HBA-NIK C.S.H.B. 2488 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2488
By: Tillery
Civil Practices
4/26/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Persons who provide information  to governmental entities are often subject
to various forms of harassment lawsuits.  It is currently possible for a
person to be found liable for slander or libel, even if the information
given by the person is accurate.  Under current law, the only way to avoid
liability in a harassment suit is a final verdict.  An entity who received
an unfavorable description in a government report could sue the person who
gave the description.  The person would then have to incur the court costs
of defending the report.   C.S.H.B. 2488 directs a judge to dismiss a case
unless there is substantive proof that a defendant made a complaint without
"good faith."  This bill also provides for attorney's fees and suit-related
expenses and damages, if warranted.  C.S.H.B. 2488 also prohibits suits
against governmental agencies. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Title 6, Civil Practices and Remedies Code, by adding
Chapter 138, as follows: 

CHAPTER 138.  CIVIL ACTIONS BASED ON COMMUNICATIONS OR DECISIONS CONCERNING
MATTERS PENDING BEFORE GOVERNMENTAL AGENCIES 

Sec. 138.001.  DEFINITIONS.  Defines "good faith," and "governmental
agency." 

Sec. 138.002.  NO LIABILITY FOR GOOD FAITH COMMUNICATION OR DECISION. (a)
Provides that a person is not liable for monetary damages or subject to
injunctive or declaratory relief based upon a communication relating to a
matter of concern to a governmental agency or public official, or a
decision by the person as an elected or appointed official of a
governmental agency.  

(b)  Provides that Subsection (a) does not apply if the claimant
establishes that the communication or decision was not made in good faith. 

(c)  Provides that the defense conferred by this section does not apply in
a civil action against a governmental agency or an elected or appointed
official of a governmental agency in the official's official capacity. 
 
(d)  Provides that the defense conferred by this section is in addition to
all other defenses or immunities conferred by applicable law. 

(e)  Provides that this section does not create a cause of action.

Sec. 138.003.  BURDEN OF PLEADING.  Provides that the claimant in a civil
action based upon a communication or decision described in Section
138.002(a), Civil Practice and Remedies Code, has the burden of pleading
with particularity all material facts that the  claimant contends establish
the right to recovery.  Provides that each fact asserted in the pleading
must be verified by affidavit made on personal knowledge unless the truth
of the fact appears of record.  Requires the court, on motion by the
defendant or on the court's own motion, to review the pleadings to
determine compliance with Subsection (a). 

Sec. 138.004. VENUE. Requires a civil action based upon a communication or
decision described in Section 138.002 (a) to be brought in the county of
the defendant's residence, principal office, or in which the communication
or decision was made. 

Sec. 138.005.  MOTION FOR SECURITY FOR COSTS AND EXPENSES.  (a)  Authorizes
the defendant to file a motion seeking security for costs and litigation
expenses at any time. Requires the motion to be heard not later than 30
days after it is filed unless otherwise required by the court's docket
conditions. 

(b)  Requires the court to grant the motion unless the claimant proves, by
a preponderance of evidence, that the complaint or decision was not made in
good faith. 

(c)  Requires the court to require the claimant to post security in an
amount sufficient to secure the defendant's costs and reasonable attorney's
fees, expert witness fees, and other reasonable litigation expenses
(litigation expenses).  Authorizes the amount of the security to be
reviewed and adjusted by the court at any time upon motion of any party. 

(d)  Requires the court to promptly dismiss the claimant's action with
prejudice, if the claimant fails to post security in the required amount
within 14 days after the date of the signing of an order requiring
security. 

(e)  Requires all the discovery proceedings to be stayed during the
pendency of a motion for security under this section  and pending the
posting of any security required under such a motion. Provides an exception
authorizing the court to permit specified discovery to be conducted. 

Sec. 138.006.  LIABILITY FOR COSTS, EXPENSES, AND DAMAGES.  (a)  Authorizes
the defendant who prevails in an action arising from a communication or
decision described by Section 138.002(a) to recover from the claimant the
defendant's court costs, reasonable attorney's fees, reasonable expert
witness fees, and other reasonable litigation expenses. 

(b)  Authorizes the defendant to recover from the claimant actual damages
if the defendant shows that the action was brought in violation of Chapter
10 (Sanctions for Frivolous Pleadings and Motion), Civil Practice and
Remedies Code. Authorizes the defendant to also recover from the claimant
exemplary damages if the defendant shows that the action was brought for
the purpose of harassment, to inhibit the defendant's communication or
decision, to retaliate for the defendant's communication or decision, to
interfere with the defendant's exercise of protected constitutional rights,
or to wrongfully injure the defendant in another manner. 

SECTION 2.  Makes application of this Act prospective.

SECTION 3. Emergency clause.
  Effective date: upon passage.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2488 modifies the original bill to conform with Legislative
Council format. 

C.S.H.B. 2488 amends SECTION 1 of the original by redesignating the
proposed addition of Chapter 137 of the original to Chapter 138. The
substitute modifies proposed Section 138.002(b) bill by removing the term
"by clear and convincing evidence" with regard to the claimant establishing
that a communication or decision was not made in good faith. The substitute
modifies proposed Section 138.002(c) to provide that the defense conferred
does not apply, rather than shall not apply, in a civil  action against a
governmental agency or an elected or appointed official of a governmental
agency in the official's official capacity. The substitute also modifies
proposed Section 138.002(d), to provide that the defense conferred is,
rather than shall be, in addition to any other defense or immunity
conferred by applicable law. Makes conforming changes. 

C.S.H.B. 2488 modifies proposed Section 138.003 of the original by
providing, rather than requiring, that the claimant in a civil action based
on a communication or decision described in Section 138.002(a) has the
burden of pleading with particularity all material facts that the claimant
contends establish the right to recovery. 

C.S.H.B. 2488 modifies proposed Section 138.004 by providing that one of
the counties in which a civil action based on a communication or decision
by a governmental agency or official may be brought is the county in which
the communication or decision, rather than the complaint, was made. Makes a
conforming change. 

C.S.H.B. 2488 modifies intended Section 138.005(a) by providing that the
requirement for a motion seeking security for costs and litigation expenses
to be heard not later than the 30th day after the date the motion is filed,
rather than not more than 30 days after it is filed unless the docket
conditions of the court require a later hearing. Makes conforming and
nonsubstantive changes. 

C.S.H.B. 2488 modifies proposed Section 138.006(a) by authorizing a
defendant who prevails in an action arising from a certain communication or
decision to recover from the claimant the defendant's enumerated costs and
fees, rather than authorizing a defendant in a civil action based upon a
certain communication or decision to recover the defendant's enumerated
fees and costs unless the claimant prevails in such action. This substitute
removes the reference in the original bill to an action brought in
violation of Chapter 9 (Frivolous Pleading and Claims), leaving the
reference to only Chapter 10 (Sanctions for Frivolous Pleadings and
Motion). Makes conforming and nonsubstantive changes.