Texas 2009 - 81st Regular

Texas Senate Bill SB357 Compare Versions

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

Old	New	Differences
1	1	81R3621 KSD-D
2	2	By: Patrick, Dan S.B. No. 357
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a prohibition against the knowing employment of persons
8	8	not lawfully present in the United States and the suspension of
9	9	licenses held by certain employers for the knowing employment of
10	10	those persons.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subtitle B, Title 2, Labor Code, is amended by
13	13	adding Chapter 53 to read as follows:
14	14	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT
15	15	IN UNITED STATES
16	16	SUBCHAPTER A. GENERAL PROVISIONS
17	17	Sec. 53.001. DEFINITIONS. (a) In this chapter:
18	18	(1) "Lawful resident alien" means a person who is
19	19	entitled to lawful residence in the United States under the federal
20	20	Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).
21	21	(2) "Lawful resident verification information" means
22	22	the documentation required by the United States Department of
23	23	Homeland Security for completing the employment eligibility
24	24	verification form commonly referred to as the I-9. Documentation
25	25	that satisfies the requirements of the Form I-9 at the time of
26	26	employment is lawful resident verification information.
27	27	(3) "License" means a license, certificate,
28	28	registration, permit, or other authorization that:
29	29	(A) is issued by a licensing authority;
30	30	(B) is subject before expiration to renewal,
31	31	suspension, revocation, forfeiture, or termination by a licensing
32	32	authority; and
33	33	(C) is required for a person to practice or
34	34	engage in a particular business, occupation, or profession.
35	35	(4) "Licensing authority" means a department,
36	36	commission, board, office, or other agency of the state or a
37	37	political subdivision of the state that issues or renews a license.
38	38	(5) "Person not lawfully present" means a person who
39	39	at the time of employment is neither an alien who is lawfully
40	40	admitted for permanent residence in the United States under the
41	41	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
42	42	seq.), nor authorized to be employed by that Act or the United
43	43	States attorney general.
44	44	(b) The definitions in Chapter 201 apply to this chapter.
45	45	Sec. 53.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER;
46	46	EXCEPTION. All licensing authorities are subject to this chapter,
47	47	except that the commission by rule shall adopt a procedure for a
48	48	licensing authority to obtain an exemption from the application of
49	49	this chapter for a license issued by the authority that the
50	50	commission determines is not related to the operation of a
51	51	business.
52	52	Sec. 53.003. RULES. The commission and the comptroller
53	53	shall adopt rules as necessary for the administration of this
54	54	chapter.
55	55	[Sections 53.004-53.050 reserved for expansion]
56	56	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
57	57	NOT LAWFULLY PRESENT
58	58	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
59	59	PERSON NOT LAWFULLY PRESENT; AUTHORIZATION FOR LICENSE SUSPENSION.
60	60	(a) An employer may not knowingly employ a person not lawfully
61	61	present.
62	62	(b) An employer who violates Subsection (a) may be subject
63	63	to the suspension of each license held by the employer as provided
64	64	by this chapter.
65	65	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
66	66	Section 53.051(a) if:
67	67	(1) the employer, at least l4 calendar days after the
68	68	commencement of the employee's employment, requested from the
69	69	employee and received and documented in the employee's employment
70	70	record, lawful resident verification information consistent with
71	71	employer requirements under the federal Immigration Reform and
72	72	Control Act of 1986 (Pub. L. No. 99-603); and
73	73	(2) the lawful resident verification information
74	74	provided by the employee later was determined to be false.
75	75	(b) An employer has not violated Section 53.051(a) if the
76	76	employer verified the immigration status of the person at least 14
77	77	calendar days after the commencement of the employee's employment
78	78	through an electronic federal work authorization program operated
79	79	by the United States Department of Homeland Security to verify
80	80	information of newly hired employees.
81	81	[Sections 53.053-53.100 reserved for expansion]
82	82	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS FOR
83	83	LICENSE SUSPENSION
84	84	Sec. 53.101. FINDING BY COMMISSION; REFERRAL TO
85	85	COMPTROLLER; MEMORANDUM OF UNDERSTANDING. (a) If, after
86	86	conducting an audit of an employer under Subchapter D, Chapter 213,
87	87	the commission finds substantial evidence that the employer is
88	88	operating on a cash-only basis in order to circumvent the
89	89	requirements of Subtitle A, Title 4, a rule adopted under Subtitle
90	90	A, Title 4, or another state law requiring the payment of a tax, and
91	91	that the employer is knowingly employing a person not lawfully
92	92	present in violation of Section 53.051(a), the commission shall
93	93	refer the commission's findings to the comptroller.
94	94	(b) The commission and the comptroller shall adopt a
95	95	memorandum of understanding to develop and implement procedures for
96	96	the referral by the commission to the comptroller under Subsection
97	97	(a).
98	98	Sec. 53.102. INVESTIGATION BY COMPTROLLER; HEARING. (a)
99	99	On receipt of a referral from the commission under Section 53.101,
100	100	the comptroller shall investigate the commission's findings using
101	101	the comptroller's contested case and hearing procedures in an
102	102	attempt to verify information regarding the immigration status of
103	103	the relevant employee or employees of the employer alleged to have
104	104	violated Section 53.051(a).
105	105	(b) During an investigation conducted by the comptroller
106	106	under Subsection (a):
107	107	(1) the employer alleged to have violated Section
108	108	53.051(a) shall specify all licenses held by the employer; and
109	109	(2) the comptroller shall:
110	110	(A) provide notice regarding the investigation
111	111	to:
112	112	(i) the United States Immigration and
113	113	Customs Enforcement agency of the federal Department of Homeland
114	114	Security; and
115	115	(ii) each licensing authority that issued
116	116	any license held by the employer; and
117	117	(B) request the United States Immigration and
118	118	Customs Enforcement agency of the federal Department of Homeland
119	119	Security to verify, under 8 U.S.C. Section 1373(c), the employment
120	120	authorization of each relevant employee.
121	121	(c) The comptroller may make a final determination of
122	122	whether an employer has committed a violation of Section 53.051(a)
123	123	only after the comptroller has received verification from the
124	124	United States Immigration and Customs Enforcement agency of the
125	125	federal Department of Homeland Security under 8 U.S.C. Section
126	126	1373(c) regarding the employment authorization of each relevant
127	127	employee.
128	128	Sec. 53.103. ORDER FOR TERMINATION OF EMPLOYMENT AND FILING
129	129	OF AFFIDAVIT. (a) On a final determination by the comptroller that
130	130	an employer has violated Section 53.051(a), the comptroller shall:
131	131	(1) issue an order requiring the employer to:
132	132	(A) terminate the employment of each employee who
133	133	is a person not legally present; and
134	134	(B) file with the comptroller, within 10 business
135	135	days after the date the order is issued, a sworn affidavit stating
136	136	that the employer has:
137	137	(i) terminated the employment of each of
138	138	those employees;
139	139	(ii) after consulting with each employee
140	140	who is a person not legally present, requested a secondary or
141	141	additional verification of employment authorization using an
142	142	electronic federal work authorization program operated by the
143	143	United States Department of Homeland Security or I-9 Employment
144	144	Eligibility Verification Program; or
145	145	(iii) attempted to terminate the employment
146	146	of each employee who is a person not legally present and that
147	147	termination has been challenged in a court; and
148	148	(2) notify the United States Immigration and Customs
149	149	Enforcement agency of the federal Department of Homeland Security
150	150	and the applicable local law enforcement agency of the identity and
151	151	address, if known, of each employee who is a person not lawfully
152	152	present.
153	153	(b) Notwithstanding any other provision of this subchapter,
154	154	during the pendency of an action taken under Subsection
155	155	(a)(1)(B)(ii) or (iii):
156	156	(1) the employer is not required to terminate the
157	157	employment of any employee determined by the comptroller to be a
158	158	person not lawfully present; and
159	159	(2) the comptroller may not order the suspension of
160	160	any license held by the employer.
161	161	Sec. 53.104. ORDER OF LICENSE SUSPENSION; NOTICE TO
162	162	LICENSING AUTHORITIES. (a) Except as provided by Subsection (b),
163	163	if an employer fails to comply with an order issued under Section
164	164	53.103, the comptroller shall order the suspension of each license
165	165	held by the employer until the comptroller finds that the employer
166	166	has complied with the requirements of Section 53.103.
167	167	(b) On a final determination by the comptroller that an
168	168	employer has violated Section 53.051(a) more than one time during a
169	169	two-year period, the comptroller shall order the suspension of each
170	170	license held by the employer for a period of at least 30 days. A
171	171	license suspended under this subsection may not be reinstated until
172	172	the comptroller finds that the employer has complied with the
173	173	requirements of Section 53.103.
174	174	(c) The comptroller shall promptly send to the appropriate
175	175	licensing authorities a copy of any order issued by the comptroller
176	176	under this section.
177	177	(d) The comptroller shall maintain in a prominent location
178	178	on the comptroller's Internet website a database accessible to the
179	179	public containing copies of each order issued under this section.
180	180	[Sections 53.105-53.150 reserved for expansion]
181	181	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
182	182	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
183	183	from the comptroller of an order suspending a license, a licensing
184	184	authority shall immediately determine if the authority has issued a
185	185	license to the person named on the order and, if a license has been
186	186	issued:
187	187	(1) record the suspension of the license in the
188	188	licensing authority's records;
189	189	(2) report the suspension as appropriate; and
190	190	(3) demand surrender of the suspended license if
191	191	required by law for other cases in which a license is suspended.
192	192	(b) A licensing authority shall implement the terms of the
193	193	comptroller's final order suspending a license without additional
194	194	review or hearing. The authority may provide notice as appropriate
195	195	to the license holder or to others concerned with the license.
196	196	(c) A licensing authority may not modify, remand, reverse,
197	197	vacate, or stay an order suspending a license issued under this
198	198	chapter and may not review, vacate, or reconsider the terms of a
199	199	final order suspending a license.
200	200	(d) A person who is the subject of a final order suspending a
201	201	license is not entitled to a refund for any fee or deposit paid to
202	202	the licensing authority.
203	203	(e) A person who continues to engage in the business,
204	204	occupation, profession, or other licensed activity after the
205	205	implementation of the order suspending a license by the licensing
206	206	authority is liable for the same civil and criminal penalties
207	207	provided for engaging in the licensed activity without a license or
208	208	while a license is suspended that apply to any other license holder
209	209	of that licensing authority.
210	210	(f) A licensing authority is exempt from liability to a
211	211	license holder for any act authorized under this chapter performed
212	212	by the authority.
213	213	(g) Except as provided by this chapter, an order suspending
214	214	a license does not affect the power of a licensing authority to
215	215	grant, deny, suspend, revoke, terminate, or renew a license.
216	216	(h) An order issued under this chapter to suspend a license
217	217	of a person applies to each license for which the person is eligible
218	218	issued by the licensing authority subject to the order. The
219	219	licensing authority may not issue or renew any other license for the
220	220	person during the suspension period.
221	221	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
222	222	authority may charge a fee to a person that is the subject of an
223	223	order suspending a license in an amount sufficient to recover the
224	224	administrative costs incurred by the authority under this chapter.
225	225	SECTION 2. Chapter 53, Labor Code, as added by this Act,
226	226	applies only to a violation that occurs on or after the effective
227	227	date of this Act.
228	228	SECTION 3. The Texas Workforce Commission and the
229	229	comptroller of public accounts shall adopt the rules and memorandum
230	230	of understanding required by Chapter 53, Labor Code, as added by
231	231	this Act, as soon as practicable after the effective date of this
232	232	Act.
233	233	SECTION 4. This Act takes effect September 1, 2009.