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
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    5-5  Name:  C Ed Davis                                              x
    5-6  Representing:  Tx Employment Commission
    5-7  City:  Austin
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