Texas 2009 - 81st Regular

Texas House Bill HB48 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R422 KSD-D
2	2	By: Riddle H.B. No. 48
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the suspension of certain licenses held by employers
8	8	for the knowing employment of persons not lawfully present in the
9	9	United States.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subtitle B, Title 2, Labor Code, is amended by
12	12	adding Chapter 53 to read as follows:
13	13	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED
14	14	STATES
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 53.001. DEFINITIONS. In this chapter:
17	17	(1) "Commission" means the Texas Workforce
18	18	Commission.
19	19	(2) "Employee" means an individual who is employed by
20	20	an employer for compensation.
21	21	(3) "Employer" means a person who:
22	22	(A) employs one or more employees; or
23	23	(B) acts directly or indirectly in the interests
24	24	of an employer in relation to an employee.
25	25	(4) "Employment" means any service, including service
26	26	in interstate commerce, that is performed for wages or under a
27	27	contract of hire, whether written or oral or express or implied.
28	28	The term does not include any service performed by an individual for
29	29	wages if it is shown that the individual is free from control or
30	30	direction in the performance of the service, both under any
31	31	contract of service and in fact.
32	32	(5) "Lawful resident alien" means a person who is
33	33	entitled to lawful residence in the United States under the federal
34	34	Immigration and Nationality Act (8 U.S.C. Sec. 1101 et seq.).
35	35	(6) "Lawful resident verification information" means
36	36	the documentation required by the United States Department of
37	37	Homeland Security when completing the employment eligibility
38	38	verification form commonly referred to as the I-9. Documentation
39	39	that satisfies the requirements of the Form I-9 at the time of
40	40	employment is lawful resident verification information.
41	41	(7) "License" means a license, certificate,
42	42	registration, permit, or other authorization that:
43	43	(A) is issued by a licensing authority;
44	44	(B) is subject before expiration to renewal,
45	45	suspension, revocation, forfeiture, or termination by a licensing
46	46	authority; and
47	47	(C) is required for a person to practice or
48	48	engage in a particular business, occupation, or profession.
49	49	(8) "Licensing authority" means a department,
50	50	commission, board, office, or other agency of the state or a
51	51	political subdivision of the state that issues or renews a license.
52	52	(9) "Person not lawfully present" means a person who
53	53	at the time of employment is neither an alien who is lawfully
54	54	admitted for permanent residence in the United States under the
55	55	federal Immigration and Nationality Act (8 U.S.C. Sec. 1101 et
56	56	seq.), nor authorized to be employed by that act or the United
57	57	States attorney general.
58	58	Sec. 53.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
59	59	licensing authorities are subject to this chapter.
60	60	Sec. 53.003. RULES. The commission shall adopt rules for
61	61	the administration of this chapter.
62	62	[Sections 53.004-53.050 reserved for expansion]
63	63	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
64	64	NOT LAWFULLY PRESENT
65	65	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
66	66	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An
67	67	employer may not knowingly employ a person not lawfully present.
68	68	(b) An employer who violates Subsection (a) is subject to
69	69	the suspension of each license held by the employer as provided by
70	70	this chapter.
71	71	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
72	72	Section 53.051(a) if:
73	73	(1) the employer, at least l4 calendar days after the
74	74	commencement of the employee's employment, requested from the
75	75	employee and received and documented in the employee's employment
76	76	record, lawful resident verification information consistent with
77	77	employer requirements under the federal Immigration Reform and
78	78	Control Act of 1986 (Pub. L. No. 99-603); and
79	79	(2) the lawful resident verification information
80	80	provided by the employee later was determined to be false.
81	81	(b) An employer has not violated Section 53.051(a) if the
82	82	employer verified the immigrant status of the person at least 14
83	83	calendar days after the commencement of the employee's employment
84	84	through an electronic federal work authorization program operated
85	85	by the United States Department of Homeland Security to verify
86	86	information of newly hired employees.
87	87	[Sections 53.053-53.100 reserved for expansion]
88	88	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
89	89	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
90	90	to believe that an employer has violated Section 53.051(a) may file
91	91	a complaint with the commission in accordance with this subchapter.
92	92	(b) A complaint must:
93	93	(1) be in writing on a form prescribed by the
94	94	commission; and
95	95	(2) be verified by the person making the complaint.
96	96	(c) A person may file a complaint under this section:
97	97	(1) in person at an office of the commission; or
98	98	(2) by mailing the complaint to an address designated
99	99	by the commission.
100	100	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
101	101	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
102	102	employed by the commission shall investigate the complaint in an
103	103	attempt to:
104	104	(1) verify information regarding the immigration
105	105	status of the relevant employee or employees of the employer
106	106	alleged to have violated Section 53.051(a); and
107	107	(2) determine whether a hearing should be conducted.
108	108	(b) During the investigation, the employer alleged to have
109	109	violated Section 53.051(a) shall specify all licenses held by the
110	110	employer.
111	111	(c) If the examiner determines that there is no substantial
112	112	evidence that the employer violated Section 53.051(a), the examiner
113	113	shall issue a preliminary dismissal order dismissing the complaint.
114	114	(d) If the examiner determines that there is substantial
115	115	evidence that the employer violated Section 53.051(a), the examiner
116	116	shall refer the complaint to a hearing tribunal established under
117	117	Section 53.103.
118	118	(e) The examiner shall mail notice of the preliminary
119	119	dismissal order or referral order to each party at that party's last
120	120	known address, as reflected by commission records.
121	121	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
122	122	commission shall establish one or more impartial hearing tribunals
123	123	to hear and decide complaints under this chapter.
124	124	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
125	125	ORDER. (a) A party may request a hearing before a hearing tribunal
126	126	to appeal a preliminary dismissal order made under Section
127	127	53.102(c).
128	128	(b) The request for the hearing must be made in writing not
129	129	later than the 21st day after the date the examiner mails the notice
130	130	of the preliminary dismissal order.
131	131	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
132	132	NOT REQUESTED. If neither party requests a hearing to appeal a
133	133	preliminary dismissal order made under Section 53.102(c) within the
134	134	period prescribed by Section 53.104, the order becomes the final
135	135	order of the commission for all purposes, and neither party is
136	136	entitled to judicial review of the order under this subchapter.
137	137	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
138	138	regarding a hearing conducted under this subchapter must be mailed
139	139	by the hearing tribunal not later than the 21st day after the date
140	140	the referral order or request for the hearing is received by the
141	141	commission.
142	142	(b) As soon as practicable, but not later than the 45th day
143	143	after the date a notice is mailed under Subsection (a), the tribunal
144	144	shall conduct the hearing.
145	145	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
146	146	under this subchapter is subject to the rules and hearings
147	147	procedures used by the commission in the determination of a claim
148	148	for unemployment compensation benefits.
149	149	(b) The hearing is not subject to Chapter 2001, Government
150	150	Code.
151	151	Sec. 53.108. ORDER AFTER HEARING. After a hearing, the
152	152	hearing tribunal shall:
153	153	(1) if the hearing tribunal finds by clear and
154	154	convincing evidence that the employer has violated Section
155	155	53.051(a), enter a written order suspending for a period of one year
156	156	any license held by the employer; or
157	157	(2) if the hearing tribunal does not find by clear and
158	158	convincing evidence that the employer has violated Section
159	159	53.051(a), enter a written order dismissing the complaint.
160	160	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
161	161	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
162	162	the hearing notice of the tribunal's decision. The notice shall be
163	163	mailed to a party's last known address, as reflected by commission
164	164	records.
165	165	(b) The order of the hearing tribunal becomes final on the
166	166	14th day after the date on which it is mailed unless a further
167	167	appeal to the commission is initiated as provided by this
168	168	subchapter.
169	169	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
170	170	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
171	171	itself or transfer to another hearing tribunal the proceedings on a
172	172	complaint before a hearing tribunal.
173	173	(b) The commission promptly shall mail to the parties to the
174	174	affected hearing notice of the order under Subsection (a).
175	175	(c) A quorum of the commission shall hear a proceeding
176	176	removed to the commission under Subsection (a).
177	177	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
178	178	The commission may:
179	179	(1) on its own motion:
180	180	(A) affirm, modify, or set aside an order issued
181	181	under Section 53.108 on the basis of the evidence previously
182	182	submitted in the case; or
183	183	(B) direct the taking of additional evidence; or
184	184	(2) permit any of the parties affected by the order to
185	185	initiate an appeal before the commission.
186	186	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
187	187	The commission shall mail to each party to the appeal under Section
188	188	53.111 notice of:
189	189	(1) the commission's decision; and
190	190	(2) the parties' right to judicial review of the order.
191	191	(b) The notice shall be mailed to a party's last known
192	192	address, as reflected by commission records.
193	193	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
194	194	commission becomes final on the 14th day after the date the order is
195	195	mailed unless before that date:
196	196	(1) the commission by order reopens the appeal; or
197	197	(2) a party to the appeal files a written motion for
198	198	rehearing.
199	199	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted
200	200	the party's administrative remedies under this chapter, other than
201	201	a motion for rehearing, may bring a suit to appeal the order.
202	202	(b) The suit must be filed not later than the 30th day after
203	203	the date the final order is mailed to the party.
204	204	(c) The commission and any other party to the proceeding
205	205	before the commission must be made defendants in the suit.
206	206	(d) The suit must be brought in the county of residence of
207	207	the party seeking judicial review. If the party is not a resident
208	208	of this state, the suit must be brought in the county in this state
209	209	in which the employer has its principal place of business.
210	210	(e) An appeal under this subchapter is by trial de novo with
211	211	the substantial evidence rule being the standard of review in the
212	212	manner as applied to an appeal from a final decision under Subtitle
213	213	A, Title 4.
214	214	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
215	215	SUSPENDING LICENSE. The commission shall promptly mail to the
216	216	appropriate licensing authority a final order suspending a license
217	217	entered under this chapter.
218	218	[Sections 53.116-53.150 reserved for expansion]
219	219	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
220	220	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
221	221	from the commission of a final order suspending a license, a
222	222	licensing authority shall immediately determine if the authority
223	223	has issued a license to the person named on the order and, if a
224	224	license has been issued:
225	225	(1) record the suspension of the license in the
226	226	licensing authority's records;
227	227	(2) report the suspension as appropriate; and
228	228	(3) demand surrender of the suspended license if
229	229	required by law for other cases in which a license is suspended.
230	230	(b) A licensing authority shall implement the terms of a
231	231	final order suspending a license without additional review or
232	232	hearing. The authority may provide notice as appropriate to the
233	233	license holder or to others concerned with the license.
234	234	(c) A licensing authority may not modify, remand, reverse,
235	235	vacate, or stay an order suspending a license issued under this
236	236	chapter and may not review, vacate, or reconsider the terms of a
237	237	final order suspending a license.
238	238	(d) A person who is the subject of a final order suspending a
239	239	license is not entitled to a refund for any fee or deposit paid to
240	240	the licensing authority.
241	241	(e) A person who continues to engage in the business,
242	242	occupation, profession, or other licensed activity after the
243	243	implementation of the order suspending a license by the licensing
244	244	authority is liable for the same civil and criminal penalties
245	245	provided for engaging in the licensed activity without a license or
246	246	while a license is suspended that apply to any other license holder
247	247	of that licensing authority.
248	248	(f) A licensing authority is exempt from liability to a
249	249	license holder for any act authorized under this chapter performed
250	250	by the authority.
251	251	(g) Except as provided by this chapter, an order suspending
252	252	a license does not affect the power of a licensing authority to
253	253	grant, deny, suspend, revoke, terminate, or renew a license.
254	254	(h) An order issued under this chapter to suspend a license
255	255	of a person applies to each license issued by the licensing
256	256	authority subject to the order for which the person is eligible.
257	257	The licensing authority may not issue or renew any other license for
258	258	the person during the suspension period.
259	259	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
260	260	authority may charge a fee to a person that is the subject of an
261	261	order suspending a license in an amount sufficient to recover the
262	262	administrative costs incurred by the authority under this chapter.
263	263	SECTION 2. Chapter 53, Labor Code, as added by this Act,
264	264	applies only to a violation that occurs on or after the effective
265	265	date of this Act.
266	266	SECTION 3. This Act takes effect September 1, 2009.