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.