Dear Friends and Colleagues,

Last week, Senate and House committees took action on several bills that could significantly affect the civil justice system, including legislation affecting the structure of the Texas intermediate appellate courts and the manner in which medical or health care expenses can be recovered in civil actions. Committees are scheduled to consider several more next week and the full Senate could take action on some of the bills voted favorably out of committee last week.

The Week in Review

On April 1, by an 18-13 vote, the full Senate passed SB 12, which is intended to address complaint procedures and disclosure requirements for social media platforms and the censorship of interactive computer service users. Also, the following bills were voted out of committee last week:

SB 6 – Liability for Certain Claims Arising During a Pandemic or Other Disaster or Emergency
SB 11 – Composition of the Court of Appeals Districts
SB 1529 – Creation of the Texas Court of Appeals

Various committees conducted hearings on the following bills:

SB 11 – Composition of the Court of Appeals Districts
SB 207 – Recovery of Medical or Health Care Expenses in Civil Actions
SB 1529 – Creation of the Texas Court of Appeals
HB 2064 – Amount of Hospital or Physician Liens on Certain Causes of Action or Claims
HB 3377 – Attorney’s Fees in Certain Civil Cases
HB 3940 – Discrimination Against or Burdening Certain Constitutional Rights of a Law License Holder or Applicant

The Week Ahead

The following bills are scheduled for hearing this week:

SB 232 – Service of Expert Reports for Health Care Liability
HB 1617 – Recovery of Medical or Healthcare Expenses in Civil Actions
HB 1875 – Creation of a Business Court and a Court of Business Appeals
HB 2086 – Appeals from an Interlocutory Order Denying a Motion for Summary Judgment by Certain Contractors
HB 3150 – Recovery of Attorney's Fees in Certain Civil Actions
HB 3984 – Service of Expert Reports for Health Care Liability

Additional bills may be added before the meetings occur. Links to notices and live broadcasts for each committee meeting are located in the bill summaries below.

Monitored Bills

All of the monitored bills have now been referred to a committee. Information added or updated since the March 28^th update is designated with a "++".

Attorneys/Practice of Law

SB 247 – Discrimination Against or Burdening Certain Constitutional Rights of an Applicant or Holder of a Law License (Companion: HB 3940)

• Summary: SB 247, filed by Sen. Charles Perry (R – Lubbock), would amend the State Bar Act to prohibit rules or policies that: (1) limit an applicant’s ability to obtain a license to practice law in Texas, or a bar member’s ability to maintain or renew the license, based on a sincerely held religious belief; or (2) burden an applicant’s or bar member’s free exercise of religion, freedom of speech regarding a sincerely held religious belief; membership in any religious organization; or freedom of association. However, such a prohibition would not apply to a state bar rule or policy adopted or penalty imposed that results in a limitation or burden if the rule, policy, or penalty is: (1) essential to enforcing a compelling governmental purpose; and (2) narrowly tailored to accomplish that purpose.

• SB 247 also provides that, in an administrative hearing or a judicial proceeding under the Texas Uniform Declaratory Judgments Act, a person may assert as a defense that a prohibited bar rule or policy adopted or penalty imposed violates the State Bar Act. However, the person may not raise the violation as a defense to an allegation of sexual misconduct or prosecution of an offense.

Rep. Briscoe Cain (R – Deer Park) filed a companion bill in the House (HB 3940).

• Effective date: If SB 247 passes by a vote of two-thirds of all members elected to each chamber, the changes in the law would be effective immediately. Otherwise, the change in the law under SB 247 would become effective on September 1, 2021.

• Bill Analysis: Senate Research Center

• Status of SB 247: On March 8, State Affairs conducted a public hearing on SB 247: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 01:18:15 mark. Those who registered a position or testified in favor of, on, or against SB 247 are listed here: Witness List. On March 15, by a 7-2 vote, the bill was voted favorably out of committee without amendment.

• Status of HB 3940: On March 31, Judiciary & Civil Jurisprudence conducted a public hearing on HB 3940: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 2:25:55 mark. Several witnesses registered a position or testified in favor of, on, or against HB 3940, but the witness list has yet to be posted. ++

SB 755 – Protection of a Client’s Money and Property by an Attorney

• Summary: SB 755, filed by Sen. Boris Miles (D – Houston), would amend the State Bar Act to require an attorney who received money or other property paid to settle a claim in which the client has an interest to immediately notify the client. Further, the attorney is permitted to pay a third person for a claim owed by the client using the money or property obtained for settlement, but only with the client’s consent (unless another law requires the attorney to pay the claim to the person).

• An attorney who violates SB 755 may be suspended from the practice of law for up to six months by a district court of the county in which the attorney resides or in which the act complained of occurred. Further, an attorney who violates SB 755 is subject to civil liability for the violation. A person may bring a civil action against the attorney to recover: (1) damages in an amount equal to the amount of money or value of the property received by the attorney; (2) interest at a rate not to exceed the judgment rate authorized in the most recent Texas Credit Letter published by the Office of Consumer Credit Commissioner; and (3) reasonable attorney’s fees.

• Effective date: September 1, 2021.

• Status: Referred to Jurisprudence on March 11.

HB 2393 – State Bar of Texas Elections (Companion: SB 891)

• Summary: HB 2393, filed by Yvonne Davis (D – Dallas), would amend the State Bar Act to reduce the number of Bar members required to support a petition to run for president-elect of the State Bar from five percent (5%) of total Bar membership to 500. HB 2393 would also allow for electronic signatures on petitions.

Sen. Sarah Eckhardt (D – Austin) filed a companion bill in the Senate (SB 891).

• Effective date: If HB 2393 passes by a vote of two-thirds of all members elected to each chamber, the change in the law would be effective immediately. Otherwise, the change in the law under HB 2393 would become effective on September 1, 2021.

• Status of HB 2393: Referred to Judiciary & Civil Jurisprudence on March 15.

• Status of SB 891: Referred to State Affairs on March 11.

HB 2714 – Implicit Bias Training for Judges, Judicial Officers, Court Personnel, and Attorneys

• Summary: HB 2714, filed by Rep. Ana Hernandez (D – Houston), would require judges, certain court personnel, and attorneys to receive training or continuing education on implicit bias regarding racial, ethnic, gender, religious, age, mental disability, and physical disability and sexual harassment issues, and on bias-reducing strategies to address the manner in which unintended biases and sexual harassment issues undermine confidence in the legal system. There would be different requirements for attorneys and the judiciary and other court-related personnel under the proposed law. Attorneys would be required to complete one hour of continuing education for each compliance period. Those employed within the judicial branch would be required to complete two hours of training every two years.

• Effective date: September 1, 2021. Rules necessary to provide the training required under HB 2714 would have to be adopted by January 1, 2022.

• Status: Referred to Judiciary & Civil Jurisprudence on March 17.

HB 4543 – Firm Names Used by Licensed Attorneys

• Summary: HB 4535, filed by Rep. Briscoe Cain (R – Deer Park), would amend the State Bar Act and prohibit an attorney from using a firm name, letterhead, or other professional designation that is false, misleading, or deceptive. However, an attorney would be permitted to practice under a trade name that: (1) does not imply a connection with a government agency or with a public or charitable legal services organization; (2) does not imply the firm is something other than a private law firm; and (3) is not false, misleading, or deceptive. The Supreme Court would be required to modify its rules, as necessary, to comply with the new law as soon as practicable at the effective date, but may not adopt rules that conflict with any provision the new law.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 29. ++

Attorney’s Fees

HB 1162 – Recovery of Attorney's Fees in Certain Civil Cases

• Summary: HB 1162, filed by Rep. Andrew Murr (R – Kerrville), would amend section 38.001 of the Civil Practice & Remedies Code (CPRC) to expressly state that prevailing parties are entitled to attorney’s fees for the claims listed in Chapter 38.

• Effective date: September 1, 2021. The changes in the law addressed in HB 1162 would apply only to an award of attorney’s fees in actions commenced on or after the effective date.

• Status: Referred to Judiciary & Civil Jurisprudence on March 4.

HB 1358 – Recovery of Attorney's Fees in Certain Civil Cases

• Summary: HB 1358, filed by Rep. Cody Vasut (R – Angleton), would amend section 38.001 of the CPRC to provide that a person may recover reasonable attorney’s fees “from an individual, an organization, the state, or an agency or institution of the state..”. HB 1358 further provides that the term “organization” has the meaning assigned by section 1.002 of the Business Organizations Code, which defines “organization” as “a corporation, limited or general partnership, limited liability company, business trust, real estate investment trust, joint venture, joint stock company, cooperative, association, bank, insurance company, credit union, savings and loan association, or other organization, regardless of whether the organization is for-profit, nonprofit, domestic, or foreign. [Note: Since 2014, Texas courts of appeals have consistently held that a trial court cannot order limited partnerships, limited liability companies, or limited liability partnerships to pay attorney’s fees because section 38.001 of the CPRC does not permit such a recovery. See, e.g., CBIF Limited Partnership, et al. v. TGI Friday’s, Inc., et al., No. 05-15-00157-CV, 2017 WL 1455407 (Tex. App.—Dallas April 21, 2017, pet. denied) (mem. op.); Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438 (Tex. App.—Houston [14^th Dist.] 2016, pet. denied); Fleming & Associates, LLP v. Barton, 425 S.W.3d 560 (Tex. App.—Houston [14^th Dist.] 2014, pet. denied). In response to these decisions, legislators filed bills in 2015, 2017, and 2019 to expand the scope of the statute to include all business organizations. However, the bills failed to pass.]

• Rep. Jessica Gonzalez (D – Dallas) has filed an identical bill (HB 2020). HB 2020 was referred to Judiciary & Civil Jurisprudence on March 15.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 5.

HB 1578 – Recovery of Attorney's Fees in Certain Civil Cases

• Summary: HB 1578, filed by Rep. Brooks Landgraf (R – Odessa), would amend section 38.001 of the CPRC to include any type of organization as defined under the Business Organizations Code, as well as the state or an agency or institution of the state, among the entities from whom a person may recover reasonable attorney’s fees. ++

• Effective date: September 1, 2021.

• Bill Analysis ++

• Status: On March 17, Judiciary & Civil Jurisprudence conducted a public hearing: Notice. Those who are interested can watch the proceedings here. Testimony about the bill begins around the 01:08:55 mark. No one registered a position or testified in favor of, on, or against HB 1578. AOn March 24, the bill was unanimously voted out of committee, as amended.

HB 2917 – Recovery of Attorney's Fees in Certain Civil Cases

• Summary: HB 2917, filed by Rep. Mike Schofield (R – Katy), would amend section 38.001 of the CPRC to provide that a person may recover reasonable attorney’s fees “from an individual or organization”. HB 2917 further provides that the term “organization” would have the meaning assigned by section 1.002 of the Business Organizations Code.

• Effective date: September 1, 2021. The changes in the law addressed in HB 2917 would apply only to an award of attorney’s fees in an action commenced on or after the effective date.

• Status: Referred to Judiciary & Civil Jurisprudence on March 18.

HB 3150 - Recovery of Attorney's Fees in Certain Civil Actions

• Summary: HB 3150, filed by Rep. Morgan Meyer (R – Dallas), would amend Chapter 38 of the CPRC to provide that a prevailing party would be permitted to recover all reasonable and necessary attorney’s fees on claims listed in the statute. HB 3150 also provides that the prevailing party would not be required to bring a claim in the action to recover its attorney’s fees.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 19. The committee has scheduled a public hearing on the bill for April 6 at 8:00 a.m.: Notice. Those who are interested can watch the proceedings here: House Live Video. ++

HB 3349 – Recovery of Attorney’s Fees in Certain Civil Actions

• Summary: HB 3349, filed by Rep. Jon Rosenthal (D – Houston), would amend section 38.001 of the CPRC to add “other legal entity” to the statute and permit recovery of attorney’s fees against such an entity provided that the entity is not the state, an agency or institution of the state, or a political subdivision of the state.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 22.

HB 3695 – Recovery of Attorney's Fees

• Summary: HB 3695, filed by Rep. Julie Johnson (D – Dallas), would amend section 38.001 of the CPRC to add “limited liability company, limited partnership, or any other type of corporate entity” and permit the recovery of attorney’s fees against such entities.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 22.

SB 808 – Attorney’s Fees in Certain Civil Cases (Companion: HB 3377)

• Summary: SB 808, filed by Sen. Bryan Hughes (R – Mineola), would amend Chapter 38 of the CPRC to permit the recovery of attorney’s fees from “another person”. The original version of SB 808 would have expressly permitted either the claimant or the defendant to recover reasonable attorney’s fees if the claimant or defendant prevails in an action for an oral or written contract. However, this provision was removed from the version voted out of committee.

The companion bill in the House (HB 3377) was filed by Rep. Matt Krause (R – Fort Worth).

• Effective date: September 1, 2021. The changes in the law addressed in SB 808 would apply only to an award of attorney’s fees in an action commenced on or after the effective date.

• Bill Analysis for SB 808: Senate Research Center

• Status of SB 808: On March 15, State Affairs conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 33:20 mark. Those who registered a position or testified in favor of, on, or against SB 808 are listed here . The bill, as amended, was voted out of committee (7-0-2) on March 22.

• Status of HB 3377: On March 31, Judiciary & Civil Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 58:30 mark. Several witnesses registered a position or testified in favor of, on, or against HB 3377, but the witness list has yet to be posted. ++

Civil Liability/Causes of Action

HB 3 – State and Local Government Responses to a Pandemic Disaster

• Summary: HB 3, filed by Rep. Dustin Burrows (R – Lubbock), would address, among other things, how the state responds to pandemic disasters. It would affirm the governor’s ability to suspend state laws and allow for the preemption of local orders issued by county judges or mayors if they’re inconsistent with state orders.

• HB 3 would also provide liability protections for businesses operating during a pandemic so long as the business “knew of the risk of exposure or potential exposure…made a reasonable effort to comply with applicable federal, state, and local laws, rules, ordinances, declarations, and proclamations related to the pandemic disaster…and [if] the act or omission giving rise to the exposure or potential exposure was not wilful, reckless or grossly negligent.”Liability protection would also extend to an officer or employee of a state or local agency, or a volunteer acting at the direction of an officer or employee of a state or local agency, by giving them the same liability protection afforded to a member of the Texas military order into active service (section 437.222 of the Texas Government Code) if the person is performing an activity related to sheltering or housing individuals in connection with the evacuation of an area stricken or threatened by a pandemic disaster.

• HB 3 would also require that actions taken during a pandemic disaster satisfy the religious freedom protections under state and federal law. Further, while the governor could suspend the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles during the pandemic disaster, the governor could not suspend or limit the sale or transportation of firearms and ammunition.

• HB 3 would also require local jurisdictions to receive approval from the secretary of state before altering voting procedures during a pandemic.

• Effective date: If HB 3 passes by a vote of two-thirds of all members elected to each chamber, the change in the law would be effective immediately. Otherwise, the change in the law under HB 3 would become effective on September 1, 2021. Further, any changes in the law would apply only to a cause of action that accrued on or after March 13, 2020.

• Status: On March 11, State Affairs conducted a public hearing on HB 3: Notice. Those who are interested can watch the proceedings here: House Archived Video. Testimony on HB 3 begins around the 2:20:00 mark. Those who registered a position or testified in favor of, on, or against HB 3 are listed here: Witness List. Handouts provided to the committee can be reviewed here. The bill remains pending, but a committee substitute is forthcoming.

HB 19 – Procedure, Evidence, and Remedies in Civil Actions Involving Motor Vehicle Accidents

• Summary: HB 19, filed by Rep. Jeff Leach (R – Plano), would amend the CPRC to provide specific procedural and evidentiary guidelines for cases arising out of motor vehicle accidents, especially commercial motor vehicle accidents. The version of HB 19 voted out of committee, which can be reviewed here, addresses the following topics (among other things):

• Bifurcated trials: Much like the bifurcation process under section 41.009 of the CPRC, if requested by a defendant no later than the 120^th day after the date the defendant brining the motion files the defendant’s original answer, HB 19 would require a bifurcated trial in commercial motor vehicle accident actions when a claimant seeks to recover exemplary damages. In the first phase of a bifurcated trial, the trier of fact would determine liability and the amount of compensatory damages. In the second phase, the trier of fact would determine liability for and the amount of exemplary damages.

• Violation of regulatory standards: HB 19 provides that, in a civil action involving a commercial motor vehicle, a defendant’s failure to comply with a regulation or standard would tbe admissible into evidence in the first phase of a bifurcated trial only if, in addition to complying with other requirements of law: (1) the evidence tends to prove that failure to comply with the regulation or standard was a proximate cause of the bodily injury or death for which damages are sought; and (2) the regulation or standard is specific and governs, or is an element of a duty of care applicable to, the defendant, the defendant ’s employee, or the defendant ’s property or equipment when any of those is at issue in the action. However, nothing in HB 19 would prevent a claimant from pursuing a claim for exemplary damages relating to the defendant’s failure to comply with other applicable regulations or standards, or from presenting evidence on that claim in the second phase of a bifurcated trial.

• Direct actions against an employer: Under HB 19, in a civil action involving a commercial motor vehicle, an employer defendant ’s liability for damages caused by the ordinary negligence of a person operating the defendant ’s commercial motor vehicle shall be based only on respondeat superior if the defendant stipulates that, at the time of the accident, the person operating the vehicle was: (1) the defendant’s employee; and (2) acting within the scope of employment. If an employer defendant stipulates that the defendant’s employee with acting within the scope of employment and the trial is bifurcated, a claimant may not, in the first phase of the trial, present evidence on an ordinary negligence claim against the employer defendant that requires a finding by the trier of fact that the employer defendant’s employee was negligent in operating a vehicle as a prerequisite to the employer defendant being found negligent in relation to the employee defendant’s operation of the vehicle. A claimant would not be prevented from pursuing: (1) an ordinary negligence claim against an employer defendant for negligence in maintaining the commercial motor vehicle involved in an accident; (2) an ordinary negligence claim against an employer defendant for another claim that does not require a finding of negligence by an employee as a prerequisite to an employer defendant being found negligent for its conduct or omission, or from presenting evidence on that claim in the first phase of a bifurcated trial; or (3) a claim for exemplary damages arising from an employer defendant’s conduct or omissions in relation to the accident that is the subject of the action, or from presenting evidence on that claim in the second phase of a bifurcated trial.

• Admissibility of visual depictions of all motor vehicle accidents: Under HB 19, in civil actions involving a motor vehicle, a court may not require expert testimony for admission of evidence of a photograph or video of a vehicle or object involved in accident. If properly authenticated under the Texas Rules of Evidence, a photograph or video of a vehicle or object involved in an accident is presumed admissible, even if the photograph or video tends to support or refute an assertion regarding the severity of damages or injury to an object or person involved in the accident that is the subject of a civil action under HB 19.

• Effective date: The changes in the law under HB 19 would become effective immediately if passed by a vote of two-thirds of all members elected to each House. Otherwise, the effective date would be September 1, 2021. The changes in law addressed in HB 19 would apply only to a cause of action commenced on or after the effective date.

• Status: On March 9, Judiciary & Civil Jurisprudence conducted a public hearing on HB 19: Notice. Those who are interested can watch the proceedings here (Part 1) and here (Part 2). In Part 1, testimony on HB 19 begins around the 04:30 mark. In Part 2, testimony begins around the 1:31:00 mark. Those who registered a position or testified in favor of, on, or against HB 19 are listed here: Witness List. On March 24, by a 5-4 vote, the bill was voted out of committee as amended. The finalized version of the committee substitute has yet to be posted, but the content of the proposed committee substitute was discussed during the March 24 hearing (discussion begins around the 1:17:30 mark).

HB 2071 – Limitations Periods for Suits for Personal Injury Arising from Certain Offenses against a Child

• Summary: HB 2071, filed by Rep. Ann Johnson (D – Houston), would amend section 16.003 of the CPRC to eliminate the statute of limitations for bringing a personal injury lawsuit for injuries to a child arising out of Penal Code violations for: (1) the sexual assault of a child; (2) the aggravated sexual assault of a child; (3) the continuous sexual abuse of young child or children; (4) sexual conduct with a trafficked child as defined under the Penal Code; (5) certain sexual trafficking of a child; (6) compelling prostitution by a child; or (7) indecency with a child.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 15.

HB 2782 – Business Civil Liability for COVID-19 Exposure

• Summary: HB 2782, filed by Rep. Jay Dean (R – Longview), would amend the CPRC to provide that a business entity or person who owns a business entity may not be held liable for injury or death caused by exposure to COVID-19 that occurred due to the entity’s activities or operations, unless a claimant proves that the exposure was caused by gross negligence or wilful misconduct.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 17.

HB 3024 – Civil and Criminal Liability for Doxing

• Summary: HB 3024, filed by Rep. Gene Wu (D – Houston), would amend the Penal Code and the CPRC to create a criminal offense and a civil cause of action for doxing. Under HB 3024, a person would commit a doxing offense if the person: (1) intentionally posts another person’s private personal information without the other person’s consent; (2) the information is posted with the intent to promote or assist in the commission of an offense that would cause the person whose information is posted to suffer death, bodily injury, or stalking; or, with the intent that the information would be used to threaten harm or to harass any person and with reckless disregard that the posting would be reasonably likely to incite an attempt to cause the person to suffer death, bodily injury, or stalking; and, (3) the posting of the information: (a) is conducted with knowledge that the information will be used in the commission of an offense that would cause harm to the person whose information is posted or to a close relation to that person; (b) would cause a reasonable person to suffer significant economic injury or mental anguish or to fear serious bodily injury or death for oneself or for a close relation to oneself; or (c) caused the person whose information is posted to suffer a substantial life disruption.

• Doxing would be a misdemeanor, but could be elevated to a felony if an individual suffers death, physical injury, mental anguish or significant economic injury as a proximate result of conduct arising out of the posting.

• A defendant who engages in doxing (as defined under the Penal Code) would be liable for civil damages arising from the posting of the private personal information. A prevailing claimant would be entitled to actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown, and reasonable attorney's fees. The claimant may also recover exemplary damages.

• Effective date: September 1, 2021.

• Status: Referred to Criminal Jurisprudence on March 19.

HB 4213 – Appeal of a Sanction Issued by a Court Following a Ruling on a Motion to Recuse

• Summary: HB 4213, filed by Rep. Andrew Murr (R – Kerrville), would amend the CPRC and authorize an attorney or an attorney representing a party who files a motion to recuse the court, and is ordered to pay fees or expenses following the ruling, to file a notice of appeal with the trial court no later than thirty days following the date of the applicable order. The appealing party (or attorney representing a party, as applicable) would be entitled to have the sanctions order reviewed de novo by a jury or a judge. Selection of a jury would occur in accordance with the usual jury selection process for a civil jury trial. Under HB 4213, a jury determination would be subject to appeal to the court of appeals having jurisdiction over the case.

• HB 4213 would require the Supreme Court to promulgate changes to the Texas Rules of Civil Procedure to comply with the new law.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 29. ++

HB 4481 – Civil Liability Arising from COVID-19

• Summary: HB 4481, filed by Rep. Tom Oliverson (R – Houston), would provide persons with immunity from civil liability for ordinary negligence for any personal injury or death arising from COVID-19 as long as the person acts “as an ordinary, reasonable, and prudent person would have acted under the same or similar circumstances.” For purposes of this subsection, acting as an ordinary, reasonable, and prudent person includes the adoption of reasonable safety measures. Under HB 4481, there is a rebuttable presumption that safety measures adopted by a person are reasonable if those measures conform to the Centers for Disease Control and Prevention guidelines in existence at the time of an alleged exposure.

• The rebuttable presumption provided by this subsection does not alter the applicable standard of care for medical, legal, or other negligence cases. The changes in HB 4481 also do not apply to an act or omission that constitutes an intentional tort or wilful or reckless misconduct.

• Effective date: The changes in the law under HB 4481 would take effect immediately if the measure was approved by two-thirds of all members. Otherwise, the effective date would be September 1, 2021. The immunity provided under HB 4481 would expire on September 1, 2023.

• Status: Referred to Judiciary & Civil Jurisprudence on March 29. ++

SB 6 – Liability for Certain Claims Arising During a Pandemic or Other Disaster or Emergency (Companion: HB 3659)

• Summary: SB 6, filed by Sen. Kelly Hancock (R – North Richland Hills) and others, would amend the Medical Liability Act and the CPRC to provide liability protection for healthcare providers, businesses that manufactured and distributed products related to a pandemic emergency, and individuals and businesses that continue to operate during a statewide pandemic emergency. More specifically, SB 6 would do the following:

• Liability of Physicians, Health Care Providers, and First Responders During a Pandemic: Except in a case of reckless conduct or intentional, wilful, or wanton misconduct, a physician, health care provider, or first responder would not be liable for an injury, including economic and noneconomic damages, or death arising from care, treatment, or failure to provide care or treatment relating to or impacted by a pandemic disease or a disaster declaration related to a pandemic disease. This limitation would apply only to a claim arising from care, treatment, or failure to provide care or treatment that occurred during a period beginning on the date that the president of the United States or the governor makes a disaster declaration related to a pandemic disease and ending 60 days after the date that the declaration terminates.

• Volunteer Health Care Providers and Health Care Institutions: In addition to the conduct already addressed in section 79.0031 of the CPRC, health care providers would be immune from civil liability arising out of care, assistance, and advice provided: (1) in relation to a national or statewide health care emergency that results in a declaration of a state of disaster or emergency by the president of the United States or a declaration of a state of disaster by the governor under Chapter 418 of the Government Code; (2) during a period beginning on the date the declaration is made and ending 60 days after the date the declaration terminates; and (3) within the scope of the provider’s practice under Texas law. The limitation would not apply to reckless conduct, or intentional, willful, or wanton misconduct.

• Pandemic Emergency Related Products. A person who designs, manufacturers, sells, or donates a product described in SB 6 (e.g., clothing or equipment worn to minimize exposure to hazards of a pandemic disease; medical devices, equipment, and supplies used during a pandemic emergency or to treat individuals infected or suspected to be infected with a pandemic disease; drugs, medicines, and vaccines used to treat or prevent the spread of the disease; tests to diagnose or determine immunity to a pandemic disease; and commercial cleaning, sanitizing, or disinfecting supplies used to prevent the spread of a pandemic disease) would not be liable for personal injury, death, or property damage caused by the product unless: (1) the person either had actual knowledge of a defect in the product when the product left the person’s control, or acted with actual malice in designing, manufacturing, selling, or donating the product; and (2) the product presented an unreasonable risk of substantial harm.

• A person who designs, manufactures, labels, sells, or donates a product described in SB 6 during a pandemic emergency would not be liable for personal injury, death, or property damage caused by a failure to warn or provide adequate instructions regarding the use of a product unless: (1) the person acted with actual malice in failing to warn or provide adequate instructions regarding the use of the product; and (2) the failure to warn or provide adequate instructions regarding the use of the product presents an unreasonable risk of substantial harm.

• A person would not be liable for personal injury, death, or property damage caused by or resulting from the person's selection, distribution, or use of a product described in SB 6 during a pandemic emergency unless: (1) the person either had actual knowledge of a defect in the product when the person selected, distributed, or used the product, or acted with actual malice in selecting, distributing, or using the product; and (2) the product presented an unreasonable risk of substantial harm.

• Liability for Causing Exposure to a Pandemic Disease: A person would not be liable for injury or death caused by exposing an individual to a pandemic disease during a pandemic emergency unless the claimant establishes that:

• (1) the person who exposed the individual: (a) knowingly failed to warn the individual of or remediate a condition that the person knew was likely to result in the exposure of an individual to the disease, provided that the person: (i) had control over the condition; (ii) knew that the individual was more likely than not to come into contact with the condition; and (iii) had a reasonable opportunity and ability to remediate the condition or warn the individual of the condition before the individual came into contact with the condition; or (b) knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease that were applicable to the person or the person’s business, provided that the person: (i) had a reasonable opportunity and ability to implement or comply with the standards, guidance, or protocols; and (ii) refused to implement or comply with or acted with flagrant disregard of the standards, guidance, or protocols; and

• (2) reliable scientific evidence shows that the failure to warn the individual of the condition, remediate the condition, or implement or comply with the government-promulgated standards, guidance, or protocols was the cause in fact of the individual contracting the disease.

• Expert Reports: Claims for exposure to a pandemic disease would have to be supported by one or more expert reports. Unless the deadline is extended by written agreement of the parties, no later than the 120th day after the date a defendant files an answer to a claim for a pandemic disease disclosure under SB 6, a claimant would be required to serve on the defendant: (1) a report authored by at least one qualified expert that provides a factual and scientific basis for the assertion that the defendant’s failure to act caused the individual to contract a pandemic disease; and (2) a curriculum vitae for each expert whose opinion is included in the report.

• A defendant would be required to file an objection to the sufficiency of the report and serve the objection on the claimant no later than 21 days after the later of: (1) the date the report is served on the defendant; or (2) the date the defendant’s answer to the claim is filed.

• If a court determines that a report does not represent an objective, good faith effort to provide a factual and scientific basis for the assertion that the defendant’s failure to act caused the injured individual to contract a pandemic disease, the court may grant the claimant a single 30-day period to cure any deficiency in the report.

• If a sufficient report is not timely served, the court, on the defendant’s motion, would be required to enter an order: (1) dismissing the claim with respect to the defendant, with prejudice; and (2) awarding to the defendant reasonable attorney’s fees and costs of court incurred by the defendant in the action.

• SB 6 would not require a single expert to address all causation issues with respect to all defendants. Further, a report required under SB 6: (1) would not be admissible in evidence by any party; (2) could not be used in a deposition, trial, or other proceeding; and (3) could not be referred to by any party during the course of the action, except in a proceeding to determine if a report is sufficient or timely.

• After a claim to which SB 6 applies is filed, all claimants, collectively, could take no more than two depositions before the required expert report is served.

• Interlocutory Appeal. A person would be able to appeal from an interlocutory order of a district court, county court at law, statutory probate court, or county court that overrules an objection filed to an expert report or denies all or part of the relief sought in a motion to dismiss.

• The House companion bill (HB 3659) was filed by Rep. Jeff Leach (R – Plano). A bill addressing changes only to section 79.0031 of the CPRC (HB 3747) has been filed by Rep. Reggie Smith (R – Sherman).

• Effective date: The changes in the law under SB 6 would be effective immediately if the bill received a vote of two-thirds of all members elected to each house. Otherwise, SB 6 would take effect September 1, 2021. The amendments to the Medical Liability Act and Chapter 148 of the CPRC would apply only to an action commenced on or after March 13, 2020, for which a judgment has not become final before the effective date. The amendments to section 79.0031 of the CPRC would apply only to an action commenced on or after the effective date.

• Bill Analysis for SB 6: Senate Research Center

• Status of SB 6: On March 23, Business & Commerce conducted a public hearing on SB 6: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 06:00 mark. Those who registered a position or testified in favor of, on, or against SB 6 are listed here: Witness List. The bill, as amended, was subsequently voted out of committee on March 31 by a 6-3 vote. Those who are interested in hearing more about the committee substitute, which has yet to be posted for public viewing, can listen to an audio-only recording here. Consideration of the bill begins around the 7:55 mark. ++

• Status of HB 3659: Referred to Judiciary & Civil Jurisprudence on March 22.

• Status of HB 3747: Referred to Judiciary & Civil Jurisprudence on March 22.

Contractor Liability

SB 219 – Civil Liability and Responsibility for the Consequences of Defects in Plans, Specifications, or Related Documents for Construction and Repair of Real Property Improvements (Companion: HB 1418)

• Summary: SB 219, filed by Sen. Bryan Hughes (R – Mineola), would amend the Business & Commerce Code to establish that a contractor (as defined under the bill) would not be responsible for the consequences of defects in, and may not warranty the accuracy, adequacy, sufficiency, or suitability of, plans, specifications, or other design or bid documents for the construction (as defined under the bill), or repair of any improvement to real property provided to the contractor by the person with whom the contractor entered into the contract or another on that person's behalf.

• SB 219 also would require a contractor to make a written disclosure to the other contracting party of the existence of any known defect in the plans, specifications, or other design or bid documents discovered by the contractor before or during construction. The bill would also establish that a contractor who fails to disclose such a condition may be liable for defects that result from the failure to disclose. Further, SB 219 would prohibit these protections from being waived by contract.

• SB 219 would also amend the Government Code to prohibit an applicable governmental entity from requiring in a contract for engineering or architectural services related to the construction or repair of an improvement to real property, or in a contract related to the construction or repair of an improvement to real property that contains engineering or architectural services as a component part, that such services be performed to a level of professional skill and care beyond that which would be provided by an ordinarily prudent engineer or architect with the same professional license under the same or similar circumstances. The bill would not prevent a party to a contract for engineering or architectural services from enforcing specific obligations in the contract that are separate from the standard of care.

• In committee, SB 219 was amended to include provisions stating that the provisions would not apply to the construction, repair, alteration, or remodeling of an improvement to real property if: (1) the construction, repair, alteration, or remodeling is performed under a design-build contract; and (2) the part of the plans, specifications, or other design or bid documents for which the contractor is responsible under the contract is the part alleged to be defective. The amended version of SB 219 would also provide that design services provided under a design-build contract would be subject to the same standard of care requirements provided in section 130.0021 of the CPRC.

• The companion bill in the House (HB 1418) was filed by Rep. Jeff Leach (R – Plano).

• Effective date: September 1, 2021. The changes in the law addressed in SB 219 and HB 1418 would apply only to a contract entered into on or after the effective date.

• Bill Analysis for SB 219: Senate Research Center

• Status of SB 219: On March 8, State Affairs conducted a public hearing on SB 219: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 04:21:10 mark. Those who registered a position or testified in favor of, on, or against SB 219 are listed here: Witness List. By a vote of 6-1-2, the bill (as amended) was voted out of committee on March 22.

• Status of HB 1418: On March 17, Judiciary & Civil Jurisprudence conducted a public hearing: Notice. Those who are interested can watch the proceedings here. Testimony about the bill begins around the 03:55:30 mark. Those who registered a position or testified in favor of, on, or against HB 1418 are listed here: Witness List. On March 24, HB 1418 (as amended) was voted out of committee by a 7-2 vote. The amended version of HB 1418 has not been posted to the Legislature’s website.

HB 2086 – Appeals of Interlocutory Orders Denying Summary Judgment Motions by Certain Contractors

• Summary: HB 2086, filed by Rep. Eddie Morales (D – Eagle Pass), would amend Section 51.014 of the CPRC to authorize the interlocutory appeal of an order denying a motion for summary judgment filed by certain contractors. More specifically, a contractor would be permitted to appeal the denial of summary judgment cases arising out of the conduct of a contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation if, at the time of the personal injury, property damage, or death, the contractor was in compliance with contract documents material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.

• Effective date: The changes in the law under HB 2086 would become effective immediately if passed by a vote of two-thirds of all members elected to each House. Otherwise, the effective date would be September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 15. The committee has scheduled a public hearing on the bill for April 6 at 8:00 a.m.: Notice. Those who are interested can watch the proceedings here: House Live Video. ++

Court Costs

SB 41 – Consolidation and Allocation of State Court Costs (Companion: HB 4417)

• Summary: SB 41, filed by Sen. Judith Zaffirini (D – Laredo), is an omnibus bill intended to: (1) simplify the civil filing fee and criminal court cost structure; (2) ensure that filing fees and court costs are going to support the judiciary; and (3) ensure that fees being collected for a purpose are actually being used for that intended purpose.

The companion bill in the House (HB 4417) was filed by Rep. Joe Moody (D – El Paso).

• Effective date: September 1, 2021.

• Status of SB 41: Referred to State Affairs on March 3.

• Status of HB 4417: Referred to Judiciary & Civil Jurisprudence on March 29. ++

Damages

SB 207 – Recovery of Medical or Healthcare Expenses in Civil Actions (Companion: HB 1617)

• Summary: SB 207, jointly filed by Sen. Charles Schwertner (R – Georgetown), Sen. Dawn Buckingham (R – Lakeway), and Sen. Donna Campbell (R – New Braunfels), would amend section 41.0105 of the CPRC to permit a party in an action in which a claimant seeks recovery of medical or health care expenses to introduce evidence of the reasonableness of the amount charged for the medical or health care services provided to the claimant, including any of the following amounts:

• the amount actually paid for the medical or health care services provided to the claimant, unless there is a formal or informal agreement that the medical or health care provider will wholly or partly refund, rebate, or remit the amount paid to the payer or another person, in which case the amount actually paid is not admissible in evidence;

• the amount billed by the medical or health care provider for the medical or health care services provided to the claimant;

• the amount paid, the amount that would have been paid, or the amount likely to be paid for the medical or health care services provided to the claimant by a health benefit plan, workers' compensation insurance, an employer-provided plan, Medicaid, Medicare, or another similar source available to pay for services provided to the claimant at the time the services were provided or available to pay for the services after the services were provided, as applicable;

• the average amount typically paid or allowed by health benefit plan issuers or governmental payers at or near the time the medical or health care services were provided to the claimant to medical or health care providers who: (1) are located in the same geographic area as the medical or health care provider who provided the services to the claimant; and (2) offer the same type of medical or health care services as the services provided to the claimant; or

• the average of the amounts actually accepted for payment in the previous 12 months by the medical or health care provider who provided medical or health care services to the claimant for the same services provided to patients other than the claimant.

• The companion bill in the House, HB 1617, was filed by Rep. Greg Bonnen (R – Friendswood).

• Effective date: September 1, 2021. The changes in the law addressed in SB 207 and HB 1617 would apply to an action commenced on or after the effective date.

• Bill Analysis for SB 207: Senate Research Center

• Status of SB 207: On March 3, State Affairs conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 2:30 mark. Several individuals registered a position or testified in favor of, on, or against SB 207, but the witness list has to be posted. The committee considered a committee substitute that changed the type of evidence of medical expenses that a trier of fact could consider and modifies the CPRC Chapter 18 affidavit/counter-affidavit process to permit a defendant to notify the claimant that it intends the controvert the initial affidavit instead of filing a controverting affidavit. The committee substitute has not been posted for public viewing at this time. The bill remains pending. ++

• Status of HB 1617: Referred to Judiciary & Civil Jurisprudence on March 9. The committee has scheduled a public hearing on the bill for April 6 at 8:00 a.m.: Notice. Those who are interested can watch the proceedings here: House Live Video. ++

HB 2064 – Amount of Hospital or Physician Liens on Certain Causes of Action or Claims

• Summary: HB 2064, filed by Rep. Jeff Leach (R – Plano), would amend section 55.004(b) of the Property Code to add a new subsection (3) and provide another method for calculating the amount of a hospital lien. Under HB 2064, a hospital lien would be the lesser of: (1) the amount of the hospital's charges for services provided to the injured individual during the first 100 days of the injured individual's hospitalization; or (2) 50 percent of all amounts recovered by the injured individual through a cause of action, judgment, or settlement described by Section 55.003(a); or (3) the amount awarded by the trier of fact for the services provided to the injured individual by the hospital less the pro rata share of attorney’s fees and expenses the injured individual incurred in pursuing the claim.

• Effective date: The changes in the law under HB 2064 would become effective immediately if passed by a vote of two-thirds of all members elected to each House. Otherwise, the effective date would be September 1, 2021.

• Status: On March 31, Judiciary & Civil Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 4:57:45 mark. Several witnesses registered a position or testified in favor of, on, or against HB 2064, but the witness list has yet to be posted. ++

HB 2925 – Affidavits Concerning Cost and Necessity of Services

• Summary: HB 2925, filed by Rep. Harold Dutton (D – Houston), would amend section 18.001 of the CPRC to add a new section a-1, which would provide that, if a claimant offers into evidence a medical bill or other itemized statement of a medical or health care service and charge totaling $50,000 or less, an affidavit described by 18.001 (b) would not be necessary to support a finding of fact by a judge or jury that the amount charged was reasonable or that the service was necessary.

• Effective date: September 1, 2021. The changes in the law addressed in HB 2925 would apply to an action commenced on or after the effective date.

• Status: Referred to Judiciary & Civil Jurisprudence on March 18.

Healthcare Liability

HB 501 – Liability Limits in a Health Care Liability Claim

• Summary: HB 501, filed by Rep. Gene Wu (D – Houston), would amend sections 74.301 and 74.302 of the CPRC and provide for an adjustment to the noneconomic damages caps based on the consumer price index (CPI). More specifically, the bill provides that, when there is an increase or decrease in the CPI, the liability limit prescribed by the noneconomic damage limitation sections will be increased or decreased, as applicable, by a sum equal to the amount of such limit multiplied by the percentage increase or decrease in the CPI that measures the average changes in prices of goods and services purchased by urban wage earners and clerical workers’ families and single workers living alone (CPI-W: Seasonally Adjusted U.S. City Average--All Items), between September 1, 2003, and the time at which damages subject to such limits are awarded by final judgment or settlement.

• Effective date: September 1, 2021. The changes in the law addressed in HB 501 would apply to a health care liability claim that accrues on or after the effective date.

• Status: Referred to Judiciary & Civil Jurisprudence on March 1.

SB 232 – Service of Expert Reports for Health Care Liability (Companion: HB 3984)

• Summary: SB 232, filed by Sen. Nathan Johnson (D – Dallas), would amend Chapter 74 of the CPRC by adding a “preliminary determination for expert report requirement” (section 74.353) that includes the following elements:

• On motion of a claimant filed no later than 30 days after the date the defendant's original answer is filed, a court may issue a preliminary determination regarding whether a claim made by the claimant is a health care liability claim.

• If a court determines that a claim is a health care liability claim, the claimant shall serve an expert report as required by section 74.351 no later than the later of:

(1) 120 days after the date each defendant's original answer is filed;
(2) 60 days after the date the court issues the preliminary determination; or
(3) a date agreed to in writing by the affected parties.

• A preliminary determination under proposed section 74.353 would apply only to the issue of whether a claimant is required to serve an expert report under section 74.351 and would not be subject to interlocutory appeal.

• The companion bill in the House, HB 3984, was filed by Rep. Yvonne Davis (D – Dallas).

• Effective date: September 1, 2021. The changes in the law addressed in SB 232 would apply to actions commenced on or after the effective date.

• Bill Analysis for SB 232: Senate Research Center ++

• Status of SB 232: Referred to Jurisprudence on March 3. The committee has scheduled a public hearing on the bill for April 6 at 9:00 a.m.: Notice. Those who are interested can watch the proceedings here: Senate Live Video. ++

• Status of HB 3984: Referred to Judiciary & Civil Jurisprudence on March 29. The committee has scheduled a public hearing on the bill for April 6 at 8:00 a.m.: Notice. Those who are interested can watch the proceedings here: House Live Video. ++

SB 1106 – Qualifications of Experts in Certain Health Care Liability Claims

• Summary: SB 1106, filed by Sen. Bryan Hughes (R – Mineola), would amend the CPRC to provide that, in suits involving a health care liability claim against a chiropractor, a person may qualify as an expert witness on the issue of the causal relationship between an alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a chiropractor or physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

• Effective date: September 1, 2021.

• Status: SB 1106 was referred to State Affairs on March 18.

Insurance

HB 359 – Recovery under Uninsured and Underinsured Motorist Insurance Coverage

• Summary: HB 359, filed by Rep. Charlie Geren (R – Fort Worth), but joined by more than 50 other House members, would amend the Insurance Code to, among other things, expressly: (1) define, at least to some degree, what constitutes sufficient notice under the Insurance Code for uninsured/underinsured motorists (UIM) claims; (2) state that an insurer may not require, as a prerequisite to asserting a claim under UIM coverage, a judgment or other legal determination establishing the other motorist’s liability or uninsured/underinsured status; (3) state that an insurer may not require, as a prerequisite to payment of UIM benefits, a judgment or other legal determination establishing the other motorist’s liability or the extent of the insured’s damages before benefits are paid; and (4) require an insurer to attempt, in good faith, to effectuate a prompt, fair, and equitable settlement of a claim once liability and damages have become reasonably clear. HB 359 would also amend the Insurance Code to address when prejudgment begins to accrue on UIM claims and when a claim for attorney’s fees is considered to be “presented” for UIM claim purposes.

• Effective date: September 1, 2021. The changes in the law addressed in HB 359 would apply to causes of action that accrue on or after the effective date, but does not affect the enforceability of any provision in an insurance policy delivered, issued for delivery, or renewed before January 1, 2022, that conflicts with the change in law made by HB 359.

• Status: Referred to Committee on Insurance on February 25.

HB 1682 – Disclosure by Liability Insurers and Policyholders to Third Party Claimants

• Summary: HB 1682, filed in Rep. Matt Krause (R – Fort Worth), would amend the Insurance Code and require an insurance carrier and a policyholder to disclose to a third party claimant certain information about the insurance coverage of the party against who a claim is being made. More specifically, HB 1682 would have required an insurance carrier to provide the claimant with a sworn statement of an officer or claims manager of the insurer that contained the following information for each policy known by the insurer that provides or may provide relevant coverage, including excess or umbrella coverage: (1) the name of the insurer; (2) the name of each insured; (3) the limits of liability coverage; (4) any policy or coverage defense the insurer reasonably believes is available to the insurer at the time the sworn statement is made; and (5) a copy of each policy under which the insurer provides coverage. An insurer that failed to comply with the request would be subject to an administrative penalty up to $500. An insured who received such a request had to: (a) disclose to the claimant the name of and type of coverage provided by each insurer that provides or may provide liability coverage for the claim; and (b) forward the claimant’s request to each insurer included in the disclosure.

• Effective date: September 1, 2021.

• Status: Referred to Insurance on March 9.

Judiciary

Budget

• Summary: Information about the proposed 2022-2023 budgets from both chambers, including summaries of the Senate Budget Estimates and House Budget Estimates (Article IV pertains to the judiciary), can be found on the Legislative Budget Board website. For the most part, the judiciary’s budget has not been reduced from the current biennium, which was a real concern since Governor Abbott, Lt. Governor Dan Patrick, and former Speaker Dennis Bonnen had previously asked all state agencies, the appellate courts, and institutions of higher education to submit legislative appropriations requests that included a 5% budget cut for the next biennium. As many of you know, the appellate courts can ill-afford to reduce their budgets. For most courts, budget cuts would result in the loss of essential personnel, which could adversely affect the courts’ ability to function efficiently and effectively.

• On February 11, the Senate Committee on Finance considered Article IV of SB 1, which is the judiciary portion of the budget bill for FY 2022-2023. An archived broadcast of the hearing can be found here. Testimony regarding the judiciary’s budget (beginning with the Texas Supreme Court) begins around the 03:20 mark. On March 30, SB 1 (as amended) was voted favorably from the committee. The committee substitute for SB 1 (CSSB 1) could be considered by the full Senate on April 6. ++

• On March 3, a House Appropriations subcommittee heard testimony on the judiciary’s portion of the budget. Here are the notice, witness list, handouts, and an archived broadcast of the hearing. Testimony regarding the judiciary’s budget (beginning with the Texas Supreme Court) begins around the 01:00 mark.

HB 228 – Use of an Electronic Recording Device to Report Court Proceedings

• Summary: HB 228, filed by Rep. Andrew Murr (R – Kerrville), would permit the commissioners court of a county to exempt a court from the requirement imposed on the court's judge under section 52.041 of the Government Code (i.e., Appointment of Official Court Reporter) by authorizing the use of an electronic recording device to report the court’s proceedings. The judge of a statutory county court or county court in that county by order could claim the exemption and provide for proceedings before the court to be reported using a good quality electronic recording device.

• By agreement, the commissioners court of each county within a judicial district could exempt the district court from the requirement imposed on the court’s judge under section 52.041 by authorizing the use of an electronic recording device to report the court’s proceedings. By order, the judge could claim the exemption and provide for proceedings before the court to be reported using a good quality electronic recording device.

• If an electronic recording device is used to report a court proceeding, a court reporter would not be required to be present during the proceeding to certify the record of the proceeding.

• The commissioners court of a county that by order has authorized (or the commissioners courts of a judicial district that have authorized) the use of an electronic recording device shall adopt a policy for the provision of a transcript on request or appeal in a proceeding reported using an electronic recording device. Such a policy may provide for the imposition of fees associated with the preparation, reproduction, or mailing of a transcript for a proceeding reported using an electronic recording device. A policy that authorizes the imposition of fees must also provide a mechanism for a person to object to the fee amounts.

• HB 228 would not affect a person’s rights under other law to request a proceeding before a court to be reported by a court reporter.

• Effective date: September 1, 2021.

• Status: On March 17, Judiciary & Civil Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here (Part 1) and here (Part 2). In Part 1, testimony on HB 228 begins around the 1:08:25 mark. In Part 2, testimony begins around the 1:30:00 mark. Several witnesses registered a position or testified in favor of, on, or against HB 228, but the witness list has yet to be posted. The bill remains pending, but a committee substitute will be forthcoming.

HB 1875 – Creation of a Business Court and a Court of Business Appeals

• Summary: HB 1875, filed by Rep. Brooks Landgraf (R – Odessa), would create a statewide specialized civil trial court and an appellate court to hear derivative actions on behalf of an organization and certain business-related litigation cases, such as actions against businesses, accusations of wrongdoing by businesses or their members, and disputes between businesses in which the amount in controversy exceeds $10 million. The proposed “business court” would not have jurisdiction over governmental entities (absent the government entity invoking or consenting to jurisdiction), personal injury cases, or cases brought under the Estates Code, Family Code, the DTPA, and Title 9 (Trusts) of the Property Code, unless agreed to by the parties and the court. Some of the other notable components of the bill are:

• The business court would be composed of seven (7) judges who are appointed by the governor for two (2) year terms. The judges would have to have at least 10 years of experience in complex business law;

• Parties would have the right to a jury trial when required by the constitution;

• The court clerk would be located in Travis County, but individual judges would be based in the county seat of their respective counties;

• Current venue rules would apply, but cases could be heard in an agreed-upon county or where the court may decide to be more convenient or necessary;

• There would be a removal procedure for cases filed in a district court;

• The business court would be required to provide rates for fees associated with filings and actions in the business court, and such fees must be set at a sufficient amount to cover the costs of administering the business court system; and

• The Court of Business Appeals, which would handle appeals from the business trial court, would be composed of seven (7) justices who are appointed by the governor. Justices would serve two (2) year terms and would hear cases in panels of three (3) randomly-selected justices. Appeals from the Business CA would go to the Supreme Court.

• HB 1875 is similar (but not identical) to versions of the 2015 chancery court bill (HB 1603) that was voted out of committee (but failed to pass in the House), as well as the 2017 chancery court bill (HB 2594) and the 2019 business courts bill (HB 4149) that were filed but never voted out of committee.

• Effective date: September 1, 2021.

• Status: Referred to Judiciary & Civil Jurisprudence on March 15. The committee has scheduled a public hearing on the bill for April 6 at 8:00 a.m.: Notice. Those who are interested can watch the proceedings here: House Live Video. ++

HB 1876 – Annual Base Salaries of State Judges and Justices

• Summary: HB 1876, filed by Rep. Mike Schofield (R – Katy), would amend the Government Code to provide for a cost-of-living adjustment for judicial salaries based on changes in the Consumer Price Index. Rep. Schofield also filed a similar bill (HB 1880) that would accomplish the same result using a different formula.

• Effective date: September 1, 2021, but the changes in the law under HB 1876 and HB 1880 would apply starting with the state fiscal biennium beginning on September 1, 2023.

• Fiscal Note: Legislative Budget Board

• Status of HB 1876: On March 17, Judiciary & Civil Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here: House Archive Video. Testimony on HB 1876 begins around the 1:00 mark. Several witnesses registered a position or testified in favor of, on, or against HB 1876, but the witness list has yet to be posted. The bill remains pending.

• Status of HB 1880: On March 17, Judiciary & Civil Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here: House Archive Video. Testimony on HB 1880 begins around the 32:15 mark. Several witnesses registered a position or testified in favor of, on, or against HB 1880, but the witness list has yet to be posted. The bill remains pending.

HB 3692 – Preparation of an Appellate Record in Civil and Criminal Appeals

• Summary: HB 3692, filed by Rep. Julie Johnson (D – Dallas), would amend Chapter 51 of the CPRC and Chapter 44 of the Code of Criminal Procedure to permit an appealing party to file an appendix with the court of appeals instead of a clerk’s record. More specifically, HB 3692 would permit an appealing party in a criminal or civil appeal to notify the court of appeals within ten days of filing the notice of appeal that the party will file an appendix that replaces the clerk’s record for the appeal. In a civil appeal, the appendix must be filed with the appellant’s brief no later than the 30^th day after the later of: (1) the date that the party provided notice of its intent to file an appendix in lieu of a clerk’s record; or (2) the date that a reporter’s record, if any, is filed with the court of appeals. In a criminal appeal, the brief and appendix must be filed no later than the 30^th day after the earlier of: (1) the date the court clerk would have been required to file the clerk’s record; or (2) the date that a reporter’s record, if any, was filed with the court of appeals.

• An appendix filed under HB 3692 would be required to contain a file-stamped copy of each document required by Rule 34.5 of the Texas Rules of Appellate Procedure, and any other item the party intends to reference in the appellant’s brief.

• Effective date: September 1, 2021. The changes to the law under HB 3692 would apply only to a notice of appeal filed on or after January 1, 2022.

• Status: Referred to Judiciary & Civil Jurisprudence on March 22. ++

HB 4316 – Judicial Compensation for Marriage Ceremonies

• Summary: HB 4316, filed by Rep. Jacey Jetton (R – Sugar Land), would amend the Family Code and provide that “[a] current judicial officeholder commits an offense if the person knowingly agrees to accept, directly or indirectly, overtly or covertly any remuneration in cash or in kind to or from another for conducting a marriage ceremony.” A violation of the law proposed in HB 4316 would be a Class B Misdemeanor.

• Effective date: September 1, 2021.

SB 11 - Composition of the Court of Appeals Districts (Companion: HB 339; Duplicate: HB 2613)

• Summary: As originally filed by Sen. Joan Huffman (R – Houston), SB 11 would have eliminated overlapping intermediate appellate court jurisdictions for certain counties located in the Fifth, Sixth, and Twelfth Courts of Appeals. More specifically, SB 11 would have provided that: (1) Hunt County would be solely within the jurisdiction of the Sixth Court of Appeals (instead of having concurrent jurisdiction with the Fifth Court of Appeals); (2) Gregg County and Rusk County would be solely within the jurisdiction of the Twelfth Court of Appeals (instead of having concurrent jurisdiction with the Sixth Court of Appeals); and (3) Upshur County and Wood County would be solely within the jurisdiction of the Sixth Court of Appeals (instead of having concurrent jurisdiction with the Twelfth Court of Appeals).
  
• The companion bill (HB 339) was filed by Rep. Phil King (R – Weatherford). Rep. Andrew Murr (R – Kerrville) filed a duplicate bill in the House (HB 2613).

• Effective date: September 1, 2021.

• Bill Analysis for SB 11: Senate Research Center

• Status of SB 11: On April 1, Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here: Senate Archive Video. Testimony begins around the 1:23:10 mark. Several witnesses registered a position or testified in favor of, on, or against SB 11, but the witness list has yet to be posted. At the hearing, the committee considered a committee substitute that would do the following:

• Reduce the number of courts of appeal from 14 into 7 districts (proposed district map);

• Keep all 80 justices and all existing courthouses, but establish additional courthouses in Midland and Lake Jackson;

• Each of the intermediate appellate court justices would keep their places for the duration of their term; however, effective January 1, 2023, each justice place would be re-designated to one of the 7 new appellate districts and chief justices would be designated for each new district;

• Only 5 justice places would be designated to a different courthouse from where they currently sit. All places designated to a new courthouse would expire in 2022, and filled by districtwide election in the new district during the 2022 election;

• Sitting chief justices would remain chiefs through the end of their terms. If a new COA included multiple chiefs, the chiefs would be required to coordinate to carry out their responsibilities. The Chief Justice of the Supreme Court would resolve any dispute between the chiefs;

• The Supreme Court would be required to establish rules to the extent necessary to implement the bill; and

• The changes in the law under SB 11 would be effective September 1, 2021. New appellate court districts would be created and justice places re-designated effective January 1, 2023.

• At the conclusion of the hearing, the committee voted the bill, as amended, out of committee by a 3-2 vote. The committee substitute has yet to be posted for public viewing, but here is a draft of the version of CSSB 11 considered by the committee. ++

• Status of HB 339: Referred to Redistricting on February 26.

• Status of HB 2613: Referred to Redistricting on March 17.

SB 690 – Conducting Remote Proceedings (Companion: HB 3611)

• Summary: SB 690, filed by Sen. Judith Zaffirini (D – Laredo), would amend the Government Code to expressly permit a court, on either its own motion or on the motion of any party, to: (1) conduct a hearing or other proceeding as a remote proceeding without the consent of the parties unless the U.S. Constitution or Texas Constitution requires consent; and (2) allow or require a judge, party, attorney, witness, court reporter, juror, or any other individual to participate in a remote proceeding, including a deposition, hearing, trial, or other proceeding. Under SB 690, “remote proceeding” would mean any proceeding before a court in which one or more of the participants, including a judge, party, attorney, witness, court reporter, juror, or other individual, attends the proceeding remotely through the use of technology and the Internet.
  
• Before a jury trial could be conducted as a remote proceeding, a court would be required to: (1) consider on the record any motion or objection related to proceeding with the jury trial no later than the seventh day before the trial date, except that if the motion or objection is made later than the seventh day before the trial date, the court must consider the motion or objection on the record as soon as practicable; and (2) ensure all prospective jurors have access to the technology necessary to participate in the remote proceeding.

• For purposes of any law requiring notice or citation of the time and place for a proceeding, notice of the remote means by which the proceeding would be conducted and the method for accessing the proceeding through that remote means constitutes notice of the place for the proceeding. If a remote proceeding is conducted away from the court’s usual location, the court must provide reasonable notice to the public and an opportunity to observe the proceeding.

• The Office of Court Administration would be required to provide guidance and assistance to the extent possible to a court conducting a remote proceeding.

• The companion bill in the House (HB 3611) was filed by Rep. Jeff Leach (R – Plano).

• Effective date: September 1, 2021.

• Status of SB 690: Referred to State Affairs on March 11.

• Status of HB 3611: Referred to Judiciary & Civil Jurisprudence on March 22.

SB 1506 – Supreme Court/CCA Rule, Practice, or Procedure

• Summary: SB 1506, filed by Sen. Drew Springer (R – Muenster), would amend section 22.003 of the Government Code to provide that a rule, practice, or procedure promulgated by the Supreme Court does not apply in a criminal case unless the rule, practice, or procedure has been approved by the presiding judge of the Court of Criminal Appeals.

• Effective date: September 1, 2021.

• Status: Referred to Jurisprudence on March 24.

SB 1529 – Creation of the Texas Court of Appeals

• Summary: Under the original version of SB 1529 filed by Sen. Joan Huffman (R – Houston), the bill would have created a statewide court of appeals district that would have exclusive appellate jurisdiction over “all cases or any matters arising out of or related to a civil case brought by or against the state or a state agency, board, or commission or by or against an officer of the state or a state agency, board, or commission.” The court would have been composed of six elected justices and would sit in Austin, Texas.

• At the hearing on SB 1529, the committee considered a committee substitute that would carve out cases from the court’s proposed jurisdiction, such as: (1) proceedings brought under Title 5 of the Family Code; (2) a proceeding brought against an elected official of a political subdivision or the judge of a trial court arising from an act or omission made in the official’s or judge’s official capacity; (3) a proceeding relating to a mental health commitment or a civil asset forfeiture; (4) a juvenile case; (5) a proceeding brought under CPRC chapter 125 to enjoin a common nuisance; and (6) a quo warranto proceeding. Further, the committee substitute would give the court exclusive jurisdiction over a proceeding in which a party files a petition, motion, or other pleading challenging the constitutionality of a Texas statute.

• The committee substitute also modified the text of the original version to provide that the court would: (1) be composed of five justices; and (2) sit in the City of Austin, but may transact its business in any county in the state as the court determines is necessary and convenient ++

• Effective date: January 1, 2022.

• Bill Analysis: Senate Research Center ++

• Status: On April 1, Jurisprudence conducted a public hearing on the bill: Notice. Those who are interested can watch the proceedings here: Senate Archive Video. Testimony begins around the 32:30 mark. Several witnesses registered a position or testified in favor of, on, or against SB 1529, but the witness list has yet to be posted. At the conclusion of the hearing, the committee voted SB 1529, as amended, out of committee by a 3-2 vote. The committee has yet to be posted for public viewing, but here is a draft of the committee substitute considered by the committee. ++

SJR 47 – Proposed Constitutional Amendment Changing the Eligibility Requirements for Certain Judicial Offices

• Summary: SJR 47, filed by Sen. Joan Huffman (R – Houston) and others, would propose a constitutional amendment that would add the following eligibility requirements to serving as a judge or justice in Texas:

• In addition to being 35 years old; a U.S. citizen and Texas resident at the time of election; a practicing lawyer licensed in Texas for at least ten years; or a practicing lawyer licensed in the State of Texas and judge of a state court or county court established by the Legislature by statute for a combined total of at least ten years, the Chief Justice or Justice of the Supreme Court must not have had their license to practice law revoked, suspended, or subject to a probated suspension during the time period set forth above.

• In addition to being a U.S. citizen and Texas resident, a district court judge must have been a practicing lawyer or a judge of a Texas court, or both combined, for eight years next preceding the judge’s election, during which time the judge’s license to practice law has not been revoked, suspended, or subject to a probated suspension. A person must have resided in the district in which the judge was elected for two years next preceding the election and continue to reside in the district during the judge’s term.

• Effective date: The amendment to the Texas Constitution with respect to appellate court justices and judges would take effect January 1, 2022, and apply only to a chief justice or other justice of the supreme court, a presiding judge or other judge of the court of criminal appeals, or a chief justice or other justice of a court of appeals who is first elected for a term that begins on or after January 1, 2025, or who is appointed on or after that date. The amendment to the Texas Constitution with respect to district judges would take effect January 1, 2022, and apply only to a district judge who is first elected for a term that begins on or after January 1, 2025, or who is appointed on or after that date.

• Status: Referred to Jurisprudence on March 18.

Probate Proceedings

SB 156 – Transfer of Probate Proceedings to County in Which Executor/Administrator of Estate Resides (Companion: HB 2427)

• Summary: SB 156, filed by Sen. Charles Perry (R – Lubbock), would add section 33.1011 to the Estates Code to provide that, after the issuance of letters testamentary or administration to the executor or administrator of an estate, the court, on motion of the executor or administrator, may order that the proceeding be transferred to another county in which the executor or administrator resides if no immediate family member of the decedent resides in the same county in which the decedent resided. SB 156 also defines “immediate family member” to be the parent, spouse, child, or sibling of the decedent.

The companion bill in the House (HB 2427) was filed by Rep. Andrew Murr (R – Kerrville).

• Effective date: September 1, 2021.

• Bill Analysis: Senate Research Center

• Status of SB 156: On March 8, State Affairs conducted a public hearing on SB 156: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 00:33:00 mark. Those who registered a position or testified in favor of, on, or against SB 156 are listed here: Witness List. SB 156 was voted out of committee, without amendment, on March 15. The full Senate unanimously passed SB 156 on March 23. It has now been forwarded to the House and was referred to Judiciary & Civil Jurisprudence on March 29. ++

• Status of HB 2427: Referred to Judiciary & Civil Jurisprudence on March 16.

Qualified Immunity

HB 614 – Cause of Action for Deprivation of Certain Rights, Privileges, and Immunities under Color of Law

• Summary: HB 614, filed by Rep. Senfronia Thompson (D – Houston), would add Chapter 135 to the CPRC and provide for the following:

• A person may bring an action for any appropriate relief, including legal or equitable relief, against another person, including a public entity, who, under the color of law, deprived or caused to be deprived the person bringing the action of a right, privilege, or immunity secured by the Texas Constitution.

• A person must bring the action no later than two years after the date the cause of action accrues.

• Statutory immunity or limitation on liability, damages, or attorney’s fees does not apply to an action brought under the proposed law. Qualified immunity or a defendant’s good faith but erroneous belief in the lawfulness of the defendant’s conduct is not a defense to an action brought under the proposed law.

• A court shall award reasonable attorney’s fees and costs to a prevailing plaintiff. Further, if a judgment is entered in favor of a defendant, the court may award reasonable attorney’s fees and costs to the defendant only for defending claims the court finds frivolous.

• A public entity shall indemnify a public employee of the entity for liability incurred by and a judgment imposed against the employee in an action brought under the proposed law. However, a public entity is not required to indemnify a public employee of the entity if the employee was convicted of a criminal violation for the conduct that is the basis for the action brought under this chapter.

Note: Rep. Senfronia Thompson also filed HB 88, which would create a cause of action arising out of the acts of peace officers who, under the color of law, deprive or cause a person to be deprived of a “right, privilege, or immunity secured by the Texas Constitution.” Like HB 614, the proposed law expressly states that qualified immunity or a defendant’s “good faith but erroneous belief in the lawfulness of the defendant’s conduct” is not a defense under the proposed law.

• Effective date: September 1, 2021.

• Status of HB 614: Referred to Judiciary & Civil Jurisprudence on March 1.

• Status of HB 88: On March 25, Homeland Security & Public Safety conducted a public hearing on the bill for March 25: Notice. Those who are interested can watch the proceedings here: House Archive Video. Testimony about HB 88 begins around the 01:47:20 mark. Numerous individuals registered a position or testified in favor of, on, or against HB 88, but the witness list has not been posted to the Legislature’s website. However, handouts related to HB 88 can be reviewed here.

Redistricting

HB 1025 – Creation of Texas Redistricting Commission

• Summary: HB 1025, filed by Rep. Donna Howard (D – Austin), would create the Texas Redistricting Commission (“TRC”), which would be responsible for adopting redistricting plans for the election of the Texas House of Representatives, the Texas Senate, and members of the United States House of Representatives elected from the state of Texas following each federal census. The TRC would also be responsible for reapportioning judicial districts in the event the Judicial Districts Board failed to reapportion the districts on its own.

• Effective date: January 1, 2023.

• Note: Similar resolutions (SJR 43 and HJR 121) have been filed by Sen. Royce West (D – Dallas) and Rep. Rafael Anchia (D – Dallas), respectively. SJR 43 was referred to the Special Committee on Redistricting on March 11.

• Status of HB 1025: Referred to Redistricting on March 4.

• Status of HJR 121: Referred to Redistricting on March 15.

Separation of Powers

[Note: Legislators have filed several bills addressing executive and legislative powers following disaster or emergency declarations. The following is a representative sample of what has been filed.]

SJR 29 – Executive Power Following Disaster or Emergency Declaration

• Summary: SJR 29, filed by Sen. Drew Springer (R – Muenster), proposes a constitutional amendment requiring the governor to call the Legislature into special session following certain disaster or emergency declarations and specifies the powers of the Legislature in those special sessions. More specifically, SJR 29 proposes an amendment that would require the governor to call a special session: (1) if a state of disaster or emergency declared by the governor continues for more than 21 days; or (2) upon receipt of a petition from any member of the Legislature requesting legislative review of a state of disaster or emergency declared by the governor if the petition is signed by at least two-thirds of the members of the house of representatives and at least two-thirds of the members of the senate.

• SJR 29’s proposed constitutional amendment would authorize a special session in which the Legislature may:

• review an order, proclamation, or other instrument issued by the governor during the 90 days before the special session begins: (1) declaring a state of disaster or emergency in Texas; or (2) in response to a state of disaster or emergency in Texas declared by any federal, state, or local official or entity;

• terminate or modify an order, proclamation, or other instrument described above by passage of a resolution approved by majority vote of the members present in each house of the Legislature, which is not subject to the new constitutional provision;

• respond to the state of disaster or emergency, including by: (1) passing laws and resolutions the Legislature determines are related to the state of disaster or emergency; and (2) exercising the powers reserved to the Legislature under the Texas Constitution; and

• consider any other subjects stated in the Governor’s proclamation convening the Legislature.

• The enabling legislation for SJR 29, also filed by Sen. Drew Springer (R – Muenster), is SB 422. SB 422 would amend the Government Code to create an “Emergency Powers Board” to provide oversight to state-declared disasters (including a public health disaster). The Board would be composed of the governor, the lieutenant governor, the speaker of the House of Representatives, and the respective chairs of the Senate and House committees with primary jurisdiction over state affairs. Under SB 422, on or after the eighth day following the date the governor issues an executive order, proclamation, or regulation entered under this proposed amendment, the Board would be authorized to set an expiration date for the order, proclamation, or regulation. However, if the governor’s executive order, proclamation, or regulation has an expiration date that hasn’t been modified by the Board and is more than 21 days from date of the order, proclamation, or regulation, then the governor would be required to convene the Legislature in special session to determine whether any legislation is necessary to implement, modify, or repeal the order, proclamation, or regulation.

• Effective date: SB 422 would be effective on January 1, 2022 if the voters pass the constitutional amendment proposed by the Legislature.

• Status: SJR 29 and SB 422 were referred to State Affairs on March 9.

HJR 42 – Powers of the Governor and Legislature Regarding Emergency or Disaster Declarations

• Summary: HJR 42, filed by Rep. Steve Toth (R – Spring), would amend Section 28, Article I of the Texas Constitution to provide that no gubernatorial order or proclamation shall “violate or suspend constitutional rights”. HJR 42 would also amend Section 8, Article IV of the Constitution to require the governor to call a special session when the governor wants to renew an order or proclamation declaring a state of disaster or emergency. During a specially-called session for this purpose, the Legislature would be authorized to:

• renew or extend the state of disaster or emergency;
• respond to the state of disaster or emergency, including by: (a) passing laws and resolutions the Legislature determines are related to the state of disaster or emergency; and (b) exercising the powers reserved to the Legislature under the Constitution; and
• consider any other subjects stated in the governor's proclamation convening the Legislature.

• HJR 42 would also prohibit the governor from extending a state of disaster or emergency declaration beyond 30 days unless it is renewed or extended by the Legislature. [Note: Rep. Matt Krause (R – Fort Worth) has filed a similar resolution (HJR 47).]

• Status of HJR 42: Referred to State Affairs on March 1.

• Status of HJR 47: Referred to State Affairs on March 1.

Social Media

SB 12 – Complaint Procedures and Disclosure Requirements for Social Media Platforms and Censorship of User Expressions by an Interactive Computer Services

• Summary: SB 12, filed by Sen. Bryan Hughes (R – Mineola) (but is joined by multiple senators), would prohibit an “interactive computer service” (including social media platforms) from censoring a person, their expression or a user’s ability to receive the expression of another person, based on the viewpoint of the user or another and the viewpoint represented in the user’s expression or another person’s expression. SB 12 defines “expression” to include any word, music, sound, still or moving image, number or other communication. However, SB 12 would not prohibit a social media platform from censuring expressions that the “interactive computer service” can censor by federal law. It can censure content that is considered unlawful.

• SB 12 would apply to Texas residents, those who do business in Texas, and those who receive an expression in Texas. A user who successfully asserts a claim for a violation of the law adopted under SB 12 would be entitled to recover: (1) declaratory relief, including costs and reasonable and necessary attorney’s fees, and (2) injunctive relief.

• The amended version of SB 12 that was voted out of committee included, among other things, a definition of “social media platform,” requirements for platforms to disclose how content is selected and managed, and complaint procedure requirements.

• On the Senate floor, SB 12 was amended by stating that the changes to the law under SB 12: (1) “may not be construed to prohibit or restrict an interactive computer service from authorizing or facilitating a user’s ability to censor specific expression at the request of that user;” and (2) would not apply to “censorship of an expression that directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” ++

• Effective date: September 1, 2021. The changes in the law addressed in SB 12 would apply to an action taken on or after the effective date.

• [Note: Similar bills, HB 2188 and HB 2965, have been filed by Rep. Matt Shaheen (R – Plano) and Rep. Tony Tinderholt (R – Arlington), respectively. HB 2188 and HB 2965 were referred to State Affairs on March 15 and March 18, respectively.]

• Bill Analysis: Senate Research Center

• Status: On March 8, State Affairs conducted a public hearing on SB 12: Notice. Those who are interested can watch the proceedings here. Testimony begins around the 03:28:00 mark. Those who registered a position or testified in favor of, on, or against SB 12 are listed here: Witness List. SB 12, as amended, was voted out of committee on March 15 by a 6-3 vote. On April 1, the full Senate passed SB 12, as amended, by an 18-13 vote. The bill has now been referred to the House. ++

Texas Citizens Participation Act

HB 4166 – Persons Considered to Exercise Certain Constitutional Rights for Purposes of a Motion to Dismiss under the TCPA

• Summary: HB 4166, filed by Rep. Gene Wu (D – Houston), would amend section 27.003 of the CPRC and adding a section that provides as follows: “[o]nly a party to a legal action is considered to exercise the right of free speech, right to petition, or right of association in the bringing or defending of the legal action. A person hired by the party to assist the party in the legal action, including an attorney, expert witness, or paralegal, is not considered to exercise the right of free speech, right to petition, or right of association in connection with the bringing or defending of that legal action.”

• Effective date: September 1, 2021.

• Sen. Joan Huffman (R – Houston) has filed SB 530, which would add the following conduct to the list of actions constituting an offense of criminal harassment: “publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern.” For purposes of the criminal harassment offense, "matter of public concern" would have the same meaning as it does under the TCPA. SB 530 was referred to Jurisprudence on March 11. ]

• Status of HB 614: Referred to Judiciary & Civil Jurisprudence on March 29.++

Texas Sovereignty Act

HB 1215 – Texas Sovereignty Act (Companion: HB 2930)

• Summary: HB 1215, filed by Rep. Cecil Bell (R – Magnolia), would amend the Government Code and do the following:

• Establish a 12-member Joint Legislative Committee in Constitutional Enforcement as a permanent joint committee of the Texas Legislature to review specified federal actions that challenge the state's sovereignty and that of the people for the purpose of determining if the federal action is unconstitutional. The bill would authorize the committee to review any applicable federal action to determine whether the action is an unconstitutional federal action and establish the factors the committee is required to consider when reviewing a federal action. The bill would require the committee, no later than the 180th day after the date the committee holds its first public hearing to review a specific federal action, to vote to determine whether the action is an unconstitutional federal action and authorize the committee to make such a determination by majority vote.

• Require the Speaker of the House and the Lieutenant Governor to appoint the initial committee members no later than the 30th day following the bill’s effective date and would require the Secretary of State, no later than the 30th day following the bill’s effective date, to forward official copies of the bill to the President of the United States, the Speaker of the U.S. House of Representatives, the President of the U.S. Senate, and to all members of the Texas congressional delegation with the request that the bill be officially entered in the Congressional Record. The bill would require the Speaker and the Lieutenant Governor to forward official copies of the bill to the presiding officers of the legislatures of the several states no later than the 45th day following the bill’s effective date.

• Require the committee to report its determination that a federal action is an unconstitutional federal action to the Texas House of Representatives and to the Texas Senate during the current legislative session if the legislature is convened when the committee makes the determination, or the next regular or special legislative session if the legislature is not convened when the committee makes the determination. The bill would require each house of the legislature to vote on whether the federal action is an unconstitutional federal action and, if a majority of the members of each house determine that the federal action is an unconstitutional federal action, would require the determination to be sent to the Governor for approval or disapproval as provided by the Texas Constitution regarding the approval or disapproval of bills. The bill would establish that a federal action is declared by the state to be an unconstitutional federal action on the day the Governor approves the vote of the legislature making the determination or on the day the determination would become law if presented to the Governor as a bill and not objected to by the Governor. The bill would also require the Secretary of State to forward official copies of the declaration to the President of the United States, the Speaker of the U.S. House of Representatives, the President of the U.S. Senate, and to all members of the Texas congressional delegation with the request that the declaration of unconstitutional federal action be entered in the Congressional Record.

• Establish that a federal action declared to be an unconstitutional federal action under the bill’s provisions regarding such a legislative determination has no legal effect in Texas and prohibit such an action from being recognized by the state or a political subdivision of the state as having legal effect. The bill’s provisions regarding the enforcement of the United States Constitution expressly do not prohibit a public officer who has taken an oath to defend the United States Constitution from interposing to stop acts of the federal government which, in the officer’s best understanding and judgment, violate the United States Constitution.

• Authorize the Texas Attorney General to defend the state to prevent the implementation and enforcement of a federal action declared to be an unconstitutional federal action. The bill would authorize the Attorney General to prosecute a person who attempts to implement or enforce a federal action declared to be an unconstitutional federal action and to appear before a grand jury in connection with such an offense.

• Amend the CPRC to establish that any court in Texas has original jurisdiction of a proceeding seeking a declaratory judgment that a federal action effective in Texas is an unconstitutional federal action. The bill would entitle a person to declaratory relief if the court determines that a federal action is an unconstitutional federal action and would prohibit the court, in determining whether to grant declaratory relief to the person, from relying solely on the decisions of other courts interpreting the United States Constitution. The bill would also require the court to rely on the plain meaning of the text of the United States Constitution and any applicable constitutional doctrine as understood by the framers of the Constitution.

• Rep. Mike Schofield (R – Katy) filed the duplicate/companion bill: HB 2930.

• [Note: Similar bills were filed in 2017 and 2019. In 2017, HB 2338 was voted out of committee, but it never reached the House floor. HB 1347 was filed in 2019, but died in committee.]

• Effective date: If HB 1215 passes by a vote of two-thirds of all members elected to each chamber, the changes in the law would be effective immediately. Otherwise, the change in the law under HB 1215 would become effective on September 1, 2021.

• Status of HB 1215: Referred to State Affairs on March 4.
  
• Status of HB 2930: Referred to State Affairs on March 18.

Texas Tort Claims Act

HB 1089 – Liability of Governmental Units under the Texas Tort Claims Act

• Summary: HB 1089, filed by Rep. Ron Reynolds (D - Missouri City), would amend section 101.021 of the CPRC by adding subsection (3), which would waive governmental immunity for “property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the employee ’s scope of employment if: (a) the employee is a county jailer, peace officer, public security officer, reserve law enforcement officer, telecommunicator, or school marshal (as those terms are defined by Section 1701.001, Occupations Code); and (b) the employee would be personally liable to the claimant according to Texas law.
  
• HB 1089 would also amend section 101.023(b) of the CPRC to increase liability limits for a unit of local government (including a municipality) to money damages in a maximum amount of $250,000 for each person and $500,000.

• HB 1089 also amend 101.024 to authorize an award of exemplary damages if a governmental unit is found liable for personal injury or death under proposed section 101.021(3)

• Effective date: September 1, 2021. The changes in law under HB 1089 apply only to a cause of action that accrues on or after the effective date.

• Status: Referred to Judiciary & Civil Jurisprudence on March 4.

If you have any questions about these topics or any other matter that comes to mind, feel free to contact me. If I do not know the answer to your questions, I’ll do my best to find someone who does.