Texas 2015 - 84th Regular

Texas House Bill HB630 Compare Versions

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

Old	New	Differences
1	1	84R4260 KSD/MTB-D
2	2	By: Bonnen of Galveston H.B. No. 630
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to requiring state contractors and governmental entities
8	8	to participate in the federal electronic verification of work
9	9	authorization program, or E-Verify, and authorizing the suspension
10	10	of certain licenses held by private employers for the knowing
11	11	employment of persons not lawfully present in this state;
12	12	authorizing a fee.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. The heading to Chapter 2264, Government Code, is
15	15	amended to read as follows:
16	16	CHAPTER 2264. CERTAIN RESTRICTIONS ON [USE OF CERTAIN] PUBLIC
17	17	SUBSIDIES AND STATE CONTRACTS
18	18	SECTION 2. Section 2264.101, Government Code, is
19	19	transferred to Subchapter B, Chapter 2264, Government Code,
20	20	redesignated as Section 2264.054, Government Code, and amended to
21	21	read as follows:
22	22	Sec. 2264.054 [2264.101]. RECOVERY. (a) A public
23	23	agency, local taxing jurisdiction, or economic development
24	24	corporation, or the attorney general on behalf of the state or a
25	25	state agency, may bring a civil action to recover any amounts owed
26	26	to the public agency, state or local taxing jurisdiction, or
27	27	economic development corporation under this subchapter [chapter].
28	28	(b) The public agency, local taxing jurisdiction, economic
29	29	development corporation, or attorney general, as applicable, shall
30	30	recover court costs and reasonable attorney's fees incurred in an
31	31	action brought under Subsection (a).
32	32	(c) A business is not liable for a violation of this
33	33	subchapter [chapter] by a subsidiary, affiliate, or franchisee of
34	34	the business, or by a person with whom the business contracts.
35	35	SECTION 3. The heading to Subchapter C, Chapter 2264,
36	36	Government Code, is amended to read as follows:
37	37	SUBCHAPTER C. E-VERIFY PROGRAM [ENFORCEMENT]
38	38	SECTION 4. Subchapter C, Chapter 2264, Government Code, is
39	39	amended by adding Sections 2264.1011, 2264.102, and 2264.103 to
40	40	read as follows:
41	41	Sec. 2264.1011. DEFINITIONS. In this subchapter:
42	42	(1) "E-Verify program" means the electronic
43	43	verification of employment authorization program of the federal
44	44	Illegal Immigration Reform and Immigrant Responsibility Act of 1996
45	45	(Pub. L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a),
46	46	operated by the United States Department of Homeland Security, or a
47	47	successor employment authorization program designated by the
48	48	United States Department of Homeland Security or other federal
49	49	agency authorized to verify the employment authorization status of
50	50	newly hired employees pursuant to the federal Immigration Reform
51	51	and Control Act of 1986 (8 U.S.C. Section 1101 et seq.).
52	52	(2) "State agency" has the meaning assigned by Section
53	53	2103.001.
54	54	Sec. 2264.102. VERIFICATION BY CONTRACTORS. (a) A state
55	55	agency may not award a contract for goods or services within this
56	56	state to a contractor unless the contractor and any subcontractor
57	57	register with and participate in the E-Verify program to verify
58	58	employee information. The contractor and any subcontractor must
59	59	continue to participate in the program during the term of the
60	60	contract.
61	61	(b) Each contract with a state agency must include the
62	62	following statement:
63	63	"______________ (name of contractor) certifies that
64	64	__________ (name of contractor) is not ineligible to receive this
65	65	contract under Subchapter C, Chapter 2264, Government Code, and
66	66	acknowledges that if this certification is inaccurate or becomes
67	67	inaccurate during the term of the contract, the contractor may be
68	68	barred from participating in state contracts."
69	69	(c) If a state agency determines that a contractor was
70	70	ineligible to have the contract awarded under Subsection (a), that
71	71	a contractor has ceased participation in the E-Verify program
72	72	during the term of the contract, or that a subcontractor is not
73	73	registered with or is not participating in the E-Verify program,
74	74	the state agency shall refer the matter to the comptroller for
75	75	action.
76	76	(d) Each state agency shall develop procedures for the
77	77	administration of this section.
78	78	Sec. 2264.103. BARRING FROM STATE CONTRACTS. (a) Using
79	79	procedures prescribed under Section 2155.077, the comptroller
80	80	shall bar a contractor from participating in state contracts if the
81	81	comptroller determines that the contractor:
82	82	(1) was awarded a contract in violation of Section
83	83	2264.102;
84	84	(2) has ceased participation in the E-Verify program
85	85	during the term of the contract; or
86	86	(3) hired a subcontractor to perform work under the
87	87	contract who is not registered with or is not participating in the
88	88	E-Verify program.
89	89	(b) Debarment under this section is for a period of one year
90	90	except that the debarment may be extended by the comptroller for
91	91	additional one-year periods if the comptroller determines that the
92	92	grounds for debarment under this section continue to exist.
93	93	SECTION 5. Subtitle A, Title 6, Government Code, is amended
94	94	by adding Chapter 619 to read as follows:
95	95	CHAPTER 619. VERIFICATION OF EMPLOYEE INFORMATION
96	96	Sec. 619.001. DEFINITIONS. In this chapter:
97	97	(1) "E-Verify program" means the electronic
98	98	verification of employment authorization program of the federal
99	99	Illegal Immigration Reform and Immigrant Responsibility Act of 1996
100	100	(Pub. L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a),
101	101	operated by the United States Department of Homeland Security, or a
102	102	successor employment authorization program designated by the
103	103	United States Department of Homeland Security or other federal
104	104	agency authorized to verify the employment authorization status of
105	105	newly hired employees pursuant to the federal Immigration Reform
106	106	and Control Act of 1986 (8 U.S.C. Section 1101 et seq.).
107	107	(2) "Governmental entity" means:
108	108	(A) the state; or
109	109	(B) a political subdivision of the state,
110	110	including a municipality, a county, or any kind of district.
111	111	Sec. 619.002. VERIFICATION. A governmental entity shall
112	112	register and participate in the E-Verify program to verify
113	113	information of all new employees.
114	114	Sec. 619.003. RULES. The Texas Workforce Commission shall
115	115	adopt rules and prescribe forms to implement this chapter.
116	116	Sec. 619.004. TERMINATION OF EMPLOYMENT. An employee of a
117	117	governmental entity who is responsible for verifying information of
118	118	new employees of the governmental entity as required by Section
119	119	619.002 is subject to immediate termination of employment if the
120	120	employee fails to comply with that section.
121	121	SECTION 6. Subtitle B, Title 2, Labor Code, is amended by
122	122	adding Chapter 53 to read as follows:
123	123	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED
124	124	STATES
125	125	SUBCHAPTER A. GENERAL PROVISIONS
126	126	Sec. 53.001. DEFINITIONS. In this chapter:
127	127	(1) "Commission" means the Texas Workforce
128	128	Commission.
129	129	(2) "Employee" means an individual who is employed by
130	130	an employer for compensation. The term includes an individual
131	131	employed on a part-time basis.
132	132	(3) "Employer" means a person, other than a
133	133	governmental entity, who:
134	134	(A) employs one or more employees; or
135	135	(B) acts directly or indirectly in the interests
136	136	of an employer in relation to an employee.
137	137	(4) "Employment" means any service, including service
138	138	in interstate commerce, that is performed for wages or under a
139	139	contract of hire, whether written or oral or express or implied.
140	140	The term does not include any service performed by an individual for
141	141	wages if it is shown that the individual is free from control or
142	142	direction in the performance of the service, both under any
143	143	contract of service and in fact.
144	144	(5) "Lawful resident alien" means a person who is
145	145	entitled to lawful residence in the United States under the federal
146	146	Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).
147	147	(6) "Lawful resident verification information" means
148	148	the documentation required by the United States Department of
149	149	Homeland Security for completing the employment eligibility
150	150	verification form commonly referred to as the I-9. Documentation
151	151	that satisfies the requirements of the Form I-9 at the time of
152	152	employment is lawful resident verification information.
153	153	(7) "License" means a license, certificate,
154	154	registration, permit, or other authorization that:
155	155	(A) is issued by a licensing authority;
156	156	(B) is subject before expiration to renewal,
157	157	suspension, revocation, forfeiture, or termination by a licensing
158	158	authority; and
159	159	(C) is required for a person to practice or
160	160	engage in a particular business, occupation, or profession.
161	161	(8) "Licensing authority" means a department,
162	162	commission, board, office, or other agency of the state or a
163	163	political subdivision of the state that issues or renews a license.
164	164	(9) "Person not lawfully present" means a person who
165	165	at the time of employment is neither an alien who is lawfully
166	166	admitted for permanent residence in the United States under the
167	167	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
168	168	seq.) nor authorized to be employed by that Act or the United States
169	169	attorney general.
170	170	Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
171	171	an individual performing services for the employer as an
172	172	independent contractor instead of as an employee of the employer
173	173	solely for the purpose of avoiding the requirements applicable to
174	174	an employer under this chapter.
175	175	Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
176	176	licensing authorities are subject to this chapter.
177	177	Sec. 53.004. RULES. The commission shall adopt rules for
178	178	the administration of this chapter.
179	179	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
180	180	NOT LAWFULLY PRESENT
181	181	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
182	182	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An
183	183	employer may not knowingly employ a person not lawfully present.
184	184	(b) An employer who violates Subsection (a) is subject to
185	185	the suspension of each license held by the employer as provided by
186	186	this chapter.
187	187	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
188	188	Section 53.051(a) if:
189	189	(1) the employer, at least l4 calendar days after the
190	190	commencement of the employee's employment, requested from the
191	191	employee and received and documented in the employee's employment
192	192	record lawful resident verification information consistent with
193	193	employer requirements under the federal Immigration Reform and
194	194	Control Act of 1986 (Pub. L. No. 99-603); and
195	195	(2) the lawful resident verification information
196	196	provided by the employee later was determined to be false.
197	197	(b) An employer has not violated Section 53.051(a) if the
198	198	employer verified the immigrant status of the person at least 14
199	199	calendar days after the commencement of the employee's employment
200	200	through an electronic federal employment authorization program
201	201	operated by the United States Department of Homeland Security to
202	202	verify information of newly hired employees.
203	203	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
204	204	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
205	205	to believe that an employer has violated Section 53.051(a) may file
206	206	a complaint with the commission in accordance with this subchapter.
207	207	(b) A complaint must:
208	208	(1) be in writing on a form prescribed by the
209	209	commission; and
210	210	(2) be verified by the person making the complaint.
211	211	(c) A person may file a complaint under this section:
212	212	(1) in person at an office of the commission; or
213	213	(2) by mailing the complaint to an address designated
214	214	by the commission.
215	215	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
216	216	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
217	217	employed by the commission shall investigate the complaint in an
218	218	attempt to:
219	219	(1) verify information regarding the immigration
220	220	status of the relevant employee or employees of the employer
221	221	alleged to have violated Section 53.051(a); and
222	222	(2) determine whether a hearing should be conducted.
223	223	(b) During the investigation, the employer alleged to have
224	224	violated Section 53.051(a) shall specify all licenses held by the
225	225	employer.
226	226	(c) If the examiner determines that there is no substantial
227	227	evidence that the employer violated Section 53.051(a), the examiner
228	228	shall issue a preliminary dismissal order dismissing the complaint.
229	229	(d) If the examiner determines that there is substantial
230	230	evidence that the employer violated Section 53.051(a), the examiner
231	231	shall refer the complaint to a hearing tribunal established under
232	232	Section 53.103.
233	233	(e) The examiner shall mail notice of the preliminary
234	234	dismissal order or referral order to each party at that party's last
235	235	known address, as reflected by commission records.
236	236	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
237	237	commission shall establish one or more impartial hearing tribunals
238	238	to hear and decide complaints under this chapter.
239	239	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
240	240	ORDER. (a) A party may request a hearing before a hearing tribunal
241	241	to appeal a preliminary dismissal order made under Section
242	242	53.102(c).
243	243	(b) The request for the hearing must be made in writing not
244	244	later than the 21st day after the date the examiner mails the notice
245	245	of the preliminary dismissal order.
246	246	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
247	247	NOT REQUESTED. If neither party requests a hearing to appeal a
248	248	preliminary dismissal order made under Section 53.102(c) within the
249	249	period prescribed by Section 53.104, the order becomes the final
250	250	order of the commission for all purposes, and neither party is
251	251	entitled to judicial review of the order under this subchapter.
252	252	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
253	253	regarding a hearing conducted under this subchapter must be mailed
254	254	by the hearing tribunal not later than the 21st day after the date
255	255	the referral order or request for the hearing is received by the
256	256	commission.
257	257	(b) As soon as practicable, but not later than the 45th day
258	258	after the date a notice is mailed under Subsection (a), the tribunal
259	259	shall conduct the hearing.
260	260	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
261	261	under this subchapter is subject to the rules and hearings
262	262	procedures used by the commission in the determination of a claim
263	263	for unemployment compensation benefits.
264	264	(b) The hearing is not subject to Chapter 2001, Government
265	265	Code.
266	266	Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
267	267	the hearing tribunal finds by clear and convincing evidence that
268	268	the employer has violated Section 53.051(a), the hearing tribunal
269	269	shall:
270	270	(1) for a first violation, enter a written order:
271	271	(A) requiring the employer to:
272	272	(i) terminate the employment of each
273	273	employee who is a person not legally present; and
274	274	(ii) file with the hearing tribunal, within
275	275	30 business days after the date the order is entered, a sworn
276	276	affidavit stating that the employer has terminated the employment
277	277	of each of those employees; and
278	278	(B) notifying the employer that failure to file
279	279	the affidavit required by Paragraph (A)(ii) will result in the
280	280	suspension of the employer's licenses as provided by Subdivision
281	281	(2); or
282	282	(2) for a second or subsequent violation, or on a
283	283	finding that an employer has failed to file an affidavit required by
284	284	Subdivision (1)(A)(ii), enter a written order suspending for a
285	285	period of one year any license held by the employer.
286	286	(b) After a hearing, if the hearing tribunal does not find
287	287	by clear and convincing evidence that the employer has violated
288	288	Section 53.051(a), the hearing tribunal shall enter a written order
289	289	dismissing the complaint.
290	290	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
291	291	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
292	292	the hearing notice of the tribunal's decision. The notice shall be
293	293	mailed to a party's last known address, as reflected by commission
294	294	records.
295	295	(b) The order of the hearing tribunal becomes final on the
296	296	14th day after the date the order is mailed unless a further appeal
297	297	to the commission is initiated as provided by this subchapter.
298	298	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
299	299	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
300	300	itself or transfer to another hearing tribunal the proceedings on a
301	301	complaint before a hearing tribunal.
302	302	(b) The commission promptly shall mail to the parties to the
303	303	affected hearing notice of the order under Subsection (a).
304	304	(c) A quorum of the commission shall hear a proceeding
305	305	removed to the commission under Subsection (a).
306	306	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
307	307	The commission may:
308	308	(1) on its own motion:
309	309	(A) affirm, modify, or set aside an order issued
310	310	under Section 53.108 on the basis of the evidence previously
311	311	submitted in the case; or
312	312	(B) direct the taking of additional evidence; or
313	313	(2) permit any of the parties affected by the order to
314	314	initiate an appeal before the commission.
315	315	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
316	316	The commission shall mail to each party to an appeal under Section
317	317	53.111 notice of:
318	318	(1) the commission's decision; and
319	319	(2) the parties' right to judicial review of the order.
320	320	(b) The notice shall be mailed to a party's last known
321	321	address, as reflected by commission records.
322	322	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
323	323	commission becomes final on the 14th day after the date the order is
324	324	mailed unless before that date:
325	325	(1) the commission by order reopens the appeal; or
326	326	(2) a party to the appeal files a written motion for
327	327	rehearing.
328	328	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted
329	329	the party's administrative remedies under this chapter, other than
330	330	a motion for rehearing, may bring a suit to appeal the order.
331	331	(b) The suit must be filed not later than the 30th day after
332	332	the date the final order is mailed to the party.
333	333	(c) The commission and any other party to the proceeding
334	334	before the commission must be made defendants in the suit.
335	335	(d) The suit must be brought in the county of residence of
336	336	the party seeking judicial review. If the party is not a resident
337	337	of this state, the suit must be brought in the county in this state
338	338	in which the employer has its principal place of business.
339	339	(e) An appeal under this subchapter is by trial de novo with
340	340	the substantial evidence rule being the standard of review in the
341	341	manner as applied to an appeal from a final decision under Subtitle
342	342	A, Title 4.
343	343	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
344	344	SUSPENDING LICENSE. The commission shall promptly mail to the
345	345	appropriate licensing authority a final order suspending a license
346	346	entered under this chapter.
347	347	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
348	348	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
349	349	from the commission of a final order suspending a license, a
350	350	licensing authority shall immediately determine if the authority
351	351	has issued a license to the person named on the order and, if a
352	352	license has been issued:
353	353	(1) record the suspension of the license in the
354	354	licensing authority's records;
355	355	(2) report the suspension as appropriate; and
356	356	(3) demand surrender of the suspended license if
357	357	required by law for other cases in which a license is suspended.
358	358	(b) A licensing authority shall implement the terms of a
359	359	final order suspending a license without additional review or
360	360	hearing. The authority may provide notice as appropriate to the
361	361	license holder or to others concerned with the license.
362	362	(c) A licensing authority may not modify, remand, reverse,
363	363	vacate, or stay an order suspending a license issued under this
364	364	chapter and may not review, vacate, or reconsider the terms of a
365	365	final order suspending a license.
366	366	(d) A person who is the subject of a final order suspending a
367	367	license is not entitled to a refund for any fee or deposit paid to
368	368	the licensing authority.
369	369	(e) A person who continues to engage in the business,
370	370	occupation, profession, or other licensed activity after the
371	371	implementation of the order suspending a license by the licensing
372	372	authority is liable for the same civil and criminal penalties
373	373	provided for engaging in the licensed activity without a license or
374	374	while a license is suspended that apply to any other license holder
375	375	of that licensing authority.
376	376	(f) A licensing authority is exempt from liability to a
377	377	license holder for any act authorized under this chapter performed
378	378	by the authority.
379	379	(g) Except as provided by this chapter, an order suspending
380	380	a license does not affect the power of a licensing authority to
381	381	grant, deny, suspend, revoke, terminate, or renew a license.
382	382	(h) An order issued under this chapter to suspend a license
383	383	of a person applies to each license issued by the licensing
384	384	authority subject to the order for which the person is eligible.
385	385	The licensing authority may not issue or renew any other license for
386	386	the person during the suspension period.
387	387	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
388	388	authority may charge a fee to a person who is the subject of an order
389	389	suspending a license in an amount sufficient to recover the
390	390	administrative costs incurred by the authority under this chapter.
391	391	SECTION 7. Each state agency subject to Subchapter C,
392	392	Chapter 2264, Government Code, as amended by this Act, shall
393	393	develop the procedures required under Section 2264.102(d),
394	394	Government Code, as added by this Act, not later than October 1,
395	395	2015.
396	396	SECTION 8. Sections 2264.1011, 2264.102, and 2264.103,
397	397	Government Code, as added by this Act, apply only in relation to a
398	398	contract for which the request for bids or proposals or other
399	399	applicable expression of interest is made public on or after the
400	400	effective date of this Act.
401	401	SECTION 9. Chapter 53, Labor Code, as added by this Act,
402	402	applies only to a violation that occurs on or after the effective
403	403	date of this Act.
404	404	SECTION 10. This Act takes effect September 1, 2015.