By Hirschi, et al. H.B. No. 2388
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the protection of public employees who report a
1-3 violation of law, cooperate in an official investigation, or refuse
1-4 to take an unlawful action.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 832, Acts of the 68th Legislature,
1-7 regular Session, 1983 (Article 6252-16a, Vernon's Texas Civil
1-8 Statutes), is amended to read as follows:
1-9 Sec. 1. Definitions. In this Act:
1-10 (1) "Appropriate law enforcement authority" means an entity
1-11 within a state or local governmental body or within the federal
1-12 government that is authorized to:
1-13 (A) investigate or prosecute a violation of criminal
1-14 law, including, but not limited to city attorney, county attorney,
1-15 district attorney, attorney general, United States attorney, city
1-16 police, county sheriff, Department of Public Safety, and Federal
1-17 Bureau of Investigation; or
1-18 (B) enforce or regulate under the law alleged to be
1-19 violated.
1-20 (2) <(1)> "Law" means a state or federal statute, an
1-21 ordinance passed by a local governmental body, or a written rule
1-22 formally adopted under a statute or an ordinance.
1-23 (3) <(2)> "Local governmental body" means a political
2-1 subdivision of the state.
2-2 (4) "Personnel action" means an action that affects
2-3 compensation, promotion, demotion, transfer, work assignment or
2-4 evaluation of performance.
2-5 (5) <(3)> "Public employee" means a paid employee or paid
2-6 appointed officer of <person who performs services for compensation
2-7 under a written or oral contract for> a state or local governmental
2-8 body. The term does not include an independent contractor.
2-9 (6) <(4)> "State governmental body" means:
2-10 (A) a board, commission, department, office, or other
2-11 agency in the executive branch of state government that was created
2-12 under the constitution or a statute of the state, including an
2-13 institution of higher education as defined by Section 61.003,
2-14 <Texas> Education Code;
2-15 (B) the legislature or a legislative agency; or
2-16 (C) the supreme court, the court of criminal appeals,
2-17 a court of appeals, a state judicial agency, or the State Bar of
2-18 Texas.
2-19 Sec. 2. Retaliation prohibited. A state or local
2-20 governmental body may not suspend or terminate the employment of,
2-21 or take other adverse personnel action <otherwise discriminate>
2-22 against<,> a public employee who:
2-23 (1) reports a violation of law by the employer or a fellow
2-24 employee to an appropriate law enforcement authority if the
2-25 employee:
3-1 (A) makes the report in good faith; and
3-2 (B) first reports the violation of law to an employee
3-3 designated by the head of the state or local governmental body to
3-4 receive such reports and allow the employing governmental body a
3-5 reasonable period in which to take appropriate action in response
3-6 to the report. An employee is not required to first report under
3-7 this section if the employee:
3-8 (i) reasonably fears reprisal as a result of the
3-9 report;
3-10 (ii) reasonably believes an emergency exists;
3-11 (iii) believes with reasonable certainty that
3-12 the violation is already known to one or more supervisors; or
3-13 (iv) reasonably believes that the reports to the
3-14 employer will not result in prompt action to remedy the violation;
3-15 For purposes of this section, the term "good faith" means that the
3-16 employee reasonably believes the allegations of fact in the report
3-17 are true and reasonably believes the report concerns a violation of
3-18 law. <report is made in good faith.>
3-19 (2) An employee is not entitled to the protection provided
3-20 by this article unless there is some writing sufficient to indicate
3-21 that the employee in fact made a report that a violation of law had
3-22 occurred.
3-23 Sec. 3. Waiver of Immunity; Defense <Remedy, burden of
3-24 proof>; venue; utilization of administrative remedies.
3-25 (a) A public employee who alleges a violation of this Act
4-1 may sue the employing state or local governmental body for the
4-2 remedies provided by the Act, and sovereign immunity is waived and
4-3 abolished to the extent of liability for the remedies allowed under
4-4 this Act for a violation of this Act <for injunctive relief,
4-5 damages, or both>. Except as provided by Subsection (d) of this
4-6 section, an employee who seeks relief under this Act must sue not
4-7 later than the 90th day after the day the alleged violation
4-8 occurred or was discovered by the employee through the use of
4-9 reasonable diligence.
4-10 (b)(1) A public employee who sues under this section has the
4-11 burden of proof, but it is a rebuttable presumption that the
4-12 employee was suspended or terminated for reporting a violation of
4-13 law if the employee was suspended or terminated not later than the
4-14 90th day after making a report in good faith.
4-15 (2) It is an affirmative defense to a suit under this Act
4-16 that the employing state or local governmental body would have
4-17 taken the action against the employee that forms the basis of the
4-18 suit based solely on information, observation, or evidence that is
4-19 not related to the fact that the employee made a report of a
4-20 violation of law that is protected under Section 2 of this Act.
4-21 (c) A public employee who sues under this section may bring
4-22 suit in the district court of the county in which the cause of the
4-23 action arises <he resides or in the district court of Travis
4-24 County>.
4-25 (d) Before bringing an action under this section, an
5-1 employee of a state or local governmental body must utilize
5-2 <exhaust> any applicable grievance or appeal procedures adopted by
5-3 the employing <local> governmental body to resolve disputes
5-4 concerning the suspension or termination of an employee's
5-5 employment or an adverse personnel action <allegation of unlawful
5-6 discrimination>. Time used by the employee in following those
5-7 procedures may not be included in the determination of the running
5-8 of the limitations period established by Subsection (a) of this
5-9 section. The employee must invoke the applicable grievance or
5-10 appeal procedure not later than the 90th day after the date the
5-11 alleged violation occurred or was discovered by the employee
5-12 through the use of reasonable diligence.
5-13 (e) If a final decision is not rendered within 30 days of
5-14 initiation, the employee may:
5-15 (i) elect to continue the grievance or appeal
5-16 procedure and have 30 days after the exhaustion of remedies to file
5-17 suit; or
5-18 ii) elect to abort the grievance or appeal procedure
5-19 and file suit within the time remaining of the initial 90 day
5-20 period. <provisions of Subsection (d) do not apply.>
5-21 Sec. 4. Remedies <Damages; reinstatement> (a) A public employee
5-22 who successfully sues under this Act:
5-23 (1) may recover damages including:
5-24 (i) <(1)> actual damages;
5-25 <(2) exemplary damages;>
6-1 (ii) <(3)> costs of court<;> and
6-2 (iii) <(4)> reasonable attorney's fees;<.>
6-3 (2) may obtain appropriate injunctive relief,
6-4 including reinstatement to his former position or to an equivalent
6-5 position;
6-6 (c) Liability of a state governmental body under this Act is
6-7 limited to money damages in a maximum amount of $250,000.
6-8 (d) Liability of a local governmental body under this Act is
6-9 limited to money damages in a maximum amount of $100,000; except
6-10 liability of a municipality is limited to money damages in a
6-11 maximum amount of $250,000.
6-12 <(b) In addition to amounts recovered under Subsection (a) of this
6-13 section, a public employee whose employment is suspended or
6-14 terminated in violation of this Act is entitled to:>
6-15 <(1) reinstatement in his former position;>
6-16 <(2) compensation for wages lost during the period of
6-17 suspension or termination; and>
6-18 <(3) reinstatement of any fringe benefits or seniority
6-19 rights lost because of the suspension or termination.>
6-20 Sec. 4A. SUIT BROUGHT IN BAD FAITH OR WITHOUT REASONABLE BASIS.
6-21 In a suit filed under this Act, the court may order the public
6-22 employee, or his attorney, who brought suit to pay costs of court
6-23 and reasonable attorney's fees to the defendant governmental body
6-24 if the court determines that the suit:
6-25 (1) was brought in bad faith;
7-1 (2) was groundless;
7-2 (3) was for the purpose of harassment.
7-3 Sec. 5. Civil penalty. (a) A supervisor who suspends or
7-4 terminates the employment of a public employee for reporting a
7-5 violation of law under this Act is subject to a civil penalty not
7-6 to exceed $1,000. A penalty assessed under this subsection shall
7-7 be paid by the supervisor and may not be paid by the employing
7-8 governmental body.
7-9 (b) The attorney general or the appropriate prosecuting attorney
7-10 may sue to collect the penalty.
7-11 <(b)> Funds collected under this section shall be deposited
7-12 in the state treasury in the general revenue fund.
7-13 Sec. 5A. LIMIT ON INDIVIDUAL LIABILITY. The personal liability of
7-14 a supervisor or other individual under this Act is limited to the
7-15 civil penalty that may be assessed against a supervisor under
7-16 Section 5 of this Act.
7-17 Sec. 6. Notice. Each state or local governmental body shall
7-18 notify its employees of their rights under this Act by posting an
7-19 appropriately worded sign in a prominent place in the workplace.
7-20 The director of the state employees division of the office of the
7-21 attorney general shall prescribe the design and content of the
7-22 sign.
7-23 SECTION 2. The changes in law made by this Act apply only to a
7-24 suspension or termination of employment of a public employee or to
7-25 other adverse personnel action taken against a public employee on
8-1 or after the effective date of this Act. A suspension or
8-2 termination of employment of a public employee or other
8-3 discrimination against the employee, within the meaning of the law
8-4 changed by this Act, that is taken before the effective date of
8-5 this Act is governed by the law existing on the date the
8-6 suspension, termination, or other discrimination occurred, and the
8-7 former law is continued in effect for that purpose. No change in
8-8 law made by this Act should be read as a comment upon or an
8-9 interpretation of prior existing law.
8-10 SECTION 3. The importance of this legislation and the
8-11 crowded condition of the calendars in both houses create an
8-12 emergency and an imperative public necessity that the
8-13 constitutional rule requiring bills to be read on three several
8-14 days in each house be suspended, and this rule is hereby suspended,
8-15 and this Act take effect and be in force from and after its
8-16 passage, and it is so enacted.