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.