By: Patrick S.B. No. 2568
(In the Senate - Filed April 29, 2009; April 29, 2009, read
first time and referred to Committee on Transportation and Homeland
Security; April 30, 2009, reported favorably by the following
vote: Yeas 5, Nays 4; April 30, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition against the knowing employment of persons
not lawfully present in the United States and the suspension of
licenses held by certain employers for the knowing employment of
those persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 2, Labor Code, is amended by
adding Chapter 53 to read as follows:
CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT
IN UNITED STATES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 53.001. DEFINITIONS. (a) In this chapter:
(1) "Lawful resident alien" means a person who is
entitled to lawful residence in the United States under the federal
Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).
(2) "Lawful resident verification information" means
the documentation required by the United States Department of
Homeland Security for completing the employment eligibility
verification form commonly referred to as the I-9. Documentation
that satisfies the requirements of the Form I-9 at the time of
employment is lawful resident verification information.
(3) "License" means a license, certificate,
registration, permit, or other authorization that:
(A) is issued by a licensing authority;
(B) is subject before expiration to renewal,
suspension, revocation, forfeiture, or termination by a licensing
authority; and
(C) is required for a person to practice or
engage in a particular business, occupation, or profession.
(4) "Licensing authority" means a department,
commission, board, office, or other agency of the state or a
political subdivision of the state that issues or renews a license.
(5) "Person not lawfully present" means a person who
at the time of employment is neither an alien who is lawfully
admitted for permanent residence in the United States under the
federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
seq.), nor authorized to be employed by that Act or the United
States attorney general.
(b) The definitions in Chapter 201 apply to this chapter.
Sec. 53.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER;
EXCEPTION. All licensing authorities are subject to this chapter,
except that the commission by rule shall adopt a procedure for a
licensing authority to obtain an exemption from the application of
this chapter for a license issued by the authority that the
commission determines is not related to the operation of a
business.
Sec. 53.003. RULES. The commission and the comptroller
shall adopt rules as necessary for the administration of this
chapter.
[Sections 53.004-53.050 reserved for expansion]
SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
NOT LAWFULLY PRESENT
Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
PERSON NOT LAWFULLY PRESENT; AUTHORIZATION FOR LICENSE SUSPENSION.
(a) An employer may not knowingly employ a person not lawfully
present.
(b) An employer who violates Subsection (a) may be subject
to the suspension of each license held by the employer as provided
by this chapter.
Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
Section 53.051(a) if:
(1) the employer, at least l4 calendar days after the
commencement of the employee's employment, requested from the
employee and received and documented in the employee's employment
record, lawful resident verification information consistent with
employer requirements under the federal Immigration Reform and
Control Act of 1986 (Pub. L. No. 99-603); and
(2) the lawful resident verification information
provided by the employee later was determined to be false.
(b) An employer has not violated Section 53.051(a) if the
employer verified the immigration status of the person at least 14
calendar days after the commencement of the employee's employment
through an electronic federal work authorization program operated
by the United States Department of Homeland Security to verify
information of newly hired employees.
[Sections 53.053-53.100 reserved for expansion]
SUBCHAPTER C. ADMINISTRATIVE PROVISIONS FOR
LICENSE SUSPENSION
Sec. 53.101. FINDING BY COMMISSION; REFERRAL TO
COMPTROLLER; MEMORANDUM OF UNDERSTANDING. (a) If, after
conducting an audit of an employer under Subchapter D, Chapter 213,
the commission finds substantial evidence that the employer is
operating on a cash-only basis in order to circumvent the
requirements of Subtitle A, Title 4, a rule adopted under Subtitle
A, Title 4, or another state law requiring the payment of a tax, and
that the employer is knowingly employing a person not lawfully
present in violation of Section 53.051(a), the commission shall
refer the commission's findings to the comptroller.
(b) The commission and the comptroller shall adopt a
memorandum of understanding to develop and implement procedures for
the referral by the commission to the comptroller under Subsection
(a).
Sec. 53.102. INVESTIGATION BY COMPTROLLER; HEARING.
(a) On receipt of a referral from the commission under Section
53.101, the comptroller shall investigate the commission's
findings using the comptroller's contested case and hearing
procedures in an attempt to verify information regarding the
immigration status of the relevant employee or employees of the
employer alleged to have violated Section 53.051(a).
(b) During an investigation conducted by the comptroller
under Subsection (a):
(1) the employer alleged to have violated Section
53.051(a) shall specify all licenses held by the employer; and
(2) the comptroller shall:
(A) provide notice regarding the investigation
to:
(i) the United States Immigration and
Customs Enforcement agency of the federal Department of Homeland
Security; and
(ii) each licensing authority that issued
any license held by the employer; and
(B) request the United States Immigration and
Customs Enforcement agency of the federal Department of Homeland
Security to verify, under 8 U.S.C. Section 1373(c), the employment
authorization of each relevant employee.
(c) The comptroller may make a final determination of
whether an employer has committed a violation of Section 53.051(a)
only after the comptroller has received verification from the
United States Immigration and Customs Enforcement agency of the
federal Department of Homeland Security under 8 U.S.C. Section
1373(c) regarding the employment authorization of each relevant
employee.
Sec. 53.103. ORDER FOR TERMINATION OF EMPLOYMENT AND FILING
OF AFFIDAVIT. (a) On a final determination by the comptroller
that an employer has violated Section 53.051(a), the comptroller
shall:
(1) issue an order requiring the employer to:
(A) terminate the employment of each employee who
is a person not legally present; and
(B) file with the comptroller, within 10 business
days after the date the order is issued, a sworn affidavit stating
that the employer has:
(i) terminated the employment of each of
those employees;
(ii) after consulting with each employee
who is a person not legally present, requested a secondary or
additional verification of employment authorization using an
electronic federal work authorization program operated by the
United States Department of Homeland Security or I-9 Employment
Eligibility Verification Program; or
(iii) attempted to terminate the employment
of each employee who is a person not legally present and that
termination has been challenged in a court; and
(2) notify the United States Immigration and Customs
Enforcement agency of the federal Department of Homeland Security
and the applicable local law enforcement agency of the identity and
address, if known, of each employee who is a person not lawfully
present.
(b) Notwithstanding any other provision of this subchapter,
during the pendency of an action taken under Subsection
(a)(1)(B)(ii) or (iii):
(1) the employer is not required to terminate the
employment of any employee determined by the comptroller to be a
person not lawfully present; and
(2) the comptroller may not order the suspension of
any license held by the employer.
Sec. 53.104. ORDER OF LICENSE SUSPENSION; NOTICE TO
LICENSING AUTHORITIES. (a) Except as provided by Subsection (b),
if an employer fails to comply with an order issued under Section
53.103, the comptroller shall order the suspension of each license
held by the employer until the comptroller finds that the employer
has complied with the requirements of Section 53.103.
(b) On a final determination by the comptroller that an
employer has violated Section 53.051(a) more than one time during a
two-year period, the comptroller shall order the suspension of each
license held by the employer for a period of at least 30 days. A
license suspended under this subsection may not be reinstated until
the comptroller finds that the employer has complied with the
requirements of Section 53.103.
(c) The comptroller shall promptly send to the appropriate
licensing authorities a copy of any order issued by the comptroller
under this section.
(d) The comptroller shall maintain in a prominent location
on the comptroller's Internet website a database accessible to the
public containing copies of each order issued under this section.
[Sections 53.105-53.150 reserved for expansion]
SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On
receipt from the comptroller of an order suspending a license, a
licensing authority shall immediately determine if the authority
has issued a license to the person named on the order and, if a
license has been issued:
(1) record the suspension of the license in the
licensing authority's records;
(2) report the suspension as appropriate; and
(3) demand surrender of the suspended license if
required by law for other cases in which a license is suspended.
(b) A licensing authority shall implement the terms of the
comptroller's final order suspending a license without additional
review or hearing. The authority may provide notice as appropriate
to the license holder or to others concerned with the license.
(c) A licensing authority may not modify, remand, reverse,
vacate, or stay an order suspending a license issued under this
chapter and may not review, vacate, or reconsider the terms of a
final order suspending a license.
(d) A person who is the subject of a final order suspending a
license is not entitled to a refund for any fee or deposit paid to
the licensing authority.
(e) A person who continues to engage in the business,
occupation, profession, or other licensed activity after the
implementation of the order suspending a license by the licensing
authority is liable for the same civil and criminal penalties
provided for engaging in the licensed activity without a license or
while a license is suspended that apply to any other license holder
of that licensing authority.
(f) A licensing authority is exempt from liability to a
license holder for any act authorized under this chapter performed
by the authority.
(g) Except as provided by this chapter, an order suspending
a license does not affect the power of a licensing authority to
grant, deny, suspend, revoke, terminate, or renew a license.
(h) An order issued under this chapter to suspend a license
of a person applies to each license for which the person is eligible
issued by the licensing authority subject to the order. The
licensing authority may not issue or renew any other license for the
person during the suspension period.
Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
authority may charge a fee to a person that is the subject of an
order suspending a license in an amount sufficient to recover the
administrative costs incurred by the authority under this chapter.
SECTION 2. Chapter 53, Labor Code, as added by this Act,
applies only to a violation that occurs on or after the effective
date of this Act.
SECTION 3. The Texas Workforce Commission and the
comptroller of public accounts shall adopt the rules and memorandum
of understanding required by Chapter 53, Labor Code, as added by
this Act, as soon as practicable after the effective date of this
Act.
SECTION 4. This Act takes effect September 1, 2009.
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