HBA-PDH H.B. 759 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 759
By: Dutton
Civil Practices
4/19/1999
Introduced


BACKGROUND AND PURPOSE 

Traditionally, a person who seeks to recover damages for a violation of
that person's state-secured civil rights by a governmental entity brings an
action under 42 U.S.C. Section 1983 (Section 1983), rather than seeking
damages under the person's state constitution.  This may be due to the fact
that historically state constitutions have been used as a defense to
criminal or civil liability or as a ground for injunctive relief.   A
recent trend in the federal courts to increasingly deny pendent state
rights, whether constitutional or statutory, may threaten the use of
Section 1983 to seek damages for violations of civil rights guaranteed by
state constitutions.  To protect civil rights secured by their
constitutions, states may have to respond by providing for adequate
compensatory damages to a person for deprivation of a right secured by
state constitutions. 

H.B. 759 authorizes a person to recover damages for deprivation of a right
secured by the state constitution if the cause of action arises from the
action or failure to act of an officer, employee, or agent of the state or
from a political subdivision of the state acting or failing to act in an
official capacity or purported official capacity.  However, this provision
does not waive a defense, immunity, or jurisdictional bar which is
available to an officer, employee, or agent of the state. 

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 112, as follows: 

CHAPTER 112.  DEPRIVATION OF A RIGHT SECURED BY 
THE STATE CONSTITUTION

Sec. 112.001.  RECOVERY OF DAMAGES FOR DEPRIVATION OF RIGHT.   Authorizes a
person to recover damages for deprivation of a right secured by the state
constitution if the cause of action arises from the action or failure to
act of an officer, employee, or agent of the state or from a political
subdivision of the state acting or failing to act in an official capacity
or purported official capacity.   

Sec. 112.002.  COSTS AND ATTORNEY'S FEES.  Entitles a person recovering
damages under Section 112.001 to recover costs, witness fees, and
reasonable attorney's fees incurred in bringing the suit. 

Sec. 112.003.  NO WAIVER OF DEFENSES.  Provides that this chapter does not
waive a defense, immunity, or jurisdictional bar which is available to an
officer, employee, or agent of the state. 

SECTION 2.Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 3.Emergency clause.