Texas 2011 - 82nd Regular

Texas Senate Bill SB1565 Compare Versions

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1	1	By: Ellis, Eltife S.B. No. 1565
2	2	(In the Senate - Filed March 10, 2011; March 23, 2011, read
3	3	first time and referred to Committee on State Affairs;
4	4	April 13, 2011, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 8, Nays 0; April 13, 2011,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1565 By: Ellis
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to encouraging public participation by citizens by
13	13	protecting a person's right to petition, right of free speech, and
14	14	right of association from meritless lawsuits arising from actions
15	15	taken in furtherance of those rights.
16	16	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
17	17	SECTION 1. This Act may be cited as the Citizens
18	18	Participation Act.
19	19	SECTION 2. Subtitle B, Title 2, Civil Practice and Remedies
20	20	Code, is amended by adding Chapter 27 to read as follows:
21	21	CHAPTER 27. ACTIONS INVOLVING THE EXERCISE OF CERTAIN
22	22	CONSTITUTIONAL RIGHTS
23	23	Sec. 27.001. DEFINITIONS. In this chapter:
24	24	(1) "Communication" includes the making or submitting
25	25	of a statement or document in any form or medium, including oral,
26	26	visual, written, audiovisual, or electronic.
27	27	(2) "Exercise of the right of association" means a
28	28	communication between individuals who join together to
29	29	collectively express, promote, pursue, or defend common interests.
30	30	(3) "Exercise of the right of free speech" means a
31	31	communication made in connection with a matter of public concern.
32	32	(4) "Exercise of the right to petition" means any of
33	33	the following:
34	34	(A) a communication in or pertaining to:
35	35	(i) a judicial proceeding;
36	36	(ii) an official proceeding, other than a
37	37	judicial proceeding, to administer the law;
38	38	(iii) an executive or other proceeding
39	39	before a department of the state or federal government or a
40	40	subdivision of the state or federal government;
41	41	(iv) a legislative proceeding, including a
42	42	proceeding of a legislative committee;
43	43	(v) a proceeding before an entity that
44	44	requires by rule that public notice be given before proceedings of
45	45	that entity;
46	46	(vi) a proceeding in or before a managing
47	47	board of an educational or eleemosynary institution supported
48	48	directly or indirectly from public revenue;
49	49	(vii) a proceeding of the governing body of
50	50	any political subdivision of this state;
51	51	(viii) a report of or debate and statements
52	52	made in a proceeding described by Subparagraph (iii), (iv), (v),
53	53	(vi), or (vii); or
54	54	(ix) a public meeting dealing with a public
55	55	purpose, including statements and discussions at the meeting or
56	56	other matters of public concern occurring at the meeting;
57	57	(B) a communication in connection with an issue
58	58	under consideration or review by a legislative, executive,
59	59	judicial, or other governmental body or in another governmental or
60	60	official proceeding;
61	61	(C) a communication that is reasonably likely to
62	62	encourage consideration or review of an issue by a legislative,
63	63	executive, judicial, or other governmental body or in another
64	64	governmental or official proceeding;
65	65	(D) a communication reasonably likely to enlist
66	66	public participation in an effort to effect consideration of an
67	67	issue by a legislative, executive, judicial, or other governmental
68	68	body or in another governmental or official proceeding; and
69	69	(E) any other communication that falls within the
70	70	protection of the right to petition government under the
71	71	Constitution of the United States or the constitution of this
72	72	state.
73	73	(5) "Governmental proceeding" means a proceeding,
74	74	other than a judicial proceeding, by an officer, official, or body
75	75	of this state or a political subdivision of this state, including a
76	76	board or commission, or by an officer, official, or body of the
77	77	federal government.
78	78	(6) "Legal action" means a lawsuit, cause of action,
79	79	petition, complaint, cross-claim, or counterclaim or any other
80	80	judicial pleading or filing that requests legal or equitable
81	81	relief.
82	82	(7) "Matter of public concern" includes an issue
83	83	related to:
84	84	(A) health or safety;
85	85	(B) environmental, economic, or community
86	86	well-being;
87	87	(C) the government;
88	88	(D) a public official or public figure; or
89	89	(E) a good, product, or service in the
90	90	marketplace.
91	91	(8) "Official proceeding" means any type of
92	92	administrative, executive, legislative, or judicial proceeding
93	93	that may be conducted before a public servant.
94	94	(9) "Public servant" means a person elected, selected,
95	95	appointed, employed, or otherwise designated as one of the
96	96	following, even if the person has not yet qualified for office or
97	97	assumed the person's duties:
98	98	(A) an officer, employee, or agent of government;
99	99	(B) a juror;
100	100	(C) an arbitrator, referee, or other person who
101	101	is authorized by law or private written agreement to hear or
102	102	determine a cause or controversy;
103	103	(D) an attorney or notary public when
104	104	participating in the performance of a governmental function; or
105	105	(E) a person who is performing a governmental
106	106	function under a claim of right but is not legally qualified to do
107	107	so.
108	108	Sec. 27.002. PURPOSE. The purpose of this chapter is to
109	109	encourage and safeguard the constitutional rights of persons to
110	110	petition, speak freely, associate freely, and otherwise
111	111	participate in government to the maximum extent permitted by law
112	112	and, at the same time, protect the rights of a person to file
113	113	meritorious lawsuits for demonstrable injury.
114	114	Sec. 27.003. MOTION TO DISMISS. (a) If a legal action is
115	115	based on, relates to, or is in response to a party's exercise of the
116	116	right of free speech, right to petition, or right of association,
117	117	that party may file a motion to dismiss the legal action.
118	118	(b) A motion to dismiss a legal action under this section
119	119	must be filed not later than the 60th day after the date of service
120	120	of the legal action. The court may extend the time to file a motion
121	121	under this section on a showing of good cause.
122	122	(c) Except as provided by Section 27.006(b), on the filing
123	123	of a motion under this section, all discovery in the legal action is
124	124	suspended until the court has ruled on the motion to dismiss.
125	125	Sec. 27.004. HEARING. A hearing on a motion under Section
126	126	27.003 must be set not later than the 30th day after the date of
127	127	service of the motion unless the docket conditions of the court
128	128	require a later hearing.
129	129	Sec. 27.005. RULING. (a) The court must rule on a motion
130	130	under Section 27.003 not later than the 30th day following the date
131	131	of the hearing on the motion.
132	132	(b) Except as provided by Subsection (c), on the motion of a
133	133	party under Section 27.003, a court shall dismiss a legal action
134	134	against the moving party if the moving party shows by a
135	135	preponderance of the evidence that the legal action is based on,
136	136	relates to, or is in response to the party's exercise of:
137	137	(1) the right of free speech;
138	138	(2) the right to petition; or
139	139	(3) the right of association.
140	140	(c) The court may not dismiss a legal action under this
141	141	section if the party bringing the legal action establishes by clear
142	142	and specific evidence a prima facie case for each essential element
143	143	of the claim in question.
144	144	Sec. 27.006. EVIDENCE. (a) In determining whether a legal
145	145	action should be dismissed under this chapter, the court shall
146	146	consider the pleadings and supporting and opposing affidavits
147	147	stating the facts on which the liability or defense is based.
148	148	(b) On a motion by a party or on the court's own motion and
149	149	on a showing of good cause, the court may allow specified and
150	150	limited discovery relevant to the motion.
151	151	Sec. 27.007. ADDITIONAL FINDINGS. (a) At the request of a
152	152	party making a motion under Section 27.003, the court shall issue
153	153	findings regarding whether the legal action was brought to deter or
154	154	prevent the moving party from exercising constitutional rights and
155	155	is brought for an improper purpose, including to harass or to cause
156	156	unnecessary delay or to increase the cost of litigation.
157	157	(b) The court must issue findings under Subsection (a) not
158	158	later than the 30th day after the date a request under that
159	159	subsection is made.
160	160	Sec. 27.008. APPEAL. (a) If a court does not rule on a
161	161	motion to dismiss under Section 27.003 in the time prescribed by
162	162	Section 27.005, the motion is considered to have been denied by
163	163	operation of law and the moving party may appeal.
164	164	(b) An appellate court shall expedite an appeal or other
165	165	writ, whether interlocutory or not, from a trial court order on a
166	166	motion to dismiss a legal action under Section 27.003 or from a
167	167	trial court's failure to rule on that motion in the time prescribed
168	168	by Section 27.005.
169	169	(c) An appeal or other writ under this section must be filed
170	170	on or before the 60th day after the date the trial court's order is
171	171	signed or the time prescribed by Section 27.005 expires, as
172	172	applicable.
173	173	Sec. 27.009. DAMAGES AND COSTS. (a) If the court orders
174	174	dismissal of a legal action under this chapter, the court shall
175	175	award to the moving party:
176	176	(1) court costs, reasonable attorney's fees, and other
177	177	expenses incurred in defending against the legal action as justice
178	178	and equity may require; and
179	179	(2) sanctions against the party who brought the legal
180	180	action as the court determines sufficient to deter the party who
181	181	brought the legal action from bringing similar actions described in
182	182	this chapter.
183	183	(b) If the court finds that a motion to dismiss filed under
184	184	this chapter is frivolous or solely intended to delay, the court may
185	185	award court costs and reasonable attorney's fees to the responding
186	186	party.
187	187	Sec. 27.010. EXEMPTIONS. (a) This chapter does not apply
188	188	to an enforcement action that is brought in the name of this state
189	189	or a political subdivision of this state by the attorney general, a
190	190	district attorney, a criminal district attorney, or a county
191	191	attorney.
192	192	(b) This chapter does not apply to a legal action brought
193	193	against a person primarily engaged in the business of selling or
194	194	leasing goods or services, if the statement or conduct arises out of
195	195	the sale or lease of goods, services, or an insurance product or a
196	196	commercial transaction in which the intended audience is an actual
197	197	or potential buyer or customer.
198	198	(c) This chapter does not apply to a legal action seeking
199	199	recovery for bodily injury, wrongful death, or survival or to
200	200	statements made regarding that legal action.
201	201	Sec. 27.011. CONSTRUCTION. (a) This chapter does not
202	202	abrogate or lessen any other defense, remedy, immunity, or
203	203	privilege available under other constitutional, statutory, case,
204	204	or common law or rule provisions.
205	205	(b) This chapter shall be construed liberally to effectuate
206	206	its purpose and intent fully.
207	207	SECTION 3. The change in law made by this Act applies only
208	208	to a legal action filed on or after the effective date of this Act.
209	209	A legal action filed before the effective date of this Act is
210	210	governed by the law in effect immediately before that date, and that
211	211	law is continued in effect for that purpose.
212	212	SECTION 4. This Act takes effect immediately if it receives
213	213	a vote of two-thirds of all the members elected to each house, as
214	214	provided by Section 39, Article III, Texas Constitution. If this
215	215	Act does not receive the vote necessary for immediate effect, this
216	216	Act takes effect September 1, 2011.
217	217	* * * * *