By Hirschi, Junell, Ramsay, H.B. No. 175
Hunter of Nueces, McCall
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the protection of a public employee who reports a
1-3 violation of law.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 554.001, Government Code, is amended to
1-6 read as follows:
1-7 Sec. 554.001. DEFINITIONS. In this chapter:
1-8 (1) "Law" means:
1-9 (A) a state or federal statute;
1-10 (B) an ordinance of a local governmental entity
1-11 <body>; or
1-12 (C) a rule adopted under a statute or ordinance.
1-13 (2) "Local governmental entity <government>" means a
1-14 political subdivision of the state, including a:
1-15 (A) <a> county;
1-16 (B) <a> municipality;
1-17 (C) <a> public school district; or
1-18 (D) <a> special-purpose district or authority.
1-19 (3) "Personnel action" means an action that affects a
1-20 public employee's compensation, promotion, demotion, transfer, work
1-21 assignment, or performance evaluation.
1-22 (4) <(3)> "Public employee" means an employee or
1-23 appointed officer <a person> other than an independent contractor
1-24 who is paid to perform<, for compensation, performs> services for a
2-1 state or local governmental entity <body under a written or oral
2-2 contract>.
2-3 (5) <(4)> "State governmental entity <agency>" means:
2-4 (A) a board, commission, department, office, or
2-5 other agency in the executive branch of state government, created
2-6 under the constitution or a statute of the state, including an
2-7 institution of higher education, as defined by Section 61.003,
2-8 Education Code;
2-9 (B) the legislature or a legislative agency; or
2-10 (C) the Texas Supreme Court, the Texas Court of
2-11 Criminal Appeals, a court of appeals, a state judicial agency, or
2-12 the State Bar of Texas.
2-13 SECTION 2. Section 554.002, Government Code, is amended to
2-14 read as follows:
2-15 Sec. 554.002. RETALIATION PROHIBITED FOR REPORTING VIOLATION
2-16 OF LAW. (a) A state <agency> or local governmental entity
2-17 <government> may not suspend or terminate the employment of, or
2-18 take other adverse personnel action <discriminate> against, a
2-19 public employee who in good faith reports a violation of law by the
2-20 employing governmental entity or another public employee to an
2-21 appropriate law enforcement authority.
2-22 (b) In this section, a report is made to an appropriate law
2-23 enforcement authority if the authority is a part of a state or
2-24 local governmental entity or of the federal government that the
2-25 employee in good faith believes is authorized to:
2-26 (1) regulate under or enforce the law alleged to be
2-27 violated in the report; or
3-1 (2) investigate or prosecute a violation of criminal
3-2 law.
3-3 SECTION 3. Section 554.003, Government Code, is amended to
3-4 read as follows:
3-5 Sec. 554.003. RELIEF AVAILABLE TO PUBLIC EMPLOYEE. (a) A
3-6 public employee whose employment is suspended or terminated or who
3-7 is subjected to an adverse personnel action <discriminated against>
3-8 in violation of Section 554.002 is entitled to sue for:
3-9 (1) injunctive relief;
3-10 (2) actual damages;
3-11 (3) <exemplary damages;>
3-12 <(4)> court costs; and
3-13 (4) <(5)> reasonable attorney fees.
3-14 (b) In addition to relief under Subsection (a), a public
3-15 employee whose employment is suspended or terminated in violation
3-16 of this chapter is entitled to:
3-17 (1) reinstatement to the employee's former position or
3-18 an equivalent position;
3-19 (2) compensation for wages lost during the period of
3-20 suspension or termination; and
3-21 (3) reinstatement of fringe benefits and seniority
3-22 rights lost because of the suspension or termination.
3-23 (c) In a suit under this chapter against an employing state
3-24 or local governmental entity, a public employee may not recover
3-25 compensatory damages for future pecuniary losses, emotional pain,
3-26 suffering, inconvenience, mental anguish, loss of enjoyment of
3-27 life, and other nonpecuniary losses in an amount that exceeds:
4-1 (1) $50,000, if the employing state or local
4-2 governmental entity has fewer than 101 employees in each of 20 or
4-3 more calendar weeks in the calendar year in which the suit is filed
4-4 or in the preceding year;
4-5 (2) $100,000, if the employing state or local
4-6 governmental entity has more than 100 and fewer than 201 employees
4-7 in each of 20 or more calendar weeks in the calendar year in which
4-8 the suit is filed or in the preceding year;
4-9 (3) $200,000, if the employing state or local
4-10 governmental entity has more than 200 and fewer than 501 employees
4-11 in each of 20 or more calendar weeks in the calendar year in which
4-12 the suit is filed or in the preceding year; and
4-13 (4) $250,000, if the employing state or local
4-14 governmental entity has more than 500 employees in each of 20 or
4-15 more calendar weeks in the calendar year in which the suit is filed
4-16 or in the preceding year.
4-17 (d) If more than one subdivision of Subsection (c) applies
4-18 to an employing state or local governmental entity, the amount of
4-19 monetary damages that may be recovered from the entity in a suit
4-20 brought under this chapter is governed by the applicable provision
4-21 that provides the highest damage award.
4-22 SECTION 4. Chapter 554, Government Code, is amended by
4-23 adding Section 554.0035 to read as follows:
4-24 Sec. 554.0035. WAIVER OF IMMUNITY. A public employee who
4-25 alleges a violation of this chapter may sue the employing state or
4-26 local governmental entity for the relief provided by this chapter.
4-27 Sovereign immunity is waived and abolished to the extent of
5-1 liability for the relief allowed under this chapter for a violation
5-2 of this chapter.
5-3 SECTION 5. Section 554.004, Government Code, is amended to
5-4 read as follows:
5-5 Sec. 554.004. BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
5-6 DEFENSE. (a) A public employee who sues under this chapter has
5-7 the burden of proof, except that if the suspension or termination
5-8 of, or adverse personnel action against, a public employee occurs
5-9 not later than the 90th day after the date on which the employee
5-10 reports a violation of law, the suspension, <or> termination, or
5-11 adverse personnel action is presumed, subject to rebuttal, to be
5-12 because the employee made the report.
5-13 (b) It is an affirmative defense to a suit under this
5-14 chapter that the employing state or local governmental entity would
5-15 have taken the action against the employee that forms the basis of
5-16 the suit based solely on information, observation, or evidence that
5-17 is not related to the fact that the employee made a report
5-18 protected under this chapter of a violation of law.
5-19 SECTION 6. Section 554.006, Government Code, is amended to
5-20 read as follows:
5-21 Sec. 554.006. USE <EXHAUSTION> OF GRIEVANCE OR APPEAL
5-22 PROCEDURES. (a) A public <An> employee <of a local government>
5-23 must initiate action under the <exhaust that government's>
5-24 grievance or appeal procedures of the employing state or local
5-25 governmental entity relating to suspension or termination of
5-26 employment or adverse personnel action <unlawful discrimination>
5-27 before suing under this chapter.
6-1 (b) The employee must invoke the applicable grievance or
6-2 appeal procedures not later than the 90th day after the date on
6-3 which the alleged violation of this chapter:
6-4 (1) occurred; or
6-5 (2) was discovered by the employee through reasonable
6-6 diligence.
6-7 (c) Time used by the employee in acting under <exhausting>
6-8 the grievance or appeal procedures is excluded, except as provided
6-9 by Subsection (d), from the period established by Section 554.005.
6-10 (d) If a final decision is not rendered before the 61st day
6-11 after the date procedures are initiated under Subsection (a), the
6-12 employee may elect to:
6-13 (1) exhaust the applicable procedures under Subsection
6-14 (a), in which event the employee must sue not later than the 30th
6-15 day after the date those procedures are exhausted to obtain relief
6-16 under this chapter; or
6-17 (2) terminate procedures under Subsection (a), in
6-18 which event the employee must sue within the time remaining under
6-19 Section 554.005 to obtain relief under this chapter <This section
6-20 does not apply if a final decision is not rendered before the 31st
6-21 day after the date on which the employee initiated the grievance or
6-22 appeal>.
6-23 SECTION 7. Section 554.007, Government Code, is amended to
6-24 read as follows:
6-25 Sec. 554.007. WHERE SUIT BROUGHT. (a) A public employee of
6-26 a state governmental entity may sue under this chapter in a
6-27 district court of the county in which the cause of action arises
7-1 <employee resides> or in a district court of Travis County.
7-2 (b) A public employee of a local governmental entity may sue
7-3 under this chapter in a district court of the county in which the
7-4 cause of action arises or in a district court of any county in the
7-5 same geographic area that has established with the county in which
7-6 the cause of action arises a council of governments or other
7-7 regional commission under Chapter 391, Local Government Code.
7-8 SECTION 8. Section 554.008, Government Code, is amended by
7-9 amending Subsection (a) and by adding Subsections (d) and (e) to
7-10 read as follows:
7-11 (a) A supervisor who in violation of this chapter suspends
7-12 or terminates the employment of a public employee or takes an
7-13 adverse personnel action against the employee <in violation of this
7-14 chapter> is liable for a civil penalty not to exceed $15,000
7-15 <$1,000>.
7-16 (d) A civil penalty assessed under this section shall be
7-17 paid by the supervisor and may not be paid by the employing
7-18 governmental entity.
7-19 (e) The personal liability of a supervisor or other
7-20 individual under this chapter is limited to the civil penalty that
7-21 may be assessed under this section.
7-22 SECTION 9. Section 554.009(a), Government Code, is amended
7-23 to read as follows:
7-24 (a) A state <agency> or local governmental entity
7-25 <government> shall inform its employees of their rights under this
7-26 chapter by posting a sign in a prominent location in the workplace.
7-27 SECTION 10. Chapter 554, Government Code, is amended by
8-1 adding Section 554.010 to read as follows:
8-2 Sec. 554.010. AUDIT OF STATE GOVERNMENTAL ENTITY AFTER SUIT.
8-3 (a) At the conclusion of a suit that is brought under this chapter
8-4 against a state governmental entity subject to audit under Section
8-5 321.013 and in which the entity is required to pay $10,000 or more
8-6 under the terms of a settlement agreement or final judgment, the
8-7 attorney general shall provide to the state auditor's office a
8-8 brief memorandum describing the facts and disposition of the suit.
8-9 (b) Not later than the 90th day after the date on which the
8-10 state auditor's office receives the memorandum required by
8-11 Subsection (a), the auditor may audit or investigate the state
8-12 governmental entity to determine any changes necessary to correct
8-13 the problems that gave rise to the whistleblower suit and shall
8-14 recommend such changes to the Legislative Audit Committee, the
8-15 Legislative Budget Board, and the governing board or chief
8-16 executive officer of the entity involved. In conducting the audit
8-17 or investigation, the auditor shall have access to all records
8-18 pertaining to the suit.
8-19 SECTION 11. The changes in law made by this Act apply only
8-20 to a suspension or termination of employment of a public employee
8-21 or to other adverse personnel action taken against a public
8-22 employee on or after the effective date of this Act. A suspension
8-23 or termination of employment of a public employee or other adverse
8-24 personnel action against the employee, within the meaning of the
8-25 law changed by this Act, that is taken before the effective date of
8-26 this Act is governed by the law existing on the date the
8-27 suspension, termination, or other adverse personnel action
9-1 occurred, and the former law is continued in effect for that
9-2 purpose.
9-3 SECTION 12. The importance of this legislation and the
9-4 crowded condition of the calendars in both houses create an
9-5 emergency and an imperative public necessity that the
9-6 constitutional rule requiring bills to be read on three several
9-7 days in each house be suspended, and this rule is hereby suspended,
9-8 and that this Act take effect and be in force from and after its
9-9 passage, and it is so enacted.