76R14035 E
By Sibley, et al. S.B. No. 138
Substitute the following for S.B. No. 138:
By Wolens C.S.S.B. No. 138
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to government restrictions on the exercise of religion.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 5, Civil Practice and Remedies Code, is
1-5 amended by adding Chapter 110 to read as follows:
1-6 CHAPTER 110. RELIGIOUS FREEDOM
1-7 Sec. 110.001. DEFINITIONS. (a) In this chapter:
1-8 (1) "Free exercise of religion" means an act or
1-9 refusal to act that is substantially motivated by sincere religious
1-10 belief. In determining whether an act or refusal to act is
1-11 substantially motivated by sincere religious belief under this
1-12 chapter, it is not necessary to determine that the act or refusal
1-13 to act is motivated by a central part or central requirement of the
1-14 person's sincere religious belief.
1-15 (2) "Government agency" means:
1-16 (A) this state or a municipality or other
1-17 political subdivision of this state; and
1-18 (B) any agency of this state or a municipality
1-19 or other political subdivision of this state, including a
1-20 department, bureau, board, commission, office, agency, council, or
1-21 public institution of higher education.
1-22 (b) In determining whether an interest is a compelling
1-23 governmental interest under Section 110.003, a court shall give
1-24 weight to the interpretation of compelling interest in federal case
2-1 law relating to the free exercise of religion clause of the First
2-2 Amendment of the United States Constitution.
2-3 Sec. 110.002. APPLICATION. (a) This chapter applies to any
2-4 ordinance, rule, order, decision, practice, or other exercise of
2-5 governmental authority.
2-6 (b) This chapter applies to an act of a government agency,
2-7 in the exercise of governmental authority, granting or refusing to
2-8 grant a government benefit to an individual.
2-9 (c) This chapter applies to each law of this state unless
2-10 the law is expressly made exempt from the application of this
2-11 chapter by reference to this chapter.
2-12 Sec. 110.003. RELIGIOUS FREEDOM PROTECTED. (a) Subject to
2-13 Subsection (b), a government agency may not substantially burden a
2-14 person's free exercise of religion.
2-15 (b) Subsection (a) does not apply if the government agency
2-16 demonstrates that the application of the burden to the person:
2-17 (1) is in furtherance of a compelling governmental
2-18 interest; and
2-19 (2) is the least restrictive means of furthering that
2-20 interest.
2-21 (c) A government agency that makes the demonstration
2-22 required by Subsection (b) is not required to separately prove that
2-23 the remedy and penalty provisions of the law, ordinance, rule,
2-24 order, decision, practice, or other exercise of governmental
2-25 authority that imposes the substantial burden are the least
2-26 restrictive means to ensure compliance or to punish the failure to
2-27 comply.
3-1 (d) For purposes of this section, a valid ordinance, rule,
3-2 order, decision, or practice that applies to a person in the
3-3 custody of a county or municipal jail or other correctional
3-4 facility operated by or under a contract with a county, a
3-5 municipality, the Texas Youth Commission, or the Texas Department
3-6 of Criminal Justice is presumed to be in furtherance of a
3-7 compelling governmental interest and the least restrictive means of
3-8 furthering that interest. The presumption may be rebutted.
3-9 Sec. 110.004. DEFENSE. A person whose free exercise of
3-10 religion has been substantially burdened in violation of Section
3-11 110.003 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. 110.005. 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; and
3-22 (4) reasonable attorney's fees, court costs, and other
3-23 reasonable expenses incurred in bringing the action.
3-24 (b) Compensatory damages awarded under Subsection (a)(3) may
3-25 not exceed $10,000 for each entire, distinct controversy, without
3-26 regard to the number of members or other persons within a religious
3-27 group who claim injury as a result of the government agency's
4-1 exercise of governmental authority. A claimant is not entitled to
4-2 recover exemplary damages under this chapter.
4-3 (c) An action under this section must be brought in district
4-4 court.
4-5 (d) A person may not bring an action for damages or
4-6 injuctive relief against an individual, other than an action
4-7 brought against an individual acting in the individual's official
4-8 capacity as an officer of a government agency.
4-9 (e) This chapter does not affect the application of Section
4-10 498.0045 or 501.008, Government Code, or Chapter 14 of this code.
4-11 Sec. 110.006. NOTICE; RIGHT TO ACCOMMODATE. (a) A person
4-12 may not bring an action to assert a claim under this chapter
4-13 unless, 60 days before bringing the action, the person gives
4-14 written notice to the government agency by certified mail, return
4-15 receipt requested:
4-16 (1) that the person's free exercise of religion is
4-17 substantially burdened by an exercise of the government agency's
4-18 governmental authority;
4-19 (2) of the particular act or refusal to act that is
4-20 burdened; and
4-21 (3) of the manner in which the exercise of
4-22 governmental authority burdens the act or refusal to act.
4-23 (b) Notwithstanding Subsection (a), a claimant may, within
4-24 the 60-day period established by Subsection (a), bring an action
4-25 for declaratory or injunctive relief and associated attorney's
4-26 fees, court costs, and other reasonable expenses, if:
4-27 (1) the exercise of governmental authority that
5-1 threatens to substantially burden the person's free exercise of
5-2 religion is imminent; and
5-3 (2) the person was not informed and did not otherwise
5-4 have knowledge of the exercise of the governmental authority in
5-5 time to reasonably provide the notice.
5-6 (c) A government agency that receives a notice under
5-7 Subsection (a) may remedy the substantial burden on the person's
5-8 free exercise of religion.
5-9 (d) A remedy implemented by a government agency under this
5-10 section:
5-11 (1) may be designed to reasonably remove the
5-12 substantial burden on the person's free exercise of religion;
5-13 (2) need not be implemented in a manner that results
5-14 in an exercise of governmental authority that is the least
5-15 restrictive means of furthering the governmental interest,
5-16 notwithstanding any other provision of this chapter; and
5-17 (3) must be narrowly tailored to remove the particular
5-18 burden for which the remedy is implemented.
5-19 (e) A person with respect to whom a substantial burden on
5-20 the person's free exercise of religion has been cured by a remedy
5-21 implemented under this section may not bring an action under
5-22 Section 110.005.
5-23 Sec. 110.007. ONE-YEAR LIMITATIONS PERIOD. (a) A person
5-24 must bring an action to assert a claim for damages under this
5-25 chapter not later than one year after the date the person knew or
5-26 should have known of the substantial burden on the person's free
5-27 exercise of religion.
6-1 (b) Mailing notice under Section 110.006 tolls the
6-2 limitations period established under this section until the 75th
6-3 day after the date on which the notice was mailed.
6-4 Sec. 110.008. SOVEREIGN IMMUNITY WAIVED. (a) Subject to
6-5 Section 110.006, sovereign immunity to suit and from liability is
6-6 waived and abolished to the extent of liability created by Section
6-7 110.005, and a claimant may sue a government agency for damages
6-8 allowed by that section.
6-9 (b) Notwithstanding Subsection (a), this chapter does not
6-10 waive or abolish sovereign immunity to suit and from liability
6-11 under the Eleventh Amendment to the United States Constitution.
6-12 Sec. 110.009. EFFECT ON RIGHTS. (a) This chapter does not
6-13 authorize a government agency to burden a person's free exercise of
6-14 religion.
6-15 (b) The protection of religious freedom afforded by this
6-16 chapter is in addition to the protections provided under federal
6-17 law and the constitutions of this state and the United States.
6-18 This chapter may not be construed to affect or interpret Section 4,
6-19 5, 6, or 7, Article I, Texas Constitution.
6-20 Sec. 110.010. APPLICATION TO CERTAIN CASES. Notwithstanding
6-21 any other provision of this chapter, a municipality has no less
6-22 authority to adopt or apply laws and regulations concerning zoning,
6-23 land use planning, traffic management, urban nuisance, or historic
6-24 preservation than the authority of the municipality that existed
6-25 under the law as interpreted by the federal courts before April 17,
6-26 1990. This chapter does not affect the authority of a municipality
6-27 to adopt or apply laws and regulations as that authority has been
7-1 interpreted by any court in cases that do not involve the free
7-2 exercise of religion.
7-3 Sec. 110.011. NO EFFECT ON CIVIL RIGHTS. This chapter does
7-4 not establish or eliminate a defense to a civil action or criminal
7-5 prosecution under a federal or state civil rights law. This
7-6 chapter does not affect existing law regarding employment or
7-7 education of those who perform duties such as teaching or spreading
7-8 the faith, performing devotional services, or church governance for
7-9 an organization whose primary purpose and function is religious.
7-10 Sec. 110.012. GRANT TO RELIGIOUS ORGANIZATION NOT AFFECTED.
7-11 Notwithstanding Section 110.002(b), this chapter does not affect
7-12 the grant or denial of an appropriation or other grant of money or
7-13 benefits to a religious organization, nor does it affect the grant
7-14 or denial of a tax exemption to a religious organization.
7-15 SECTION 2. This Act applies only to a cause of action that
7-16 accrues on or after the effective date of this Act. A cause of
7-17 action that accrues before the effective date of this Act is
7-18 governed by the law as it existed immediately before the effective
7-19 date of this Act, and that law is continued in effect for this
7-20 purpose.
7-21 SECTION 3. The importance of this legislation and the
7-22 crowded condition of the calendars in both houses create an
7-23 emergency and an imperative public necessity that the
7-24 constitutional rule requiring bills to be read on three several
7-25 days in each house be suspended, and this rule is hereby suspended.