Bill Text: TX HB5140 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Relating to a prohibition against the consideration of race or ethnicity as a factor in governmental employment or contracting, in other governmental functions, and in higher education admissions.

Spectrum: Partisan Bill (Republican 4-0)

Status: (Introduced - Dead) 2023-03-24 - Referred to State Affairs [HB5140 Detail]

Download: Texas-2023-HB5140-Introduced.html

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88R3294 SCP/KBB-D
By: Cain H.B. No. 5140

A BILL TO BE ENTITLED
AN ACT
relating to a prohibition against the consideration of race or
ethnicity as a factor in governmental employment or contracting, in
other governmental functions, and in higher education admissions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. PROHIBITIONS AGAINST CONSIDERING RACE OR ETHNICITY AS A
FACTOR IN GOVERNMENTAL EMPLOYMENT OR CONTRACTING, IN OTHER
GOVERNMENTAL FUNCTIONS, AND IN HIGHER EDUCATION ADMISSIONS
SECTION 1.01. Section 51.805, Education Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) A general academic teaching institution may not
consider an applicant's race or ethnicity as a factor in making
admissions decisions.
SECTION 1.02. Section 51.808, Education Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) A general academic teaching institution or medical
and dental unit may not adopt a policy under this section under
which the institution may consider an applicant's race or ethnicity
as a factor in making admissions decisions.
SECTION 1.03. Chapter 1, Government Code, is amended by
adding Section 1.004 to read as follows:
Sec. 1.004. PROHIBITION AGAINST CONSIDERATION OF RACE OR
ETHNICITY IN CERTAIN GOVERNMENTAL FUNCTIONS. (a) In this section,
"state agency" means a board, commission, council, committee,
department, office, agency, or other governmental entity in the
executive, legislative, or judicial branch of state government.
The term includes an institution of higher education as defined by
Section 61.003, Education Code.
(b) Notwithstanding any other law, a state agency, state
officer, or political subdivision may not consider the race or
ethnicity of:
(1) an applicant for employment as a factor in making
hiring decisions;
(2) a contractor or vendor responding to a contract
solicitation as a factor in awarding the contract; and
(3) any other person with regard to whom the state
agency, state officer, or political subdivision makes a decision
that affects the person as a factor in making that decision.
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Section 12.029, Agriculture Code, is amended
to read as follows:
Sec. 12.029. [MINORITY AND] FEMALE-OWNED BUSINESS
CONTRACTS. (a) The department shall establish by rule policies to
encourage [minority and] female-owned small businesses to bid for
contract and open market purchases of the department and to assist
those businesses in that bidding. The department shall review the
policies periodically to correct any deficiencies in the policies.
(b) The department annually shall determine the number,
types, and value of contracts awarded to [minority and]
female-owned small businesses in the year preceding the
determination and the ratio of the number and the value of those
contracts to the number and the value of all contracts awarded by
the department in that year.
(d) In this section, "[minority and] female-owned small
business" means a business enterprise:
(1) that is independently owned and operated, that was
formed for the purpose of making a profit, and that has fewer than
100 employees and less than $1 million in annual gross receipts; and
(2) that is controlled by one or more socially and
economically disadvantaged persons who own at least 51 percent of
the business enterprise and are socially disadvantaged because they
are [of their identification as members of certain groups,
including] women[, black Americans, Mexican Americans and other
Americans of Hispanic origin, Asian Americans, and American
Indians].
SECTION 2.02. Section 5.102, Alcoholic Beverage Code, is
amended to read as follows:
Sec. 5.102. RECRUITMENT. For the purpose of providing
adequate personnel for all job positions in the commission, the
commission shall:
(1) develop a recruiting program that identifies
underrepresentation with the commission and focuses on recruiting
women [different ethnic, racial, or gender groups] for job
categories in which underrepresentation occurs; and
(2) require that all applicants be reviewed by the
human resources division to ensure consideration of women
[underrepresented ethnic, racial, or gender groups].
SECTION 2.03. Sections 54.0515(d) and (e), Education Code,
are amended to read as follows:
(d) An appointed member of the committee serves at the
pleasure of the appointing official. In making appointments to the
committee, the appointing officials shall attempt to appoint
persons who represent the gender composition[, minority
populations,] and geographic regions of the state.
(e) It is the legislature's intent that each institution of
higher education, as a condition to tuition deregulation under
Section 54.0513, reasonably implement the following:
(1) each institution shall make satisfactory progress
towards the goals provided in its master plan for higher education
and in "Closing the Gaps," the state's master plan for higher
education; and
(2) each institution shall meet acceptable
performance criteria, including measures such as graduation rates,
retention rates, enrollment growth, educational quality, [efforts
to enhance minority participation,] opportunities for financial
aid, and affordability.
SECTION 2.04. Section 55.03, Education Code, is amended to
read as follows:
Sec. 55.03. [MINORITY-OWNED AND] WOMEN-OWNED BUSINESSES.
(a) The board of regents of each institution of higher education
shall make a good-faith effort to award to [minority-owned and]
women-owned businesses:
(1) contracts relating to the issuance of bonds by the
board under this chapter in the amount of at least 25 percent of the
total costs of issuing those bonds; and
(2) contracts for the items to be financed by bonds
issued by the board in the amount of at least 25 percent of the
proceeds of those bonds.
(b) Not later than October 31 of each academic year, the
board of regents shall file with the governor and each house of the
legislature a written report containing the following information
for the previous academic year for all businesses[, minority-owned
businesses] and women-owned businesses, classified by gender [and
minority group status]:
(1) the total number of contracts relating to the
issuance of bonds by the board under this chapter and to the items
to be financed by those bonds;
(2) the total dollar amount the board of regents must
pay under each contract described by Subdivision (1) of this
subsection; and
(3) the total number of businesses submitting bids or
proposals relating to the issuance of bonds by the board under this
chapter and to the items to be financed by those bonds.
(c) In this section, "women-owned [:
[(1) "Minority-owned business" means a business
entity at least 51 percent of which is owned by members of a
minority group or, in the case of a corporation, at least 51 percent
of the shares of which are owned by members of a minority group, and
that is managed and controlled by members of a minority group in its
daily operations.
[(2) "Minority group" includes:
[(A) African Americans;
[(B) American Indians;
[(C) Asian Americans; and
[(D) Mexican Americans and other Americans of
Hispanic origin.
[(3) "Women-owned] business" means a business entity
at least 51 percent of which is owned by women or, in the case of a
corporation, at least 51 percent of the shares of which are owned by
women, and that is managed and controlled by women in its daily
operations.
SECTION 2.05. Section 72.041, Government Code, is amended
to read as follows:
Sec. 72.041. RECRUITMENT [DIVERSITY]. The judges of the
supreme court, court of criminal appeals, and courts of appeals
shall encourage the recruitment of women as judicial law clerks and
staff attorneys [that reflect the gender, racial, and ethnic
diversity of this state].
SECTION 2.06. Section 651.009(a), Government Code, is
amended to read as follows:
(a) In each case in which the governing body of a state
board, commission, or other state agency that has statewide
jurisdiction is appointed by the governor or another appointing
authority, the governor or appointing authority shall ensure that,
to the extent possible, the membership of the governing body
reflects the [racial, ethnic, and] geographic diversity of this
state.
SECTION 2.07. Section 2161.001(3), Government Code, is
amended to read as follows:
(3) "Economically disadvantaged person" means a
person who:
(A) is economically disadvantaged because of the
person's identification as a member of one or more of the following
groups [a certain group, including]:
(i) [Black Americans;
[(ii) Hispanic Americans;
[(iii)] women; or
[(iv) Asian Pacific Americans;
[(v) Native Americans; and]
(ii) [(vi)] veterans as defined by 38
U.S.C. Section 101(2) who have suffered at least a 20 percent
service-connected disability as defined by 38 U.S.C. Section
101(16); and
(B) has suffered the effects of discriminatory
practices or other similar insidious circumstances over which the
person has no control.
SECTION 2.08. Sections 2161.061(b), (d), and (e),
Government Code, are amended to read as follows:
(b) As one of its certification procedures, the comptroller
may:
(1) approve the certification program of one or more
local governments or nonprofit organizations in this state that
certify historically underutilized businesses or [, minority
business enterprises,] women's business enterprises[, or
disadvantaged business enterprises] under substantially the same
definition, to the extent applicable, used by Section 2161.001, if
the local government or nonprofit organization meets or exceeds the
standards established by the comptroller; and
(2) certify a business that is certified by a local
government or by a nonprofit organization as a historically
underutilized business under this chapter.
(d) A local government or a nonprofit organization that
certifies historically underutilized businesses or [, minority
business enterprises,] women's business enterprises[, or
disadvantaged business enterprises] as described in Subsections
(b) and (c) shall complete the certification of an applicant or
provide an applicant with written justification of its
certification denial within the period established by the
comptroller in its rules for certification activities.
(e) A local government or a nonprofit organization that
certifies historically underutilized businesses under Subsection
(c) or that conducts a certification program described by and
approved under Subsection (b) shall make available to the public an
online searchable database containing information about
historically underutilized businesses and [, minority business
enterprises,] women's business enterprises[, and disadvantaged
business enterprises] certified by the local government or
nonprofit organization, including:
(1) the name of the business;
(2) the contact person or owner of the business;
(3) the address and telephone number of the business;
(4) the type or category of business, including
relevant capabilities of the business and the North American
Industry Classification System codes for the business; and
(5) the expiration date of the business's
certification.
SECTION 2.09. Section 2161.125, Government Code, is amended
to read as follows:
Sec. 2161.125. CATEGORIZATION OF HISTORICALLY
UNDERUTILIZED BUSINESSES. The comptroller, in cooperation with
each state agency reporting under this subchapter, shall categorize
each historically underutilized business included in a report under
this subchapter by sex[, race, and ethnicity] and by whether the
business qualifies as a historically underutilized business
because it is owned or owned, operated, and controlled, as
applicable, wholly or partly by one or more veterans as defined by
38 U.S.C. Section 101(2) who have suffered at least a 20 percent
service-connected disability as defined by 38 U.S.C. Section
101(16).
SECTION 2.10. Section 93.002(b), Health and Safety Code, is
amended to read as follows:
(b) In appointing public members under Subsection (a)(1),
the governor shall attempt to appoint female members [and members
of different minority groups, including African Americans,
Hispanic Americans, Native Americans, and Asian Americans].
SECTION 2.11. Section 318.003(a), Local Government Code, is
amended to read as follows:
(a) The commission must be composed of at least seven
residents of the county. Members of the commission must be
individuals who broadly reflect the age[, ethnic,] and geographic
diversity of the county.
SECTION 2.12. Section 351.1035(a), Local Government Code,
is amended to read as follows:
(a) In this section, "disadvantaged business" means:
(1) a corporation formed for the purpose of making a
profit in which at least 51 percent of all classes of the shares of
stock or other equitable securities are owned by one or more persons
who are socially disadvantaged because they are [of their
identification as members of certain groups, including black
Americans, Hispanic Americans,] women and [, Asian Pacific
Americans, and American Indians, who] have suffered the effects of
discriminatory practices or similar insidious circumstances over
which they have no control;
(2) a sole proprietorship for the purpose of making a
profit that is 100 percent owned, operated, and controlled by a
person described by Subdivision (1) of this subsection;
(3) a partnership for the purpose of making a profit in
which 51 percent of the assets and interest in the partnership is
owned by one or more persons described by Subdivision (1) of this
subsection who[. Those persons must] have a proportionate interest
in the control, operation, and management of the partnership's
affairs;
(4) a joint venture in which each entity in the joint
venture is a disadvantaged business under this subsection; or
(5) a supplier contract between a disadvantaged
business under this subsection and a prime contractor under which
the disadvantaged business is directly involved in the manufacture
or distribution of the supplies or materials or otherwise
warehouses and ships the supplies.
SECTION 2.13. Section 375.003(4), Local Government Code, is
amended to read as follows:
(4) "Disadvantaged business" means:
(A) a corporation formed for the purpose of
making a profit and at least 51 percent of all classes of the shares
of stock or other equitable securities of which are owned by one or
more persons who are socially disadvantaged because they are women
and [of their identification as members of certain groups that]
have suffered the effects of discriminatory practices or similar
insidious circumstances over which they have no control[, including
black Americans, Hispanic Americans, women, Asian Pacific
Americans, and American Indians];
(B) a sole proprietorship formed for the purpose
of making a profit that is owned, operated, and controlled
exclusively by one or more persons described by Paragraph (A);
(C) a partnership that is formed for the purpose
of making a profit, in which 51 percent of the assets and interest
in the partnership is owned by one or more persons described by
Paragraph (A), and in which [minority or] women partners have a
proportionate interest in the control, operation, and management of
the partnership affairs;
(D) a joint venture [between minority and women's
group members] formed by women for the purpose of making a profit
[and the minority participation in which is based on the sharing of
real economic interest, including equally proportionate control
over management, interest in capital, and interest earnings, other
than a joint venture in which majority group members own or control
debt securities, leasehold interest, management contracts, or
other interests];
(E) a supplier contract between persons
described in Paragraph (A) and a prime contractor in which the
disadvantaged business is directly involved for the manufacture or
distribution of the supplies or materials or otherwise for
warehousing and shipping the supplies; or
(F) a person certified as a disadvantaged
business by:
(i) this state;
(ii) a political subdivision of this state;
or
(iii) a regional planning commission,
council of governments, or similar regional planning agency created
under Chapter 391.
SECTION 2.14. Sections 381.004(b) and (d), Local Government
Code, are amended to read as follows:
(b) To stimulate business and commercial activity in a
county, the commissioners court of the county may develop and
administer a program:
(1) for state or local economic development;
(2) for small [or disadvantaged] business
development;
(3) to stimulate, encourage, and develop business
location and commercial activity in the county;
(4) to promote or advertise the county and its
vicinity or conduct a solicitation program to attract conventions,
visitors, and businesses;
(5) to improve the extent to which women-owned [women
and minority] businesses are awarded county contracts;
(6) to support comprehensive literacy programs for the
benefit of county residents; or
(7) for the encouragement, promotion, improvement,
and application of the arts.
(d) A program established under this section may be designed
to reasonably increase participation by [minority and] women-owned
businesses in public contract awards by the county by establishing
a contract percentage goal for those businesses.
SECTION 2.15. Section 901.659, Occupations Code, is amended
to read as follows:
Sec. 901.659. [MINORITY AND] DISADVANTAGED STUDENT
INTERNSHIPS. (a) The board shall adopt rules to encourage
internships for [minority and] disadvantaged students and
certified public accountant examination candidates who notify the
board not later than 90 days after the date of being accepted into
an accounting internship program.
(b) The rules adopted by the board shall include standards
for appropriate recognition of an accounting firm for its efforts
in training and hiring [minority or] disadvantaged students.
SECTION 2.16. Section 311.0101(d), Tax Code, is amended to
read as follows:
(d) The board by rule shall adopt goals for the
participation of [minority business enterprises and] women-owned
business enterprises in the awarding of state contracts for
professional services. To implement the participation goals, the
board shall encourage each issuer to award to [minority business
enterprises and] women-owned business enterprises not less than 15
percent of the total value of all professional services contract
awards that the issuer expects to make in its fiscal year.
SECTION 2.17. Section 284.007(d), Transportation Code, is
amended to read as follows:
(d) In this section, "historically underutilized business"
means:
(1) a corporation formed for the purpose of making a
profit in which at least 51 percent of all classes of the shares of
stock or other equitable securities is owned, managed, and in daily
operations controlled by one or more persons who have been
historically underutilized because they are [of their
identification as members of certain groups, including African
Americans, Hispanic Americans,] women and [, Asian Pacific
Americans, and Native Americans, who] have suffered the effects of
discriminatory practices or similar invidious circumstances over
which they have no control;
(2) a sole proprietorship formed for the purpose of
making a profit that is 100 percent owned and in daily operations is
controlled by a person described by Subdivision (1);
(3) a partnership formed for the purpose of making a
profit in which at least 51 percent of the assets and interest in
the partnership is owned by one or more persons described by
Subdivision (1) who also have proportionate interest in the
control, daily operations, and management of the partnership's
affairs;
(4) a joint venture in which each entity in the joint
venture is a historically underutilized business; or
(5) a supplier contract between a historically
underutilized business and a prime contractor under which the
historically underutilized business is directly involved in the
manufacture or distribution of the supplies or materials or
otherwise warehouses and ships the supplies or materials.
SECTION 2.18. Section 431.109(e), Transportation Code, is
amended to read as follows:
(e) In this section, "historically underutilized business"
means:
(1) a corporation formed for the purpose of making a
profit in which at least 51 percent of all classes of the shares of
stock or other equitable securities is owned, managed, and in daily
operations controlled by one or more persons who have been
historically underutilized because they are [of their
identification as members of certain groups, including African
Americans, Hispanic Americans,] women and[, Asian Pacific
Americans, and Native Americans, who] have suffered the effects of
discriminatory practices or similar invidious circumstances over
which they have no control;
(2) a sole proprietorship formed for the purpose of
making a profit that is 100 percent owned and in daily operation is
controlled by a person described by Subdivision (1);
(3) a partnership formed for the purpose of making a
profit in which at least 51 percent of the assets and interest in
the partnership are owned by one or more persons described by
Subdivision (1) and who also have proportionate interest in the
control, daily operation, and management of the partnership's
affairs;
(4) a joint venture in which each entity in the joint
venture is a historically underutilized business; or
(5) a supplier contract between a historically
underutilized business and a prime contractor under which the
historically underutilized business is directly involved in the
manufacture or distribution of the supplies or materials or
otherwise warehouses and ships the supplies or materials.
SECTION 2.19. Section 451.251, Transportation Code, is
amended to read as follows:
Sec. 451.251. CONTRACT GOALS FOR DISADVANTAGED BUSINESSES.
An authority that does not have an up-to-date disadvantaged
business enterprise program[, as defined by 49 C.F.R. Part 23,] to
assist [minorities and] women in participating in authority
contracts should establish goals for that participation. The
recommended contract goals are:
(1) 17 percent for construction, 11 percent for
purchasing, and 24 percent for professional services; or
(2) the weighted average equivalent of the categories
in Subdivision (1).
SECTION 2.20. The heading to Section 451.252,
Transportation Code, is amended to read as follows:
Sec. 451.252. WOMEN-OWNED BUSINESSES [MINORITY AND
DISADVANTAGED INDIVIDUALS] PROGRAM: CERTAIN AUTHORITIES.
SECTION 2.21. Section 451.252(a), Transportation Code, is
amended to read as follows:
(a) The board of an authority confirmed before July 1, 1985,
shall establish a program to encourage participation in contracts
of the authority by businesses owned by women [minorities or
disadvantaged individuals].
SECTION 2.22. The heading to Section 451.253,
Transportation Code, is amended to read as follows:
Sec. 451.253. [MINORITY AND] WOMEN-OWNED BUSINESS PROGRAM:
CERTAIN AUTHORITIES.
SECTION 2.23. Sections 451.253(a), (c), and (d),
Transportation Code, are amended to read as follows:
(a) An authority with a regional economic development
facility approved under Subchapter E may establish a program
reasonably designed to increase the participation of [minority and]
women-owned businesses in public contracts awarded by the
authority, and if the program is established, the board shall
provide a plan to assist [minority and] women-owned businesses in
the area served by the authority to achieve the purposes of the
program. If the board establishes a [an overall minority and]
women-owned business contract percentage goal as a part of the
program, the goal may not exceed the capability of the [minority
and] women-owned businesses in the area served by the authority to
perform the number and type of contracts awarded by the authority,
as determined by a qualified, independent source.
(c) This section does not affect Sections 451.110 and
451.111, but prospective bidders may be required to meet uniform
standards designed to assure a reasonable degree of participation
by [minority and] women-owned businesses in the performance of any
contract.
(d) In this section, "women-owned[:
[(1) "Minority" includes blacks, Hispanics, Asian
Americans, American Indians, and Alaska natives.
[(2) "Minority business" means a business concern more
than 50 percent of which is owned and controlled in management and
daily operations by members of one or more minorities.
[(3) "Women-owned] business" means a business concern
more than 50 percent of which is owned and controlled in management
and daily operations by one or more women.
SECTION 2.24. Section 451.353(b), Transportation Code, is
amended to read as follows:
(b) A revenue bond indenture may limit a power of the
authority provided by Sections 451.054-451.060, 451.061(a) or (b),
451.064-451.068 [451.064-451.069], or 451.107(a)[, or 451.251] as
long as the bonds issued under the indenture are outstanding.
SECTION 2.25. The heading to Section 452.201,
Transportation Code, is amended to read as follows:
Sec. 452.201. [MINORITY AND] WOMEN-OWNED BUSINESS PROGRAM
IN CERTAIN AUTHORITIES.
SECTION 2.26. Sections 452.201(a), (b), (d), and (e),
Transportation Code, are amended to read as follows:
(a) An authority consisting of one subregion governed by a
subregional board created under Subchapter O may establish a
program reasonably designed to increase the participation of
[minority and] women-owned business enterprises in contracts
awarded by the authority. If the program is established, the board
shall provide a program outlining acceptable assistance to be given
[minority and] women-owned business enterprises in the area served
by the authority to achieve the purposes of the program.
(b) An overall [minority and] women-owned business
enterprise contract percentage goal may be established as a part of
the program only after reasonable consultation with affected
organizations and a qualified independent source and after public
comment. In establishing a goal, the authority shall consider the
various types of construction contracts the authority expects to
award and the effect of market conditions on the feasibility of
attaining the goals.
(d) This section does not affect Sections 452.106, 452.107,
and 452.108(a) and (b), but prospective bidders may be required to
meet uniform standards designed to assure a reasonable degree of
participation by [minority and] women-owned business enterprises
in the performance of any contract.
(e) In this section, "women-owned[:
[(1) "Minority" includes blacks, Hispanics, Asian
Americans, American Indians, and Alaska natives.
[(2) "Minority business enterprise" means a small
business concern at least 51 percent of which is owned and
controlled in management and daily operations by members of one or
more minorities.
[(3) "Women-owned] business enterprise" means a small
business concern at least 51 percent of which is owned and
controlled in management and daily operations by one or more women.
SECTION 2.27. The following laws are repealed:
(1) Sections 381.004(a)(2) and (3), Local Government
Code; and
(2) Section 161.131, Natural Resources Code.
SECTION 2.28. Section 51.803(k), Education Code, is
repealed.
ARTICLE 3. TRANSITION AND EFFECTIVE DATE
SECTION 3.01. The change in law made by this Act to
Subchapter U, Chapter 51, Education Code, applies beginning with
admissions to a general academic teaching institution for the
2024-2025 academic year. Admissions for an academic period
preceding that academic year are covered by the law in effect
immediately before the effective date of this Act, and the prior law
is continued in effect for that purpose.
SECTION 3.02. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2023.
(b) The section of this Act repealing Section 51.803(k),
Education Code, takes effect January 1, 2024.