BILL ANALYSIS C.S.H.B. 383 By: Junell 3-25-95 Committee Report (Substituted) BACKGROUND The individual liability of public officers and employees under state law is presently governed by common law rules. These rules, as they have evolved in the courts, provide different levels of immunity to public officials and employees depending upon the type of function the official or employee is engaged in when the cause of action arises. Thus, the courts have held that public officials are liable for acts arising out of the performance of ministerial functions, but enjoy immunity for acts arising out of the performance of quasi-judicial or discretionary functions. Texas Torts and Remedies, Sec. 60.01(2)(c). If the cause of action involves a ministerial function, then there is no limit to the amount of damages that may be awarded against an individual. In an effort to protect these individuals, some governmental entities have purchased insurance or provided for indemnification for their officers and employees. State law provides that, in most circumstances, the liability of a governmental entity itself is limited. Also, a settlement of a suit against an entity is a bar to an action against an individual. This has resulted in many more lawsuits being brought against the individual as well as the governmental entity. PURPOSE To limit the liability of public officers and employees who are named as parties to a lawsuit. Amends the Civil Practice and Remedies Code to limit the liability of an officer or employee to $100,000 if the governmental entity has either indemnified the individual or the individual is covered by insurance for acts or omissions performed in the scope of office or employment. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 101.055, Civil Practice and Remedies Code, to allow that this chapter does not apply to a claim arising an employee responding to an emergency situation if their is no law or ordinance covering the situation and the action is not taken with conscious indifference or reckless disregard for the safety of others. SECTION 2. Amends Section 101.106, Civil Practice and Remedies Code,to rename the Section "Election of Remedies." and to provide that a judgement in an action or a claim a settled against the governmental unit under this chapter bars any action involving the same subject by the claimant. SECTION 3. Amends Section 104.001, Civil Practice and Remedies Code, to require the state to indemnify persons without regard to whether those persons performed their services for compensation. SECTION 4. Amends Section 104.003(a), Civil Practice and Remedies Code, to allow state liability for indemnification to exceed the statutory amount if a specific appropriation was made for that indemnification. SECTION 5. Amends Section 108.001, Section 108.002, and Section 108.003, Civil Practice and Remedies Code, to expand the definition of public servant. The new provision provides that for purposes of limitation of liability, a public servant is an public official either elected or appointed who was acting in that capacity when the damages occurred. The new provision excludes independent contractors and agents or employees of independent contractors from the definition. Also adds new provisions which place a $100,000 limit on the liability of public servants from damages arising from personal injury, death, or deprivation of right privilege or immunity if the damages are a result of the public servant's act or omission in the course and scope of their office or employment and the local government either indemnifies the individual or the individual is covered by insurance provided by the governmental entity. This does not affect the liability for indemnification of the state under Chapter 104 or of a local government under Chapter 102. Also, does not impose liability or waive immunity for a public servant who has common law, statutory, or other immunity. SECTION 6. (a) Effective date, September 1, 1995. (b) Grandfather clause. SECTION 7. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The Committee Substitute deletes changes in the original bill regarding including "officer" in the definitions and other various sections. In Section 101.055(2), the substitute adds the word "not" in Sec. 101.055(2) to apply to emergency situations of a governmental employee. The substitute deletes the proposal to make insurance coverage for employees inadmissible in the trial of a suit. The substitute also deletes the election of remedies section in the original bill which required that an election must be made before filing a lawsuit as to whether the lawsuit would be brought against the individual or the governmental entity. The substitute adds liability or errors and omissions coverage under an interlocal agreement to the types of insurance or indemnification required to trigger the limits of liability on individuals. The substitute also provides that the limits of liability do not apply to a physician, psychiatrist, nurse or pharmacist licensed in this state. SUMMARY OF COMMITTEE ACTION Pursuant to public notice posted on February 15, 1995, the Committee on State Affairs met in a public hearing on February 20, 1995. The Chair laid out HB 383 and recognized Rep. Junell to explain the bill. The following persons testified in favor of the bill: Mike Clark representing the Combined Law Enforcement Associations of Texas; and Susan Horton representing the Texas Municipal League. The following person testified against the bill: Mike Slack representing the Texas Trial Lawyers Association. The bill was referred to a subcommittee consisting of Representatives Bosse, Danburg, Hilbert, McCall, Wolens. After being recalled from subcommittee, HB 383 was considered by the committee in a public hearing on March 13, 1995. Rep. Bosse laid out a complete substitute for HB 383 that was adopted without objection. The bill was reported favorably as substituted with the recommendation that it do pass and be printed by a record vote of 9 ayes, 4 nays, 1 pnv, and 1 absent.