1-1     By:  Hartnett, Galloway, et al.                       H.B. No. 3087

 1-2          (Senate Sponsor - Harris)

 1-3           (In the Senate - Received from the House May 12, 1997;

 1-4     May 13, 1997, read first time and referred to Committee on Economic

 1-5     Development; May 17, 1997, reported favorably by the following

 1-6     vote:  Yeas 10, Nays 0; May 17, 1997, sent to printer.)

 1-7                            A BILL TO BE ENTITLED

 1-8                                   AN ACT

 1-9     relating to the protection of defendants against vexatious

1-10     litigants.

1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-12           SECTION 1.  Subtitle A, Title 2, Civil Practice and Remedies

1-13     Code, is amended by adding Chapter 11 to read as follows:

1-14                      CHAPTER 11.  VEXATIOUS LITIGANTS

1-15                      SUBCHAPTER A.  GENERAL PROVISIONS

1-16           Sec. 11.001.  DEFINITIONS.  In this chapter:

1-17                 (1)  "Defendant" means a person or governmental entity

1-18     against whom a plaintiff commences or maintains or seeks to

1-19     commence or maintain a litigation.

1-20                 (2)  "Litigation" means a civil action commenced,

1-21     maintained, or pending in any state or federal court.

1-22                 (3)  "Local administrative judge" means a local

1-23     administrative district judge or a local administrative statutory

1-24     county court judge.

1-25                 (4)  "Moving defendant" means a defendant who moves for

1-26     an order under Section 11.051 determining that a plaintiff is a

1-27     vexatious litigant and requesting security.

1-28                 (5)  "Plaintiff" means an individual who commences or

1-29     maintains a litigation.

1-30               (Sections 11.002-11.050 reserved for expansion

1-31                     SUBCHAPTER B.  VEXATIOUS LITIGANTS

1-32           Sec. 11.051.  MOTION FOR ORDER DETERMINING PLAINTIFF A

1-33     VEXATIOUS LITIGANT AND REQUESTING SECURITY.  In a litigation in

1-34     this state, the defendant may, at any time until final judgment is

1-35     entered, move the court for an order:

1-36                 (1)  determining that the plaintiff is a vexatious

1-37     litigant; and

1-38                 (2)  requiring the plaintiff to furnish security.

1-39           Sec. 11.052.  STAY OF PROCEEDINGS ON FILING OF MOTION.  (a)

1-40     On the filing of a motion under Section 11.051 before the date the

1-41     trial starts, the litigation is stayed and the moving defendant is

1-42     not required to plead:

1-43                 (1)  if the motion is denied, before the 10th day after

1-44     the date it is denied; or

1-45                 (2)  if the motion is granted, before the 10th day

1-46     after the date the moving defendant receives written notice that

1-47     the plaintiff has furnished the required security.

1-48           (b)  On the filing of a motion under Section 11.051 on or

1-49     after the date the trial starts, the litigation is stayed for a

1-50     period the court determines.

1-51           Sec. 11.053.  HEARING.  (a)  On receipt of a motion under

1-52     Section 11.051, the court shall, after notice to all parties,

1-53     conduct a hearing to determine whether to grant the motion.

1-54           (b)  The court may consider any evidence material to the

1-55     ground of the motion, including:

1-56                 (1)  written or oral evidence; and

1-57                 (2)  evidence presented by witnesses or by affidavit.

1-58           Sec. 11.054.  CRITERIA FOR FINDING PLAINTIFF A VEXATIOUS

1-59     LITIGANT.  A court may find a plaintiff a vexatious litigant if the

1-60     defendant shows that there is not a reasonable probability that the

1-61     plaintiff will prevail in the litigation against the defendant and

1-62     that:

1-63                 (1)  the plaintiff, in the seven-year period

1-64     immediately preceding the date the defendant makes the motion under

 2-1     Section 11.051, has commenced, prosecuted, or maintained in propria

 2-2     persona at least five litigations other than in a small claims

 2-3     court that have been:

 2-4                       (A)  finally determined adversely to the

 2-5     plaintiff;

 2-6                       (B)  permitted to remain pending at least two

 2-7     years without having been brought to trial or hearing; or

 2-8                       (C)  determined by a trial or appellate court to

 2-9     be frivolous or groundless under state or federal laws or rules of

2-10     procedure;

2-11                 (2)  after a litigation has been finally determined

2-12     against the plaintiff, the plaintiff repeatedly relitigates or

2-13     attempts to relitigate, in propria persona, either:

2-14                       (A)  the validity of the determination against

2-15     the same defendant as to whom the litigation was finally

2-16     determined; or

2-17                       (B)  the cause of action, claim, controversy, or

2-18     any of the issues of fact or law determined or concluded by the

2-19     final determination against the same defendant as to whom the

2-20     litigation was finally determined; or

2-21                 (3)  the plaintiff has previously been declared to be a

2-22     vexatious litigant by a state or federal court in an action or

2-23     proceeding based on the same or substantially similar facts,

2-24     transition, or occurrence.

2-25           Sec. 11.055.  SECURITY.  (a)  A court shall order the

2-26     plaintiff to furnish security for the benefit of the moving

2-27     defendant if the court, after hearing the evidence on the motion,

2-28     determines that the plaintiff is a vexatious litigant.

2-29           (b)  The court in its discretion shall determine the date by

2-30     which the security must be furnished.

2-31           (c)  The court shall provide that the security is an

2-32     undertaking by the plaintiff to assure payment to the moving

2-33     defendant of the moving defendant's reasonable expenses incurred in

2-34     or in connection with a litigation commenced, caused to be

2-35     commenced, maintained, or caused to be maintained by the plaintiff,

2-36     including costs and attorney's fees.

2-37           Sec. 11.056.  DISMISSAL FOR FAILURE TO FURNISH SECURITY.  The

2-38     court shall dismiss a litigation as to a moving defendant if a

2-39     plaintiff ordered to furnish security does not furnish the security

2-40     within the time set by the order.

2-41           Sec. 11.057.  DISMISSAL ON THE MERITS.  If the litigation is

2-42     dismissed on its merits, the moving defendant has recourse to the

2-43     security furnished by the plaintiff in an amount determined by the

2-44     court.

2-45               (Sections 11.058-11.100 reserved for expansion

2-46             SUBCHAPTER C.  PROHIBITING FILING OF NEW LITIGATION

2-47           Sec. 11.101.  PREFILING ORDER; CONTEMPT.  (a)  A court may,

2-48     on its own motion or the motion of any party, enter an order

2-49     prohibiting a person from filing, in propria persona, a new

2-50     litigation in a court in this state if the court finds, after

2-51     notice and hearing as provided by Subchapter B, that:

2-52                 (1)  the person is a vexatious litigant; and

2-53                 (2)  the local administrative judge of the court in

2-54     which the person intends to file the litigation has not granted

2-55     permission to the person under Section 11.102 to file the

2-56     litigation.

2-57           (b)  A person who disobeys an order under Subsection (a) is

2-58     subject to contempt of court.

2-59           Sec. 11.102.  PERMISSION BY LOCAL ADMINISTRATIVE JUDGE.  (a)

2-60     A local administrative judge may grant permission to a person found

2-61     to be a vexatious litigant under Section 11.101 to file a

2-62     litigation only if it appears to the judge that the litigation:

2-63                 (1)  has merit; and

2-64                 (2)  has not been filed for the purposes of harassment

2-65     or delay.

2-66           (b)  The local administrative judge may condition permission

2-67     on the furnishing of security for the benefit of the defendant as

2-68     provided in Subchapter B.

2-69           Sec. 11.103.  DUTIES OF CLERK; MISTAKEN FILING.  (a)  A clerk

 3-1     of a court may not file a litigation presented by a vexatious

 3-2     litigant subject to a prefiling order under Section 11.101 unless

 3-3     the litigant obtains an order from the local administrative judge

 3-4     permitting the filing.

 3-5           (b)  If the clerk mistakenly files a litigation without an

 3-6     order from the local administrative judge, any party may file with

 3-7     the clerk and serve on the plaintiff and the other parties to the

 3-8     suit a notice stating that the plaintiff is a vexatious litigant

 3-9     subject to a prefiling order under Section 11.101.  On the filing

3-10     of the notice, the court shall immediately stay the litigation and

3-11     shall dismiss the litigation unless the plaintiff, not later than

3-12     the 10th day after the date the notice is filed, obtains an order

3-13     from the local administrative judge under Section 11.102 permitting

3-14     the filing of the litigation.

3-15           (c)  If the local administrative judge issues an order

3-16     permitting the filing of the litigation under Subsection (b), the

3-17     litigation remains stayed and the defendant need not plead until

3-18     the 10th day after the date the defendant is served with a copy of

3-19     the order.

3-20           Sec. 11.104.  NOTICE TO OFFICE OF COURT ADMINISTRATION;

3-21     DISSEMINATION OF LIST.  (a)  A clerk of a court shall provide the

3-22     Office of Court Administration of the Texas Judicial System a copy

3-23     of any prefiling order issued under Section 11.101.

3-24           (b)  The Office of Court Administration of the Texas Judicial

3-25     System shall maintain a list of vexatious litigants subject to

3-26     prefiling orders under Section 11.101 and shall annually send the

3-27     list to the clerks of the courts of this state.

3-28           SECTION 2.  (a)  This Act takes effect September 1, 1997, and

3-29     applies only to the filing of a litigation, as that term is defined

3-30     by Section 11.001, Civil Practice and Remedies Code, as added by

3-31     this Act, on or after that date.

3-32           (b)  For the purpose of determining whether a person is a

3-33     vexatious litigant under Chapter 11, Civil Practice and Remedies

3-34     Code, as added by this Act, only a litigation filed after the

3-35     effective date of this Act may be taken into account.

3-36           SECTION 3.  The importance of this legislation and the

3-37     crowded condition of the calendars in both houses create an

3-38     emergency and an imperative public necessity that the

3-39     constitutional rule requiring bills to be read on three several

3-40     days in each house be suspended, and this rule is hereby suspended.

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