Texas 2009 - 81st Regular

Texas Senate Bill SB2568 Compare Versions

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1	1	By: Patrick S.B. No. 2568
2	2	(In the Senate - Filed April 29, 2009; April 29, 2009, read
3	3	first time and referred to Committee on Transportation and Homeland
4	4	Security; April 30, 2009, reported favorably by the following
5	5	vote: Yeas 5, Nays 4; April 30, 2009, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to a prohibition against the knowing employment of persons
11	11	not lawfully present in the United States and the suspension of
12	12	licenses held by certain employers for the knowing employment of
13	13	those persons.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Subtitle B, Title 2, Labor Code, is amended by
16	16	adding Chapter 53 to read as follows:
17	17	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT
18	18	IN UNITED STATES
19	19	SUBCHAPTER A. GENERAL PROVISIONS
20	20	Sec. 53.001. DEFINITIONS. (a) In this chapter:
21	21	(1) "Lawful resident alien" means a person who is
22	22	entitled to lawful residence in the United States under the federal
23	23	Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).
24	24	(2) "Lawful resident verification information" means
25	25	the documentation required by the United States Department of
26	26	Homeland Security for completing the employment eligibility
27	27	verification form commonly referred to as the I-9. Documentation
28	28	that satisfies the requirements of the Form I-9 at the time of
29	29	employment is lawful resident verification information.
30	30	(3) "License" means a license, certificate,
31	31	registration, permit, or other authorization that:
32	32	(A) is issued by a licensing authority;
33	33	(B) is subject before expiration to renewal,
34	34	suspension, revocation, forfeiture, or termination by a licensing
35	35	authority; and
36	36	(C) is required for a person to practice or
37	37	engage in a particular business, occupation, or profession.
38	38	(4) "Licensing authority" means a department,
39	39	commission, board, office, or other agency of the state or a
40	40	political subdivision of the state that issues or renews a license.
41	41	(5) "Person not lawfully present" means a person who
42	42	at the time of employment is neither an alien who is lawfully
43	43	admitted for permanent residence in the United States under the
44	44	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
45	45	seq.), nor authorized to be employed by that Act or the United
46	46	States attorney general.
47	47	(b) The definitions in Chapter 201 apply to this chapter.
48	48	Sec. 53.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER;
49	49	EXCEPTION. All licensing authorities are subject to this chapter,
50	50	except that the commission by rule shall adopt a procedure for a
51	51	licensing authority to obtain an exemption from the application of
52	52	this chapter for a license issued by the authority that the
53	53	commission determines is not related to the operation of a
54	54	business.
55	55	Sec. 53.003. RULES. The commission and the comptroller
56	56	shall adopt rules as necessary for the administration of this
57	57	chapter.
58	58	[Sections 53.004-53.050 reserved for expansion]
59	59	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
60	60	NOT LAWFULLY PRESENT
61	61	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
62	62	PERSON NOT LAWFULLY PRESENT; AUTHORIZATION FOR LICENSE SUSPENSION.
63	63	(a) An employer may not knowingly employ a person not lawfully
64	64	present.
65	65	(b) An employer who violates Subsection (a) may be subject
66	66	to the suspension of each license held by the employer as provided
67	67	by this chapter.
68	68	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
69	69	Section 53.051(a) if:
70	70	(1) the employer, at least l4 calendar days after the
71	71	commencement of the employee's employment, requested from the
72	72	employee and received and documented in the employee's employment
73	73	record, lawful resident verification information consistent with
74	74	employer requirements under the federal Immigration Reform and
75	75	Control Act of 1986 (Pub. L. No. 99-603); and
76	76	(2) the lawful resident verification information
77	77	provided by the employee later was determined to be false.
78	78	(b) An employer has not violated Section 53.051(a) if the
79	79	employer verified the immigration status of the person at least 14
80	80	calendar days after the commencement of the employee's employment
81	81	through an electronic federal work authorization program operated
82	82	by the United States Department of Homeland Security to verify
83	83	information of newly hired employees.
84	84	[Sections 53.053-53.100 reserved for expansion]
85	85	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS FOR
86	86	LICENSE SUSPENSION
87	87	Sec. 53.101. FINDING BY COMMISSION; REFERRAL TO
88	88	COMPTROLLER; MEMORANDUM OF UNDERSTANDING. (a) If, after
89	89	conducting an audit of an employer under Subchapter D, Chapter 213,
90	90	the commission finds substantial evidence that the employer is
91	91	operating on a cash-only basis in order to circumvent the
92	92	requirements of Subtitle A, Title 4, a rule adopted under Subtitle
93	93	A, Title 4, or another state law requiring the payment of a tax, and
94	94	that the employer is knowingly employing a person not lawfully
95	95	present in violation of Section 53.051(a), the commission shall
96	96	refer the commission's findings to the comptroller.
97	97	(b) The commission and the comptroller shall adopt a
98	98	memorandum of understanding to develop and implement procedures for
99	99	the referral by the commission to the comptroller under Subsection
100	100	(a).
101	101	Sec. 53.102. INVESTIGATION BY COMPTROLLER; HEARING.
102	102	(a) On receipt of a referral from the commission under Section
103	103	53.101, the comptroller shall investigate the commission's
104	104	findings using the comptroller's contested case and hearing
105	105	procedures in an attempt to verify information regarding the
106	106	immigration status of the relevant employee or employees of the
107	107	employer alleged to have violated Section 53.051(a).
108	108	(b) During an investigation conducted by the comptroller
109	109	under Subsection (a):
110	110	(1) the employer alleged to have violated Section
111	111	53.051(a) shall specify all licenses held by the employer; and
112	112	(2) the comptroller shall:
113	113	(A) provide notice regarding the investigation
114	114	to:
115	115	(i) the United States Immigration and
116	116	Customs Enforcement agency of the federal Department of Homeland
117	117	Security; and
118	118	(ii) each licensing authority that issued
119	119	any license held by the employer; and
120	120	(B) request the United States Immigration and
121	121	Customs Enforcement agency of the federal Department of Homeland
122	122	Security to verify, under 8 U.S.C. Section 1373(c), the employment
123	123	authorization of each relevant employee.
124	124	(c) The comptroller may make a final determination of
125	125	whether an employer has committed a violation of Section 53.051(a)
126	126	only after the comptroller has received verification from the
127	127	United States Immigration and Customs Enforcement agency of the
128	128	federal Department of Homeland Security under 8 U.S.C. Section
129	129	1373(c) regarding the employment authorization of each relevant
130	130	employee.
131	131	Sec. 53.103. ORDER FOR TERMINATION OF EMPLOYMENT AND FILING
132	132	OF AFFIDAVIT. (a) On a final determination by the comptroller
133	133	that an employer has violated Section 53.051(a), the comptroller
134	134	shall:
135	135	(1) issue an order requiring the employer to:
136	136	(A) terminate the employment of each employee who
137	137	is a person not legally present; and
138	138	(B) file with the comptroller, within 10 business
139	139	days after the date the order is issued, a sworn affidavit stating
140	140	that the employer has:
141	141	(i) terminated the employment of each of
142	142	those employees;
143	143	(ii) after consulting with each employee
144	144	who is a person not legally present, requested a secondary or
145	145	additional verification of employment authorization using an
146	146	electronic federal work authorization program operated by the
147	147	United States Department of Homeland Security or I-9 Employment
148	148	Eligibility Verification Program; or
149	149	(iii) attempted to terminate the employment
150	150	of each employee who is a person not legally present and that
151	151	termination has been challenged in a court; and
152	152	(2) notify the United States Immigration and Customs
153	153	Enforcement agency of the federal Department of Homeland Security
154	154	and the applicable local law enforcement agency of the identity and
155	155	address, if known, of each employee who is a person not lawfully
156	156	present.
157	157	(b) Notwithstanding any other provision of this subchapter,
158	158	during the pendency of an action taken under Subsection
159	159	(a)(1)(B)(ii) or (iii):
160	160	(1) the employer is not required to terminate the
161	161	employment of any employee determined by the comptroller to be a
162	162	person not lawfully present; and
163	163	(2) the comptroller may not order the suspension of
164	164	any license held by the employer.
165	165	Sec. 53.104. ORDER OF LICENSE SUSPENSION; NOTICE TO
166	166	LICENSING AUTHORITIES. (a) Except as provided by Subsection (b),
167	167	if an employer fails to comply with an order issued under Section
168	168	53.103, the comptroller shall order the suspension of each license
169	169	held by the employer until the comptroller finds that the employer
170	170	has complied with the requirements of Section 53.103.
171	171	(b) On a final determination by the comptroller that an
172	172	employer has violated Section 53.051(a) more than one time during a
173	173	two-year period, the comptroller shall order the suspension of each
174	174	license held by the employer for a period of at least 30 days. A
175	175	license suspended under this subsection may not be reinstated until
176	176	the comptroller finds that the employer has complied with the
177	177	requirements of Section 53.103.
178	178	(c) The comptroller shall promptly send to the appropriate
179	179	licensing authorities a copy of any order issued by the comptroller
180	180	under this section.
181	181	(d) The comptroller shall maintain in a prominent location
182	182	on the comptroller's Internet website a database accessible to the
183	183	public containing copies of each order issued under this section.
184	184	[Sections 53.105-53.150 reserved for expansion]
185	185	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
186	186	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On
187	187	receipt from the comptroller of an order suspending a license, a
188	188	licensing authority shall immediately determine if the authority
189	189	has issued a license to the person named on the order and, if a
190	190	license has been issued:
191	191	(1) record the suspension of the license in the
192	192	licensing authority's records;
193	193	(2) report the suspension as appropriate; and
194	194	(3) demand surrender of the suspended license if
195	195	required by law for other cases in which a license is suspended.
196	196	(b) A licensing authority shall implement the terms of the
197	197	comptroller's final order suspending a license without additional
198	198	review or hearing. The authority may provide notice as appropriate
199	199	to the license holder or to others concerned with the license.
200	200	(c) A licensing authority may not modify, remand, reverse,
201	201	vacate, or stay an order suspending a license issued under this
202	202	chapter and may not review, vacate, or reconsider the terms of a
203	203	final order suspending a license.
204	204	(d) A person who is the subject of a final order suspending a
205	205	license is not entitled to a refund for any fee or deposit paid to
206	206	the licensing authority.
207	207	(e) A person who continues to engage in the business,
208	208	occupation, profession, or other licensed activity after the
209	209	implementation of the order suspending a license by the licensing
210	210	authority is liable for the same civil and criminal penalties
211	211	provided for engaging in the licensed activity without a license or
212	212	while a license is suspended that apply to any other license holder
213	213	of that licensing authority.
214	214	(f) A licensing authority is exempt from liability to a
215	215	license holder for any act authorized under this chapter performed
216	216	by the authority.
217	217	(g) Except as provided by this chapter, an order suspending
218	218	a license does not affect the power of a licensing authority to
219	219	grant, deny, suspend, revoke, terminate, or renew a license.
220	220	(h) An order issued under this chapter to suspend a license
221	221	of a person applies to each license for which the person is eligible
222	222	issued by the licensing authority subject to the order. The
223	223	licensing authority may not issue or renew any other license for the
224	224	person during the suspension period.
225	225	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
226	226	authority may charge a fee to a person that is the subject of an
227	227	order suspending a license in an amount sufficient to recover the
228	228	administrative costs incurred by the authority under this chapter.
229	229	SECTION 2. Chapter 53, Labor Code, as added by this Act,
230	230	applies only to a violation that occurs on or after the effective
231	231	date of this Act.
232	232	SECTION 3. The Texas Workforce Commission and the
233	233	comptroller of public accounts shall adopt the rules and memorandum
234	234	of understanding required by Chapter 53, Labor Code, as added by
235	235	this Act, as soon as practicable after the effective date of this
236	236	Act.
237	237	SECTION 4. This Act takes effect September 1, 2009.
238	238	* * * * *