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.