85R11505 LED-F

By: Schaefer H.B. No. 2779

A BILL TO BE ENTITLED

AN ACT

relating to protecting freedom of conscience from government discrimination.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 5, Civil Practice and Remedies Code, is amended by adding Chapter 110A to read as follows:

CHAPTER 110A. FREE TO BELIEVE ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 110A.001. DEFINITIONS. In this chapter:

(1) "Adoption or foster care" or "adoption or foster care service" means a social service provided to or in behalf of a child, including:

(A) assisting an abused or neglected child;

(B) teaching a child and parent occupational, homemaking, and other domestic skills;

(C) promoting foster parenting;

(D) providing a foster home, residential child-care facility, foster group home, or temporary foster group shelter for a child;

(E) recruiting foster parents;

(F) placing a child in a foster home;

(G) licensing foster homes;

(H) promoting adoption or recruiting adoptive parents;

(I) assisting an adoption or supporting an adoptive family;

(J) performing or assisting a home study;

(K) assisting a kinship provider;

(L) providing family preservation services;

(M) providing family support services; and

(N) providing temporary family reunification services.

(2) "Discriminatory action" means any action taken by a governmental entity to:

(A) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny any grant, contract, subcontract, cooperative agreement, guarantee, loan, scholarship, license, certification, accreditation, custody award or agreement, diploma, grade, recognition, or other similar benefit, position, or status from or to a person;

(B) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny an entitlement or benefit provided under a state benefit program from or to a person;

(C) alter in any way the tax treatment of, cause any tax, penalty, or payment assessment against, or deny, delay, revoke, or otherwise make unavailable a tax exemption of a person;

(D) disallow, deny, or otherwise make unavailable a tax deduction for any charitable contribution made to or by a person;

(E) impose, levy, or assess a monetary fine, fee, penalty, or injunction against a person; or

(F) refuse to hire or promote, force to resign, fire, demote, sanction, discipline, materially alter the terms or conditions of employment, or retaliate or take other adverse employment action against a person who is employed or commissioned by a governmental entity.

(3) "Governmental entity" means:

(A) this state;

(B) a board, bureau, commission, council, department, or other agency of this state, including an institution of higher education as defined by Section 61.003, Education Code;

(C) the Texas Supreme Court, the Texas Court of Criminal Appeals, a state judicial agency, the State Bar of Texas, or a court in this state;

(D) a political subdivision of this state, including a county, municipality, or special district or authority;

(E) an officer, employee, or agent of an entity described by Paragraphs (A)-(D); or

(F) a private person suing under or attempting to enforce a law, rule, order, or ordinance adopted by an entity described by Paragraphs (A)-(D).

(4) "Person" has the meaning assigned by Section 311.005, Government Code.

(5) "Religious organization" means:

(A) a house of worship, including a church, synagogue, shrine, mosque, or temple;

(B) a religious group, corporation, association, school or educational institution, ministry, order, society, or similar entity, regardless of whether the entity is integrated or affiliated with a church or other house of worship; or

(C) an officer, owner, employee, manager, religious leader, member of the clergy, or minister of an entity or organization described in this subdivision.

(6) "State benefit program" means any program administered or funded by a governmental entity that provides cash, payments, grants, contracts, loans, or in-kind assistance.

Sec. 110A.002. SHORT TITLE. This chapter may be cited as the Free to Believe Act.

Sec. 110A.003. SINCERELY HELD RELIGIOUS BELIEFS OR MORAL CONVICTIONS. The sincerely held religious beliefs or moral convictions protected by this chapter are a belief or conviction that:

(1) marriage is or should be recognized as the union of one man and one woman; and

(2) the terms "male," "man," "female," and "woman" refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at the time of birth.

Sec. 110A.004. CONSTRUCTION OF CHAPTER. (a) This chapter shall be construed in favor of a broad protection of the free exercise of religious beliefs and moral convictions to the maximum extent allowed by this chapter and the state and federal constitutions.

(b) The protections of free exercise of religious beliefs and moral convictions afforded by this chapter are in addition to the protections provided under federal or state law and the state and federal constitutions.

(c) This chapter may not be construed to preempt or repeal a state or local law that is equally or more protective of the free exercise of religious beliefs or moral convictions or to narrow the meaning or application of a state or local law protecting the free exercise of religious beliefs or moral convictions.

(d) This chapter may not be construed to prevent a governmental entity from providing, either directly or through a person who is not seeking protection under this chapter, any benefit or service authorized under state law.

(e) This chapter applies to and in case of conflict supersedes each statute of this state that impinges on the free exercise of religious beliefs or moral convictions protected by this chapter. This chapter also applies to and in case of conflict supersedes an ordinance, rule, regulation, order, opinion, decision, practice, or other exercise of a governmental entity's authority that impinges on the free exercise of religious beliefs or moral convictions protected by this chapter.

Sec. 110A.005. APPLICABILITY. This chapter is excluded from the application of Chapter 110.

SUBCHAPTER B. DISCRIMINATORY ACTION BY GOVERNMENTAL ENTITY

PROHIBITED

Sec. 110A.051. ACTIVITIES OF RELIGIOUS ORGANIZATION. A governmental entity may not take any discriminatory action against a religious organization wholly or partly because the organization, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter:

(1) makes an employment-related decision, including a decision to terminate, to discipline, or not to hire an individual whose conduct or religious beliefs are inconsistent with the beliefs of the religious organization; or

(2) makes a decision concerning the sale, rental, or occupancy of, or the terms and conditions of occupying, a dwelling or other housing under the religious organization's control.

Sec. 110A.052. ADOPTION OR FOSTER CARE. (a) A governmental entity may not take any discriminatory action against a religious organization that advertises, provides, or facilitates adoption or foster care wholly or partly because the organization has provided or declined to provide an adoption or foster care service, or a related service, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter.

(b) A governmental entity may not take any discriminatory action against a person granted custody of a foster or adoptive child or a person who seeks custody of a foster or adoptive child wholly or partly because that person guides, instructs, or raises a child, or intends to guide, instruct, or raise a child, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter.

Sec. 110A.053. SEX REASSIGNMENT OR GENDER IDENTITY TRANSITIONING. (a) A governmental entity may not take any discriminatory action against a person wholly or partly because the person, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter, declines to participate in providing:

(1) treatment, counseling, or surgery related to sex reassignment or gender identity transitioning; or

(2) psychological, counseling, or fertility services.

(b) This section may not be construed to allow a person to deny visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law.

Sec. 110A.054. MARRIAGE-RELATED GOODS AND SERVICES. A governmental entity may not take any discriminatory action against a person wholly or partly because the person, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter, has provided or declined to provide the following for a purpose related to the solemnization, formation, celebration, or recognition of a marriage:

(1) photography, poetry, videography, disc jockey services, wedding planning, printing, publishing, or similar marriage-related goods or services; or

(2) floral arrangements, dressmaking, cake or pastry artistry, assembly hall or other wedding venue rentals, limousine or other car service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities, goods, or privileges.

Sec. 110A.055. EMPLOYEE AND STUDENT POLICIES. A governmental entity may not take any discriminatory action against a person wholly or partly because the person, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter, establishes sex-specific standards or policies concerning:

(1) employee or student dress or grooming; or

(2) access to restrooms, spas, baths, showers, dressing rooms, locker rooms, or other intimate facilities or settings.

Sec. 110A.056. GOVERNMENTAL EMPLOYEE SPEECH OR CONDUCT. A governmental entity may not take any discriminatory action against an employee wholly or partly because the employee lawfully speaks or engages in expressive conduct, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter, so long as:

(1) if the speech or expressive conduct occurs in the workplace, the speech or expressive conduct is consistent with the time, place, manner, and frequency of any other expression of a religious, political, or moral belief or conviction that would be protected; or

(2) if the speech or expressive conduct occurs outside the workplace, the speech or expressive conduct is in the employee's personal capacity and outside the course of performing work duties.

Sec. 110A.057. RECUSAL FROM MARRIAGE LICENSING. (a) A person employed by or acting on behalf of a governmental entity who has authority to authorize or license marriages, including a county clerk or deputy county clerk, may seek recusal from authorizing or licensing lawful marriages, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter.

(b) A person making a recusal under this section shall provide written notice to the vital statistics unit of the Department of State Health Services before the recusal. The vital statistics unit shall keep a record of the recusal.

(c) A person making a recusal under this section shall take all necessary steps to ensure that the authorization and licensing of a legally valid marriage is not impeded or delayed as a result of the recusal.

(d) A governmental entity may not take any discriminatory action against a person described by Subsection (a) wholly or partly because of the recusal.

Sec. 110A.058. RECUSAL FROM MARRIAGE PERFORMANCE. (a) A person employed by or acting on behalf of a governmental entity who has authority to perform or solemnize marriages, including a judge, magistrate, or justice of the peace, may seek recusal from performing or solemnizing lawful marriages, based on or in a manner consistent with a sincerely held religious belief or moral conviction protected by this chapter.

(b) A person making a recusal under this section shall provide written notice to the Office of Court Administration of the Texas Judicial System before the recusal.

(c) The Office of Court Administration of the Texas Judicial System shall take all necessary steps to ensure that the performance or solemnization of any legally valid marriage is not impeded or delayed as a result of any recusal under this section.

(d) A governmental entity may not take any discriminatory action against a person described by Subsection (a) wholly or partly because of the recusal.

Sec. 110A.059. ACCREDITATION, LICENSING, AND CERTIFICATION. A governmental entity shall consider a person accredited, licensed, or certified if the person would be accredited, licensed, or certified, respectively, under state law except for a determination against the person wholly or partly because the person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction protected by this chapter.

SUBCHAPTER C. PROCEDURES

Sec. 110A.101. SOVEREIGN IMMUNITY WAIVED. Sovereign immunity to suit and from liability is waived and abolished to the extent of liability created by Section 110A.103. A person may sue a governmental entity for damages allowed by that section.

Sec. 110A.102. CLAIM OR DEFENSE BASED ON DISCRIMINATORY ACTION. (a) A person may assert a violation of Subchapter B as a claim against a governmental entity in a judicial or administrative proceeding or as a defense in a judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the governmental entity, a private person, or another party.

(b) An action under this chapter may be commenced, and relief may be granted, in a court of this state without regard to whether the person commencing the action has sought or exhausted available administrative remedies.

Sec. 110A.103. INJUNCTIVE RELIEF; DAMAGES. (a) An aggrieved person must first seek injunctive relief to prevent or remedy a violation of this chapter or the effects of a violation of this chapter.

(b) Subject to Subsections (c) and (d), if a court has granted injunctive relief and the injunction is violated, only then may the aggrieved person seek:

(1) compensatory damages for pecuniary and nonpecuniary losses;

(2) reasonable attorney's fees and court costs; and

(3) any other appropriate relief.

(c) Only declaratory relief and injunctive relief are available against a private person not acting under the authority of a governmental entity on a successful assertion of a claim or defense under this chapter.

(d) Liability of a governmental entity for compensatory damages under Subsection (b)(1) may not exceed $500,000 for all claims arising out of a single occurrence. A person is not entitled to recover exemplary damages or prejudgment interest under this chapter.

Sec. 110A.104. TWO-YEAR LIMITATIONS PERIOD. A person must bring an action to assert a claim under this chapter not later than two years after the date the person knew or should have known that a discriminatory action was taken against that person.

SECTION 2. The change in law made by this Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law as it existed immediately before that date, and that law is continued in effect for that purpose.

SECTION 3. This Act takes effect September 1, 2017.