BILL ANALYSIS
C.S.H.B. 1343
By: Hightower
3-21-95
Committee Report (Substituted)
BACKGROUND
• Plaintiff sued because he wasn't issued the right kind of
shoes to play basketball and tripped on the court.
• Plaintiff was kissed by a horse.
• Plaintiff complained that prison officials would not return
his confiscated fireworks.
• Plaintiff sued a district judge, alleging the judge was hiding
his criminal trial transcript and misrepresenting the actual
facts of the conviction to the appellate court.
• Plaintiff complained that the correctional officers allowed
space aliens to visit his cell.
• Plaintiff claimed a violation of the Eighth Amendment because
the prison served chunky, instead of smooth, peanut butter.
• Plaintiff claimed his civil rights were violated because he
received only one piece of bacon with breakfast, and the eggs
were not cooked to his satisfaction.
These cases, and the hundreds like them, take time away from the
business and resources of the Department of Criminal Justice, and
from the resources of the Attorney General's Office. The minimum
cost in lawyer time for the state is $1,600 for a one-day bench
trial, $3,000 for a one-day jury trial, and another $500 for the
inevitable appeal. In 1993, 659 inmate cases were opened by the
Attorney General's Office; in 1994, that number escalated to 994,
resulting in 1,781 pending cases. These are only the cases that
have already gone through initial screening, particularly in
federal court, and have not been dismissed outright; hundreds more
are disposed of without reaching the Attorney General. The sixteen
most prolific inmate litigators in Texas have filed 498 cases.
The basic issue is that inmate litigants who claim indigent status
have no incentive to deter them from litigation. They file their
suit in forma pauperis (IFP) with an affidavit attesting indigence.
As Judge Posner observed, "[w]e want the putative plaintiff to
think about the case and not just file reflexively; having to make
even a modest monetary outlay may help focus his thinking."
Lumbert v. Illinois Department of Corrections, 827 F.2d 257, 259
(7th Cir. 1987). The main purpose of an inmate lawsuit may be
merely to harass the defendant, or just get the chance of a hearing
in court, for diversion.
PURPOSE
C.S.H.B. 1343 creates a new Chapter 14 in the Civil Practice and
Remedies Code to enhance the ability of state courts to follow the
federal lead and dispose of cases efficiently using the Spears
hearing process. As the number and geographic distribution of
prisons grows, more and more Texas state courts are being
overwhelmed by growth in their inmate litigation docket. The
legislation will provide authority and guidance for streamlining
the process by: requiring that cases be brought in the county
where the inmate was confined; allowing the court to hold a hearing
within the facility (and dispose of multiple cases in a day);
allowing the court to conduct hearings with tele-conferencing
technology; allowing the submission of affidavits and supporting
documentation by the prison officials so that they need not appear
in person; and allowing the court to develop and use a form
questionnaire to be filled out by the filing inmate.
C.S.H.B. 1343 also provides a needed monetary disincentive to
inmate litigants, by allowing courts to require the payment of fees
and costs by deducting 10 to 20 percent of the balance in the
inmate's trust account until payment is made. The inmate litigant
will be required to file a certified copy of his trust account.
The inmate can also be required to file an affidavit detailing
previous litigation, excluding suits under the Family Code, filed
by that inmate.
C.S.H.B. 1343 permits a court to dismiss all or any part of a claim
that is frivolous, and dismiss a claim when the allegation of
poverty status is false. To find frivolousness, the court can find
that the claim is substantially similar to a previous claim filed
by the inmate; i.e., that it alleges the same operative facts. An
inmate who has had a previous dismissal for a frivolous or
malicious suit and who has not paid certain fees and costs assessed
will be prohibited from filing any other claims, unless allowed to
do so by a court where the new claim is to prevent irreparable
injury of serious physical harm to the inmate.
C.S.H.B. 1343 requires inmates to exhaust their administrative
remedies through the established grievance procedure before coming
to court. Federal law already provides for the certification of
state prison grievance procedures, and encourages courts to require
this exhaustion of remedies by inmates. C.S.H.B. 1343 allows a
court to order the department to forfeit some of an inmate's good
conduct time for repeatedly abusing the court system. The maximum
time would be 180 days of good conduct time forfeited for the
fourth frivolous lawsuit dismissed. C.S.H.B. 1343 also adds a
transitional section requiring TDCJ to provide notice of this
legislation to all persons confined in facilities operated by or
under contract with TDCJ in an appropriate manner.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.
SECTION BY SECTION ANALYSIS
SECTION 1
Amends Subchapter B, Chapter 15 (Venue), Civil Practice and
Remedies Code, by adding Sec. 15.018.
Sec. 15.018. INMATE LITIGATION. Requires that an inmate
claim be brought in the county where the inmate was housed at
the time the claim accrued. Requires that a claim brought by
two or more plaintiffs be brought in a county in which a
facility that housed one of the plaintiffs is located.
Actions under the Family Code are exempted.
SECTION 2
Amends Subtitle A, Title 2, Civil Practice and Remedies Code,
by adding Chapter 14 as follows:
CHAPTER 14. INMATE LITIGATION
Sec. 14.001. DEFINITIONS. Defines "claim," "department,"
"inmate," "secure correctional facility", "trust account", and
"unsworn declaration."
Sec. 14.002. SCOPE OF CHAPTER. Provides that the chapter
applies only to inmate claims in which an affidavit or unsworn
declaration of inability to pay costs is filed, but does not
apply to actions under the Family Code.
Sec. 14.003. DISMISSAL OF CLAIM.
(a) Allows a court to dismiss a claim, before or after
service of process on the defendant, if the court
determines that the allegation of poverty in the
affidavit or unsworn declaration filed is false; the
claim is frivolous or malicious; or the inmate knowingly
filed a false affidavit or unsworn declaration of
inability to pay.
(b) Allows the court, when determining if a claim is
frivolous or malicious, to consider whether the claim's
realistic chance of ultimate success is slight; the
claim has no arguable basis in law or in fact; it is
clear that the party cannot prove facts in support of
the claim; or the claim is substantially similar to a
previous claim filed by the inmate because the claim
arises from the same operative facts.
(c) Allows a court to hold a hearing, when determining
whether Subsection (a) applies, either before or after
service of process.
(d) Requires the court to suspend discovery relating to
the claim if a motion for a hearing is filed.
(e) Allows a court that dismisses a claim to notify the
department of the dismissal, and on the court's own
motion or on the motion of any party or the clerk of the
court, to advise the department that a mental health
evaluation of the inmate may be appropriate.
Sec. 14.004. AFFIDAVIT RELATING TO PREVIOUS FILINGS.
(a) Requires an inmate who files an affidavit or unsworn
declaration of inability to pay costs, to file a
separate affidavit or declaration identifying each suit,
other than a suit under the Family Code, previously
brought by the person and in which the person was not
represented by an attorney, regardless whether the
person was an inmate at the time the suit was filed.
Each suit must be described by stating the operative
facts for which relief was sought, listing the case
name, cause number, and the court in which the suit was
brought, identifying each party named in the suit and
the results of any suits and any prior claims dismissed
as frivolous or malicious.
(b) Requires the affidavit or unsworn declaration to
state the date of the final order affirming the
dismissal if a previous suit was dismissed as frivolous
or malicious.
(c) Requires an inmate to file a certified copy of his
trust account statement with the affidavit or unsworn
declaration.
Sec. 14.005. GRIEVANCE SYSTEM DECISION; EXHAUSTION OF
ADMINISTRATIVE REMEDIES.
(a) Requires an inmate whose claim is subject to the
TDCJ grievance system, to file with the court, an
affidavit or unsworn declaration with the date the
grievance was filed and the date the written decision
was received by the inmate, and a copy of the written
decision from the grievance system.
(b) Requires a court to dismiss a claim if not filed
before the 31st day after the inmate receives the
written decision from the grievance system.
(c) Requires a court to stay the proceeding for up to
180 days to allow completion of the grievance procedure
if a claim is filed before the grievance process is
complete.
Sec. 14.006. COURT FEES, COURT COSTS, OTHER COSTS.
(a) Allows a court to order an inmate claimant to pay
court fees, court costs and other costs in accordance
with this section and section 14.007. Requires the
clerk of the court to mail a copy of the court's order
and a certified bill of costs to the department or jail.
(b) Requires an inmate, on the court's order, to pay an
amount equal to the lesser of 20% of the preceding six
months' deposits to the inmate's trust account, or the
total amount of court fees and costs.
(c) Requires the inmate, in subsequent months, to pay
an amount equal to the lesser of 10% of that month's
deposits to the trust account, or the total amount of
court fees and costs that remain unpaid.
(d) Requires these payments to continue until the total
amount of court fees and costs are paid or until the
inmate is released from confinement.
(e) Requires the department or jail, upon receipt of a
copy of the court's order, to withdraw money from the
trust account in accordance with Subsections (b), (c),
and (d). Requires the department or jail to hold the
money in a separate account and forward the money to the
court clerk on either the date the total amount to be
forwarded equals the total amount of court fees and
costs that remains unpaid or the date the inmate is
released, whichever is earlier.
(f) Requires an inmate to file with the court a
certified copy of the inmate's trust account, reflecting
the balance of the account at the time the claim was
filed and the activity in the account six months
preceding the date the claim was filed. Allows the
court to request the department or jail to furnish this
information.
(g) Allows the inmate to authorize additional payments
to those required.
(h) Allows the court to dismiss the claim for nonpayment
of the fees and costs assessed under this section.
(i) Prohibits an inmate from avoiding payment by
nonsuiting or dismissing the claim.
Sec. 14.007. OTHER COSTS. Requires an order of a court to
include the costs of court if the court finds that the inmate
has previously had a claim dismissed as frivolous or
malicious. Requires these costs to include expenses incurred
by the court or by the department, jail or private facility
operator, relating to the claim including expenses of service
of process, postage, transportation, housing or medical care
incurred in connection with the appearance of the inmate in
the court for any proceeding.
Sec. 14.008. HEARING. Allows a court to hold a hearing in a
jail or facility operated by or under contract with the
department or by video-communications technology that allows
the court to see and hear the inmate and allows the inmate to
see and hear the court and any other witnesses. Requires that
a hearing conducted by video communications technology be
recorded on a videotape that shall serve as a permanent record
of the hearing.
Sec. 14.009. SUBMISSION OF EVIDENCE. Allows a court to
request a person, with admissible documents and testimony
relevant to the subject matter of the hearing, to submit a
copy of the document or written statement stating the
substance of the testimony. Requires that a written statement
submitted under this section must be made under oath or made
as an unsworn declaration. Requires a copy of a document
submitted under this section to be accompanied by
certification under oath stating the copy is correct. Allows
a person submitting a written statement or document to not
appear at a hearing. The court shall require that the inmate
be provided with a copy of each written statement or document
not later than 14 days before the hearing date.
Sec. 14.010. DISMISSAL OF CLAIM. Allows a court to dismiss
all or any portion of a claim and if only a portion of the
claim is dismissed, requires the court to designate those
issues and defendants on which the claim may proceed.
Provides that an order under this section is not subject to
interlocutory appeal.
Sec. 14.011. EFFECT ON OTHER CLAIMS. Prohibits a clerk of a
court from accepting further filings from an inmate who has
not paid previously assessed fees and costs under Sec. 14.006
until the fees and costs are paid. Allows a court to allow an
inmate, who has not paid the fees and costs assessed against
him, to file a claim for injunctive relief where there is a
threat of irreparable injury or serious physical harm.
Sec. 14.012. QUESTIONNAIRE. Allows a court to develop and
use an inmate questionnaire to facilitate processing of
claims.
Sec. 14.013. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
Provides that this chapter prevails over the Supreme Court's
rulemaking authority.
SECTION 3
Amends Chapter 13, Civil Practice and Remedies Code, by adding
Sec. 13.004 to remove applicability of that chapter in favor
of new Chapter 14.
SECTION 4
Amends Chapter 106, Civil Practice and Remedies Code, by
adding a Sec. 106.004.
Sec. 106.004. INAPPLICABILITY TO CERTAIN CLAIMS. Provides
that the chapter does not authorize an inmate claim for
preventive relief against a state agency or employee, if the
claim is brought by a person housed in a facility operated by
or under contract with the department and the claim accrued
while the person was housed in the facility.
SECTION 5
Amends Chapter 498, Government Code, by adding Sec. 498.0045.
Sec. 498.0045. FORFEITURE OF GOOD CONDUCT TIME: FRIVOLOUS
LAWSUITS.
(a) Provides that in this section "final order" means
a certified copy of a final order of a state or federal
court that dismisses as frivolous or malicious a lawsuit
brought by an inmate while the inmate was in the custody
of the department.
(b) Upon receipt of a final order, requires the
department to forfeit 60 days of an inmate's accrued
good conduct time if the department has previously
received one final order; 120 days of accrued good
conduct time if the department has previously received
two final orders, and 180 days of accrued good conduct
time if the division has previously received three or
more final orders.
(c) Prohibits the department from restoring good conduct
time forfeited under this section.
SECTION 6
Amends Sec. 501.008, Government Code, as follows:
Sec. 501.008. INMATE GRIEVANCE SYSTEM.
(a) Requires that the department develop and maintain a system
for the resolution of grievances by inmates housed in
facilities operated by or under contract with the department.
Requires the department to obtain and maintain certification.
Provides that the inmate grievance system is the exclusive
administrative remedy for claims for relief against the
department arising while an inmate is housed in a facility
operated by the department or under contract with the
department, other than a remedy provided by writ of habeas
corpus challenging the validity of an action occurring before
the delivery of the inmate to the department.
(b) Requires the grievance system to provides procedures for
an inmate to identify evidence to substantiate the inmate's
claim and for an inmate to receive all formal written
responses to the inmate's grievance.
(c) Provides that documentation prepared by the department in
response to an inmate grievance is considered to have been
prepared in anticipation of litigation and is confidential and
not discoverable by an inmate in subsequent litigation over
the same operative facts.
(d) Provides that an inmate may not file a claim in state
court until receiving a written decision issued by the highest
authority provided for in the grievance system or if the
inmate has not received a written decision by the 180th day
after the date the grievance is filed.
(e) Provides that the limitations period for a claim is
suspended on the filing of the grievance and remains suspended
until either the 180th day after the date the grievance is
filed or the date the inmate receives the written decision
whichever is earlier.
(f) Provides that this section does not affect immunity from
a claim for damages that otherwise exist for the state, the
department or an employee of the department.
SECTION 7
Amends Subchapter A, Chapter 501, Government Code, by adding
Sec. 501.019.
Sec. 501.019. COST OF CONFINEMENT AS CLAIM; SETOFF. Provides
that the state may deduct from any monetary obligation owed to
an incarcerated person the cost of incarceration, if a cost
can be computed, including in a case in which a state officer
or employee is indemnified, and any amount assessed against
the person for court fees, court costs and other costs that
remains unpaid at the time the monetary obligation is to be
paid. Requires the annual cost of incarceration to be
computed using the average cost per day calculated by the
Criminal Justice Policy Council. Provides for a prorated
portion of the cost of incarceration for a person incarcerated
365 days or less in a year. Provides that this section
applies to a monetary obligation arising from a judgment
against the state only if the judgment awards damages for
property damage or bodily injury resulting from a negligent
act or omission and there is not a finding by the court of a
violation of the Texas or United States constitution.
SECTION 8
Repeals Section 30.006, Civil Practice and Remedies Code.
SECTION 9
A transitional section that requires the Texas Department of
Criminal Justice to provide notice to all persons, housed in
facilities operated by or under contract with the department,
of the provisions of this Act. In providing notice under this
section, TDCJ shall include notice of the provisions of this
Act in the newspaper published for inmates; post notice of the
provisions of this Act in each law library maintained by the
department; and ensure that adequate notice is provided to
persons who are not housed in the general population of
inmates.
SECTION 10
Provides for a prospective application of this Act as to
causes of action, forfeiture of good conduct time, and
application of the inmate grievance procedure.
SECTION 11
Emergency clause.
Effective upon passage.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute provides for venue in cases with multiple plaintiffs
and amends the definition of inmate to mean "a person housed in a
secure correctional facility as defined in Penal Code Sec. 1.07."
This will then include municipal jails, so the substitute changes
all references in the bill from county jails to jails. The
substitute also amends the grounds for dismissal of an inmate claim
to add a third possibility of knowingly filing a false affidavit.
The substitute also adds a new subsection to ensure that courts
realize that they can advise TDCJ to conduct a mental health
examination on an inmate who has filed a claim of an unusual
nature. The substitute also amends the requirement for an inmate
affidavit describing all previous litigation to exempt Family Code
litigation and by limiting the scope to "pro se" claims; it also
deletes the requirement that the inmate state the legal theory on
which the lawsuit was based.
The substitute also deletes reference to interest on inmate trust
accounts and sets a procedure for assessing court costs and an
efficient administration of those costs. The section relating to
the court filing an order upon release of an inmate to have the
costs assessed follow him out was deleted since the intent is not
necessarily to recoup funds, but to provide a disincentive to
"recreational litigation". The substitute adds language that says
the video communications technology hearing shall be recorded on
videotape that will serve as a permanent record of the hearing.
The substitute changes the amount of time prior to a hearing that
the inmate be provided with copies of written documentation from 24
hours prior to 14 days prior.
The substitute makes the lack of payment of fees and costs and the
effect on other claims more individualized by focusing only on
inmates who have previously incurred additional expenses due to a
frivolous or malicious dismissal. The substitute adds a
transitional section requiring TDCJ to provide notice of this
legislation to all persons confined in facilities operated by or
under contract with TDCJ in the appropriate manner.
SUMMARY OF COMMITTEE ACTION
H.B. 1343 was considered by the Corrections Committee in a public
hearing on February 28, 1995.
The following persons testified in favor of the bill:
Sheriff Dan Smith, representing Sheriff's Association
Legislative Committee.
Sheriff Robert Horn, representing Bee County.
Sandra Clark, representing Bee County.
Maxine Barnette, representing Anderson County Government.
Michelle Brinkman, representing Travis County District Clerks
Office.
Jim Allison, representing County Judges and Commissioners
Association of Texas.
The following persons testified neutrally on the bill:
Ann Kraatz, representing the Attorney General's Office.
Carl Reynolds, representing the Texas Board of Criminal
Justice.
The bill was left pending. H.B. 1343 was considered by the
committee in a public hearing on March 21, 1995. The committee
considered a complete substitute for the bill. The substitute 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, 0 nays, 0 pnv, and 0 absent.