By: Gerdes H.B. No. 5135
A BILL TO BE ENTITLED
AN ACT
relating to prohibition of discrimination by governmental entities
based on immutable characteristics.
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. Subtitle A, Title 6, Government Code, is amended
by adding Chapter 621 to read as follows:
CHAPTER 621. PROHIBITION OF DISCRIMINATION BY GOVERNMENTAL
ENTITIES BASED ON IMMUTABLE CHARACTERISTICS
Sec. 621.001. LEGISLATIVE FINDINGS; PURPOSE. (a) The
legislature finds that:
(1) Section 3, Article I, Texas Constitution (Equal
Protection Clause), 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 service;"
(2) Section 3a, Article I, Texas Constitution (Equal
Rights Amendment), provides that "[e]quality under the law shall
not be denied or abridged because of sex, race, color, creed, or
national origin;"
(3) The Texas Constitution's Equal Rights Amendment
was designed expressly to provide protection which supplements the
federal guarantees of equal treatment;
(4) The Texas Constitution's Equal Rights Amendment is
more extensive and provides more specific protection than both the
United States and Texas due-process and equal-protection
guarantees; and
(5) Discrimination by governmental entities is
antithetical to the Texas Constitution's Equal Protection Clause
and Equal Rights Amendment and lack a rational relationship to a
legitimate governmental purpose such that the initiatives violate
Texas's Equal Protection Clause and Equal Rights Amendment; and
(6) Texans deserve a government committed to serving
every person with equal dignity and respect and to expending
precious taxpayer resources only on making Texas great for all
Texans.
(b) The purpose of this act is to prevent the unlawful
discrimination that is antithetical to the Texas Constitution's
Equal Protection Clause and Equal Rights Amendment. This act does
not create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the
governmental entities listed in Section 621.002(2), except as
provided by Section 621.004.
Sec. 621.002. DEFINITIONS. In this chapter:
(a) "Discriminatory office" means an office, division, or
other unit of a governmental entity established for the purpose of:
(1) influencing hiring or employment practices or
workforce composition at the entity with respect to race, sex,
color, or ethnicity, other than through the use of color-blind or
sex-neutral hiring processes in accordance with any applicable
state and federal antidiscrimination laws;
(2) promoting differential treatment or providing
special benefits to individuals on the basis of race, sex, color, or
ethnicity;
(3) promoting policies or procedures designed or
implemented in reference to race, sex, color, or ethnicity, other
than policies or procedures implemented for the sole purpose of
ensuring compliance with applicable federal law;
(4) conducting trainings, programs, or activities
designed or implemented in reference to race, sex, color, or
ethnicity, other than trainings, programs, or activities conducted
for the sole purpose of ensuring compliance with any applicable
court order or federal law; or
(5) promoting, as an official position of the entity,
a particular opinion referencing unconscious or implicit bias,
cultural appropriation, allyship, transgender ideology,
microaggressions, group marginalization, anti-racism, systemic
oppression, social justice, intersectionality, neo-pronouns,
heteronormativity, disparate impact, gender theory, racial or
sexual privilege, or any related formulation of these concepts.
(b) "Diversity, equity, and inclusion" means:
(1) influencing hiring or employment practices with
respect to race, sex, color, or ethnicity, other than through the
use of color-blind and sex-neutral hiring processes in accordance
with any applicable state and federal antidiscrimination laws;
(2) promoting differential treatment of or providing
special benefits to individuals on the basis of race, sex, color, or
ethnicity;
(3) promoting policies or procedures designed or
implemented in reference to race, sex, color, or ethnicity, other
than policies or procedures approved in writing by a respective
agency general counsel for the sole purpose of ensuring compliance
with any applicable court order or state or federal law; and
(4) conducting trainings, programs, or activities
designed or implemented in reference to race, sex, color, or
ethnicity, other than trainings, programs, or activities developed
by an attorney and approved by a respective agency general counsel
for the sole purpose of ensuring compliance with any applicable
court order or state or federal law.
(c) "Governmental entity" means:
(1) a state agency, which includes;
(A) a department, commission, board, office, or
other agency that is in the executive branch of state government and
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 state
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; and
(2) a political subdivision, which includes:
(A) a county, municipality, special purpose
district, including a school district, or any other political
subdivision of this state;
(B) an open-enrollment charter school
established under Subchapter D, Chapter 12, Education Code; or
(C) any other political subdivision of this state
described by Section 2254.021(4), Government Code.
Sec. 621.003. DISCRIMINATION BY GOVERNMENTAL ENTITIES
PROHIBITED. (a) Notwithstanding any other law, and other than
through color-blind, race-neutral, or sex-neutral processes, a
governmental entity shall not:
(1) establish or maintain a discriminatory office;
(2) hire or assign an employee of the entity or
contract with a third party to perform the duties of a
discriminatory office;
(3) compel, require, induce, or solicit any person to
provide a discriminatory statement or give preferential
consideration to any person based on the provision of a
discriminatory statement;
(4) give preference on the basis of race, sex, color,
or ethnicity to an applicant for employment, an employee, or a
participant in any function of the entity;
(5) promote or adopt any theory justifying
differential treatment based on race, sex, color, or ethnicity;
(6) Consider race, sex, color, or ethnicity when
making employment, contracting, funding, or policy determinations;
(7) require an employee to participate in a diversity,
equity, or inclusion program or a discriminatory training, which
includes a training, program, or activity designed or implemented
in reference to race, sex, color, or ethnicity;
(8) spend monies on a diversity, equity, and inclusion
program, including to acquire services, supplies, information
technology, or goods for a diversity, equity and inclusion program;
(9) 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, or ethnicity, provided
that this prohibition shall only apply to contracts executed or
renewed on or after September 1, 2025; or
(10) enter into or renew a contract with a contractor
or vendor that engages in conduct that would be prohibited by this
chapter if done by a governmental entity, provided that this
prohibition shall only apply to contracts executed or renewed on or
after September 1, 2025.
(b) Subsection (a) may not be construed to apply to offering
training on sexual harassment or a training, program, or activity
developed for the purpose of ensuring compliance with any
applicable federal law.
(c) A governmental entity shall adopt policies and
procedures for appropriately disciplining, including by
termination, an employee or contractor of the entity who engages in
conduct in violation of Subdivision (a);
(d) If a state agency or political subdivision determines
that a contractor or vendor has violated this chapter, it shall
cancel the contract without penalty. The state agency or political
subdivision shall be prohibited from entering into future contracts
with the violating contractor or vendor until the entity provides
sufficient evidence that the violation has been cured.
Sec. 621.004. ENFORCEMENT AGAINST A POLITICAL SUBDIVISION.
(a) A person who has a reasonable belief that a political
subdivision is violating this chapter may file a complaint with the
attorney general.
(b) If the attorney general determines that a political
subdivision named in a complaint received under Subsection (a) is
violating this chapter, the attorney general shall provide written
notice of the violation to the political subdivision, and:
(1) require the political subdivision to submit a
corrective action plan within fourteen days; and
(2) designate the political subdivision as
noncompliant.
(c) Notwithstanding any other law, the comptroller may not
distribute to a political subdivision designated as non-compliant
any sales and use tax revenue collected under Chapter 321, Tax Code,
or mixed beverage tax revenue collected under Chapter 183, Tax
Code, that is on deposit in the suspense account of the political
subdivision. The funds shall remain in trust and may not be used
for any purpose until compliance is restored. Upon compliance with
this section the comptroller shall resume distribution of withheld
funds to the political subdivision.
(d) If a political subdivision does not receive funds under
Chapter 321 or Chapter 183, Tax Code, or if a political subdivision
fails to timely submit a corrective action plan, the Attorney
General may seek declaratory, injunctive, or mandamus relief to
compel compliance with this chapter.
(e) An action under Subsection (d) must be filed in the
county in which the political subdivision is located, and any
appeal shall be heard by the Fifteenth Court of Appeals.
Sec. 621.005. ENFORCEMENT AGAINST A STATE AGENCY. (a) A
state agency that is required to appoint an internal auditor to
submit the annual report required by Section 2102.009, Government
Code, shall include in its report a description of the state
agency's compliance or failure to comply with this chapter.
(b) A state agency that is not required to appoint an
auditor under Chapter 2102, Government Code, shall appoint an
auditor for the specific purpose of reporting annually on the state
agency's compliance or failure to comply with this chapter.
(c) If a state agency is in compliance with this chapter,
the internal auditor shall include in its report an affirmative
acknowledgment of compliance with Chapter 621, Government Code.
(d) If a state agency is not in compliance with this
chapter, the internal auditor shall include in its report a summary
of instances of non-compliance and actions taken or planned to be
taken to remedy any non-compliance.
SECTION 3. 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.