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A BILL TO BE ENTITLED
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AN ACT
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relating to a prohibition against the knowing employment of persons |
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not lawfully present in the United States and the suspension of |
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licenses held by certain employers for the knowing employment of |
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those persons. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle B, Title 2, Labor Code, is amended by |
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adding Chapter 53 to read as follows: |
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CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT |
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IN UNITED STATES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 53.001. DEFINITIONS. (a) In this chapter: |
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(1) "Lawful resident alien" means a person who is |
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entitled to lawful residence in the United States under the federal |
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Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.). |
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(2) "Lawful resident verification information" means |
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the documentation required by the United States Department of |
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Homeland Security for completing the employment eligibility |
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verification form commonly referred to as the I-9. Documentation |
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that satisfies the requirements of the Form I-9 at the time of |
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employment is lawful resident verification information. |
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(3) "License" means a license, certificate, |
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registration, permit, or other authorization that: |
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(A) is issued by a licensing authority; |
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(B) is subject before expiration to renewal, |
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suspension, revocation, forfeiture, or termination by a licensing |
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authority; and |
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(C) is required for a person to practice or |
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engage in a particular business, occupation, or profession. |
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(4) "Licensing authority" means a department, |
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commission, board, office, or other agency of the state or a |
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political subdivision of the state that issues or renews a license. |
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(5) "Person not lawfully present" means a person who |
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at the time of employment is neither an alien who is lawfully |
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admitted for permanent residence in the United States under the |
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federal Immigration and Nationality Act (8 U.S.C. Section 1101 et |
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seq.), nor authorized to be employed by that Act or the United |
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States attorney general. |
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(b) The definitions in Chapter 201 apply to this chapter. |
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Sec. 53.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER; |
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EXCEPTION. All licensing authorities are subject to this chapter, |
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except that the commission by rule shall adopt a procedure for a |
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licensing authority to obtain an exemption from the application of |
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this chapter for a license issued by the authority that the |
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commission determines is not related to the operation of a |
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business. |
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Sec. 53.003. RULES. The commission and the comptroller |
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shall adopt rules as necessary for the administration of this |
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chapter. |
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[Sections 53.004-53.050 reserved for expansion] |
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SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON |
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NOT LAWFULLY PRESENT |
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Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF |
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PERSON NOT LAWFULLY PRESENT; AUTHORIZATION FOR LICENSE SUSPENSION. |
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(a) An employer may not knowingly employ a person not lawfully |
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present. |
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(b) An employer who violates Subsection (a) may be subject |
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to the suspension of each license held by the employer as provided |
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by this chapter. |
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Sec. 53.052. EXCEPTIONS. (a) An employer has not violated |
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Section 53.051(a) if: |
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(1) the employer, at least l4 calendar days after the |
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commencement of the employee's employment, requested from the |
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employee and received and documented in the employee's employment |
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record, lawful resident verification information consistent with |
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employer requirements under the federal Immigration Reform and |
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Control Act of 1986 (Pub. L. No. 99-603); and |
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(2) the lawful resident verification information |
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provided by the employee later was determined to be false. |
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(b) An employer has not violated Section 53.051(a) if the |
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employer verified the immigration status of the person at least 14 |
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calendar days after the commencement of the employee's employment |
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through an electronic federal work authorization program operated |
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by the United States Department of Homeland Security to verify |
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information of newly hired employees. |
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[Sections 53.053-53.100 reserved for expansion] |
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SUBCHAPTER C. ADMINISTRATIVE PROVISIONS FOR |
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LICENSE SUSPENSION |
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Sec. 53.101. FINDING BY COMMISSION; REFERRAL TO |
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COMPTROLLER; MEMORANDUM OF UNDERSTANDING. (a) If, after |
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conducting an audit of an employer under Subchapter D, Chapter 213, |
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the commission finds substantial evidence that the employer is |
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operating on a cash-only basis in order to circumvent the |
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requirements of Subtitle A, Title 4, a rule adopted under Subtitle |
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A, Title 4, or another state law requiring the payment of a tax, and |
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that the employer is knowingly employing a person not lawfully |
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present in violation of Section 53.051(a), the commission shall |
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refer the commission's findings to the comptroller. |
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(b) The commission and the comptroller shall adopt a |
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memorandum of understanding to develop and implement procedures for |
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the referral by the commission to the comptroller under Subsection |
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(a). |
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Sec. 53.102. INVESTIGATION BY COMPTROLLER; HEARING. (a) |
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On receipt of a referral from the commission under Section 53.101, |
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the comptroller shall investigate the commission's findings using |
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the comptroller's contested case and hearing procedures in an |
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attempt to verify information regarding the immigration status of |
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the relevant employee or employees of the employer alleged to have |
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violated Section 53.051(a). |
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(b) During an investigation conducted by the comptroller |
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under Subsection (a): |
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(1) the employer alleged to have violated Section |
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53.051(a) shall specify all licenses held by the employer; and |
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(2) the comptroller shall: |
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(A) provide notice regarding the investigation |
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to: |
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(i) the United States Immigration and |
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Customs Enforcement agency of the federal Department of Homeland |
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Security; and |
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(ii) each licensing authority that issued |
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any license held by the employer; and |
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(B) request the United States Immigration and |
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Customs Enforcement agency of the federal Department of Homeland |
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Security to verify, under 8 U.S.C. Section 1373(c), the employment |
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authorization of each relevant employee. |
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(c) The comptroller may make a final determination of |
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whether an employer has committed a violation of Section 53.051(a) |
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only after the comptroller has received verification from the |
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United States Immigration and Customs Enforcement agency of the |
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federal Department of Homeland Security under 8 U.S.C. Section |
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1373(c) regarding the employment authorization of each relevant |
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employee. |
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Sec. 53.103. ORDER FOR TERMINATION OF EMPLOYMENT AND FILING |
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OF AFFIDAVIT. (a) On a final determination by the comptroller that |
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an employer has violated Section 53.051(a), the comptroller shall: |
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(1) issue an order requiring the employer to: |
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(A) terminate the employment of each employee who |
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is a person not legally present; and |
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(B) file with the comptroller, within 10 business |
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days after the date the order is issued, a sworn affidavit stating |
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that the employer has: |
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(i) terminated the employment of each of |
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those employees; |
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(ii) after consulting with each employee |
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who is a person not legally present, requested a secondary or |
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additional verification of employment authorization using an |
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electronic federal work authorization program operated by the |
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United States Department of Homeland Security or I-9 Employment |
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Eligibility Verification Program; or |
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(iii) attempted to terminate the employment |
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of each employee who is a person not legally present and that |
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termination has been challenged in a court; and |
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(2) notify the United States Immigration and Customs |
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Enforcement agency of the federal Department of Homeland Security |
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and the applicable local law enforcement agency of the identity and |
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address, if known, of each employee who is a person not lawfully |
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present. |
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(b) Notwithstanding any other provision of this subchapter, |
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during the pendency of an action taken under Subsection |
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(a)(1)(B)(ii) or (iii): |
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(1) the employer is not required to terminate the |
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employment of any employee determined by the comptroller to be a |
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person not lawfully present; and |
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(2) the comptroller may not order the suspension of |
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any license held by the employer. |
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Sec. 53.104. ORDER OF LICENSE SUSPENSION; NOTICE TO |
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LICENSING AUTHORITIES. (a) Except as provided by Subsection (b), |
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if an employer fails to comply with an order issued under Section |
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53.103, the comptroller shall order the suspension of each license |
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held by the employer until the comptroller finds that the employer |
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has complied with the requirements of Section 53.103. |
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(b) On a final determination by the comptroller that an |
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employer has violated Section 53.051(a) more than one time during a |
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two-year period, the comptroller shall order the suspension of each |
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license held by the employer for a period of at least 30 days. A |
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license suspended under this subsection may not be reinstated until |
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the comptroller finds that the employer has complied with the |
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requirements of Section 53.103. |
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(c) The comptroller shall promptly send to the appropriate |
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licensing authorities a copy of any order issued by the comptroller |
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under this section. |
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(d) The comptroller shall maintain in a prominent location |
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on the comptroller's Internet website a database accessible to the |
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public containing copies of each order issued under this section. |
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[Sections 53.105-53.150 reserved for expansion] |
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SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES |
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Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt |
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from the comptroller of an order suspending a license, a licensing |
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authority shall immediately determine if the authority has issued a |
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license to the person named on the order and, if a license has been |
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issued: |
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(1) record the suspension of the license in the |
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licensing authority's records; |
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(2) report the suspension as appropriate; and |
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(3) demand surrender of the suspended license if |
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required by law for other cases in which a license is suspended. |
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(b) A licensing authority shall implement the terms of the |
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comptroller's final order suspending a license without additional |
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review or hearing. The authority may provide notice as appropriate |
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to the license holder or to others concerned with the license. |
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(c) A licensing authority may not modify, remand, reverse, |
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vacate, or stay an order suspending a license issued under this |
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chapter and may not review, vacate, or reconsider the terms of a |
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final order suspending a license. |
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(d) A person who is the subject of a final order suspending a |
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license is not entitled to a refund for any fee or deposit paid to |
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the licensing authority. |
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(e) A person who continues to engage in the business, |
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occupation, profession, or other licensed activity after the |
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implementation of the order suspending a license by the licensing |
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authority is liable for the same civil and criminal penalties |
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provided for engaging in the licensed activity without a license or |
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while a license is suspended that apply to any other license holder |
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of that licensing authority. |
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(f) A licensing authority is exempt from liability to a |
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license holder for any act authorized under this chapter performed |
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by the authority. |
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(g) Except as provided by this chapter, an order suspending |
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a license does not affect the power of a licensing authority to |
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grant, deny, suspend, revoke, terminate, or renew a license. |
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(h) An order issued under this chapter to suspend a license |
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of a person applies to each license for which the person is eligible |
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issued by the licensing authority subject to the order. The |
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licensing authority may not issue or renew any other license for the |
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person during the suspension period. |
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Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing |
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authority may charge a fee to a person that is the subject of an |
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order suspending a license in an amount sufficient to recover the |
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administrative costs incurred by the authority under this chapter. |
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SECTION 2. Chapter 53, Labor Code, as added by this Act, |
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applies only to a violation that occurs on or after the effective |
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date of this Act. |
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SECTION 3. The Texas Workforce Commission and the |
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comptroller of public accounts shall adopt the rules and memorandum |
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of understanding required by Chapter 53, Labor Code, as added by |
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this Act, as soon as practicable after the effective date of this |
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Act. |
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SECTION 4. This Act takes effect September 1, 2009. |