By Longoria                                            H.B. No. 185
         76R923 DLF-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to remedies for certain violations of the Texas
 1-3     Constitution.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Title 5, Civil Practice and Remedies Code, is
 1-6     amended by adding Chapter 110 to read as follows:
 1-7             CHAPTER 110.  VIOLATIONS OF THE TEXAS CONSTITUTION
 1-8                      SUBCHAPTER A.  GENERAL PROVISIONS
 1-9           Sec. 110.001.  DEFINITIONS.  In this chapter:
1-10                 (1)  "Employee" has the meaning assigned by Section
1-11     101.001.
1-12                 (2)  "Exemplary damages" has the meaning assigned by
1-13     Section 41.001.
1-14                 (3)  "Governmental unit" has the meaning assigned by
1-15     Section 101.001, except that the term does not include an emergency
1-16     service organization.
1-17              (Sections 110.002-110.020 reserved for expansion
1-18               SUBCHAPTER B.  LIABILITY OF GOVERNMENTAL UNITS
1-19           Sec. 110.021.  GOVERNMENTAL LIABILITY.  (a)  A governmental
1-20     unit is liable for compensatory damages if:
1-21                 (1)  the governmental unit or an employee of the
1-22     governmental unit in the employee's official capacity acts or fails
1-23     to act in a manner that violates the rights of a person under
1-24     Article I of the Texas Constitution, the Bill of Rights;
 2-1                 (2)  the employee or other individual responsible for
 2-2     the act or failure to act knew or should have known that the act or
 2-3     failure to act violated the Bill of Rights; and
 2-4                 (3)  the violation resulted in property damage,
 2-5     personal injury, or death.
 2-6           (b)  An action under this section must be brought by or on
 2-7     behalf of:
 2-8                 (1)  the person who suffered the property damage or
 2-9     personal injury; or
2-10                 (2)  in the case of a violation resulting in death, a
2-11     person who may bring an action under Subchapter A or B, Chapter 71.
2-12           Sec. 110.022.  EXEMPLARY DAMAGES.  This chapter does not
2-13     authorize exemplary damages.
2-14           Sec. 110.023.  WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO
2-15     SUE.  (a)  Sovereign immunity to suit is waived and abolished to
2-16     the extent of the liability created by this chapter.
2-17           (b)  A person having a claim under this chapter may sue a
2-18     governmental unit for damages allowed by this chapter.
2-19           Sec. 110.024.  INDIVIDUAL LIABILITY NOT CREATED.  This
2-20     chapter does not create liability with respect to an employee of a
2-21     governmental unit or another individual.
2-22           Sec. 110.025.  LIABILITY INSURANCE.  (a)  Each governmental
2-23     unit may purchase insurance policies protecting the unit against
2-24     claims under this chapter.
2-25           (b)  The policies may relinquish to the insurer the right to
2-26     investigate, defend, compromise, and settle a claim under this
2-27     chapter to which the insurance coverage extends.
 3-1           (c)  This state or a political subdivision of this state may
 3-2     not require an employee to purchase liability insurance as a
 3-3     condition of employment if the state or the political subdivision
 3-4     is insured by a liability insurance policy.
 3-5              (Sections 110.026-110.050 reserved for expansion
 3-6                          SUBCHAPTER C.  EXCLUSIONS
 3-7           Sec. 110.051.  LEGISLATIVE.  This chapter does not apply to a
 3-8     claim based on an action of the legislature or a member of the
 3-9     legislature acting in the member's official capacity or to the
3-10     legislative functions of a governmental unit.
3-11           Sec. 110.052.  JUDICIAL.  (a)  This chapter does not apply to
3-12     a claim based on an act of a court of this state or any member of a
3-13     court of this state acting in the member's official capacity or to
3-14     a judicial function of a governmental unit.  "Official capacity"
3-15     means all duties of office and includes administrative decisions or
3-16     actions.
3-17           (b)  This chapter does not apply to a claim based on an act
3-18     or omission of an employee in the execution of a lawful order of
3-19     any court.
3-20              (Sections 110.053-110.100 reserved for expansion
3-21                          SUBCHAPTER D.  PROCEDURES
3-22           Sec. 110.101.  NOTICE.  (a) A governmental unit is entitled
3-23     to receive notice of a claim against it under this chapter not
3-24     later than six months after the day that the incident giving rise
3-25     to the claim occurred.  The notice must reasonably describe:
3-26                 (1)  the damage or injury claimed;
3-27                 (2)  the time and place of the incident; and
 4-1                 (3)  the incident.
 4-2           (b)  A city's charter and ordinance provisions requiring
 4-3     notice within a charter period permitted by law are ratified and
 4-4     approved.
 4-5           Sec. 110.102.  COMMENCEMENT OF SUIT.  (a) A suit under this
 4-6     chapter shall be brought in state court in the county in which the
 4-7     cause of action or a part of the cause of action arises.
 4-8           (b)  The pleadings of the suit must name as defendant the
 4-9     governmental unit against which liability is to be established.
4-10           (c)  In a suit against the state, citation must be served on
4-11     the secretary of state.  In other suits, citation must be served as
4-12     in other civil cases unless no method of service is provided by
4-13     law, in which case service may be on the administrative head of the
4-14     governmental unit being sued.  If the administrative head of the
4-15     governmental unit is not available, the court in which the suit is
4-16     pending may authorize service in any manner that affords the
4-17     governmental unit a fair opportunity to answer and defend the suit.
4-18           Sec. 110.103.  LEGAL REPRESENTATION.  (a) The attorney
4-19     general shall defend each action brought under this chapter against
4-20     a governmental unit that has authority and jurisdiction coextensive
4-21     with the geographical limits of this state.  The attorney general
4-22     may be fully assisted by counsel provided by an insurance carrier.
4-23           (b)  A governmental unit having an area of jurisdiction
4-24     smaller than the entire state shall employ its own counsel
4-25     according to the organic act under which the unit operates, unless
4-26     the governmental unit has relinquished to an insurance carrier the
4-27     right to defend against the claim.
 5-1           Sec. 110.104.  EVIDENCE OF INSURANCE COVERAGE.  (a) Neither
 5-2     the existence nor the amount of insurance held by a governmental
 5-3     unit is admissible in the trial of a suit under this chapter.
 5-4           (b)  Neither the existence nor the amount of the insurance is
 5-5     subject to discovery.
 5-6           Sec. 110.105.  SETTLEMENT.  (a) A cause of action under this
 5-7     chapter may be settled and compromised by the governmental unit if:
 5-8                 (1)  in a case involving the state, the governor
 5-9     determines that the compromise is in the best interests of the
5-10     governmental unit; or
5-11                 (2)  in other cases, the governing body of the
5-12     governmental unit determines that the compromise is in the best
5-13     interests of the governmental unit.
5-14           (b)  Approval is not required if the governmental unit has
5-15     acquired insurance under this chapter.
5-16           Sec. 110.106.  PAYMENT AND COLLECTION OF JUDGMENT.  (a)  A
5-17     judgment in a suit under this chapter may be enforced only in the
5-18     same manner and to the same extent as other judgments against the
5-19     governmental unit are enforceable as provided by law, unless the
5-20     governmental unit has liability or indemnity insurance protection,
5-21     in which case the holder of the judgment may collect the judgment,
5-22     to the extent of the insurer's liability, as provided in the
5-23     insurance or indemnity contract or policy or as otherwise provided
5-24     by law.
5-25           (b)  A judgment or a portion of a judgment that is not
5-26     payable by an insurer need not be paid by a governmental unit until
5-27     the first fiscal year following the fiscal year in which the
 6-1     judgment becomes final.
 6-2           (c)  If in a fiscal year the aggregate amount of judgments
 6-3     under this chapter against a governmental unit that become final,
 6-4     excluding the amount payable by an insurer, exceeds one percent of
 6-5     the unit's budgeted tax funds for the fiscal year, excluding
 6-6     general obligation debt service requirements, the governmental unit
 6-7     may pay the judgments in equal annual installments for a period of
 6-8     not more than five years.  If payments are extended under this
 6-9     subsection, the governmental unit shall pay interest on the unpaid
6-10     balance at the rate provided by law.
6-11           Sec. 110.107.  AD VALOREM TAXES FOR PAYMENT OF JUDGMENT.  (a)
6-12     A governmental unit not fully covered by liability insurance may
6-13     levy an ad valorem tax for the payment of any final judgment under
6-14     this chapter.
6-15           (b)  If necessary to pay the amount of a judgment, the ad
6-16     valorem tax rate may exceed any legal tax rate limit applicable to
6-17     the governmental unit except a limit imposed by the Texas
6-18     Constitution.
6-19           SECTION 2.  This Act applies only to a cause of action that
6-20     accrues on or after the effective date of this Act.  A cause of
6-21     action that accrues  before the effective date of this Act is
6-22     governed by the law applicable to the cause of action immediately
6-23     before the effective date of this Act and that law is continued in
6-24     effect for that purpose.
6-25           SECTION 3.  The importance of this legislation and the
6-26     crowded condition of the calendars in both houses create an
6-27     emergency and an imperative public necessity that the
 7-1     constitutional rule requiring bills to be read on three several
 7-2     days in each house be suspended, and this rule is hereby suspended,
 7-3     and that this Act take effect and be in force from and after its
 7-4     passage, and it is so enacted.