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.