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.