Sen. Craig Estes (R-Wichita Falls) has filed legislation to give additional due process protections to a person under investigation by a state agency. SB 1396 requires a state agency investigation to be expressly authorized by its enabling statute to institute an investigation against a responding party. The bill establishes procedures allowing a party to object to the agency’s request on the basis that it is overly broad, unduly burdensome, irrelevant, vague, or based on some other ground that would give rise to a valid objection under the Texas Rules of Civil Procedure. It also enables a party to withhold requested information if it is a trade secret or protected by any privilege recognized by law, the Texas Rules of Civil Procedure, or the Texas Rules of Evidence. A state agency may initiate a contested case to obtain a response from a party that has failed to respond to the agency’s request or a ruling on an objection or assertion of privilege. If the party is ordered to produce the information as a result of the contested case hearing, the agency may not seek administrative penalties, attorney’s fees, or other remedies. The party may appeal the hearing examiner’s determination as in any other contested case.
In addition, a party objecting to an agency request may file a petition in Travis County district court for an order to set aside, modify, or limit an agency request or response to a request. On good cause shown, the court may issue necessary orders, including a protective order, injunction, or declaratory relief (but not damages or attorney’s fees). Filing a petition stays the state agency investigation or part of the investigation that is the subject of the petition and relieves the petitioner of any obligation to respond to the agency request.
The bill further entitles a party to be represented by counsel and cross-examine witnesses, prohibits an agency from conducting an unannounced office inspection of the party, requires testimony under oath and transcription of all testimony, allows witnesses to be accompanied, represented, and advised by an attorney, and permits a witness or witness’s attorney to object to questioning and refuse to answer questions on grounds of privilege. Information provided to a state agency in the course of an investigation is exempt from disclosure under the Open Records Act and are not discoverable by a third party in a civil lawsuit (with limited exceptions).