Some of you have inquired as why we have not written lately. Truth be known, we have had a serious case of writer’s cramp. We’re well now, and avail ourselves of this opportunity to uncover shenanigans going on in the Texas Legislature. The following is a summary of pending bills that impact tort recovery and civil justice system in Texas. Remember, we don’t author the bills, we just report them.
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1. SB1119 “Paid or Incurred”
Sen. Hinojosa has introduced SB 1119 which is a bill that seeks to repeal CPRC §41.0105 for all cases except medical malpractice cases. In other words, in non-medical malpractice cases, a personal injury plaintiff would be able to recover from a tortfeasor those health care expenses charged by the health care provider even if the plaintiff had neither paid the charges or incurred liability for them (eg: by reduction or write off). The bill further seeks to clarify that the “paid or incurred” limitation does not apply to future medical expenses. This bill is in substantially the same form as last session when it passed almost unanimously in both chambers and was later vetoed by Governor Perry.
2. SB 1657 “Entergy fix”
SB 1657 is being sponsored in the Senate by several legislators from both parties. This bill seeks to clarify Section 406.121 of the Texas Labor Code with regard to the definition of “general contractor.” The essence of this bill is that it makes clear that a property owner is not a general contractor for the purpose of the Section 406.121 extension of the Workers’ Compensation immunity for employers. The bill was heard yesterday and left pending.
3. HB 198 “Anti-Computer Evaluation bill”
HB 198 would prohibit insurers from settling or adjusting a claim that includes noneconomic damages without a complete review of the claim by an individual who is authorized to evaluate the claim based on the facts of the claim and the individual’s judgment. The proposed legislation also provides that it is an unfair method of competition or an unfair or deceptive act or practice to evaluate a claim that includes noneconomic damages for an insurer to use an artificial intelligence application or other computer software application; or any other method without the complete review of the claim by an individual who is authorized to evaluate the claim based on the facts of the claim and the individual’s judgment.
4. HB 600 “JP Appeals”
HB 600 was filed by Rep. Hughes and provides that the de novo appeal of a judgment of a small claims court is to a county court or county court at law, and provides for an appeal of a final judgment from a county court or county court at law to the court of appeals
5. SB 1201 “Professional Liability Affidavit”
SB 1201 was filed by Sen. Carona and would amend Section 150.002 of the Texas Civil Practices Code. This section relates to the current requirement of an affidavit to accompany a suit against a licensed or professional architect, land surveyor or professional engineer. The proposed change would increase the requirements on the competence of the affiant from someone holding the same license and practicing in the same area as the defendant to also requiring that the affiant establish that he or she is knowledgeable in the area for which they offer testimony, based upon their knowledge, skill, experience, education, training and practice.
6. HB 1174 “City Sewer bill”
This bill, offered by Rep. Hartnett, would require that municipalities pay damages arising from the backup of its sewer system regardless of whether the liability for the event was waived under the tort claims act.
7. HB 1635 “RCLA/Foreclosure”
The Texas Residential Construction Commission has been recommended for sunset. This bill goes a step further and would affirmatively abolish the Commission. The bill would further exempt from liability any builder hired by a lender to complete the construction of a foreclosed home on that part of the structure which it did not construct. The builder would remain liable for the construction it completed.
8. SB 992 “Courts bill”
SB 992 is an effort to effectuate and harmonize SB 1204 (as it existed at the end of last session) and the recommendations made by the State Bar Task Force on Court Administration. The bill contains a number of provisions, however, the most prominent of these are: (1) the “Judge is a Judge” provision which would allow the parties and the courts to agree on the reassignment of a case to any judge within the County regardless of jurisdiction; (2) the conversion of district courts to courts of general jurisdiction. This would allow each county to determine how to best handle its docket without seeking approval from the legislature; (3) the conversion of certain county courts at law to district courts. This bill calls for a study on the costs of converting those county courts at law which do not “roll back” their civil jurisdiction to $200,000 to district courts; (4) the court resources provision. This establishes a mechanism by which courts can request additional resources for cases with particularly complex needs. No request could be considered without the approval of the presiding trial judge. There are numerous other provisions as well.
9. SB 394 “Worker’s Compensation Right to Counsel”
Sen. Lucio proposes that the trial court judge be authorized to appoint an attorney at the request of the claimant to represent the claimant in a trial initiated by an insurance carrier. The insurance carrier would be liable for the claimant’s attorney’s reasonable and necessary fees in accordance with Texas Labor Code Section 408.221(c) on any issue on which the claimant prevails. Under SB 394 the claimant’s court appointed attorney cannot bill for more hours than the hours the carrier’s attorney bills. However, there is no limit as to the hourly rate the claimant’s attorney can charge. SB 394 would make the subsequent injury fund liable for the carrier’s attorney’s reasonable and necessary fees in accordance with Texas Labor Code Section 408.221(c-1) on any issue on which the insurance carrier prevails. SB 394 would also amend Texas Labor Code Section 408.221(b) & (I) and add a new Subsection (c-1). It appears new Subsection (c-1) would allow the court appointed claimant’s attorney to recover some of his attorney’s fees from the subsequent injury fund on any issue on which the insurance carrier prevails. The Bill would exempt an award of court appointed claimant’s attorney’s fees from the Workers’ Compensation Commissioner’s rules.
10. SB 516 “Vexatious litigants”
SB 516 changes existing law by requiring the plaintiff to file with the petition an affidavit essentially stating that the plaintiff is not a vexatious litigant. A plaintiff that cannot make the required affidavit can only file the lawsuit if a local administrative judge determines that the new lawsuit has merit and has not been filed for the purpose of harassment or delay. A defendant can still move the court to determine that the plaintiff is a vexatious litigant. There is no discussion regarding the impact of the statute of limitations on the process. The facts to which the Plaintiff must swear (that he/she/it has not filed five or more lawsuits in the prior seven years which have been finally determined adversely to the plaintiff; permitted to remain pending at least two years without having been brought to trial or hearing; or determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure.)
11. SB 1551 “OCIP bill”
SB 1551 establishes a scheme to regulate the use of a “Consolidated Insurance Program” which is more often referred to as either an “Owner Controlled Insurance Program” or a “Contractor Controlled Insurance Program.” This bill sets out a number of requirements for a “principal” (which is broadly defined as the person who procures the insurance policy) in connection with their use of the insurance program with the contractors enrolled in the insurance program and who has entered into either a construction contract or a professional services contract. It appears directed to protect contractors and sub-contractors from being forced into prejudicial OCIP agreements. It also limits indemnity and additional insured provisions and restricts subrogation rights.
12. SB 392 “No Straight Ticket Voting for Judges”
SB 392 seeks to remove judicial officers from “straight ticket” voting. Essentially, it would require that judicial races be treated differently from all other elected positions and would not allow the ballot cast for all candidates of a particular party to be counted as a vote in a judicial election. There have been efforts made to revise this bill to include a provision which would mandate that the judicial races be reviewed prior to any ballot being (even the straight ticket ballot) cast.
13. SB 317 “No Straight Ticket Voting”
Sen. Wentworth’s bill, SB 317, would eliminate the allowance of straight ticket voting for all offices, judicial and other wise.
14. HB 2702 — would require Legislative oversight / approval of any Rules of Civil Procedure promulgated by the Texas Supreme Court.
15. SB 1384 — eliminates the requirement that both sides agree that an interlocutory appeal should be allowed on claims involving controlling questions of law where there are substantial grounds for difference of opinion. In other words, the denial of a summary judgment motion could be immediately appealed.
16. HB 2506 — institutes a five year limitation period for all claims arising out of any permit issued by unit of local government.
17. HB 2575 — misdemeanor theft would no longer be a disqualification for service on a grand criminal / civil jury. That’s good news for defendants going to trial on charges of misdemeanor theft.