Texas 2009 - 81st Regular

Texas House Bill HB1338 Compare Versions

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1	1	81R8368 AJA-D
2	2	By: Leibowitz H.B. No. 1338
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain civil actions against persons who file
8	8	complaints with governmental agencies or quasi-governmental
9	9	entities.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 6, Civil Practice and Remedies Code, is
12	12	amended by adding Chapter 140 to read as follows:
13	13	CHAPTER 140. CIVIL ACTIONS AGAINST PERSONS FILING COMPLAINTS WITH
14	14	GOVERNMENTAL AGENCIES OR QUASI-GOVERNMENTAL ENTITIES
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 140.001. DEFINITIONS. In this chapter:
17	17	(1) "Bad faith" with respect to a claim described by
18	18	Section 140.002(a)(1) filed against a complainant means a claim
19	19	that is:
20	20	(A) groundless; or
21	21	(B) brought for the purpose of:
22	22	(i) harassing or intimidating a
23	23	complainant; or
24	24	(ii) obtaining the withdrawal of a
25	25	complaint.
26	26	(2) "Claimant" means a person who makes a claim
27	27	described by Section 140.002(a)(1) against a complainant.
28	28	(3) "Complainant" means a person who makes a complaint
29	29	or who communicates information relevant to a complaint.
30	30	(4) "Complaint" means a written or oral statement,
31	31	report, or other communication made to or kept by a governmental
32	32	agency or quasi-governmental entity.
33	33	(5) "Good faith" with respect to a complaint means
34	34	that at the time the complaint was made or intended to be made the
35	35	complainant had:
36	36	(A) any reasonable basis in fact for making the
37	37	complaint; and
38	38	(B) any reasonable basis to believe that the
39	39	governmental agency or quasi-governmental entity to which the
40	40	complaint was made had authority or jurisdiction to receive or
41	41	review the complaint.
42	42	(6) "Governmental agency" means:
43	43	(A) this state, another state of the United
44	44	States, or the United States;
45	45	(B) any court, institution, agency, political
46	46	subdivision, or organ of government established by the constitution
47	47	or laws of this state, of another state of the United States, or of
48	48	the United States, including a department, bureau, board,
49	49	commission, office, or council; or
50	50	(C) a law enforcement agency.
51	51	(7) "Groundless" means:
52	52	(A) without basis in fact; or
53	53	(B) not warranted by existing law or a good faith
54	54	argument for the extension, modification, or reversal of existing
55	55	law.
56	56	(8) "Harassing conduct" means conduct intended or
57	57	reasonably calculated to threaten, intimidate, coerce, or mislead a
58	58	complainant through the use or threat of:
59	59	(A) physical force against a person or property;
60	60	(B) injury or damage to a person's personal or
61	61	business reputation;
62	62	(C) invasion of a person's right to privacy;
63	63	(D) a tortious or injurious act intended or
64	64	likely to cause economic damage or severe emotional distress to a
65	65	person;
66	66	(E) communication of information relevant to a
67	67	complaint known by the person communicating the information to be
68	68	false at the time it was communicated; or
69	69	(F) an act in violation of the constitution or a
70	70	penal law of this state, another state of the United States, or the
71	71	United States.
72	72	(9) "Quasi-governmental entity" means a person who,
73	73	under law or under a formal or informal request by, agreement with,
74	74	delegation of authority by, or rule adopted by a governmental
75	75	agency:
76	76	(A) receives or reviews complaints for the
77	77	agency; or
78	78	(B) performs a function of the agency.
79	79	Sec. 140.002. APPLICABILITY; VENUE; REMOVAL. (a) This
80	80	chapter applies only to a claim made a basis of a suit filed:
81	81	(1) against a complainant that:
82	82	(A) is filed by or on behalf of a person who may
83	83	be adversely affected by the filing of the complaint; and
84	84	(B) alleges that the contents of or the filing of
85	85	the complaint constitutes a basis for relief, including a claim
86	86	alleging that the contents of the complaint constitute libel or
87	87	slander; or
88	88	(2) by or on behalf of a complainant alleging
89	89	harassing conduct giving rise to liability under Section 140.101.
90	90	(b) Notwithstanding Subsection (a)(1), this chapter does
91	91	not apply to a claim if:
92	92	(1) the complaint is confidential by other law and not
93	93	a public record available to a member of the public who is not
94	94	affected by the complaint and the complainant communicated the
95	95	contents of the complaint to a person other than to the governmental
96	96	agency or quasi-governmental entity that initially received or
97	97	reviewed the complaint;
98	98	(2) the complainant is an employee or former employee
99	99	of the person who is the subject of the complaint; or
100	100	(3) the contents of the complaint relate to a matter
101	101	that is pending before a governmental agency or quasi-governmental
102	102	entity.
103	103	(c) This chapter does not create or authorize a cause of
104	104	action against a quasi-governmental entity, a governmental unit, or
105	105	their officers, agents, or employees acting in the course and scope
106	106	of their duties or employment. Notwithstanding Chapter 104, the
107	107	state is not liable for indemnification of a person for damages
108	108	arising under this chapter.
109	109	(d) A claim governed by this chapter shall be brought:
110	110	(1) in the county of the complainant's residence if the
111	111	complainant is a natural person;
112	112	(2) in the county in which the complainant's principal
113	113	office is located if the complainant is not a natural person; or
114	114	(3) in the county in which the complaint was made, if
115	115	the complainant:
116	116	(A) is a natural person who is not a resident of
117	117	this state; or
118	118	(B) is not a natural person and does not have an
119	119	office in this state.
120	120	(e) Notwithstanding any other law, on motion of the
121	121	complainant, a claim governed by this chapter that is brought in a
122	122	court other than a district court may be removed to a district court
123	123	in which venue is authorized under Subsection (d).
124	124	(f) A person against whom a claim is brought may file a plea
125	125	to the jurisdiction requesting immediate dismissal of the claim if
126	126	this chapter does not apply to the claim under Subsection (b)(3).
127	127	If, after dismissal, the claim is brought again and this chapter
128	128	does not apply to the claim under Subsection (b)(3), the court
129	129	shall, on the motion of a party or its own motion, impose sanctions
130	130	on the person bringing the claim sufficient to deter the person from
131	131	bringing the claim while this chapter does not apply to the claim
132	132	under Subsection (b)(3).
133	133	Sec. 140.003. CERTAIN ORDERS PROHIBITED. A court of this
134	134	state may not issue a temporary restraining order, temporary
135	135	injunction, permanent injunction, or other order prohibiting a
136	136	complainant from communicating with a governmental agency or
137	137	quasi-governmental entity concerning the subject matter of a
138	138	complaint or a claim governed by this chapter.
139	139	[Sections 140.004-140.050 reserved for expansion]
140	140	SUBCHAPTER B. DETERMINATION OF WHETHER COMPLAINT WAS MADE IN GOOD
141	141	FAITH OR BAD FAITH; CONSEQUENCES
142	142	Sec. 140.051. BURDEN OF PLEADING. (a) A person asserting
143	143	a claim against a complainant under Section 140.002(a)(1) must
144	144	plead with particularity all material facts that the person
145	145	contends establish the right to recovery, including all facts
146	146	supporting the contention that the complainant did not act in good
147	147	faith. Each fact asserted in the pleading must be verified by an
148	148	affidavit made on personal knowledge unless the truth of the fact
149	149	appears of record.
150	150	(b) The court shall, on motion by the complainant or on the
151	151	court's own motion, review the pleadings to determine compliance
152	152	with Subsection (a).
153	153	Sec. 140.052. NO LIABILITY FOR GOOD FAITH COMPLAINT. (a)
154	154	A complainant who makes a complaint in good faith is not:
155	155	(1) liable for monetary damages arising from the
156	156	complaint; or
157	157	(2) subject to injunctive or declaratory relief with
158	158	respect to the complaint.
159	159	(b) A complaint is presumed to be made in good faith. A
160	160	complainant may prove the complaint is made in good faith by
161	161	demonstrating that a reasonably prudent person, under the same or
162	162	similar circumstances, could have believed that:
163	163	(1) a reasonable basis in fact existed for making the
164	164	complaint; and
165	165	(2) the agency or entity to which the complaint was
166	166	made had authority or jurisdiction to receive or review the
167	167	complaint.
168	168	Sec. 140.053. SUMMARY JUDGMENT; EXPEDITED HEARING TO
169	169	DETERMINE BAD FAITH CLAIM. (a) The court shall promptly grant
170	170	summary judgment with respect to a claim described by Section
171	171	140.002(a)(1) if:
172	172	(1) the complainant demonstrates that the complaint
173	173	that is the subject of the claim was made in good faith under
174	174	Section 140.052(b); or
175	175	(2) the pleadings fail to allege:
176	176	(A) a cause of action against the complainant for
177	177	which relief may be granted; or
178	178	(B) facts sufficient to rebut the presumption
179	179	that the complaint was filed in good faith.
180	180	(b) On motion of the complainant, a court that grants
181	181	summary judgment under Subsection (a) shall promptly hold a hearing
182	182	to determine whether the claim was brought in bad faith.
183	183	(c) A complainant must file the motion for an expedited
184	184	hearing under Subsection (b) not later than the 30th day after the
185	185	date on which the order granting summary judgment is signed. On
186	186	request of a party, the hearing shall be before a jury. The Texas
187	187	Rules of Civil Procedure apply to the selection of the jury, the
188	188	court's charge to the jury, and all other aspects of the
189	189	proceedings.
190	190	(d) On motion of the complainant in a case involving three
191	191	or more parties, the court shall sever the claims as necessary to
192	192	allow relief granted under Subsection (a) or Section 140.054 to
193	193	become immediately final and appealable.
194	194	Sec. 140.054. BAD FAITH CLAIM. (a) If the trier of fact
195	195	determines that a claim described by Section 140.002(a)(1) was
196	196	brought in bad faith, judgment may be entered awarding the
197	197	complainant:
198	198	(1) actual damages; and
199	199	(2) attorney's fees and court costs under Section
200	200	140.055.
201	201	(b) A person against whom judgment is entered under this
202	202	section and any attorney representing the person in filing the
203	203	claim are jointly and severally liable for damages awarded under
204	204	this section.
205	205	Sec. 140.055. COURT COSTS AND ATTORNEY'S FEES. A
206	206	complainant is entitled to recover court costs and reasonable and
207	207	necessary attorney's fees if judgment is entered holding a
208	208	complaint made the basis of a suit under Section 140.002(a)(1) was
209	209	filed in good faith.
210	210	Sec. 140.056. PROFESSIONAL DISCIPLINE. (a) If judgment is
211	211	entered against an attorney under Section 140.054(b), the attorney
212	212	is subject to professional discipline for professional misconduct
213	213	in accordance with Subchapter E, Chapter 81, Government Code, and
214	214	to suspension or disbarment for dishonorable conduct under Section
215	215	82.062, Government Code.
216	216	(b) The court shall promptly report a judgment described by
217	217	Subsection (a) to an appropriate grievance committee under Chapter
218	218	81, Government Code, or under a similar law in any jurisdiction in
219	219	which the attorney resides or is licensed.
220	220	(c) A report under Subsection (b) must contain:
221	221	(1) the name of the attorney against whom judgment was
222	222	entered;
223	223	(2) the jury verdict or findings of fact by the court;
224	224	and
225	225	(3) the judgment.
226	226	[Sections 140.057-140.100 reserved for expansion]
227	227	SUBCHAPTER C. LIABILITY FOR HARASSING CONDUCT
228	228	Sec. 140.101. LIABILITY FOR HARASSING CONDUCT. (a) A
229	229	person is liable for damages to a complainant and is subject to
230	230	injunctive or declaratory relief if the complainant demonstrates by
231	231	a preponderance of the evidence that:
232	232	(1) the complainant made or intended to make a
233	233	complaint in good faith;
234	234	(2) the person against whom the claim under this
235	235	section is made committed or caused to be committed harassing
236	236	conduct against the complainant; and
237	237	(3) the harassing conduct was committed to:
238	238	(A) obtain the withdrawal of the complaint;
239	239	(B) prevent or limit the complainant's
240	240	participation in a formal or informal investigation or proceeding
241	241	by a governmental agency or quasi-governmental entity arising from
242	242	or relating to the complaint;
243	243	(C) prevent the filing of the complaint; or
244	244	(D) retaliate for the complaint.
245	245	(b) If the trier of fact determines that a complainant has
246	246	demonstrated facts proving liability under Subsection (a),
247	247	judgment may be entered awarding the complainant:
248	248	(1) actual damages; and
249	249	(2) reasonable attorney's fees and court costs.
250	250	SECTION 2. This Act applies only to a claim described by
251	251	Section 140.002, Civil Practice and Remedies Code, as added by this
252	252	Act, filed on or after the effective date of this Act. A claim filed
253	253	before the effective date of this Act is governed by the law
254	254	applicable to the claim immediately before the effective date of
255	255	this Act, and that law is continued in effect for that purpose.
256	256	SECTION 3. This Act takes effect September 1, 2009.