77(R) HB 2723-Sent to Gov.

[Guest guest]

77® HB 2723 Senate committee report - Bill Text

1-1 By: (Senate Sponsor - Shapleigh) H.B. No. 2723

1-2 (In the Senate - Received from the House May 11, 2001;

1-3 May 11, 2001, read first time and referred to Committee on

1-4 Jurisprudence; May 11, 2001, reported favorably by the following

1-5 vote: Yeas 5, Nays 1; May 11, 2001, sent to printer.)

1-6 A BILL TO BE ENTITLED

1-7 AN ACT

1-8 relating to civil actions involving persons who file complaints

1-9 with governmental agencies.

1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11 SECTION 1. Title 6, Civil Practice and Remedies Code, is

1-12 amended by adding Chapter 138 to read as follows:

1-13 CHAPTER 138. CIVIL ACTIONS INVOLVING PERSONS MAKING

1-14 COMPLAINTS WITH GOVERNMENTAL AGENCIES

1-15 Sec. 138.001. DEFINITIONS. In this chapter:

1-16 (1) " Bad faith " with respect to a claim made the basis

1-17 of a suit governed by this chapter means a claim that is:

1-18 (A) groundless; or

1-19 ( brought for the purpose of:

1-20 (i) harassing or intimidating a

1-21 complainant; or

1-22 (ii) obtaining the withdrawal of a

1-23 complaint.

1-24 (2) " Complainant " means a person who makes a complaint

1-25 or who communicates information relevant to a complaint.

1-26 (3) " Complaint " means a written or oral statement,

1-27 report, or other communication made to or kept by a governmental

1-28 agency or quasi-governmental entity.

1-29 (4) " Exemplary damages " has the meaning assigned by

1-30 Chapter 41.

1-31 (5) " Good faith " with respect to a claim made the

1-32 basis of a suit governed by this chapter means that at the time the

1-33 complaint was filed or intended to be filed the complainant had:

1-34 (A) any reasonable basis in fact for making the

1-35 complaint; and

1-36 ( any reasonable basis to believe that the

1-37 governmental agency or quasi-governmental entity to which the

1-38 complaint was made had authority or jurisdiction to receive the

1-39 complaint.

1-40 (6) " Governmental agency " means:

1-41 (A) this state, another state of the United

1-42 States, or the United States;

1-43 ( any court, institution, agency, political

1-44 subdivision, or organ of government established by the constitution

1-45 or laws of this state, of another state of the United States, or of

1-46 the United States, including a department, bureau, board,

1-47 commission, office, or council; or

1-48 © a law enforcement agency.

1-49 (7) " Groundless " means:

1-50 (A) without basis in fact; or

1-51 ( not warranted by existing law or a good

1-52 faith argument for the extension, modification, or reversal of

1-53 existing law.

1-54 (8) " Harassing conduct " means conduct intended or

1-55 reasonably calculated to threaten, intimidate, coerce, or mislead a

1-56 complainant through the use or threat of:

1-57 (A) physical force against a person or property;

1-58 ( injury or damage to a person's personal or

1-59 business reputation;

1-60 © invasion of a person's right to privacy;

1-61 (D) a tortious or injurious act intended or

1-62 likely to cause economic damage or severe emotional distress to a

1-63 person;

1-64 (E) communication of information relevant to a

2-1 complaint known by the person communicating the information to be

2-2 false at the time it was communicated; or

2-3 (F) an act in violation of the constitution or a

2-4 penal law of this state, another state of the United States, or the

2-5 United States.

2-6 (9) " Quasi-governmental entity " means a person who,

2-7 under law or under a formal or informal request by, agreement with,

2-8 delegation of authority by, or rule adopted by a governmental

2-9 agency:

2-10 (A) receives or reviews complaints for the

2-11 agency; or

2-12 ( performs a function of the agency.

2-13 Sec. 138.002. APPLICABILITY; VENUE; REMOVAL. (a) This

2-14 chapter applies only to a claim made a basis of a suit filed:

2-15 (1) against a complainant that:

2-16 (A) is filed by or on behalf of a person who may

2-17 be adversely affected by the filing of the complaint; and

2-18 ( alleges that the contents of or the filing

2-19 of the complaint constitutes a basis for relief, including a claim

2-20 alleging that the contents of the complaint constitute libel or

2-21 slander; or

2-22 (2) by or on behalf of a complainant alleging conduct

2-23 giving rise to liability under Section 138.004.

2-24 ( Notwithstanding Subsection (a)(1), this chapter does not

2-25 apply to a claim if:

2-26 (1) the complaint is confidential by other law and not

2-27 a public record available to a member of the public who is not

2-28 affected by the complaint and the complainant communicated the

2-29 contents of the complaint to a person other than to the

2-30 governmental agency or quasi-governmental entity that initially

2-31 received or reviewed the complaint; or

2-32 (2) the complainant is an employee or former employee

2-33 of the person who is the subject of the complaint.

2-34 © This chapter does not create or authorize a cause of

2-35 action against a quasi-governmental entity, a governmental unit, or

2-36 their officers, agents, or employees acting in the course and scope

2-37 of their duties or employment. Notwithstanding Chapter 104, the

2-38 state is not liable for indemnification of a person for damages

2-39 arising under this chapter.

2-40 (d) A claim governed by this chapter shall be brought:

2-41 (1) in the county of the complainant's residence if

2-42 the complainant is a natural person;

2-43 (2) in the county in which the complainant's principal

2-44 office is located if the complainant is not a natural person; or

2-45 (3) in the county in which the complaint was made, if

2-46 the complainant:

2-47 (A) is a natural person who is not a resident of

2-48 this state; or

2-49 ( is not a natural person and does not have an

2-50 office in this state.

2-51 (e) Notwithstanding any other law, on motion of the

2-52 complainant, a claim governed by this chapter that is brought in a

2-53 court other than a district court may be removed to a district

2-54 court in which venue is authorized under Subsection (d).

2-55 Sec. 138.003. NO LIABILITY FOR GOOD FAITH COMPLAINT. (a) A

2-56 complainant who makes a complaint in good faith is not:

2-57 (1) liable for monetary damages arising from the

2-58 complaint; or

2-59 (2) subject to injunctive or declaratory relief with

2-60 respect to the complaint.

2-61 ( There is a rebuttable presumption that a complaint is

2-62 made in good faith.

2-63 © A complainant may establish the elements of good faith

2-64 by demonstrating that:

2-65 (1) a reasonably prudent person, under the same or

2-66 similar circumstances, could have believed that a reasonable basis

2-67 in fact existed for making the complaint; and

2-68 (2) a reasonably prudent person, under the same or

2-69 similar circumstances, could have believed that the governmental

3-1 agency or quasi-governmental entity to which the complaint was made

3-2 had authority or jurisdiction to receive or review the complaint.

3-3 (d) A person asserting a claim described by Section

3-4 138.002(a)(1) shall, as a condition precedent to stating a cause of

3-5 action for which relief may be granted, have the burden of pleading

3-6 with particularity all material facts that the person contends

3-7 establish the right to recovery, including all facts supporting the

3-8 contention that the complainant did not act in good faith. Each

3-9 fact asserted in the pleading must be verified by affidavit made on

3-10 personal knowledge unless the truth of the fact appears of record.

3-11 (e) The court shall, on motion by the complainant or on the

3-12 court's own motion, review the pleadings to determine compliance

3-13 with Subsection (d).

3-14 Sec. 138.004. LIABILITY FOR HARASSING CONDUCT; EXEMPLARY

3-15 DAMAGES AUTHORIZED. (a) A person is liable for damages to a

3-16 complainant and is subject to injunctive or declaratory relief if

3-17 the complainant demonstrates by a preponderance of the evidence

3-18 that:

3-19 (1) the complainant made or intended to make a

3-20 complaint in good faith;

3-21 (2) the person committed or caused to be committed

3-22 harassing conduct against the complainant; and

3-23 (3) the harassing conduct was committed to:

3-24 (A) obtain the withdrawal of the complaint;

3-25 ( prevent or limit the complainant's

3-26 participation in a formal or informal investigation or proceeding

3-27 by a governmental agency or quasi-governmental entity arising from

3-28 or relating to the complaint;

3-29 © prevent the filing of the complaint; or

3-30 (D) retaliate for the complaint.

3-31 ( If the trier of fact determines that a complainant has

3-32 demonstrated facts proving liability under Subsection (a), judgment

3-33 may be entered awarding the complainant:

3-34 (1) actual damages;

3-35 (2) attorney's fees and costs under Section 138.007;

3-36 and

3-37 (3) notwithstanding Chapter 41, exemplary damages in

3-38 an amount equal to five times the amount of attorney's fees and

3-39 costs awarded under Section 138.007.

3-40 Sec. 138.005. BAD FAITH CLAIMS; EXEMPLARY DAMAGES

3-41 AUTHORIZED. (a) If the trier of fact determines that a claim

3-42 described by Section 138.002(a)(1) was brought in bad faith,

3-43 judgment may be entered awarding the complainant:

3-44 (1) actual damages;

3-45 (2) attorney's fees and costs under Section 138.007;

3-46 and

3-47 (3) notwithstanding Chapter 41, exemplary damages in

3-48 an amount equal to five times the amount of attorney's fees and

3-49 costs awarded under Section 138.007.

3-50 ( A person against whom judgment is entered under this

3-51 section and the person's attorney are jointly and severally liable

3-52 for damages awarded under this section.

3-53 Sec. 138.006. SUMMARY JUDGMENT; EXPEDITED HEARING TO

3-54 DETERMINE BAD FAITH CLAIM. (a) The court shall promptly grant

3-55 summary judgment with respect to a claim described by Section

3-56 138.002(a)(1) if:

3-57 (1) the complainant demonstrates that a complaint was

3-58 made in good faith under Section 138.003©; or

3-59 (2) the pleadings fail to allege:

3-60 (A) a cause of action against the complainant

3-61 for which relief may be granted; or

3-62 ( facts sufficient to rebut the presumption

3-63 that the complaint was filed in good faith.

3-64 ( On motion of the complainant, a court that grants

3-65 summary judgment under Subsection (a) shall promptly hold a hearing

3-66 to determine whether the claim was brought in bad faith.

3-67 © A complainant must file the motion for an expedited

3-68 hearing under Subsection ( not later than the 30th day after the

3-69 date on which the order granting summary judgment is signed. On

4-1 request of a party, the hearing shall be before a jury. The Texas

4-2 Rules of Civil Procedure apply to the selection of the jury, the

4-3 court's charge to the jury, and all other aspects of the

4-4 proceedings.

4-5 (d) On motion of the complainant in a case involving three

4-6 or more parties, the court shall sever the claims as necessary to

4-7 allow relief granted under Subsection (a) or Section 138.005 to

4-8 become immediately final and appealable.

4-9 Sec. 138.007. ATTORNEY'S FEES. A complainant is entitled to

4-10 recover costs of court and reasonable and necessary attorney's fees

4-11 if judgment is entered holding:

4-12 (1) a complaint made the basis of a suit under Section

4-13 138.002(a)(1) was filed in good faith; or

4-14 (2) a person is liable to the complainant under

4-15 Section 138.004.

4-16 Sec. 138.008. PROFESSIONAL DISCIPLINE. (a) If judgment is

4-17 entered against an attorney under Section 138.005(, the attorney

4-18 is subject to professional discipline for professional misconduct

4-19 in accordance with Subchapter E, Chapter 81, Government Code, and

4-20 to suspension or disbarment for dishonorable conduct under Section

4-21 82.062, Government Code.

4-22 ( The court shall promptly report a judgment described by

4-23 Subsection (a) to an appropriate grievance committee under Chapter

4-24 81, Government Code, or under a similar law in any jurisdiction in

4-25 which the attorney resides or is licensed.

4-26 © A report under Subsection ( must contain:

4-27 (1) the name of the attorney against whom judgment was

4-28 entered;

4-29 (2) the jury verdict or findings of fact by the court;

4-30 and

4-31 (3) the judgment.

4-32 Sec. 138.009. CERTAIN ORDERS PROHIBITED. A court of this

4-33 state may not issue a temporary restraining order, temporary

4-34 injunction, permanent injunction, or other order prohibiting a

4-35 complainant from communicating with a governmental agency or

4-36 quasi-governmental entity concerning the subject matter of a

4-37 complaint or a claim governed by this chapter.

4-38 SECTION 2. This Act applies only to a claim described by

4-39 Section 138.002, Civil Practice and Remedies Code, as added by this

4-40 Act, filed on or after the effective date of this Act. A claim

4-41 filed before the effective date of this Act is governed by the law

4-42 applicable to the claim immediately before the effective date of

4-43 this Act, and that law is continued in effect for that purpose.

4-44 SECTION 3. This Act takes effect September 1, 2001.

4-45 * * * * *