Part 6. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Chapter 151. GENERAL PROVISIONS
The Texas Board of Criminal Justice (TBCJ) proposes amendments to §151.3, Texas Board of Criminal Justice Operating Procedures. The proposed amendments clarify the TBCJ's operating procedures.
Charles Marsh, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for the first five (5) years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.
Mr. Marsh has also determined that, for the first five (5) year period, there will not be an economic impact on persons required to comply with the rule. There will not be an effect on small or micro businesses. The anticipated public benefit, as a result of enforcing the rule, will be enhanced understanding of the TBCJ's operating procedures.
Comments should be directed to Melinda Hoyle Bozarth, General Counsel, Texas Department of Criminal Justice, P.O. Box 13084, Austin, Texas 78711, Melinda.Bozarth@tdcj.state.tx.us. Written comments from the general public should be received within 30 days of the publication of this proposal.
The amendments are proposed under Texas Government Code, §492.013.
Cross Reference to Statutes: Texas Government Code, §492.013.
§151.3.Texas Board of Criminal Justice Operating Procedures.
(a) General. This section establishes operating procedures
for the Texas Board of Criminal Justice
(TBCJ or Board)
[
("TBCJ")
] to conduct business.
(b) Organization.
(1) The TBCJ is a nine (9)-member body appointed by the Governor to oversee the Texas Department of Criminal Justice (TDCJ or Agency). The TBCJ Chairman is designated by and serves at the pleasure of the Governor pursuant to Section 492.005, Texas Government Code.
[(1)
The TBCJ is a nine
(9)-member body appointed by the Governor to oversee the Texas Department
of Criminal Justice ("TDCJ" or "Board"). The Chairman of the TBCJ
is designated by and serves at the pleasure of the Governor pursuant
to Government Code, §492.005.]
(2) The TBCJ shall elect a Vice-Chairman and a Secretary
each odd-numbered year. The
Board
Vice-Chairman shall preside
over meetings in the
Board
Chairman's absence, and the
Secretary
[
secretary
] shall provide any necessary execution
of documents.
(3) The Chairman, on behalf of the TBCJ, is empowered
to appoint members of the
Board
[
TBCJ
] to be
members or chairs of standing or limited-purpose committees, or to
serve as liaisons to the TBCJ on particular subject areas or divisions
within TDCJ's jurisdiction, or both. The purpose for a committee,
if appointed, is to have certain members [
of the Board
]
become particularly familiar with various issues, and to bring forward
consensus recommendations, or a candid report on any disagreements,
to the full Board.
(4) A member who chairs a committee appointed by the
Board
Chairman may appoint non-members to sit on the committee
in an advisory capacity; however, advisory members are non-voting
members
(subsection (c)(6) of this rule)
[
(subsection
(c)(5) of this section)
]and cannot be reimbursed for expenses
incurred in this capacity.
[
(5)
For employment decisions
made specifically by the TBCJ, a limited-purpose committee shall be
appointed by the Chairman as deemed necessary to formulate recommendations
for full Board consideration.]
(c) Meetings.
(1) The TBCJ
shall attempt
[
attempts
]
to hold a regular meeting at least every odd-numbered month of the
year, but shall meet at least once each quarter of the calendar year
pursuant to Section 492.006, Texas Government Code.
Special
called meetings can be held at the discretion of the
Board
Chairman.
(2) TBCJ meetings shall be held in Austin, Texas, or under exceptional circumstances in Huntsville, Texas, pursuant to the General Appropriations Act. If the TBCJ uses video conference technology to convene a meeting, at least three (3) members shall convene at the Austin video conference site, or under exceptional circumstances, the Huntsville video conference site. The other members may convene using the technology from remote sites.
(3) The agenda and date for the TBCJ meetings shall be set by the Board Chairman.
(4) The agenda for committee meetings shall be set by the Committee Chairman in consultation with the committee's lead staff. If the TBCJ committee uses video conference technology to convene a meeting, at least a quorum of the committee, such as, three (3) members of a four (4)-member committee, shall convene in one (1) location, and the other members may convene using the technology from remote sites.
[
(2)
TBCJ meetings shall
be held in Austin, Texas, or under exceptional circumstances in Huntsville,
Texas pursuant to Government Code, §492.006 and the General Appropriations Act
. If the TBCJ
uses videoconference technology to convene a meeting, at least three
(3) members must convene at the Austin videoconference site, or under
exceptional circumstances, the Huntsville videoconference site. The
other members may convene using the technology from remote sites.]
[
(3)
The agenda for the
meetings of the TBCJ shall be set by the Chairman, after consultation
with members of the TBCJ and the TDCJ Executive Director.]
[
(4)
A meeting of a committee
of the TBCJ shall be held at a site chosen by the Chairman of the
committee. The Chairman of the committee shall set the agenda for
the meeting in consultation with the committee's Lead Staff. If the
TBCJ committee uses videoconference technology to convene a meeting,
at least a quorum of the committee, such as, three (3) members of
a four (4)-member committee, must convene in one location, and the
other members may convene using the technology from remote sites.]
(5)
A majority of the TBCJ or of a committee of the
TBCJ constitutes a quorum for the convening
of
[
of,
]
and transaction of business
at
[
at,
] any meeting.
A quorum of a committee with two (2) members is two (2).
(6) A quorum of a committee cannot depend on the presence
of an advisory member. [
A non-unanimous vote on an action by
a committee cannot be decided by an advisory member.
]
(7) Meetings of the TBCJ and its committees shall be conducted according to standard parliamentary procedures.
(8) Meetings of the TBCJ and its committees are governed by the
Texas Open Meetings Act,
(Texas
Government Code, Chapter 551).
[
Government Code, Chapter
551.
]
(9) The TDCJ Executive Director shall ensure members are provided the materials necessary to conduct the business of the Board and its committees well in advance of the meetings.
[
(9)
The TDCJ Executive
Director shall ensure that members are provided with materials necessary
to conduct the business of Board and committee meetings well in advance
of the meeting.]
(10)
The Executive Director shall ensure
the
[
that
] minutes of each meeting are prepared,
retained and
filed
[
retained, and filed
] with the Legislative
Reference Library, and made available to the public. The minutes shall
state the subject matter of each deliberation and shall indicate each
vote, order,
decision
[
decision,
] or other action
taken by the TBCJ.
(11) Requests by the public to make presentations or comments to the TBCJ are governed by Section 151.4 of this title, pursuant to Sections 492.007 and 551.042, Texas Government Code.
[
(11)
Requests by the
public to make presentations to the TBCJ are governed by §151.4
of this title, pursuant to Government Code, §492.007 and §551.042.]
(12) The TBCJ shall approve meeting minutes for any committees
deleted, renamed or
[
that are deleted,
renamed, or
] for which their limited-purpose has concluded.
(13)
The agenda of each regularly scheduled meeting
shall include an opportunity for:
[
Pursuant to Sections
492.006 and 501.148, Texas Government Code, the agenda of each meeting
shall include an opportunity for:
]
(A) The Presiding Officer of the Board of Pardons and Paroles
(BPP) or a designee of the presiding officer to present at a minimum
[
or a designee to present
] any items
relating to the operation of the parole system determined by the Presiding
Officer to require the Board's consideration; [
and
]
(B) The Chairman of the Judicial Advisory Council (JAC) to the Board and the Community Justice Assistance Division (CJAD) to present at a minimum any items relating to the operation of the community justice system determined by the JAC Chairman to require the Board's consideration;
[(B)
The Chairman of the
Judicial Advisory Council (JAC) to the Community Justice Assistance
Division (CJAD) to present to the Board any item relating to the operations
of the community justice system determined by the Chairman to require
the Board's consideration.]
(C) The TDCJ Executive Director to present any items relating to the Agency as determined by the Executive Director or Board Chairman;
(D) The Chairman or designee of the Correctional Managed Health Care Committee (CMHCC) to present on the committee's policy decisions, the financial status of the correctional health care system and corrective actions taken by or required of the department or the health care providers; and
(E) The Chairman of the Advisory Committee on Offenders with Medical or Mental Impairments (ACOOMMI) or a designee of the ACOOMMI Chairman to present on items related to offenders with medical or mental impairments.
[
(14)
At least twice a
year or at the discretion of the Chairman, the agenda will include
a report by the Advisory Committee to the Texas Board of Criminal
Justice on Offenders with Medical or Mental Impairments, pursuant
to §151.8 of this title and Health and Safety Code, Chapter 614.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 13, 2007.
TRD-200702978
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Earliest possible date of adoption: August 26, 2007
For further information, please call: (512) 463-0422
The Texas Board of Criminal Justice proposes amendments to Title 37, Part 6, Chapter 151 General Provisions, §151.25, Texas Department of Criminal Justice Tobacco Policy. The proposed revisions are necessary to clarify existing procedures.
Charles Marsh, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for the first five (5) years the rule will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.
Mr. Marsh has also determined that for the first five-year period that there will not be an economic impact on persons required to comply with the rule. There will not be an effect on small or micro businesses. The anticipated public benefit, as a result of enforcing the rule, will be to communicate to the employees and the public the Agency's tobacco policy.
Comments should be directed to Melinda Hoyle Bozarth, General Counsel, Texas Department of Criminal Justice, P.O. Box 13084, Austin, Texas 78711, Melinda.Bozarth@tdcj.state.tx.us. Written comments from the general public should be received within 30 days of the publication of this proposal.
The amendments are proposed under Texas Government Code, §494.010.
Cross Reference to Statutes: Texas Government Code, §492.013.
§151.25.Texas Department of Criminal Justice Tobacco Policy.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) TDCJ or Agency--Texas Department of Criminal Justice.
[(1) Tobacco Products--Cigars, cigarettes, snuff, or similar goods prepared for smoking, chewing, dipping, or other such personal use.]
(2) TBCJ or Board--Texas Board of Criminal Justice.
[(2) Buildings--Buildings and private offices owned, leased or under contract by the TDCJ, excluding individual family dwellings.]
(3) Tobacco Products--Cigars, cigarettes, snuff or any similar goods prepared for smoking, chewing, dipping or any other such personal use.
[(3) State Vehicles--All vehicles owned, leased, or contracted by the TDCJ.]
(4) TDCJ Property--Land, building, private offices and vehicles owned, leased or under contract by the TDCJ, excluding state-owned individual dwellings.
[(4) TDCJ Employee--All employees of the TDCJ, including temporary, part-time, contract employees, volunteers.]
(5) TDCJ Employee--All employees of the TDCJ, including temporary, part-time, contract employees and volunteers.
(6) Visitor--Any non-TDCJ employee on TDCJ property for any purpose other than conducting official state business.
(7) Persons Conducting Official State Business--Any individual on TDCJ property for the purpose of conducting any form of official state business.
(8) Designated Areas--A location where the use of tobacco products is authorized.
(9) Correctional Facilities--Any secure facility operated by or under contract with the TDCJ.
(b) Applicability. This policy is applicable to all employees, persons conducting official state business and visitors to all TDCJ property.
[(b) Applicability. This policy is applicable to all employees of, persons in the custody of, visitors to the Texas Department of Criminal Justice (TDCJ or Agency) and privately operated secure correctional facilities under contract with the TDCJ.]
(c) Policy. The TDCJ is committed to providing a safe
and healthy environment and working conditions for
employees, visitors
[
employees
] and offenders. All [
offenders and
] persons visiting offenders are prohibited from possessing
or using any tobacco products.
The
TDCJ employees and persons on the TDCJ property conducting official
state
[
State
]
business are authorized to possess and use tobacco products in accordance
with Agency policies and procedures.
(d) Procedures. The use of tobacco products inside all TDCJ
property
[
buildings and vehicles,
]
is strictly prohibited. Designated outdoor tobacco areas
shall
[
must
] be at a sufficient distance from
any
[
a
]
place at which employees regularly perform duties to ensure that no
employee who abstains from the use of tobacco products is physically
affected by the use of tobacco products at the designated areas. Tobacco
use in the designated areas
shall
[
must
] not
negatively affect the comfort or safety of any
employee, visitor
or offender. Employees shall be permitted to use tobacco products
during their work hours while on break and during their lunch period.
[
employee or offender.
]
(1) Administrative Offices.
(A) Employees, visitors and persons conducting official state business are permitted to carry and store tobacco products while in administrative offices that are not located within a correctional facility. The use of tobacco products is only allowed outdoors at designated areas or in personal vehicles. For administrative offices located on a correctional facility, procedures are set forth in subsection (d)(2) of this section.
(B) The Board designates the smoking areas for TDCJ property, other than correctional facilities as provided for in subsection (d)(2) of this section, as any location at least 15 feet from any entryway to the building, preferably removed from the view of passing traffic. The Board designates the same smoking area for administrative offices located in any privately-owned building as the same area set forth by the building owner or local ordinance. If no area is set forth by the building owner or local ordinance, the Board designates the smoking area as any location at least 15 feet from any entryway to the building, preferably removed from the view of passing traffic.
[(A) Employees are permitted to carry and store tobacco products while in administrative offices. The use of tobacco products is only allowed outdoors in approved, designated areas or in personal vehicles.]
[(B) For administrative offices with staff from multiple divisions, designated areas shall be identified by the Deputy Executive Director or his designee and submitted as consent items to the Texas Board of Criminal Justice (TBCJ or Board) for approval. For administrative offices with staff from a single division, designated areas shall be identified by the ranking supervisor, submitted through channels to the Division Director and submitted as consent items to the Board for approval.]
[(C) Human Resources Representatives shall be responsible for maintaining the approved list of designated areas and posting the list on the employee bulletin board.]
(2) Secure Correctional Facilities within the Correctional Institutions and Parole Divisions.
(A) Employees, visitors and persons conducting official state business are prohibited from carrying and storing tobacco products while in secure correctional facilities. The use of tobacco products is only allowed outdoors in designated areas or in personal vehicles.
(B) The Board designates correctional facility parking lots, areas adjacent to these parking lots and established break areas that are at least 15 feet from the correctional facility's main entrance as smoking areas for secure correctional facilities.
(C) Designated areas shall be clearly identified by signs located at the main entrance to the correctional facility.
[(2) Secure Correctional Facilities within the Institutional, State Jail, and Parole Divisions.]
[(A) Employees are permitted to use tobacco products in designated areas of the parking lots, designated areas adjacent to the parking lots, or in personal vehicles.]
[(B) Designated areas within or adjacent to the parking lot shall be identified by each Warden/Facility Administrator and submitted through the chain of command to the Division Director. These areas will be submitted as consent items to the Board for approval.]
[(C) Human Resources Representatives shall be responsible for maintaining the approved list of designated areas and posting the list on the employee bulletin board.]
[(D) Tobacco products are prohibited outside of the parking lot. Tobacco products found beyond the parking lot will be considered as contraband. Violation of this policy may result in disciplinary action pursuant to PD-22, "Guidelines for Employee Disciplinary Actions."]
(e) Violation of this policy may result in disciplinary action pursuant to PD-22, "General Rules of Conduct and Disciplinary Action Guidelines for Employees." Visitors and persons conducting official state business in violation of this policy may be asked to leave the property at the discretion of the senior supervisor onsite.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 13, 2007.
TRD-200702979
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Earliest possible date of adoption: August 26, 2007
For further information, please call: (512) 463-0422
Subchapter C. PROCEDURES FOR RESOLVING CONTRACT CLAIMS AND DISPUTES
The Texas Board of Criminal Justice (TBCJ) proposes amendments to §155.31, Establishing Procedures for Resolving Contract Claims and Disputes. The proposed amendments are necessary to make minor non-substantive changes and to incorporate recent revisions to state law.
Charles Marsh, Chief Financial Officer for the Texas Department of Criminal Justice, has determined that for the first five (5) years the amendments will be in effect, enforcing or administering the rule will not have foreseeable implications related to costs or revenues for state or local government.
Mr. Marsh has also determined that, for the first five (5) year period, there will not be an economic impact on persons required to comply with the rule. There will not be an effect on small or micro businesses. The anticipated public benefit, as a result of enforcing the amendments, will be the clarification of the Agency's contract dispute resolution procedures.
Comments should be directed to Melinda Hoyle Bozarth, General Counsel, Texas Department of Criminal Justice, P.O. Box 13084, Austin, Texas 78711, Melinda.Bozarth@tdcj.state.tx.us. Written comments from the general public should be received within 30 days of the publication of this proposal.
The amendments are proposed under Texas Government Code, §495.008(e) and Chapter 2260.
Cross Reference to Statutes: Texas Government Code, Chapters 552, 2001, and 2009; Texas Government Code, §2166.001; Texas Transportation Code, §201.112; Civil Practice & Remedies Code, Chapters 107, 152 and 154.
§155.31.Establishing Procedures for Resolving Contract Claims and Disputes.
(a) Purpose. This rule is intended to serve as a guideline for the negotiation and mediation of a breach of contract claim asserted by a contractor against the Texas Department of Criminal Justice (TDCJ or Agency) under the Texas Government Code, Chapter 2260. This rule is binding upon the TDCJ and is not intended to replace the TDCJ procedures relating to a breach of contract claim that is mandated by state or federal law, but is intended to provide procedures when none are so mandated.
(b) Policy. It is the policy of the Texas Board of Criminal Justice (TBCJ or Board) and the TDCJ to resolve a breach of contract claim as efficiently and as expeditiously as possible, consistent with prudent stewardship of the State of Texas assets.
[
(a)
Purpose. These rules
are intended to serve as guidelines for the negotiation and mediation
of a claim of breach of contract asserted by a contractor against
TDCJ under the Government Code, Chapter 2260. These rules are binding
upon TDCJ. These rules are not intended to replace agency procedures
relating to breach of contract claims that are mandated by state or
federal law, but are intended to provide procedures when none are
so mandated.]
[
(b)
Policy. It is the
policy of the Texas Board of Criminal Justice (the Board) and TDCJ
to resolve breach of contract claims as efficiently and as expeditiously
as possible, consistent with prudent stewardship of State of Texas
assets.]
(c) Applicability. This
rule
[
section
]
does not apply to an action of a unit of state government for which
a contractor is entitled to a specific remedy pursuant to state or
federal constitution or statute.
(1) This
rule
[
section
] does
not apply to a contract action proposed or taken by a unit of state
government for which a contractor receiving Medicaid funds under that
contract is entitled by state statute or rule to a hearing conducted
in accordance with
Texas
Government Code, Chapter 2001.
(2) This
rule
[
section
] does
not apply to contracts:
(A) between a unit of state government and the federal government or its agencies, another state or another nation;
(B) between two (2) or more units of state government;
(C) between a unit of state government and a local governmental body, or a political subdivision of another state;
(D) between a subcontractor and a contractor;
(E) subject to §201.112 of the Texas Transportation Code;
(F) within the exclusive jurisdiction of state or local regulatory bodies;
(G) within the exclusive jurisdiction of federal courts or regulatory bodies; or
(H) that are solely and entirely funded by federal
grant monies other than for a project defined in subsection (d)(9)
of this
rule.
[
section.
]
(d) Definitions. The following words and terms, when used in this
rule,
[
section,
] shall have the
following meaning, unless the context clearly indicates otherwise.
[
(1)
Chief administrative
officer--The executive director responsible for the day-to-day operations of TDCJ.]
(1)
[
(2)
] Claim--A demand for damages by the contractor based upon
the
TDCJ's alleged breach of the contract.
(2)
[
(3)
] Contract--A written contract between
the
TDCJ and a contractor by the terms
of which the contractor agrees either:
(A) to provide goods or services, by sale or lease, to or for the TDCJ; or
(B) to perform a project as defined by Texas Government Code, §2166.001.
(3)
[
(4)
] Contractor--Independent contractor who has entered into a contract directly with
the
TDCJ. The term does not include:
(A) the contractor's subcontractor, officer, employee, agent or other person
who furnishes
[
furnishing
]
goods or services to a contractor;
(B) an employee of a unit of state government; or
(C) a student at an institution of higher education.
(4) Counterclaim--A demand by the TDCJ arising out of the contract.
(5) Day--A calendar day. If an act is required to occur on a date that falls on a Saturday, Sunday or holiday, the first working day that is not one of those days shall be counted as the required day for purpose of that act.
[
(5)
Counterclaim--A demand
by TDCJ based upon the contractor's claim.]
[
(6)
Day--a calendar day.
If an act is required to occur on a day falling on a Saturday, Sunday
or holiday, the first working day which is not one of these days should
be counted as the required day for purpose of that act.]
(6)
[
(7)
] Event--An act or omission
or a series of acts or omissions giving rise to a claim. The following
list contains illustrative examples of events, subject to the specific
terms of the contract.
(A) Examples of events in the context of a contract for goods or services:
(i) the failure of the TDCJ to timely pay for goods and services;
(ii) the failure of the TDCJ to pay the balance due and owing on the contract price, including orders for additional work, after deducting any amount owed the TDCJ for work not performed under the contract or in substantial compliance with the contract terms;
(iii) the suspension, cancellation or termination of the contract;
(iv) the final rejection of the goods or services tendered by the contractor, in whole or in part;
(v) the repudiation of the entire contract prior to or at the outset of performance by the contractor; or
(vi) the withholding liquidated damages from final payment to the contractor.
(B) Examples of events in the context of a project:
(i) the failure to timely pay the unpaid balance of the contract price following final acceptance of the project;
(ii) the failure to
make
[
take
]
timely progress payments required by the contract;
(iii) the failure to pay the balance due and owing
on the contract price, including orders for additional work, after
deducting work not performed under the
contract;
[
contract or in substantial compliance with the contract terms;
]
(iv) the failure to grant time extensions to which the contractor is entitled under the terms of the contract;
(v) the failure to compensate the contractor for occurrences for which the contract provides a remedy;
(vi) the suspension, cancellation or termination of the contract;
(vii)
the
rejection by
the
TDCJ, in whole or in part, of the
"work,"
[
"work",
]
as defined by the contract, tendered by the contractor;
(viii) the repudiation of the entire contract prior to or at the outset of performance by the contractor;
(ix) the withholding liquidated damages from final payment to the contractor; or
(x)
the
refusal, in whole or in part, of
a written request made by the contractor in strict accordance with
the contract to adjust the contract price, the contract
time
[
time,
] or the scope of work.
(7) Executive Director (ED)--The chief administrative officer responsible for the day-to-day operations of the TDCJ.
(8) Parties--The
TDCJ and the
contractor
[
and TDCJ
] who have entered into a contract in connection
with which a [
claim of
] breach of contract
claim
has
been filed under this
rule.
[
section.
]
(9) Project--As defined in Texas Government Code, §2166.001, a building construction project that is financed wholly or partly by a specific appropriation, bond issue or federal money, including the construction of:
(A) a building, structure, or appurtenant facility or utility, including the acquisition and installation of original equipment and original furnishing; and
(B) an addition to, or alteration, modification, rehabilitation
or repair of an existing building,
structure
[
structure,
]
or appurtenant facility or utility.
(10) Services--The furnishing of skilled or unskilled labor or consulting or professional work, or a combination thereof, excluding the labor of an employee of a unit of state government.
(e) Prerequisites to Suit. The procedures contained in this
rule
[
section
] are exclusive and required prerequisites to suit under the
Texas
Civil Practice & Remedies Code, Chapter
107
[
107,
] and the
Texas
Government Code, Chapter 2260.
[
(f)
Sovereign Immunity.
This section does not waive TDCJ's sovereign immunity to suit or liability.]
(f)
[
(g)
]
Notice of Breach
of Contract Claim.
[
Notice of Claim of Breach of Contract.
]
(1) A contractor, asserting a breach of contract claim under the Texas Government Code, Chapter 2260 shall file notice of the claim as provided by this subsection.
[
(1)
A contractor asserting
a claim of breach of contract under the Texas Government Code, Chapter
2260, shall file notice of the claim as provided by this section.]
(2) The notice of claim shall:
(A) be in writing and signed by the contractor or the contractor's authorized representative;
(B) be delivered by hand, certified mail return receipt requested or other verifiable delivery service, to the TDCJ Director of Contracts and Procurement, Two Financial Plaza, Suite 300A, Huntsville, Texas 77340; and
[
(B)
be delivered by hand,
certified mail return receipt requested, or other verifiable delivery
service, to the chairperson of the Contract Disputes Committee, Assistant
Director of Purchasing and Leases, Texas Department of Criminal Justice,
Spur 59 off Highway 75 North, Administration Building, Room 137, Huntsville,
Texas 77340; and]
(C) state in detail:
(i) the nature of the alleged breach of contract, including
the date of the event [
that
] the contractor asserts as
the basis of the claim and each contractual provision allegedly breached;
(ii) a description of damages that resulted from the alleged breach, including the amount and method used to calculate those damages; and
(iii) the legal theory of
recovery (i.e., breach of contract)
[
recovery, i.e., breach of contract,
]
including the causal relationship between the alleged breach and the
damages claimed.
(3) In addition to the mandatory contents of the notice of claim as required by paragraph (2) of this subsection, the contractor may submit supporting documentation or other tangible evidence to facilitate the TDCJ's evaluation of the contractor's claim.
(4) The notice of claim shall be delivered no later than 180 days after the date of the event that the contractor asserts as the basis of the claim.
(g)
[
(h)
] Agency Counterclaim.
(1)
The TDCJ,
[
TDCJ
] asserting
a counterclaim under the
Texas
Government Code, Chapter
2260, shall file notice of the counterclaim as provided by this
subsection.
[
section.
]
(2) The notice of counterclaim shall:
(A) be in writing;
(B) be delivered by hand, certified mail return receipt
requested or other verifiable delivery service to the contractor or
representative of the contractor who signed the notice of
breach of contract claim; and
[
claim of breach of contract; and
]
(C) state in detail:
(i) the nature of the counterclaim;
(ii) a description of damages or offsets sought, including the amount and method used to calculate those damages or offsets; and
(iii) the legal theory supporting the counterclaim.
(3) In addition to the mandatory contents of the notice of counterclaim required by paragraph (2) of this subsection, the TDCJ may submit supporting documentation or other tangible evidence to facilitate the contractor's evaluation of the TDCJ's counterclaim.
(4) The notice of counterclaim shall be delivered to
the contractor no later than
60
[
90
] days after
the
TDCJ's receipt of the contractor's notice of claim.
(5) Nothing herein precludes the TDCJ from initiating a lawsuit for damages against the contractor in a court of competent jurisdiction.
(h)
[
(i)
]
Contract Disputes.
[
Contract Disputes Committee (the Committee).
]
(1) To every extent possible, a dispute with a contractor should be resolved during the course of the contract. However, after completion of a contract, or when required for orderly performance prior to completion, if a resolution of a contractor's dispute has not been resolved by the appropriate TDCJ division, the contractor should file a Notice of Breach of Contract Claim with the Director of Contracts and Procurement per the requirements in subsection (f) of this rule.
(2) The ED shall name the members and chairman of a Contract Dispute Committee (the Committee), which will serve at the ED's pleasure. It shall be the responsibility of the Committee to gather information, study relevant facts and documentation and meet with contractors and, if requested, to resolve any disputes between a TDCJ division and the contractor, as set forth by the claim.
[
(1)
The executive director
will name the members and chairman of a Committee or Committees to
serve at his or her pleasure. It will be the responsibility of the
Committee to gather information, study, and meet informally with contractors,
if requested, to resolve any disputes that may exist between the department
office and the contractor, and which result in one or more contract
claims or disputes.]
[
(2)
TDCJ stresses that,
to every extent possible, disputes between a contractor and TDCJ employee,
design professional, or other contractor in charge of a project or
providing services in connection with a project should be resolved
during the course of the contract. If, however, after completion of
a contract, or when required for orderly performance prior to completion,
resolution of a breach of contract claim is not reached with the department
office, the contractor should file a request with the Committee chairperson.
In no event may such a claim be filed with the department more than
180 days after the date of the event giving rise to the claim.]
(3) The Committee
shall
[
will
]
secure detailed reports and recommendations from the
appropriate
TDCJ division
[
responsible department office,
] and may confer with
TDCJ personnel, other persons and outside entities
that
[
any other department office
] it deems appropriate.
(4) The Committee
shall
[
will
]
then afford the contractor an opportunity for a meeting
or hearing
to
[
informally
] discuss the
claim
[
disputed
matters
] and to provide the contractor an opportunity to present
additional relevant information and respond to information the Committee
has received from the
appropriate TDCJ division.
[
department
office.
]
(5) The Committee chairperson
shall
[
will
]
give written notice of the Committee's proposed disposition of the
claim to the
contractor and the appropriate TDCJ division.
[
contractor.
] If that disposition is acceptable, the contractor
shall advise the Committee chairperson in writing within 20 days of
the date such notice is received, and the chairperson
shall
[
will
] forward the agreed disposition to the
ED
[
executive
director
] for a final and binding order on the claim. If the
contractor
or TDCJ division
is dissatisfied with the proposal
of the Committee,
either party
[
the contractor
]
may appeal to the
ED.
[
executive director. If the
department office is dissatisfied with the proposal of the Committee,
the department office may appeal to the executive director.
]
(i) Appeal to the Executive Director.
(1) An aggrieved contractor or TDCJ division may file a written appeal of the Committee's decision to the ED within 20 days of the receipt of the Committee's decision. The contractor's appeal shall be submitted in writing and signed by the contractor or the contractor's authorized representative and delivered by hand, certified mail return receipt requested or other verifiable delivery service to the TDCJ Executive Director, P.O. Box 99, Huntsville, Texas 77342. The TDCJ division's appeal shall be in writing and signed by the appropriate Division Director. The ED or designee may uphold, reverse, or modify the decision of the Committee.
(2) The ED or designee shall give written notice of the disposition of the claim to the contractor and the appropriate TDCJ division. If that disposition is acceptable to the contractor, the contractor shall advise the ED, in writing, within 20 days of the date such notice is received. The TDCJ division shall have no right to object to the disposition of the claim or dispute made by the ED or designee.
(j) Appeal to the TBCJ with Respect to Certain Contracts. A contractor who operates or manages a secure correctional facility of the TDCJ may appeal to the TBCJ for final determination, within 20 days of the ED's decision, any imposed sanction under the contract. The appeal shall be submitted in writing and signed by the contractor or the contractor's authorized representative and delivered by hand, certified mail return receipt requested or other verifiable delivery service to the TBCJ office, P.O. Box 13084, Austin, Texas 78711.
[
(j)
]
Appeal to the Executive
Director]
[
(1)
An aggrieved contractor or department
office may file a written appeal of the Committee's decision to the
executive director within ten (10) days of the Committee's decision.
The executive director or his or her designee may uphold, reverse
or modify the decision of the Committee.]
[
(2)
The executive director or his or her
designee will give written notice of the proposed disposition of the
claim or dispute to the contractor and department office. If that
disposition is acceptable to the contractor, the contractor shall
advise the executive director, in writing, within 20 days of the date
such notice is received. The department office shall have no right
to object to the disposition of the claim or dispute made by the executive
director or his or her designee.]
[
(3)
Appeal to the Texas Board of Criminal
Justice With Respect To Certain Contracts. A contractor that manages
a facility that houses inmates of TDCJ or releasees under the supervision
of TDCJ may appeal any imposed sanction under the contract to the
Texas Board of Criminal Justice.]
(k) Request for Voluntary Disclosure of Additional Information.
(1) Upon the filing of a claim or counterclaim,
each party
[
parties
] may request to review and copy information
in the
possession, custody or
[
possession or custody
or subject to the
] control of the other party that pertains
to the contract claimed to have been breached, including, without
limitation:
(A) accounting records;
(B)
[
correspondence, including, without limitation,
]
correspondence between
the
TDCJ and outside consultants
it
used when
[
utilized in
] preparing its bid
solicitation or any part thereof or in administering the contract,
and correspondence between the contractor and its subcontractors,
materialmen
[
materialmen,
] and vendors;
(C) schedules;
(D) the parties' internal memoranda; and
(E) documents created by the contractor in preparing its offer to the TDCJ and documents created by the TDCJ in analyzing the offers it received in response to a solicitation.
(2)
This subsection
[
Subsection (a)
of this section
] applies to all information in the parties'
possession regardless of the manner in which it is recorded, including,
without limitation, paper and electronic media.
(3)
The contractor and
the
TDCJ may seek
additional information directly from
third-parties,
[
third
parties,
] including, without limitation,
the
TDCJ's
third-party consultants and the contractor's subcontractors.
(4) Nothing in this
subsection
[
section
]
requires any party to disclose
any
[
the requested
]
information or any matter that is privileged under Texas law.
(5)
Requests
[
Material
] submitted pursuant to this subsection
for material
[
and
]
claimed to be confidential by the contractor shall be handled pursuant
to the requirements of the
Public Information
Act.
(l) Duty to
Negotiate.
[
negotiate.
]
The parties shall negotiate in accordance with the timetable set forth
in subsection (m) of this
rule
[
section to attempt
]
to resolve all claims and counterclaims. No party is obligated to
settle with the other party as a result of the negotiation.
(m) Negotiation Timetable.
(1) Following receipt of a contractor's notice of claim,
the [
Contract Disputes
] Committee [
(the "Committee")
]
shall review the contractor's claim(s) and
the
TDCJ's counterclaim(s),
if any, and
shall
initiate negotiations with the contractor
[
to attempt
] to resolve the claim(s) and counterclaim(s).
(2) Subject to paragraph (3) of this subsection, the
parties shall begin negotiations within a reasonable period of time,
not to exceed
120 days following the date the TDCJ receives the
contractor's notice of claim.
[
60 days following the later
of:
]
[
(A)
the date of termination
of the contract;]
[
(B)
the completion date,
or substantial completion date in the case of construction projects,
in the original contract; or ]
[
(C)
the date TDCJ receives
the contractor's notice of claim.]
[
(3)
TDCJ may delay negotiations
until after the 180th day after the date of the event giving rise
to the claim of breach of contract by:]
[
(A)
delivering written notice to the contractor
that the commencement of negotiations will be delayed; and]
[
(B)
delivering written notice to the contractor
when TDCJ is ready to begin negotiations.]
(3)
[
(4)
] The parties may conduct
negotiations according to an agreed schedule
provided
[
as
long as they begin
] negotiations
begin
no later than
the deadlines set forth in paragraphs (2) and (3) of this subsection,
whichever is applicable.
(4)
[
(5)
] Subject to paragraph
(5) of this subsection, the parties shall complete the negotiations
[
that are
] required by this
subsection
[
section
] as a prerequisite to a contractor's request for contested
case hearing no later than 270 days after
the
TDCJ receives
the contractor's notice of claim.
(5)
[
(6)
] The parties may agree
in writing to extend the time for negotiations on or before the 270th
day after
the
TDCJ receives the contractor's notice of
claim. The agreement shall be signed by representatives of the parties
with authority to bind each respective party and shall provide for
the extension of the statutory negotiation period until a
certain
date.
[
date certain.
] The parties may enter into
a series of written extension agreements that comply with the requirements
of this
rule.
[
section.
]
(6)
[
(7)
] The contractor may
request, in writing, a contested case hearing before the State Office
of Administrative Hearings
(SOAH)
[
("SOAH")
]
pursuant to subsection
(q)
[
(r)
] of this
rule
[
section
] after the 270th day after
the
TDCJ receives
the contractor's notice of claim or the expiration of any extension
agreed to under paragraph (5) of this subsection.
(7)
[
(8)
] The parties may agree to mediate the dispute at any time before the
120th
[
270th
] day after
the
TDCJ receives the contractor's notice
of claim or before the expiration of any extension agreed to by the
parties pursuant to paragraph (5) of this subsection. The mediation
shall be governed by subsections
(r), (s), (t), (u), (v) and
(w) of this rule.
[
(s), (t), (u), (v), (w), and (x) of
this section.
]
(8)
[
(9)
] Nothing in this
subsection
[
section
] is intended to prevent the parties from
agreeing to commence negotiations earlier than the deadlines established
in paragraphs (2) and (3) of this subsection, or from continuing or
resuming negotiations after the contractor requests a contested case
hearing before
the
SOAH.
(n) Conduct of Negotiation.
(1)
[
Negotiation is a consensual bargaining process
in which the parties attempt to resolve a claim and counterclaim.
]
A negotiation under this subchapter may be conducted by any method,
technique
[
technique,
] or procedure authorized under
the contract or agreed upon by the parties, including, without limitation,
negotiation in person, by telephone, by correspondence, by video
conference
[
conference,
] or by any other method
which
[
that
] permits the parties to identify [
their
] respective
positions, discuss [
their
] respective differences, confer
with [
their
] respective advisers, exchange offers of
settlement
[
settlement,
] and settle.
(2) The parties may conduct negotiations with the assistance of one
(1)
or more neutral
third-parties.
[
third
parties.
] If the parties choose to mediate
the
[
their
] dispute, the mediation shall be conducted in accordance with
subsections
(r), (s), (t), (u), (v) and (w) of this rule.
[
(s), (t), (u), (v), (w), and (x) of this section.
] Parties may
choose an assisted negotiation process other than mediation, including,
without limitation, processes such as those described in subsections
(x), (y) and (z) of this rule.
[
(aa),(bb),(cc),and (dd)
of this section.
]
(3)
To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange
relevant documents that support
the
[
their
]
respective claims, defenses, counterclaims or positions.
(4) Material submitted pursuant to this subsection and claimed to be confidential by the contractor shall be handled pursuant to the requirements of the Public Information Act.
[
(o)
Settlement Approval
Procedures. The parties' settlement approval procedures shall be disclosed
prior to, or at the beginning of, negotiations. To the extent possible,
the parties shall select negotiators who are knowledgeable about the
subject matter of the dispute, who are in a position to reach agreement,
and who can credibly recommend approval of an agreement.]
(o)
[
(p)
] Settlement Agreement.
(1) A settlement agreement may resolve an entire claim or any designated and severable portion of a claim.
(2) To be enforceable, a settlement agreement
shall
[
must
] be in writing and signed by representatives of the contractor and
the
TDCJ who have authority to bind each respective party.
(3) A partial settlement does not waive a
party's
[
parties'
] rights under the
Texas
Government Code,
Chapter
2260
[
2260,
] as to the parts of the
claims or counterclaims that are not resolved.
(p)
[
(q)
] Costs of Negotiation. Unless the parties agree
otherwise
[
otherwise,
]
in writing, each party shall be responsible for its own costs incurred
in connection with a negotiation, including, without limitation,
attorney fees, consultant fees and expert fees.
[
the costs of attorney's
fees, consultant's fees and expert's fees.
]
(q)
[
(r)
] Request for Contested
Case Hearing.
(1) If a [
claim for
] breach of contract
claim
is not resolved in its entirety through negotiation, mediation
or other assisted negotiation process in accordance with this
rule
[
section
] on or before the 270th day after
the
TDCJ
receives the notice of claim, or after the expiration of any extension
agreed to by the parties pursuant to subsection
(m)(5)
[
(m)(6)
] of this
rule,
[
section,
] the contractor
may file a request with
the
TDCJ for a contested case
hearing
[
haring
] before
the
SOAH.
(2) A request for a contested case hearing shall state
the legal and factual basis for the
claim
[
claim,
]
and shall be delivered to the
ED
[
chief administrative
officer of TDCJ
] or other officer designated in the contract
to receive notice within a reasonable time after the 270th day or
the expiration of any written extension agreed to pursuant to subsection
(m)(5)
[
(m)(6)
] of this
rule.
[
section.
]
(3)
The
TDCJ shall forward the contractor's
request for contested case hearing to
the
SOAH within a reasonable period of time, not to exceed
30
[
thirty
]
days, after receipt of the request.
(4) The parties may agree to submit the case to the SOAH before the 270th day after the notice of claim is received by the TDCJ if they have achieved a partial resolution of the claim or if an impasse has been reached in the negotiations and proceeding to a contested case hearing would serve the interests of justice.
(r)
[
(s)
] Mediation Timetable.
(1) The contractor and
the
TDCJ may agree to mediate the dispute at any time before the
120th
[
270th
] day after
the
TDCJ receives a notice of
a
breach of contract claim,
[
a claim of breach of contract,
]
or before the expiration of any extension agreed to by the parties
in writing.
(2) A contractor and the TDCJ may mediate the dispute even after the case has been referred to the SOAH for a contested case. The SOAH may also refer a contested case for mediation pursuant to its own rules and guidelines, whether or not the parties have previously attempted mediation.
(s)
[
(t)
] Conduct of Mediation.
[
(1)
Mediation is a consensual
process in which an impartial third party, the mediator, facilitates
communication between the parties to promote reconciliation, settlement,
or understanding among them. A mediator may not impose his or her
own judgment on the issues for that of the parties. The mediator shall
be acceptable to both parties.]
(1)
[
(2)
] The mediation is subject
to the provisions of the Governmental Dispute Resolution Act,
Texas
Government
Code, Chapter 2009. For purposes of this subchapter, "mediation" is
assigned the meaning set forth in the
Texas
Civil Practice
and Remedies Code, §154.023.
[
(3)
To facilitate a meaningful
opportunity for settlement, the parties, shall to the extent possible,
select representatives who are knowledgeable about the dispute, who
are in a position to reach agreement, or who can credibly recommend
approval of an agreement.]
[
(u)
Agreement to Mediate.
]
(2)
[
(1)
] Parties may agree to
use mediation as an option to resolve a breach of contract claim at
the time
the parties
[
they
] enter into the contract
and include a contractual provision to do so. The parties may mediate
a breach of contract claim even absent a contractual provision to
do so if both parties agree.
[
(2)
Any agreement to mediate should
include consideration of the following factors.
]
[
(A)
The source of the
mediator. Potential sources of mediators include governmental officers
or employees who are qualified as mediators under §154.052, Civil
Practice and Remedies Code, private mediators, SOAH, the Center for
Public Policy Dispute Resolution at The University of Texas School
of Law, an alternative dispute resolution system created under Chapter
152, Civil Practice and Remedies Code, or another state or federal
agency or through a pooling agreement with several state agencies.
Before naming a mediator source in a contract, the parties should
contact the mediator source to be sure that it is willing to serve
in that capacity. In selecting a mediator, the parties should use
the qualifications set forth in subsection (v) of this section.]
[
(B)
The time period for
the mediation. The parties should allow enough time in which to make
arrangements with the mediator and attending parties to schedule the
mediation, to attend and participate in the mediation, and to complete
any settlement approval procedures necessary to achieve final settlement.
While this time frame can vary according to the needs and schedules
of the mediator and parties, it is important that the parties allow
adequate time for the process.]
[
(C)
The location of the
mediation.]
[
(D)
Allocation of costs of the mediator.]
[
(E)
The identification
of representatives who will attend the mediation on behalf of the
parties, if possible, by name or position within TDCJ or contracting
entity. ]
[
(F)
The settlement approval
process in the event the parties reach agreement at the mediation.]
(3) In selecting a mediator, the parties should use the qualifications set forth in subsection (t) of this rule. The mediator shall be acceptable to both parties.
(t)
[
(v)
] Qualification and Immunity of the Mediator.
(1) The mediator shall possess the qualifications required under the Texas Civil Practice and Remedies Code, §154.052, be subject to the standards and duties prescribed by the Texas Civil Practice and Remedies Code, §154.053 and have the qualified immunity prescribed by the Texas Civil Practice and Remedies Code, §154.055, if applicable.
(2) The parties should decide whether, and to what extent, knowledge of the subject matter and experience in mediation would be advisable for the mediator.
(3) The parties should obtain from the prospective
mediator the ethical standards that
shall
[
will
]
govern the mediation.
(u)
[
(w)
] Confidentiality of Mediation and Final
Mediated
Settlement Agreement.
(1) A mediation conducted under this
rule
[
section
] is confidential in accordance with
the Texas
Government Code, §2009.054.
(2) The confidentiality of a final settlement agreement to which the TDCJ is a signatory that is reached as a result of the mediation is governed by the Texas Government Code, Chapter 552.
(v)
[
(x)
] Costs of Mediation. Unless the contractor and
the
TDCJ agree
otherwise
[
otherwise,
] in writing, each party shall be responsible for
its own costs incurred in connection with the mediation, including
costs of document reproduction for documents requested by such party,
attorney fees,
[
attorney's fees and
] consultant
fees
or expert fees. The costs of the mediation process itself shall
be divided equally between the parties.
(w)
[
(y)
]
Mediated Settlement
Agreement.
[
Initial Settlement Agreement.
] Any settlement
agreement reached during the mediation shall be signed by the representatives
of the contractor and
the TDCJ and
[
TDCJ, and
]
describe any procedures required to be followed by the parties in
connection with final approval of the agreement.
(x)
[
(z)
] Final Settlement Agreement.
(1) A final settlement agreement reached
through mediation
[
during, or as a result of, mediation,
]
that resolves an entire claim or any designated and severable portion
of a claim, shall be in writing and signed by representatives of the
contractor and
the
TDCJ who have authority to bind each
respective party.
(2) If the settlement agreement does not resolve all issues raised by the claim and counterclaim, the agreement shall identify the issues that are not resolved.
(3) A partial settlement does not waive a
party's
[
contractor's
] rights under the
Texas
Government Code, Chapter
2260
[
2260,
] as to the parts of the
claim that are not resolved.
(y)
[
(aa)
] Assisted Negotiation
Processes. Parties to a contract dispute under
the Texas
Government
Code, Chapter 2260 may agree, either contractually or when a dispute
arises, to use assisted negotiation [
(alternative dispute resolution)
] processes
(alternative dispute resolution)
in addition
to negotiation and mediation to resolve
the
[
their
]
dispute.
(z)
[
(bb)
] Factors
Supporting
[
supporting
] the Use of Assisted Negotiation Processes. The following
factors may help
the
parties decide whether one
(1)
or
more assisted negotiation processes could help resolve
the
[
their
] dispute:
(1) the parties recognize the benefits of an agreed resolution of the dispute;
(2) the expense of proceeding to contested case hearing at the SOAH is substantial and might outweigh any potential recovery;
(3) the parties want an expedited resolution;
(4) the ultimate outcome is uncertain;
(5) there exists factual or technical complexity or uncertainty
that
[
which
] would benefit from
the
expertise of a thirty-party expert for technical assistance or fact-finding;
(6) the parties are having substantial difficulty communicating effectively;
(7) a mediator
third-party
[
third party
]
could facilitate the parties' realistic evaluation of
the
[
their
] respective cases;
(8) there is an on-going relationship that exists between the parties;
(9) the parties want to retain control over the outcome;
(10) there is a need to develop creative alternatives to resolve the dispute;
(11) there is a need for flexibility in shaping relief;
(12)
a party has an unrealistic view of the merits of its case; or
[
the other side has an unrealistic view
of the merits of their case;
]
(13) the parties (or aggrieved persons) need to hear an evaluation of the case from someone other than their lawyers.
(aa)
[
(cc)
] Use of Assisted Negotiation
Processes. Any of the following methods, or a combination of these
methods, or any assisted negotiation process agreed to by the parties,
may be used in seeking resolution of disputes or other controversy
arising under
the Texas
Government Code, Chapter 2260.
If the parties agree to use an assisted negotiation procedure,
the
parties
[
they
] should agree in writing to a detailed
description of the process prior to engaging in the process.
(1)
Mediation.
[
(See the appropriate sections).
]
(2)
Early evaluation by a neutral third-party.
[
Early evaluation by a third-party neutral.
]
(A) This is a confidential conference
wherein
[
where
] the parties and [
their
] counsel present the
factual and legal bases of their claims and receive a non-binding
assessment by an experienced neutral
third-party
with subject-matter
expertise or with significant experience in the substantive area of
law involved in the dispute.
(B) After summary presentation, the
neutral
third-party
[
neutral
] identifies areas of agreement for possible stipulations,
assesses the strengths and weaknesses of each party's
position
[
position,
] and estimates, if possible, the likelihood of liability
and the dollar range of damages that appear reasonable to
the neutral third-party.
[
him or her.
]
(C)
This less complicated procedure may be appropriate
only for some issues in dispute where there are clear-cut differences
over the appropriate amount of damages. This process may be particularly
helpful when:
[
This is a less complicated procedure than
the min-trial, described in paragraph (4) of this subsection. It may
be appropriate for only some issues in dispute, for example, where
there are clear-cut differences over the appropriate amount of damages.
This process may be particularly helpful when:
]
(i) the parties agree that the dispute can be settled;
(ii) the dispute involves specific legal issues;
(iii) the parties disagree on the amount of damages;
(iv) the opposition has an unrealistic view of the dispute; or
(v) the neutral third-party is a recognized expert in the subject area or area of law involved.
(3) Neutral fact-finding by an expert.
(A) In this process, a neutral third-party expert studies
a particular issue and reports findings on that issue. The process
usually occurs after most discovery
concerning
[
in
]
the dispute has been completed and the significance of particular
technical or scientific issues is apparent.
(B) The parties may agree in writing that the fact-finding
shall
[
will
] be binding [
on them
] in later
proceedings (and entered into as a stipulation in the dispute if the
matter proceeds to contested case hearing), or that it
shall
[
will
] be advisory in nature, to be used only in further settlement
discussions between representatives of the parties. This process may
be particularly helpful when:
(i) factual issues requiring expert testimony may be dispositive of liability or damage issues;
(ii) the use of a neutral third-party is cost effective; or
(iii) the
neutral third-party's
[
neutral's
] findings could narrow factual issues for contested case hearing.
(4) Mini-trial.
(A) A mini-trial a summary proceeding before a representative of upper management from each party who has authority to settle and a neutral third-party selected by agreement of the parties. A mini-trial is usually divided into a limited information-exchange phase, the hearing and post-hearing settlement discussions. No written or oral statement made in the proceeding may be used as evidence or an admission in any other proceeding.
[
(A)
A min-trial is generally
a summary proceeding before a representative of upper management from
each party, with authority to settle, and a third-party neutral selected
by agreement of the parties. A mini-trial is usually divided into
three phases: a limited information exchange phase, the actual hearing,
and post-hearing settlement discussions. No written or oral statement
made in the proceeding may be used as evidence or an admission in
any other proceeding.]
(B) The
information-exchange
[
information-exchange
] stage should be brief, but it
shall
[
must
]
be sufficient for each party to understand and appreciate the key
issues.
[
issues involved in the case.
] At a minimum,
the
parties
should exchange key exhibits, introductory statements, and a summary
of witnesses' testimony.
(C) At the hearing, representatives of the parties
present a summary of the anticipated evidence and any legal issues
that
shall
[
must
] be decided before the case can be resolved. The
neutral
third-party [
neutral
]
presides over the presentation and may question witnesses and counsel,
as well as comment on the arguments and evidence. Each party may agree
to put on abbreviated direct and cross-examination testimony. The
hearing generally takes no longer than
one (1) to two (2)
[
1-2
] days.
(D) Settlement discussions, facilitated by the [
third-party
] neutral
third-party,
take place after the hearing. The parties may ask the neutral
third-party
to formally evaluate the evidence and arguments and
provide
[
give
]
an advisory opinion as to the issues in the case. If the parties cannot
reach an agreed resolution to the dispute, either side may declare
the mini-trial terminated and proceed to
a resolution of
[
resolve
] the dispute by other means.
(E) Mini-trials may be appropriate when:
(i) the dispute is at a stage where substantial costs
can be saved by a resolution based on limited information
gathered;
[
gather;
]
(ii) the matter justifies the senior executive's time required to complete the process;
(iii) the issues [
involved
] include highly
technical mixed questions of law and fact;
(iv) the matter involves trade secrets or other confidential or proprietary information; or
(v) the parties seek to narrow the large number of issues in dispute.
(bb)
[
(dd)
] Approval. Any settlement reached pursuant to this
rule
[
section
] may
require the approval of the
TBCJ,
[
Texas Board of
Criminal Justice,
] the Attorney General of Texas, the Governor
of Texas, or the Texas Legislature, as required by
TBCJ
[
Board
] policy, statutes and rules of the State of Texas, and
the
General Appropriations Act.
(cc)
[
(ee)
] Intent. It is the intent of
the
TDCJ to comply with the provisions of
the
Texas
Government Code, Chapter 2260. To the extent that any term or provision
of this rule is in conflict with Chapter 2260, the terms and provisions
of Chapter 2260 shall prevail.
(dd)
[
(ff)
] Disclaimer.
The
TDCJ and the
TBCJ
[
Board
] do not waive sovereign
immunity from suit or liability due to the establishment of this rule.
The
TDCJ and the
TBCJ
[
Board
] consider
the procedure described in Chapter 2260 and this rule to be the exclusive
means of resolving breach of contract claims against state agencies.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 13, 2007.
TRD-200702985
Melinda Hoyle Bozarth
General Counsel
Texas Department of Criminal Justice
Earliest possible date of adoption: August 26, 2007
For further information, please call: (512) 463-0422