S.B. No. 418
AN ACT
1-1 relating to the enforcement of certain employee claims for payment
1-2 of wages.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subdivision (2), Section 1, Article 5155, Revised
1-5 Statutes, is amended to read as follows:
1-6 (2) "Employer" means a person that employs one or more
1-7 employees and any other person that acts directly or indirectly in
1-8 the interests of an employer in relation to an employee. The term
1-9 does not include the federal government, this state, or a political
1-10 subdivision of the state.
1-11 SECTION 2. Subsections (e), (g), (h), and (j), Section 5,
1-12 Article 5155, Revised Statutes, are amended to read as follows:
1-13 (e) An employer who does not request a hearing in a timely
1-14 manner to contest a preliminary wage determination order shall pay
1-15 the amounts ordered to the commission not later than the 21st day
1-16 after the date of mailing of the commission notice. The payment
1-17 must equal the net amount of outstanding wages after any valid
1-18 deductions and must include an itemized list of the deductions.
1-19 Payment to the commission constitutes payment to the employee for
1-20 all purposes.
1-21 (g) If it is determined after hearing by the commission that
1-22 wages are due or a penalty may be assessed, the commission shall
1-23 enter a written order to that effect. The commission shall notify
1-24 the parties in writing of the decision, the amount of wages subject
2-1 to the order, the amount of any penalty assessed, and the parties'
2-2 right to judicial review of the commission's order. The commission
2-3 shall mail the notice to each party at that party's last known
2-4 address, as reflected by commission records. The order of the
2-5 commission shall become final 14 days after the mailing thereof,
2-6 unless, within the 14 days, the hearing is reopened by commission
2-7 order or a party to the appeal files a written motion for
2-8 rehearing. A party may bring an action in a court of competent
2-9 jurisdiction to appeal the final order, if the party has exhausted
2-10 the party's administrative remedies under this article. The action
2-11 must be filed not later than the 30th <60th> day after the date the
2-12 final order is mailed. In the action, the commission and any other
2-13 party to the proceeding before the commission shall be made
2-14 defendants. The action shall be brought in the county of the
2-15 claimant's residence, provided that if the claimant is a
2-16 nonresident of the State of Texas the action shall be brought in
2-17 the county in Texas in which the employer has his principal place
2-18 of business. An appeal under this section is governed by the trial
2-19 de novo with substantial evidence standard of review as applied to
2-20 an appeal from a final decision under the Texas Unemployment
2-21 Compensation Act (Article 5221b-1 et seq., Vernon's Texas Civil
2-22 Statutes).
2-23 (h) Not later than the 30th <60th> day after the date the
2-24 commission's order is final, the party required to pay wages or
2-25 assessed a penalty shall either remit the amount in question to the
2-26 commission or, if the party files a petition for judicial review in
2-27 a court of competent jurisdiction contesting the final order,
3-1 forward all amounts assessed to the commission for deposit in
3-2 escrow in an interest-bearing account. Unless the person files an
3-3 affidavit of inability to pay with the clerk of the court within
3-4 the specified period, failure to forward the amounts within the
3-5 specified period constitutes a waiver of the right to judicial
3-6 review.
3-7 (j) The commission <attorney general> may bring an action in
3-8 a Travis County district court in the name of the state and the
3-9 attorney general to enforce a final order from which an appeal has
3-10 not been taken as provided by this article or may serve a notice of
3-11 assessment on the defaulting party stating the amount due. A
3-12 notice of assessment served under this subsection is prima facie
3-13 evidence of the contents of the notice. However, the defaulting
3-14 party may show the incorrectness of the notice of assessment. The
3-15 notice shall be served in the manner provided by law for service of
3-16 process on a defendant in a civil action in district court. A
3-17 person who is aggrieved by the determination of the commission as
3-18 stated in the notice of assessment may seek judicial review of the
3-19 assessment by filing a petition for judicial review in a Travis
3-20 County district court not later than the 30th day after the date on
3-21 which the notice of the assessment is served. A copy of the
3-22 petition shall be served on a member of the commission or on a
3-23 designee of the commission for service of process in the manner
3-24 prescribed by law for service of process on a defendant in a civil
3-25 action in district court. If the party on whom a notice of
3-26 assessment is served does not seek judicial review as provided by
3-27 this subsection, the assessment is final for all purposes. An
4-1 assessment that is not contested or that is upheld after judicial
4-2 review shall be treated as if it were the final judgment of a
4-3 district court and shall be recorded, enforced, and renewed in the
4-4 same manner. Unless the adverse party prevails in the civil action
4-5 or the notice of assessment is reversed by a reviewing court, the
4-6 adverse party shall pay all costs of either action, including <In
4-7 the action the attorney general also may seek, and the court may
4-8 order, recovery of> attorney's fees, <including> investigation
4-9 costs, service costs, court costs, and other applicable costs <of
4-10 court>.
4-11 SECTION 3. Article 5155, Revised Statutes, is amended by
4-12 adding Sections 5B and 5C to read as follows:
4-13 Sec. 5B. RECIPROCAL COLLECTION ARRANGEMENTS. The commission
4-14 may enter into reciprocal arrangements with appropriate authorized
4-15 agencies of the United States, other states of the United States,
4-16 Puerto Rico, the District of Columbia, or the Virgin Islands for
4-17 the collection of wage claims that have become final under the laws
4-18 of the jurisdiction in which they were filed.
4-19 Sec. 5C. NOTICE OF DELINQUENCY; LEVY. (a) If, under a
4-20 final order, a party is determined to be delinquent in the payment
4-21 of wages, penalties, interest, or other amounts due under this
4-22 article, the commission may notify personally or by registered mail
4-23 any person who:
4-24 (1) possesses or controls any asset of the delinquent
4-25 party, including a credit, bank, or savings account, deposit, or
4-26 other intangible or personal property; or
4-27 (2) owes a debt to the delinquent party.
5-1 (b) A notice under this section to a state officer,
5-2 department, or agency must be provided before the officer,
5-3 department, or agency presents to the comptroller the claim of the
5-4 delinquent party.
5-5 (c) A notice under this section may be given at any time
5-6 after the wages, penalties, interest, or other amounts due under
5-7 this article become delinquent. The notice must state the amount
5-8 of wages, penalties, interest, or other amounts due and owing and
5-9 any additional amount that will accrue by operation of law in a
5-10 period not to exceed 30 days and, in the case of a credit, bank, or
5-11 savings account or deposit, is effective only up to that amount.
5-12 (d) On receipt of a notice under this section, the person
5-13 receiving the notice:
5-14 (1) shall advise the commission not later than the
5-15 20th day after the date on which the notice is received of each
5-16 asset belonging to the delinquent party that is possessed or
5-17 controlled by the person receiving the notice and of each debt owed
5-18 by the person receiving the notice to the delinquent party; and
5-19 (2) unless the commission consents to an earlier
5-20 disposition, may not transfer or dispose of the asset or debt
5-21 possessed, controlled, or owed by the person on the date the person
5-22 received the notice within the 60-day period beginning on the date
5-23 of receipt of the notice.
5-24 (e) A notice under this section that attempts to prohibit
5-25 the transfer or disposition of an asset possessed or controlled by
5-26 a bank is not effective unless it is delivered or mailed to the
5-27 principal office of the bank or the office of the bank at which the
6-1 deposit is carried or the credit or property is held.
6-2 (f) A person who receives a notice under this section and
6-3 who violates Subdivision (2) of Subsection (d) of this section is
6-4 liable to the commission for the amount of the indebtedness of the
6-5 delinquent party with respect to whose obligation the notice was
6-6 given, to the extent of the value of the affected asset or debt.
6-7 (g) At any time during the last 45 days of the 60-day period
6-8 provided by Subdivision (2) of Subsection (d) of this section, the
6-9 commission may levy on the asset or debt by delivery of a notice of
6-10 levy. On receipt of the levy notice, the person possessing the
6-11 asset or debt shall transfer the asset to the commission or pay to
6-12 the commission the amount owed to the delinquent party.
6-13 (h) A notice delivered under this section is effective at
6-14 the time of delivery against all property, rights to property,
6-15 credits, or debts involving the delinquent party that are not on
6-16 the date of the notice subject to a preexisting lien, attachment,
6-17 garnishment, or execution issued through a judicial process.
6-18 (i) A person acting in accordance with the terms of a notice
6-19 issued by the commission under this section is discharged from any
6-20 obligation or liability to the delinquent party with respect to the
6-21 property or rights to property, credits, or debts of the party
6-22 affected by compliance with the notice.
6-23 SECTION 4. Section 7, Article 5155, Revised Statutes, is
6-24 amended to read as follows:
6-25 Sec. 7. POWERS AND DUTIES OF COMMISSION; RULES; SUBPOENAS
6-26 <ADMINISTRATION OF OATHS>. (a) The commission shall administer
6-27 this article and shall <may> adopt rules as necessary to implement
7-1 this article.
7-2 (b) The commission may require reports, conduct
7-3 investigations, and take other action as it considers <administer
7-4 oaths as> necessary to implement this article.
7-5 (c) In the discharge of the duties imposed by this article,
7-6 any duly authorized representative or member of the commission may
7-7 administer oaths and affirmations, take depositions, certify to
7-8 official acts, and issue subpoenas to compel the attendance of
7-9 witnesses and the production of books, papers, correspondence,
7-10 memoranda, and other records considered necessary as evidence in
7-11 the administration of this article. Notwithstanding Chapter 152 or
7-12 154, Local Government Code, or any other law of this state, the
7-13 fees of sheriffs and constables for serving a subpoena under this
7-14 subsection shall be paid by the commission out of its
7-15 administrative funds, and the comptroller shall issue warrants for
7-16 those fees as directed by the commission.
7-17 (d) In the case of contumacy or other refusal to obey a
7-18 subpoena issued by a member of the commission or any authorized
7-19 representative of the commission to any person, any county or
7-20 district court of this state within the jurisdiction of which the
7-21 inquiry is carried on or within the jurisdiction of which the
7-22 person guilty of contumacy or refusal to obey is found, resides, or
7-23 transacts business shall have jurisdiction on application by the
7-24 commission or its representative to issue to the person an order
7-25 requiring the person to appear before a commissioner, the
7-26 commission, or its authorized representative to produce evidence if
7-27 so ordered or to give testimony regarding the matter under
8-1 investigation or in question. Failure to obey the court order may
8-2 be punished by the court as contempt. A person who, without just
8-3 cause, fails or refuses to attend and testify, to answer any lawful
8-4 inquiry, or to produce books, papers, correspondence, memoranda, or
8-5 other records in obedience to a subpoena of the commission, commits
8-6 an offense. An offense under this subsection is punishable by a
8-7 fine of not less than $200, by confinement for not more than 60
8-8 days, or by both fine and confinement. Each day of violation
8-9 constitutes a separate offense.
8-10 SECTION 5. This Act takes effect September 1, 1993, and
8-11 applies only to a wage claim filed with the Texas Employment
8-12 Commission on or after that date. A wage claim filed before that
8-13 date is governed by the law in effect on the date that the claim
8-14 was filed, and the former law is continued in effect for that
8-15 purpose.
8-16 SECTION 6. The importance of this legislation and the
8-17 crowded condition of the calendars in both houses create an
8-18 emergency and an imperative public necessity that the
8-19 constitutional rule requiring bills to be read on three several
8-20 days in each house be suspended, and this rule is hereby suspended.