By:  Montford                                          S.B. No. 411
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the protection of a public employee who reports a
    1-2  violation of law.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 554.001, Government Code, is amended to
    1-5  read as follows:
    1-6        Sec. 554.001.  DEFINITIONS.  In this chapter:
    1-7              (1)  "Law" means:
    1-8                    (A)  a state or federal statute;
    1-9                    (B)  an ordinance of a local governmental entity
   1-10  <body>; or
   1-11                    (C)  a rule adopted under a statute or ordinance.
   1-12              (2)  "Local governmental entity <government>" means a
   1-13  political subdivision of the state, including a:
   1-14                    (A)  <a> county;
   1-15                    (B)  <a> municipality;
   1-16                    (C)  <a> public school district; or
   1-17                    (D)  <a> special-purpose district or authority.
   1-18              (3)  "Personnel action" means an action that affects a
   1-19  public employee's compensation, promotion, demotion, transfer, work
   1-20  assignment, or performance evaluation.
   1-21              (4)  "Public employee" means an employee or appointed
   1-22  officer <a person> other than an independent contractor who is paid
   1-23  to perform<, for compensation, performs> services for a state or
   1-24  local governmental entity <body under a written or oral contract>.
    2-1              (5) <(4)>  "State governmental entity <agency>" means:
    2-2                    (A)  a board, commission, department, office, or
    2-3  other agency in the executive branch of state government, created
    2-4  under the constitution or a statute of the state, including an
    2-5  institution of higher education, as defined by Section 61.003,
    2-6  Education Code;
    2-7                    (B)  the legislature or a legislative agency; or
    2-8                    (C)  the Texas Supreme Court, the Texas Court of
    2-9  Criminal Appeals, a court of appeals, a state judicial agency, or
   2-10  the State Bar of Texas.
   2-11        SECTION 2.  Section 554.002, Government Code, is amended to
   2-12  read as follows:
   2-13        Sec. 554.002.  RETALIATION PROHIBITED FOR REPORTING VIOLATION
   2-14  OF LAW.  (a)  A state <agency> or local governmental entity
   2-15  <government> may not suspend or terminate the employment of, or
   2-16  take other adverse personnel action <discriminate> against, a
   2-17  public employee who in good faith reports a violation of law by the
   2-18  employing governmental entity or another public employee to an
   2-19  appropriate law enforcement authority.
   2-20        (b)  In this section, a report is made to an appropriate law
   2-21  enforcement authority if the authority is a part of a state or
   2-22  local governmental entity or of the federal government that the
   2-23  employee in good faith believes is authorized to:
   2-24              (1)  regulate under or enforce the law alleged to be
   2-25  violated in the report; or
   2-26              (2)  investigate or prosecute a violation of criminal
   2-27  law.
    3-1        SECTION 3.  Section 554.003, Government Code, is amended to
    3-2  read as follows:
    3-3        Sec. 554.003.  RELIEF AVAILABLE TO PUBLIC EMPLOYEE.  (a)  A
    3-4  public employee whose employment is suspended or terminated or who
    3-5  is subjected to an adverse personnel action <discriminated against>
    3-6  in violation of Section 554.002 is entitled to sue for:
    3-7              (1)  injunctive relief;
    3-8              (2)  actual damages;
    3-9              (3)  <exemplary damages;>
   3-10              <(4)>  court costs; and
   3-11              (4) <(5)>  reasonable attorney fees.
   3-12        (b)  In addition to relief under Subsection (a), a public
   3-13  employee whose employment is suspended or terminated in violation
   3-14  of this chapter is entitled to:
   3-15              (1)  reinstatement to the employee's former position or
   3-16  an equivalent position;
   3-17              (2)  compensation for wages lost during the period of
   3-18  suspension or termination; and
   3-19              (3)  reinstatement of fringe benefits and seniority
   3-20  rights lost because of the suspension or termination.
   3-21        (c)  In a suit under this chapter against an employing state
   3-22  or local governmental entity, a public employee may not recover
   3-23  compensatory damages for future pecuniary losses, emotional pain,
   3-24  suffering, inconvenience, mental anguish, loss of enjoyment of
   3-25  life, and other nonpecuniary losses in an amount that exceeds:
   3-26              (1)  $50,000, if the employing state or local
   3-27  governmental entity has fewer than 101 employees in each of 20 or
    4-1  more calendar weeks in the calendar year in which the suit is filed
    4-2  or in the preceding year;
    4-3              (2)  $100,000, if the employing state or local
    4-4  governmental entity has more than 100 and fewer than 201 employees
    4-5  in each of 20 or more calendar weeks in the calendar year in which
    4-6  the suit is filed or in the preceding year;
    4-7              (3)  $200,000, if the employing state or local
    4-8  governmental entity has more than 200 and fewer than 501 employees
    4-9  in each of 20 or more calendar weeks in the calendar year in which
   4-10  the suit is filed or in the preceding year; and
   4-11              (4)  $250,000, if the employing state or local
   4-12  governmental entity has more than 500 employees in each of 20 or
   4-13  more calendar weeks in the calendar year in which the suit is filed
   4-14  or in the preceding year.
   4-15        (d)  If more than one subdivision of Subsection (c) applies
   4-16  to an employing state or local governmental entity, the amount of
   4-17  monetary damages that may be recovered from the entity in a suit
   4-18  brought under this chapter is governed by the applicable provision
   4-19  that provides the highest damage award.
   4-20        SECTION 4.  Chapter 554, Government Code, is amended by
   4-21  adding Section 554.0035 to read as follows:
   4-22        Sec. 554.0035.  WAIVER OF IMMUNITY.  A public employee who
   4-23  alleges a violation of this chapter may sue the employing state or
   4-24  local governmental entity for the relief provided by this chapter.
   4-25  Sovereign immunity is waived and abolished to the extent of
   4-26  liability for the relief allowed under this chapter for a violation
   4-27  of this chapter.
    5-1        SECTION 5.  Section 554.004, Government Code, is amended to
    5-2  read as follows:
    5-3        Sec. 554.004.  BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
    5-4  DEFENSE.  (a)  A public employee who sues under this chapter has
    5-5  the burden of proof, except that if the suspension or termination
    5-6  of, or adverse personnel action against, a public employee occurs
    5-7  not later than the 90th day after the date on which the employee
    5-8  reports a violation of law, the suspension, <or> termination, or
    5-9  adverse personnel action is presumed, subject to rebuttal, to be
   5-10  because the employee made the report.
   5-11        (b)  It is an affirmative defense to a suit under this
   5-12  chapter that the employing state or local governmental entity would
   5-13  have taken the action against the employee that forms the basis of
   5-14  the suit based solely on information, observation, or evidence that
   5-15  is not related to the fact that the employee made a report
   5-16  protected under this chapter of a violation of law.
   5-17        SECTION 6.  Section 554.006, Government Code, is amended to
   5-18  read as follows:
   5-19        Sec. 554.006.  USE <EXHAUSTION> OF GRIEVANCE OR APPEAL
   5-20  PROCEDURES.  (a)  A public <An> employee <of a local government>
   5-21  must initiate action under the <exhaust that government's>
   5-22  grievance or appeal procedures of the employing state or local
   5-23  governmental entity relating to suspension or termination of
   5-24  employment or adverse personnel action <unlawful discrimination>
   5-25  before suing under this chapter.
   5-26        (b)  The employee must invoke the applicable grievance or
   5-27  appeal procedures not later than the 90th day after the date on
    6-1  which the alleged violation of this chapter:
    6-2              (1)  occurred; or
    6-3              (2)  was discovered by the employee through reasonable
    6-4  diligence.
    6-5        (c)  Time used by the employee in acting under <exhausting>
    6-6  the grievance or appeal procedures is excluded, except as provided
    6-7  by Subsection (d), from the period established by Section 554.005.
    6-8        (d)  If a final decision is not rendered before the 61st day
    6-9  after the date procedures are initiated under Subsection (a), the
   6-10  employee may elect to:
   6-11              (1)  exhaust the applicable procedures under Subsection
   6-12  (a), in which event the employee must sue not later than the 30th
   6-13  day after the date those procedures are exhausted to obtain relief
   6-14  under this chapter; or
   6-15              (2)  terminate procedures under Subsection (a), in
   6-16  which event the employee must sue within the time remaining under
   6-17  Section 554.005 to obtain relief under this chapter <This section
   6-18  does not apply if a final decision is not rendered before the 31st
   6-19  day after the date on which the employee initiated the grievance or
   6-20  appeal>.
   6-21        SECTION 7.  Section 554.007, Government Code, is amended to
   6-22  read as follows:
   6-23        Sec. 554.007.  WHERE SUIT BROUGHT.  (a)  A public employee of
   6-24  a state governmental entity may sue under this chapter in a
   6-25  district court of the county in which the cause of action arises
   6-26  <employee resides> or in a district court of Travis County.
   6-27        (b)  A public employee of a local governmental entity may sue
    7-1  under this chapter in a district court of the county in which the
    7-2  cause of action arises or in a district court of any county in the
    7-3  same geographic area that has established with the county in which
    7-4  the cause of action arises a council of governments or other
    7-5  regional commission under Chapter 391, Local Government Code.
    7-6        SECTION 8.  Section 554.008, Government Code, is amended by
    7-7  amending Subsection (a) and by adding Subsections (d) and (e) to
    7-8  read as follows:
    7-9        (a)  A supervisor who in violation of this chapter suspends
   7-10  or terminates the employment of a public employee or takes an
   7-11  adverse personnel action against the employee <in violation of this
   7-12  chapter> is liable for a civil penalty not to exceed $15,000
   7-13  <$1,000>.
   7-14        (d)  A civil penalty assessed under this section shall be
   7-15  paid by the supervisor and may not be paid by the employing
   7-16  governmental entity.
   7-17        (e)  The personal liability of a supervisor or other
   7-18  individual under this chapter is limited to the civil penalty that
   7-19  may be assessed under this section.
   7-20        SECTION 9.  Subsection (a), Section 554.009, Government Code,
   7-21  is amended to read as follows:
   7-22        (a)  A state <agency> or local governmental entity
   7-23  <government> shall inform its employees of their rights under this
   7-24  chapter by posting a sign in a prominent location in the workplace.
   7-25        SECTION 10.  Chapter 554, Government Code, is amended by
   7-26  adding Section 554.010 to read as  follows:
   7-27        Sec. 554.010.  AUDIT OF STATE GOVERNMENTAL ENTITY AFTER SUIT.
    8-1  (a)  At the conclusion of a suit that is brought under this chapter
    8-2  against a state governmental entity subject to audit under Section
    8-3  321.013 and in which the entity is required to pay $10,000 or more
    8-4  under the terms of a settlement agreement or final judgment, the
    8-5  attorney general shall provide to each member of the legislative
    8-6  audit committee a brief memorandum describing the facts and
    8-7  disposition of the suit.
    8-8        (b)  Not later than the 90th day after the date on which the
    8-9  last member of the legislative audit committee receives the
   8-10  memorandum required by Subsection (a), the committee may direct the
   8-11  state auditor to audit or investigate the state governmental
   8-12  entity.
   8-13        SECTION 11.  The changes in law made by this Act apply only
   8-14  to a suspension or termination  of employment of a public employee
   8-15  or to other adverse personnel action taken against a public
   8-16  employee on or after the effective date of this Act.  A suspension
   8-17  or termination of employment of a public employee or other adverse
   8-18  personnel action against the employee, within the meaning of the
   8-19  law changed by this Act, that is taken before the effective date of
   8-20  this Act is governed by the law existing on the date the
   8-21  suspension, termination, or other adverse personnel action
   8-22  occurred, and the former law is continued in effect for that
   8-23  purpose.
   8-24        SECTION 12.  The importance of this legislation and the
   8-25  crowded condition of the calendars in both houses create an
   8-26  emergency and an imperative public necessity that the
   8-27  constitutional rule requiring bills to be read on three several
    9-1  days in each house be suspended, and this rule is hereby suspended,
    9-2  and that this Act take effect and be in force from and after its
    9-3  passage, and it is so enacted.