Article of Interest

View from the Lege: Bills Pending in the 84th Legislature
By:  Jerry D. Bullard, Adams, Lynch & Loftin, P.C., Co-Chair, Legislative Liaison Committee State Bar of Texas Appellate Section

The 2015 legislative session is well underway.  As of Jan. 30, over 1,450 bills and resolutions had been introduced.  In most sessions, between 5,000 and 6,000 bills and resolutions are typically filed.  The deadline to file bills for this session is March 13, so there are many more in the pipeline.  The following is a summary of selected legislative proposals that have been filed thus far, some of which, if passed, could have a noticeable impact on the practice of civil trial and appellate law in Texas. 

Note: The bills summarized herein are based on the content of each bill at the time of submission.  As bills move through the legislative process, they are often revised or amended in committee or on the floor of the chamber debating the bill.  For a current status of the text of each bill and additional background information about the same, please visit Texas Legislature Online at http://www.capitol.state.tx.us and/or subscribe to the author’s e-newsletter by following the directions at the end of this article.

Causes of Action Involving Attorney’s Fee Agreements

HB 247 - Limitations on Certain Actions Arising Out of Attorney's Fee Agreements

HB 247, filed by Rep. Richard Raymond (D - Laredo), would place limitations on claims that could be brought under contingent fee agreements that comply with the statute (i.e., agreements that expressly state the method by which a fee is determined; that litigation and other expenses will deducted from the recovery; and whether litigation expenses and other expenses are deducted before or after the contingent fee is calculated).  The limitations in HB 247 would also apply to contingency fee agreements in which an attorney represents two or more clients and enters into an aggregate settlement agreement of the clients’ claims if the agreement expressly discloses: 1) the existence and nature of all claims or pleas involved; 2) the nature and extent of the participation of each client in the settlement; and 3) the amount of remittance to each client and the method by which the remittance will be determined.

HB 247 would permit a party to bring a claim arising out of an agreement subject to the statute only on the grounds that the agreement was obtained by corruption, coercion, force, fraud, or other undue means, or that the agreement was forged as provided by the Texas Penal Code.  Further, in a claim arising out of the settlement of matters involving multiple clients that is brought on grounds other than those permitted by HB 247, the settlement will “irrebuttably presumed” to be: 1) fully disclosed, read, understood, and voluntarily entered into by all parties to the agreement; 2) fair, accepted, reasonable, and made in the best interests of the parties by the parties or through their attorneys; and 3) final and not subject to subsequent litigation.

On the motion of a party, a court will be required to dismiss with prejudice any action involving claims arising out of an agreement that is subject to HB 247 if the action is brought on grounds other than those permitted by HB 247.

Constitutional Challenges to Texas Statutes

SJR 8 - Constitutional Amendment Authorizing Legislature to Require a Court to Provide Notice to the Attorney General of a Constitutional Challenge to State Statutes

SJR 8, filed by Sen. Judith Zaffirini (D - Laredo), would amend the Texas Constitution to specifically authorize the Legislature to (1) require a court to notify the attorney general of a challenge to the constitutionality of a Texas statute, and (2) prescribe a reasonable period after notice is provided during which the court may not enter a judgment holding a statute unconstitutional.  SJR 8 is likely in response to the 2013 decision by the Court of Criminal Appeals holding that Section 402.010(a)-(b) of the Government Code, which prevents a court from entering a final judgment until the AG is notified of a constitutional challenge to a statute, violated the separation-of-powers principles set forth in the Texas Constitution.  As you may recall, the Legislature passed legislation in 2011 (HB 2425) amending the Government Code to require courts to notify the AG when constitutional challenges to state statutes were raised.  The law was amended in 2013 to place the burden of notifying the court of the pleading that should be served on the AG on the party raising the constitutional challenge (SB 392).

Damage Awards

HB 419 - Federal Income Tax Liability for Damages Awarded in Civil Actions

HB 419, filed by Rep. Gene Wu (D – Houston), would amend Chapter 41 of the Civil Practice & Remedies Code to require a defendant to compensate a claimant for federal income tax liability arising out of a damages award.

HB 969 - Availability and Use of Certain Evidence in Connection with an Award of Exemplary Damages

HB 969, authored by Rep. Ken King (R - Hemphill), would amend Section 41.011 of the CPRC to eliminate “the net worth of defendant” as one of the elements to considered in determining the amount of exemplary damages.  Specifically, HB 3098 deletes “the net worth of the defendant” from the types of evidence to be considered by the trier of fact under Section 41.0011(a) and adds the following subsection (c) to that section: “Evidence of the financial condition or net worth of a party is not relevant for the purpose of supporting a claim for or the amount of exemplary damages.”

Decisions Based on Foreign Laws

HB 562 - Application of Foreign Laws and Foreign Forum Selection in Proceeding Involving Marriage, a Suit for Dissolution of a Marriage/Affecting Parent-Child Relationship

HB 562, filed by Rep. Jeff Leach (R - Plano), would prohibit a court or arbitrator in a family law matter from making a ruling or decision based on a foreign law if the application of that law would violate a right guaranteed by the United States Constitution or the constitution or a statute of Texas.  This bill is similar to HB 899, which is summarized below.

HB 670 - Application of Foreign Laws and Foreign Forum Selection in Texas

HB 670, filed by Rep. Dan Flynn (R - Canton), is similar to bills filed in 2011 and 2013 that failed to pass.  HB 670 would prohibit a court, arbitrator, or administrative adjudicator from basing “a ruling or decision” on “a foreign law,” or otherwise enforcing contract provisions that either require the application of a foreign law to a dispute or require parties to litigate their dispute in a forum outside of the United States if such provisions would violate a right guaranteed by the United States Constitution or the Texas Constitution.

HB 899 - Application of Foreign Laws and Foreign Forum Selection in Certain Family Law Proceedings

Like HB 670, HB 899, filed by Rep. Pat Fallon (R - Little Elm), is similar to failed bills filed in prior sessions that would prohibit a court or arbitrator in suits involving the dissolution of a marriage from making a ruling or decision based on a foreign law if the application of that law would violate a right guaranteed by the United States Constitution, the Texas Constitution, or a Texas statute.

Health Care Liability

HB 956 - Scope of a Health Care Liability Claim

HB 956, authored by Rep. Chris Turner (D - Arlington/Grand Prairie), is similar to the bill filed by Rep. Turner that failed to pass in 2013 (i.e., HB 2644) and is intended to be the legislative response to recent Supreme Court cases addressing the scope of “health care liability claims” under the Texas Medical Liability Act, including Texas West Oaks Hospital, L.P. v. Williams.  Specifically, HB 956 would amend the terms “claimant” and “health care liability claim” in Chapter 74 of the Civil Practice and Remedies Code (CPRC) in an effort to “clarify” the meaning of those terms.  Specifically, the term “claimant” would mean a “patient, including a deceased patient’s estate,” instead of “person, including a decedent’s estate.”  The term “claimant” would include “both the patient and the party seeking recovery of damages” in cases in which “a party seeks recovery of damages related to injury of another person who is a patient, or other harm to the patient.”  The bill would also amend the definition of “health care liability claim” to specify that such claims arise from “treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety directly related to health care…” [emphasis added] and that the term “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.”

Judiciary/Court Administration

SB 64 - Relating to Appellate Court Procedures and Deadlines in Civil Actions

SB 64, which is also known as the “Appellate Court Accountability Act,” was filed by Sen. Don Huffines (R – Dallas).  SB 64 would establish deadlines for the Supreme Court and intermediate courts of appeals to act on civil appeals. 

Supreme Court Deadlines

SB 64 would give the Supreme Court 90 days from the date of filing to deny a petition for review if the court does not request a response and 180 days if it does not request briefing.  The Court would be required to grant or deny the petition no later than 300 days after the petition is filed if the Court requests briefing. If the Court determined that the issues presented in a petition were related to issues in another case for which a petition has been granted and a decision pending, it could place the petition on hold until the Court decided the prior case. At such time, the Court would be required to publish the names of the parties to the petitions and the issues the Court has determined to be related.  Once a decision has been issued in the case for which a petition was placed on hold, the Court would have 30 days to grant or deny the petition.

The bill would also require the Supreme Court to issue a decision for all cases in which the Court grants a petition during the ”term of court” (i.e., the state’s fiscal year) in which the petition for review was granted. If a petition is granted in June or later, the Court could carry the case into the next term under “extraordinary circumstances” but must explain the nature of the “extraordinary circumstances” in the order granting the petition.  Any case carried over would have to be decided no later than Dec. 31 of the next term.

SB 64 would also require the Court to adopt written procedures that allocate responsibilities to individual justices. The chief justice would be required to enforce the procedures and deadlines against individual justices. Such enforcement options would include prohibiting a justice from participating in future oral arguments, reassigning opinions, prohibiting a justice from participating in a new case, and referring a justice to the State Commission on Judicial Conduct.

Intermediate Appellate Court Deadlines

SB 64 would require the courts of appeals to announce whether oral argument has been granted in a civil appeal no later than 60 days after the “final brief” is filed. Oral argument must be held no later than 120 days after the date the final brief has been filed, and the court must issue its decision no later than 90 days after oral argument (if granted) or the date the court announces that oral argument is denied.

The chief justice of each court of appeals would be required to enforce the deadlines in the same manner as the Chief Justice of the Supreme Court, as well as submit a quarterly report to the Chief Justice of the Supreme Court regarding the court’s compliance with the deadlines. If a court of appeals fails to comply, the Chief Justice may prohibit the filing of additional appeals in that court and order the transfer of appeals to other courts. If a court of appeals was prohibited from accepting new appeals, justices of that court would not be credited with state service for the time period during which the court would be prohibit from accepting appeals, and the Legislative Budget Board and Governor would be required to reduce the non-complying court’s budget and shift money to courts receiving transfers. By Jan. 31 of each year, the Chief Justice of the Supreme Court would be required to submit a compliance report with the Governor, Lieutenant Governor, and Speaker of the House.

HB 427/HJR 49 - Creation of Texas Redistricting Commission

HB 427 and HJR 49, 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 the 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 fails to reapportion judicial districts.

Term Limits

SJR 6 - Constitutional Amendment to Provide Qualifications for and Limit the Time that a Person May Serve in Certain Offices

SJR 6, which is another piece of legislation filed by Sen. Don Huffines (R – Dallas), proposes a constitutional amendment that would place terms limits on legislators (12 years) and would limit the amount of time that a legislator could serve as Speaker of the House of Representatives or as a committee chair.  SJR 6 would also impose term limits on almost the entire Texas judiciary.  For example, SJR 6 would bar Supreme Court justices and Court of Criminal Appeals judges from re-election if they had previously been elected to two full terms; however, the intermediate appellate court justices would not be subject to the term limits imposed under the current version of SJR 6.  SJR 6 would also apply to "every district office or office of a political subdivision of this state that is filled by popular election," which appears to include district judges, county court-at-law judges, justices of the peace, and county and district attorneys. All would be ineligible for re-election if they had served eight years or more. SJR 6 would become effective in 2016.

SJR 24 - Constitutional Amendment Limiting to Two the Number of Consecutive Terms for Which a Person Maybe Elected or Appointed to Hold Certain State Offices

SJR 24, filed by Sen. Kevin Eltife (R - Tyler), would prohibit a person who has been elected or appointed to serve two consecutive terms in an office listed in Article IV, Section 1 of the Texas Constitution (i.e., Governor, Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General), as well as “any other statewide elective office, other than a statewide judicial office,” from serving for a third consecutive term. However, SJR would not limit a person’s eligibility for election or appointment to serve nonconsecutive terms.

In summary, the 84th Legislature is considering several bills that could impact the judicial branch and the practice of law as a whole.  At this point, it is unclear whether the proposed bills will successfully move through the legislative process.  However, even if the bills fail to pass, practitioners should be aware of the legislation and the forces at work behind them because some, if not all, of the unsuccessful measures may be addressed via interim charges (i.e., between-session studies), resurrected during the 2016 legislative session, or both.

Note: As a service to interested members of the bench and bar, during each legislative session, the author produces an e-newsletter that includes summarized information and links to relevant bills to keep recipients up to date on what is happening at the Capitol and how proposed legislation might affect the practice of civil trial and appellate lawyers and the judiciary.  For those interested in receiving the e-newsletter, please contact Jerry D. Bullard at either of the following addresses:  jdb@all-lawfirm.com or j.bullard1@verizon.net.

Views and opinions expressed in eNews are those of their authors and not necessarily those of the Texas Young Lawyers Association or the State Bar of Texas.