1-1 By: Hightower, et al. (Senate Sponsor - Montford) H.B. No.
1-2 1343
1-3 (In the Senate - Received from the House April 10, 1995;
1-4 April 11, 1995, read first time and referred to Committee on
1-5 Criminal Justice; April 28, 1995, reported favorably, as amended,
1-6 by the following vote: Yeas 5, Nays 0; April 28, 1995, sent to
1-7 printer.)
1-8 COMMITTEE AMENDMENT NO. 1 By: Moncrief
1-9 Amend H.B. No. 1343 as follows:
1-10 Delete proposed Section 14.013. (page 9, lines 18-27 of the House
1-11 Engrossment)
1-12 A BILL TO BE ENTITLED
1-13 AN ACT
1-14 relating to inmate grievances and frivolous or malicious litigation
1-15 filed by inmates.
1-16 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-17 SECTION 1. Subchapter B, Chapter 15, Civil Practice and
1-18 Remedies Code, is amended by adding Section 15.018 to read as
1-19 follows:
1-20 Sec. 15.018. INMATE LITIGATION. (a) Except as provided by
1-21 Section 15.014, an action that accrued while the plaintiff was
1-22 housed in a facility operated by or under contract with the Texas
1-23 Department of Criminal Justice shall be brought in the county in
1-24 which the facility is located.
1-25 (b) An action brought by two or more plaintiffs that accrued
1-26 while the plaintiffs were housed in a facility operated by or under
1-27 contract with the Texas Department of Criminal Justice shall be
1-28 brought in a county in which a facility that housed one of the
1-29 plaintiffs is located.
1-30 (c) This section does not apply to an action brought under
1-31 the Family Code.
1-32 SECTION 2. Subtitle A, Title 2, Civil Practice and Remedies
1-33 Code, is amended by adding Chapter 14 to read as follows:
1-34 CHAPTER 14. INMATE LITIGATION
1-35 Sec. 14.001. DEFINITIONS. In this chapter:
1-36 (1) "Claim" means a cause of action governed by this
1-37 chapter.
1-38 (2) "Department" means the Texas Department of
1-39 Criminal Justice.
1-40 (3) "Inmate" means a person housed in a secure
1-41 correctional facility.
1-42 (4) "Secure correctional facility" has the meaning
1-43 assigned by Section 1.07, Penal Code.
1-44 (5) "Trust account" means an inmate's trust account
1-45 administered by the department under Section 501.014, Government
1-46 Code, by a facility under contract with the department, or by a
1-47 jail.
1-48 (6) "Unsworn declaration" means a document executed in
1-49 accordance with Chapter 132.
1-50 Sec. 14.002. SCOPE OF CHAPTER. (a) This chapter applies
1-51 only to a suit brought by an inmate in a district, county, justice
1-52 of the peace, or small claims court in which an affidavit or
1-53 unsworn declaration of inability to pay costs is filed by the
1-54 inmate.
1-55 (b) This chapter does not apply to an action brought under
1-56 the Family Code.
1-57 Sec. 14.003. DISMISSAL OF CLAIM. (a) A court may dismiss a
1-58 claim, either before or after service of process, if the court
1-59 finds that:
1-60 (1) the allegation of poverty in the affidavit or
1-61 unsworn declaration is false;
1-62 (2) the claim is frivolous or malicious; or
1-63 (3) the inmate filed an affidavit or unsworn
1-64 declaration required by this chapter that the inmate knew was
1-65 false.
1-66 (b) In determining whether a claim is frivolous or
1-67 malicious, the court may consider whether:
1-68 (1) the claim's realistic chance of ultimate success
2-1 is slight;
2-2 (2) the claim has no arguable basis in law or in fact;
2-3 (3) it is clear that the party cannot prove facts in
2-4 support of the claim; or
2-5 (4) the claim is substantially similar to a previous
2-6 claim filed by the inmate because the claim arises from the same
2-7 operative facts.
2-8 (c) In determining whether Subsection (a) applies, the court
2-9 may hold a hearing. The hearing may be held before or after
2-10 service of process, and it may be held on motion of the court, a
2-11 party, or the clerk of the court.
2-12 (d) On the filing of a motion under Subsection (c), the
2-13 court shall suspend discovery relating to the claim pending the
2-14 hearing.
2-15 (e) A court that dismisses a claim brought by a person
2-16 housed in a facility operated by or under contract with the
2-17 department may notify the department of the dismissal and, on the
2-18 court's own motion or the motion of any party or the clerk of the
2-19 court, may advise the department that a mental health evaluation of
2-20 the inmate may be appropriate.
2-21 Sec. 14.004. AFFIDAVIT RELATING TO PREVIOUS FILINGS.
2-22 (a) An inmate who files an affidavit or unsworn declaration of
2-23 inability to pay costs shall file a separate affidavit or
2-24 declaration:
2-25 (1) identifying each suit, other than a suit under the
2-26 Family Code, previously brought by the person and in which the
2-27 person was not represented by an attorney, without regard to
2-28 whether the person was an inmate at the time the suit was brought;
2-29 and
2-30 (2) describing each suit that was previously brought
2-31 by:
2-32 (A) stating the operative facts for which relief
2-33 was sought;
2-34 (B) listing the case name, cause number, and the
2-35 court in which the suit was brought;
2-36 (C) identifying each party named in the suit;
2-37 and
2-38 (D) stating the result of the suit, including
2-39 whether the suit was dismissed as frivolous or malicious under
2-40 Section 13.001 or Section 14.003 or otherwise.
2-41 (b) If the affidavit or unsworn declaration filed under this
2-42 section states that a previous suit was dismissed as frivolous or
2-43 malicious, the affidavit or unsworn declaration must state the date
2-44 of the final order affirming the dismissal.
2-45 (c) The affidavit or unsworn declaration must be accompanied
2-46 by the certified copy of the trust account statement required by
2-47 Section 14.006(f).
2-48 Sec. 14.005. GRIEVANCE SYSTEM DECISION; EXHAUSTION OF
2-49 ADMINISTRATIVE REMEDIES. (a) An inmate who files a claim that is
2-50 subject to the grievance system established under Section 501.008,
2-51 Government Code, shall file with the court:
2-52 (1) an affidavit or unsworn declaration stating the
2-53 date that the grievance was filed and the date the written decision
2-54 described by Section 501.008(d), Government Code, was received by
2-55 the inmate; and
2-56 (2) a copy of the written decision from the grievance
2-57 system.
2-58 (b) A court shall dismiss a claim if the inmate fails to
2-59 file the claim before the 31st day after the date the inmate
2-60 receives the written decision from the grievance system.
2-61 (c) If a claim is filed before the grievance system
2-62 procedure is complete, the court shall stay the proceeding with
2-63 respect to the claim for a period not to exceed 180 days to permit
2-64 completion of the grievance system procedure.
2-65 Sec. 14.006. COURT FEES, COURT COSTS, OTHER COSTS. (a) A
2-66 court may order an inmate who has filed a claim to pay court fees,
2-67 court costs, and other costs in accordance with this section and
2-68 Section 14.007. The clerk of the court shall mail a copy of the
2-69 court's order and a certified bill of costs to the department or
2-70 jail, as appropriate.
3-1 (b) On the court's order, the inmate shall pay an amount
3-2 equal to the lesser of:
3-3 (1) 20 percent of the preceding six months' deposits
3-4 to the inmate's trust account; or
3-5 (2) the total amount of court fees and costs.
3-6 (c) In each month following the month in which payment is
3-7 made under Subsection (b), the inmate shall pay an amount equal to
3-8 the lesser of:
3-9 (1) 10 percent of that month's deposits to the trust
3-10 account; or
3-11 (2) the total amount of court fees and costs that
3-12 remain unpaid.
3-13 (d) Payments under Subsection (c) shall continue until the
3-14 total amount of court fees and costs are paid or until the inmate
3-15 is released from confinement.
3-16 (e) On receipt of a copy of an order issued under Subsection
3-17 (a), the department or jail shall withdraw money from the trust
3-18 account in accordance with Subsections (b), (c), and (d). The
3-19 department or jail shall hold the money in a separate account and
3-20 shall forward the money to the court clerk on the earlier of the
3-21 following dates:
3-22 (1) the date the total amount to be forwarded equals
3-23 the total amount of court fees and costs that remains unpaid; or
3-24 (2) the date the inmate is released.
3-25 (f) The inmate shall file a certified copy of the inmate's
3-26 trust account statement with the court. The statement must reflect
3-27 the balance of the account at the time the claim is filed and
3-28 activity in the account during the six months preceding the date on
3-29 which the claim is filed. The court may request the department or
3-30 jail to furnish the information required under this subsection.
3-31 (g) An inmate may authorize payment in addition to that
3-32 required by this section.
3-33 (h) The court may dismiss a claim if the inmate fails to pay
3-34 fees and costs assessed under this section.
3-35 (i) An inmate may not avoid the fees and costs assessed
3-36 under this section by nonsuiting a party or by voluntarily
3-37 dismissing the action.
3-38 Sec. 14.007. OTHER COSTS. (a) An order of a court under
3-39 Section 14.006(a) shall include the costs described by Subsection
3-40 (b) if the court finds that:
3-41 (1) the inmate has previously filed an action in a
3-42 district, county, justice of the peace, or small claims court; and
3-43 (2) a final order has been issued that affirms that
3-44 the action was dismissed as frivolous or malicious under Section
3-45 13.001 or Section 14.003 or otherwise.
3-46 (b) Costs under Subsection (a) shall include, as costs of
3-47 court, expenses incurred by the court or by the department, jail,
3-48 or private facility operator, in connection with the claim and not
3-49 otherwise charged to the inmate under Section 14.006, including:
3-50 (1) expenses of service of process;
3-51 (2) postage; and
3-52 (3) transportation, housing, or medical care incurred
3-53 in connection with the appearance of the inmate in the court for
3-54 any proceeding.
3-55 Sec. 14.008. HEARING. (a) The court may hold a hearing
3-56 under this chapter at a jail or a facility operated by or under
3-57 contract with the department or may conduct the hearing with video
3-58 communications technology that permits the court to see and hear
3-59 the inmate and that permits the inmate to see and hear the court
3-60 and any other witness.
3-61 (b) A hearing conducted under this section by video
3-62 communications technology shall be recorded on videotape. The
3-63 recording is sufficient to serve as a permanent record of the
3-64 hearing.
3-65 Sec. 14.009. SUBMISSION OF EVIDENCE. (a) The court may
3-66 request a person with an admissible document or admissible
3-67 testimony relevant to the subject matter of the hearing to submit a
3-68 copy of the document or written statement stating the substance of
3-69 the testimony.
3-70 (b) A written statement submitted under this section must be
4-1 made under oath or made as an unsworn declaration under Section
4-2 132.001.
4-3 (c) A copy of a document submitted under this section must
4-4 be accompanied by a certification executed under oath by an
4-5 appropriate custodian of the record stating that the copy is
4-6 correct and any other matter relating to the admissibility of the
4-7 document that the court requires.
4-8 (d) A person submitting a written statement or document
4-9 under this section is not required to appear at the hearing.
4-10 (e) The court shall require that the inmate be provided with
4-11 a copy of each written statement or document not later than 14 days
4-12 before the date on which the hearing is to begin.
4-13 Sec. 14.010. DISMISSAL OF CLAIM. (a) The court may enter
4-14 an order dismissing the entire claim or a portion of the claim
4-15 under this chapter.
4-16 (b) If a portion of the claim is dismissed, the court shall
4-17 designate the issues and defendants on which the claim may proceed,
4-18 subject to Sections 14.006 and 14.007.
4-19 (c) An order under this section is not subject to
4-20 interlocutory appeal by the inmate.
4-21 Sec. 14.011. EFFECT ON OTHER CLAIMS. (a) Except as
4-22 provided by Subsection (b), on receipt of an order assessing fees
4-23 and costs under Section 14.006 that indicates that the court made
4-24 the finding described by Section 14.007(a), a clerk of a court may
4-25 not accept for filing another claim by the inmate until the fees
4-26 and costs assessed under Section 14.006 are paid.
4-27 (b) A court may allow an inmate who has not paid the fees
4-28 and costs assessed against the inmate to file a claim for
4-29 injunctive relief seeking to enjoin an act or failure to act that
4-30 creates a substantial threat of irreparable injury or serious
4-31 physical harm to the inmate.
4-32 Sec. 14.012. QUESTIONNAIRE. To implement this chapter, a
4-33 court may develop, for use in that court, a questionnaire to be
4-34 filed by the inmate.
4-35 Sec. 14.013. REVIEW AND RECOMMENDATION BY MAGISTRATES.
4-36 (a) The supreme court shall, by rule, adopt a system under which a
4-37 court may refer a suit governed by this chapter to a magistrate for
4-38 review and recommendation.
4-39 (b) The cost of the system adopted under Subsection (a)
4-40 shall be paid from money appropriated to the department. The court
4-41 shall consult with the department in developing the system.
4-42 (c) For the purposes of Section 14.014, the adoption of a
4-43 system by rule under Subsection (a) does not constitute a
4-44 modification or repeal of a provision of this chapter.
4-45 Sec. 14.014. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
4-46 Notwithstanding Section 22.004, Government Code, this chapter may
4-47 not be modified or repealed by a rule adopted by the supreme court.
4-48 SECTION 3. Chapter 13, Civil Practice and Remedies Code, is
4-49 amended by adding Section 13.004 to read as follows:
4-50 Sec. 13.004. INAPPLICABILITY TO CERTAIN CLAIMS. This
4-51 chapter does not apply to a claim governed by Chapter 14.
4-52 SECTION 4. Chapter 106, Civil Practice and Remedies Code, is
4-53 amended by adding Section 106.004 to read as follows:
4-54 Sec. 106.004. INAPPLICABILITY TO CERTAIN CLAIMS. This
4-55 chapter does not authorize a claim for preventive relief against
4-56 the Texas Department of Criminal Justice, an employee of the
4-57 department, or any other agency, agent, employee, or officer of
4-58 this state if:
4-59 (1) the claim is brought by a person housed in a
4-60 facility operated by or under contract with the department; and
4-61 (2) the claim accrued while the person was housed in
4-62 the facility.
4-63 SECTION 5. Chapter 498, Government Code, is amended by
4-64 adding Section 498.0045 to read as follows:
4-65 Sec. 498.0045. FORFEITURE OF GOOD CONDUCT TIME: FRIVOLOUS
4-66 LAWSUITS. (a) In this section, "final order" means a certified
4-67 copy of a final order of a state or federal court that dismisses as
4-68 frivolous or malicious a lawsuit brought by an inmate while the
4-69 inmate was in the custody of the department.
4-70 (b) On receipt of a final order, the department shall
5-1 forfeit:
5-2 (1) 60 days of an inmate's accrued good conduct time,
5-3 if the department has previously received one final order;
5-4 (2) 120 days of an inmate's accrued good conduct time,
5-5 if the department has previously received two final orders; or
5-6 (3) 180 days of an inmate's accrued good conduct time,
5-7 if the department has previously received three or more final
5-8 orders.
5-9 (c) The department may not restore good conduct time
5-10 forfeited under this section.
5-11 SECTION 6. Section 501.008, Government Code, is amended to
5-12 read as follows:
5-13 Sec. 501.008. INMATE GRIEVANCE SYSTEM <PROCEDURE>. (a) The
5-14 department <institutional division> shall develop and maintain a
5-15 system for the resolution of <inmate> grievances by inmates housed
5-16 in facilities operated by the department or under contract with the
5-17 department that qualifies for certification under 42 U.S.C. Section
5-18 1997e and the department shall obtain and maintain certification
5-19 under that section. A remedy provided by the grievance system is
5-20 the exclusive administrative remedy available to an inmate for a
5-21 claim for relief against the department that arises while the
5-22 inmate is housed in a facility operated by the department or under
5-23 contract with the department, other than a remedy provided by writ
5-24 of habeas corpus challenging the validity of an action occurring
5-25 before the delivery of the inmate to the department or to a
5-26 facility operated under contract with the department.
5-27 (b) The grievance system must provide procedures:
5-28 (1) for an inmate to identify evidence to substantiate
5-29 the inmate's claim; and
5-30 (2) for an inmate to receive all formal written
5-31 responses to the inmate's grievance.
5-32 (c) A report, investigation, or supporting document prepared
5-33 by the department in response to an inmate grievance is considered
5-34 to have been prepared in anticipation of litigation and is
5-35 confidential, privileged, and not subject to discovery by the
5-36 inmate in a claim arising out of the same operative facts as are
5-37 alleged in the grievance.
5-38 (d) An inmate may not file a claim in state court regarding
5-39 operative facts for which the grievance system provides the
5-40 exclusive administrative remedy until:
5-41 (1) the inmate receives a written decision issued by
5-42 the highest authority provided for in the grievance system; or
5-43 (2) if the inmate has not received a written decision
5-44 described by Subdivision (1), the 180th day after the date the
5-45 grievance is filed.
5-46 (e) The limitations period applicable to a claim arising out
5-47 of the same operative facts as a claim for which the grievance
5-48 system provides the exclusive remedy:
5-49 (1) is suspended on the filing of the grievance; and
5-50 (2) remains suspended until the earlier of the
5-51 following dates:
5-52 (A) the 180th day after the date the grievance
5-53 is filed; or
5-54 (B) the date the inmate receives the written
5-55 decision described by Subsection (d)(1).
5-56 (f) This section does not affect any immunity from a claim
5-57 for damages that otherwise exists for the state, the department, or
5-58 an employee of the department.
5-59 SECTION 7. Subchapter A, Chapter 501, Government Code, is
5-60 amended by adding Section 501.019 to read as follows:
5-61 Sec. 501.019. COST OF CONFINEMENT AS CLAIM; SETOFF.
5-62 (a) The state may deduct from any monetary obligation owed to an
5-63 incarcerated person:
5-64 (1) the cost of incarceration, if a cost of
5-65 incarceration for the person can be computed; and
5-66 (2) any amount assessed against the person under
5-67 Section 14.006, Civil Practice and Remedies Code, that remains
5-68 unpaid at the time the monetary obligation is to be paid.
5-69 (b) In a case in which a person may be indemnified under
5-70 Chapter 104, Civil Practice and Remedies Code, and that arises from
6-1 a claim made by a person for whom a cost of incarceration can be
6-2 computed, the court shall reduce the amount recoverable by the
6-3 claimant by the amount of the cost of incarceration.
6-4 (c) The annual cost of incarceration of a person shall be
6-5 computed using the average cost per day for imprisonment calculated
6-6 by the Criminal Justice Policy Council.
6-7 (d) In making a deduction under Subsection (a) or in
6-8 reducing an award under Subsection (b), the department or the court
6-9 shall credit or debit a prorated portion of the cost of
6-10 incarceration for a person incarcerated for 365 days or less in a
6-11 year. The number of days of incarceration in a year includes time
6-12 served before conviction.
6-13 (e) This section applies to a monetary obligation arising
6-14 from a judgment against the state, an agency of the state, or an
6-15 officer or employee of the state or an agency of the state, only
6-16 if:
6-17 (1) the judgment awards damages for property damage or
6-18 bodily injury resulting from a negligent act or omission, including
6-19 an act or omission described by Section 101.021(1), Civil Practice
6-20 and Remedies Code; and
6-21 (2) there is not a finding by the court of a violation
6-22 of the constitution of this state or the United States.
6-23 SECTION 8. Section 30.006, Civil Practice and Remedies Code,
6-24 is repealed.
6-25 SECTION 9. (a) The Texas Department of Criminal Justice
6-26 shall provide notice to all persons housed in facilities operated
6-27 by or under contract with the department of the provisions of this
6-28 Act.
6-29 (b) In providing notice under this section, the Texas
6-30 Department of Criminal Justice shall:
6-31 (1) include notice of the provisions of this Act in a
6-32 newspaper or similar publication published for persons housed in
6-33 facilities operated by or under contract with the department;
6-34 (2) post notice of the provisions of this Act in each
6-35 law library maintained by the department or under contract with the
6-36 department in a facility in which persons are housed; and
6-37 (3) ensure that adequate notice is provided to persons
6-38 who are not housed in the general population of inmates.
6-39 SECTION 10. (a) This Act applies only to a cause of action
6-40 that accrues on or after the effective date of this Act. An action
6-41 that accrued before the effective date of this Act is governed by
6-42 the law applicable to the action as it existed immediately before
6-43 the effective date of this Act, and that law is continued in effect
6-44 for that purpose.
6-45 (b) Section 498.0045, Government Code, as added by this Act,
6-46 applies only to a forfeiture of good conduct time based on the
6-47 filing in court of a lawsuit on or after the effective date of this
6-48 Act.
6-49 (c) Section 501.008, Government Code, as amended by this
6-50 Act, applies only to an inmate grievance filed on or after the
6-51 effective date of this Act. An inmate grievance filed before the
6-52 effective date is governed by the law as it existed immediately
6-53 before the effective date of this Act, and that law is continued in
6-54 effect for that purpose.
6-55 SECTION 11. The importance of this legislation and the
6-56 crowded condition of the calendars in both houses create an
6-57 emergency and an imperative public necessity that the
6-58 constitutional rule requiring bills to be read on three several
6-59 days in each house be suspended, and this rule is hereby suspended,
6-60 and that this Act take effect and be in force from and after its
6-61 passage, and it is so enacted.
6-62 * * * * *