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.