By: Leach, et al. (Senate Sponsor - Hughes) H.B. No. 2730
(In the Senate - Received from the House May 1, 2019;
May 1, 2019, read first time and referred to Committee on State
Affairs; May 14, 2019, reported favorably by the following vote:
Yeas 9, Nays 0; May 14, 2019, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to civil actions involving the exercise of certain
constitutional rights.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 27.001(2), (6), and (7), Civil Practice
and Remedies Code, are amended to read as follows:
(2) "Exercise of the right of association" means to [a
communication between individuals who] join together to
collectively express, promote, pursue, or defend common interests
relating to a governmental proceeding or a matter of public
concern.
(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, declaratory, or
equitable relief. The term does not include:
(A) a procedural action taken or motion made in
an action that does not amend or add a claim for legal, equitable,
or declaratory relief;
(B) alternative dispute resolution proceedings;
or
(C) post-judgment enforcement actions.
(7) "Matter of public concern" means a statement or
activity regarding:
(A) a public official, public figure, or other
person who has drawn substantial public attention due to the
person's official acts, fame, notoriety, or celebrity;
(B) a matter of political, social, or other
interest to the community; or
(C) a subject of concern to the public [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].
SECTION 2. Section 27.003, Civil Practice and Remedies
Code, is amended by amending Subsections (a) and (b) and adding
Subsections (d) and (e) to read as follows:
(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 or arises from any act of that
party in furtherance of the party's communication or conduct
described by Section 27.010(b), that party may file a motion to
dismiss the legal action. A party under this section does not
include a government entity, agency, or an official or employee
acting in an official capacity.
(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 parties, upon mutual agreement, may
extend the time to file a motion under this section or the court may
extend the time to file a motion under this section on a showing of
good cause.
(d) The moving party shall provide written notice of the
date and time of the hearing under Section 27.004 not later than 21
days before the date of the hearing unless otherwise provided by
agreement of the parties or an order of the court.
(e) A party responding to the motion to dismiss shall file
the response, if any, not later than seven days before the date of
the hearing on the motion to dismiss unless otherwise provided by an
agreement of the parties or an order of the court.
SECTION 3. Sections 27.005(a), (b), and (d), Civil Practice
and Remedies Code, are amended to read as follows:
(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 concludes.
(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 demonstrates [shows by
a preponderance of the evidence] that the legal action is based on[,
relates to,] or is in response to:
(1) the party's exercise of:
(A) [(1)] the right of free speech;
(B) [(2)] the right to petition; or
(C) [(3)] the right of association; or
(2) the act of a party described by Section 27.010(b).
(d) Notwithstanding the provisions of Subsection (c), the
court shall dismiss a legal action against the moving party if the
moving party establishes an affirmative defense or other grounds on
which the moving party is entitled to judgment as a matter of law
[by a preponderance of the evidence each essential element of a
valid defense to the nonmovant's claim].
SECTION 4. The heading to Section 27.006, Civil Practice
and Remedies Code, is amended to read as follows:
Sec. 27.006. PROOF [EVIDENCE].
SECTION 5. Section 27.006(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) In determining whether a legal action is subject to or
should be dismissed under this chapter, the court shall consider
the pleadings, evidence a court could consider under Rule 166a,
Texas Rules of Civil Procedure, and supporting and opposing
affidavits stating the facts on which the liability or defense is
based.
SECTION 6. Section 27.007(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) If the court awards sanctions under Section 27.009(b)
[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.
SECTION 7. Chapter 27, Civil Practice and Remedies Code, is
amended by adding Section 27.0075 to read as follows:
Sec. 27.0075. EFFECT OF RULING. Neither the court's ruling
on the motion nor the fact that it made such a ruling shall be
admissible in evidence at any later stage of the case, and no burden
of proof or degree of proof otherwise applicable shall be affected
by the ruling.
SECTION 8. Section 27.009, Civil Practice and Remedies
Code, is amended by amending Subsection (a) and adding Subsection
(c) to read as follows:
(a) Except as provided by Subsection (c), if [If] the court
orders dismissal of a legal action under this chapter, the court
[shall award to the moving party]:
(1) shall award to the moving party court costs and [,]
reasonable attorney's fees[, and other expenses] incurred in
defending against the legal action [as justice and equity may
require]; and
(2) may award to the moving party 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.
(c) If the court orders dismissal of a compulsory
counterclaim under this chapter, the court may award to the moving
party reasonable attorney's fees incurred in defending against the
counterclaim if the court finds that the counterclaim is frivolous
or solely intended for delay.
SECTION 9. Section 27.010, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 27.010. EXEMPTIONS. (a) This chapter does not apply
to:
(1) 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;
(2) [.
[(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,
insurance services, or a commercial transaction in which the
intended audience is an actual or potential buyer or customer;
(3) [.
[(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;
(4) [.
[(d) This chapter does not apply to] a legal action brought
under the Insurance Code or arising out of an insurance contract;
(5) a legal action arising from an officer-director,
employee-employer, or independent contractor relationship that:
(A) seeks recovery for misappropriation of trade
secrets or corporate opportunities; or
(B) seeks to enforce a non-disparagement
agreement or a covenant not to compete;
(6) a legal action filed under Title 1, 2, 4, or 5,
Family Code, or an application for a protective order under Chapter
7A, Code of Criminal Procedure;
(7) a legal action brought under Chapter 17, Business &
Commerce Code, other than an action governed by Section 17.49(a)
of that chapter;
(8) a legal action in which a moving party raises a
defense pursuant to Section 160.010, Occupations Code, Section
161.033, Health and Safety Code, or the Health Care Quality
Improvement Act of 1986 (42 U.S.C. 11101 et seq.);
(9) an eviction suit brought under Chapter 24,
Property Code;
(10) a disciplinary action or disciplinary proceeding
brought under Chapter 81, Government Code, or the Texas Rules of
Disciplinary Procedure;
(11) a legal action brought under Chapter 554,
Government Code; or
(12) a legal action based on a common law fraud claim.
(b) Notwithstanding Subsections (a)(2), (7), and (12), this
chapter applies to:
(1) a legal action against a person arising from any
act of that person, whether public or private, related to the
gathering, receiving, posting, or processing of information for
communication to the public, whether or not the information is
actually communicated to the public, for the creation,
dissemination, exhibition, or advertisement or other similar
promotion of a dramatic, literary, musical, political,
journalistic, or otherwise artistic work, including audio-visual
work regardless of the means of distribution, a motion picture, a
television or radio program, or an article published in a
newspaper, website, magazine, or other platform, no matter the
method or extent of distribution; and
(2) a legal action against a person related to the
communication, gathering, receiving, posting, or processing of
consumer opinions or commentary, evaluations of consumer
complaints, or reviews or ratings of businesses.
(c) This chapter applies to a legal action against a victim
or alleged victim of family violence or dating violence as defined
in Chapter 71, Family Code, or an offense under Chapter 20, 20A, 21,
or 22, Penal Code, based on or in response to a public or private
communication.
SECTION 10. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are declared to be severable.
SECTION 11. Chapter 27, Civil Practice and Remedies Code,
as amended by this Act, applies only to an action filed on or after
the effective date of this Act. An 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 12. This Act takes effect September 1, 2019.
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