By Ellis S.B. No. 1548 74R6820 CLG-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to business discrimination; providing criminal and civil 1-3 penalties. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Title 2, Business & Commerce Code, is amended by 1-6 adding Chapter 20 to read as follows: 1-7 CHAPTER 20. BUSINESS PRACTICES 1-8 SUBCHAPTER A. DISCRIMINATION PROHIBITED 1-9 Sec. 20.001. DEFINITIONS. In this chapter: 1-10 (1) "Aggrieved person" includes any person who: 1-11 (A) claims to have been injured by a 1-12 discriminatory business practice; or 1-13 (B) believes that the person will be injured by 1-14 a discriminatory business practice that is about to occur. 1-15 (2) "Complainant" means a person, including the 1-16 commission, that files a complaint under Section 20.041. 1-17 (3) "Commission" means the Commission on Human Rights. 1-18 (4) "Conciliation" means the informal negotiations 1-19 among an aggrieved person, the respondent, and the commission to 1-20 resolve issues raised by a complaint or by the investigation of the 1-21 complaint. 1-22 (5) "Conciliation agreement" means a written agreement 1-23 resolving the issues in conciliation. 1-24 (6) "Discriminatory business practice" means an act 2-1 prohibited by Section 20.002 or conduct that is an offense under 2-2 Subchapter G. 2-3 (7) "Respondent" means: 2-4 (A) a person accused of a violation of this 2-5 chapter in a complaint of discriminatory business practice; or 2-6 (B) a person identified as an additional or 2-7 substitute respondent under Section 20.045 or an agent of an 2-8 additional or substitute respondent. 2-9 Sec. 20.002. DISCRIMINATORY BUSINESS PRACTICE. A person 2-10 who is engaged in a trade or business or in the provision of 2-11 services may not intentionally refuse to do business with or 2-12 contract with a person or discriminate in the basic terms, 2-13 conditions, or performance of a contract with a person because of 2-14 the person's race, color, sex, or disability unless the refusal or 2-15 discrimination is because of a legitimate business purpose. 2-16 Sec. 20.003. LIMITATIONS ON WAIVER. A provision of a 2-17 contract or other agreement or instrument that purports to be a 2-18 waiver by a person of any right or remedy provided by this chapter 2-19 is contrary to public policy and void if the waiver or release 2-20 purports to waive claims arising out of acts or practices that 2-21 occur after the execution of the waiver or release. 2-22 (Sections 20.004-20.020 reserved for expansion 2-23 SUBCHAPTER B. ADMINISTRATIVE PROVISIONS 2-24 Sec. 20.021. COMMISSION ON HUMAN RIGHTS. The Commission on 2-25 Human Rights shall administer this chapter. 2-26 Sec. 20.022. RULES. The commission may adopt rules 2-27 necessary to implement this chapter. 3-1 Sec. 20.023. COMPLAINTS. As provided by Subchapters C and 3-2 D, the commission shall receive, investigate, seek to conciliate, 3-3 and act on complaints alleging violations of this chapter. 3-4 Sec. 20.024. DELEGATION OF AUTHORITY. The commission by 3-5 rule may authorize the executive director of the commission to 3-6 exercise the commission's powers or perform the commission's duties 3-7 under this chapter. 3-8 Sec. 20.025. SUBPOENAS AND DISCOVERY. The commission may 3-9 issue subpoenas and order discovery in investigations and hearings 3-10 under this chapter to the same extent and subject to the same 3-11 limitations as subpoenas issued and discovery ordered in a civil 3-12 action in district court. 3-13 (Sections 20.026-20.040 reserved for expansion 3-14 SUBCHAPTER C. ADMINISTRATIVE ENFORCEMENT 3-15 Sec. 20.041. COMPLAINT. (a) The commission shall 3-16 investigate complaints of alleged discriminatory business 3-17 practices. 3-18 (b) A complaint must: 3-19 (1) be in writing; 3-20 (2) be under oath; 3-21 (3) state the name of the person alleged to have 3-22 committed a discriminatory business practice; 3-23 (4) set out a summary of the details of the practice 3-24 complained of; and 3-25 (5) be in the form prescribed by the commission. 3-26 (c) An aggrieved person may file a complaint with the 3-27 commission alleging the discriminatory business practice. The 4-1 commission may file a complaint. 4-2 (d) A complaint must be filed on or before the first 4-3 anniversary of the date the alleged discriminatory business 4-4 practice occurs. 4-5 (e) A complaint may be amended at any time. 4-6 (f) On the filing of a complaint, the commission shall: 4-7 (1) give the aggrieved person notice that the 4-8 complaint has been received; 4-9 (2) advise the aggrieved person of the time limits and 4-10 choice of forums under this chapter; and 4-11 (3) not later than the 10th day after the date of the 4-12 filing of the complaint or the identification of an additional or 4-13 substitute respondent under Section 20.045, serve on each 4-14 respondent: 4-15 (A) a notice identifying the alleged 4-16 discriminatory business practice and advising the respondent of the 4-17 procedural rights and obligations of a respondent under this 4-18 chapter; and 4-19 (B) a copy of the original complaint. 4-20 Sec. 20.042. ANSWER. (a) Not later than the 20th day after 4-21 the date of receipt of the notice and copy of the complaint under 4-22 Section 20.041(f)(3), a respondent may file an answer to the 4-23 complaint. 4-24 (b) An answer must: 4-25 (1) be in writing; 4-26 (2) be under oath; 4-27 (3) contain a summary of the details of the 5-1 respondent's position relating to the claim; and 5-2 (4) be in the form prescribed by the commission. 5-3 (c) An answer may be amended at any time. 5-4 (d) An answer does not inhibit the investigation of a 5-5 complaint. 5-6 Sec. 20.043. REQUIRED INFORMATION; DISMISSAL OF COMPLAINT. 5-7 (a) The commission may require a person who files a complaint to 5-8 provide: 5-9 (1) the address of the person alleged to have 5-10 committed the discriminatory business practice; 5-11 (2) names of witnesses; 5-12 (3) documents; and 5-13 (4) any other information necessary to process the 5-14 complaint. 5-15 (b) The commission may dismiss a complaint if the person 5-16 fails to provide the commission with information required by the 5-17 commission under this section. 5-18 Sec. 20.044. INVESTIGATION. (a) The commission shall 5-19 promptly investigate the allegations set forth in the complaint. 5-20 (b) The commission shall investigate all complaints and, 5-21 except as provided by Subsection (c), shall: 5-22 (1) complete an investigation not later than the 100th 5-23 day after the date the complaint is filed; or 5-24 (2) if it is unable to complete the investigation 5-25 within the 100-day period, dispose of all administrative 5-26 proceedings related to the investigation not later than the first 5-27 anniversary after the date the complaint is filed. 6-1 (c) If the commission is unable to complete an investigation 6-2 within the periods prescribed by Subsection (b), the commission may 6-3 extend the periods and shall notify the complainant and the 6-4 respondent in writing of the reasons for the delay. 6-5 (d) The commission shall give priority to investigating and 6-6 processing claims that the commission determines have the following 6-7 characteristics: 6-8 (1) there is evidence that irreparable harm may occur 6-9 if immediate action is not taken; 6-10 (2) there is evidence that the respondent has 6-11 intentionally engaged in a reprisal; 6-12 (3) a significant number of recent charges have been 6-13 filed against the respondent; 6-14 (4) the respondent is a governmental entity; or 6-15 (5) the complaint is supported by substantial and 6-16 credible documentation, witnesses, or other evidence. 6-17 Sec. 20.045. ADDITIONAL OR SUBSTITUTE RESPONDENT. (a) The 6-18 commission may join a person not named in the complaint as an 6-19 additional or substitute respondent if during the investigation the 6-20 commission determines that the person should be accused of a 6-21 discriminatory business practice. 6-22 (b) In addition to the information required in the notice 6-23 under Section 20.041(f), the commission shall include in a notice 6-24 to a respondent joined under this section the reasons for the 6-25 determination that the person is properly joined as a respondent. 6-26 Sec. 20.046. CONCILIATION. (a) The commission to the 6-27 extent feasible shall engage in conciliation with respect to the 7-1 complaint during the period beginning with the filing of a 7-2 complaint and ending with the filing of a charge or a dismissal by 7-3 the commission. 7-4 (b) A conciliation agreement between a respondent and the 7-5 complainant is subject to commission approval. 7-6 (c) A conciliation agreement may provide for binding 7-7 arbitration or another method of dispute resolution. Dispute 7-8 resolution that results from a conciliation agreement may authorize 7-9 appropriate relief, including monetary relief. 7-10 (d) A conciliation agreement is public information unless: 7-11 (1) the complainant and respondent agree that it is 7-12 not public information; and 7-13 (2) the commission determines that disclosure is not 7-14 necessary to further the purposes of this chapter. 7-15 (e) Statements made or actions taken in the conciliation may 7-16 not be made public or used as evidence in a subsequent proceeding 7-17 under this chapter without the written consent of the persons 7-18 concerned. 7-19 (f) After completion of the commission's investigation, the 7-20 commission shall make available to the aggrieved person and the 7-21 respondent, at any time, information derived from the investigation 7-22 and the final investigative report relating to that investigation. 7-23 Sec. 20.047. TEMPORARY OR PRELIMINARY RELIEF. (a) The 7-24 commission may authorize a civil action for temporary or 7-25 preliminary relief pending the final disposition of a complaint if 7-26 the commission concludes after the filing of the complaint that 7-27 prompt judicial action is necessary to carry out the purposes of 8-1 this chapter. 8-2 (b) On receipt of the commission's authorization, the 8-3 attorney general shall promptly file the action. 8-4 (c) A temporary restraining order or other order granting 8-5 preliminary or temporary relief under this section is governed by 8-6 the applicable provisions of the Texas Rules of Civil Procedure. 8-7 (d) The filing of a civil action under this section does not 8-8 affect the initiation or continuation of administrative 8-9 proceedings. 8-10 Sec. 20.048. INVESTIGATIVE REPORT. (a) The commission 8-11 shall prepare a final investigative report including: 8-12 (1) the names and dates of contacts with witnesses; 8-13 (2) a summary of correspondence and other contacts 8-14 with the aggrieved person and the respondent showing the dates of 8-15 the correspondence and contacts; 8-16 (3) a summary description of other pertinent records; 8-17 (4) a summary of witness statements; and 8-18 (5) answers to interrogatories. 8-19 (b) A final report under this section may be amended if 8-20 additional evidence is discovered. 8-21 Sec. 20.049. REASONABLE CAUSE DETERMINATION. (a) The 8-22 commission shall determine from the facts whether reasonable cause 8-23 exists to believe that a discriminatory business practice has 8-24 occurred or is about to occur. 8-25 (b) The commission shall make the determination under 8-26 Subsection (a) not later than the 100th day after the date a 8-27 complaint is filed unless: 9-1 (1) making the determination is impracticable; or 9-2 (2) the commission approves a conciliation agreement 9-3 relating to the complaint. 9-4 (c) If within the period provided by Subsection (b) making 9-5 the determination is impracticable, the commission may extend the 9-6 period and shall give in writing to the complainant and the 9-7 respondent the reasons for the delay. 9-8 (d) If the commission determines that reasonable cause 9-9 exists to believe that a discriminatory business practice has 9-10 occurred or is about to occur, the commission shall immediately 9-11 issue a charge on behalf of the aggrieved person. 9-12 Sec. 20.050. CHARGE. (a) A charge issued under Section 9-13 20.049: 9-14 (1) must consist of a short and plain statement of the 9-15 facts on which the commission finds reasonable cause to believe 9-16 that a discriminatory business practice has occurred or is about to 9-17 occur; 9-18 (2) must be based on the final investigative report; 9-19 and 9-20 (3) is not limited to the facts or grounds alleged in 9-21 the complaint. 9-22 (b) Not later than the 20th day after the date the 9-23 commission issues a charge, the commission shall send a copy of 9-24 the charge with information about the election under Section 20.053 9-25 to: 9-26 (1) each respondent; and 9-27 (2) each aggrieved person on whose behalf the 10-1 complaint was filed. 10-2 (c) The commission shall include with a charge sent to a 10-3 respondent a notice of the opportunity for a hearing under Section 10-4 20.061. 10-5 Sec. 20.051. DISMISSAL. (a) If the commission determines 10-6 that reasonable cause does not exist to believe that a 10-7 discriminatory business practice that is the subject of a complaint 10-8 has occurred or is about to occur, the commission shall promptly 10-9 dismiss the complaint. 10-10 (b) The commission shall make public disclosure of each 10-11 dismissal. 10-12 Sec. 20.052. PENDING CIVIL TRIAL. The commission may not 10-13 issue a charge alleging a discriminatory business practice after 10-14 the beginning of the trial of a civil action commenced by the 10-15 aggrieved party under federal or state law seeking relief with 10-16 respect to that discriminatory business practice. 10-17 Sec. 20.053. ELECTION OF JUDICIAL DETERMINATION. (a) A 10-18 complainant, a respondent, or an aggrieved person on whose behalf a 10-19 complaint was filed may elect to have the claims asserted in the 10-20 charge decided in a civil action as provided by Section 20.081. 10-21 (b) The election must be made not later than the 20th day 10-22 after the date the person having the election receives service 10-23 under Section 20.050(b) or, in the case of the commission, not 10-24 later than the 20th day after the date the charge is issued. 10-25 (c) The person making the election shall give notice to the 10-26 commission and to all other complainants and respondents to whom 10-27 the charge relates. 11-1 (Sections 20.054-20.060 reserved for expansion 11-2 SUBCHAPTER D. ADMINISTRATIVE HEARINGS 11-3 Sec. 20.061. ADMINISTRATIVE HEARING. (a) If a timely 11-4 election is not made under Section 20.053, the commission shall 11-5 provide for a hearing on the charge. 11-6 (b) Except as provided by Subsection (c), Chapter 2001, 11-7 Government Code, governs a hearing and an appeal of a hearing. 11-8 (c) A hearing under this section on an alleged 11-9 discriminatory business practice may not continue after the 11-10 beginning of the trial of a civil action commenced by the aggrieved 11-11 person under federal or state law seeking relief with respect to 11-12 the discriminatory business practice. 11-13 Sec. 20.062. ADMINISTRATIVE PENALTIES. (a) If the 11-14 commission determines at a hearing under Section 20.061 that a 11-15 respondent has engaged in or is about to engage in a discriminatory 11-16 business practice, the commission may order the appropriate relief, 11-17 including actual damages, reasonable attorney's fees, court costs, 11-18 and other injunctive or equitable relief. 11-19 (b) To vindicate the public's interest, the commission may 11-20 assess a civil penalty against the respondent in an amount that 11-21 does not exceed: 11-22 (1) $10,000 if the respondent has not been found by 11-23 order of the commission or a court to have committed a prior 11-24 discriminatory business practice; or 11-25 (2) except as provided by Subsection (c): 11-26 (A) $25,000 if the respondent has been found by 11-27 order of the commission or a court to have committed one other 12-1 discriminatory business practice during the five-year period ending 12-2 on the date of the filing of the charges; or 12-3 (B) $50,000 if the respondent has been found by 12-4 the commission or a court to have committed two or more 12-5 discriminatory business practices during the seven-year period 12-6 ending on the date of filing of the charge. 12-7 (c) If the acts constituting the discriminatory business 12-8 practice that is the object of the charge are committed by the same 12-9 individual who has previously been found to have committed acts 12-10 constituting a discriminatory business practice, the civil 12-11 penalties in Subsection (b)(2) may be imposed without regard to the 12-12 period within which any other discriminatory business practice 12-13 occurred. 12-14 (d) At the request of the commission, the attorney general 12-15 shall sue to recover a civil penalty due under this section. 12-16 Sec. 20.063. ORDER IN PRECEDING FIVE YEARS. If the 12-17 commission issues an order against a respondent against whom 12-18 another order was issued within the preceding five years under 12-19 Section 20.062, the commission shall send a copy of each order to 12-20 the attorney general. 12-21 (Sections 20.064-20.080 reserved for expansion 12-22 SUBCHAPTER E. ENFORCEMENT BY ATTORNEY GENERAL 12-23 Sec. 20.081. ATTORNEY GENERAL ACTION FOR ENFORCEMENT. (a) 12-24 If a timely election is made under Section 20.053, the commission 12-25 shall authorize and, not later than the 30th day after the date the 12-26 election is made, the attorney general shall file in a district 12-27 court a civil action seeking relief on behalf of the aggrieved 13-1 person. 13-2 (b) Venue for an action is in the county in which the 13-3 alleged discriminatory business practice occurred or is about to 13-4 occur. 13-5 (c) An aggrieved person may intervene in the action. 13-6 (d) If the court finds that a discriminatory business 13-7 practice has occurred or is about to occur, the court may grant as 13-8 relief any relief that a court may grant in a civil action under 13-9 Subchapter F. 13-10 (e) If monetary relief is sought for the benefit of an 13-11 aggrieved person who does not intervene in the civil action, the 13-12 court may not award the monetary relief if that aggrieved person 13-13 has not complied with discovery orders entered by the court. 13-14 Sec. 20.082. SUBPOENA ENFORCEMENT. The attorney general, on 13-15 behalf of the commission or another party at whose request a 13-16 subpoena is issued under this chapter, may enforce the subpoena in 13-17 appropriate proceedings in district court. 13-18 (Sections 20.083-20.110 reserved for expansion 13-19 SUBCHAPTER F. ENFORCEMENT BY PRIVATE PERSONS 13-20 Sec. 20.111. CIVIL ACTION. (a) An aggrieved person may 13-21 file a civil action in district court not later than the second 13-22 anniversary of the date of the occurrence or the termination of an 13-23 alleged discriminatory business practice or the breach of a 13-24 conciliation agreement entered under this chapter, whichever occurs 13-25 last, to obtain appropriate relief with respect to the 13-26 discriminatory business practice or breach. 13-27 (b) The two-year period does not include any period during 14-1 which an administrative hearing under this chapter is pending with 14-2 respect to a complaint or charge under this chapter based on the 14-3 discriminatory business practice. This subsection does not apply 14-4 to actions arising from the breach of a conciliation agreement. 14-5 (c) An aggrieved person may file an action regardless of 14-6 whether a complaint has been filed under Section 20.081 and without 14-7 regard to the status of any complaint filed under that section. 14-8 (d) If the commission has obtained a conciliation agreement 14-9 with the consent of an aggrieved person, the aggrieved person may 14-10 not file an action with respect to the alleged discriminatory 14-11 business practice that forms the basis of the complaint except to 14-12 enforce the terms of the agreement. 14-13 (e) An aggrieved person may not file an action with respect 14-14 to an alleged discriminatory business practice that forms the basis 14-15 of a charge issued by the commission if the commission has begun a 14-16 hearing on the record under this chapter with respect to the 14-17 charge. 14-18 Sec. 20.112. COURT-APPOINTED ATTORNEY. On application by a 14-19 person alleging a discriminatory business practice or by a person 14-20 against whom a discriminatory business practice is alleged, the 14-21 court may appoint an attorney for the person. 14-22 Sec. 20.113. RELIEF GRANTED. If the court finds that a 14-23 discriminatory business practice has occurred or is about to occur, 14-24 the court may award to the plaintiff: 14-25 (1) actual and punitive damages; 14-26 (2) reasonable attorney's fees; 14-27 (3) court costs; and 15-1 (4) a permanent or temporary injunction, temporary 15-2 restraining order, or other order, including an order enjoining the 15-3 defendant from engaging in the practice or ordering appropriate 15-4 affirmative action. 15-5 Sec. 20.114. INTERVENTION BY ATTORNEY GENERAL. On request 15-6 of the commission, the attorney general may intervene in an action 15-7 under this subchapter if the commission certifies that the case is 15-8 of general public importance. 15-9 Sec. 20.115. PREVAILING PARTY. A court in a civil action 15-10 brought under this chapter or the commission in an administrative 15-11 hearing under Section 20.061 may award reasonable attorney's fees 15-12 to the prevailing party and assess court costs against the 15-13 nonprevailing party. 15-14 (Sections 20.116-20.130 reserved for expansion 15-15 SUBCHAPTER G. CRIMINAL PENALTY 15-16 Sec. 20.131. CRIMINAL OFFENSE. (a) A person commits an 15-17 offense if the person commits, or aids, compels, or coerces another 15-18 person to commit, a violation under Section 20.002. 15-19 (b) An offense under this section is a Class A misdemeanor. 15-20 SECTION 2. This Act takes effect September 1, 1995. 15-21 SECTION 3. The importance of this legislation and the 15-22 crowded condition of the calendars in both houses create an 15-23 emergency and an imperative public necessity that the 15-24 constitutional rule requiring bills to be read on three several 15-25 days in each house be suspended, and this rule is hereby suspended.