BILL ANALYSIS



C.S.S.B. 25
By: Sibley (Junell)
March 30, 1995
Committee Report (Substituted)


BACKGROUND

Punitive damages, also known as exemplary damages, serve to punish
defendants for certain types of behavior.  Punitive damages can be
awarded where the defendant's wrongdoing has been intentional and
deliberate; where it indicates such a deliberate disregard of the
interests of others that the conduct may be called willful or
wanton; or where the conduct is "reckless," which means proceeding
with knowledge that the harm is substantially certain to occur. 
Ordinary negligence does not warrant the imposition of punitive
damages.

Courts developed the theory of punitive damages to deter and punish
wrongdoing that might otherwise go unpunished and undeterred
because the wrongdoing did no compensable harm.  The two central
purposes served by punitive damages are punishment and deterrence. 
Courts sometimes stress the first--punishment, the retributive
purpose, and at other times the second--the preventative purpose of
the law.  However, questions have been raised as to whether the
amount of current awards exceed these central purposes.

PURPOSE

C.S.S.B. 25 limits the amount of and circumstances under which a
court may award exemplary damages.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 41, Civil Practice and Remedies Code, as
follows:

                  CHAPTER 41.  EXEMPLARY DAMAGES

     Sec. 41.001.  DEFINITIONS.  Adds "clear and convincing" and
     "economic damages" to the list of definitions.  Deletes "gross
     negligence."  Redefines "exemplary damages" and "malice."
     
     Sec. 41.002.  APPLICABILITY.  (a) Applies this chapter to any
     action in which the claimant seeks exemplary damages.
     
     (b) Provides that this chapter establishes the maximum
       exemplary damages that may be awarded in certain actions,
       including actions awarded under another state law. Provides
       that this chapter does not apply if another law establishes
       a lower maximum amount.  Makes conforming changes.
       
       (c) Makes conforming changes.
       
       (d) Provides that notwithstanding any provision to the
       contrary, this chapter does not apply to the following:
       Section 15.21, Business and Commerce Code (Texas Free
       Enterprise and Antitrust Act of 1983), to an action brought
       under the Deceptive Trade Practices-Consumer Protection Act
       (Subchapter E, Chapter 17, Business & Commerce Code) except
       as specifically provided in Sec. 17.50 of that Act; or an
       action brought under Chapter 21, Insurance Code.
       
     Sec. 41.003.  STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES. 
     (a)  Except as provided by Subsection (c), exemplary damages
     may be awarded only if the claimant proves by clear and
     convincing evidence that the harm resulted from: fraud;
     malice; or a willful act or omission or gross neglect in
     wrongful death actions brought by or on behalf of a surviving
     spouse or heirs of the deceased, under a statute enacted
     pursuant to Section 26, Article XVI of the Texas Constitution. 
     Defines "gross neglect" for purposes of Section 26, Article
     XVI, Texas Constitution.
     
     (b) Requires the claimant to prove by clear and convincing
       evidence the elements of exemplary damages as provided by
       this section.  Provides that the burden of proof for
       exemplary damages lies with the claimant and may not be
       shifted to the defendant or satisfied by evidence of
       ordinary negligence, bad faith or deceptive trade practices. 
       
       
       (c) Authorizes exemplary damages to be awarded if a claimant
       relies on a statute authorizing damages in specified
       circumstances or in conjunction with a specified culpable
       mental state only if the claimant proves by clear and
       convincing evidence that the damages result from these
       circumstances or culpable mental state.
     Sec. 41.004.  FACTORS PRECLUDING RECOVERY.  (a) Makes
     conforming changes.
     
     (b) Authorizes a claimant to recover exemplary damages if
       the claimant establishes by clear and convincing evidence
       that the harm resulted from malice as defined in Section
       41.001(7)(A).  Prohibits exemplary damages from being
       awarded to a claimant who elects to have the claimant's
       recovery multiplied under another statute.
     Sec. 41.005.  HARM RESULTING FROM CRIMINAL ACT.  (a) Prohibits
     a court from awarding exemplary damages against a defendant
     because of a criminal act in an action arising from harm
     resulting from the criminal act of another.
     
     (b) Provides that Subsection (a) does not apply if the
       criminal act was committed by an agent or employee of the
       defendant, the defendant is a party to the criminal act, the
       criminal act occurred at a location where the defendant was
       maintaining a common nuisance and had not made reasonable
       attempts to abate the nuisance, or the criminal act resulted
       from the defendant's intentional or knowing violation of a
       statutory duty and the act occurred after the statutory
       deadline for compliance with that duty.
       
       (c) Provides that the principal or employer may be liable
       for punitive damages in an action arising out of a criminal
       act committed by an agent or employee only if the employer
       or principal authorized the doing and the manner of the act,
       the employee or agent was unfit and the employer or
       principal acted with malice, the employee or agent was
       employed in a managerial capacity and was acting in the
       scope of employment, or the principal or employer or a
       manager of the principal or employer ratified or approved
       the act.
     Sec. 41.006.  Redesignates existing Section 41.005.
     
     Sec. 41.007.  Redesignates existing Section 41.006.
     
     Sec. 41.008.  LIMITATION ON AMOUNT OF RECOVERY.  (a) Requires
     the trier of fact to determine the amount of economic damages
     separately from the amount of other damages if a claimant
     seeks recovery of exemplary damages. 
     
     (b) Prohibits exemplary damages from exceeding an amount
       equal to the greater of two, rather than four, times the
       amount of economic, rather than actual, damages plus an
       amount equal to any noneconomic damages found by the jury
       not to exceed $750,000; or $200,000.
       
       (c) Provides that Subsection (b) does not apply to a cause
       of action against a defendant from whom a plaintiff seeks
       recovery of exemplary damages based on conduct described as
       a felony in the following areas of the Penal Code if the
       conduct was committed knowingly or intentionally: Sections
       19.02; 19.03; 20.04; 22.02; 22.011; 22.021; 22.04; 32.21;
       32.43; 32.45; 32.46; 32.47; and Chapter 31 the punishment
       level for which is a felony of the third degree or higher. 
       
       (d) Provides that "intentionally" and "knowingly" in this
       section, have the same meanings assigned in Section 6.03(a)
       and (b) of the Penal Code.
       
       (e) Prohibits the provisions of Subsections (a) and (b) from
       being made known to a jury by any means.
     Sec. 41.009.  BIFURCATED TRIAL.  (a) Requires the court to
     provide for a bifurcated trial on a motion by the defendant. 
     Requires a motion under this subsection to be made prior to
     voir dire examination of the jury or at a time specified by a
     pretrial court order.
     
     (b) Requires the court to provide for a bifurcated trial on
       the motion of any defendant in an action with more than one
       defendant.
       
       (c) Requires the trier of fact to determine the liability
       for compensatory and exemplary damages and the amount of
       compensatory damages in the first phase of a bifurcated
       trial.  
       
       (d) Requires the trier of fact, if liability for exemplary
       damages is found during the first phase of the bifurcated
       trial, to determine the amount of exemplary damages to be
       awarded in the second phase of the trial.
     Sec. 41.010.  CONSIDERATIONS IN MAKING AWARD.  (a) Requires
     the trier of fact to consider the definition and purposes of
     exemplary damages under Section 41.001 before making an award.
     
     (b) Provides that the determination of whether to award and
       the amount of exemplary damages to be awarded is within the
       discretion of the trier of fact.
     Sec. 41.011.  EVIDENCE RELATING TO AMOUNT OF EXEMPLARY
     DAMAGES.  (a) Requires the trier of fact, when determining the
     amount of exemplary damages, to consider evidence relating to
     the nature of the wrong; the character of the conduct
     involved; the degree of culpability of the wrongdoer; the
     situation and sensibilities of the parties; the extent such
     conduct offends a public sense of justice and propriety; and
     the net worth of the defendant.
     
     (b) Provides that evidence that is relevant only to the
       amount of exemplary damages that may be awarded is not
       admissible during the first phase of a bifurcated trial. 
     Sec. 41.012.  JURY INSTRUCTIONS.  Requires the court to
     instruct the jury with regard to Sections 41.001, 41.003,
     41.010, and 41.011.
     
     Sec. 41.013.  JUDICIAL REVIEW OF AWARD.  (a) Requires an
     appellate court reviewing findings by a trier of fact
     concerning exemplary damage liability or the amount of
     exemplary damages awarded to state, in a written opinion, the
     court's reason for upholding or disturbing the finding or
     award.  Requires the opinion to address the evidence or lack
     of evidence, as it relates to the liability for or amount of
     exemplary damages, with specificity and in reference to the
     requirements of this chapter, except as provided for in
     Subsection (b).
     
     (b) Provides that this section does not apply to the supreme
       court with respect to its consideration of an application
       for writ of error.  
     Deletes existing Sections 41.008 and 41.009 to make conforming
     changes.
     
     SECTION 2.     Effective date:  September 1, 1995.
           Makes application of this Act prospective.

SECTION 3. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

SECTION 1.  In Sec. 41.002(d), the substitute exempts Section
15.21, Business and Commerce Code (Texas Free Enterprise and
Antitrust Act of 1983), action brought under the DTPA except as
provided in Section 17.50 of that Act, or an action brought under
Chapter 21, Insurance Code whereas the original only exempted
Section 15.21, Business and Commerce Code (Texas Free Enterprise
and Antitrust Act of 1983).

In Sec. 41.003(a)(3), the substitute defines "gross neglect" for
purposes of Section 26, Article XVI, Texas Constitution whereas the
original deleted "gross neglect."

In Sec. 41.005(a) the substitute adds "of another" to the end of
the sentence.  In Sec. 41.005(b)(1) the substitute states that the
exemption provided by Subsection (a) does not apply if the criminal
act was committed by an agent or employee of the defendant, whereas
the original only listed employee of the defendant.  In Section
41.005(c) the substitute provides that the principal or employer
may be liable for punitive damages in an action arising out of a
criminal act committed by an agent or employee only if the employer
or principal authorized the doing and the manner of the act, the
employee or agent was unfit and the employer or principal acted
with malice, the employee or agent was employed in a managerial
capacity and was acting in the scope of employment, or the
principal or employer or a manager of the principal or employer
ratified or approved the act.  Section 41.005(c) of the original
provides that the employer may be liable for punitive damages in an
action arising out of a criminal act committed by an employee only
if the principal authorized the doing and the manner of the act,
the agent was unfit and the principal acted with malice, the agent
was employed in a managerial capacity and was acting in the scope
of employment, or the employer or the manager of the employer
ratified or approved the act.

In Sec. 41.008(c) of the original, this section does not apply to
circumstances in which there was an intentional or knowing felony
offense as defined in the listed sections of the Penal Code. Sec.
41.008(c) of the substitute, provides that Subsection (b) does not
apply to a cause of action against a defendant from whom a
plaintiff seeks recovery of exemplary damages based on conduct
described as a felony in the listed sections of the Penal Code if
the conduct was committed knowingly or intentionally.  Also, in
Sec. 41.008(d), the original provides that this section does not
apply to circumstances in which there was an intentional or knowing
third degree felony defense as defined in Chapter 31 of the Penal
Code, whereas the substitute includes Chapter 31, Penal Code the
punishment level for which is a felony of the third degree or
higher in this listing under Sect. 41.008(c). 

SECTION 2.  Section 2 of the original provided that this act
applied to a cause of action that accrues on or after the effective
date, whereas Section 2 of the substitute clarifies that the act
applies to a cause of action that accrues on or after the effective
date.  Cases filed before the effective date are governed by the
law in effect immediately before the effective date.

SUMMARY OF COMMITTEE ACTION

Pursuant to public notice posted on March 8, 1995, SB 25 was
considered by the Committee on State Affairs in a public hearing on
March 13, 1995.  The Chair laid out SB 25 and recognized Rep.
Junell to explain the bill.  The following persons testified in
favor of the bill: Karen M. Neeley representing the Independent
Bankers Association of Texas; and John H. Marks, Jr. representing
the Texas Association of Defense Counsel;  The following persons
testified against the bill:  Susan S. Pitman representing the
Chemical Connection; T. Gail Armstrong representing herself; Hannah
Riddering representing the National Organization of Women; Diane
Papageorgiou representing herself; Tim Curtis representing Texas
Citizen Action; Lin Ehrlich representing herself; Christine
Heinrich representing herself; Betty Jean Craig representing
herself; Judith G. Shaw representing herself; Rick Levy
representing Texas AFL/CIO; Reggie James representing Consumers
Union; Tom Smith representing Public Citizen; Elizabeth M.T. O'Nan
representing the Chemical Injury Information Network; and Daisy
Iglesias representing herself.  The following persons provided
neutral testimony on the bill: Mike Gallagher representing the
Texas Trial Lawyers Association; Bill Whitehurst representing the
Texas Trial Lawyers Association; and Bill Lewis representing
Mothers Against Drunk Driving.  The Chair recognized Rep. Duncan to
close.  The Chair left SB 25 pending.  SB 25 was considered by the
Committee on State Affairs in a public hearing on March 20, 1995. 
The Chair laid out SB 25.  The following persons testified for the
bill: Michael T. Gallagher representing the Texas Trial Lawyers
Association; George W. Berry representing the Texas Trial Lawyers
Association; Robert Howden representing NFIB/Texas; Claudia Wilson
Frost representing Texans for Lawsuit Reform; Nub Donaldson
representing the Texas Civil Justice League; and Shannon Ratliff
representing the Texas Civil Justice League.  The following person
testified against the bill: Tom "Smitty" Smith representing Public
Citizen, Inc.  The following person provided neutral testimony on
the bill: Bill Whitehurst representing the Texas Trial Lawyers
Association.  The Chair left SB 25 pending.  SB 25 was considered
by the Committee on State Affairs in a public hearing on March 27,
1995.  The Chair laid out SB 25.  The committee considered a
complete substitute for the bill.  Five amendments were offered to
the substitute.  Three of those amendments were adopted without
objection.  One of those amendments was tabled by a record vote of
12 ayes, 2 nayes, 1 pnv, 0 absent.  One of those amendments was
tabled by a record vote of 13 ayes, 1 nay, 1 pnv, 0 absent.  The
substitute as amended was adopted without objection.  The Chair
directed the staff to incorporate the amendments into the
substitute.  The bill was reported favorably as substituted with
the recommendation that it do pass and be printed, by a record vote
of 14 ayes, 1 nay, 0 pnv, 0 absent.