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.