| |
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A BILL TO BE ENTITLED
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AN ACT
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| |
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relating to abortion, including civil liability for distribution of |
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abortion-inducing drugs; making conforming changes and harmonizing |
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conforming provisions; authorizing a private civil right of action. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act shall be known as the Women and Child |
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Protection Act. |
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SECTION 2. Subtitle H, Title 2, Health and Safety Code, is |
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amended by adding Chapter 171A to read as follows: |
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CHAPTER 171A. ABORTION-INDUCING DRUGS AND FACILITATION OF |
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ABORTION; ENFORCEMENT OF ABORTION LAWS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 171A.001. DEFINITIONS. In this chapter: |
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(1) "Abortion" has the meaning assigned by Section |
|
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245.002. |
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(2) "Abortion-inducing drug" has the meaning assigned |
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by Section 171.061. |
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(3) "Abortion provider" means a person that performs |
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|
elective abortions. |
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(4) "Elective abortion" means an abortion performed or |
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induced by a licensed physician that is not performed or induced in |
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|
response to a medical emergency. |
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(5) "Information content provider" means a person who |
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is responsible, wholly or partly, for the creation or development |
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|
of information provided through the Internet or any other |
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interactive computer service. |
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(6) "Interactive computer service" means an |
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|
information service, system, or access software provider that |
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provides or enables computer access by multiple users to a computer |
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|
server, including specifically a service or system providing access |
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|
to the Internet and such systems operated or services offered by |
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|
libraries or educational institutions. The term does not include: |
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(A) an Internet service provider or the |
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|
provider's affiliates or subsidiaries; |
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(B) a search engine; or |
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(C) a cloud service provider that solely provides |
|
|
access or connection to or from an Internet website or other |
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|
information or content on the Internet or on a facility, system, or |
|
|
network that is not under the provider's control, including |
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|
transmission, downloading, intermediate storage, access software, |
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|
or other services. |
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(7) "Medical emergency" has the meaning assigned by |
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Section 171.002. |
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Sec. 171A.002. CONSTRUCTION OF CHAPTER RELATED TO |
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LIABILITY. This chapter may not be construed to impose liability on |
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|
the speech or conduct of: |
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(1) an Internet service provider or the provider's |
|
|
affiliates or subsidiaries; |
|
|
(2) a search engine; or |
|
|
(3) a cloud service provider that solely provides |
|
|
access or connection to or from an Internet website or other |
|
|
information or content on the Internet or on a facility, system, or |
|
|
network that is not under the provider's control, including |
|
|
transmission, downloading, intermediate storage, access software, |
|
|
or other services. |
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SUBCHAPTER B. PROTECTION FROM ABORTION-INDUCING DRUGS |
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Sec. 171A.051. PROHIBITIONS RELATED TO ABORTION-INDUCING |
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DRUGS. (a) Except as provided by Subsection (b), a person may not: |
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(1) manufacture or distribute an abortion-inducing |
|
|
drug in this state; or |
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|
(2) mail, transport, deliver, prescribe, or provide an |
|
|
abortion-inducing drug in any manner to any person or location in |
|
|
this state. |
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(b) Notwithstanding any other law, Subsection (a) does not |
|
|
prohibit: |
|
|
(1) speech or conduct protected by the First Amendment |
|
|
to the United States Constitution, as made applicable to the states |
|
|
through the United States Supreme Court's interpretation of the |
|
|
Fourteenth Amendment to the United States Constitution or protected |
|
|
by Section 8, Article I, Texas Constitution; |
|
|
(2) conduct this state is prohibited from regulating |
|
|
under the Texas Constitution or federal law, including the United |
|
|
States Constitution; |
|
|
(3) conduct of a pregnant woman who aborts or seeks to |
|
|
abort the woman's unborn child; |
|
|
(4) the possession, distribution, mailing, transport, |
|
|
delivery, or provision of an abortion-inducing drug for a purpose |
|
|
that does not include performing, inducing, attempting, or |
|
|
assisting an abortion; |
|
|
(5) the possession, distribution, mailing, transport, |
|
|
delivery, or provision of an abortion-inducing drug for the purpose |
|
|
of enabling a licensed physician to treat a pregnant woman during a |
|
|
medical emergency; |
|
|
(6) the possession of an abortion-inducing drug for |
|
|
purposes of entrapping a person that violates this section; or |
|
|
(7) conduct engaged in by a person under the direction |
|
|
of a federal agency, contractor, or employee to carry out a duty |
|
|
under federal law, if prohibiting that conduct would violate the |
|
|
doctrine of preemption or intergovernmental immunity. |
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|
Sec. 171A.052. EXCLUSIVE ENFORCEMENT; EFFECT OF OTHER LAW. |
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|
(a) Notwithstanding any other law, this subchapter may only be |
|
|
enforced through a qui tam or private civil action brought under |
|
|
Subchapter C, D, or E. |
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|
(b) No other direct or indirect enforcement of this |
|
|
subchapter may be taken or threatened by this state, a political |
|
|
subdivision of this state, a district or county attorney, or any |
|
|
officer or employee of this state or a political subdivision of this |
|
|
state against any person, by any means whatsoever, and no violation |
|
|
of this subchapter may be used to justify or trigger the enforcement |
|
|
of any other law or any type of adverse consequence under any other |
|
|
law, except as provided in Subchapter C, D, or E. |
|
|
(c) This section does not preclude or limit the enforcement |
|
|
of any other law or regulation against conduct that is |
|
|
independently prohibited by the other law or regulation and that |
|
|
would remain prohibited by the other law or regulation in the |
|
|
absence of this subchapter. |
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|
SUBCHAPTER C. CIVIL LIABILITY FOR DISTRIBUTION OF |
|
|
ABORTION-INDUCING DRUGS |
|
|
Sec. 171A.101. CIVIL ACTION FOR DISTRIBUTION OF |
|
|
ABORTION-INDUCING DRUGS. (a) Notwithstanding any other law and |
|
|
except as provided by this subchapter, a person who manufactures, |
|
|
distributes, mails, prescribes, or provides an abortion-inducing |
|
|
drug, or who engages in any conduct prohibited by Section 171A.051 |
|
|
is strictly, absolutely, and jointly and severally liable for: |
|
|
(1) the wrongful death of an unborn child or pregnant |
|
|
woman from the use of the abortion-inducing drug; and |
|
|
(2) personal injury of an unborn child or pregnant |
|
|
woman from the use of the abortion-inducing drug. |
|
|
(b) A claimant may not bring an action under this section if |
|
|
the action is preempted by 47 U.S.C. Section 230(c). |
|
|
(c) A person who engages in conduct described by Subsection |
|
|
(a) is liable for damages resulting from the death or personal |
|
|
injury sustained by an unborn child or pregnant woman if the |
|
|
person's conduct contributed in any way to the death or injury, |
|
|
regardless of whether the person's conduct was the actual or |
|
|
proximate cause of the death or injury. |
|
|
(d) Notwithstanding any other law, the mother or father of |
|
|
an unborn child may bring a civil action under this section for the |
|
|
wrongful death of the unborn child from the use of an |
|
|
abortion-inducing drug, regardless of whether the other parent |
|
|
brings a civil action for the wrongful death. The biological father |
|
|
of an unborn child may bring the action regardless of whether the |
|
|
father was married to the unborn child's mother at the time of the |
|
|
unborn child's conception or death. |
|
|
(e) Notwithstanding any other law, a civil action may not be |
|
|
brought under this section: |
|
|
(1) against the woman who used or sought to obtain |
|
|
abortion-inducing drugs to abort or attempt to abort her unborn |
|
|
child; |
|
|
(2) against a person that acted under the direction of |
|
|
a federal agency, contractor, or employee who is carrying out |
|
|
duties under federal law if the imposition of liability would |
|
|
violate the doctrine of preemption or intergovernmental immunity; |
|
|
or |
|
|
(3) by any person who impregnated the woman who used |
|
|
abortion-inducing drugs through conduct constituting sexual |
|
|
assault under Section 22.011, Penal Code, or aggravated sexual |
|
|
assault under Section 22.021, Penal Code, or by another person who |
|
|
acts in concert or participation with that person. |
|
|
(f) Notwithstanding any other law, including rules of civil |
|
|
procedure adopted under Chapter 26, Civil Practice and Remedies |
|
|
Code, an action brought under this section may not be litigated on |
|
|
behalf of a claimant class or a defendant class, and a court may not |
|
|
certify a class in the action. |
|
|
Sec. 171A.102. DEFENSES. (a) It is an affirmative defense |
|
|
to an action brought under Section 171A.101 that the defendant: |
|
|
(1) was unaware the defendant was engaged in the |
|
|
conduct described by Section 171A.101(a); and |
|
|
(2) took every reasonable precaution to ensure the |
|
|
defendant would not manufacture, distribute, mail, prescribe, or |
|
|
provide or aid or abet the manufacture, distribution, mailing, |
|
|
prescription, or provision of abortion-inducing drugs. |
|
|
(b) A defendant has the burden of proving an affirmative |
|
|
defense under Subsection (a) by a preponderance of the evidence. |
|
|
(c) Notwithstanding any other law, the following are not a |
|
|
defense to an action brought under Section 171A.101: |
|
|
(1) ignorance or mistake of law; |
|
|
(2) a defendant's belief the requirements or |
|
|
provisions of this chapter are unconstitutional or were |
|
|
unconstitutional; |
|
|
(3) a defendant's reliance on a court decision that has |
|
|
been vacated, reversed, or overruled on appeal or by a subsequent |
|
|
court, even if the court decision had not been vacated, reversed, or |
|
|
overruled when the cause of action accrued; |
|
|
(4) a defendant's reliance on a state or federal court |
|
|
decision that is not binding on the court in which the action has |
|
|
been brought; |
|
|
(5) a defendant's reliance on a federal statute, |
|
|
agency rule or action, or treaty that has been repealed, |
|
|
superseded, or declared invalid or unconstitutional, even if the |
|
|
federal statute, agency rule or action, or treaty had not been |
|
|
repealed, superseded, or declared invalid or unconstitutional when |
|
|
the cause of action accrued; |
|
|
(6) the laws of another state or jurisdiction, |
|
|
including an interstate abortion shield law, unless the Texas |
|
|
Constitution or federal law, including the United States |
|
|
Constitution, compels the court to enforce that law; |
|
|
(7) non-mutual issue preclusion or non-mutual claim |
|
|
preclusion; |
|
|
(8) the consent of the claimant or the unborn child's |
|
|
mother to the abortion; |
|
|
(9) contributory or comparative negligence; |
|
|
(10) assumption of risk; |
|
|
(11) entrapment; |
|
|
(12) lack of actual or proximate cause; |
|
|
(13) sovereign immunity, governmental immunity, or |
|
|
official immunity; or |
|
|
(14) a claim that the enforcement of this chapter or |
|
|
the imposition of civil liability against the defendant will |
|
|
violate the constitutional or federally protected rights of third |
|
|
parties, except as provided by Section 171A.251. |
|
|
Sec. 171A.103. MARKET-SHARE LIABILITY. Notwithstanding |
|
|
any other law, if a claimant who brings an action under Section |
|
|
171A.101 is unable to identify the specific manufacturer of the |
|
|
abortion-inducing drug that caused the death or injury that is the |
|
|
basis for the action, the liability is apportioned among all |
|
|
manufacturers of abortion-inducing drugs in proportion to each |
|
|
manufacturer's share of the national market for abortion-inducing |
|
|
drugs at the time the death or injury occurred. |
|
|
Sec. 171A.104. STATUTE OF LIMITATIONS. Notwithstanding any |
|
|
other law, a person may bring an action under Section 171A.101 not |
|
|
later than the sixth anniversary of the date the cause of action |
|
|
accrues. |
|
|
Sec. 171A.105. WAIVER PROHIBITED. Notwithstanding any |
|
|
other law, a waiver or purported waiver of the right to bring an |
|
|
action under Section 171A.101 is void as against public policy and |
|
|
is not enforceable in any court. |
|
|
Sec. 171A.106. OTHER DEFENSES. Notwithstanding any other |
|
|
law, this subchapter does not impose liability for: |
|
|
(1) death or personal injury resulting from an |
|
|
abortion performed or induced by a licensed physician in response |
|
|
to a medical emergency; |
|
|
(2) speech or conduct protected by the First Amendment |
|
|
to the United States Constitution, as made applicable to the states |
|
|
through the United States Supreme Court's interpretation of the |
|
|
Fourteenth Amendment to the United States Constitution, or |
|
|
protected by Section 8, Article I, Texas Constitution; |
|
|
(3) conduct this state is prohibited from regulating |
|
|
under the Texas Constitution or federal law, including the United |
|
|
States Constitution; |
|
|
(4) conduct of a pregnant woman who aborts or seeks to |
|
|
abort her unborn child; |
|
|
(5) the possession, distribution, mailing, transport, |
|
|
delivery, or provision of an abortion-inducing drug for the purpose |
|
|
of enabling a licensed physician to treat a pregnant woman during a |
|
|
medical emergency; or |
|
|
(6) conduct a person engages in under the direction of |
|
|
a federal agency, contractor, or employee to carry out a duty under |
|
|
federal law, if a prohibition on that conduct would violate the |
|
|
doctrine of preemption or intergovernmental immunity. |
|
|
Sec. 171A.107. JURISDICTION; APPLICABILITY OF STATE LAW. |
|
|
(a) Notwithstanding any other law, including Subchapter C, Chapter |
|
|
17, Civil Practice and Remedies Code, the courts of this state have |
|
|
personal jurisdiction over a defendant sued under Section 171A.101 |
|
|
to the maximum extent permitted by the Fourteenth Amendment to the |
|
|
United States Constitution and the defendant may be served outside |
|
|
this state. |
|
|
(b) Notwithstanding any other law, the law of this state |
|
|
applies to the use of an abortion-inducing drug by a resident of |
|
|
this state, regardless of where the use of the drug occurs, and to |
|
|
an action brought under Section 171A.101 to the maximum extent |
|
|
permitted by the Texas Constitution and federal law, including the |
|
|
United States Constitution. |
|
|
(c) Notwithstanding any other law, any contractual |
|
|
choice-of-law provision that requires or purports to require |
|
|
application of the laws of a different jurisdiction is void based on |
|
|
this state's public policy and is not enforceable in any court. |
|
|
(d) Notwithstanding any other law, Chapters 27 and 110, |
|
|
Civil Practice and Remedies Code, do not apply to an action brought |
|
|
under Section 171A.101. |
|
|
Sec. 171A.108. COORDINATED ENFORCEMENT PROHIBITED. (a) |
|
|
Notwithstanding any other law, this state, a political subdivision |
|
|
of this state, or an officer or employee of this state or a |
|
|
political subdivision of this state may not: |
|
|
(1) act in concert or participation with a claimant |
|
|
bringing an action under Section 171A.101; |
|
|
(2) establish or attempt to establish any type of |
|
|
agency or fiduciary relationship with a claimant bringing an action |
|
|
under Section 171A.101; |
|
|
(3) attempt to control or influence a person's |
|
|
decision to bring an action under Section 171A.101 or that person's |
|
|
conduct of the litigation; or |
|
|
(4) intervene in an action brought under Section |
|
|
171A.101. |
|
|
(b) This section does not prohibit this state, a political |
|
|
subdivision of this state, or an officer or employee of this state |
|
|
or a political subdivision of this state from filing an amicus |
|
|
curiae brief in an action brought under Section 171A.101 if the |
|
|
state, political subdivision, officer, or employee does not act in |
|
|
concert or participation with the claimant who brings the action. |
|
|
SUBCHAPTER D. QUI TAM ENFORCEMENT OF PROHIBITIONS RELATING TO |
|
|
ABORTION-INDUCING DRUGS |
|
|
Sec. 171A.151. QUI TAM ACTION AUTHORIZED. (a) Except as |
|
|
provided by this section, a person, other than a political |
|
|
subdivision of this state or an officer or employee of a political |
|
|
subdivision of this state, has standing to bring and may bring a qui |
|
|
tam action against a person who: |
|
|
(1) violates Section 171A.051; or |
|
|
(2) intends to violate Section 171A.051. |
|
|
(b) An action brought under this section must be brought in |
|
|
the name of the qui tam relator and of the state. |
|
|
(c) A qui tam relator may not bring an action under this |
|
|
section if the action is preempted by 47 U.S.C. Section 230(c). |
|
|
(d) Notwithstanding any other law, a qui tam action may not |
|
|
be brought under this section: |
|
|
(1) against the woman who used or sought to obtain |
|
|
abortion-inducing drugs to abort or attempt to abort her unborn |
|
|
child; |
|
|
(2) against a person that acted under the direction of |
|
|
a federal agency, contractor, or employee who is carrying out |
|
|
duties under federal law if the imposition of liability would |
|
|
violate the doctrine of preemption or intergovernmental immunity; |
|
|
(3) against a common carrier that: |
|
|
(A) transports a pregnant woman or other |
|
|
passenger to an abortion provider; and |
|
|
(B) is unaware the passenger is traveling to an |
|
|
abortion provider; or |
|
|
(4) by any person who impregnated the woman who used or |
|
|
sought to obtain abortion-inducing drugs through conduct |
|
|
constituting sexual assault under Section 22.011, Penal Code, or |
|
|
aggravated sexual assault under Section 22.021, Penal Code, or by |
|
|
another person who acts in concert or participation with that |
|
|
person. |
|
|
(e) Notwithstanding any other law, including rules of civil |
|
|
procedure adopted under Chapter 26, Civil Practice and Remedies |
|
|
Code, an action brought under this section may not be litigated on |
|
|
behalf of a claimant class or a defendant class, and a court may not |
|
|
certify a class in the action. |
|
|
Sec. 171A.152. DEFENSES. (a) It is an affirmative defense |
|
|
to an action brought under Section 171A.151 that the defendant: |
|
|
(1) was unaware the defendant was engaged in the |
|
|
conduct prohibited by Section 171A.051; and |
|
|
(2) took every reasonable precaution to ensure the |
|
|
defendant would not violate Section 171A.051. |
|
|
(b) A defendant has the burden of proving an affirmative |
|
|
defense under Subsection (a) by a preponderance of the evidence. |
|
|
(c) Notwithstanding any other law, the following are not a |
|
|
defense to an action brought under Section 171A.151: |
|
|
(1) ignorance or mistake of law; |
|
|
(2) a defendant's belief the requirements or |
|
|
provisions of this chapter are unconstitutional or were |
|
|
unconstitutional; |
|
|
(3) a defendant's reliance on a court decision that has |
|
|
been vacated, reversed, or overruled on appeal or by a subsequent |
|
|
court, even if the court decision had not been vacated, reversed, or |
|
|
overruled when the cause of action accrued; |
|
|
(4) a defendant's reliance on a state or federal court |
|
|
decision that is not binding on the court in which the action has |
|
|
been brought; |
|
|
(5) a defendant's reliance on a federal statute, |
|
|
agency rule or action, or treaty that has been repealed, |
|
|
superseded, or declared invalid or unconstitutional, even if the |
|
|
federal statute, agency rule or action, or treaty had not been |
|
|
repealed, superseded, or declared invalid or unconstitutional when |
|
|
the cause of action accrued; |
|
|
(6) the laws of another state or jurisdiction, |
|
|
including an interstate abortion shield law, unless the Texas |
|
|
Constitution or federal law, including the United States |
|
|
Constitution, compels the court to enforce that law; |
|
|
(7) non-mutual issue preclusion or non-mutual claim |
|
|
preclusion; |
|
|
(8) entrapment; |
|
|
(9) sovereign immunity, governmental immunity, or |
|
|
official immunity; or |
|
|
(10) a claim that the enforcement of this chapter or |
|
|
the imposition of civil liability against the defendant will |
|
|
violate the constitutional or federally protected rights of third |
|
|
parties, except as provided by Section 171A.251. |
|
|
Sec. 171A.153. STATUTE OF LIMITATIONS. Notwithstanding any |
|
|
other law, a person may bring an action under Section 171A.151 not |
|
|
later than the sixth anniversary of the date the cause of action |
|
|
accrues. |
|
|
Sec. 171A.154. REMEDIES. (a) Except as provided by |
|
|
Subsection (b), if a qui tam relator prevails in an action brought |
|
|
under Section 171A.151, the court shall award to the relator: |
|
|
(1) injunctive relief sufficient to prevent the |
|
|
defendant from violating Section 171A.051; |
|
|
(2) statutory damages in an amount of not less than |
|
|
$100,000 for each violation of Section 171A.051; and |
|
|
(3) costs and reasonable attorney's fees. |
|
|
(b) A court may not award relief under Subsection (a)(2) or |
|
|
(a)(3) in response to a violation of Section 171A.051 if the |
|
|
defendant demonstrates that a court already ordered the defendant |
|
|
to pay damages under Subsection (a)(2) in another action for that |
|
|
particular violation. |
|
|
(c) Notwithstanding any other law, a court may not award |
|
|
costs or attorney's fees to a defendant against whom an action is |
|
|
brought under Section 171A.151. |
|
|
Sec. 171A.155. CONSTRUCTION OF SUBCHAPTER RELATED TO FIRST |
|
|
AMENDMENT PROTECTIONS. This subchapter may not be construed to |
|
|
impose liability on speech or conduct protected by the First |
|
|
Amendment to the United States Constitution, as made applicable to |
|
|
the states through the United States Supreme Court's interpretation |
|
|
of the Fourteenth Amendment to the United States Constitution, or |
|
|
protected by Section 8, Article I, Texas Constitution. |
|
|
Sec. 171A.156. COORDINATED ENFORCEMENT PROHIBITED. (a) |
|
|
Notwithstanding any other law, a political subdivision of this |
|
|
state or an officer or employee of a political subdivision of this |
|
|
state may not: |
|
|
(1) act in concert or participation with a qui tam |
|
|
relator bringing an action under Section 171A.151; |
|
|
(2) establish or attempt to establish any type of |
|
|
agency or fiduciary relationship with a qui tam relator bringing an |
|
|
action under Section 171A.151; |
|
|
(3) attempt to control or influence a person's |
|
|
decision to bring an action under Section 171A.151 or that person's |
|
|
conduct of the litigation; or |
|
|
(4) intervene in an action brought under Section |
|
|
171A.151. |
|
|
(b) This section does not prohibit a political subdivision |
|
|
of this state or an officer or employee of a political subdivision |
|
|
of this state from filing an amicus curiae brief in an action |
|
|
brought under Section 171A.151 if the political subdivision, |
|
|
officer, or employee does not act in concert or participation with |
|
|
the qui tam relator. |
|
|
Sec. 171A.157. JURISDICTION; APPLICABILITY OF STATE LAW. |
|
|
(a) Notwithstanding any other law, including Subchapter C, Chapter |
|
|
17, Civil Practice and Remedies Code, the courts of this state have |
|
|
personal jurisdiction over a defendant sued under Section 171A.151 |
|
|
to the maximum extent permitted by the Fourteenth Amendment to the |
|
|
United States Constitution and the defendant may be served outside |
|
|
this state. |
|
|
(b) Notwithstanding any other law, the law of this state |
|
|
applies to an action brought under Section 171A.151 to the maximum |
|
|
extent permitted by the Texas Constitution or federal law, |
|
|
including the United States Constitution. |
|
|
(c) Notwithstanding any other law, any contractual |
|
|
choice-of-law provision that requires or purports to require |
|
|
application of the laws of a different jurisdiction is void based on |
|
|
this state's public policy and is not enforceable in any court. |
|
|
(d) Notwithstanding any other law, Chapters 27 and 110, |
|
|
Civil Practice and Remedies Code, do not apply to an action brought |
|
|
under Section 171A.151. |
|
|
SUBCHAPTER E. PROVISIONS GENERALLY APPLICABLE TO CIVIL LIABILITY |
|
|
FOR FACILITATING ABORTION |
|
|
Sec. 171A.251. AFFIRMATIVE DEFENSE. (a) A defendant |
|
|
against whom an action is brought under Section 171A.101 or |
|
|
171A.151 may assert an affirmative defense to liability under this |
|
|
section if: |
|
|
(1) the imposition of civil liability on the defendant |
|
|
will violate the defendant's personal constitutional or federally |
|
|
protected rights; |
|
|
(2) the defendant: |
|
|
(A) has standing to assert the rights of a third |
|
|
party under the tests for third-party standing established by the |
|
|
United States Supreme Court; and |
|
|
(B) demonstrates the imposition of civil |
|
|
liability on the defendant will violate constitutional or federally |
|
|
protected rights belonging to a third party; |
|
|
(3) the imposition of civil liability on the defendant |
|
|
will violate the defendant's rights under the Texas Constitution; |
|
|
or |
|
|
(4) the imposition of civil liability on the defendant |
|
|
would violate the limits on extraterritorial jurisdiction imposed |
|
|
by the United States Constitution or the Texas Constitution. |
|
|
(b) The defendant has the burden of proving an affirmative |
|
|
defense described by Subsection (a) by a preponderance of the |
|
|
evidence. |
|
|
Sec. 171A.252. CONSTRUCTION OF CHAPTER WITH RESPECT TO |
|
|
CIVIL LIABILITY AND ENFORCEMENT. This chapter may not be construed |
|
|
to limit or preclude a defendant from asserting the |
|
|
unconstitutionality of any provision or application of the laws of |
|
|
this state as a defense to liability under Section 171A.101 or |
|
|
171A.151 from asserting any other defense that might be available |
|
|
under any other source of law. |
|
|
Sec. 171A.253. APPLICATION OF OTHER LAW. (a) |
|
|
Notwithstanding any other law, a court may not apply the law of |
|
|
another state or jurisdiction to any civil or qui tam action brought |
|
|
under Section 171A.101 or 171A.151 unless the Texas Constitution or |
|
|
federal law, including the United States Constitution, compels it |
|
|
to do so. |
|
|
(b) Notwithstanding any other law, any contractual |
|
|
choice-of-law provision that requires or purports to require |
|
|
application of the laws of a different jurisdiction is void based on |
|
|
this state's public policy and is not enforceable in any court. |
|
|
Sec. 171A.254. VENUE. (a) Notwithstanding any other law, |
|
|
including Chapter 15, Civil Practice and Remedies Code, a civil or |
|
|
qui tam action brought under Section 171A.101 or 171A.151 may be |
|
|
brought in: |
|
|
(1) the county in which all or a substantial part of |
|
|
the events or omissions giving rise to the claim occurred; |
|
|
(2) the county of a defendant's residence at the time |
|
|
the cause of action accrued if a defendant is an individual; |
|
|
(3) the county of the principal office in this state of |
|
|
a defendant that is not an individual; or |
|
|
(4) the county of the claimant's residence if the |
|
|
claimant is an individual residing in this state. |
|
|
(b) If a civil or qui tam action is brought under Section |
|
|
171A.101 or 171A.151 in a venue described by Subsection (a), the |
|
|
action may not be transferred to a different venue without the |
|
|
written consent of all parties. |
|
|
(c) Notwithstanding any other law, any contractual |
|
|
choice-of-forum provision that requires or purports to require a |
|
|
civil or qui tam action under Sections 171A.101 or 171A.151 to be |
|
|
litigated in a particular forum is void based on this state's public |
|
|
policy and is not enforceable in any court. |
|
|
Sec. 171A.255. PROTECTION FROM COUNTER ACTIONS. If an |
|
|
action is brought against a person or a judgment is entered against |
|
|
a person based wholly or partly on the person's decision to bring or |
|
|
threat to bring an action under Section 171A.101 or 171A.151 the |
|
|
person may recover damages from the claimant who brought the action |
|
|
or obtained the judgment or who has sought to enforce the judgment. |
|
|
The damages must include: |
|
|
(1) compensatory damages created by the action or |
|
|
judgment, including money damages in an amount of the judgment and |
|
|
costs, expenses, and reasonable attorney's fees spent in defending |
|
|
the action; |
|
|
(2) costs, expenses, and reasonable attorney's fees |
|
|
incurred in bringing an action under this section; and |
|
|
(3) additional statutory damages in an amount of not |
|
|
less than $100,000. |
|
|
SUBCHAPTER F. PROVISIONS RELATING TO ENFORCEMENT OF ABORTION LAWS |
|
|
Sec. 171A.351. DEFINITION. In this subchapter, "criminal |
|
|
abortion law" means any law of this state imposing criminal |
|
|
penalties on abortion, including Chapter 6-1/2, Title 71, Revised |
|
|
Statutes. |
|
|
Sec. 171A.352. ATTORNEY GENERAL ACTION FOR VIOLATION OF |
|
|
CERTAIN ABORTION LAWS. (a) The attorney general has parens patriae |
|
|
standing to bring an action under this section on behalf of unborn |
|
|
children of residents of this state. |
|
|
(b) The attorney general may bring a civil action for |
|
|
damages or injunctive relief on behalf of an unborn child of a |
|
|
resident of this state against a person who violates any criminal |
|
|
abortion law of this state except for Subchapter H, Chapter 171, or |
|
|
Subchapter B, C, D, or E of this chapter. |
|
|
Sec. 171A.353. FEE SHIFTING. (a) Notwithstanding any |
|
|
other law, a person, including an entity, attorney, or law firm, who |
|
|
seeks declaratory or injunctive relief to prevent a person, |
|
|
including this state, a political subdivision of this state, or an |
|
|
officer, employee, or agent of this state or a political |
|
|
subdivision of this state, from enforcing or bringing an action to |
|
|
enforce a law, including a statute, ordinance, rule, or regulation, |
|
|
that regulates or restricts abortion or that limits taxpayer |
|
|
funding for persons that perform or promote abortions in any state |
|
|
or federal court, or who represents a litigant seeking such relief |
|
|
in any state or federal court, is jointly and severally liable to |
|
|
pay the costs and reasonable attorney's fees of the prevailing |
|
|
party in the action seeking declaratory or injunctive relief, |
|
|
including the costs and reasonable attorney's fees that the |
|
|
prevailing party incurs in its efforts to recover costs and fees. |
|
|
(b) For purposes of this section, a party is considered a |
|
|
prevailing party if: |
|
|
(1) a state or federal court dismisses a claim or cause |
|
|
of action brought against the party by a litigant that seeks the |
|
|
declaratory or injunctive relief described by Subsection (a), |
|
|
regardless of the reason for the dismissal; |
|
|
(2) a state or federal court enters judgment in the |
|
|
party's favor on that claim or cause of action; or |
|
|
(3) the litigant that seeks the declaratory or |
|
|
injunctive relief described by Subsection (a) voluntarily |
|
|
dismisses or nonsuits its claims against the party under Rule 41, |
|
|
Federal Rules of Civil Procedure, Rule 162, Texas Rules of Civil |
|
|
Procedure, or any other procedural rule. |
|
|
(c) A prevailing party may recover costs and reasonable |
|
|
attorney's fees under this section only to the extent that those |
|
|
costs and attorney's fees were incurred while defending claims or |
|
|
causes of action on which the party prevailed. |
|
|
(d) Regardless of whether a prevailing party sought to |
|
|
recover costs or attorney's fees in the underlying action, a |
|
|
prevailing party under this section may bring a civil action to |
|
|
recover costs and attorney's fees against a person, including an |
|
|
entity, attorney, or law firm, who sought declaratory or injunctive |
|
|
relief described by Subsection (a) not later than the third |
|
|
anniversary of the date on which, as applicable: |
|
|
(1) the dismissal or judgment described by Subsection |
|
|
(b) becomes final on the conclusion of appellate review; or |
|
|
(2) the time for seeking appellate review expires. |
|
|
(e) It is not a defense to a civil action brought under |
|
|
Subsection (d) that: |
|
|
(1) a prevailing party under this section failed to |
|
|
seek recovery of costs or attorney's fees in the underlying action; |
|
|
(2) the court in the underlying action declined to |
|
|
recognize or enforce this section; or |
|
|
(3) the court in the underlying action held that any |
|
|
provisions of this section are invalid, unconstitutional, or |
|
|
preempted by federal law, notwithstanding the doctrine of issue or |
|
|
claim preclusion. |
|
|
(f) Notwithstanding any other law, including Chapter 15, |
|
|
Civil Practice and Remedies Code, a civil action brought under |
|
|
Subsection (d) may be brought in: |
|
|
(1) the county in which all or a substantial part of |
|
|
the events or omissions giving rise to the claim occurred; |
|
|
(2) the county of residence of a defendant at the time |
|
|
the cause of action accrued, if the defendant is an individual; |
|
|
(3) the county of the principal office in this state of |
|
|
a defendant that is not an individual; or |
|
|
(4) the county of residence of the claimant, if the |
|
|
claimant is an individual residing in this state. |
|
|
(g) If a civil action is brought under Subsection (d) in a |
|
|
venue described by Subsection (f), the action may not be |
|
|
transferred to a different venue without the written consent of all |
|
|
parties. |
|
|
(h) Notwithstanding any other law, any contractual |
|
|
choice-of-forum provision that purports to require a civil action |
|
|
under Subsection (d) be litigated in another forum is void based on |
|
|
this state's public policy and is not enforceable in any state or |
|
|
federal court. |
|
|
SUBCHAPTER G. IMMUNITY AND LIMITS ON STATE-COURT JURISDICTION |
|
|
Sec. 171A.401. SOVEREIGN, GOVERNMENTAL, AND OFFICIAL |
|
|
IMMUNITY. (a) Notwithstanding any other law, the state has |
|
|
sovereign immunity, a political subdivision of this state has |
|
|
governmental immunity, and an officer or employee of this state or a |
|
|
political subdivision of this state has official immunity in an |
|
|
action, claim, counterclaim, or any other type of legal or |
|
|
equitable action that: |
|
|
(1) challenges the validity of any provision or |
|
|
application of this chapter, on constitutional grounds or |
|
|
otherwise; or |
|
|
(2) seeks to prevent or enjoin this state, a political |
|
|
subdivision of this state, or an officer, employee, or agent of this |
|
|
state or a political subdivision of this state from: |
|
|
(A) enforcing any provision or application of |
|
|
this chapter; or |
|
|
(B) filing, hearing, adjudicating, or docketing |
|
|
an action brought under Section 171A.101 or 171A.151. |
|
|
(b) Sovereign immunity conferred by this section includes |
|
|
the constitutional sovereign immunity recognized by the United |
|
|
States Supreme Court, which applies in both state and federal court |
|
|
and may not be abrogated by Congress or by a state or federal court |
|
|
except under congressional legislation authorized by: |
|
|
(1) Section 5 of the Fourteenth Amendment, United |
|
|
States Constitution; |
|
|
(2) the Bankruptcy Clause of Article I, United States |
|
|
Constitution; |
|
|
(3) Congress's powers to raise and support armies and |
|
|
to provide and maintain a navy; or |
|
|
(4) any other congressional power that the United |
|
|
States Supreme Court recognizes as a ground for abrogating a |
|
|
state's sovereign immunity. |
|
|
Sec. 171A.402. APPLICABILITY OF IMMUNITY. Notwithstanding |
|
|
any other law, the immunities conferred by Section 171A.401 apply |
|
|
in every court, both state and federal, and in every type of |
|
|
adjudicative proceeding. |
|
|
Sec. 171A.403. CONSTRUCTION OF CHAPTER RELATED TO ASSERTED |
|
|
DEFENSE. This chapter may not be construed to prevent a litigant |
|
|
from asserting the invalidity or unconstitutionality of a provision |
|
|
or application of this chapter as a defense to an action, claim, or |
|
|
counterclaim brought against the litigant. |
|
|
Sec. 171A.404. WAIVER OF IMMUNITY. (a) Notwithstanding |
|
|
any other law, a provision of the laws of this state may not be |
|
|
construed to waive or abrogate an immunity conferred by Section |
|
|
171A.401 unless it expressly waives or abrogates immunity with |
|
|
specific reference to that section. |
|
|
(b) Notwithstanding any other law, an attorney representing |
|
|
the state, a political subdivision of this state, or an officer or |
|
|
employee of this state or a political subdivision of this state may |
|
|
not waive an immunity conferred by Section 171A.401 or take an |
|
|
action that would result in a waiver of that immunity. A purported |
|
|
waiver or action described by this subsection is considered void |
|
|
and an ultra vires act. |
|
|
Sec. 171A.405. JURISDICTION. Notwithstanding any other |
|
|
law, including Chapter 37, Civil Practice and Remedies Code, a |
|
|
court of this state does not have jurisdiction to consider and may |
|
|
not award relief under any action, claim, or counterclaim that: |
|
|
(1) seeks declaratory or injunctive relief, or any |
|
|
type of writ, including a writ of prohibition, that would pronounce |
|
|
any provision or application of this chapter invalid or |
|
|
unconstitutional; or |
|
|
(2) would restrain a person, including this state, a |
|
|
political subdivision of this state, or an officer, employee, or |
|
|
agent of this state or a political subdivision of this state, from: |
|
|
(A) enforcing any provision or application of |
|
|
this chapter; or |
|
|
(B) filing, hearing, adjudicating, or docketing |
|
|
an action brought under Section 171A.101 or 171A.151. |
|
|
Sec. 171A.406. EFFECT OF CONTRARY JUDICIAL ACTIONS. (a) |
|
|
Notwithstanding any other law, judicial relief issued by a court of |
|
|
this state that disregards the immunity conferred by Section |
|
|
171A.401 or the limits on jurisdiction or permissible relief |
|
|
described by Section 171A.405: |
|
|
(1) is considered void because a court without |
|
|
jurisdiction issued the relief; and |
|
|
(2) may not be enforced or obeyed by an officer, |
|
|
employee, or agent, including a judicial official, of this state or |
|
|
a political subdivision of this state. |
|
|
(b) Notwithstanding any other law, a writ, injunction, or |
|
|
declaratory judgment issued by a court of this state that purports |
|
|
to restrain a person, including this state, a political subdivision |
|
|
of this state, or an officer or employee of this state or a |
|
|
political subdivision of this state, from hearing, adjudicating, |
|
|
docketing, or filing an action brought under Section 171A.101 or |
|
|
171A.151: |
|
|
(1) is considered void and a violation of the Due |
|
|
Process Clause of the Fourteenth Amendment to the United States |
|
|
Constitution; and |
|
|
(2) may not be enforced or obeyed by an officer, |
|
|
employee, or agent, including a judicial official, of this state or |
|
|
a political subdivision of this state. |
|
|
Sec. 171A.407. LIABILITY FOR VIOLATION. (a) |
|
|
Notwithstanding any other law, a person may bring an action against |
|
|
an officer, employee, or agent, including a judicial official, of |
|
|
this state or a political subdivision of this state, who issues, |
|
|
enforces, or obeys a writ, injunction, or declaratory judgment |
|
|
described by Section 171A.406(b) if the writ, injunction, or |
|
|
judgment prevents or delays the person from bringing an action |
|
|
under Section 171A.101 or 171A.151. |
|
|
(b) A claimant who prevails in an action brought under this |
|
|
section is entitled to: |
|
|
(1) injunctive relief; |
|
|
(2) compensatory damages; |
|
|
(3) exemplary damages of not less than $100,000; and |
|
|
(4) costs and reasonable attorney's fees. |
|
|
(c) Notwithstanding any other law, in an action brought |
|
|
under this section, a person who violates Section 171A.405 or |
|
|
171A.406(b): |
|
|
(1) may not assert and is not entitled to any type of |
|
|
immunity defense, including sovereign immunity, governmental |
|
|
immunity, official immunity, or judicial immunity; |
|
|
(2) may not be indemnified for an award of damages or |
|
|
costs and attorney's fees entered against the person or for the |
|
|
costs of the person's legal defense; and |
|
|
(3) may not receive or obtain legal representation |
|
|
from the attorney general. |
|
|
SECTION 3. Section 27.010(a), Civil Practice and Remedies |
|
|
Code, is amended to read as follows: |
|
|
(a) This chapter does not apply to: |
|
|
(1) an enforcement action that is brought in the name |
|
|
of this state or a political subdivision of this state by the |
|
|
attorney general, a district attorney, a criminal district |
|
|
attorney, or a county attorney; |
|
|
(2) a legal action brought against a person primarily |
|
|
engaged in the business of selling or leasing goods or services, if |
|
|
the statement or conduct arises out of the sale or lease of goods, |
|
|
services, or an insurance product, insurance services, or a |
|
|
commercial transaction in which the intended audience is an actual |
|
|
or potential buyer or customer; |
|
|
(3) a legal action seeking recovery for bodily injury, |
|
|
wrongful death, or survival or to statements made regarding that |
|
|
legal action; |
|
|
(4) a legal action brought under the Insurance Code or |
|
|
arising out of an insurance contract; |
|
|
(5) a legal action arising from an officer-director, |
|
|
employee-employer, or independent contractor relationship that: |
|
|
(A) seeks recovery for misappropriation of trade |
|
|
secrets or corporate opportunities; or |
|
|
(B) seeks to enforce a non-disparagement |
|
|
agreement or a covenant not to compete; |
|
|
(6) a legal action filed under Title 1, 2, 4, or 5, |
|
|
Family Code, or an application for a protective order under |
|
|
Subchapter A, Chapter 7B, Code of Criminal Procedure; |
|
|
(7) a legal action brought under Chapter 17, Business & |
|
|
Commerce Code, other than an action governed by Section 17.49(a) |
|
|
of that chapter; |
|
|
(8) a legal action in which a moving party raises a |
|
|
defense pursuant to Section 160.010, Occupations Code, Section |
|
|
161.033, Health and Safety Code, or the Health Care Quality |
|
|
Improvement Act of 1986 (42 U.S.C. 11101 et seq.); |
|
|
(9) an eviction suit brought under Chapter 24, |
|
|
Property Code; |
|
|
(10) a disciplinary action or disciplinary proceeding |
|
|
brought under Chapter 81, Government Code, or the Texas Rules of |
|
|
Disciplinary Procedure; |
|
|
(11) a legal action brought under Chapter 554, |
|
|
Government Code; |
|
|
(12) a legal action based on a common law fraud claim; |
|
|
[or] |
|
|
(13) a legal malpractice claim brought by a client or |
|
|
former client; |
|
|
(14) an action brought under Chapter 170, 170A, 171, |
|
|
or 171A, Health and Safety Code, or a petition for the taking of a |
|
|
deposition under Rule 202, Texas Rules of Civil Procedure, to |
|
|
investigate a potential claim or in anticipation of an action under |
|
|
those chapters; or |
|
|
(15) an action brought under Section 30.022. |
|
|
SECTION 4. Chapter 110, Civil Practice and Remedies Code, |
|
|
is amended by adding Section 110.013 to read as follows: |
|
|
Sec. 110.013. LAWS REGULATING OR RESTRICTING ABORTION NOT |
|
|
AFFECTED. Nothing in this chapter may be construed to limit the |
|
|
scope or enforcement of Chapter 170, 170A, 171, or 171A, Health and |
|
|
Safety Code, or Chapter 6-1/2, Title 71, Revised Statutes, or any |
|
|
other law that regulates or restricts abortion or that withholds |
|
|
taxpayer funds from entities that perform or promote abortions. |
|
|
SECTION 5. Subchapter H, Chapter 171, Health and Safety |
|
|
Code, is amended by adding Section 171.2105 to read as follows: |
|
|
Sec. 171.2105. JURISDICTION. Notwithstanding any other |
|
|
law, including Chapter 37, Civil Practice and Remedies Code, a |
|
|
court of this state does not have jurisdiction to consider and may |
|
|
not award relief under any action, claim, or counterclaim that |
|
|
seeks declaratory or injunctive relief, or any type of writ, |
|
|
including a writ of prohibition, that would pronounce any provision |
|
|
or application of this subchapter invalid or unconstitutional. |
|
|
SECTION 6. Chapter 171A, Health and Safety Code, as added by |
|
|
this Act, applies only to a cause of action that accrues on or after |
|
|
the effective date of this Act. |
|
|
SECTION 7. Section 71.02(a), Penal Code, as reenacted and |
|
|
amended by this Act, applies only to an offense committed on or |
|
|
after the effective date of this Act. An offense committed before |
|
|
the effective date of this Act is governed by the law in effect on |
|
|
the date the offense was committed, and the former law is continued |
|
|
in effect for that purpose. For purposes of this section, an |
|
|
offense was committed before the effective date of this Act if any |
|
|
element of the offense occurred before that date. |
|
|
SECTION 8. It is the intent of the legislature that every |
|
|
provision, section, subsection, sentence, clause, phrase, or word |
|
|
in this Act, and every application of the provisions in this Act to |
|
|
every person, group of persons, or circumstances, is severable from |
|
|
each other. If any application of any provision in this Act to any |
|
|
person, group of persons, or circumstances is found by a court to be |
|
|
invalid for any reason, the remaining applications of that |
|
|
provision to all other persons and circumstances shall be severed |
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and may not be affected. |
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SECTION 9. This Act takes effect September 1, 2025. |
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