85R2627 MTB/KSD-F
 
  By: Hall S.B. No. 85
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the verification of employment authorization by state
  contractors and state grant recipients, including the use of the
  federal E-verify program, and to authorization for 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 AND GRANTS
         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.  VERIFICATION OF NEW EMPLOYEES BY STATE CONTRACTORS
  AND GRANT RECIPIENTS [ENFORCEMENT]
         SECTION 4.  Subchapter C, Chapter 2264, Government Code, is
  amended by adding Sections 2264.1011, 2264.102, 2264.103, and
  2264.104 to read as follows:
         Sec. 2264.1011.  DEFINITIONS.  In this subchapter:
               (1)  "E-verify program" has the meaning assigned by
  Section 673.001.
               (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:
               (1)  registers with and participates in the E-verify
  program to verify information of all new employees; or
               (2)  verifies the employment authorization status of
  all new employees by requiring each employee to provide an
  unexpired United States passport or:
                     (A)  one of the following documents:
                           (i)  an original or certified copy of a birth
  certificate issued by a bureau of vital statistics for a state;
                           (ii)  a Consular Report of Birth Abroad or
  Certificate of Birth Abroad issued by the United States Department
  of State;
                           (iii)  a Certificate of United States
  Citizenship issued by the federal Department of Homeland Security
  or the United States Department of State including an
  identification photograph; or
                           (iv)  a Certificate of Naturalization issued
  by the federal Department of Homeland Security or the United States
  Department of State including an identification photograph; and
                     (B)  one of the following documents:
                           (i)  an unexpired driver's license or
  identification card issued by a state;
                           (ii)  an unexpired federal, state, or local
  government identification card; or
                           (iii)  an unexpired military identification
  card for active duty, reserve, or retired personnel with an
  identification photograph.
         (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, 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), 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 was awarded a contract
  in violation of Section 2264.102.
         (b)  Debarment under this section is for a period of one
  year.
         Sec. 2264.104.  VERIFICATION BY GRANT RECIPIENTS. (a) A
  state agency may not award a grant unless the grant recipient:
               (1)  registers with and participates in the E-verify
  program to verify information of all new employees; or
               (2)  verifies the employment authorization status of
  all new employees by requiring each employee to provide an
  unexpired United States passport or:
                     (A)  one of the following documents:
                           (i)  an original or certified copy of a birth
  certificate issued by a bureau of vital statistics for a state;
                           (ii)  a Consular Report of Birth Abroad or
  Certificate of Birth Abroad issued by the United States Department
  of State;
                           (iii)  a Certificate of United States
  Citizenship issued by the federal Department of Homeland Security
  or the United States Department of State including an
  identification photograph; or
                           (iv)  a Certificate of Naturalization issued
  by the federal Department of Homeland Security or the United States
  Department of State including an identification photograph; and
                     (B)  one of the following documents:
                           (i)  an unexpired driver's license or
  identification card issued by a state;
                           (ii)  an unexpired federal, state, or local
  government identification card; or
                           (iii)  an unexpired military identification
  card for active duty, reserve, or retired personnel with an
  identification photograph.
         (b)  Each grant contract or agreement with a state agency
  must include the following statement:
         "______________ (name of grant recipient) certifies that
  __________ (name of grant recipient) is not ineligible to receive
  this grant under Subchapter C, Chapter 2264, Government Code, and
  acknowledges that if this certification is inaccurate, the grant
  may be terminated without further payment."
         (c)  If a state agency determines that a grant recipient was
  ineligible to have the grant awarded under Subsection (a), the
  state agency shall notify the grant recipient in writing that the
  grant recipient must comply with Subsection (a) before the 31st day
  after the date the grant recipient is notified.
         (d)  The state agency shall terminate the grant without
  further obligation to the grant recipient on the 31st day after the
  date the grant recipient is notified under Subsection (c) if,
  before that date, the grant recipient has not provided evidence
  that the grant recipient has complied with Subsection (a).
         (e)  Each state agency shall develop procedures for the
  administration of this section.
         SECTION 5.  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)  "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.
               (6)  "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.
               (7)  "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 an individual who is authorized to be employed by that
  Act.
         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.  EXCEPTION.  (a)  In this section, "E-verify
  program" has the meaning assigned by Section 673.001, Government
  Code.
         (b)  An employer has not violated Section 53.051(a) if the
  employer verified the employment authorization status of the person
  not later than the third business day after the commencement of the
  employee's employment through the E-verify program.
  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 6.  Each state agency subject to Subchapter C,
  Chapter 2264, Government Code, as amended by this Act, shall
  develop the procedures required under Sections 2264.102 and
  2264.104, Government Code, as added by this Act, as applicable, not
  later than October 1, 2017.
         SECTION 7.  Sections 2264.1011, 2264.102, 2264.103, and
  2264.104, Government Code, as added by this Act, apply only in
  relation to a:
               (1)  contract for which the request for bids or
  proposals or other applicable expressions of interest is made
  public on or after the effective date of this Act; and
               (2)  grant for which the notice of funds availability
  or of funding opportunity is made public on or after the effective
  date of this Act.
         SECTION 8.  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 9.  This Act takes effect September 1, 2017.