HBA-TYH S.B. 138 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 138
By: Sibley
State Affairs
4/6/1999
Engrossed



BACKGROUND AND PURPOSE 

During the period from 1963 to 1990, the United States Supreme Court held
that the government must  show a compelling state interest for infringing
on an individual's right to the free exercise of religion.  In 1990, the
Supreme Court replaced the compelling state interest test with a rational
basis test in Employment Division v. Smith.  In response, the United States
Congress restored the compelling state interest test by passing the
Religious Freedom Restoration Act (RFRA).  However, in City of Boerne v.
Flores, the court held RFRA to be unconstitutional because it exceeded
congressional authority as applied to the states.    

Currently, there is no state law specifically prohibiting a government
agency (agency) from substantially burdening a person's free exercise of
religion.  S.B. 138 prohibits an agency from substantially burdening an
individual's free exercise of religion unless the agency demonstrates that
the burden is in furtherance of a compelling governmental interest and is
the least restrictive means of furthering that interest.  Under S.B. 138,
an agency that demonstrates a compelling state interest is not required to
separately prove that the exercise of governmental authority imposing the
burden is the least restrictive means to ensure compliance or to punish the
failure to comply.  S.B. 138 allows a person whose free exercise of
religion has been substantially burdened to assert the violation as a
defense in a judicial or administrative proceeding regardless of whether
that person is named in the proceeding.  S.B. 138 provides for certain
civil remedies for agency violations, and waives sovereign immunity to suit
and from liability under this chapter, thereby allowing a claimant to sue
an agency for damages.  S.B. 138 does not authorize an agency to burden a
person's free exercise of religion and does not affect the protections
provided under federal law, the Texas or United States constitutions, or
the grant or denial of an appropriation or grant of money or support to a
religious organization. 

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 5, Civil Practice and Remedies Code, by adding
Chapter 110, as 4/7/1999 

CHAPTER 110. RELIGIOUS FREEDOM

Sec.  110.001.  PURPOSE.  Sets forth the purpose of this Act.

Sec.  110.002.  DEFINITIONS.  Defines "free exercise of religion" and
"government agency." 

Sec.  110.003.  APPLICATION.  Provides that this chapter applies to any
ordinance, rule, order, decision, practice, or other exercise of
governmental authority; to a government agency's exercise of  governmental
authority by granting or refusing to grant a government benefit to an
individual; and to each law of this state unless the law is exempt by
expressly referring to this chapter. 

 Sec.  110.004.  RELIGIOUS FREEDOM PROTECTED.  Prohibits a government
agency from substantially burdening a person's free exercise of religion.
Provides that this does not apply if the government agency demonstrates
that the burden to the person is in furtherance of a compelling state
interest and is the least restrictive means of furthering that interest.
Provides that a government agency meeting those requirements is not
required to separately prove that the remedy and penalty provisions of the
law, ordinance, rule, order, decision, practice, or other exercise of
governmental authority imposing the substantial burden is the least
restrictive means of ensuring compliance or punishing noncompliance.
Provides that for purposes of this section, a valid ordinance, rule, order,
decision, or practice which applies to persons within the custody of a
county, the Texas Youth Commission, or the Texas Department of Criminal
Justice is presumed to be in furtherance of a compelling governmental
interest and the least restrictive means of furthering that interest.
Authorizes the presumption to be rebutted. 

Sec.  110.005.  DEFENSE.  Authorizes a person, whose free exercise of
religion has been substantially burdened in violation of Section 110.004,
to assert that violation as a defense in a judicial or administrative
proceeding regardless of whether the proceeding is brought by the state or
by a person. 
 
Sec.  110.006.  REMEDIES.  Provides that any person, other than a
government agency, who successfully asserts a claim or defense is entitled
to recover declaratory relief under Chapter 37 (Declaratory Judgments),
injunctive relief to prevent the threatened violation or continued
violation, compensatory damages for pecuniary and nonpecuniary losses not
to exceed $1,000, and reasonable attorney's fees, court costs, and other
reasonable expenses incurred in bringing the action. 

Sec.  110.007.  SOVEREIGN IMMUNITY WAIVED.  Provides that sovereign
immunity to suit and  from liability created under Section 110.006 is
waived and abolished.  Authorizes a claimant to sue a government agency for
damages allowed by that section. 

Sec.  110.008.  EFFECT ON RIGHTS.  Provides that a government agency is not
authorized by this chapter to burden a person's free exercise of religion.
Provides that the protection of religious freedom under this chapter is in
addition to the protections under federal law and the constitutions of this
state and the United States.  Prohibits this chapter from being construed
to affect or interpret Section 4 (Religious Tests), 5 (Witnesses not
disqualified by Religious Beliefs; Oaths and Affirmations), or 6 (Freedom
of Worship), Article I, Texas Constitution.  Requires municipalities,
notwithstanding any other provision in this chapter, to have no less
authority to adopt or apply laws and regulations concerning zoning, land
use planning, traffic management, urban nuisance, or historic preservation
than existed under the Constitution of the United States as interpreted by
federal courts prior to April 17, 1990. 

Sec.  110.009.  GRANT TO RELIGIOUS ORGANIZATION NOT AFFECTED.  Provides
that notwithstanding Section 110.003(b), this chapter does not affect the
grant or denial of an appropriation, other grant of money or benefits, or a
tax exemption to a religious organization. 

SECTION 2. Makes application of this Act retroactive.  Creates an exception
which prohibits a court from awarding damages to a claimant who has been
injured by a violation of Chapter 110, Civil Practice and Remedies Code, as
added by this Act, if the damages are incurred before January 1, 2000. 

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