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                               * * * * *