Texas 2021 - 87th Regular

Texas House Bill HB2823 Compare Versions

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

Old	New	Differences
1	1	87R2294 KSD/MTB-D
2	2	By: Bonnen H.B. No. 2823
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 not:
129	129	(A) a citizen or national of the United States;
130	130	or
131	131	(B) an alien who is lawfully admitted for
132	132	permanent residence in the United States under the federal
133	133	Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.) or
134	134	authorized to be employed by that Act or the United States attorney
135	135	general.
136	136	Sec. 53.002. EMPLOYEE STATUS. An employer may not classify
137	137	an individual performing services for the employer as an
138	138	independent contractor instead of as an employee of the employer
139	139	solely for the purpose of avoiding the requirements applicable to
140	140	an employer under this chapter.
141	141	Sec. 53.003. LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
142	142	licensing authorities are subject to this chapter.
143	143	Sec. 53.004. RULES. The commission shall adopt rules for
144	144	the administration of this chapter.
145	145	SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
146	146	NOT LAWFULLY PRESENT
147	147	Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF
148	148	PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a)
149	149	An employer may not knowingly employ a person not lawfully present.
150	150	(b) An employer who violates Subsection (a) is subject to
151	151	the suspension of each license held by the employer as provided by
152	152	this chapter.
153	153	Sec. 53.052. EXCEPTIONS. (a) An employer has not violated
154	154	Section 53.051(a) if:
155	155	(1) the employer, at least l4 calendar days after the
156	156	commencement of the employee's employment, requested from the
157	157	employee and received and documented in the employee's employment
158	158	record lawful resident verification information consistent with
159	159	employer requirements under the federal Immigration Reform and
160	160	Control Act of 1986 (Pub. L. No. 99-603); and
161	161	(2) the lawful resident verification information
162	162	provided by the employee later was determined to be false.
163	163	(b) An employer has not violated Section 53.051(a) if the
164	164	employer verified the employment authorization status of the person
165	165	at least 14 calendar days after the commencement of the employee's
166	166	employment through the E-verify program.
167	167	SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
168	168	Sec. 53.101. FILING COMPLAINT. (a) A person who has reason
169	169	to believe that an employer has violated Section 53.051(a) may file
170	170	a complaint with the commission in accordance with this subchapter.
171	171	(b) A complaint must:
172	172	(1) be in writing on a form prescribed by the
173	173	commission; and
174	174	(2) be verified by the person making the complaint.
175	175	(c) A person may file a complaint under this section:
176	176	(1) in person at an office of the commission; or
177	177	(2) by mailing the complaint to an address designated
178	178	by the commission.
179	179	Sec. 53.102. INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
180	180	OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
181	181	employed by the commission shall investigate the complaint in an
182	182	attempt to:
183	183	(1) verify information regarding the immigration
184	184	status of the relevant employee or employees of the employer
185	185	alleged to have violated Section 53.051(a); and
186	186	(2) determine whether a hearing should be conducted.
187	187	(b) During the investigation, the employer alleged to have
188	188	violated Section 53.051(a) shall specify all licenses held by the
189	189	employer.
190	190	(c) If the examiner determines that there is no substantial
191	191	evidence that the employer violated Section 53.051(a), the examiner
192	192	shall issue a preliminary dismissal order dismissing the complaint.
193	193	(d) If the examiner determines that there is substantial
194	194	evidence that the employer violated Section 53.051(a), the examiner
195	195	shall refer the complaint to a hearing tribunal established under
196	196	Section 53.103.
197	197	(e) The examiner shall mail notice of the preliminary
198	198	dismissal order or referral order to each party at that party's last
199	199	known address, as reflected by commission records.
200	200	Sec. 53.103. ESTABLISHMENT OF HEARING TRIBUNALS. The
201	201	commission shall establish one or more impartial hearing tribunals
202	202	to hear and decide complaints under this chapter.
203	203	Sec. 53.104. REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
204	204	ORDER. (a) A party may request a hearing before a hearing tribunal
205	205	to appeal a preliminary dismissal order made under Section
206	206	53.102(c).
207	207	(b) The request for the hearing must be made in writing not
208	208	later than the 21st day after the date the examiner mails the notice
209	209	of the preliminary dismissal order.
210	210	Sec. 53.105. PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
211	211	NOT REQUESTED. If neither party requests a hearing to appeal a
212	212	preliminary dismissal order made under Section 53.102(c) within the
213	213	period prescribed by Section 53.104, the order becomes the final
214	214	order of the commission for all purposes, and neither party is
215	215	entitled to judicial review of the order under this subchapter.
216	216	Sec. 53.106. NOTICE OF AND TIME FOR HEARING. (a) A notice
217	217	regarding a hearing conducted under this subchapter must be mailed
218	218	by the hearing tribunal not later than the 21st day after the date
219	219	the referral order or request for the hearing is received by the
220	220	commission.
221	221	(b) As soon as practicable, but not later than the 45th day
222	222	after the date a notice is mailed under Subsection (a), the tribunal
223	223	shall conduct the hearing.
224	224	Sec. 53.107. HEARING PROCEDURES. (a) A hearing conducted
225	225	under this subchapter is subject to the rules and hearings
226	226	procedures used by the commission in the determination of a claim
227	227	for unemployment compensation benefits.
228	228	(b) The hearing is not subject to Chapter 2001, Government
229	229	Code.
230	230	Sec. 53.108. ORDER AFTER HEARING. (a) After a hearing, if
231	231	the hearing tribunal finds by clear and convincing evidence that
232	232	the employer has violated Section 53.051(a), the hearing tribunal
233	233	shall:
234	234	(1) for a first violation, enter a written order:
235	235	(A) requiring the employer to:
236	236	(i) terminate the employment of each
237	237	employee who is a person not lawfully present; and
238	238	(ii) file with the hearing tribunal, within
239	239	30 business days after the date the order is entered, a sworn
240	240	affidavit stating that the employer has terminated the employment
241	241	of each of those employees; and
242	242	(B) notifying the employer that failure to file
243	243	the affidavit required by Paragraph (A)(ii) will result in the
244	244	suspension of the employer's licenses as provided by Subdivision
245	245	(2); or
246	246	(2) for a second or subsequent violation, or on a
247	247	finding that an employer has failed to file an affidavit required by
248	248	Subdivision (1)(A)(ii), enter a written order suspending for a
249	249	period of one year any license held by the employer.
250	250	(b) After a hearing, if the hearing tribunal does not find
251	251	by clear and convincing evidence that the employer has violated
252	252	Section 53.051(a), the hearing tribunal shall enter a written order
253	253	dismissing the complaint.
254	254	Sec. 53.109. NOTICE TO PARTIES AND FINALITY OF HEARING
255	255	TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
256	256	the hearing notice of the tribunal's decision. The notice shall be
257	257	mailed to a party's last known address, as reflected by commission
258	258	records.
259	259	(b) The order of the hearing tribunal becomes final on the
260	260	14th day after the date the order is mailed unless a further appeal
261	261	to the commission is initiated as provided by this subchapter.
262	262	Sec. 53.110. REMOVAL OR TRANSFER OF COMPLAINT PENDING
263	263	BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
264	264	itself or transfer to another hearing tribunal the proceedings on a
265	265	complaint before a hearing tribunal.
266	266	(b) The commission promptly shall mail to the parties to the
267	267	affected hearing notice of the order under Subsection (a).
268	268	(c) A quorum of the commission shall hear a proceeding
269	269	removed to the commission under Subsection (a).
270	270	Sec. 53.111. COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
271	271	The commission may:
272	272	(1) on its own motion:
273	273	(A) affirm, modify, or set aside an order issued
274	274	under Section 53.108 on the basis of the evidence previously
275	275	submitted in the case; or
276	276	(B) direct the taking of additional evidence; or
277	277	(2) permit any of the parties affected by the order to
278	278	initiate an appeal before the commission.
279	279	Sec. 53.112. NOTICE OF COMMISSION ACTION TO PARTIES. (a)
280	280	The commission shall mail to each party to an appeal under Section
281	281	53.111 notice of:
282	282	(1) the commission's decision; and
283	283	(2) the parties' right to judicial review of the order.
284	284	(b) The notice shall be mailed to a party's last known
285	285	address, as reflected by commission records.
286	286	Sec. 53.113. FINALITY OF COMMISSION ORDER. An order of the
287	287	commission becomes final on the 14th day after the date the order is
288	288	mailed unless before that date:
289	289	(1) the commission by order reopens the appeal; or
290	290	(2) a party to the appeal files a written motion for
291	291	rehearing.
292	292	Sec. 53.114. JUDICIAL REVIEW. (a) A party who has
293	293	exhausted the party's administrative remedies under this
294	294	subchapter, other than a motion for rehearing, may bring a suit to
295	295	appeal the order.
296	296	(b) The suit must be filed not later than the 30th day after
297	297	the date the final order is mailed to the party.
298	298	(c) The commission and any other party to the proceeding
299	299	before the commission must be made defendants in the suit.
300	300	(d) The suit must be brought in the county of residence of
301	301	the party seeking judicial review. If the party is not a resident
302	302	of this state, the suit must be brought in the county in this state
303	303	in which the employer has its principal place of business.
304	304	(e) An appeal under this subchapter is by trial de novo with
305	305	the substantial evidence rule being the standard of review in the
306	306	manner as applied to an appeal from a final decision under Subtitle
307	307	A, Title 4.
308	308	Sec. 53.115. NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
309	309	SUSPENDING LICENSE. The commission shall promptly mail to the
310	310	appropriate licensing authority a final order suspending a license
311	311	entered under this chapter.
312	312	SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
313	313	Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt
314	314	from the commission of a final order suspending a license, a
315	315	licensing authority shall immediately determine if the authority
316	316	has issued a license to the person named on the order and, if a
317	317	license has been issued:
318	318	(1) record the suspension of the license in the
319	319	licensing authority's records;
320	320	(2) report the suspension as appropriate; and
321	321	(3) demand surrender of the suspended license if
322	322	required by law for other cases in which a license is suspended.
323	323	(b) A licensing authority shall implement the terms of a
324	324	final order suspending a license without additional review or
325	325	hearing. The authority may provide notice as appropriate to the
326	326	license holder or to others concerned with the license.
327	327	(c) A licensing authority may not modify, remand, reverse,
328	328	vacate, or stay an order suspending a license issued under this
329	329	chapter and may not review, vacate, or reconsider the terms of a
330	330	final order suspending a license.
331	331	(d) A person who is the subject of a final order suspending a
332	332	license is not entitled to a refund for any fee or deposit paid to
333	333	the licensing authority.
334	334	(e) A person who continues to engage in the business,
335	335	occupation, profession, or other licensed activity after the
336	336	implementation of the order suspending a license by the licensing
337	337	authority is liable for the same civil and criminal penalties
338	338	provided for engaging in the licensed activity without a license or
339	339	while a license is suspended that apply to any other license holder
340	340	of that licensing authority.
341	341	(f) A licensing authority is exempt from liability to a
342	342	license holder for any act authorized under this chapter performed
343	343	by the authority.
344	344	(g) Except as provided by this chapter, an order suspending
345	345	a license does not affect the power of a licensing authority to
346	346	grant, deny, suspend, revoke, terminate, or renew a license.
347	347	(h) An order issued under this chapter to suspend a license
348	348	of a person applies to each license issued by the licensing
349	349	authority subject to the order for which the person is eligible.
350	350	The licensing authority may not issue or renew any other license for
351	351	the person during the suspension period.
352	352	Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing
353	353	authority may charge a fee to a person who is the subject of an order
354	354	suspending a license in an amount sufficient to recover the
355	355	administrative costs incurred by the authority under this chapter.
356	356	SECTION 6. Subtitle C, Title 5, Local Government Code, is
357	357	amended by adding Chapter 179 to read as follows:
358	358	CHAPTER 179. VERIFICATION OF EMPLOYEE INFORMATION
359	359	Sec. 179.001. DEFINITIONS. In this chapter:
360	360	(1) "E-verify program" has the meaning assigned by
361	361	Section 673.001, Government Code.
362	362	(2) "Political subdivision" means a county,
363	363	municipality, school district, junior college district, other
364	364	special district, or other subdivision of state government.
365	365	Sec. 179.002. VERIFICATION. A political subdivision shall
366	366	register and participate in the E-verify program to verify
367	367	information of all new employees.
368	368	Sec. 179.003. TERMINATION OF EMPLOYMENT. An employee of a
369	369	political subdivision who is responsible for verifying information
370	370	of new employees of the political subdivision as required by
371	371	Section 179.002 is subject to immediate termination of employment
372	372	if the employee fails to comply with that section.
373	373	SECTION 7. Each state agency subject to Subchapter C,
374	374	Chapter 2264, Government Code, as amended by this Act, shall
375	375	develop the procedures required under Section 2264.102(d),
376	376	Government Code, as added by this Act, not later than October 1,
377	377	2021.
378	378	SECTION 8. Sections 2264.1011, 2264.102, and 2264.103,
379	379	Government Code, as added by this Act, apply only in relation to a
380	380	contract for which the request for bids or proposals or other
381	381	applicable expression of interest is made public on or after the
382	382	effective date of this Act.
383	383	SECTION 9. Chapter 53, Labor Code, as added by this Act,
384	384	applies only to a violation that occurs on or after the effective
385	385	date of this Act.
386	386	SECTION 10. This Act takes effect September 1, 2021.