74(R) HB 1343 Senate Committee Report

BILL ANALYSIS

H.B. 1343
By: Hightower (Montford)
Criminal Justice
4-28-95
Senate Committee Report (Amended)
BACKGROUND

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 cases pending in federal court. These are
only the cases that have gone through initial screening,
particularly in federal court, have not been dismissed outright;
hundreds more are disposed of without reaching the attorney
general. The 16 most prolific inmate litigators in Texas have
filed 498 cases.

Currently, inmates who claim indigent status have no incentive to
deter them from litigation.

PURPOSE

As proposed, H.B. 1343 establishes procedures for inmate grievances
and provides penalties for frivolous or malicious litigation filed
by inmates.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the Texas Supreme Court in SECTION 2 (Section 14.013, Civil
Practice and Remedies Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 15B, Civil Practice and Remedies Code,
by adding Section 15.018, as follows:

Sec. 15.018. INMATE LITIGATION. Requires an action that
accrued while the plaintiff was housed in a facility operated
by the Texas Department of Criminal Justice (department) to be
brought in the county in which the facility is located.
Provides that this section does not apply to an action brought
under the Family Code.

SECTION 2. Amends Title 2A, 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 this chapter
applies only to a suit brought by an inmate in a district,
county, justice of the peace, or small claims court in which
an affidavit or unsworn declaration of inability to pay costs
is filed by the inmate. Provides that this chapter does not
apply to an action brought under the Family Code.

Sec. 14.003. DISMISSAL OF CLAIM. (a) Authorizes a court to
dismiss a claim, either before or after service of process, if
the court makes certain findings.

(b) Establishes the considerations authorized by the court,
in determining whether a claim is frivolous or malicious.

(c) Authorizes the court to hold a hearing in order to
determine whether Subsection (a) applies. Authorizes the
hearing to be held before or after service of process, and
to be held on motion of the court, a party, or any officer
of the court.

(d) Requires the court to suspend discovery relating to the
claim pending the hearing.

(e) Authorizes a court that dismisses a claim brought by a
person housed in a facility operated by or under contract
with the department to notify the department of the
dismissal and, on the court's own motion or the motion of
any party or the clerk of the court, to advise the
department that 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 which meets certain criteria.

(b) Requires the affidavit or unsworn statement to state
the date of the final order affirming the dismissal, if the
affidavit states that a previous suit was dismissed as
frivolous or malicious.

Sec. 14.005. GRIEVANCE SYSTEM DECISION; EXHAUSTION OF
ADMINISTRATIVE REMEDIES. (a) Requires an inmate who files a
claim that is subject to the grievance system (system) to file
an affidavit or unsworn statement with the court, stating 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 system.

(b) Requires a court to dismiss a claim if the inmate fails
to file the claim before the 31st day after the date the
inmate receives the final decision from the system.

(c) Requires the court to stay the proceeding with respect
to the claim for a period not to exceed 90 days to permit
the completion of the system procedure if a claim is filed
before the system procedure is complete.

Sec. 14.006. COURT FEES, COURT COSTS, OTHER COSTS. (a)
Requires a court to order an inmate who has filed a claim to
pay court fees, court costs, and other costs. Requires the
clerk of the court to mail a copy of the court's order to the
department or county jail, as appropriate.

(b) Requires the inmate to pay an amount equal to 20
percent 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 to pay an amount equal to 10
percent of that month's deposits to the trust account or the
total amount of court fees and costs that remain unpaid.

(d) Requires payments under this section 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 county jail to withdraw
money from the trust account in accordance with Subsections
(b)-(d). Requires the department or jail to forward the
money to the clerk of the court on 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.

(f) Requires the inmate to file a certified copy of the
inmate's trust account statement with the court. Requires
the statement to reflect the balance of the account at the
time the complaint is filed and activity in the account
during the six months preceding the date on which the
complaint is filed. Authorizes the court to request the
department or county jail to furnish the required
information.

(g) Authorizes an inmate to authorize payment in addition
to that required by this section.

(h) Authorizes the court to dismiss a claim if the inmate
fails to pay the assessed fees and costs.

(i) Prohibits an inmate from avoiding the assessed fees and
costs by nonsuiting a party or by voluntarily dismissing the
action.

Sec. 14.007. OTHER COSTS. (a) Requires an order of a court
to include the costs if the court makes certain findings.

(b) Requires costs under Subsection (a) to include any cost
incurred by the court, the department, jail, or private
facility operator in connection with the claim and not
otherwise charged to the inmate including expenses of
service of process, postage, and transportation, housing, or
medical care incurred in connection with the appearance of
the inmate in the court for any proceeding.

Sec. 14.008. HEARING. (a) Authorizes the court to hold a
hearing under this chapter at a jail or a facility operated by
or under contract with the department or to conduct the
hearing with the video communications technology that permits
the inmate to see and hear the court and any other witness.

(b) Requires a hearing conducted under this section by
video communications technology to be recorded on videotape.
Provides that the recording is sufficient to serve as a
permanent record of the hearing.
Sec. 14.009. SUBMISSION OF EVIDENCE. (a) Authorizes the
court to request a person with an admissible document or
admissible 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.

(b) Requires a written statement submitted under this
section to be made under oath or made as an unsworn
declaration under Section 132.001.

(c) Requires a copy of a document submitted under this
section to be accompanied by a certification executed under
oath by an appropriate custodian of the record stating that
the copy is correct and any other matter relating to the
admissibility of the document that the court requires.

(d) Provides that a person submitting an affidavit or
document is not required to appear at the hearing.

(e) Requires the court to provide the inmate a copy of each
affidavit and document not later than 14 days before the
time at which the hearing is to begin.

Sec. 14.010. DISMISSAL OF CLAIM. (a) Authorizes the court
to enter an order dismissing the entire claim or a portion of
the claim.

(b) Requires the court to designate the issues and
defendants on which the claim may proceed if a portion of
the claim is dismissed.

Sec.14.011. EFFECT ON OTHER CLAIM. (a) Prohibits a clerk of
a court from accepting for filing another claim by the inmate
until fees, costs, and expenses assessed are paid, except as
provided by Subsection (b), on receipt of an order assessing
fees and costs under Section 14.006 that indicates that the
court made the finding described by Section 14.007(a).

(b) Authorizes a court to allow an inmate who has not paid
the fees, costs, and expenses assessed against the inmate to
file a claim for injunctive relief seeking to enjoin an act
or failure to act that creates a substantial threat of
irreparable injury or serious physical harm to the inmate.

Sec. 14.012. QUESTIONNAIRE. Authorizes the court to develop
a questionnaire to be filed by the inmate.

Sec. 14.013. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
Prohibits this chapter from being modified or repealed by a
rule adopted by the supreme court.

SECTION 3. Amends Chapter 13, Civil Practice and Remedies Code, by
adding Section 13.004, as follows:

Sec. 13.004. INAPPLICABILITY TO CERTAIN CLAIMS. Provides
that this chapter does not apply to a claim governed by
Chapter 14.
SECTION 4. Amends Chapter 106, Civil Practice and Remedies Code,
by adding Section 106.004, as follows:

Sec. 106.004. INAPPLICABILITY TO CERTAIN CLAIMS. Provides
that this chapter does not authorize a claim for preventive
relief against the department, an employee of the department,
or any other agency, agent, employee, or officer of this state
if the claim meets certain criteria.
SECTION 5. Amends Chapter 498, Government Code, by adding Section
498.0045, as follows:

Sec. 498.0045. FORFEITURE OF GOOD CONDUCT TIME: FRIVOLOUS
LAWSUITS. (a) Defines "final order."

(b) Sets forth the conditions and amounts of forfeiture of
good conduct time the division is required to impose on an
inmate upon receipt of a final order.

SECTION 6. Amends Section 501.008, Government Code, as follows:

Sec. 501.008. New heading: INMATE GRIEVANCE SYSTEM. (a)
Requires the department to develop and maintain a system for
the resolution of grievances by inmates housed in facilities
operated by the department or under contract with the
department that qualifies for certification and requires the
department to obtain certification. Provides that a remedy
provided by the system is the exclusive administrative remedy
available to an inmate for a claim for relief against the
department that arises while the inmate is housed in a
facility operated by the department or under contract with the
department, other than a remedy provided by a writ of habeas
corpus challenging the validity of an action occurring before
the delivery of the inmate to the department.

(b) Sets forth the required provisions of the grievance
system.

(c) Provides that a report, investigation, or supporting
document prepared by the department in response to an inmate
grievance is considered to have been prepared in
anticipation of litigation and is confidential, privileged,
and not subject to discovery by the inmate in a claim
arising out of the same operative facts as are alleged in
the grievance.

(d) Prohibits an inmate from filing a claim in state court
regarding operative facts for which the grievance system
provides the exclusive administrative remedy until certain
conditions are met.

(e) Provides that the limitations period applicable to a
claim arising out of the same operative facts as a claim for
which the system provides the exclusive remedy is suspended
on the filing of the grievance, and remains suspended until
the 180th day after the grievance is filed or the inmate
receives a written decision under the system.

(f) Provides that this section does not affect any immunity
from a claim for damages that otherwise exists for the
state, the department, or an employee of the department.

SECTION 7. Amends Chapter 501A, Government Code, by adding Section
501.019, as follows:

Sec. 501.019. COST OF CONFINEMENT AS CLAIM; SETOFF. (a)
Authorizes the state to deduct the cost of incarceration from
any monetary obligation owed to a person for whom a cost of
incarceration can be computed, and any amount assessed against
the person under Section 14.006, Civil Practice and Remedies
Code, that remains unpaid at the time the monetary obligation
is to be paid.

(b) Requires the court to reduce the amount recoverable by
the claimant by the amount of the cost of incarceration in
a case in which a person may be indemnified.

(c) Requires the annual cost of incarceration of a person
to be computed using the average cost per day for
imprisonment calculated by the Criminal Justice Policy
Council.

(d) Requires the department or the court to credit or debit
a prorated portion of the cost of incarceration for 365 days
or less in a year. Provides that the number of days of
incarceration in a year includes time served before
conviction.

(e) Sets forth the conditions in which this section applies
to a monetary obligation arising from a judgment against the
state, an agency of the state or an officer or employee of
the state or an agency of the state.

SECTION 8. Repealer: Section 30.006, Civil Practice and Remedies
Code (Exhaustion of Administrative Remedies for Inmates).

SECTION 9. (a) Requires the department to provide notice to all
persons housed in facilities operated by or under contract with the
department of the provisions of this Act.

(b) Sets forth the required provisions of a notice under this
section.
SECTION 10. (a) Makes application of this Act prospective.

(b) Makes application of Section 498.0045, Government Code,
as added by this Act, prospective.

SECTION 11. Emergency clause.
Effective date: upon passage.