By Tillery H.B. No. 1834 77R5074 DAK-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to civil actions based on 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 138 to read as follows: 1-7 CHAPTER 138. CIVIL ACTIONS BASED ON COMMUNICATIONS OR DECISIONS 1-8 CONCERNING MATTERS PENDING BEFORE GOVERNMENTAL AGENCIES 1-9 Sec. 138.001. 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. 138.002. 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 on: 2-7 (1) a communication made to a governmental agency, a 2-8 public official, the public information media, or another person 2-9 that relates to a matter reasonably of concern to a governmental 2-10 agency or 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 that the communication or decision was not made in good 2-15 faith. 2-16 (c) The defense conferred by this section does 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 is in addition to 2-21 any other defense or immunity conferred by applicable law. 2-22 (e) This section does not create a cause of action. 2-23 Sec. 138.003. BURDEN OF PLEADING. (a) The claimant in a 2-24 civil action based on a communication or decision described by 2-25 Section 138.002(a) has the burden of pleading with particularity 2-26 all material facts that the claimant contends establish the right 2-27 to recovery, including all facts supporting the contention that the 3-1 communication or decision was not made in good faith. Each fact 3-2 asserted in the pleading must be verified by affidavit made on 3-3 personal knowledge unless the truth of the fact appears of record. 3-4 (b) The court shall, on motion by the defendant or on the 3-5 court's own motion, review the pleadings to determine compliance 3-6 with Subsection (a). 3-7 Sec. 138.004. VENUE. A civil action based on a 3-8 communication or decision described by Section 138.002(a) shall be 3-9 brought: 3-10 (1) in the county of the defendant's residence if the 3-11 defendant is a natural person; 3-12 (2) in the county in which the defendant's principal 3-13 office is located, if the defendant is not a natural person; or 3-14 (3) in the county in which the communication or 3-15 decision was made, if the defendant is a natural person who is not 3-16 a resident of this state or if the defendant is not a natural 3-17 person and does not have an office in this state. 3-18 Sec. 138.005. MOTION FOR SECURITY FOR COSTS AND EXPENSES. 3-19 (a) In a civil action based on a communication or decision 3-20 described by Section 138.002(a), the defendant may at any time file 3-21 a motion seeking security for costs and litigation expenses. The 3-22 motion shall be heard not later than the 30th day after the date 3-23 the motion is filed unless the docket conditions of the court 3-24 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 communication 3-27 or decision was not made in good faith. 4-1 (c) On granting a motion under this section, the court shall 4-2 require the claimant to post security in an amount sufficient to 4-3 secure the defendant's costs and reasonable attorney's fees, 4-4 reasonable expert witness fees, and other reasonable litigation 4-5 expenses. The amount of the security may be reviewed and adjusted 4-6 by the court at any time on motion of any party. 4-7 (d) If the claimant fails to post security in the required 4-8 amount not later than the 14th day after the date of the signing of 4-9 an order requiring security, the court shall promptly dismiss the 4-10 claimant's action 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. 138.006. LIABILITY FOR COSTS, EXPENSES, AND DAMAGES. 4-17 (a) A defendant who prevails in an action arising from a 4-18 communication or decision described by Section 138.002(a) may 4-19 recover from the claimant the defendant's: 4-20 (1) court costs; 4-21 (2) reasonable attorney's fees; 4-22 (3) reasonable expert witness fees; and 4-23 (4) other reasonable litigation expenses. 4-24 (b) In addition to recovering under Subsection (a), a 4-25 defendant may recover from the claimant: 4-26 (1) actual damages if the defendant shows that the 4-27 action was brought in violation of Chapter 10; and 5-1 (2) exemplary damages if the defendant shows that the 5-2 action was brought: 5-3 (A) for the purpose of harassment; 5-4 (B) to inhibit the defendant's communication or 5-5 decision; 5-6 (C) to retaliate for the defendant's 5-7 communication or decision; 5-8 (D) to interfere with the defendant's exercise 5-9 of protected constitutional rights; or 5-10 (E) to wrongfully injure the defendant in 5-11 another manner. 5-12 SECTION 2. (a) This Act takes effect immediately if it 5-13 receives a vote of two-thirds of all the members elected to each 5-14 house, as provided by Section 39, Article III, Texas Constitution. 5-15 If this Act does not receive the vote necessary for immediate 5-16 effect, this Act takes effect September 1, 2001. 5-17 (b) This Act applies only to a claim filed on or after the 5-18 effective date of this Act. A claim filed before the effective 5-19 date of this Act is governed by the law applicable to the claim 5-20 immediately before the effective date of this Act, and that law is 5-21 continued in effect for that purpose.