SRC-JJJ H.B. 2488 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 2488
76R12233 DAK-DBy: Tillery
State Affairs
5/14/1999
Engrossed


DIGEST 

Persons who provide information to governmental entities are often subject
to various forms of harassment lawsuits. It is currently possible for a
person to be found liable for slander or libel, even if the information
given by the person is accurate. Under current law, the only way to avoid
liability in a harassment suit is a final verdict. An entity who received
an unfavorable description in a government report could sue the person who
gave the description. The person would then have to incur the court costs
of defending the report. H.B. 2488 would direct a judge to dismiss a case
unless there is substantive proof that a defendant made a complaint without
"good faith." This bill also provides for attorney's fees and suit-related
expenses and damages, if warranted. H.B. 2488 would also prohibit suits
against governmental agencies. 

PURPOSE

As proposed, H.B. 2488 establishes provisions regarding civil actions based
on communications or decisions concerning matters pending before
governmental agencies. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Title 6, Civil Practice and Remedies Code, by adding
Chapter 138, as follows:  

CHAPTER 138. CIVIL ACTIONS BASED ON COMMUNICATIONS OR DECISIONS CONCERNING
MATTERS PENDING BEFORE GOVERNMENTAL AGENCIES  

Sec. 138.001. DEFINITIONS. Defines "good faith," and "governmental agency." 

Sec. 138.002. NO LIABILITY FOR GOOD FAITH COMMUNICATION OR DECISION.
Provides that a person is not liable for monetary damages or subject to
injunctive or declaratory relief based upon certain conditions.  Provides
that Subsection (a) does not apply if the claimant establishes that the
communication or decision was not made in good faith. Provides that the
defense conferred by this section does not apply in a civil action against
a governmental agency or an elected or appointed official of a governmental
agency in the official's official capacity.  Provides that the defense
conferred by this section is in addition to all other defenses or
immunities conferred by applicable law. Provides that this section does not
create a cause of action. 

Sec. 138.003. BURDEN OF PLEADING.  Provides that the claimant in a civil
action based upon a communication or decision described in
Section138.002(a), Civil Practice and Remedies Code, has the burden of
pleading with particularity all material facts that the claimant contends
establish the right to recovery.  Requires each fact asserted in the
pleading to be verified by affidavit made on personal knowledge unless the
truth of the fact appears of record. Requires the court, on motion by the
defendant or on the court's own motion, to review the pleadings to
determine compliance with Subsection (a).  

Sec. 138.004. VENUE. Requires a civil action based upon a communication or
decision  described in Section 138.002 (a) to be brought in the county of
the defendant's residence, principal office, or in which the communication
or decision was made.  

Sec. 138.005. MOTION FOR SECURITY FOR COSTS AND EXPENSES. Authorizes the
defendant to file a motion seeking security for costs and litigation
expenses at any time. Requires the motion to be heard not later than 30
days after it is filed unless otherwise required by the court's docket
conditions. Requires the court to grant the motion unless the claimant
proves, by a preponderance of evidence, that the complaint or decision was
not made in good faith.   Requires the court to require the claimant to
post security in an amount sufficient to secure the defendant's costs and
reasonable attorney's fees, expert witness fees, and other reasonable
litigation expenses (litigation expenses). Authorizes the amount of the
security to be reviewed and adjusted by the court at any time upon motion
of any party. Requires the court to promptly dismiss the claimant's action
with prejudice, if the claimant fails to post security in the required
amount within 14 days after the date of the signing of an order requiring
security.  Requires all the discovery proceedings to be stayed during the
pendency of a motion for security under this section and pending the
posting of any security required under such a motion. Provides an exception
authorizing the court to permit specified discovery to be conducted.  

Sec. 138.006. LIABILITY FOR COSTS, EXPENSES, AND DAMAGES.  Authorizes the
defendant who prevails in an action arising from a communication or
decision to recover from the claimant certain fees and expenses.
Authorizes the defendant to recover from the claimant actual damages if the
defendant shows that the action was brought in violation of Chapter 10,
Civil Practice and Remedies Code. Authorizes the defendant to also recover
from the claimant exemplary damages if the defendant shows that the action
was brought for the purpose of harassment, to inhibit the defendant's
communication or decision, to retaliate for the defendant's communication
or decision, to interfere with the defendant's exercise of protected
constitutional rights, or to wrongfully injure the defendant in another
manner.  

SECTION 2. Makes application of this Act prospective.

SECTION 3. Emergency clause. 
  Effective date: upon passage.