HBA-TYH C.S.S.B. 138 76(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.S.B. 138
By: Sibley
State Affairs
4/29/1999
Committee Report (Substituted)
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. C.S.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 this bill,
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.
This bill 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. Additionally, this bill provides for certain civil
remedies for agency violations and waives and abolishes sovereign immunity
to suit and from liability. However, a person is prohibited from bringing
an action for damages or injunctive relief against an individual, other
than an action brought against an individual acting in the individual's
official capacity as an officer of a government agency. Moreover, this
bill prohibits a person from bringing an action to assert a claim unless,
60 days before bringing the action, the person gives written notice to the
government agency that the person's free exercise is substantially burdened
by the agency's governmental exercise, of the particular act or refusal to
act that is burdened, and of the manner in which the governmental exercise
burdens the act or refusal to act. If the agency cures the violation, a
person cannot bring an action for remedies.
This bill 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 follows:
CHAPTER 110. RELIGIOUS FREEDOM
Sec. 110.001. DEFINITIONS. Defines "free exercise of religion" and
"government agency." Requires a court to give weight to the interpretation
of compelling interest in federal case law relating to the free exercise
of religion clause of the First Amendment of the U.S. Constitution in
determining whether an interest is a compelling governmental interest.
Sec. 110.002. 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. 110.003. RELIGIOUS FREEDOM PROTECTED. Prohibits a government agency
from substantially burdening a person's free exercise of religion (free
exercise). 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 (governmental exercise)
imposing the substantial burden is the least restrictive means of ensuring
compliance or punishing noncompliance. Provides that a valid ordinance,
rule, order, decision, or practice that applies to a person in the custody
of a county or municipal jail or other correctional facility operated by or
under a contract with a county, a municipality, 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. 110.004. DEFENSE. Authorizes a person, whose free exercise has been
substantially burdened in violation of Section 110.003, 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. 110.005. REMEDIES. Entitles any person, other than a government
agency, who successfully asserts a claim or defense 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, and reasonable attorney's
fees, court costs, and other reasonable expenses incurred in bringing the
action. Prohibits compensatory damages from exceeding $10,000 for each
entire, distinct controversy, without regard to the number of claimants.
Provides that a claimant is not entitled to recover exemplary damages.
Provides that an action for remedies must be brought in district court.
Prohibits a person from bringing an action for damages or injunctive relief
against an individual, other than an action brought against an individual
acting in the individuals official capacity as an officer of a government
agency. Provides that this chapter does not affect the application of
Section 498.0045 (Forfeiture of Good Conduct Time: Frivolous Lawsuits) or
501.008 (Inmate Grievance System), Government Code, or Chapter 14 (Inmate
Litigation), Civil Practice and Remedies Code.
Sec. 110.006. NOTICE; RIGHT TO ACCOMMODATE. (a) Prohibits a person from
bringing an action to assert a claim unless, 60 days before bringing the
action, the person gives written notice to the government agency that the
person's free exercise is substantially burdened by the agency's
governmental exercise, of the particular act or refusal to act that is
burdened, and of the manner in which the governmental exercise burdens the
act or refusal to act.
(b) Authorizes a claimant, within the 60-day period, to bring an action for
declaratory or injunctive relief and associated attorney's fees, court
costs, and other reasonable expenses, if the governmental exercise that
threatens to substantially burden the person's free exercise is imminent
and the person was not informed and did not otherwise have knowledge of the
governmental exercise in time to reasonably provide the notice.
(c) Authorizes a government agency that receives the notice to remedy the
substantial burden on the person's free exercise.
(d) Authorizes a remedy implemented by a government agency to be designed
to reasonably remove the substantial burden on the person's free exercise.
Provides that a remedy implemented by a government agency need not be
implemented in a manner that results in a governmental exercise that is the
least restrictive means of furthering the governmental interest. Provides
that a remedy implemented by a government agency must be narrowly tailored
to remove the particular burden for which the remedy is implemented.
(e) Prohibits a person with respect to whom a substantial burden on the
person's free exercise has been cured by an implemented remedy from
bringing an action for remedies.
Sec. 110.007. ONE-YEAR LIMITATIONS PERIOD. Provides that a person must
bring an action to assert a claim for damages within one year after the
person knew or should have known of the substantial burden on the person's
free exercise. Provides that mailing the written notice tolls the
limitations period until the 75th day after the notice was mailed.
Sec. 110.008. SOVEREIGN IMMUNITY WAIVED. Provides that sovereign immunity
to suit and from liability created under Section 110.005 is waived and
abolished, subject to Section 110.006 . Authorizes a claimant to sue a
government agency for damages allowed by that section. Provides that this
chapter does not waive or abolish sovereign immunity to suit and from
liability under the Eleventh Amendment to the U.S. Constitution.
Sec. 110.009. EFFECT ON RIGHTS. Provides that a government agency is not
authorized by this chapter to burden a person's free exercise. 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.
Sec. 110.010. APPLICATION TO CERTAIN CASES. Provides that a municipality
has no less authority to adopt or apply laws and regulations concerning
zoning, land use planning, traffic management, urban nuisance, or historic
preservation than the authority of the municipality that existed under the
law as interpreted by the federal courts before April 17, 1990. Provides
that this chapter does not affect a municipality's authority to adopt or
apply laws and regulations as that authority has been interpreted by any
court in cases that do not involve the free exercise of religion.
Sec. 110.011. NO EFFECT ON CIVIL RIGHTS. Provides that this chapter does
not establish or eliminate a defense to a civil action or criminal
prosecution under a federal or state civil rights law. Provides that this
chapter does not affect existing law regarding employment or education of
those who perform duties such as teaching or spreading the faith,
performing devotional services, or church governance for a religious
organization.
Sec. 110.012. GRANT TO RELIGIOUS ORGANIZATION NOT AFFECTED. Provides
that notwithstanding Section 110.002(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 prospective.
SECTION 3. Emergency clause.
Effective date: 90 days after adjournment.
COMPARISON OF ORIGINAL TO SUBSTITUTE
C.S.S.B. 138 differs from the original bill in SECTION 1 by removing
proposed Section 110.001, Civil Practice and Remedies Code, which set forth
the purpose of proposed Chapter 110 to codify the compelling interest test
of Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406
U.S. 205 (1972).
The substitute differs from the original bill in SECTION 1 by redesignating
proposed Sections 110.002-110.006, 110.007 and 110.008, and 110.009 of the
original to Sections 110.001-110.005, 110.008 and 110.009, and 110.012,
respectively; and adding Sections 110.006, 110.007, 110.010, and 110.011.
In redesignated Section 110.001(a), the substitute differs from the
original by redefining "free exercise of religion" and by adding Section
110.001(b) to require a court to give weight to the interpretation of
compelling interest in federal case law relating to the free exercise of
religion clause of the First Amendment of the U.S. Constitution in
determining whether an interest is a compelling governmental interest.
In redesignated Section 110.003(d), the substitute differs from the
original by providing that a valid ordinance, rule, order, decision, or
practice that applies to a person in the custody of a county or municipal
jail or other correctional facility operated by or under a contract with a
county, a municipality, the Texas Youth Commission, or the Texas Department
of Criminal Justice, rather than to a person in 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.
In redesignated Section 110.004, the substitute makes a conforming change.
In redesignated Section 110.005(a), the substitute differs from the
original by removing the $1,000 maximum limit on the recovery of
compensatory damages for pecuniary and nonpecuniary losses.
The substitute also redesignates proposed Section 110.00g(b) of the
original to Section 110.005(e). In new Section 110.005(b), the substitute
prohibits compensatory damages from exceeding $10,000 for each entire,
distinct controversy, without regard to the number of claimants, and
provides that a claimant is not entitled to recover exemplary damages. In
new Section 110.005(c), the substitute provides that an action for damages
must be brought in district court. In new Section 110.005(d), the
substitute prohibits a person from bringing an action for damages or
injunctive relief against an individual, other than an action brought
against an individual acting in the individuals official capacity as an
officer of a government agency.
For new Sections 110.006 and 110.007, please see the Section-by-Section
Analysis in this document.
In redesignated Section 110.008(a), the substitute differs from the
original by subjecting the provision that sovereign immunity to suit and
from liability is waived and abolished to the operation of proposed Section
110.006, and by making a conforming change. The substitute also adds
Section 110.008(b), to provide that proposed Chapter 110 does not waive or
abolish sovereign immunity to suit and from liability under the Eleventh
Amendment to the U.S. Constitution.
In redesignated Section 110.009, the substitute differs from the original
by removing proposed Section 110.009(c), requiring municipalities 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. However, the
substitute does address a municipality's authority to adopt or apply such
laws and regulations in new Section 110.010.
For new Sections 110.010 and 110.011, please see the Section-by-Section
Analysis in this document.
In redesignated Section 110.012, the substitute makes a conforming change.
C.S.S.B. 138 differs from the original bill in SECTION 2 by providing that
this Act applies to a cause of action that accrues on or after the
effective date, rather than to a law of this state and to any ordinance,
rule, order, decision, practice, or other exercise of governmental
authority, without regard to whether the law, ordinance, rule, order,
decision, practice, or other exercise of governmental authority was
enacted, adopted, or taken before, on, or after the effective date. The
substitute also removes the exception that 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.
C.S.S.B. 138 differs from the original bill in SECTION 3 by using the short
emergency clause rather than the long emergency clause.