Good News!! on HB 284

[CWOOD]

When I attended the Committee hearing on HB284, there was discussion of the committee substitute of the orignal bill. I never saw the substitute which is the version which was sent on to the full house with a favorable recommendation. I will post links to the text and analysis later.

In the original version of the bill, there was an "affirmative defense' to civil liability if the original intended victim met certain conditions.
1. that the use of force was justified as stated in the law
2. that the actor did not provoke the confrontation
3. that the actor had a right to be at the location
4. that the actor was not otherwise engaged in criminal activity at the time.

The passed committee changes "affirmative defense" to "IMMUNITY FROM CIVIL ACTION" Folks this is HUGE.

Also, as of 3-14-07 it has been place on the 'Major State Calender". This is good.

As a side note the bill has 1 Author (Driver), 4 Joint Authors, and 102 Co-authors out of a total of 150 members in the House.

Here is the analysis of the bill in HTML format:

http://www.capitol.state.tx.us/tlodocs/ ... 00284H.htm

Here is the revised text of the bill in HTML format:

http://www.capitol.state.tx.us/tlodocs/ ... 00284H.htm

These are also available in Word and PDF formats if you prefer those.

[KBCraig]

The passed committee changes "affirmative defense" to "IMMUNITY FROM CIVIL ACTION" Folks this is HUGE.

That is a huge change in meaning! For those who don't catch the subtlety, this changes it from "you can use it as a defense when you're sued", to "you can't be sued".

Here is the revised text of the bill in HTML format:

http://www.capitol.state.tx.us/tlodocs/ ... 00284H.htm

Oooh... I really don't like "provoked" as a choice of wording, unless "provoke" has a statutory definition that is more strict than the common definition. If someone is in a Longhorn venue singing "Boomer Sooner" after an Okiehomie victory, and someone sets out to re-arrange his body parts, the Okie has certainly "provoked" that unlawful response. If someone walks down the wrong street innocently wearing the wrong colors, or unknowingly having an "unacceptable" level of melanin in their skin, that is a "provocation" in some neighborhoods. Neither should lose the right to defend again unlawful force or unlawful deadly force, just because someone else decided they'd been "provoked".

I'm reminded of a Bill Mauldin cartoon from the 1970s, regarding a Thailand/Cambodia conflict. "Cambodia" was standing with a bloody machete over "Thailand", and saying, "I had no choice. He provoked me."

Kevin

[stroo]

This is a huge change but immunity doesn't mean you can't be sued. It means that if you prove up the elements, then as a matter of law, not fact, you can't be found liable. With an affirmative defence, even if you proved up the element, the issue goes to the jury and who knows what the jury does with it.

[Will938]

I thought the same thing concerning provocation. What is being provoked? How far does that cover, did I provoke someone by not retreating from my car while they were breaking in? Did I provoke the attack by using firm language instead of telling them that I was very very sorry about irritating him and that I was leaving in an expedited manner with my tail between my legs?

[kauboy]

This is a huge change but immunity doesn't mean you can't be sued. It means that if you prove up the elements, then as a matter of law, not fact, you can't be found liable. With an affirmative defence, even if you proved up the element, the issue goes to the jury and who knows what the jury does with it.

I don't think thats right. "Immunity from civil action" means you cannot be sued in civil court by the attacker, their family, etc. The "jury" only matters in criminal court. That is NOT what this bill deals with.

[srothstein]

This is a huge change but immunity doesn't mean you can't be sued. It means that if you prove up the elements, then as a matter of law, not fact, you can't be found liable. With an affirmative defence, even if you proved up the element, the issue goes to the jury and who knows what the jury does with it.

I don't think thats right. "Immunity from civil action" means you cannot be sued in civil court by the attacker, their family, etc. The "jury" only matters in criminal court. That is NOT what this bill deals with.

You miss the concept just a little. You can be sued. Immunity from civil action does not stop the person from filing suit. It is only after he files suit that you can claim the defense or immunity and then you get to ask for a summary judgment. The logic of this is that it takes a court review to determine if you really meet the requirements of the immunity instead of just your claim.

As an example of how this works, look at the case before the Supreme Court on car chases. The officer claimed immunity under several reasons. When the trial court ruled, someone disagreed and appealed, and the same has happened at several levels, so the Supreme Court will now make a decision on the immunity (well, technically on the reasoning behind the claim). If they find the officer was right about the immunity, the case goes away. If not, then there is still a trial to be held.

But this is still a great advance for us. It means that if you are involved in a shooting, and are justified under this law, the bad guy sues you. Your lawyer then files the reasons for the immunity with the court and asks for a summary judgment. You would get it unless there were some question about the justification or provocation. If there is a question, it is still a much quicker and cheaper hearing to clarify one or two points than a full trial. And most important, most plaintiff attorneys will not take a case if they will not stand a good chance of winning, so the odds of getting sued go way down.

CHL insurance costs should also drop enough to make it a much more reasonable bet.

[stevie_d_64]

As nervous as I was initially with the change in "not being able to be sued" to allowing a court to decide the validity of the civil suit, I would reluctantly support and vote for this, if nothing more than it being another step in the right direction for us...

I think they knew that this change was inevitable...

The question is can you still recoup financial costs if the civil suit is thrown out in this manner, according to this law???

I just want to be clear in my mind if this is the case...

I mean this is the "crown jewel" in this session for us, and I would not be happy if it ended up being a watered down version of what we were excited about when it was originally filed...

I just want to be sure I'm seeing this correctly...

[CWOOD]

ESPECIALLY in view of how our rights often get treated in a political forum.

That being said, I feel pretty good about this. It seems that the committee substitutes for the original bills actually made them better.

I was originally very concerned about the removal of the provision granting recovery of court costs and attorney fees. This was before I was aware that the changes also included "immunity" from civil action if you were justified according to the legislation. Once I became aware of the immunity provision I felt MUCH better. This may make that provision unnecessary but in any case you still have the right to attempt to recover these costs if necessary. It is just not in this bill, now.

The reason I have confidence in the effectiveness of these bills to protect us is the COMBINATION of the improvements in justification AND immunity. As was said above this will give us strong double edged protection. Both provisions of this have to be overcome before civil action can proceed. This is going to really cool the enthusiasm of bottom feeder alleged attorney ambulance chasers (not to be confused with REAL lawyers) before the bring civil action.

Also, there was so much complaining from Harris county and other county DA's at the hearings of how horribly difficult it would be for them to overcome the presumptions of justification, this make feel a bit more secure both from criminal AND civil action.

I am not a lawyer so I hope that Charles or another REAL attorney here will review my thoughts for accuracy...but I feel pretty good so far.

[Charles L. Cotton]

. . . The question is can you still recoup financial costs if the civil suit is thrown out in this manner, according to this law???

I just want to be clear in my mind if this is the case...

There is nothing in SB378 that deals with recovery of fees and expenses related to defending a suit. There has long been a provision in the Texas Rules of Civil Procedure that empower the court to award sanctions against a party, their attorney, or both, if a suit is found to be frivolous. Whether any court awards such sanction (fees & expenses) varies with the court and type of case, but overall it is uncommon. This type of case is more likely to anger a judge, thus it will have a better chance of having sanctions awarded.

I'm glad the "immunity" to civil liability has been expanded, but in truth, suits by people shot while trying to commit a crime are rare and the defendant almost always prevails. The new wording will make it even less attractive to an attorney considering filing suit, thus less likely that a suit will be filed.

Chas.

[Charles L. Cotton]

When SB378 passes the House next Monday, I’ll post some comments on the change in the Civil Practices & Remedies Code dealing with civil suits. I don’t want anyone to think there is skunk buried in the bill, so let me say SB378 is an excellent bill that dramatically protects innocent persons justifiably using deadly force. It's provisions are felt in both the criminal and the civil arenas.

“Civil Immunity� does not mean a person cannot be sued. It means the plaintiff cannot win, if the elements of the immunity are present. It also means the defendant will get a summary judgment in their favor, early in the case.

Chas.

[jrosto]

The main thing that bothers me about the committee substitute is the addition of the words "and with force".

1) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

If a goblin enters an unlocked home or business, has he entered "with force"?

This wording just seems to open loopholes for DA's and civil lawyers.

Other than that, this is an excellent piece of legislation and everyone involved needs to be commended.

[txinvestigator]

The passed committee changes "affirmative defense" to "IMMUNITY FROM CIVIL ACTION" Folks this is HUGE.

That is a huge change in meaning! For those who don't catch the subtlety, this changes it from "you can use it as a defense when you're sued", to "you can't be sued".

Here is the revised text of the bill in HTML format:

http://www.capitol.state.tx.us/tlodocs/ ... 00284H.htm

Oooh... I really don't like "provoked" as a choice of wording,

Provoke is already part of the use of force laws. Penal Code section 9.31 (b) states that

(b) The use of force against another is not justified:


(4) if the actor provoked the other's use or attempted use of
unlawful force,

It goes on to include justification if you abandon the encounter you provoked or clearly communicate your desire to do so, and the other then continues to use unlawful force against you.

I thought the same thing concerning provocation. What is being provoked? How far does that cover, did I provoke someone by not retreating from my car while they were breaking in?

No.

Did I provoke the attack by using firm language instead of telling them that I was very very sorry about irritating him and that I was leaving in an expedited manner with my tail between my legs?

No.

[Charles L. Cotton]

The passed committee changes "affirmative defense" to "IMMUNITY FROM CIVIL ACTION" Folks this is HUGE.

That is a huge change in meaning! For those who don't catch the subtlety, this changes it from "you can use it as a defense when you're sued", to "you can't be sued".

Here is the revised text of the bill in HTML format:

http://www.capitol.state.tx.us/tlodocs/ ... 00284H.htm

Oooh... I really don't like "provoked" as a choice of wording,

Provoke is already part of the use of force laws. Penal Code section 9.31 (b) states that

(b) The use of force against another is not justified:


(4) if the actor provoked the other's use or attempted use of
unlawful force,

It goes on to include justification if you abandon the encounter you provoked or clearly communicate your desire to do so, and the other then continues to use unlawful force against you.

I thought the same thing concerning provocation. What is being provoked? How far does that cover, did I provoke someone by not retreating from my car while they were breaking in?

No.

Did I provoke the attack by using firm language instead of telling them that I was very very sorry about irritating him and that I was leaving in an expedited manner with my tail between my legs?

No.

I had a discussion on this issue with a criminal attorney. As Tx said, it's already in the penal code, so we aren't dealing with a new concept that will be open to widespread interpretations. Provocation in this context will have to be far more concrete. It was also pointed out that the concept that "verbal provocation alone" will not justify the use of force or deadly force in self-defense has also existed in the Penal Code for years. (TPC §9.31(b)(1)) While that subsection deals with the actions of the intended victim, the concept that "words are not enough" is well excepted in the law. That said, I would not push the envelope by launching a tirade of racial slurs at your attacker in an attempt to deter the attack. With the right LEO, DA, Grand Jury and jury, bad facts could make bad law.

Chas.

[Charles L. Cotton]

The main thing that bothers me about the committee substitute is the addition of the words "and with force".

1) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

If a goblin enters an unlocked home or business, has he entered "with force"?

This wording just seems to open loopholes for DA's and civil lawyers.

Other than that, this is an excellent piece of legislation and everyone involved needs to be commended.

As to the "with force" issue, this was a concern I initially shared. This language was adopted because several co-sponsors became very uncomfortable with the DA's argument that merely requiring that an "unlawful" entry be made or attempted could result in unintended consequences. The example given was that of a panhandler or a beggar who opened your car door to ask for money being shot and the presumption being available. Another example, albeit an absurd one, was a shopper needing help in a mall parking lot and opening the door of someone's car to ask for help.

During the debate on SB378, one of the Senators stated that he too didn't like the "with force" requirement and he too gave the example of a burglar opening an unlocked door and coming in. Quite by accident, one of the ADA's gave testimony that was helpful. He testified that, for purposes of unlawful entry, burglary, etc., pushing a door open constitutes the use of force. When he said this, I looked around the room and all of the criminal attorneys (prosecutors and defense lawyers) were nodding their heads in agreement. Even Sen. Henajosa, a criminal defense attorney, agreed. This went a long way toward easing my concern about the "with force" requirement.

Chas.

[jrosto]

Thanks Charles.