HBA-DMD H.B. 868 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 868 By: Wilson State Affairs 4/27/1999 Introduced BACKGROUND AND PURPOSE The purpose of this bill is to address the problem of hate crimes in the State of Texas. H.B. 868 prohibits a person from engaging in, or encouraging another person to engage in, a hate crime or practice. This bill requires the Commission on Human Rights (commission) to receive, investigate, seek to conciliate, and act on complaints that allege violations. This bill also requires the commission to investigate complaints of alleged hate crimes and practices. It requires the commission to dismiss the complaint if the commission determines that there is not reasonable cause to believe that a hate crime or practice has occurred or is about to occur. In addition, this bill authorizes the commission to assess a civil penalty against the respondent. H.B. 868 requires the attorney general to sue in order to recover a civil penalty, provided that the commission requests such action be taken. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Commission on Human Rights in SECTION 1 (Sections 462.102 and 462.104, Government Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle E, Title 4, Government Code, by adding Chapter 462, as follows: CHAPTER 462. TEXAS HUMAN RIGHTS PROTECTION ACT SUBCHAPTER A. GENERAL PROVISIONS Sec. 462.001. SHORT TITLE. Authorizes this chapter to be cited as the Texas Human Rights Protection Act. Sec. 462.002. PURPOSES; FINDING. Sets forth legislative findings and purpose of this bill. Sec. 462.003. DEFINITIONS. Defines "aggrieved person," "commission," "complainant," "conciliation," "conciliation agreement," "harass," "hate crime or practice," and "respondent." Sec. 462.004. CONSTRUCTION OF CHAPTER. Prohibits the statutory expansion of civil remedies or theories of recovery created by this chapter beyond their express statutory terms. SUBCHAPTER B. HATE CRIMES AND PRACTICES PROHIBITED Sec. 462.051.PROHIBITED CONDUCT. (a) Prohibits a person from engaging in, or encouraging another person to engage in, a hate crime or practice. (b) Prohibits a person, regardless of whether a person is acting under color of law, by force or threat of force, from intentionally harassing, interfering with, or attempting to harass or attempting to interfere with certain persons. (c) Prohibits a person, regardless of whether a person is acting under color of law, by force or threat of force, from intentionally harassing, interfering with, or attempting to harass or attempting to interfere with a person, including a member, employee, or agent of the commission who opposes a hate crime or practice; files a complaint with the commission under this chapter; or testifies, assists, or participates in any manner in an investigation or proceeding under this chapter. SUBCHAPTER C. ADMINISTRATIVE PROVISIONS Sec. 462.101. COMMISSION ON HUMAN RIGHTS. Requires the Commission on Human Rights (commission) to administer this chapter. Sec. 462.102. RULES. Authorizes the commission to adopt rules necessary to implement this chapter. Sec. 462.103. COMPLAINTS. Requires the commission to receive, investigate, seek to conciliate, and act on complaints that alleges violations of this chapter, as provided by Subchapter D. Sec. 462.104. DELEGATION OF AUTHORITY. Authorizes the commission, by rule, to extend authorization to the executive director of the commission so that the executive director can exercise the commission's powers or perform the commission's duties under this chapter. Sec. 462.105. REPORTS AND STUDIES. Requires the commission to publish a written report, at least annually, recommending legislative or other action to carry out the purposes of this chapter. Requires the commission to develop studies relating to the nature and extent of hate crimes or practices in this state and authorizes the commission to recommend to the legislature the inclusion of additional protected classes. Sec. 462.106. COOPERATION WITH OTHER ENTITIES. Requires the commission to cooperate with and authorizes the commission to provide technical and other assistance to federal, state, local, and other public or private entities that are designing or operating programs to prevent or eliminate hate crimes or practices. Sec. 462.107. SUBPOENAS AND DISCOVERY. Authorizes the commission to issue subpoenas and order discovery in investigations and hearings under this chapter. Authorizes subpoenas and discovery to be ordered to the same extent and be subject to the same limitations as subpoenas and discovery in a civil action in district court. Sec. 462.108. GIFTS AND GRANTS. Authorizes the commission to accept gifts, grants, or other payments from any public or private source for administering this chapter. SUBCHAPTER D. ADMINISTRATIVE ENFORCEMENT Sec. 462.151. COMPLAINT. Requires the commission to investigate complaints of alleged hate crimes and practices. Provides that a complaint must be in writing, under oath, and in the form prescribed by the commission. Authorizes an aggrieved person to file a complaint with the commission alleging a hate crime or practice and authorizes the commission to file a complaint on behalf of an aggrieved person. Provides that a complaint must be filed on or before the first anniversary of the alleged hate crime or practice occurs or ends, whichever is later. Authorizes a complaint to be amended at any time. Requires the commission, upon the filing of the complaint, to give the aggrieved person notice that the complaint has been received; to advise the aggrieved person of the time limits and their choice of forums under this chapter; and not later than 20 days after the complaint is filed or the identification of an additional or substitute respondent under Section 462.154, serve on each respondent a notice identifying the alleged hate crime or practice and advising the respondent of the procedural rights and obligations of a respondent under this chapter and a copy of the original complaint. Sec. 462.152. ANSWER. Authorizes a respondent to file an answer to the complaint not later than 10 days after receiving the notice and copy of the complaint under Section 462.151. Provides that the answer must be in writing, under oath, and in the form prescribed by the commission. Authorizes an answer to be amended at any time. Sets forth that the filing of an answer does not stop or delay the investigation of a complaint. Sec. 462.153. INVESTIGATION. (a) Requires the commission to investigate all complaints and complete the investigation not later than 100 days after the complaint is filed, except as provided by Subsections (b) and (c). (b) Requires the commission to dispose of all administrative proceedings that relate to the investigation not later than the first anniversary after the complaint is filed, if the commission is unable to complete the investigation within the 100-day period under Subsection (a). (c) Requires the commission to notify the complainant and the respondent in writing of the commission's inability to complete an investigation within the time periods prescribed by Subsections (a) and (b), as well as reasons for the delay. Sec. 462.154. ADDITIONAL OR SUBSTITUTE RESPONDENT. Authorizes the commission to amend the complaint to include a person who is not named in the complaint, as an additional or substitute respondent if during the investigation the commission determines that the person should be accused of a hate crime or practice. Requires the commission to include in a notice to a respondent included in the complaint reasons for the determination that the person is properly included as a respondent, in addition to the information required in the notice under Section 462.151. Sec. 462.155. CONCILIATION. (a) Requires the commission, to the extent feasible, to engage in conciliation with respect to the complaint, during the period beginning with the filing of a complaint and ending with the filing of a charge or a dismissal by the commission. (b) Provides that a conciliation agreement between a respondent and the complainant is subject to commission approval. (c) Authorizes a conciliation agreement to provide for binding arbitration or another method of dispute resolution. Authorizes dispute resolution that results from a conciliation agreement to authorize appropriate relief, including monetary relief. (d) Sets forth that a conciliation agreement is public information unless the complainant and respondent agree that it is to be kept confidential and unless the commission determines that disclosure is not necessary to further the purposes of this chapter. (e) Prohibits a statement that was made or action taken within the conciliation from being made public or used as evidence in a subsequent proceeding under this chapter, without the written consent of the person who made the statement or took the action. Sec. 462.156. TEMPORARY OR PRELIMINARY RELIEF. (a) Authorizes the commission to give authorization to a civil action for temporary or preliminary relief pending the final disposition of a complaint provided that the commission concludes after the filing of the complaint that prompt judicial action is necessary to carry out the purposes of this chapter. (b) Requires the attorney general to promptly file the action upon receiving the commission's authorization. (c) Provides that a temporary restraining order or other order granting preliminary or temporary relief under this section is governed by the applicable Texas Rules of Civil Procedure. (d) Sets forth that the filing of a civil action under this section does not affect the initiation or continuation of administrative proceedings under Section 462.201. Sec. 462.157. INVESTIGATIVE REPORT. (a) Requires the commission to prepare a final investigative report that includes the names of each witness and the date of each contact with each witness; a summary of correspondence and other contracts with the aggrieved person and the respondent showing the dates of the correspondence and contacts; a summary description of other pertinent records; a summary of witness statements; and answers to interrogatories. (b) Authorizes a final report under this section to be amended if additional evidence is discovered. (c) Authorizes the names of witnesses to be kept confidential unless disclosure is required to prosecute the complaint. Sec. 462.158. REASONABLE CAUSE DETERMINATION. (a) Requires the commission to determine from the facts whether reasonable cause exists to believe that a hate crime or practice has occurred or is about to occur. (b) Requires the commission to determine whether reasonable cause exists not later than 100 days after the complaint is filed unless the commission finds that making the determination is impracticable or approves a conciliation agreement relating to the complaint. (c) Requires the commission, upon finding that making the determination is impracticable, to give the reasons for the delay in writing to the complainant and the respondent. (d) Requires the commission, except as provided by Section 462.159, to immediately issue a charge on behalf of the aggrieved person if the commission determines that reasonable cause exists to believe that a hate crime or practice has occurred or is about to occur. Sec. 462.159. CHARGE. (a) Provides that a charge issued on behalf of the aggrieved person must include a short and plain statement of facts that the commission can reference when determining whether there is reasonable cause to believe that a hate crime has occurred or is about to occur; must be based on the final investigative report; and is not limited to the facts or grounds alleged in the complaint. (b) Requires the commission, not later than 20 days after the commission issues a charge, to send a copy of the charge along with information concerning the option of having the claims asserted in the charge decided by civil action, to each respondent and each aggrieved person on whose behalf the complaint was filed. (c) Requires the commission to send a notice of the opportunity for an administrative hearing when sending a charge to the respondent. Sec. 462.160. DISMISSAL. Requires the commission to dismiss the complaint if the commission determines that there is not reasonable cause to believe that a hate crime or practice has occurred or is about to occur. Requires the commission to disclose to the public each decision of a dismissal. Sec. 462.161. PENDING CIVIL TRIAL. Prohibits the commission from issuing a charge that alleges a hate crime or practice after the commencing of a trial of a civil action that was initiated by the aggrieved party under federal or state law, in order to seek relief with respect to that hate crime or practice. Sec. 462.162. ELECTION OF JUDICIAL DETERMINATION. (a) Authorizes a complainant, a respondent, or an aggrieved person on whose behalf a complaint was filed to elect to have the claims asserted in the charge to be decided in a civil action under Section 462.251 or 462.301. (b) Provides that the election must be made not more than 20 days after the person who has the election receives a copy of the charge and information about the option of having the charges decided by civil action, or in the case of a commission filing on behalf of an aggrieved person, not more than 20 days after the charge is issued. (c) Requires the person who is electing to have the charges decided by civil action to give notice to the commission and to all other complainants and respondents to whom the charge relates. (d) Sets forth that venue for an action is in a district court in Travis County, Texas, or in the county in which the alleged hate crime or practice occurred. SUBCHAPTER E. ADMINISTRATIVE HEARINGS Sec. 462.201. ADMINISTRATIVE HEARING. (a) Requires the commission to provide for a hearing on the charge, if the election for the charges to be decided by civil action has not been made in a timely manner. (b) Sets forth that Chapter 2001 (Administrative Procedure), governs a hearing and an appeal of a hearing, except as provided by Subsection (c). (c) Prohibits an administrative hearing on an alleged hate crime or practice from continuing after the commencing of a trial of a civil action initiated by the aggrieved person. Sec. 462.202. ADMINISTRATIVE PENALTIES. (a) Authorizes the commission to order the appropriate relief, upon deciding that the respondent has engaged in or is about to engage in a hate crime or practice, that includes compensatory and punitive damages, reasonable attorney's fees, court costs, and other injunctive or equitable relief. (b) Authorizes the commission to assess a civil penalty against the respondent, to vindicate the public's interest, in the amount not to exceed $25,000 or ,except as provided by Subsection (c), $50,000 when the respondent has been found to have committed a like offense within a five-year period before the date the charges were filed; or $100,000 when the respondent has been found to have committed a like offense two or more times within a seven-year period before the date the charges were filed. (c) Sets forth that if the acts that are the object of the charge constitute a hate crime or practice, and have been previously committed by the same individual, the civil penalties in Subsection (b) are authorized to be imposed without regard to the period of time within another hate crime or practice has occurred. (d) Requires the attorney general to sue in order to recover a civil penalty due under this section, provided that the commission requests such action be taken. (e) Authorizes the commission to award the estate of a victim who has died as a result of a hate crime or practice any damages, fees, costs, or equitable relief authorized by this section. (f) Requires any additional respondent to be jointly liable for any civil penalties, damages, attorney's fees, costs, and other relief that is authorized by this section. Sec. 462.203. LICENSED OR REGULATED BUSINESS. Requires the commission, provided that the commission has issued an order relating to a hate crime or practice that occurs in the course of a business that is subject to licensing or regulation by a governmental unit, to send copies of the findings and the order to the governmental unit and recommend to the governmental unit an appropriate disciplinary action no later than 30 days after the order is issued. Sec. 462.204. ORDER IN PRECEDING FIVE YEARS. Requires the commission to send a copy of each order to the attorney general if the commission has issued an order against a respondent to whom another order was issued within the preceding five years under Section 462.202 (Administrative Penalties). SUBCHAPTER F. ENFORCEMENT BY ATTORNEY GENERAL Sec. 462.251. ATTORNEY GENERAL ACTION FOR ENFORCEMENT. (a) Requires the commission to give its authorization and the attorney general to file a civil action that seeks relief on behalf of the aggrieved person in a district court not later than 30 days after the election is made to seek a judicial determination. (b) Sets forth that the venue for an action that was filed by an aggrieved person is in the county in which the alleged hate crime or practice occurred or is about to occur. Establishes that the venue for a complaint filed by the commission is in Travis County, Texas. (c) Authorizes an aggrieved person to intervene in the action. (d) Authorizes the court to grant any relief that a court is authorized to grant in a civil action under Subchapter G, provided that the court finds that a hate crime or practice has occurred or is about to occur. (e) Prohibits the court from finding the commission liable for attorney's fees under this chapter. (f) Prohibits the court from awarding monetary relief to the aggrieved person who does not intervene in the civil action if that aggrieved person has not complied with discovery orders entered by the court. (g) Authorizes the commission to award the estate of a victim who has died as a result of a hate crime or practice any damages, fees, costs, or equitable relief that is authorized by this section. Sec. 462.252. PATTERN OR PRACTICE CASE. (a) Authorizes the attorney general, upon a request by the commission, to file a civil action in district court seeking appropriate relief if the commission has reasonable cause to believe that a person is engaged in a pattern or practice of resistance to the full enjoyment of a right granted under this chapter or a person has been denied a right granted by this chapter and that denial raises an issue of general public importance. (b) Authorizes the court to assess a civil penalty against the respondent in order to vindicate the public's interest in an amount that does not exceed $25,000 or, except as provided by Subsection (c), the amount of $50,000 if the respondent has been found by order of the commission or a court to have committed one other hate crime or practice during the five-year period ending on the date of the filing of the charges; or $100,000 if the respondent has been found by the commission or a court to have committed two or more hate crimes or practices during the seven-year period ending on the date of filing of the charge. (c) Authorizes the civil penalties in Subsection (b) to be imposed without regard to the period of time within which any other hate crime or practice occurred provided that the acts are committed by the same individual who has previously been found to have committed acts constituting a hate crime or practice. Sec. 462.253. SUBPOENA ENFORCEMENT. Authorizes the attorney general, acting on behalf of the commission or another party at whose request a subpoena is issued under this chapter, to enforce the subpoena in appropriate proceedings in a district court in Travis County, Texas. Sec. 462.254. CONCILIATION AGREEMENT ENFORCEMENT. Authorizes the attorney general, acting on behalf of the commission or another party at whose request a conciliation agreement is issued under this chapter, to enforce the conciliation agreement in appropriate proceedings in a district court in Travis County, Texas. SUBCHAPTER G. ENFORCEMENT BY PRIVATE PERSONS Sec. 462.301. CIVIL ACTION. (a) Authorizes an aggrieved person to file a civil action in district court, not later than two years after the later of the occurrence or the termination of an alleged hate crime or practice or the breach of a conciliation agreement entered under this chapter, whichever occurs last, to obtain appropriate relief, including temporary injunctive relief, with respect to the hate crime or practice or breach. Requires an aggrieved person who alleges a breach of a conciliation agreement to notify the commission in writing not later than seven days before the aggrieved person files suit to enforce the conciliation agreement. (b) Sets forth that the two-year period does not include any time during which an administrative hearing under this chapter is pending with respect to a complaint or charge under this chapter based on the hate crime or practice. Sets forth that this subsection does not apply to actions arising from the breach of a conciliation agreement. (c) Authorizes an aggrieved person to file an action regardless if a complaint has been filed under Section 462.151 and without regard to the status of any complaint filed under that section. (d) Prohibits the aggrieved person from filing an action with respect to the alleged hate crime or practice that forms the basis of the complaint, except to enforce the terms of agreement, if the commission has obtained a conciliation agreement with the consent of an aggrieved person. (e) Prohibits an aggrieved person from filing an action with respect to an alleged hate crime or practice that forms the basis of a charge issued by the commission if the commission has commenced a hearing on the record under this chapter with respect to the charge. (f) Sets forth that the venue for an action under this section is the county in which the alleged hate crime or practice occurred or is about to occur. Sec. 462.302. COURT-APPOINTED ATTORNEY. Authorizes a court to appoint an attorney for a person who alleges a hate crime or practice or against whom a hate crime or practice is alleged. Sec. 462.303. RELIEF GRANTED. (a) Authorizes the court, if upon finding that a hate crime or practice has occurred or is about to occur, to award to the plaintiff compensatory and punitive damages; reasonable attorney's fees; court costs; and a permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in the practice or ordering appropriate affirmative action. (b) Authorizes the commission to award the estate of the victim who dies as a result of a hate crime or practice any damages, fees, costs, or equitable relief authorized by this section. (c) Requires any additional respondent to be jointly liable for any civil penalties, damages, attorney's fees, costs, and other relief that is authorized by this section. Sec. 462.304. INTERVENTION BY ATTORNEY GENERAL. Authorizes the attorney general, upon request by the commission, to intervene in an action under this subchapter if the commission certifies that the case is of general public importance, and authorizes the attorney general to obtain the same relief as is available to the attorney general under Section 462.252(b). Sec. 462.305. PREVAILING PARTY. Authorizes a court in a civil action brought under this chapter or the commission in an administrative hearing under Section 462.201 to award reasonable attorney's fees to the prevailing party and assess court costs against the nonprevailing party. SECTION 2.Makes application of this Act prospective. SECTION 3.Emergency clause. Effective date: upon passage.