83R7270 KSD/MTB-D
 
  By: Bonnen of Galveston H.B. No. 2301
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to requiring state contractors and governmental entities
  to participate in the federal electronic verification of work
  authorization program, or E-Verify, and authorizing the suspension
  of certain licenses held by private employers for the knowing
  employment of persons not lawfully present in this state;
  authorizing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The heading to Chapter 2264, Government Code, is
  amended to read as follows:
  CHAPTER 2264. CERTAIN RESTRICTIONS ON [USE OF CERTAIN] PUBLIC
  SUBSIDIES AND STATE CONTRACTS
         SECTION 2.  Section 2264.101, Government Code, is
  transferred to Subchapter B, Chapter 2264, Government Code,
  redesignated as Section 2264.054, Government Code, and amended to
  read as follows:
         Sec. 2264.054  [2264.101].  RECOVERY. (a)  A public
  agency, local taxing jurisdiction, or economic development
  corporation, or the attorney general on behalf of the state or a
  state agency, may bring a civil action to recover any amounts owed
  to the public agency, state or local taxing jurisdiction, or
  economic development corporation under this subchapter [chapter].
         (b)  The public agency, local taxing jurisdiction, economic
  development corporation, or attorney general, as applicable, shall
  recover court costs and reasonable attorney's fees incurred in an
  action brought under Subsection (a).
         (c)  A business is not liable for a violation of this
  subchapter [chapter] by a subsidiary, affiliate, or franchisee of
  the business, or by a person with whom the business contracts.
         SECTION 3.  The heading to Subchapter C, Chapter 2264,
  Government Code, is amended to read as follows:
  SUBCHAPTER C.  E-VERIFY PROGRAM [ENFORCEMENT]
         SECTION 4.  Subchapter C, Chapter 2264, Government Code, is
  amended by adding Sections 2264.1011, 2264.102, and 2264.103 to
  read as follows:
         Sec. 2264.1011.  DEFINITIONS.  In this subchapter:
               (1)  "E-Verify program" means the electronic
  verification of work authorization program of the federal Illegal
  Immigration Reform and Immigrant Responsibility Act of 1996 (Pub.
  L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a),
  operated by the United States Department of Homeland Security, or a
  successor work authorization program designated by the United
  States Department of Homeland Security or other federal agency
  authorized to verify the work authorization status of newly hired
  employees pursuant to the federal Immigration Reform and Control
  Act of 1986 (8 U.S.C. Section 1101 et seq.).
               (2)  "State agency" has the meaning assigned by Section
  2103.001.
         Sec. 2264.102.  VERIFICATION BY CONTRACTORS.  (a)  A state
  agency may not award a contract for goods or services within this
  state to a contractor unless the contractor and any subcontractor
  register with and participate in the E-Verify program to verify
  employee information.  The contractor and any subcontractor must
  continue to participate in the program during the term of the
  contract.
         (b)  Each contract with a state agency must include the
  following statement:
         "______________ (name of contractor) certifies that
  __________ (name of contractor) is not ineligible to receive this
  contract under Subchapter C, Chapter 2264, Government Code, and
  acknowledges that if this certification is inaccurate or becomes
  inaccurate during the term of the contract, the contractor may be
  barred from participating in state contracts."
         (c)  If a state agency determines that a contractor was
  ineligible to have the contract awarded under Subsection (a), that
  a contractor has ceased participation in the E-Verify program
  during the term of the contract, or that a subcontractor is not
  registered with or is not participating in the E-Verify program,
  the state agency shall refer the matter to the comptroller for
  action.
         (d)  Each state agency shall develop procedures for the
  administration of this section.
         Sec. 2264.103.  BARRING FROM STATE CONTRACTS. (a) Using
  procedures prescribed under Section 2155.077, the comptroller
  shall bar a contractor from participating in state contracts if the
  comptroller determines that the contractor:
               (1)  was awarded a contract in violation of Section
  2264.102;
               (2)  has ceased participation in the E-Verify program
  during the term of the contract; or
               (3)  hired a subcontractor to perform work under the
  contract who is not registered with or is not participating in the
  E-Verify program.
         (b)  Debarment under this section is for a period of one year
  except that the debarment may be extended by the comptroller for
  additional one-year periods if the comptroller determines that the
  grounds for debarment under this section continue to exist.
  SECTION 5.  Subtitle A, Title 6, Government Code, is amended
  by adding Chapter 619 to read as follows:
  CHAPTER 619.  VERIFICATION OF EMPLOYEE INFORMATION
         Sec. 619.001.  DEFINITIONS. In this chapter:
               (1)  "E-Verify program" means the electronic
  verification of work authorization program of the federal Illegal
  Immigration Reform and Immigrant Responsibility Act of 1996 (Pub.
  L. No. 104-208, reprinted in note, 8 U.S.C. Section 1324a),
  operated by the United States Department of Homeland Security, or a
  successor work authorization program designated by the United
  States Department of Homeland Security or other federal agency
  authorized to verify the work authorization status of newly hired
  employees pursuant to the federal Immigration Reform and Control
  Act of 1986 (8 U.S.C. Section 1101 et seq.).
               (2)  "Governmental entity" means:
                     (A)  the state; or
                     (B)  a political subdivision of the state,
  including a municipality, a county, or any kind of district.
         Sec. 619.002.  VERIFICATION. A governmental entity shall
  register and participate in the E-Verify program to verify
  information of all new employees.
         Sec. 619.003.  RULES. The Texas Workforce Commission shall
  adopt rules and prescribe forms to implement this chapter.
         Sec. 619.004.  TERMINATION OF EMPLOYMENT.  An employee of a
  governmental entity who is responsible for verifying information of
  new employees of the governmental entity as required by Section
  619.002 is subject to immediate termination of employment if the
  employee fails to comply with that section.
         SECTION 6.  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. In this chapter:
               (1)  "Commission" means the Texas Workforce
  Commission.
               (2)  "Employee" means an individual who is employed by
  an employer for compensation.  The term includes an individual
  employed on a part-time basis.
               (3)  "Employer" means a person, other than a
  governmental entity, who:
                     (A)  employs one or more employees; or
                     (B)  acts directly or indirectly in the interests
  of an employer in relation to an employee.
               (4)  "Employment" means any service, including service
  in interstate commerce, that is performed for wages or under a
  contract of hire, whether written or oral or express or implied.
  The term does not include any service performed by an individual for
  wages if it is shown that the individual is free from control or
  direction in the performance of the service, both under any
  contract of service and in fact.
               (5)  "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.).
               (6)  "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.
               (7)  "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.
               (8)  "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.
               (9)  "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.
         Sec. 53.002.  EMPLOYEE STATUS. An employer may not classify
  an individual performing services for the employer as an
  independent contractor instead of as an employee of the employer
  solely for the purpose of avoiding the requirements applicable to
  an employer under this chapter.
         Sec. 53.003.  LICENSING AUTHORITIES SUBJECT TO CHAPTER. All
  licensing authorities are subject to this chapter.
         Sec. 53.004.  RULES. The commission shall adopt rules for
  the administration of this chapter.
  SUBCHAPTER B. LICENSE SUSPENSION FOR KNOWING EMPLOYMENT OF PERSON
  NOT LAWFULLY PRESENT
         Sec. 53.051.  PROHIBITION AGAINST KNOWING EMPLOYMENT OF
  PERSON NOT LAWFULLY PRESENT; LICENSE SUSPENSION AUTHORIZED. (a) An
  employer may not knowingly employ a person not lawfully present.
         (b)  An employer who violates Subsection (a) is 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 immigrant 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.
  SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
         Sec. 53.101.  FILING COMPLAINT. (a) A person who has reason
  to believe that an employer has violated Section 53.051(a) may file
  a complaint with the commission in accordance with this subchapter.
         (b)  A complaint must:
               (1)  be in writing on a form prescribed by the
  commission; and
               (2)  be verified by the person making the complaint.
         (c)  A person may file a complaint under this section:
               (1)  in person at an office of the commission; or
               (2)  by mailing the complaint to an address designated
  by the commission.
         Sec. 53.102.  INVESTIGATION AND PRELIMINARY DISMISSAL ORDER
  OR REFERRAL ORDER. (a) On receipt of a complaint, an examiner
  employed by the commission shall investigate the complaint in an
  attempt to:
               (1)  verify information regarding the immigration
  status of the relevant employee or employees of the employer
  alleged to have violated Section 53.051(a); and
               (2)  determine whether a hearing should be conducted.
         (b)  During the investigation, the employer alleged to have
  violated Section 53.051(a) shall specify all licenses held by the
  employer.
         (c)  If the examiner determines that there is no substantial
  evidence that the employer violated Section 53.051(a), the examiner
  shall issue a preliminary dismissal order dismissing the complaint.
         (d)  If the examiner determines that there is substantial
  evidence that the employer violated Section 53.051(a), the examiner
  shall refer the complaint to a hearing tribunal established under
  Section 53.103.
         (e)  The examiner shall mail notice of the preliminary
  dismissal order or referral order to each party at that party's last
  known address, as reflected by commission records.
         Sec. 53.103.  ESTABLISHMENT OF HEARING TRIBUNALS. The
  commission shall establish one or more impartial hearing tribunals
  to hear and decide complaints under this chapter.
         Sec. 53.104.  REQUEST FOR HEARING ON PRELIMINARY DISMISSAL
  ORDER. (a) A party may request a hearing before a hearing tribunal
  to appeal a preliminary dismissal order made under Section
  53.102(c).
         (b)  The request for the hearing must be made in writing not
  later than the 21st day after the date the examiner mails the notice
  of the preliminary dismissal order.
         Sec. 53.105.  PRELIMINARY DISMISSAL ORDER FINAL IF HEARING
  NOT REQUESTED. If neither party requests a hearing to appeal a
  preliminary dismissal order made under Section 53.102(c) within the
  period prescribed by Section 53.104, the order becomes the final
  order of the commission for all purposes, and neither party is
  entitled to judicial review of the order under this subchapter.
         Sec. 53.106.  NOTICE OF AND TIME FOR HEARING.  (a)  A notice
  regarding a hearing conducted under this subchapter must be mailed
  by the hearing tribunal not later than the 21st day after the date
  the referral order or request for the hearing is received by the
  commission.
         (b)  As soon as practicable, but not later than the 45th day
  after the date a notice is mailed under Subsection (a), the tribunal
  shall conduct the hearing.
         Sec. 53.107.  HEARING PROCEDURES. (a) A hearing conducted
  under this subchapter is subject to the rules and hearings
  procedures used by the commission in the determination of a claim
  for unemployment compensation benefits.
         (b)  The hearing is not subject to Chapter 2001, Government
  Code.
         Sec. 53.108.  ORDER AFTER HEARING. (a) After a hearing, if
  the hearing tribunal finds by clear and convincing evidence that
  the employer has violated Section 53.051(a), the hearing tribunal
  shall:
               (1)  for a first violation, enter a written order:
                     (A)  requiring the employer to:
                           (i)  terminate the employment of each
  employee who is a person not legally present; and
                           (ii)  file with the hearing tribunal, within
  30 business days after the date the order is entered, a sworn
  affidavit stating that the employer has terminated the employment
  of each of those employees; and
                     (B)  notifying the employer that failure to file
  the affidavit required by Paragraph (A)(ii) will result in the
  suspension of the employer's licenses as provided by Subdivision
  (2); or
               (2)  for a second or subsequent violation, or on a
  finding that an employer has failed to file an affidavit required by
  Subdivision (1)(A)(ii), enter a written order suspending for a
  period of one year any license held by the employer.
         (b)  After a hearing, if the hearing tribunal does not find
  by clear and convincing evidence that the employer has violated
  Section 53.051(a), the hearing tribunal shall enter a written order
  dismissing the complaint.
         Sec. 53.109.  NOTICE TO PARTIES AND FINALITY OF HEARING
  TRIBUNAL ORDER. (a) The hearing tribunal shall mail to each party to
  the hearing notice of the tribunal's decision. The notice shall be
  mailed to a party's last known address, as reflected by commission
  records.
         (b)  The order of the hearing tribunal becomes final on the
  14th day after the date the order is mailed unless a further appeal
  to the commission is initiated as provided by this subchapter.
         Sec. 53.110.  REMOVAL OR TRANSFER OF COMPLAINT PENDING
  BEFORE HEARING TRIBUNAL. (a) The commission by order may remove to
  itself or transfer to another hearing tribunal the proceedings on a
  complaint before a hearing tribunal.
         (b)  The commission promptly shall mail to the parties to the
  affected hearing notice of the order under Subsection (a).
         (c)  A quorum of the commission shall hear a proceeding
  removed to the commission under Subsection (a).
         Sec. 53.111.  COMMISSION REVIEW OF HEARING TRIBUNAL ORDER.
  The commission may:
               (1)  on its own motion:
                     (A)  affirm, modify, or set aside an order issued
  under Section 53.108 on the basis of the evidence previously
  submitted in the case; or
                     (B)  direct the taking of additional evidence; or
               (2)  permit any of the parties affected by the order to
  initiate an appeal before the commission.
         Sec. 53.112.  NOTICE OF COMMISSION ACTION TO PARTIES. (a)
  The commission shall mail to each party to an appeal under Section
  53.111 notice of:
               (1)  the commission's decision; and
               (2)  the parties' right to judicial review of the order.
         (b)  The notice shall be mailed to a party's last known
  address, as reflected by commission records.
         Sec. 53.113.  FINALITY OF COMMISSION ORDER.  An order of the
  commission becomes final on the 14th day after the date the order is
  mailed unless before that date:
               (1)  the commission by order reopens the appeal; or
               (2)  a party to the appeal files a written motion for
  rehearing.
         Sec. 53.114.  JUDICIAL REVIEW. (a) A party who has exhausted
  the party's administrative remedies under this chapter, other than
  a motion for rehearing, may bring a suit to appeal the order.
         (b)  The suit must be filed not later than the 30th day after
  the date the final order is mailed to the party.
         (c)  The commission and any other party to the proceeding
  before the commission must be made defendants in the suit.
         (d)  The suit must be brought in the county of residence of
  the party seeking judicial review. If the party is not a resident
  of this state, the suit must be brought in the county in this state
  in which the employer has its principal place of business.
         (e)  An appeal under this subchapter is by trial de novo with
  the substantial evidence rule being the standard of review in the
  manner as applied to an appeal from a final decision under Subtitle
  A, Title 4.
         Sec. 53.115.  NOTICE TO LICENSING AUTHORITY OF FINAL ORDER
  SUSPENDING LICENSE. The commission shall promptly mail to the
  appropriate licensing authority a final order suspending a license
  entered under this chapter.
  SUBCHAPTER D. ACTION BY LICENSING AUTHORITIES
         Sec. 53.151.  ACTION BY LICENSING AUTHORITY.  (a)  On receipt
  from the commission of a final 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 a
  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 issued by the licensing
  authority subject to the order for which the person is eligible.
  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 who 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 7.  Each state agency subject to Subchapter C,
  Chapter 2264, Government Code, as amended by this Act, shall
  develop the procedures required under Section 2264.102(d),
  Government Code, as added by this Act, not later than October 1,
  2013.
         SECTION 8.  Sections 2264.1011, 2264.102, and 2264.103,
  Government Code, as added by this Act, apply only in relation to a
  contract for which the request for bids or proposals or other
  applicable expression of interest is made public on or after the
  effective date of this Act.
         SECTION 9.  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 10.  This Act takes effect September 1, 2013.