MMA C.S.H.B. 589 75(R)BILL ANALYSIS HIGHER EDUCATION C.S.H.B. 589 By: Rangel 3-29-97 Committee Report (Substituted) BACKGROUND The federal court case, Hopwood vs. the State of Texas, has lead to policies prohibiting the consideration of race in Texas university admissions, financial aid and student retention programs. As a result, many employees who make admissions decisions may be apprehensive and overly cautious when considering minorities. Many fear that they may be held personally liable for their decisions. PURPOSE C.S.H.B. 589 mandates that all employees of a general academic teaching institution (institution) or a medical and dental unit (unit) who make admissions decisions acting in their official capacity shall be indemnified by the state for actual damages, court costs, and attorney's fees in a cause of action that may be made against them. 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 Chapter 104, Civil Practice and Remedies Code, by adding Section 104.009 to read as follows: Section 104.009. INDEMNIFICATION OF CERTAIN HIGHER EDUCATION ADMISSIONS PERSONNEL. (a) Mandates that the state indemnify a person acting in an official capacity on behalf of an institution or unit who make admission decisions for actual damages, court costs, and attorney's fees adjudged against the person. States that the state's limits on recoverable damages described by Section 104.003 apply to this section, and the state's liability for indemnification may not exceed the amount of damages described by that section. (b) The state is liable for indemnification if the damages are based on an action or omission that the person performed in the course and scope of the person's duties and: (1) damages arise out of a cause of action for negligence, except a wilful or wrongful act or an act of gross negligence; (2) damages arise out of a cause of action for deprivation of a right, privilege, or immunity secured by law except when a court finds that the person acted in bad faith, with conscious indifference, or with reckless disregard; or (3) indemnification is in the interest of the state as determined by the attorney general. (c) States that the section is applicable to any person acting in an official capacity on behalf of an institution or unit, including employees or volunteers. (d) Defines "general academic teaching institution" and "medical and dental unit." SECTION 2. States that the indemnification applies only to any damages, court costs, or attorney's fees adjudged against a person on or after the effective date of this Act based on making an admission decision regardless of when the action took place. SECTION 3. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 589 clarifies and changes the references from an employee to a person acting in an official capacity on behalf of the institution or unit. This change would indemnify volunteers or persons who are not necessarily "employees" of the institution but are acting in an official capacity. C.S.H.B. 589 further clarifies that the state is liable for indemnification if damages are based on an act or omission committed in the course and scope of the person's duties in making admissions decisions. Also, includes certain criteria that would qualify a case to receive indemnification under this bill. The provision in SECTION 2 of H.B. 589 that relates to charging an indemnification fee is deleted in C.S.H.B. 589. C.S.H.B. 589 adds language that makes indemnification applicable to a case ruled on by the effective date of the measure, regardless of when the action occurred.