By Tillery H.B. No. 2488
76R7050 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil actions based upon communications or decisions
1-3 concerning matters pending before governmental agencies.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 6, Civil Practice and Remedies Code, is
1-6 amended by adding Chapter 137 to read as follows:
1-7 CHAPTER 137. CIVIL ACTIONS BASED UPON COMMUNICATIONS OR DECISIONS
1-8 CONCERNING MATTERS PENDING BEFORE GOVERNMENTAL AGENCIES
1-9 Sec. 137.001. DEFINITIONS. In this chapter:
1-10 (1) "Good faith" means,
1-11 (A) with respect to a communication, that at the
1-12 time the communication was made the defendant had a reasonable
1-13 basis in fact for making the communication; and
1-14 (B) with respect to a decision, that at the time
1-15 the decision was made the defendant had a reasonable basis to
1-16 believe that the decision was authorized by law and was in the best
1-17 interest of the governmental agency of which the defendant was an
1-18 elected or appointed official.
1-19 (2) "Governmental agency" means:
1-20 (A) this state, another state of the United
1-21 States, or the United States;
1-22 (B) any court, institution, agency, political
1-23 subdivision, or organ of government established by the constitution
1-24 or laws of this state, of another state of the United States, or of
2-1 the United States, including a department, bureau, board,
2-2 commission, office, or council; or
2-3 (C) a law enforcement agency.
2-4 Sec. 137.002. NO LIABILITY FOR GOOD FAITH COMMUNICATION OR
2-5 DECISION. (a) A person is not liable for monetary damages or
2-6 subject to injunctive or declaratory relief based upon:
2-7 (1) a communication to a governmental agency, a public
2-8 official, the public information media, or another person relating
2-9 to a matter reasonably of concern to a governmental agency or
2-10 public official; or
2-11 (2) a decision by the person as an elected or
2-12 appointed official of a governmental agency.
2-13 (b) Subsection (a) does not apply if the claimant
2-14 establishes by clear and convincing evidence that the communication
2-15 or decision was not made in good faith.
2-16 (c) The defense conferred by this section shall not apply in
2-17 a civil action against a governmental agency or an elected or
2-18 appointed official of a governmental agency in the official's
2-19 official capacity.
2-20 (d) The defense conferred by this section shall be in
2-21 addition to all other defenses or immunities conferred by
2-22 applicable law.
2-23 (e) This section does not create a cause of action.
2-24 Sec. 137.003. BURDEN OF PLEADING. (a) The claimant in a
2-25 civil action based upon a communication or decision described in
2-26 Section 137.002(a) shall have the burden of pleading with
2-27 particularity all material facts that the claimant contends
3-1 establish the right to recovery, including all facts supporting the
3-2 contention that the communication or decision was not made in good
3-3 faith. Each fact asserted in the pleading must be verified by
3-4 affidavit made on personal knowledge unless the truth of the fact
3-5 appears of record.
3-6 (b) The court shall, on motion by the defendant or on the
3-7 court's own motion, review the pleadings to determine compliance
3-8 with Subsection (a).
3-9 Sec. 137.004. VENUE. A civil action based upon a
3-10 communication or decision described in Section 137.002(a) shall be
3-11 brought: (a) in the county of the defendant's residence if the
3-12 defendant is a natural person;
3-13 (b) in the county in which the defendant's principal office
3-14 is located if the defendant is not a natural person; or
3-15 (c) in the county in which the complaint was made, if the
3-16 defendant is a natural person who is not a resident of this state
3-17 or if the defendant is not a natural person and does not have an
3-18 office in this state.
3-19 Sec. 137.004. MOTION FOR SECURITY FOR COSTS AND EXPENSES.
3-20 (a) In a civil action based upon a communication or decision
3-21 described in Section 137.002(a), the defendant may at any time file
3-22 a motion seeking security for costs and litigation expenses. The
3-23 motion shall be heard not more than 30 days after it is filed
3-24 unless the docket conditions of the court require a later hearing.
3-25 (b) The court shall grant the motion unless the claimant
3-26 proves, by a preponderance of the evidence, that the complaint or
3-27 decision was not made in good faith.
4-1 (c) Upon granting the motion, the court shall require the
4-2 claimant to post security in an amount sufficient to secure the
4-3 defendant's costs and reasonable attorneys' fees, reasonable expert
4-4 witness fees, and other reasonable litigation expenses. The amount
4-5 of the security may be reviewed and adjusted by the court at any
4-6 time upon motion of any party.
4-7 (d) If the claimant fails to post security in the required
4-8 amount within 14 days after the signing of an order requiring
4-9 security, the court shall promptly dismiss the claimant's action
4-10 with prejudice.
4-11 (e) All discovery proceedings shall be stayed during the
4-12 pendency of a motion for security pursuant to this section and
4-13 pending the posting of any security required pursuant to such a
4-14 motion, except that the court may, upon motion and for good cause
4-15 shown, permit specified discovery to be conducted.
4-16 Sec. 137.005. LIABILITY FOR COSTS, EXPENSES, AND DAMAGES.
4-17 (a) The defendant in a civil action based upon a communication or
4-18 decision described in Section 137.002(a) may recover the
4-19 defendant's costs and reasonable attorneys' fees, reasonable expert
4-20 witness fees, and other reasonable litigation expenses from the
4-21 claimant unless the claimant prevails in such action.
4-22 (b) The defendant in a civil action based upon a
4-23 communication or decision described in Section 137.002(a) may
4-24 recover the defendant's actual damages, other than costs and
4-25 reasonable attorneys' fees, reasonable expert witness fees, and
4-26 other reasonable litigation expenses, from the claimant if the
4-27 defendant proves that the action was brought in violation of
5-1 Chapter 9 or Chapter 10, Texas Civil Practice & Remedies Code.
5-2 (c) The defendant in a civil action based upon a
5-3 communication or decision described in Section 137.002(a) may
5-4 recover exemplary damages from the claimant if the defendant proves
5-5 that the action was brought for the purpose of harassment, to
5-6 inhibit the defendant's communication or decision, to retaliate for
5-7 such communication or decision, to interfere with the defendant's
5-8 exercise of protected constitutional rights, or to otherwise
5-9 wrongfully injure the defendant.
5-10 SECTION 2. This Act applies only to a claim filed on or
5-11 after the effective date of this Act. A claim filed before the
5-12 effective date of this Act is governed by the law applicable to the
5-13 claim immediately before the effective date of this Act, and that
5-14 law is continued in effect for that purpose.
5-15 SECTION 3. The importance of this legislation and the
5-16 crowded condition of the calendars in both houses create an
5-17 emergency and an imperative public necessity that the
5-18 constitutional rule requiring bills to be read on three several
5-19 days in each house be suspended, and this rule is hereby suspended,
5-20 and that this Act take effect and be in force from and after its
5-21 passage, and it is so enacted.