By: Toth H.B. No. 1752
A BILL TO BE ENTITLED
AN ACT
relating to liability for the provision to certain children of
procedures and treatments for gender transitioning, gender
reassignment, or gender dysphoria; providing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 74B to be read as follows:
CHAPTER 74B. LIABILITY FOR CAUSING THE STERILIZATION, CASTRATION,
OR GENITAL MUTILATION OF A MINOR.
Sec. 74B.001. LIABILITY PROVISIONS. (a) Any person who:
(1) knowingly prescribes puberty blockers or hormone
therapy to a minor for the purpose of transitioning a child's
biological sex as determined by the sex organs, chromosomes, and
endogenous profiles of the child or affirming the child's
perception of the child's sex if that perception is inconsistent
with the child's biological sex;
(2) knowingly performs a sex-change operation on a
minor; or
(3) knowingly aids or abets the conduct described in
subsections (1)-(3), shall be strictly, absolutely, and jointly and
severally liable in tort for any personal injuries resulting from
the conduct described in this subsection.
(b) Notwithstanding any other law, a person injured by the
conduct described in subsection (a) may bring a civil action
against those who knowingly engaged in the conduct or knowingly
aided or abetted the conduct that caused his injuries, and shall be
entitled to recover:
(1) nominal damages;
(2) compensatory damages;
(3) punitive damages in an amount of not less than
$10,000,000 from each defendant if irreversible sterilization or
sexual dysfunction results, in addition to any compensatory damages
that may be awarded; and
(4) costs and reasonable attorney's fees.
(c) Notwithstanding any other law, a person may bring an
action under this section not later than the 20th anniversary of the
date the cause of action accrues.
(d) Notwithstanding any other law, the following are not a
defense to an action brought under this section:
(1) ignorance or mistake of law;
(2) a defendant's belief that the requirements or
provisions of this chapter are unconstitutional or were
unconstitutional;
(3) a defendant's reliance on any court decision that
has been vacated, reversed, or overruled on appeal or by a
subsequent court, even if that court decision had not been vacated,
reversed, or overruled when the conduct described in subsection (a)
occurred;
(4) a defendant's reliance on any state or federal
court decision that is not binding on the court in which the action
has been brought;
(5) a defendant's reliance on any federal statute,
agency rule or action, or treaty that has been repealed,
superseded, or declared invalid or unconstitutional, even if that
federal statute, agency rule or action, or treaty had not been
repealed, superseded, or declared invalid or unconstitutional when
the conduct described in subsection (a) occurred;
(6) non-mutual issue preclusion or non-mutual claim
preclusion;
(7) the consent of the plaintiff to the defendant's
conduct;
(8) contributory or comparative negligence;
(9) assumption of risk;
(10) sovereign immunity, governmental immunity,
official immunity, or qualified immunity;
(11) the plaintiff's waiver or purported waiver of
their right to sue under this section;
(12) the plaintiff's failure to exhaust administrative
remedies; or
(13) any claim that the enforcement of this chapter or
the imposition of civil liability against the defendant will
violate the constitutional rights of third parties, except as
provided by Subsection (h).
(e) Notwithstanding any other law, including Chapter 17,
Civil Practice and Remedies Code, the courts of this state shall
have personal jurisdiction over any defendant sued under this
section to the maximum extent permitted by the Fourteenth Amendment
to the United States Constitution.
(f) Notwithstanding any other law, the law of Texas shall
apply to any gender-transitioning treatment provided to a resident
or citizen of Texas, regardless of where that treatment occurred,
and to any civil action brought under this Section, to the maximum
extent permitted by the Constitution of the United States and the
Constitution of Texas. Any contractual choice-of-law provision
that purports to require the law of a different jurisdiction to
apply shall be void as against public policy, and may not be
enforced in any state or federal court. This section shall apply
extraterritorially to the maximum extent permitted by the
Constitution of the United States and the Constitution of Texas.
(g) A civil action under this section may not be brought
against any person that acted at the behest of federal agencies,
contractors, or employees that are carrying out duties under
federal law, if the imposition of liability upon that person would
violate the doctrines of preemption or intergovernmental immunity.
(h) A defendant against whom an action is brought under this
section may assert an affirmative defense to liability under this
subsection if:
(1) the imposition of liability on the defendant will
violate constitutional or federally protected rights that belong to
the defendant personally; or
(2) the defendant
(A) has standing to assert the rights of a third
party under the tests for third-party standing established by the
Supreme Court of the United States; and
(B) demonstrates that the imposition of
liability on the defendant will violate constitutional or federally
protected rights belonging to that third party.
(i) Nothing in this section or chapter shall limit or
preclude a defendant from asserting the unconstitutionality of any
provision or application of Texas law as a defense to liability
under this section, or from asserting any other defense that might
be available under any other source of law.
(j) Notwithstanding any other law, the requirements of this
section shall be enforced exclusively through the private civil
actions described in Subsections (a) and (b). No direct or indirect
enforcement of this section may be taken or threatened by the state,
a political subdivision, a district or county attorney, or any
officer or employee of this state or a political subdivision
against any person or entity, by any means whatsoever, and no
violation of this section may be used to justify or trigger the
enforcement of any other law or any type of adverse consequence
under any other law, except through the private civil actions
described in Subsections (a) and (b). This section does not
preclude or limit the enforcement of any other law or regulation
against conduct that is independently prohibited by such other law
or regulation, and that would remain prohibited by such other law or
regulation in the absence of this section.
Sec. 74B.002 VENUE. (a) Notwithstanding any other law,
including Chapter 15, Civil Practice and Remedies Code, a civil
action brought under Section 1 may be brought in:
(1) the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) the county of residence for any one of the natural
person defendants at the time the cause of action accrued;
(3) the county of the principal office in this state of
any one of the defendants that is not a natural person; or
(4) the county of residence for the claimant if the
claimant is a natural person residing in this state.
(b) If a civil action is brought under Section 1 in any one
of the venues described by Subsection (a), then the action may not
be transferred to a different venue without the written consent of
all parties.
(c) Any contractual choice-of-forum provision that purports
to require a civil action under Section 1 to be litigated in another
forum shall be void as against public policy, and may not be
enforced in any state or federal court.
Sec. 74B.003. IMMUNITY FROM SUIT AND LIMITS ON STATE-COURT
JURISDICTION. (a) Notwithstanding any other law, the state and
each of its officers and employees shall have sovereign immunity,
its political subdivisions and each of their officers and employees
shall have governmental immunity, and each officer and employee of
this state or a political subdivision shall have official immunity
(as well as sovereign or governmental immunity, as appropriate) in
any action, claim, counterclaim, or any type of legal or equitable
action that challenges the validity of any provision or application
of this chapter, on constitutional grounds or otherwise, or that
seeks to prevent or enjoin the state, its political subdivisions,
or any officer, employee, or agent of this state or a political
subdivision from enforcing any provision or application of this
chapter, or from hearing, adjudicating, or docketing a civil action
brought under Section 1, unless that immunity has been abrogated or
preempted by federal law in a manner consistent with the
Constitution of the United States. The sovereign immunity conferred
by this section upon the state and each of its officers and
employees includes the constitutional sovereign immunity
recognized by the Supreme Court of the United States in Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, , 517 U.S. 44 (1996), and Alden v. Maine,
527 U.S. 706 (1999), which applies in both state and federal court
and which may not be abrogated by Congress or by any state or
federal court except pursuant to legislation authorized by section
5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article
I, or by Congress's powers to raise and support Armies and to
provide and maintain a Navy.
(b) Notwithstanding any other provision of law to the
contrary, the immunities conferred by Subsection (a) shall apply in
every court, both state and federal, and in every adjudicative
proceeding of any type whatsoever.
(c) Notwithstanding any other provision of law to the
contrary, no provision of state law may be construed to waive or
abrogate an immunity described in Subsection (a) unless it
expressly waives or abrogates immunity with specific reference to
this section.
(d) Notwithstanding any other provision of law to the
contrary, no attorney representing the state, its political
subdivisions, or any officer, employee, or agent of this state or a
political subdivision is authorized or permitted to waive an
immunity described in Subsection (a) or take any action that would
result in a waiver of that immunity, and any such action or
purported waiver shall be regarded as a legal nullity and an ultra
vires act.
(e) Notwithstanding any other law, including Chapter 37,
Civil Practice and Remedies Code, and sections 22.002, 22.221, and
24.007 through 24.011, Government Code, no court of this state may
award declaratory or injunctive relief, or any type of writ, that
would pronounce any provision or application of this subchapter
invalid or unconstitutional, or that would restrain the state, its
political subdivisions, any officer, employee, or agent of this
state or a political subdivision, or any person from enforcing any
provision or application of this chapter, or from hearing,
adjudicating, docketing, or filing a civil action brought under
Section 1, and no court of this state shall have jurisdiction to
consider any action, claim, or counterclaim that seeks such relief.
(f) Nothing in this section or chapter shall be construed to
prevent a litigant from asserting the invalidity or
unconstitutionality of any provision or application of this chapter
as a defense to any action, claim, or counterclaim brought against
that litigant.
(g) Notwithstanding any other law, any judicial relief
issued by a court of this state that disregards the immunities
conferred by Subsection (a), or the limitations on jurisdiction and
relief imposed by Subsection (e), shall be regarded as a legal
nullity because it was issued by a court without jurisdiction, and
may not be enforced or obeyed by any officer, employee, or agent of
this state or a political subdivision, judicial or otherwise.
(h) Notwithstanding any other law, any writ, injunction, or
declaratory judgment issued by a court of this state that purports
to restrain the state, its political subdivisions, any officer,
employee, or agent of this state or a political subdivision, or any
person from hearing, adjudicating, docketing, or filing a civil
action brought under Section 1 shall be regarded as a legal nullity
and a violation of the Due Process Clause of the Fourteenth
Amendment, and may not be enforced or obeyed by any officer,
employee, or agent of this state or a political subdivision,
judicial or otherwise.
(i) Notwithstanding any other law, any officer, employee,
or agent of this state or a political subdivision, judicial or
otherwise, who issues, enforces, or obeys a writ, injunction, or
declaratory judgment described in Subsection (h) shall be subject
to suit by any person who is prevented from or delayed in bringing a
civil action under Section 1, and a claimant who prevails in an
action brought under this section shall recover:
(1) injunctive relief;
(2) compensatory damages;
(3) punitive damages of not less than $100,000; and
(4) costs and reasonable attorney's fees.
(j) Notwithstanding any other provision of law to the
contrary, any person who violates Subsections (e) or (h):
(1) may not assert and shall not be entitled to any
type of immunity defense, including sovereign immunity,
governmental immunity, official immunity, or judicial immunity;
(2) may not and shall not be indemnified for any award
of damages or costs and attorneys' fees entered against them, or for
the costs of their legal defense; and
(3) may not and shall not receive or obtain legal
representation from the attorney general of this state in any
action brought under Subsection (i).
(k) Notwithstanding any other law, any person who sues and
seeks any writ, injunction, or declaratory judgment that would
restrain any person from hearing, adjudicating, docketing, or
filing a civil action brought under Section 1 shall pay the costs
and attorneys' fees of the person sued. A person may bring a civil
action to recover these costs and attorneys' fees in state or
federal court. It shall not be defense to a civil action brought
under this Subsection that:
(1) the plaintiff failed to seek recovery of costs or
attorney's fees in the underlying action;
(2) the court in the underlying action declined to
recognize or enforce the requirements of this Section; or
(3) the court in the underlying action held that any
provisions of this Section are invalid, unconstitutional, or
preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.
SECTION 2. 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, 2023.