H.B. No. 520
    1-1                                AN ACT
    1-2  relating to the exclusion from coverage under the Texas
    1-3  Unemployment Compensation Act of services performed by certain
    1-4  landmen.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 19(g)(5), Texas Unemployment Compensation
    1-7  Act (Article 5221b-17, Vernon's Texas Civil Statutes), is amended
    1-8  to read as follows:
    1-9              (5)  The term "employment" shall not include:
   1-10                    (A)  Service with respect to which unemployment
   1-11  compensation is payable under an Unemployment Compensation System
   1-12  established by an Act of Congress; provided that the Commission is
   1-13  hereby authorized to enter into agreements with the proper agencies
   1-14  under such Act of Congress, which agreements shall become effective
   1-15  ten (10) days after publication thereof in the manner provided in
   1-16  subsection 11(b) of this Act for general rules, to provide
   1-17  reciprocal treatment to individuals who have, after acquiring
   1-18  potential rights to benefits under this Act, acquired rights to
   1-19  unemployment compensation under such Act of Congress, or who have,
   1-20  after acquiring potential rights to unemployment compensation under
   1-21  such Act of Congress, acquired rights to benefits under this Act;
   1-22                    (B)  Service performed by an individual as a
   1-23  product demonstrator if:
   1-24                          (i)  the service is performed under a
    2-1  written contract between the individual and a person whose
    2-2  principal business is obtaining the services of demonstrators for
    2-3  third parties for product demonstration purposes; and
    2-4                          (ii)  both in contract and in fact the
    2-5  individual:
    2-6                                (I)  is not treated as an employee
    2-7  with respect to those services for federal unemployment tax
    2-8  purposes;
    2-9                                (II)  is compensated for each
   2-10  demonstration, or the compensation is based on factors that relate
   2-11  to the work performed;
   2-12                                (III)  determines the method of
   2-13  performing the service;
   2-14                                (IV)  provides the vehicles used to
   2-15  perform the service;
   2-16                                (V)  is responsible for the
   2-17  completion of a specific job and is liable for any failure to
   2-18  complete the job;
   2-19                                (VI)  is free to accept or reject
   2-20  jobs from a product demonstrator business, and the principal
   2-21  business has no control over where the individual works;
   2-22                                (VII)  pays all expenses, and the
   2-23  opportunity for profit or loss rests solely with the individual;
   2-24  and
   2-25                                (VIII)  is responsible for operating
   2-26  costs, including fuel, repairs, supplies, and motor vehicle
   2-27  insurance;
    3-1                    (C)  Domestic service in a private home, local
    3-2  college club, or local chapter of a college fraternity or sorority;
    3-3                    (D)  Service performed by an individual in the
    3-4  employ of his son, daughter, or spouse, and service performed by a
    3-5  child under the age of twenty-one (21) years in the employ of his
    3-6  father or mother;
    3-7                    (E)  Service performed in the employ of a church,
    3-8  convention or association of churches, or an organization which is
    3-9  operated primarily for religious purposes and which is operated,
   3-10  supervised, controlled, or principally supported by a church or
   3-11  convention or association of churches;
   3-12                    (F)  Services performed in the employ of a
   3-13  political subdivision or any instrumentality thereof which is
   3-14  wholly owned by one (1) or more political subdivisions:
   3-15                          (i)  as an elected official;
   3-16                          (ii)  as a member of a legislative body;
   3-17                          (iii)  as a member of the judiciary;
   3-18                          (iv)  as an employee serving on a temporary
   3-19  basis in case of fire, storm, snow, earthquake, flood, or similar
   3-20  emergency; or
   3-21                          (v)  in a position which, under or pursuant
   3-22  to law, is designated as a major nontenured policy-making or
   3-23  advisory position, or a policy-making or advisory position the
   3-24  performance of the duties of which ordinarily does not require more
   3-25  than eight (8) hours per week;
   3-26                    (G)  Service performed in the employ of a foreign
   3-27  government (including services as a consular or other officer or
    4-1  employee, or a nondiplomatic representative);
    4-2                    (H)  Service performed in the employ of an
    4-3  instrumentality wholly owned by a foreign government (i) if the
    4-4  service is of a character similar to that performed in foreign
    4-5  countries by the employees of the United States Government or of an
    4-6  instrumentality thereof; and (ii) if the Commission finds that the
    4-7  United States Secretary of State has certified to the United States
    4-8  Secretary of the Treasury that the foreign government, with respect
    4-9  to whose instrumentality exemption is claimed, grants an equivalent
   4-10  exemption with respect to similar services performed in the foreign
   4-11  country by employees of the United States Government and of
   4-12  instrumentalities thereof;
   4-13                    (I)  Service performed as a student nurse in the
   4-14  employ of a hospital or a nurses' training school by an individual
   4-15  who is enrolled and is regularly attending classes in a nurses'
   4-16  training school chartered or approved pursuant to State law; and
   4-17  service performed as an intern in the employ of a hospital by an
   4-18  individual who has completed a four-year course in a medical school
   4-19  chartered or approved pursuant to State law;
   4-20                    (J)  Service performed by an individual for a
   4-21  person as an insurance agent or an insurance solicitor, if all such
   4-22  service performed by such individual for such person is performed
   4-23  for remuneration solely by way of commission;
   4-24                    (K)  Service performed by an individual under the
   4-25  age of eighteen (18) years in the delivery or distribution of
   4-26  newspapers or shopping news, not including delivery or distribution
   4-27  to any point for subsequent delivery or distribution;
    5-1                    (L)  Service covered by an arrangement between
    5-2  the Commission and the agency charged with the administration of
    5-3  any other state or federal unemployment compensation law pursuant
    5-4  to which all services performed by an individual for an employing
    5-5  unit during the period covered by such employing unit's duly
    5-6  approved election are deemed to be performed entirely within such
    5-7  agency's state or under such federal law;
    5-8                    (M)  Service performed in the employ of the
    5-9  United States Government or an instrumentality of the United States
   5-10  exempt under the Constitution of the United States from the
   5-11  contributions imposed by this Act, except that to the extent that
   5-12  the Congress of the United States shall permit states to require
   5-13  any instrumentalities of the United States to make payments into an
   5-14  unemployment fund under a state unemployment compensation law, all
   5-15  of the provisions of this Act shall be applicable to such
   5-16  instrumentalities, and to services performed for such
   5-17  instrumentalities, in the same manner, to the same extent, and on
   5-18  the same terms as to all other employers, employing units,
   5-19  individuals, and services; provided, that if this State shall not
   5-20  be certified for any year by the Social Security Board or successor
   5-21  under Section 1603(c) of the Internal Revenue Code of 1954, the
   5-22  payments required by such instrumentalities with respect to such
   5-23  year shall be refunded by the Commission from the fund in the same
   5-24  manner and within the same period as is provided in subsection
   5-25  14(j) of this Act with respect to contributions erroneously
   5-26  collected;
   5-27                    (N)  Service performed by a duly ordained,
    6-1  commissioned, or licensed minister of a church in the exercise of
    6-2  his ministry or by a member of a religious order in the exercise of
    6-3  duties required by such order;
    6-4                    (P)  Service performed in the employ of a
    6-5  facility conducted for the purpose of carrying out a program of
    6-6  rehabilitation for individuals whose earning capacity is impaired
    6-7  by age or physical or mental deficiency or injury, or providing
    6-8  remunerative work for individuals who because of their impaired
    6-9  physical or mental capacity cannot be readily absorbed in the
   6-10  competitive labor market by an individual receiving such
   6-11  rehabilitative or remunerative work;
   6-12                    (Q)  Service performed as part of an unemployment
   6-13  work-relief or work-training program assisted or financed in whole
   6-14  or in part by any federal agency or an agency of a state or
   6-15  political subdivision thereof, by an individual receiving such work
   6-16  relief or work training;
   6-17                    (R)  Service performed by an inmate of a
   6-18  custodial or penal institution which is owned or operated by the
   6-19  State or a political subdivision thereof;
   6-20                    (S)  Service performed in the employ of a school,
   6-21  college, or university, if such service is performed by a student
   6-22  who is enrolled and is regularly attending classes at such school,
   6-23  college, or university;
   6-24                    (T)  Service performed by an individual who is
   6-25  enrolled at a nonprofit or public educational institution which
   6-26  normally maintains a regular faculty and curriculum and normally
   6-27  has a regularly organized body of students in attendance at the
    7-1  place where its educational activities are carried on as a student
    7-2  in a full-time program, taken for credit at such institution, which
    7-3  combines academic instruction with work experience, if such service
    7-4  is an integral part of such program, and such institution has so
    7-5  certified to the employing unit, except that this subparagraph
    7-6  shall not apply to service performed in a program established for
    7-7  or on behalf of an employer or group of employers, service
    7-8  performed in an apprenticeship training program, or service
    7-9  performed by a teaching assistant;
   7-10                    (U)  Service performed in the employ of a
   7-11  hospital, if such service is performed by a patient of such
   7-12  hospital;
   7-13                    (V)  Service performed on a fishing vessel
   7-14  normally having a crew of fewer than ten (10) if the crew member's
   7-15  reimbursement for services performed is a share of the catch and
   7-16  the services are determined not to be employment under the Federal
   7-17  Unemployment Tax Act; and
   7-18                    (W)  Service performed by an individual as a
   7-19  direct seller if:
   7-20                          (i)  the individual is engaged in the
   7-21  business of in-person sales of consumer products to any buyer on a
   7-22  buy-sell basis, a deposit-commission basis, or any similar basis
   7-23  for resale in the home, or in a place other than in, or affiliated
   7-24  with, a permanent retail establishment, or the individual is
   7-25  engaged in the business of selling consumer products in the home or
   7-26  in a place other than in, or affiliated with, a permanent retail
   7-27  establishment;
    8-1                          (ii)  substantially all the remuneration,
    8-2  whether or not paid in cash, for the performance of the services is
    8-3  directly related to sales or other output, including the
    8-4  performance of services, rather than to the number of hours worked;
    8-5  and
    8-6                          (iii)  the services performed by the
    8-7  individual are performed under a written contract between the
    8-8  individual and the person for whom the services are performed, and
    8-9  the contract provides that the individual is not treated as an
   8-10  employee with respect to those services for federal tax purposes;
   8-11                    (X)  Service performed by a full-time student in
   8-12  the employ of an organized camp if the conditions in (i) below are
   8-13  met.
   8-14                          (i)  This paragraph applies if:
   8-15                                (I)  such camp:
   8-16                                      (a)  did not operate for more
   8-17  than seven (7) months in the calendar year and did not operate for
   8-18  more than seven (7) months in the preceding calendar year, or
   8-19                                      (b)  had average gross receipts
   8-20  for any six (6) months in the preceding calendar year which were
   8-21  not more than 33 1/3 percent of its average gross receipts for the
   8-22  other six (6) months in the preceding calendar year; and
   8-23                                (II)  such full-time student
   8-24  performed services in the employ of such camp for less than
   8-25  thirteen (13) calendar weeks in such calendar year.
   8-26                          (ii)  For purposes of this paragraph, an
   8-27  individual shall be treated as a full-time student for any period:
    9-1                                (I)  during which the individual is
    9-2  enrolled as a full-time student at an educational institution, or
    9-3                                (II)  which is between academic years
    9-4  or terms if:
    9-5                                      (a)  the individual was
    9-6  enrolled as a full-time student at an educational institution for
    9-7  the immediately preceding academic year or term, and
    9-8                                      (b)  there is a reasonable
    9-9  assurance that the individual will be so enrolled for the
   9-10  immediately succeeding academic year or term after the period
   9-11  described in Subparagraph (a);
   9-12                    (Y)  Service performed by an individual as a real
   9-13  estate broker or salesman if:
   9-14                          (i)  the individual is engaged in
   9-15  performing acts or transactions comprehended by the definition of
   9-16  "real estate broker" in The Real Estate License Act (Article 6573a,
   9-17  Vernon's Texas Civil Statutes);
   9-18                          (ii)  the individual is licensed as a real
   9-19  estate broker or salesman by the Texas Real Estate Commission;
   9-20                          (iii)  substantially all the remuneration,
   9-21  whether or not paid in cash, for the performance of the services is
   9-22  directly related to sales or other output, including the
   9-23  performance of services, rather than to the number of hours worked;
   9-24  and
   9-25                          (iv)  the services performed by the
   9-26  individual are performed under a written contract between the
   9-27  individual and the person for whom the services are performed, and
   10-1  the contract provides that the individual is not treated as an
   10-2  employee with respect to those services for federal tax purposes;
   10-3                    (Z)  Service performed by an individual as an
   10-4  instructor of persons licensed or seeking licensure as real estate
   10-5  brokers or salesmen if:
   10-6                          (i)  the individual is instructing an
   10-7  educational program or course approved by the Texas Real Estate
   10-8  Commission; and
   10-9                          (ii)  the services performed by the
  10-10  individual are performed under a written contract between the
  10-11  individual and the person for whom the services are performed, and
  10-12  the contract provides that the individual is not treated as an
  10-13  employee with respect to those services for federal tax purposes;
  10-14  and
  10-15                    (AA)  Service performed for a private for-profit
  10-16  delivery or courier service by an individual for compensation if:
  10-17                          (i)  the individual:
  10-18                                (I)  is free to accept or reject jobs
  10-19  from a private for-profit delivery or courier service, and the
  10-20  private for-profit delivery or courier service has no control over
  10-21  when the individual works;
  10-22                                (II)  is compensated for each
  10-23  delivery, or the compensation is based on factors that relate to
  10-24  the work performed, including receipt of a percentage of any rate
  10-25  schedule or of a lawfully published tariff;
  10-26                                (III)  pays all expenses, and the
  10-27  opportunity for profit or loss rests solely with the individual;
   11-1                                (IV)  is responsible for operating
   11-2  costs, including fuel, repairs, supplies, and motor vehicle
   11-3  insurance;
   11-4                                (V)  determines the method of
   11-5  performing the service, including selection of routes and order of
   11-6  deliveries;
   11-7                                (VI)  is responsible for the
   11-8  completion of a specific job and is liable for any failure to
   11-9  complete the job;
  11-10                                (VII)  enters into a contract that
  11-11  specifies the relationship of the individual to the private
  11-12  for-profit delivery or courier service to be that of an independent
  11-13  contractor and not that of an employee; and
  11-14                                (VIII)  provides the vehicle used to
  11-15  perform the service; and
  11-16                          (ii)  the private for-profit delivery or
  11-17  courier service operates exclusively within a commercial zone as
  11-18  defined and prescribed by the Railroad Commission of Texas under
  11-19  Section 1(g), Chapter 314, Acts of the 41st Legislature, Regular
  11-20  Session, 1929 (Article 911b, Vernon's Texas Civil Statutes).
  11-21                    (BB)  Service performed by an individual at a
  11-22  trade market for a wholesaler or sales representative of a
  11-23  wholesaler or manufacturer of consumer goods under a written
  11-24  contract, or as a salesman for a wholesaler or wholesalers of
  11-25  consumer goods if such wholesaler or sales representative maintains
  11-26  a regular or seasonal place of business at a trade market facility
  11-27  in a city with a population of more than 750,000.
   12-1                    (CC)  Service performed for a private for-profit
   12-2  person or entity by an individual as a landman if:
   12-3                          (i)  the individual is engaged primarily in
   12-4  negotiating for the acquisition or divestiture of mineral rights or
   12-5  negotiating business agreements that provide for the exploration
   12-6  for or development of minerals;
   12-7                          (ii)  substantially all remuneration, paid
   12-8  in cash or otherwise, for the performance of the services is
   12-9  directly related to the completion by the individual of the
  12-10  specific tasks contracted for rather than to the number of hours
  12-11  worked by the individual; and
  12-12                          (iii)  the services performed by the
  12-13  individual are performed under a written contract between the
  12-14  individual and the person for whom the services are performed that
  12-15  provides that the individual is to be treated as an independent
  12-16  contractor and not as an employee with respect to the services
  12-17  provided under the contract.
  12-18        SECTION 2.  This Act takes effect September 1, 1993, and
  12-19  applies only to benefit eligibility based on a claim for
  12-20  unemployment compensation benefits that is filed with the Texas
  12-21  Employment Commission on or after that date.  A claim filed before
  12-22  that date is governed by the law in effect on the date the claim
  12-23  was filed, and the former law is continued in effect for that
  12-24  purpose.
  12-25        SECTION 3.  The importance of this legislation and the
  12-26  crowded condition of the calendars in both houses create an
  12-27  emergency   and   an   imperative   public   necessity   that   the
   13-1  constitutional rule requiring bills to be read on three several
   13-2  days in each house be suspended, and this rule is hereby suspended.