83R20953 CAE-F
By: Hunter, Herrero, Martinez Fischer, Cook H.B. No. 1759
A BILL TO BE ENTITLED
AN ACT
relating to a correction, clarification, or retraction of incorrect
information published.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 73, Civil Practice and Remedies Code, is
amended by designating Sections 73.001 through 73.006 as Subchapter
A and adding a subchapter heading to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 2. Chapter 73, Civil Practice and Remedies Code, is
amended by adding Subchapter B to read as follows:
SUBCHAPTER B. CORRECTION, CLARIFICATION, OR RETRACTION BY
PUBLISHER
Sec. 73.051. SHORT TITLE. This subchapter may be cited as
the Defamation Mitigation Act. This subchapter shall be liberally
construed.
Sec. 73.052. PURPOSE. The purpose of this subchapter is to
provide a method for a person who has been defamed by a publication
or broadcast to mitigate any perceived damage or injury.
Sec. 73.053. DEFINITION. In this subchapter, "person"
means an individual, corporation, business trust, estate, trust,
partnership, association, joint venture, or other legal or
commercial entity. The term does not include a government or
governmental subdivision, agency, or instrumentality.
Sec. 73.054. APPLICABILITY. (a) This subchapter applies
to a claim for relief, however characterized, from damages arising
out of harm to personal reputation caused by the false content of a
publication.
(b) This subchapter applies to all publications, including
writings, broadcasts, oral communications, electronic
transmissions, or other forms of transmitting information.
Sec. 73.055. REQUEST FOR CORRECTION, CLARIFICATION, OR
RETRACTION. (a) A person may maintain an action for defamation
only if:
(1) the person has made a timely and sufficient
request for a correction, clarification, or retraction from the
defendant; or
(2) the defendant has made a correction,
clarification, or retraction.
(b) A request for a correction, clarification, or
retraction is timely if made during the period of limitation for
commencement of an action for defamation.
(c) If not later than the 90th day after receiving knowledge
of the publication, the person does not request a correction,
clarification, or retraction, the person may not recover exemplary
damages.
(d) A request for a correction, clarification, or
retraction is sufficient if it:
(1) is served on the publisher;
(2) is made in writing, reasonably identifies the
person making the request, and is signed by the individual claiming
to have been defamed or by the person's authorized attorney or
agent;
(3) states with particularity the statement alleged to
be false and defamatory and, to the extent known, the time and place
of publication;
(4) alleges the defamatory meaning of the statement;
and
(5) specifies the circumstances causing a defamatory
meaning of the statement if it arises from something other than the
express language of the publication.
(e) A period of limitation for commencement of an action
under this section is tolled during the period allowed by Sections
73.056 and 73.057.
Sec. 73.056. DISCLOSURE OF EVIDENCE OF FALSITY. (a) A
person who has been requested to make a correction, clarification,
or retraction may ask the person making the request to provide
reasonably available information regarding the falsity of the
allegedly defamatory statement not later than the 30th day after
the date the person receives the request. Any information
requested under this section must be provided by the person seeking
the correction, clarification, or retraction not later than the
30th day after the date the person receives the request.
(b) If a correction, clarification, or retraction is not
made, a person who, without good cause, fails to disclose the
information requested under Subsection (a) may not recover
exemplary damages, unless the publication was made with actual
malice.
Sec. 73.057. TIMELY AND SUFFICIENT CORRECTION,
CLARIFICATION, OR RETRACTION. (a) A correction, clarification, or
retraction is timely if it is made not later than the 30th day after
receipt of:
(1) the request for the correction, clarification, or
retraction; or
(2) the information requested under Section
73.056(a).
(b) A correction, clarification, or retraction is
sufficient if it is published in the same manner and medium as the
original publication or, if that is not possible, with a prominence
and in a manner and medium reasonably likely to reach substantially
the same audience as the publication complained of and:
(1) is publication of an acknowledgment that the
statement specified as false and defamatory is erroneous;
(2) is an allegation that the defamatory meaning
arises from other than the express language of the publication and
the publisher disclaims an intent to communicate that meaning or to
assert its truth;
(3) is a statement attributed to another person whom
the publisher identifies and the publisher disclaims an intent to
assert the truth of the statement; or
(4) is publication of the requestor's statement of the
facts, as set forth in a request for correction, clarification, or
retraction, or a fair summary of the statement, exclusive of any
portion that is defamatory of another, obscene, or otherwise
improper for publication.
(c) If a request for correction, clarification, or
retraction has specified two or more statements as false and
defamatory, the correction, clarification, or retraction may deal
with the statements individually in any manner provided by
Subsection (b).
(d) Except as provided by Subsection (e), a correction,
clarification, or retraction is published with a prominence and in
a manner and medium reasonably likely to reach substantially the
same audience as the publication complained of if:
(1) it is published in a later issue, edition, or
broadcast of the original publication;
(2) publication is in the next practicable issue,
edition, or broadcast of the original publication because the
publication will not be published within the time limits
established for a timely correction, clarification, or retraction;
or
(3) the original publication no longer exists and if
the correction, clarification, or retraction is published in the
newspaper with the largest general circulation in the region in
which the original publication was distributed.
(e) If the original publication was on the Internet, a
correction, clarification, or retraction is published with a
prominence and in a manner and medium reasonably likely to reach
substantially the same audience as the publication complained of if
the publisher appends to the original publication the correction,
clarification, or retraction.
Sec. 73.058. CHALLENGES TO CORRECTION, CLARIFICATION, OR
RETRACTION OR TO REQUEST FOR CORRECTION, CLARIFICATION, OR
RETRACTION. (a) If a defendant in an action under this subchapter
intends to rely on a timely and sufficient correction,
clarification, or retraction, the defendant's intention to do so,
and the correction, clarification, or retraction relied on, must be
stated in a notice served on the plaintiff on the later of:
(1) the 60th day after service of the citation; or
(2) the 10th day after the date the correction,
clarification, or retraction is made.
(b) A correction, clarification, or retraction is timely
and sufficient unless the plaintiff challenges the timeliness or
sufficiency not later than the 20th day after the date notice under
Subsection (a) is served. If a plaintiff challenges the timeliness
or sufficiency, the plaintiff must state the challenge in a motion
to declare the correction, clarification, or retraction untimely or
insufficient served not later than the 30th day after the date
notice under Subsection (a) is served on the plaintiff or the 30th
day after the date the correction, clarification, or retraction is
made, whichever is later.
(c) If a defendant intends to challenge the sufficiency or
timeliness of a request for a correction, clarification, or
retraction, the defendant must state the challenge in a motion to
declare the request insufficient or untimely served not later than
the 60th day after the date of service of the citation.
(d) Unless there is a reasonable dispute regarding the
actual contents of the request for correction, clarification, or
retraction, the sufficiency and timeliness of a request for
correction, clarification, or retraction is a question of law. At
the earliest appropriate time before trial, the court shall rule,
as a matter of law, whether the request for correction,
clarification, or retraction meets the requirements of this
subchapter.
Sec. 73.059. EFFECT OF CORRECTION, CLARIFICATION, OR
RETRACTION. If a correction, clarification, or retraction is made
in accordance with this subchapter, regardless of whether the
person claiming harm made a request, a person may not recover
exemplary damages unless the publication was made with actual
malice.
Sec. 73.060. SCOPE OF PROTECTION. A timely and sufficient
correction, clarification, or retraction made by a person
responsible for a publication constitutes a correction,
clarification, or retraction made by all persons responsible for
that publication but does not extend to an entity that republished
the information.
Sec. 73.061. ADMISSIBILITY OF EVIDENCE OF CORRECTION,
CLARIFICATION, OR RETRACTION. (a) A request for a correction,
clarification, or retraction, the contents of the request, and the
acceptance or refusal of the request are not admissible evidence at
a trial.
(b) The fact that a correction, clarification, or
retraction was made and the contents of the correction,
clarification, or retraction are not admissible in evidence at
trial except in mitigation of damages under Section 73.003(a)(3).
If a correction, clarification, or retraction is received into
evidence, the request for the correction, clarification, or
retraction may also be received into evidence.
(c) The fact that an offer of a correction, clarification,
or retraction was made and the contents of the offer, and the fact
that the correction, clarification, or retraction was refused, are
not admissible in evidence at trial.
Sec. 73.062. ABATEMENT. (a) A person against whom a suit
is pending who does not receive a written request for a correction,
clarification, or retraction, as required by Section 73.055, may
file a plea in abatement not later than the 30th day after the date
the person files an original answer in the court in which the suit
is pending.
(b) A suit is automatically abated, in its entirety, without
the order of the court, beginning on the 11th day after the date a
plea in abatement is filed under Subsection (a) if the plea in
abatement:
(1) is verified and alleges that the person against
whom the suit is pending did not receive the written request as
required by Section 73.055; and
(2) is not controverted in an affidavit filed by the
person bringing the claim before the 11th day after the date on
which the plea in abatement is filed.
(c) An abatement under Subsection (b) continues until the
60th day after the date that the written request is served in
compliance with Section 73.055, the information requested under
Section 73.056(a) is provided, or the time period under Section
73.056(a) has expired, whichever is later. If a controverting
affidavit is filed under Subsection (b)(2), a hearing on the plea in
abatement will take place as soon as practical considering the
court's docket.
(d) All statutory and judicial deadlines under the Texas
Rules of Civil Procedure relating to a suit abated under Subsection
(b), other than those provided in this section, will be stayed
during the pendency of the abatement period under this section.
SECTION 3. This Act applies only to information published
on or after the effective date of this Act. Information published
before the effective date of this Act is governed by the law in
effect when the information was published, and the former 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, 2013.