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. 3-41 * * * * *