HBA-NIK, NIK H.B. 2488 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2488 By: Tillery Civil Practices 3/22/1999 Introduced 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 see the person who gave the description. The person would then have to incur the court costs of defending the report. 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. 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 137, as follows: CHAPTER 137. CIVIL ACTIONS BASED UPON COMMUNICATIONS OR DECISIONS CONCERNING MATTERS PENDING BEFORE GOVERNMENTAL AGENCIES Sec. 137.001. DEFINITIONS. Defines "good faith," and "governmental agency." Sec. 137.002. 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 by clear and convincing evidence that the communication or decision was not made in good faith. (c) Provides that the defense conferred by this section 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. (d) Requires that the defense conferred by this section be 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. 137.003. BURDEN OF PLEADING. Requires the claimant in a civil action based upon a communication or decision described in Section 137.002(a), Civil Practices and Remedies Code, to have 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. 137.004. VENUE. Requires a civil action based upon a communication or decision described in Section 137.002 (a) to be brought in the county of the defendant's residence, principal office, or in the county in which the complaint was made. Sec. 137.004 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 more 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 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. 137.005. LIABILITY FOR COSTS, EXPENSES, AND DAMAGES. (a) Authorizes the defendant to recover the defendant's costs and reasonable litigation expenses unless the claimant prevails in a civil action brought under Section 137.002(a), Civil Practices and Remedies Code. (b) Authorizes the defendant to recover the defendant's actual damages, other than costs and reasonable litigation expenses, from the claimant if the defendant proves that the action was brought in violation of Chapter 9 (Frivolous Pleading and Claims) or Chapter 10 (Sanctions for Frivolous Pleadings and Motion), Civil Practice and Remedies Code. (c) Authorizes the defendant to recover exemplary damages from the claimant if the defendant proves that the action was brought to harass, inhibit the relevant communication or decision of, retaliate against, interfere with the protected constitutional rights of, or to wrongfully injure the defendant. SECTION 2. Makes application of this Act prospective. SECTION 3. Emergency clause.