HBA-NIK C.S.H.B. 2488 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2488 By: Tillery Civil Practices 4/26/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE 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. C.S.H.B. 2488 directs 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. C.S.H.B. 2488 also prohibits suits against governmental agencies. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Title 6, Civil Practices 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. (a) Provides that a person is not liable for monetary damages or subject to injunctive or declaratory relief based upon a communication relating to a matter of concern to a governmental agency or public official, or a decision by the person as an elected or appointed official of a governmental agency. (b) Provides that Subsection (a) does not apply if the claimant establishes that the communication or decision was not made in good faith. (c) 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. (d) Provides that the defense conferred by this section is in addition to all other defenses or immunities conferred by applicable law. (e) 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 Section 138.002(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. Provides that each fact asserted in the pleading must 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. (a) 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. (b) 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. (c) 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. (d) 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. (e) 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. (a) Authorizes the defendant who prevails in an action arising from a communication or decision described by Section 138.002(a) to recover from the claimant the defendant's court costs, reasonable attorney's fees, reasonable expert witness fees, and other reasonable litigation expenses. (b) Authorizes the defendant to recover from the claimant actual damages if the defendant shows that the action was brought in violation of Chapter 10 (Sanctions for Frivolous Pleadings and Motion), 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. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 2488 modifies the original bill to conform with Legislative Council format. C.S.H.B. 2488 amends SECTION 1 of the original by redesignating the proposed addition of Chapter 137 of the original to Chapter 138. The substitute modifies proposed Section 138.002(b) bill by removing the term "by clear and convincing evidence" with regard to the claimant establishing that a communication or decision was not made in good faith. The substitute modifies proposed Section 138.002(c) to provide that the defense conferred does not apply, rather than shall 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. The substitute also modifies proposed Section 138.002(d), to provide that the defense conferred is, rather than shall be, in addition to any other defense or immunity conferred by applicable law. Makes conforming changes. C.S.H.B. 2488 modifies proposed Section 138.003 of the original by providing, rather than requiring, that the claimant in a civil action based on a communication or decision described in Section 138.002(a) has the burden of pleading with particularity all material facts that the claimant contends establish the right to recovery. C.S.H.B. 2488 modifies proposed Section 138.004 by providing that one of the counties in which a civil action based on a communication or decision by a governmental agency or official may be brought is the county in which the communication or decision, rather than the complaint, was made. Makes a conforming change. C.S.H.B. 2488 modifies intended Section 138.005(a) by providing that the requirement for a motion seeking security for costs and litigation expenses to be heard not later than the 30th day after the date the motion is filed, rather than not more than 30 days after it is filed unless the docket conditions of the court require a later hearing. Makes conforming and nonsubstantive changes. C.S.H.B. 2488 modifies proposed Section 138.006(a) by authorizing a defendant who prevails in an action arising from a certain communication or decision to recover from the claimant the defendant's enumerated costs and fees, rather than authorizing a defendant in a civil action based upon a certain communication or decision to recover the defendant's enumerated fees and costs unless the claimant prevails in such action. This substitute removes the reference in the original bill to an action brought in violation of Chapter 9 (Frivolous Pleading and Claims), leaving the reference to only Chapter 10 (Sanctions for Frivolous Pleadings and Motion). Makes conforming and nonsubstantive changes.