and increases the size of the Public Safety Commission (commission) from three to six members. This bill authorizes the public safety director (director) to appoint an assistant director. This bill also authorizes the director to designate a head of a division or a position that involves working directly with the director. It requires the commission, by rule, to establish procedures and practices governing the appeal of disciplinary action and to provide a means for an employee to appeal a disciplinary action or to resolve a grievance through mediation. H.B. 2204 requires the commission, by rule, to establish a process under which the commission approves of the disposition of assets seized by DPS. This bill requires DPS to establish the office of audit and review to coordinate activities designed to promote effectiveness in DPS operations. This bill also requires the commission to establish the office of internal affairs that has original jurisdiction over all criminal investigations occurring on DPS property or involving on-duty DPS employees. It authorizes DPS, by rule, to provide that personal identification certificate holders may renew the certificate by mail, telephone, over the Internet, or by other electronic means. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Public Safety Commission in SECTION 8 (Sections 411.0072, 411.0073, 411.0074, 411.0131, Government Code) and in SECTIONS 17 and 19 (Sections 521.427 and 644.104, Transportation Code); to the Department of Public Safety in SECTION 8 (Section 411.0098, Government Code) and in SECTION 12 (Section 521.103, Transportation Code); to the Texas Department of Transportation in SECTION 8 (Section 411.0098, Government Code); and rulemaking authority previously delegated to the Department of Public Safety is modified in SECTION 16 (Section 521.274, Transportation Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 411.002(c), Government Code, to continue the Department of Public Safety (department) until September 1, 2009, rather than 1999. SECTION 2. Amends Sections 411.003(b) and (c), Government Code, to increase the size of the Public Safety Commission (commission) from three to six members. Sets forth that members serve staggered six-year terms, with the terms of two members, rather than one member, expiring January 1 of each even-numbered year. SECTION 3. Amends Section 411.0036(c), Government Code, to amend existing language to conform to standard Sunset language regarding removal. SECTION 4. Amends Subchapter A, Chapter 411, Government Code, by adding Section 411.0031 and amending Section 411.004, as follows: Sec. 411.0031. TRAINING FOR COMMISSION MEMBERS. Sets forth standard Sunset language regarding commission member training. Sec. 411.004. DUTIES AND POWERS OF COMMISSION. Deletes the commission's requirement to provide to its members information regarding their qualifications for office and responsibilities under applicable laws relating to standards of conduct. SECTION 5. Amends Sections 411.005(b) and (c), Government Code, to authorize the public safety director (director), rather than require the commission, to appoint an assistant director, with the advice and consent of the commission. Sets forth that the assistant director serves until removed by the director. Requires the director, rather than the commission, to select the assistant director. Makes conforming and nonsubstantive changes. SECTION 6. Amends Subchapter A, Chapter 411, Government Code, by amending Section 411.006 and adding Section 411.0061, as follows: Sec. 411.006. DUTIES OF DIRECTOR. Requires the director or the director's designee to provide to members of the commission and to department employees, as often as necessary, information regarding the requirements for office or employment, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees. Sec. 411.0061. COMMERCIAL CARRIER INSPECTIONS: IMPLEMENTATION SCHEDULE FOR NONCOMMISSIONED PERSONNEL. Requires the director to develop a schedule to phase in the use of noncommissioned staff assigned to enforce commercial motor vehicle rules under Sections 644.103 and 644.104, Transportation Code. Requires the schedule to be implemented over a five-year period beginning January 1, 2000. Requires a report that provides details of the schedule to be filed with the Legislative Budget Board with each legislative appropriations request of the department. Sets forth that this section expires January 1, 2005. SECTION 7. Amends Section 411.007(e), Government Code, to provide Subsection (f) as an exception to the department's prohibition from discharging, suspending, or demoting a commissioned officer except for the violation of a specific commission rule. Makes a conforming change. SECTION 8. Amends Subchapter A, Chapter 411, Government Code, by adding Sections 411.0071-411.0074, 411.0098, 411.0099, and 411.0131, as follows: Sec. 411.0071. DIRECT APPOINTMENT TO KEY POSITIONS BY DIRECTOR. (a) Authorizes the director to designate a head of a division or a position that involves working directly with the director, other than the highest ranking officer of the Texas Rangers, as a key position. (b) Authorizes the director to directly appoint a person to a position designated as a key position under Subsection (a) under criteria determined by the director and approved by the commission. Provides that the director's appointment of a person to a key position or transfer of a person from a key position to another position for which the person is qualified, as determined by the director, is not subject to Section 411.007 (Officers and Employees). (c) Requires a person appointed to a key position under this section, on removal from that position, to be returned to the position the person held immediately before appointment to the key position or to a position of equivalent rank. Provides that if a person is removed from a key position as a result of the filing of a formal charge of misconduct, this subsection applies only if the person is exonerated for the misconduct charged. Sec. 411.0072. HEARING BEFORE COMMISSION SUBCOMMITTEE. (a) Authorizes the commission, by rule, to authorize a subcommittee composed of commission members to conduct a public hearing to which an officer or employee is entitled under Section 411.007, or regarding any other disputed personnel action that the commission has discretion to hear, including a disciplinary action appealed or employment-related grievance filed under Section 411.0073. (b) Requires a subcommittee of the commission that conducts a hearing under this section to recommend to the commission an outcome in the dispute involved. Provides that the recommendation of the subcommittee must be approved by a majority of the commission to become effective. Sec. 411.0073. EMPLOYMENT-RELATED GRIEVANCES AND APPEALS OF DISCIPLINARY ACTIONS WITHIN THE DEPARTMENT. (a) Defines "disciplinary action" and "employment-related grievance." (b) Requires the commission, by rule, to establish procedures and practices governing the appeal of a disciplinary action within the department. (c) Requires the commission, by rule, to establish procedures and practices through which the department will address an employment-related grievance and specifies provisions that an employment-related grievance must include. (d) Requires the department to submit annually to the commission, and as part of its biennial report to the legislature required under Section 411.004, a report on the department's use of the employment-related grievance process under Subsection (c). Specifies provisions that the report must include. Sec. 411.0074. MEDIATION OF PERSONNEL DISPUTES. (a) Requires the commission, by rule, to provide a means for an employee to appeal a disciplinary action covered by Section 411.007 or 411.0073 or resolve an employment-related grievance covered by Section 411.0073 through mediation if the employee chooses. Provides that the rules must establish the mediation procedures and the circumstances under which mediation is appropriate for an employment-related grievance. (b) Sets forth that Chapter 2008 (Negotiated Rulemaking), Government Code, does not apply to the mediation, except for Section 2008.054 (Appointment and Duration of Negotiated Rulemaking Committee), Government Code. Provides that the mediator must be trained in mediation techniques. (c) Entitles an employee recommended for discharge who chooses mediation to the services of a mediator not employed by the department to mediate the dispute. (d) Provides that an employee who chooses to use mediation to appeal a disciplinary action or resolve an employment-related grievance waives the right to appeal under Section 411.007 or 411.0073 or to use the grievance process established under Section 411.0073. Sec. 411.0098. MEMORANDUM OF UNDERSTANDING WITH DEPARTMENT OF TRANSPORTATION. (a) Requires the department and the Texas Department of Transportation (TxDOT) to adopt, by rule, a memorandum of understanding on coordinating the development of transportation infrastructure projects that affect both agencies. (b) Specifies the requirements for the memorandum of understanding. (c) Requires the department and TxDOT to update and revise the memorandum of understanding as necessary and adopt all revisions to the memorandum, by rule. Sec. 411.0099. NEEDS ASSESSMENT FOR ENFORCEMENT OF COMMERCIAL MOTOR VEHICLE RULES. (a) Requires the department to conduct a long-term needs assessment for the enforcement of commercial motor vehicle rules and specifies the considerations for the needs assessment. (b) Requires the department to submit a biennial report to the legislative committees with primary jurisdiction over state budgetary matters and the Texas Transportation Commission that reflects the results of the needs assessment conducted under Subsection (a). Requires the report to be submitted to the legislature in conjunction with the department's legislative appropriations request. Sec. 411.0131. USE OF SEIZED AND FORFEITED ASSETS. (a) Requires the commission, by rule, to establish a process under which the commission approves all of the department's dispositions of assets seized or forfeited under state or federal law and received by or appropriated to the department. Requires the commission, before approving a disposition, to consider how the disposition supports priorities established in the department's strategic plan and whether the disposition complies with applicable federal guidelines. (b) Requires the department to file annually with the governor and the presiding officer of each house of the legislature a report on seized and forfeited assets. Specifies provisions that the report must include. (c) Requires the department, within 30 days after the end of each quarter, to report and justify any dispositions of seized or forfeited assets during the quarter that differ from the dispositions reported under Subsection (b), and were used for a purpose not considered a priority in the department's strategic plan or not required by law or applicable federal guidelines. SECTION 9. Amends Section 411.0195, Government Code, by amending Subsections (c) and (d) and adding Subsection (e), to amend existing language to conform to standard Sunset language regarding complaints filed with the department. SECTION 10. Amends Chapter 411, Government Code, by adding Subchapter I, as follows: SUBCHAPTER I. INTERNAL OVERSIGHT Sec. 411.241. OFFICE OF AUDIT AND REVIEW. Requires the department to establish the office of audit and review (office). Requires the office to coordinate activities designed to promote effectiveness in departmental operations and to keep the commission and the legislature fully informed about deficiencies within the department. Sets requirements for the office. Sec. 411.242. DIRECTOR OF AUDIT AND REVIEW. (a) Requires the commission to appoint the director of the office. Provides that the director of the office serves until removed by the commission. (b) Provides that the director of the office must satisfy the requirements to be the agency's internal auditor under Section 2102.006(b) and is considered to be the agency's internal auditor for purposes of Chapter 2102 (Internal Auditing). Section 2102.006(b) sets forth that an internal auditor must be a certified public accountant or a certified internal auditor and have at least three years of auditing experience. (c) Requires the department to provide the director of audit and review with access to any records, data, or other information necessary to fulfill the purposes of this section and Section 411.243. (d) Requires the director of the office, with the advice and consent of the commission, to determine which audits and inspections to perform and authorizes the director of the office to publish the findings and recommendations of the office. (e) Sets requirements for the director of the office. Sec. 411.243. POWERS AND DUTIES. Specifies requirements for the office. Sets forth that Chapter 2102 applies to the office. Sec. 411.244. INTERNAL AFFAIRS. (a) Requires the commission to establish the office of internal affairs. (b) Sets forth that the office of internal affairs has original jurisdiction over all criminal investigations occurring on department property or involving on-duty department employees. Requires the office of internal affairs to coordinate, but need not conduct, all investigations under this section. (c) Requires the commission to appoint the head of the office of internal affairs who serves until removed by the commission. (d) Requires the head of the office of internal affairs to report directly to the commission regarding performance of and activities related to investigations, report to the director for administrative purposes, and provide the director with information regarding investigations as appropriate. SECTION 11. Amends Section 521.101(d), Transportation Code, to delete the department's authority to require each applicant for a renewal or duplicate personal identification certificate to furnish to the department the information required by Section 521.142. SECTION 12. Amends Subchapter E, Chapter 521, Transportation Code, by adding Section 521.103, as follows: Sec. 521.103. RENEWAL BY MAIL OR ELECTRONIC MEANS. Authorizes the department, by rule, to provide that the holder of a personal identification certificate may renew the certificate by mail, by telephone, over the Internet, or by other electronic means. Authorizes a rule adopted under this section to prescribe eligibility standards for renewal under this section. SECTION 13. Amends Section 521.141(a), Transportation Code, to delete the provision that an applicant for a renewal driver's license must apply on a form provided by the department. SECTION 14. Amends Section 521.1425, Transportation Code, to make conforming changes. SECTION 15. Amends Section 521.143(a), Transportation Code, Makes a conforming change. SECTION 16. Amends Section 521.274, Transportation Code, as follows: Sec. 521.274. New Title: RENEWAL BY MAIL OR ELECTRONIC MEANS. Authorizes the department, by rule, to provide that the holder of a driver's license may renew the license by telephone, over the Internet, or by other electronic means. Authorizes a rule adopted under this section, rather than subsection, to prescribe eligibility standards for renewal under this section. Deletes the provision prohibiting a rule from permitting renewal by mail of certain licenses. SECTION 17. Amends Subchapter R, Chapter 521, Transportation Code, by adding Section 521.427, as follows: Sec. 521.427. METHOD OF PAYMENT OF FEES. (a) Authorizes the commission to adopt rules regarding the method of payment of a fee for a license or personal identification card issued under this chapter. (b) Authorizes the rules to authorize payment, under circumstances prescribed by the department. Specifies the means of payment. (c) Authorizes the rules to require the payment of a discount or service charge for a credit card payment in addition to the fee. SECTION 18. Amends Section 644.103, Transportation Code, is amended by adding Subsections (d) and (e), as follows: (d) Authorizes a noncommissioned employee of the department who is certified for the purpose by the director and who is supervised by an officer of the department, at a fixed-site facility, to enter a motor vehicle that is subject to this chapter. Provides that if the employee's inspection shows that an enforcement action, such as the issuance of a citation, is warranted, the supervising officer must take the action. (e) Sets forth that the department's training and other requirements for certification of a noncommissioned employee of the department under this section must be the same as the training and requirements, other than the training and requirements for becoming and remaining a peace officer, for officers who enforce this chapter. SECTION 19. Amends Section 644.104, Transportation Code, by adding Subsections (c) and (d), as follows: (c) Prohibits the department from using an officer to conduct an inspection under this section unless the inspection involves a situation that the commission, by rule, determines to reasonably require the use or presence of an officer to accomplish the inspection. (d) Provides that the department's training and other requirements for certification of a noncommissioned employee of the department under this section must be the same as the training and requirements, other than the training and requirements for becoming and remaining a peace officer, for officers who enforce this chapter. SECTION 20. Sets forth the governor's requirement to appoint three new members to the commission within a certain time period. Sets forth the terms of the new members. (b) Requires TxDOT and the commission, except as provided by Subsection (c) of this section, to adopt each rule necessary to implement the changes in law made by this Act no later than January 1, 2000. (c) Requires the commission, no later than January 1, 2000, to adopt rules regarding the use of mediation for employment-related grievances as prescribed by Section 411.0074, Government Code, as added by this Act. Requires the commission, no later than September 1, 2001, to adopt rules regarding the use of mediation in lieu of disciplinary action appeals as prescribed by Section 411.0074, Government Code, as added by this Act. (d) Sets forth that Section 411.0031, Government Code, as added by this Act, does not apply to a member of the commission appointed before the effective date of this Act during the term the member is serving on that effective date. (e) Makes application of Section 411.0071, Government Code, of this Act prospective. SECTION 21.Effective date: September 1, 1999. SECTION 22.Emergency clause.