By: Yost H.B. No. 828
73R2756 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the liability of individuals who participate in the
1-3 illegal drug market for injuries caused by the use of controlled
1-4 substances.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle C, Title 6, Health and Safety Code, is
1-7 amended by adding Chapter 486 to read as follows:
1-8 CHAPTER 486. LIABILITY FOR DISTRIBUTION
1-9 OF CONTROLLED SUBSTANCES
1-10 Sec. 486.001. DEFINITIONS. In this chapter:
1-11 (1) "Claimant" means a party, including a plaintiff,
1-12 counterclaimant, cross-claimant, or third-party claimant, seeking
1-13 recovery of damages.
1-14 (2) "Controlled substance" has the meaning assigned by
1-15 Section 481.002.
1-16 (3) "Distribute" has the meaning assigned by
1-17 Section 481.002.
1-18 (4) "Drug user" means an individual who has used a
1-19 controlled substance in violation of law.
1-20 (5) "Marihuana" has the meaning assigned by
1-21 Section 481.002.
1-22 (6) "Respondent" means a party, including a
1-23 counterdefendant, cross-defendant, or third-party defendant, from
1-24 whom a claimant seeks damages under this chapter.
2-1 (7) "Specified drug" means a narcotic drug, as that
2-2 term is defined by Section 481.002, and any substance described by
2-3 Section 481.033(3).
2-4 Sec. 486.002. PERSONS WHO MAY BRING ACTION. (a) A person
2-5 may recover damages under this chapter for personal injury, death,
2-6 or property damage caused by a drug user's use of a controlled
2-7 substance if the person:
2-8 (1) is a parent, legal guardian, child, spouse, or
2-9 sibling of the drug user, including a child of a drug user exposed
2-10 to a controlled substance in utero;
2-11 (2) is an employer of the drug user;
2-12 (3) has paid for or is liable to pay for, under a
2-13 contract of insurance or otherwise, medical services relating to
2-14 the use of the controlled substance, including drug treatment or
2-15 employee assistance services, for the drug user;
2-16 (4) has provided or is liable to provide medical
2-17 services relating to the use of the controlled substance, including
2-18 drug treatment or employee assistance services, to the drug user;
2-19 or
2-20 (5) is injured as a result of a wilful, reckless, or
2-21 negligent act or omission of the drug user, if that act or omission
2-22 was committed while the drug user was under the influence of a
2-23 controlled substance or was otherwise related to the use of a
2-24 controlled substance.
2-25 (b) A drug user may recover damages under this chapter for
2-26 personal injury, death, or property damage caused by the drug
2-27 user's use of a controlled substance to the extent authorized by
3-1 Section 486.005.
3-2 Sec. 486.003. PERSONS WHO MAY BE HELD LIABLE. (a) Except
3-3 as provided by Section 486.005, a claimant may bring an action to
3-4 recover damages against:
3-5 (1) a person who knowingly distributed, or knowingly
3-6 participated in the chain of distribution of, a controlled
3-7 substance that was used by the drug user; and
3-8 (2) a person who knowingly participated in the illegal
3-9 drug market relating to the controlled substance used by the drug
3-10 user in the geographic area in which the drug user used the
3-11 controlled substance during the period the drug user used the
3-12 controlled substance.
3-13 (b) For purposes of this section, the period during which
3-14 the drug user used the controlled substance is the period beginning
3-15 on the date on which the drug user first used the controlled
3-16 substance and ending on the date on which the cause of action under
3-17 this chapter accrued. In any action brought under this chapter, it
3-18 is presumed that the period during which the drug user used the
3-19 controlled substance began on the date two years before the date on
3-20 which the cause of action accrued, unless a party to the action
3-21 proves otherwise by clear and convincing evidence.
3-22 (c) For purposes of this section, the geographic area in
3-23 which the drug user used the controlled substance is each district
3-24 of the Texas House of Representatives in which the drug user
3-25 possessed or used the controlled substance and each district in
3-26 which the drug user resides, attends school, or is employed.
3-27 (d) For purposes of this section, a person participated in
4-1 the illegal drug market in the geographic area in which the drug
4-2 user used the controlled substance if it is shown by clear and
4-3 convincing evidence:
4-4 (1) the person committed any of the following acts in
4-5 a district of the Texas House of Representatives described by
4-6 Subsection (c):
4-7 (A) distributed or possessed a controlled
4-8 substance other than a specified drug or marihuana;
4-9 (B) possessed at least one-fourth ounce but less
4-10 than four ounces of a specified drug;
4-11 (C) distributed a quantity of a specified drug
4-12 less than one ounce;
4-13 (D) possessed at least one pound but less than
4-14 four pounds of marihuana;
4-15 (E) possessed at least 25 but fewer than 50
4-16 marihuana plants; or
4-17 (F) distributed a quantity of marihuana less
4-18 than one pound;
4-19 (2) the person committed any of the following acts in
4-20 a district of the Texas House of Representatives described by
4-21 Subsection (c) or a district that adjoins a district described by
4-22 Subsection (c):
4-23 (A) possessed at least four ounces but less than
4-24 eight ounces of a specified drug;
4-25 (B) distributed at least one ounce but less than
4-26 two ounces of a specified drug;
4-27 (C) possessed at least four pounds but less than
5-1 eight pounds of marihuana;
5-2 (D) possessed at least 50 but fewer than 75
5-3 marihuana plants; or
5-4 (E) distributed at least one pound but less than
5-5 five pounds of marihuana;
5-6 (3) the person committed any of the following acts in
5-7 a district of the Texas House of Representatives described by
5-8 Subdivision (2) or a district that adjoins a district described by
5-9 Subdivision (2):
5-10 (A) possessed at least eight ounces but less
5-11 than one pound of a specified drug;
5-12 (B) distributed at least two ounces but less
5-13 than four ounces of a specified drug;
5-14 (C) possessed at least eight pounds but less
5-15 than 16 pounds of marihuana;
5-16 (D) possessed at least 75 but fewer than 100
5-17 marihuana plants; or
5-18 (E) distributed at least five pounds but less
5-19 than 10 pounds of marihuana; or
5-20 (4) the person committed any of the following acts in
5-21 this state:
5-22 (A) possessed at least one pound of a specified
5-23 drug;
5-24 (B) distributed at least four ounces of a
5-25 specified drug;
5-26 (C) possessed at least 16 pounds of marihuana;
5-27 (D) possessed at least 100 marihuana plants; or
6-1 (E) distributed at least 10 pounds of marihuana.
6-2 (e) Notwithstanding any other provision of this chapter, a
6-3 person may not be held liable under this chapter if the person
6-4 shows, by a preponderance of the evidence, that the controlled
6-5 substance possessed by the person was possessed for personal use
6-6 only.
6-7 Sec. 486.004. DAMAGES. Except as provided by
6-8 Section 486.005, a person who may bring an action under this
6-9 chapter may recover:
6-10 (1) compensatory damages, including damages for:
6-11 (A) economic loss caused by the drug user's use
6-12 of the controlled substance, including the cost of treatment and
6-13 rehabilitation, medical expenses, loss of economic or educational
6-14 potential, loss of productivity, loss associated with absences from
6-15 school or work, and expenses for necessary support; and
6-16 (B) noneconomic loss caused by the drug user's
6-17 use of the controlled substance, including physical and emotional
6-18 pain, suffering, physical impairment, emotional distress, mental
6-19 anguish, loss associated with disfigurement, loss of enjoyment, and
6-20 loss of companionship and consortium;
6-21 (2) exemplary damages under Chapter 41, Civil Practice
6-22 and Remedies Code;
6-23 (3) reasonable attorney's fees; and
6-24 (4) costs, including reasonable expert witness fees.
6-25 Sec. 486.005. ACTION BY DRUG USER. (a) A drug user may
6-26 bring an action under this chapter only if:
6-27 (1) not later than the 180th day before the date on
7-1 which the suit is filed, the drug user personally discloses to a
7-2 law enforcement authority any information known to the drug user
7-3 regarding the drug user's sources of controlled substances;
7-4 (2) the drug user has not used any controlled
7-5 substance in violation of law after the 180th day before the date
7-6 on which the suit is filed; and
7-7 (3) the drug user does not use any controlled
7-8 substance in violation of law during the pendency of the action.
7-9 (b) A drug user may bring an action under this chapter only
7-10 against a person described in Section 486.003(a)(1).
7-11 (c) A drug user may not recover damages for noneconomic loss
7-12 or exemplary damages as described by Section 486.004(1)(B) or (2).
7-13 Sec. 486.006. EFFECT OF CRIMINAL CONVICTION; RES
7-14 JUDICATA; PRESUMPTION. (a) A conviction for a criminal offense is
7-15 res judicata as to any element of the offense that is relevant in
7-16 an action under this chapter.
7-17 (b) A conviction for an offense under Chapter 481 is prima
7-18 facie evidence that the convicted person was participating in the
7-19 illegal drug market during the two-year period before the date of
7-20 the act giving rise to the conviction.
7-21 Sec. 486.007. STATUTE OF LIMITATIONS. (a) Notwithstanding
7-22 Section 16.003, Civil Practice and Remedies Code, a claimant must
7-23 bring suit under this chapter not later than the second anniversary
7-24 of the date on which the claimant knew or should have known:
7-25 (1) of the personal injury, death, or property damage;
7-26 and
7-27 (2) that the personal injury, death, or property
8-1 damage was caused by the use of a controlled substance.
8-2 (b) Section 16.001, Civil Practice and Remedies Code,
8-3 applies to an action brought under this chapter. For purposes of
8-4 this subsection, "unsound mind," as that term is used in
8-5 Section 16.001, Civil Practice and Remedies Code, includes
8-6 incapacitation caused by the use of a controlled substance.
8-7 (c) If the respondent is convicted of a criminal offense
8-8 before the end of the limitations period established by Subsection
8-9 (a), the limitations period is extended until the 180th day after
8-10 the date on which the conviction is final.
8-11 Sec. 486.008. EX PARTE PREJUDGMENT ATTACHMENT. (a) A
8-12 claimant may file an ex parte motion requesting that the court
8-13 issue a prejudgment attachment order against any assets of the
8-14 respondent in an amount sufficient to satisfy a potential judgment
8-15 against the respondent.
8-16 (b) The court may grant the motion for a prejudgment
8-17 attachment order if the claimant establishes:
8-18 (1) a prima facie claim under this chapter against the
8-19 respondent; and
8-20 (2) that there is reason to believe that the
8-21 respondent will remove or dispose of the respondent's property for
8-22 the purpose of avoiding payment of a judgment under this chapter.
8-23 (c) Not later than the first day after the date an ex parte
8-24 prejudgment attachment order is issued under this section, the
8-25 claimant shall notify the respondent of the order and, if the
8-26 respondent has not been served with citation, shall serve the
8-27 citation. If the claimant is unable to notify the respondent and
9-1 serve citation, the claimant shall notify the court.
9-2 (d) A respondent against whom an ex parte prejudgment
9-3 attachment order has been issued is entitled to a hearing on the
9-4 order not later than the first day after a request for hearing is
9-5 made.
9-6 (e) The court shall revoke a prejudgment attachment order
9-7 issued under this section if the respondent:
9-8 (1) demonstrates that assets will be available for the
9-9 potential judgment; or
9-10 (2) posts a bond sufficient to cover the potential
9-11 judgment.
9-12 Sec. 486.009. EXECUTION OF JUDGMENT. (a) Except as
9-13 required by Article XVI, Sections 49 and 50, of the Texas
9-14 Constitution, a respondent against whom a judgment has been
9-15 rendered under this chapter may not exempt any property from
9-16 execution of the judgment.
9-17 (b) Assets of a respondent against whom a judgment has been
9-18 rendered under this chapter that are named in a forfeiture action
9-19 or have been seized for forfeiture by any governmental agency may
9-20 not be used to satisfy a judgment under this chapter unless the
9-21 assets have been released:
9-22 (1) after the termination of the forfeiture action; or
9-23 (2) by the agency that seized the assets.
9-24 Sec. 486.010. STAY OF ACTION FOR INVESTIGATION. On motion
9-25 by a governmental agency involved in the investigation or
9-26 prosecution of crimes relating to the distribution or use of
9-27 controlled substances, the court shall stay an action brought under
10-1 this chapter until the completion of a related criminal
10-2 investigation or prosecution.
10-3 Sec. 486.011. LAW ENFORCEMENT. A law enforcement officer or
10-4 agency, this state, or a person acting at the direction of a law
10-5 enforcement officer or agency of this state is not liable under
10-6 Section 486.003 for any conduct in furtherance of an official
10-7 investigation.
10-8 Sec. 486.012. INSURANCE COVERAGE. An insurance company may
10-9 not indemnify a respondent for liability for damages awarded under
10-10 this chapter and may not provide or pay for a defense on behalf of
10-11 the respondent.
10-12 Sec. 486.013. APPLICABILITY OF OTHER LAWS. (a) Except as
10-13 provided by Subsection (b), an action brought under this chapter is
10-14 subject to the laws of this state governing actions for the
10-15 recovery of damages, including Chapters 32 and 33, Civil Practice
10-16 and Remedies Code.
10-17 (b) Section 33.001, Civil Practice and Remedies Code, does
10-18 not apply to a claimant under this chapter.
10-19 SECTION 2. This Act takes effect September 1, 1993, and
10-20 applies only to conduct that occurred on or after that date.
10-21 Conduct that occurred before the effective date of this Act is
10-22 governed by the law in effect immediately before the effective date
10-23 of this Act, and that law is continued in effect for that purpose.
10-24 SECTION 3. The importance of this legislation and the
10-25 crowded condition of the calendars in both houses create an
10-26 emergency and an imperative public necessity that the
10-27 constitutional rule requiring bills to be read on three several
11-1 days in each house be suspended, and this rule is hereby suspended.