SRC-AXB C.S.S.B. 138 76(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 138
By: Sibley
State Affairs
2/26/1999
Committee Report (Substituted)


DIGEST 

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) to
"restore" certain protections against government infringement upon the free
exercise of religion.  RFRA mandated that government must have a
"compelling interest" before it can place burdens or restrictions on the
free exercise of religion. 

In 1997, the Supreme Court held RFRA unconstitutional in the City of Boerne
v. Flores case as to state and local governments.  In this case, the city
prohibited a church from adding to its building based on city ordinances
protecting a historical district.  The Supreme Court held that Congress
exceeded its authority under the Constitution in adopting RFRA; however,
this decision does not affect Texas' ability to enact similar legislation.

C.S.S.B. 138 would prohibit a government agency from substantially
burdening a person's free exercise of religion, unless the agency can
demonstrate that the burden is the least restrictive means of furthering a
compelling governmental interest. 

PURPOSE

As proposed, C.S.S.B. 138 prohibits a government agency from substantially
burdening a person's free exercise of religion, and authorizes a government
agency to burden a person's free exercise of religion if the agency can
demonstrate that the burden is the least restrictive means of furthering a
compelling governmental interest. 

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 5, Civil Practice and Remedies Code, by adding
Chapter 110, as follows: 

CHAPTER 110.  RELIGIOUS FREEDOM

Sec.  110.001.  PURPOSE.  Provides that the purpose of this Act is to enact
the compelling interest test as set forth in certain cases as a statutory
claim or defense, and to guarantee the test's application in all cases
where the free exercise of religion is substantially burdened. 

Sec.  110.002.  DEFINITIONS.  Redefines "free exercise of religion" to mean
an act motivated by sincere religious belief, and defines "government
agency."  Makes conforming changes.   

Sec.  110.003.  APPLICATION.  Provides that this chapter applies to any
exercise of governmental authority, acts of a government agency, and each
law of this state.  Provides that exceptions to the application of this
chapter are made only with express reference to this chapter. 

Sec.  110.004.  RELIGIOUS FREEDOM PROTECTED.  Prohibits a government agency
from burdening a person's free exercise of religion.  Authorizes a
government agency to burden a person's free exercise of religion if it can
demonstrate that the burden is the least restrictive means of furthering a
compelling governmental interest.  Provides that once the government agency
demonstrates that the burden is the least restrictive means to insure
compliance, it is not further required to separately punish failure to
comply or prove that the specific method of imposing the substantial burden
is the least restrictive. 

Sec.  110.005.  DEFENSE.  Authorizes a person whose free exercise of
religion is burdened in violation of Section 110.004, to assert that
violation as a defense in a judicial proceeding.  

Sec.  110.006.  REMEDIES.  Entitles any person, other than a government
agency, who successfully asserts a claim or defense under this chapter to
recover certain reliefs and compensatory monies.  Provides that this
chapter has no effect on Section 498.0045 or 501.008, Government Code, or
Chapter 14, Civil Practice and Remedies Code. 

Sec.  110.007.  SOVEREIGN IMMUNITY WAIVED.  Waives and abolishes sovereign
immunity to the extent of liability created by Section 110.006.  Authorizes
a claimant to sue a government agency for damages allowed by Section
110.006. 

Sec.  110.008.  EFFECT ON RIGHTS.  Clarifies that this chapter does not
authorize a government agency to burden a person's free exercise of
religion.  Provides that this chapter affords additional protection to
extant protection of religious freedom.  Prohibits this chapter from being
construed to affect or interpret Section 4, 5, 6, or 7, Article I, Texas
Constitution. 

Sec.  110.009.  GRANT TO RELIGIOUS ORGANIZATION NOT AFFECTED.  Provides
that this chapter does not affect the grant or denial of benefits or a tax
exemption to a religious organization.  

SECTION  2.  Makes application of this Act retroactive.  Prohibits a court
from awarding damages to a claimant from a violation of this Act, whose
damages were incurred before January 1, 2000. 

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

SUMMARY OF COMMITTEE CHANGES

SECTION 1.

Amends Section 110.001, Civil Practice and Remedies Code, to set forth the
purpose of this Act, and guarantees certain cases' defenses  where the free
exercise of religion is substantially burdened. 

Amends Section 110.002, Civil Practice and Remedies Code, to redefine "free
exercise of religion," to mean an act substantially motivated by sincere
religious belief.  Redesignates existing Section 110.001 as 110.002. 

Redesignates Sections 110.003 and 110.004, Civil Practice and Remedies
Code, from Sections 110.002 and 110.003. 

Redesignates Section 110.005, Civil Practice and Remedies Code, from
existing Section 110.004, and makes a conforming change. 

Redesignates Section 110.006, Civil Practice and Remedies Code, from
existing Section 110.005.  Provides that any person who successfully
asserts a claim or defense under this chapter is entitled to certain
benefits and compensation, rather than authorizing a court to provide
certain entitlements.  Creates two new entitlements involving financial
compensation. 

Redesignates Section 110.007, Civil Practice and Remedies Code, from
existing Section  110.006.  Makes a conforming change. 

Redesignates Section 110.008, Civil Practice and Remedies Code, from
existing Section 110.007.  Prohibits this chapter from being construed to
affect or interpret Section 7, Article I, Texas Constitution. 

Redesignates Section 110.009, Civil Practice and Remedies Code, from
existing Section 110.008.  Provides that this chapter does not affect the
grant or denial of a tax exemption or benefits, rather than support, to a
religious organization.  Makes a conforming change.