89R21817 RDS-F
By: Gerdes, Tepper, Metcalf, Hull, H.B. No. 4552
Schatzline
Substitute the following for H.B. No. 4552:
By: Raymond C.S.H.B. No. 4552
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition on certain discriminatory activities by
governmental entities and vendors of governmental entities;
providing for declaratory and injunctive relief and the withholding
of certain funds from political subdivisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Texas
Antidiscrimination Act.
SECTION 2. (a) The Legislature finds that:
(1) Section 3, Article I, Texas Constitution, provides
that "[a]ll freemen, when they form a social compact, have equal
rights, and no man, or set of men, is entitled to exclusive separate
public emoluments, or privileges, but in consideration of public
services";
(2) Section 3a, Article I, Texas Constitution,
provides that "[e]quality under the law shall not be denied or
abridged because of sex, race, color, creed, or national origin";
(3) Section 3a, Article I, Texas Constitution, was
designed expressly to provide protection which supplements the
federal guarantees of equal treatment;
(4) Section 3a, Article I, Texas Constitution, is more
extensive and provides more specific protection than other equal
protection and due process guarantees included in either the United
States Constitution or the Texas Constitution;
(5) the discriminatory activities described by
Section 621.051, Government Code, as added by this Act, are
antithetical to Sections 3 and 3a, Article I, Texas Constitution,
and lack a rational relationship to a legitimate governmental
purpose such that the activities violate those sections; and
(6) Texans deserve a government committed to serving
every person with equal dignity and respect and to expending
precious taxpayer resources only for the purpose of making Texas
great for all Texans.
(b) The purpose of this Act is to prevent unlawful
discrimination that is antithetical to Sections 3 and 3a, Article
I, Texas Constitution. Nothing in this Act may be construed to
create a right or benefit, substantive or procedural, enforceable
at law or in equity by any party against a governmental entity, as
the term is defined by Section 621.001, Government Code, as added by
this Act, except those specifically provided by Subchapter C,
Chapter 621, Government Code, as added by this Act.
SECTION 3. Subtitle A, Title 6, Government Code, is amended
by adding Chapter 621 to read as follows:
CHAPTER 621. PROHIBITION ON DISCRIMINATION BY GOVERNMENTAL ENTITY
ON THE BASIS OF IMMUTABLE CHARACTERISTIC
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 621.001. DEFINITIONS. In this chapter:
(1) "Discriminatory activity" means:
(A) influencing hiring or employment practices
with respect to race, sex, color, or ethnicity, other than through
the use of a color-blind and sex-neutral hiring process in
accordance with any applicable state and federal
antidiscrimination laws;
(B) promoting differential treatment of or
providing special benefits to individuals on the basis of race,
sex, color, or ethnicity;
(C) promoting policies or procedures designed or
implemented in reference to race, sex, color, or ethnicity, other
than a policy or procedure:
(i) approved in writing by:
(a) the general counsel of the
governmental entity promoting the policy or procedure; or
(b) if the governmental entity
promoting the policy or procedure does not employ a general
counsel, an attorney contracted by the entity to provide general
legal services or the attorney general; and
(ii) implemented for the sole purpose of
ensuring compliance with any applicable court order or state or
federal law;
(D) conducting trainings, programs, or
activities designed or implemented in reference to race, sex,
color, or ethnicity, other than trainings, programs, or activities:
(i) developed by an attorney;
(ii) approved in writing by:
(a) the general counsel of the
governmental entity conducting the training, program, or activity;
or
(b) if the governmental entity
conducting the training, program, or activity does not employ a
general counsel, an attorney contracted by the entity to provide
general legal services or the attorney general; and
(iii) implemented for the sole purpose of
ensuring compliance with any applicable court order or state or
federal law; and
(E) promoting, as an official position of a
governmental entity, a particular opinion referencing unconscious
or implicit bias, cultural appropriation, allyship, transgender
ideology, microaggressions, group marginalization, anti-racism,
systemic oppression, intersectionality, neo-pronouns,
heteronormativity, disparate impact, gender theory, racial or
sexual privilege, or any related formulation of those concepts.
(2) "Discriminatory office" means an office,
division, or other unit of a governmental entity established for
the purpose of engaging in a discriminatory activity.
(3) "Governmental entity" means a state agency or
political subdivision.
(4) "Political subdivision" means a county,
municipality, special purpose district, or any other political
subdivision of this state, including a political subdivision
described by Section 2254.021. The term includes an open-enrollment
charter school established under Subchapter D, Chapter 12,
Education Code.
(5) "State agency" means:
(A) a department, commission, board, office, or
other agency in the executive branch of state government that was
created by the constitution or a statute, other than an institution
of higher education as defined by Section 61.003, Education Code;
(B) the legislature or a legislative agency; or
(C) the supreme court, the court of criminal
appeals, a court of appeals, a district court, or the Texas Judicial
Council or another agency in the judicial branch of state
government.
SUBCHAPTER B. DISCRIMINATION PROHIBITED
Sec. 621.051. DISCRIMINATION BY GOVERNMENTAL ENTITY
PROHIBITED. (a) Notwithstanding any other law and except as
provided by this section and Section 621.052, a governmental entity
may not:
(1) engage in a discriminatory activity;
(2) establish or maintain a discriminatory office;
(3) hire or assign an employee of the entity or
contract with a third party to perform the duties of a
discriminatory office;
(4) compel, require, induce, or solicit any person to
provide a discriminatory statement, or give preference to an
employee, applicant for employment, or other participant in any
function of the entity on the basis of the provision of a
discriminatory statement;
(5) give preference to an employee, applicant for
employment, or other participant in any function of the entity on
the basis of race, sex, color, ethnicity, or national origin;
(6) promote or adopt any theory justifying
differential treatment of individuals on the basis of race, sex,
color, ethnicity, or national origin;
(7) consider the race, sex, color, ethnicity, or
national origin of an individual in an employment, contracting,
funding, or policy determination;
(8) require an employee to participate in a
discriminatory activity or a discriminatory training, including a
training, program, or other activity designed or implemented in
reference to race, sex, color, ethnicity, or national origin;
(9) spend money on a discriminatory activity,
including acquiring services, supplies, information technology, or
other goods for the purpose of carrying out a discriminatory
activity;
(10) award a contract or provide preferential or
discriminatory treatment to a person submitting a bid for a
contract on the basis of race, sex, color, ethnicity, or national
origin; or
(11) enter into or renew a contract with a vendor in
violation of Chapter 2278.
(b) This section does not apply to a training, program, or
activity relating to sexual harassment or developed for the purpose
of ensuring compliance with applicable federal law.
(c) Each governmental entity shall adopt policies and
procedures for appropriately disciplining, including by
termination, an employee of the entity who engages in conduct
prohibited by Subsection (a) or Chapter 2278.
Sec. 621.052. LIMITATION OF PROHIBITION ON CERTAIN
GOVERNMENTAL ACTIVITIES RELATING TO PUBLIC EDUCATION. (a) This
section applies only to:
(1) a school district;
(2) an open-enrollment charter school;
(3) the State Board of Education; and
(4) the Texas Education Agency.
(b) Section 621.051:
(1) may not be construed to:
(A) limit or prohibit a school district or
open-enrollment charter school from, in accordance with the
essential knowledge and skills adopted under Subchapter A, Chapter
28, Education Code, acknowledging or teaching the significance of a
state or federal holiday or a commemorative month and the manner in
which the holiday or commemorative month fits into the themes of the
history of this state or the United States;
(B) affect a student's rights under the First
Amendment to the United States Constitution or Section 8, Article
1, Texas Constitution; or
(C) limit or prohibit a school district or
open-enrollment charter school from analyzing a school-based cause
of, and taking steps to eliminate an unlawful discriminatory
practice necessary to address, achievement gaps and differentials
described by Section 39.053, Education Code; and
(2) does not apply to:
(A) classroom instruction that is consistent
with the essential knowledge and skills adopted under Subchapter A,
Chapter 28, Education Code;
(B) the collection, monitoring, or reporting of
data; or
(C) a policy, practice, procedure, program, or
activity intended to enhance student academic achievement or
postgraduate outcomes that is designed and implemented without
regard to race, sex, color, or ethnicity.
SUBCHAPTER C. ENFORCEMENT WITH RESPECT TO POLITICAL SUBDIVISION
Sec. 621.101. COMPLAINT; DESIGNATION AS NONCOMPLIANT
POLITICAL SUBDIVISION. (a) A person who resides in an area served
by a political subdivision and who has a reasonable belief that the
political subdivision is violating this chapter, including by not
complying with the provisions of a corrective action plan included
in a response submitted to the attorney general under Subsection
(c), may file a complaint with the attorney general.
(b) If the attorney general determines that the political
subdivision named in a complaint received under Subsection (a) is
violating this chapter, the attorney general shall designate the
political subdivision as a noncompliant political subdivision and
provide written notice of the designation to the political
subdivision and the comptroller. The notice provided to the
political subdivision must explain the attorney general's
reasoning for the determination relating to the designation and
provide that the attorney general shall terminate the designation
in accordance with Subsection (c) if the political subdivision
submits a response in the manner provided by that subsection.
(c) Not later than the 14th day after receiving a notice
described by Subsection (b), a political subdivision may submit a
response to the attorney general. The attorney general shall
terminate the designation of the political subdivision as a
noncompliant political subdivision and provide notice of the
termination of the designation to the political subdivision and the
comptroller if the attorney general determines that the response:
(1) demonstrates that the political subdivision is not
violating this chapter; or
(2) includes a corrective action plan appropriate to
cure the violation identified in the notice provided to the
political subdivision under Subsection (b).
Sec. 621.102. WITHHOLDING OF CERTAIN FUNDS OTHERWISE DUE TO
NONCOMPLIANT POLITICAL SUBDIVISION. (a) With respect to a
municipality that is designated as a noncompliant political
subdivision by the attorney general under Section 621.101, on
receipt of a notice under Section 621.101(b), the comptroller shall
withhold payment of any money owed to the municipality under
Section 183.051(b) or 321.502, Tax Code.
(b) With respect to a county that is designated as a
noncompliant political subdivision by the attorney general under
Section 621.101, on receipt of a notice under Section 621.101(b),
the comptroller shall withhold payment of any money owed to the
county under Section 183.051(b) or 323.502, Tax Code.
(c) The comptroller shall place an amount withheld under
Subsection (a) or (b) that is not otherwise placed in a suspense
account in a trust fund outside the state treasury and that money
may not be used for any purpose other than a purpose authorized by
law for that money.
(d) On receipt of a notice under Section 621.101(c) that the
attorney general has terminated the designation of a municipality
or county as a noncompliant political subdivision, the comptroller
shall:
(1) immediately send to the municipality or county the
balance of or amount of, as applicable, the money withheld from the
municipality or county under Subsection (a) or (b), as applicable;
and
(2) resume distribution of the money described by
Subsections (a) and (b) to the municipality or county, as
applicable, in the ordinary course of business.
Sec. 621.103. CIVIL ACTION. (a) The attorney general may
seek declaratory and injunctive relief, including by filing a
petition for a writ of mandamus, to compel a political subdivision
to comply with this chapter if the political subdivision:
(1) is designated by the attorney general as a
noncompliant political subdivision under Section 621.101; or
(2) has not satisfied the terms of a corrective action
plan included in a response submitted to the attorney general under
Section 621.101(c).
(b) An action brought under this section must be filed in
the county in which the political subdivision is located.
(c) The court of appeals for the Fifteenth Court of Appeals
District has exclusive intermediate appellate jurisdiction over an
action brought under this section.
SUBCHAPTER D. COMPLIANCE BY STATE AGENCY; REPORTS
Sec. 621.151. REPORTING BY STATE AGENCY. (a) Each state
agency shall annually report on the agency's compliance with this
chapter in the manner provided by this section.
(b) A state agency to which Chapter 2102 applies shall
include in the annual report required under Section 2102.009 an
assessment of the agency's compliance with this chapter.
(c) A state agency not described by Subsection (b) shall:
(1) not later than November 1 of each year, submit to
the legislature a report containing an assessment of the agency's
compliance with this chapter during the preceding state fiscal
year; and
(2) appoint an internal auditor for the specific
purpose of conducting the assessment included in the report
described by Subdivision (1).
(d) A report under this section of a state agency's failure
to comply with this chapter must include a summary of instances of
noncompliance and actions taken or planned to be taken to remedy the
noncompliance.
SECTION 4. Subtitle F, Title 10, Government Code, is
amended by adding Chapter 2278 to read as follows:
CHAPTER 2278. PROHIBITION ON CONTRACTS WITH COMPANIES THAT ENGAGE
IN DISCRIMINATORY ACTIVITY
Sec. 2278.001. DEFINITION. In this chapter, "governmental
entity" has the meaning assigned by Section 621.001.
Sec. 2278.002. PROVISION REQUIRED IN CONTRACT. A
governmental entity may not enter into a contract with a vendor for
goods and services unless the contract:
(1) contains a written verification from the vendor
that the vendor does not, and will not during the term of the
contract, engage in activity that, were the vendor a governmental
entity, would violate Section 621.051; and
(2) provides that the governmental entity may
terminate the contract without penalty or further obligation to the
vendor on a showing by the entity that the vendor violated the
verification provided under Subdivision (1).
Sec. 2278.003. PROHIBITION ON ADDITIONAL CONTRACTS. (a)
Except as provided by Subsection (b), a governmental entity may not
enter into another contract with a vendor after terminating a
contract with that vendor under Section 2278.002(2).
(b) A governmental entity may enter into a contract with a
vendor described by Subsection (a) only after:
(1) submitting information to the attorney general
showing that the vendor has cured the violation that was the subject
of the termination described by Section 2278.002(2); and
(2) receiving authorization from the attorney general
to enter into a subsequent contract.
SECTION 5. (a) Not later than January 1, 2026, each state
agency to which Section 621.151(c), Government Code, as added by
this Act, applies shall appoint an internal auditor as required by
that subsection.
(b) Notwithstanding Section 621.151, Government Code, as
added by this Act, each state agency shall conduct the initial
assessment and report on the agency's compliance with Chapter 621,
Government Code, as added by this Act, in accordance with Section
621.151(b) or (c), Government Code, as added by this Act, as
applicable, not later than November 1, 2026.
SECTION 6. Chapter 2278, Government Code, as added by this
Act, applies only to a contract for which the request for bids or
proposals or other applicable expression of interest is made public
on or after the effective date of this Act. A contract for which the
request for bids or proposals or other applicable expression of
interest is made public before that date is governed by the law in
effect on the date the request or other expression of interest is
made public, and the former law is continued in effect for that
purpose.
SECTION 7. Section 621.102, Government Code, as added by
this Act, does not affect the validity of a bond, other obligation,
or contractual obligation for which revenue was pledged or
committed before the effective date of this Act. Bonds, other
obligations, or contractual obligations for which revenue was
pledged or committed before the effective date of this Act are
governed by the law in effect when the revenue was pledged or
committed, and that law is continued in effect for the purposes of
the validity of those bonds, obligations, and contractual
obligations.
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2025.