1-1 By: West, et al. S.B. No. 1408 1-2 (In the Senate - Filed April 22, 1993; April 26, 1993, read 1-3 first time and referred to Committee on State Affairs; May 6, 1993, 1-4 reported adversely, with favorable Committee Substitute by the 1-5 following vote: Yeas 9, Nays 0; May 6, 1993, sent to printer.) 1-6 COMMITTEE VOTE 1-7 Yea Nay PNV Absent 1-8 Harris of Dallas x 1-9 Rosson x 1-10 Carriker x 1-11 Henderson x 1-12 Leedom x 1-13 Lucio x 1-14 Luna x 1-15 Nelson x 1-16 Patterson x 1-17 Shelley x 1-18 Sibley x 1-19 West x 1-20 Whitmire x 1-21 COMMITTEE SUBSTITUTE FOR S.B. No. 1408 By: West 1-22 A BILL TO BE ENTITLED 1-23 AN ACT 1-24 relating to discrimination by certain accommodations and 1-25 associations; imposing civil penalties. 1-26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-27 SECTION 1. Title 6, Civil Practice and Remedies Code, is 1-28 amended by adding Chapter 136 to read as follows: 1-29 CHAPTER 136. DISCRIMINATION BY 1-30 PUBLIC ACCOMMODATION OR PUBLIC ASSOCIATION 1-31 Sec. 136.001. FINDINGS. The legislature finds that a 1-32 significant barrier to the advancement of minorities and women in 1-33 the business and professional life of this state exists because of 1-34 the discriminatory practices of certain accommodations and 1-35 associations that are not distinctly private and in which business 1-36 is frequently conducted; that while such accommodations and 1-37 associations may avowedly be formed for social or civic purposes, 1-38 the extent to which many of the activities in the accommodations 1-39 and associations have had a prejudicial impact on the business, 1-40 professional, and employment opportunities of minorities and women 1-41 cannot be ignored or minimized; that business most frequently 1-42 occurs in accommodations or associations having more than 250 1-43 members and receiving payment of more than $100,000; and that this 1-44 state has a compelling interest in eradicating discrimination based 1-45 on race, color, religion, creed, national origin, and sex to ensure 1-46 that all of its citizens have a fair and equal opportunity to 1-47 participate in the business and professional life of this state. 1-48 Sec. 136.002. DEFINITIONS. In this chapter: 1-49 (1) "Accommodation" or "association" means an entity 1-50 that provides goods, services, facilities, privileges, or 1-51 advantages to its customers, clients, patrons, or members or to the 1-52 guests of its customers, clients, patrons, or members. 1-53 (2) "Goods, services, facilities, privileges, or 1-54 advantages" means food or beverages; lodging; exhibitions; 1-55 entertainment; live, broadcast, or recorded meetings; meeting 1-56 rooms; reading rooms; social gatherings; or sports or exercise 1-57 equipment, areas, or facilities. 1-58 (3) "Public accommodation" or "public association" 1-59 means an accommodation or association that, within the calendar 1-60 year preceding the year in which a violation of Section 136.003 1-61 occurs: 1-62 (A) had more than 250 customers, clients, 1-63 patrons, or members; and 1-64 (B) received, directly or indirectly, dues or 1-65 other payments in excess of $100,000 for the provision of goods, 1-66 services, facilities, privileges, or advantages. 1-67 (4) "Private accommodation" or "private association" 1-68 means an accommodation or association that proves by a 2-1 preponderance of the evidence that the accommodation or 2-2 association: 2-3 (A) has written objective criteria for selecting 2-4 members that: 2-5 (i) are related to the purposes of the 2-6 accommodation or association; 2-7 (ii) are available to prospective, bona 2-8 fide applicants for membership; and 2-9 (iii) do not discriminate in purpose or 2-10 effect on the basis of race, color, religion, creed, national 2-11 origin, or sex of the applicant; 2-12 (B) limits the provision of goods, services, 2-13 facilities, privileges, or advantages to members and bona fide 2-14 guests of members; 2-15 (C) is controlled by its membership and operated 2-16 solely for the benefit and pleasure of its members; 2-17 (D) is organized under the nonprofit corporate 2-18 laws of the state; and 2-19 (E) directs its publicity exclusively and only 2-20 to its members for their information and guidance. 2-21 (5) "Distinctly private accommodation or association" 2-22 means an accommodation or association that is not described by 2-23 Subdivision (3) and that is: 2-24 (A) an accommodation or association: 2-25 (i) that is composed of members of only 2-26 one race, color, religion, creed, national origin, or sex, which 2-27 group has suffered from a historic disadvantage relating to the 2-28 classification on the basis of race, color, religion, creed, 2-29 national origin, or sex; 2-30 (ii) that is formed or continued to 2-31 compensate for the disadvantage; 2-32 (iii) whose classification on basis of 2-33 race, color, religion, creed, national origin, or sex is not based 2-34 on and does not perpetuate specific stereotypes about the 2-35 disadvantaged group; and 2-36 (iv) whose classification on the basis of 2-37 race, color, religion, creed, national origin, or sex is 2-38 substantially and directly related to helping its members 2-39 compensate for the historical disadvantage; 2-40 (B) a purely charitable accommodation or 2-41 association or an organization that has received an exemption under 2-42 Section 501(c)(3) of the Internal Revenue Code of 1986; or 2-43 (C) a lodge of a fraternal society, organized 2-44 for charitable or benevolent purposes, similar to those described 2-45 in Article 1399, Revised Statutes. 2-46 Sec. 136.003. DISCRIMINATION PROHIBITED. Except as provided 2-47 by Section 136.004, a public accommodation or public association 2-48 may not deny any person full and equal enjoyment of goods, 2-49 services, facilities, privileges, or advantages provided by the 2-50 accommodation or association because of the race, color, religion, 2-51 creed, national origin, or sex of the person. 2-52 Sec. 136.004. EXCEPTION. An accommodation or association 2-53 that discriminates against a person in a manner prohibited by 2-54 Section 136.003 does not violate that section if: 2-55 (1) it was formed, in whole or in part, for the 2-56 purpose of advocating a point of view and the discrimination is 2-57 necessary to the advocacy of the point of view; 2-58 (2) it is a religious accommodation or association and 2-59 the discrimination is necessary to the full and free exercise of 2-60 its religious beliefs, customs, or practices; or 2-61 (3) in discrimination based on sex, it is an 2-62 accommodation or association in which males or females are 2-63 partially or wholly unclothed and there is no alternative means of 2-64 protecting the privacy of the customers, clients, patrons, members, 2-65 or their guests. 2-66 Sec. 136.005. CIVIL ACTION. (a) Any person aggrieved by a 2-67 violation or threatened violation of Section 136.003 may bring a 2-68 civil action to enjoin the violation or threatened violation, to 2-69 recover damages arising from the violation or threatened violation, 2-70 or both. 3-1 (b) A district, county, or municipal attorney or the 3-2 attorney general may sue to enjoin a violation or threatened 3-3 violation of Section 136.003. 3-4 Sec. 136.006. STATUTORY DAMAGES. (a) A court shall 3-5 authorize the trier of fact in a civil action under this chapter to 3-6 award statutory damages to the plaintiff if the plaintiff: 3-7 (1) establishes a violation of Section 136.003; and 3-8 (2) does not prove actual damages in excess of 3-9 $10,000. 3-10 (b) The trier of fact may not award statutory damages under 3-11 this section in an amount greater than $10,000. 3-12 Sec. 136.007. CONTEMPT. A court may punish a person who 3-13 violates a temporary or permanent injunctive order issued by the 3-14 court under this chapter for contempt by a fine not less than 3-15 $1,000 and not more than $10,000, confinement in jail for a term of 3-16 not less than 10 days and not more than 30 days, or both. 3-17 Sec. 136.008. ATTORNEY FEES AND COSTS. A court may award a 3-18 plaintiff who prevails in an action under this chapter reasonable 3-19 attorney fees and costs. 3-20 SECTION 2. This Act takes effect September 1, 1993, and 3-21 applies only to conduct occurring on or after that date. 3-22 SECTION 3. If any provision of this Act or its application 3-23 to any person or circumstance is held invalid, the invalidity does 3-24 not affect other provisions or applications of this Act that can be 3-25 given effect without the invalid provision or application, and to 3-26 this end the provisions of the Act are declared to be severable. 3-27 SECTION 4. The importance of this legislation and the 3-28 crowded condition of the calendars in both houses create an 3-29 emergency and an imperative public necessity that the 3-30 constitutional rule requiring bills to be read on three several 3-31 days in each house be suspended, and this rule is hereby suspended. 3-32 * * * * * 3-33 Austin, 3-34 Texas 3-35 May 6, 1993 3-36 Hon. Bob Bullock 3-37 President of the Senate 3-38 Sir: 3-39 We, your Committee on State Affairs to which was referred S.B. No. 3-40 1408, have had the same under consideration, and I am instructed to 3-41 report it back to the Senate with the recommendation that it do not 3-42 pass, but that the Committee Substitute adopted in lieu thereof do 3-43 pass and be printed. 3-44 Harris of 3-45 Dallas, Chairman 3-46 * * * * * 3-47 WITNESSES 3-48 FOR AGAINST ON 3-49 ___________________________________________________________________ 3-50 Name: Neil Cogan x 3-51 Representing: AAUW 3-52 City: Dallas 3-53 ------------------------------------------------------------------- 3-54 Name: Dennis Garza x 3-55 Representing: LULAC 3-56 City: Austin 3-57 ------------------------------------------------------------------- 3-58 Name: Shannon Noble x 3-59 Representing: TX Womens Political Caucus 3-60 City: Austin 3-61 ------------------------------------------------------------------- 3-62 Name: Sheila Enid Cheaney x 3-63 Representing: ACLU of Texas 3-64 City: Austin 3-65 ------------------------------------------------------------------- 3-66 FOR AGAINST ON 3-67 ___________________________________________________________________ 3-68 Name: Gary Bledsoe x 3-69 Representing: Texas NACCP 3-70 City: Austin 4-1 -------------------------------------------------------------------