82R3589 MAW/TJS-D
By: Berman H.B. No. 2878
A BILL TO BE ENTITLED
AN ACT
relating to the creation of certain criminal offenses involving
unauthorized aliens, to the forfeiture of property in relation to
criminal offenses involving unauthorized aliens, and to the
creation of a private cause of action for employing or contracting
with unauthorized aliens.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 94 to read as follows:
CHAPTER 94. LIABILITY FOR EMPLOYMENT OF UNAUTHORIZED ALIEN
Sec. 94.001. DEFINITION. In this chapter, "unauthorized
alien" has the meaning assigned by Section 40.01, Penal Code.
Sec. 94.002. LIABILITY. (a) A person is liable as provided
by Subsection (b) if the person intentionally, knowingly, or
recklessly:
(1) employs an unauthorized alien; or
(2) contracts for the performance of labor or other
work with an unauthorized alien.
(b) A person who is liable under Subsection (a) is liable to
the state for actual damages and any other appropriate relief.
(c) It is not a defense to liability under this chapter that
a defendant has not been prosecuted under Section 40.02, Penal
Code, or has been convicted of a different type or class of offense,
for the conduct that is alleged to give rise to liability under this
chapter.
Sec. 94.003. QUI TAM ACTION. (a) A person may file a civil
action for violation of Section 94.002. An action brought under
this section is a qui tam action on behalf of both the person and the
state and must be brought in the name of the person and the state.
(b) A person bringing an action under this section shall
serve a copy of the petition and a written disclosure of
substantially all material evidence and information the person
possesses on the attorney general in compliance with the Texas
Rules of Civil Procedure.
(c) The petition shall be filed in camera and, except as
provided by Subsection (e) or (f), shall remain under seal until at
least the 180th day after the date the petition is filed or the date
on which the state elects to intervene, whichever is earlier. The
petition may not be served on the defendant until the court orders
service on the defendant.
(d) The state may elect to intervene and proceed with the
action not later than the 180th day after the date the attorney
general receives the petition and the material evidence and
information.
(e) At the time the state intervenes, the attorney general
may file a motion with the court requesting that the petition remain
under seal for an extended period.
(f) The state may, for good cause shown, move the court to
extend the 180-day deadline under Subsection (c) or (d). A motion
under this subsection may be supported by affidavits or other
submissions in camera.
(g) An action under this section may be dismissed before the
end of the period during which the petition remains under seal only
if the court and the attorney general consent in writing to the
dismissal and state their reasons for consenting.
(h) A defendant is not required to file in accordance with
the Texas Rules of Civil Procedure an answer to a petition filed
under this section until the petition is unsealed and served on the
defendant.
(i) Not later than the last day of the period prescribed by
Subsection (d) or an extension of that period as provided by
Subsection (e) or (f), the state shall:
(1) proceed with the action; or
(2) notify the court that the state declines to take
over the action.
(j) If the state declines to take over the action, the
person bringing the action may proceed without the state's
participation. On request by the state, the state is entitled to be
served with copies of all pleadings filed in the action and be
provided at the state's expense with copies of all deposition
transcripts. If the person bringing the action proceeds without
the state's participation, the court, without limiting the status
and right of that person, may permit the state to intervene at a
later date on a showing of good cause.
(k) If the state proceeds with the action, the state has the
primary responsibility for prosecuting the action and is not bound
by an act of the person bringing the action. The person bringing
the action has the right to continue as a party to the action,
subject to the limitations in this section.
(l) The state may dismiss the action notwithstanding the
objections of the person bringing the action if:
(1) the attorney general notifies the person that the
state has filed a motion to dismiss; and
(2) the court provides the person with an opportunity
for a hearing on the motion.
(m) The state may settle the action with the defendant
notwithstanding the objections of the person bringing the action if
the court determines, after a hearing, that the proposed settlement
is fair, adequate, and reasonable under all the circumstances. On a
showing of good cause, the hearing may be held in camera.
(n) On a showing by the state that unrestricted
participation during the course of the litigation by the person
bringing the action would interfere with or unduly delay the
state's prosecution of the case, or would be repetitious,
irrelevant, or for purposes of harassment, the court may impose
limitations on the person's participation, including:
(1) limiting the number of witnesses the person may
call;
(2) limiting the length of the testimony of witnesses
called by the person;
(3) limiting the person's cross-examination of
witnesses; or
(4) otherwise limiting the participation by the person
in the litigation.
(o) On a showing by the defendant that unrestricted
participation during the course of the litigation by the person
bringing the action would be for purposes of harassment or would
cause the defendant undue burden or unnecessary expense, the court
may limit the participation by the person in the litigation.
(p) A person bringing an action under this section may
recover an amount not greater than half of the amount that the state
recovers as a result of the person bringing the action, excluding
attorney's fees and other expenses, interest, and costs, not to
exceed one-third of any judgment or award.
SECTION 2. Article 59.01(2), Code of Criminal Procedure, as
amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
reenacted and amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30,
31, 32, 33, 33A, or 35, Penal Code;
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
(iv) any offense under Chapter 49, Penal
Code, that is punishable as a felony of the third degree or state
jail felony, if the defendant has been previously convicted three
times of an offense under that chapter;
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Chapter
522, Business & Commerce Code;
(ix) a Class A misdemeanor under Section
306.051, Business & Commerce Code; [or]
(x) any offense under Section 42.10, Penal
Code;
(xi) [(x)] any offense under Section
46.06(a)(1) or 46.14, Penal Code; or
(xii) [(x)] any offense under Chapter 71,
Penal Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(viii), (x), (xi), or (xii)
[(B)(viii) or (x)] of this subdivision, or a crime of violence;
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(viii), (x),
(xi), or (xii) [(B)(viii) or (x)] of this subdivision, or a crime of
violence; [or]
(E) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 15.031 or
43.25, Penal Code; or
(F) located within this state and owned by a
person convicted of an offense under one or more of the following
provisions of the Penal Code, regardless of whether the property
was used or intended to be used in the commission of the offense or
offenses:
(i) Section 30.055, Penal Code;
(ii) Section 40.02, Penal Code; or
(iii) Section 38.05, Penal Code, if the
person who is harbored or concealed, provided with a means of
avoiding arrest or effecting escape, or warned of impending
discovery or apprehension:
(a) is a citizen of any country other
than the United States; and
(b) entered or remained on or in any
public or private property in this state in violation of 8 U.S.C.
Section 1325 or 1326.
SECTION 3. Chapter 30, Penal Code, is amended by adding
Section 30.055 to read as follows:
Sec. 30.055. CRIMINAL TRESPASS BY UNAUTHORIZED ALIEN. (a)
A person commits an offense if the person:
(1) is a citizen of any country other than the United
States; and
(2) enters or remains on or in any public or private
property in this state in violation of 8 U.S.C. Section 1325 or
1326.
(b) An offense under this section is a felony of the third
degree.
SECTION 4. The heading to Title 8, Penal Code, is amended to
read as follows:
TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION AND THE
ADMINISTRATION OF CERTAIN LAWS
SECTION 5. Title 8, Penal Code, is amended by adding Chapter
40 to read as follows:
CHAPTER 40. CERTAIN EMPLOYMENT OR CONTRACTS PROHIBITED UNDER
FEDERAL LAW
Sec. 40.01. DEFINITION. In this chapter, "unauthorized
alien" has the meaning assigned by 8 U.S.C. Section 1324a(h)(3).
Sec. 40.02. EMPLOYING OR CONTRACTING WITH UNAUTHORIZED
ALIEN. (a) A person commits an offense if the person
intentionally, knowingly, or recklessly:
(1) employs an unauthorized alien; or
(2) contracts for the performance of labor or other
work with an unauthorized alien.
(b) An offense under this section is a felony of the third
degree.
Sec. 40.03. EXCEPTION. It is an exception to the
application of Section 40.02 that the actor attempted to verify the
unauthorized alien's immigration status or work authorization and
had no knowledge of the unauthorized alien's actual immigration
status or work authorization.
SECTION 6. The change in law made by this Act in amending
Article 59.01(2), Code of Criminal Procedure, applies only to the
forfeiture of property in relation to an offense committed on or
after the effective date of this Act. Forfeiture of property in
relation to an offense committed before the effective date of this
Act is governed by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
SECTION 7. To the extent of any conflict, this Act prevails
over another Act of the 82nd Legislature, Regular Session, 2011,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 8. This Act takes effect September 1, 2011.