As you may recall, last session we waited until the March deadline for filing bills had passed before we tallied up the proposed new causes of action. We’re not waiting that long this session because a truly astonishing number of such bills have already been filed, and we still have 53 days to go before the extent of the damage will be fully known. Thus far, about 228 bills have been introduced that in some form or fashion impose civil or criminal liability on Texas individuals, businesses, health care providers, governmental entities, and governmental employees (and that’s assuming we haven’t missed any, which we probably have!). To put that in perspective, that represents just over 8 percent of the total number of bills filed this far.
A word or two concerning the compilation of the bills you will see below. First, you will see that we have created specific categories that we think best describe the type of liability a particular bill creates or imposes. These categories are as follows:
- New Causes of Action (general);
- New Causes of Action Against Businesses or Employers/Legal Duties Giving Rise to Liability;
- New Civil or Administrative Penalties Against Business and Employers;
- New Criminal Penalties Against Businesses or Employers;
- New Causes of Action Against Health Care Providers;
- New Civil or Administrative Penalties Against Health Care Providers;
- New Causes of Action Against Governmental Entities and Employees;
- New Civil or Administrative Penalties Against Governmental Entities/Employees;
- New Criminal Penalties Against Governmental Entities/Employees;
- Waiver of Sovereign Immunity;
- New DTPA Actions;
- New Statutory Penalties/Punitive Damages;
- New Mandatory Attorney’s Fees/Costs;
- New Attorney General Enforcement Power;
- License Refusal/Disciplinary/Revocation Authority.
This broad overview is intended to give you a general idea of scope of these bills and the entities and individuals they target. More detailed information on each of these bills may be found in our weekly tracking reports.
TCJL’s Statement of Business Conservative Principles flags bills with new causes or penalties as facially problematic for the business and health care communities and the civil justice system. In general, TCJL opposes using the civil courts to police the conduct of businesses, health care providers, professionals, and individuals. We also generally oppose creating new opportunities for the recovery of costs and attorney’s fees because they target businesses and health care providers and incentivize more litigation against them.
When a proposed statute establishes a new way to impose liability through the civil justice system, it has the effect of creating a litigation industry around the incentivized actions and exposing businesses and health care providers to uninsurable risks. Even when those risks can be insured, the litigation machine will quickly target those funds, inevitably causing a crisis of accessibility and affordability of coverage. This pattern has played out far too many times in the past to the detriment of the state’s economy and the availability of the goods and services Texans desire. It has also produced rising costs that are pushed down to employees, consumers, and taxpayers in the form of a “litigation tax.” If the state sees a compelling necessity to regulate conduct in certain areas, we believe that the best approach is to delegate authority to the appropriate regulatory and licensing agencies. These bodies have subject matter expertise and can work in a structured way with the regulated community to achieve compliance, not simply mete out punishment on a one-off basis, as litigation and civil enforcement generally do.
Another troubling aspect of this data is the explosion of new causes of action and civil and criminal penalties against governmental entities and their employees. For every new lawsuit authorized in these bills, a waiver of governmental immunity comes with it. Let’s not forget that when the Legislature waives sovereign immunity, it puts taxpayers on the hook for damages, penalties, attorney’s fees, costs, and whatever else piles up in a lawsuit. It is somewhat ironic that in a legislative climate focused so strongly on delivering property tax relief, there should be so many bills that, if enacted, would force governmental entities to dip into their property tax-funded budgets to pay out settlements, judgments, penalty determinations, and attorney’s fees and costs. It also requires governmental entities to defend against lawsuits, again, at the expense of taxpayers.
Proposed legislation imposing personal liability on judges and local prosecutors is back for another run this session as well. These public servants are elected officials, just like legislators. What do you think would happen if somebody introduced a bill making legislators personally liable for the consequences of legislation that they authored, sponsored, or voted for? Unless they break the law, we generally hold public officials accountable at the ballot box. It is a terrible precedent to pierce the immunity of public officials for discretionary actions and decisions that are within their purview. Once we start down that road, everyone will end up in the barrel together.
In any event, here is the present list, current through Friday, January 17. We should note that many bills fall into more than one category, so we hope that doesn’t confuse you. We may have missed or misclassified some, so if you review the list and see anything that should or shouldn’t be there, please let us know.
New Causes of Action (general) (15): HJR 25/HB 179 (eliminates limitation on sexual abuse claims); HB 235 (intimate visual material); HB 270 (false reports to law enforcement); HB 729 (housing discrimination); HB 783 (online impersonation); HB 1127 (breast feeding); HB 1196 (all-terrain vehicles); HB 1375 (obscenity); HB 1601 (sex discrimination); HJR 27 (right to clean environment); HJR 28 (parental rights); SB 534 (adverse possession); SJR 12/HJR 92 (parental rights); SJR 24 (right to privacy); SJR 34/HJR 112 (parental rights)
New Causes of Action Against Businesses or Employers/Legal Duties Giving Rise to Tort Liability (91): HB 186 (social media platforms); HB 239/SB 240 (same sex bathrooms); HB 302/SB 361 (employers); HB 317 (employers); HB 383 (employers); HB 421 (AI generators); HB 499 (social media platforms); HB 699 (cosmetics manufacturers); HB 715 (discrimination in public accommodation/unlawful employment practice/discrimination in housing); HB 719 (cosmetics manufacturers); HB 722 (insurers); HB 735 (meat sellers); HB 736 (environmebntal permits); HB 778 (group health plans); HB 798 (landlords); HB 822 (mandatory paid sick leave); HB 841/HB 1298/HB 1880 (employers); HJR 65/HB 823 (employers); HB 854 (residential property insurers); HB 872 (ESG); HB 946 (auto insurers); HB 921 (social media platforms); HB 938/HB 1075 (drag performances); HB 943 (employers); HB 988 (corporate directors); HB 949 (employers); HB 970 (PBMs); HB 991 (abortion drugs); HB 1069 (employers/contractors); HB 1121 (AI); HB 1099 (landlords); HB 1111 (gender discrimination); HB 1164 (discrimination in public accommodation); HB 1171 (landlords); HB 1177 (diverting surface water); HB 1191 (employers); HB 1375 (shareholder liability for obscenity); HB 1184 (landlords); HB 1185 (landlords); HB 1206 (landlords); HB 1247 (landlords); HB 1351 (employers); HB 1369 (landords); HB 1431 (cell-cultured protein); HB 1474/SB 566 (dietary supplements); HB 1549 (obscene devices); HB 1609 (employment discrimination against volunteer firefighter); HB 1709 (AI/employers/social media platforms/ISPs); HB 1809 (insurers); HB 1860 (landlords); HB 1907 (local government contractors); HB 1947 (damage to critical infrastructure facilities)
SB 82 (third party criminal acts on business premises); SB 115 (health plan issuers); SB 213 (insurers); SB 220 (employers); SB 229 (auto dealers); SB 230 (consumer reporting agencies); SB 315 (DNA); SB 324/HB 1308/HB 1488 (employers E-Verify); SB 340 (landlords); SB 381 (remote vehicle disabling technology); SB 405 (out-of-state PACs); SB 441 (AI); SB 442 (AI); SB 443 (corporate owners of short term rentals); SB 473 (telephone solicitation); SB 484 (manufacturers/sellers of portable generators); SB 485 (landlords); SB 493 (health plan issuers); SB 501/HB 1335 (excavation activities); SB 512/SHB 1516 (money services business); SB 578 (exterior surveillance cameras low income housing); SB 584 (consumer reporting agency); SB 585 (consumer reporting agency; SB 591 (clothing sales on internet); SB 593 (insurers); SB 603 (landlords); SB 606/SB 695 (consumer reporting agency); SB 655 (sports agents); SB 668 (AI); SB 726 (smart phone manufacturers and operators); SB 754 (coercing health care services); SB 790 (landlords); SB 701 (health plan issuers); SB 838/HB 860 (subscription services); SB 851 (landlords)
New Civil or Administrative Penalties Against Business and Employers (17): HB 239/SB 240; HB 822; HB 970; HB 1069; HB 1111; HB 1474/SB 566; HB 1549; HB 1709; HB 1907; SB 340; SB 405; SB 443; SB 512/HB 1516; SB 591; SB 655/SB 838/HB 860
New Criminal Penalties Against Businesses (18): HB 387 (AI); HB 401 (AI); HB 418 (AI); HB 449 (AI); HB 556 (AI); HB 733 (homebuilders); HB 1092 (AI); HB 1121 (AI); HB 1177; HB 1185; HB 1664 (PFAS); HB 1434 (obscenity); HB 1849 (sales of real property to foreign entities); HB 1717 (AI); HB 1907; HB 1947; SB 228 (AI); SB 315 (DNA)
New Causes of Action Against Health Care Providers (35): HB 607 (discrimination); HB 742 (retaliation for reporting human trafficking); HB 943 (coercing COVID vaccine); HB 964 (clinical labs); HB 975 (manufacturers of individualized investigational treatments); HB 991 (abortion drugs); HB 1084 (IVF); HB 1088 (gender transitioning); HB 1132 (health care facilities); HB 1199 (nursing homes); HB 1219/SB 350 (health of pregnant individual); HB 1265 (AI mental health professionals); HB 1356 (health care providers); HB 1365/SB 168 (mental health professionals); HB 1467 (nursing homes); HB 1652 (treatment of minors); HB 1685 (supervision of physician graduates); HB 1689 (alternate board certification); HB 1771 (pharmacists); HB 1791 (prescribers of opioids); HB 1792 (reproductive health protected health care information); HJR 91 (vaccines)
SB 95 (vaccines); SB 115 (gender modification); SB 116 (gender transitioning); SB 120 (hospital providers); SB 125 (direct blood donations); SB 128 (hospital reports to DFPS); SB 315 (DNA); SB 407/HB 1468 (health care facilities); SB 481 (nursing homes); SB 669/HB 216 (itemized bills); SB 699 (in-patient rehab facilities); SB 754 (coercing health care services); SB 761/HB 1953 (health care facilities/sexual assault victims)
New Civil or Administrative Penalties Against Health Care Providers (9): HB 1084; HB 1219/SB 350; HB 1356; HB 1467 (nursing homes); HB 1791; SB 128; SB 315; SB 699; SB 761/HB 1953
New Causes of Action Against Governmental Entities and Employees (30): HB 167 (DEI); HB 320 (landlords); HB 323 (E-Verify); HB 468 (school districts); HB 505 (limiting access to reproductive treatment); HB 653 (restricting access to contraception); HB 909 (police misconduct); HB 991 (judges); HB 1014 (school districts) HB 1167 (judges and magistrates); HB 1280 (anti-discrimination standards); HB 1479/SB 306 (expressive rights on college campuses); HB 1619 (school bus arms); HB 1645 (campus police and local governments for crimes committed by illegal immigrants); HB 1654 (discrimination against injured employee); HB 1792 (reproductive health protected health care information); HB 1797 (state/local governments drug testing); HB 1895 (electric co-ops/municipal utilities wind projects); HB 1907 (local government contracts with China); HB 1919 (denial of health care services)
SB 123 (executive director of Texas Medical Board); SB 126 (school districts); SB 317 (removal of statues); SB 324/HB 1308/HB 1488 (E-Verify); SB 382 (AI); SB 589 (public employers); SB 618 (election officials); SB 730/HB 1806 (logisitical support for abortions)
New Civil or Administrative Penalties Against Governmental Entities/Employees (6): HB 1014; HB 1654; HB 1895; SB 317; SB 618; SB 293/HB 1761 (judges)
New Criminal Penalties Against Governmental Entities/Employees (2): HB 1167; HB 1280
Waiver of Sovereign Immunity (7): HB 909; HB 1167; HB 1394; HB 1479/SB 306; HB 1654; HB 1919; SB 317
New DTPA Actions (5): HB 186 (social media platforms); HB 495 (sick animals); HB 852 (zero emissions labeling); HB 1651 (Internet sales of abortion drugs); SB 484 (labeling of portable generators)
New Statutory Penalties/Punitive Damages (17): HB 270; HB 783; HB 921; HB 938/HB 1075;HB 943; HB 991; HB 1127; HB 1167; HB 1247; HB 1369; HB 1654; HB 1797; HB 1947; SB 95; SB 473; SB 512/SB 1516; SB 754
New Mandatory Attorney’s Fees/Costs (39): HB 167; HB 170; HB 186; HB 239/SB 240; HB 270; HB 414/HB 1076/SB 465; HB 421; HB 585; HB 783; HB 822; HB 852; HB 909; HB 938/HB 1075); HB 943; HB 991; HB 1050; HB 1111; HB 1127; HB 1164; HB 1247; HB 1280; HB 1369; HB 1375; HB 1474/SB 566; HB 1479/SB 306; HB 1601; HB 1797; SB 95; SB 291; SB 315; SB 340; SB 443; SB 473; SB 484; SB 512/HB 1516; SB 754; SB 730/HB 1806
New Attorney General Enforcement Power (28): HB 186; HB 191/HB 402/HB 1566/HB 1849/SB 307 (foreign acquisition of real property); HB 239/SB 240; HB 970; HB 943; HB 1004/SB 846; HB 1014; HB 1164; HB 1280; HB 1467; HB 1474/SB 566; HB 1709; HB 1907; HB 243; SB 315; SB 512/HB 1516; SB 317; SB 591; SB 618; SB 655; SB 668; SB 730/HB 1806; SB 838/HB 860; SB 754
License Refusal/Disciplinary/Revocation Authority (10): HB 994 (foreign medical schools); HB 997/SB 471 (telehealth providers); HB 1709 (AI); HB 1791 (prescribers of opioids); HB 1869 (health care facilities); SB 381; SB 473; SB 481; SB 669/HB 216 (health care providers); SB 474 (prosecuting attorneys)
