Texas 2017 - 85th Regular

Texas Senate Bill SB85 Compare Versions

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

Old	New	Differences
1	1	85R2627 MTB/KSD-F
2	2	By: Hall S.B. No. 85
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the verification of employment authorization by state
8	8	contractors and state grant recipients, including the use of the
9	9	federal E-verify program, and to authorization for 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 AND GRANTS
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. VERIFICATION OF NEW EMPLOYEES BY STATE CONTRACTORS
38	38	AND GRANT RECIPIENTS [ENFORCEMENT]
39	39	SECTION 4. Subchapter C, Chapter 2264, Government Code, is
40	40	amended by adding Sections 2264.1011, 2264.102, 2264.103, and
41	41	2264.104 to read as follows:
42	42	Sec. 2264.1011. DEFINITIONS. In this subchapter:
43	43	(1) "E-verify program" has the meaning assigned by
44	44	Section 673.001.
45	45	(2) "State agency" has the meaning assigned by Section
46	46	2103.001.
47	47	Sec. 2264.102. VERIFICATION BY CONTRACTORS. (a) A state
48	48	agency may not award a contract for goods or services within this
49	49	state to a contractor unless the contractor:
50	50	(1) registers with and participates in the E-verify
51	51	program to verify information of all new employees; or
52	52	(2) verifies the employment authorization status of
53	53	all new employees by requiring each employee to provide an
54	54	unexpired United States passport or:
55	55	(A) one of the following documents:
56	56	(i) an original or certified copy of a birth
57	57	certificate issued by a bureau of vital statistics for a state;
58	58	(ii) a Consular Report of Birth Abroad or
59	59	Certificate of Birth Abroad issued by the United States Department
60	60	of State;
61	61	(iii) a Certificate of United States
62	62	Citizenship issued by the federal Department of Homeland Security
63	63	or the United States Department of State including an
64	64	identification photograph; or
65	65	(iv) a Certificate of Naturalization issued
66	66	by the federal Department of Homeland Security or the United States
67	67	Department of State including an identification photograph; and
68	68	(B) one of the following documents:
69	69	(i) an unexpired driver's license or
70	70	identification card issued by a state;
71	71	(ii) an unexpired federal, state, or local
72	72	government identification card; or
73	73	(iii) an unexpired military identification
74	74	card for active duty, reserve, or retired personnel with an
75	75	identification photograph.
76	76	(b) Each contract with a state agency must include the
77	77	following statement:
78	78	"______________ (name of contractor) certifies that
79	79	__________ (name of contractor) is not ineligible to receive this
80	80	contract under Subchapter C, Chapter 2264, Government Code, and
81	81	acknowledges that if this certification is inaccurate, the
82	82	contractor may be barred from participating in state contracts."
83	83	(c) If a state agency determines that a contractor was
84	84	ineligible to have the contract awarded under Subsection (a), the
85	85	state agency shall refer the matter to the comptroller for action.
86	86	(d) Each state agency shall develop procedures for the
87	87	administration of this section.
88	88	Sec. 2264.103. BARRING FROM STATE CONTRACTS. (a) Using
89	89	procedures prescribed under Section 2155.077, the comptroller
90	90	shall bar a contractor from participating in state contracts if the
91	91	comptroller determines that the contractor was awarded a contract
92	92	in violation of Section 2264.102.
93	93	(b) Debarment under this section is for a period of one
94	94	year.
95	95	Sec. 2264.104. VERIFICATION BY GRANT RECIPIENTS. (a) A
96	96	state agency may not award a grant unless the grant recipient:
97	97	(1) registers with and participates in the E-verify
98	98	program to verify information of all new employees; or
99	99	(2) verifies the employment authorization status of
100	100	all new employees by requiring each employee to provide an
101	101	unexpired United States passport or:
102	102	(A) one of the following documents:
103	103	(i) an original or certified copy of a birth
104	104	certificate issued by a bureau of vital statistics for a state;
105	105	(ii) a Consular Report of Birth Abroad or
106	106	Certificate of Birth Abroad issued by the United States Department
107	107	of State;
108	108	(iii) a Certificate of United States
109	109	Citizenship issued by the federal Department of Homeland Security
110	110	or the United States Department of State including an
111	111	identification photograph; or
112	112	(iv) a Certificate of Naturalization issued
113	113	by the federal Department of Homeland Security or the United States
114	114	Department of State including an identification photograph; and
115	115	(B) one of the following documents:
116	116	(i) an unexpired driver's license or
117	117	identification card issued by a state;
118	118	(ii) an unexpired federal, state, or local
119	119	government identification card; or
120	120	(iii) an unexpired military identification
121	121	card for active duty, reserve, or retired personnel with an
122	122	identification photograph.
123	123	(b) Each grant contract or agreement with a state agency
124	124	must include the following statement:
125	125	"______________ (name of grant recipient) certifies that
126	126	__________ (name of grant recipient) is not ineligible to receive
127	127	this grant under Subchapter C, Chapter 2264, Government Code, and
128	128	acknowledges that if this certification is inaccurate, the grant
129	129	may be terminated without further payment."
130	130	(c) If a state agency determines that a grant recipient was
131	131	ineligible to have the grant awarded under Subsection (a), the
132	132	state agency shall notify the grant recipient in writing that the
133	133	grant recipient must comply with Subsection (a) before the 31st day
134	134	after the date the grant recipient is notified.
135	135	(d) The state agency shall terminate the grant without
136	136	further obligation to the grant recipient on the 31st day after the
137	137	date the grant recipient is notified under Subsection (c) if,
138	138	before that date, the grant recipient has not provided evidence
139	139	that the grant recipient has complied with Subsection (a).
140	140	(e) Each state agency shall develop procedures for the
141	141	administration of this section.
142	142	SECTION 5. Subtitle B, Title 2, Labor Code, is amended by
143	143	adding Chapter 53 to read as follows:
144	144	CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT IN UNITED
145	145	STATES
146	146	SUBCHAPTER A. GENERAL PROVISIONS
147	147	Sec. 53.001. DEFINITIONS. In this chapter:
148	148	(1) "Commission" means the Texas Workforce
149	149	Commission.
150	150	(2) "Employee" means an individual who is employed by
151	151	an employer for compensation. The term includes an individual
152	152	employed on a part-time basis.
153	153	(3) "Employer" means a person, other than a
154	154	governmental entity, who:
155	155	(A) employs one or more employees; or
156	156	(B) acts directly or indirectly in the interests
157	157	of an employer in relation to an employee.
158	158	(4) "Employment" means any service, including service
159	159	in interstate commerce, that is performed for wages or under a
160	160	contract of hire, whether written or oral or express or implied.
161	161	The term does not include any service performed by an individual for
162	162	wages if it is shown that the individual is free from control or
163	163	direction in the performance of the service, both under any
164	164	contract of service and in fact.
165	165	(5) "License" means a license, certificate,
166	166	registration, permit, or other authorization that:
167	167	(A) is issued by a licensing authority;
168	168	(B) is subject before expiration to renewal,
169	169	suspension, revocation, forfeiture, or termination by a licensing
170	170	authority; and
171	171	(C) is required for a person to practice or
172	172	engage in a particular business, occupation, or profession.
173	173	(6) "Licensing authority" means a department,
174	174	commission, board, office, or other agency of the state or a
175	175	political subdivision of the state that issues or renews a license.
176	176	(7) "Person not lawfully present" means a person who
177	177	at the time of employment is neither an alien who is lawfully
178	178	admitted for permanent residence in the United States under the
179	179	federal Immigration and Nationality Act (8 U.S.C. Section 1101 et
180	180	seq.) nor an individual who is authorized to be employed by that
181	181	Act.
182	182	Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
183	183	an individual performing services for the employer as an
184	184	independent contractor instead of as an employee of the employer
185	185	solely for the purpose of avoiding the requirements applicable to
186	186	an employer under this chapter.
187	187	Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
188	188	licensing authorities are subject to this chapter.
189	189	Sec. 53.004. RULES. The commission shall adopt rules for
190	190	the administration of this chapter.
191	191	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
192	192	NOT LAWFULLY PRESENT
193	193	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
194	194	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An
195	195	employer may not knowingly employ a person not lawfully present.
196	196	(b) An employer who violates Subsection (a) is subject to
197	197	the suspension of each license held by the employer as provided by
198	198	this chapter.
199	199	Sec. 53.052. EXCEPTION. (a) In this section, "E-verify
200	200	program" has the meaning assigned by Section 673.001, Government
201	201	Code.
202	202	(b) An employer has not violated Section 53.051(a) if the
203	203	employer verified the employment authorization status of the person
204	204	not later than the third business day after the commencement of the
205	205	employee's employment through the E-verify program.
206	206	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
207	207	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
208	208	to believe that an employer has violated Section 53.051(a) may file
209	209	a complaint with the commission in accordance with this subchapter.
210	210	(b) A complaint must:
211	211	(1) be in writing on a form prescribed by the
212	212	commission; and
213	213	(2) be verified by the person making the complaint.
214	214	(c) A person may file a complaint under this section:
215	215	(1) in person at an office of the commission; or
216	216	(2) by mailing the complaint to an address designated
217	217	by the commission.
218	218	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
219	219	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
220	220	employed by the commission shall investigate the complaint in an
221	221	attempt to:
222	222	(1) verify information regarding the immigration
223	223	status of the relevant employee or employees of the employer
224	224	alleged to have violated Section 53.051(a); and
225	225	(2) determine whether a hearing should be conducted.
226	226	(b) During the investigation, the employer alleged to have
227	227	violated Section 53.051(a) shall specify all licenses held by the
228	228	employer.
229	229	(c) If the examiner determines that there is no substantial
230	230	evidence that the employer violated Section 53.051(a), the examiner
231	231	shall issue a preliminary dismissal order dismissing the complaint.
232	232	(d) If the examiner determines that there is substantial
233	233	evidence that the employer violated Section 53.051(a), the examiner
234	234	shall refer the complaint to a hearing tribunal established under
235	235	Section 53.103.
236	236	(e) The examiner shall mail notice of the preliminary
237	237	dismissal order or referral order to each party at that party's last
238	238	known address, as reflected by commission records.
239	239	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
240	240	commission shall establish one or more impartial hearing tribunals
241	241	to hear and decide complaints under this chapter.
242	242	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
243	243	ORDER. (a) A party may request a hearing before a hearing tribunal
244	244	to appeal a preliminary dismissal order made under Section
245	245	53.102(c).
246	246	(b) The request for the hearing must be made in writing not
247	247	later than the 21st day after the date the examiner mails the notice
248	248	of the preliminary dismissal order.
249	249	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
250	250	NOT REQUESTED. If neither party requests a hearing to appeal a
251	251	preliminary dismissal order made under Section 53.102(c) within the
252	252	period prescribed by Section 53.104, the order becomes the final
253	253	order of the commission for all purposes, and neither party is
254	254	entitled to judicial review of the order under this subchapter.
255	255	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
256	256	regarding a hearing conducted under this subchapter must be mailed
257	257	by the hearing tribunal not later than the 21st day after the date
258	258	the referral order or request for the hearing is received by the
259	259	commission.
260	260	(b) As soon as practicable, but not later than the 45th day
261	261	after the date a notice is mailed under Subsection (a), the tribunal
262	262	shall conduct the hearing.
263	263	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
264	264	under this subchapter is subject to the rules and hearings
265	265	procedures used by the commission in the determination of a claim
266	266	for unemployment compensation benefits.
267	267	(b) The hearing is not subject to Chapter 2001, Government
268	268	Code.
269	269	Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
270	270	the hearing tribunal finds by clear and convincing evidence that
271	271	the employer has violated Section 53.051(a), the hearing tribunal
272	272	shall:
273	273	(1) for a first violation, enter a written order:
274	274	(A) requiring the employer to:
275	275	(i) terminate the employment of each
276	276	employee who is a person not legally present; and
277	277	(ii) file with the hearing tribunal, within
278	278	30 business days after the date the order is entered, a sworn
279	279	affidavit stating that the employer has terminated the employment
280	280	of each of those employees; and
281	281	(B) notifying the employer that failure to file
282	282	the affidavit required by Paragraph (A)(ii) will result in the
283	283	suspension of the employer's licenses as provided by Subdivision
284	284	(2); or
285	285	(2) for a second or subsequent violation, or on a
286	286	finding that an employer has failed to file an affidavit required by
287	287	Subdivision (1)(A)(ii), enter a written order suspending for a
288	288	period of one year any license held by the employer.
289	289	(b) After a hearing, if the hearing tribunal does not find
290	290	by clear and convincing evidence that the employer has violated
291	291	Section 53.051(a), the hearing tribunal shall enter a written order
292	292	dismissing the complaint.
293	293	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
294	294	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
295	295	the hearing notice of the tribunal's decision. The notice shall be
296	296	mailed to a party's last known address, as reflected by commission
297	297	records.
298	298	(b) The order of the hearing tribunal becomes final on the
299	299	14th day after the date the order is mailed unless a further appeal
300	300	to the commission is initiated as provided by this subchapter.
301	301	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
302	302	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
303	303	itself or transfer to another hearing tribunal the proceedings on a
304	304	complaint before a hearing tribunal.
305	305	(b) The commission promptly shall mail to the parties to the
306	306	affected hearing notice of the order under Subsection (a).
307	307	(c) A quorum of the commission shall hear a proceeding
308	308	removed to the commission under Subsection (a).
309	309	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
310	310	The commission may:
311	311	(1) on its own motion:
312	312	(A) affirm, modify, or set aside an order issued
313	313	under Section 53.108 on the basis of the evidence previously
314	314	submitted in the case; or
315	315	(B) direct the taking of additional evidence; or
316	316	(2) permit any of the parties affected by the order to
317	317	initiate an appeal before the commission.
318	318	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
319	319	The commission shall mail to each party to an appeal under Section
320	320	53.111 notice of:
321	321	(1) the commission's decision; and
322	322	(2) the parties' right to judicial review of the order.
323	323	(b) The notice shall be mailed to a party's last known
324	324	address, as reflected by commission records.
325	325	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
326	326	commission becomes final on the 14th day after the date the order is
327	327	mailed unless before that date:
328	328	(1) the commission by order reopens the appeal; or
329	329	(2) a party to the appeal files a written motion for
330	330	rehearing.
331	331	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has exhausted
332	332	the party's administrative remedies under this chapter, other than
333	333	a motion for rehearing, may bring a suit to appeal the order.
334	334	(b) The suit must be filed not later than the 30th day after
335	335	the date the final order is mailed to the party.
336	336	(c) The commission and any other party to the proceeding
337	337	before the commission must be made defendants in the suit.
338	338	(d) The suit must be brought in the county of residence of
339	339	the party seeking judicial review. If the party is not a resident
340	340	of this state, the suit must be brought in the county in this state
341	341	in which the employer has its principal place of business.
342	342	(e) An appeal under this subchapter is by trial de novo with
343	343	the substantial evidence rule being the standard of review in the
344	344	manner as applied to an appeal from a final decision under Subtitle
345	345	A, Title 4.
346	346	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
347	347	SUSPENDING LICENSE. The commission shall promptly mail to the
348	348	appropriate licensing authority a final order suspending a license
349	349	entered under this chapter.
350	350	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
351	351	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
352	352	from the commission of a final order suspending a license, a
353	353	licensing authority shall immediately determine if the authority
354	354	has issued a license to the person named on the order and, if a
355	355	license has been issued:
356	356	(1) record the suspension of the license in the
357	357	licensing authority's records;
358	358	(2) report the suspension as appropriate; and
359	359	(3) demand surrender of the suspended license if
360	360	required by law for other cases in which a license is suspended.
361	361	(b) A licensing authority shall implement the terms of a
362	362	final order suspending a license without additional review or
363	363	hearing. The authority may provide notice as appropriate to the
364	364	license holder or to others concerned with the license.
365	365	(c) A licensing authority may not modify, remand, reverse,
366	366	vacate, or stay an order suspending a license issued under this
367	367	chapter and may not review, vacate, or reconsider the terms of a
368	368	final order suspending a license.
369	369	(d) A person who is the subject of a final order suspending a
370	370	license is not entitled to a refund for any fee or deposit paid to
371	371	the licensing authority.
372	372	(e) A person who continues to engage in the business,
373	373	occupation, profession, or other licensed activity after the
374	374	implementation of the order suspending a license by the licensing
375	375	authority is liable for the same civil and criminal penalties
376	376	provided for engaging in the licensed activity without a license or
377	377	while a license is suspended that apply to any other license holder
378	378	of that licensing authority.
379	379	(f) A licensing authority is exempt from liability to a
380	380	license holder for any act authorized under this chapter performed
381	381	by the authority.
382	382	(g) Except as provided by this chapter, an order suspending
383	383	a license does not affect the power of a licensing authority to
384	384	grant, deny, suspend, revoke, terminate, or renew a license.
385	385	(h) An order issued under this chapter to suspend a license
386	386	of a person applies to each license issued by the licensing
387	387	authority subject to the order for which the person is eligible.
388	388	The licensing authority may not issue or renew any other license for
389	389	the person during the suspension period.
390	390	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
391	391	authority may charge a fee to a person who is the subject of an order
392	392	suspending a license in an amount sufficient to recover the
393	393	administrative costs incurred by the authority under this chapter.
394	394	SECTION 6. Each state agency subject to Subchapter C,
395	395	Chapter 2264, Government Code, as amended by this Act, shall
396	396	develop the procedures required under Sections 2264.102 and
397	397	2264.104, Government Code, as added by this Act, as applicable, not
398	398	later than October 1, 2017.
399	399	SECTION 7. Sections 2264.1011, 2264.102, 2264.103, and
400	400	2264.104, Government Code, as added by this Act, apply only in
401	401	relation to a:
402	402	(1) contract for which the request for bids or
403	403	proposals or other applicable expressions of interest is made
404	404	public on or after the effective date of this Act; and
405	405	(2) grant for which the notice of funds availability
406	406	or of funding opportunity is made public on or after the effective
407	407	date of this Act.
408	408	SECTION 8. Chapter 53, Labor Code, as added by this Act,
409	409	applies only to a violation that occurs on or after the effective
410	410	date of this Act.
411	411	SECTION 9. This Act takes effect September 1, 2017.