SRC-BWC H.B. 2723 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 2723
77R8298 YDB-FBy: Raymond (Shapleigh)
Jurisprudence
5/11/2001
Engrossed


DIGEST AND PURPOSE 

A person who provides information or testimony to governmental entities may
be subject to various forms of harassment lawsuits.  Currently, it is
possible for a person to be found liable for slander or libel, even if the
information given is accurate.  Under current law, the only way to avoid
liability in a harassment suit is a final verdict, which requires a person
to incur court costs and other expenses.  H.B. 2723 requires the court to
make a summary judgment in favor of the witness if the witness brought a
complaint to a governmental entity in good faith, excluding
employee-employer matters.  The bill provides for recovery by a defendant
of specified costs, fees, and damages. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

ANALYSIS

H.B. 2723 amends the Civil Practice and Remedies Code to establish
provisions for a civil action involving a person who makes a complaint with
a governmental agency.  The bill provides that these provisions apply only
to a claim made against a complainant that is filed by or on behalf of a
person who may be adversely affected by the filing of the complaint and
that alleges that the contents of or the filing of the complaint
constitutes a basis for relief, including a claim alleging that the
contents of the complaint constitute libel or slander, or by or on behalf
of a complainant alleging conduct giving rise to liability for harassing
conduct.  The bill does not apply to a claim if the complaint is
confidential by other law and not a public record available to a member of
the public who is not affected by the complaint and the complainant
communicated the contents of the complaint to a person other than to the
governmental agency or quasi-governmental entity that initially received or
reviewed the complaint, or the complainant is an employee or former
employee of the person who is the subject of the complaint. The bill
provides provisions relating to civil actions involving persons making
complaints with governmental agencies do not create or authorize a cause of
action against a quasi-governmental entity, a governmental unit, or their
officers, agents, or employees acting in the course and scope of their
duties or employment.  The bill requires a claim to be brought in a
specified venue and county.  The state is not liable for indemnification of
a person for damages arising under these provisions (Sec. 138.002). 

The bill establishes that a complainant who makes a complaint in good faith
is not liable for monetary damages arising from the complaint or subject to
injunctive or declaratory relief with respect to the complaint.  The bill
provides that there is a rebuttable presumption that a complaint is made in
good faith.  The bill sets forth the manner in which a complainant may
establish the elements of good faith. The bill requires the burden of
pleading to be on the claimant and 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.  The bill requires  a court, on
motion by the complainant or on its own motion, to review the pleadings to
determine compliance (Sec. 138.003). 

The bill establishes circumstances in which a person is liable for damages
to a complainant and is subject to injunctive or declaratory relief.  If
the trier of fact determines that a complainant has  demonstrated facts
proving liability, the bill authorizes judgment to be entered awarding the
complainant certain damages, costs, and fees (Sec. 138.004).   If the trier
of fact determines that a claim was brought in bad faith, the bill
authorizes a judgment to be entered awarding the complainant certain
damages, costs, and fees.  The bill provides that a person against whom a
judgment is entered and the person's attorney are jointly and severally
liable for such damages (Sec. 138.005). 

The bill requires the court to promptly grant summary judgment with respect
to a claim if: 

_the complainant demonstrates that a complaint was made in good faith; or 

_the pleadings fail to allege a cause of action against the complainant for
which relief may be granted or facts sufficient to rebut the presumption
that the complaint was filed in good faith. 

On motion of the complainant, the bill requires a court that grants summary
judgment to promptly hold a hearing to determine whether the claim was
brought in bad faith.  The bill sets forth procedures for a  complainant to
file the motion for an expedited hearing, for the hearing itself, and for a
motion involving three or more parties.  The bill provides that a
complainant is entitled to recover court costs and reasonable and necessary
attorney's fees if a judgment is entered holding that a complaint made the
basis of a suit was filed in good faith or a person is liable to the
complainant for harassing conduct (Secs. 138.006 and 138.007). 

If judgment is entered against an attorney the attorney, is subject to
professional discipline for professional misconduct, in accordance with
State Bar of Texas rules of attorney discipline, and to suspension or
disbarment for dishonorable attorney conduct.  The bill requires the court
to promptly report such a judgment to an appropriate grievance committee
and specifies what the report must contain (Sec. 138.008). 

The bill prohibits a court of this state from issuing a temporary
restraining order, temporary injunction, permanent injunction, or other
order prohibiting a complainant from communicating with a governmental
agency or quasi-governmental entity concerning the subject matter of a
complaint or a claim governed by these provisions (Sec. 138.009). 

Effective date: September 1, 2001.