81R24149 MCK-F
By: Chavez, Rose H.B. No. 4388
Substitute the following for H.B. No. 4388:
By: Chavez C.S.H.B. No. 4388
A BILL TO BE ENTITLED
AN ACT
relating to veteran's employment preferences.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 657, Government Code, is amended by
designating Sections 657.001 through 657.009 as Subchapter A and
adding a heading for Subchapter A to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 2. Section 657.001, Government Code, is amended by
amending Subdivision (2) and adding Subdivisions (3) and (4) to
read as follows:
(2) "Minimum qualifications" means the experience and
education to perform the essential tasks of a job identified in the
posting for the job.
(3) "Public entity" means:
(A) a state agency, including:
(i) a [public] department, commission,
board, authority, office, or other agency in the executive branch
of state government created by the constitution or a statute of this
state; or
(ii) a university system or an institution
of higher education as defined by Section 61.003, Education Code;
or
(B) a county, municipality, or district, a
district or other authority created under Section 52, Article III,
or Section 59, Article XVI, Texas Constitution, or any other
political subdivision of this state.
(4) "Public work of this state" means a project that is
the subject of a public work contract with a governmental entity to
which Chapter 2253 applies.
SECTION 3. Subchapter A, Chapter 657, Government Code, as
added by this Act, is amended by adding Section 657.0015 to read as
follows:
Sec. 657.0015. EXCEPTIONS. This chapter does not apply to:
(1) appointments made by the governor; or
(2) the employment of:
(A) a head of a division or department in a state
office or agency headed by a single elected state official; or
(B) a person who advises or reports directly to
an elected state official.
SECTION 4. Sections 657.002(a) and (b), Government Code,
are amended to read as follows:
(a) A veteran qualifies for a veteran's employment
preference if the veteran:
(1) served in the military for not less than 90
consecutive days during a national emergency declared in accordance
with federal law or was discharged from military service for an
established service-connected disability;
(2) was honorably discharged from military service;
and
(3) meets the minimum qualifications for the
position [is competent].
(b) A veteran's surviving spouse who has not remarried or an
orphan of a veteran qualifies for a veteran's employment preference
if:
(1) the veteran was killed while on active duty;
(2) the veteran served in the military for not less
than 90 consecutive days during a national emergency declared in
accordance with federal law; and
(3) the spouse or orphan meets the minimum
qualifications for the position [is competent].
SECTION 5. Sections 657.003(a) and (b), Government Code,
are amended to read as follows:
(a) An individual who qualifies for a veteran's employment
preference is entitled to a preference in employment with or
appointment to a public entity or for a public work of this state
over other applicants for the same position who do not have [a]
greater qualifications for the position [qualification].
(b) An individual who has an established service-connected
disability and is entitled to a veteran's employment preference is
entitled to preference for employment or appointment in a position
[for which a competitive examination is not held] over all other
applicants for the same position who are without a
service-connected disability and who do not have [a] greater
qualifications for the position [qualification].
SECTION 6. Section 657.005(a), Government Code, is amended
to read as follows:
(a) The individual whose duty is to appoint or employ an
applicant for a position with a public entity or public work of this
state or an officer or the chief administrator of the entity or work
who receives an application for appointment or employment by an
individual entitled to a veteran's employment preference, before
appointing or employing any individual, shall investigate the
qualifications of the applicant for the position. If the applicant
is of good moral character and can perform the duties of the
position and no other applicant for the position has greater
qualifications than the applicant entitled to a veteran's
employment preference, the officer, chief executive, or individual
whose duty is to appoint or employ shall appoint or employ the
applicant for the position.
SECTION 7. Section 657.007(b), Government Code, is amended
to read as follows:
(b) The preference granted under this section applies only
to the extent that a reduction in workforce by an employing public
entity involves other employees of the same [a similar type or]
classification.
SECTION 8. Section 657.008, Government Code, is amended to
read as follows:
Sec. 657.008. REPORTING REQUIREMENTS. (a) A state agency
[public entity] shall file quarterly with the comptroller a report
that states:
(1) any measures taken by the state agency during the
quarter to inform individuals entitled to a hiring preference under
this chapter of their rights under this chapter;
(2) the appeals process available through the state
agency to an individual entitled to a hiring preference under this
chapter who alleges that the state agency violated the individual's
rights under this chapter;
(3) the percentage of the total number of employees
hired by the state agency [entity] during the reporting period who
are persons entitled to a preference under this chapter; and
(4) [(2)] the percentage of the total number of the
agency's [entity's] employees who are persons entitled to a
preference under this chapter[; and
[(3) the number of complaints filed with the governing
body of the entity under Section 657.010 during that quarter and the
number of those complaints resolved by the governing body].
(b) The comptroller shall file annually with the
legislature a report that compiles and analyzes information that
the comptroller receives from state agencies [public entities]
under Subsection (a).
SECTION 9. Chapter 657, Government Code, is amended by
adding Subchapters B and C to read as follows:
SUBCHAPTER B. COMPLAINT TO PUBLIC ENTITY
Sec. 657.051. COMPLAINT PROCEDURE. (a) An individual who
is entitled to a veteran's employment preference under this chapter
may appeal a hiring decision made by a public entity by filing a
written complaint with the public entity not later than the 30th day
after the date the individual receives notice of the hiring
decision.
(b) The individual must state in the complaint:
(1) the name of the public entity; and
(2) the allegations that form the basis of the
complaint.
Sec. 657.052. DECISION. (a) Not later than the 30th day
after the date the public entity receives a complaint, the public
entity shall issue a decision on the complaint and notify the
applicant of the decision.
(b) If the public entity determines that an individual
should have been offered the position because of the preference
granted under this chapter, the public entity shall offer to
appoint or employ the applicant:
(1) for the position; or
(2) for the next similar position that becomes
available for which the individual meets the minimum
qualifications.
Sec. 657.053. REQUEST FOR HEARING. If a state agency
determines under Section 657.052 that the applicant is not entitled
under this chapter to be appointed or employed for the position, the
applicant may request a hearing under Subchapter C.
SUBCHAPTER C. HEARING
Sec. 657.101. COMPLAINT; HEARING. (a) An applicant for
employment with a state agency who is entitled to a veteran's
employment preference under this chapter may appeal the state
agency's hiring decision after following the complaint procedure in
Subchapter B by filing a request for a hearing with the state
agency.
(b) The applicant must request a hearing not later than the
30th day after the date the applicant receives notice of the
decision issued under Section 657.052.
(c) Not later than the 10th day after the date the state
agency receives a request for a hearing, the state agency shall
refer the case to the State Office of Administrative Hearings for a
hearing.
Sec. 657.102. HEARING PROCEDURES. (a) The State Office of
Administrative Hearings shall conduct a hearing on the complaint
not later than the 90th day after the date the office receives the
complaint. An administrative law judge employed by the office
shall conduct the hearing.
(b) A hearing conducted under this subchapter is a contested
case under Chapter 2001.
Sec. 657.103. DECISION. (a) If the administrative law
judge determines that the applicant should have been offered the
position applied for because of the preference granted under this
chapter, the individual responsible for making hiring decisions for
the state agency shall:
(1) offer to appoint or employ the applicant for the
position; or
(2) offer to appoint or employ the applicant for the
next similar position that becomes available for which the
applicant meets the minimum qualifications.
(b) The administrative law judge shall render the final
decision in the contested case. The decision of the administrative
law judge is not subject to judicial review.
Sec. 657.104. REPORT. The State Office of Administrative
Hearings shall report to the governor, the comptroller, and the
legislature the number of hearings requested under this subchapter.
SECTION 10. Section 657.010, Government Code, is repealed.
SECTION 11. The changes in law made by this Act to Chapter
657, Government Code, apply to an application for employment only
if the application is submitted on or after the effective date of
this Act. An application submitted before the effective date of
this Act is governed by the law in effect at the time the
application is submitted, and the former law is continued in effect
for that purpose.
SECTION 12. The changes in law made by this Act to Chapter
657, Government Code, apply only to a public work for which a public
entity first advertises or otherwise solicits bids, proposals,
offers, or qualifications to perform any portion of the work on or
after the effective date of this Act. A public work for which a
public entity first advertised or otherwise solicited bids,
proposals, offers, or qualifications to perform any portion of the
work before that date is governed by the law in effect when the
first advertisement or solicitation was given, and the former law
is continued in effect for that purpose.
SECTION 13. This Act takes effect September 1, 2009.