By Hirschi, Junell, Ramsay H.B. No. 175
74R1960 MJW-F
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 more than $250,000 in monetary damages, including lost wages.
3-27 SECTION 4. Chapter 554, Government Code, is amended by
4-1 adding Section 554.0035 to read as follows:
4-2 Sec. 554.0035. WAIVER OF IMMUNITY. A public employee who
4-3 alleges a violation of this chapter may sue the employing state or
4-4 local governmental entity for the relief provided by this chapter.
4-5 Sovereign immunity is waived and abolished to the extent of
4-6 liability for the relief allowed under this chapter for a violation
4-7 of this chapter.
4-8 SECTION 5. Section 554.004, Government Code, is amended to
4-9 read as follows:
4-10 Sec. 554.004. BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
4-11 DEFENSE. (a) A public employee who sues under this chapter has
4-12 the burden of proof, except that if the suspension or termination
4-13 of, or adverse personnel action against, a public employee occurs
4-14 not later than the 90th day after the date on which the employee
4-15 reports a violation of law, the suspension, <or> termination, or
4-16 adverse personnel action is presumed, subject to rebuttal, to be
4-17 because the employee made the report.
4-18 (b) It is an affirmative defense to a suit under this
4-19 chapter that the employing state or local governmental entity would
4-20 have taken the action against the employee that forms the basis of
4-21 the suit based solely on information, observation, or evidence that
4-22 is not related to the fact that the employee made a report
4-23 protected under this chapter of a violation of law.
4-24 SECTION 6. Section 554.006, Government Code, is amended to
4-25 read as follows:
4-26 Sec. 554.006. USE <EXHAUSTION> OF GRIEVANCE OR APPEAL
4-27 PROCEDURES. (a) A public <An> employee <of a local government>
5-1 must initiate action under the <exhaust that government's>
5-2 grievance or appeal procedures of the employing state or local
5-3 governmental entity relating to suspension or termination of
5-4 employment or adverse personnel action <unlawful discrimination>
5-5 before suing under this chapter.
5-6 (b) The employee must invoke the applicable grievance or
5-7 appeal procedures not later than the 90th day after the date on
5-8 which the alleged violation of this chapter:
5-9 (1) occurred; or
5-10 (2) was discovered by the employee through reasonable
5-11 diligence.
5-12 (c) Time used by the employee in acting under <exhausting>
5-13 the grievance or appeal procedures is excluded, except as provided
5-14 by Subsection (d), from the period established by Section 554.005.
5-15 (d) If a final decision is not rendered before the 31st day
5-16 after the date procedures are initiated under Subsection (a), the
5-17 employee may elect to:
5-18 (1) exhaust the applicable procedures under Subsection
5-19 (a), in which event the employee must sue not later than the 30th
5-20 day after the date those procedures are exhausted to obtain relief
5-21 under this chapter; or
5-22 (2) terminate procedures under Subsection (a), in
5-23 which event the employee must sue within the time remaining under
5-24 Section 554.005 to obtain relief under this chapter <This section
5-25 does not apply if a final decision is not rendered before the 31st
5-26 day after the date on which the employee initiated the grievance or
5-27 appeal>.
6-1 SECTION 7. Section 554.007, Government Code, is amended to
6-2 read as follows:
6-3 Sec. 554.007. WHERE SUIT BROUGHT. A public employee may sue
6-4 under this chapter in a district court of the county in which the
6-5 cause of action arises <employee resides or in a district court of
6-6 Travis County>.
6-7 SECTION 8. Section 554.008, Government Code, is amended by
6-8 amending Subsection (a) and by adding Subsections (d) and (e) to
6-9 read as follows:
6-10 (a) A supervisor who in violation of this chapter suspends
6-11 or terminates the employment of a public employee or takes an
6-12 adverse personnel action against the employee <in violation of this
6-13 chapter> is liable for a civil penalty not to exceed $5,000
6-14 <$1,000>.
6-15 (d) A civil penalty assessed under this section shall be
6-16 paid by the supervisor and may not be paid by the employing
6-17 governmental entity.
6-18 (e) The personal liability of a supervisor or other
6-19 individual under this chapter is limited to the civil penalty that
6-20 may be assessed under this section.
6-21 SECTION 9. Section 554.009(a), Government Code, is amended
6-22 to read as follows:
6-23 (a) A state <agency> or local governmental entity
6-24 <government> shall inform its employees of their rights under this
6-25 chapter by posting a sign in a prominent location in the workplace.
6-26 SECTION 10. The changes in law made by this Act apply only
6-27 to a suspension or termination of employment of a public employee
7-1 or to other adverse personnel action taken against a public
7-2 employee on or after the effective date of this Act. A suspension
7-3 or termination of employment of a public employee or other adverse
7-4 personnel action against the employee, within the meaning of the
7-5 law changed by this Act, that is taken before the effective date of
7-6 this Act is governed by the law existing on the date the
7-7 suspension, termination, or other adverse personnel action
7-8 occurred, and the former law is continued in effect for that
7-9 purpose.
7-10 SECTION 11. The importance of this legislation and the
7-11 crowded condition of the calendars in both houses create an
7-12 emergency and an imperative public necessity that the
7-13 constitutional rule requiring bills to be read on three several
7-14 days in each house be suspended, and this rule is hereby suspended,
7-15 and that this Act take effect and be in force from and after its
7-16 passage, and it is so enacted.