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.