74R11281 MJW-F
By Hirschi, Hunter of Nueces, Junell, H.B. No. 175
Ramsay, McCall
Substitute the following for H.B. No. 175:
By Hunter of Taylor C.S.H.B. No. 175
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:
2-24 (1) is a part of a state or local governmental entity
2-25 or of the federal government; and
2-26 (2) is authorized to:
2-27 (A) regulate under or enforce the law alleged to
3-1 be violated in the report; or
3-2 (B) investigate or prosecute a violation of
3-3 criminal law.
3-4 SECTION 3. Section 554.003, Government Code, is amended to
3-5 read as follows:
3-6 Sec. 554.003. RELIEF AVAILABLE TO PUBLIC EMPLOYEE. (a) A
3-7 public employee whose employment is suspended or terminated or who
3-8 is subjected to an adverse personnel action <discriminated against>
3-9 in violation of Section 554.002 is entitled to sue for:
3-10 (1) injunctive relief;
3-11 (2) actual damages;
3-12 (3) <exemplary damages;>
3-13 <(4)> court costs; and
3-14 (4) <(5)> reasonable attorney fees.
3-15 (b) In addition to relief under Subsection (a), a public
3-16 employee whose employment is suspended or terminated in violation
3-17 of this chapter is entitled to:
3-18 (1) reinstatement to the employee's former position or
3-19 an equivalent position;
3-20 (2) compensation for wages lost during the period of
3-21 suspension or termination; and
3-22 (3) reinstatement of fringe benefits and seniority
3-23 rights lost because of the suspension or termination.
3-24 (c) In a suit under this chapter against an employing state
3-25 or local governmental entity, a public employee may not recover
3-26 compensatory damages for future pecuniary losses, emotional pain,
3-27 suffering, inconvenience, mental anguish, loss of enjoyment of
4-1 life, and other nonpecuniary losses in an amount that exceeds:
4-2 (1) $50,000, if the employing state or local
4-3 governmental entity has fewer than 101 employees in each of 20 or
4-4 more calendar weeks in the calendar year in which the suit is filed
4-5 or in the preceding year;
4-6 (2) $100,000, if the employing state or local
4-7 governmental entity has more than 100 and fewer than 201 employees
4-8 in each of 20 or more calendar weeks in the calendar year in which
4-9 the suit is filed or in the preceding year;
4-10 (3) $200,000, if the employing state or local
4-11 governmental entity has more than 200 and fewer than 501 employees
4-12 in each of 20 or more calendar weeks in the calendar year in which
4-13 the suit is filed or in the preceding year; and
4-14 (4) $250,000, if the employing state or local
4-15 governmental entity has more than 500 employees in each of 20 or
4-16 more calendar weeks in the calendar year in which the suit is filed
4-17 or in the preceding year.
4-18 (d) If more than one subdivision of Subsection (c) applies
4-19 to an employing state or local governmental entity, the amount of
4-20 monetary damages that may be recovered from the entity in a suit
4-21 brought under this chapter is governed by the applicable provision
4-22 that provides the highest damage award.
4-23 SECTION 4. Chapter 554, Government Code, is amended by
4-24 adding Section 554.0035 to read as follows:
4-25 Sec. 554.0035. WAIVER OF IMMUNITY. A public employee who
4-26 alleges a violation of this chapter may sue the employing state or
4-27 local governmental entity for the relief provided by this chapter.
5-1 Sovereign immunity is waived and abolished to the extent of
5-2 liability for the relief allowed under this chapter for a violation
5-3 of this chapter.
5-4 SECTION 5. Section 554.004, Government Code, is amended to
5-5 read as follows:
5-6 Sec. 554.004. BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
5-7 DEFENSE. (a) A public employee who sues under this chapter has
5-8 the burden of proof, except that if the suspension or termination
5-9 of, or adverse personnel action against, a public employee occurs
5-10 not later than the 90th day after the date on which the employee
5-11 reports a violation of law, the suspension, <or> termination, or
5-12 adverse personnel action is presumed, subject to rebuttal, to be
5-13 because the employee made the report.
5-14 (b) It is an affirmative defense to a suit under this
5-15 chapter that the employing state or local governmental entity would
5-16 have taken the action against the employee that forms the basis of
5-17 the suit based solely on information, observation, or evidence that
5-18 is not related to the fact that the employee made a report
5-19 protected under this chapter of a violation of law.
5-20 SECTION 6. Section 554.006, Government Code, is amended to
5-21 read as follows:
5-22 Sec. 554.006. USE <EXHAUSTION> OF GRIEVANCE OR APPEAL
5-23 PROCEDURES. (a) A public <An> employee <of a local government>
5-24 must initiate action under the <exhaust that government's>
5-25 grievance or appeal procedures of the employing state or local
5-26 governmental entity relating to suspension or termination of
5-27 employment or adverse personnel action <unlawful discrimination>
6-1 before suing under this chapter.
6-2 (b) The employee must invoke the applicable grievance or
6-3 appeal procedures not later than the 90th day after the date on
6-4 which the alleged violation of this chapter:
6-5 (1) occurred; or
6-6 (2) was discovered by the employee through reasonable
6-7 diligence.
6-8 (c) Time used by the employee in acting under <exhausting>
6-9 the grievance or appeal procedures is excluded, except as provided
6-10 by Subsection (d), from the period established by Section 554.005.
6-11 (d) If a final decision is not rendered before the 61st day
6-12 after the date procedures are initiated under Subsection (a), the
6-13 employee may elect to:
6-14 (1) exhaust the applicable procedures under Subsection
6-15 (a), in which event the employee must sue not later than the 30th
6-16 day after the date those procedures are exhausted to obtain relief
6-17 under this chapter; or
6-18 (2) terminate procedures under Subsection (a), in
6-19 which event the employee must sue within the time remaining under
6-20 Section 554.005 to obtain relief under this chapter <This section
6-21 does not apply if a final decision is not rendered before the 31st
6-22 day after the date on which the employee initiated the grievance or
6-23 appeal>.
6-24 SECTION 7. Section 554.007, Government Code, is amended to
6-25 read as follows:
6-26 Sec. 554.007. WHERE SUIT BROUGHT. (a) A public employee of
6-27 a state governmental entity may sue under this chapter in a
7-1 district court of the county in which the cause of action arises
7-2 <employee resides> or in a district court of Travis County.
7-3 (b) A public employee of a local governmental entity may sue
7-4 under this chapter in a district court of the county in which the
7-5 cause of action arises or in a district court of any county in the
7-6 same geographic area that has established with the county in which
7-7 the cause of action arises a council of governments or other
7-8 regional commission under Chapter 391, Local Government Code.
7-9 SECTION 8. Section 554.008, Government Code, is amended by
7-10 amending Subsection (a) and by adding Subsections (d) and (e) to
7-11 read as follows:
7-12 (a) A supervisor who in violation of this chapter suspends
7-13 or terminates the employment of a public employee or takes an
7-14 adverse personnel action against the employee <in violation of this
7-15 chapter> is liable for a civil penalty not to exceed $5,000
7-16 <$1,000>.
7-17 (d) A civil penalty assessed under this section shall be
7-18 paid by the supervisor and may not be paid by the employing
7-19 governmental entity.
7-20 (e) The personal liability of a supervisor or other
7-21 individual under this chapter is limited to the civil penalty that
7-22 may be assessed under this section.
7-23 SECTION 9. Section 554.009(a), Government Code, is amended
7-24 to read as follows:
7-25 (a) A state <agency> or local governmental entity
7-26 <government> shall inform its employees of their rights under this
7-27 chapter by posting a sign in a prominent location in the workplace.
8-1 SECTION 10. Chapter 554, Government Code, is amended by
8-2 adding Section 554.010 to read as follows:
8-3 Sec. 554.010. AUDIT OF STATE GOVERNMENTAL ENTITY AFTER SUIT.
8-4 (a) At the conclusion of a suit that is brought under this chapter
8-5 against a state governmental entity subject to audit under Section
8-6 321.013 and in which the entity is required to pay $10,000 or more
8-7 under the terms of a settlement agreement or final judgment, the
8-8 attorney general shall provide to each member of the legislative
8-9 audit committee a brief memorandum describing the facts and
8-10 disposition of the suit.
8-11 (b) Not later than the 90th day after the date on which the
8-12 last member of the legislative audit committee receives the
8-13 memorandum required by Subsection (a), the committee may direct the
8-14 state auditor to audit or investigate the state governmental
8-15 entity.
8-16 SECTION 11. The changes in law made by this Act apply only
8-17 to a suspension or termination of employment of a public employee
8-18 or to other adverse personnel action taken against a public
8-19 employee on or after the effective date of this Act. A suspension
8-20 or termination of employment of a public employee or other adverse
8-21 personnel action against the employee, within the meaning of the
8-22 law changed by this Act, that is taken before the effective date of
8-23 this Act is governed by the law existing on the date the
8-24 suspension, termination, or other adverse personnel action
8-25 occurred, and the former law is continued in effect for that
8-26 purpose.
8-27 SECTION 12. The importance of this legislation and the
9-1 crowded condition of the calendars in both houses create an
9-2 emergency and an imperative public necessity that the
9-3 constitutional rule requiring bills to be read on three several
9-4 days in each house be suspended, and this rule is hereby suspended,
9-5 and that this Act take effect and be in force from and after its
9-6 passage, and it is so enacted.