By Hightower H.B. No. 1343
74R5631 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to inmate grievances and frivolous or malicious litigation
1-3 filed by inmates.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter B, Chapter 15, Civil Practice and
1-6 Remedies Code, is amended by adding Section 15.018 to read as
1-7 follows:
1-8 Sec. 15.018. INMATE LITIGATION. (a) Except as provided by
1-9 Section 15.014, an action that accrued while the plaintiff was
1-10 housed in a facility operated by the Texas Department of Criminal
1-11 Justice shall be brought in the county in which the facility is
1-12 located.
1-13 (b) This section does not apply to an action brought under
1-14 the Family Code.
1-15 SECTION 2. Subtitle A, Title 2, Civil Practice and Remedies
1-16 Code, is amended by adding Chapter 14 to read as follows:
1-17 CHAPTER 14. INMATE LITIGATION
1-18 Sec. 14.001. DEFINITIONS. In this chapter:
1-19 (1) "Claim" means a cause of action governed by this
1-20 chapter.
1-21 (2) "Department" means the Texas Department of
1-22 Criminal Justice.
1-23 (3) "Inmate" means a person housed:
1-24 (A) in a facility operated by the department; or
2-1 (B) in a county jail.
2-2 (4) "Trust account" means an inmate's trust account
2-3 administered by the department under Section 501.014, Government
2-4 Code, or by a county jail.
2-5 Sec. 14.002. SCOPE OF CHAPTER. (a) This chapter applies
2-6 only to a suit brought by an inmate in a district, county, justice
2-7 of the peace, or small claims court in which an affidavit of
2-8 inability to pay costs is filed by the inmate under Rule 145, Texas
2-9 Rules of Civil Procedure.
2-10 (b) This chapter does not apply to an action brought under
2-11 the Family Code.
2-12 Sec. 14.003. DISMISSAL OF CLAIM. (a) A court may dismiss a
2-13 claim, either before or after service of process, if the court
2-14 finds that:
2-15 (1) the allegation of poverty in the affidavit filed
2-16 under Rule 145, Texas Rules of Civil Procedure, is false; or
2-17 (2) the claim is frivolous or malicious.
2-18 (b) In determining whether a claim is frivolous or
2-19 malicious, the court may consider whether:
2-20 (1) the claim's realistic chance of ultimate success
2-21 is slight;
2-22 (2) the claim has no arguable basis in law or in fact;
2-23 (3) it is clear that the party cannot prove facts in
2-24 support of the claim; or
2-25 (4) the claim is substantially similar to a previous
2-26 claim filed by the inmate because the claim arises from the same
2-27 operative facts.
3-1 (c) In determining whether the allegation of poverty is
3-2 false or whether the claim is frivolous or malicious, the court may
3-3 hold a hearing. The hearing may be held before or after service of
3-4 process, and it may be held on motion of the court, a party, or any
3-5 officer of the court.
3-6 (d) On the filing of a motion under Subsection (c), the
3-7 court shall suspend discovery relating to the claim pending the
3-8 hearing.
3-9 Sec. 14.004. AFFIDAVIT RELATING TO PREVIOUS FILINGS. (a)
3-10 An inmate who files an affidavit of inability to pay costs under
3-11 Rule 145, Texas Rules of Civil Procedure, shall file a separate
3-12 affidavit:
3-13 (1) identifying each suit previously filed by the
3-14 person, without regard to whether the person was an inmate at the
3-15 time the suit was filed; and
3-16 (2) describing each previously filed suit by:
3-17 (A) stating the operative facts for which relief
3-18 was sought;
3-19 (B) listing the case name, cause number, and the
3-20 court in which the suit was filed;
3-21 (C) stating the legal theory on which the relief
3-22 sought was based;
3-23 (D) identifying each party named in the suit;
3-24 and
3-25 (E) stating the result of the suit, including
3-26 whether the suit was dismissed as frivolous or malicious under
3-27 Section 13.001 or Section 14.003 or otherwise.
4-1 (b) If the affidavit filed under this section states that a
4-2 previous suit was dismissed as frivolous or malicious, the
4-3 affidavit must state the date of the final order affirming the
4-4 dismissal.
4-5 (c) The affidavit must be accompanied by the certified copy
4-6 of the trust account statement required by Section 14.006(e).
4-7 Sec. 14.005. GRIEVANCE SYSTEM DECISION; EXHAUSTION OF
4-8 ADMINISTRATIVE REMEDIES. (a) An inmate who files a claim that is
4-9 subject to the grievance system established under Section 501.008,
4-10 Government Code, shall file with the court:
4-11 (1) an affidavit stating the date that the grievance
4-12 was filed and the date the final decision was received by the
4-13 inmate; and
4-14 (2) a copy of the final decision from the grievance
4-15 system.
4-16 (b) A court shall dismiss a claim if the inmate fails to
4-17 file the claim before the 31st day after the date the inmate
4-18 receives the final decision from the grievance system.
4-19 (c) If a claim is filed before the grievance system
4-20 procedure is complete, the court shall stay the proceeding with
4-21 respect to the claim for a period not to exceed 90 days to permit
4-22 completion of the grievance system procedure.
4-23 Sec. 14.006. COURT FEES, COURT COSTS, OTHER EXPENSES. (a)
4-24 A court shall order an inmate who has filed a claim to pay court
4-25 fees, court costs, and other expenses in accordance with this
4-26 section and Section 14.007. The clerk of the court shall mail a
4-27 copy of the court's order to the department or county jail, as
5-1 appropriate.
5-2 (b) On the court's order, the inmate shall pay an amount
5-3 equal to 20 percent of the preceding six months' deposits and
5-4 interest, if any, accruing to the inmate's trust account.
5-5 (c) In each month following the month in which payment is
5-6 made under Subsection (b), the inmate shall pay an amount equal to
5-7 10 percent of that month's deposits and interest for the trust
5-8 account. Payments under this subsection shall continue until the
5-9 total amount of court fees and costs are paid or until the inmate
5-10 is released from confinement.
5-11 (d) On receipt of a copy of an order issued under Subsection
5-12 (a), the department or county jail shall withdraw money from the
5-13 trust account in accordance with Subsections (b) and (c). The
5-14 department or jail shall forward the money to the clerk of the
5-15 court on a monthly basis. If the amount to be forwarded to a court
5-16 clerk under this section in a month is less than $10, the
5-17 department or jail shall hold the money in a separate account and
5-18 shall forward the money to the court clerk when the total amount to
5-19 be forwarded equals at least $10.
5-20 (e) The inmate shall file a certified copy of the inmate's
5-21 trust account statement with the court. The statement must reflect
5-22 the balance of the account at the time the complaint is filed and
5-23 activity in the account during the six months preceding the date on
5-24 which the complaint is filed. The court may request the department
5-25 or county jail to furnish the information required under this
5-26 subsection.
5-27 (f) An inmate may authorize payment in addition to that
6-1 required by this section.
6-2 (g) At the time the inmate is released from confinement, the
6-3 court may enter an additional order requiring payment of court
6-4 fees, court costs, and other expenses under Section 14.007.
6-5 (h) The court may dismiss a claim if the inmate fails to pay
6-6 fees and costs assessed under this section.
6-7 (i) An inmate may not avoid the fees and costs assessed
6-8 under this section by nonsuiting a party or by voluntarily
6-9 dismissing the action.
6-10 Sec. 14.007. OTHER EXPENSES. (a) An order of a court under
6-11 Section 14.006(a) or (g) may include the expenses described by
6-12 Subsection (b) if the court finds that:
6-13 (1) the inmate has previously filed an action in a
6-14 district, county, justice of the peace, or small claims court; and
6-15 (2) a final order has been issued that affirms that
6-16 the action was dismissed as frivolous or malicious under Section
6-17 13.001 or Section 14.003 or otherwise.
6-18 (b) Expenses under Subsection (a) may include any cost
6-19 incurred by the court, the department, or the county jail in
6-20 connection with the claim and not otherwise charged to the inmate
6-21 under Section 14.006, including:
6-22 (1) expenses of service of process;
6-23 (2) postage; and
6-24 (3) transportation, housing, or medical care incurred
6-25 in connection with the appearance of the inmate in the court for
6-26 any proceeding.
6-27 Sec. 14.008. HEARING. The court may hold a hearing under
7-1 this chapter at a county jail or a facility operated by the
7-2 department or may conduct the hearing with video communications
7-3 technology that permits the court to see and hear the inmate and
7-4 that permits the inmate to see and hear the court and any other
7-5 witness.
7-6 Sec. 14.009. SUBMISSION OF EVIDENCE. (a) The court may
7-7 request a person with an admissible document or admissible
7-8 testimony relevant to the subject matter of the hearing to submit a
7-9 copy of the document or an affidavit stating the substance of the
7-10 testimony.
7-11 (b) An affidavit submitted under this section must be made
7-12 under oath.
7-13 (c) A copy of a document submitted under this section must
7-14 be accompanied by a certification executed under oath by an
7-15 appropriate custodian of the record stating that the copy is
7-16 correct and any other matter relating to the admissibility of the
7-17 document that the court requires.
7-18 (d) A person submitting an affidavit or document under this
7-19 section is not required to appear at the hearing.
7-20 (e) The court shall provide the inmate a copy of each
7-21 affidavit or document not later than 24 hours before the time at
7-22 which the hearing is to begin.
7-23 Sec. 14.010. DISMISSAL OF CLAIM. (a) The court may enter
7-24 an order dismissing the entire claim or a portion of the claim
7-25 under this chapter.
7-26 (b) If a portion of the claim is dismissed, the court shall
7-27 designate the issues and defendants on which the claim may proceed,
8-1 subject to Sections 14.006 and 14.007.
8-2 (c) An order under this section is not subject to
8-3 interlocutory appeal by the inmate.
8-4 Sec. 14.011. EFFECT ON OTHER CLAIMS. (a) Except as
8-5 provided by Subsection (b), on notice of assessment of fees, costs,
8-6 and expenses under this chapter, a clerk of a court may not accept
8-7 for filing another claim by the inmate until the fees, costs, and
8-8 expenses assessed under this chapter are paid.
8-9 (b) A court may allow an inmate who has not paid the fees,
8-10 costs, and expenses assessed against the inmate to file a claim for
8-11 injunctive relief seeking to enjoin an act or failure to act that
8-12 creates a substantial threat of irreparable injury or serious
8-13 physical harm to the inmate.
8-14 Sec. 14.012. QUESTIONNAIRE. To implement this chapter, a
8-15 court may develop, for use in that court, a questionnaire to be
8-16 filed by the inmate.
8-17 Sec. 14.013. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
8-18 Notwithstanding Section 22.004, Government Code, this chapter may
8-19 not be modified or repealed by a rule adopted by the supreme court.
8-20 SECTION 3. Chapter 13, Civil Practice and Remedies Code, is
8-21 amended by adding Section 13.004 to read as follows:
8-22 Sec. 13.004. INAPPLICABILITY TO CERTAIN CLAIMS. This
8-23 chapter does not apply to a claim governed by Chapter 14.
8-24 SECTION 4. Chapter 106, Civil Practice and Remedies Code, is
8-25 amended by adding Section 106.004 to read as follows:
8-26 Sec. 106.004. INAPPLICABILITY TO CERTAIN CLAIMS. This
8-27 chapter does not authorize a claim for preventive relief against
9-1 the Texas Department of Criminal Justice, an employee of the
9-2 department, or any other agency, agent, employee, or officer of
9-3 this state if:
9-4 (1) the claim is brought by a person housed in a
9-5 facility operated by the department; and
9-6 (2) the claim accrued while the person was housed in
9-7 the facility.
9-8 SECTION 5. Chapter 498, Government Code, is amended by
9-9 adding Section 498.0045 to read as follows:
9-10 Sec. 498.0045. FORFEITURE OF GOOD CONDUCT TIME: FRIVOLOUS
9-11 LAWSUITS. (a) The institutional division shall forfeit an
9-12 inmate's good conduct time in the amount specified by Subsection
9-13 (b) on:
9-14 (1) receipt by the division of a certified copy of a
9-15 final order of a state or federal court that dismisses as frivolous
9-16 a lawsuit filed by an inmate while the inmate was in the custody of
9-17 the department; and
9-18 (2) a determination that the division on one or more
9-19 previous occasions has received a certified copy of a final order
9-20 of a state or federal court dismissing as frivolous a lawsuit filed
9-21 previously by the inmate while the inmate was in the custody of the
9-22 department.
9-23 (b) On receipt of a final order described by Subsection
9-24 (a)(1), the institutional division shall forfeit:
9-25 (1) 60 days of an inmate's accrued good conduct time,
9-26 if the division has previously received one final order described
9-27 by Subsection (a)(2);
10-1 (2) 120 days of an inmate's accrued good conduct time,
10-2 if the division has previously received two final orders described
10-3 by Subsection (a)(2); or
10-4 (3) 180 days of an inmate's accrued good conduct time,
10-5 if the division has previously received three or more final orders
10-6 described by Subsection (a)(2).
10-7 (c) The division may not restore good conduct time forfeited
10-8 under this section.
10-9 SECTION 6. Section 501.008, Government Code, is amended to
10-10 read as follows:
10-11 Sec. 501.008. INMATE GRIEVANCE SYSTEM <PROCEDURE>. (a) The
10-12 department <institutional division> shall develop and maintain a
10-13 system for the resolution of <inmate> grievances by inmates housed
10-14 in facilities operated by the institutional division that qualifies
10-15 for certification under 42 U.S.C. Section 1997e and the department
10-16 shall obtain certification under that section. A remedy provided
10-17 by the grievance system is the exclusive administrative remedy
10-18 available to an inmate for a claim for relief that arises while the
10-19 inmate is housed in a facility operated by the division, other than
10-20 a remedy provided by writ of habeas corpus challenging the validity
10-21 of an action occurring before the delivery of the inmate to the
10-22 department.
10-23 (b) The grievance system must provide procedures:
10-24 (1) for an inmate to identify evidence to substantiate
10-25 the inmate's claim; and
10-26 (2) for an inmate to receive copies of all formal
10-27 written responses to the inmate's grievance.
11-1 (c) A report, investigation, or supporting document prepared
11-2 by the department in response to an inmate grievance is considered
11-3 to have been prepared in anticipation of litigation and is
11-4 confidential, privileged, and not subject to discovery by the
11-5 inmate in a claim arising out of the same operative facts as are
11-6 alleged in the grievance.
11-7 (d) An inmate may not file a claim in state court regarding
11-8 operative facts for which the grievance system provides the
11-9 exclusive administrative remedy until:
11-10 (1) the inmate receives a final decision under the
11-11 grievance system; or
11-12 (2) if the inmate has not received a final decision
11-13 under the grievance system, the 180th day after the date the
11-14 grievance is filed.
11-15 (e) The limitations period applicable to a claim arising out
11-16 of the same operative facts as a claim for which the grievance
11-17 system provides the exclusive remedy:
11-18 (1) is suspended on the filing of the grievance; and
11-19 (2) remains suspended until the inmate receives a
11-20 final decision under the grievance system.
11-21 (f) This section does not affect any immunity from a claim
11-22 for damages that otherwise exists for the state, the department, or
11-23 an employee of the department.
11-24 SECTION 7. Subchapter A, Chapter 501, Government Code, is
11-25 amended by adding Section 501.019 to read as follows:
11-26 Sec. 501.019. COST OF CONFINEMENT AS CLAIM; SETOFF. (a)
11-27 The state may deduct the cost of incarceration from any monetary
12-1 obligation owed to a person for whom a cost of incarceration can be
12-2 computed, including an obligation for a claim under Chapter 101,
12-3 Civil Practice and Remedies Code.
12-4 (b) In a case in which a person may be indemnified under
12-5 Chapter 104, Civil Practice and Remedies Code, and that arises from
12-6 a claim made by a person for whom a cost of incarceration can be
12-7 computed, the court shall reduce the amount recoverable by the
12-8 claimant by the amount of the cost of incarceration.
12-9 (c) The annual cost of incarceration of a person shall be
12-10 computed using the average cost per day for imprisonment calculated
12-11 by the Criminal Justice Policy Council.
12-12 (d) In making a deduction under Subsection (a) or in
12-13 reducing an award under Subsection (b), the department or the court
12-14 shall credit or debit a prorated portion of the cost of
12-15 incarceration for a person incarcerated for 365 days or less in a
12-16 year. The number of days of incarceration in a year includes time
12-17 served before conviction.
12-18 SECTION 8. (a) This Act applies only to a cause of action
12-19 that accrues on or after the effective date of this Act. An action
12-20 that accrued before the effective date of this Act is governed by
12-21 the law applicable to the action as it existed immediately before
12-22 the effective date of this Act, and that law is continued in effect
12-23 for that purpose.
12-24 (b) Section 498.0045, Government Code, as added by this Act,
12-25 applies only to a forfeiture of good conduct time based on the
12-26 filing in court of a lawsuit on or after the effective date of this
12-27 Act.
13-1 (c) Section 501.008, as amended by this Act, applies only to
13-2 an inmate grievance filed on or after the effective date of this
13-3 Act. An inmate grievance filed before the effective date is
13-4 governed by the law as it existed immediately before the effective
13-5 date of this Act, and that law is continued in effect for that
13-6 purpose.
13-7 SECTION 9. The importance of this legislation and the
13-8 crowded condition of the calendars in both houses create an
13-9 emergency and an imperative public necessity that the
13-10 constitutional rule requiring bills to be read on three several
13-11 days in each house be suspended, and this rule is hereby suspended,
13-12 and that this Act take effect and be in force from and after its
13-13 passage, and it is so enacted.