By: Ellis, Eltife S.B. No. 1565
(In the Senate - Filed March 10, 2011; March 23, 2011, read
first time and referred to Committee on State Affairs;
April 13, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 8, Nays 0; April 13, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1565 By: Ellis
A BILL TO BE ENTITLED
AN ACT
relating to encouraging public participation by citizens by
protecting a person's right to petition, right of free speech, and
right of association from meritless lawsuits arising from actions
taken in furtherance of those rights.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Citizens
Participation Act.
SECTION 2. Subtitle B, Title 2, Civil Practice and Remedies
Code, is amended by adding Chapter 27 to read as follows:
CHAPTER 27. ACTIONS INVOLVING THE EXERCISE OF CERTAIN
CONSTITUTIONAL RIGHTS
Sec. 27.001. DEFINITIONS. In this chapter:
(1) "Communication" includes the making or submitting
of a statement or document in any form or medium, including oral,
visual, written, audiovisual, or electronic.
(2) "Exercise of the right of association" means a
communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.
(3) "Exercise of the right of free speech" means a
communication made in connection with a matter of public concern.
(4) "Exercise of the right to petition" means any of
the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, other than a
judicial proceeding, to administer the law;
(iii) an executive or other proceeding
before a department of the state or federal government or a
subdivision of the state or federal government;
(iv) a legislative proceeding, including a
proceeding of a legislative committee;
(v) a proceeding before an entity that
requires by rule that public notice be given before proceedings of
that entity;
(vi) a proceeding in or before a managing
board of an educational or eleemosynary institution supported
directly or indirectly from public revenue;
(vii) a proceeding of the governing body of
any political subdivision of this state;
(viii) a report of or debate and statements
made in a proceeding described by Subparagraph (iii), (iv), (v),
(vi), or (vii); or
(ix) a public meeting dealing with a public
purpose, including statements and discussions at the meeting or
other matters of public concern occurring at the meeting;
(B) a communication in connection with an issue
under consideration or review by a legislative, executive,
judicial, or other governmental body or in another governmental or
official proceeding;
(C) a communication that is reasonably likely to
encourage consideration or review of an issue by a legislative,
executive, judicial, or other governmental body or in another
governmental or official proceeding;
(D) a communication reasonably likely to enlist
public participation in an effort to effect consideration of an
issue by a legislative, executive, judicial, or other governmental
body or in another governmental or official proceeding; and
(E) any other communication that falls within the
protection of the right to petition government under the
Constitution of the United States or the constitution of this
state.
(5) "Governmental proceeding" means a proceeding,
other than a judicial proceeding, by an officer, official, or body
of this state or a political subdivision of this state, including a
board or commission, or by an officer, official, or body of the
federal government.
(6) "Legal action" means a lawsuit, cause of action,
petition, complaint, cross-claim, or counterclaim or any other
judicial pleading or filing that requests legal or equitable
relief.
(7) "Matter of public concern" includes an issue
related to:
(A) health or safety;
(B) environmental, economic, or community
well-being;
(C) the government;
(D) a public official or public figure; or
(E) a good, product, or service in the
marketplace.
(8) "Official proceeding" means any type of
administrative, executive, legislative, or judicial proceeding
that may be conducted before a public servant.
(9) "Public servant" means a person elected, selected,
appointed, employed, or otherwise designated as one of the
following, even if the person has not yet qualified for office or
assumed the person's duties:
(A) an officer, employee, or agent of government;
(B) a juror;
(C) an arbitrator, referee, or other person who
is authorized by law or private written agreement to hear or
determine a cause or controversy;
(D) an attorney or notary public when
participating in the performance of a governmental function; or
(E) a person who is performing a governmental
function under a claim of right but is not legally qualified to do
so.
Sec. 27.002. PURPOSE. The purpose of this chapter is to
encourage and safeguard the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law
and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury.
Sec. 27.003. MOTION TO DISMISS. (a) If a legal action is
based on, relates to, or is in response to a party's exercise of the
right of free speech, right to petition, or right of association,
that party may file a motion to dismiss the legal action.
(b) A motion to dismiss a legal action under this section
must be filed not later than the 60th day after the date of service
of the legal action. The court may extend the time to file a motion
under this section on a showing of good cause.
(c) Except as provided by Section 27.006(b), on the filing
of a motion under this section, all discovery in the legal action is
suspended until the court has ruled on the motion to dismiss.
Sec. 27.004. HEARING. A hearing on a motion under Section
27.003 must be set not later than the 30th day after the date of
service of the motion unless the docket conditions of the court
require a later hearing.
Sec. 27.005. RULING. (a) The court must rule on a motion
under Section 27.003 not later than the 30th day following the date
of the hearing on the motion.
(b) Except as provided by Subsection (c), on the motion of a
party under Section 27.003, a court shall dismiss a legal action
against the moving party if the moving party shows by a
preponderance of the evidence that the legal action is based on,
relates to, or is in response to the party's exercise of:
(1) the right of free speech;
(2) the right to petition; or
(3) the right of association.
(c) The court may not dismiss a legal action under this
section if the party bringing the legal action establishes by clear
and specific evidence a prima facie case for each essential element
of the claim in question.
Sec. 27.006. EVIDENCE. (a) In determining whether a legal
action should be dismissed under this chapter, the court shall
consider the pleadings and supporting and opposing affidavits
stating the facts on which the liability or defense is based.
(b) On a motion by a party or on the court's own motion and
on a showing of good cause, the court may allow specified and
limited discovery relevant to the motion.
Sec. 27.007. ADDITIONAL FINDINGS. (a) At the request of a
party making a motion under Section 27.003, the court shall issue
findings regarding whether the legal action was brought to deter or
prevent the moving party from exercising constitutional rights and
is brought for an improper purpose, including to harass or to cause
unnecessary delay or to increase the cost of litigation.
(b) The court must issue findings under Subsection (a) not
later than the 30th day after the date a request under that
subsection is made.
Sec. 27.008. APPEAL. (a) If a court does not rule on a
motion to dismiss under Section 27.003 in the time prescribed by
Section 27.005, the motion is considered to have been denied by
operation of law and the moving party may appeal.
(b) An appellate court shall expedite an appeal or other
writ, whether interlocutory or not, from a trial court order on a
motion to dismiss a legal action under Section 27.003 or from a
trial court's failure to rule on that motion in the time prescribed
by Section 27.005.
(c) An appeal or other writ under this section must be filed
on or before the 60th day after the date the trial court's order is
signed or the time prescribed by Section 27.005 expires, as
applicable.
Sec. 27.009. DAMAGES AND COSTS. (a) If the court orders
dismissal of a legal action under this chapter, the court shall
award to the moving party:
(1) court costs, reasonable attorney's fees, and other
expenses incurred in defending against the legal action as justice
and equity may require; and
(2) sanctions against the party who brought the legal
action as the court determines sufficient to deter the party who
brought the legal action from bringing similar actions described in
this chapter.
(b) If the court finds that a motion to dismiss filed under
this chapter is frivolous or solely intended to delay, the court may
award court costs and reasonable attorney's fees to the responding
party.
Sec. 27.010. EXEMPTIONS. (a) This chapter does not apply
to 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.
(b) This chapter does not apply to 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 or a
commercial transaction in which the intended audience is an actual
or potential buyer or customer.
(c) This chapter does not apply to a legal action seeking
recovery for bodily injury, wrongful death, or survival or to
statements made regarding that legal action.
Sec. 27.011. CONSTRUCTION. (a) This chapter does not
abrogate or lessen any other defense, remedy, immunity, or
privilege available under other constitutional, statutory, case,
or common law or rule provisions.
(b) This chapter shall be construed liberally to effectuate
its purpose and intent fully.
SECTION 3. The change in law made by this Act applies only
to a legal action filed on or after the effective date of this Act.
A legal action filed before the effective date of this Act is
governed by the law in effect immediately before that date, and that
law is continued in effect for that purpose.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.
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