By: Sibley, et al. S.B. No. 138
A BILL TO BE ENTITLED
AN ACT
1-1 relating to government restrictions on the exercise of religion.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Title 5, Civil Practice and Remedies Code, is
1-4 amended by adding Chapter 110 to read as follows:
1-5 CHAPTER 110. RELIGIOUS FREEDOM
1-6 Sec. 110.001. PURPOSE. The purpose of this chapter is to
1-7 codify the compelling interest test as set forth in Sherbert v.
1-8 Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205
1-9 (1972), as a statutory claim or defense and to guarantee its
1-10 application in all cases where the free exercise of religion is
1-11 substantially burdened.
1-12 Sec. 110.002. DEFINITIONS. In this chapter:
1-13 (1) "Free exercise of religion" means an act or
1-14 refusal to act that is substantially motivated by sincere religious
1-15 belief, without regard to whether the particular act or refusal to
1-16 act is motivated by:
1-17 (A) a central part or requirement of the larger
1-18 system of the person's sincere religious belief; or
1-19 (B) any other part of the larger system of the
1-20 person's sincere religious belief.
1-21 (2) "Government agency" means:
1-22 (A) this state or a municipality or other
1-23 political subdivision of this state; and
1-24 (B) any agency of this state or a municipality
2-1 or other political subdivision of this state, including a
2-2 department, bureau, board, commission, office, agency, council, or
2-3 public institution of higher education.
2-4 Sec. 110.003. APPLICATION. (a) This chapter applies to any
2-5 ordinance, rule, order, decision, practice, or other exercise of
2-6 governmental authority.
2-7 (b) This chapter applies to an act of a government agency,
2-8 in the exercise of governmental authority, granting or refusing to
2-9 grant a government benefit to an individual.
2-10 (c) This chapter applies to each law of this state unless
2-11 the law is expressly made exempt from the application of this
2-12 chapter by reference to this chapter.
2-13 Sec. 110.004. RELIGIOUS FREEDOM PROTECTED. (a) Subject to
2-14 Subsection (b), a government agency may not substantially burden a
2-15 person's free exercise of religion.
2-16 (b) Subsection (a) does not apply if the government agency
2-17 demonstrates that the application of the burden to the person:
2-18 (1) is in furtherance of a compelling governmental
2-19 interest; and
2-20 (2) is the least restrictive means of furthering that
2-21 interest.
2-22 (c) A government agency that makes the demonstration
2-23 required by Subsection (b) is not required to separately prove that
2-24 the remedy and penalty provisions of the law, ordinance, rule,
2-25 order, decision, practice, or other exercise of governmental
2-26 authority that imposes the substantial burden are the least
3-1 restrictive means to ensure compliance or to punish the failure to
3-2 comply.
3-3 (d) For purposes of this section, a valid ordinance, rule,
3-4 order, decision, or practice which applies to persons within the
3-5 custody of a county, the Texas Youth Commission, or the Texas
3-6 Department of Criminal Justice is presumed to be in furtherance of
3-7 a compelling governmental interest and the least restrictive means
3-8 of furthering that interest. The presumption may be rebutted.
3-9 Sec. 110.005. DEFENSE. A person whose free exercise of
3-10 religion has been substantially burdened in violation of Section
3-11 110.004 may assert that violation as a defense in a judicial or
3-12 administrative proceeding without regard to whether the proceeding
3-13 is brought in the name of the state or by any other person.
3-14 Sec. 110.006. REMEDIES. (a) Any person, other than a
3-15 government agency, who successfully asserts a claim or defense
3-16 under this chapter is entitled to recover:
3-17 (1) declaratory relief under Chapter 37;
3-18 (2) injunctive relief to prevent the threatened
3-19 violation or continued violation;
3-20 (3) compensatory damages for pecuniary and
3-21 nonpecuniary losses not to exceed $1,000; and
3-22 (4) reasonable attorney's fees, court costs, and other
3-23 reasonable expenses incurred in bringing the action.
3-24 (b) This chapter does not affect the application of Section
3-25 498.0045 or 501.008, Government Code, or Chapter 14 of this code.
3-26 Sec. 110.007. SOVEREIGN IMMUNITY WAIVED. Sovereign immunity
4-1 to suit and from liability is waived and abolished to the extent of
4-2 liability created by Section 110.006, and a claimant may sue a
4-3 government agency for damages allowed by that section.
4-4 Sec. 110.008. EFFECT ON RIGHTS. (a) This chapter does not
4-5 authorize a government agency to burden a person's free exercise of
4-6 religion.
4-7 (b) The protection of religious freedom afforded by this
4-8 chapter is in addition to the protections provided under federal
4-9 law and the constitutions of this state and the United States.
4-10 This chapter may not be construed to affect or interpret Section 4,
4-11 5, 6, or 7, Article I, Texas Constitution.
4-12 (c) Notwithstanding any other provision in this chapter,
4-13 municipalities shall have no less authority to adopt or apply laws
4-14 and regulations concerning zoning, land use planning, traffic
4-15 management, urban nuisance, or historic preservation than existed
4-16 under the Constitution of the United States as interpreted by
4-17 federal courts prior to April 17, 1990.
4-18 Sec. 110.009. GRANT TO RELIGIOUS ORGANIZATION NOT AFFECTED.
4-19 Notwithstanding Section 110.003(b), this chapter does not affect
4-20 the grant or denial of an appropriation or other grant of money or
4-21 benefits to a religious organization, nor does it affect the grant
4-22 or denial of a tax exemption to a religious organization.
4-23 SECTION 2. (a) Except as provided by Subsection (b) of this
4-24 section, this Act applies to a law of this state and to any
4-25 ordinance, rule, order, decision, practice, or other exercise of
4-26 governmental authority, without regard to whether the law,
5-1 ordinance, rule, order, decision, practice, or other exercise of
5-2 governmental authority was enacted, adopted, or taken before, on,
5-3 or after the effective date of this Act.
5-4 (b) A court may not award damages to a claimant who has been
5-5 injured by a violation of Chapter 110, Civil Practice and Remedies
5-6 Code, as added by this Act, to the extent that those damages were
5-7 incurred before January 1, 2000.
5-8 SECTION 3. The importance of this legislation and the
5-9 crowded condition of the calendars in both houses create an
5-10 emergency and an imperative public necessity that the
5-11 constitutional rule requiring bills to be read on three several
5-12 days in each house be suspended, and this rule is hereby suspended,
5-13 and that this Act take effect and be in force from and after its
5-14 passage, and it is so enacted.