BILL ANALYSIS

 

 

 

H.B. 1338

By: Leibowitz

Judiciary & Civil Jurisprudence

Committee Report (Unamended)

 

 

 

BACKGROUND AND PURPOSE

 

A person (complainant) who provides information or testimony to governmental entities may be subject to various forms of harassing lawsuits by a party affected by the testimony of the person.  These are commonly called SLAPP suits (strategic lawsuits against public participation) the goal of which is to stifle free speech.  Under current law, the only way to avoid liability in a harassment suit is a final verdict, which requires a person to incur attorney and court costs. 

 

H.B. 1338 establishes that civil actions against persons filing complaints with governmental agencies or quasi-governmental entities apply only to a claim made a basis of a suit filed against a complainant that is filed by or on behalf of a person who may be adversely affected by the filing of the complaint and alleges that the contents of the filing or the complaint constitute a basis for relief, including a claim alleging that the contents of the complaint constitute libel or slander, or a suit filed by or on behalf of a complainant alleging harassing conduct giving rise to liability.

RULEMAKING AUTHORITY

 

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

 

H.B. 1338 amends the Civil Practice and Remedies Code to add provisions on civil actions against persons filing complaints with governmental agencies or quasi-governmental agencies.

 

General Provisions.

 

 H.B. 1338 makes its provisions applicable only to a claim made a basis of a suit filed against a complainant that is filed by or on behalf of a person who may be adversely affected by the filing of the complaint and that alleges that the contents of the filing of the complaint constitutes a basis for relief, including a claim alleging that the contents of the complaint constitute libel or slander, or a suit filed by or on behalf of a complainant alleging harassing conduct giving rise to liability.  The bill makes its provisions inapplicable to a claim if the complaint is confidential by other law and not public record available to a member of the public who is not affected by the complaint and the complainant communicated the contents of the complaint to a person other than to the governmental agency or quasi-governmental entity that initially received or reviewed the complaint; the complainant is an employee or former employee of the person who is the subject of the complaint; or the contents of the complaint related to a matter that is pending before a governmental agency or quasi-governmental entity. 

 

H.B. 1338 establishes that its provisions do not create or authorize a cause of action against a quasi-governmental entity, a governmental unit, or their officers, agents, or employees acting in the course and scope of their duties or employment.  The bill specifies that the state is not liable for indemnification of a person for damages arising under its provisions. 

 

H.B. 1338 sets forth venue provisions.  The bill allows a person against whom a claim is brought to file a plea to the jurisdiction requesting immediate dismissal of the claim if the bill's provisions do not apply to the claim under provisions on a matter pending before a governmental or quasi-governmental entity.  The bill requires a court, on a motion of a party or on its own motion, if after dismissal the claim is brought again, to impose sanctions on the person bringing the claim sufficient to deter the person from bringing the claim while the bill's provisions do not apply to the claim under provisions on a matter pending before a governmental or quasi-governmental entity. 

 

H.B. 1338 prohibits a court from issuing a temporary restraining order, temporary injunction, permanent injunction, or other order prohibiting a complainant from communicating with a governmental agency or quasi-governmental entity concerning the subject matter of a complaint or claim governed by provisions of the bill. 

 

H.B. 1338 defines "bad faith," "claimant," "complainant," "complaint," "good faith," "governmental agency," "groundless," "harassing conduct," and "quasi-governmental entity."

 

Determination of Whether Complaint Was Made in Good Faith or Bad Faith and Consequences.

 

H.B. 1338 requires a person asserting a claim against a complainant alleging the contents of the complaint constitute a basis for relief, including that they constitute libel or slander, to plead with particularity all material facts that the person contends establish the right to recovery, including all facts supporting the contention that the complainant did not act in good faith.  The bill requires each fact asserted in the pleading to be verified by an affidavit made on personal knowledge unless the truth of the fact appears of record.  The bill requires the court, on a motion by the complainant or on the court's own motion, to review the pleadings to determine compliance with the above provisions. 

 

H.B. 1338 establishes that a complainant who makes a complaint in good faith is not liable for monetary damages arising from the complaint or subject to injunctive or declaratory relief with respect to the complaint. The bill establishes that a complaint is presumed to be made in good faith.  The bill establishes that a complainant may prove the complaint is made in good faith by demonstrating that a reasonably prudent person, under the same or similar circumstances, could have believed that a reasonable basis in fact existed for making the complaint and the agency or entity to which the complaint was made had authority or jurisdiction to receive or review the complaint. 

 

H.B. 1338 requires a court to promptly grant summary judgment with respect to a claim alleging the contents of the complaint constitute a basis for relief, including that they constitute libel or slander, if the complainant demonstrates that the complaint that is the subject of the claim was made in good faith; or the pleadings fail to allege a cause of action against the complainant for which relief may be granted, or facts sufficient to rebut the presumption that the complaint was filed in good faith.  The bill requires a court that grants a summary judgment, on a motion of the complainant, to promptly hold a hearing to determine whether the claim was brought in bad faith.  The bill requires a complainant to file the motion for an expedited hearing not later than the 30th day after the date on which the order granting summary judgment is signed.  The bill provides that, on request of the party, the hearing shall be before a jury. The bill applies the Texas Rules of Civil Procedure to the selection of the jury, the court's charge to the jury, and all other aspects of the proceedings.  The bill requires the court to sever the claims as necessary to allow relief granted under certain provisions of law to become immediately final and appealable on a motion of the complainant in a case involving three or more parties. The bill provides that if the trier of fact determines that a claim alleging the contents of the complaint constitute a basis for relief, including that they constitute libel or slander, was brought in bad faith, judgment may be entered awarding the complainant actual damages, attorney's fees, and court costs.  The bill provides that a person against whom judgment is entered and any attorney representing the person in filing the claim are jointly and severally liable for damages awarded for a bad faith claim. 

 

H.B. 1338 establishes that a complainant is entitled to recover court costs and reasonable and necessary attorney's fees if judgment is entered holding a complaint made on the basis of such a suit was filed in good faith.

 

H.B. 1338 provides that if judgment is entered against an attorney, the attorney is subject to professional discipline for professional misconduct under the State Bar Act and to suspension or disbarment for dishonorable conduct.  The bill requires the court to promptly report a judgment to an appropriate grievance committee under the State Bar Act or under a similar law in any jurisdiction in which the attorney resides or is licensed.  The bill requires a report to contain the name of the attorney against whom judgment was entered, the jury verdict or findings of fact by the court, and the judgment. 

 

Liability for Harassing Conduct.

 

H.B. 1338 establishes that a person is liable for damages to a complainant and is subject to injunctive or declaratory relief if the complainant demonstrates by a preponderance of evidence that

 

·         the complainant made or intended to make a complaint in good faith;

·         the person against whom the claim is made committed or caused to be committed harassing conduct against the complainant; and

·         the harassing conduct was committed to obtain the withdrawal of the complaint, to prevent or limit the complainant's participation in a formal or informal investigation or proceeding by a governmental agency or quasi-governmental entity arising from or relating to the complaint, to prevent the filing of the complaint, or to retaliate for the complaint.  The bill allows a judgment to be entered awarding the complainant actual damages and reasonable attorney's fees and court costs if the trier of the fact determines that a complaint has demonstrated facts proving liability.

EFFECTIVE DATE

 

September 1, 2009.