HB909 - Relating to law enforcement misconduct and law enforcement interactions with certain detained or arrested individuals and other members of the public, to public entity liability for those interactions, and to the confinement, conviction, or release of detained or arrested individuals.

  89R2195 AJZ-F     By: Thompson H.B. No. 909       A BILL TO BE ENTITLED   AN ACT   relating to law enforcement misconduct and law enforcement   interactions with certain detained or arrested individuals and   other members of the public, to public entity liability for those   interactions, and to the confinement, conviction, or release of   detained or arrested individuals.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act shall be known as the George Floyd Act.          SECTION 2.  Title 5, Civil Practice and Remedies Code, is   amended by adding Chapter 118 to read as follows:   CHAPTER 118. PUBLIC ENTITY LIABILITY FOR DEPRIVATION OF CERTAIN   RIGHTS, PRIVILEGES, OR IMMUNITIES UNDER COLOR OF LAW           Sec. 118.001.  DEFINITIONS. In this chapter:                 (1)     "Peace officer" has the meaning assigned by   Article 2A.001, Code of Criminal Procedure.                 (2)  "Public entity" means:                       (A)  this state;                       (B)     a political subdivision of this state,   including a municipality or county; and                       (C)     any other governmental agency whose   authority is derived from the laws or constitution of this state.                 (3)     "Respondeat superior" means the common law   doctrine under which an employer is liable for the wrongful acts of   the employer's employee or agent.           Sec.   118.002.     PUBLIC ENTITY RESPONSIBILITY. (a)   For   purposes of this chapter:                 (1)     a public entity is a principal responsible for the   wrongful acts or omissions of the entity's peace officers;                 (2)     a peace officer is an agent of the public entity   that employs the officer; and                 (3)     a public entity is legally responsible for a   wrongful act or omission of the entity's peace officer if the act or   omission occurs under the color of law.           (b)     This chapter constitutes acceptance by a public entity   employing a peace officer of responsibility under respondeat   superior for the officer's conduct under the color of law,   regardless of whether the officer acted in accordance with a policy   or custom of the entity.           Sec.   118.003.     DEPRIVATION OF RIGHTS, PRIVILEGES, OR   IMMUNITIES UNDER COLOR OF LAW. (a) An individual may bring an   action for any appropriate relief, including legal or equitable   relief, in a court of this state against a public entity on the   basis that a peace officer under the entity's employment, by an act   or omission under the color of law, deprived the individual of or   caused the individual to be deprived of a right, privilege, or   immunity under the laws or constitution of this state or the United   States.           (b)     A claimant may recover in an action brought under this   chapter damages resulting from an injury arising from a deprivation   described by Subsection (a).           (c)     A claimant must bring an action under this chapter not   later than two years after the day the cause of action accrues.           (d)     A claimant bringing an action under this chapter bears   the burden of proving a deprivation of a right, privilege, or   immunity under the laws or constitution of this state or the United   States by a preponderance of the evidence.           Sec.   118.004.     APPLICABILITY OF OTHER LAW. Notwithstanding   any other law, a statutory immunity or limitation on liability,   damages, or attorney's fees does not apply to an action brought   under this chapter.           Sec.   118.005.     PROHIBITED DEFENSES. A defendant in an   action brought under this chapter may not assert as a defense or   basis for immunity that:                 (1)     the right, privilege, or immunity under the laws   or constitution of this state or the United States was not clearly   established at the time of the deprivation by the peace officer;                 (2)     based on the state of the law at the time, the   peace officer could not have been expected, reasonably or   otherwise, to know whether the officer's conduct was lawful; or                 (3)     the peace officer acted in good faith or believed,   reasonably or otherwise, that the officer's conduct was lawful at   the time it was committed.           Sec.   118.006.     JURISDICTION IN STATE COURT. (a) An action   under this chapter arises from the laws of this state.           (b)     Jurisdiction over an action brought under this chapter   is in the judicial system of this state under the laws of this   state, including the Texas Rules of Civil Procedure.           Sec.   118.007.     JUDGMENT. (a) A judgment for an action   brought under this chapter must be supported by findings of fact and   conclusions of law.           (b)     A peace officer may not be found financially liable in   an action brought under this chapter for a deprivation of a right,   privilege, or immunity under the laws or constitution of this state   or the United States.           Sec.   118.008.     ATTORNEY'S FEES AND COSTS. (a) In an action   brought under this chapter, a court shall award reasonable   attorney's fees and costs to a prevailing claimant.           (b)     Reasonable attorney's fees include fees incurred on an   hourly or contingency basis or by an attorney providing legal   services on a pro bono basis.           (c)     For purposes of this section, a claimant prevails if the   claimant obtains any relief the claimant seeks in the claimant's   petition, whether the relief is obtained by judgment, settlement,   or the public entity's voluntary change in behavior.           (d)     In an action brought under this chapter, if a judgment   is entered in favor of a defendant, the court may award reasonable   attorney's fees and costs to the defendant only for defending   claims the court finds frivolous.           Sec.   118.009.     JOINT AND SEVERAL LIABILITY. A defendant who   is found liable in an action brought under this chapter is jointly   and severally liable for damages, attorney's fees, and costs   awarded by the court.           Sec.   118.010.     TERMINATION OF CONTRACT, AGREEMENT, OR   EMPLOYMENT. (a) Notwithstanding any other law, contract, or   agreement, a public entity may terminate a contract or agreement   with or the employment of a peace officer if the court finds in an   action brought under this chapter that the officer deprived a   claimant of a right, privilege, or immunity under the laws or   constitution of this state or the United States.           (b)     A public entity's termination of a contract or agreement   with or the employment of a peace officer does not affect the   entity's liability in an action brought under this chapter.           Sec.   118.011.     PUBLIC DISCLOSURE. All petitions, judgments,   settlements, and consent decrees related to an action brought under   this chapter are public information subject to disclosure under   Chapter 552, Government Code.           Sec.   118.012.     WAIVER OF SOVEREIGN OR GOVERNMENTAL IMMUNITY.   Sovereign or governmental immunity to suit and from liability is   waived to the extent of liability created by this chapter.          SECTION 3.  Article 2A.051, Code of Criminal Procedure, is   amended to read as follows:          Art. 2A.051.  GENERAL POWERS AND DUTIES OF PEACE OFFICERS.     Each peace officer [ shall ]:                (1)   shall preserve the peace within the officer's   jurisdiction using all lawful means;                (2)   may, if authorized [ in every case authorized by   this code ], interfere without a warrant to prevent or suppress   crime;                (3)   shall  execute all lawful process issued to the   officer by a magistrate or court;                (4)   shall give notice to an appropriate magistrate of   all offenses committed in the officer's jurisdiction, if [ where ]   the officer has probable cause [ good reason ] to believe there has   been a violation of the penal law;                (5)   may, if [ when ] authorized [ by law ], arrest an   offender without a warrant so the offender may be taken before the   proper magistrate or court and be tried;                (6)   shall take possession of a child under Article   63.00905(g) [ 63.009(g) ]; [ and ]                (7)   shall,  on a request made by the Texas Civil   Commitment Office, execute an emergency detention order issued by   that office under Section 841.0837, Health and Safety Code ;                 (8)     shall make an identification as a peace officer   before taking any action within the course and scope of the   officer's official duties unless the identification would render   the action impracticable; and                 (9)     shall intervene to prevent an action by another   peace officer if:                       (A)     the action includes the use of force in an   amount that exceeds that which is reasonable under the   circumstances;                       (B)     the intervening officer knows or should know   that the other officer's action violates department policy or   local, state, or federal law; or                       (C)     the action puts a person at risk of bodily   injury, as that term is defined by Section 1.07, Penal Code, and is   not:                             (i)     immediately necessary to avoid imminent   bodily injury to a peace officer or other person; or                             (ii)     required to apprehend a person   suspected of committing an offense .          SECTION 4.  Chapter 2B, Code of Criminal Procedure, is   amended by adding Subchapter E-1 to read as follows:   SUBCHAPTER E-1. CITATIONS AND ARRESTS           Art.   2B.0221.     DEFINITION. In this subchapter, "law   enforcement agency" means an agency of the state or an agency of a   political subdivision of the state authorized by law to employ   peace officers.           Art.   2B.0222.     CITE AND RELEASE POLICY. (a)   Texas Southern   University, in consultation with law enforcement agencies, law   enforcement associations, law enforcement training experts, and   community organizations engaged in the development of law   enforcement policy, shall publish a written model policy regarding   the issuance of citations for misdemeanor offenses, including   traffic offenses, that are punishable [Text truncated for display. Full text available on Congress.gov.]