Human Resources Code - CHAPTER 122

The purpose of this chapter is to further the state's policy of encouraging and assisting persons with disabilities to achieve maximum personal independence by engaging in useful and productive employment activities and, in addition, to provide state agencies, departments, and institutions and political subdivisions of the state with a method for achieving conformity with requirements of nondiscrimination and affirmative action in employment matters related to persons with disabilities.

(1) "Central nonprofit agency" means an agency designated as a central nonprofit agency under contract under Section 122.019.

(3) "Community rehabilitation program" means a government or nonprofit private program operated under criteria established by the council and under which persons with severe disabilities produce products or perform services for compensation.

(4) "Council" means the Texas Council on Purchasing from People with Disabilities.

(5) "Disability" means a mental or physical impairment, including blindness, that impedes a person who is seeking, entering, or maintaining gainful employment.

(a) The Texas Council on Purchasing from People with Disabilities is composed of the following members who are appointed by the governor with the advice and consent of the senate:

(1) three private citizens conversant with the employment needs of persons with disabilities, including blindness, and with current experience in the pricing and marketing of goods and services;

(2) three representatives of community rehabilitation programs that represent different disability groups, including persons with blindness, and that provide or seek to provide products produced or services performed by persons with disabilities; and

(3) three representatives of state agencies or political subdivisions that purchase a significant amount of products produced or services performed by persons with disabilities.

(b) Members of the council serve staggered terms of six years with the terms of three members expiring on January 31 of each odd-numbered year. Members may not receive compensation for their service on the council, but they are entitled to reimbursement for actual and necessary expenses incurred in performing their duties as members.

(d) A person is not eligible for appointment as a member of the council under Subsection (a)(1) if the person or the person's spouse:

(1) is employed by or participates in the management of a central nonprofit agency, a community rehabilitation program, or another organization receiving funds from or doing business with the council;

(2) owns or controls, directly or indirectly, more than a 10 percent interest in a central nonprofit agency, a community rehabilitation program, or another organization receiving funds from or doing business with the council; or

(3) uses or receives a substantial amount of tangible goods, services, or funds from the council, a central nonprofit agency, or a community rehabilitation program, other than reimbursement authorized by law for council membership, attendance, or expenses.

(e) A person may not serve as a member of the council if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council.

(f) Appointments to the council shall be made without regard to the race, creed, sex, disability, age, religion, or national origin of the appointees.

(1) does not have at the time of appointment the qualifications required by Subsection (a) of this section for appointment to the council;

(2) does not maintain during the service on the council the qualifications required by Subsection (a) of this section for appointment to the council;

(3) violates a prohibition established by Subsection (d) or (e) of this section;

(4) cannot because of illness or disability discharge the member's duties for a substantial part of the term for which the member is appointed; or

(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the council.

(h) The validity of an action of the council is not affected by the fact that it was taken when a ground for removal of a member of the council existed.

(i) If the executive director of the commission has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the council of the potential ground. If the presiding officer is notified under this section, or if the presiding officer has knowledge that a potential ground for removal exists, the presiding officer shall notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest officer of the council, who shall notify the governor and the attorney general that a potential ground for removal exists.

(j) The council may establish criteria for recognition and approval of community rehabilitation programs. The council may:

(1) recognize a program that maintains accreditation by a nationally accepted vocational rehabilitation accrediting organization; and

(2) approve community rehabilitation program services that have been approved for purchase by a state habilitation or rehabilitation agency.

The presiding officer of the council or the presiding officer's designee shall provide to members of the council, as often as necessary, information regarding their qualification for office under this chapter and their responsibilities under applicable laws relating to standards of conduct for state officers.

(a) Before a member of the council may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of the training program established under this section.

(b) A training program established under this section shall provide information to the member regarding:

(7) the requirements of the conflict of interest laws and other laws relating to public officials; and

(8) any applicable ethics policies adopted by the council or the Texas Ethics Commission.

The Texas Council on Purchasing from People with Disabilities is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the council is abolished and this chapter expires September 1, 2003.

Amended by Acts 1995, 74th Leg., ch. 460, � 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1169, � 2.07, eff. Sept. 1, 1997.

(a) The council shall determine the fair market price of all products and services manufactured or provided by persons with disabilities and offered for sale to the various agencies and departments of the state and its political subdivisions by a community rehabilitation program. The council shall ensure that the products and services offered for sale offer the best value for the state or a political subdivision.

(b) A subcommittee composed of three council members appointed by the presiding officer shall review the data used to determine fair market price and shall make recommendations to the council concerning fair market price for the products and services and offering the best value to customers.

(d) Before offering for sale products and services manufactured or provided by persons with disabilities to state agencies and political subdivisions, the council shall test the goods and services in accordance with Section 2155.069, Government Code, to the extent necessary to ensure quality. The council may enter into a contract with a private or public entity to assist with testing. The commission shall make awards under this section based on proposed goods and services meeting formal state specifications developed by the commission or meeting commercial specifications approved by the commission.

(e) Requisitions for products and services required by state agencies are processed by the commission according to rules established by the commission.

Amended by Acts 1995, 74th Leg., ch. 460, � 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1206, � 25, eff. Sept. 1, 1997.

A suitable product or service that meets applicable specifications established by the state or its political subdivisions and that is available within the time specified must be procured from a community rehabilitation program at the price determined by the council to be the fair market price.

(a) The records of the council and of a central nonprofit agency shall, to the extent that the records pertain specifically to state purchases of the products and services of persons with disabilities, be made available upon request to the inspection of representatives of the state auditor, the governor's budget office, or the Legislative Budget Board. The inspection of the records shall be conducted with due regard to the privacy rights of persons with disabilities. A document that is available for inspection under this subsection is an open record for purposes of Chapter 552, Government Code.

(b) The commission is the depository for all records concerning the council's operations.

The council may cooperate with the institutional division of the Texas Department of Criminal Justice to accomplish the purposes of this chapter and to contribute to the economy of state government. The council and the department may enter into contractual agreements, cooperative working relationships, or other arrangements necessary for effective coordination and the realization of the objectives of both entities.

The council may adopt procedures, practices, and standards used for federal programs similar to the state program established in this chapter.

(a) The commission shall provide legal, clerical, administrative, and other necessary support to the council in accordance with legislative appropriation.

(b) State agencies responsible for the provision of rehabilitation and related services to persons with disabilities shall cooperate with the council in the operation of the program. The Texas Commission for the Blind, the Texas Rehabilitation Commission, and other state human services agencies responsible for assisting persons with disabilities may, through written agreements or interagency contracts, provide space, storage, logistical support, consultation, expert services, communications services, or financial assistance with respect to any function or responsibility of the council.

(c) The commission or a state agency may not assume the marketing or fiscal responsibility for the expense of marketing the products and services of persons with disabilities under the program.

(a) The council may adopt rules for the implementation, extension, administration, or improvement of the program authorized by this chapter in accordance with Chapter 2001, Government Code.

(b) The commission shall provide legal support to assist the council in adopting rules under this section.

Except as otherwise provided by this section, a product manufactured for sale through the commission to any office, department, institution, or agency of the state under this chapter shall be manufactured or produced according to specifications developed by the commission. If the commission has not adopted specifications for a particular product, the production shall be based on commercial or federal specifications in current use by industry for the manufacture of the product for sale to the state.

(a) In determining the fair market value of products or services offered for sale under this chapter, the subcommittee established under Section 122.007(b) and the council shall give due consideration to the following type of factors:

(1) to the extent applicable, the amounts being paid for similar articles in similar quantities by federal agencies purchasing the products or services under the authorized federal program of like effect to the state program authorized by this chapter;

(2) the amounts which private business would pay for similar products or services in similar quantities if purchasing from a reputable corporation engaged in the business of selling similar products or services;

(3) to the extent applicable, the amount paid by the state in any recent purchases of similar products or services in similar quantities, making due allowance for general inflationary or deflationary trends;

(4) the actual cost of manufacturing the product or performing a service at a community rehabilitation program offering employment services on or off premises to persons with disabilities, with adequate weight to be given to legal and moral imperatives to pay workers with disabilities equitable wages; and

(5) the usual, customary, and reasonable costs of manufacturing, marketing, and distribution.

(b) The actual cost of manufacturing a product or performing a service consists of costs directly associated with a contract and includes costs for labor, raw materials used in the production of the product, storage, and delivery. Actual costs do not include a cost associated with an individual's preparation to perform the work activity.

(c) The fair market value of a product or service, determined after consideration of relevant factors of the foregoing type, may not be excessive or unreasonable.

(a) Exceptions from the operation of the mandatory provisions of Section 122.014 may be made in any case where:

(1) under the rules of the commission, the product or service so produced or provided does not meet the reasonable requirements of the office, department, institution, or agency; or

(2) the requisitions made cannot be reasonably complied with through provision of products or services produced by persons with disabilities.

(b) Each month, the commission shall provide the council with a list of all items purchased under the exception provided by Subsection (a) of this section. The council shall adopt the form in which the list is to be provided and may require the list to include the date of requisition, the type of product or service requested, the reason for purchase under the exception, and any other information that the council considers relevant to a determination of why the product or service was not purchased in accordance with Section 122.014.

(c) No office, department, institution, or agency may evade the intent of this section by slight variations from standards adopted by the commission, when the products or services produced or provided by persons with disabilities, in accordance with established standards, are reasonably adapted to the actual needs of the office, department, institution, or agency.

A product manufactured for sale to a political subdivision of this state or an office or department thereof shall be manufactured or produced according to specifications developed by the purchaser. A political subdivision of this state may purchase products or services for its use from private businesses through its authorized purchasing procedures, but may substitute equivalent products or services produced by persons with disabilities under the provisions of this chapter. Nothing in this chapter shall be construed to require a nonprofit agency for persons with disabilities to engage in competitive bidding.

There are excluded from the mandatory application of this chapter the political subdivisions of the state that are not covered by Title V of the Federal Rehabilitation Act of 1973, as amended (29 U.S. Code Sections 790 through 794). This chapter does not prohibit a political subdivision from acting as a willing buyer outside a bid system.

(1) recruit and assist community rehabilitation programs in developing and submitting applications for the selection of suitable products and services;

(2) facilitate the distribution of orders among community rehabilitation programs;

(3) manage and coordinate the day-to-day operation of the program, including the general administration of contracts with community rehabilitation programs; and

(4) promote increased supported employment opportunities for persons with disabilities.

(b) The services of a central nonprofit agency may include marketing and marketing support services, such as:

(1) assistance to community rehabilitation programs regarding solicitation and negotiation of contracts;

(7) accounting services related to purchase orders, invoices, and payments to community rehabilitation programs; and

(c) Each year, the council shall review services provided by a central nonprofit agency and the revenues required to accomplish the program to determine whether each agency's performance complies with contractual specifications. Not later than the 60th day before the review, the council shall publish in the Texas Register a request for comment on the services of a central nonprofit agency that participates in community rehabilitation programs.

(d) At least once during each two-year period, the council shall review and renegotiate the contract with a central nonprofit agency. Not later than the 60th day before the date the council adopts or renews a contract, the council shall publish notice of the proposed contract in the Texas Register.

(e) The maximum management fee rate charged by a central nonprofit agency for its services must be computed as a percentage of the selling price of the product or the contract price of a service, must be included in the selling price or contract price, and must be paid at the time of sale. The management fee rate must be approved by the council.

(f) A percentage of the management fee described by Subsection (e) shall be paid to the council and is subject to Section 122.023. The percentage shall be set by the council in the amount necessary to reimburse the general revenue fund for direct and reasonable costs incurred by the commission in administering its duties under this chapter.

(a) The council shall prepare information of consumer interest describing the activities of the council and describing the council's procedures by which consumer complaints are filed with and resolved by the council. The council shall make the information available to the general public and appropriate state agencies.

(b) The council shall keep an information file about each complaint filed with the council relating to a product or service offered by a community rehabilitation program.

(c) If a written complaint is filed with the council relating to a product or service offered by a community rehabilitation program, the council, at least as frequently as quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.

(a) The council shall develop and implement policies that provide the public with a reasonable opportunity to appear before the council and to speak on any issue under the jurisdiction of the council.

(b) The council shall comply with federal and state laws related to program and facility accessibility. The council shall also prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the council's programs and services.

(a) On or before November 1 of each year, the council shall file with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the council during the preceding year. The annual report must meet the reporting requirements applicable to financial reporting provided in the General Appropriations Act.

(1) the number of persons with disabilities, according to their type of disability, who are employed in community rehabilitation programs participating in the programs established by this chapter;

(3) a summary of the sale of products offered by a community rehabilitation program;

(4) a list of products and services offered by a community rehabilitation program; and

Added by Acts 1995, 74th Leg., ch. 460, � 1, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 693, � 14, eff. Sept. 1, 1995.

All money paid to the council under this chapter is subject to Subchapter F, Chapter 404, Government Code.

The council shall prepare an agency strategic plan and a final operating plan as required by Subchapter E, Chapter 2054, Government Code.

Added by Acts 1995, 74th Leg., ch. 460, � 1, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 76, � 5.95(63), (81).

Chapters 252, 262, and 271, Local Government Code, do not supersede this chapter.

Added by Acts 1995, 74th Leg., ch. 746, � 10, eff. Aug. 28, 1995. Renumbered from V.T.C.A., Human Resources Code � 122.020 by Acts 1997, 75th Leg., ch. 165, � 31.01(62), eff. Sept. 1, 1997.

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