By Raymond H.B. No. 2723
77R8298 YDB-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil actions involving persons who file complaints
1-3 with 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 INVOLVING PERSONS MAKING
1-8 COMPLAINTS WITH GOVERNMENTAL AGENCIES
1-9 Sec. 138.001. DEFINITIONS. In this chapter:
1-10 (1) "Bad faith" with respect to a claim made the basis
1-11 of a suit governed by this chapter means a claim that is:
1-12 (A) groundless; or
1-13 (B) brought for the purpose of:
1-14 (i) harassing or intimidating a
1-15 complainant; or
1-16 (ii) obtaining the withdrawal of a
1-17 complaint.
1-18 (2) "Complainant" means a person who makes a complaint
1-19 or who communicates information relevant to a complaint.
1-20 (3) "Complaint" means a written or oral statement,
1-21 report, or other communication made to or kept by a governmental
1-22 agency or quasi-governmental entity.
1-23 (4) "Exemplary damages" has the meaning assigned by
1-24 Chapter 41.
2-1 (5) "Good faith" with respect to a claim made the
2-2 basis of a suit governed by this chapter means that at the time the
2-3 complaint was filed or intended to be filed the complainant had:
2-4 (A) any reasonable basis in fact for making the
2-5 complaint; and
2-6 (B) any reasonable basis to believe that the
2-7 governmental agency or quasi-governmental entity to which the
2-8 complaint was made had authority or jurisdiction to receive the
2-9 complaint.
2-10 (6) "Governmental agency" means:
2-11 (A) this state, another state of the United
2-12 States, or the United States;
2-13 (B) any court, institution, agency, political
2-14 subdivision, or organ of government established by the constitution
2-15 or laws of this state, of another state of the United States, or of
2-16 the United States, including a department, bureau, board,
2-17 commission, office, or council; or
2-18 (C) a law enforcement agency.
2-19 (7) "Groundless" means:
2-20 (A) without basis in fact; or
2-21 (B) not warranted by existing law or a good
2-22 faith argument for the extension, modification, or reversal of
2-23 existing law.
2-24 (8) "Harassing conduct" means conduct intended or
2-25 reasonably calculated to threaten, intimidate, coerce, or mislead a
2-26 complainant through the use or threat of:
2-27 (A) physical force against a person or property;
3-1 (B) injury or damage to a person's personal or
3-2 business reputation;
3-3 (C) invasion of a person's right to privacy;
3-4 (D) a tortious or injurious act intended or
3-5 likely to cause economic damage or severe emotional distress to a
3-6 person;
3-7 (E) communication of information relevant to a
3-8 complaint known by the person communicating the information to be
3-9 false at the time it was communicated; or
3-10 (F) an act in violation of the constitution or a
3-11 penal law of this state, another state of the United States, or the
3-12 United States.
3-13 (9) "Quasi-governmental entity" means a person who,
3-14 under law or under a formal or informal request by, agreement with,
3-15 delegation of authority by, or rule adopted by a governmental
3-16 agency:
3-17 (A) receives or reviews complaints for the
3-18 agency; or
3-19 (B) performs a function of the agency.
3-20 Sec. 138.002. APPLICABILITY; VENUE; REMOVAL. (a) This
3-21 chapter applies only to a claim made a basis of a suit filed:
3-22 (1) against a complainant that:
3-23 (A) is filed by or on behalf of a person who may
3-24 be adversely affected by the filing of the complaint; and
3-25 (B) alleges that the contents of or the filing
3-26 of the complaint constitutes a basis for relief, including a claim
3-27 alleging that the contents of the complaint constitute libel or
4-1 slander; or
4-2 (2) by or on behalf of a complainant alleging conduct
4-3 giving rise to liability under Section 138.004.
4-4 (b) Notwithstanding Subsection (a)(1), this chapter does not
4-5 apply to a claim if:
4-6 (1) the complaint is confidential by other law and not
4-7 a public record available to a member of the public who is not
4-8 affected by the complaint and the complainant communicated the
4-9 contents of the complaint to a person other than to the
4-10 governmental agency or quasi-governmental entity that initially
4-11 received or reviewed the complaint; or
4-12 (2) the complainant is an employee or former employee
4-13 of the person who is the subject of the complaint.
4-14 (c) This chapter does not create or authorize a cause of
4-15 action against a quasi-governmental entity, a governmental unit, or
4-16 their officers, agents, or employees acting in the course and scope
4-17 of their duties or employment. Notwithstanding Chapter 104, the
4-18 state is not liable for indemnification of a person for damages
4-19 arising under this chapter.
4-20 (d) A claim governed by this chapter shall be brought:
4-21 (1) in the county of the complainant's residence if
4-22 the complainant is a natural person;
4-23 (2) in the county in which the complainant's principal
4-24 office is located if the complainant is not a natural person; or
4-25 (3) in the county in which the complaint was made, if
4-26 the complainant:
4-27 (A) is a natural person who is not a resident of
5-1 this state; or
5-2 (B) is not a natural person and does not have an
5-3 office in this state.
5-4 (e) Notwithstanding any other law, on motion of the
5-5 complainant, a claim governed by this chapter that is brought in a
5-6 court other than a district court may be removed to a district
5-7 court in which venue is authorized under Subsection (d).
5-8 Sec. 138.003. NO LIABILITY FOR GOOD FAITH COMPLAINT. (a) A
5-9 complainant who makes a complaint in good faith is not:
5-10 (1) liable for monetary damages arising from the
5-11 complaint; or
5-12 (2) subject to injunctive or declaratory relief with
5-13 respect to the complaint.
5-14 (b) There is a rebuttable presumption that a complaint is
5-15 made in good faith.
5-16 (c) A complainant may establish the elements of good faith
5-17 by demonstrating that:
5-18 (1) a reasonably prudent person, under the same or
5-19 similar circumstances, could have believed that a reasonable basis
5-20 in fact existed for making the complaint; and
5-21 (2) a reasonably prudent person, under the same or
5-22 similar circumstances, could have believed that the governmental
5-23 agency or quasi-governmental entity to which the complaint was made
5-24 had authority or jurisdiction to receive or review the complaint.
5-25 (d) A person asserting a claim described by Section
5-26 138.002(a)(1) shall, as a condition precedent to stating a cause of
5-27 action for which relief may be granted, have the burden of pleading
6-1 with particularity all material facts that the person contends
6-2 establish the right to recovery, including all facts supporting the
6-3 contention that the complainant did not act in good faith. Each
6-4 fact asserted in the pleading must be verified by affidavit made on
6-5 personal knowledge unless the truth of the fact appears of record.
6-6 (e) The court shall, on motion by the complainant or on the
6-7 court's own motion, review the pleadings to determine compliance
6-8 with Subsection (d).
6-9 Sec. 138.004. LIABILITY FOR HARASSING CONDUCT; EXEMPLARY
6-10 DAMAGES AUTHORIZED. (a) A person is liable for damages to a
6-11 complainant and is subject to injunctive or declaratory relief if
6-12 the complainant demonstrates by a preponderance of the evidence
6-13 that:
6-14 (1) the complainant made or intended to make a
6-15 complaint in good faith;
6-16 (2) the person committed or caused to be committed
6-17 harassing conduct against the complainant; and
6-18 (3) the harassing conduct was committed to:
6-19 (A) obtain the withdrawal of the complaint;
6-20 (B) prevent or limit the complainant's
6-21 participation in a formal or informal investigation or proceeding
6-22 by a governmental agency or quasi-governmental entity arising from
6-23 or relating to the complaint;
6-24 (C) prevent the filing of the complaint; or
6-25 (D) retaliate for the complaint.
6-26 (b) If the trier of fact determines that a complainant has
6-27 demonstrated facts proving liability under Subsection (a), judgment
7-1 may be entered awarding the complainant:
7-2 (1) actual damages;
7-3 (2) attorney's fees and costs under Section 138.007;
7-4 and
7-5 (3) notwithstanding Chapter 41, exemplary damages in
7-6 an amount equal to five times the amount of attorney's fees and
7-7 costs awarded under Section 138.007.
7-8 Sec. 138.005. BAD FAITH CLAIMS; EXEMPLARY DAMAGES
7-9 AUTHORIZED. (a) If the trier of fact determines that a claim
7-10 described by Section 138.002(a)(1) was brought in bad faith,
7-11 judgment may be entered awarding the complainant:
7-12 (1) actual damages;
7-13 (2) attorney's fees and costs under Section 138.007;
7-14 and
7-15 (3) notwithstanding Chapter 41, exemplary damages in
7-16 an amount equal to five times the amount of attorney's fees and
7-17 costs awarded under Section 138.007.
7-18 (b) A person against whom judgment is entered under this
7-19 section and the person's attorney are jointly and severally liable
7-20 for damages awarded under this section.
7-21 Sec. 138.006. SUMMARY JUDGMENT; EXPEDITED HEARING TO
7-22 DETERMINE BAD FAITH CLAIM. (a) The court shall promptly grant
7-23 summary judgment with respect to a claim described by Section
7-24 138.002(a)(1) if:
7-25 (1) the complainant demonstrates that a complaint was
7-26 made in good faith under Section 138.003(c); or
7-27 (2) the pleadings fail to allege:
8-1 (A) a cause of action against the complainant
8-2 for which relief may be granted; or
8-3 (B) facts sufficient to rebut the presumption
8-4 that the complaint was filed in good faith.
8-5 (b) On motion of the complainant, a court that grants
8-6 summary judgment under Subsection (a) shall promptly hold a hearing
8-7 to determine whether the claim was brought in bad faith.
8-8 (c) A complainant must file the motion for an expedited
8-9 hearing under Subsection (b) not later than the 30th day after the
8-10 date on which the order granting summary judgment is signed. On
8-11 request of a party, the hearing shall be before a jury. The Texas
8-12 Rules of Civil Procedure apply to the selection of the jury, the
8-13 court's charge to the jury, and all other aspects of the
8-14 proceedings.
8-15 (d) On motion of the complainant in a case involving three
8-16 or more parties, the court shall sever the claims as necessary to
8-17 allow relief granted under Subsection (a) or Section 138.005 to
8-18 become immediately final and appealable.
8-19 Sec. 138.007. ATTORNEY'S FEES. A complainant is entitled to
8-20 recover costs of court and reasonable and necessary attorney's fees
8-21 if judgment is entered holding:
8-22 (1) a complaint made the basis of a suit under Section
8-23 138.002(a)(1) was filed in good faith; or
8-24 (2) a person is liable to the complainant under
8-25 Section 138.004.
8-26 Sec. 138.008. PROFESSIONAL DISCIPLINE. (a) If judgment is
8-27 entered against an attorney under Section 138.005(b), the attorney
9-1 is subject to professional discipline for professional misconduct
9-2 in accordance with Subchapter E, Chapter 81, Government Code, and
9-3 to suspension or disbarment for dishonorable conduct under Section
9-4 82.062, Government Code.
9-5 (b) The court shall promptly report a judgment described by
9-6 Subsection (a) to an appropriate grievance committee under Chapter
9-7 81, Government Code, or under a similar law in any jurisdiction in
9-8 which the attorney resides or is licensed.
9-9 (c) A report under Subsection (b) must contain:
9-10 (1) the name of the attorney against whom judgment was
9-11 entered;
9-12 (2) the jury verdict or findings of fact by the court;
9-13 and
9-14 (3) the judgment.
9-15 Sec. 138.009. CERTAIN ORDERS PROHIBITED. A court of this
9-16 state may not issue a temporary restraining order, temporary
9-17 injunction, permanent injunction, or other order prohibiting a
9-18 complainant from communicating with a governmental agency or
9-19 quasi-governmental entity concerning the subject matter of a
9-20 complaint or a claim governed by this chapter.
9-21 SECTION 2. This Act applies only to a claim described by
9-22 Section 138.002, Civil Practice and Remedies Code, as added by this
9-23 Act, filed on or after the effective date of this Act. A claim
9-24 filed before the effective date of this Act is governed by the law
9-25 applicable to the claim immediately before the effective date of
9-26 this Act, and that law is continued in effect for that purpose.
9-27 SECTION 3. This Act takes effect September 1, 2001.