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A BILL TO BE ENTITLED
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AN ACT
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relating to ensuring compliance with federal civil-rights laws by |
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corporations doing business in Texas, and prohibiting |
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discrimination in the selection of a corporation's board members. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 21, Business Organizations Code, is |
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amended by adding Subchapter U to read as follows: |
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SUBCHAPTER U. PROHIBITED DISCRIMINATORY PRACTICES |
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Sec. 21.981. APPLICABILITY. This subchapter applies to: |
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(1) a corporation that: |
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(A) formed under the laws of this state; or |
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(B) conducts business in this state; and |
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Sec. 27.982. COMPLIANCE WITH FEDERAL CIVIL-RIGHTS |
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STATUTES. (a) No corporation described by Section 21.981, and no |
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director, officer, shareholder, employee, or agent of that |
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corporation, may ask, encourage, or induce any of that |
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corporation's suppliers, vendors, contractors, or firms that |
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provide goods or services to that corporation to violate any |
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federal civil-rights statute, including the Civil Rights Act of |
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1866, as amended and codified at 42 U.S.C. § 1981, and Title VII of |
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the Civil Rights Act of 1964, as amended and codified at 42 U.S.C. § |
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2000e et seq. |
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Sec. 27.983. DISCRIMINATION IN THE SELECTION OF A |
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CORPORATION'S BOARD MEMBERS. (a) No corporation described by |
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Section 21.981, and no director, officer, shareholder, employee, or |
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agent of that corporation, may establish or enforce any quota or |
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set-aside in the selection of board members that depends in any way |
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upon an individual's race, sex, religion, sexual orientation or |
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sexual practices, or gender identity or gender-nonconforming |
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behavior. |
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(b) No corporation described by Section 21.981, and no |
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director, officer, shareholder, employee, or agent of that |
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corporation, may discriminate against or give preferential |
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treatment to any individual on account of race or sex when selecting |
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the board members of that corporation. |
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Sec. 27.984. PUBLIC ENFORCEMENT PROHIBITED. (a) An |
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executive officer, administrative officer, or public employee of a |
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state or local governmental entity in this state may not enforce |
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this subchapter in the capacity of a public officer or employee |
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through any means of public enforcement. |
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(b) This section does not limit or affect the availability |
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of a private enforcement action under Section 21.985. |
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Sec. 21.985. PRIVATE ENFORCEMENT. (a) Any person, other |
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than an officer or employee of a state or local governmental entity |
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in this state, may bring a civil action against a corporation or |
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individual that violates Sections 21.982 or 21.983. |
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(b) On finding that a defendant has violated Section 21.982, |
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the court shall award: |
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(1) declaratory relief; |
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(2) injunctive relief; |
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(3) statutory damages in an amount not less than 25 |
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percent of the total amount paid by the corporation to the supplier, |
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vendor, contractor, or firm that was asked, encouraged, or induced |
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to violate the federal civil-rights statutes; |
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(4) punitive damages of not less than one million |
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dollars ($1,000,000.00); |
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(5) costs and attorneys' fees. |
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(c) On finding that a defendant has violated Section 21.983, |
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the court shall award: |
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(1) injunctive relief; |
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(2) statutory damages of not less than one million |
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dollars ($1,000,000.00); and |
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(3) Costs and attorneys' fees. |
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(d) Notwithstanding Subsections (b) and (c), a court may not |
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award relief under this section in response to a violation of |
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Section 21.982 or Section 21.983 if the defendant demonstrates that |
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the defendant previously paid statutory damages in a previous |
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action for that particular violation. |
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(e) Notwithstanding Chapter 16, Civil Practice and Remedies |
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Code, a person may bring an action under this section not later than |
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the sixth anniversary of the date the cause of action accrues. |
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(f) The following are not defenses to liability in an action |
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brought under this section: |
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(1) ignorance or mistake of law; |
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(2) the business judgment rule; |
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(3) a defendant's belief that the requirements of this |
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chapter are unconstitutional or were unconstitutional; |
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(4) a defendant's reliance on any court decision that |
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has been overruled on appeal or by a subsequent court, even if that |
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court decision had not been overruled when the defendant engaged in |
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conduct that violates this chapter; |
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(5) a defendant's reliance on any state or federal |
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court decision that is not binding on the court in which the action |
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has been brought; |
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(6) nonmutual issue preclusion or nonmutual claim |
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preclusion; |
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(7) the need to comply with another state's law; or |
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(8) the need to comply with the requirements of being |
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listed on a stock exchange. |
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(g) Notwithstanding any other provision of law, no court may |
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award costs or attorney's fees under Rule 91a of the Texas Rules of |
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Civil Procedure, or under any other rule adopted by the supreme |
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court under Section 22.004(g), Government Code, to any defendant |
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sued under this section. |
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Sec. 21.986. SOVEREIGN AND OFFICIAL IMMUNITY PRESERVED. |
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This subchapter does not waive: |
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(1) the state's sovereign immunity from liability; or |
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(2) an officer or employee of this state's official |
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immunity from liability. |
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Sec. 21.987. SEVERABILITY. (a) Mindful of Leavitt v. Jane |
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L., 518 U.S. 137 (1996), in which in the context of determining the |
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severability of a state statute the United States Supreme Court |
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held that an explicit statement of legislative intent is |
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controlling, it is the intent of the Legislature that every |
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provision, section, subsection, sentence, clause, phrase, or word |
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in this subchapter, and every application of the provisions in this |
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subchapter, are severable from each other. If any application of |
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any provision in this subchapter to any person, group of persons, or |
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circumstances is found by a court to be invalid or |
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unconstitutional, then the remaining applications of that |
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provision to all other persons and circumstances shall be severed |
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and may not be affected. All constitutionally valid applications |
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of this subchapter shall be severed from any applications that a |
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court finds to be invalid, leaving the valid applications in force, |
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because it is the Legislature's intent and priority that the valid |
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applications be allowed to stand alone. Even if a reviewing court |
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finds a provision of this subchapter to violate the Constitution in |
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a large or substantial fraction of relevant cases, the applications |
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that do not present an undue burden shall be severed from the |
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remaining provisions and shall remain in force, and shall be |
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treated as if the Legislature had enacted a provision limited to the |
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persons, group of persons, or circumstances for which the |
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provision's application does not violate the Constitution. The |
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Legislature further declares that it would have passed this |
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subchapter, and each provision, section, subsection, sentence, |
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clause, phrase, or word, and all constitutional applications of |
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this subchapter, irrespective of the fact that any provision, |
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section, subsection, sentence, clause, phrase, or word, or |
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applications of this subchapter, were to be declared |
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unconstitutional or invalid. |
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(b) If any provision of this subchapter is found by any |
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court to be unconstitutionally vague, then the applications of that |
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provision that do not present constitutional vagueness problems |
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shall be severed and remain in force, consistent with the |
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declarations of the Legislatures intent in Subsection (a). |
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(c) No court may decline to enforce the severability |
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requirements in Subsections (a) or (b) on the ground that severance |
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would rewrite the statute or involve the court in legislative or |
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lawmaking activity. A court that declines to enforce or enjoins a |
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state official from enforcing a subset of a statute's applications |
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is never rewriting a statute, as the statute continues to say |
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exactly what it said before. A judicial injunction or declaration |
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of unconstitutionality is nothing more than a non-enforcement edict |
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that can always be vacated by later courts if they have a different |
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understanding of what the state or federal Constitution requires; |
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it is not a formal amendment of the language in a statute. A |
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judicial injunction or declaration of unconstitutionality no more |
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rewrites a statute than a decision by the executive not to enforce a |
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duly enacted statute in a limited and defined set of circumstances. |
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(d) The legislature intends that the provisions of this |
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subchapter apply to the maximum extent permitted by law. |
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SECTION 2. This Act takes effect September 1, 2021. |