By Ratliff, et al. S.B. No. 31
Substitute the following for S.B. No. 31:
By Cuellar C.S.S.B. No. 31
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the powers and duties of agencies in the executive,
1-3 legislative, and judicial branches of state government, including
1-4 authorizations for and restrictions on the use of state funds.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle C, Title 10, Government Code, is amended
1-7 by adding Chapter 2113 to read as follows:
1-8 CHAPTER 2113. USE OF APPROPRIATED MONEY
1-9 Sec. 2113.001. DISCRIMINATORY PRACTICES. None of the funds
1-10 appropriated by the General Appropriations Act may be expended by
1-11 agencies that practice discrimination based on race, creed, sex, or
1-12 national origin. The attorney general is responsible for the
1-13 enforcement of this section at the request of the governor.
1-14 Sec. 2113.002. GOODS OR SERVICES PROVIDED BY TEXANS WITH
1-15 DISABILITIES. State agencies and institutions that are
1-16 appropriated money under the General Appropriations Act are
1-17 encouraged to use the appropriated money to purchase products and
1-18 services provided by Texans with disabilities under Chapter 122,
1-19 Human Resources Code.
1-20 SECTION 2. Chapter 21, Labor Code, is amended by adding
1-21 Subchapters H and I to read as follows:
1-22 SUBCHAPTER H. EQUAL EMPLOYMENT OPPORTUNITY REPORTING AND TRAINING
1-23 Sec. 21.351. LEGISLATIVE DETERMINATION. The legislature
1-24 determines that any qualified applicant should have access to
2-1 compete for employment with the state.
2-2 Sec. 21.352. ANNUAL REPORT. (a) Not later than the seventh
2-3 workday of each calendar year, each state agency, including public
2-4 institutions of higher education, shall report equal employment
2-5 opportunity information for the preceding calendar year to the
2-6 commission as required by this section. The report must be made on
2-7 a form provided by the commission. The commission shall collect
2-8 equal employment opportunity information reported to the commission
2-9 by a state agency. The information must include data compiled on a
2-10 monthly basis showing:
2-11 (1) the total number of employees of the agency and
2-12 the total number of new employees hired each month since the date
2-13 of the last report made by the agency;
2-14 (2) the total number of employees of the agency listed
2-15 by racial and ethnic group and the percentage of the total number
2-16 of agency employees for each racial and ethnic group, including a
2-17 distinction for those categories between the total number of
2-18 employees and the total number of employees hired each month since
2-19 the date of the last report made by the agency;
2-20 (3) the total number of male employees and the total
2-21 number of female employees of the agency, including a distinction
2-22 for those categories between the total number of employees and the
2-23 total number of employees hired each month since the date of the
2-24 last report made by the agency;
2-25 (4) the total number of male and total number of
2-26 female employees of the agency for each racial and ethnic group,
2-27 including a distinction for those categories between the total
3-1 number of employees and the total number of employees hired each
3-2 month since the date of the last report made by the agency; and
3-3 (5) the total number of employees of the agency listed
3-4 by job classification and the total number of employees for each
3-5 sex, race and ethnic group listed by job classification, including
3-6 a distinction for those categories between the total number of
3-7 employees and the total number of employees hired each month since
3-8 the date of the last report made by the agency.
3-9 (b) The commission shall compile the information reported to
3-10 the commission under this section with the assistance of the
3-11 comptroller and the uniform statewide accounting system. Not later
3-12 than December 15 of each year, the commission shall provide each
3-13 state agency with a copy of the form to be used to make a report
3-14 under this section for the following year.
3-15 (c) For the purposes of this section, racial and ethnic
3-16 groups shall consist of Black, Hispanic, and White.
3-17 Sec. 21.353. ADMINISTRATIVE PENALTY FOR FAILURE TO REPORT.
3-18 The commission shall assess an administrative penalty in an amount
3-19 of not more than $2,000 against any state agency, including public
3-20 institutions of higher education, that fails to comply with
3-21 reporting requirements established by Section 21.352 for a
3-22 reporting period. The penalty is payable from money appropriated
3-23 by the General Appropriations Act.
3-24 Sec. 21.353. TRAINING. (a) Each state agency, including
3-25 public institutions of higher education, that has three or more
3-26 complaints of employment discrimination, other than complaints
3-27 determined to be without merit, during each year of the biennium
4-1 shall use money appropriated by the General Appropriations Act to
4-2 receive comprehensive equal employment opportunity training to be
4-3 provided by the commission or another person approved by the
4-4 commission for supervisory and managerial personnel. The
4-5 commission shall provide for the training of supervisory and
4-6 managerial personnel who are respondents named in the complaints
4-7 against agencies.
4-8 (b) Each agency shall pay for all training costs or
4-9 reimburse the commission for its costs associated with this
4-10 training through interagency contracts. The cost of training
4-11 provided by the commission shall be determined and approved by the
4-12 commission and the General Services Commission.
4-13 SUBCHAPTER I. MINORITY HIRING PRACTICES AND
4-14 AFFIRMATIVE ACTION PLANS
4-15 Sec. 21.401. DIVERSITY STUDY. Each state agency and
4-16 institution of higher education may spend appropriated money to
4-17 perform an analysis of its current workforce compared to available
4-18 Blacks, Hispanics, and females in the statewide civilian labor
4-19 force to determine percentage of exclusion or underutilization by
4-20 each job category.
4-21 Sec. 21.402. AFFIRMATIVE ACTION PLANS. Based on a workforce
4-22 availability analysis that demonstrates the exclusion or
4-23 underutilization of Blacks, Hispanics, and females, or
4-24 court-ordered remedies, or supervised conciliations or settlement
4-25 agreements to remedy past or current discrimination, each state
4-26 agency and institution of higher education shall develop and
4-27 implement a plan to recruit capable and qualified applicants,
5-1 mindful of the diversity in this state. The commission shall
5-2 monitor state agencies and institutions to determine compliance
5-3 with this section.
5-4 Sec. 21.403. APPLICATION TO CERTAIN ACTIONS. This
5-5 subchapter does not affect a court-ordered remedy, affirmative
5-6 action program, conciliation agreement, or settlement that is in
5-7 accordance with applicable law.
5-8 Sec. 21.404. ANNUAL EMPLOYMENT REPORT. Each state agency
5-9 and institution of higher education shall report to the commission,
5-10 within 60 days after the close of each fiscal year, the number of
5-11 Black, Hispanic, and female hirings and total hirings made during
5-12 that year. The commission shall, not later than January 1 of each
5-13 odd-numbered year, submit to the Legislative Budget Board and the
5-14 budget division of the governor's office a state minority and women
5-15 hiring practice report detailing this information.
5-16 Sec. 21.405. REVIEW AND REVISION OF AFFIRMATIVE ACTION
5-17 PLANS. (a) Each state agency and institution of higher education
5-18 shall enlist the assistance of the commission in the review and
5-19 revision every six years of the entity's affirmative action plan.
5-20 The review shall be completed, and necessary revisions implemented,
5-21 within the first 12 months of a state fiscal biennium.
5-22 (b) One-third of the entities required under this section to
5-23 review and revise the entities' affirmative action plans shall
5-24 perform the review and revision in a particular fiscal biennium,
5-25 based on the categories of agencies provided by the General
5-26 Appropriations Act. The Legislative Budget Board shall determine
5-27 which agencies and institutions are included within each category.
6-1 Sec. 21.406. ANNUAL AFFIRMATIVE ACTION REPORT. Each state
6-2 agency and institution of higher education shall file an annual
6-3 report detailing compliance with the entity's affirmative action
6-4 plan. The report must be submitted by October 1 to the governor,
6-5 the lieutenant governor, the speaker of the house of
6-6 representatives, and the Legislative Budget Board.
6-7 SECTION 3. Notwithstanding Section 21.405, Labor Code, as
6-8 added by this Act, agencies and institutions in the following
6-9 categories described by the General Appropriations Act shall review
6-10 and revise their affirmative action plans according to the
6-11 following schedule:
6-12 (1) for the 1998-1999 biennium, agencies of general
6-13 government, natural resources, and business and economic
6-14 development, other than the Texas Department of Transportation;
6-15 (2) for the 2000-2001 biennium, agencies of education,
6-16 other than public community or junior colleges, public safety and
6-17 criminal justice, and the judiciary; and
6-18 (3) for the 2002-2003 biennium, agencies of health and
6-19 human services, regulation, and the Texas Department of
6-20 Transportation.
6-21 SECTION 4. (a) The legislature finds that state agencies
6-22 and institutions of higher education for which money is
6-23 appropriated in the General Appropriations Act employ available
6-24 Blacks, Hispanics, and females in numbers less than the numbers of
6-25 those persons in defined job categories in the total civilian labor
6-26 force.
6-27 (b) The legislature finds that, historically, state agencies
7-1 and institutions of higher education have underutilized or excluded
7-2 Blacks, Hispanics, and females in proportion to their available
7-3 numbers in the civilian labor force.
7-4 (c) The legislature finds that state agencies and
7-5 institutions of higher education are not employing Blacks,
7-6 Hispanics, and females in proportion to their available numbers in
7-7 the civilian labor force.
7-8 (d) The Texas Commission on Human Rights reports that the
7-9 number of complaints filed with that commission against state
7-10 agencies and institutions of higher education during the fiscal
7-11 year ending August 31, 1992 was 315 at a cost of $787,500 plus
7-12 $1,890,155 for litigation costs.
7-13 (e) The legislature finds that Whites comprise 64 percent of
7-14 the total civilian labor force in the state and that minorities
7-15 comprise 36 percent of the total civilian labor force in the state
7-16 and of that percentage of minorities, 38 percent are Black and 54
7-17 percent are Hispanic.
7-18 (f) The legislature finds that women comprise 43 percent of
7-19 the total civilian labor force in the state and that men comprise
7-20 57 percent.
7-21 (g) The legislature finds that the following percentages
7-22 represent Blacks, Hispanics, and females within the civilian labor
7-23 force by job category:
7-24 Job Category Black Hispanic Female
7-25 Officials/Administration 5% 8% 26%
7-26 Professional 7% 7% 44%
7-27 Technical 13% 14% 41%
8-1 Protective Services 13% 18% 15%
8-2 Para-Professionals 25% 30% 55%
8-3 Administrative Support 16% 17% 84%
8-4 Skilled Craft 11% 20% 8%
8-5 Service/Maintenance 19% 32% 27%
8-6 SECTION 5. Subchapter C, Chapter 21, Labor Code, is amended
8-7 by adding Section 21.1211 to read as follows:
8-8 Sec. 21.1211. WORKFORCE DIVERSITY PROGRAMS OF STATE AGENCIES
8-9 AND INSTITUTIONS OF HIGHER EDUCATION. (a) In accordance with
8-10 Section 21.003(a)(9), each state agency and public institution and
8-11 system of higher education shall develop and implement personnel
8-12 policies that comply with this chapter, including personnel
8-13 selection procedures that incorporate a workforce diversity
8-14 program.
8-15 (b) Each state agency and public institution and system of
8-16 higher education subject to Section 21.003(a)(9) shall expend money
8-17 appropriated by the General Appropriations Act to reimburse the
8-18 commission through an interagency contract for reasonable and
8-19 necessary costs and travel expenses to provide technical assistance
8-20 and review all personnel policies and procedures to ensure
8-21 compliance with this chapter.
8-22 (c) Actual cost and travel reimbursements to the commission
8-23 shall be determined by the General Services Commission in an amount
8-24 not to exceed $5,000 for each state agency or public institution or
8-25 system of higher education.
8-26 (d) A state agency or public institution or system of higher
8-27 education that fails to comply with this section is subject to a
9-1 penalty not to exceed $5,000 from money appropriated by the General
9-2 Appropriations Act. After a hearing, if the commission determines
9-3 that any state agency or public institution or system of higher
9-4 education is not in compliance with this section, the commission
9-5 shall so certify to the comptroller, the governor, and the
9-6 Legislative Budget Board. On confirmation by the Legislative
9-7 Budget Board that the penalty imposed by this subsection should be
9-8 assessed, the comptroller shall transfer to the commission, from
9-9 funds appropriated to the agency, institution, or system, an amount
9-10 equal to the actual costs incurred by the commission in reviewing
9-11 agency personnel policies and procedures and shall transfer to the
9-12 general revenue fund an amount equal to the difference between
9-13 $5,000 and the amount transferred to the commission under this
9-14 subsection.
9-15 (e) Review of all personnel policies and procedures shall be
9-16 performed at state agencies and institutions within each functional
9-17 category of state government as described by the General
9-18 Appropriations Act on a six-year cycle. Agencies and institutions
9-19 within each functional category shall be defined by the Legislative
9-20 Budget Board.
9-21 SECTION 6. Notwithstanding Section 21.1211, Labor Code, as
9-22 added by this Act, agencies and institutions in the following
9-23 categories described by the General Appropriations Act shall review
9-24 their personnel policies and procedures according to the following
9-25 schedule:
9-26 (1) for the 1998-1999 biennium, agencies of general
9-27 government, natural resources, other than the Parks and Wildlife
10-1 Department, and business and economic development, other than the
10-2 Texas Department of Transportation;
10-3 (2) for the 2000-2001 biennium, agencies of education,
10-4 other than public community or junior colleges, public safety and
10-5 criminal justice, and the judiciary; and
10-6 (3) for the 2002-2003 biennium, agencies of health and
10-7 human services, regulation, the Parks and Wildlife Department, and
10-8 the Texas Department of Transportation.
10-9 SECTION 7. Subchapter B, Chapter 2161, Government Code, is
10-10 amended by adding Section 2161.065 to read as follows:
10-11 Sec. 2161.065. LEGISLATIVE DETERMINATION; RULES. (a) The
10-12 legislature determines that any qualified business should have
10-13 access to compete for business from the state.
10-14 (b) The commission shall adopt rules based on the disparity
10-15 study prepared under Section 101, Article V, Chapter 1051, Acts of
10-16 the 73rd Legislature, Regular Session, 1993 (the General
10-17 Appropriations Act). Each state agency and institution of higher
10-18 education shall adopt the commission rules and may adopt
10-19 supplemental rules that are consistent with the commission rules
10-20 and that are based on the disparity study.
10-21 SECTION 8. Subchapter C, Chapter 2161, Government Code, is
10-22 amended by adding Section 2161.1241 to read as follows:
10-23 Sec. 2161.1241. INFORMATION IN PROGRESS REPORT. (a) Each
10-24 state agency and institution of higher education shall report to
10-25 the commission the following information, classified by group
10-26 status as described by Section 2161.001(3):
10-27 (1) the total dollar amount of purchases and payments
11-1 made under contracts awarded to historically underutilized
11-2 businesses;
11-3 (2) the number of businesses participating in state
11-4 bond issuances, if applicable;
11-5 (3) the number of businesses used in acquiring,
11-6 constructing, or equipping state facilities or operating state
11-7 programs with funds appropriated by the General Appropriations Act;
11-8 and
11-9 (4) the number of historically underutilized
11-10 businesses submitting bids or proposals for the acquisition,
11-11 construction, equipping, or operational implementation of state
11-12 facilities or programs.
11-13 (b) Each state agency and institution of higher education
11-14 shall report to the commission and the comptroller all non-treasury
11-15 funds spent with historically underutilized businesses in
11-16 accordance with the reporting otherwise required by this chapter.
11-17 SECTION 9. Subchapter D, Chapter 2161, Government Code, is
11-18 amended by adding Section 2161.184 to read as follows:
11-19 Sec. 2161.184. STATE AGENCY GOAL. Each state agency and
11-20 institution of higher education shall make a good-faith effort to
11-21 increase purchases and contract awards to historically
11-22 underutilized businesses based on the results of the disparity
11-23 study prepared under Section 101, Article V, Chapter 1051, Acts of
11-24 the 73rd Legislature, Regular Session, 1993 (the General
11-25 Appropriations Act), and on the rules adopted by the commission
11-26 under Section 2161.065.
11-27 SECTION 10. Chapter 2161, Government Code, is amended by
12-1 adding Subchapter F to read as follows:
12-2 SUBCHAPTER F. LOCAL PROGRAMS
12-3 Sec. 2161.301. LOCAL PROGRAMS. (a) A political subdivision
12-4 of the state that receives state funds may establish a program to
12-5 increase the participation of historically underutilized businesses
12-6 as contractors or subcontractors under contracts with the political
12-7 subdivision. To the extent permitted under the United States
12-8 Constitution, the governing body of the political subdivision may
12-9 develop and implement a program under this section based on any
12-10 evidence, including an independent study.
12-11 SECTION 11. Chapter 321, Government Code, is amended by
12-12 adding Section 321.022 to read as follows:
12-13 Sec. 321.022. COMPLIANCE WITH HISTORICALLY UNDERUTILIZED
12-14 BUSINESSES LAW. (a) The state auditor shall report to the General
12-15 Services Commission a state agency that is not complying with
12-16 Section 2161.123. In determining whether an agency is making a
12-17 good-faith effort to comply, the state auditor shall consider
12-18 whether the agency has adopted rules and procedures governing the
12-19 agency's historically underutilized business contract awards in
12-20 accordance with the commission goals, used the commission's list
12-21 and other sources to identify historically underutilized businesses
12-22 that can and are available to meet agency needs, and made marketing
12-23 and outreach efforts to historically underutilized businesses.
12-24 (b) The state auditor shall, in cooperation with the General
12-25 Services Commission, develop procedures to periodically monitor
12-26 compliance by state agencies with Section 2161.123. If an agency
12-27 is found by the state auditor not to be in compliance, the
13-1 commission shall assist the agency in complying. However, if the
13-2 agency does not achieve compliance within 12 months of the date of
13-3 the state auditor's determination, the Legislative Budget Board may
13-4 revoke purchasing authority that the General Services Commission
13-5 delegated to the agency under Section 2155.131 or 2155.133.
13-6 (c) If the Legislative Budget Board revokes an agency's
13-7 delegated purchasing authority under this section, the comptroller
13-8 may consider that fact in requiring a transfer from the agency's
13-9 appropriated funds to the General Services Commission an amount
13-10 equal to the cost the commission will incur, as determined by the
13-11 Legislative Budget Board, in performing the functions formerly
13-12 delegated to the agency.
13-13 SECTION 12. Chapter 325, Government Code, is amended by
13-14 adding Section 325.0111 to read as follows:
13-15 Sec. 325.0111. COMPLIANCE WITH HISTORICALLY UNDERUTILIZED
13-16 BUSINESSES LAW. When determining whether a public need exists for
13-17 the continuation of a state agency or its advisory committees or
13-18 for the performance of the functions of the agency or its advisory
13-19 committees, the commission shall consider the extent to which the
13-20 agency has complied with requirements of state law or state agency
13-21 rules regarding purchasing goals and programs for historically
13-22 underutilized businesses.
13-23 SECTION 13. Subtitle A, Title 6, Government Code, is amended
13-24 by adding Chapter 618 to read as follows:
13-25 CHAPTER 618. BOARD MEMBER DIVERSITY
13-26 Sec. 618.001. BOARD MEMBER DIVERSITY. An executive or
13-27 judicial branch agency or institution that is authorized by the
14-1 Texas Constitution or statute to appoint members of a board,
14-2 commission, or advisory body shall attempt to make the appointments
14-3 in a manner that represents the gender composition, minority
14-4 populations, and geographic regions of the state. In this section,
14-5 "minority populations" include African Americans, Native Americans,
14-6 Asian Americans, and Hispanic Americans.
14-7 SECTION 14. This Act takes effect September 1, 1997.
14-8 SECTION 15. The importance of this legislation and the
14-9 crowded condition of the calendars in both houses create an
14-10 emergency and an imperative public necessity that the
14-11 constitutional rule requiring bills to be read on three several
14-12 days in each house be suspended, and this rule is hereby suspended.