But the Governor
immediately called the legislature back into special session. And we do
mean immediately—faster than gossip in a small town.
Observed one capitol wag: “Damn! That was a one
drink interim.”
Subrogation — Made-Whole Doctrine vs. Fortis Benefits HB
1869 – Contractual Subrogation Rights of Certain Insurers and Benefit Plan
Issuers
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. TEX-ABOTA,
TADC and TTLA registered support for the bill. TAPA
and some other tort reform groups also came out in support of the bill. Some
health insurers registered against it, but a compromise was eventually
reached.
The bill passed both chambers and has been signed by the
Governor. The effective date is Jan 1, 2014.
$$$: Judicial Funding and Pay Raise for
Judges: SB
1/HB
1 – General Appropriations Bills/Judicial Funding
Twelve
percent pay raise for judges and additional funding for intermediate appellate
courts are included in these bills that passed and have been sent to
the Governor.
(NOTE: a bill that would have allowed future COL
raises for judges died: HB
1710 – Cost-of-Living Increase in Compensation for District Judges and
Longevity Pay for Certain Judges and Justices)
$$$: JACK POPE Bill–Funds for Basic Legal Services: HB
1445 – Funds for Basic Civil Legal Services
This
bill will generate additional funding for basic civil legal services by
directing certain civil penalties and civil restitution amounts recovered by
the attorney general in an action arising from a violation of consumer
protection, public health, or general welfare laws to the judicial fund for
programs approved by the Texas Supreme Court.
The
bill passed both chambers and has been signed by the Governor.
Attorney Disclosures Required in Divorce Cases: HB
3470 – Disclosures by an Attorney Before Accepting Representation in Marriage
Dissolution Cases
This bill would require an attorney to disclose information
about alternative dispute resolution to the prospective client before the
attorney may accept the divorce case. The bill directs the State Bar to
promulgate the form disclosure.
The bill was voted out of the JCP committee, but subsequently
died. RIP.
Judicial Selection SJR
34 Duncan, SB
577 by Duncan
The Senate State Affairs Committee heard testimony regarding
this proposed constitutional amendment/bill which would change selection of
appellate judges to appoint/elect/retain, but the measures did
not emerge from committee.
Dead. RIP.
Judicial Selection Gets Interim Study:
2772 – Interim Study Regarding the Method by Which Judges and Justices are
Selected
While the judicial selection bill died, HB 2772 passed. It
creates a joint interim committee on judicial selection (consisting a 5 members
from both the House and Senate) to study and review the method by which
statutory county court, district and appellate justices and judges are selected
for office. The joint committee would be required to report its findings
and recommendations by January 6, 2015.
The bill passed and has been sent to the Governor.
$$$: Bill Will Increase Civil Court
Filing Fees to Pay for State-wide E-filing: HB
2302 – Establishment of a Statewide Electronic Filing System Fund
This bill, heard in the House JCP Committee, would create a
statewide court electronic filing system fund and raise certain civil and
probate court filing fees to fund the account. The committee substitute
laid out in the hearing increased the
civil court and probate filing fee to $20. Criminal court costs and
JP court costs would also be increased. No one registered against the bill, and
it was eventually voted favorably out of committee.
Bill
passed both chambers and has been sent to the Governor. (NOTE: a bill
to exempt sole practitioners from this new fee died: HB
1375 – Exemptions for Solo Practitioner Attorneys from Electronic Filing Fees).
Barratry: New Civil Penalties:
1711 – Civil Penalties for Prohibited Barratry
This bill modifies the 2011 barratry statute to permit the
recovery of a $10,000 civil penalty (in addition to actual damages, attorney’s
fees, and the fees and expenses paid to the barratrous lawyer) for someone who
entered into a legal services contract procured by barratry. The bill
also repeals certain barratry-related provisions in the Penal Code (i.e.,
sections 38.12(d) and (e)) that the committee considered to be unconstitutional
(e.g., those that applied to criminal lawyers and certain types of attorney
correspondence). Under the current law, a person who does not sign a contract
for legal services procured by barratry could recover a $10,000 penalty while a
person who did sign such a contract could recover specified damages, but not a
$10,000 civil penalty.
Interestingly, barratry
claims would be exempt from the new expedited action rules set forth in the
Texas Rules of Civil Procedure.
The bill passed both chambers and has
been sent to the Governor.
The Mulligan Bill–Defamation Retraction Act: HB
1759 – Correction, Clarification, or Retraction of Incorrect Information
Published (a/k/a Defamation Mitigation Act)
This bill, which was heard in the House JCP, imposes significant
pre-suit conditions on defamation suit filings and limits recoverable damages in some situations.
Major media outlets testified in favor of the bill. No one testified
against it.
After substantial changes in the senate, the bill passed and
has been forwarded to the Governor. (Note: the bill
as passed includes an abatement procedure when the defendant does not receive a
request for correction, clarification, or retraction).
Interlocutory Appeal of Anti-Slapp Motion HB
2935 – Interlocutory Appeals of Denials of Motions to Dismiss under the
Anti-SLAPP Statutes
This bill, which would make clear that appellate courts have
jurisdiction to hear an interlocutory appeal of a denial of an
anti-slapp motion to dismiss, was heard in the House JCP Committee. Characterized
by supporters as a “clean-up bill,” no one testified in
opposition.
The bill passed both chambers and has
been sent to the Governor.
Asbestos/Silicosis Claims Can be Dismissed Without Prejudice: HB
1325 – Dismissal of Certain Actions Arising from Exposure to Asbestos and
Silicosis
Among other things, the MDL court may dismiss the action on its
own motion unless a claimant shows good cause why the cause of action should
not be dismissed. Dismissal would be without prejudice. If a claimant
subsequently suffers an asbestos or silica-related injury, the claimant may
re-file the claim under the law as it existed on the date the case was
originally filed.
The bill passed both chambers and has
been signed by the
Governor.
Defendant’s Net Worth HB
3098 – Availability and Use of Evidence in Connection with Awards of Exemplary
Damages
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.”
This
bill failed to get a hearing in JCP. Dead. RIP.
Insurance–Must You Pay to Play? HB
1774 – Liability Arising from Certain Automobile Accidents
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.
This
bill never received a hearing. Dead. RIP.
Divorce Court Forms SB
1261 – Use of Standardized Forms in Civil Actions (Companion
Bill: HB
2878)
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.”
The bill did not receive a hearing or committee vote. Dead. RIP.
“Loser Pays” in Family Law Cases HB
1808 – Award of Attorney’s Fees for Certain Dismissed Claims Joined to Family
Code Actions
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.”
The
bill never got a committee hearing or vote.
Dead. RIP.
Insurance: Why Not? Louisiana Does it. HB
3338 – Insurers as Proper Parties to Certain Actions for Damages
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.
The
bill was referred to House JCP, but never received a hearing or committee vote.
Dead. RIP.
Texas Medical Liability Act–What is a Medical Liability Claim? HB
2644 – Scope of Health Care Liability Claims
The Texas Supreme Court raised a few eyebrows last
year when it decided in 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 was assaulted by 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.”
This bill received a hearing on April 22 in the House
JCP committee, but was not voted out of committee. Dead. RIP.
TWEET: You’ve Been Sued! HB
1989 – Substituted Service of Citation Through a Social Media Website
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.
This
bill never received a hearing or a committee vote. Dead. Dead. Dead. RIP.
Texas is 48th State to Adopt the Uniform Trade Secrets Act: SB
953 – Adoption of the Uniform Trade Secrets Act
This bill defines what is protectable as a trade secret, what
constitutes trade secret misappropriation, and describes the types of remedies
(including recoverable damages) that are available to a claimant.
The bill passed both chambers and has
been signed
by the Governor. It takes effect on
September 1, 2013.
Insurance–Pre-Dispute Arbitration Clauses Would be
Unenforceable in Some Policies HB
2956 – Prohibitions Against Pre-Dispute Arbitration Provisions in Certain
Insurance and Health Benefit Plans
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.
The
bill received a hearing, but never emerged from committee.
Bill is dead. RIP.
Lawsuit Lending HB
1595 – Regulation of and Disclosures Regarding Consumer Lending Lawsuit
Transactions (Companion Bill: SB
927)
1595 – Regulation of and Disclosures Regarding Consumer Lending Lawsuit
Transactions (Companion Bill: SB
927)