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.