Relating to a prohibition on certain discriminatory activities by governmental entities and vendors of governmental entities; providing for declaratory and injunctive relief and the withholding of certain funds from political subdivisions.

89(R) HB 4552 - House Committee Report version - Bill Text

89R21817 RDS-F

By: Gerdes, Tepper, Metcalf, Hull,

H.B. No. 4552

Schatzline

Substitute the following for H.B. No. 4552:

By: Raymond

C.S.H.B. No. 4552

A BILL TO BE ENTITLED

AN ACT

relating to a prohibition on certain discriminatory activities by

governmental entities and vendors of governmental entities;

providing for declaratory and injunctive relief and the withholding

of certain funds from political subdivisions.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Texas

Antidiscrimination Act.

SECTION 2. (a) The Legislature finds that:

(1) Section 3, Article I, Texas Constitution, provides

that "[a]ll freemen, when they form a social compact, have equal

rights, and no man, or set of men, is entitled to exclusive separate

public emoluments, or privileges, but in consideration of public

services";

(2) Section 3a, Article I, Texas Constitution,

provides that "[e]quality under the law shall not be denied or

abridged because of sex, race, color, creed, or national origin";

(3) Section 3a, Article I, Texas Constitution, was

designed expressly to provide protection which supplements the

federal guarantees of equal treatment;

(4) Section 3a, Article I, Texas Constitution, is more

extensive and provides more specific protection than other equal

protection and due process guarantees included in either the United

States Constitution or the Texas Constitution;

(5) the discriminatory activities described by

Section 621.051, Government Code, as added by this Act, are

antithetical to Sections 3 and 3a, Article I, Texas Constitution,

and lack a rational relationship to a legitimate governmental

purpose such that the activities violate those sections; and

(6) Texans deserve a government committed to serving

every person with equal dignity and respect and to expending

precious taxpayer resources only for the purpose of making Texas

great for all Texans.

(b) The purpose of this Act is to prevent unlawful

discrimination that is antithetical to Sections 3 and 3a, Article

I, Texas Constitution. Nothing in this Act may be construed to

create a right or benefit, substantive or procedural, enforceable

at law or in equity by any party against a governmental entity, as

the term is defined by Section 621.001, Government Code, as added by

this Act, except those specifically provided by Subchapter C,

Chapter 621, Government Code, as added by this Act.

SECTION 3. Subtitle A, Title 6, Government Code, is amended

by adding Chapter 621 to read as follows:

CHAPTER 621. PROHIBITION ON DISCRIMINATION BY GOVERNMENTAL ENTITY

ON THE BASIS OF IMMUTABLE CHARACTERISTIC

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 621.001. DEFINITIONS. In this chapter:

(1) "Discriminatory activity" means:

(A)

influencing hiring or employment practices

with respect to race, sex, color, or ethnicity, other than through

the use of a color-blind and sex-neutral hiring process in

accordance with any applicable state and federal

antidiscrimination laws;

(B)

promoting differential treatment of 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, sex, color, or ethnicity, other

than a policy or procedure:

(i) approved in writing by:

(a)

the general counsel of the

governmental entity promoting the policy or procedure; or

(b)

if the governmental entity

promoting the policy or procedure does not employ a general

counsel, an attorney contracted by the entity to provide general

legal services or the attorney general; and

(ii)

implemented for the sole purpose of

ensuring compliance with any applicable court order or state or

federal law;

(D)

conducting trainings, programs, or

activities designed or implemented in reference to race, sex,

color, or ethnicity, other than trainings, programs, or activities:

(i) developed by an attorney;

(ii) approved in writing by:

(a)

the general counsel of the

governmental entity conducting the training, program, or activity;

or

(b)

if the governmental entity

conducting the training, program, or activity does not employ a

general counsel, an attorney contracted by the entity to provide

general legal services or the attorney general; and

(iii)

implemented for the sole purpose of

ensuring compliance with any applicable court order or state or

federal law; and

(E)

promoting, as an official position of a

governmental entity, a particular opinion referencing unconscious

or implicit bias, cultural appropriation, allyship, transgender

ideology, microaggressions, group marginalization, anti-racism,

systemic oppression, intersectionality, neo-pronouns,

heteronormativity, disparate impact, gender theory, racial or

sexual privilege, or any related formulation of those concepts.

(2)

"Discriminatory office" means an office,

division, or other unit of a governmental entity established for

the purpose of engaging in a discriminatory activity.

(3)

"Governmental entity" means a state agency or

political subdivision.

(4)

"Political subdivision" means a county,

municipality, special purpose district, or any other political

subdivision of this state, including a political subdivision

described by Section 2254.021. The term includes an open-enrollment

charter school established under Subchapter D, Chapter 12,

Education Code.

(5) "State agency" means:

(A)

a department, commission, board, office, or

other agency in the executive branch of state government 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 agency; or

(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.

SUBCHAPTER B. DISCRIMINATION PROHIBITED

Sec.

621.051.

DISCRIMINATION BY GOVERNMENTAL ENTITY

PROHIBITED. (a) Notwithstanding any other law and except as

provided by this section and Section 621.052, a governmental entity

may not:

(1) engage in a discriminatory activity;

(2) establish or maintain a discriminatory office;

(3)

hire or assign an employee of the entity or

contract with a third party to perform the duties of a

discriminatory office;

(4)

compel, require, induce, or solicit any person to

provide a discriminatory statement, or give preference to an

employee, applicant for employment, or other participant in any

function of the entity on the basis of the provision of a

discriminatory statement;

(5)

give preference to an employee, applicant for

employment, or other participant in any function of the entity on

the basis of race, sex, color, ethnicity, or national origin;

(6)

promote or adopt any theory justifying

differential treatment of individuals on the basis of race, sex,

color, ethnicity, or national origin;

(7)

consider the race, sex, color, ethnicity, or

national origin of an individual in an employment, contracting,

funding, or policy determination;

(8)

require an employee to participate in a

discriminatory activity or a discriminatory training, including a

training, program, or other activity designed or implemented in

reference to race, sex, color, ethnicity, or national origin;

(9)

spend money on a discriminatory activity,

including acquiring services, supplies, information technology, or

other goods for the purpose of carrying out a discriminatory

activity;

(10)

award a contract or provide preferential or

discriminatory treatment to a person submitting a bid for a

contract on the basis of race, sex, color, ethnicity, or national

origin; or

(11)

enter into or renew a contract with a vendor in

violation of Chapter 2278.

(b)

This section does not apply to a training, program, or

activity relating to sexual harassment or developed for the purpose

of ensuring compliance with applicable federal law.

(c)

Each governmental entity shall adopt policies and

procedures for appropriately disciplining, including by

termination, an employee of the entity who engages in conduct

prohibited by Subsection (a) or Chapter 2278.

Sec.

621.052.

LIMITATION OF PROHIBITION ON CERTAIN

GOVERNMENTAL ACTIVITIES RELATING TO PUBLIC EDUCATION. (a) This

section applies only to:

(1) a school district;

(2) an open-enrollment charter school;

(3) the State Board of Education; and

(4) the Texas Education Agency.

(b) Section 621.051:

(1) may not be construed to:

(A)

limit or prohibit a school district or

open-enrollment charter school from, in accordance with the

essential knowledge and skills adopted under Subchapter A, Chapter

28, Education Code, acknowledging or teaching the significance of a

state or federal holiday or a commemorative month and the manner in

which the holiday or commemorative month fits into the themes of the

history of this state or the United States;

(B)

affect a student's rights under the First

Amendment to the United States Constitution or Section 8, Article

1, Texas Constitution; or

(C)

limit or prohibit a school district or

open-enrollment charter school from analyzing a school-based cause

of, and taking steps to eliminate an unlawful discriminatory

practice necessary to address, achievement gaps and differentials

described by Section 39.053, Education Code; and

(2) does not apply to:

(A)

classroom instruction that is consistent

with the essential knowledge and skills adopted under Subchapter A,

Chapter 28, Education Code;

(B)

the collection, monitoring, or reporting of

data; or

(C)

a policy, practice, procedure, program, or

activity intended to enhance student academic achievement or

postgraduate outcomes that is designed and implemented without

regard to race, sex, color, or ethnicity.

SUBCHAPTER C. ENFORCEMENT WITH RESPECT TO POLITICAL SUBDIVISION

Sec.

621.101.

COMPLAINT; DESIGNATION AS NONCOMPLIANT

POLITICAL SUBDIVISION. (a) A person who resides in an area served

by a political subdivision and who has a reasonable belief that the

political subdivision is violating this chapter, including by not

complying with the provisions of a corrective action plan included

in a response submitted to the attorney general under Subsection

(c), may file a complaint with the attorney general.

(b)

If the attorney general determines that the political

subdivision named in a complaint received under Subsection (a) is

violating this chapter, the attorney general shall designate the

political subdivision as a noncompliant political subdivision and

provide written notice of the designation to the political

subdivision and the comptroller. The notice provided to the

political subdivision must explain the attorney general's

reasoning for the determination relating to the designation and

provide that the attorney general shall terminate the designation

in accordance with Subsection (c) if the political subdivision

submits a response in the manner provided by that subsection.

(c)

Not later than the 14th day after receiving a notice

described by Subsection (b), a political subdivision may submit a

response to the attorney general. The attorney general shall

terminate the designation of the political subdivision as a

noncompliant political subdivision and provide notice of the

termination of the designation to the political subdivision and the

comptroller if the attorney general determines that the response:

(1)

demonstrates that the political subdivision is not

violating this chapter; or

(2)

includes a corrective action plan appropriate to

cure the violation identified in the notice provided to the

political subdivision under Subsection (b).

Sec.

621.102.

WITHHOLDING OF CERTAIN FUNDS OTHERWISE DUE TO

NONCOMPLIANT POLITICAL SUBDIVISION. (a) With respect to a

municipality that is designated as a noncompliant political

subdivision by the attorney general under Section 621.101, on

receipt of a notice under Section 621.101(b), the comptroller shall

withhold payment of any money owed to the municipality under

Section 183.051(b) or 321.502, Tax Code.

(b)

With respect to a county that is designated as a

noncompliant political subdivision by the attorney general under

Section 621.101, on receipt of a notice under Section 621.101(b),

the comptroller shall withhold payment of any money owed to the

county under Section 183.051(b) or 323.502, Tax Code.

(c)

The comptroller shall place an amount withheld under

Subsection (a) or (b) that is not otherwise placed in a suspense

account in a trust fund outside the state treasury and that money

may not be used for any purpose other than a purpose authorized by

law for that money.

(d)

On receipt of a notice under Section 621.101(c) that the

attorney general has terminated the designation of a municipality

or county as a noncompliant political subdivision, the comptroller

shall:

(1)

immediately send to the municipality or county the

balance of or amount of, as applicable, the money withheld from the

municipality or county under Subsection (a) or (b), as applicable;

and

(2)

resume distribution of the money described by

Subsections (a) and (b) to the municipality or county, as

applicable, in the ordinary course of business.

Sec.

621.103.

CIVIL ACTION. (a) The attorney general may

seek declaratory and injunctive relief, including by filing a

petition for a writ of mandamus, to compel a political subdivision

to comply with this chapter if the political subdivision:

(1)

is designated by the attorney general as a

noncompliant political subdivision under Section 621.101; or

(2)

has not satisfied the terms of a corrective action

plan included in a response submitted to the attorney general under

Section 621.101(c).

(b)

An action brought under this section must be filed in

the county in which the political subdivision is located.

(c)

The court of appeals for the Fifteenth Court of Appeals

District has exclusive intermediate appellate jurisdiction over an

action brought under this section.

SUBCHAPTER D. COMPLIANCE BY STATE AGENCY; REPORTS

Sec.

621.151.

REPORTING BY STATE AGENCY. (a) Each state

agency shall annually report on the agency's compliance with this

chapter in the manner provided by this section.

(b)

A state agency to which Chapter 2102 applies shall

include in the annual report required under Section 2102.009 an

assessment of the agency's compliance with this chapter.

(c) A state agency not described by Subsection (b) shall:

(1)

not later than November 1 of each year, submit to

the legislature a report containing an assessment of the agency's

compliance with this chapter during the preceding state fiscal

year; and

(2)

appoint an internal auditor for the specific

purpose of conducting the assessment included in the report

described by Subdivision (1).

(d)

A report under this section of a state agency's failure

to comply with this chapter must include a summary of instances of

noncompliance and actions taken or planned to be taken to remedy the

noncompliance.

SECTION 4. Subtitle F, Title 10, Government Code, is

amended by adding Chapter 2278 to read as follows:

CHAPTER 2278. PROHIBITION ON CONTRACTS WITH COMPANIES THAT ENGAGE

IN DISCRIMINATORY ACTIVITY

Sec.

2278.001.

DEFINITION. In this chapter, "governmental

entity" has the meaning assigned by Section 621.001.

Sec.

2278.002.

PROVISION REQUIRED IN CONTRACT. A

governmental entity may not enter into a contract with a vendor for

goods and services unless the contract:

(1)

contains a written verification from the vendor

that the vendor does not, and will not during the term of the

contract, engage in activity that, were the vendor a governmental

entity, would violate Section 621.051; and

(2)

provides that the governmental entity may

terminate the contract without penalty or further obligation to the

vendor on a showing by the entity that the vendor violated the

verification provided under Subdivision (1).

Sec.

2278.003.

PROHIBITION ON ADDITIONAL CONTRACTS. (a)

Except as provided by Subsection (b), a governmental entity may not

enter into another contract with a vendor after terminating a

contract with that vendor under Section 2278.002(2).

(b)

A governmental entity may enter into a contract with a

vendor described by Subsection (a) only after:

(1)

submitting information to the attorney general

showing that the vendor has cured the violation that was the subject

of the termination described by Section 2278.002(2); and

(2)

receiving authorization from the attorney general

to enter into a subsequent contract.

SECTION 5. (a) Not later than January 1, 2026, each state

agency to which Section 621.151(c), Government Code, as added by

this Act, applies shall appoint an internal auditor as required by

that subsection.

(b) Notwithstanding Section 621.151, Government Code, as

added by this Act, each state agency shall conduct the initial

assessment and report on the agency's compliance with Chapter 621,

Government Code, as added by this Act, in accordance with Section

621.151(b) or (c), Government Code, as added by this Act, as

applicable, not later than November 1, 2026.

SECTION 6. Chapter 2278, Government Code, as added by this

Act, applies only 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. A contract for which the

request for bids or proposals or other applicable expression of

interest is made public before that date is governed by the law in

effect on the date the request or other expression of interest is

made public, and the former law is continued in effect for that

purpose.

SECTION 7. Section 621.102, Government Code, as added by

this Act, does not affect the validity of a bond, other obligation,

or contractual obligation for which revenue was pledged or

committed before the effective date of this Act. Bonds, other

obligations, or contractual obligations for which revenue was

pledged or committed before the effective date of this Act are

governed by the law in effect when the revenue was pledged or

committed, and that law is continued in effect for the purposes of

the validity of those bonds, obligations, and contractual

obligations.

SECTION 8. 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, 2025.