HBA-ATS H.B. 1775 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1775 By: Hamric Civil Practices 4/4/1999 Introduced BACKGROUND AND PURPOSE Recently, lawsuits have been filed in increasing numbers against government officials in their individual capacities for actions taken while serving as officials. The threat of a civil action for damages can be a deterrent to the efficient operation of government. Moreover, the costs of defending against such suits can be burdensome, placing these officials' personal assets at risk. H.B. 1775 sets forth that an elected or appointed official of a governmental agency is not liable in an individual capacity for monetary damages or subject to injunctive or declaratory relief arising from a decision made by the person in the person's capacity as an official, or a communication to any person that relates to a matter reasonably of concern to the person in the person's capacity as an official. Under this bill, the limitation on liability does not apply if a claimant shows, by clear and convincing evidence, that the person did not make the decision or communication in good faith. In addition, the claimant has the burden of pleading with particularity all material facts that the claimant contends establish the right to recovery. 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 5, Civil Practice and Remedies Code, by adding Chapter 113, as follows: CHAPTER 113. DECISIONS AND COMMUNICATIONS BY GOVERNMENTAL OFFICIALS Sec. 113.001. DEFINITIONS. Defines "claimant," "defendant," and "governmental agency." Sec. 113.002. LIMITATION ON LIABILITY. Sets forth that an elected or appointed official of a governmental agency (official) is not liable in an individual capacity for monetary damages or subject to injunctive or declaratory relief arising from a decision made by the person in the person's capacity as an official, or a communication to any person that relates to a matter reasonably of concern to the person in the person's capacity as an official. Provides that this limitation does not limit liability of an official in the person's official capacity and is in addition to any other defense or limitation on liability conferred by applicable law. Specifies that this section does not create a cause of action. Sec. 113.003. GOOD FAITH REQUIRED. Sets forth that the limitation on liability does not apply if a claimant shows, by clear and convincing evidence, that the person did not make the decision or communication in good faith. Specifies that a communication by a person is made in good faith if, at the time the communication was made, the person had a reasonable basis in fact for making the communication. Specifies that a decision is made by a person in good faith if, at the time the decision was made, the person had a reasonable basis to believe that the decision was authorized by law and was in the best interest of the governmental agency of which the person is an elected or appointed official. Sec. 113.004. BURDEN OF PLEADING. Places on the claimant the burden of pleading with particularity all material facts that the claimant contends establish the right to recovery. Specifies that each fact asserted by the claimant 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 its own motion, to review the pleadings to determine compliance with this section. Sec. 113.005. VENUE. Sets forth that venue for an action is only in the county of the defendant's residence, if the defendant is a natural person; the county in which the defendant's principal office is located, if the defendant is not a natural person; or the county in which the communication or decision was made, if the defendant is a natural person who is not a resident of this state or if the defendant is not a natural person and does not have an office in this state. Sec. 113.006. MOTION FOR SECURITY FOR COSTS AND EXPENSES. Authorizes the defendant at any time to file a motion seeking security for costs and litigation expenses. Requires the court to hear the motion on or before the 30th day after it is filed unless the court determines that docket conditions require a later hearing. Requires the court to grant the motion unless the claimant proves, by a preponderance of the evidence, that the communication or decision was not made in good faith. Requires the court, on granting the motion, to require the claimant to post security in an amount sufficient to secure the defendant's court costs, reasonable attorney's fees, reasonable expert witness fees, and other reasonable litigation expenses. Authorizes the court to review and adjust the amount of the security at any time on motion of any party. Requires the court to promptly dismiss the action with prejudice if the claimant does not post security in the required amount on or before the 14th day after the court signs the order requiring security. Sets forth that all discovery proceedings are stayed during the pendency of a motion for security and pending the posting of any security required by the motion. Authorizes the court, on motion and for good cause shown, to permit certain discovery that it specifies to be conducted. Sec. 113.007. LIABILITY FOR COSTS, EXPENSES, AND DAMAGES. (a) Authorizes a defendant who prevails 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 a defendant also 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 Motions), and 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.Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 3.Emergency clause.