1-1 By: Harris of Tarrant S.B. No. 418
1-2 (In the Senate - Filed February 19, 1993; February 22, 1993,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 March 9, 1993, reported favorably, as amended, by the following
1-5 vote: Yeas 5, Nays 0; March 9, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Henderson x
1-9 Harris of Tarrant x
1-10 Brown x
1-11 Harris of Dallas x
1-12 Luna x
1-13 Parker x
1-14 West x
1-15 COMMITTEE AMENDMENT NO. 1 By: Harris of Tarrant
1-16 Amend S.B. No. 418 as follows:
1-17 (1) Strike Section 5B of Section 3 from the bill.
1-18 (2) Amend Section 5D(h), Article 5155, Revised Statutes, on
1-19 page 3, line 69, by adding "lien," after the word
1-20 "preexisting".
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to the enforcement of certain employee claims for payment
1-24 of wages.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Subdivision (2), Section 1, Article 5155, Revised
1-27 Statutes, is amended to read as follows:
1-28 (2) "Employer" means a person that employs one or more
1-29 employees and any other person that acts directly or indirectly in
1-30 the interests of an employer in relation to an employee. The term
1-31 does not include the federal government, this state, or a political
1-32 subdivision of the state.
1-33 SECTION 2. Subsections (e), (g), (h), and (j), Section 5,
1-34 Article 5155, Revised Statutes, are amended to read as follows:
1-35 (e) An employer who does not request a hearing in a timely
1-36 manner to contest a preliminary wage determination order shall pay
1-37 the amounts ordered to the commission not later than the 21st day
1-38 after the date of mailing of the commission notice. The payment
1-39 must equal the net amount of outstanding wages after any valid
1-40 deductions and must include an itemized list of the deductions.
1-41 Payment to the commission constitutes payment to the employee for
1-42 all purposes.
1-43 (g) If it is determined after hearing by the commission that
1-44 wages are due or a penalty may be assessed, the commission shall
1-45 enter a written order to that effect. The commission shall notify
1-46 the parties in writing of the decision, the amount of wages subject
1-47 to the order, the amount of any penalty assessed, and the parties'
1-48 right to judicial review of the commission's order. The commission
1-49 shall mail the notice to each party at that party's last known
1-50 address, as reflected by commission records. The order of the
1-51 commission shall become final 14 days after the mailing thereof,
1-52 unless, within the 14 days, the hearing is reopened by commission
1-53 order or a party to the appeal files a written motion for
1-54 rehearing. A party may bring an action in a court of competent
1-55 jurisdiction to appeal the final order, if the party has exhausted
1-56 the party's administrative remedies under this article. The action
1-57 must be filed not later than the 30th <60th> day after the date the
1-58 final order is mailed. In the action, the commission and any other
1-59 party to the proceeding before the commission shall be made
1-60 defendants. The action shall be brought in the county of the
1-61 claimant's residence, provided that if the claimant is a
1-62 nonresident of the State of Texas the action shall be brought in
1-63 the county in Texas in which the employer has his principal place
1-64 of business. An appeal under this section is governed by the trial
1-65 de novo with substantial evidence standard of review as applied to
1-66 an appeal from a final decision under the Texas Unemployment
1-67 Compensation Act (Article 5221b-1 et seq., Vernon's Texas Civil
1-68 Statutes).
2-1 (h) Not later than the 30th <60th> day after the date the
2-2 commission's order is final, the party required to pay wages or
2-3 assessed a penalty shall either remit the amount in question to the
2-4 commission or, if the party files a petition for judicial review in
2-5 a court of competent jurisdiction contesting the final order,
2-6 forward all amounts assessed to the commission for deposit in
2-7 escrow in an interest-bearing account. Unless the person files an
2-8 affidavit of inability to pay with the clerk of the court within
2-9 the specified period, failure to forward the amounts within the
2-10 specified period constitutes a waiver of the right to judicial
2-11 review.
2-12 (j) The commission <attorney general> may bring an action in
2-13 a Travis County district court in the name of the state and the
2-14 attorney general to enforce a final order from which an appeal has
2-15 not been taken as provided by this article or may serve a notice of
2-16 assessment on the defaulting party stating the amount due. A
2-17 notice of assessment served under this subsection is prima facie
2-18 evidence of the contents of the notice. However, the defaulting
2-19 party may show the incorrectness of the notice of assessment. The
2-20 notice shall be served in the manner provided by law for service of
2-21 process on a defendant in a civil action in district court. A
2-22 person who is aggrieved by the determination of the commission as
2-23 stated in the notice of assessment may seek judicial review of the
2-24 assessment by filing a petition for judicial review in a Travis
2-25 County district court not later than the 30th day after the date on
2-26 which the notice of the assessment is served. A copy of the
2-27 petition shall be served on a member of the commission or on a
2-28 designee of the commission for service of process in the manner
2-29 prescribed by law for service of process on a defendant in a civil
2-30 action in district court. If the party on whom a notice of
2-31 assessment is served does not seek judicial review as provided by
2-32 this subsection, the assessment is final for all purposes. An
2-33 assessment that is not contested or that is upheld after judicial
2-34 review shall be treated as if it were the final judgment of a
2-35 district court and shall be recorded, enforced, and renewed in the
2-36 same manner. Unless the adverse party prevails in the civil action
2-37 or the notice of assessment is reversed by a reviewing court, the
2-38 adverse party shall pay all costs of either action, including <In
2-39 the action the attorney general also may seek, and the court may
2-40 order, recovery of> attorney's fees, <including> investigation
2-41 costs, service costs, court costs, and other applicable costs <of
2-42 court>.
2-43 SECTION 3. Article 5155, Revised Statutes, is amended by
2-44 adding Sections 5B, 5C, and 5D to read as follows:
2-45 Sec. 5B. SUIT FOR RETALIATION. (a) An employee has a cause
2-46 of action against an employer who suspends or terminates the
2-47 employment of the employee or otherwise disciplines or
2-48 discriminates against the employee for filing a claim for wages
2-49 under this article in good faith.
2-50 (b) The employee may recover:
2-51 (1) the greater of $1,000 or the amount of actual
2-52 damages, including:
2-53 (A) damages for mental anguish even if an injury
2-54 other than mental anguish is not shown; and
2-55 (B) if the employee's employment was suspended
2-56 or terminated, damages for lost wages;
2-57 (2) exemplary damages;
2-58 (3) court costs; and
2-59 (4) reasonable attorney's fees.
2-60 (c) In addition to the amounts recovered under Subsection
2-61 (b) of this section, an employee whose employment is suspended or
2-62 terminated is entitled to reinstatement in the employee's former
2-63 position.
2-64 (d) The employee must bring suit not later than the 90th day
2-65 after the date on which the employee's employment was suspended or
2-66 terminated.
2-67 (e) The employee has the burden of proof, except that there
2-68 is a rebuttable presumption that the employee's employment was
2-69 suspended or terminated for filing a claim for wages if the
2-70 employee's employment is suspended or terminated not later than the
3-1 60th day after the date on which the employee filed the wage claim
3-2 with the commission in good faith.
3-3 (f) A suit under this section may be brought in the district
3-4 court of the county in which:
3-5 (1) the employee resides;
3-6 (2) the employee was employed by the employer; or
3-7 (3) the employer conducts business.
3-8 Sec. 5C. RECIPROCAL COLLECTION ARRANGEMENTS. The commission
3-9 may enter into reciprocal arrangements with appropriate authorized
3-10 agencies of the United States, other states of the United States,
3-11 Puerto Rico, the District of Columbia, or the Virgin Islands for
3-12 the collection of wage claims that have become final under the laws
3-13 of the jurisdiction in which they were filed.
3-14 Sec. 5D. NOTICE OF DELINQUENCY; LEVY. (a) If, under a
3-15 final order, a party is determined to be delinquent in the payment
3-16 of wages, penalties, interest, or other amounts due under this
3-17 article, the commission may notify personally or by registered mail
3-18 any person who:
3-19 (1) possesses or controls any asset of the delinquent
3-20 party, including a credit, bank, or savings account, deposit, or
3-21 other intangible or personal property; or
3-22 (2) owes a debt to the delinquent party.
3-23 (b) A notice under this section to a state officer,
3-24 department, or agency must be provided before the officer,
3-25 department, or agency presents to the comptroller the claim of the
3-26 delinquent party.
3-27 (c) A notice under this section may be given at any time
3-28 after the wages, penalties, interest, or other amounts due under
3-29 this article become delinquent. The notice must state the amount
3-30 of wages, penalties, interest, or other amounts due and owing and
3-31 any additional amount that will accrue by operation of law in a
3-32 period not to exceed 30 days and, in the case of a credit, bank, or
3-33 savings account or deposit, is effective only up to that amount.
3-34 (d) On receipt of a notice under this section, the person
3-35 receiving the notice:
3-36 (1) shall advise the commission not later than the
3-37 20th day after the date on which the notice is received of each
3-38 asset belonging to the delinquent party that is possessed or
3-39 controlled by the person receiving the notice and of each debt owed
3-40 by the person receiving the notice to the delinquent party; and
3-41 (2) unless the commission consents to an earlier
3-42 disposition, may not transfer or dispose of the asset or debt
3-43 possessed, controlled, or owed by the person on the date the person
3-44 received the notice within the 60-day period beginning on the date
3-45 of receipt of the notice.
3-46 (e) A notice under this section that attempts to prohibit
3-47 the transfer or disposition of an asset possessed or controlled by
3-48 a bank is not effective unless it is delivered or mailed to the
3-49 principal office of the bank or the office of the bank at which the
3-50 deposit is carried or the credit or property is held.
3-51 (f) A person who receives a notice under this section and
3-52 who violates Subdivision (2) of Subsection (d) of this section is
3-53 liable to the commission for the amount of the indebtedness of the
3-54 delinquent party with respect to whose obligation the notice was
3-55 given, to the extent of the value of the affected asset or debt.
3-56 (g) At any time during the last 45 days of the 60-day period
3-57 provided by Subdivision (2) of Subsection (d) of this section, the
3-58 commission may levy on the asset or debt by delivery of a notice of
3-59 levy. On receipt of the levy notice, the person possessing the
3-60 asset or debt shall transfer the asset to the commission or pay to
3-61 the commission the amount owed to the delinquent party.
3-62 (h) A notice delivered under this section is effective at
3-63 the time of delivery against all property, rights to property,
3-64 credits, or debts involving the delinquent party that are not on
3-65 the date of the notice subject to a preexisting attachment,
3-66 garnishment, or execution issued through a judicial process.
3-67 (i) A person acting in accordance with the terms of a notice
3-68 issued by the commission under this section is discharged from any
3-69 obligation or liability to the delinquent party with respect to the
3-70 property or rights to property, credits, or debts of the party
4-1 affected by compliance with the notice.
4-2 SECTION 4. Section 7, Article 5155, Revised Statutes, is
4-3 amended to read as follows:
4-4 Sec. 7. POWERS AND DUTIES OF COMMISSION; RULES; SUBPOENAS
4-5 <ADMINISTRATION OF OATHS>. (a) The commission shall administer
4-6 this article and shall <may> adopt rules as necessary to implement
4-7 this article.
4-8 (b) The commission may require reports, conduct
4-9 investigations, and take other action as it considers <administer
4-10 oaths as> necessary to implement this article.
4-11 (c) In the discharge of the duties imposed by this article,
4-12 any duly authorized representative or member of the commission may
4-13 administer oaths and affirmations, take depositions, certify to
4-14 official acts, and issue subpoenas to compel the attendance of
4-15 witnesses and the production of books, papers, correspondence,
4-16 memoranda, and other records considered necessary as evidence in
4-17 the administration of this article. Notwithstanding Chapter 152 or
4-18 154, Local Government Code, or any other law of this state, the
4-19 fees of sheriffs and constables for serving a subpoena under this
4-20 subsection shall be paid by the commission out of its
4-21 administrative funds, and the comptroller shall issue warrants for
4-22 those fees as directed by the commission.
4-23 (d) In the case of contumacy or other refusal to obey a
4-24 subpoena issued by a member of the commission or any authorized
4-25 representative of the commission to any person, any county or
4-26 district court of this state within the jurisdiction of which the
4-27 inquiry is carried on or within the jurisdiction of which the
4-28 person guilty of contumacy or refusal to obey is found, resides, or
4-29 transacts business shall have jurisdiction on application by the
4-30 commission or its representative to issue to the person an order
4-31 requiring the person to appear before a commissioner, the
4-32 commission, or its authorized representative to produce evidence if
4-33 so ordered or to give testimony regarding the matter under
4-34 investigation or in question. Failure to obey the court order may
4-35 be punished by the court as contempt. A person who, without just
4-36 cause, fails or refuses to attend and testify, to answer any lawful
4-37 inquiry, or to produce books, papers, correspondence, memoranda, or
4-38 other records in obedience to a subpoena of the commission, commits
4-39 an offense. An offense under this subsection is punishable by a
4-40 fine of not less than $200, by confinement for not more than 60
4-41 days, or by both fine and confinement. Each day of violation
4-42 constitutes a separate offense.
4-43 SECTION 5. This Act takes effect September 1, 1993, and
4-44 applies only to a wage claim filed with the Texas Employment
4-45 Commission on or after that date. A wage claim filed before that
4-46 date is governed by the law in effect on the date that the claim
4-47 was filed, and the former law is continued in effect for that
4-48 purpose.
4-49 SECTION 6. The importance of this legislation and the
4-50 crowded condition of the calendars in both houses create an
4-51 emergency and an imperative public necessity that the
4-52 constitutional rule requiring bills to be read on three several
4-53 days in each house be suspended, and this rule is hereby suspended.
4-54 * * * * *
4-55 Austin,
4-56 Texas
4-57 March 9, 1993
4-58 Hon. Bob Bullock
4-59 President of the Senate
4-60 Sir:
4-61 We, your Committee on Jurisprudence to which was referred S.B. No.
4-62 418, have had the same under consideration, and I am instructed to
4-63 report it back to the Senate with the recommendation that it do
4-64 pass, as amended, and be printed.
4-65 Henderson,
4-66 Chairman
4-67 * * * * *
4-68 WITNESSES
4-69 FOR AGAINST ON
4-70 ___________________________________________________________________
5-1 Name: William Grossenbacher x
5-2 Representing: Tx Employment Commission
5-3 City: Austin
5-4 -------------------------------------------------------------------
5-5 Name: C Ed Davis x
5-6 Representing: Tx Employment Commission
5-7 City: Austin
5-8 -------------------------------------------------------------------