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  H.B. No. 1178
 
 
 
 
AN ACT
  relating to employment protection for members of the state military
  forces and specialty license plates for female members of the armed
  forces.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 431.001, Government Code, is amended by
  adding Subdivisions (5), (6), and (7) to read as follows:
               (5)  "Employee" has the meaning assigned by Section
  21.002, Labor Code.
               (6)  "Employer" has the meaning assigned by Section
  21.002, Labor Code.
               (7)  "Political subdivision" has the meaning assigned
  by Section 21.002, Labor Code.
         SECTION 2.  Section 431.006, Government Code, is amended to
  read as follows:
         Sec. 431.006.  REEMPLOYMENT OF PERSON CALLED TO TRAINING OR
  DUTY. (a)  An [A private] employer may not terminate the
  employment of an [a permanent] employee who is a member of the state
  military forces of this state or any other state because the
  employee is ordered to authorized training or duty by a proper
  authority. The employee is entitled to return to the same
  employment held when ordered to training or duty and may not be
  subjected to loss of time, efficiency rating, vacation time, or any
  benefit of employment during or because of the absence. The
  employee, as soon as practicable after release from duty, must give
  written or actual notice of intent to return to employment.
         (b)  A violation of this section is an unlawful employment
  practice.  A person injured by a violation of this section may file
  a complaint with the Texas Workforce Commission civil rights
  division under Subchapter K [is entitled to:
               [(1)     damages in an amount not exceeding six months'
  compensation at the rate at which the person was compensated when
  ordered to training or duty; and
               [(2)     reasonable attorney's fees approved by the
  court].
         [(c)     It is a defense to an action under this section that the
  employer's circumstances changed while the employee was in training
  or on duty to an extent that makes reemployment impossible or
  unreasonable. The employer has the burden of proving the
  impossibility or unreasonableness of reemploying the employee
  under the employer's changed circumstances.
         [(d)     An employer may not delay or attempt to defeat a
  reemployment obligation under this section by demanding
  documentation that does not exist or is not readily available at the
  time notice is given under Subsection (a).]
         SECTION 3.  Chapter 431, Government Code, is amended by
  adding Subchapter K to read as follows:
  SUBCHAPTER K. ADMINISTRATIVE REVIEW AND JUDICIAL ENFORCEMENT
         Sec. 431.151.  DEFINITIONS. In this subchapter:
               (1)  "Commission" means the Texas Workforce Commission
  civil rights division.
               (2)  "Complainant" means an individual who brings an
  action or proceeding under this subchapter.
               (3)  "Respondent" means the person charged in a
  complaint filed under this subchapter.
         Sec. 431.152.  FILING OF COMPLAINT; FORM AND CONTENT;
  SERVICE. (a)  A person claiming to be aggrieved by an unlawful
  employment practice under Section 431.006 or the person's agent may
  file a complaint with the commission.
         (b)  The complaint must be in writing and made under oath.
         (c)  The complaint must state:
               (1)  that an unlawful employment practice under Section
  431.006 has been committed;
               (2)  the facts on which the complaint is based,
  including the date, place, and circumstances of the alleged
  unlawful employment practice; and
               (3)  facts sufficient to enable the commission to
  identify the respondent.
         (d)  The commission shall serve the respondent with a copy of
  the perfected complaint not later than the 10th day after the date
  the complaint is filed.
         (e)  A complaint may be amended to cure technical defects or
  omissions, including a failure to verify the complaint or to
  clarify and amplify an allegation made in the complaint.
         (f)  An amendment to a complaint alleging additional facts
  that constitute an unlawful employment practice under Section
  431.006 relating to or arising from the subject matter of the
  original complaint relates back to the date the complaint was first
  received by the commission.
         Sec. 431.153.  ALTERNATIVE DISPUTE RESOLUTION. The use of
  alternative means of dispute resolution, including settlement
  negotiations, conciliation, facilitation, mediation,
  fact-finding, minitrials, and arbitration, is encouraged to
  resolve disputes arising under Section 431.006. The settlement of
  a disputed claim under this subchapter that results from the use of
  traditional or alternative means of dispute resolution is binding
  on the parties to the claim.
         Sec. 431.154.  INVESTIGATION BY COMMISSION. The commission
  shall investigate a complaint arising under Section 431.006 and
  determine if there is reasonable cause to believe that the
  respondent engaged in an unlawful employment practice as alleged in
  the complaint.
         Sec. 431.155.  LACK OF REASONABLE CAUSE; DISMISSAL OF
  COMPLAINT. (a)  If, after investigation, the commission
  determines that reasonable cause does not exist to believe that the
  respondent engaged in an unlawful employment practice under Section
  431.006 as alleged in a complaint, the commission shall issue a
  written determination incorporating the finding that the evidence
  does not support the complaint and dismissing the complaint.
         (b)  The commission shall serve a copy of the determination
  on the complainant, the respondent, and other agencies as required
  by law.
         Sec. 431.156.  DETERMINATION OF REASONABLE CAUSE; REVIEW BY
  PANEL. If, after investigation, the commission determines that
  there is reasonable cause to believe that the respondent engaged in
  an unlawful employment practice under Section 431.006 as alleged in
  a complaint, the commission shall:
               (1)  issue a written determination incorporating the
  finding that the evidence supports the complaint; and
               (2)  serve a copy of the determination on the
  complainant, the respondent, and other agencies as required by law.
         Sec. 431.157.  RESOLUTION BY INFORMAL METHODS. (a)  If a
  determination of reasonable cause is made, the commission shall
  endeavor to eliminate the alleged unlawful employment practice
  arising under Section 431.006 by informal methods of conference,
  conciliation, and persuasion.
         (b)  Without the written consent of the complainant and
  respondent, the commission, its executive director, or its other
  officers or employees may not disclose to the public information
  about the efforts in a particular case to resolve an alleged
  unlawful employment practice by conference, conciliation, or
  persuasion, regardless of whether there is a determination of
  reasonable cause.
         Sec. 431.158.  NOTICE OF DISMISSAL OR UNRESOLVED COMPLAINT.
  If the commission dismisses a complaint or does not resolve the
  complaint, the commission shall inform the complainant of the
  dismissal or failure to resolve the complaint in writing by
  certified mail.
         Sec. 431.159.  TEMPORARY INJUNCTIVE RELIEF. (a)  If the
  commission concludes from a preliminary investigation of an
  unlawful employment practice arising under Section 431.006 alleged
  in a complaint that prompt judicial action is necessary, the
  commission shall file a petition seeking appropriate temporary
  relief against the respondent pending final determination of a
  proceeding under this subchapter.
         (b)  The petition shall be filed in a district court in a
  county in which:
               (1)  the alleged unlawful employment practice that is
  the subject of the complaint occurred; or
               (2)  the respondent resides.
         (c)  A court may not issue temporary injunctive relief unless
  the commission shows:
               (1)  a substantial likelihood of success on the merits;
  and
               (2)  irreparable harm to the complainant in the absence
  of the preliminary relief pending final determination on the
  merits.
         Sec. 431.160.  CIVIL ACTION BY COMMISSION. (a)  The
  commission may bring a civil action against a respondent if:
               (1)  the commission determines that there is reasonable
  cause to believe that the respondent engaged in an unlawful
  employment practice under Section 431.006; and
               (2)  the commission's efforts to resolve the
  discriminatory practice to the satisfaction of the complainant and
  respondent through informal methods have been unsuccessful.
         (b)  The complainant may intervene in a civil action brought
  by the commission.
         Sec. 431.161.  NOTICE OF COMPLAINANT'S RIGHT TO FILE CIVIL
  ACTION. (a)  A complainant who receives notice under Section
  431.158 that the complaint is dismissed or not resolved is entitled
  to request from the commission a written notice of the
  complainant's right to file a civil action.
         (b)  The complainant must request the notice in writing.
         (c)  The executive director of the commission may issue the
  notice.
         (d)  Failure of the executive director of the commission to
  issue the notice of a complainant's right to file a civil action
  does not affect the complainant's right under this subchapter to
  bring a civil action against the respondent.
         Sec. 431.162.  CIVIL ACTION BY COMPLAINANT. Within 60 days
  after the date a notice of the right to file a civil action is
  received, the complainant may bring a civil action against the
  respondent.
         Sec. 431.163.  COMMISSION'S INTERVENTION IN CIVIL ACTION BY
  COMPLAINANT. After receipt of a timely application, a court may
  permit the commission to intervene in a civil action filed under
  Section 431.162 if:
               (1)  the commission certifies that the case is of
  general public importance; and
               (2)  before commencement of the action, the commission
  issued a determination of reasonable cause to believe that Section
  431.006 was violated.
         Sec. 431.164.  ASSIGNMENT TO EARLY HEARING. The court shall
  set an action brought under this subchapter for hearing at the
  earliest practicable date to expedite the action.
         Sec. 431.165.  INJUNCTION; EQUITABLE RELIEF. (a)  On
  finding that a respondent engaged in an unlawful employment
  practice under Section 431.006 as alleged in a complaint, a court
  may:
               (1)  prohibit by injunction the respondent from
  engaging in an unlawful employment practice under Section 431.006;
  and
               (2)  order additional equitable relief as may be
  appropriate.
         (b)  Additional equitable relief may include:
               (1)  hiring or reinstating with or without back pay;
               (2)  upgrading an employee with or without pay; and
               (3)  paying court costs.
         (c)  Liability under a back pay award may not accrue for a
  date more than two years before the date a complaint is filed with
  the commission. Interim earnings, workers' compensation benefits,
  and unemployment compensation benefits received operate to reduce
  the back pay otherwise allowable.
         Sec. 431.166.  COMPENSATORY AND PUNITIVE DAMAGES. (a)  On
  finding that a respondent engaged in an intentional unlawful
  employment practice under Section 431.006 as alleged in a
  complaint, a court may, as provided by this section, award:
               (1)  compensatory damages; and
               (2)  punitive damages.
         (b)  A complainant may recover punitive damages against a
  respondent, other than a respondent that is a governmental entity,
  if the complainant demonstrates that the respondent engaged in an
  unlawful employment practice under Section 431.006 with malice or
  with reckless indifference to the state-protected rights of an
  aggrieved individual.
         (c)  Compensatory damages awarded under this section may not
  include:
               (1)  back pay;
               (2)  interest on back pay; or
               (3)  other relief authorized under Section 431.165(b).
         (d)  The sum of the amount of compensatory damages awarded
  under this section for future pecuniary losses, emotional pain,
  suffering, inconvenience, mental anguish, loss of enjoyment of
  life, and other nonpecuniary losses and the amount of punitive
  damages awarded under this section may not exceed, for each
  complainant:
               (1)  $50,000 in the case of a respondent that has fewer
  than 101 employees;
               (2)  $100,000 in the case of a respondent that has more
  than 100 and fewer than 201 employees;
               (3)  $200,000 in the case of a respondent that has more
  than 200 and fewer than 501 employees; and
               (4)  $300,000 in the case of a respondent that has more
  than 500 employees.
         (e)  For the purposes of Subsection (d), in determining the
  number of employees of a respondent, the requisite number of
  employees must be employed by the respondent for each of 20 or more
  calendar weeks in the current or preceding calendar year.
         Sec. 431.167.  ATTORNEY'S FEES; COSTS. (a)  In a proceeding
  under this subchapter, a court may allow the prevailing party,
  other than the commission, a reasonable attorney's fee as part of
  the costs.
         (b)  The state, a state agency, or a political subdivision is
  liable for costs, including attorney's fees, to the same extent as a
  private person.
         (c)  In awarding costs and attorney's fees in an action or a
  proceeding under this subchapter, the court, in its discretion, may
  include reasonable expert fees.
         Sec. 431.168.  COMPELLED COMPLIANCE. If an employer fails
  to comply with a court order issued under this subchapter, a party
  to the action or the commission, on the written request of a person
  aggrieved by the failure, may commence proceedings to compel
  compliance with the order.
         Sec. 431.169.  TRIAL DE NOVO. (a)  A judicial proceeding
  under this subchapter is by trial de novo.
         (b)  A commission finding, recommendation, determination, or
  other action is not binding on a court.
         SECTION 4.  Subchapter D, Chapter 504, Transportation Code,
  is amended by adding Section 504.317 to read as follows:
         Sec. 504.317.  WOMEN VETERANS. The department shall issue
  specialty license plates for female active or former members of the
  United States armed forces, Texas National Guard, or Texas State
  Guard. The license plates must include the words "Woman Veteran" in
  red.
         SECTION 5.  The changes in law made by this Act apply only to
  a violation of Section 431.006, Government Code, as amended by this
  Act, that is based on conduct occurring on or after the effective
  date of this Act.  A violation of Section 431.006, Government Code,
  that is based on conduct occurring before the effective date of this
  Act is governed by the law in effect on the date the conduct
  occurred, and the former law is continued in effect for that
  purpose.
         SECTION 6.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2011.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 1178 was passed by the House on May 5,
  2011, by the following vote:  Yeas 146, Nays 0, 1 present, not
  voting; that the House refused to concur in Senate amendments to
  H.B. No. 1178 on May 25, 2011, and requested the appointment of a
  conference committee to consider the differences between the two
  houses; and that the House adopted the conference committee report
  on H.B. No. 1178 on May 28, 2011, by the following vote:  Yeas 146,
  Nays 0, 2 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 1178 was passed by the Senate, with
  amendments, on May 23, 2011, by the following vote:  Yeas 30, Nays
  0; at the request of the House, the Senate appointed a conference
  committee to consider the differences between the two houses; and
  that the Senate adopted the conference committee report on H.B. No.
  1178 on May 28, 2011, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor