By Hamric H.B. No. 1775
76R3724 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil actions against and the liability of governmental
1-3 officials for damages arising from their decisions and
1-4 communications.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Title 5, Civil Practice and Remedies Code, is
1-7 amended by adding Chapter 113 to read as follows:
1-8 CHAPTER 113. DECISIONS AND COMMUNICATIONS BY
1-9 GOVERNMENTAL OFFICIALS
1-10 Sec. 113.001. DEFINITIONS. In this chapter:
1-11 (1) "Claimant" means a party seeking recovery of
1-12 damages or injunctive or declaratory relief, including a plaintiff,
1-13 counterclaimant, cross-claimant, or third-party plaintiff.
1-14 (2) "Defendant" means a party from whom a claimant
1-15 seeks recovery of damages or injunctive or declaratory relief.
1-16 (3) "Governmental agency" means:
1-17 (A) this state, another state of the United
1-18 States, or the United States;
1-19 (B) a court, institution, agency, political
1-20 subdivision, or organ of government established by the constitution
1-21 or laws of this state, of another state of the United States, or of
1-22 the United States, including a department, bureau, board,
1-23 commission, office, or council; or
1-24 (C) a law enforcement agency.
2-1 Sec. 113.002. LIMITATION ON LIABILITY. (a) Except as
2-2 provided by Section 113.003, a person who is an elected or
2-3 appointed official of a governmental agency is not liable in an
2-4 individual capacity for monetary damages or subject to injunctive
2-5 or declaratory relief arising from:
2-6 (1) a decision by the person in the person's capacity
2-7 as an elected or appointed official; or
2-8 (2) a communication to any person, including a
2-9 governmental agency, a public official, or public information
2-10 media, that relates to a matter reasonably of concern to the person
2-11 in the person's capacity as an elected or appointed official.
2-12 (b) The limitation provided by Subsection (a):
2-13 (1) does not limit liability of an elected or
2-14 appointed official in the person's official capacity; and
2-15 (2) is in addition to any other defense or limitation
2-16 on liability conferred by applicable law.
2-17 (c) This section does not create a cause of action.
2-18 Sec. 113.003. GOOD FAITH REQUIRED. (a) The limitation on
2-19 liability in Section 113.002 does not apply if a claimant shows by
2-20 clear and convincing evidence that the person did not make the
2-21 decision or communication in good faith.
2-22 (b) A communication by a person is made in good faith if, at
2-23 the time the communication was made, the person had a reasonable
2-24 basis in fact for making the communication.
2-25 (c) A decision is made by a person in good faith if, at the
2-26 time the decision was made, the person had a reasonable basis to
2-27 believe that the decision:
3-1 (1) was authorized by law; and
3-2 (2) was in the best interest of the governmental
3-3 agency of which the person is an elected or appointed official.
3-4 Sec. 113.004. BURDEN OF PLEADING. (a) The claimant in an
3-5 action arising from a communication or decision described in
3-6 Section 113.002 has the burden of pleading with particularity all
3-7 material facts that the claimant contends establish the right to
3-8 recovery, including all facts supporting the contention that the
3-9 communication or decision was not made in good faith.
3-10 (b) Each fact asserted by the claimant in the pleading must
3-11 be verified by affidavit made on personal knowledge unless the
3-12 truth of the fact appears of record.
3-13 (c) The court shall, on motion by the defendant or its own
3-14 motion, review the pleadings to determine compliance with this
3-15 section.
3-16 Sec. 113.005. VENUE. Venue for an action arising from a
3-17 communication or decision described in Section 113.002 is only in:
3-18 (1) if the defendant is a natural person, the county
3-19 of the defendant's residence;
3-20 (2) if the defendant is not a natural person, the
3-21 county in which the defendant's principal office is located; or
3-22 (3) if the defendant is a natural person who is not a
3-23 resident of this state or if the defendant is not a natural person
3-24 and does not have an office in this state, the county in which the
3-25 communication or decision was made.
3-26 Sec. 113.006. MOTION FOR SECURITY FOR COSTS AND EXPENSES.
3-27 (a) In an action arising from a communication or decision described
4-1 in Section 113.002, the defendant may at any time file a motion
4-2 seeking security for costs and litigation expenses.
4-3 (b) The court shall hear the motion on or before the 30th
4-4 day after the date it is filed unless the court determines that
4-5 docket conditions require a later hearing.
4-6 (c) The court shall grant the motion unless the claimant
4-7 proves, by a preponderance of the evidence, that the communication
4-8 or decision was not made in good faith.
4-9 (d) On granting the motion, the court shall require the
4-10 claimant to post security in an amount sufficient to secure the
4-11 defendant's:
4-12 (1) court costs;
4-13 (2) reasonable attorney's fees;
4-14 (3) reasonable expert witness fees; and
4-15 (4) other reasonable litigation expenses.
4-16 (e) The court may review and adjust the amount of the
4-17 security at any time on motion of any party.
4-18 (f) The court shall promptly dismiss the action with
4-19 prejudice if the claimant does not post security in the required
4-20 amount on or before the 14th day after the date the court signs the
4-21 order requiring security.
4-22 (g) During the pendency of a motion for security and pending
4-23 the posting of any security required by the motion, all discovery
4-24 proceedings are stayed. The court may, on motion and for good
4-25 cause shown, permit certain discovery that it specifies to be
4-26 conducted.
4-27 Sec. 113.007. LIABILITY FOR COSTS, EXPENSES, AND DAMAGES.
5-1 (a) A defendant who prevails in an action arising from a
5-2 communication or decision described in Section 113.002 may recover
5-3 from the claimant the defendant's:
5-4 (1) court costs;
5-5 (2) reasonable attorney's fees;
5-6 (3) reasonable expert witness fees; and
5-7 (4) other reasonable litigation expenses.
5-8 (b) In addition to recovering under Subsection (a), a
5-9 defendant may recover from the claimant:
5-10 (1) actual damages if the defendant shows that the
5-11 action was brought in violation of Chapter 10; and
5-12 (2) exemplary damages if the defendant shows that the
5-13 action was brought:
5-14 (A) for the purpose of harassment;
5-15 (B) to inhibit the defendant's communication or
5-16 decision;
5-17 (C) to retaliate for the defendant's
5-18 communication or decision;
5-19 (D) to interfere with the defendant's exercise
5-20 of protected constitutional rights; or
5-21 (E) to wrongfully injure the defendant in
5-22 another manner.
5-23 SECTION 2. This Act takes effect September 1, 1999, and
5-24 applies only to a cause of action that commences on or after that
5-25 date. An action that commenced before the effective date of this
5-26 Act is governed by the law applicable to the action immediately
5-27 before the effective date of this Act, and that law is continued in
6-1 effect for that purpose.
6-2 SECTION 3. The importance of this legislation and the
6-3 crowded condition of the calendars in both houses create an
6-4 emergency and an imperative public necessity that the
6-5 constitutional rule requiring bills to be read on three several
6-6 days in each house be suspended, and this rule is hereby suspended.