HBA-TYH H.B. 185 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 185 By: Longoria Civil Practices 4/19/1999 Introduced BACKGROUND AND PURPOSE Currently, no statute specifically addresses the situation in which a person's rights, as protected by Article I of the Texas Constitution (Texas Bill of Rights), are violated when a governmental unit or an employee of the governmental unit, in the employee's official capacity, acts or fails to act. When such situations occur, there are no established procedures available for seeking legal resolution. H.B. 185 establishes governmental liability for such violations and the procedure to be followed to obtain a legal resolution. 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 110, as follows: CHAPTER 110. VIOLATIONS OF THE TEXAS CONSTITUTION SUBCHAPTER A. GENERAL PROVISIONS Sec. 110.001. DEFINITIONS. Defines "employee," "exemplary damages," and "governmental unit." SUBCHAPTER B. LIABILITY OF GOVERNMENTAL UNITS Sec. 110.021. GOVERNMENTAL LIABILITY. Provides that a governmental unit is liable for compensatory damages if: the governmental unit or its employee, in the employee's official capacity, acts or fails to act in a manner that violates the rights of a person under Article I of the Texas Constitution, the Bill of Rights; the employee or other individual responsible knew or should have known that the act or failure to act violated the Bill of Rights; and the violation resulted in property damage, personal injury, or death. Provides that an action under this section be brought by or on behalf of either the person who suffered the property damage or personal injury, or, if death results from the violation, a person who may bring an action under Subchapters A (Wrongful Death) or B (Survival), Chapter 71 (Wrongful Death; Survival; Injuries Occurring Out of State). Sec. 110.022. EXEMPLARY DAMAGES. Provides that this chapter does not authorize exemplary damages. Sec. 110.023. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO SUE. Provides that sovereign immunity to suit is waived and abolished to the extent of the liability created by this chapter, and authorizes a person having a claim under this chapter to sue a governmental unit for damages allowed by this chapter. Sec. 110.024. INDIVIDUAL LIABILITY NOT CREATED. Provides that this chapter does not create liability as to a government employee or another individual. Sec. 110.025. LIABILITY INSURANCE. Authorizes each governmental unit to purchase insurance policies to protect against claims under this chapter and to relinquish to the insurer the right to investigate, defend, compromise, and settle a claim. Prohibits this state or a political subdivision of this state from requiring an employee to purchase liability insurance as a condition of employment, if the state or political subdivision is insured by a liability insurance policy. SUBCHAPTER C. EXCLUSIONS Sec. 110.051. LEGISLATIVE. Provides that this chapter does not apply to a claim based on an action of the legislature or a member of the legislature acting in the member's official capacity or to the legislative functions of a governmental unit. Sec. 110.052. JUDICIAL. Provides that this chapter does not apply to a claim based on an act of a court of this state or any member of a court of this state acting in the member's official capacity or to the judicial functions of a governmental unit. Provides that this chapter does not apply to a claim based on an act or omission of an employee in the execution of a lawful order of any court. Defines "official capacity." SUBCHAPTER D. PROCEDURES Sec. 110.101. NOTICE. Provides that a governmental unit is entitled to receive notice of a claim against it, describing the damage or injury claimed, the time and place of the incident, and the incident, within six months after the occurring date of the claimed incident. Provides that a city's charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved. Sec. 110.102. COMMENCEMENT OF SUIT. Requires a suit under this chapter to name the defendant as the governmental unit against which liability is to be established and to be brought in state court in the county where the cause of action arises. Provides for the citation to be served on the secretary of state in a suit against the state. Provides for the citation to be served as in other civil cases in other suits, unless no method of service is provided by the law, in which case citation may be served on the administrative head of the governmental unit being sued. Authorizes the court to authorize service in any manner that affords the governmental unit a fair opportunity to answer and defend the suit, if the administrative head is not available. Sec. 110.103. LEGAL REPRESENTATION. Requires the attorney general, with optional assistance from counsel provided by an insurance carrier, to defend each action brought under this chapter against a governmental unit having authority and jurisdiction over the entire state. Requires a governmental unit having an area of jurisdiction smaller than the entire state to employ its own counsel, unless the governmental unit has relinquished to an insurance carrier the right to defend against the claim. Sec. 110.104. EVIDENCE OF INSURANCE COVERAGE. Provides that the existence and the amount of insurance held by a governmental unit are inadmissible in the trial and are not subject to discovery. Sec. 110.105. SETTLEMENT. Authorizes the cause of action to be settled and compromised by the governmental unit if either the governor, in a case involving the state, or the governmental body of the governmental unit, in other cases, determines the compromise to be in the best interest of the governmental unit. Provides that the approval is not necessary if the governmental unit has acquired insurance. Sec. 110.106. PAYMENT AND COLLECTION OF JUDGMENT. (a) Authorizes a judgment in a suit to be enforced only in the same manner and extent as other judgments against the governmental unit are enforceable as provided by law, unless the governmental unit has liability or indemnity insurance protection, in which case the judgment holder may collect to the extent of the insurer's liability. (b) Provides that a judgment or a portion of a judgment not payable by an insurer need not be paid by a governmental unit until the first fiscal year following the fiscal year of final judgment. (c) Authorizes a governmental unit to pay the judgment in equal annual installments within five years if, in a fiscal year, the aggregate amount of final judgments against a governmental unit, excluding the amount payable by an insurer, exceeds one percent of the unit's budgeted tax funds for the fiscal year, excluding general obligation debt service requirements. Requires the governmental unit to pay interest on the unpaid balance at the rate provided by law, if payments are extended under this section. Sec. 110.107. AD VALOREM TAXES FOR PAYMENT OF JUDGMENT. Authorizes a governmental unit not fully covered by liability insurance to levy an ad valorem tax for the payment of a final judgment under this chapter. Authorizes the ad valorem tax rate to exceed any legal tax rate limit applicable to the governmental unit except a limit imposed by the Texas Constitution, if necessary to pay the amount of a judgment. SECTION 2. Makes application of this Act prospective. SECTION 3.Emergency clause. Effective date: upon passage.