83R17433 DDT-F
By: Callegari, Laubenberg, et al. H.B. No. 87
Substitute the following for H.B. No. 87:
By: Harper-Brown C.S.H.B. No. 87
A BILL TO BE ENTITLED
AN ACT
relating to regulation of an individual's occupation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle E, Title 2, Labor Code, is amended by
adding Chapter 94 to read as follows:
CHAPTER 94. RIGHT TO ENGAGE IN OCCUPATION
Sec. 94.001. DEFINITION. In this chapter, "state agency"
means an agency, department, board, or commission of the state.
Sec. 94.002. INDIVIDUAL'S RIGHT TO ENGAGE IN OCCUPATION.
An individual may engage in an occupation not prohibited by law free
from any substantial burden created by a state agency rule, policy,
or practice unless the state agency demonstrates that:
(1) the state has a compelling governmental interest
in protecting against actual and specific harm to the public health
or safety; and
(2) the rule, policy, or practice is narrowly tailored
to further that compelling governmental interest.
Sec. 94.003. DEFENSE AND RELIEF. (a) An individual may
assert as a defense in any administrative or judicial proceeding to
enforce a state agency rule, policy, or practice that the standard
required by Section 94.002 has not been met.
(b) An individual who asserts a defense under this section
must show by a preponderance of the evidence that the state agency
rule, policy, or practice substantially burdens the individual's
right to engage in an occupation not prohibited by law.
(c) If the individual meets the preponderance of the
evidence burden required by Subsection (b), the state agency must
then demonstrate by a preponderance of the evidence that the state
has a compelling governmental interest in protecting against actual
and specific harm to the public health or safety, and that the rule,
policy, or practice is narrowly tailored to further that compelling
governmental interest.
Sec. 94.004. ADMINISTRATIVE OR JUDICIAL DETERMINATION. A
judge or other authority presiding over a proceeding in which a
person asserts a defense under Section 94.003, including an
administrative law judge, shall make findings of fact and
conclusions of law when making a determination in a proceeding
under this chapter. The judge or other authority may not make a
presumption based on legislative or administrative determinations
regarding:
(1) harm to the public health or safety; or
(2) whether the regulation is narrowly tailored to
further a compelling governmental interest.
SECTION 2. Chapter 94, Labor Code, as added by this Act,
applies only to an action commenced on or after the effective date
of this Act. An action commenced before the effective date of this
Act is governed by the law applicable to the action immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 3. This Act takes effect September 1, 2013.