By Junell H.B. No. 383
74R902 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to liability of certain governmental units and to the
1-3 employees and officers of those units.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 101.001(1), (4), and (5), Civil Practice
1-6 and Remedies Code, are amended to read as follows:
1-7 (1) "Employee" means a person, including an <officer
1-8 or> agent, who is in the paid service of a governmental unit by
1-9 competent authority, but does not include an independent
1-10 contractor, an agent or employee of an independent contractor, or a
1-11 person who performs tasks the details of which the governmental
1-12 unit does not have the legal right to control.
1-13 (4) "Officer" means an elected or appointed officer of
1-14 a governmental unit, without regard to whether the officer is paid
1-15 for the officer's services.
1-16 (5) "Scope of employment" means the performance for a
1-17 governmental unit of the duties of an employee's or officer's
1-18 <office or> employment or office and includes being in or about the
1-19 performance of a task lawfully assigned to an employee or officer
1-20 by competent authority.
1-21 (6) <(5)> "State government" means an agency, board,
1-22 commission, department, or office, other than a district or
1-23 authority created under Article XVI, Section 59, of the Texas
1-24 Constitution, that:
2-1 (A) was created by the constitution or a statute
2-2 of this state; and
2-3 (B) has statewide jurisdiction.
2-4 SECTION 2. Sections 101.021 and 101.026, Civil Practice and
2-5 Remedies Code, are amended to read as follows:
2-6 Sec. 101.021. Governmental Liability. A governmental unit
2-7 in the state is liable for:
2-8 (1) property damage, personal injury, and death
2-9 proximately caused by the wrongful act or omission or the
2-10 negligence of an employee or officer acting within the <his> scope
2-11 of employment if:
2-12 (A) the property damage, personal injury, or
2-13 death arises from the operation or use of a motor-driven vehicle or
2-14 motor-driven equipment; and
2-15 (B) the employee or officer would be personally
2-16 liable to the claimant according to Texas law; and
2-17 (2) personal injury and death so caused by a condition
2-18 or use of tangible personal or real property if the governmental
2-19 unit would, were it a private person, be liable to the claimant
2-20 according to Texas law.
2-21 Sec. 101.026. Individual's Immunity Preserved. To the
2-22 extent an employee or officer has individual immunity from a tort
2-23 claim for damages, it is not affected by this chapter.
2-24 SECTION 3. Section 101.027(a), Civil Practice and Remedies
2-25 Code, is amended to read as follows:
2-26 (a) Each governmental unit may purchase insurance policies
2-27 protecting the unit and the unit's employees or officers against
3-1 claims for property damage, personal injury, or death <under this
3-2 chapter>.
3-3 SECTION 4. Section 101.053(b), Civil Practice and Remedies
3-4 Code, is amended to read as follows:
3-5 (b) This chapter does not apply to a claim based on an act
3-6 or omission of an employee or officer in the execution of a lawful
3-7 order of any court.
3-8 SECTION 5. Section 101.055, Civil Practice and Remedies
3-9 Code, is amended to read as follows:
3-10 Sec. 101.055. Certain Governmental Functions. This chapter
3-11 does not apply to a claim arising:
3-12 (1) in connection with the assessment or collection of
3-13 taxes by a governmental unit;
3-14 (2) from the action of an employee or officer while
3-15 responding to an emergency call or reacting to an emergency
3-16 situation if the action is in compliance with the laws and
3-17 ordinances applicable to emergency action, or in the absence of
3-18 such a law or ordinance, if the action is taken with conscious
3-19 indifference or reckless disregard for the safety of others; or
3-20 (3) from the failure to provide or the method of
3-21 providing police or fire protection.
3-22 SECTION 6. Section 101.062(b), Civil Practice and Remedies
3-23 Code, is amended to read as follows:
3-24 (b) This chapter applies to a claim against a public agency
3-25 that arises from an action of an employee or officer of the public
3-26 agency or a volunteer under direction of the public agency and that
3-27 involves providing 9-1-1 service or responding to a 9-1-1 emergency
4-1 call only if the action violates a statute or ordinance applicable
4-2 to the action.
4-3 SECTION 7. Section 101.104, Civil Practice and Remedies
4-4 Code, is amended by adding Subsection (c) to read as follows:
4-5 (c) This section applies to the admissibility and discovery
4-6 of insurance purchased by a governmental unit under Section
4-7 101.027(a) without regard to whether the suit is brought against:
4-8 (1) a governmental unit under this chapter;
4-9 (2) an employee or officer; or
4-10 (3) both a governmental unit and an employee or
4-11 officer.
4-12 SECTION 8. Section 101.106, Civil Practice and Remedies
4-13 Code, is amended to read as follows:
4-14 Sec. 101.106. ELECTION OF REMEDIES <EMPLOYEES NOT LIABLE
4-15 AFTER SETTLEMENT OR JUDGMENT>. (a) Commencement of <A judgment
4-16 in> an action or <a> settlement of a claim under this chapter bars
4-17 any action involving the same subject matter by the claimant
4-18 against the employee or officer of the governmental unit whose act
4-19 or omission gave rise to the claim.
4-20 (b) Commencement of an action or settlement of a claim
4-21 against an employee or officer of a governmental unit bars any
4-22 action involving the same subject matter by the claimant against
4-23 the governmental unit under this chapter.
4-24 (c) This section applies without regard to whether the
4-25 action is dismissed or continues to final judgment.
4-26 SECTION 9. Section 104.001, Civil Practice and Remedies
4-27 Code, is amended to read as follows:
5-1 Sec. 104.001. State Liability; Persons Covered. In a cause
5-2 of action based on conduct described in Section 104.002, the state
5-3 shall indemnify the following persons, without regard to whether
5-4 the persons performed their services for compensation, for actual
5-5 damages, court costs, and attorney's fees adjudged against:
5-6 (1) an employee, a member of the governing board, or
5-7 any other officer of a state agency, institution, or department;
5-8 (2) a former employee, former member of the governing
5-9 board, or any other former officer of a state agency, institution,
5-10 or department who was an employee or officer when the act or
5-11 omission on which the damages are based occurred;
5-12 (3) a physician or psychiatrist licensed in this state
5-13 who was performing services under a contract with any state agency,
5-14 institution, or department or a racing official performing services
5-15 under a contract with the Texas Racing Commission when the act or
5-16 omission on which the damages are based occurred;
5-17 (4) a person serving on the governing board of a
5-18 foundation, corporation, or association at the request and on
5-19 behalf of an institution of higher education, as that term is
5-20 defined by Section 61.003(8), Education Code, not including a
5-21 public junior college; or
5-22 (5) the estate of a person listed in this section.
5-23 SECTION 10. Section 104.003(a), Civil Practice and Remedies
5-24 Code, is amended to read as follows:
5-25 (a) Except as provided by Subsection (c) or a specific
5-26 appropriation, state liability for indemnification under this
5-27 chapter may not exceed:
6-1 (1) $100,000 to a single person and $300,000 for a
6-2 single occurrence in the case of personal injury, death, or
6-3 deprivation of a right, privilege, or immunity; and
6-4 (2) $100,000 for a single occurrence of damage to
6-5 property.
6-6 SECTION 11. Chapter 108, Civil Practice and Remedies Code,
6-7 is amended to read as follows:
6-8 CHAPTER 108. LIMITATION OF LIABILITY FOR PUBLIC SERVANTS
6-9 Sec. 108.001. DEFINITIONS <DEFINITION>. In this chapter:
6-10 (1) "Public<, "public> servant" means a person who is:
6-11 (A) in the paid or unpaid service of a local
6-12 government by competent authority, but does not include an
6-13 independent contractor, an agent or employee of an independent
6-14 contractor, or another person who performs tasks the details of
6-15 which the local government does not have the legal right to
6-16 control; or
6-17 (B) covered by Section 104.001.
6-18 (2) "Local government" has the meaning assigned by
6-19 Section 102.001.
6-20 Sec. 108.002. Limitation of Liability. (a) Except in an
6-21 action arising under the constitution or laws of the United States,
6-22 a <A> public servant is not personally liable for damages in excess
6-23 of $100,000 arising from personal injury, death, or deprivation of
6-24 a right, privilege, or immunity if:
6-25 (1) the damages <to the extent that the state is
6-26 liable for indemnification under Section 104.002 that> are the
6-27 result of an act or omission by the public servant in the course
7-1 and scope of the public servant's office, employment, or
7-2 contractual performance for or service on behalf of a state agency,
7-3 institution, <or> department, or local government; and
7-4 (2) for the amount not in excess of $100,000, the
7-5 public servant is covered:
7-6 (A) by the state's obligation to indemnify under
7-7 Chapter 104;
7-8 (B) by a local government's authorization to
7-9 indemnify under Chapter 102; or
7-10 (C) by liability or errors and omissions
7-11 insurance.
7-12 (b) Except in an action arising under the constitution or
7-13 laws of the United States, a public servant is not liable for
7-14 damages in excess of $100,000 for property damage if:
7-15 (1) the damages are the result of an act or omission
7-16 by the public servant in the course and scope of the public
7-17 servant's office, employment, or contractual performance for or
7-18 service on behalf of a state agency, institution, department, or
7-19 local government; and
7-20 (2) for the amount not in excess of $100,000, the
7-21 public servant is covered:
7-22 (A) by the state's obligation to indemnify under
7-23 Chapter 104;
7-24 (B) by a local government's authorization to
7-25 indemnify under Chapter 102; or
7-26 (C) by liability or errors and omissions
7-27 insurance.
8-1 Sec. 108.003. State Liability Not Affected. (a) This
8-2 chapter does not affect the liability for indemnification of the
8-3 state under Chapter 104 or of a local government under Chapter 102.
8-4 (b) This chapter does not impose liability or waive immunity
8-5 for a public servant who has common law, statutory, or other
8-6 immunity.
8-7 SECTION 12. (a) This Act takes effect September 1, 1995.
8-8 (b) The change in law made by Sections 1-8 of this Act
8-9 applies only to an action commenced or a claim settled on or after
8-10 the effective date of this Act. An action commenced or a claim
8-11 settled before the effective date of this Act is governed by the
8-12 law in effect immediately before the effective date of this Act,
8-13 and that law is continued in effect for that purpose.
8-14 (c) The change in law made by Sections 9, 10, and 11 of this
8-15 Act applies to a claim for indemnity without regard to whether the
8-16 claim arose before, on, or after the effective date of this Act if,
8-17 before the effective date of this Act:
8-18 (1) a final judgment or binding arbitration order has
8-19 not been entered in the action on which the claim for indemnity is
8-20 based; and
8-21 (2) the claim has not been settled.
8-22 SECTION 13. The importance of this legislation and the
8-23 crowded condition of the calendars in both houses create an
8-24 emergency and an imperative public necessity that the
8-25 constitutional rule requiring bills to be read on three several
8-26 days in each house be suspended, and this rule is hereby suspended.