Tepper Bill Bans DEI Offices, Strips Minority Business Preferences

The text as introduced · 3,049 words

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.