With the March 10 deadline for filing new bills in the rearview mirror, TCJL is tracking hundreds of bills that create new private causes of action, new liability for civil, administrative, and criminal penalties, and new liability for attorney’s fees. 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 report. As you are aware, 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 new 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 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 that 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 session 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, and penalty determinations. It also requires governmental entities to defend against lawsuits, again, at the expense of taxpayers.
A novel feature that we don’t recall ever seeing before is proposed legislation imposing personal liability on judges and local prosecutors. 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.
The following catalogue divides the bills into categories for ease of reference (if not for ease of reading). We should note that many bills create both a new cause of action and a new penalty, so you will see those listed in more than one category. 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) (18): HB 689 (false report to law enforcement agency), HB 1752 (aiding and abetting gender dysphoria), HB 1823 (fraudulent liens), HB 1896 (intimate visual material), HB 2690 (abortion-inducing drugs), HB 3357 (obscenity), HB 3378 (breast feeding), HB 3533 (offenses against a child), HB 3570 (publication of sexual material), HB 3918 (gender identity), HB 4378 (drag performances), HB 4786 (unlawful abortions), HB 4897 (online impersonation), HB 5062 (beach access), HB 5179 (nonconsensual removal of a condom), HJR 166 (exemplary damages for homicide), SB 2082 (ethnic/religious animus), SB 2086 (DNA property right)
New Causes of Action Against Businesses and Employers (97): HB 18 (digital services providers), HB 79 (employers), HB 81 (employers), HB 102 (employers), HB 256/SB 274 (employers, contractors, subcontractors, housing providers), HB 265 (housing providers), HB 292 (sellers of goods and services), HB 404 (employers), HB 450 (oil and gas operators), HB 494 (employers), HB 515 (heavy equipment manufacturers), HB 528 (employers), HB 567 (employers, landlords), HB 601 (property and casualty insurers), HB 645 (financial institutions and businesses), HB 722 (employers), HB 723/SB 108 (employers), HB 725 (insurers/employers), HB 790 (worker’s compensation carriers), HB 831 (insurers), HB 850 (general business), HB 893 (employers), HB 1032 (employers/insurers), HB 1043 (employers), HB 1234 (property and casualty insurers), HB 1239 (insurers), HB 1268 (landlords), HB 1321 (auto insurers), HB 1337 (health plans), HB 1437 (auto insurers), HB 1450 (sellers of eviction information), HB 1527 (employee benefit plans/health insurers), HB 1656 (auto repair facilities), HB 1702 (worker’s compensation carriers), HB 1706 (property and casualty insurers), HB 1806 (employers), HB 1820 (landlords), HB 1823 (lienholders), HB 1936/SB 417 (electronic device manufacturers), HB 1963 (premises owners), HB 1999 (employers), HB 2049 (common carrier pipelines), HB 2115 (employers), HB 2155 (social media platforms), HB 2516 (landlords), HB 2604 (employers), HB 2632 (residential mortgage loan originators), HB 2813 (governing persons of companies doing business in Texas), HB 2837 (financial institutions), HB 3030 (employers), HB 3475 (employers), HB 3750/HB 3752/SB 2510 (social media platforms), HB 3977 (employers), HB 4114 (employers), HB 4309 (employers), HB 4804 (social media platforms), HB 4800 (pharmaceutical manufacturers), HB 4810 (equipment suppliers), HB 4915 (sellers of goods and services), HB 5214 (antitrust violations), HB 4129 (drag performances), HJR 45 (employers/businesses)
SB 110/HB 1012 (employers, general business), SB 302 (employers), SB 304 (employers/health benefit plans), SB 305 (employers), SB 308 (employers, insurers), SB 570 (housing providers), SB 622/HB 1754 (health plans), SB 634 (health plans), SB 714 (business premises owners and lessees), SB 878 (housing providers), SB 913/HB 5185 (mandatory insurance for gunowners), SB 1014 (testing/disclosure of genetic information), SB 974 (landlords), SB 1029 (health insurers/gender modification), SB 1060 (insurers/Texas holding companies), SB 1303 (wind power facilities), SB 1580/HB 4059/HB 4348 (manufacturers of investigational treatments), SB 1846 (manufacturers of voting systems), SB 1328 (scrap tires), SB 1396 (lawyers), SB 2290 (nightclubs, bars, restaurants, theaters), SB 2509 (social media platforms), SB 2527 (health insurers), SJR 66 (interference with right to refuse medical treatment), SB 1026 (employers), SB 1753 (private entities)
New Deceptive Trade Practices Act (Ch. 17, Business & Commerce Code) Violations (9): HB 292 (sellers of goods and services), HB 515 (manufacturers of electronics-enabled heavy equipment), HB 2128 (natural gas producers), HB 2632 (residential mortgage loan originators), SB 4601 (non-perpetrators of sexual offenses against a child), HB 4804 (social media platforms), HB 4915 (sellers of goods and services), SB 2290 (drag performances), SB 2509 (social media platforms)
New Civil or Administrative Penalties Against Businesses and Employers (104): HB 4 (businesses that handle personal data), HB 41/HB 122/SB 250 (professional liability carriers), HB 79 (employers), HB 81 (employers), HB 138 (employers), HB 248 (mental health and chemical dependency facilities), HB 256/SB 274 (employers, contractors, subcontractors, housing providers), HB 404 (employers), HB 494 (employers), HB 495 (construction contractors), HB 528 (employers), HB 567 (employers), HB 709 (financial institutions), HB 722 (employers), HB 723/SB 108 (employers), HB 725 (employers), HB 831 (insurers), HB 893 (employers), HB 896 (social media providers), HB 925 (firearm manufacturers, distributors, and sellers), HB 1032 (employers/insurers), HB 1054 (construction contractors), HB 1128 (health plan issuers), HB 1234 (property and casualty insurers), HB 1321 (auto insurers), HB 1337 (health plans), HB 1437 (auto insurers), HB 1527 (employee benefit plans/health insurers), HB 1532 (professional liability carriers), HB 1549 (employers), HB 1568 (swim instruction operators), HB 1686 (health plans), HB 1706 (property and casualty insurers), HB 1806 (employers), HB 1936/SB 417 (electronic device manufacturers), HB 2049 (common carrier pipelines), HB 2128 (natural gas producers), HB 2180 (PBMs), HB 2254 (trampoline courts), HB 2437 (TCEQ permittees), HB 2444 (event ticket sellers), HB 2549 (general business), HB 2545/SB 1544 (direct-to-individual genetic testing companies), HB 2758 (state agency vendors), HB 2837 (financial institutions), HB 2926 (workers’ comp carriers), HB 2941 (oil and gas pipelines), HB 3036/HB 5245 (financial institutions), HB 3098/SB 1502 (health insurers), HB 3391 (insurers), HB 3413 (health insurers), HB 4367 (health insurers), HB 4405 (health insurers), HB 4786 (entities regulated by Railroad Commission), HB 5048 (insurers), HB 5232 (antitrust violations), SB 704 (biometric identifiers/specimens/genetic information),
SB 12 (commercial sexually oriented performances), SB 58/HB 2336 (purchasing bypass), SB 110/HB 1012 (employers, general business), SB 304 (employers/health benefit plans), SB 308 (employers/insurers/professional licensees), SB 570 (housing providers), SB 401 (medical staffing services), SB 476/HB 643, HB 708/HB 1266 (“drag performances”), SB 58 (sales on Internet website), SB 622/HB 1754 (health plans), SB 634 (health plans), SB 704 (biometric identifiers), SB 1014 (testing/disclosure of genetic material), SB 1024 (private entities), SB 1083/HB 3476 (property & casualty insurers), SB 1138 (health insurers), SB 1141/HB 895 (HMOs/PPOs), SB 1217/HB 2880 (TWIA), SB 1221/HB 826 (health insurers), SB 1268 (insurers), SB 1576/HB 999 (health insurers/PBMs), SB 1683 (lenders), SB 1719 (TCEQ permit applicants), SB 2065 (employee benefit plans/health insurers), SB 2527 (health insurers), SB 2105/HB 4917 (third-party data collection entities), SB 401 (medical staffing services),
New Causes of Action Against Health Care Providers (31): HB 41/HB 122/SB 250 (physicians and providers), HB 42 (medical and mental health professionals), HB 81/SB 177 (all providers), HB 189 (hospitals), HB 319 (health care facilities), HB 425 (employers), HB 536 (health care providers), HB 672 (gender modification), HB 776 (gender dysphoria), HB 888 (physicians and practitioners), HB 1023 (clinical labs), HB 1100 (senior living facilities), HB 1679/SB 439 (mental health professionals), HB 1532 (gender modification), SB 14/SB 625/HB 1686 (physicians/gender modification), HB 2116 (health care providers/gender modification), HB 4624 (health care providers/gender modification), HB 4754 (health care providers/gender transition), SB 297 (health care providers), SB 298 (health care providers), SB 304 (health care providers), SB 305 (vaccine administrators), SB 308 (health care facilities), SB 439/HB 1679 (mental health professionals), SB 1198 (health care providers)
New Civil or Administrative Penalties Against Health Care Providers (30): HB 41/HB 122/SB 250 (physicians and providers), HB 42 (medical and mental health professionals), HB 112 (health care facilities), HB 326 (health care facilities), HB 592 (telemedicine or telehealth providers), HB 672 (gender transitioning), HB 776 (gender transitioning), HB 1490 (physicians/practitioners), HB 1532 (gender transitioning), HB 1593 (long-term care facilities), HB 1686 (physicians), HB 1692 (health care facilities), HB 1873 (health care providers), HJR 85 (providers), HB 2764 (physicians), HB 3151 (health care providers), HB 3212 (birthing centers), HB 4350 (health care providers), HB 4624 (health care providers/gender modification), HB 2324 (hospital providers), HB 4754 health care providers/gender transition), SB 297 (health care providers), SB 304 (health care providers), SB 305 (vaccine administrators), SB 308 (health care facilities), SB 555 (pharmacy chains), SB 1024 (health care facilities), SB 945 (hospitals)
New Causes of Action Against Governmental Entities and Employees (51): HB 33 (state agencies and employees), HB 61 (governmental entities), HB 119 (governor/local governments), HB 448 (political subdivisions), HB 567 (schools, higher education institutions), HB 791 (state agencies), HB 911 (governor/local governments), HB 1006 (higher education institutions), HB 1032 (schools and higher education institutions), HB 1046 (higher education institutions), HB 1215 (state and political subdivisions), HB 1309 (general), HB 1467 (state agencies and political subdivisions), HB 1752 (judges, state and local officials), HB 1753 (state and local governments and officials), HB 1483 (state agencies), HB 1810 (local entities/higher education institutions), HB 1877 (election officials), HB 1881 (counties), HB 2068 (public investment funds and advisors), HB 2127 (local governments), HB 2266 (local governments), HB 2316 (local governments), HB 2690 (judges), HB 2965 (civic works projects), HJR 85 (state and local governments), HB 2470 (employers of first responders), HB 2519 (public entities), HB 2619 (election officials), HB 2955/HB 2117/SB 1971 (judges and criminal magistrates), HB 3164 (higher education institutions), HB 5290 (school districts)
SB 299 (hospital providers), SB 304 (TXDOT, state and local governments), SB 305 (schools, universities, state agencies), SB 307 (state and local governments), SB 308 (educational institutions, TXDOT), SB 393 (school districts), SB 513 (executive director of Texas Medical Board), SB 559 (State Bar of Texas), SB 557 (peace officers), SB 690 (school districts), SB 1446 (public investment fund trustees), SB 1711 (higher education institutions), SB 1879/HB 5003 (governmental officers and judges), SB 1026 (governmental entities and courts; schools and higher education institutions), SB 1556 (school districts), SB 1753 (governmental entities)
New Civil or Administrative Penalties Against Governmental Entities and Employees (16): HB 33/SB 470 (state agencies/employees), HB 61 (governmental entities), HB 107 (violation of emergency management plan), HB 262 (governmental entities), HB 2498 (counties), HB 2760/SB 2459 (state agencies), HB 3092 (Pharmacy Board), HB 5249/SB 2378 (public entities/abortion), SB 203 (physicians and practitioners), SB 378 (district and county attorneys), SB 1024 (governmental entities), SB 1031 (school districts), SB 1582 (higher education institutions)
Attorney’s Fees and Costs (76): HB 4, HB 18, HB 61, HB 81/SB 177, HB 256/SB 274, HB 319, HB 404, HB 450, HB 645, HB 689, HB 709, HB 791, HB 850, HB 925, HB 1006, HB 1063, HB 1450, HB 1467, HB 1752, HB 1753, HB 1936/SB 417, HB 1963, HB 2023, HB 2119, HB 2127, HB 2266, HB 2324, HB 2444, HB 2470, HB 2519, HB 2545/SB 1544, HB 2837, HB 2874/SB 2286, HB 2928, HB 2906, HB 3164, HB 3918, HB 4142, HB 4810, HB 4876, HB 4897, HB 5048, HB 5062, HB 5179, HB 5214, HB 5253, HB 5290
SB 12, SB 58/HB 2336, SB 110/HB 1012, SB 298, SB 302, SB 305, SB 307, SB 378, SB 393, SB 401, SB 555, SB 2105/HB 4917, SB 974, SB 1014, SB 1303, SB 1396, SB 1512, SB 1711, SB 1879/HB 5003, SB 2086
New Statutory Punitive Damages (24): HB 18, HB 81/SB 177, HB 645, HB 1936/SB 417, HB 1752, HB 2155, HB 2316, HB 2955/HB 2117/SB 1971, HB 3357, HB 3378, HB 3750/HB 3752/SB 2510, HB 4378, HB 4876, HB 4897, HB 5179, HB 5214, SB 974, SB 2527
New Criminal Penalties Against Businesses and Employers (9): HB 1031 (manufacturers and distributors of remote vehicle disabling technology), HB 1594 (social media companies), HB 1899 (insider trading), HB 1995 (licensed firearms dealers), HB 2252 (trampoline courts), HB 2788 (foreign entities), HB 2941 (oil and gas pipelines), HB 3134 (social media platforms), SB 2086 (DNA property right)
New Criminal Penalties Against Health Care Providers (7): HB 81 (gender transitioning), HB 248 (mental health and chemical dependency facilities), HB 672 (gender transitioning), HB 2324 (nursing education programs), HB 2709 (unborn children), HB 2764 (physicians), HB 4754 (health care providers/gender transitioning)
New Criminal Penalties Against Governmental Entities and Employees (2): HB 384, HB 2619
