1-1 By: Hirschi, et al. (Senate Sponsor - Montford) H.B. No. 175
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 16, 1995, read first time and referred to Committee on State
1-4 Affairs; May 22, 1995, reported favorably by the following vote:
1-5 Yeas 11, Nays 0; May 22, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the protection of a public employee who reports a
1-9 violation of law.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 554.001, Government Code, is amended to
1-12 read as follows:
1-13 Sec. 554.001. DEFINITIONS. In this chapter:
1-14 (1) "Law" means:
1-15 (A) a state or federal statute;
1-16 (B) an ordinance of a local governmental entity
1-17 <body>; or
1-18 (C) a rule adopted under a statute or ordinance.
1-19 (2) "Local governmental entity <government>" means a
1-20 political subdivision of the state, including a:
1-21 (A) <a> county;
1-22 (B) <a> municipality;
1-23 (C) <a> public school district; or
1-24 (D) <a> special-purpose district or authority.
1-25 (3) "Personnel action" means an action that affects a
1-26 public employee's compensation, promotion, demotion, transfer, work
1-27 assignment, or performance evaluation.
1-28 (4) <(3)> "Public employee" means an employee or
1-29 appointed officer <a person> other than an independent contractor
1-30 who is paid to perform<, for compensation, performs> services for a
1-31 state or local governmental entity <body under a written or oral
1-32 contract>.
1-33 (5) <(4)> "State governmental entity <agency>" means:
1-34 (A) a board, commission, department, office, or
1-35 other agency in the executive branch of state government, created
1-36 under the constitution or a statute of the state, including an
1-37 institution of higher education, as defined by Section 61.003,
1-38 Education Code;
1-39 (B) the legislature or a legislative agency; or
1-40 (C) the Texas Supreme Court, the Texas Court of
1-41 Criminal Appeals, a court of appeals, a state judicial agency, or
1-42 the State Bar of Texas.
1-43 SECTION 2. Section 554.002, Government Code, is amended to
1-44 read as follows:
1-45 Sec. 554.002. RETALIATION PROHIBITED FOR REPORTING VIOLATION
1-46 OF LAW. (a) A state <agency> or local governmental entity
1-47 <government> may not suspend or terminate the employment of, or
1-48 take other adverse personnel action <discriminate> against, a
1-49 public employee who in good faith reports a violation of law by the
1-50 employing governmental entity or another public employee to an
1-51 appropriate law enforcement authority.
1-52 (b) In this section, a report is made to an appropriate law
1-53 enforcement authority if the authority is a part of a state or
1-54 local governmental entity or of the federal government that the
1-55 employee in good faith believes is authorized to:
1-56 (1) regulate under or enforce the law alleged to be
1-57 violated in the report; or
1-58 (2) investigate or prosecute a violation of criminal
1-59 law.
1-60 SECTION 3. Section 554.003, Government Code, is amended to
1-61 read as follows:
1-62 Sec. 554.003. RELIEF AVAILABLE TO PUBLIC EMPLOYEE. (a) A
1-63 public employee whose employment is suspended or terminated or who
1-64 is subjected to an adverse personnel action <discriminated against>
1-65 in violation of Section 554.002 is entitled to sue for:
1-66 (1) injunctive relief;
1-67 (2) actual damages;
1-68 (3) <exemplary damages;>
2-1 <(4)> court costs; and
2-2 (4) <(5)> reasonable attorney fees.
2-3 (b) In addition to relief under Subsection (a), a public
2-4 employee whose employment is suspended or terminated in violation
2-5 of this chapter is entitled to:
2-6 (1) reinstatement to the employee's former position or
2-7 an equivalent position;
2-8 (2) compensation for wages lost during the period of
2-9 suspension or termination; and
2-10 (3) reinstatement of fringe benefits and seniority
2-11 rights lost because of the suspension or termination.
2-12 (c) In a suit under this chapter against an employing state
2-13 or local governmental entity, a public employee may not recover
2-14 compensatory damages for future pecuniary losses, emotional pain,
2-15 suffering, inconvenience, mental anguish, loss of enjoyment of
2-16 life, and other nonpecuniary losses in an amount that exceeds:
2-17 (1) $50,000, if the employing state or local
2-18 governmental entity has fewer than 101 employees in each of 20 or
2-19 more calendar weeks in the calendar year in which the suit is filed
2-20 or in the preceding year;
2-21 (2) $100,000, if the employing state or local
2-22 governmental entity has more than 100 and fewer than 201 employees
2-23 in each of 20 or more calendar weeks in the calendar year in which
2-24 the suit is filed or in the preceding year;
2-25 (3) $200,000, if the employing state or local
2-26 governmental entity has more than 200 and fewer than 501 employees
2-27 in each of 20 or more calendar weeks in the calendar year in which
2-28 the suit is filed or in the preceding year; and
2-29 (4) $250,000, if the employing state or local
2-30 governmental entity has more than 500 employees in each of 20 or
2-31 more calendar weeks in the calendar year in which the suit is filed
2-32 or in the preceding year.
2-33 (d) If more than one subdivision of Subsection (c) applies
2-34 to an employing state or local governmental entity, the amount of
2-35 monetary damages that may be recovered from the entity in a suit
2-36 brought under this chapter is governed by the applicable provision
2-37 that provides the highest damage award.
2-38 SECTION 4. Chapter 554, Government Code, is amended by
2-39 adding Section 554.0035 to read as follows:
2-40 Sec. 554.0035. WAIVER OF IMMUNITY. A public employee who
2-41 alleges a violation of this chapter may sue the employing state or
2-42 local governmental entity for the relief provided by this chapter.
2-43 Sovereign immunity is waived and abolished to the extent of
2-44 liability for the relief allowed under this chapter for a violation
2-45 of this chapter.
2-46 SECTION 5. Section 554.004, Government Code, is amended to
2-47 read as follows:
2-48 Sec. 554.004. BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
2-49 DEFENSE. (a) A public employee who sues under this chapter has
2-50 the burden of proof, except that if the suspension or termination
2-51 of, or adverse personnel action against, a public employee occurs
2-52 not later than the 90th day after the date on which the employee
2-53 reports a violation of law, the suspension, <or> termination, or
2-54 adverse personnel action is presumed, subject to rebuttal, to be
2-55 because the employee made the report.
2-56 (b) It is an affirmative defense to a suit under this
2-57 chapter that the employing state or local governmental entity would
2-58 have taken the action against the employee that forms the basis of
2-59 the suit based solely on information, observation, or evidence that
2-60 is not related to the fact that the employee made a report
2-61 protected under this chapter of a violation of law.
2-62 SECTION 6. Section 554.006, Government Code, is amended to
2-63 read as follows:
2-64 Sec. 554.006. USE <EXHAUSTION> OF GRIEVANCE OR APPEAL
2-65 PROCEDURES. (a) A public <An> employee <of a local government>
2-66 must initiate action under the <exhaust that government's>
2-67 grievance or appeal procedures of the employing state or local
2-68 governmental entity relating to suspension or termination of
2-69 employment or adverse personnel action <unlawful discrimination>
2-70 before suing under this chapter.
3-1 (b) The employee must invoke the applicable grievance or
3-2 appeal procedures not later than the 90th day after the date on
3-3 which the alleged violation of this chapter:
3-4 (1) occurred; or
3-5 (2) was discovered by the employee through reasonable
3-6 diligence.
3-7 (c) Time used by the employee in acting under <exhausting>
3-8 the grievance or appeal procedures is excluded, except as provided
3-9 by Subsection (d), from the period established by Section 554.005.
3-10 (d) If a final decision is not rendered before the 61st day
3-11 after the date procedures are initiated under Subsection (a), the
3-12 employee may elect to:
3-13 (1) exhaust the applicable procedures under Subsection
3-14 (a), in which event the employee must sue not later than the 30th
3-15 day after the date those procedures are exhausted to obtain relief
3-16 under this chapter; or
3-17 (2) terminate procedures under Subsection (a), in
3-18 which event the employee must sue within the time remaining under
3-19 Section 554.005 to obtain relief under this chapter <This section
3-20 does not apply if a final decision is not rendered before the 31st
3-21 day after the date on which the employee initiated the grievance or
3-22 appeal>.
3-23 SECTION 7. Section 554.007, Government Code, is amended to
3-24 read as follows:
3-25 Sec. 554.007. WHERE SUIT BROUGHT. (a) A public employee of
3-26 a state governmental entity may sue under this chapter in a
3-27 district court of the county in which the cause of action arises
3-28 <employee resides> or in a district court of Travis County.
3-29 (b) A public employee of a local governmental entity may sue
3-30 under this chapter in a district court of the county in which the
3-31 cause of action arises or in a district court of any county in the
3-32 same geographic area that has established with the county in which
3-33 the cause of action arises a council of governments or other
3-34 regional commission under Chapter 391, Local Government Code.
3-35 SECTION 8. Section 554.008, Government Code, is amended by
3-36 amending Subsection (a) and by adding Subsections (d) and (e) to
3-37 read as follows:
3-38 (a) A supervisor who in violation of this chapter suspends
3-39 or terminates the employment of a public employee or takes an
3-40 adverse personnel action against the employee <in violation of this
3-41 chapter> is liable for a civil penalty not to exceed $15,000
3-42 <$1,000>.
3-43 (d) A civil penalty assessed under this section shall be
3-44 paid by the supervisor and may not be paid by the employing
3-45 governmental entity.
3-46 (e) The personal liability of a supervisor or other
3-47 individual under this chapter is limited to the civil penalty that
3-48 may be assessed under this section.
3-49 SECTION 9. Section 554.009(a), Government Code, is amended
3-50 to read as follows:
3-51 (a) A state <agency> or local governmental entity
3-52 <government> shall inform its employees of their rights under this
3-53 chapter by posting a sign in a prominent location in the workplace.
3-54 SECTION 10. Chapter 554, Government Code, is amended by
3-55 adding Section 554.010 to read as follows:
3-56 Sec. 554.010. AUDIT OF STATE GOVERNMENTAL ENTITY AFTER SUIT.
3-57 (a) At the conclusion of a suit that is brought under this chapter
3-58 against a state governmental entity subject to audit under Section
3-59 321.013 and in which the entity is required to pay $10,000 or more
3-60 under the terms of a settlement agreement or final judgment, the
3-61 attorney general shall provide to the state auditor's office a
3-62 brief memorandum describing the facts and disposition of the suit.
3-63 (b) Not later than the 90th day after the date on which the
3-64 state auditor's office receives the memorandum required by
3-65 Subsection (a), the auditor may audit or investigate the state
3-66 governmental entity to determine any changes necessary to correct
3-67 the problems that gave rise to the whistleblower suit and shall
3-68 recommend such changes to the Legislative Audit Committee, the
3-69 Legislative Budget Board, and the governing board or chief
3-70 executive officer of the entity involved. In conducting the audit
4-1 or investigation, the auditor shall have access to all records
4-2 pertaining to the suit.
4-3 SECTION 11. The changes in law made by this Act apply only
4-4 to a suspension or termination of employment of a public employee
4-5 or to other adverse personnel action taken against a public
4-6 employee on or after the effective date of this Act. A suspension
4-7 or termination of employment of a public employee or other adverse
4-8 personnel action against the employee, within the meaning of the
4-9 law changed by this Act, that is taken before the effective date of
4-10 this Act is governed by the law existing on the date the
4-11 suspension, termination, or other adverse personnel action
4-12 occurred, and the former law is continued in effect for that
4-13 purpose.
4-14 SECTION 12. The importance of this legislation and the
4-15 crowded condition of the calendars in both houses create an
4-16 emergency and an imperative public necessity that the
4-17 constitutional rule requiring bills to be read on three several
4-18 days in each house be suspended, and this rule is hereby suspended,
4-19 and that this Act take effect and be in force from and after its
4-20 passage, and it is so enacted.
4-21 * * * * *