1-1 By: Montford, et al. S.B. No. 2
1-2 (In the Senate - Filed January 25, 1993; January 25, 1993,
1-3 read first time and referred to Committee on Economic Development;
1-4 January 26, 1993, reported favorably by the following vote: Yeas
1-5 11, Nays 0; January 26, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Parker x
1-9 Lucio x
1-10 Ellis x
1-11 Haley x
1-12 Harris of Dallas x
1-13 Harris of Tarrant x
1-14 Leedom x
1-15 Madla x
1-16 Rosson x
1-17 Shapiro x
1-18 Wentworth x
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the application of the doctrine of forum non conveniens
1-22 to certain actions.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. Chapter 71, Civil Practice and Remedies Code, is
1-25 amended by adding Subchapter D to read as follows:
1-26 SUBCHAPTER D. FORUM NON CONVENIENS
1-27 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a
1-28 claimant who is not a legal resident of the United States, if a
1-29 court of this state, on written motion of a party, finds that in
1-30 the interest of justice an action to which this section applies
1-31 would be more properly heard in a forum outside this state, the
1-32 court may decline to exercise jurisdiction under the doctrine of
1-33 forum non conveniens and may stay or dismiss the action in whole or
1-34 in part on any conditions that may be just.
1-35 (b) With respect to a claimant who is a legal resident of
1-36 the United States, on written motion of a party, an action to which
1-37 this section applies may be stayed or dismissed in whole or in part
1-38 under the doctrine of forum non conveniens if the party seeking to
1-39 stay or dismiss the action proves by a preponderance of the
1-40 evidence that:
1-41 (1) a forum outside this state is a more appropriate
1-42 forum that:
1-43 (A) offers a remedy for the causes of action
1-44 brought by a party to which this section applies;
1-45 (B) as a result of the submission of the parties
1-46 or otherwise, can exercise jurisdiction over all parties and claims
1-47 properly joined in the action by the claimant; and
1-48 (C) would provide a place of trial that is fair,
1-49 reasonable, and convenient to the parties;
1-50 (2) maintenance of the action in the courts of this
1-51 state would work a substantial injustice to the moving party and
1-52 the balance of the private interests of all the parties and the
1-53 public interest of the state predominates in favor of the action
1-54 being brought in the other forum; and
1-55 (3) the stay or dismissal would not, in reasonable
1-56 probability, result in unreasonable duplication or proliferation of
1-57 litigation.
1-58 (c) No stay or dismissal shall be granted under Subsection
1-59 (b) until all properly joined defendants file with the clerk of the
1-60 court a written stipulation that each defendant will:
1-61 (1) submit to the personal jurisdiction of the courts
1-62 of the other forum; and
1-63 (2) waive any defense based on the statute of
1-64 limitations applicable in the other forum with respect to all
1-65 causes of action brought by a party to which this section applies.
1-66 (d) The court may, on motion and notice to the parties,
1-67 modify an order granting a stay or dismissal under this section and
1-68 take any further action in the proceeding as the interests of
2-1 justice may require. If the moving party violates a stipulation
2-2 required by Subsection (c), the court shall withdraw the order
2-3 staying or dismissing the action and proceed as if the order had
2-4 never been issued. Notwithstanding any other law, the court shall
2-5 have continuing jurisdiction for the purposes of this subsection.
2-6 (e) A request for stay or dismissal under this section is
2-7 timely if it is filed not later than the time required for filing a
2-8 motion to transfer venue of the action. Otherwise, any objection
2-9 under this section to the court's exercise of jurisdiction is
2-10 waived. The court may rule on a motion filed under this section
2-11 only after a hearing with notice to all parties not less than 21
2-12 days before the date specified for the hearing. The court shall
2-13 afford all of the parties ample opportunity to obtain discovery of
2-14 information relevant to the motion prior to a hearing on a motion
2-15 under this section. The moving party shall have the responsibility
2-16 to request and obtain a hearing on such motion at a reasonable time
2-17 prior to commencement of the trial, and in no case shall the
2-18 hearing be held less than 30 days prior to trial.
2-19 (f) A court may not stay or dismiss an action pursuant to
2-20 Subsection (b):
2-21 (1) if a claimant in the action who is properly joined
2-22 is a legal resident of this state;
2-23 (2) if a party opposing the motion under Subsection
2-24 (b) alleges and makes a prima facie showing that an act or omission
2-25 that was a proximate or producing cause of the injury or death
2-26 occurred in this state. Notwithstanding Subsection (h), said prima
2-27 facie showing need not be made by a preponderance of the evidence
2-28 and shall be deemed to be satisfied if said party produces credible
2-29 evidence in support of the pleading, which evidence need not be in
2-30 admissible form and may include affidavits, deposition testimony,
2-31 discovery responses or other verified evidence;
2-32 (3) in an action brought under the federal Employers'
2-33 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety
2-34 Appliance Act (45 U.S.C. Section 1 et seq.) or the federal Boiler
2-35 Inspection Act (45 U.S.C. Section 22 et seq.;
2-36 (4) in an action in which it is alleged that the
2-37 personal injury or death was caused by a means of air
2-38 transportation designed, manufactured, sold, maintained, inspected,
2-39 or repaired in this state or occurred while traveling in or on a
2-40 means of air transportation during a trip originating from or
2-41 destined for a location in this state; or
2-42 (5) in an action in which it is alleged that harm was
2-43 caused by exposure to asbestos fibers.
2-44 (g) This section does not apply if the personal injury or
2-45 death that is the subject of the cause of action resulted from a
2-46 violation of the laws of this state or of the United States,
2-47 including but not limited to exposure to a substance referred to in
2-48 Section 33.013(c)(3) that was transported out of this state or the
2-49 United States in violation of the laws of this state or the United
2-50 States.
2-51 (h) The burden is on the party opposing a motion under
2-52 Subsection (b) to assert and prove by a preponderance of the
2-53 evidence an exception provided by Subsection (f), if applicable.
2-54 If a party opposing a motion under Subsection (b) fails to timely
2-55 raise an exception under Subsection (f), that party's right to
2-56 raise such exception is waived, but such waiver does not relieve
2-57 the moving party as to any requirement of this section. An
2-58 exception filed not less than seven days before the hearing on a
2-59 motion made under Subsection (b) shall be deemed to be timely.
2-60 (i) Any time limit established by this section may be
2-61 extended by the court at the request of any party for good cause
2-62 shown.
2-63 (j) In this section:
2-64 (1) "Legal resident" means a person who intends the
2-65 specified political subdivision to be his permanent residence and
2-66 who intends to return to the specified political subdivision
2-67 despite temporary residence elsewhere or despite temporary
2-68 absences, without regard to the person's country of citizenship or
2-69 national origin. The term does not include a person who adopts a
2-70 residence in the specified political subdivision in bad faith for
3-1 purposes of avoiding the application of this section.
3-2 (2) "Claimant" means a party, including a plaintiff,
3-3 counterclaimant, cross-claimant, or third-party plaintiff, seeking
3-4 recovery for personal injury or wrongful death. In a cause of
3-5 action in which a party seeks recovery of damages for personal
3-6 injury to or the wrongful death of another person, "claimant"
3-7 includes both that other person and the party seeking such
3-8 recovery. The term does not include a person who is assigned a
3-9 cause of action for personal injury, or who accepts an appointment
3-10 as a personal representative in a wrongful death action, in bad
3-11 faith for purposes of affecting in any way the application of this
3-12 section.
3-13 (k) This section applies to actions for personal injury or
3-14 wrongful death. This section shall govern the courts of this state
3-15 in determining issues under the doctrine of forum non conveniens in
3-16 the actions to which it applies, notwithstanding Section 71.031(a)
3-17 or any other law.
3-18 SECTION 2. This Act applies to a cause of action filed on or
3-19 after September 1, 1993.
3-20 SECTION 3. The importance of this legislation and the
3-21 crowded condition of the calendars in both houses create an
3-22 emergency and an imperative public necessity that the
3-23 constitutional rule requiring bills to be read on three several
3-24 days in each house be suspended, and this rule is hereby suspended.
3-25 * * * * *
3-26 Austin,
3-27 Texas
3-28 January 26,
3-29 1993
3-30 Hon. Bob Bullock
3-31 President of the Senate
3-32 Sir:
3-33 We, your Committee on Economic Development to which was referred
3-34 S.B. No. 2, have had the same under consideration, and I am
3-35 instructed to report it back to the Senate with the recommendation
3-36 that it do pass and be printed.
3-37 Parker,
3-38 Chairman
3-39 * * * * *
3-40 WITNESSES
3-41 FOR AGAINST ON
3-42 ___________________________________________________________________
3-43 Name: J. Donald Bowen
3-44 Representing: Texas Trial Lawyers
3-45 City: Houston x
3-46 Name: Louis Austin
3-47 Representing: Jobs for Texas
3-48 City: Dallas x
3-49 Name: Fred Baron
3-50 Representing: Texas Trial Lawyers
3-51 City: Dallas x
3-52 Name: Joe D. Gunn
3-53 Representing: Texas AFL/CIO
3-54 City: Austin x
3-55 Name: Stephen Scheurer
3-56 Representing: Texas Recreation Corp.
3-57 City: Austin x
3-58 Name: Bill Barton
3-59 Representing: Texas Railroad Association
3-60 City: Austin x
3-61 Name: Mark Ellison
3-62 Representing: Texas Department of Agriculture
3-63 City: Austin x
3-64 Name: Paul Drummond
3-65 Representing: Groce, Locke and Hebdon
3-66 City: San Antonio x
3-67 Name: James Scott
3-68 Representing: Public Citizen
3-69 City: Austin x
3-70 Name: Ralph Wayne
4-1 Representing: Texas Civil Justice League
4-2 City: Austin x
4-3 Name: Rob Looney
4-4 Representing: Texas Mid. Cont. Oil & Gas
4-5 City: Austin x
4-6 Name: Joe C. Tooley
4-7 Representing: Texas Assoc. of Defense Counsel
4-8 City: Dallas x
4-9 NAME: James H. Holmes, III
4-10 Representing: Texas Assoc. Defense Counsel
4-11 City: Dallas x
4-12 NAME: Byron Tunnell
4-13 Representing: Jobs for Texas
4-14 City: Austin x
4-15 NAME: W. P. Whitworth
4-16 Representing: Texas Chemical Council
4-17 City: Austin x
4-18 NAME: Robert Howden
4-19 Representing: Natl. Fed. of Ind. Business
4-20 City: Austin x
4-21 NAME: Michael White
4-22 Representing: Greater Houston Partnership
4-23 City: Houston x
4-24 NAME: Gerald Holtzman
4-25 Representing: Jobs of Texas
4-26 City: Houston x
4-27 NAME: Larry Milner
4-28 Representing: Texas Chamber of Commerce
4-29 City: Austin x
4-30 NAME: Chris Shields
4-31 Representing: Texas Chamber of Commerce
4-32 City: Austin x