85R3070 JG-D     By: Miles S.B. No. 485       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)  "Offender" means:                      (A)  an inmate or state jail defendant confined in   a facility operated by or under contract with the department; or                      (B)  a person under supervision of the department   following the person's release on parole or to mandatory   supervision.                (2)  "Office" means the office of independent oversight   ombudsman.                (3)  "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 investigating,   evaluating, and securing the rights of offenders. The office is   also responsible for in-depth review and analysis of data,   determination of long-term needs, identification of critical   issues and corresponding solutions, and assessment of the efficacy   of existing programs.          Sec. 512.003.  INDEPENDENCE. The ombudsman acts   independently of the department 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, budgetary, accounting, purchasing, payroll, information   technology, and legal support 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 separate from the   legislative appropriations requests for the Commission on Jail   Standards and the department and 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 the ombudsman with the advice and consent of the   senate for a term of two years, expiring February 1 of each   odd-numbered year.          (b)  A person appointed as ombudsman is eligible for   reappointment, provided that the person may not serve more than   three terms in that capacity.          Sec. 512.052.  ASSISTANTS. The ombudsman may appoint   assistants to perform, under the direction of the ombudsman, the   same duties and 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;                (2)  owns or controls, directly or indirectly, any   interest in a business entity or other organization receiving funds   from the department or the office; or                (3)  uses or receives any amount of tangible goods,   services, or funds from the department or the office.          (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 submit a   quarterly report to the governor, the lieutenant governor, the   state auditor, and each member of the legislature that is both   aggregated and disaggregated by individual facility and describes:                (1)  the work of the ombudsman and office;                (2)  the results of any review or investigation   undertaken by the ombudsman, including any review or investigation   of services contracted by the department; and                (3)  any recommendations that the ombudsman has   regarding:                      (A)  the duties of the ombudsman; or                      (B)  the operations of the department.          (b)  The ombudsman shall immediately report to 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)  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 operated by or under contract with the department; or                (4)  interference by the department with an   investigation conducted by the office.          Sec. 512.055.  COMMUNICATION AND CONFIDENTIALITY. (a)  The   department shall allow any offender to communicate with the   ombudsman or an assistant ombudsman. 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 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 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.          Sec. 512.058.  AUTHORITY OF STATE AUDITOR. The office is   subject to audit by the state auditor in accordance with Chapter   321.   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   ensure that the rights of offenders are fully observed;                (2)  review complaints filed with the office concerning   the actions of the department and investigate each complaint in   which it appears that an offender may be in need of assistance from   the ombudsman;                (3)  conduct investigations of complaints, other than   complaints alleging criminal behavior, if the ombudsman determines   that:                      (A)  an offender or an offender's family may be in   need of assistance from the ombudsman; or                      (B)  a systemic issue in the department's   provision of services is raised by a complaint;                (4)  conduct audits to ensure compliance with the   Prison Rape Elimination Act of 2003 (42 U.S.C. Section 15601 et   seq.) and any regulation adopted under that act, including 28   C.F.R. Part 115;                (5)  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;                (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   assistant's representation of offenders in internal administrative   and disciplinary hearings.          (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.          Sec. 512.102.  RETALIATION PROHIBITED. The department may   not discharge 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.          Sec. 512.103.  TRAINING. The ombudsman shall attend annual   training sessions, including any required training for   correctional officers, and may participate in other appropriate   professional training.   SUBCHAPTER D. ACCESS TO INFORMATION          Sec. 512.151.  ACCESS TO INFORMATION OF CERTAIN GOVERNMENTAL   ENTITIES. (a)  The department shall allow the ombudsman access to   the department's records relating to offenders.          (b)  The Department of Public Safety and any local law   enforcement agency shall allow the ombudsman access to their   records relating to any offender.          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.          SECTION 2.  As soon as practicable after the appointment of   the ombudsman under Section 512.051, Government Code, as added by   this Act, the ombudsman and the Texas Department of Criminal   Justice shall enter into a memorandum of understanding to provide   for the orderly transfer of certain duties, functions, programs,   and activities of the department to the office of independent   oversight ombudsman as necessary for the office to fulfill the   office's duties under Chapter 512, Government Code, as added by   this Act. The memorandum must provide for the transfer to the   office of:                (1)  any funds appropriated to the department for the   fiscal biennium ending August 31, 2019, specifically for a purpose,   function, or duty that will be transferred to or performed by the   office; and                (2)  the exclusive authority to address Step 2   grievances, as identified under the department's Offender   Grievance Program as that program existed immediately before the   effective date of this Act.          SECTION 3.  This Act takes effect September 1, 2017.