85R5369 KSD/MTB-D     By: Bonnen of Galveston H.B. No. 1453       A BILL TO BE ENTITLED   AN ACT   relating to requiring state contractors and political subdivisions   of this state to participate in the federal electronic verification   of employment 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" 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 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 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)  "E-verify program" has the meaning assigned by   Section 673.001, Government Code.                (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 employment authorization status of the person   at least 14 calendar days 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.  Subtitle C, Title 5, Local Government Code, is   amended by adding Chapter 179 to read as follows:                CHAPTER 179. VERIFICATION OF EMPLOYEE INFORMATION          Sec. 179.001.  DEFINITIONS. In this chapter:                (1)  "E-verify program" has the meaning assigned by   Section 673.001, Government Code.                (2)  "Political subdivision" means a county,   municipality, school district, junior college district, other   special district, or other subdivision of state government.          Sec. 179.002.  VERIFICATION. A political subdivision shall   register and participate in the E-verify program to verify   information of all new employees.          Sec. 179.003.  TERMINATION OF EMPLOYMENT.  An employee of a   political subdivision who is responsible for verifying information   of new employees of the political subdivision as required by   Section 179.002 is subject to immediate termination of employment   if the employee fails to comply with that section.          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,   2017.          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, 2017.