By Alvarado                                           H.B. No. 2748
       74R1531 DLF-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to false claims made with certain governmental entities.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Subtitle F, Title 10, Government Code, is amended
    1-5  by adding Chapter 2258 to read as follows:
    1-6  
    1-7                      CHAPTER 2258.  FALSE CLAIMS
    1-8                   SUBCHAPTER A.  GENERAL PROVISIONS
    1-9        Sec. 2258.001.  DEFINITIONS.  In this Act:
   1-10              (1)  "Claim" means a claim for money, property, or
   1-11  services made to:
   1-12                    (A)  an employee, officer, or agent of a
   1-13  governmental entity; or
   1-14                    (B)  a government contractor, if a portion of the
   1-15  money, property, or services claimed was or is to be provided by a
   1-16  governmental entity.
   1-17              (2)  "Government contractor" means a person who
   1-18  receives money from a governmental entity to provide goods or a
   1-19  service, acting within the course and scope of the person's
   1-20  obligation to the governmental entity.  The term includes a
   1-21  contractor, grantee, or other recipient of money without regard to
   1-22  whether the contractor, grantee, or recipient is under contract to
   1-23  the governmental entity.
   1-24              (3)  "Governmental entity" means:
    2-1                    (A)  the state;
    2-2                    (B)  a local governmental entity;
    2-3                    (C)  a board, commission, department, office, or
    2-4  other agency in the executive branch of state government, including
    2-5  an institution of higher education as defined by Section 61.003,
    2-6  Education Code;
    2-7                    (D)  the legislature or a legislative agency; or
    2-8                    (E)  the supreme court, the court of criminal
    2-9  appeals, a court of appeals, or the State Bar of Texas or another
   2-10  judicial agency having statewide jurisdiction.
   2-11              (4)  "Local governmental entity" means:
   2-12                    (A)  a municipality, county, public school
   2-13  district, or special-purpose district or authority; or
   2-14                    (B)  a court that receives any part of its
   2-15  funding from a municipality or county.
   2-16              (5)  "Managing official" means an appointed or elected
   2-17  official responsible for the management or oversight of a
   2-18  governmental entity.  In the case of the legislature, the term
   2-19  means the speaker of the house of representatives or the lieutenant
   2-20  governor.  In the case of a court, the term means any judge or
   2-21  justice of the court.
   2-22              (6)  "Prosecuting authority" means the attorney for a
   2-23  local governmental entity or another local government official
   2-24  charged with investigating, filing, and conducting civil legal
   2-25  proceedings on behalf of a local governmental entity.
   2-26        Sec. 2258.002.  PROHIBITED ACTS.  A person may not:
   2-27              (1)  present to an officer, employee, or agent of a
    3-1  governmental entity or government contractor a false claim for
    3-2  payment or approval;
    3-3              (2)  make or use a false record or statement to obtain
    3-4  payment or approval of a false claim by a governmental entity or
    3-5  government contractor;
    3-6              (3)  conspire to defraud a governmental entity or
    3-7  government contractor by obtaining the payment or approval of a
    3-8  false claim;
    3-9              (4)  deliver to a governmental entity or government
   3-10  contractor less property than the amount of property for which the
   3-11  person receives a receipt;
   3-12              (5)  make or deliver a receipt that falsely represents
   3-13  the amount of property delivered that is to be used by a
   3-14  governmental entity or government contractor;
   3-15              (6)  buy or accept as a pledge of an obligation or debt
   3-16  public property from a person who may not sell or pledge the
   3-17  property;
   3-18              (7)  make or use a false record or statement to
   3-19  conceal, avoid, or decrease an obligation to pay or transmit money
   3-20  or property to a governmental entity or government contractor;
   3-21              (8)  accept the benefits from a false claim made by any
   3-22  person; or
   3-23              (9)  cause an act described by Subdivisions (1) through
   3-24  (8) to be committed by another person.
   3-25          (Sections 2258.003-2258.010 reserved for expansion
   3-26                SUBCHAPTER B.  LIABILITY FOR VIOLATIONS
   3-27        Sec. 2258.011.  LIABILITY FOR KNOWING VIOLATION.  (a)  A
    4-1  court that finds that a person knowingly violated Section 2258.002
    4-2  shall award the affected governmental entity:
    4-3              (1)  the actual damages sustained by the governmental
    4-4  entity because of the violation;
    4-5              (2)  exemplary damages equal to two times the amount of
    4-6  actual damages; and
    4-7              (3)  attorney's fees and costs incurred by the
    4-8  governmental entity to recover the damages and penalty.
    4-9        (b)  The court may reduce the amount of exemplary damages
   4-10  awarded under Subsection (a)(2) to an amount not less than the
   4-11  amount of actual damages if the person who knowingly violated
   4-12  Section 2258.002:
   4-13              (1)  furnished an official of the governmental entity
   4-14  responsible for investigating false claims violations with all
   4-15  information known to the person about the violation not later than
   4-16  the 30th day after the official requested the information; and
   4-17              (2)  otherwise fully cooperated with any investigation
   4-18  by the governmental entity.
   4-19        (c)  A person knowingly violates Section 2258.002 if the
   4-20  person:
   4-21              (1)  acts with actual knowledge of the facts that
   4-22  constitute the violation;
   4-23              (2)  acts in deliberate ignorance or reckless disregard
   4-24  of those facts or the truth or falsity of those facts; or
   4-25              (3)  acts without actual knowledge of the facts that
   4-26  constitute the violation and, after the violation, learns the facts
   4-27  that constitute the violation and fails to take action to mitigate
    5-1  or rectify the violation.
    5-2        Sec. 2258.012.  CIVIL PENALTY.  In addition to amounts
    5-3  awarded under Section 2258.011, the court may award to the affected
    5-4  governmental entity a civil penalty of not more than $10,000 for
    5-5  each false claim unless the person who knowingly violated Section
    5-6  2258.002 cooperated in the investigation as described by Sections
    5-7  2258.011(b)(1) and (2).
    5-8        Sec. 2258.013.  LIABILITY JOINT AND SEVERAL.  Liability under
    5-9  this subchapter is joint and several for a violation committed by
   5-10  more than one person.
   5-11        Sec. 2258.014.  EXCEPTIONS.  (a)  A court may not award
   5-12  exemplary damages and attorney's fees and costs under Section
   5-13  2258.011 or a civil penalty under Section 2258.012 against a person
   5-14  if the total actual damages resulting from all violations for which
   5-15  damages are being assessed against the person in the case is less
   5-16  than $500.
   5-17        (b)  This chapter does not apply to a claim made under a
   5-18  workers' compensation law of this state.
   5-19        Sec. 2258.015.  DEPOSIT OF MONEY.  (a)  Money collected on
   5-20  behalf of a governmental entity shall be deposited to the credit of
   5-21  the general revenue fund of the state or of the local governmental
   5-22  entity, as appropriate.
   5-23        (b)  If the action is brought in the names of both the state
   5-24  and one or more local governmental entities, the court shall
   5-25  apportion the award of damages, exemplary damages, and any civil
   5-26  penalty among the state and those local entities on the basis of
   5-27  the loss incurred.  Attorney's fees and costs shall be awarded to
    6-1  the entity that incurred the fees and costs.
    6-2        Sec. 2258.016.  LIMITATIONS.  (a)  Subject to Subsection (b),
    6-3  an action under this subchapter must be brought not later than the
    6-4  third anniversary of the date on which the violation was discovered
    6-5  by:
    6-6              (1)  the attorney general or prosecuting authority; or
    6-7              (2)  a managing official of the affected governmental
    6-8  entity, other than a managing official who participated in the
    6-9  violation.
   6-10        (b)  An action under this subchapter may not be brought after
   6-11  the 10th anniversary of the date on which the violation was
   6-12  committed.
   6-13        Sec. 2258.017.  APPLICATION OF OTHER LAW.  Chapter 41, Civil
   6-14  Practice and Remedies Code, does not apply to exemplary damages
   6-15  awarded under Section 2258.011 or to the civil penalty awarded
   6-16  under Section 2258.012.
   6-17          (Sections 2258.018-2258.020 reserved for expansion
   6-18                SUBCHAPTER C.  ATTORNEY GENERAL ACTION
   6-19        Sec. 2258.021.  ATTORNEY GENERAL INVESTIGATION.  (a)  The
   6-20  attorney general shall investigate alleged violations of Section
   6-21  2258.002 involving state funds.
   6-22        (b)  If the attorney general finds that a person has violated
   6-23  Section 2258.002, the attorney general may bring an action under
   6-24  Subchapter B against the person.
   6-25        Sec. 2258.022.  AFFECTED LOCAL GOVERNMENTAL ENTITY.  (a)  If
   6-26  the attorney general brings an action under Subchapter B on a claim
   6-27  that involves local government funds as well as state funds, the
    7-1  attorney general shall provide a copy of the complaint to the
    7-2  appropriate prosecuting authority.
    7-3        (b)  The attorney general shall mail the complaint to the
    7-4  prosecuting authority by certified mail, return receipt requested,
    7-5  not later than the date on which the complaint is filed.
    7-6        (c)  The prosecuting authority may intervene in an action
    7-7  brought by the attorney general under this subchapter not later
    7-8  than the 60th day after the date the prosecuting authority receives
    7-9  the copy of the complaint.  The court may permit the prosecuting
   7-10  authority to intervene after that date for good cause.
   7-11          (Sections 2258.023-2258.030 reserved for expansion
   7-12        SUBCHAPTER D.  ACTION BROUGHT BY PROSECUTING AUTHORITY
   7-13        Sec. 2258.031.  PROSECUTING AUTHORITY INVESTIGATION.  (a)  A
   7-14  prosecuting authority shall investigate alleged violations of
   7-15  Section 2258.002 involving funds belonging to a local governmental
   7-16  entity.
   7-17        (b)  If the prosecuting authority finds that a person has
   7-18  violated Section 2258.002, the prosecuting authority may bring an
   7-19  action under Subchapter B against the person.
   7-20        Sec. 2258.032.  ATTORNEY GENERAL.  (a)  If the prosecuting
   7-21  authority brings an action under Subchapter B on a claim that
   7-22  involves state funds as well as local government funds, the
   7-23  prosecuting authority shall provide a copy of the complaint to the
   7-24  attorney general.
   7-25        (b)  The prosecuting authority shall mail the complaint to
   7-26  the attorney general by certified mail, return receipt requested,
   7-27  not later than the date on which the complaint is filed.
    8-1        (c)  Not later than the 60th day after the date the attorney
    8-2  general receives the copy of the complaint, the attorney general
    8-3  shall:
    8-4              (1)  notify the court that the attorney general intends
    8-5  to proceed with the action and assume primary responsibility for
    8-6  conducting the action; or
    8-7              (2)  notify the court that the attorney general
    8-8  declines to assume primary responsibility for conducting the
    8-9  action.
   8-10        (d)  If the attorney general assumes primary responsibility
   8-11  for conducting the action, the prosecuting authority may continue
   8-12  as a party in the action.  If the attorney general declines to
   8-13  assume primary responsibility for conducting the action, the
   8-14  prosecuting authority may continue to conduct the action.
   8-15          (Sections 2258.033-2258.040 reserved for expansion
   8-16       SUBCHAPTER E.  INTERFERENCE WITH DISCLOSURE BY EMPLOYEES
   8-17        Sec. 2258.041.  RIGHT TO DISCLOSE INFORMATION AND PARTICIPATE
   8-18  IN ACTION.  A person is entitled to:
   8-19              (1)  disclose information relevant to an alleged
   8-20  violation of Section 2258.002 to a governmental entity, a
   8-21  prosecuting authority, the attorney general, or a law enforcement
   8-22  agency;
   8-23              (2)  assist, at the request of the attorney general or
   8-24  a prosecuting authority, in the investigation of an alleged
   8-25  violation of Section 2258.002; or
   8-26              (3)  testify or otherwise participate, at the request
   8-27  of the attorney general or a prosecuting authority, in the
    9-1  furtherance of an action filed or to be filed under this chapter.
    9-2        Sec. 2258.042.  PROHIBITED CONDUCT BY EMPLOYER.  (a)  An
    9-3  employer may not:
    9-4              (1)  adopt or enforce a rule or policy that prevents an
    9-5  employee from exercising the employee's rights under Section
    9-6  2258.041; or
    9-7              (2)  discriminate against an employee, including
    9-8  discharging, demoting, suspending, threatening, harassing, or
    9-9  denying promotion to the employee, because the employee has
   9-10  exercised the employee's rights under Section 2258.041.
   9-11        (b)  An employer who violates Subsection (a) is liable to the
   9-12  employee for:
   9-13              (1)  actual damages, including damages for lost wages;
   9-14              (2)  reinstatement to employment with the seniority
   9-15  status, if applicable, that the employee would have had in the
   9-16  absence of the discrimination;
   9-17              (3)  exemplary damages equal to not less than two times
   9-18  the amount of lost wages; and
   9-19              (4)  attorney's fees and costs.
   9-20        (c)  An employee may not recover under Subsection (b) unless:
   9-21              (1)  the employee exercised the employee's rights under
   9-22  Section 2258.041; and
   9-23              (2)  to the extent the employee participated in the
   9-24  violation of Section 2258.002, the employee participated in
   9-25  response to harassment, threats of termination or demotion, or
   9-26  other coercion by the employer.
   9-27        SECTION 2.  This Act takes effect September 1, 1995, and
   10-1  applies only to conduct that occurs on or after that date.  Conduct
   10-2  that occurred before the effective date of this Act is governed by
   10-3  the law applicable to the conduct immediately before the effective
   10-4  date of this Act, and that law is continued in effect for that
   10-5  purpose.
   10-6        SECTION 3.  The importance of this legislation and the
   10-7  crowded condition of the calendars in both houses create an
   10-8  emergency and an imperative public necessity that the
   10-9  constitutional rule requiring bills to be read on three several
  10-10  days in each house be suspended, and this rule is hereby suspended.