88S20016 MZM-F
By: Toth H.B. No. 21
A BILL TO BE ENTITLED
AN ACT
relating to civil liability for the sterilization, castration, or
genital mutilation of children.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 74, Civil Practice and Remedies Code, is
amended by adding Subchapter M to read as follows:
SUBCHAPTER M. LIABILITY FOR STERILIZATION, CASTRATION, OR GENITAL
MUTILATION OF CHILDREN
Sec. 74.601. CAUSE OF ACTION. Notwithstanding any other
law, a person is strictly and jointly and severally liable to an
individual for personal injury to the individual resulting from
knowingly:
(1) prescribing 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) performing a sex-change operation on a minor; or
(3) aiding or abetting the conduct described by
Subdivision (1) or (2).
Sec. 74.602. STANDING AND DAMAGES. Notwithstanding any
other law, an individual described by Section 74.601 may bring an
action under this subchapter and is entitled to recover in the
action:
(1) nominal damages;
(2) compensatory damages;
(3) exemplary damages in an amount of not less than $10
million from each defendant if the conduct that is the basis for the
action resulted in the individual's irreversible sterilization or
sexual dysfunction; and
(4) costs and reasonable attorney's fees incurred in
bringing the action.
Sec. 74.603. LIMITATIONS. Notwithstanding any other law, a
person may bring an action under this subchapter not later than the
20th anniversary of the date the cause of action accrues.
Sec. 74.604. DEFENSES. (a) A defendant against whom an
action is brought under this subchapter may assert as an
affirmative defense to liability that:
(1) the imposition of civil 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
United States Supreme Court; and
(B) demonstrates that the imposition of civil
liability on the defendant will violate constitutional or federally
protected rights belonging to that third party.
(b) Notwithstanding any other law, the following are not a
defense to an action brought under this subchapter:
(1) ignorance or mistake of law;
(2) a defendant's belief that the requirements or
provisions of this subchapter are unconstitutional or were
unconstitutional;
(3) a defendant's reliance on a 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 cause of action accrued;
(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 cause of action accrued;
(6) non-mutual issue preclusion or non-mutual claim
preclusion;
(7) the consent to the defendant's conduct that is the
basis of the action by:
(A) the claimant;
(B) one or both of the parents of the claimant if
the claimant was an unemancipated minor; or
(C) the legal guardian or conservator of the
claimant;
(8) contributory or comparative negligence;
(9) assumption of risk;
(10) sovereign immunity, governmental immunity,
official immunity, or qualified immunity;
(11) the claimant's waiver or purported waiver of the
claimant's right to bring the action;
(12) the claimant's failure to exhaust administrative
remedies; or
(13) a claim that the enforcement of this subchapter
or the imposition of civil liability against the defendant will
violate the constitutional rights of third parties, except as
provided by Subsection (a)(2).
(c) A civil action under this subchapter may not be brought
against a person that acted at the behest of a federal agency,
contractor, or employee who is carrying out duties under federal
law if the imposition of liability would violate the doctrines of
preemption or intergovernmental immunity.
(d) Nothing in this section or subchapter shall limit or
preclude a defendant from asserting the unconstitutionality of any
provision or application of a law of this state as a defense to
liability, or from asserting any other defense that might be
available under any other source of law.
Sec. 74.605. LONG-ARM JURISDICTION. Notwithstanding any
other law, including Subchapter C, Chapter 17, the courts of this
state have personal jurisdiction over a defendant sued under this
subchapter to the maximum extent permitted by the Fourteenth
Amendment to the United States Constitution.
Sec. 74.606. VENUE. (a) Notwithstanding any other law,
including Chapter 15, a civil action brought under this subchapter
must 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) Notwithstanding any other law, if a civil action is
brought under this subchapter in a venue described by Subsection
(a), the action may not be transferred to a different venue without
the written consent of all parties.
(c) Any contractual provision that purports to require a
civil action under this subchapter to be litigated in another venue
is void as against public policy, and may not be enforced in any
state or federal court.
Sec. 74.607. CHOICE OF LAW. (a) Notwithstanding any other
law, the law of this state applies to any gender-transitioning
treatment provided to a resident of this state, regardless of where
that treatment occurs, and to any civil action brought under this
subchapter, to the maximum extent permitted by the United States
Constitution and the Texas Constitution.
(b) Any contractual choice of law provision that purports to
require the law of another jurisdiction to govern a civil action
brought under this subchapter is void as against public policy and
may not be enforced in any state or federal court.
(c) This section applies extraterritorially to the maximum
extent permitted by the United States Constitution and the Texas
Constitution.
Sec. 74.608. PRIVATE ENFORCEMENT EXCLUSIVE.
Notwithstanding any other law, direct or indirect enforcement of
this subchapter may not be taken or threatened by the state, a
political subdivision, a district or county attorney, or an officer
of this state or a political subdivision against any person by any
means, and this subchapter may not be used to justify or trigger the
enforcement of any other law or any type of adverse consequence
under any other law, except as provided by this subchapter. This
section does not preclude or limit the enforcement of any other law
or regulation against conduct that is independently prohibited by
the law or regulation and that would remain prohibited by such other
law or regulation in the absence of this subchapter.
Sec. 74.609. IMMUNITY FROM SUIT. (a) Subject to Subsection
(b) but notwithstanding any other law, the state has sovereign
immunity, a political subdivision has governmental immunity, and an
officer or employee of this state or a political subdivision has
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:
(1) challenges the validity of any provision or
application of this subchapter, on constitutional grounds or
otherwise; or
(2) seeks to prevent or enjoin the state, a political
subdivision, or an officer or employee of this state or a political
subdivision from:
(A) enforcing any provision or application of
this subchapter; or
(B) hearing, adjudicating, or docketing a civil
action brought under this subchapter.
(b) Subsection (a) does not apply to the extent that
immunity has been abrogated or preempted by federal law in a manner
consistent with the United States Constitution.
(c) The sovereign immunity conferred by this section on the
state and its officers and employees includes the constitutional
sovereign immunity recognized by the United States Supreme Court,
which applies in both state and federal court and may not be
abrogated by Congress or by a state or federal court except under
legislation authorized by:
(1) Section 5 of the Fourteenth Amendment, United
States Constitution;
(2) the Bankruptcy Clause of Article I, United States
Constitution; or
(3) Congress's powers to raise and support armies and
to provide and maintain a navy.
(d) Notwithstanding any other law, the immunities conferred
by Subsection (a) shall apply in every court, both state and
federal, and in every type of adjudicative proceeding.
(e) Notwithstanding any other law, a provision of state law
may not be construed to waive or abrogate an immunity described by
Subsection (a) unless it expressly waives or abrogates immunity
with specific reference to this section.
(f) Notwithstanding any other law, an attorney representing
the state, a political subdivision, or an officer, employee, or
agent of this state or a political subdivision may not waive an
immunity described by Subsection (a) or take an action that would
result in a waiver of that immunity. A purported waiver or action
described by this subsection is void and considered an ultra vires
act.
Sec. 74.610. LIMITS ON STATE COURT JURISDICTION. (a)
Notwithstanding any other law, including Chapter 37 of this code
and Sections 22.002, 22.221, 24.007, 24.008, 24.009, 24.010, and
24.011, Government Code, a court of this state may not award
declaratory or injunctive relief, or any type of writ, that would:
(1) pronounce any provision or application of this
subchapter invalid or unconstitutional; or
(2) restrain the state, a political subdivision, an
officer, employee, or agent of this state or a political
subdivision, or any person from:
(A) enforcing any provision or application of
this subchapter; or
(B) hearing, adjudicating, docketing, or filing
a civil action brought under this subchapter.
(b) A court of this state does not have jurisdiction to
consider an action, claim, or counterclaim that seeks relief
described by Subsection (a).
(c) This subchapter may not be construed to prevent a
litigant from asserting the invalidity or unconstitutionality of a
provision or application of this subchapter as a defense to an
action, claim, or counterclaim brought against the litigant.
(d) Notwithstanding any other law, judicial relief issued
by a court of this state that disregards immunity conferred by
Section 74.609(a) or the jurisdictional limitations imposed by this
section:
(1) is void because the court is without jurisdiction;
and
(2) may not be enforced or obeyed by an officer,
employee, or agent of this state or a political subdivision,
judicial or otherwise.
(e) Notwithstanding any other law, a writ, injunction, or
declaratory judgment issued by a court of this state that purports
to restrain the state, a political subdivision, an 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 this subchapter is void and may not be enforced
or obeyed by an officer, employee, or agent of this state or a
political subdivision, judicial or otherwise.
(f) Notwithstanding any other law, an 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 by Subsection (a) is liable to any
person who is prevented from or delayed in bringing a civil action
under this subchapter. A claimant who prevails in an action brought
under this subsection is entitled to:
(1) injunctive relief;
(2) compensatory damages;
(3) exemplary damages of not less than $100,000; and
(4) costs and reasonable attorney's fees.
(g) Notwithstanding any other law, a person who violates
Subsection (a) or (e):
(1) may not assert and is not entitled to any type of
immunity defense, including sovereign immunity, governmental
immunity, official immunity, or judicial immunity;
(2) may not be indemnified for an award of damages or
costs and attorney's fees entered against the person or for the
costs of the person's legal defense; and
(3) may not receive or obtain legal representation
from the attorney general of this state in an action brought against
the person under Subsection (f).
(h) Notwithstanding any other law, a person who brings an
action and seeks any writ, injunction, or declaratory judgment that
would restrain any person from hearing, adjudicating, docketing, or
filing a civil action brought under this subchapter shall pay the
costs and attorney's fees of the person against whom the action is
brought. A person entitled to recover costs and attorney's fees
under this subsection may bring a civil action to recover these
costs and attorney's fees in state or federal court. It is not a
defense to a civil action brought under this subsection that:
(1) the claimant 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
provision of this section is invalid, unconstitutional, or
preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.
SECTION 2. Subchapter M, Chapter 74, Civil Practice and
Remedies Code, as added by this Act, applies only to a cause of
action that accrues on or after the effective date of this Act.
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 on the 91st day after the last day of the
legislative session.