89S20001 MPF-D     By: Middleton, et al. S.B. No. 8       A BILL TO BE ENTITLED   AN ACT   relating to the designation and use of certain spaces and   facilities according to sex; authorizing a civil penalty and a   private civil right of action.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act may be cited as the Texas Women's   Privacy Act.          SECTION 2.  Subtitle Z, Title 10, Government Code, is   amended by adding Chapter 3002 to read as follows:   CHAPTER 3002.  REGULATION OF INDIVIDUALS IN CERTAIN SPACES AND   FACILITIES ACCORDING TO SEX   SUBCHAPTER A.  GENERAL PROVISIONS          Sec. 3002.001.  DEFINITIONS. In this chapter:                (1)  "Correctional facility" has the meaning assigned   by Section 1.07, Penal Code.                (2)  "Family violence shelter" means a family violence   nonresidential center or a family violence shelter center, as those   terms are defined by Section 51.002, Human Resources Code, that has   contracted with the Health and Human Services Commission under   Section 51.003, Human Resources Code.                (3)  "Female" means an individual who naturally has or   will have, or had or would have but for a congenital anomaly or an   intentional or unintentional disruption, a reproductive system   designed to produce, transport, and provide eggs for fertilization.                (4)  "Institution of higher education" has the meaning   assigned by Section 61.003, Education Code.                (5)  "Male" means an individual who naturally has or   will have, or had or would have but for a congenital anomaly or an   intentional or unintentional disruption, a reproductive system   designed to produce, transport, and utilize sperm for   fertilization.                (6)  "Multiple-occupancy private space" means a   facility designed or designated for simultaneous use by more than   one individual and in which an individual may be in a state of   undress in the presence of another individual, regardless of   whether the facility provides curtains or partial walls for   privacy.  The term includes a restroom, locker room, changing room,   or shower room.                (7)  "Political subdivision" means a governmental   entity of this state, including a county, municipality, special   purpose district or authority, school district, open-enrollment   charter school, or junior college district.  The term does not   include a state agency.                (8)  "Sex" means an individual's biological sex, either   male or female.                (9)  "Single-occupancy private space" means a facility   designed or designated for use by only one individual at a time and   in which the individual may be in a state of undress. The term   includes:                      (A)  a single toilet restroom with a locking door   that is designed or designated as unisex or for use based on sex;   and                      (B)  sleeping quarters designed or designated for   use by one individual.                (10)  "State agency" means a department, commission,   board, office, council, authority, or other agency in the   executive, legislative, or judicial branch of state government that   is created by the constitution or a statute of this state, including   an institution of higher education.          Sec. 3002.002.  CONSTRUCTION OF CHAPTER. This chapter may   not be construed to prevent a litigant from asserting the   invalidity or unconstitutionality of a provision or application of   this chapter as a defense to liability in an action, claim, or   counterclaim brought under this chapter.   SUBCHAPTER B.  DESIGNATION AND USE OF CERTAIN SPACES AND FACILITIES   ACCORDING TO SEX          Sec. 3002.051.  DESIGNATION OF MULTIPLE-OCCUPANCY PRIVATE   SPACES.  (a)  A political subdivision or state agency shall   designate each multiple-occupancy private space in a building the   political subdivision or state agency owns, operates, or controls   for use only by individuals of one sex.          (b)  A political subdivision or state agency shall take every   reasonable step to ensure an individual whose sex is opposite to the   sex designated for a multiple-occupancy private space under   Subsection (a) does not enter the private space.          Sec. 3002.052.  ACCOMMODATIONS. (a)  Section 3002.051 does   not prohibit a political subdivision or state agency from:                (1)  adopting a policy necessary to accommodate an   individual with a disability, a young child, or an elderly   individual who requires assistance when using a multiple-occupancy   private space;                (2)  establishing a single-occupancy private space,   family restroom, or changing room; or                (3)  changing the designation of a multiple-occupancy   private space from the use designated under Section 3002.051 to   exclusive use by individuals of the sex opposite to the previously   designated sex.          (b)  A political subdivision or state agency is prohibited   from providing an accommodation under Subsection (a) that allows an   individual to use a multiple-occupancy private space designated for   the exclusive use of individuals of the sex opposite to the   individual's sex.          Sec. 3002.053.  EXCEPTIONS. A designation of a   multiple-occupancy private space under Section 3002.051 does not   apply to:                (1)  an individual entering a multiple-occupancy   private space designated for the exclusive use of individuals of   the sex opposite to the individual's sex:                      (A)  for a custodial purpose;                      (B)  for a maintenance or inspection purpose;                      (C)  to render medical or other emergency   assistance;                      (D)  to accompany and provide assistance to an   individual who needs assistance in using the facility;                      (E)  for a law enforcement purpose; or                      (F)  to render assistance necessary in preventing   a serious threat to proper order or safety; or                (2)  a child who is:                      (A)  nine years of age or younger entering a   multiple-occupancy private space designated for the exclusive use   of individuals of the sex opposite to the child's sex; and                      (B)  accompanied by an individual caring for the   child.          Sec. 3002.054.  HOUSING OF INMATES ACCORDING TO SEX. (a)     The Texas Department of Criminal Justice shall ensure inmates are   housed in a correctional facility, including a dormitory or   cellblock of a correctional facility, according to the inmate's   sex.          (b)  The Texas Board of Criminal Justice shall adopt rules to   implement this section, including rules ensuring this section is   implemented in compliance with state and federal law.          Sec. 3002.055.  PROHIBITED SERVICES AT CERTAIN FAMILY   VIOLENCE SHELTERS. A family violence shelter designed specifically   to provide services to female victims of family violence may only   provide services to:                (1)  an individual whose sex is female; and                (2)  an individual who is 17 years of age or younger and   is the child of an individual described by Subdivision (1) who is   receiving services at the shelter.   SUBCHAPTER C.  ENFORCEMENT          Sec. 3002.101.  CIVIL PENALTY. (a)  A political subdivision   or state agency that violates this chapter is liable for a civil   penalty of:                (1)  $5,000 for the first violation; and                (2)  $25,000 for the second or a subsequent violation.          (b)  Each day of a continuing violation of this chapter   constitutes a separate violation.          Sec. 3002.102.  COMPLAINT; NOTICE.  (a)  A resident of this   state may file a complaint with the attorney general against a   political subdivision or state agency for a violation of this   chapter only if:                (1)  the resident provides the political subdivision or   state agency a written notice describing the violation; and                (2)  the political subdivision or state agency does not   cure the violation before the end of the third business day after   the date the written notice is received.          (b)  A complaint filed under this section must include:                (1)  a copy of the written notice; and                (2)  the resident's sworn statement or affidavit   describing the violation and indicating the resident provided the   notice required by this section.          Sec. 3002.103.  DUTIES OF ATTORNEY GENERAL: INVESTIGATION   AND NOTICE.  (a)  Before bringing an action against a political   subdivision or state agency for a violation of this chapter, the   attorney general shall investigate a complaint filed under Section   3002.102 to determine whether legal action is warranted.          (b)  The political subdivision or state agency subject to the   complaint shall provide to the attorney general any information the   attorney general requests in connection with the complaint,   including:                (1)  supporting documents related to the complaint; and                (2)  a statement on whether the political subdivision   or state agency has complied or intends to comply with this chapter.          (c)  If the attorney general determines legal action is   warranted, the attorney general shall provide to the appropriate   officer of the political subdivision or state agency charged with   the violation a written notice:                (1)  describing the violation and location of the   multiple-occupancy private space found to be in violation;                (2)  stating the amount of the proposed penalty for the   violation; and                (3)  requiring the political subdivision or state   agency to cure the violation on or before the 15th day after the   date the notice is received to avoid the penalty, unless a court   previously found the political subdivision or state agency liable   for a violation of this chapter.          Sec. 3002.104.  COLLECTION OF CIVIL PENALTY; MANDAMUS.  (a)     If, after receipt of notice under Section 3002.103(c), the   political subdivision or state agency has not cured the violation   on or before the 15th day after the date the notice is received or   was previously found liable by a court for a violation of this   chapter, the attorney general may bring an action to collect the   civil penalty authorized under Section 3002.101.          (b)  In addition to bringing an action under Subsection (a),   the attorney general may also file a petition for a writ of mandamus   or apply for other appropriate equitable relief.          (c)  An action under this section may be brought or filed in a   district court in the county in which the principal office of the   political subdivision or state agency is located.          (d)  The attorney general may recover reasonable expenses   incurred in obtaining relief under this section, including court   costs, reasonable attorney's fees, investigative costs, witness   fees, and deposition costs.          (e)  A civil penalty collected by the attorney general under   this section shall be deposited to the credit of the compensation to   victims of crime fund established under Subchapter J, Chapter 56B,   Code of Criminal Procedure.          (f)  Notwithstanding any other law, the Fifteenth Court of   Appeals has exclusive jurisdiction over any appeal arising out of a   civil action brought under this section.          Sec. 3002.105.  PRIVATE CIVIL CAUSE OF ACTION. (a)  A person   affected by a political subdivision's or state agency's violation   of this chapter may bring a civil action and is entitled to obtain:                (1)  declaratory relief;                (2)  injunctive relief; and                (3)  court costs, including reasonable attorney's and   witness fees.          (b)  Notwithstanding any other law, the Fifteenth Court of   Appeals has exclusive jurisdiction over any appeal arising out of a   civil action brought under this section.          Sec. 3002.106.  SOVEREIGN, GOVERNMENTAL, AND OFFICIAL   IMMUNITY.  (a)  Notwithstanding any other law except as provided by   Subsection (b), this state has sovereign immunity, a political   subdivision has governmental immunity, and an officer, employee, or   agent of this state or a political subdivision has official   immunity in an action, claim, counterclaim, or any type of legal or   equitable action that:                (1)  challenges the validity of any provision or   application of this chapter, on constitutional grounds or   otherwise; or                (2)  seeks to prevent or enjoin this state, a political   subdivision, or an officer, employee, or agent of this state or a   political subdivision from:                      (A)  enforcing any provision or application of   this chapter; or                      (B)  hearing, adjudicating, or docketing an   action brought under Section 3002.104 or 3002.105 for a violation   of this chapter.          (b)  Subsection (a) does not apply if:                (1)  immunity has been abrogated or preempted by   federal law in a manner consistent with the United States   Constitution; or                (2)  sovereign immunity of this state and governmental   immunity of a political subdivision to suit and from liability have   been waived in accordance with this chapter.          Sec. 3002.107.  APPLICABILITY OF IMMUNITY. Notwithstanding   any other law, the immunities described by Section 3002.106 apply   in every state and federal court and in every type of adjudicative   proceeding.          Sec. 3002.108.  WAIVER OF IMMUNITY. (a)  Notwithstanding   any other law, a provision of state law may not be construed to   waive or abrogate an immunity described by Section 3002.106 unless   the provision expressly waives or abrogates the immunity with   specific reference to this section.          (b)  Notwithstanding any other law, an attorney representing   this state, a political subdivision, or an officer, employee, or   agent of this state or a political subdivision may not waive an   immunity described by Section 3002.106 or take an action that would   result in a waiver of that immunity.  A purported waiver or action   prohibited under this subsection is considered void and an ultra   vires act.          Sec. 3002.109.  JURISDICTION. (a)  Notwithstanding any   other law, including Chapter 37, Civil Practice and Remedies Code,   and Sections 22.002, 22.221, 24.007, 24.008, 24.009, 24.010, and   24.011 of this code, a court of this state does not have   jurisdiction to consider and may not award declaratory or   injunctive relief, or any type of writ, including a writ of   prohibition, that would:                (1)  pronounce any provision or application of this   chapter invalid or unconstitutional; or                (2)  restrain this state, a political subdivision, an   officer, employee, or agent of this state or a political   subdivision, or any other person from:                      (A)  enforcing any provision or application of   this chapter; or                      (B)  hearing, adjudicating, docketing, or filing   a civil action brought under this chapter.          (b)  Notwithstanding any other law, including Chapter 26,   Civil Practice and Remedies Code, and Rule 42, Texas Rules of Civil   Procedure, a court may not certify a claimant class or a defendant   class in a civil action that seeks relief described by this section.          SECTION 3.  Chapter 30, Civil Practice and Remedies Code, is   amended by adding Section 30.024 to read as follows:          Sec. 30.024.  FEE SHIFTING. (a)  Notwithstanding any other   law, a person, including an entity, attorney, or law firm, who seeks   declaratory or injunctive relief to prevent this state, a political   subdivision of this state, a governmental entity, a public   official, or any other person in this state from bringing an action   to enforce a statute, ordinance, rule, regulation, or other law   that regulates access to certain spaces based on an individual's   sex in any state or federal court, or who represents a litigant   seeking such relief in any state or federal court, is jointly and   severally liable to pay the costs and reasonable attorney's fees of   the prevailing party, including the costs and reasonable attorney's   fees the prevailing party incurs in the party's efforts to recover   costs and fees.          (b)  For purposes of this section, a party is considered a   prevailing party if a state or federal court:                (1)  dismisses any claim or cause of action brought   against the party that seeks the declaratory or injunctive relief   described by Subsection (a), regardless of the reason for the   dismissal; or                (2)  enters judgment in the party's favor on any such   claim or cause of action.          (c)  A prevailing party may recover costs and reasonable   attorney's fees under this section only to the extent those costs   and attorney's fees were incurred while defending claims or causes   of action on which the party prevailed.          SECTION 4.  Chapter 3002, Government Code, as added by this   Act, applies only to a cause of action that accrues on or after the   effective date of this Act.          SECTION 5.  If any provision of this Act or its application   to any person or circumstance is held invalid, the invalidity does   not affect other provisions or applications of this Act that can be   given effect without the invalid provision or application, and to   this end the provisions and applications of this Act are declared to   be severable.          SECTION 6.  This Act takes effect on the 91st day after the   last day of the legislative session.