By Maxey H.B. No. 703 75R2801 DAK-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to false claims made with certain governmental entities; 1-3 providing a civil penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle F, Title 10, Government Code, is amended 1-6 by adding Chapter 2259 to read as follows: 1-7 CHAPTER 2259. FALSE CLAIMS 1-8 SUBCHAPTER A. GENERAL PROVISIONS 1-9 Sec. 2259.001. DEFINITIONS. In this chapter: 1-10 (1) "Claim" means a claim for money, property, or 1-11 services made to: 1-12 (A) an employee, officer, or agent of a 1-13 governmental entity; or 1-14 (B) a government contractor, if a portion of the 1-15 money, property, or services claimed was or is to be provided by a 1-16 governmental entity. 1-17 (2) "Government contractor" means a person who 1-18 receives money from a governmental entity to provide goods or a 1-19 service, acting within the course and scope of the person's 1-20 obligation to the governmental entity. The term includes a 1-21 contractor, grantee, or other recipient of money without regard to 1-22 whether the contractor, grantee, or recipient is under contract to 1-23 the governmental entity. 1-24 (3) "Governmental entity" means: 2-1 (A) the state; 2-2 (B) a local governmental entity; 2-3 (C) a board, commission, department, office, or 2-4 other agency in the executive branch of state government, including 2-5 an institution of higher education as defined by Section 61.003, 2-6 Education Code; 2-7 (D) the legislature or a legislative agency; or 2-8 (E) the supreme court, the court of criminal 2-9 appeals, a court of appeals, or the State Bar of Texas or another 2-10 judicial agency having statewide jurisdiction. 2-11 (4) "Local governmental entity" means: 2-12 (A) a municipality, county, public school 2-13 district, or special-purpose district or authority; or 2-14 (B) a court that receives any part of its 2-15 funding from a municipality or county. 2-16 (5) "Managing official" means an appointed or elected 2-17 official responsible for the management or oversight of a 2-18 governmental entity. In the case of the legislature, the term 2-19 means the speaker of the house of representatives or the lieutenant 2-20 governor. In the case of a court, the term means any judge or 2-21 justice of the court. 2-22 (6) "Prosecuting authority" means the attorney for a 2-23 local governmental entity or another local government official 2-24 charged with investigating, filing, and conducting civil legal 2-25 proceedings on behalf of a local governmental entity. 2-26 Sec. 2259.002. PROHIBITED ACTS. A person may not: 2-27 (1) present to an officer, employee, or agent of a 3-1 governmental entity or government contractor a false claim for 3-2 payment or approval; 3-3 (2) make or use a false record or statement to obtain 3-4 payment or approval of a false claim by a governmental entity or 3-5 government contractor; 3-6 (3) conspire to defraud a governmental entity or 3-7 government contractor by obtaining the payment or approval of a 3-8 false claim; 3-9 (4) deliver to a governmental entity or government 3-10 contractor less property than the amount of property for which the 3-11 person receives a receipt; 3-12 (5) make or deliver a receipt that falsely represents 3-13 the amount of property delivered that is to be used by a 3-14 governmental entity or government contractor; 3-15 (6) buy or accept as a pledge of an obligation or debt 3-16 public property from a person who may not sell or pledge the 3-17 property; 3-18 (7) make or use a false record or statement to 3-19 conceal, avoid, or decrease an obligation to pay or transmit money 3-20 or property to a governmental entity or government contractor; 3-21 (8) accept the benefits from a false claim made by any 3-22 person; or 3-23 (9) cause an act described by Subdivisions (1) through 3-24 (8) to be committed by another person. 3-25 (Sections 2259.003-2259.010 reserved for expansion 3-26 SUBCHAPTER B. LIABILITY FOR VIOLATIONS 3-27 Sec. 2259.011. LIABILITY FOR KNOWING VIOLATION. (a) A 4-1 court that finds that a person knowingly violated Section 2259.002 4-2 shall award the affected governmental entity: 4-3 (1) the actual damages sustained by the governmental 4-4 entity because of the violation; 4-5 (2) exemplary damages equal to two times the amount of 4-6 actual damages; and 4-7 (3) attorney's fees and costs incurred by the 4-8 governmental entity to recover the damages and penalty. 4-9 (b) The court may reduce the amount of exemplary damages 4-10 awarded under Subsection (a)(2) to an amount not less than the 4-11 amount of actual damages if the person who knowingly violated 4-12 Section 2259.002: 4-13 (1) furnished an official of the governmental entity 4-14 responsible for investigating false claims violations with all 4-15 information known to the person about the violation not later than 4-16 the 30th day after the official requested the information; and 4-17 (2) otherwise fully cooperated with any investigation 4-18 by the governmental entity. 4-19 (c) A person knowingly violates Section 2259.002 if the 4-20 person: 4-21 (1) acts with actual knowledge of the facts that 4-22 constitute the violation; 4-23 (2) acts in deliberate ignorance or reckless disregard 4-24 of those facts or the truth or falsity of those facts; or 4-25 (3) acts without actual knowledge of the facts that 4-26 constitute the violation and, after the violation, learns the facts 4-27 that constitute the violation and fails to take action to mitigate 5-1 or rectify the violation. 5-2 Sec. 2259.012. CIVIL PENALTY. In addition to amounts 5-3 awarded under Section 2259.011, the court may award to the affected 5-4 governmental entity a civil penalty of not more than $10,000 for 5-5 each false claim unless the person who knowingly violated Section 5-6 2259.002 cooperated in the investigation as described by Sections 5-7 2259.011(b)(1) and (2). 5-8 Sec. 2259.013. LIABILITY JOINT AND SEVERAL; PROPORTIONATE 5-9 RESPONSIBILITY INAPPLICABLE. Liability under this subchapter is 5-10 joint and several for a violation committed by more than one 5-11 person. Chapter 33, Civil Practice and Remedies Code, does not 5-12 apply to an action brought under this chapter. 5-13 Sec. 2259.014. EXCEPTIONS. A court may not award exemplary 5-14 damages and attorney's fees and costs under Section 2259.011 or a 5-15 civil penalty under Section 2259.012 against a person if the total 5-16 actual damages resulting from all violations for which damages are 5-17 being assessed against the person in the case is less than $500. 5-18 Sec. 2259.015. DEPOSIT OF MONEY. (a) Money collected on 5-19 behalf of a governmental entity shall be deposited to the credit of 5-20 the general revenue fund of the state or of the local governmental 5-21 entity, as appropriate. 5-22 (b) If the action is brought in the names of both the state 5-23 and one or more local governmental entities, the court shall 5-24 apportion the award of damages, exemplary damages, and any civil 5-25 penalty among the state and those local entities on the basis of 5-26 the loss incurred. Attorney's fees and costs shall be awarded to 5-27 the entity that incurred the fees and costs. 6-1 Sec. 2259.016. LIMITATIONS. (a) Subject to Subsection (b), 6-2 an action under this subchapter must be brought not later than the 6-3 third anniversary of the date on which the violation was discovered 6-4 by: 6-5 (1) the attorney general or prosecuting authority; or 6-6 (2) a managing official of the affected governmental 6-7 entity, other than a managing official who participated in the 6-8 violation. 6-9 (b) An action under this subchapter may not be brought after 6-10 the 10th anniversary of the date on which the violation was 6-11 committed. 6-12 Sec. 2259.017. APPLICATION OF LAW GOVERNING EXEMPLARY 6-13 DAMAGES. Chapter 41, Civil Practice and Remedies Code, does not 6-14 apply to exemplary damages awarded under Section 2259.011 or to the 6-15 civil penalty awarded under Section 2259.012. 6-16 (Sections 2259.018-2259.020 reserved for expansion 6-17 SUBCHAPTER C. ATTORNEY GENERAL ACTION 6-18 Sec. 2259.021. ATTORNEY GENERAL INVESTIGATION. (a) The 6-19 attorney general shall investigate alleged violations of Section 6-20 2259.002 involving state funds. 6-21 (b) If the attorney general finds that a person has violated 6-22 Section 2259.002, the attorney general may bring an action under 6-23 Subchapter B against the person. 6-24 Sec. 2259.022. AFFECTED LOCAL GOVERNMENTAL ENTITY. (a) If 6-25 the attorney general brings an action under Subchapter B on a claim 6-26 that involves local government funds as well as state funds, the 6-27 attorney general shall provide a copy of the complaint to the 7-1 appropriate prosecuting authority. 7-2 (b) The attorney general shall mail the complaint to the 7-3 prosecuting authority by certified mail, return receipt requested, 7-4 not later than the date on which the complaint is filed. 7-5 (c) The prosecuting authority may intervene in an action 7-6 brought by the attorney general under this subchapter not later 7-7 than the 60th day after the date the prosecuting authority receives 7-8 the copy of the complaint. The court may permit the prosecuting 7-9 authority to intervene after that date for good cause. 7-10 (Sections 2259.023-2259.030 reserved for expansion 7-11 SUBCHAPTER D. ACTION BROUGHT BY PROSECUTING AUTHORITY 7-12 Sec. 2259.031. PROSECUTING AUTHORITY INVESTIGATION. (a) A 7-13 prosecuting authority shall investigate alleged violations of 7-14 Section 2259.002 involving funds belonging to a local governmental 7-15 entity. 7-16 (b) If the prosecuting authority finds that a person has 7-17 violated Section 2259.002, the prosecuting authority may bring an 7-18 action under Subchapter B against the person. 7-19 Sec. 2259.032. ATTORNEY GENERAL. (a) If the prosecuting 7-20 authority brings an action under Subchapter B on a claim that 7-21 involves state funds as well as local government funds, the 7-22 prosecuting authority shall provide a copy of the complaint to the 7-23 attorney general. 7-24 (b) The prosecuting authority shall mail the complaint to 7-25 the attorney general by certified mail, return receipt requested, 7-26 not later than the date on which the complaint is filed. 7-27 (c) Not later than the 60th day after the date the attorney 8-1 general receives the copy of the complaint, the attorney general 8-2 shall: 8-3 (1) notify the court that the attorney general intends 8-4 to proceed with the action and assume primary responsibility for 8-5 conducting the action; or 8-6 (2) notify the court that the attorney general 8-7 declines to assume primary responsibility for conducting the 8-8 action. 8-9 (d) If the attorney general assumes primary responsibility 8-10 for conducting the action, the prosecuting authority may continue 8-11 as a party in the action. If the attorney general declines to 8-12 assume primary responsibility for conducting the action, the 8-13 prosecuting authority may continue to conduct the action. 8-14 (Sections 2259.033-2259.040 reserved for expansion 8-15 SUBCHAPTER E. PRIVATE CAUSE OF ACTION 8-16 Sec. 2259.041. PRIVATE ACTION. A person may bring a civil 8-17 action in a district court in this state for a violation of Section 8-18 2259.002 in the name of the person and the name of the state, the 8-19 name of a local government, or both the state and the local 8-20 government, as appropriate. 8-21 Sec. 2259.042. SERVICE OF PETITION. (a) A person who 8-22 brings an action under this subchapter shall serve a copy of the 8-23 petition in the action on: 8-24 (1) the attorney general, if the claim involves state 8-25 funds; and 8-26 (2) the prosecuting authority of the local government, 8-27 if the claim involves local government funds. 9-1 (b) Service under this section shall be made in the manner 9-2 provided by Rule 21a, Texas Rules of Civil Procedure. 9-3 Sec. 2259.043. INTERVENTION. (a) In an action involving 9-4 only state funds, the attorney general may assume responsibility 9-5 for prosecution of the action by entering an appearance not later 9-6 than the 60th day after the date the attorney general receives 9-7 service of the petition under Section 2259.042. 9-8 (b) In an action involving only local government funds, the 9-9 prosecuting authority may assume responsibility for prosecution of 9-10 the action by entering an appearance not later than the 60th day 9-11 after the date the prosecuting authority receives service of the 9-12 petition under Section 2259.042. 9-13 (c) In an action involving state and local government funds, 9-14 the attorney general may assume primary responsibility for 9-15 prosecution of the action by entering an appearance not later than 9-16 the 60th day after the date the attorney general receives service 9-17 of the petition under Section 2259.042. 9-18 (d) If the attorney general assumes primary responsibility 9-19 for prosecution of the action under Subsection (c), the prosecuting 9-20 authority may, not later than the 60th day after the date the 9-21 prosecuting authority receives service of the petition under 9-22 Section 2259.042, enter an appearance and proceed as a party in the 9-23 action. 9-24 (e) If the attorney general does not assume primary 9-25 responsibility for prosecution of the action under Subsection (c), 9-26 the prosecuting authority may assume responsibility for prosecution 9-27 of the action not later than the 30th day after the last date the 10-1 attorney general may enter an appearance under this section. 10-2 Sec. 2259.044. AWARD TO PRIVATE PARTY IF GOVERNMENT 10-3 PROSECUTES ACTION. (a) If the attorney general or the prosecuting 10-4 authority assumes responsibility for prosecution of the action 10-5 under Section 2259.043 and the action is settled or the court 10-6 enters a judgment for the state or the local government, the court 10-7 shall award a reasonable portion of the settlement or judgment to 10-8 the person who commenced the action under this subchapter. 10-9 (b) In determining the amount to award a person under this 10-10 section, the court shall consider the value of any information or 10-11 evidence disclosed by the person. An award of 10 percent of the 10-12 settlement or judgment is presumed to be reasonable. 10-13 Sec. 2259.045. AWARD TO PRIVATE PARTY IF GOVERNMENT DOES 10-14 NOT PROSECUTE ACTION. (a) If the attorney general or the 10-15 prosecuting authority does not assume responsibility for 10-16 prosecution of the action under Section 2259.043 and the action is 10-17 settled or the court enters a judgment for the state or the local 10-18 government, the court shall award to the person who prosecuted the 10-19 action under this subchapter: 10-20 (1) a reasonable portion of the settlement or 10-21 judgment; and 10-22 (2) reasonable expenses incurred by the person in 10-23 prosecuting the action. 10-24 (b) In determining the amount to award a person under 10-25 Subsection (a), the court shall consider the value of the person's 10-26 prosecution of the action. An award of 25 percent of the 10-27 settlement or judgment is presumed to be reasonable. 11-1 (Sections 2259.046-2259.050 reserved for expansion 11-2 SUBCHAPTER F. INTERFERENCE WITH DISCLOSURE BY EMPLOYEES 11-3 Sec. 2259.051. RIGHT TO DISCLOSE INFORMATION AND PARTICIPATE 11-4 IN ACTION. A person is entitled to: 11-5 (1) disclose information relevant to an alleged 11-6 violation of Section 2259.002 to a governmental entity, a 11-7 prosecuting authority, the attorney general, or a law enforcement 11-8 agency; 11-9 (2) assist, at the request of the attorney general or 11-10 a prosecuting authority, in the investigation of an alleged 11-11 violation of Section 2259.002; or 11-12 (3) testify or otherwise participate, at the request 11-13 of the attorney general or a prosecuting authority, in the 11-14 furtherance of an action filed or to be filed under this chapter. 11-15 Sec. 2259.052. PROHIBITED CONDUCT BY EMPLOYER. (a) An 11-16 employer may not: 11-17 (1) adopt or enforce a rule or policy that prevents an 11-18 employee from exercising the employee's rights under Section 11-19 2259.051; or 11-20 (2) discriminate against an employee, including 11-21 discharging, demoting, suspending, threatening, harassing, or 11-22 denying promotion to the employee, because the employee has 11-23 exercised the employee's rights under Section 2259.051. 11-24 (b) An employer who violates Subsection (a) is liable to the 11-25 employee for: 11-26 (1) actual damages, including damages for lost wages; 11-27 (2) reinstatement to employment with the seniority 12-1 status, if applicable, that the employee would have had in the 12-2 absence of the discrimination; 12-3 (3) exemplary damages equal to not less than two times 12-4 the amount of lost wages; and 12-5 (4) attorney's fees and costs. 12-6 (c) An employee may not recover under Subsection (b) unless: 12-7 (1) the employee exercised the employee's rights under 12-8 Section 2259.051; and 12-9 (2) to the extent the employee participated in the 12-10 violation of Section 2259.002, the employee participated in 12-11 response to harassment, threats of termination or demotion, or 12-12 other coercion by the employer. 12-13 SECTION 2. This Act takes effect September 1, 1997, and 12-14 applies only to conduct that occurs on or after that date. Conduct 12-15 that occurred before the effective date of this Act is governed by 12-16 the law applicable to the conduct immediately before the effective 12-17 date of this Act, and that law is continued in effect for that 12-18 purpose. 12-19 SECTION 3. The importance of this legislation and the 12-20 crowded condition of the calendars in both houses create an 12-21 emergency and an imperative public necessity that the 12-22 constitutional rule requiring bills to be read on three several 12-23 days in each house be suspended, and this rule is hereby suspended.