81R8368 AJA-D
By: Leibowitz H.B. No. 1338
A BILL TO BE ENTITLED
AN ACT
relating to certain civil actions against persons who file
complaints with governmental agencies or quasi-governmental
entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 140 to read as follows:
CHAPTER 140. CIVIL ACTIONS AGAINST PERSONS FILING COMPLAINTS WITH
GOVERNMENTAL AGENCIES OR QUASI-GOVERNMENTAL ENTITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 140.001. DEFINITIONS. In this chapter:
(1) "Bad faith" with respect to a claim described by
Section 140.002(a)(1) filed against a complainant means a claim
that is:
(A) groundless; or
(B) brought for the purpose of:
(i) harassing or intimidating a
complainant; or
(ii) obtaining the withdrawal of a
complaint.
(2) "Claimant" means a person who makes a claim
described by Section 140.002(a)(1) against a complainant.
(3) "Complainant" means a person who makes a complaint
or who communicates information relevant to a complaint.
(4) "Complaint" means a written or oral statement,
report, or other communication made to or kept by a governmental
agency or quasi-governmental entity.
(5) "Good faith" with respect to a complaint means
that at the time the complaint was made or intended to be made the
complainant had:
(A) any reasonable basis in fact for making the
complaint; and
(B) any reasonable basis to believe that the
governmental agency or quasi-governmental entity to which the
complaint was made had authority or jurisdiction to receive or
review the complaint.
(6) "Governmental agency" means:
(A) this state, another state of the United
States, or the United States;
(B) any court, institution, agency, political
subdivision, or organ of government established by the constitution
or laws of this state, of another state of the United States, or of
the United States, including a department, bureau, board,
commission, office, or council; or
(C) a law enforcement agency.
(7) "Groundless" means:
(A) without basis in fact; or
(B) not warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing
law.
(8) "Harassing conduct" means conduct intended or
reasonably calculated to threaten, intimidate, coerce, or mislead a
complainant through the use or threat of:
(A) physical force against a person or property;
(B) injury or damage to a person's personal or
business reputation;
(C) invasion of a person's right to privacy;
(D) a tortious or injurious act intended or
likely to cause economic damage or severe emotional distress to a
person;
(E) communication of information relevant to a
complaint known by the person communicating the information to be
false at the time it was communicated; or
(F) an act in violation of the constitution or a
penal law of this state, another state of the United States, or the
United States.
(9) "Quasi-governmental entity" means a person who,
under law or under a formal or informal request by, agreement with,
delegation of authority by, or rule adopted by a governmental
agency:
(A) receives or reviews complaints for the
agency; or
(B) performs a function of the agency.
Sec. 140.002. APPLICABILITY; VENUE; REMOVAL. (a) This
chapter applies only to a claim made a basis of a suit filed:
(1) against a complainant that:
(A) is filed by or on behalf of a person who may
be adversely affected by the filing of the complaint; and
(B) alleges that the contents of or the filing of
the complaint constitutes a basis for relief, including a claim
alleging that the contents of the complaint constitute libel or
slander; or
(2) by or on behalf of a complainant alleging
harassing conduct giving rise to liability under Section 140.101.
(b) Notwithstanding Subsection (a)(1), this chapter does
not apply to a claim if:
(1) the complaint is confidential by other law and not
a public record available to a member of the public who is not
affected by the complaint and the complainant communicated the
contents of the complaint to a person other than to the governmental
agency or quasi-governmental entity that initially received or
reviewed the complaint;
(2) the complainant is an employee or former employee
of the person who is the subject of the complaint; or
(3) the contents of the complaint relate to a matter
that is pending before a governmental agency or quasi-governmental
entity.
(c) This chapter does not create or authorize a cause of
action against a quasi-governmental entity, a governmental unit, or
their officers, agents, or employees acting in the course and scope
of their duties or employment. Notwithstanding Chapter 104, the
state is not liable for indemnification of a person for damages
arising under this chapter.
(d) A claim governed by this chapter shall be brought:
(1) in the county of the complainant's residence if the
complainant is a natural person;
(2) in the county in which the complainant's principal
office is located if the complainant is not a natural person; or
(3) in the county in which the complaint was made, if
the complainant:
(A) is a natural person who is not a resident of
this state; or
(B) is not a natural person and does not have an
office in this state.
(e) Notwithstanding any other law, on motion of the
complainant, a claim governed by this chapter that is brought in a
court other than a district court may be removed to a district court
in which venue is authorized under Subsection (d).
(f) A person against whom a claim is brought may file a plea
to the jurisdiction requesting immediate dismissal of the claim if
this chapter does not apply to the claim under Subsection (b)(3).
If, after dismissal, the claim is brought again and this chapter
does not apply to the claim under Subsection (b)(3), the court
shall, on the motion of a party or its own motion, impose sanctions
on the person bringing the claim sufficient to deter the person from
bringing the claim while this chapter does not apply to the claim
under Subsection (b)(3).
Sec. 140.003. CERTAIN ORDERS PROHIBITED. A court of this
state may not issue a temporary restraining order, temporary
injunction, permanent injunction, or other order prohibiting a
complainant from communicating with a governmental agency or
quasi-governmental entity concerning the subject matter of a
complaint or a claim governed by this chapter.
[Sections 140.004-140.050 reserved for expansion]
SUBCHAPTER B. DETERMINATION OF WHETHER COMPLAINT WAS MADE IN GOOD
FAITH OR BAD FAITH; CONSEQUENCES
Sec. 140.051. BURDEN OF PLEADING. (a) A person asserting
a claim against a complainant under Section 140.002(a)(1) must
plead with particularity all material facts that the person
contends establish the right to recovery, including all facts
supporting the contention that the complainant did not act in good
faith. Each fact asserted in the pleading must be verified by an
affidavit made on personal knowledge unless the truth of the fact
appears of record.
(b) The court shall, on motion by the complainant or on the
court's own motion, review the pleadings to determine compliance
with Subsection (a).
Sec. 140.052. NO LIABILITY FOR GOOD FAITH COMPLAINT. (a)
A complainant who makes a complaint in good faith is not:
(1) liable for monetary damages arising from the
complaint; or
(2) subject to injunctive or declaratory relief with
respect to the complaint.
(b) A complaint is presumed to be made in good faith. A
complainant may prove the complaint is made in good faith by
demonstrating that a reasonably prudent person, under the same or
similar circumstances, could have believed that:
(1) a reasonable basis in fact existed for making the
complaint; and
(2) the agency or entity to which the complaint was
made had authority or jurisdiction to receive or review the
complaint.
Sec. 140.053. SUMMARY JUDGMENT; EXPEDITED HEARING TO
DETERMINE BAD FAITH CLAIM. (a) The court shall promptly grant
summary judgment with respect to a claim described by Section
140.002(a)(1) if:
(1) the complainant demonstrates that the complaint
that is the subject of the claim was made in good faith under
Section 140.052(b); or
(2) the pleadings fail to allege:
(A) a cause of action against the complainant for
which relief may be granted; or
(B) facts sufficient to rebut the presumption
that the complaint was filed in good faith.
(b) On motion of the complainant, a court that grants
summary judgment under Subsection (a) shall promptly hold a hearing
to determine whether the claim was brought in bad faith.
(c) A complainant must file the motion for an expedited
hearing under Subsection (b) not later than the 30th day after the
date on which the order granting summary judgment is signed. On
request of a party, the hearing shall be before a jury. The Texas
Rules of Civil Procedure apply to the selection of the jury, the
court's charge to the jury, and all other aspects of the
proceedings.
(d) On motion of the complainant in a case involving three
or more parties, the court shall sever the claims as necessary to
allow relief granted under Subsection (a) or Section 140.054 to
become immediately final and appealable.
Sec. 140.054. BAD FAITH CLAIM. (a) If the trier of fact
determines that a claim described by Section 140.002(a)(1) was
brought in bad faith, judgment may be entered awarding the
complainant:
(1) actual damages; and
(2) attorney's fees and court costs under Section
140.055.
(b) A person against whom judgment is entered under this
section and any attorney representing the person in filing the
claim are jointly and severally liable for damages awarded under
this section.
Sec. 140.055. COURT COSTS AND ATTORNEY'S FEES. A
complainant is entitled to recover court costs and reasonable and
necessary attorney's fees if judgment is entered holding a
complaint made the basis of a suit under Section 140.002(a)(1) was
filed in good faith.
Sec. 140.056. PROFESSIONAL DISCIPLINE. (a) If judgment is
entered against an attorney under Section 140.054(b), the attorney
is subject to professional discipline for professional misconduct
in accordance with Subchapter E, Chapter 81, Government Code, and
to suspension or disbarment for dishonorable conduct under Section
82.062, Government Code.
(b) The court shall promptly report a judgment described by
Subsection (a) to an appropriate grievance committee under Chapter
81, Government Code, or under a similar law in any jurisdiction in
which the attorney resides or is licensed.
(c) A report under Subsection (b) must contain:
(1) the name of the attorney against whom judgment was
entered;
(2) the jury verdict or findings of fact by the court;
and
(3) the judgment.
[Sections 140.057-140.100 reserved for expansion]
SUBCHAPTER C. LIABILITY FOR HARASSING CONDUCT
Sec. 140.101. LIABILITY FOR HARASSING CONDUCT. (a) A
person is liable for damages to a complainant and is subject to
injunctive or declaratory relief if the complainant demonstrates by
a preponderance of the evidence that:
(1) the complainant made or intended to make a
complaint in good faith;
(2) the person against whom the claim under this
section is made committed or caused to be committed harassing
conduct against the complainant; and
(3) the harassing conduct was committed to:
(A) obtain the withdrawal of the complaint;
(B) prevent or limit the complainant's
participation in a formal or informal investigation or proceeding
by a governmental agency or quasi-governmental entity arising from
or relating to the complaint;
(C) prevent the filing of the complaint; or
(D) retaliate for the complaint.
(b) If the trier of fact determines that a complainant has
demonstrated facts proving liability under Subsection (a),
judgment may be entered awarding the complainant:
(1) actual damages; and
(2) reasonable attorney's fees and court costs.
SECTION 2. This Act applies only to a claim described by
Section 140.002, Civil Practice and Remedies Code, as added by this
Act, filed on or after the effective date of this Act. A claim filed
before the effective date of this Act is governed by the law
applicable to the claim immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2009.