Texas ADR Statutes
Resource Support for ADR Legislation
In 1996, the Center coordinated the preparation of legislation designed to eliminate legal barriers and to increase the gains from government and public policy alternative dispute resolution (ADR) use in Texas. As a result, two important bills were unanimously passed into law in 1997: the Governmental Dispute Resolution Act (GDR Act) and the Negotiated Rulemaking Act (NR Act). In 1999, the GDR Act was amended to include local governments and other governmental bodies as defined by the Texas Public Information Act (Tex Gov’t Code, § 552.003). These statutes, which incorporate provisions from the 1987 Texas Alternative Dispute Resolution Act (ADR Act), now provide a framework for much greater use of ADR by governmental entities in a broad range of circumstances.
Governmental Dispute Resolution Act
The Governmental Dispute Resolution Act (Tex Gov’t Code, Chapter 2009) provides explicit statutory authorization and encouragement of governmental entity ADR use. The Act conveys the Legislature’s endorsement of ADR use by these entities and establishes ADR as an appropriate method of resolving public disputes. Key provisions include:
- Declares that it is Texas policy that entities use ADR procedures in appropriate operations and programs;
- Grants budgetary authority to entities to pay for items related to implementing the Act;
- Authorizes entities to obtain ADR services from other governmental entities, agency “pooling” agreements, community Dispute Resolution Centers and private providers;
- Applies the 40-hour training requirement and other Texas ADR Procedures Act standards and duties to governmental impartial third parties;
- Extends confidentiality provisions of the Texas ADR Procedures Act to governmental ADR; and
- Grants State Office of Administrative Hearings administrative law judges’ authority to conduct ADR proceedings and refer contested cases to ADR.
Negotiated Rulemaking Act
The Negotiated Rulemaking Act(Tex Gov’t Code, Chapter 2008) encourages Texas agencies to use negotiated rulemaking (“reg-neg”) and outlines how the process should be used. This Act:
- Clarifies that reg-neg is a voluntary addition to the Texas Administrative Procedures Act;
- Grants explicit authority and encouragement for Texas entities to use negotiated rulemaking for drafting a proposed rule and outlines specific steps taken in a negotiated rulemaking;
- Establishes factors that the entity must consider before deciding to use the process and requires use of a neutral “convener” to help evaluate whether the process is appropriate;
- Requires the entity to publish notice and consider comments before using reg-neg;
- Grants authority to entities to support the participation of individuals to represent necessary interests who face resource constraints;
- Applies the 40-hour training requirement and other Texas ADR Procedures Act standards and duties to reg-neg facilitators;
- Requires that reg-neg committees operate on a full consensus basis; and
- Extends confidentiality provisions of the Texas ADR Procedures Act to negotiated rulemakings.
Texas Alternative Dispute Resolution Act
The Texas Alternative Dispute Resolution Act(Civ. Prac. & Rem. Code Ann., Chapter 154) authorizes the referral of pending disputes by Texas courts to ADR procedures and establishes ADR confidentiality standards. This Act:
- Expresses that the policy of the state is to encourage the peaceable resolution of disputes and the early settlement of litigation through voluntary settlement procedures;
- Authorizes courts to refer cases to an ADR system established under the 1983 ADR Systems and Financing Act (Dispute Resolution Centers), a dispute resolution organization, or any forum for voluntary settlement of disputes through intervention of an impartial third party;
- Sets out forms of non-binding ADR to which a court can refer including mediation, mini-trial, moderated settlement conference, summary jury trial, and arbitration;
- Provides for the appointment, qualifications, standards and duties, compensation, and qualified immunity of impartial third parties;
- Enforces the effect of a written settlement in the same manner as any other written contract; and
- Establishes broad confidentiality provisions in an ADR procedure with few exceptions, i.e., report of abuse and neglect pursuant to the Family Code, and the subject to or exception of disclosure for a final written agreement to which a governmental body is a signatory pursuant to the Public Information Act.
Report to Texas Legislature: Survey of State Agency ADR Use
The Center published a 1998 Report of Survey Results of Alternative Dispute Resolution Use in Texas State Agencies, which includes results, findings, and current trends in agency alternative dispute resolution. This report was developed in response to the Governmental Dispute Resolution Act, which authorizes the Center to collect and analyze information about state agencies’ ADR programs and report its conclusions to agencies and the Legislature. The survey consisted of two parts: the Employment Survey, mailed to agency human resources departments, inquired about use of ADR in employee grievances and disputes; and the Legal Survey, mailed to agency legal counsel, inquired about use of ADR in contracts, rulemaking, contested cases, and litigation. Among many other findings, the Report states that ADR use in agencies has increased significantly since passage of ADR legislation in 1997 and that a wide variety of agencies would like assistance to increase their use of ADR in contested cases and contract disputes.
Publication of 1997, 1999, & 2001 Texas ADR Legislative Reports and
Commentary on ADR Statutes
All legislative reports contain summary information of all new ADR statutes and a survey of significant bills filed but not passed. The 1997 Texas ADR Legislative Report contains brief analyses of the Governmental Dispute Resolution Act and the Negotiated Rulemaking Act. The 1999 report included a brief analysis of the revision and extension of the Governmental Dispute Resolution Act to all governmental bodies, as defined in the Texas Public Information (or Open Records) Act. The Center also publishes a section-by-section analysis of two governmental ADR statutes, Commentary on the Government Dispute Resolution Act and the Negotiated Rulemaking Act. This analysis also appeared in Rau & Sherman’s Texas ADR and Arbitration Statutes and Commentary, 1997 and 2000 editions.