CHAPTER 2104. CONSERVATORSHIP AS A RESULT OF FISCAL MISMANAGEMENT

GOVERNMENT CODE

TITLE 10. GENERAL GOVERNMENT

SUBTITLE C. STATE ACCOUNTING, FISCAL MANAGEMENT, AND PRODUCTIVITY

CHAPTER 2104. CONSERVATORSHIP AS A RESULT OF FISCAL MISMANAGEMENT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 2104.001. DEFINITIONS. In this chapter:

(1) "Conservator" means a person appointed by the governor to

act as the conservator of a state agency or public junior college

in accordance with this chapter.

(2) "Gross fiscal mismanagement" includes:

(A) failure to keep adequate fiscal records;

(B) failure to maintain proper control over assets;

(C) failure to discharge fiscal obligations in a timely manner;

and

(D) misuse of state funds.

(3) "State agency" means a department, commission, board,

office, or other agency, including a university system or an

institution of higher education other than a public junior

college, that:

(A) is in the executive branch of state government;

(B) is created by statute; and

(C) does not have statutory geographical boundaries limited to a

part of the state.

(4) "State fiscal management policies" means laws or rules

relating to:

(A) fiscal recordkeeping and reporting;

(B) use or control of state property;

(C) timely discharge of fiscal obligations; or

(D) use of state funds.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.002. APPLICABILITY OF CHAPTER. This chapter does not

apply to an agency that is under the direction of an elected

officer, board, or commission.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

SUBCHAPTER B. CONSERVATORS

Sec. 2104.011. APPOINTMENT OF CONSERVATOR; TERMS. (a) A

conservator is appointed by the governor with the advice and

consent of the senate.

(b) To be eligible for appointment as a conservator, a person

must be qualified, by experience or education, in administration

or fiscal management.

(c) A public officer is eligible to serve as a conservator.

(d) A conservator's term expires on the earlier of the date the

conservatorship for which the conservator is appointed dissolves

or the second anniversary of the date of the conservator's

appointment. A conservator whose term expires before the

conservatorship is dissolved may be reappointed to continue the

conservatorship.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1995, 74th Leg., ch. 22, Sec. 1, eff. April

24, 1995; Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May 28,

1999.

Sec. 2104.012. COMPENSATION OF CONSERVATOR. (a) A conservator

appointed to act as the conservator of a state agency or public

junior college under this chapter is entitled to receive a salary

for performing those duties that is equal to the salary of the

chief administrative officer of the state agency or public junior

college under conservatorship.

(b) The state agency or public junior college under

conservatorship shall pay the salary of the conservator from

money appropriated or otherwise available to the state agency or

public junior college, except to the extent that money to pay the

salary is specifically appropriated or made available through the

budget execution process for that purpose.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.013. EXPENSES OF CONSERVATOR. (a) A limit provided

by appropriation on the amount of reimbursement that state

officers or members of state boards and commissions may generally

receive does not apply to reimbursement of the reasonable and

necessary expenses incurred by a conservator in the course of

performing duties under this chapter.

(b) The reasonable and necessary expenses incurred by a

conservator in the course of performing duties under this chapter

shall be paid from funds appropriated or otherwise available to

the agency or public junior college under conservatorship, except

to the extent that money to pay those expenses is specifically

appropriated or made available through the budget execution

process for that purpose.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1995, 74th Leg., ch. 22, Sec. 2, eff. April

24, 1995; Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May 28,

1999.

Sec. 2104.014. RULES. A conservator may adopt and enforce rules

necessary to administer the conservatorship for which the

conservator is appointed under this chapter. A conservator may

adopt initial rules on an emergency basis for the period

prescribed by Section 2001.034 if the conservator determines that

rules with immediate effect are necessary to ameliorate the

effect of the gross fiscal mismanagement.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.015. ADMINISTRATIVE SERVICES. (a) The governor shall

provide a conservator with administrative services.

(b) If necessary, the governor may use appropriations made under

Section 403.075 to provide the administrative services.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

SUBCHAPTER C. CONSERVATORSHIP OF STATE AGENCIES

Sec. 2104.021. MISMANAGEMENT FINDING; RECOMMENDATION;

CONSERVATORSHIP ORDER. (a) The legislative audit committee, on

finding that a condition of gross fiscal mismanagement exists in

a state agency, may:

(1) notify the governor of the finding and recommend that the

governor appoint a conservator for the agency; or

(2) recommend to the agency that it agree within a specified

time to enter into a rehabilitation plan in accordance with

Section 2104.0215.

(b) After receipt of a notice under Subsection (a), the governor

by proclamation may appoint a conservator, in accordance with the

recommendation, to act as conservator of the agency.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.0215. REHABILITATION PLAN IN LIEU OF CONSERVATORSHIP.

(a) A state agency that agrees to enter into a rehabilitation

plan shall engage the services of an independent management

consulting team approved by the governor and by the presiding

officer and assistant presiding officer of the legislative audit

committee. The independent management consulting team may include

the state auditor, one or more appropriate state agencies, and

private consultants.

(b) The state agency entering into the rehabilitation plan shall

pay the costs of the independent management consulting team's

services from money appropriated or otherwise available to the

agency, except to the extent that money to pay the costs is

specifically appropriated or made available through the budget

execution process for that purpose.

(c) The independent management consulting team shall assist the

state agency in developing its rehabilitation plan. The

rehabilitation plan must include specific performance goals and

the period in which the goals must be achieved. The plan must be

approved by the governing body of the agency and by the governor

and the legislative audit committee.

(d) If the state agency does not adopt the rehabilitation plan

within a reasonable time or if the state auditor determines and

informs the governor that the state agency is not making

sufficient progress in implementing its rehabilitation plan, the

governor may appoint a conservator for the agency under Section

2104.021.

(e) Participation by the state auditor under Subsection (a) is

subject to approval by the legislative audit committee for

inclusion in the audit plan under Section 321.013(c).

Added by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May 28,

1999. Amended by Acts 2003, 78th Leg., ch. 785, Sec. 34, eff.

Sept. 1, 2003.

Sec. 2104.022. ASSUMPTION OF POLICY FUNCTIONS. The conservator

appointed by the governor under Section 2104.021 shall assume all

the powers and duties of the officers responsible for policy

direction of the state agency that is the subject of the

proclamation, and those officers may not act unless authorized by

the conservator.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.023. CONSERVATORSHIP POWERS AND DUTIES. (a) The

conservator of a state agency under this subchapter shall ensure

that the agency complies with state fiscal management policies.

(b) The conservator of a state agency under this subchapter,

may:

(1) terminate the employment of any employee whose conduct the

conservator determines contributed to the condition that caused

the conservatorship;

(2) employ personnel for the agency;

(3) change the agency's organization or structure as necessary

to alleviate the conditions that caused the conservatorship; and

(4) contract with persons for management or administrative

services necessary to effect the conservatorship.

(c) The conservator may delegate any part of the conservator's

powers or duties as conservator other than rulemaking authority

to a person with whom the conservator contracts under Subsection

(b)(4).

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.024. REPORT. (a) The conservator shall report on a

conservatorship under this subchapter to the governor and the

legislative audit committee not later than the 60th day after the

date the governor orders the conservatorship and at the end of

each subsequent 60-day period until the conservatorship is

dissolved.

(b) The report must include a description of the measures taken

to ensure that the state agency complies with state fiscal

management policies and an estimate of the progress the

conservator has made in attaining that goal.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.025. DURATION OF CONSERVATORSHIP. A conservatorship

under this subchapter continues until the earlier of:

(1) the governor's issuing of a proclamation declaring that the

condition of gross fiscal mismanagement in the state agency no

longer exists and that the conservatorship is dissolved; or

(2) the legislative audit committee's finding and certifying to

the governor that the condition of gross fiscal mismanagement in

the agency no longer exists, in which case the conservatorship is

dissolved.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

SUBCHAPTER D. CONSERVATORSHIP OF PUBLIC JUNIOR COLLEGES

Sec. 2104.031. MISMANAGEMENT FINDING; CONSERVATORSHIP ORDER.

(a) On the governor's request, the Texas Higher Education

Coordinating Board with the advice and assistance of the state

auditor shall determine if a condition of gross fiscal

mismanagement exists at a public junior college.

(b) If the coordinating board finds a condition of gross fiscal

mismanagement of a public junior college, the governor by

proclamation may appoint a conservator for the college.

(c) Except as otherwise provided by this subchapter, a

conservator shall act as conservator of a public junior college

in the manner provided by this chapter for conservatorship of

state agencies by a conservator.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.032. REPORTS. A conservator shall file the reports

relating to public junior colleges required by Section 2104.024

with the Texas Higher Education Coordinating Board.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.

Sec. 2104.033. DURATION OF CONSERVATORSHIP. A conservatorship

of a public junior college under this subchapter continues until

the earlier of:

(1) the governor's issuing of a proclamation declaring that the

condition of gross fiscal mismanagement no longer exists and that

the conservatorship is dissolved; or

(2) the Texas Higher Education Coordinating Board's finding and

certifying to the governor that the condition of gross fiscal

mismanagement no longer exists, in which case the conservatorship

is dissolved.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1999, 76th Leg., ch. 237, Sec. 1, eff. May

28, 1999.