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A BILL TO BE ENTITLED
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AN ACT
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relating to a correction, clarification, or retraction of incorrect |
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information published. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 73, Civil Practice and Remedies Code, is |
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amended by designating Sections 73.001 through 73.006 as Subchapter |
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A and adding a subchapter heading to read as follows: |
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SUBCHAPTER A. GENERAL PROVISIONS |
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SECTION 2. Chapter 73, Civil Practice and Remedies Code, is |
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amended by adding Subchapter B to read as follows: |
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SUBCHAPTER B. CORRECTION, CLARIFICATION, OR RETRACTION BY |
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PUBLISHER |
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Sec. 73.051. SHORT TITLE. This subchapter may be cited as |
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the Defamation Mitigation Act. This subchapter shall be liberally |
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construed. |
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Sec. 73.052. PURPOSE. The purpose of this subchapter is to |
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provide a method for a person who has been defamed by a publication |
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or broadcast to mitigate any perceived damage or injury. |
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Sec. 73.053. DEFINITION. In this subchapter, "person" |
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means an individual, corporation, business trust, estate, trust, |
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partnership, association, joint venture, or other legal or |
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commercial entity. The term does not include a government or |
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governmental subdivision, agency, or instrumentality. |
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Sec. 73.054. APPLICABILITY. (a) This subchapter applies |
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to a claim for relief, however characterized, from damages arising |
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out of harm to personal reputation caused by the false content of a |
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publication. |
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(b) This subchapter applies to all publications, including |
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writings, broadcasts, oral communications, electronic |
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transmissions, or other forms of transmitting information. |
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Sec. 73.055. REQUEST FOR CORRECTION, CLARIFICATION, OR |
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RETRACTION. (a) A person may maintain an action for defamation |
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only if: |
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(1) the person has made a timely and sufficient |
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request for a correction, clarification, or retraction from the |
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defendant; or |
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(2) the defendant has made a correction, |
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clarification, or retraction. |
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(b) A request for a correction, clarification, or |
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retraction is timely if made during the period of limitation for |
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commencement of an action for defamation. |
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(c) If not later than the 90th day after receiving knowledge |
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of the publication, the person does not request a correction, |
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clarification, or retraction, the person may not recover exemplary |
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damages. |
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(d) A request for a correction, clarification, or |
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retraction is sufficient if it: |
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(1) is served on the publisher; |
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(2) is made in writing, reasonably identifies the |
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person making the request, and is signed by the individual claiming |
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to have been defamed or by the person's authorized attorney or |
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agent; |
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(3) states with particularity the statement alleged to |
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be false and defamatory and, to the extent known, the time and place |
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of publication; |
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(4) alleges the defamatory meaning of the statement; |
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and |
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(5) specifies the circumstances causing a defamatory |
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meaning of the statement if it arises from something other than the |
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express language of the publication. |
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(e) A period of limitation for commencement of an action |
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under this section is tolled during the period allowed by Sections |
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73.056 and 73.057. |
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Sec. 73.056. DISCLOSURE OF EVIDENCE OF FALSITY. (a) A |
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person who has been requested to make a correction, clarification, |
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or retraction may ask the person making the request to provide |
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reasonably available information regarding the falsity of the |
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allegedly defamatory statement not later than the 30th day after |
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the date the person receives the request. Any information |
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requested under this section must be provided by the person seeking |
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the correction, clarification, or retraction not later than the |
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30th day after the date the person receives the request. |
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(b) If a correction, clarification, or retraction is not |
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made, a person who, without good cause, fails to disclose the |
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information requested under Subsection (a) may not recover |
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exemplary damages, unless the publication was made with actual |
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malice. |
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Sec. 73.057. TIMELY AND SUFFICIENT CORRECTION, |
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CLARIFICATION, OR RETRACTION. (a) A correction, clarification, or |
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retraction is timely if it is made not later than the 30th day after |
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receipt of: |
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(1) the request for the correction, clarification, or |
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retraction; or |
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(2) the information requested under Section |
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73.056(a). |
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(b) A correction, clarification, or retraction is |
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sufficient if it is published in the same manner and medium as the |
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original publication or, if that is not possible, with a prominence |
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and in a manner and medium reasonably likely to reach substantially |
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the same audience as the publication complained of and: |
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(1) is publication of an acknowledgment that the |
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statement specified as false and defamatory is erroneous; |
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(2) is an allegation that the defamatory meaning |
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arises from other than the express language of the publication and |
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the publisher disclaims an intent to communicate that meaning or to |
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assert its truth; |
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(3) is a statement attributed to another person whom |
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the publisher identifies and the publisher disclaims an intent to |
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assert the truth of the statement; or |
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(4) is publication of the requestor's statement of the |
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facts, as set forth in a request for correction, clarification, or |
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retraction, or a fair summary of the statement, exclusive of any |
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portion that is defamatory of another, obscene, or otherwise |
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improper for publication. |
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(c) If a request for correction, clarification, or |
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retraction has specified two or more statements as false and |
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defamatory, the correction, clarification, or retraction may deal |
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with the statements individually in any manner provided by |
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Subsection (b). |
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(d) Except as provided by Subsection (e), a correction, |
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clarification, or retraction is published with a prominence and in |
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a manner and medium reasonably likely to reach substantially the |
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same audience as the publication complained of if: |
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(1) it is published in a later issue, edition, or |
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broadcast of the original publication; |
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(2) publication is in the next practicable issue, |
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edition, or broadcast of the original publication because the |
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publication will not be published within the time limits |
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established for a timely correction, clarification, or retraction; |
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or |
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(3) the original publication no longer exists and if |
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the correction, clarification, or retraction is published in the |
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newspaper with the largest general circulation in the region in |
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which the original publication was distributed. |
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(e) If the original publication was on the Internet, a |
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correction, clarification, or retraction is published with a |
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prominence and in a manner and medium reasonably likely to reach |
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substantially the same audience as the publication complained of if |
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the publisher appends to the original publication the correction, |
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clarification, or retraction. |
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Sec. 73.058. CHALLENGES TO CORRECTION, CLARIFICATION, OR |
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RETRACTION OR TO REQUEST FOR CORRECTION, CLARIFICATION, OR |
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RETRACTION. (a) If a defendant in an action under this subchapter |
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intends to rely on a timely and sufficient correction, |
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clarification, or retraction, the defendant's intention to do so, |
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and the correction, clarification, or retraction relied on, must be |
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stated in a notice served on the plaintiff on the later of: |
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(1) the 60th day after service of the citation; or |
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(2) the 10th day after the date the correction, |
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clarification, or retraction is made. |
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(b) A correction, clarification, or retraction is timely |
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and sufficient unless the plaintiff challenges the timeliness or |
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sufficiency not later than the 20th day after the date notice under |
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Subsection (a) is served. If a plaintiff challenges the timeliness |
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or sufficiency, the plaintiff must state the challenge in a motion |
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to declare the correction, clarification, or retraction untimely or |
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insufficient served not later than the 30th day after the date |
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notice under Subsection (a) is served on the plaintiff or the 30th |
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day after the date the correction, clarification, or retraction is |
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made, whichever is later. |
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(c) If a defendant intends to challenge the sufficiency or |
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timeliness of a request for a correction, clarification, or |
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retraction, the defendant must state the challenge in a motion to |
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declare the request insufficient or untimely served not later than |
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the 60th day after the date of service of the citation. |
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(d) Unless there is a reasonable dispute regarding the |
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actual contents of the request for correction, clarification, or |
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retraction, the sufficiency and timeliness of a request for |
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correction, clarification, or retraction is a question of law. At |
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the earliest appropriate time before trial, the court shall rule, |
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as a matter of law, whether the request for correction, |
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clarification, or retraction meets the requirements of this |
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subchapter. |
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Sec. 73.059. EFFECT OF CORRECTION, CLARIFICATION, OR |
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RETRACTION. If a correction, clarification, or retraction is made |
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in accordance with this subchapter, regardless of whether the |
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person claiming harm made a request, a person may not recover |
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exemplary damages unless the publication was made with actual |
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malice. |
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Sec. 73.060. SCOPE OF PROTECTION. A timely and sufficient |
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correction, clarification, or retraction made by a person |
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responsible for a publication constitutes a correction, |
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clarification, or retraction made by all persons responsible for |
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that publication but does not extend to an entity that republished |
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the information. |
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Sec. 73.061. ADMISSIBILITY OF EVIDENCE OF CORRECTION, |
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CLARIFICATION, OR RETRACTION. (a) A request for a correction, |
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clarification, or retraction, the contents of the request, and the |
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acceptance or refusal of the request are not admissible evidence at |
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a trial. |
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(b) The fact that a correction, clarification, or |
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retraction was made and the contents of the correction, |
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clarification, or retraction are not admissible in evidence at |
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trial except in mitigation of damages under Section 73.003(a)(3). |
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If a correction, clarification, or retraction is received into |
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evidence, the request for the correction, clarification, or |
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retraction may also be received into evidence. |
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(c) The fact that an offer of a correction, clarification, |
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or retraction was made and the contents of the offer, and the fact |
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that the correction, clarification, or retraction was refused, are |
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not admissible in evidence at trial. |
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Sec. 73.062. ABATEMENT. (a) A person against whom a suit |
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is pending who does not receive a written request for a correction, |
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clarification, or retraction, as required by Section 73.055, may |
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file a plea in abatement not later than the 30th day after the date |
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the person files an original answer in the court in which the suit |
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is pending. |
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(b) A suit is automatically abated, in its entirety, without |
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the order of the court, beginning on the 11th day after the date a |
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plea in abatement is filed under Subsection (a) if the plea in |
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abatement: |
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(1) is verified and alleges that the person against |
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whom the suit is pending did not receive the written request as |
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required by Section 73.055; and |
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(2) is not controverted in an affidavit filed by the |
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person bringing the claim before the 11th day after the date on |
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which the plea in abatement is filed. |
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(c) An abatement under Subsection (b) continues until the |
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60th day after the date that the written request is served in |
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compliance with Section 73.055, the information requested under |
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Section 73.056(a) is provided, or the time period under Section |
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73.056(a) has expired, whichever is later. If a controverting |
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affidavit is filed under Subsection (b)(2), a hearing on the plea in |
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abatement will take place as soon as practical considering the |
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court's docket. |
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(d) All statutory and judicial deadlines under the Texas |
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Rules of Civil Procedure relating to a suit abated under Subsection |
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(b), other than those provided in this section, will be stayed |
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during the pendency of the abatement period under this section. |
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SECTION 3. This Act applies only to information published |
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on or after the effective date of this Act. Information published |
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before the effective date of this Act is governed by the law in |
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effect when the information was published, and the former law is |
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continued in effect for that purpose. |
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SECTION 4. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2013. |