78R5086 MCK-D
By: Pena H.B. No. 2028
A BILL TO BE ENTITLED
AN ACT
relating to protecting public employees who refuse to perform an
illegal act; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 6, Government Code, is amended
by adding Chapter 619 to read as follows:
CHAPTER 619. PROTECTION FOR REFUSAL TO PERFORM
ILLEGAL ACT
Sec. 619.001. DEFINITIONS. In this chapter:
(1) "Law" means:
(A) a state or federal statute;
(B) an ordinance of a local governmental entity;
or
(C) a rule adopted under a statute or ordinance.
(2) "Local governmental entity" means a political
subdivision of the state, including a:
(A) county;
(B) municipality;
(C) public school district; or
(D) special-purpose district or authority.
(3) "Personnel action" means an action that affects a
public employee's compensation, promotion, demotion, transfer,
work assignment, or performance evaluation.
(4) "Public employee" means an employee or appointed
officer other than an independent contractor who is paid to perform
services for a state or local governmental entity.
(5) "State governmental entity" means:
(A) a board, commission, department, office, or
other agency in the executive branch of state government, created
under the constitution or a statute of the state, including an
institution of higher education as defined by Section 61.003,
Education Code;
(B) the legislature or a legislative agency; or
(C) the Texas Supreme Court, the Texas Court of
Criminal Appeals, a court of appeals, a state judicial agency, or
the State Bar of Texas.
Sec. 619.002. RETALIATION PROHIBITED. A state or local
governmental entity may not suspend or terminate the employment of,
or take other adverse personnel action against, a public employee
who refuses to perform an illegal act.
Sec. 619.003. RELIEF AVAILABLE TO PUBLIC EMPLOYEE. (a) A
public employee whose employment is suspended or terminated or who
is subjected to an adverse personnel action in violation of Section
619.002 is entitled to sue for:
(1) injunctive relief;
(2) actual damages;
(3) court costs; and
(4) reasonable attorney's fees.
(b) In addition to relief under Subsection (a), a public
employee whose employment is suspended or terminated in violation
of this chapter is entitled to:
(1) reinstatement to the employee's former position or
an equivalent position;
(2) compensation for wages lost during the period of
suspension or termination; and
(3) reinstatement of fringe benefits and seniority
rights lost because of the suspension or termination.
(c) In a suit under this chapter against an employing state
or local governmental entity, a public employee may not recover
compensatory damages for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of
life, and other nonpecuniary losses in an amount that exceeds:
(1) $50,000, if the employing state or local
governmental entity has fewer than 101 employees in each of 20 or
more calendar weeks in the calendar year in which the suit is filed
or in the preceding year;
(2) $100,000, if the employing state or local
governmental entity has more than 100 and fewer than 201 employees
in each of 20 or more calendar weeks in the calendar year in which
the suit is filed or in the preceding year;
(3) $200,000, if the employing state or local
governmental entity has more than 200 and fewer than 501 employees
in each of 20 or more calendar weeks in the calendar year in which
the suit is filed or in the preceding year; and
(4) $250,000, if the employing state or local
governmental entity has more than 500 employees in each of 20 or
more calendar weeks in the calendar year in which the suit is filed
or in the preceding year.
(d) If more than one subdivision of Subsection (c) applies
to an employing state or local governmental entity, the amount of
monetary damages that may be recovered from the entity in a suit
brought under this chapter is governed by the applicable provision
that provides the highest damage award.
Sec. 619.004. WAIVER OF IMMUNITY. A public employee who
alleges a violation of this chapter may sue the employing state or
local governmental entity for the relief provided by this chapter.
Sovereign immunity is waived and abolished to the extent of
liability for the relief allowed under this chapter for a violation
of this chapter.
Sec. 619.005. BURDEN OF PROOF; PRESUMPTION; AFFIRMATIVE
DEFENSE. (a) A public employee who sues under this chapter has the
burden of proof, except that if the suspension or termination of, or
adverse personnel action against, a public employee occurs not
later than the 90th day after the date on which the employee refuses
to perform an illegal act, the suspension, termination, or adverse
personnel action is presumed, subject to rebuttal, to be because of
the employee's refusal.
(b) It is an affirmative defense to a suit under this
chapter that the employing state or local governmental entity would
have taken the action against the employee that forms the basis of
the suit based solely on information, observation, or evidence that
is not related to the fact that the employee refused to perform an
illegal act.
Sec. 619.006. LIMITATION PERIOD. Except as provided by
Section 619.007, a public employee who seeks relief under this
chapter must sue not later than the 90th day after the date on which
the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable
diligence.
Sec. 619.007. USE OF GRIEVANCE OR APPEAL PROCEDURES. (a) A
public employee must initiate action under the grievance or appeal
procedures of the employing state or local governmental entity
relating to suspension or termination of employment or adverse
personnel action before suing under this chapter.
(b) The employee must invoke the applicable grievance or
appeal procedures not later than the 90th day after the date on
which the alleged violation of this chapter:
(1) occurred; or
(2) was discovered by the employee through reasonable
diligence.
(c) Time used by the employee in acting under the grievance
or appeal procedures is excluded, except as provided by Subsection
(d), from the period established by Section 619.006.
(d) If a final decision is not rendered before the 61st day
after the date procedures are initiated under Subsection (a), the
employee may elect to:
(1) exhaust the applicable procedures under
Subsection (a), in which event the employee must sue not later than
the 30th day after the date those procedures are exhausted to obtain
relief under this chapter; or
(2) terminate procedures under Subsection (a), in
which event the employee must sue within the time remaining under
Section 619.006 to obtain relief under this chapter.
Sec. 619.008. WHERE SUIT BROUGHT. (a) A public employee of
a state governmental entity may sue under this chapter in a district
court of the county in which the cause of action arises or in a
district court of Travis County.
(b) A public employee of a local governmental entity may sue
under this chapter in a district court of the county in which the
cause of action arises or in a district court of any county in the
same geographic area that has established with the county in which
the cause of action arises a council of governments or other
regional commission under Chapter 391, Local Government Code.
Sec. 619.009. CIVIL PENALTY. (a) A supervisor who in
violation of this chapter suspends or terminates the employment of
a public employee or takes an adverse personnel action against the
employee is liable for a civil penalty not to exceed $15,000.
(b) The attorney general or appropriate prosecuting
attorney may sue to collect a civil penalty under this section.
(c) A civil penalty collected under this section shall be
deposited in the state treasury.
(d) A civil penalty assessed under this section shall be
paid by the supervisor and may not be paid by the employing
governmental entity.
(e) The personal liability of a supervisor or other
individual under this chapter is limited to the civil penalty that
may be assessed under this section.
Sec. 619.010. NOTICE TO EMPLOYEES. (a) A state or local
governmental entity shall inform its employees of their rights
under this chapter by posting a sign in a prominent location in the
workplace.
(b) The attorney general shall prescribe the design and
content of the sign required by this section. The sign may be
combined with the sign required under Section 554.009.
Sec. 619.011. AUDIT OF STATE GOVERNMENTAL ENTITY AFTER
SUIT. (a) At the conclusion of a suit that is brought under this
chapter against a state governmental entity subject to audit under
Section 321.013 and in which the entity is required to pay $10,000
or more under the terms of a settlement agreement or final judgment,
the attorney general shall provide to the state auditor's office a
brief memorandum describing the facts and disposition of the suit.
(b) Not later than the 90th day after the date on which the
state auditor's office receives the memorandum required by
Subsection (a), the auditor may audit or investigate the state
governmental entity to determine any changes necessary to correct
the problems that gave rise to the suit and shall recommend
necessary changes to the Legislative Audit Committee, the
Legislative Budget Board, and the governing board or chief
executive officer of the entity involved. In conducting the audit
or investigation, the auditor shall have access to all records
pertaining to the suit.
SECTION 2. The change in law made by this Act applies only
to a suspension of, termination of, or other adverse personnel
action taken against a public employee that occurs on or after the
effective date of this Act.
SECTION 3. This Act takes effect September 1, 2003.