This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 735, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 41.001. DEFINITIONS. In this chapter:
(1) “Claimant” means a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking recovery of damages. In a cause of action in which a party seeks recovery of damages related to injury to another person, damage to the property of another person, death of another person, or other harm to another person, “claimant” includes both that other person and the party seeking recovery of damages.
(2) “Clear and convincing” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.
(3) “Defendant” means a party, including a counterdefendant, cross-defendant, or third-party defendant, from whom a claimant seeks relief.
(4) “Economic damages” means compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages.
(5) “Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor noneconomic damages. ‘Exemplary damages’ includes punitive damages.
(6) “Fraud” means fraud other than constructive fraud.
(7) “Malice” means a specific intent by the defendant to cause substantial injury or harm to the claimant.
(8) “Compensatory damages” means economic and noneconomic damages. The term does not include exemplary damages.
(9) “Future damages” means damages that are incurred after the date of the judgment. Future damages do not include exemplary damages.
(10) “Future loss of earnings” means a pecuniary loss incurred after the date of the judgment, including:
(A) loss of income, wages, or earning capacity; and
(B) loss of inheritance.
(11) “Gross negligence” means an act or omission:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
(12) “Noneconomic damages” means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.
(13) “Periodic payments” means the payment of money or its equivalent to the recipient of future damages at defined intervals.
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.02, eff. Sept. 1, 2003.
Sec. 41.002. APPLICABILITY. (a) This chapter applies to any action in which a claimant seeks damages relating to a cause of action.
(b) This chapter establishes the maximum damages that may be awarded in an action subject to this chapter, including an action for which damages are awarded under another law of this state. This chapter does not apply to the extent another law establishes a lower maximum amount of damages for a particular claim.
(c) Except as provided by Subsections (b) and (d), in an action to which this chapter applies, the provisions of this chapter prevail over all other law to the extent of any conflict.
(d) Notwithstanding any provision to the contrary, this chapter does not apply to:
(1) Section 15.21, Business & Commerce Code (Texas Free Enterprise and Antitrust Act of 1983);
(2) an action brought under the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) except as specifically provided in Section 17.50 of that Act;
(3) an action brought under Chapter 36, Human Resources Code; or
(4) an action brought under Chapter 21, Insurance Code.
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1989, 71st Leg., ch. 380, Sec. 5, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1129, Sec. 16, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 260, Sec. 9, eff. May 30, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 4.01, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 204, Sec. 13.03, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 806 (S.B. 563), Sec. 18, eff. September 1, 2005.
Sec. 41.003. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES. (a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:
(1) fraud;
(2) malice; or
(3) gross negligence.
(b) The claimant must prove by clear and convincing evidence the elements of exemplary damages as provided by this section. This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice.
(c) If the claimant relies on a statute establishing a cause of action and authorizing exemplary damages in specified circumstances or in conjunction with a specified culpable mental state, exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the damages result from the specified circumstances or culpable mental state.
(d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.
(e) In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in the charge of the court:
“You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous.”
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.04, eff. Sept. 1, 2003.
Sec. 41.004. FACTORS PRECLUDING RECOVERY. (a) Except as provided by Subsection (b), exemplary damages may be awarded only if damages other than nominal damages are awarded.
(b) Exemplary damages may not be awarded to a claimant who elects to have his recovery multiplied under another statute.
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, Sec. 13.05, eff. Sept. 1, 2003.
Sec. 41.005. HARM RESULTING FROM CRIMINAL ACT. (a) In an action arising from harm resulting from an assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another.
(b) The exemption provided by Subsection (a) does not apply if:
(1) the criminal act was committed by an employee of the defendant;
(2) the defendant is criminally responsible as a party to the criminal act under the provisions of Chapter 7, Penal Code;
(3) the criminal act occurred at a location where, at the time of the criminal act, the defendant was maintaining a common nuisance under the provisions of Chapter 125, Civil Practice and Remedies Code, and had not made reasonable attempts to abate the nuisance; or
(4) the criminal act resulted from the defendant’s intentional or knowing violation of a statutory duty under Subchapter D, Chapter 92, Property Code, and the criminal act occurred after the statutory deadline for compliance with that duty.
(c) In an action arising out of a criminal act committed by an employee, the employer may be liable for punitive damages but only if:
(1) the principal authorized the doing and the manner of the act;
(2) the agent was unfit and the principal acted with malice in employing or retaining him;
(3) the agent was employed in a managerial capacity and was acting in the scope of employment; or
(4) the employer or a manager of the employer ratified or approved the act.
Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.006. AWARD SPECIFIC TO DEFENDANT. In any action in which there are two or more defendants, an award of exemplary damages must be specific as to a defendant, and each defendant is liable only for the amount of the award made against that defendant.
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code Sec. 41.005 by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.007. PREJUDGMENT INTEREST. Prejudgment interest may not be assessed or recovered on an award of exemplary damages.
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code Sec. 41.006 by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.008. LIMITATION ON AMOUNT OF RECOVERY. (a) In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.
(b) Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:
(1)(A) two times the amount of economic damages; plus
(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or
(2) $200,000.
(c) This section does not apply to a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct described as a felony in the following sections of the Penal Code if, except for Sections 49.07 and 49.08, the conduct was committed knowingly or intentionally:
(1) Section 19.02 (murder);
(2) Section 19.03 (capital murder);
(3) Section 20.04 (aggravated kidnapping);
(4) Section 22.02 (aggravated assault);
(5) Section 22.011 (sexual assault);
(6) Section 22.021 (aggravated sexual assault);
(7) Section 22.04 (injury to a child, elderly individual, or disabled individual, but not if the conduct occurred while providing health care as defined by Section 74.001);
(8) Section 32.21 (forgery);
(9) Section 32.43 (commercial bribery);
(10) Section 32.45 (misapplication of fiduciary property or property of financial institution);
(11) Section 32.46 (securing execution of document by deception);
(12) Section 32.47 (fraudulent destruction, removal, or concealment of writing);
(13) Chapter 31 (theft) the punishment level for which is a felony of the third degree or higher;
(14) Section 49.07 (intoxication assault);
(15) Section 49.08 (intoxication manslaughter);
(16) Section 21.02 (continuous sexual abuse of young child or children); or
(17) Chapter 20A (trafficking of persons).
(d) In this section, “intentionally” and “knowingly” have the same meanings assigned those terms in Sections 6.03(a) and (b), Penal Code.
(e) The provisions of this section may not be made known to a jury by any means, including voir dire, introduction into evidence, argument, or instruction.
(f) This section does not apply to a cause of action for damages arising from the manufacture of methamphetamine as described by Chapter 99.
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, Sec. 2.12, eff. Sept. 2, 1987. Renumbered from Civil Practice & Remedies Code Sec. 41.007 and amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 643, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, Sec. 13.06, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.03, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 309 (H.B. 533), Sec. 2, eff. June 19, 2009.
Sec. 41.009. BIFURCATED TRIAL. (a) On motion by a defendant, the court shall provide for a bifurcated trial under this section. A motion under this subsection shall be made prior to voir dire examination of the jury or at a time specified by a pretrial court order issued under Rule 166, Texas Rules of Civil Procedure.
(b) In an action with more than one defendant, the court shall provide for a bifurcated trial on motion of any defendant.
(c) In the first phase of a bifurcated trial, the trier of fact shall determine:
(1) liability for compensatory and exemplary damages; and
(2) the amount of compensatory damages.
(d) If liability for exemplary damages is established during the first phase of a bifurcated trial, the trier of fact shall, in the second phase of the trial, determine the amount of exemplary damages to be awarded, if any.
Amended by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.010. CONSIDERATIONS IN MAKING AWARD. (a) Before making an award of exemplary damages, the trier of fact shall consider the definition and purposes of exemplary damages as provided by Section 41.001.
(b) Subject to Section 41.008, the determination of whether to award exemplary damages and the amount of exemplary damages to be awarded is within the discretion of the trier of fact.
Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 13.07, eff. Sept. 1, 2003.
Sec. 41.0105. EVIDENCE RELATING TO AMOUNT OF ECONOMIC DAMAGES. In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 13.08, eff. Sept. 1, 2003.
Sec. 41.011. EVIDENCE RELATING TO AMOUNT OF EXEMPLARY DAMAGES. (a) In determining the amount of exemplary damages, the trier of fact shall consider evidence, if any, relating to:
(1) the nature of the wrong;
(2) the character of the conduct involved;
(3) the degree of culpability of the wrongdoer;
(4) the situation and sensibilities of the parties concerned;
(5) the extent to which such conduct offends a public sense of justice and propriety; and
(6) the net worth of the defendant.
(b) Evidence that is relevant only to the amount of exemplary damages that may be awarded is not admissible during the first phase of a bifurcated trial.
Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.012. JURY INSTRUCTIONS. In a trial to a jury, the court shall instruct the jury with regard to Sections 41.001, 41.003, 41.010, and 41.011.
Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.013. JUDICIAL REVIEW OF AWARD. (a) Except as provided for in Subsection (b), an appellate court that reviews the evidence with respect to a finding by a trier of fact concerning liability for exemplary damages or with respect to the amount of exemplary damages awarded shall state, in a written opinion, the court’s reasons for upholding or disturbing the finding or award. The written opinion shall address the evidence or lack of evidence with specificity, as it relates to the liability for or amount of exemplary damages, in light of the requirements of this chapter.
(b) This section does not apply to the supreme court with respect to its consideration of an application for writ of error.
Added by Acts 1995, 74th Leg., ch. 19, Sec. 1, eff. Sept. 1, 1995.
Sec. 41.014. INTEREST ON DAMAGES SUBJECT TO MEDICARE SUBROGATION. (a) Subject to this section, postjudgment interest does not accrue on the unpaid balance of an award of damages to a plaintiff attributable to any portion of the award to which the United States has a subrogation right under 42 U.S.C. Section 1395y(b)(2)(B) before the defendant receives a recovery demand letter issued by the Centers for Medicare and Medicaid Services or a designated contractor under 42 C.F.R. Section 411.22.
(b) Postjudgment interest under this section does not accrue if the defendant pays the unpaid balance before the 31st day after the date the defendant receives the recovery demand letter.
(c) If the defendant appeals the award of damages, this section does not apply.
(d) This section does not prevent the accrual of postjudgment interest on any portion of an award to which the United States does not have a subrogation right under 42 U.S.C. Section 1395y(b)(2)(B).
Added by Acts 2013, 83rd Leg., R.S., Ch. 870 (H.B. 658), Sec. 1, eff. September 1, 2013.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
TWC administers the Texas Payday Law, which allows for the investigation of an employee’s claim of unpaid wages. Wage problems often can be cleared up by discussing them with your employee.
An employee can submit a wage claim up to 180 days after the date the claimed wages originally became due for payment. If part of the employee’s unpaid wages were due within 180 days, a claim can be submitted for only that part.
How to Respond to a Wage Claim
After we receive a wage claim, we will mail you a copy of the wage claim along with an Employer Response to Wage Claimform. That form provides important information about your responsibilities as an employer.
Submit your response no later than 14 days after the date the response form was mailed to you.
Mail or fax your completed response form, along with any information necessary to support the response.
Texas Workforce Commission
Labor Law Section
101 E 15th Street, Rm 124T
Austin, Texas 78778-0001
Fax: 512-475-3025
If your address or phone number changes, it is your responsibility to notify Labor Law in writing immediately.
If you have questions regarding the wage claim process, call the TWC Labor Law Section at 800-832-9243 or 512-475-2670.
Wage Claim Investigation Process
TWC takes the following steps on a wage claim:
When we receive a wage claim, we mail an acknowledgement letter to the employee making the claim. The acknowledgement letter provides a brief overview of the wage claim process and notice of receipt of a claim.
We notify the employer by mail that a wage claim was filed and request a response from the employer. We send the employer an employer response form with a photocopy of the claim and any attachments submitted.
Once the wage claim investigation begins, an investigator may contact either party for additional information as needed.
Based on the investigation, TWC makes a decision in the case in the form of a Preliminary Wage Determination Order and notifies the employee and employer by mail. If either the employee or the employer disagrees with the decision, each has rights to appeal.
Appealing a Wage Claim Decision
To appeal our wage claim decision, the appealing party must send a written request or submit an appeal online within 21 days from the date of the Preliminary Wage Determination Order decision notice. If you submit your appeal by fax, then the appeal date is the date and time TWC received the appeal.
Collection Action
TWC‘s Labor Law Collections Unit takes collection action on Preliminary Wage Determination Orders and appeal decisions once those rulings have become final. Collection authority is established under the Texas Payday Law and Payday Rules. Labor Law Collections staff do not have the authority to alter wage claim rulings. If an employer did not receive notice of a ruling, disagrees with that ruling and did not get an opportunity to appeal that ruling, the employer may request an appeal as noted above.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Sec. 21.001. PURPOSES. The general purposes of this chapter are to:
(1) provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C. Section 2000e et seq.);
(2) identify and create an authority that meets the criteria under 42 U.S.C. Section 2000e-5(c) and 29 U.S.C. Section 633;
(3) provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990 and its subsequent amendments (42 U.S.C. Section 12101 et seq.);
(4) secure for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity;
(5) make available to the state the full productive capacities of persons in this state;
(6) avoid domestic strife and unrest in this state;
(7) preserve the public safety, health, and general welfare; and
(8) promote the interests, rights, and privileges of persons in this state.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.01(a), eff. Sept. 1, 1995.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 208, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 21.0015. TEXAS WORKFORCE COMMISSION CIVIL RIGHTS DIVISION. The powers and duties exercised by the Commission on Human Rights under this chapter are transferred to the Texas Workforce Commission civil rights division. A reference in this chapter to the “commission” means the Texas Workforce Commission civil rights division.
Added by Acts 2003, 78th Leg., ch. 302, Sec. 1.
Sec. 21.002. DEFINITIONS. In this chapter:
(1) “Auxiliary aids and services” includes:
(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) services and actions similar to those described by Paragraphs (A)-(C).
(2) “Bona fide occupational qualification” means a qualification:
(A) reasonably related to the satisfactory performance of the duties of a job; and
(B) for which a factual basis exists for the belief that no person of an excluded group would be able to satisfactorily perform the duties of the job with safety or efficiency.
(3) Repealed by Acts 2003, 78th Leg., ch. 302, Sec. 4(2).
(4) “Complainant” means an individual who brings an action or proceeding under this chapter.
(5) “Demonstrates” means meets the burdens of production and persuasion.
(6) “Disability” means, with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such an impairment, or being regarded as having such an impairment. The term does not include:
(A) a current condition of addiction to the use of alcohol, a drug, an illegal substance, or a federally controlled substance; or
(B) a currently communicable disease or infection as defined in Section 81.003, Health and Safety Code, or required to be reported under Section 81.041, Health and Safety Code, that constitutes a direct threat to the health or safety of other persons or that makes the affected person unable to perform the duties of the person’s employment.
(7) “Employee” means an individual employed by an employer, including an individual subject to the civil service laws of this state or a political subdivision of this state, except that the term does not include an individual elected to public office in this state or a political subdivision of this state.
(8) “Employer” means:
(A) a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year;
(B) an agent of a person described by Paragraph (A);
(C) an individual elected to public office in this state or a political subdivision of this state; or
(D) a county, municipality, state agency, or state instrumentality, regardless of the number of individuals employed.
(9) “Employment agency” means a person or an agent of the person who regularly undertakes, with or without compensation, to procure:
(A) employees for an employer; or
(B) the opportunity for employees to work for an employer.
(10) “Labor organization” means a labor organization engaged in an industry affecting commerce. The term includes:
(A) an organization, an agency, or an employee representation committee, group, association, or plan engaged in an industry affecting commerce in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment;
(B) a conference, general committee, joint or system board, or joint council that is subordinate to a national or international labor organization; and
(C) an agent of a labor organization.
(11) “Local commission” means a commission on human relations created by one or more political subdivisions.
(11-a) “Major life activity” includes, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
(12) “Political subdivision” means a county or municipality.
(12-a) “Regarded as having such an impairment” means subjected to an action prohibited under Subchapter B or C because of an actual or perceived physical or mental impairment, other than an impairment that is minor and is expected to last or actually lasts less than six months, regardless of whether the impairment limits or is perceived to limit a major life activity.
(13) “Respondent” means the person charged in a complaint filed under this chapter and may include an employer, employment agency, labor organization, or joint labor-management committee that controls an apprenticeship or other training or retraining program, including an on-the-job training program.
(14) “State agency” means:
(A) a board, commission, committee, council, department, institution, office, or agency in the executive branch of state government having statewide jurisdiction;
(B) the supreme court, the court of criminal appeals, a court of appeals, or the State Bar of Texas or another judicial agency having statewide jurisdiction; or
(C) an institution of higher education as defined by Section 61.003, Education Code.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.02(a), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 834, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 872, Sec. 10, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 302, Sec. 4(a).
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 337 (H.B. 978), Sec. 1, eff. September 1, 2009.
Sec. 21.0021. CONSTRUCTION OF CERTAIN DEFINITIONS. (a) The term “disability”:
(1) shall be construed in favor of broad coverage of individuals under Subchapters B and C, to the maximum extent allowed under those subchapters; and
(2) includes an impairment that is episodic or in remission that substantially limits a major life activity when active.
(b) The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, including:
(1) medication, medical supplies, medical equipment, medical appliances, prosthetic limbs and devices, hearing aids, cochlear implants and other implantable hearing devices, mobility devices, and oxygen therapy equipment;
(2) devices that magnify, enhance, or otherwise augment a visual image, other than eyeglasses and contact lenses that are intended to fully correct visual acuity or eliminate refractive error;
(3) the use of assistive technology;
(4) reasonable accommodations and auxiliary aids or services; and
(5) learned behavioral or adaptive neurological modifications.
Added by Acts 2009, 81st Leg., R.S., Ch. 337 (H.B. 978), Sec. 2, eff. September 1, 2009.
Sec. 21.003. GENERAL POWERS AND DUTIES OF COMMISSION. (a) The commission may:
(1) promote the creation of local commissions on human rights by cooperating or contracting with individuals or state, local, or other agencies, public or private, including agencies of the federal government and of other states;
(2) receive, investigate, seek to conciliate, and pass on complaints alleging violations of this chapter;
(3) file civil actions to effectuate the purposes of this chapter;
(4) request and, if necessary, compel by subpoena:
(A) the attendance of necessary witnesses for examination under oath; and
(B) the production, for inspection and copying, of records, documents, and other evidence relevant to the investigation of alleged violations of this chapter;
(5) furnish technical assistance requested by a person subject to this chapter to further compliance with this chapter or with a rule or order issued under this chapter;
(6) recommend in its annual report legislation or other action to carry out the purposes and policies of this chapter;
(7) adopt procedural rules to carry out the purposes and policies of this chapter; and
(8) provide educational and outreach activities to individuals who have historically been victims of employment discrimination.
(b) The commission by rule may authorize a commissioner or one of its staff to exercise the powers stated in Subsection (a)(4) on behalf of the commission.
(c) The commission biennially shall develop an inventory of equal employment opportunity policies and programs adopted and implemented by the various state agencies.
(d) The commission at least annually shall make a comprehensive written report on the commission’s activities to the governor and to the legislature.
(e) The commission shall conduct a study of the policies and programs of a selected state agency if the commission is directed to conduct the study by legislative resolution or by executive order of the governor.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.03(a), eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 872, Sec. 11, eff. Sept. 1, 1999.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1312 (S.B. 59), Sec. 77, eff. September 1, 2013.
Sec. 21.0035. CIVILIAN WORKFORCE COMPOSITION. (a) The commission by rule shall biennially determine:
(1) the percentage of the statewide civilian workforce composed of:
(A) Caucasian Americans;
(B) African Americans;
(C) Hispanic Americans;
(D) females; and
(E) males; and
(2) the percentage of the statewide civilian workforce of the groups listed in Subdivision (1) according to the following job categories:
(A) state agency administration;
(B) professional;
(C) technical;
(D) protective services;
(E) paraprofessional;
(F) administrative support;
(G) skilled craft; and
(H) service and maintenance.
(b) The commission shall report the percentages of the statewide civilian workforce as determined under this section to the governor and the legislature not later than the fifth day of each regular session of the legislature.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 12, eff. Sept. 1, 1999.
Sec. 21.004. CRIMINAL OFFENSE OF INTERFERENCE; PENALTY. (a) A person commits an offense if the person wilfully resists, prevents, impedes, or interferes with the performance of a duty under or the exercise of a power provided by this chapter.
(b) An offense under this section is a Class B misdemeanor.
Sec. 21.005. CONSTRUCTION WITH OTHER LAWS. (a) This chapter does not relieve a government agency or official of the responsibility to ensure nondiscrimination in employment as required under another provision of the state or federal constitutions or laws.
(b) This chapter does not affect the standards for determining eligibility for benefits under Title 5 or under a state or federal disability benefit program.
(c) Nothing in this chapter may be construed as the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of a disability.
Acts 2009, 81st Leg., R.S., Ch. 337 (H.B. 978), Sec. 3, eff. September 1, 2009.
Sec. 21.006. CONFORMITY WITH FEDERAL STATUTES. If a provision of this chapter is held by the Equal Employment Opportunity Commission to disqualify the commission as a deferral agency or for the receipt of federal funds, the commission shall administer this chapter to qualify for deferral status or the receipt of those funds until the legislature meets in its next session and has an opportunity to amend this chapter.
Sec. 21.007. PRIVILEGED COMMUNICATION; IMMUNITY. An oral or written statement made to a commissioner or an employee of the commission in connection with the discharge of the commissioner’s or employee’s duties under this chapter may not be the basis for an action for defamation of character.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.08(a), eff. Sept. 1, 1995.
Sec. 21.008. LIMITED SEVERABILITY. (a) If any clause, sentence, subsection, section, or other provision of this chapter or the application of such a provision to any person or circumstances is held invalid or unconstitutional, that invalidity shall not affect the other clauses, sentences, subsections, sections, or provisions or applications of this chapter that may be given effect without the invalid clause, sentence, subsection, section, or provision or application and shall not affect, invalidate, impair, or nullify the remainder of this chapter. The effect of the determination of invalidity shall be confined to the clause, sentence, subsection, section, or provision or application so adjudicated to be invalid or unconstitutional, and to that end the provisions of this chapter are declared to be severable.
(b) If any limit on damages prescribed by Section 21.2585 is invalidated by a method other than by legislative means, the amount of civil liability for all past and future noneconomic losses, including past and future pain and suffering, mental anguish and suffering, and any other nonpecuniary damage, is limited to an amount not to exceed $150,000.
(c) If a limit on damages prescribed by Section 21.2585 is invalidated by a method other than by legislative means and if the alternative civil liability limits contained in Subsection (b) are also invalidated by a method other than by legislative means, Section 21.2585 is void.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.08(a), eff. Sept. 1, 1995.
Sec. 21.009. JOINDER OF COMMISSION. (a) In any civil action in which the validity of a provision of this chapter or Chapter 461, Government Code, a rule adopted under this chapter or Chapter 461, Government Code, or the application of the provision or rule is challenged as void, unconstitutional, or unenforceable, the commission shall be made a party to the proceedings, and, on the motion of the commission, venue of the cause may be transferred to the district courts of Travis County.
(b) An order restraining the commission or invalidating a provision of this chapter or Chapter 461, Government Code, or a commission rule adopted under this chapter or Chapter 461, Government Code, may not be enforced and may not take effect until the commission has answered and appeared in the action and has exhausted all avenues of appeal and any judgment is final and enforceable.
(c) Notwithstanding any other provision of state law, including this chapter, only the commission, if a prevailing party, may recover costs and attorney’s fees in such a declaratory proceeding under this section.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.08(a), eff. Sept. 1, 1995.
Sec. 21.010. EMPLOYMENT DISCRIMINATION TRAINING FOR STATE EMPLOYEES. (a) Each state agency shall provide to employees of the agency an employment discrimination training program that complies with this section.
(b) The training program must provide the employee with information regarding the agency’s policies and procedures relating to employment discrimination, including employment discrimination involving sexual harassment.
(c) Each employee of a state agency shall attend the training program required by this section not later than the 30th day after the date the employee is hired by the agency and shall attend supplemental training every two years.
(d) The commission shall develop materials for use by state agencies in providing employment discrimination training as required by this section.
(e) Each state agency shall require an employee of the agency who attends a training program required by this section to sign a statement verifying the employee’s attendance at the training program. The agency shall file the statement in the employee’s personnel file.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 14, eff. Sept. 1, 1999.
SUBCHAPTER B. UNLAWFUL EMPLOYMENT PRACTICES
Sec. 21.051. DISCRIMINATION BY EMPLOYER. An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.
Sec. 21.052. DISCRIMINATION BY EMPLOYMENT AGENCY. An employment agency commits an unlawful employment practice if the employment agency:
(1) fails or refuses to refer for employment or discriminates in any other manner against an individual because of race, color, disability, religion, sex, national origin, or age; or
(2) classifies or refers an individual for employment on the basis of race, color, disability, religion, sex, national origin, or age.
Sec. 21.053. DISCRIMINATION BY LABOR ORGANIZATION. A labor organization commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the labor organization:
(1) excludes or expels from membership or discriminates in any other manner against an individual; or
(2) limits, segregates, or classifies a member or an applicant for membership or classifies or fails or refuses to refer for employment an individual in a manner that would:
(A) deprive or tend to deprive an individual of any employment opportunity;
(B) limit an employment opportunity or adversely affect in any other manner the status of an employee or of an applicant for employment; or
(C) cause or attempt to cause an employer to violate this subchapter.
Sec. 21.054. ADMISSION OR PARTICIPATION IN TRAINING PROGRAM. (a) Unless a training or retraining opportunity or program is provided under an affirmative action plan approved under a federal law, rule, or order, an employer, labor organization, or joint labor-management committee controlling an apprenticeship, on-the-job training, or other training or retraining program commits an unlawful employment practice if the employer, labor organization, or committee discriminates against an individual because of race, color, disability, religion, sex, national origin, or age in admission to or participation in the program.
(b) The prohibition against discrimination because of age in this section applies only to discrimination because of age against an individual who is at least 40 years of age but younger than 56 years of age.
Sec. 21.055. RETALIATION. An employer, labor union, or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency retaliates or discriminates against a person who, under this chapter:
(1) opposes a discriminatory practice;
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.
Sec. 21.056. AIDING OR ABETTING DISCRIMINATION. An employer, labor union, or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency aids, abets, incites, or coerces a person to engage in a discriminatory practice.
Sec. 21.057. INTERFERENCE WITH COMMISSION. An employer, labor union, or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency wilfully interferes with the performance of a duty or the exercise of a power under this chapter or Chapter 461, Government Code, by the commission, the commission’s staff, or the commission’s representative.
Sec. 21.058. PREVENTION OF COMPLIANCE. An employer, labor union, or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency wilfully obstructs or prevents a person from complying with this chapter or a rule adopted or order issued under this chapter.
Sec. 21.059. DISCRIMINATORY NOTICE OR ADVERTISEMENT. (a) An employer, labor organization, employment agency, or joint labor-management committee controlling an apprenticeship, on-the-job training, or other training or retraining program commits an unlawful employment practice if the employer, labor organization, employment agency, or committee prints or publishes or causes to be printed or published a notice or advertisement relating to employment that:
(1) indicates a preference, limitation, specification, or discrimination based on race, color, disability, religion, sex, national origin, or age; and
(2) concerns an employee’s status, employment, or admission to or membership or participation in a labor union or training or retraining program.
(b) This section does not apply if disability, religion, sex, national origin, or age is a bona fide occupational qualification.
Sec. 21.060. VIOLATION OF CONCILIATION AGREEMENT. A party to a conciliation agreement made under this chapter commits an unlawful employment practice if the party violates the terms of the conciliation agreement.
Sec. 21.061. INSUFFICIENT EVIDENCE OF UNLAWFUL PRACTICE. In the absence of other evidence of an unlawful employment practice, evidence of the employment of one person in place of another is not sufficient to establish an unlawful employment practice.
Sec. 21.101. AGE DISCRIMINATION LIMITED TO INDIVIDUALS OF CERTAIN AGE. Except as provided by Section 21.054, the provisions of this chapter referring to discrimination because of age or on the basis of age apply only to discrimination against an individual 40 years of age or older.
Sec. 21.102. BONA FIDE EMPLOYEE BENEFIT PLAN; PRODUCTION MEASUREMENT SYSTEM. (a) Except as provided by Subsections (b) and (c), an employer does not commit an unlawful employment practice by applying different standards of compensation or different terms, conditions, or privileges of employment under:
(1) a bona fide seniority system, merit system, or an employee benefit plan, such as a retirement, pension, or insurance plan, that is not a subterfuge to evade this chapter; or
(2) a system that measures earnings by quantity or quality of production.
(b) An employee benefit plan may not excuse a failure to hire on the basis of age. A seniority system or employee benefit plan may not require or permit involuntary retirement on the basis of age except as permitted by Section 21.103.
(c) This section does not apply to standards of compensation or terms, conditions, or privileges of employment that are discriminatory on the basis of race, color, disability, religion, sex, national origin, or age.
Sec. 21.103. COMPULSORY RETIREMENT PERMITTED FOR CERTAIN EMPLOYEES. This chapter does not prohibit the compulsory retirement of an employee who is:
(1) at least 65 years of age;
(2) employed in a bona fide executive or high policy-making position for the two years preceding retirement; and
(3) entitled to an immediate, nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan or a combination of plans of the employee’s employer that equals, in the aggregate, at least $27,000.
Sec. 21.104. AGE REQUIREMENT FOR PEACE OFFICERS OR FIRE FIGHTERS. An employer does not commit an unlawful employment practice by imposing a minimum or maximum age requirement for peace officers or fire fighters.
Sec. 21.105. DISCRIMINATION BASED ON DISABILITY. A provision in this subchapter or Subchapter B referring to discrimination because of disability or on the basis of disability applies only to discrimination because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job.
Sec. 21.106. SEX DISCRIMINATION. (a) A provision in this chapter referring to discrimination because of sex or on the basis of sex includes discrimination because of or on the basis of pregnancy, childbirth, or a related medical condition.
(b) A woman affected by pregnancy, childbirth, or a related medical condition shall be treated for all purposes related to employment, including receipt of a benefit under a fringe benefit program, in the same manner as another individual not affected but similar in the individual’s ability or inability to work.
Sec. 21.107. EFFECT ON ABORTION BENEFITS. This chapter does not:
(1) require an employer to pay for health insurance benefits for abortion unless the life of the mother would be endangered if the fetus were carried to term;
(2) preclude an employer from providing abortion benefits; or
(3) affect a bargaining agreement relating to abortion.
Sec. 21.108. DISCRIMINATION BASED ON RELIGION. A provision in this chapter referring to discrimination because of religion or on the basis of religion applies to discrimination because of or on the basis of any aspect of religious observance, practice, or belief, unless an employer demonstrates that the employer is unable reasonably to accommodate the religious observance or practice of an employee or applicant without undue hardship to the conduct of the employer’s business.
Sec. 21.109. EMPLOYMENT BY RELIGIOUS ORGANIZATION. (a) A religious corporation, association, society, or educational institution or an educational organization operated, supervised, or controlled in whole or in substantial part by a religious corporation, association, or society does not commit an unlawful employment practice by limiting employment or giving a preference to members of the same religion.
(b) Subchapter B does not apply to the employment of an individual of a particular religion by a religious corporation, association, or society to perform work connected with the performance of religious activities by the corporation, association, or society.
Sec. 21.110. DISCRIMINATION BASED ON NATIONAL ORIGIN. A provision in this chapter referring to discrimination because of national origin or on the basis of national origin includes discrimination because of or on the basis of the national origin of an ancestor.
Sec. 21.112. EMPLOYEES AT DIFFERENT LOCATIONS. An employer does not commit an unlawful employment practice by applying to employees who work in different locations different standards of compensation or different terms, conditions, or privileges of employment that are not discriminatory on the basis of race, color, disability, religion, sex, national origin, or age.
Sec. 21.113. IMBALANCE PLAN NOT REQUIRED. This chapter does not require a person subject to this chapter to grant preferential treatment to an individual or a group on the basis of race, color, disability, religion, sex, national origin, or age because of an imbalance between:
(1) the total number or percentage of persons of that individual’s or group’s race, color, disability, religion, sex, national origin, or age:
(A) employed by an employer;
(B) referred or classified for employment by an employment agency or labor organization;
(C) admitted to membership or classified by a labor organization; or
(D) admitted to or employed in an apprenticeship, on-the-job training, or other training or retraining program; and
(2) the total number or percentage of persons of that race, color, disability, religion, sex, national origin, or age in:
(A) a community, this state, a region, or other area; or
(B) the available work force in a community, this state, a region, or other area.
Sec. 21.114. PLAN TO END DISCRIMINATORY SCHOOL PRACTICES. A public school official does not commit an unlawful employment practice by adopting or implementing a plan reasonably designed to end discriminatory school practices.
Sec. 21.115. BUSINESS NECESSITY. (a) Subject to Subsection (b), an employer does not commit an unlawful employment practice by engaging in a practice that has a discriminatory effect and that would otherwise be prohibited by this chapter if the employer establishes that the practice:
(1) is not intentionally devised or operated to contravene the prohibitions of this chapter; and
(2) is justified by business necessity.
(b) An employer may not use a qualification standard, employment test, or other selection criterion based on an individual’s uncorrected vision unless the standard, test, or criterion is consistent with business necessity and job-related for the position to which the standard, test, or criterion applies.
Acts 2009, 81st Leg., R.S., Ch. 337 (H.B. 978), Sec. 4, eff. September 1, 2009.
Sec. 21.116. RELIANCE ON COMMISSION INTERPRETATION OR OPINION. (a) A person is not liable for an unlawful employment practice performed in good faith and in conformity with and in reliance on a written interpretation or opinion of the commission.
(b) In a proceeding alleging an unlawful employment practice, the respondent has the burden of pleading and proving the defense provided by this section.
Sec. 21.118. STATEWIDE HOMETOWN PLAN. Subchapter B does not apply to a labor union, firm, association, or individual participating on September 23, 1983, in a statewide hometown plan approved by the United States Department of Labor.
Sec. 21.119. BONA FIDE OCCUPATIONAL QUALIFICATION. If disability, religion, sex, national origin, or age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise, performing any of the following practices on the basis of disability, religion, sex, national origin, or age of an employee, member, or other individual is not an unlawful employment practice:
(1) an employer hiring and employing an employee;
(2) an employment agency classifying or referring an individual for employment;
(3) a labor organization classifying its members or classifying or referring an individual for employment; or
(4) an employer, labor organization, or joint labor-management committee controlling an apprenticeship, on-the-job training, or other training or retraining program admitting or employing an individual in its program.
Sec. 21.120. USE OR POSSESSION OF CONTROLLED SUBSTANCE. (a) An employer does not commit an unlawful employment practice by adopting a policy prohibiting the employment of an individual who currently uses or possesses a controlled substance as defined in Schedules I and II of Section 202, Controlled Substances Act, and their subsequent amendments (21 U.S.C. Section 801 et seq.), other than the use or possession of a drug taken under the supervision of a licensed health care professional or any other use or possession authorized by the Controlled Substances Act or any other federal or state law.
(b) Subsection (a) does not apply to a policy adopted or applied with the intent to discriminate because of race, color, sex, national origin, religion, age, or disability.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.04(a), eff. Sept. 1, 1995.
Sec. 21.121. WORK FORCE DIVERSITY PROGRAMS. An employer does not commit an unlawful employment practice by developing and implementing personnel policies that incorporate work force diversity programs.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.04(a), eff. Sept. 1, 1995.
Sec. 21.122. BURDEN OF PROOF IN DISPARATE IMPACT CASES. (a) An unlawful employment practice based on disparate impact is established under this chapter only if:
(1) a complainant demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, sex, national origin, religion, or disability and the respondent fails to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity; or
(2) the complainant makes the demonstration in accordance with federal law as that law existed June 4, 1989, with respect to the concept of alternative employment practices, and the respondent refuses to adopt such an alternative employment practice.
(b) To determine the availability of and burden of proof applicable to a disparate impact case involving age discrimination, the court shall apply the judicial interpretation of the Age Discrimination in Employment Act of 1967 and its subsequent amendments (29 U.S.C. Section 621 et seq.).
(c) To demonstrate that a particular employment practice causes a disparate impact, the complainant must demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complainant demonstrates to the satisfaction of the court that the elements of a respondent’s decision-making process are not capable of separation for analysis, that decision-making process may be analyzed as one employment practice.
(d) If the respondent demonstrates that a specific practice does not cause a disparate impact, the respondent may not be required to demonstrate that the practice is consistent with business necessity.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
Sec. 21.123. SCOPE OF DEFENSE. A demonstration that an employment practice is consistent with business necessity may not be used as a defense under this chapter against a complaint of intentional discrimination.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
Sec. 21.124. PROHIBITION AGAINST DISCRIMINATORY USE OF TEST SCORES. It is an unlawful employment practice for a respondent, in connection with the selection or referral of applicants for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, sex, national origin, religion, age, or disability.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
Sec. 21.125. CLARIFYING PROHIBITION AGAINST IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, SEX, NATIONAL ORIGIN, RELIGION, AGE, OR DISABILITY IN EMPLOYMENT PRACTICES. (a) Except as otherwise provided by this chapter, an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for an employment practice, even if other factors also motivated the practice, unless race, color, sex, national origin, religion, age, or disability is combined with objective job-related factors to attain diversity in the employer’s work force.
(b) In a complaint in which a complainant proves a violation under Subsection (a) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief except as otherwise provided by this subsection, and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a complaint under Subsection (a), but may not award damages or issue an order requiring an admission, reinstatement, hiring, promotion, or back pay.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1126, Sec. 1, eff. Sept. 1, 1997.
Sec. 21.126. COVERAGE OF PREVIOUSLY EXEMPT EMPLOYEES OF THE STATE OR POLITICAL SUBDIVISION OF THE STATE. It is an unlawful employment practice for a person elected to public office in this state or a political subdivision of this state to discriminate because of race, color, sex, national origin, religion, age, or disability against an individual who is an employee or applicant for employment to:
(1) serve on the elected official’s personal staff;
(2) serve the elected official on a policy-making level; or
(3) serve the elected official as an immediate advisor with respect to the exercise of the constitutional or legal powers of the office.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
Sec. 21.127. EXPANSION OF RIGHTS TO CHALLENGE DISCRIMINATORY SENIORITY SYSTEMS. With respect to a seniority system adopted for an intentionally discriminatory purpose in violation of this chapter, whether that discriminatory purpose is apparent on the face of the seniority provision, an unlawful employment practice occurs when:
(1) the seniority system is adopted;
(2) an individual becomes subject to the system; or
(3) an individual is injured by the application of the system or a provision of the system.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
Sec. 21.128. REASONABLE ACCOMMODATION; GOOD FAITH EFFORT. (a) It is an unlawful employment practice for a respondent covered under this chapter to fail or refuse to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee or applicant for employment, unless the respondent demonstrates that the accommodation would impose an undue hardship on the operation of the business of the respondent.
(b) A showing of undue hardship by the respondent is a defense to a complaint of discrimination made by an otherwise qualified individual with a disability. In considering a complaint based on a disability, the commission shall consider the reasonableness of the cost of any necessary workplace accommodation and the availability of alternatives or other appropriate relief.
(c) In a complaint in which a discriminatory employment practice involves the provision of a reasonable workplace accommodation under this chapter, damages may not be awarded under Subchapter F if the respondent demonstrates good faith efforts, in consultation with the otherwise qualified individual with a disability who has informed the respondent that accommodation is needed, to identify and make a reasonable workplace accommodation that would provide the individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.
(d) A respondent is not obligated to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual under Subsection (a) if the individual’s disability is based solely on being regarded as having an impairment that substantially limits at least one major life activity.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 337 (H.B. 978), Sec. 5, eff. September 1, 2009.
Sec. 21.129. COURT-ORDERED REMEDIES, AFFIRMATIVE ACTION AGREEMENTS, AND CONCILIATION AGREEMENTS NOT AFFECTED. This chapter does not affect a court-ordered remedy, affirmative action agreement, or conciliation agreement made in accordance with law.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.05(a), eff. Sept. 1, 1995.
SUBCHAPTER D. LOCAL ENFORCEMENT
Sec. 21.151. ENFORCEMENT BY ORDINANCE. A political subdivision may adopt and enforce an order or ordinance that prohibits a practice that is unlawful under this chapter, another state law, or federal law.
Sec. 21.152. CREATION OF LOCAL COMMISSION. (a) A political subdivision or two or more political subdivisions acting jointly may create a local commission to:
(1) promote the purposes of this chapter; and
(2) secure for all individuals in the jurisdiction of each political subdivision freedom from discrimination because of race, color, disability, religion, sex, national origin, or age.
(b) The political subdivision creating a local commission may appropriate funds for the expenses of the local commission.
Sec. 21.154. INVESTIGATORY AND CONCILIATORY POWERS OF LOCAL COMMISSION. (a) If the federal government or the Commission on Human Rights refers a complaint alleging a violation of this chapter to a local commission or defers jurisdiction over the subject matter of the complaint to a local commission, the local commission may receive, investigate, conciliate, or rule on the complaint and may file a civil action to carry out the purposes of this chapter.
(b) The local commission may request, and as necessary, compel by subpoena:
(1) the attendance of a witness for examination under oath; or
(2) the production for inspection or copying of a record, document, or other evidence relevant to the investigation of an alleged violation of this chapter.
Sec. 21.155. REFERRAL TO LOCAL COMMISSION AND ACTION ON COMPLAINTS. (a) The Commission on Human Rights shall refer a complaint concerning discrimination in employment because of race, color, disability, religion, sex, national origin, or age that is filed with that commission to a local commission with the necessary investigatory and conciliatory powers if:
(1) the complaint has been referred to the Commission on Human Rights by the federal government; or
(2) jurisdiction over the subject matter of the complaint has been deferred to the Commission on Human Rights by the federal government.
(b) The local commission shall take appropriate action to remedy the practice alleged as discriminatory in the referred complaint.
(c) If the local commission does not act on the complaint within 60 days or a longer time that is reasonable, the Commission on Human Rights shall reassume responsibility for the complaint and take appropriate action on the complaint.
Sec. 21.156. REFERRAL BY LOCAL COMMISSION TO STATE COMMISSION. A local commission may refer a matter under its jurisdiction to the Commission on Human Rights.
Sec. 21.201. FILING OF COMPLAINT; FORM AND CONTENT; SERVICE. (a) A person claiming to be aggrieved by an unlawful employment practice 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 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 executive director or the executive director’s designee 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 unlawful employment practices 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.
(g) If a perfected complaint is not received by the commission within 180 days of the alleged unlawful employment practice, the commission shall notify the respondent that a complaint has been filed and that the process of perfecting the complaint is in progress.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.06(a), eff. Sept. 1, 1995.
Sec. 21.202. STATUTE OF LIMITATIONS. (a) A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.
(b) The commission shall dismiss an untimely complaint.
Sec. 21.203. ALTERNATIVE DISPUTE RESOLUTION; OFFICE. (a) 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 this chapter. The settlement of a disputed claim under this chapter that results from the use of traditional or alternative means of dispute resolution is binding on the parties to the claim.
(b) The commission shall establish an office of alternative dispute resolution. At any time after a complaint is received under Section 21.201, at the request of a party or at the direction of the commission the matter may be referred to the office of alternative dispute resolution.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.06(b), eff. Sept. 1, 1995.
Sec. 21.204. INVESTIGATION BY COMMISSION. (a) The executive director or a staff member of the commission designated by the executive director shall investigate a complaint and determine if there is reasonable cause to believe that the respondent engaged in an unlawful employment practice as alleged in the complaint.
(b) If the federal government has referred the complaint to the commission or has deferred jurisdiction over the subject matter of the complaint to the commission, the executive director or the executive director’s designee shall promptly investigate the allegations stated in the complaint.
Sec. 21.205. LACK OF REASONABLE CAUSE; DISMISSAL OF COMPLAINT. (a) If after investigation the executive director or the executive director’s designee determines that reasonable cause does not exist to believe that the respondent engaged in an unlawful employment practice as alleged in a complaint, the executive director or the executive director’s designee shall issue a written determination, incorporating the finding that the evidence does not support the complaint and dismissing the complaint.
(b) The executive director or the executive director’s designee shall serve a copy of the determination on the complainant, the respondent, and other agencies as required by law.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 208, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 21.206. DETERMINATION OF REASONABLE CAUSE; REVIEW BY PANEL. (a) If after investigation the executive director or the executive director’s designee determines that there is reasonable cause to believe that the respondent engaged in an unlawful employment practice as alleged in a complaint, the executive director or the executive director’s designee shall review with a panel of three commissioners the evidence in the record.
(b) If after the review at least two of the three commissioners determine that there is reasonable cause to believe that the respondent engaged in an unlawful employment practice, the executive director shall:
(1) issue a written determination incorporating the executive director’s 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. 21.207. RESOLUTION BY INFORMAL METHODS. (a) If a determination of reasonable cause is made under Section 21.206, the commission shall endeavor to eliminate the alleged unlawful employment practice 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 discriminatory practice by conference, conciliation, or persuasion, regardless of whether there is a determination of reasonable cause.
Sec. 21.208. NOTICE OF DISMISSAL OR UNRESOLVED COMPLAINT. If the commission dismisses a complaint filed under Section 21.201 or does not resolve the complaint before the 181st day after the date the complaint was filed, the commission shall inform the complainant of the dismissal or failure to resolve the complaint in writing by certified mail.
Sec. 21.210. TEMPORARY INJUNCTIVE RELIEF. (a) If the commission concludes from a preliminary investigation of an unlawful employment practice alleged in a complaint that prompt judicial action is necessary to carry out the purpose of this chapter, the commission shall file a petition seeking appropriate temporary relief against the respondent pending final determination of a proceeding under this chapter.
(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. 21.211. ELECTION OF REMEDIES. A person who has initiated an action in a court of competent jurisdiction or who has an action pending before an administrative agency under other law or an order or ordinance of a political subdivision of this state based on an act that would be an unlawful employment practice under this chapter may not file a complaint under this subchapter for the same grievance.
Sec. 21.251. 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;
(2) the commission’s efforts to resolve the discriminatory practice to the satisfaction of the complainant and respondent through conciliation have been unsuccessful; and
(3) a majority of the commissioners determines that the civil action may achieve the purposes of this chapter.
(b) The complainant may intervene in a civil action brought by the commission.
Sec. 21.252. NOTICE OF COMPLAINANT’S RIGHT TO FILE CIVIL ACTION. (a) A complainant who receives notice under Section 21.208 that the complaint is not dismissed or 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 may issue the notice.
(d) Failure 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. 21.253. EXPEDITED NOTICE OF COMPLAINANT’S RIGHT TO FILE CIVIL ACTION. (a) On receipt of a written request by a complainant, the commission shall issue before the 181st day after the date the complaint was filed a notice of the right to file a civil action if:
(1) the complainant alleges an unlawful employment practice based on the complainant’s status as an individual with a life-threatening illness, as confirmed in writing by a physician licensed to practice medicine in this state; or
(2) the executive director certifies that administrative processing of the complaint cannot be completed before the 181st day after the date the complaint was filed.
(b) The commission shall issue the expedited notice by certified mail not later than the fifth business day after the date the commission receives the written request.
Sec. 21.254. 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. 21.255. 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 21.254 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 this chapter was violated.
Sec. 21.256. STATUTE OF LIMITATIONS. A civil action may not be brought under this subchapter later than the second anniversary of the date the complaint relating to the action is filed.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.07(a), eff. Sept. 1, 1995.
Sec. 21.257. 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. 21.258. INJUNCTION; EQUITABLE RELIEF. (a) On finding that a respondent engaged in an unlawful employment practice as alleged in a complaint, a court may:
(1) prohibit by injunction the respondent from engaging in an unlawful employment practice; 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;
(3) admitting to or restoring union membership;
(4) admitting to or participating in a guidance program, apprenticeship, or on-the-job training or other training or retraining program, using objective job-related criteria in admitting an individual to a program;
(5) reporting on the manner of compliance with the terms of a final order issued under this chapter; and
(6) 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. 21.2585. COMPENSATORY AND PUNITIVE DAMAGES. (a) On finding that a respondent engaged in an unlawful intentional employment practice 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 a discriminatory practice 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 21.258(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.
Added by Acts 1995, 74th Leg., ch. 76, Sec. 9.07(b), eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 872, Sec. 13, eff. Sept. 1, 1999.
Sec. 21.259. ATTORNEY’S FEES; COSTS. (a) In a proceeding under this chapter, 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 chapter, the court, in its discretion, may include reasonable expert fees.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 9.07(c), eff. Sept. 1, 1995.
Sec. 21.260. RELIEF FOR DISABLED EMPLOYEE OR APPLICANT. If the affected employee or applicant for employment has a disability, a court shall consider the undue hardship defense, including the reasonableness of the cost of necessary workplace accommodation and the availability of alternatives or other appropriate relief.
Sec. 21.261. COMPELLED COMPLIANCE. If an employer, employment agency, or labor organization 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. 21.301. RECORDKEEPING; REPORTS. A person under investigation in connection with a charge filed under this chapter and who is subject to this chapter shall:
(1) make and keep records relevant to the determination of whether unlawful employment practices have been or are being committed;
(2) preserve the records for the period required by commission rule or court order; and
(3) make reports from the records as prescribed by commission rule or court order as reasonable, necessary, or appropriate for the enforcement of this chapter or a rule or order issued under this chapter.
Sec. 21.302. RECORDS; TRAINING PROGRAM. The commission by rule shall require that a person subject to this chapter who controls an apprenticeship, on-the-job training, or other training or retraining program:
(1) keep all records reasonably necessary to carry out the purposes of this chapter, including a list of applicants for participation in the program and a record of the chronological order in which applications for the program were received; and
(2) furnish to the commission on request a detailed description of the manner in which individuals are selected to participate in the program.
Sec. 21.303. CONFORMITY TO FEDERAL LAW. A report or record required by the commission under this subchapter must conform to a similar record or report required under 42 U.S.C. Section 2000e-8(c).
Sec. 21.304. CONFIDENTIALITY OF RECORDS. An officer or employee of the commission may not disclose to the public information obtained by the commission under Section 21.204 except in compliance with Section 21.305 and as necessary to the conduct of a proceeding under this chapter.
Acts 2011, 82nd Leg., R.S., Ch. 1012 (H.B. 2463), Sec. 1, eff. September 1, 2011.
Sec. 21.305. ACCESS TO COMMISSION RECORDS. (a) Except as provided by Subsection (c), the commission shall adopt rules allowing a party to a complaint filed under Section 21.201 reasonable access to commission records relating to the complaint.
(b) Except as provided by Subsection (c), unless the complaint is resolved through a voluntary settlement or conciliation, on the written request of a party the executive director shall allow the party access to the commission records:
(1) after the final action of the commission; or
(2) if a civil action relating to the complaint is filed in federal court alleging a violation of federal law.
(c) Notwithstanding Section 552.023, Government Code, the following information is not considered public information for the purposes of Chapter 552, Government Code, and may not be disclosed to a party to a complaint filed under Section 21.201:
(1) identifying information of persons other than the parties and witnesses to the complaint;
(2) identifying information about confidential witnesses, including any confidential statement given by the witness;
(3) sensitive medical information about the charging party or a witness to the complaint that is:
(A) provided by a person other than the person requesting the information; and
(B) not relevant to issues raised in the complaint, including information that identifies injuries, impairments, pregnancies, disabilities, or other medical conditions that are not obviously apparent or visible;
(4) identifying information about a person other than the charging party that is found in sensitive medical information regardless of whether the information is relevant to the complaint;
(5) nonsensitive medical information that is relevant to the complaint if the disclosure would result in an invasion of personal privacy, unless the information is generally known or has been previously reported to the public;
(6) identifying information about other respondents or employers not a party to the complaint;
(7) information relating to settlement offers or conciliation agreements received from one party that was not conveyed to the other and information contained in a separate alternative dispute resolution file prepared for mediation purposes; and
(8) identifying information about a person on whose behalf a complaint was filed if the person has requested that the person’s identity as a complaining party remain confidential.
(d) In this section, “identifying information” has the meaning assigned by Section 32.51, Penal Code.
Acts 2011, 82nd Leg., R.S., Ch. 1012 (H.B. 2463), Sec. 2, eff. September 1, 2011.
Sec. 21.306. SUBPOENA OF RECORD OR REPORT. (a) If a person fails to permit access, examination, photographing, or copying or fails to make, keep, or preserve a record or make a report in accordance with this subchapter, the commission may issue a subpoena requiring compliance.
(b) On a failure to comply with a subpoena of the commission, the commission shall apply for an order directing compliance to the district court of the county in which the person is found, resides, or transacts business.
SUBCHAPTER H. DISCRIMINATORY USE OF GENETIC INFORMATION
Sec. 21.401. DEFINITIONS. In this subchapter:
(1) “DNA” means deoxyribonucleic acid.
(2) “Family health history” means a history taken by a physician or genetic professional to ascertain genetic or medical information about an individual’s family.
(3) “Genetic characteristic” means a scientifically or medically identifiable genetic or chromosomal variation, composition, or alteration that:
(A) is scientifically or medically believed to:
(i) predispose an individual to a disease, disorder, or syndrome; or
(ii) be associated with a statistically significant increased risk of developing a disease, disorder, or syndrome; and
(B) may or may not be associated with any symptom of an ongoing disease, disorder, or syndrome affecting an individual on the date the genetic information is obtained regarding the individual.
(4) “Genetic information” means information that is:
(A) obtained from or based on a scientific or medical determination of the presence or absence in an individual of a genetic characteristic; or
(B) derived from the results of a genetic test performed on, or a family health history obtained from, an individual.
(5) “Genetic test” means a presymptomatic laboratory test of an individual’s genes, gene products, or chromosomes that:
(A) analyzes the individual’s DNA, RNA, proteins, or chromosomes; and
(B) is performed to identify any genetic variation, composition, or alteration that is associated with the individual’s having a statistically increased risk of:
(i) developing a clinically recognized disease, disorder, or syndrome; or
(ii) being a carrier of a clinically recognized disease, disorder, or syndrome.
The term does not include a blood test, cholesterol test, urine test, or other physical test used for a purpose other than determining a genetic or chromosomal variation, composition, or alteration in a specific individual.
(6) “RNA” means ribonucleic acid.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(a), eff. Sept. 1, 2003.
Sec. 21.402. DISCRIMINATORY USE OF GENETIC INFORMATION PROHIBITED. (a) An employer commits an unlawful employment practice if the employer fails or refuses to hire, discharges, or otherwise discriminates against an individual with respect to compensation or the terms, conditions, or privileges of employment:
(1) on the basis of genetic information concerning the individual; or
(2) because of the refusal of the individual to submit to a genetic test.
(b) A labor organization commits an unlawful employment practice if the labor organization excludes or expels from membership or otherwise discriminates against an individual:
(1) on the basis of genetic information concerning the individual; or
(2) because of the refusal of the individual to submit to a genetic test.
(c) An employment agency commits an unlawful employment practice if the employment agency classifies or refers for employment, fails or refuses to refer for employment, or otherwise discriminates against an individual:
(1) on the basis of genetic information concerning the individual; or
(2) because of the refusal of the individual to submit to a genetic test.
(d) An employer, labor organization, or employment agency commits an unlawful employment practice if the employer, labor organization, or employment agency limits, segregates, or classifies an employee, member, or applicant for employment or membership in a way that would deprive or tend to deprive the employee, member, or applicant of employment opportunities or otherwise adversely affect the status of the employee, member, or applicant:
(1) on the basis of genetic information concerning the employee, member, or applicant; or
(2) because of the refusal of the employee, member, or applicant to submit to a genetic test.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997.
Sec. 21.403. CONFIDENTIALITY OF GENETIC INFORMATION. (a) Except as provided by Section 21.4031, genetic information is confidential and privileged regardless of the source of the information.
(b) A person who holds genetic information about an individual may not disclose or be compelled to disclose, by subpoena or otherwise, that information unless the disclosure is specifically authorized as provided by Section 21.4032.
(c) This section applies to a redisclosure of genetic information by a secondary recipient of the information after disclosure of the information by an initial recipient.
(d) Redesignated as V.T.C.A., Labor Code Sec. 21.4031 by Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(d).
(e) A person who discloses genetic information in violation of this section is liable for a civil penalty of not more than $10,000. The attorney general may bring an action in the name of the state to recover the penalty, plus reasonable attorney’s fees and court costs.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 965, Sec. 1, eff. June 20, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(b) to (e), eff. Sept. 1, 2003.
Sec. 21.4031. EXCEPTIONS TO CONFIDENTIALITY. (a) Subject to Subchapter G, Chapter 411, Government Code, genetic information may be disclosed without an authorization required under Section 21.4032 if the disclosure is:
(1) authorized under a state or federal criminal law relating to:
(A) the identification of individuals; or
(B) a criminal or juvenile proceeding, an inquest, or a child fatality review by a multidisciplinary child-abuse team;
(2) required under a specific order of a state or federal court;
(3) for the purpose of establishing paternity as authorized under a state or federal law;
(4) made to provide genetic information relating to a decedent and the disclosure is made to the blood relatives of the decedent for medical diagnosis; or
(5) made to identify a decedent.
(b) Genetic information may be disclosed without an authorization under Section 21.4032 if:
(1) the disclosure is for information from a research study in which the procedure for obtaining informed written consent and the use of the information is governed by national standards for protecting participants involved in research projects, including guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46;
(2) the information does not identify a specific individual; and
(3) the information is provided to the Texas Department of Health to comply with Chapter 87, Health and Safety Code.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997. Redesignated from Labor Code Sec. 21.403(c), (d) and amended by Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(d), eff. Sept. 1, 2003.
Sec. 21.4032. AUTHORIZED DISCLOSURE. An individual or the legal representative of an individual may authorize disclosure of genetic information relating to the individual by a written authorization that includes:
(1) a description of the information to be disclosed;
(2) the name of the person to whom the disclosure is made; and
(3) the purpose for the disclosure.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997. Redesignated from Labor Code Sec. 21.403(b) and amended by Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(e), eff. Sept. 1, 2003.
Sec. 21.404. DISCLOSURE OF TEST RESULTS TO INDIVIDUAL TESTED. An individual who submits to a genetic test has the right to know the results of the test. On the written request by the individual, the entity that performed the test shall disclose the test results to:
(1) the individual; or
(2) a physician designated by the individual.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(f), eff. Sept. 1, 2003.
Sec. 21.405. DESTRUCTION OF SAMPLE MATERIAL; EXCEPTIONS. A sample of genetic material obtained from an individual for a genetic test shall be destroyed promptly after the purpose for which the sample was obtained is accomplished unless:
(1) the sample is retained under a court order;
(2) the individual authorizes retention of the sample for medical treatment or scientific research;
(3) the sample was obtained for research that is cleared by an institutional review board and retention of the sample is:
(A) under a requirement the institutional review board imposes on a specific research project; or
(B) authorized by the research participant with institutional review board approval under federal law; or
(4) the sample was obtained for a screening test established by the Texas Department of Health under Section 33.011, Health and Safety Code, and performed by that department or a laboratory approved by that department.
Added by Acts 1997, 75th Leg., ch. 1215, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 11.001(g), eff. Sept. 1, 2003.
SUBCHAPTER I. PERSONNEL POLICIES AND PROCEDURES
Sec. 21.451. DEFINITION. In this subchapter, “state agency” does not include a public junior college as defined by Section 61.003, Education Code.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.452. DEVELOPMENT AND IMPLEMENTATION OF PERSONNEL POLICIES AND PROCEDURES. Each state agency shall develop and implement personnel policies and procedures that comply with this chapter, including personnel selection procedures that incorporate a workforce diversity program.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 208, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 21.453. REVIEW. (a) The commission shall review the personnel policies and procedures of each state agency on a six-year cycle to determine whether the policies and procedures comply with this chapter.
(b) The commission by rule shall establish a system to stagger the reviews of state agency personnel policies and procedures required under this section.
(c) If the commission determines that the personnel policies and procedures of a state agency do not comply with this chapter, the commission shall recommend appropriate revisions to the personnel policies and procedures.
(d) The state agency shall take these recommendations into consideration and determine whether to revise the personnel policies and procedures.
(e) The review of a state agency’s personnel policies and procedures shall be completed within one year.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.454. COMPLIANCE REPORT. Not later than 60 days after the commission completes the review of a state agency’s personnel policies and procedures as required by Section 21.453 and provides its review and any recommendations to the agency, the agency shall submit to the commission, the governor, the legislature, and the Legislative Budget Board a report detailing:
(1) whether the agency implemented the recommendations of the commission; and
(2) if the agency did not implement all of the commission’s recommendations, the reasons for rejecting those recommendations.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 208, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 21.455. REIMBURSEMENT; AUDIT. (a) A state agency shall reimburse the commission through interagency contract for the reasonable and necessary expenses incurred by the commission in conducting a review under Section 21.453.
(b) The commission shall 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) The amount of reimbursement paid by a state agency under Subsection (a) and the record maintained by the commission under Subsection (b) is subject to audit by the state auditor in accordance with Chapter 321, Government Code.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 785, Sec. 61, eff. Sept. 1, 2003.
Sec. 21.456. FAILURE TO COMPLY WITH SUBCHAPTER; ADMINISTRATIVE PENALTY. (a) If the commission determines that a state agency has failed to comply with this subchapter, the commission shall certify that determination to the comptroller.
(b) On receipt of a certification by the commission under Subsection (a), the comptroller shall notify the state agency that is the subject of the certification that funds appropriated to the agency are subject to a reduction in the amount of $5,000 as provided by this section unless, not later than the 30th day after the date the agency receives notice from the comptroller under this subsection, the agency submits to the comptroller proof that the agency has complied with this subchapter. If the agency fails to submit to the comptroller the proof required by this subsection, the comptroller shall:
(1) if the state agency failed to develop or implement personnel policies and procedures as required by Section 21.452:
(A) reduce the funds appropriated to the agency for the fiscal year in which the agency fails to comply with this subchapter by the amount of $5,000; or
(B) if all funds appropriated to the agency for the fiscal year in which the agency fails to comply with this subchapter have been distributed to the agency, reduce the funds appropriated to the agency during the next fiscal year by the amount of $5,000; or
(2) if the state agency failed to reimburse the commission as required by Section 21.455:
(A) transfer the amount of the reimbursement from the agency to the commission’s appropriations and reduce the funds appropriated to the agency for the fiscal year in which the agency fails to comply with this subchapter by an amount that equals the difference between the amount of the reimbursement and $5,000; or
(B) if all funds appropriated to the agency for the fiscal year in which the agency fails to comply with this subchapter have been distributed to the agency:
(i) during the next fiscal year, transfer the amount of the reimbursement from the funds appropriated to the agency for that fiscal year to the commission’s appropriations; and
(ii) reduce the funds appropriated to the agency during the next fiscal year by an amount that equals the difference between the amount of the reimbursement and $5,000.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
SUBCHAPTER J. HIRING PRACTICES
Sec. 21.501. WORKFORCE ANALYSIS. Each state fiscal biennium, each state agency shall analyze its current workforce and compare 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.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.502. RECRUITMENT PLAN. Based upon a workforce availability analysis under Section 21.501 that demonstrates the exclusion or underutilization of African Americans, Hispanic Americans, and females, or court-ordered remedies, or supervised conciliations or settlement agreements, each state agency, other than a public junior college as defined by Section 61.003, Education Code, shall develop and implement a plan to recruit qualified African Americans, Hispanic Americans, and females. The plan must comply with this chapter. The commission shall monitor state agencies to determine compliance with this section.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.503. EFFECT ON REMEDIES UNDER OTHER LAWS. This subchapter does not affect a remedy, agreement, settlement, or affirmative action plan that has been ordered or approved by a court or that has been adopted in accordance with other law.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.504. ANNUAL REPORT. Not later than November 1 of each calendar year, each state agency shall report to the commission the total number of African Americans, Hispanic Americans, females, and other persons hired for each job category by the agency during the preceding state fiscal year. The commission shall compile this information and submit a report based on the information to the governor and the Legislative Budget Board not later than January 1 of the subsequent calendar year.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
SUBCHAPTER K. EQUAL EMPLOYMENT OPPORTUNITY REPORTS
Sec. 21.551. DEFINITION. In this subchapter, “racial and ethnic group” means Caucasian American, African American, or Hispanic American.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.552. EQUAL EMPLOYMENT OPPORTUNITY REPORT REQUIRED. (a) Not later than November 1 of each year, each state agency shall report equal employment opportunity information for the preceding fiscal year to the commission as required by this subchapter. The report must be made in the form prescribed by the commission and include information compiled on a monthly basis.
(b) Each year the commission shall compile equal employment opportunity information reported to the commission by a state agency. The information must include:
(1) the total number of employees of the agency and the total number of new employees hired since the date of the last report made by the agency;
(2) the total number of employees of the agency listed by racial and ethnic group and the percentage of the total number of agency employees for each racial and ethnic group, including a distinction for those categories between the total number of employees and the total number of employees hired since the date of the last report made by the agency;
(3) the total number of male employees and the total number of female employees of the agency, including a distinction for those categories between the total number of employees and the total number of employees hired since the date of the last report made by the agency;
(4) the total number of male employees and the total number of female employees of the agency for each racial and ethnic group, including a distinction for those categories between the total number of employees and the total number of employees hired since the date of the last report made by the agency; and
(5) the total number of employees of the agency listed by job classification and the total number of employees for each sex and racial and ethnic group listed by job classification, including a distinction for those categories between the total number of employees and the total number of employees hired since the date of the last report made by the agency.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 1301 (H.B. 2716), Sec. 2, eff. June 18, 2005.
Acts 2013, 83rd Leg., R.S., Ch. 1312 (S.B. 59), Sec. 78, eff. September 1, 2013.
Sec. 21.553. COOPERATION WITH COMPTROLLER AND UNIFORM STATEWIDE ACCOUNTING SYSTEM; REPORT. (a) The commission shall compile the information reported to the commission under this subchapter with the assistance of the comptroller and the uniform statewide accounting system.
(b) The commission shall conduct an analysis of the information reported to the commission under this subchapter and report the results of that analysis to the legislature, the Legislative Budget Board, and the governor not later than January 1 of each odd-numbered year. The report required under this subsection must be written in plain language.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1312 (S.B. 59), Sec. 79, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1312 (S.B. 59), Sec. 80, eff. September 1, 2013.
Sec. 21.554. FORM. Not later than December 15 of each year, the commission shall notify each state agency of the form to be used to make a report under this subchapter for the following year.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.555. FAILURE TO FILE REQUIRED REPORT; ADMINISTRATIVE PENALTY. (a) If the commission determines that a state agency has failed to file a report required under this subchapter, the commission shall certify that determination to the comptroller.
(b) On receipt of a certification by the commission under Subsection (a), the comptroller shall notify the state agency that is the subject of the certification that funds appropriated to the agency are subject to a reduction in the amount of $2,000 as provided by this section unless, not later than the 30th day after the date the agency receives notice from the comptroller under this subsection, the agency submits to the comptroller proof that the agency filed the report required under this subchapter. If the agency fails to submit to the comptroller the proof required by this subsection, the comptroller shall:
(1) reduce the funds appropriated to the agency for the fiscal year in which the agency fails to file the report required under this subchapter by the amount of $2,000; or
(2) if all funds appropriated to the agency for the fiscal year in which the agency fails to file the report required under this subchapter have been distributed to the agency, reduce the funds appropriated to the agency during the next fiscal year by the amount of $2,000.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999.
Sec. 21.556. REQUIRED COMPLIANCE TRAINING FOR STATE AGENCIES. (a) A state agency that receives three or more complaints of employment discrimination in a fiscal year, other than complaints determined to be without merit, shall provide a comprehensive equal employment opportunity training program to appropriate supervisory and managerial employees.
(b) The training may be provided by the commission or by another entity or person approved by the commission, including a state agency.
(c) The state agency shall provide documentation of the training to the commission if the training is not conducted by the commission. The documentation shall include the dates the training was provided, the names of the persons attending the training, an agenda for the training program, and the name of the entity or person providing the training.
(d) The commission by rule shall adopt minimum standards for a training program described by Subsection (a) and shall approve an entity or person to provide a training program if the program complies with the minimum standards adopted by the commission under this subsection.
(e) An agency required to participate in a program under this section shall pay the cost of attending the program or shall reimburse the commission or state agency providing the program through interagency contract. The cost of providing the program shall be determined and approved by the commission or state agency. The state auditor may audit the commission’s expenditure of fees collected under this section based on a risk assessment performed by the state auditor and subject to the approval by the legislative audit committee of including the audit in the audit plan under Section 321.013, Government Code.
Added by Acts 1999, 76th Leg., ch. 872, Sec. 15, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 785, Sec. 62, eff. Sept. 1, 2003.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 46. WEAPONS
Sec. 46.01. DEFINITIONS. In this chapter:
(1) “Club” means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.
(2) “Explosive weapon” means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.
(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
(4) “Firearm silencer” means any device designed, made, or adapted to muffle the report of a firearm.
(5) “Handgun” means any firearm that is designed, made, or adapted to be fired with one hand.
(6) “Illegal knife” means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) “Knife” means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.
(8) “Knuckles” means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles.
(9) “Machine gun” means any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.
(10) “Short-barrel firearm” means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.
(11) “Switchblade knife” means any knife that has a blade that folds, closes, or retracts into the handle or sheath and that opens automatically by pressure applied to a button or other device located on the handle or opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force. The term does not include a knife that has a spring, detent, or other mechanism designed to create a bias toward closure and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure and open the knife.
(12) “Armor-piercing ammunition” means handgun ammunition that is designed primarily for the purpose of penetrating metal or body armor and to be used principally in pistols and revolvers.
(13) “Hoax bomb” means a device that:
(A) reasonably appears to be an explosive or incendiary device; or
(B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.
(14) “Chemical dispensing device” means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.
(15) “Racetrack” has the meaning assigned that term by the Texas Racing Act (Article 179e, Vernon’s Texas Civil Statutes).
(16) “Zip gun” means a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.
(17) “Tire deflation device” means a device, including a caltrop or spike strip, that, when driven over, impedes or stops the movement of a wheeled vehicle by puncturing one or more of the vehicle’s tires. The term does not include a traffic control device that:
(A) is designed to puncture one or more of a vehicle’s tires when driven over in a specific direction; and
(B) has a clearly visible sign posted in close proximity to the traffic control device that prohibits entry or warns motor vehicle operators of the traffic control device.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 917, ch. 342, Sec. 13, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 2650, ch. 457, Sec. 1, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4830, ch. 852, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(46), eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 749, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 229, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1999, 76th Leg., ch. 1445, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 12A.001, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1199 (H.B. 4456), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 920 (S.B. 1416), Sec. 1, eff. September 1, 2011.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 910, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 109, ch. 49, Sec. 1, eff. April 15, 1975; Acts 1975, 64th Leg., p. 918, ch. 342, Sec. 14, eff. Sept. 1, 1975; Acts 1975, 64th Leg., p. 1330, ch. 494, Sec. 2, eff. June 19, 1975; Acts 1977, 65th Leg., p. 1879, ch. 746, Sec. 26, eff. Aug. 29, 1977; Acts 1981, 67th Leg., p. 2273, ch. 552, Sec. 1, eff. Aug. 31, 1981; Acts 1983, 68th Leg., p. 5113, ch. 931, Sec. 1, eff. Aug. 29, 1983; Acts 1987, 70th Leg., ch. 262, Sec. 21, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 873, Sec. 25, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 168, Sec. 1, eff. Sept. 1, 1991. Redesignated from Penal Code Sec. 46.02, 46.03 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 229, Sec. 2, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 16, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 754, Sec. 15, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 790, Sec. 16, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 998, Sec. 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 10.02, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1221, Sec. 1, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 24, eff. Sept. 1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 693 (H.B. 1815), Sec. 1, eff. September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 679 (H.B. 25), Sec. 1, eff. September 1, 2011.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 554, S.B. 11 and H.B. 910, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 46.03. PLACES WEAPONS PROHIBITED. (a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;
(2) on the premises of a polling place on the day of an election or while early voting is in progress;
(3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
(4) on the premises of a racetrack;
(5) in or into a secured area of an airport; or
(6) within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that:
(A) going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or
(B) possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.
(b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.
(c) In this section:
(1) “Premises” has the meaning assigned by Section 46.035.
(2) “Secured area” means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.
(d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as:
(1) a member of the armed forces or national guard;
(2) a guard employed by a penal institution; or
(3) a security officer commissioned by the Texas Private Security Board if:
(A) the actor is wearing a distinctive uniform; and
(B) the firearm or club is in plain view; or
(4) a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:
(A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s firearm in plain view; or
(B) not wearing the uniform of a security officer and carrying the officer’s firearm in a concealed manner.
(e) It is a defense to prosecution under Subsection (a)(5) that the actor checked all firearms as baggage in accordance with federal or state law or regulations before entering a secured area.
(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.
(h) It is a defense to prosecution under Subsection (a)(4) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies, if:
(1) the actor is wearing a distinctive uniform; and
(2) the firearm or club is in plain view.
(i) It is an exception to the application of Subsection (a)(6) that the actor possessed a firearm or club:
(1) while in a vehicle being driven on a public road; or
(2) at the actor’s residence or place of employment.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2962, ch. 508, Sec. 1, eff. Aug. 29, 1983; Acts 1989, 71st Leg., ch. 749, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 203, Sec. 2.79; Acts 1991, 72nd Leg., ch. 386, Sec. 71, eff. Aug. 26, 1991; Acts 1991, 72nd Leg., ch. 433, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 554, Sec. 50, eff. Sept. 1, 1991. Renumbered from Penal Code Sec. 46.04 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 229, Sec. 3, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 260, Sec. 42, eff. May 30, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 17, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 790, Sec. 17, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 10.03, 31.01(70), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1043, Sec. 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1221, Sec. 2, 3, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 25, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1060, Sec. 1, 2 eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1178, Sec. 3, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 4B.21, eff. September 1, 2009.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 910, S.B. 11 and S.B. 273, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder’s person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder’s person:
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established place of religious worship.
(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.
(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed.
(e) A license holder who is licensed as a security officer under Chapter 1702, Occupations Code, and employed as a security officer commits an offense if, while in the course and scope of the security officer’s employment, the security officer violates a provision of Subchapter H, Chapter 411, Government Code.
(f) In this section:
(1) “Amusement park” means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
(2) “License holder” means a person licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.
(3) “Premises” means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.
(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.
Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1214 (H.B. 1889), Sec. 2
(h-1) It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time of the commission of the offense, was:
(1) an active judicial officer, as defined by Section 411.201, Government Code; or
(2) a bailiff designated by the active judicial officer and engaged in escorting the officer.
Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1222 (H.B. 2300), Sec. 5
(h-1) It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:
(1) a judge or justice of a federal court;
(2) an active judicial officer, as defined by Section 411.201, Government Code; or
(3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.
(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.
(j) Subsections (a) and (b)(1) do not apply to a historical reenactment performed in compliance with the rules of the Texas Alcoholic Beverage Commission.
(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.
Added by Acts 1995, 74th Leg., ch. 229, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 10.04, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 26, 27, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.833, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 976 (H.B. 1813), Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1214 (H.B. 1889), Sec. 2, eff. June 15, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1222 (H.B. 2300), Sec. 5, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 687 (H.B. 2664), Sec. 1, eff. September 1, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 72 (S.B. 299), Sec. 1, eff. September 1, 2013.
Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
(1) the date of the person’s release from confinement following conviction of the misdemeanor; or
(2) the date of the person’s release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.
(d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 46.05 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 2001, 77th Leg., ch. 23, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 836, Sec. 4, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1146 (H.B. 2730), Sec. 11.24, eff. September 1, 2009.
Sec. 46.041. UNLAWFUL POSSESSION OF METAL OR BODY ARMOR BY FELON. (a) In this section, “metal or body armor” means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.
(b) A person who has been convicted of a felony commits an offense if after the conviction the person possesses metal or body armor.
(c) An offense under this section is a felony of the third degree.
Added by Acts 2001, 77th Leg., ch. 452, Sec. 1, eff. Sept. 1, 2001.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see S.B. 473, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) knuckles;
(6) armor-piercing ammunition;
(7) a chemical dispensing device;
(8) a zip gun; or
(9) a tire deflation device.
(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under this section that the actor’s conduct:
(1) was incidental to dealing with a short-barrel firearm or tire deflation device solely as an antique or curio;
(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b); or
(3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, agency, or institution listed in Subsection (b).
(e) An offense under Subsection (a)(1), (2), (3), (4), (6), (7), or (8) is a felony of the third degree. An offense under Subsection (a)(9) is a state jail felony. An offense under Subsection (a)(5) is a Class A misdemeanor.
(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:
(1) provided by the Texas Commission on Law Enforcement; or
(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.
(g) In Subsection (f), “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 918, ch. 342, Sec. 15, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 2650, ch. 457, Sec. 2, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4831, ch. 852, Sec. 2, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(47), eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 229, Sec. 2, eff. Sept. 1, 1991; Renumbered from Penal Code Sec. 46.06 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1071, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1035 (H.B. 1132), Sec. 2.01, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1278 (H.B. 2303), Sec. 7, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 920 (S.B. 1416), Sec. 2, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.60, eff. May 18, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 960 (H.B. 1862), Sec. 1, eff. September 1, 2013.
Sec. 46.06. UNLAWFUL TRANSFER OF CERTAIN WEAPONS. (a) A person commits an offense if the person:
(1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;
(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
(3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;
(4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:
(A) the person’s release from confinement following conviction of the felony; or
(B) the person’s release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;
(5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered; or
(6) knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.
(b) In this section:
(1) “Intoxicated” means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.
(2) “Active protective order” means a protective order issued under Title 4, Family Code, that is in effect. The term does not include a temporary protective order issued before the court holds a hearing on the matter.
(c) It is an affirmative defense to prosecution under Subsection (a)(2) that the transfer was to a minor whose parent or the person having legal custody of the minor had given written permission for the sale or, if the transfer was other than a sale, the parent or person having legal custody had given effective consent.
(d) An offense under this section is a Class A misdemeanor, except that an offense under Subsection (a)(2) is a state jail felony if the weapon that is the subject of the offense is a handgun.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1985, 69th Leg., ch. 686, Sec. 1, eff. Sept. 1, 1985. Renumbered from Penal Code Sec. 46.07 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 324, Sec. 1, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1193, Sec. 22, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1304, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 15.02(f), eff. Sept. 1, 1999.
Sec. 46.07. INTERSTATE PURCHASE. A resident of this state may, if not otherwise precluded by law, purchase firearms, ammunition, reloading components, or firearm accessories in another state. This authorization is enacted in conformance with 18 U.S.C. Section 922(b)(3)(A).
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 46.08 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 280 (S.B. 1188), Sec. 1, eff. May 30, 2009.
Sec. 46.08. HOAX BOMBS. (a) A person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to:
(1) make another believe that the hoax bomb is an explosive or incendiary device; or
(2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1983, 68th Leg., p. 4831, ch. 852, Sec. 3, eff. Sept. 1, 1983. Renumbered from Penal Code Sec. 46.09 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 46.09. COMPONENTS OF EXPLOSIVES. (a) A person commits an offense if the person knowingly possesses components of an explosive weapon with the intent to combine the components into an explosive weapon for use in a criminal endeavor.
(b) An offense under this section is a felony of the third degree.
Added by Acts 1983, 68th Leg., p. 4832, ch. 852, Sec. 4, eff. Sept. 1, 1983. Renumbered from Penal Code Sec. 46.10 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 46.10. DEADLY WEAPON IN PENAL INSTITUTION. (a) A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly:
(1) carries on or about his person a deadly weapon; or
(2) possesses or conceals a deadly weapon in the penal institution.
(b) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was engaged in conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this section and another section under this chapter may be prosecuted under either section.
(d) An offense under this section is a felony of the third degree.
Added by Acts 1985, 69th Leg., ch. 46, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 714, Sec. 1, eff. Sept. 1, 1987. Renumbered from Penal Code Sec. 46.11 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE SCHOOL ZONE. (a) Except as provided by Subsection (b), the punishment prescribed for an offense under this chapter is increased to the punishment prescribed for the next highest category of offense if it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense in a place that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place; or
(B) an event sponsored or sanctioned by the University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section 46.03(a)(1).
(c) In this section:
(1) “Premises” has the meaning assigned by Section 481.134, Health and Safety Code.
(2) “School” means a private or public elementary or secondary school.
Added by Acts 1995, 74th Leg., ch. 320, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1063, Sec. 10, eff. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 20.002, eff. September 1, 2011.
Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a prosecution of an offense for which punishment is increased under Section 46.11, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of weapon-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those areas if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the area is located.
(d) This section does not prevent the prosecution from:
(1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 46.11; or
(2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.
Added by Acts 1995, 74th Leg., ch. 320, Sec. 2, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 16.004, eff. September 1, 2005.
Sec. 46.13. MAKING A FIREARM ACCESSIBLE TO A CHILD. (a) In this section:
(1) “Child” means a person younger than 17 years of age.
(2) “Readily dischargeable firearm” means a firearm that is loaded with ammunition, whether or not a round is in the chamber.
(3) “Secure” means to take steps that a reasonable person would take to prevent the access to a readily dischargeable firearm by a child, including but not limited to placing a firearm in a locked container or temporarily rendering the firearm inoperable by a trigger lock or other means.
(b) A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person knew or should have known the child would gain access.
(c) It is an affirmative defense to prosecution under this section that the child’s access to the firearm:
(1) was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purposes;
(2) consisted of lawful defense by the child of people or property;
(3) was gained by entering property in violation of this code; or
(4) occurred during a time when the actor was engaged in an agricultural enterprise.
(d) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(e) An offense under this section is a Class A misdemeanor if the child discharges the firearm and causes death or serious bodily injury to himself or another person.
(f) A peace officer or other person may not arrest the actor before the seventh day after the date on which the offense is committed if:
(1) the actor is a member of the family, as defined by Section 71.003, Family Code, of the child who discharged the firearm; and
(2) the child in discharging the firearm caused the death of or serious injury to the child.
(g) A dealer of firearms shall post in a conspicuous position on the premises where the dealer conducts business a sign that contains the following warning in block letters not less than one inch in height:
“IT IS UNLAWFUL TO STORE, TRANSPORT, OR ABANDON AN UNSECURED FIREARM IN A PLACE WHERE CHILDREN ARE LIKELY TO BE AND CAN OBTAIN ACCESS TO THE FIREARM.”
Added by Acts 1995, 74th Leg., ch. 83, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 15.02(g), eff. Sept. 1, 1999.
Sec. 46.14. FIREARM SMUGGLING. (a) A person commits an offense if the person knowingly engages in the business of transporting or transferring a firearm that the person knows was acquired in violation of the laws of any state or of the United States. For purposes of this subsection, a person is considered to engage in the business of transporting or transferring a firearm if the person engages in that conduct:
(1) on more than one occasion; or
(2) for profit or any other form of remuneration.
(b) An offense under this section is a felony of the third degree, unless it is shown on the trial of the offense that the offense was committed with respect to three or more firearms in a single criminal episode, in which event the offense is a felony of the second degree.
(c) This section does not apply to a peace officer who is engaged in the actual discharge of an official duty.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
Added by Acts 2009, 81st Leg., R.S., Ch. 153 (S.B. 2225), Sec. 1, eff. September 1, 2009.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 910, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer’s or investigator’s duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) an active judicial officer as defined by Section 411.201, Government Code, who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer, qualified retired law enforcement officer, federal criminal investigator, or former reserve law enforcement officer who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that is issued by a federal, state, or local law enforcement agency, as applicable, and that verifies that the officer is:
(A) an honorably retired peace officer;
(B) a qualified retired law enforcement officer;
(C) a federal criminal investigator; or
(D) a former reserve law enforcement officer who has served in that capacity not less than a total of 15 years with one or more state or local law enforcement agencies;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 437.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person’s duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment and is wearing the officer’s uniform and carrying the officer’s weapon in plain view;
(5) acts as a personal protection officer and carries the person’s security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person’s duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer’s weapon in a concealed manner;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person’s residence and is carrying the weapon unloaded.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, “nonviolent restraint” means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 437.053, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 437.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Vernon’s Texas Statutes and Codes Annotated Transportation Code
Texas Seatbelt Laws
TRANSPORTATION CODE Chapter 545. Operation and Movement of Vehicles § 545.412. Child Passenger Safety Seat Systems; Offense.
(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 and not more than $250.
(b-1) [Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 4 (S.B. 1), § 69.01(1), effective September 28, 2011.]
(c) It is a defense to prosecution under this section that the person was operating the vehicle in an emergency or for a law enforcement purpose.
(d) [Repealed by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 8.01, effective September 1, 2003.]
(e) This section does not apply to a person:
(1) operating a vehicle transporting passengers for hire, excluding third-party transport service providers when transporting clients pursuant to a contract to provide nonemergency Medicaid transportation; or
(2) transporting a child in a vehicle in which all seating positions equipped with child passenger safety seat systems or safety belts are occupied.
(f) In this section:
(1) “Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.
(2) “Passenger vehicle” means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor.
(3) “Safety belt” means a lap belt and any shoulder straps included as original equipment on or added to a vehicle.
(4) “Secured,” in connection with use of a safety belt, means using the lap belt and any shoulder straps according to the instructions of:
(A) the manufacturer of the vehicle, if the safety belt is original equipment; or
(B) the manufacturer of the safety belt, if the safety belt has been added to the vehicle.
(g) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of this section on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(h) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.
Chapter 545. Operation and Movement of Vehicles § 545.4121. Dismissal; Obtaining Child Passenger Safety Seat System.
(a) This section applies to an offense committed under Section 545.412.
(b) It is a defense to prosecution of an offense to which this section applies that the defendant provides to the court evidence satisfactory to the court that:
(1) at the time of the offense:
(A) the defendant was not arrested or issued a citation for violation of any other offense;
(B) the defendant did not possess a child passenger safety seat system in the vehicle; and
(C) the vehicle the defendant was operating was not involved in an accident; and
(2) subsequent to the time of the offense, the defendant obtained an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system under Section 545.412(a).
Chapter 545. Operation and Movement of Vehicles § 545.413. Safety Belts; Offense.
(a) A person commits an offense if:
(1) the person:
(A) is at least 15 years of age;
(B) is riding in a passenger vehicle while the vehicle is being operated;
(C) is occupying a seat that is equipped with a safety belt; and
(D) is not secured by a safety belt; or
(2) as the operator of a school bus equipped with a safety belt for the operator’s seat, the person is not secured by the safety belt.
(b) A person commits an offense if the person:
(1) operates a passenger vehicle that is equipped with safety belts; and
(2) allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in the vehicle without requiring the child to be secured by a safety belt, provided the child is occupying a seat that is equipped with a safety belt.
(b-1) A person commits an offense if the person allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in a passenger van designed to transport 15 or fewer passengers, including the driver, without securing the child individually by a safety belt, if the child is occupying a seat that is equipped with a safety belt.
(c) A passenger vehicle or a seat in a passenger vehicle is considered to be equipped with a safety belt if the vehicle is required under Section 547.601 to be equipped with safety belts.
(d) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.
(e) It is a defense to prosecution under this section that:
(1) the person possesses a written statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(2) the person presents to the court, not later than the 10th day after the date of the offense, a statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(3) the person is employed by the United States Postal Service and performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle;
(4) the person is engaged in the actual delivery of newspapers from a vehicle or is performing newspaper delivery duties that require frequent entry into and exit from a vehicle;
(5) the person is employed by a public or private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter into and exit from a vehicle;
(6) the person is operating a commercial vehicle registered as a farm vehicle under the provisions of Section 502.433 that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more; or
(7) the person is the operator of or a passenger in a vehicle used exclusively to transport solid waste and performing duties that require frequent entry into and exit from the vehicle.
(f) The department shall develop and implement an educational program to encourage the wearing of safety belts and to emphasize:
(1) the effectiveness of safety belts and other restraint devices in reducing the risk of harm to passengers in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
Chapter 545. Operation and Movement of Vehicles § 545.414. Riding in Open Beds; Offense.
(a) A person commits an offense if the person operates an open-bed pickup truck or an open flatbed truck or draws an open flatbed trailer when a child younger than 18 years of age is occupying the bed of the truck or trailer.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200.
(c) It is a defense to prosecution under this section that the person was:
(1) operating or towing the vehicle in a parade or in an emergency;
(2) operating the vehicle to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality;
(3) operating the vehicle on a beach;
(4) operating a vehicle that is the only vehicle owned or operated by the members of a household; or
(5) operating the vehicle in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur.
(d) Compliance or noncompliance with Subsection (a) is not admissible evidence in a civil trial.
(e) In this section, “household” has the meaning assigned by Section 71.005, Family Code.
Texas law now requires drivers and all passengers in vehicles to be secured by a safety belt. A safety belt violation can result in fines ranging from $25 to $250, plus court costs.
Safety Seat Guidelines
Safety belts are designed for adults, not children.
Follow these guidelines when buying the proper seat and buckling up children:
Birth-2 Years
All infants and toddlers should ride in a rear-facing car seat until they are at least 2 years of age or until they reach the highest weight or height allowed by their car seat’s manufacturer. (Check labels on seat for this information.)
Secure the chest clip even with your baby’s armpits.
Fasten harness straps snugly against your baby’s body. You should not be able to pinch the slack at the baby’s shoulder.
Use the harness slot at or below the baby’s shoulder for rear-facing.
Over 2 Years
Use a forward-facing seat for as long as the safety seat manufacturer recommends it. (Check labels for maximum height and weight information.)
Fasten harness straps snugly against your child’s body. You should not be able to pinch the slack at the baby’s shoulder.
Secure the chest clip even with your child’s armpits.
Use either seat belt or lower anchors to secure the car seat, not both. Always latch the tether strap to the corresponding anchor if your vehicle has one.
4-8 Years
Use a booster seat to the maximum height or weight limit. (Check labels for information.)
Fasten the lap belt across your child’s thighs and hips, not stomach.
The shoulder belt should rest on the chest, not the neck. Check belt routing on booster for proper placement.
Over 8 Years Old
Always use a lap and shoulder belt for maximum protection.
Anyone under the age of 13 should be restrained in the back seat.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
CHAPTER 15. MONOPOLIES, TRUSTS AND CONSPIRACIES IN RESTRAINT OF TRADE
SUBCHAPTER E. COVENANTS NOT TO COMPETE
Sec. 15.50. CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE. (a) Notwithstanding Section 15.05 of this code, and subject to any applicable provision of Subsection (b), a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.
(b) A covenant not to compete relating to the practice of medicine is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements:
(1) the covenant must:
(A) not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;
(B) provide access to medical records of the physician’s patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and
(C) provide that any access to a list of patients or to patients’ medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;
(2) the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and
(3) the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.
(c) Subsection (b) does not apply to a physician’s business ownership interest in a licensed hospital or licensed ambulatory surgical center.
Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 1, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1574, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.729, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 971 (H.B. 3623), Sec. 1, eff. September 1, 2009.
Sec. 15.51. PROCEDURES AND REMEDIES IN ACTIONS TO ENFORCE COVENANTS NOT TO COMPETE. (a) Except as provided in Subsection (c) of this section, a court may award the promisee under a covenant not to compete damages, injunctive relief, or both damages and injunctive relief for a breach by the promisor of the covenant.
(b) If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria specified by Section 15.50 of this code. If the agreement has a different primary purpose, the promisor has the burden of establishing that the covenant does not meet those criteria. For the purposes of this subsection, the “burden of establishing” a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence.
(c) If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed, except that the court may not award the promisee damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief. If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, the promisor establishes that the promisee knew at the time of the execution of the agreement that the covenant did not contain limitations as to time, geographical area, and scope of activity to be restrained that were reasonable and the limitations imposed a greater restraint than necessary to protect the goodwill or other business interest of the promisee, and the promisee sought to enforce the covenant to a greater extent than was necessary to protect the goodwill or other business interest of the promisee, the court may award the promisor the costs, including reasonable attorney’s fees, actually and reasonably incurred by the promisor in defending the action to enforce the covenant.
Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 2, eff. Sept. 1, 1993.
Sec. 15.52. PREEMPTION OF OTHER LAW. The criteria for enforceability of a covenant not to compete provided by Section 15.50 of this code and the procedures and remedies in an action to enforce a covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any other criteria for enforceability of a covenant not to compete or procedures and remedies in an action to enforce a covenant not to compete under common law or otherwise.
Added by Acts 1993, 73rd Leg., ch. 965, Sec. 3, eff. Sept. 1, 1993.
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
(The following version of Form C-8 is identical in content, but not in format, to the Form C-8 adopted by the Texas Workforce Commission and published in the Texas Register as part of the Payday Rules. That test may be found on the Internet in PDF format athttp://www.texasworkforce.org/ui/tax/forms/c8.pdf (PDF). Employers may also request a copy in printed form by asking for Form C-8 from “Texas Workforce Commission, Tax Department, 101 E. 15th Street, Austin, Texas, 78778”.)
EMPLOYMENT STATUS – A COMPARATIVE APPROACH
Under the common law test, a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised; rather, if the service recipient has the right to control, employment may be shown.
Depending upon the type of business and the services performed, not all of the twenty common law factors may apply. In addition, the weight assigned to a specific factor may vary depending upon the facts of the case. If an employment relationship exists, it does not matter that the employee is called something different, such as: agent, contract labor, subcontractor, or independent contractor.
1. INSTRUCTIONS:
11. ORAL OR WRITTEN REPORTS:
An Employee receives instructions about when, where and how the work is to be performed. An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work.
An Employee may be required to submit regular oral or written reports about the work in progress. An Independent Contractor is usually not required to submit regular oral or written reports about the work in progress.
2. TRAINING:
12.PAYMENT BY THE HOUR, WEEK, OR MONTH:
Employees are often trained by a more experienced employee or are required to attend meetings or take training courses. An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services.
An Employee is typically paid by the employer in regular amounts at stated intervals, such as by the hour or week. An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid.
3. INTEGRATION:
13. PAYMENT OF BUSINESS & TRAVEL EXPENSE:
Services of an Employee are usually merged into the firm’s overall operation; the firm’s success depends on those Employee services. An Independent Contractor’s services are usually separate from the client’s business and are not integrated or merged into it.
An Employee’s business and travel expenses are either paid directly or reimbursed by the employer. Independent Contractors normally pay all of their own business and travel expenses without reimbursement.
4. SERVICES RENDERED PERSONALLY:
14. FURNISHING TOOLS & EQUIPMENT:
An Employee’s services must be rendered personally; Employees do not hire their own substitutes or delegate work to them. A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally.
Employees are furnished all necessary tools, materials, and equipment by their employer. An Independent Contractor ordinarily provides all of the tools and equipment necessary to complete the job.
5. HIRING, SUPERVISING & PAYING HELPERS:
15. SIGNIFICANT INVESTMENT:
An Employee may act as a foreman for the employer but, if so, helpers are paid with the employer’s funds. Independent Contractors select, hire, pay, and supervise any helpers used and are responsible for the results of the helpers’ labor.
An Employee generally has little or no investment in the business. Instead, an Employee is economically dependent on the employer. True Independent Contractors usually have a substantial financial investment in their independent business.
6. CONTINUING RELATIONSHIP:
16. REALIZE PROFIT OR LOSS:
An Employee often continues to work for the same employer month after month or year after year. An Independent Contractor is usually hired to do one job of limited or indefinite duration and has no expectation of continuing work.
An Employee does not ordinarily realize a profit or loss in the business. Rather, Employees are paid for services rendered. An Independent Contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues.
7. SET HOURS OF WORK:
17. WORKING FOR MORE THAN ONE FIRM AT A TIME:
An Employee may work “on call” or during hours and days as set by the employer. A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses.
An Employee ordinarily works for one employer at a time and may be prohibited from joining a competitor. An Independent Contractor often works for more than one client or firm at the same time and is not subject to a non-competition rule.
8. FULL TIME REQUIRED:
18. MAKING SERVICE AVAILABLE TO THE PUBLIC:
An Employee ordinarily devotes full-time service to the employer, or the employer may have a priority on the Employee’s time. A true Independent Contractor cannot be required to devote full-time service to one firm exclusively.
An Employee does not make his or her services available to the public except through the employer’s company. An Independent Contractor may advertise, carry business cards, hang out a shingle, or hold a separate business license.
9. LOCATION WHERE SERVICES PERFORMED:
19. RIGHT TO DISCHARGE WITHOUT LIABILITY:
Employment is indicated if the employer has the right to mandate where services are performed. Independent Contractors ordinarily work where they choose. The workplace may be away from the client’s premises.
An Employee can be discharged at any time without liability on the employer’s part. If the work meets the contract terms, an Independent Contractor cannot be fired without liability for breach of contract.
10. ORDER OR SEQUENCE SET:
20. RIGHT TO QUIT WITHOUT LIABILITY:
An Employee performs services in the order or sequence set by the employer. This shows control by the employer. A true Independent Contractor is concerned only with the finished product and sets his or her own order or sequence of work.
An Employee may quit work at any time without liability on the Employee’s part. An Independent Contractor is legally responsible for job completion and, on quitting, becomes liable for breach of contract.
C-8(0406)
(Source: 40 T.A.C. § 821.5, adopted to be effective June 1, 1998, as published in the Texas Register, May 29, 1998, 23 TexReg 5732.)
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In a Texas premises-liability case, a landowner is liable to employees of an independent contractor only for claims arising from a concealed, pre-existing defect rather than from the contractor’s work. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). “With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about.” Id. (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)).
“Premises Liability” refers to accidents that occur due to the negligent maintenance, operation or design of a property owned by someone other than the accident victim. This includes claims against a landlord on behalf of a tenant or against the landowner for injuries suffered by an individual who was lawfully on the property.
The Texas Legislature has waived sovereign immunity for personal injury claims arising from a premise defect. Tex. Civ. Prac. & Rem. Code § 101.021. Former section 101.022 of the Texas Civil Practices and Remedies Code[2] applied different duties of care to a suit depending on whether the condition was a premise defect or a special defect:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes
to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions
on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning
devices as is required by Section 101.060.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303 (amended 2005) (current version at Tex. Civ.Prac. & Rem. Code § 101.022) (hereinafter § 101.022). If a claim involves a premise defect under section (a), a licensee standard applies. Tex. Civ Prac. & Rem. Code § 101.022(a); see also State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Under a licensee standard, a plaintiff must prove the governmental unit had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same
condition. Payne, 838 S.W.2d at 237. But if a claim involves a special defect under section (b), a more lenient invitee standard applies. Tex. Civ. Prac. & Rem. Code § 101.022(b). Under an invitee standard, the plaintiff need only prove that the governmental unit should have known of a condition that created an unreasonable risk of harm. Payne, 838 S.W.2d at 237; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (“Absent a finding that the State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special
defect.”). Whether a condition is a premise defect or special defect is a question of law, which we review de novo. Payne, 838 S.W.2d at 238.
The Civil Practices and Remedies Code does not define exactly what a“special defect” is,but does give guidance by likening special defects to
“excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022(b)
The term “Premises Liability” encompasses a wide range of events that cause injury and may give rise to liability. For example, a slip and fall due to a wet or defective floor may be actionable against a landowner or a landlord. Other examples include claims for inadequate security, lighting or the failure to properly maintain railings, porches or stairs. These are examples of premises liability actions. Each set of facts giving rise to an injury on a premises must be individually evaluated.
In Texas, a premises owner does not guarantee the safety of its customers or employees. Consequently, an employee is not automatically entitled to
recover for his injuries merely because the injury occurred on his employer’s property.
To prevail on a premises-liability claim, a Plainiff must prove four essential elements:
(1) Actual or constructive knowledge of a condition on the premises by the
owner or occupier;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner or occupier’s failure to use such care proximately caused the plaintiff’s injury.
These four elements are typically referred to as: (1) notice; (2) unreasonably dangerous condition; (3) failure to exercise ordinary care; and (4) proximate cause.
As always, it is important to contact a knowledgeable and experienced Texas insurance defense attorney to help you understand your rights as a Defendant in a premises liability case. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran insurance defense attorney who protects the rights of insurance carriers and businesses in Texas premises liability cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas workers’ compensation insurance coverage provides covered employees with income and medical benefits if they sustain a work-related injury or illness. Except as otherwise provided by law; Texas private employers can choose whether or not to provide workers’ compensation insurance coverage for their employees. Except in cases of gross negligence or an intentional act or omission of the employer, workers’ compensation insurance limits an employer’s liability if an employee brings suit against the employer for damages. Certain building or construction employers who contract with governmental entities are required to provide workers’ compensation coverage for each employee working on the public project. Some clients may also require their contractors to have workers’ compensation insurance. Providing Workers’ Compensation Insurance If employers choose to provide workers’ compensation, they must do so in one of the following ways:
• purchase a workers’ compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI) to sell the coverage in Texas; • be certified by the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) to self-insure workers’ compensation claims; or
• join a self-insurance group that has received a certificate of approval from the TDI. Note: Political subdivisions may self-insure, buy coverage from insurance companies, or enter into inter-local agreements with other political subdivisions that self-insure.
EMPLOYER RIGHTS
Covered employers have the following rights:
• the right to contest the compensability of a workers’ compensation claim if the insurance carrier accepts liability for payment of benefits;
• the right to be notified of a proposal to settle a claim or of any administrative or judicial proceeding related to resolution of a claim (after making a written request to the insurance carrier);
• the right to attend dispute resolution proceedings related to an employee’s claim and present relevant evidence about the disputed issues; Employer Rights and Responsibilities Information for Employers from the Division of Workers’ Compensation
• the right to report suspected fraud to the TDI-DWC or to the insurance carrier;
• the right to contest the failure of the insurance carrier to provide required accident prevention services; and
• the right to receive return-to-work coordination services as necessary to facilitate an employee’s return to employment.
To dispute a workers’ compensation claim, an employer may file the DWC Form-004, and the DWC Form-045, Request to Schedule, Reschedule or Cancel a Benefit Review Conference (BRC), which may be obtained from the TDI website at http://www.tdi.texas.gov/forms/ form20employer.html or by calling 1-800-252-7031. Non-Reimbursable Employer Payments An employer is not entitled to and cannot seek reimbursement from the employee or insurance carrier if after a work-related injury or illness they voluntarily:
• continue to pay the injured employee’s salary continuation; or
• pay the injured employee salary supplementation to supplement income benfits paid by the insurance carrier. Employer Voluntary Payments of Benefits
An employer may voluntarily pay income or medical benefits to an employee during a period in which the insurance carrier has:
• contested compensability of the injury;
• contested liability for the injury; or
• has not completed its initial investigation of the injury. Note: an employer is only allowed to pay benefits in this situation for the first two weeks after the injury. For reimbursement, the employer is required to timely report the injury to the insurance carrier and to let the insurance carrier know, within 7 days of beginning For further assistance, call 1-800-252-7031 or visit http://www.tdi.texas.gov/wc/employer/index.html
This publication is a summary and is presented for informational purposes only. It is not a substitute for the statute and TDI-DWC rules. For questions about TDI-DWC rules, call Customer Assistance at 1-800-252-7031. CS05-017F(10-13)
As always, it is important to contact a knowledgeable and experienced Texas workers’ compensation defense attorney to help you understand your rights as an employer or carrier. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran workers’ compensation defense attorney who protects the rights of insurance carriers and businesses in Texas workers’ compensation cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Workers’ compensation is a state-regulated insurance system that ensures medical bills and some lost wages are paid for employees injured on the job. Texas does not require most private employers to have workers’ compensation insurance coverage. Employers not providing workers’ compensation insurance coverage are referred to as non-subscribers.
Non-subscribers lose important legal protections, including immunity from most lawsuits by injured employees. They could also be forced to pay high damage awards if an injured employee can prove in court that the employer was negligent in any way.
If an employer has workers’ compensation insurance coverage, Texas law limits the employer’s liability for work-related injuries. Injured employees may get medical and income benefits set by state law, but generally may not sue their employers.
Texas law requires all employers, with or without workers’ compensation insurance coverage, to comply with reporting and notification requirements under the Texas Workers’ Compensation Act.
When an employer purchases a workers’ compensation policy or is certified to self-insure, the insurance company (or a third-party administrator in the case of self-insurance) pays medical and income benefits. Employers who choose to provide workers’ compensation insurance coverage must do so in one of the following ways:
buy a workers’ compensation insurance policy from an insurance company licensed by the Texas Department of Insurance (TDI);
be certified by the DWC to self-insure workers’ compensation claims;
join a self-insurance group that has received a certificate of approval from TDI; or
be a self-insured governmental entity.
Liability Limits for Workers’ Compensation Subscribers
For employers that provide workers’ compensation insurance coverage, Texas law limits the employer’s liability for work-related injuries of employees. Non-subscribers are not given these legal protections. This means that if an injured employee files suit and is able to prove that the injury was due to the employer’s negligence, the non-subscriber could be subject to high damage awards, including punitive damages and damages for pain and suffering. The employer might also be required to pay defense-related legal expenses, such as attorneys’ fees.
Non-subscribers also lose certain common-law defenses, including:
the injured employee’s negligence caused the injury;
the negligence of fellow employees caused the injury; or
the injured employee knew of the danger and voluntarily accepted it.
Employee Benefits
Employees covered by workers’ compensation insurance coverage receive benefits based on the type and severity of their injuries. Benefits can include:
medical benefits for medically necessary treatment of work-related injuries and illnesses;
disability income benefits for a specified period of time up to a certain dollar limit set by law;
compensation for burial expenses for employees killed on the job;
death benefits for dependents of employees killed on the job.
If there is a workers’ compensation claim for benefits, an employee’s family may be entitled to additional benefits if the employee is killed and the death was caused by the employer’s gross negligence or intentional act or omission.
Alternative Coverages are Not Substitutes for Workers’ Compensation Insurance Coverage
Some employers buy accident and health insurance policies or disability policies or create employer indemnification agreements as less costly alternatives to workers’ compensation insurance coverage. Even though these policies may provide benefits to an injured employee, Texas law does not recognize them as substitutes for workers’ compensation insurance coverage. TDI rules prohibit insurance companies from representing that alternative coverages are substitutes for workers’ compensation insurance coverage.
Unlike workers’ compensation insurance coverage, alternative coverages typically have specific policy limits on medical benefits for each covered employee. In addition, alternative coverages usually have shorter maximum payment periods than those provided by Texas workers’ compensation laws.
Employers that buy alternative coverages do not have workers’ compensation liability protections. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, many alternative coverages do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.
A company must be licensed to provide workers’ compensation insurance. Texas law does not recognize insurance policies sold by unlicensed companies, including those legally selling surplus lines insurance. Surplus lines insurance provides coverage for unusual risks that most licensed companies are unwilling to insure. Companies and agents that sell this kind of insurance must be licensed in their home state or country and authorized to sell surplus lines insurance in Texas.
Employers purchasing workers’ compensation insurance from unlicensed companies do not have the liability protections provided to employers purchasing policies from licensed companies. They may be sued by their injured employees and lose their right to use key common-law defenses in the suit. Moreover, unlicensed companies do not provide coverage for judgments for pain and suffering, punitive damages, and attorneys’ fees.
The Texas Property and Casualty Insurance Guaranty Association, which pays policyholder claims against licensed insurance companies that become insolvent, does not cover unlicensed companies. Claims against unlicensed companies will likely go unpaid if the company becomes insolvent. To find out if a company is licensed, call TDI’s Consumer Help Line at 1-800-252-3439 or 512-676-6282 in Austin between 8 a.m. and 5 p.m., or by viewing company profiles on our website at http://www.tdi.texas.gov.
Coverage Comparison
Workers´ Compensation
“Alternative” Policy (Employee Retirement Income Security Act (ERISA) Plan)
Unauthorized Insurance Policy/Surplus Lines
No Coverage
What determines benefit levels?
Texas law
Court/Alternate dispute resolution
Court/Alternate dispute resolution
Court
Who pays medical and lost-income benefits?
Insurance company
Insurance company up to policy limits; employer pays rest
Depends on the policy
Employer
Who pays employer’s legal fees?
Insurance company
Governed by the policy terms
Governed by the policy terms
Employer
Are benefits protected by a guaranty association?
Yes
Limited
No
No
Can an injured employee win judgments for pain and suffering and punitive damages?
No, except in certain circumstances
Yes, up to certain limits
Yes, up to certain limits
Yes, up to certain limits
Note: Policy terms in unlicensed policies may be unenforceable.
For More Information or Assistance
For answers to general insurance questions, for information about filing an insurance-related complaint, or to report suspected insurance fraud, call the Consumer Help Line at 1-800-252-3439 or 512-676-6282 in Austin between 8 a.m. and 5 p.m., Central time, Monday through Friday, or visit our website athttp://www.tdi.texas.gov.
This publication is a summary and is presented for information purposes only. It is not a substitute for current Texas laws or DWC rules. For current information, view our website or call Customer Assistance at 1-800-252-7031. This publication is not an endorsement by DWC of any service, product, or company.
See https://www.tdi.state.tx.us/wc/employer/cb007.html
As always, it is important to contact a knowledgeable and experienced Texas non subscriber law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law and workers’ compensation defense attorney who protects the rights of businesses in Texas employment law and non subscriber cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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