81R3621 KSD-D

By: Patrick, Dan S.B. No. 2568

A BILL TO BE ENTITLED

AN ACT

relating to a prohibition against the knowing employment of persons not lawfully present in the United States and the suspension of licenses held by certain employers for the knowing employment of those persons.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle B, Title 2, Labor Code, is amended by adding Chapter 53 to read as follows:

CHAPTER 53. EMPLOYMENT OF PERSONS NOT LAWFULLY PRESENT

IN UNITED STATES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001. DEFINITIONS. (a) In this chapter:

(1) "Lawful resident alien" means a person who is entitled to lawful residence in the United States under the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.).

(2) "Lawful resident verification information" means the documentation required by the United States Department of Homeland Security for completing the employment eligibility verification form commonly referred to as the I-9. Documentation that satisfies the requirements of the Form I-9 at the time of employment is lawful resident verification information.

(3) "License" means a license, certificate, registration, permit, or other authorization that:

(A) is issued by a licensing authority;

(B) is subject before expiration to renewal, suspension, revocation, forfeiture, or termination by a licensing authority; and

(C) is required for a person to practice or engage in a particular business, occupation, or profession.

(4) "Licensing authority" means a department, commission, board, office, or other agency of the state or a political subdivision of the state that issues or renews a license.

(5) "Person not lawfully present" means a person who at the time of employment is neither an alien who is lawfully admitted for permanent residence in the United States under the federal Immigration and Nationality Act (8 U.S.C. Section 1101 et seq.), nor authorized to be employed by that Act or the United States attorney general.

(b) The definitions in Chapter 201 apply to this chapter.

Sec. 53.002. LICENSING AUTHORITIES SUBJECT TO CHAPTER; EXCEPTION. All licensing authorities are subject to this chapter, except that the commission by rule shall adopt a procedure for a licensing authority to obtain an exemption from the application of this chapter for a license issued by the authority that the commission determines is not related to the operation of a business.

Sec. 53.003. RULES. The commission and the comptroller shall adopt rules as necessary for the administration of this chapter.

[Sections 53.004-53.050 reserved for expansion]

SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON

NOT LAWFULLY PRESENT

Sec. 53.051. PROHIBITION AGAINST KNOWING EMPLOYMENT OF PERSON NOT LAWFULLY PRESENT; AUTHORIZATION FOR LICENSE SUSPENSION. (a) An employer may not knowingly employ a person not lawfully present.

(b) An employer who violates Subsection (a) may be subject to the suspension of each license held by the employer as provided by this chapter.

Sec. 53.052. EXCEPTIONS. (a) An employer has not violated Section 53.051(a) if:

(1) the employer, at least l4 calendar days after the commencement of the employee's employment, requested from the employee and received and documented in the employee's employment record, lawful resident verification information consistent with employer requirements under the federal Immigration Reform and Control Act of 1986 (Pub. L. No. 99-603); and

(2) the lawful resident verification information provided by the employee later was determined to be false.

(b) An employer has not violated Section 53.051(a) if the employer verified the immigration status of the person at least 14 calendar days after the commencement of the employee's employment through an electronic federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees.

[Sections 53.053-53.100 reserved for expansion]

SUBCHAPTER C. ADMINISTRATIVE PROVISIONS FOR

LICENSE SUSPENSION

Sec. 53.101. FINDING BY COMMISSION; REFERRAL TO COMPTROLLER; MEMORANDUM OF UNDERSTANDING. (a) If, after conducting an audit of an employer under Subchapter D, Chapter 213, the commission finds substantial evidence that the employer is operating on a cash-only basis in order to circumvent the requirements of Subtitle A, Title 4, a rule adopted under Subtitle A, Title 4, or another state law requiring the payment of a tax, and that the employer is knowingly employing a person not lawfully present in violation of Section 53.051(a), the commission shall refer the commission's findings to the comptroller.

(b) The commission and the comptroller shall adopt a memorandum of understanding to develop and implement procedures for the referral by the commission to the comptroller under Subsection (a).

Sec. 53.102. INVESTIGATION BY COMPTROLLER; HEARING. (a) On receipt of a referral from the commission under Section 53.101, the comptroller shall investigate the commission's findings using the comptroller's contested case and hearing procedures in an attempt to verify information regarding the immigration status of the relevant employee or employees of the employer alleged to have violated Section 53.051(a).

(b) During an investigation conducted by the comptroller under Subsection (a):

(1) the employer alleged to have violated Section 53.051(a) shall specify all licenses held by the employer; and

(2) the comptroller shall:

(A) provide notice regarding the investigation to:

(i) the United States Immigration and Customs Enforcement agency of the federal Department of Homeland Security; and

(ii) each licensing authority that issued any license held by the employer; and

(B) request the United States Immigration and Customs Enforcement agency of the federal Department of Homeland Security to verify, under 8 U.S.C. Section 1373(c), the employment authorization of each relevant employee.

(c) The comptroller may make a final determination of whether an employer has committed a violation of Section 53.051(a) only after the comptroller has received verification from the United States Immigration and Customs Enforcement agency of the federal Department of Homeland Security under 8 U.S.C. Section 1373(c) regarding the employment authorization of each relevant employee.

Sec. 53.103. ORDER FOR TERMINATION OF EMPLOYMENT AND FILING OF AFFIDAVIT. (a) On a final determination by the comptroller that an employer has violated Section 53.051(a), the comptroller shall:

(1) issue an order requiring the employer to:

(A) terminate the employment of each employee who is a person not legally present; and

(B) file with the comptroller, within 10 business days after the date the order is issued, a sworn affidavit stating that the employer has:

(i) terminated the employment of each of those employees;

(ii) after consulting with each employee who is a person not legally present, requested a secondary or additional verification of employment authorization using an electronic federal work authorization program operated by the United States Department of Homeland Security or I-9 Employment Eligibility Verification Program; or

(iii) attempted to terminate the employment of each employee who is a person not legally present and that termination has been challenged in a court; and

(2) notify the United States Immigration and Customs Enforcement agency of the federal Department of Homeland Security and the applicable local law enforcement agency of the identity and address, if known, of each employee who is a person not lawfully present.

(b) Notwithstanding any other provision of this subchapter, during the pendency of an action taken under Subsection (a)(1)(B)(ii) or (iii):

(1) the employer is not required to terminate the employment of any employee determined by the comptroller to be a person not lawfully present; and

(2) the comptroller may not order the suspension of any license held by the employer.

Sec. 53.104. ORDER OF LICENSE SUSPENSION; NOTICE TO LICENSING AUTHORITIES. (a) Except as provided by Subsection (b), if an employer fails to comply with an order issued under Section 53.103, the comptroller shall order the suspension of each license held by the employer until the comptroller finds that the employer has complied with the requirements of Section 53.103.

(b) On a final determination by the comptroller that an employer has violated Section 53.051(a) more than one time during a two-year period, the comptroller shall order the suspension of each license held by the employer for a period of at least 30 days. A license suspended under this subsection may not be reinstated until the comptroller finds that the employer has complied with the requirements of Section 53.103.

(c) The comptroller shall promptly send to the appropriate licensing authorities a copy of any order issued by the comptroller under this section.

(d) The comptroller shall maintain in a prominent location on the comptroller's Internet website a database accessible to the public containing copies of each order issued under this section.

[Sections 53.105-53.150 reserved for expansion]

SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES

Sec. 53.151. ACTION BY LICENSING AUTHORITY. (a) On receipt from the comptroller of an order suspending a license, a licensing authority shall immediately determine if the authority has issued a license to the person named on the order and, if a license has been issued:

(1) record the suspension of the license in the licensing authority's records;

(2) report the suspension as appropriate; and

(3) demand surrender of the suspended license if required by law for other cases in which a license is suspended.

(b) A licensing authority shall implement the terms of the comptroller's final order suspending a license without additional review or hearing. The authority may provide notice as appropriate to the license holder or to others concerned with the license.

(c) A licensing authority may not modify, remand, reverse, vacate, or stay an order suspending a license issued under this chapter and may not review, vacate, or reconsider the terms of a final order suspending a license.

(d) A person who is the subject of a final order suspending a license is not entitled to a refund for any fee or deposit paid to the licensing authority.

(e) A person who continues to engage in the business, occupation, profession, or other licensed activity after the implementation of the order suspending a license by the licensing authority is liable for the same civil and criminal penalties provided for engaging in the licensed activity without a license or while a license is suspended that apply to any other license holder of that licensing authority.

(f) A licensing authority is exempt from liability to a license holder for any act authorized under this chapter performed by the authority.

(g) Except as provided by this chapter, an order suspending a license does not affect the power of a licensing authority to grant, deny, suspend, revoke, terminate, or renew a license.

(h) An order issued under this chapter to suspend a license of a person applies to each license for which the person is eligible issued by the licensing authority subject to the order. The licensing authority may not issue or renew any other license for the person during the suspension period.

Sec. 53.152. FEE BY LICENSING AUTHORITY. A licensing authority may charge a fee to a person that is the subject of an order suspending a license in an amount sufficient to recover the administrative costs incurred by the authority under this chapter.

SECTION 2. Chapter 53, Labor Code, as added by this Act, applies only to a violation that occurs on or after the effective date of this Act.

SECTION 3. The Texas Workforce Commission and the comptroller of public accounts shall adopt the rules and memorandum of understanding required by Chapter 53, Labor Code, as added by this Act, as soon as practicable after the effective date of this Act.

SECTION 4. This Act takes effect September 1, 2009.