By:  Hirschi                                    H.B. No. 2701
       73R183 DLF-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to dismissal of an action in which an affidavit of
    1-3  inability to pay costs has been filed.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 13.001, Civil Practice and Remedies Code,
    1-6  is amended by amending Subsections (b) and (c) and by adding
    1-7  Subsections (d), (e), (f), (g), and (h) to read as follows:
    1-8        (b)  A court may not dismiss an action under Subsection
    1-9  (a)(1) if the affiant receives a governmental entitlement for which
   1-10  indigence is a condition of eligibility.
   1-11        (c)  A court may not dismiss an action under Subsection
   1-12  (a)(1) before the first regular hearing in the course of the action
   1-13  following service of process.
   1-14        (d)  In determining whether an allegation of poverty is true
   1-15  or false, the court may not consider:
   1-16              (1)  the value or existence of the affiant's
   1-17  residential homestead;
   1-18              (2)  income or assets owned by or in the possession of
   1-19  the affiant's spouse, unless the court finds that the income or
   1-20  assets are readily available to the affiant; or
   1-21              (3)  income or assets owned or in the possession of any
   1-22  person other than the affiant, unless the court finds that the
   1-23  person has a legal obligation to support the affiant.
   1-24        (e)  A court that dismisses an action under Subsection (a)(1)
    2-1  shall enter a written order of dismissal:
    2-2              (1)  stating that the court has dismissed the action
    2-3  because of a finding that the allegation of poverty in the
    2-4  affidavit is false; and
    2-5              (2)  including the specific factual grounds on which
    2-6  the court made that finding.
    2-7        (f)  In determining whether an action is frivolous or
    2-8  malicious, the court may consider whether:
    2-9              (1)  the action's realistic chance of ultimate success
   2-10  is slight;
   2-11              (2)  the claim has no arguable basis in law or in fact;
   2-12  or
   2-13              (3)  it is clear that the party cannot prove a set of
   2-14  facts in support of the claim.
   2-15        (g) <(c)>  An action may be dismissed under Subsection (a)(2)
   2-16  as frivolous or malicious either before or after service of
   2-17  process.
   2-18        (h)  Notwithstanding Section 22.004, Government Code, the
   2-19  supreme court may not adopt or amend rules in conflict with this
   2-20  section.  A court may not adopt or amend local rules in conflict
   2-21  with this section.
   2-22        SECTION 2.  This Act takes effect September 1, 1993, and
   2-23  applies only to an affidavit of inability to pay under Rule 145,
   2-24  Texas Rules of Civil Procedure, filed on or after that date.  An
   2-25  affidavit filed before the effective date of this Act is governed
   2-26  by the law in effect at the time the affidavit was filed, and that
   2-27  law is continued in effect for that purpose.
    3-1        SECTION 3.  The importance of this legislation and the
    3-2  crowded condition of the calendars in both houses create an
    3-3  emergency and an imperative public necessity that the
    3-4  constitutional rule requiring bills to be read on three several
    3-5  days in each house be suspended, and this rule is hereby suspended.