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.