By Hartnett, Galloway, et al. H.B. No. 3087 75R13201 DAK-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the protection of defendants against vexatious 1-3 litigants. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle A, Title 2, Civil Practice and Remedies 1-6 Code, is amended by adding Chapter 11 to read as follows: 1-7 CHAPTER 11. VEXATIOUS LITIGANTS 1-8 SUBCHAPTER A. GENERAL PROVISIONS 1-9 Sec. 11.001. DEFINITIONS. In this chapter: 1-10 (1) "Defendant" means a person or governmental entity 1-11 against whom a plaintiff commences or maintains or seeks to 1-12 commence or maintain a litigation. 1-13 (2) "Litigation" means a civil action commenced, 1-14 maintained, or pending in any state or federal court. 1-15 (3) "Local administrative judge" means a local 1-16 administrative district judge or a local administrative statutory 1-17 county court judge. 1-18 (4) "Moving defendant" means a defendant who moves for 1-19 an order under Section 11.051 determining that a plaintiff is a 1-20 vexatious litigant and requesting security. 1-21 (5) "Plaintiff" means an individual who commences or 1-22 maintains a litigation. 1-23 (Sections 11.002-11.050 reserved for expansion 1-24 SUBCHAPTER B. VEXATIOUS LITIGANTS 2-1 Sec. 11.051. MOTION FOR ORDER DETERMINING PLAINTIFF A 2-2 VEXATIOUS LITIGANT AND REQUESTING SECURITY. In a litigation in 2-3 this state, the defendant may, at any time until final judgment is 2-4 entered, move the court for an order: 2-5 (1) determining that the plaintiff is a vexatious 2-6 litigant; and 2-7 (2) requiring the plaintiff to furnish security. 2-8 Sec. 11.052. STAY OF PROCEEDINGS ON FILING OF MOTION. (a) 2-9 On the filing of a motion under Section 11.051 before the date the 2-10 trial starts, the litigation is stayed and the moving defendant is 2-11 not required to plead: 2-12 (1) if the motion is denied, before the 10th day after 2-13 the date it is denied; or 2-14 (2) if the motion is granted, before the 10th day 2-15 after the date the moving defendant receives written notice that 2-16 the plaintiff has furnished the required security. 2-17 (b) On the filing of a motion under Section 11.051 on or 2-18 after the date the trial starts, the litigation is stayed for a 2-19 period the court determines. 2-20 Sec. 11.053. HEARING. (a) On receipt of a motion under 2-21 Section 11.051, the court shall, after notice to all parties, 2-22 conduct a hearing to determine whether to grant the motion. 2-23 (b) The court may consider any evidence material to the 2-24 ground of the motion, including: 2-25 (1) written or oral evidence; and 2-26 (2) evidence presented by witnesses or by affidavit. 2-27 Sec. 11.054. CRITERIA FOR FINDING PLAINTIFF A VEXATIOUS 3-1 LITIGANT. A court may find a plaintiff a vexatious litigant if the 3-2 defendant shows that there is not a reasonable probability that the 3-3 plaintiff will prevail in the litigation against the defendant and 3-4 that: 3-5 (1) the plaintiff, in the seven-year period 3-6 immediately preceding the date the defendant makes the motion under 3-7 Section 11.051, has commenced, prosecuted, or maintained in propria 3-8 persona at least five litigations other than in a small claims 3-9 court that have been: 3-10 (A) finally determined adversely to the 3-11 plaintiff; 3-12 (B) permitted to remain pending at least two 3-13 years without having been brought to trial or hearing; or 3-14 (C) determined by a trial or appellate court to 3-15 be frivolous or groundless under state or federal laws or rules of 3-16 procedure; 3-17 (2) after a litigation has been finally determined 3-18 against the plaintiff, the plaintiff repeatedly relitigates or 3-19 attempts to relitigate, in propria persona, either: 3-20 (A) the validity of the determination against 3-21 the same defendant as to whom the litigation was finally 3-22 determined; or 3-23 (B) the cause of action, claim, controversy, or 3-24 any of the issues of fact or law determined or concluded by the 3-25 final determination against the same defendant as to whom the 3-26 litigation was finally determined; or 3-27 (3) the plaintiff has previously been declared to be a 4-1 vexatious litigant by a state or federal court in an action or 4-2 proceeding based on the same or substantially similar facts, 4-3 transition, or occurrence. 4-4 Sec. 11.055. SECURITY. (a) A court shall order the 4-5 plaintiff to furnish security for the benefit of the moving 4-6 defendant if the court, after hearing the evidence on the motion, 4-7 determines that the plaintiff is a vexatious litigant. 4-8 (b) The court in its discretion shall determine the date by 4-9 which the security must be furnished. 4-10 (c) The court shall provide that the security is an 4-11 undertaking by the plaintiff to assure payment to the moving 4-12 defendant of the moving defendant's reasonable expenses incurred in 4-13 or in connection with a litigation commenced, caused to be 4-14 commenced, maintained, or caused to be maintained by the plaintiff, 4-15 including costs and attorney's fees. 4-16 Sec. 11.056. DISMISSAL FOR FAILURE TO FURNISH SECURITY. The 4-17 court shall dismiss a litigation as to a moving defendant if a 4-18 plaintiff ordered to furnish security does not furnish the security 4-19 within the time set by the order. 4-20 Sec. 11.057. DISMISSAL ON THE MERITS. If the litigation is 4-21 dismissed on its merits, the moving defendant has recourse to the 4-22 security furnished by the plaintiff in an amount determined by the 4-23 court. 4-24 (Sections 11.058-11.100 reserved for expansion 4-25 SUBCHAPTER C. PROHIBITING FILING OF NEW LITIGATION 4-26 Sec. 11.101. PREFILING ORDER; CONTEMPT. (a) A court may, 4-27 on its own motion or the motion of any party, enter an order 5-1 prohibiting a person from filing, in propria persona, a new 5-2 litigation in a court in this state if the court finds, after 5-3 notice and hearing as provided by Subchapter B, that: 5-4 (1) the person is a vexatious litigant; and 5-5 (2) the local administrative judge of the court in 5-6 which the person intends to file the litigation has not granted 5-7 permission to the person under Section 11.102 to file the 5-8 litigation. 5-9 (b) A person who disobeys an order under Subsection (a) is 5-10 subject to contempt of court. 5-11 Sec. 11.102. PERMISSION BY LOCAL ADMINISTRATIVE JUDGE. (a) 5-12 A local administrative judge may grant permission to a person found 5-13 to be a vexatious litigant under Section 11.101 to file a 5-14 litigation only if it appears to the judge that the litigation: 5-15 (1) has merit; and 5-16 (2) has not been filed for the purposes of harassment 5-17 or delay. 5-18 (b) The local administrative judge may condition permission 5-19 on the furnishing of security for the benefit of the defendant as 5-20 provided in Subchapter B. 5-21 Sec. 11.103. DUTIES OF CLERK; MISTAKEN FILING. (a) A clerk 5-22 of a court may not file a litigation presented by a vexatious 5-23 litigant subject to a prefiling order under Section 11.101 unless 5-24 the litigant obtains an order from the local administrative judge 5-25 permitting the filing. 5-26 (b) If the clerk mistakenly files a litigation without an 5-27 order from the local administrative judge, any party may file with 6-1 the clerk and serve on the plaintiff and the other parties to the 6-2 suit a notice stating that the plaintiff is a vexatious litigant 6-3 subject to a prefiling order under Section 11.101. On the filing 6-4 of the notice, the court shall immediately stay the litigation and 6-5 shall dismiss the litigation unless the plaintiff, not later than 6-6 the 10th day after the date the notice is filed, obtains an order 6-7 from the local administrative judge under Section 11.102 permitting 6-8 the filing of the litigation. 6-9 (c) If the local administrative judge issues an order 6-10 permitting the filing of the litigation under Subsection (b), the 6-11 litigation remains stayed and the defendant need not plead until 6-12 the 10th day after the date the defendant is served with a copy of 6-13 the order. 6-14 Sec. 11.104. NOTICE TO OFFICE OF COURT ADMINISTRATION; 6-15 DISSEMINATION OF LIST. (a) A clerk of a court shall provide the 6-16 Office of Court Administration of the Texas Judicial System a copy 6-17 of any prefiling order issued under Section 11.101. 6-18 (b) The Office of Court Administration of the Texas Judicial 6-19 System shall maintain a list of vexatious litigants subject to 6-20 prefiling orders under Section 11.101 and shall annually send the 6-21 list to the clerks of the courts of this state. 6-22 SECTION 2. (a) This Act takes effect September 1, 1997, and 6-23 applies only to the filing of a litigation, as that term is defined 6-24 by Section 11.001, Civil Practice and Remedies Code, as added by 6-25 this Act, on or after that date. 6-26 (b) For the purpose of determining whether a person is a 6-27 vexatious litigant under Chapter 11, Civil Practice and Remedies 7-1 Code, as added by this Act, only a litigation filed after the 7-2 effective date of this Act may be taken into account. 7-3 SECTION 3. The importance of this legislation and the 7-4 crowded condition of the calendars in both houses create an 7-5 emergency and an imperative public necessity that the 7-6 constitutional rule requiring bills to be read on three several 7-7 days in each house be suspended, and this rule is hereby suspended.