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.