89R477 RDS-D     By: Tepper H.B. No. 167       A BILL TO BE ENTITLED   AN ACT   relating to the implementation of diversity, equity, and inclusion   initiatives and certain prohibited considerations in contracting   by governmental entities.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:   ARTICLE 1. TITLE          SECTION 1.01.  This Act may be cited as the Ending   Institutional Racism Act.   ARTICLE 2. PROHIBITED DIVERSITY, EQUITY, AND INCLUSION INITIATIVES   BY GOVERNMENTAL ENTITIES          SECTION 2.01.  Subtitle A, Title 6, Government Code, is   amended by adding Chapter 621 to read as follows:   CHAPTER 621. PROHIBITION ON CERTAIN DIVERSITY, EQUITY, AND   INCLUSION INITIATIVES   SUBCHAPTER A.  GENERAL PROVISIONS          Sec. 621.001.  DEFINITIONS. In this chapter:                (1)  "Diversity, equity, and inclusion office" means an   office, division, or other unit of a governmental entity   established for the purpose of:                      (A)  influencing hiring or employment practices   at the entity with respect to race, sex, color, or ethnicity, other   than through the use of color-blind and sex-neutral hiring   processes in accordance with any applicable state and federal   antidiscrimination laws;                      (B)  promoting differential treatment or   providing special benefits to individuals on the basis of race,   sex, color, or ethnicity;                      (C)  promoting policies or procedures designed or   implemented in reference to race, color, or ethnicity, other than   policies or procedures implemented for the purpose of ensuring   compliance with any applicable federal law; or                      (D)  conducting trainings, programs, or   activities designed or implemented in reference to race, color,   ethnicity, gender identity, or sexual orientation, other than   trainings, programs, or activities conducted for the purpose of   ensuring compliance with any applicable court order or state or   federal law.                (2)  "Governmental entity" means:                      (A)  a department, commission, board, office, or   other agency that is in the executive branch of state government and   that was created by the constitution or a statute, other than an   institution of higher education as defined by Section 61.003,   Education Code;                      (B)  the legislature or a legislative state   agency;                      (C)  the supreme court, the court of criminal   appeals, a court of appeals, a district court, or the Texas Judicial   Council or another agency in the judicial branch of state   government;                      (D)  a county, municipality, special purpose   district, including a school district, or any other political   subdivision of this state; or                      (E)  an open-enrollment charter school   established under Subchapter D, Chapter 12, Education Code.   SUBCHAPTER B.  DIVERSITY, EQUITY, AND INCLUSION INITIATIVES          Sec. 621.051.  RESPONSIBILITY OF GOVERNMENTAL ENTITY   REGARDING DIVERSITY, EQUITY, AND INCLUSION INITIATIVES.  (a)  A   governmental entity shall ensure that each unit of the entity:                (1)  does not, except as required by federal law:                      (A)  establish or maintain a diversity, equity,   and inclusion office;                      (B)  hire or assign an employee of the entity or   contract with a third party to perform the duties of a diversity,   equity, and inclusion office;                      (C)  compel, require, induce, or solicit any   person to provide a diversity, equity, and inclusion statement or   give preferential consideration to any person based on the   provision of a diversity, equity, and inclusion statement;                      (D)  give preference on the basis of race, sex,   color, ethnicity, or national origin to an applicant for   employment, an employee, or a participant in any function of the   entity; or                      (E)  require as a condition of employment any   person to participate in diversity, equity, and inclusion training,   which:                            (i)  includes a training, program, or   activity designed or implemented in reference to race, color,   ethnicity, gender identity, or sexual orientation; and                            (ii)  does not include a training, program,   or activity developed for the purpose of ensuring compliance with   any applicable federal law; and                (2)  adopts policies and procedures for appropriately   disciplining, including by termination, an employee or contractor   of the entity who engages in conduct in violation of Subdivision   (1).          (b)  Subsection (a)(1) may not be construed to apply to:                 (1)  academic course instruction;                (2)  scholarly research or a creative work by a school   district's or open-enrollment charter school's students or faculty;                (3)  an activity of a student organization registered   with or recognized by a school district or open-enrollment charter   school;                (4)  guest speakers or performers on short-term   engagements;                 (5)  a program or activity to enhance student academic   achievement or postgraduate outcomes that allows participation   without regard to race, sex, color, or ethnicity; or                 (6)  data collection.   SUBCHAPTER C. LIABILITY FOR CERTAIN DIVERSITY, EQUITY, AND   INCLUSION INITIATIVES          Sec. 621.101.  LIABILITY FOR CERTAIN INITIATIVES. The   following individuals may bring an action against a governmental   entity that violates Section 621.051:                (1)  an employee of the governmental entity; or                (2)  an individual who resides in an area served by the   governmental entity.          Sec. 621.102.  REMEDIES. (a)  A claimant is entitled to   recover in an action brought under this chapter:                (1)  declaratory and injunctive relief; and                (2)  costs and reasonable attorney's fees.          (b)  If the court finds an action brought under this chapter   to be frivolous, a governmental entity is entitled to recover costs   and reasonable attorney's fees.          Sec. 621.103.  IMMUNITY WAIVER. The sovereign immunity of   this state and governmental immunity of a political subdivision to   suit and from liability is waived to the extent of the liability   created by this chapter.          Sec. 621.104.  NOTICE. A governmental entity is entitled to   receive notice of a claim against it under this chapter not later   than 90 days before the date a claimant files an action under this   chapter.  The notice must reasonably describe a specific action of   the governmental entity that is the basis for the claim against it.          Sec. 621.105.  VENUE. (a)  Notwithstanding any other law,   including Chapter 15, Civil Practice and Remedies Code, and except   as provided by Subsection (b), a claimant may bring an action under   this chapter in a county in which the governmental entity is   located.          (b)  A claimant must bring an action under this chapter in   Travis County if the governmental entity is:                (1)  an agency, board, commission, department, or   office that is in the executive branch of state government;                (2)  the legislature or a legislative state agency; or                (3)  the supreme court, the court of criminal appeals,   the Texas Judicial Council, or another agency in the judicial   branch of state government.          (c)  If the action is brought in a venue authorized by this   section, the action may not be transferred to a different venue   without the written consent of all parties.   ARTICLE 3. PROHIBITION ON CERTAIN CONSIDERATIONS IN CONTRACTING          SECTION 3.01.  Subchapter Z, Chapter 2252, Government Code,   is amended by adding Section 2252.911 to read as follows:          Sec. 2252.911.  PROHIBITED CONSIDERATIONS IN CONTRACTING.   (a)  In this section, "governmental entity" has the meaning   assigned by Section 2252.001, except that the term does not include   an institution of higher education as defined by Section 61.003,   Education Code.          (b)  Notwithstanding any other law, a governmental entity   may not award a contract or provide preferential treatment to a   person submitting a bid for a contract on the basis of race, color,   ethnicity, sex, gender identity, or sexual orientation.          SECTION 3.02.  Section 106.001(c), Civil Practice and   Remedies Code, is amended to read as follows:          (c)  This section does not prohibit the adoption of a program   designed to increase the participation of businesses owned and   controlled by [women, minorities, or] disadvantaged persons in   public contract awards.          SECTION 3.03.  Section 2161.001(3), Government Code, is   amended to read as follows:                (3)  "Economically disadvantaged person" means a   person who:                      (A)  is economically disadvantaged because of the   person's status [identification] as a veteran [member of a certain   group, including:                            [(i)  Black Americans;                            [(ii)  Hispanic Americans;                            [(iii)  women;                            [(iv)  Asian Pacific Americans;                            [(v)  Native Americans; and                            [(vi)  veterans] as defined by 38 U.S.C.   Section 101(2) who has [have] suffered at least a 20 percent   service-connected disability as defined by 38 U.S.C. Section   101(16); and                      (B)  has suffered the effects of discriminatory   practices or other similar insidious circumstances over which the   person has no control.          SECTION 3.04.  Sections 2161.061(b), (d), and (e),   Government Code, are amended to read as follows:          (b)  As one of its certification procedures, the comptroller   may:                (1)  approve the certification program of one or more   local governments or nonprofit organizations in this state that   certify historically underutilized businesses [, minority business   enterprises, women's business enterprises,] or disadvantaged   business enterprises under substantially the same definition, to   the extent applicable, used by Section 2161.001, if the local   government or nonprofit organization meets or exceeds the standards   established by the comptroller; and                (2)  certify a business that is certified by a local   government or by a nonprofit organization as a historically   underutilized business under this chapter.          (d)  A local government or a nonprofit organization that   certifies historically underutilized businesses [, minority   business enterprises, women's business enterprises,] or   disadvantaged business enterprises as described in Subsections (b)   and (c) shall complete the certification of an applicant or provide   an applicant with written justification of its certification denial   within the period established by the comptroller in its rules for   certification activities.          (e)  A local government or a nonprofit organization that   certifies historically underutilized businesses under Subsection   (c) or that conducts a certification program described by and   approved under Subsection (b) shall make available to the public an   online searchable database containing information about   historically underutilized businesses [, minority business   enterprises, women's business enterprises,] and disadvantaged   business enterprises certified by the local government or nonprofit   organization, including:                (1)  the name of the business;                (2)  the contact person or owner of the business;                (3)  the address and telephone number of the business;                (4)  the type or category of business, including   relevant capabilities of the business and the North American   Industry Classification System codes for the business; and                (5)  the expiration date of the business's   certification.          SECTION 3.05.  Section 2269.055(b), Government Code, is   amended to read as follows:          (b)  In determining the award of a contract under this   chapter, the governmental entity shall:                (1)  consider and apply any existing laws, including   any criteria, related to historically underutilized businesses;   and                (2)  consider and apply any existing laws, rules, or   applicable municipal charters, including laws applicable to local   governments, related to the use of [women, minority,] small [,] or   disadvantaged businesses.          SECTION 3.06.  Section 2303.405(e), Government Code, is   amended to read as follows:          (e)  Factors to be considered in evaluating the local effort   of a private entity include:                (1)  the willingness to negotiate or cooperate in the   achievement of the purposes of this chapter;                (2)  commitments to hire underskilled, inexperienced,   disadvantaged, or displaced workers who reside in the enterprise   zone;                (3)  [commitments to hire minority workers and to   contract with minority-owned businesses;                [(4)]  provision of technical and vocational job   training for enterprise zone residents or economically   disadvantaged employees;                (4) [(5)]  provision of child care for employees;                (5) [(6)]  commitments to implement and contribute to a   tutoring or mentoring program for area students;                (6) [(7)]  prevention or reduction of juvenile crime   activity; and                (7) [(8)]  the willingness to make contributions to the   well-being of the community, such as job training, or the donation   of land for parks or other public purposes.          SECTION 3.07.  Section 2310.305(e), Government Code, is   amended to read as follows:          (e)  Factors to be considered in evaluating the local effort   of a private entity include:                (1)  the willingness to negotiate or cooperate in the   redevelopment of vacated defense facilities and the creation of   high-skilled, high wage jobs;                (2)  commitments to hire dislocated defense workers and   economically disadvantaged workers;                (3)  [commitments to hire minority workers and to   contract with minority-owned businesses;                [(4)]  provision of technical and vocational job   training for residents of the nominating body's jurisdiction or   economically disadvantaged employees;                (4) [(5)]  provision of child care for employees;                (5) [(6)]  commitments to implement and contribute to a   tutoring or mentoring program for area students;                (6) [(7)]  prevention or reduction of juvenile crime;   and                (7) [(8)]  the willingness to make contributions to the   well-being of the community, such as job training, or the donation   of land for parks or other public purposes.          SECTION 3.08.  Section 281.051(c), Health and Safety Code,   is amended to read as follows:          (c)  The board shall encourage and promote participation by   all sectors of the business community, including small businesses   [and businesses owned by members of a minority group or by women],   in the process by which the district enters into contracts.  The   board shall develop a plan for the district to identify and remove   barriers that do not have a definite or objective relationship to   quality or competence and that unfairly discriminate against small   businesses [and businesses owned by members of a minority or by   women].  These barriers may include contracting procedures and   contract specifications or conditions.          SECTION 3.09.  Section 91.005, Labor Code, is amended to   read as follows:          Sec. 91.005.  APPLICATION OF CERTAIN PROCUREMENT LAWS.  With   respect to a bid, contract, purchase order, or agreement entered   into with the state or a political subdivision of the state, a   client's status or certification as a small or [, minority-owned,]   disadvantaged [, or woman-owned] business enterprise or as a   historically underutilized business is not affected because the   client has entered into a professional employer services agreement   with a license holder or uses the services of a license holder.          SECTION 3.10.  Sections 381.004(a) and (b), Local Government   Code, are amended to read as follows:          (a)  In this section, "another [:                [(1)  "Another] entity" includes the federal   government, the State of Texas, a municipality, school or other   special district, finance corporation, institution of higher   education, charitable or nonprofit organization, foundation,   board, council, commission, or any other person.                [(2)  "Minority" includes blacks, Hispanics, Asian   Americans, American Indians, and Alaska natives.                [(3)  "Minority business" means a business concern,   more than 50 percent of which is owned and controlled in management   and daily operations by members of one or more minorities.                [(4)  "Women-owned business" means a business concern,   more than 50 percent of which is owned and controlled in management   and daily operations by one or more women.]          (b)  To stimulate business and commercial activity in a   county, the commissioners court of the county may develop and   administer a program:                (1)  for state or local economic development;                (2)  for small or disadvantaged business development;                (3)  to stimulate, encourage, and develop business   location and commercial activity in the county;                (4)  to promote or advertise the county and its   vicinity or conduct a solicitation program to attract conventions,   visitors, and businesses;                (5)  [to improve the extent to which women and minority   businesses are awarded county contracts;                [(6)]  to support comprehensive literacy programs for   the benefit of county residents; or                (6) [(7)]  for the encouragement, promotion,   improvement, and application of the arts.          SECTION 3.11.  Section 3871.103(d), Special District Local   Laws Code, is amended to read as follows:          (d)  The district must follow Resolution 08-2826, adopted by   the city on October 22, 2008, for construction, procurement, and   professional services contracts related to the use of historically   underutilized businesses [and minority contracting] in the   implementation of its district plan.          SECTION 3.12.  Section 3884.103(d), Special District Local   Laws Code, is amended to read as follows:          (d)  The district must follow Resolution 08-2826, adopted by   the city on October 22, 2008, for construction, procurement, and   professional services contracts related to the use of historically   underutilized businesses [and minority contracting] in the   implementation of its district plan.          SECTION 3.13.  The heading to Section 22.084, Transportation   Code, is amended to read as follows:          Sec. 22.084.  AIRPORT REVENUE AND REVENUE BOND PROCEEDS   [;  CONTRACTING OPPORTUNITIES FOR MINORITY- AND WOMEN-OWNED   BUSINESSES].          SECTION 3.14.  Section 22.084(a), Transportation Code, is   amended to read as follows:          (a)  If constituent agencies or a nonprofit corporation   created under Section 22.152 issues revenue bonds to finance the   construction or acquisition of a facility or other improvement at   an airport, the proceeds of the bonds and any other airport income   or revenue may be spent on projects for which the proceeds, income,   or revenue may otherwise be spent.  An agreement may be made to   spend all or a portion of the proceeds, income, or revenue for the   planning, construction, or acquisition of facilities authorized by   Sections 22.011(a)-(c) and 22.012 without inviting, advertising   for, or otherwise requiring competitive bids.  [A contract wholly   or partly funded with proceeds, income, or revenue under this   subsection shall be let in accordance with the joint board's rules   and policies relating to creation of contracting opportunities for   minority- and women-owned businesses.]          SECTION 3.15.  The heading to Section 451.252,   Transportation Code, is amended to read as follows:          Sec. 451.252.  [MINORITY AND] DISADVANTAGED INDIVIDUALS   PROGRAM:  CERTAIN AUTHORITIES.          SECTION 3.16.  Section 451.252(a), Transportation Code, is   amended to read as follows:          (a)  The board of an authority confirmed before July 1, 1985,   shall establish a program to encourage participation in contracts   of the authority by businesses owned by [minorities or]   disadvantaged individuals.          SECTION 3.17.  Section 452.001(1), Transportation Code, is   amended to read as follows:                (1)  "Authority" means a regional transportation   authority created under this chapter or Chapter 683, Acts of the   66th Legislature, Regular Session, 1979.  The term includes:                      (A)  when used in Subchapters B, C, D, F, H, and I   and Section [Sections 452.201 and] 452.451, a subregional authority   created by a contiguous municipality; and                      (B)  as appropriate, an authority, other than an   authority created by a contiguous municipality, consisting of one   subregion.          SECTION 3.18.  The following provisions are repealed:                (1)  Section 12.029, Agriculture Code;                (2)  Sections 466.107, 466.151(c), 1232.104(c), and   2306.6734, Government Code;                (3)  Section 775.306, Health and Safety Code;                (4)  Section 381.004(d), Local Government Code;                (5)  Sections 161.131 and 161.132, Natural Resources   Code;                (6)  Section 2026.152(b), Occupations Code;                (7)  Sections 451.253 and 452.201, Transportation   Code; and                (8)  Sections 311.0101(d) and 351.1065(c), Tax Code.   ARTICLE 4. TRANSITION; EFFECTIVE DATE          SECTION 4.01.  The changes in law made by Article 3 of this   Act apply only to a contract entered into on or after the effective   date of this Act.  A contract entered into before that date is   governed by the law in effect on the date the contract was entered   into, and the former law is continued in effect for that purpose.          SECTION 4.02.  This Act takes effect September 1, 2025.