HBA-ALS C.S.H.B. 1976 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1976
By: Bosse
State Affairs
4/11/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, the Texas Commission on Human Rights (commission) enforces state
equal employment opportunity and fair housing laws prohibiting
discrimination on the basis of race, sex, age, religion, national origin,
and disability. The commission investigates and resolves employment and
housing discrimination complaints as an alternative to litigation and
provides training and technical assistance to state agencies and private
businesses on federal and state anti-discrimination laws.  The commission
is subject to the Sunset Act and will be abolished on September 1, 1999,
unless it is continued by the legislature. After reviewing the commission,
the Sunset Advisory Commission has recommended its continuation and other
statutory modifications.  The purpose of this bill is to continue the
commission for a 12-year period and to make the recommended statutory
modifications. 

C.S.H.B. 1976 continues the existence of the commission until September 1,
2011.  This bill adds a requirement that a member of the commission
complete a specified training program before assuming any of the member's
duties.  This bill provides for additional notification requirements in the
event that there is a ground for removal of a member.  This bill requires
the commission to use various outreach methods to provide to the public
specified information about its complaint process. This bill requires the
commission to maintain a file for written complaints filed, specifies the
type of information required to be in those files, and specifies the
commission's notification requirements regarding its policies and
procedures for complaint investigation.  This bill requires the commission
make provisions for reasonable access and accommodations for access to the
commission's public outreach information.  This bill requires the
commission's investigators to complete a training program providing
information about the Americans with Disabilities Act and fair employment
practices; requires the commission to develop an investigation procedures
manual; and requires the commission to collect, analyze, and report
information relating to the civilian workforce composition and illegal
discrimination throughout the state.  This bill sets forth requirements of
a state agency regarding: employment discrimination training programs; the
development and implementation of personnel policies and procedures in
compliance with employment discrimination laws; reporting the agency's
compliance with these laws and equal employment opportunity information;
and minority recruitment plans.  Requires the commission to review an
agency's policies and procedures, and requires the agency to reimburse the
commission for such reviews.  C.S.H.B. 1976 also sets forth penalties for
noncompliance. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis rulemaking authority
is expressly delegated to the Commission on Human Rights in SECTION 12
(Section 21.0035, Labor Code) and SECTION 15 (Section 21.453 and 21.556,
Labor Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 461.002, Government Code, to provide that the
Commission on Human Rights (commission) is subject to Chapter 325 (Texas
Sunset Act) and is abolished September 1, 2011, rather than September 1,
1999.  

SECTION 2.  Amends Section 461.052, Government Code, as follows:

Sec. 461.052. ELIGIBILITY. (a) Defines "Texas trade association."  
 (b) Redesignates existing Subsection (a) to Subsection (b). 

(c)Prohibits a person from being a member of the commission, or from being
employed by the commission  in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of establishing
an exemption to the overtime provisions of the federal Fair Labor Standards
Act of 1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments,
if: 

(1)  the person is an officer, employee, or paid consultant of a Texas
trade association in the field of employment, labor, or housing; or 

(2)  the person's spouse is an officer, manager, or paid consultant of a
Texas trade association in the field of employment, labor, or housing.  

(d) Redesignated from existing Subsection (b). 

SECTION 3.  Amends Subchapter B, Chapter 461, Government Code, by adding
Section 461.0535, follows: 

Sec. 461.0535.  COMMISSIONER TRAINING.  (a)  Prohibits a member of the
commission from voting, deliberating, or being counted as a member in
attendance at a commission meeting until the member completes a training
program that complies with this section.  

(b)  Provides that the training program must provide specified information
to the person.  
(c)  Entitles a person appointed to the commission to reimbursement, as
provided by the General Appropriations Act, for the travel expenses in
attending the training program regardless of whether the attendance occurs
before or after the person qualifies for office.  

SECTION 4.  Amends Section 461.054, Government Code, is amended to read as
follows: 

Sec. 461.054.  REMOVAL OF MEMBER.  (a) Adds to the list of grounds for
removal of a member that the member does not have the qualifications
required by Section 461.051 (Membership), rather than 461.051 or 461.052(a)
(eligibility), at the time of taking office, rather than at the time of
appointment, and is ineligible for membership under Section 461.052, rather
than violates a prohibition under Section 461.052.  Makes a nonsubstantive
change. 
 
(c)  Requires the presiding officer to notify the attorney general, as well
as the governor, that a potential ground for removal exists.  Requires the
executive director to notify the next highest ranking officer of the
commission if the potential ground for removal involves the presiding
officer.  Requires that officer to then notify the governor and the
attorney general that a potential ground for removal exists. Makes
nonsubstantive changes. 

SECTION 5.  Amends Sections 461.058(c) and (d), Government Code, as follows:

(c)  Requires the executive director of the commission or the executive
director's designee, rather than the commission, to provide members of the
commission and commission employees, as often as necessary, with
information regarding the requirements, rather than their qualifications,
for office or employment under this chapter.  Makes nonsubstantive changes.

(d) Requires the commission to develop and implement policies that clearly
separate the policymaking responsibilities of the commission and the
management responsibilities of the executive director and the staff of the
commission.  

SECTION 6.  Amends Section 461.060, Government Code, as follows:

 Sec. 461.060.  New title:  PUBLIC INTEREST INFORMATION.  Deletes "and
complaints" from existing title. (a) Makes no change to this subsection.  

(b)  Requires the commission to use various outreach methods to provide the
public with information relating to the commission's complaint process,
including establishing and maintaining a toll-free telephone number;
providing information on the commission's Internet website; and developing
and publishing plainly written materials containing the information.  

(c)  Specifies the information that must be provided under Subsection (b).

(d) Requires the commission to ensure that an employee with knowledge of
the commission's functions is available during regular business hours to
answer questions.  

(e)  Redesignates existing Subsection (c) to Subsection (e).  Deletes
language requiring the commission, if a written complaint is filed with the
commission that the commission has authority to resolve,  to notify the
parties of the status of the complaint, unless notice would jeopardize an
undercover investigation by a state, federal or local governmental agency. 

SECTION 7.  Amends Subchapter B, Chapter 461, Government Code, by adding
Section 461.0605, as follows:  

Sec. 461.0605.  COMPLAINTS.  (a) Requires the commission to maintain a file
on each written complaint filed with its office. Provides that the file
must include specified information. 
  
(b)  Requires the commission to provide to the complainant and each person
who is a subject of the complaint a copy of the commission's policies and
procedures relating to complaint investigation and resolution. 

(c)  Requires the commission to notify the complainant and each person who
is a subject of the complaint of the status of the investigation unless the
notice would jeopardize an undercover investigation at least quarterly
until final disposition of the complaint.  

SECTION 8.  Amends Section 461.061, Government Code, as follows:

Sec. 461.061. New Title: PLAN FOR REASONABLE ACCESS TO COMMISSION PROGRAMS;
ACCOMMODATIONS.  Requires the commission to provide direct telephone
operator assistance to accommodate a person who is deaf or
mobility-impaired or suffers a cognitive dysfunction; provide the public
interest information described by Section 461.060 (Public Interest
Information and Complaints) in alternative formats, including large print,
disc, braille, and audiocassette; and to make the commission's Internet
website accessible to a person with a disability. Adds "accommodations" to
existing title. 

SECTION 9.  Amends Subchapter B, Chapter 461, Government Code, by adding
Sections 461.063 and 461.064, as follows: 

Sec. 461.063.  INVESTIGATOR TRAINING PROGRAM; PROCEDURES MANUAL. (a)
Prohibits a commission investigator from conducting an investigation until
the investigator completes a comprehensive training and education program
which complies with this section.  

(b)  Provides that the training program must provide the person with
specified information relating to the Americans with Disabilities Act and
fair employment and housing practices. 

(c)  Requires an investigator to annually complete a continuing education
program relating to the issues described by Subsection (b), including
legislative and judicial changes in the  law.  

(d) Requires the commission to develop and biennially update an
investigation procedures manual.  Provides that the manual must include
investigation procedures and information and may include information
regarding the Equal Employment Opportunity Commission and the United States
Department of Housing and Urban Development.  

Sec. 461.064.  ANALYSIS OF DISCRIMINATION COMPLAINTS; REPORT. (a) Requires
the commission to collect and report statewide information relating to
employment and housing discrimination complaints pursuant to this section.  

(b) Requires the commission to collect and analyze specified information
regarding employment and housing discrimination complaints filed with the
commission, the Equal Employment Opportunity Commission, the United States
Department of Housing and Urban Development, and local commissions for each
state fiscal year.    

(c) Requires the commission to include the results of the analysis in its
annual report to the governor and legislature.  

SECTION 10. Amends Section 21.002, Labor Code, to redefine "employer" and
to define "state agency." 
    
SECTION 11.  Amends Section 21.003(a), Labor Code, to authorize the
commission to require state agencies and public institutions of higher
education to develop and implement personnel policies in compliance with
this chapter, including personnel selection procedures that incorporate a
work force diversity program. 
   
SECTION 12.  Amends Subchapter A, Chapter 21, Labor Code, by adding Section
21.0035, as follows: 

Sec. 21.0035.  CIVILIAN WORKFORCE COMPOSITION.  (a) Requires  the
commission, by rule, to biennially determine: 

(1)  the percentage of Caucasian Americans, African Americans, Hispanic
Americans, females, and males in the statewide civilian workforce; and 
   
(2) the percentage of the statewide civilian workforce of the groups listed
in Subdivision (1) according to specified job categories. 
   
(b)  Requires the commission to report these percentages to the governor
and the legislature, no later than the fifth day of each regular session of
the legislature.  

SECTION 13.  Amends Section 21.2585(d), Labor Code, to provide that the sum
of specified compensatory damages and other nonpecuniary losses and
punitive damages awarded under this section to each complainant may not
exceed $50,000 if the respondent that has fewer than 101 employees, rather
between 14 and 101 employees.  
    
SECTION 14.  Amends Subchapter A, Chapter 21, Labor Code, by adding Section
21.010, as follows: 

Sec. 21.010. EMPLOYMENT DISCRIMINATION TRAINING FOR STATE EMPLOYEES.  (a)
Requires a state agency to provide each of its employees an employment
discrimination training program in compliance with this section.  

(b)  Provides that the training program must furnish the employee with
information regarding the agency's policies and procedures relating to
employment discrimination, including employment discrimination involving
sexual harassment.  

(c)  Requires each state agency employee to attend the training program, no
later than the  30th day after the employee's hiring date, and requires
each employee to attend supplemental training every two years.  

(d)  Requires the commission to develop materials for state agencies to use
in providing employment discrimination training. 
 
(e)  Requires a state agency to require each employee who attends a
required training program to sign a statement verifying the employee's
attendance at the training program. Requires the agency to file the
statement in the employee's personnel file.  

SECTION 15.  Amends Chapter 21, Labor Code, is amended by adding
Subchapters I-K, as follows: 

SUBCHAPTER I.  PERSONNEL POLICIES AND PROCEDURES

Sec. 21.451.  DEFINITION.  Provides that in this subchapter, "state agency"
does not include a public junior college as defined by Section 61.003,
Education Code (Definitions).  

Sec. 21.452.  DEVELOPMENT AND IMPLEMENTATION OF PERSONNEL POLICIES AND
PROCEDURES.  Requires a state agency to develop and implement personnel
policies and procedures in compliance with this chapter, including
personnel selection procedures that incorporate a workforce diversity
program.  

Sec. 21.453.  REVIEW.  (a) Requires the commission to review, on a six-year
cycle, each agency's policies and procedures to determine if those policies
and procedures comply with this chapter.  

(b)  Requires the commission, by rule, to establish a system to stagger the
reviews of state agency personnel policies and procedures. 

(c)  Requires the commission to recommend revisions to a state agency's
policies and procedures if the commission determines that they do not
comply with this chapter. Requires a state agency to implement the
commission's recommended revisions. 

(d)  Requires the review of a state agency's personnel policies and
procedures and the implementation of any recommended revisions to be
completed within one year.  

Sec. 21.454.  ANNUAL COMPLIANCE REPORT.  Requires the agency to submit to
the governor, the legislature, and the Legislative Budget Board a report
detailing its compliance with the required policies and procedures, after
the commission's review and the agency's implementation of revisions, no
later than October 1 of each year.  

Sec. 21.455. New title: REIMBURSEMENT; AUDIT. Adds "audit" to existing
title. (a) Requires a state agency to reimburse the commission, through
interagency contract, for the reasonable and necessary expenses incurred by
the commission in conducting a review under Section 21.453.  Requires the
General Services Commission to determine the actual expenses incurred by
the commission.  

(b) Requires the commission to maintain a record of the time expended and
the actual costs and travel expenses incurred by the commission in
conducting a review under Section 21.453. 

(c) Provides that the reimbursement amount paid by an agency and the record
maintained by the commission is subject to audit by the state auditor. 

Sec. 21.456.  FAILURE TO COMPLY WITH SUBCHAPTER; ADMINISTRATIVE PENALTY.
(a) Requires the commission, if it determines that a state agency has
failed to comply with this subchapter, to certify that determination to the
comptroller.  

(b)  Requires the comptroller, on receipt of a certification by the
commission, to notify  the  agency that the agency's appropriated funds are
subject to a reduction of $5,000, unless the agency submits to the
comptroller proof of its compliance, no later than the 30th day after the
date the agency receives notice from the comptroller.  Requires the
comptroller, if the agency fails to submit the required proof, to reduce
the agency's funds in a specified manner based on the particular type of
violation the agency has committed under this section. 
  
SUBCHAPTER J.  HIRING PRACTICES

Sec. 21.501.  WORKFORCE ANALYSIS.  Requires a state agency, each state
fiscal biennium, to analyze its current workforce comparing the number of
African Americans, Hispanic Americans, and females employed by the agency
in each job category to the available African Americans, Hispanic
Americans, and females in the statewide civilian workforce to determine the
percentage of exclusion or underutilization by each job category.  
 
Sec. 21.502.  RECRUITMENT PLAN.  Requires a state agency, other than a
public junior college as defined by Section 61.003, Education Code, to
develop, update, and implement a plan to recruit African Americans,
Hispanic Americans, and  females if any of those groups are underemployed
by the agency in a job category.  Requires the agency to base the plan on
the workforce analysis prepared under Section 21.501 and on any applicable
remedy, agreement, or settlement ordered or approved by a court. Provides
that the plan must comply with this chapter.  Requires the commission to
monitor state agencies to determine compliance with this section.  

Sec. 21.503.  EFFECT ON REMEDIES UNDER OTHER LAWS.  Provides that this
subchapter does not affect a remedy, agreement, settlement, or affirmative
action plan that has been ordered or approved by a court or adopted in
accordance with other law.  
 
Sec. 21.504.  ANNUAL REPORT.  Requires a state agency to report to the
commission, no later than November 1 of each calendar year, the total
number of African Americans, Hispanic Americans, females, and other persons
hired for each job category during the preceding state fiscal year.
Requires the commission to compile and submit a report based on this
information to the  governor and the Legislative Budget Board, no later
than January 1 of the subsequent calendar year.  

SUBCHAPTER K.  EQUAL EMPLOYMENT OPPORTUNITY REPORTS

Sec. 21.551.  DEFINITION.  Provides that in this subchapter "racial and
ethnic group" means Caucasian American, African American, or Hispanic
American.  

Sec. 21.552.  EQUAL EMPLOYMENT OPPORTUNITY REPORT REQUIRED.  (a) Requires a
state agency to report equal employment opportunity information for the
preceding calendar year to the commission, no later than the seventh day of
each calendar year, excluding legal holidays and weekends.  Provides that
the report must be in the form prescribed by the commission and include
information compiled on a monthly basis.  

(b)  Requires the commission to compile equal employment opportunity
information that is reported by each state agency and include specified
employment information.     

Sec. 21.553.  COOPERATION WITH COMPTROLLER AND UNIFORM STATEWIDE ACCOUNTING
SYSTEM; REPORT TO LEGISLATURE.  (a) Requires the commission to compile this
reported information with the assistance of the comptroller and the uniform
statewide accounting system.  

(b) Requires the commission to conduct an analysis of the reported
information and report the analysis results to the legislature, no later
than the fifth day of each regular session of the legislature. Provides
that the report must be written in plain language.  

Sec. 21.554.  FORM. Requires the commission to notify each state agency of
the form to be  used in making a report for the following year, no later
than December 15 of each year.  

Sec. 21.555.  FAILURE TO FILE REQUIRED REPORT; ADMINISTRATIVE PENALTY. (a)
Requires the commission to certify to the comptroller a determination that
a state agency has failed to file a required report. 

(b)  Requires the comptroller, on receipt of a certification by the
commission, to notify that state agency that its appropriated funds are
subject to a reduction in the amount of $2,000 unless the agency submits to
the comptroller proof of filing the report required, no later than the 30th
day after the date the agency receives notice from the comptroller.
Requires the comptroller, if the agency fails to submit proof of
compliance, to reduce the agency's appropriated funds by $2,000 for the
fiscal year in which the agency fails to file the report, or if all of the
agency's appropriated funds appropriated for the fiscal year in which the
agency fails to file the report have been distributed to the agency, reduce
its appropriated funds during the next fiscal year by $2,000.  

Sec. 21.556.  REQUIRED COMPLIANCE TRAINING FOR STATE AGENCIES.  (a)
Requires a state agency that receives three or more employment
discrimination complaints in a fiscal year, other than complaints
determined to be without merit, to participate in a equal employment
opportunity training program provided by the commission, another entity, or
a person approved by the commission.  

(b)  Requires the commission to notify a state agency of their obligation
to participate in a training program and the time and place of the program.

(c)  Requires an agency that receives notice under Subsection (b) to
designate its appropriate supervisory and managerial employees to
participate in the program. Requires the agency to designate to participate
in the program an employee who is a respondent in a complaint that is the
basis for the agency's required participation.  

(d)  Requires an agency that is required to participate in a program to pay
the cost of attending the program or reimburse the commission through
interagency contract. Requires the commission to determine and approve, in
cooperation with the General Services Commission, the cost of providing the
program. 

(e) Requires the commission, by rule, to adopt minimum standards for a
training program described under Subsection (a).  Authorizes the commission
to approve an entity or person to provide a training program  that complies
with the minimum standards adopted by the commission under this subsection. 
 
SECTION 16.  Amends Subchapter D, Chapter 301, Property Code, by adding
Section 301.070, as follows: 

Sec. 301.070. ACCESSIBILITY ASSISTANCE AND INFORMATION FOR LANDLORDS.
Requires the commission to provide to landlords technical and other
assistance relating to the accessibility requirements under this chapter.  

SECTION 17.(a)  Effective date: September 1, 1999. 

(b) Provides that the changes made to the law regarding the qualifications
of and prohibitions on members of the commission do not affect the
entitlement of a member who is serving on the commission immediately before
the effective date of this Act to continue to perform the functions of the
commission for the remainder of that member's term.  Provides that the
changes in law apply only to a member appointed on or after the effective
date of this Act. Provides that this Act does not prohibit a member of the
commission from being reappointed to the commission on the effective date
of this Act if the person has the required qualifications under Chapter
461, Government Code, as amended by this Act. 
 
(c) Requires the commission to develop a commissioner training program
under Section  461.0535, Government Code, as added by this Act; a training
and education program for investigators, under Section 461.063, Government
Code, as added by this Act; and an investigation procedures manual, under
Section 461.063, Government Code, as added by this Act, no later than
January 1, 2000.  

(d)  Provides that a person who is appointed to the commission on or after
the effective date of this Act is not required, as a condition to voting,
deliberating, or being counted as a member in attendance at a meeting of
the commission, to complete a commissioner training program, as required by
Section 461.0535, Government Code, as added by this Act, until March 1,
2000.  

(e)  Requires the commission to implement specified sections of this Act no
later than January 1, 2000. 
   
(f)  Provides that a person who is employed by the commission as an
investigator on or after the effective date of this Act is not required, as
a condition of eligibility to conduct an investigation, to complete an
investigator training program as required by Section 461.063, Government
Code, as added by this Act, until March 1, 2000.  

(g)  Requires the commission to complete the first analysis of employment
and housing discrimination complaints, as required by Section 461.064,
Government Code, as added by this Act, no later than November 1, 1999.  

(h)  Provides that the change in law made by this Act to Section
21.2585(d), Labor Code, only applies to an action filed on or after the
effective date of this Act.  Provides that an action filed before the
effective date of this Act is governed by the applicable law in effect
immediately before that date, and that law is continued in effect for that
purpose.  

(i) Requires the commission develop and provide to each state agency
employment discrimination materials, as required by Section 21.010, Labor
Code, as added by this Act, no later than November 1, 1999.  

(j)  Provides that a state agency is not required to provide employment
discrimination training, as required by Section 21.010, Labor Code, as
added by this Act, until December 1, 1999.  

(k)  Requires a state agency to develop and implement personnel policies
and procedures, as required by Subchapter I, Chapter 21, Labor Code, as
added by this Act, no later than October 1, 1999.  

(l)  Requires the commission to establish a system to stagger reviews of
personnel policies and procedures, as required by Subchapter I, Chapter 21,
Labor Code, as added by this Act, no later than October 1, 1999.  

(m) Provides that the commission is not required to review personnel
policies and procedures of a state agency, as required by Subchapter I,
Chapter 21, Labor Code, as added by this Act, until October 1, 1999.  

(n)  Requires each state agency to complete the first analysis of the
agency's workforce, as required by Subchapter J, Chapter 21, Labor Code, as
added by this Act, not later than November 1, 1999, and develop a
recruitment plan, as required by Subchapter J, Chapter 21, Labor Code, as
added by this Act, no later than January 1, 2000.  

(o) Requires the commission, with the assistance of the comptroller, to
adopt the form to be used by a state agency to make a report under
Subchapter K, Chapter 21, Labor Code, as added by this Act, not later than
December 1, 1999.  

(p)  Provides that a state agency is not required to participate in a
training program under Subchapter K, Chapter 21, Labor Code, as added by
this Act, on the basis of an employment  discrimination complaint filed
before the effective date of this Act.  

SECTION 18.Emergency clause.  

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original in SECTION 15 (proposed Section
21.455, Labor Code) by adding Subsection (b), which requires the Texas
Commission on Human Rights (commission) to maintain a record of the time
expended,  costs and travel expenses incurred by the commission in
conducting a review of a agency's personnel policies and procedures.  Adds
Subsection (c) which provides that the reimbursement amount paid by an
agency to the commission for expenses incurred for the review and the
record maintained by the commission under Subsection (b) is subject to
state audit.  Deletes the proposed provision prohibiting the actual
expenses incurred by the commission from exceeding $5,000 per agency. 

The substitute modifies the original in SECTION 15 (proposed Section
21.556, Labor Code) by adding Subsection (e) which requires the commission,
by rule, to adopt minimum standards for the required equal opportunity
training program, and authorizes the commission to approve an entity or
person to provide a training program in compliance with those adopted
standards.