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 28th
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.
- 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.
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.
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.
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.
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.
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
[14th Dist.] 2016, pet. denied); Fleming & Associates, LLP v. Barton,
425 S.W.3d 560 (Tex. App.—Houston [14th 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.]
- Effective date: September 1, 2021.
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.
- 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.
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.
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.
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.
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.
- 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 120th 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.
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.
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.
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.
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.
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.
- 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.
- 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. ++
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.
- 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.
- 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.
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.
Damages
SB 207 – Recovery of Medical or Healthcare Expenses in Civil
Actions (Companion:
HB 1617)
- 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 and HB 1617 would apply to an
action commenced on or after the effective date.
- 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. ++
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.
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 (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.
- 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.
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.
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.
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.
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.
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.
- 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 30th 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 30th 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.
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.
- 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. ++
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.
- Effective date: September 1,
2021.
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.
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.
- 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.
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.
- 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. ++
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.
- Effective date: September 1,
2021.
- 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.
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.
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).]
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.
- 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. ]
Texas Sovereignty Act
HB 1215 – Texas Sovereignty Act (Companion: HB 2930)
- 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.
- [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.
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.
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.