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Texas Lawyers, Austin & San Antonio

Austin Bar Legislative Update: A membership benefit of the Austin Bar Association 19-Mar-2013

The bill filing deadline has come and gone, and we are over half way to the close of this year’s regular legislative session.  But in some respects, things are just getting started.

Some bills were filed only recently, others were assigned to committees, and others are being set for hearings.

Here’s what we’re keeping an eye on.

Interlocutory Appeals
Texas courts of appeals are split on whether there is appellate jurisdiction of an interlocutory appeal of a trial court’s denial of an Anti-Slapp motion.  These companion bills would make it clear that there is appellate jurisdiction.   

HB 2935 – Interlocutory Appeals of Denials of Motions to Dismiss under the Anti-SLAPP Statutes (Companion Bill: SB 1513)

Defendant’s Net Worth
For the past twenty or so years, evidence of a defendant’s net worth has been admissible as a factor in determining the appropriate amount of exemplary damages to be awarded against that defendant.  HB 3098, by Rep. Tryon Lewis (R – Odessa), would amend section 41.011 of the CPRC to eliminate net worth as an  as one of the elements.  “Evidence of the net worth of the defendant is privileged from discovery and inadmissible to the extent the evidence is sought or provided to support a claim for or the amount of exemplary damages.”

HB 3098 – Availability and Use of Evidence in Connection with Awards of Exemplary Damages

  • Status: Filed on March 7, 2013.      

Insurance–Must You Pay to Play?
Scofflaws who do not have auto liability insurance would be precluded from recovering non-economic damages or exemplary damages in suits for bodily injury, death or property damage arising from an automobile accident according to this bill:

HB 1774 – Liability Arising from Certain Automobile Accidents

Defamation Lawsuits–Not so Fast!
These companion bills would set up elaborate pre-suit conditions that must be satisfied, including making  a “timely and sufficient” request for “retraction, correction or clarification” within one year of when the defamatory statement was made.  Otherwise, the claimant faces significant limitations on his or her claim. 

HB 1759 – Correction, Clarification, or Retraction of Incorrect Information Published (a/k/a Defamation Mitigation Act) (Companion Bill: SB 1514)

HB 1759 and SB 1514, authored by Rep. Todd Hunter (R – Corpus Christi) and Sen. Rodney Ellis (D – Houston) respectively.

Divorce Court Forms
There has been much hue and cry over whether the Texas Supreme Court’s administrative decision to authorize standardized divorce court forms for use by pro se litigants was a good call or not. These companion bills would, among many other things, prohibit a court from “grant[ing] relief or enter[ing] an order using or relying on a standardized form that does not comply with substantive or procedural law.”

SB 1261 – Use of Standardized Forms in Civil Actions (Companion Bill: HB 2878)
by Sen. Jose Rodriguez (D – El Paso) and Rep. Richard Raymond (D – Laredo) respectively.

“Loser Pays” in Family Law Cases
This bill would apply the 2011 motion to dismiss provisions, which permit prevailing parties to collect attorney’s fees, to “tort claims joined to an action under the Family Code.”

HB 1808 – Award of Attorney’s Fees for Certain Dismissed Claims Joined to Family Code Actions
by Rep. Eddie Lucio, III (D – Harlingen),

Subrogation–Made-Whole Doctrine vs. Fortis Benefits
The Texas Supreme Court ruled in the 2007 Fortis Benefits case that a health insurer’s contractual subrogation rights trumped the made-whole doctrine.  These companion bills would change that to provide a statutory formula for a balanced division of the monetary recovery between the injured party and the party’s health insurer in those cases where there is not enough money to fully compensate the injured party.

HB 1869 – Contractual Subrogation Rights of Certain Insurers and Benefit Plan Issuers(Companion Bill: SB 1339) 
by  Rep. Walter T. Price, IV (“Four”) Price (R – Amarillo) and Sen. Robert Duncan (R – Lubbock)

Insurance:  Why Not?  Louisiana Does it.
This bill would change long standing Texas law to allow a plaintiff to include the defendant’s liability insurance company as a defendant in the case.

HB 3338 – Insurers as Proper Parties to Certain Actions for Damages
by Rep. Chris Turner (D – Arlington/Grand Prairie),

  • Status: Filed on March 8, 2013.

Texas Medical Liability Act–What is a Medical Liability Claim?
The Texas Supreme Court raised a few eyebrows last year when it decided in case of Texas West Oaks Hospital, L.P. v. Williams that the personal injury claim of a hospital employee against his hospital employer—for injuries sustained when he assaulted a psychiatric patient—was a health care liability claim. As such, the employee has to comply with all the requirements of the Texas Medical Liability Act in order to maintain a suit.  This bill would amend Ch 74 of the CPRC to make clear that a health care  liability claim “does not include claims arising from an injury to or death of a person who is not a patient, including employment and premises liability claims.”

HB 2644 – Scope of Health Care Liability Claims
by Rep. Chris Turner (D – Arlington/Grand Prairie),

  •  Status: Filed on March 6, 2013.

TWEET:  You’ve Been Sued!
No joke, the other day a federal court authorized service of suit on a foreign corporation by Facebook, reasoning that it was the modern thing to do. This bill would bring that hipness to Texas.

HB 1989 – Substituted Service of Citation Through a Social Media Website
by Rep Jeff Leach, R-Bedford

And You May Get More Email
If that email inbox is not yet full enough with spam, this bill would require the State Bar of Texas to provide lawyers’ names, bar card numbers and email addresses to an accredited continuing legal education provider affiliated with a state agency, including a public law school, so they can send you information regarding CLE activities.
HB 293 – Release and Use of Information Maintained by the State Bar of Texas(Companion Bill: SB 1796)
by Rep. Eddie Rodriguez (D – Austin) and Sen. Kirk Watson (D – Austin) respectively.

Insurance–Pre-Dispute Arbitration Clauses Would be Unenforceable in Some Policies
It’s the rage these days to include arbitration clauses in all manner of boilerplate contracts.  Last summer, the Texas Department of Insurance pondered whether Texas should allow that in certain insurance policies.  This bill would curtail that rage in auto and health policies.

HB 2956 – Prohibitions Against Pre-Dispute Arbitration Provisions in Certain Insurance and Health Benefit Plans
by Rep. John Smithee (R – Amarillo),

  • Status: Filed on March 7, 2013.

Lawsuit Lending
These competing and very different bills are part of a national push by some tort reformers to regulate lawsuit lending.

HB 1254 – Assignment of Rights in an Individual’s Legal Claim  (Companion Bill: SB 1283)
by Rep. Senfronia Thompson (D – Houston) and Sen. Kevin Eltife (R – Tyler)

HB 1595 – Regulation of and Disclosures Regarding Consumer Lending Lawsuit Transactions (Companion Bill: SB 927)
by Rep. Doug Miller (R – New Braunfels) and Sen. Joan Huffman (R – Houston) respectively, would subject consumer lawsuit lending transactions to Texas usury and regulatory laws in the same manner as a loan for personal, family, or  household use.

HB 1855 – Mandatory Disclosure of Third-Party Litigation Financing Agreements
by Rep. Doug Miller (R – New Braunfels),

Judicial Affairs
These gaggle of bills would affect the way we select and elect judges, and how the judicial campaigns may be funded. 

SB 103 – Elimination of Straight Ticket Voting for Judicial Offices
by Sen. Dan Patrick (R – Houston), would eliminate straight ticket voting for judicial offices.

SB 577 – Filling Vacancies in Judicial Offices by Appointment, Partisan Elections, and Nonpartisan Retention
SJR 34 – Constitutional Amendment Related to the Filling of Judicial Vacancies
by Sen. Robert Duncan (R – Lubbock),would create an “Appointment, Partisan Election, Nonpartisan Retention Election” process

HB 1126 – Public Financing of Campaigns for Appellate Judicial Offices
by Rep. Rafael Anchia (D – Dallas), a candidate could request public financing by filing a petition signed by a specific number of qualified voters who also make a minimum contribution to the candidate’s campaign.

HB 2772 – Interim Study Regarding the Method by Which Judges and Justices are Selected
by Rep. Justin Rodriguez (D – San Antonio), would create a joint interim committee on judicial to study and review the method by which district and appellate justices and judges are selected for office.

  • Status: Filed on March 7, 2013.

HJR 37 – Constitutional Amendment to Change the Terms of District Court Judges to Six Years
HJR 37, authored by Rep. Richard Raymond (D – Laredo), would increase the terms of district court judges from four years to six years.

HB 134 – Abolishment of the Court of Criminal Appeals/ HJR 36 – Constitutional Amendment to Abolish the Court of Criminal Appeals
by Rep. Richard Raymond (D – Laredo), would abolish the Court of Criminal Appeals and give jurisdiction of criminal appeals to the Texas Supreme Court

New Statewide Electronic Filing System for Courts
These bills, in one fashion or another, would establish an electronic filing system for courts statewide.  And filing fees would increase in most instances.  

SB 1147 – Authorizing Fees for Electronic Filing System Established by Rule or Order of the Supreme Court
by Sen. Royce West (D – Dallas), (would conditionally impose new filing fees)

HB 1375 – Exemptions for Solo Practitioner Attorneys from Electronic Filing Fees
by Harold Dutton, Jr. (D – Austin), would exempt solo practitioners from having to pay fees

HB 2302 – Establishment of a Statewide Electronic Filing System Fund (Companion Bill:SB 1146)
by Rep. Todd Hunter (R – Corpus Christi) and Sen. Robert Duncan (R – Lubbock)/Sen. Royce West (D – Dallas) (would impose new filing fees).

The Austin Bar Legislative Update is a membership benefit of the Austin Bar Association