Texas 2017 - 85th Regular

Texas House Bill HB1453 Compare Versions

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

Old	New	Differences
1	1	85R5369 KSD/MTB-D
2	2	By: Bonnen of Galveston H.B. No. 1453
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to requiring state contractors and political subdivisions
8	8	of this state to participate in the federal electronic verification
9	9	of employment authorization program, or E-verify, and authorizing
10	10	the suspension of certain licenses held by private employers for
11	11	the knowing employment of persons not lawfully present in this
12	12	state; 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 agency,
23	23	local taxing jurisdiction, or economic development corporation, or
24	24	the attorney general on behalf of the state or a state agency, may
25	25	bring a civil action to recover any amounts owed to the public
26	26	agency, state or local taxing jurisdiction, or economic development
27	27	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" has the meaning assigned by
43	43	Section 673.001.
44	44	(2) "State agency" has the meaning assigned by Section
45	45	2103.001.
46	46	Sec. 2264.102. VERIFICATION BY CONTRACTORS. (a) A state
47	47	agency may not award a contract for goods or services within this
48	48	state to a contractor unless the contractor and any subcontractor
49	49	register with and participate in the E-verify program to verify
50	50	employee information. The contractor and any subcontractor must
51	51	continue to participate in the program during the term of the
52	52	contract.
53	53	(b) Each contract with a state agency must include the
54	54	following statement:
55	55	"______________ (name of contractor) certifies that
56	56	__________ (name of contractor) is not ineligible to receive this
57	57	contract under Subchapter C, Chapter 2264, Government Code, and
58	58	acknowledges that if this certification is inaccurate or becomes
59	59	inaccurate during the term of the contract, the contractor may be
60	60	barred from participating in state contracts."
61	61	(c) If a state agency determines that a contractor was
62	62	ineligible to have the contract awarded under Subsection (a), that
63	63	a contractor has ceased participation in the E-verify program
64	64	during the term of the contract, or that a subcontractor is not
65	65	registered with or is not participating in the E-verify program,
66	66	the state agency shall refer the matter to the comptroller for
67	67	action.
68	68	(d) Each state agency shall develop procedures for the
69	69	administration of this section.
70	70	Sec. 2264.103. BARRING FROM STATE CONTRACTS. (a) Using
71	71	procedures prescribed under Section 2155.077, the comptroller
72	72	shall bar a contractor from participating in state contracts if the
73	73	comptroller determines that the contractor:
74	74	(1) was awarded a contract in violation of Section
75	75	2264.102;
76	76	(2) has ceased participation in the E-verify program
77	77	during the term of the contract; or
78	78	(3) hired a subcontractor to perform work under the
79	79	contract who is not registered with or is not participating in the
80	80	E-verify program.
81	81	(b) Debarment under this section is for a period of one year
82	82	except that the debarment may be extended by the comptroller for
83	83	additional one-year periods if the comptroller determines that the
84	84	grounds for debarment under this section continue to exist.
85	85	SECTION 5. Subtitle B, Title 2, Labor Code, is amended by
86	86	adding Chapter 53 to read as follows:
87	87	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED
88	88	STATES
89	89	SUBCHAPTER A. GENERAL PROVISIONS
90	90	Sec. 53.001. DEFINITIONS. In this chapter:
91	91	(1) "Commission" means the Texas Workforce
92	92	Commission.
93	93	(2) "Employee" means an individual who is employed by
94	94	an employer for compensation. The term includes an individual
95	95	employed on a part-time basis.
96	96	(3) "Employer" means a person, other than a
97	97	governmental entity, who:
98	98	(A) employs one or more employees; or
99	99	(B) acts directly or indirectly in the interests
100	100	of an employer in relation to an employee.
101	101	(4) "Employment" means any service, including service
102	102	in interstate commerce, that is performed for wages or under a
103	103	contract of hire, whether written or oral or express or implied.
104	104	The term does not include any service performed by an individual for
105	105	wages if it is shown that the individual is free from control or
106	106	direction in the performance of the service, both under any
107	107	contract of service and in fact.
108	108	(5) "E-verify program" has the meaning assigned by
109	109	Section 673.001, Government Code.
110	110	(6) "Lawful resident verification information" means
111	111	the documentation required by the United States Department of
112	112	Homeland Security for completing the employment eligibility
113	113	verification form commonly referred to as the I-9. Documentation
114	114	that satisfies the requirements of the Form I-9 at the time of
115	115	employment is lawful resident verification information.
116	116	(7) "License" means a license, certificate,
117	117	registration, permit, or other authorization that:
118	118	(A) is issued by a licensing authority;
119	119	(B) is subject before expiration to renewal,
120	120	suspension, revocation, forfeiture, or termination by a licensing
121	121	authority; and
122	122	(C) is required for a person to practice or
123	123	engage in a particular business, occupation, or profession.
124	124	(8) "Licensing authority" means a department,
125	125	commission, board, office, or other agency of the state or a
126	126	political subdivision of the state that issues or renews a license.
127	127	(9) "Person not lawfully present" means a person who
128	128	at the time of employment is neither an alien who is lawfully
129	129	admitted for permanent residence in the United States under the
130	130	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
131	131	seq.) nor authorized to be employed by that Act or the United States
132	132	attorney general.
133	133	Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
134	134	an individual performing services for the employer as an
135	135	independent contractor instead of as an employee of the employer
136	136	solely for the purpose of avoiding the requirements applicable to
137	137	an employer under this chapter.
138	138	Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
139	139	licensing authorities are subject to this chapter.
140	140	Sec. 53.004. RULES. The commission shall adopt rules for
141	141	the administration of this chapter.
142	142	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
143	143	NOT LAWFULLY PRESENT
144	144	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
145	145	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a)
146	146	An employer may not knowingly employ a person not lawfully present.
147	147	(b) An employer who violates Subsection (a) is subject to
148	148	the suspension of each license held by the employer as provided by
149	149	this chapter.
150	150	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
151	151	Section 53.051(a) if:
152	152	(1) the employer, at least l4 calendar days after the
153	153	commencement of the employee's employment, requested from the
154	154	employee and received and documented in the employee's employment
155	155	record lawful resident verification information consistent with
156	156	employer requirements under the federal Immigration Reform and
157	157	Control Act of 1986 (Pub. L. No. 99-603); and
158	158	(2) the lawful resident verification information
159	159	provided by the employee later was determined to be false.
160	160	(b) An employer has not violated Section 53.051(a) if the
161	161	employer verified the employment authorization status of the person
162	162	at least 14 calendar days after the commencement of the employee's
163	163	employment through the E-verify program.
164	164	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
165	165	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
166	166	to believe that an employer has violated Section 53.051(a) may file
167	167	a complaint with the commission in accordance with this subchapter.
168	168	(b) A complaint must:
169	169	(1) be in writing on a form prescribed by the
170	170	commission; and
171	171	(2) be verified by the person making the complaint.
172	172	(c) A person may file a complaint under this section:
173	173	(1) in person at an office of the commission; or
174	174	(2) by mailing the complaint to an address designated
175	175	by the commission.
176	176	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
177	177	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
178	178	employed by the commission shall investigate the complaint in an
179	179	attempt to:
180	180	(1) verify information regarding the immigration
181	181	status of the relevant employee or employees of the employer
182	182	alleged to have violated Section 53.051(a); and
183	183	(2) determine whether a hearing should be conducted.
184	184	(b) During the investigation, the employer alleged to have
185	185	violated Section 53.051(a) shall specify all licenses held by the
186	186	employer.
187	187	(c) If the examiner determines that there is no substantial
188	188	evidence that the employer violated Section 53.051(a), the examiner
189	189	shall issue a preliminary dismissal order dismissing the complaint.
190	190	(d) If the examiner determines that there is substantial
191	191	evidence that the employer violated Section 53.051(a), the examiner
192	192	shall refer the complaint to a hearing tribunal established under
193	193	Section 53.103.
194	194	(e) The examiner shall mail notice of the preliminary
195	195	dismissal order or referral order to each party at that party's last
196	196	known address, as reflected by commission records.
197	197	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
198	198	commission shall establish one or more impartial hearing tribunals
199	199	to hear and decide complaints under this chapter.
200	200	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
201	201	ORDER. (a) A party may request a hearing before a hearing tribunal
202	202	to appeal a preliminary dismissal order made under Section
203	203	53.102(c).
204	204	(b) The request for the hearing must be made in writing not
205	205	later than the 21st day after the date the examiner mails the notice
206	206	of the preliminary dismissal order.
207	207	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
208	208	NOT REQUESTED. If neither party requests a hearing to appeal a
209	209	preliminary dismissal order made under Section 53.102(c) within the
210	210	period prescribed by Section 53.104, the order becomes the final
211	211	order of the commission for all purposes, and neither party is
212	212	entitled to judicial review of the order under this subchapter.
213	213	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
214	214	regarding a hearing conducted under this subchapter must be mailed
215	215	by the hearing tribunal not later than the 21st day after the date
216	216	the referral order or request for the hearing is received by the
217	217	commission.
218	218	(b) As soon as practicable, but not later than the 45th day
219	219	after the date a notice is mailed under Subsection (a), the tribunal
220	220	shall conduct the hearing.
221	221	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
222	222	under this subchapter is subject to the rules and hearings
223	223	procedures used by the commission in the determination of a claim
224	224	for unemployment compensation benefits.
225	225	(b) The hearing is not subject to Chapter 2001, Government
226	226	Code.
227	227	Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
228	228	the hearing tribunal finds by clear and convincing evidence that
229	229	the employer has violated Section 53.051(a), the hearing tribunal
230	230	shall:
231	231	(1) for a first violation, enter a written order:
232	232	(A) requiring the employer to:
233	233	(i) terminate the employment of each
234	234	employee who is a person not legally present; and
235	235	(ii) file with the hearing tribunal, within
236	236	30 business days after the date the order is entered, a sworn
237	237	affidavit stating that the employer has terminated the employment
238	238	of each of those employees; and
239	239	(B) notifying the employer that failure to file
240	240	the affidavit required by Paragraph (A)(ii) will result in the
241	241	suspension of the employer's licenses as provided by Subdivision
242	242	(2); or
243	243	(2) for a second or subsequent violation, or on a
244	244	finding that an employer has failed to file an affidavit required by
245	245	Subdivision (1)(A)(ii), enter a written order suspending for a
246	246	period of one year any license held by the employer.
247	247	(b) After a hearing, if the hearing tribunal does not find
248	248	by clear and convincing evidence that the employer has violated
249	249	Section 53.051(a), the hearing tribunal shall enter a written order
250	250	dismissing the complaint.
251	251	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
252	252	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
253	253	the hearing notice of the tribunal's decision. The notice shall be
254	254	mailed to a party's last known address, as reflected by commission
255	255	records.
256	256	(b) The order of the hearing tribunal becomes final on the
257	257	14th day after the date the order is mailed unless a further appeal
258	258	to the commission is initiated as provided by this subchapter.
259	259	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
260	260	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
261	261	itself or transfer to another hearing tribunal the proceedings on a
262	262	complaint before a hearing tribunal.
263	263	(b) The commission promptly shall mail to the parties to the
264	264	affected hearing notice of the order under Subsection (a).
265	265	(c) A quorum of the commission shall hear a proceeding
266	266	removed to the commission under Subsection (a).
267	267	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
268	268	The commission may:
269	269	(1) on its own motion:
270	270	(A) affirm, modify, or set aside an order issued
271	271	under Section 53.108 on the basis of the evidence previously
272	272	submitted in the case; or
273	273	(B) direct the taking of additional evidence; or
274	274	(2) permit any of the parties affected by the order to
275	275	initiate an appeal before the commission.
276	276	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
277	277	The commission shall mail to each party to an appeal under Section
278	278	53.111 notice of:
279	279	(1) the commission's decision; and
280	280	(2) the parties' right to judicial review of the order.
281	281	(b) The notice shall be mailed to a party's last known
282	282	address, as reflected by commission records.
283	283	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
284	284	commission becomes final on the 14th day after the date the order is
285	285	mailed unless before that date:
286	286	(1) the commission by order reopens the appeal; or
287	287	(2) a party to the appeal files a written motion for
288	288	rehearing.
289	289	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has
290	290	exhausted the party's administrative remedies under this chapter,
291	291	other than a motion for rehearing, may bring a suit to appeal the
292	292	order.
293	293	(b) The suit must be filed not later than the 30th day after
294	294	the date the final order is mailed to the party.
295	295	(c) The commission and any other party to the proceeding
296	296	before the commission must be made defendants in the suit.
297	297	(d) The suit must be brought in the county of residence of
298	298	the party seeking judicial review. If the party is not a resident
299	299	of this state, the suit must be brought in the county in this state
300	300	in which the employer has its principal place of business.
301	301	(e) An appeal under this subchapter is by trial de novo with
302	302	the substantial evidence rule being the standard of review in the
303	303	manner as applied to an appeal from a final decision under Subtitle
304	304	A, Title 4.
305	305	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
306	306	SUSPENDING LICENSE. The commission shall promptly mail to the
307	307	appropriate licensing authority a final order suspending a license
308	308	entered under this chapter.
309	309	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
310	310	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
311	311	from the commission of a final order suspending a license, a
312	312	licensing authority shall immediately determine if the authority
313	313	has issued a license to the person named on the order and, if a
314	314	license has been issued:
315	315	(1) record the suspension of the license in the
316	316	licensing authority's records;
317	317	(2) report the suspension as appropriate; and
318	318	(3) demand surrender of the suspended license if
319	319	required by law for other cases in which a license is suspended.
320	320	(b) A licensing authority shall implement the terms of a
321	321	final order suspending a license without additional review or
322	322	hearing. The authority may provide notice as appropriate to the
323	323	license holder or to others concerned with the license.
324	324	(c) A licensing authority may not modify, remand, reverse,
325	325	vacate, or stay an order suspending a license issued under this
326	326	chapter and may not review, vacate, or reconsider the terms of a
327	327	final order suspending a license.
328	328	(d) A person who is the subject of a final order suspending a
329	329	license is not entitled to a refund for any fee or deposit paid to
330	330	the licensing authority.
331	331	(e) A person who continues to engage in the business,
332	332	occupation, profession, or other licensed activity after the
333	333	implementation of the order suspending a license by the licensing
334	334	authority is liable for the same civil and criminal penalties
335	335	provided for engaging in the licensed activity without a license or
336	336	while a license is suspended that apply to any other license holder
337	337	of that licensing authority.
338	338	(f) A licensing authority is exempt from liability to a
339	339	license holder for any act authorized under this chapter performed
340	340	by the authority.
341	341	(g) Except as provided by this chapter, an order suspending
342	342	a license does not affect the power of a licensing authority to
343	343	grant, deny, suspend, revoke, terminate, or renew a license.
344	344	(h) An order issued under this chapter to suspend a license
345	345	of a person applies to each license issued by the licensing
346	346	authority subject to the order for which the person is eligible.
347	347	The licensing authority may not issue or renew any other license for
348	348	the person during the suspension period.
349	349	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
350	350	authority may charge a fee to a person who is the subject of an order
351	351	suspending a license in an amount sufficient to recover the
352	352	administrative costs incurred by the authority under this chapter.
353	353	SECTION 6. Subtitle C, Title 5, Local Government Code, is
354	354	amended by adding Chapter 179 to read as follows:
355	355	CHAPTER 179. VERIFICATION OF EMPLOYEE INFORMATION
356	356	Sec. 179.001. DEFINITIONS. In this chapter:
357	357	(1) "E-verify program" has the meaning assigned by
358	358	Section 673.001, Government Code.
359	359	(2) "Political subdivision" means a county,
360	360	municipality, school district, junior college district, other
361	361	special district, or other subdivision of state government.
362	362	Sec. 179.002. VERIFICATION. A political subdivision shall
363	363	register and participate in the E-verify program to verify
364	364	information of all new employees.
365	365	Sec. 179.003. TERMINATION OF EMPLOYMENT. An employee of a
366	366	political subdivision who is responsible for verifying information
367	367	of new employees of the political subdivision as required by
368	368	Section 179.002 is subject to immediate termination of employment
369	369	if the employee fails to comply with that section.
370	370	SECTION 7. Each state agency subject to Subchapter C,
371	371	Chapter 2264, Government Code, as amended by this Act, shall
372	372	develop the procedures required under Section 2264.102(d),
373	373	Government Code, as added by this Act, not later than October 1,
374	374	2017.
375	375	SECTION 8. Sections 2264.1011, 2264.102, and 2264.103,
376	376	Government Code, as added by this Act, apply only in relation to a
377	377	contract for which the request for bids or proposals or other
378	378	applicable expression of interest is made public on or after the
379	379	effective date of this Act.
380	380	SECTION 9. Chapter 53, Labor Code, as added by this Act,
381	381	applies only to a violation that occurs on or after the effective
382	382	date of this Act.
383	383	SECTION 10. This Act takes effect September 1, 2017.