BILL ANALYSIS

Senate Research Center	S.B. 182
	By: Miles
	Health & Human Services
	5/25/2023
	Enrolled

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

Currently, there is no requirement for employees or contractors of the Department of Family and Protective Services (DFPS) or the Texas Juvenile Justice Department (TJJD) to report criminal offenses committed by fellow DFPS and TJJD employees against a person receiving services from DFPS or TJJD.

S.B. 182 addresses this issue by requiring employees and contractors of both agencies to report known criminal offenses committed by fellow agency employees and contractors against those receiving services from DFPS or TJJD to the Texas Department of Public Safety.

S.B. 182 did not clearly address the penalty associated with failing to report. The committee substitute addresses these concerns by creating a Class A misdemeanor for failing to report, and an elevated penalty of a state jail felony for intending to hinder an investigation into or conceal the criminal conduct.

S.B. 182 amends current law relating to the required report of criminal offenses committed against individuals receiving certain state agency services and creates a criminal offense.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Subchapter C, Chapter 40, Human Resources Code, by adding Sections 40.082 and 40.083, as follows:

Sec. 40.082. REPORT OF CRIMINAL CONDUCT; PENALTY. (a) Requires each employee of the Department of Family and Protective Services (DFPS) or of a DFPS contractor who becomes aware of conduct constituting a criminal offense engaged in by another employee of DFPS or by a DFPS contractor against a person receiving services from DFPS or a DFPS contractor to report the conduct to a local law enforcement agency not later than the 48th hour after the hour the employee becomes aware of the conduct.

(b) Provides that a person commits an offense if the person is required to make a report under Subsection (a) and knowingly fails to make the report.

(c) Provides that an offense under Subsection (b) is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the actor intended to hinder an investigation of or conceal the criminal conduct described by Subsection (a).

Sec. 40.083. EMPLOYER RETALIATION PROHIBITED. (a) Defines "adverse employment action."

(b) Prohibits an employer from suspending or terminating the employment of, discriminate against, or taking any other adverse employment action against a person who in good faith:

(1) reports conduct constituting a criminal offense as required by Section 40.082; or

(2) initiates or cooperates with an investigation or proceeding relating to the conduct constituting a criminal offense reported under Section 40.082.

(c) Authorizes an employee to sue for injunctive relief, damages, or both if, in violation of this section, the employee:

(1) is suspended or terminated from the person's employment;

(2) is discriminated against; or

(3) suffers any other adverse employment action.

(d) Authorizes a plaintiff who prevails in a suit under this section to recover:

(1) actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown;

(2) exemplary damages under Chapter 41 (Damages), Civil Practice and Remedies Code, if the employer is a private employer;

(3) court costs; and

(4) reasonable attorney's fees.

(e) Entitles a plaintiff who prevails in a suit under this section, in addition to amounts recovered under Subsection (d), to:

(1) reinstatement to the person's former position or a comparable position in terms of compensation, benefits, and other conditions of employment;

(2) reinstatement of any fringe benefits and seniority rights lost because of the suspension, termination, or discrimination; and

(3) compensation for wages lost during the period of suspension or termination.

(f) Authorizes a DFPS employee who alleges a violation of this section to sue DFPS for the relief provided for by this section. Provides that the sovereign immunity is waived and abolished to the extent of liability created by this section.

(g) Provides that a plaintiff suing under this section has the burden of proof, except there is a rebuttable presumption that the plaintiff's employment was suspended or terminated or that the plaintiff was otherwise discriminated against for reporting abuse or neglect if the suspension, termination, or discrimination occurs before the 61st day after the date on which the person submitted a report in good faith.

(h) Authorizes a suit under this section to be brought in a district or statutory county court of the county in which:

(1) the plaintiff was employed by the defendant; or

(2) the defendant conducts business.

(i) Provides that it is an affirmative defense to a suit under Subsection (c) that an employer would have taken against the employee the action that forms the basis of the suit based solely on information, observation, or evidence unrelated to the fact that the employee made a report under Section 40.082 or initiated or cooperated with an investigation or proceeding relating to the conduct constituting a criminal offense reported under Section 40.082.

(j) Prohibits a public employee who has a cause of action under Chapter 554 (Protection for Reporting Violations of Law), Government Code, based on conduct described by Subsection (b) from bringing an action based on that conduct under this section.

(k) Provides that this section does not apply to a person who reports the person's own criminal conduct or who initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of the person's own criminal conduct.

SECTION 2. Amends Chapter 203, Human Resources Code, by adding Sections 203.020 and 203.021, as follows:

Sec. 203.020. REPORT OF CRIMINAL CONDUCT; PENALTY. (a) Requires each employee of the Texas Juvenile Justice Department (TJJD) or of a TJJD contractor who becomes aware of conduct constituting a criminal offense engaged in by another employee of TJJD or by a TJJD contractor against a person receiving services from TJJD or a TJJD contractor to report the conduct to a local law enforcement agency not later than the 48th hour after the hour the employee becomes aware of the conduct.

(b) Provides that a person commits an offense if the person is required to make a report under Subsection (a) and knowingly fails to make the report.

Sec. 203.021. EMPLOYER RETALIATION PROHIBITED. (a) Defines "adverse employment action."

(b) Prohibits an employer from suspending or terminating the employment of, discriminate against, or taking any other adverse employment action against a person who in good faith:

(1) reports conduct constituting a criminal offense as required by Section 203.020; or

(2) initiates or cooperates with an investigation or proceeding relating to the conduct constituting a criminal offense reported under Section 203.020.

(c) Authorizes an employee to sue for injunctive relief, damages, or both if, in violation of this section, the employee:

(1) is suspended or terminated from the person's employment;

(2) is discriminated against; or

(3) suffers any other adverse employment action.

(d) Authorizes a plaintiff who prevails in a suit under this section to recover:

(1) actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown;

(2) exemplary damages under Chapter 41, Civil Practice and Remedies Code, if the employer is a private employer;

(3) court costs; and

(4) reasonable attorney's fees.

(e) Entitles a plaintiff who prevails in a suit under this section, in addition to amounts recovered under Subsection (d), to:

(1) reinstatement to the person's former position or a comparable position in terms of compensation, benefits, and other conditions of employment;

(2) reinstatement of any fringe benefits and seniority rights lost because of the suspension, termination, or discrimination; and

(3) compensation for wages lost during the period of suspension or termination.

(f) Authorizes a TJJD employee who alleges a violation of this section to sue TJJD for the relief provided for by this section. Provides that the sovereign immunity is waived and abolished to the extent of liability created by this section.

(h) Authorizes a suit under this section to be brought in a district or statutory county court of the county in which:

(1) the plaintiff was employed by the defendant; or

(2) the defendant conducts business.

(i) Provides that it is an affirmative defense to a suit under Subsection (c) that an employer would have taken against the employee the action that forms the basis of the suit based solely on information, observation, or evidence unrelated to the fact that the employee made a report under Section 203.020 or initiated or cooperated with an investigation or proceeding relating to the conduct constituting a criminal offense reported under Section 203.020.

(j) Prohibits a public employee who has a cause of action under Chapter 554, Government Code, based on conduct described by Subsection (b) from bringing an action based on that conduct under this section.

SECTION 3. Effective date: September 1, 2023.