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