News from the Legislative Front: Opening Day, COVID-19 Protocols, the Final Report of the Texas Commission on Judicial Selection, and More
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Dear Friends and Colleagues,

The 87th Legislature convenes on Tuesday, January 12th. As of Friday, January 8th, 1,341 bills and resolutions have been pre-filed, which is a total that is well ahead of the pace for last session. Only a few bills have been added to the list since the December 22nd update—one on redistricting (HB 1025), another dealing with emergency disaster declarations (HJR 47), and one that makes you go “Hmmm…” (HB 928 - catfish marketing and sales). Also included are the initial sets of COVID-related protocols that apply to each chamber and the final report issued by the Texas Commission on Judicial Selection.

For those receiving the updates for the first time, I hope you find them informative and user-friendly. Information added or updated since the December 22, 2020 update is designated with a "++".
COVID-19 Protocols

For those who plan to visit the Capitol this week, here are the initial sets of opening day COVID-19 protocols for the Senate and House, as well as recommended COVID-19 considerations for House Member offices. Additional protocols and rules will likely be adopted by each chamber shortly after the session begins.
Pre-Filed Bills

Some of the more notable bills and resolutions filed thru January 8th are as follows:

Attorneys/Practice of Law

SB 247 – Discrimination Against or Burdening Certain Constitutional Rights of an Applicant or Holder of a Law License
  • 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.
  • 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.

Court Costs

SB 41 – Consolidation and Allocation of State Court Costs
  • 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.
  • Effective date: September 1, 2021.

Damages

SB 207 – Recovery of Medical or Healthcare Expenses in Civil Actions
  • 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.
  • Effective date: September 1, 2021. The changes in the law addressed in SB 207 would apply to an action commenced on or after the effective date.

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.

SB 232 – Service of Expert Reports for Health Care Liability
  • 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.
  • 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.

Insurance

HB 359 – Recovery under Uninsured and Underinsured Motorist Insurance Coverage
  • Summary: HB 359, filed by Rep. Charlie Geren (R – Fort Worth), 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.

Judiciary

HB 339 – Composition of the Court of Appeals Districts
  • Summary: HB 339, filed by Rep. Phil King (R – Weatherford), would eliminate overlapping intermediate appellate court jurisdictions for certain counties located in the Fifth, Sixth, and Twelfth Courts of Appeals. More specifically, HB 339 would provide 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).
  • Effective date: September 1, 2021.

Probate Proceedings

SB 156 – Transfer of Probate Proceedings to County in Which Executor/Administrator of Estate Resides
  • 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.
  • Effective date: September 1, 2021.

Qualified Immunity

HB 614 – Cause of Action for Deprivation of Certain Rights, Privileges, and Immunities under Color of Law
  • 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. Sen. Royce West (D – Dallas) filed a companion bill in the Senate: SB 161.
  • Effective date: September 1, 2021.

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.

Separation of Powers

HJR 15 – Executive Power Following Disaster or Emergency Declaration
  • Summary: HJR 15, filed by 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, HJR 15 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.
  • HJR 15’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 HJR 15, also filed by Rep. Drew Springer (R – Muenster), is HB 173. HB 173 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 HB 173, 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: HB 173 would be effective on January 1, 2022 if the voters pass the constitutional amendment proposed by the Legislature.
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).]

A Bill That Makes You Go “Hmmm….”++

HB 928 - Marketing and Sale of Catfish
  • Summary: HB 928, filed by Rep. Carl Sherman (D – DeSoto), would amend the Health and Safety Code and create administrative and civil penalties for food service establishments that sell catfish if the product is not, in fact, catfish (as defined under the statute). Specifically, HB 928 provides that “a food establishment that offers a food product for sale may represent and identify the product as catfish only if the product contains catfish and does not contain another fish similar to catfish.” The administrative and civil penalties for violating the statute would be an amount between $250 and $750, depending of the annual gross food sales of the establishment. Only the attorney general, the district or county attorney, or a municipal attorney could bring an action to recover civil penalties.
  • Effective date: September 1, 2021.

Appropriations Requests for the 2022-2023 Biennium

On August 18, 2020, Governor Abbott, Lt. Governor Patrick, and Speaker Bonnen asked all state agencies, the appellate courts, and institutions of higher education to submit legislative appropriations requests (LARs) that included a 5% budget cut for the 2021-2023 biennium. However, 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. For example, according to their respective LARs, if required to cut their budgets by 5%, the Supreme Court would be required to eliminate its law clerk program and the courts of appeals would be required to eliminate key staff positions, both of which would cause a reduction in the timely processing and disposition of appeals. Appropriations bills will be filed after the session begins.
Status of Interim Charges

In October and November 2019, Speaker Bonnen and Lt. Governor Patrick issued several interim charges for the House (House Charges) and the Senate (Senate Charges) covering a variety of topics. Those who are interested in perusing the entire list of current charges for each chamber can click on the links above. However, there are only a few noteworthy charges relating to the civil justice system, including the following charges for the House Committee on Judiciary & Civil Jurisprudence:
  • Conduct active oversight of all associated rulemaking and other governmental actions taken to ensure intended legislative outcome of all legislation, including the following:
  • HB 2899, which specifies that highway construction contractors are not liable for design defects. The committee is required to investigate whether the expansion of such policies to other areas of public/private contracting is in the best interest of the state.
  • HB 3809, which raises the statute of limitations for suit for injuries from a sexual assault of a child from 15 years to 30 years. The committee is required to study and deliberate ways to enhance protections for victims of sexual abuse; review other Texas laws relating to reporting and investigating incidents of workplace sexual harassment; and make recommendations to remove barriers to reporting and investigating incidents of sexual harassment and to make improvements to existing policies where necessary.
  • SB 2342, which increases the amount in controversy for certain courts and expedited proceedings, and makes reforms to jury requirements in order to improve access to courts. The committee is required to review the impact of the legislation on the administration of justice and access to courts.
  • Study the Rule Against Perpetuities as used by trusts and examine whether statutory changes are necessary and appropriate to make Texas more competitive and keep trust capital and estate planning business in Texas.
The pandemic prevented many House and Senate committees from conducting hearings on interim charges, including those related to the civil justice system. Although no formal hearings have been scheduled, the Judiciary & Civil Jurisprudence Committee has requested written submissions from state agencies, interested parties, and the public regarding its assigned charges. The Committee is also seeking information regarding the effects of COVID-19 in areas within its jurisdiction (e.g., how COVID-19 has impacted court caseloads and court staff; the effectiveness of using Zoom and other online platforms; and the ability of courts to acquire PPE). The deadline for all submissions is November 30, 2020. You can find more information about the Committee’s request here: Notice of Formal Request for Information.

Normally, committee reports on the interim charges are published prior to the start of the next legislative session. I’ll continue to monitor the Legislature and advise everyone if/when hearings are scheduled and final reports are released to the public.
Texas Commission on Judicial Selection++

The Texas Commission on Judicial Selection, which was created by the 86th Legislature to study and review the method by which statutory county court judges, district judges, and appellate justices are selected for office, has completed its work. The Commission has published its final report, which included the following legislative recommendations:
  • End partisan judicial selection (vote: 8-7; 6 of the negative votes were cast by legislators);
  • Increase the minimum qualifications for judges (vote: 12-1, with 2 abstentions); and
  • Implement rules that further regulate the role of money in judicial elections (vote: 12-3)
The Commission declined to recommend the creation of a non-partisan judicial election system (vote: 9-5, with 1 abstention); a judicial appointment system (vote: 14-0, with 1 abstention); and term limits for all judges (vote: 13-0, with 2 abstentions).

The Commission could not make a recommendation one way or the other about the creation of a judicial selection commission (vote: 7-7, with 1 abstention).

You can read the Commission’s final report and review all meetings and materials submitted to the Commission by visiting its website.
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.
Sincerely,

Jerry D. Bullard
Chair, State Bar of Texas Appellate Section
Co-Chair, Legislative Liaison Committee, State Bar of Texas Appellate Section

Jerry D. Bullard*
Adams, Lynch & Loftin, P.C.
3950 Highway 360
Grapevine, Texas 76051
O: 817.552.7742
F: 817.328.2942
email: jdb@all-lawfirm.com
* Board Certified - Civil Appellate Law
Texas Board of Legal Specialization

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