By: Cain H.B. No. 2100
A BILL TO BE ENTITLED
AN ACT
relating to the protection of expressive activities at state
facilities, including institutions of higher education; creating a
civil action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2165, Government Code, is amended by
adding a new Subchapter J to read as follows:
SUBCHAPTER J. PROTECTION OF EXPRESSION
2165.450. APPLICABILITY. The exceptions provided by Section
2165.002 do not apply to this section.
2165.451. DEFINITIONS. In this section:
(a) "Expressive activities" means any speech or expressive
conduct protected by the First Amendment to the United States
Constitution or by Sections 6 and 8, Article I, Texas Constitution,
and includes assemblies, protests, speeches, the distribution of
written or visual material, the carrying of signs, and the
circulation of petitions. The term does not include commercial
speech;
(b) "Disruptive activity" has the meaning assigned by
Section 51.935(b), Education Code;
(c) "Employee" means a person employed by a state agency or
institution of higher education in an executive, professional,
administrative, or clerical capacity;
(d) "Institution of higher education" has the meaning
assigned by Section 61.003, Education Code.
(e) "Matter of public concern" means an issue related to:
(1) health or safety;
(2) environmental, economic, or community well-being;
(3) the government;
(4) a public official or public figure;
(5) a good, product, or service in the marketplace; or
(6) a public policy controversy.
2165.452. AFFIRMATIVE RESPONSIBILITIES OF COMMISSION,
AGENCY, or INSTITUTION. The commission, a state agency, or an
institution of higher education shall:
(a) ensure that the common outdoor areas of the buildings,
grounds, or property under the control of the commission, state
agency, or institution of higher education are deemed traditional
public forums; and
(b) permit any person lawfully present to engage in
expressive activities in those areas freely, as long as the
person's conduct:
(1) is not unlawful;
(2) is not a disruptive activity; and
(3) does not materially and substantially disrupt the
functioning of the commission, agency, or institution.
2165.453. REASONABLE RESTRICTIONS. Notwithstanding Section
2165.452, the commission, a state agency, or an institution of
higher education by rule may maintain and enforce reasonable
restrictions on the time, place, and manner of expressive
activities in the common outdoor areas of any public buildings,
grounds, or property under the control of the commission, state
agency, or institution of higher education, if those restrictions:
(a) employ clear, published, content-neutral, and
viewpoint-neutral criteria;
(b) are necessary to serve a compelling state interest;
(c) are the least restrictive means to further that
compelling state interest;
(d) leave ample alternative means of expression; and
(e) allow members of the public to spontaneously and
contemporaneously assemble or distribute written material without
a permit or other permission from the commission, state agency, or
institution of higher education.
2165.453. NON LIMITATION. Sections 2165.452 and 2165.453 do
not limit the right of expression at any other location on the
public buildings, grounds, or property.
2165.454. EQUAL APPLICATION. The protections under this
subchapter apply equally to all persons, regardless of whether the
person is recognized by or registered with the commission, state
agency, or institution of higher education.
2165.455. POLICIES. (a) The commission, each state agency,
and each institution of higher education shall adopt a policy that
must:
(1) prohibit:
(A) the commission, agency, or institution, or
any employee of such commission, agency, or institution, from
punishing a person in any manner for engaging in expressive
activities;
(B) the commission, agency, or institution from
taking action on a matter of public concern in a way as to require
employees or other persons under the jurisdiction of the
commission, agency, or institution of higher education to publicly
express a given view of a matter of public concern;
(2) encourage the free and open exchange of ideas,
including unpopular, controversial, or offensive ideas, on the
public buildings, grounds, or property under the control of the
commission, state agency, or institution of higher education; and
(3) establishes disciplinary sanctions for employees
of the commission, state agency, or institution of higher education
for employees who unduly interfere with such expressive activities.
(b) The commission, state agency, or institution of higher
education must make the policy adopted under this section available
on the commission's, agency's, or institution's website.
2165.456. INJUNCTIVE RELIEF. (a) The attorney general or a
person whose expressive rights have been violated under this
subchapter may bring an action in state court for injunctive relief
to compel the commission, state agency, or institution of higher
education to comply with this section.
(b) The person bringing an action for injunctive relief
under this section may recover compensatory damages, court costs,
and reasonable attorney's fees.
For purposes of this section,
compensatory damages means the greater of:
(1) the amount of the person's compensatory damages;
or
(2) $1,000.
(c) Venue for an action under this section is appropriate in
the county in which the violation occurred.
(d) An action brought under this section must commence not
later than one year after the violation occurs. For purposes of
computing the limitation period, each day of a continuing
violation, including each day a rule or policy violating this
section remains in effect, constitutes a separate violation.
2165.457. CIVIL CAUSE OF ACTION. In addition to a suit for
injunctive relief under Section 2165.456, a person whose expressive
rights are affected by a rule or policy adopted by the commission, a
state agency, or an institution of higher education may bring a
civil action against the commission, agency, or institution for
declaratory judgment in the manner provide by Chapter 37, Civil
Practice and Remedies Code.
2165.458. WAIVER OF SOVEREIGN AND GOVERNMENTAL IMMUNITY.
Sovereign immunity and governmental immunity are waived for a
violation of this subchapter.
SECTION 2. Not later than August 1, 2020, the policies
required under Section 2165.455 as required by this Act must be
adopted.
SECTION 3. 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, 2019.