1-1     By:  Moncrief                                         S.B. No. 1528

 1-2           (In the Senate - Filed March 13, 1997; March 20, 1997, read

 1-3     first time and referred to Committee on Jurisprudence;

 1-4     April 9, 1997, reported favorably, as amended, by the following

 1-5     vote:  Yeas 7, Nays 0; April 9, 1997, sent to printer.)

 1-6     COMMITTEE AMENDMENT NO. 1                               By:  Harris

 1-7     Amend S.B. No. 1528, SECTION 1, page 5, line 48, by adding a new

 1-8     Subsection (d) to Section 2259.052 to read as follows:

 1-9           (d)  This section does not apply to an employer who is

1-10     covered by Chapter 554.

1-11                            A BILL TO BE ENTITLED

1-12                                   AN ACT

1-13     relating to false claims made with certain governmental entities;

1-14     providing a civil penalty.

1-15           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-16           SECTION 1.  Subtitle F, Title 10, Government Code, is amended

1-17     by adding Chapter 2259 to read as follows:

1-18                         CHAPTER 2259.  FALSE CLAIMS

1-19                      SUBCHAPTER A.  GENERAL PROVISIONS

1-20           Sec. 2259.001.  DEFINITIONS.  In this chapter:

1-21                 (1)  "Claim" means a claim for money, property, or

1-22     services made to:

1-23                       (A)  an employee, officer, or agent of a

1-24     governmental entity; or

1-25                       (B)  a government contractor, if a portion of the

1-26     money, property, or services claimed was or is to be provided by a

1-27     governmental entity.

1-28                 (2)  "Government contractor" means a person who

1-29     receives money from a governmental entity to provide goods or a

1-30     service, acting within the course and scope of the person's

1-31     obligation to the governmental entity.  The term includes a

1-32     contractor, grantee, or other recipient of money without regard to

1-33     whether the contractor, grantee, or recipient is under contract to

1-34     the governmental entity.

1-35                 (3)  "Governmental entity" means:

1-36                       (A)  the state;

1-37                       (B)  a local governmental entity;

1-38                       (C)  a board, commission, department, office, or

1-39     other agency in the executive branch of state government, including

1-40     an institution of higher education as defined by Section 61.003,

1-41     Education Code;

1-42                       (D)  the legislature or a legislative agency; or

1-43                       (E)  the supreme court, the court of criminal

1-44     appeals, a court of appeals, or the State Bar of Texas or another

1-45     judicial agency having statewide jurisdiction.

1-46                 (4)  "Local governmental entity" means:

1-47                       (A)  a municipality, county, public school

1-48     district, or special-purpose district or authority; or

1-49                       (B)  a court that receives any part of its

1-50     funding from a municipality or county.

1-51                 (5)  "Managing official" means an appointed or elected

1-52     official responsible for the management or oversight of a

1-53     governmental entity.  In the case of the legislature, the term

1-54     means the speaker of the house of representatives or the lieutenant

1-55     governor.  In the case of a court, the term means any judge or

1-56     justice of the court.

1-57                 (6)  "Prosecuting authority" means the attorney for a

1-58     local governmental entity or another local government official

1-59     charged with investigating, filing, and conducting civil legal

1-60     proceedings on behalf of a local governmental entity.

1-61           Sec. 2259.002.  PROHIBITED ACTS.  A person may not:

1-62                 (1)  present to an officer, employee, or agent of a

1-63     governmental entity or government contractor a false claim for

1-64     payment or approval;

 2-1                 (2)  make or use a false record or statement to obtain

 2-2     payment or approval of a false claim by a governmental entity or

 2-3     government contractor;

 2-4                 (3)  conspire to defraud a governmental entity or

 2-5     government contractor by obtaining the payment or approval of a

 2-6     false claim;

 2-7                 (4)  deliver to a governmental entity or government

 2-8     contractor less property than the amount of property for which the

 2-9     person receives a receipt;

2-10                 (5)  make or deliver a receipt that falsely represents

2-11     the amount of property delivered that is to be used by a

2-12     governmental entity or government contractor;

2-13                 (6)  buy or accept as a pledge of an obligation or debt

2-14     public property from a person who may not sell or pledge the

2-15     property;

2-16                 (7)  make or use a false record or statement to

2-17     conceal, avoid, or decrease an obligation to pay or transmit money

2-18     or property to a governmental entity or government contractor;

2-19                 (8)  accept the benefits from a false claim made by any

2-20     person; or

2-21                 (9)  cause an act described by Subdivisions (1) through

2-22     (8) to be committed by another person.

2-23             (Sections 2259.003-2259.010 reserved for expansion

2-24                   SUBCHAPTER B.  LIABILITY FOR VIOLATIONS

2-25           Sec. 2259.011.  LIABILITY FOR KNOWING VIOLATION.  (a)  A

2-26     court that finds that a person knowingly violated Section 2259.002

2-27     shall award the affected governmental entity:

2-28                 (1)  the actual damages sustained by the governmental

2-29     entity because of the violation;

2-30                 (2)  exemplary damages equal to two times the amount of

2-31     actual damages; and

2-32                 (3)  attorney's fees and costs incurred by the

2-33     governmental entity to recover the damages and penalty.

2-34           (b)  The court may reduce the amount of exemplary damages

2-35     awarded under Subsection (a)(2) to an amount not less than the

2-36     amount of actual damages if the person who knowingly violated

2-37     Section 2259.002:

2-38                 (1)  furnished an official of the governmental entity

2-39     responsible for investigating false claims violations with all

2-40     information known to the person about the violation not later than

2-41     the 30th day after the official requested the information; and

2-42                 (2)  otherwise fully cooperated with any investigation

2-43     by the governmental entity.

2-44           (c)  A person knowingly violates Section 2259.002 if the

2-45     person:

2-46                 (1)  acts with actual knowledge of the facts that

2-47     constitute the violation;

2-48                 (2)  acts in deliberate ignorance or reckless disregard

2-49     of those facts or the truth or falsity of those facts; or

2-50                 (3)  acts without actual knowledge of the facts that

2-51     constitute the violation and, after the violation, learns the facts

2-52     that constitute the violation and fails to take action to mitigate

2-53     or rectify the violation.

2-54           Sec. 2259.012.  CIVIL PENALTY.  In addition to amounts

2-55     awarded under Section 2259.011, the court may award to the affected

2-56     governmental entity a civil penalty of not more than $10,000 for

2-57     each false claim unless the person who knowingly violated Section

2-58     2259.002 cooperated in the investigation as described by Sections

2-59     2259.011(b)(1) and (2).

2-60           Sec. 2259.013.  LIABILITY JOINT AND SEVERAL; PROPORTIONATE

2-61     RESPONSIBILITY INAPPLICABLE.  Liability under this subchapter is

2-62     joint and several for a violation committed by more than one

2-63     person.  Chapter 33, Civil Practice and Remedies Code, does not

2-64     apply to an action brought under this chapter.

2-65           Sec. 2259.014.  EXCEPTIONS.  A court may not award exemplary

2-66     damages and attorney's fees and costs under Section 2259.011 or a

2-67     civil penalty under Section 2259.012 against a person if the total

2-68     actual damages resulting from all violations for which damages are

2-69     being assessed against the person in the case is less than $500.

 3-1           Sec. 2259.015.  DEPOSIT OF MONEY.  (a)  Money collected on

 3-2     behalf of a governmental entity shall be deposited to the credit of

 3-3     the general revenue fund of the state or of the local governmental

 3-4     entity, as appropriate.

 3-5           (b)  If the action is brought in the names of both the state

 3-6     and one or more local governmental entities, the court shall

 3-7     apportion the award of damages, exemplary damages, and any civil

 3-8     penalty among the state and those local entities on the basis of

 3-9     the loss incurred.  Attorney's fees and costs shall be awarded to

3-10     the entity that incurred the fees and costs.

3-11           Sec. 2259.016.  LIMITATIONS.  (a)  Subject to Subsection (b),

3-12     an action under this subchapter must be brought not later than the

3-13     third anniversary of the date on which the violation was discovered

3-14     by:

3-15                 (1)  the attorney general or prosecuting authority; or

3-16                 (2)  a managing official of the affected governmental

3-17     entity, other than a managing official who participated in the

3-18     violation.

3-19           (b)  An action under this subchapter may not be brought after

3-20     the 10th anniversary of the date on which the violation was

3-21     committed.

3-22           Sec. 2259.017.  APPLICATION OF LAW GOVERNING EXEMPLARY

3-23     DAMAGES.  Chapter 41, Civil Practice and Remedies Code, does not

3-24     apply to exemplary damages awarded under Section 2259.011 or to the

3-25     civil penalty awarded under Section 2259.012.

3-26             (Sections 2259.018-2259.020 reserved for expansion

3-27                   SUBCHAPTER C.  ATTORNEY GENERAL ACTION

3-28           Sec. 2259.021.  ATTORNEY GENERAL INVESTIGATION.  (a)  The

3-29     attorney general shall investigate alleged violations of Section

3-30     2259.002 involving state funds.

3-31           (b)  If the attorney general finds that a person has violated

3-32     Section 2259.002, the attorney general may bring an action under

3-33     Subchapter B against the person.

3-34           Sec. 2259.022.  AFFECTED LOCAL GOVERNMENTAL ENTITY.  (a)  If

3-35     the attorney general brings an action under Subchapter B on a claim

3-36     that involves local government funds as well as state funds, the

3-37     attorney general shall provide a copy of the complaint to the

3-38     appropriate prosecuting authority.

3-39           (b)  The attorney general shall mail the complaint to the

3-40     prosecuting authority by certified mail, return receipt requested,

3-41     not later than the date on which the complaint is filed.

3-42           (c)  The prosecuting authority may intervene in an action

3-43     brought by the attorney general under this subchapter not later

3-44     than the 60th day after the date the prosecuting authority receives

3-45     the copy of the complaint.  The court may permit the prosecuting

3-46     authority to intervene after that date for good cause.

3-47             (Sections 2259.023-2259.030 reserved for expansion

3-48           SUBCHAPTER D.  ACTION BROUGHT BY PROSECUTING AUTHORITY

3-49           Sec. 2259.031.  PROSECUTING AUTHORITY INVESTIGATION.  (a)  A

3-50     prosecuting authority shall investigate alleged violations of

3-51     Section 2259.002 involving funds belonging to a local governmental

3-52     entity.

3-53           (b)  If the prosecuting authority finds that a person has

3-54     violated Section 2259.002, the prosecuting authority may bring an

3-55     action under Subchapter B against the person.

3-56           Sec. 2259.032.  ATTORNEY GENERAL.  (a)  If the prosecuting

3-57     authority brings an action under Subchapter B on a claim that

3-58     involves state funds as well as local government funds, the

3-59     prosecuting authority shall provide a copy of the complaint to the

3-60     attorney general.

3-61           (b)  The prosecuting authority shall mail the complaint to

3-62     the attorney general by certified mail, return receipt requested,

3-63     not later than the date on which the complaint is filed.

3-64           (c)  Not later than the 60th day after the date the attorney

3-65     general receives the copy of the complaint, the attorney general

3-66     shall:

3-67                 (1)  notify the court that the attorney general intends

3-68     to proceed with the action and assume primary responsibility for

3-69     conducting the action; or

 4-1                 (2)  notify the court that the attorney general

 4-2     declines to assume primary responsibility for conducting the

 4-3     action.

 4-4           (d)  If the attorney general assumes primary responsibility

 4-5     for conducting the action, the prosecuting authority may continue

 4-6     as a party in the action.  If the attorney general declines to

 4-7     assume primary responsibility for conducting the action, the

 4-8     prosecuting authority may continue to conduct the action.

 4-9             (Sections 2259.033-2259.040 reserved for expansion

4-10                   SUBCHAPTER E.  PRIVATE CAUSE OF ACTION

4-11           Sec. 2259.041.  PRIVATE ACTION.  A person may bring a civil

4-12     action in a district court in this state for a violation of Section

4-13     2259.002 in the name of the person and the name of the state, the

4-14     name of a local government, or both the state and the local

4-15     government, as appropriate.

4-16           Sec. 2259.042.  SERVICE OF PETITION.  (a)  A person who

4-17     brings an action under this subchapter shall serve a copy of the

4-18     petition in the action on:

4-19                 (1)  the attorney general, if the claim involves state

4-20     funds; and

4-21                 (2)  the prosecuting authority of the local government,

4-22     if the claim involves local government funds.

4-23           (b)  Service under this section shall be made in the manner

4-24     provided by Rule 21a, Texas Rules of Civil Procedure.

4-25           Sec. 2259.043.  INTERVENTION.  (a)  In an action involving

4-26     only state funds, the attorney general may assume responsibility

4-27     for prosecution of the action by entering an appearance not later

4-28     than the 60th day after the date the attorney general receives

4-29     service of the petition under Section 2259.042.

4-30           (b)  In an action involving only local government funds, the

4-31     prosecuting authority may assume responsibility for prosecution of

4-32     the action by entering an appearance not later than the 60th day

4-33     after the date the prosecuting authority receives service of the

4-34     petition under Section 2259.042.

4-35           (c)  In an action involving state and local government funds,

4-36     the attorney general may assume primary responsibility for

4-37     prosecution of the action by entering an appearance not later than

4-38     the 60th day after the date the attorney general receives service

4-39     of the petition under Section 2259.042.

4-40           (d)  If the attorney general assumes primary responsibility

4-41     for prosecution of the action under Subsection (c), the prosecuting

4-42     authority may, not later than the 60th day after the date the

4-43     prosecuting authority receives service of the petition under

4-44     Section 2259.042, enter an appearance and proceed as a party in the

4-45     action.

4-46           (e)  If the attorney general does not assume primary

4-47     responsibility for prosecution of the action under Subsection (c),

4-48     the prosecuting authority may assume responsibility for prosecution

4-49     of the action not later than the 30th day after the last date the

4-50     attorney general may enter an appearance under this section.

4-51           Sec. 2259.044.  AWARD TO PRIVATE PARTY IF GOVERNMENT

4-52     PROSECUTES ACTION.  (a)  If the attorney general or the prosecuting

4-53     authority assumes responsibility for prosecution of the action

4-54     under Section 2259.043 and the action is settled or the court

4-55     enters a judgment for the state or the local government, the court

4-56     shall award a reasonable portion of the settlement or judgment to

4-57     the person who commenced the action under this subchapter.

4-58           (b)  In determining the amount to award a person under this

4-59     section, the court shall consider the value of any information or

4-60     evidence disclosed by the person.  An award of 10 percent of the

4-61     settlement or judgment is presumed to be reasonable.

4-62           Sec.  2259.045.  AWARD TO PRIVATE PARTY IF GOVERNMENT DOES

4-63     NOT PROSECUTE ACTION.  (a)  If the attorney general or the

4-64     prosecuting authority does not assume responsibility for

4-65     prosecution of the action under Section 2259.043 and the action is

4-66     settled or the court enters a judgment for the state or the local

4-67     government, the court shall award to the person who prosecuted the

4-68     action under this subchapter:

4-69                 (1)  a reasonable portion of the settlement or

 5-1     judgment; and

 5-2                 (2)  reasonable expenses incurred by the person in

 5-3     prosecuting the action.

 5-4           (b)  In determining the amount to award a person under

 5-5     Subsection (a), the court shall consider the value of the person's

 5-6     prosecution of the action.  An award of 25 percent of the

 5-7     settlement or judgment is presumed to be reasonable.

 5-8             (Sections 2259.046-2259.050 reserved for expansion

 5-9          SUBCHAPTER F.  INTERFERENCE WITH DISCLOSURE BY EMPLOYEES

5-10           Sec. 2259.051.  RIGHT TO DISCLOSE INFORMATION AND PARTICIPATE

5-11     IN ACTION.  A person is entitled to:

5-12                 (1)  disclose information relevant to an alleged

5-13     violation of Section 2259.002 to a governmental entity, a

5-14     prosecuting authority, the attorney general, or a law enforcement

5-15     agency;

5-16                 (2)  assist, at the request of the attorney general or

5-17     a prosecuting authority, in the investigation of an alleged

5-18     violation of Section 2259.002; or

5-19                 (3)  testify or otherwise participate, at the request

5-20     of the attorney general or a prosecuting authority, in the

5-21     furtherance of an action filed or to be filed under this chapter.

5-22           Sec. 2259.052.  PROHIBITED CONDUCT BY EMPLOYER.  (a)  An

5-23     employer may not:

5-24                 (1)  adopt or enforce a rule or policy that prevents an

5-25     employee from exercising the employee's rights under Section

5-26     2259.051; or

5-27                 (2)  discriminate against an employee, including

5-28     discharging, demoting, suspending, threatening, harassing, or

5-29     denying promotion to the employee, because the employee has

5-30     exercised the employee's rights under Section 2259.051.

5-31           (b)  An employer who violates Subsection (a) is liable to the

5-32     employee for:

5-33                 (1)  actual damages, including damages for lost wages;

5-34                 (2)  reinstatement to employment with the seniority

5-35     status, if applicable, that the employee would have had in the

5-36     absence of the discrimination;

5-37                 (3)  exemplary damages equal to not less than two times

5-38     the amount of lost wages; and

5-39                 (4)  attorney's fees and costs.

5-40           (c)  An employee may not recover under Subsection (b) unless:

5-41                 (1)  the employee exercised the employee's rights under

5-42     Section 2259.051; and

5-43                 (2)  to the extent the employee participated in the

5-44     violation of Section 2259.002, the employee participated in

5-45     response to harassment, threats of termination or demotion, or

5-46     other coercion by the employer.

5-47           SECTION 2.  This Act takes effect September 1, 1997, and

5-48     applies only to an action commenced on or after that date without

5-49     regard to whether the act on which the action is based occurred

5-50     before, on, or after that date.  An action commenced before the

5-51     effective date of this Act is governed by the law applicable to the

5-52     action immediately before the effective date of this Act, and that

5-53     law is continued in effect for that purpose.

5-54           SECTION 3.  The importance of this legislation and the

5-55     crowded condition of the calendars in both houses create an

5-56     emergency and an imperative public necessity that the

5-57     constitutional rule requiring bills to be read on three several

5-58     days in each house be suspended, and this rule is hereby suspended.

5-59                                  * * * * *