Bill Text: TX HB274 | 2011-2012 | 82nd Legislature | Introduced
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Bill Title: Relating to the reform of certain remedies and procedures in civil actions and family law matters.
Spectrum: Partisan Bill (Republican 88-1)
Status: (Passed) 2011-08-17 - Reason for vote recorded in Journal [HB274 Detail]
Download: Texas-2011-HB274-Introduced.html
Bill Title: Relating to the reform of certain remedies and procedures in civil actions and family law matters.
Spectrum: Partisan Bill (Republican 88-1)
Status: (Passed) 2011-08-17 - Reason for vote recorded in Journal [HB274 Detail]
Download: Texas-2011-HB274-Introduced.html
82R13370 CAE-F | ||
By: Creighton | H.B. No. 274 |
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relating to attorney's fees, early dismissal, expedited trials, and | ||
the reform of certain remedies and procedures in civil actions. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 38, Civil Practice and Remedies Code, is | ||
amended by designating Sections 38.001 through 38.006 as Subchapter | ||
A, Chapter 38, Civil Practice and Remedies Code, and adding a | ||
heading to Subchapter A to read as follows: | ||
SUBCHAPTER A. RECOVERY OF ATTORNEY'S FEES BY PREVAILING PARTY | ||
SECTION 2. Sections 38.001, 38.002, and 38.006, Civil | ||
Practice and Remedies Code, are amended to read as follows: | ||
Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. The prevailing | ||
party with respect to a claim [ |
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attorney's fees from an individual, [ |
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legal entity [ |
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if the claim is for: | ||
(1) rendered services; | ||
(2) performed labor; | ||
(3) furnished material; | ||
(4) freight or express overcharges; | ||
(5) lost or damaged freight or express; | ||
(6) killed or injured stock; | ||
(7) a sworn account; or | ||
(8) an oral or written contract. | ||
Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES. | ||
Attorney's [ |
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subchapter if [ |
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(1) the person seeking to recover attorney's fees is | ||
[ |
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(2) the claimant presents [ |
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the opposing party or to a duly authorized agent of the opposing | ||
party; and | ||
(3) payment for the just amount owed is [ |
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[ |
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claim is presented. | ||
Sec. 38.006. EXCEPTIONS. This subchapter [ |
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not apply to a contract issued by an insurer that is subject to the | ||
provisions of: | ||
(1) Title 11, Insurance Code; | ||
(2) Chapter 541, Insurance Code; | ||
(3) the Unfair Claim Settlement Practices Act | ||
(Subchapter A, Chapter 542, Insurance Code); or | ||
(4) Subchapter B, Chapter 542, Insurance Code. | ||
SECTION 3. Chapter 38, Civil Practice and Remedies Code, is | ||
amended by adding Subchapter B to read as follows: | ||
SUBCHAPTER B. ELECTION REGARDING LITIGATION COSTS | ||
Sec. 38.011. DEFINITIONS. In this subchapter: | ||
(1) "Abusive civil action" means a civil action that a | ||
reasonable person would conclude is an abuse of the civil justice | ||
process. | ||
(2) "Claim" means a request for monetary damages filed | ||
in a civil action, other than a request for reimbursement of | ||
attorney's fees or other costs of litigation in a civil action, if | ||
the request is for: | ||
(A) damages for alleged personal injury, | ||
property damage, breach of contract, or death, regardless of the | ||
legal theories or statutes on the basis of which recovery is sought; | ||
or | ||
(B) damages other than for alleged personal | ||
injury, property damage, or death allegedly resulting from any | ||
tortious conduct, regardless of the legal theories or statutes on | ||
the basis of which recovery is sought. | ||
(3) "Claimant" means a party who has asserted a claim, | ||
including a plaintiff, counterclaimant, cross-claimant, | ||
third-party plaintiff, or intervenor. | ||
(4) "Defendant" means a party against whom a claim has | ||
been made, including a defendant, counterdefendant, | ||
cross-defendant, or third-party defendant. | ||
(5) "Financial interest" means a financial interest | ||
held by an attorney under an agreement between the attorney and a | ||
claimant or defendant in which the amount or the payment of the fee | ||
for the attorney's legal services is contingent wholly or partly on | ||
the outcome of the civil action. | ||
Sec. 38.012. APPLICABILITY. (a) This subchapter does not | ||
apply to: | ||
(1) a class action; | ||
(2) a shareholder's derivative action; | ||
(3) an action brought under the Family Code; | ||
(4) an action to collect workers' compensation | ||
benefits under Subtitle A, Title 5, Labor Code; or | ||
(5) an action filed in a justice of the peace court. | ||
(b) This subchapter does not apply to a civil action in | ||
which the amount in controversy, including all requests for | ||
damages, reimbursement of attorney's fees, and litigation costs, is | ||
less than $100,000 and the claimant has made an election to proceed | ||
under Chapter 29A. | ||
Sec. 38.013. ELECTION. (a) A defendant may elect to apply | ||
the provisions of this subchapter to any civil action in which a | ||
claimant has asserted a claim against the defendant. | ||
(b) An election under this section must identify each | ||
claimant against whom the election is made. An election may not be | ||
made before the 60th day after the date the defendant filed an | ||
answer to the claimant's civil action or within 60 days of the date | ||
of trial. The election must be: | ||
(1) in writing; | ||
(2) signed by the attorneys of record of the | ||
defendant; | ||
(3) filed with the papers as part of the record; and | ||
(4) served on all claimants against whom the election | ||
is made. | ||
(c) A deadline under this subchapter may be amended or | ||
modified by agreement of the parties or by order of the court in a | ||
discovery control plan as provided by Rule 190, Texas Rules of Civil | ||
Procedure. | ||
Sec. 38.014. REVOCATION OF ELECTION. (a) An election made | ||
under Section 38.013 may be revoked wholly or partly by agreement of | ||
the parties. | ||
(b) A revocation under this section must identify the | ||
claimants and defendants for whom the revocation is made. A | ||
revocation may be made at any time before an award is made under | ||
Section 38.016 based on the election. The revocation must be: | ||
(1) in writing; | ||
(2) signed by the attorneys of record of all parties to | ||
whom the revocation applies; and | ||
(3) filed as part of the record. | ||
Sec. 38.015. DISMISSAL OR NONSUIT OF ACTION. If a claimant | ||
against whom an election is made under Section 38.013 nonsuits or | ||
voluntarily dismisses with prejudice the civil action for which the | ||
election is made not later than the 15th day after the date the | ||
claimant was served with the election, the election does not apply | ||
to the nonsuited or dismissed civil action. | ||
Sec. 38.016. AWARD OF LITIGATION COSTS. (a) If an election | ||
is made under this subchapter, the prevailing party may recover the | ||
prevailing party's litigation costs. | ||
(b) The determination of which party is the prevailing party | ||
is a question of law for the court. | ||
(c) Litigation costs under this subchapter are costs | ||
directly related to the civil action between the claimant and the | ||
defendant. Litigation costs include: | ||
(1) reasonable and necessary attorney's fees; | ||
(2) reasonable and necessary travel expenses; | ||
(3) reasonable fees for not more than two testifying | ||
expert witnesses; and | ||
(4) court costs. | ||
(d) A fee agreement that results in a fee that is fixed or | ||
contingent on results obtained or uncertainty of collection before | ||
the legal services have been rendered may not be considered in the | ||
determination of the amount of reasonable and necessary attorney's | ||
fees. | ||
Sec. 38.017. LIABILITY OF ATTORNEY. (a) This section | ||
applies to a civil action if: | ||
(1) a party is entitled to recover litigation costs | ||
under Section 38.016; | ||
(2) the election under Section 38.013 states that the | ||
party making the election will seek litigation costs under this | ||
section; and | ||
(3) an attorney of record for the party against whom | ||
litigation costs are recoverable has a financial interest in the | ||
civil action. | ||
(b) If the trier of fact determines that a civil action is an | ||
abusive civil action, an attorney of record for the party against | ||
whom litigation costs are recoverable is liable to the prevailing | ||
party, jointly and severally, for the amount of the litigation | ||
costs awarded. | ||
(c) The determination of whether an attorney has a financial | ||
interest in a civil action is a question of law for the court. An | ||
attorney is not an attorney of record for the purposes of this | ||
section if the attorney withdraws as attorney of record and | ||
relinquishes any financial interest in the civil action more than | ||
60 days before trial. | ||
(d) The determination of whether a civil action is an | ||
abusive civil action is a question of fact. In a case in which the | ||
determination of whether a civil action is an abusive civil action | ||
is submitted to a jury, the charge to the jury must ask whether the | ||
civil action prosecuted by the claimant was an abusive civil | ||
action. The following instruction must be included in the | ||
charge: "You are instructed that an abusive civil action is a | ||
civil action that a reasonable person would conclude is an abuse of | ||
the civil justice process." | ||
Sec. 38.018. APPLICABILITY OF OTHER LAW. (a) Except as | ||
provided by Subsection (b), if an election is made under this | ||
subchapter, this subchapter controls over any other law to the | ||
extent the other law requires, authorizes, prohibits, or otherwise | ||
governs the award of attorney's fees or other costs of litigation in | ||
connection with the civil action. | ||
(b) This subchapter does not govern the recovery of | ||
litigation costs incurred in connection with a claim asserted | ||
under: | ||
(1) Subchapter E, Chapter 17, Business & Commerce | ||
Code; or | ||
(2) Chapter 541, Insurance Code. | ||
SECTION 4. Section 51.014, Civil Practice and Remedies | ||
Code, is amended by amending Subsections (d) and (e) and adding | ||
Subsections (f) and (g) to read as follows: | ||
(d) A person may appeal from an interlocutory order of a | ||
district court, county court at law, or county court that is [ |
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not otherwise appealable [ |
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(1) [ |
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involves a controlling question of law as to which there is a | ||
substantial ground for difference of opinion; | ||
(2) an immediate appeal from the order may materially | ||
advance the ultimate termination of the litigation; and | ||
(3) the court of appeals accepts the interlocutory | ||
appeal as provided by Subsection (f) [ |
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(e) An appeal under Subsection (d) does not stay proceedings | ||
in the trial court unless the parties agree to a stay or [ |
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trial court or appellate court[ |
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appeal. | ||
(f) An appellate court may, in its discretion, accept an | ||
appeal permitted by Subsection (d) if the appealing party, not | ||
later than the 15th day after the date the trial court signs the | ||
order to be appealed, files in the court of appeals an application | ||
for interlocutory appeal. The application must state the reasons | ||
why an appeal is warranted under Subsection (d). If the court of | ||
appeals accepts the appeal, the appeal is governed by the | ||
procedures set forth in the Texas Rules of Appellate Procedure for | ||
pursuing an accelerated appeal. The date the court of appeals | ||
enters the order accepting the appeal starts the time for filing the | ||
notice of appeal. | ||
(g) If a party pursues an appeal under this section, the | ||
trial court must state whether the trial court believes that an | ||
appeal is warranted under Subsection (d). | ||
SECTION 5. Subtitle B, Title 2, Civil Practice and Remedies | ||
Code, is amended by adding Chapters 29 and 29A to read as follows: | ||
CHAPTER 29. EARLY DISMISSAL OF ACTIONS | ||
Sec. 29.001. POLICY. It is the policy of this state that | ||
all civil actions be disposed of fairly, promptly, and with the | ||
least possible expense to the litigants and to the state. | ||
Sec. 29.002. ADOPTION OF RULES BY SUPREME COURT. (a) The | ||
supreme court shall adopt rules to provide for the fair and early | ||
dismissal of non-meritorious cases. | ||
(b) The supreme court shall model the rules after Rules 9 | ||
and 12, Federal Rules of Civil Procedure, to the extent possible. | ||
(c) The supreme court shall adopt rules under this chapter | ||
not later than December 31, 2011. This subsection expires | ||
September 1, 2012. | ||
CHAPTER 29A. EXPEDITED CIVIL ACTIONS | ||
Sec. 29A.001. DEFINITIONS. In this chapter: | ||
(1) "Claim" means a request, including a counterclaim, | ||
cross-claim, or third-party claim, to recover monetary damages. | ||
(2) "Claimant" means a party, including a plaintiff, | ||
counterclaimant, cross-claimant, third-party plaintiff, or | ||
intervenor, seeking recovery of damages and, in an action for | ||
recovery of damages for injury to another person, damage to | ||
property of another person, death of another person, or harm to | ||
another person, includes both the other person and the party | ||
seeking recovery of damages. | ||
(3) "Damages" means all claims under common law or | ||
statutory and equitable causes of action for actual damages, | ||
including economic and noneconomic damages, and additional | ||
damages, including knowing damages, punitive damages, treble | ||
damages, penalties, prejudgment interest, postjudgment interest, | ||
attorney's fees, litigation costs, costs of court, and all other | ||
damages of any kind. | ||
(4) "Defendant" means a party, including a | ||
counterdefendant, cross-defendant, or third-party defendant, from | ||
whom a claimant seeks damages. | ||
Sec. 29A.002. APPLICABILITY. (a) This chapter applies to | ||
any party who is a claimant or defendant, including: | ||
(1) a county; | ||
(2) a municipality; | ||
(3) a public school district; | ||
(4) a public junior college district; | ||
(5) a charitable organization; | ||
(6) a nonprofit organization; | ||
(7) a hospital district; | ||
(8) a hospital authority; | ||
(9) any other political subdivision of the state; and | ||
(10) the State of Texas. | ||
(b) This chapter does not apply to any civil action | ||
primarily governed by the Family Code. | ||
(c) In an action to which this chapter applies, the | ||
provisions of this chapter prevail over all other law to the extent | ||
of any conflict. | ||
(d) This chapter does not waive sovereign immunity or | ||
governmental immunity of any claimant or defendant. | ||
Sec. 29A.003. CLAIMANT TO MAKE ELECTION. (a) This chapter | ||
applies only in a civil action in which: | ||
(1) the total amount of damages the claimant seeks to | ||
recover for all claims is not less than $10,000 and not more than | ||
$100,000; and | ||
(2) the claimant files and serves a written election | ||
under this chapter. | ||
(b) An election must be made at the time the electing | ||
claimant first files a claim in the action. | ||
(c) Notwithstanding Subsection (b), and on the agreement of | ||
all parties, a claimant may make an election not later than the 60th | ||
day after the date the last defendant has filed an answer. | ||
(d) An election made by a claimant under this section is | ||
binding on all parties to the expedited civil action unless a | ||
defendant files a claim more than 60 days before trial and in that | ||
claim makes a good faith claim that the recovery of monetary damages | ||
might be in excess of $100,000. | ||
Sec. 29A.004. RULES. (a) The supreme court shall adopt | ||
rules to implement this chapter. The rules shall promote the | ||
prompt, efficient, and cost-effective resolution of an expedited | ||
civil action, including the discovery between the parties. | ||
(b) The supreme court shall adopt rules as required by this | ||
section not later than January 1, 2012. This subsection expires | ||
September 1, 2012. | ||
Sec. 29A.005. CONFLICT OF LAWS. In the event of a conflict | ||
between this chapter and Chapter 74, Chapter 74 prevails. | ||
SECTION 6. Section 22.225(d), Government Code, is amended | ||
to read as follows: | ||
(d) A petition for review is allowed to the supreme court | ||
for an appeal from an interlocutory order described by Section | ||
51.014(a)(3), (6), or (11) or (d), Civil Practice and Remedies | ||
Code. | ||
SECTION 7. Subchapter C, Chapter 311, Government Code, is | ||
amended by adding Section 311.035 to read as follows: | ||
Sec. 311.035. NO IMPLIED CAUSE OF ACTION. A statute may not | ||
be construed to create a cause of action unless a cause of action is | ||
created by clear and unambiguous language in the statute. | ||
SECTION 8. Subchapter B, Chapter 312, Government Code, is | ||
amended by adding Section 312.017 to read as follows: | ||
Sec. 312.017. NO IMPLIED CAUSE OF ACTION. A statute may not | ||
be construed to create a cause of action unless a cause of action is | ||
created by clear and unambiguous language in the statute. | ||
SECTION 9. This Act applies only to a civil action filed on | ||
or after the effective date of this Act. An action filed before the | ||
effective date of this Act, including an action filed before that | ||
date on which a party is joined or designated after that date, is | ||
governed by the law in effect immediately before the effective date | ||
of this Act, and that law is continued in effect for that purpose. | ||
SECTION 10. 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 of this Act are severable. | ||
SECTION 11. This Act takes effect September 1, 2011. |