1-1     By:  Raymond (Senate Sponsor - Shapleigh)             H.B. No. 2723
 1-2           (In the Senate - Received from the House May 11, 2001;
 1-3     May 11, 2001, read first time and referred to Committee on
 1-4     Jurisprudence; May 11, 2001, reported favorably by the following
 1-5     vote:  Yeas 5, Nays 1; May 11, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to civil actions involving persons who file complaints
 1-9     with governmental agencies.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Title 6, Civil Practice and Remedies Code, is
1-12     amended by adding Chapter 138 to read as follows:
1-13            CHAPTER 138.  CIVIL ACTIONS INVOLVING PERSONS MAKING
1-14                    COMPLAINTS WITH GOVERNMENTAL AGENCIES
1-15           Sec. 138.001.  DEFINITIONS.  In this chapter:
1-16                 (1)  "Bad faith" with respect to a claim made the basis
1-17     of a suit governed by this chapter means a claim that is:
1-18                       (A)  groundless; or
1-19                       (B)  brought for the purpose of:
1-20                             (i)  harassing or intimidating a
1-21     complainant; or
1-22                             (ii)  obtaining the withdrawal of a
1-23     complaint.
1-24                 (2)  "Complainant" means a person who makes a complaint
1-25     or who communicates information relevant to a complaint.
1-26                 (3)  "Complaint" means a written or oral statement,
1-27     report, or other communication made to or kept by a governmental
1-28     agency or quasi-governmental entity.
1-29                 (4)  "Exemplary damages" has the meaning assigned by
1-30     Chapter 41.
1-31                 (5)  "Good faith" with respect to a claim made the
1-32     basis of a suit governed by this chapter means that at the time the
1-33     complaint was filed or intended to be filed the complainant had:
1-34                       (A)  any reasonable basis in fact for making the
1-35     complaint; and
1-36                       (B)  any reasonable basis to believe that the
1-37     governmental agency or quasi-governmental entity to which the
1-38     complaint was made had authority or jurisdiction to receive the
1-39     complaint.
1-40                 (6)  "Governmental agency" means:
1-41                       (A)  this state, another state of the United
1-42     States, or the United States;
1-43                       (B)  any court, institution, agency, political
1-44     subdivision, or organ of government established by the constitution
1-45     or laws of this state, of another state of the United States, or of
1-46     the United States, including a department, bureau, board,
1-47     commission, office, or council; or
1-48                       (C)  a law enforcement agency.
1-49                 (7)  "Groundless" means:
1-50                       (A)  without basis in fact; or
1-51                       (B)  not warranted by existing law or a good
1-52     faith argument for the extension, modification, or reversal of
1-53     existing law.
1-54                 (8)  "Harassing conduct" means conduct intended or
1-55     reasonably calculated to threaten, intimidate, coerce, or mislead a
1-56     complainant through the use or threat of:
1-57                       (A)  physical force against a person or property;
1-58                       (B)  injury or damage to a person's personal or
1-59     business reputation;
1-60                       (C)  invasion of a person's right to privacy;
1-61                       (D)  a tortious or injurious act intended or
1-62     likely to cause economic damage or severe emotional distress to a
1-63     person;
1-64                       (E)  communication of information relevant to a
 2-1     complaint known by the person communicating the information to be
 2-2     false at the time it was communicated; or
 2-3                       (F)  an act in violation of the constitution or a
 2-4     penal law of this state, another state of the United States, or the
 2-5     United States.
 2-6                 (9)  "Quasi-governmental entity" means a person who,
 2-7     under law or under a formal or informal request by, agreement with,
 2-8     delegation of authority by, or rule adopted by a governmental
 2-9     agency:
2-10                       (A)  receives or reviews complaints for the
2-11     agency; or
2-12                       (B)  performs a function of the agency.
2-13           Sec. 138.002.  APPLICABILITY; VENUE; REMOVAL.  (a)  This
2-14     chapter applies only to a claim made a basis of a suit filed:
2-15                 (1)  against a complainant that:
2-16                       (A)  is filed by or on behalf of a person who may
2-17     be adversely affected by the filing of the complaint; and
2-18                       (B)  alleges that the contents of or the filing
2-19     of the complaint constitutes a basis for relief, including a claim
2-20     alleging that the contents of the complaint constitute libel or
2-21     slander; or
2-22                 (2)  by or on behalf of a complainant alleging conduct
2-23     giving rise to liability under Section 138.004.
2-24           (b)  Notwithstanding Subsection (a)(1), this chapter does not
2-25     apply to a claim if:
2-26                 (1)  the complaint is confidential by other law and not
2-27     a public record available to a member of the public who is not
2-28     affected by the complaint and the complainant communicated the
2-29     contents of the complaint to a person other than to the
2-30     governmental agency or quasi-governmental entity that initially
2-31     received or reviewed the complaint; or
2-32                 (2)  the complainant is an employee or former employee
2-33     of the person who is the subject of the complaint.
2-34           (c)  This chapter does not create or authorize a cause of
2-35     action against a quasi-governmental entity, a governmental unit, or
2-36     their officers, agents, or employees acting in the course and scope
2-37     of their duties or employment.  Notwithstanding Chapter 104, the
2-38     state is not liable for indemnification of a person for damages
2-39     arising under this chapter.
2-40           (d)  A claim governed by this chapter shall be brought:
2-41                 (1)  in the county of the complainant's residence if
2-42     the complainant is a natural person;
2-43                 (2)  in the county in which the complainant's principal
2-44     office is located if the complainant is not a natural person; or
2-45                 (3)  in the county in which the complaint was made, if
2-46     the complainant:
2-47                       (A)  is a natural person who is not a resident of
2-48     this state; or
2-49                       (B)  is not a natural person and does not have an
2-50     office in this state.
2-51           (e)  Notwithstanding any other law, on motion of the
2-52     complainant, a claim governed by this chapter that is brought in a
2-53     court other than a district court may be removed to a district
2-54     court in which venue is authorized under Subsection (d).
2-55           Sec. 138.003.  NO LIABILITY FOR GOOD FAITH COMPLAINT.  (a)  A
2-56     complainant who makes a complaint in good faith is not:
2-57                 (1)  liable for monetary damages arising from the
2-58     complaint; or
2-59                 (2)  subject to injunctive or declaratory relief with
2-60     respect to the complaint.
2-61           (b)  There is a rebuttable presumption that a complaint is
2-62     made in good faith.
2-63           (c)  A complainant may establish the elements of good faith
2-64     by demonstrating that:
2-65                 (1)  a reasonably prudent person, under the same or
2-66     similar circumstances, could have believed that a reasonable basis
2-67     in fact existed for making the complaint; and
2-68                 (2)  a reasonably prudent person, under the same or
2-69     similar circumstances, could have believed that the governmental
 3-1     agency or quasi-governmental entity to which the complaint was made
 3-2     had authority or jurisdiction to receive or review the complaint.
 3-3           (d)  A person asserting a claim described by Section
 3-4     138.002(a)(1) shall, as a condition precedent to stating a cause of
 3-5     action for which relief may be granted, have the burden of pleading
 3-6     with particularity all material facts that the person contends
 3-7     establish the right to recovery, including all facts supporting the
 3-8     contention that the complainant did not act in good faith.  Each
 3-9     fact asserted in the pleading must be verified by affidavit made on
3-10     personal knowledge unless the truth of the fact appears of record. 
3-11           (e)  The court shall, on motion by the complainant or on the
3-12     court's own motion, review the pleadings to determine compliance
3-13     with Subsection (d).
3-14           Sec. 138.004.  LIABILITY FOR HARASSING CONDUCT; EXEMPLARY
3-15     DAMAGES AUTHORIZED.  (a)  A person is liable for damages to a
3-16     complainant and is subject to injunctive or declaratory relief if
3-17     the complainant demonstrates by a preponderance of the evidence
3-18     that:
3-19                 (1)  the complainant made or intended to make a
3-20     complaint in good faith;
3-21                 (2)  the person committed or caused to be committed
3-22     harassing conduct against the complainant; and
3-23                 (3)  the harassing conduct was committed to:
3-24                       (A)  obtain the withdrawal of the complaint;
3-25                       (B)  prevent or limit the complainant's
3-26     participation in a formal or informal investigation or proceeding
3-27     by a governmental agency or quasi-governmental entity arising from
3-28     or relating to the complaint;
3-29                       (C)  prevent the filing of the complaint; or
3-30                       (D)  retaliate for the complaint.
3-31           (b)  If the trier of fact determines that a complainant has
3-32     demonstrated facts proving liability under Subsection (a), judgment
3-33     may be entered awarding the complainant:
3-34                 (1)  actual damages;
3-35                 (2)  attorney's fees and costs under Section 138.007;
3-36     and
3-37                 (3)  notwithstanding Chapter 41, exemplary damages in
3-38     an amount equal to five times the amount of attorney's fees and
3-39     costs awarded under Section 138.007.
3-40           Sec. 138.005.  BAD FAITH CLAIMS; EXEMPLARY DAMAGES
3-41     AUTHORIZED.  (a)  If the trier of fact determines that a claim
3-42     described by Section 138.002(a)(1) was brought in bad faith,
3-43     judgment may be entered awarding the complainant:
3-44                 (1)  actual damages;
3-45                 (2)  attorney's fees and costs under Section 138.007;
3-46     and
3-47                 (3)  notwithstanding Chapter 41, exemplary damages in
3-48     an amount equal to five times the amount of attorney's fees and
3-49     costs awarded under Section 138.007.
3-50           (b)  A person against whom judgment is entered under this
3-51     section and the person's attorney are jointly and severally liable
3-52     for damages awarded under this section.
3-53           Sec. 138.006.  SUMMARY JUDGMENT; EXPEDITED HEARING TO
3-54     DETERMINE BAD FAITH CLAIM.  (a)  The court shall promptly grant
3-55     summary judgment with respect to a claim described by Section
3-56     138.002(a)(1) if:
3-57                 (1)  the complainant demonstrates that a complaint was
3-58     made in good faith under Section 138.003(c); or
3-59                 (2)  the pleadings fail to allege:
3-60                       (A)  a cause of action against the complainant
3-61     for which relief may be granted; or
3-62                       (B)  facts sufficient to rebut the presumption
3-63     that the complaint was filed in good faith.
3-64           (b)  On motion of the complainant, a court that grants
3-65     summary judgment under Subsection (a) shall promptly hold a hearing
3-66     to determine whether the claim was brought in bad faith.
3-67           (c)  A complainant must file the motion for an expedited
3-68     hearing under Subsection (b) not later than the 30th day after the
3-69     date on which the order granting summary judgment is signed.  On
 4-1     request of a party, the hearing shall be before a jury.  The Texas
 4-2     Rules of Civil Procedure apply to the selection of the jury, the
 4-3     court's charge to the jury, and all other aspects of the
 4-4     proceedings.
 4-5           (d)  On motion of the complainant in a case involving three
 4-6     or more parties, the court shall sever the claims as necessary to
 4-7     allow relief granted under Subsection (a) or Section 138.005 to
 4-8     become immediately final and appealable.
 4-9           Sec. 138.007.  ATTORNEY'S FEES.  A complainant is entitled to
4-10     recover costs of court and reasonable and necessary attorney's fees
4-11     if judgment is entered holding:
4-12                 (1)  a complaint made the basis of a suit under Section
4-13     138.002(a)(1) was filed in good faith; or
4-14                 (2)  a person is liable to the complainant under
4-15     Section 138.004.
4-16           Sec. 138.008.  PROFESSIONAL DISCIPLINE.  (a)  If judgment is
4-17     entered against an attorney under Section 138.005(b), the attorney
4-18     is subject to professional discipline for professional misconduct
4-19     in accordance with Subchapter E, Chapter 81, Government Code, and
4-20     to suspension or disbarment for dishonorable conduct under Section
4-21     82.062, Government Code.
4-22           (b)  The court shall promptly report a judgment described by
4-23     Subsection (a) to an appropriate grievance committee under Chapter
4-24     81, Government Code, or under a similar law in any jurisdiction in
4-25     which the attorney resides or is licensed.
4-26           (c)  A report under Subsection (b) must contain:
4-27                 (1)  the name of the attorney against whom judgment was
4-28     entered;
4-29                 (2)  the jury verdict or findings of fact by the court;
4-30     and
4-31                 (3)  the judgment.
4-32           Sec. 138.009.  CERTAIN ORDERS PROHIBITED.  A court of this
4-33     state may not issue a temporary restraining order, temporary
4-34     injunction, permanent injunction, or other order prohibiting a
4-35     complainant from communicating with a governmental agency or
4-36     quasi-governmental entity concerning the subject matter of a
4-37     complaint or a claim governed by this chapter.
4-38           SECTION 2.  This Act applies only to a claim described by
4-39     Section 138.002, Civil Practice and Remedies Code, as added by this
4-40     Act, filed on or after the effective date of this Act.  A claim
4-41     filed before the effective date of this Act is governed by the law
4-42     applicable to the claim immediately before the effective date of
4-43     this Act, and that law is continued in effect for that purpose.
4-44           SECTION 3.  This Act takes effect September 1, 2001.
4-45                                  * * * * *