By Longoria H.B. No. 254
77R958 AJA-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 111 to read as follows:
1-7 CHAPTER 111. VIOLATIONS OF THE TEXAS CONSTITUTION
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 111.001. 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 111.002-111.020 reserved for expansion
1-18 SUBCHAPTER B. LIABILITY OF GOVERNMENTAL UNITS
1-19 Sec. 111.021. 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. 111.022. EXEMPLARY DAMAGES. This chapter does not
2-13 authorize exemplary damages.
2-14 Sec. 111.023. 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. 111.024. 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. 111.025. 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 111.026-111.050 reserved for expansion
3-6 SUBCHAPTER C. EXCLUSIONS
3-7 Sec. 111.051. 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. 111.052. 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 111.053-111.100 reserved for expansion
3-21 SUBCHAPTER D. PROCEDURES
3-22 Sec. 111.101. 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 the 180th day after the date the incident giving rise to
3-25 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. 111.102. COMMENCEMENT OF SUIT. (a) A suit under this
4-6 chapter shall be brought in state court in a 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. 111.103. 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. 111.104. 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. 111.105. 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 of a settlement is not required under this
5-15 section if the governmental unit has acquired insurance under this
5-16 chapter.
5-17 Sec. 111.106. PAYMENT AND COLLECTION OF JUDGMENT. (a) A
5-18 judgment in a suit under this chapter may be enforced only in the
5-19 same manner and to the same extent as other judgments against the
5-20 governmental unit are enforceable as provided by law, unless the
5-21 governmental unit has liability or indemnity insurance protection,
5-22 in which case the holder of the judgment may collect the judgment,
5-23 to the extent of the insurer's liability, as provided in the
5-24 insurance or indemnity contract or policy or as otherwise provided
5-25 by law.
5-26 (b) A judgment or a portion of a judgment that is not
5-27 payable by an insurer need not be paid by a governmental unit until
6-1 the first fiscal year following the fiscal year in which the
6-2 judgment becomes final.
6-3 (c) If in a fiscal year the aggregate amount of judgments
6-4 against a governmental unit under this chapter that become final,
6-5 excluding the amount payable by an insurer, exceeds one percent of
6-6 the unit's budgeted tax funds for the fiscal year, excluding
6-7 general obligation debt service requirements, the governmental unit
6-8 may pay the judgments in equal annual installments for a period of
6-9 not more than five years. If payments are extended under this
6-10 subsection, the governmental unit shall pay interest on the unpaid
6-11 balance at the rate provided by law.
6-12 Sec. 111.107. AD VALOREM TAXES FOR PAYMENT OF JUDGMENT. (a)
6-13 A governmental unit not fully covered by liability insurance may
6-14 levy an ad valorem tax for the payment of any final judgment under
6-15 this chapter.
6-16 (b) If necessary to pay the amount of a judgment, the ad
6-17 valorem tax rate may exceed any legal tax rate limit applicable to
6-18 the governmental unit except a limit imposed by the Texas
6-19 Constitution.
6-20 SECTION 2. (a) This Act takes effect September 1, 2001.
6-21 (b) This Act applies only to a cause of action that accrues
6-22 on or after the effective date of this Act. A cause of action that
6-23 accrues before the effective date of this Act is governed by the
6-24 law applicable to the cause of action immediately before the
6-25 effective date of this Act and that law is continued in effect for
6-26 that purpose.