HBA-TYH S.B. 138 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 138 By: Sibley State Affairs 4/6/1999 Engrossed BACKGROUND AND PURPOSE During the period from 1963 to 1990, the United States Supreme Court held that the government must show a compelling state interest for infringing on an individual's right to the free exercise of religion. In 1990, the Supreme Court replaced the compelling state interest test with a rational basis test in Employment Division v. Smith. In response, the United States Congress restored the compelling state interest test by passing the Religious Freedom Restoration Act (RFRA). However, in City of Boerne v. Flores, the court held RFRA to be unconstitutional because it exceeded congressional authority as applied to the states. Currently, there is no state law specifically prohibiting a government agency (agency) from substantially burdening a person's free exercise of religion. S.B. 138 prohibits an agency from substantially burdening an individual's free exercise of religion unless the agency demonstrates that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Under S.B. 138, an agency that demonstrates a compelling state interest is not required to separately prove that the exercise of governmental authority imposing the burden is the least restrictive means to ensure compliance or to punish the failure to comply. S.B. 138 allows a person whose free exercise of religion has been substantially burdened to assert the violation as a defense in a judicial or administrative proceeding regardless of whether that person is named in the proceeding. S.B. 138 provides for certain civil remedies for agency violations, and waives sovereign immunity to suit and from liability under this chapter, thereby allowing a claimant to sue an agency for damages. S.B. 138 does not authorize an agency to burden a person's free exercise of religion and does not affect the protections provided under federal law, the Texas or United States constitutions, or the grant or denial of an appropriation or grant of money or support to a religious organization. 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 4/7/1999 CHAPTER 110. RELIGIOUS FREEDOM Sec. 110.001. PURPOSE. Sets forth the purpose of this Act. Sec. 110.002. DEFINITIONS. Defines "free exercise of religion" and "government agency." Sec. 110.003. APPLICATION. Provides that this chapter applies to any ordinance, rule, order, decision, practice, or other exercise of governmental authority; to a government agency's exercise of governmental authority by granting or refusing to grant a government benefit to an individual; and to each law of this state unless the law is exempt by expressly referring to this chapter. Sec. 110.004. RELIGIOUS FREEDOM PROTECTED. Prohibits a government agency from substantially burdening a person's free exercise of religion. Provides that this does not apply if the government agency demonstrates that the burden to the person is in furtherance of a compelling state interest and is the least restrictive means of furthering that interest. Provides that a government agency meeting those requirements is not required to separately prove that the remedy and penalty provisions of the law, ordinance, rule, order, decision, practice, or other exercise of governmental authority imposing the substantial burden is the least restrictive means of ensuring compliance or punishing noncompliance. Provides that for purposes of this section, a valid ordinance, rule, order, decision, or practice which applies to persons within the custody of a county, the Texas Youth Commission, or the Texas Department of Criminal Justice is presumed to be in furtherance of a compelling governmental interest and the least restrictive means of furthering that interest. Authorizes the presumption to be rebutted. Sec. 110.005. DEFENSE. Authorizes a person, whose free exercise of religion has been substantially burdened in violation of Section 110.004, to assert that violation as a defense in a judicial or administrative proceeding regardless of whether the proceeding is brought by the state or by a person. Sec. 110.006. REMEDIES. Provides that any person, other than a government agency, who successfully asserts a claim or defense is entitled to recover declaratory relief under Chapter 37 (Declaratory Judgments), injunctive relief to prevent the threatened violation or continued violation, compensatory damages for pecuniary and nonpecuniary losses not to exceed $1,000, and reasonable attorney's fees, court costs, and other reasonable expenses incurred in bringing the action. Sec. 110.007. SOVEREIGN IMMUNITY WAIVED. Provides that sovereign immunity to suit and from liability created under Section 110.006 is waived and abolished. Authorizes a claimant to sue a government agency for damages allowed by that section. Sec. 110.008. EFFECT ON RIGHTS. Provides that a government agency is not authorized by this chapter to burden a person's free exercise of religion. Provides that the protection of religious freedom under this chapter is in addition to the protections under federal law and the constitutions of this state and the United States. Prohibits this chapter from being construed to affect or interpret Section 4 (Religious Tests), 5 (Witnesses not disqualified by Religious Beliefs; Oaths and Affirmations), or 6 (Freedom of Worship), Article I, Texas Constitution. Requires municipalities, notwithstanding any other provision in this chapter, to have no less authority to adopt or apply laws and regulations concerning zoning, land use planning, traffic management, urban nuisance, or historic preservation than existed under the Constitution of the United States as interpreted by federal courts prior to April 17, 1990. Sec. 110.009. GRANT TO RELIGIOUS ORGANIZATION NOT AFFECTED. Provides that notwithstanding Section 110.003(b), this chapter does not affect the grant or denial of an appropriation, other grant of money or benefits, or a tax exemption to a religious organization. SECTION 2. Makes application of this Act retroactive. Creates an exception which prohibits a court from awarding damages to a claimant who has been injured by a violation of Chapter 110, Civil Practice and Remedies Code, as added by this Act, if the damages are incurred before January 1, 2000. SECTION 3. Emergency clause. Effective date: upon passage.