1-1 By: Montford S.B. No. 411
1-2 (In the Senate - Filed February 1, 1995; February 2, 1995,
1-3 read first time and referred to Committee on State Affairs;
1-4 May 5, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 3; May 5, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 411 By: Nelson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the protection of a public employee who reports a
1-11 violation of law.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 554.001, Government Code, is amended to
1-14 read as follows:
1-15 Sec. 554.001. DEFINITIONS. In this chapter:
1-16 (1) "Law" means:
1-17 (A) a state or federal statute;
1-18 (B) an ordinance of a local governmental entity
1-19 <body>; or
1-20 (C) a rule adopted under a statute or ordinance.
1-21 (2) "Local governmental entity <government>" means a
1-22 political subdivision of the state, including a:
1-23 (A) <a> county;
1-24 (B) <a> municipality;
1-25 (C) <a> public school district; or
1-26 (D) <a> special-purpose district or authority.
1-27 (3) "Personnel action" means an action that affects a
1-28 public employee's compensation, promotion, demotion, transfer, work
1-29 assignment, or performance evaluation.
1-30 (4) "Public employee" means an employee or appointed
1-31 officer <a person> other than an independent contractor who is paid
1-32 to perform<, for compensation, performs> services for a state or
1-33 local governmental entity <body under a written or oral contract>.
1-34 (5) <(4)> "State governmental entity <agency>" means:
1-35 (A) a board, commission, department, office, or
1-36 other agency in the executive branch of state government, created
1-37 under the constitution or a statute of the state, including an
1-38 institution of higher education, as defined by Section 61.003,
1-39 Education Code;
1-40 (B) the legislature or a legislative agency; or
1-41 (C) the Texas Supreme Court, the Texas Court of
1-42 Criminal Appeals, a court of appeals, a state judicial agency, or
1-43 the State Bar of Texas.
1-44 SECTION 2. Section 554.002, Government Code, is amended to
1-45 read as follows:
1-46 Sec. 554.002. RETALIATION PROHIBITED FOR REPORTING VIOLATION
1-47 OF LAW. (a) A state <agency> or local governmental entity
1-48 <government> may not suspend or terminate the employment of, or
1-49 take other adverse personnel action <discriminate> against, a
1-50 public employee who in good faith reports a violation of law by the
1-51 employing governmental entity or another public employee to an
1-52 appropriate law enforcement authority.
1-53 (b) In this section, a report is made to an appropriate law
1-54 enforcement authority if the authority is a part of a state or
1-55 local governmental entity or of the federal government that the
1-56 employee in good faith believes is authorized to:
1-57 (1) regulate under or enforce the law alleged to be
1-58 violated in the report; or
1-59 (2) investigate or prosecute a violation of criminal
1-60 law.
1-61 SECTION 3. Section 554.003, Government Code, is amended to
1-62 read as follows:
1-63 Sec. 554.003. RELIEF AVAILABLE TO PUBLIC EMPLOYEE. (a) A
1-64 public employee whose employment is suspended or terminated or who
1-65 is subjected to an adverse personnel action <discriminated against>
1-66 in violation of Section 554.002 is entitled to sue for:
1-67 (1) injunctive relief;
1-68 (2) actual damages;
2-1 (3) <exemplary damages;>
2-2 <(4)> court costs; and
2-3 (4) <(5)> reasonable attorney fees.
2-4 (b) In addition to relief under Subsection (a), a public
2-5 employee whose employment is suspended or terminated in violation
2-6 of this chapter is entitled to:
2-7 (1) reinstatement to the employee's former position or
2-8 an equivalent position;
2-9 (2) compensation for wages lost during the period of
2-10 suspension or termination; and
2-11 (3) reinstatement of fringe benefits and seniority
2-12 rights lost because of the suspension or termination.
2-13 (c) In a suit under this chapter against an employing state
2-14 or local governmental entity, a public employee may not recover
2-15 compensatory damages for future pecuniary losses, emotional pain,
2-16 suffering, inconvenience, mental anguish, loss of enjoyment of
2-17 life, and other nonpecuniary losses in an amount that exceeds:
2-18 (1) $50,000, if the employing state or local
2-19 governmental entity has fewer than 101 employees in each of 20 or
2-20 more calendar weeks in the calendar year in which the suit is filed
2-21 or in the preceding year;
2-22 (2) $100,000, if the employing state or local
2-23 governmental entity has more than 100 and fewer than 201 employees
2-24 in each of 20 or more calendar weeks in the calendar year in which
2-25 the suit is filed or in the preceding year;
2-26 (3) $200,000, if the employing state or local
2-27 governmental entity has more than 200 and fewer than 501 employees
2-28 in each of 20 or more calendar weeks in the calendar year in which
2-29 the suit is filed or in the preceding year; and
2-30 (4) $250,000, if the employing state or local
2-31 governmental entity has more than 500 employees in each of 20 or
2-32 more calendar weeks in the calendar year in which the suit is filed
2-33 or in the preceding year.
2-34 (d) If more than one subdivision of Subsection (c) applies
2-35 to an employing state or local governmental entity, the amount of
2-36 monetary damages that may be recovered from the entity in a suit
2-37 brought under this chapter is governed by the applicable provision
2-38 that provides the highest damage award.
2-39 SECTION 4. Chapter 554, Government Code, is amended by
2-40 adding Section 554.0035 to read as follows:
2-41 Sec. 554.0035. WAIVER OF IMMUNITY. A public employee who
2-42 alleges a violation of this chapter may sue the employing state or
2-43 local governmental entity for the relief provided by this chapter.
2-44 Sovereign immunity is waived and abolished to the extent of
2-45 liability for the relief allowed under this chapter for a violation
2-46 of this chapter.
2-47 SECTION 5. Section 554.004, Government Code, is amended to
2-48 read as follows:
2-49 Sec. 554.004. BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
2-50 DEFENSE. (a) A public employee who sues under this chapter has
2-51 the burden of proof, except that if the suspension or termination
2-52 of, or adverse personnel action against, a public employee occurs
2-53 not later than the 90th day after the date on which the employee
2-54 reports a violation of law, the suspension, <or> termination, or
2-55 adverse personnel action is presumed, subject to rebuttal, to be
2-56 because the employee made the report.
2-57 (b) It is an affirmative defense to a suit under this
2-58 chapter that the employing state or local governmental entity would
2-59 have taken the action against the employee that forms the basis of
2-60 the suit based solely on information, observation, or evidence that
2-61 is not related to the fact that the employee made a report
2-62 protected under this chapter of a violation of law.
2-63 SECTION 6. Section 554.006, Government Code, is amended to
2-64 read as follows:
2-65 Sec. 554.006. USE <EXHAUSTION> OF GRIEVANCE OR APPEAL
2-66 PROCEDURES. (a) A public <An> employee <of a local government>
2-67 must initiate action under the <exhaust that government's>
2-68 grievance or appeal procedures of the employing state or local
2-69 governmental entity relating to suspension or termination of
2-70 employment or adverse personnel action <unlawful discrimination>
3-1 before suing under this chapter.
3-2 (b) The employee must invoke the applicable grievance or
3-3 appeal procedures not later than the 90th day after the date on
3-4 which the alleged violation of this chapter:
3-5 (1) occurred; or
3-6 (2) was discovered by the employee through reasonable
3-7 diligence.
3-8 (c) Time used by the employee in acting under <exhausting>
3-9 the grievance or appeal procedures is excluded, except as provided
3-10 by Subsection (d), from the period established by Section 554.005.
3-11 (d) If a final decision is not rendered before the 61st day
3-12 after the date procedures are initiated under Subsection (a), the
3-13 employee may elect to:
3-14 (1) exhaust the applicable procedures under Subsection
3-15 (a), in which event the employee must sue not later than the 30th
3-16 day after the date those procedures are exhausted to obtain relief
3-17 under this chapter; or
3-18 (2) terminate procedures under Subsection (a), in
3-19 which event the employee must sue within the time remaining under
3-20 Section 554.005 to obtain relief under this chapter <This section
3-21 does not apply if a final decision is not rendered before the 31st
3-22 day after the date on which the employee initiated the grievance or
3-23 appeal>.
3-24 SECTION 7. Section 554.007, Government Code, is amended to
3-25 read as follows:
3-26 Sec. 554.007. WHERE SUIT BROUGHT. (a) A public employee of
3-27 a state governmental entity may sue under this chapter in a
3-28 district court of the county in which the cause of action arises
3-29 <employee resides> or in a district court of Travis County.
3-30 (b) A public employee of a local governmental entity may sue
3-31 under this chapter in a district court of the county in which the
3-32 cause of action arises or in a district court of any county in the
3-33 same geographic area that has established with the county in which
3-34 the cause of action arises a council of governments or other
3-35 regional commission under Chapter 391, Local Government Code.
3-36 SECTION 8. Section 554.008, Government Code, is amended by
3-37 amending Subsection (a) and by adding Subsections (d) and (e) to
3-38 read as follows:
3-39 (a) A supervisor who in violation of this chapter suspends
3-40 or terminates the employment of a public employee or takes an
3-41 adverse personnel action against the employee <in violation of this
3-42 chapter> is liable for a civil penalty not to exceed $5,000
3-43 <$1,000>.
3-44 (d) A civil penalty assessed under this section shall be
3-45 paid by the supervisor and may not be paid by the employing
3-46 governmental entity.
3-47 (e) The personal liability of a supervisor or other
3-48 individual under this chapter is limited to the civil penalty that
3-49 may be assessed under this section.
3-50 SECTION 9. Subsection (a), Section 554.009, Government Code,
3-51 is amended to read as follows:
3-52 (a) A state <agency> or local governmental entity
3-53 <government> shall inform its employees of their rights under this
3-54 chapter by posting a sign in a prominent location in the workplace.
3-55 SECTION 10. Chapter 554, Government Code, is amended by
3-56 adding Section 554.010 to read as follows:
3-57 Sec. 554.010. AUDIT OF STATE GOVERNMENTAL ENTITY AFTER SUIT.
3-58 (a) At the conclusion of a suit that is brought under this chapter
3-59 against a state governmental entity subject to audit under Section
3-60 321.013 and in which the entity is required to pay $10,000 or more
3-61 under the terms of a settlement agreement or final judgment, the
3-62 attorney general shall provide to each member of the legislative
3-63 audit committee a brief memorandum describing the facts and
3-64 disposition of the suit.
3-65 (b) Not later than the 90th day after the date on which the
3-66 last member of the legislative audit committee receives the
3-67 memorandum required by Subsection (a), the committee may direct the
3-68 state auditor to audit or investigate the state governmental
3-69 entity.
3-70 SECTION 11. The changes in law made by this Act apply only
4-1 to a suspension or termination of employment of a public employee
4-2 or to other adverse personnel action taken against a public
4-3 employee on or after the effective date of this Act. A suspension
4-4 or termination of employment of a public employee or other adverse
4-5 personnel action against the employee, within the meaning of the
4-6 law changed by this Act, that is taken before the effective date of
4-7 this Act is governed by the law existing on the date the
4-8 suspension, termination, or other adverse personnel action
4-9 occurred, and the former law is continued in effect for that
4-10 purpose.
4-11 SECTION 12. The importance of this legislation and the
4-12 crowded condition of the calendars in both houses create an
4-13 emergency and an imperative public necessity that the
4-14 constitutional rule requiring bills to be read on three several
4-15 days in each house be suspended, and this rule is hereby suspended,
4-16 and that this Act take effect and be in force from and after its
4-17 passage, and it is so enacted.
4-18 * * * * *