By Janek H.B. No. 744
74R1858 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to tort reform.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE 1. STATUTES OF LIMITATION
1-5 SECTION 1.01. Section 16.001, Civil Practice and Remedies
1-6 Code, is amended by adding Subsection (e) to read as follows:
1-7 (e) This section does not apply to a suit governed by
1-8 Section 16.0035.
1-9 SECTION 1.02. Section 16.003, Civil Practice and Remedies
1-10 Code, is amended by adding Subsection (c) to read as follows:
1-11 (c) This section does not apply to a suit governed by
1-12 Section 16.0035.
1-13 SECTION 1.03. Subchapter A, Chapter 16, Civil Practice and
1-14 Remedies Code, is amended by adding Section 16.0035 to read as
1-15 follows:
1-16 Sec. 16.0035. CERTAIN SUITS BROUGHT BY OR ON BEHALF OF
1-17 MINORS. (a) A suit for personal injury or injury resulting in
1-18 death brought by or on behalf of a person younger than 18 years of
1-19 age must be brought not later than the later of:
1-20 (1) the person's 10th birthday; or
1-21 (2) two years after the day the cause of action
1-22 accrues.
1-23 (b) For a cause of action for injury resulting in death, the
1-24 cause of action accrues on the death of the injured person.
2-1 ARTICLE 2. ATTORNEY'S FEES
2-2 SECTION 2.01. Chapter 38, Civil Practice and Remedies Code,
2-3 is amended by amending Sections 38.001, 38.002, and 38.003, and
2-4 adding Sections 38.0015 and 38.0035 to read as follows:
2-5 Sec. 38.001. DEFINITIONS. In this chapter:
2-6 (1) "Claimant" means a party, including a plaintiff,
2-7 counterclaimant, cross-claimant, or third-party claimant, seeking
2-8 recovery of damages or other relief.
2-9 (2) "Respondent" means a party, including a
2-10 counterdefendant, cross-defendant, or third-party defendant, from
2-11 whom a claimant seeks damages or other relief.
2-12 Sec. 38.0015. RECOVERY OF ATTORNEY'S FEES. (a) A claimant
2-13 <person> may recover reasonable attorney's fees from a respondent
2-14 who is an individual or corporation, in addition to the amount of a
2-15 valid claim and costs, if final judgment is rendered in favor of
2-16 the claimant and the claim is for:
2-17 (1) rendered services;
2-18 (2) performed labor;
2-19 (3) furnished material;
2-20 (4) freight or express overcharges;
2-21 (5) lost or damaged freight or express;
2-22 (6) killed or injured stock;
2-23 (7) a sworn account; or
2-24 (8) an oral or written contract.
2-25 (b) A respondent may recover reasonable attorney's fees from
2-26 a claimant if final judgment is rendered in favor of the respondent
2-27 and the claim alleged that the claimant was injured by a negligent
3-1 act or omission of the respondent.
3-2 (c) Subsection (b) does not apply to the extent another law
3-3 authorizes the recovery of attorney's fees by the respondent for a
3-4 claim for which final judgment is rendered against a claimant
3-5 unless that law references this chapter.
3-6 Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES. (a)
3-7 For a claimant to <To> recover attorney's fees under this chapter:
3-8 (1) the claimant must be represented by an attorney;
3-9 (2) the claimant must present the claim to the
3-10 opposing party or to a duly authorized agent of the opposing party;
3-11 and
3-12 (3) payment for the just amount owed must not have
3-13 been tendered before the expiration of the 30th day after the claim
3-14 is presented.
3-15 (b) For a respondent to recover attorney's fees under this
3-16 chapter, the respondent must be represented by an attorney.
3-17 Sec. 38.003. PRESUMPTION. It is presumed that the usual and
3-18 customary attorney's fees for a claim of the type described in
3-19 Section 38.0015 <38.001> are reasonable. The presumption may be
3-20 rebutted.
3-21 Sec. 38.0035. RECOVERY OF ATTORNEY'S FEES FROM MULTIPLE
3-22 RESPONDENTS IN CERTAIN ACTIONS. (a) This section applies only to
3-23 a claim for which the respondent is found:
3-24 (1) liable for attorney's fees under any law of this
3-25 state; and
3-26 (2) to have a percentage of responsibility, as
3-27 determined under Chapter 33, of less than 100 percent.
4-1 (b) The trier of fact may reduce the attorney's fees awarded
4-2 against a respondent to the percentage of the fees that is equal to
4-3 the respondent's percentage of responsibility.
4-4 ARTICLE 3. EXEMPLARY DAMAGES
4-5 SECTION 3.01. Section 41.003(a), Civil Practice and Remedies
4-6 Code, is amended to read as follows:
4-7 (a) Exemplary damages may be awarded only if the claimant
4-8 proves that the personal injury, property damage, death, or other
4-9 harm with respect to which the claimant seeks the award <recovery>
4-10 of exemplary damages results from:
4-11 (1) fraud;
4-12 (2) malice; or
4-13 (3) gross negligence.
4-14 SECTION 3.02. Chapter 41, Civil Practice and Remedies Code,
4-15 is amended by adding Section 41.0035 to read as follows:
4-16 Sec. 41.0035. BIFURCATION OF TRIAL. (a) A court shall
4-17 conduct, in two stages as provided by this section, the trial of a
4-18 claim for both:
4-19 (1) damages for the claimant's personal injury,
4-20 property damage, death, or other harm; and
4-21 (2) exemplary damages arising from the personal
4-22 injury, property damage, death, or other harm.
4-23 (b) The purpose of the first stage of the trial is to allow
4-24 the trier of fact to determine the claimant's damages for the
4-25 claimant's personal injury, property damage, death, or other harm.
4-26 (c) The court may admit in the first stage of the trial only
4-27 evidence that is relevant to proof of the claim for personal
5-1 injury, property damage, death, or other harm. The court may not
5-2 admit evidence relevant only to the financial condition of the
5-3 defendant.
5-4 (d) If the trier of fact determines that the claimant is not
5-5 entitled to an award of damages for the claimant's personal injury,
5-6 property damage, death, or other harm, the court may not proceed to
5-7 the second stage of the trial, and the claimant is not entitled to
5-8 recover exemplary damages.
5-9 (e) If the trier of fact determines that the claimant is
5-10 entitled to an award of damages for the claimant's personal injury,
5-11 property damage, death, or other harm, the court shall render the
5-12 award on behalf of the claimant and shall proceed to the second
5-13 stage of the trial.
5-14 (f) The purpose of the second stage of the trial is to allow
5-15 the trier of fact to determine the exemplary damages relating to
5-16 the claimant's personal injury, property damage, death, or other
5-17 harm that the claimant is entitled to recover.
5-18 (g) The court may admit in the second stage of the trial
5-19 only evidence that is relevant to proof of the claim for exemplary
5-20 damages.
5-21 SECTION 3.03. Section 41.004(b), Civil Practice and Remedies
5-22 Code, is amended to read as follows:
5-23 (b) Exemplary damages may not be awarded if the <to a>
5-24 claimant <who> elects to have his recovery multiplied under another
5-25 statute.
5-26 SECTION 3.04. Sections 41.005 and 41.007, Civil Practice and
5-27 Remedies Code, are amended to read as follows:
6-1 Sec. 41.005. MULTIPLE DEFENDANTS <AWARD SPECIFIC TO
6-2 DEFENDANT>. In any action in which there are two or more
6-3 defendants against whom<,> an award of exemplary damages is made,
6-4 the trier of fact shall assign a percentage of responsibility for
6-5 the exemplary damages to each of the defendants. Each <must be
6-6 specific as to a defendant, and each> defendant is liable only for
6-7 the percentage of the exemplary damages awarded by the trier of
6-8 fact that is equal to that defendant's percentage of responsibility
6-9 for the exemplary damages <amount of the award made against that
6-10 defendant>.
6-11 Sec. 41.007. LIMITATION ON AMOUNT OF RECOVERY. Except as
6-12 provided by Section 41.008, exemplary damages awarded against a
6-13 defendant may not exceed two <four> times the amount of actual
6-14 damages or $200,000, whichever is greater.
6-15 SECTION 3.05. Chapter 41, Civil Practice and Remedies Code,
6-16 is amended by adding Section 41.010 to read as follows:
6-17 Sec. 41.010. PAYMENT OF AWARD TO GENERAL REVENUE FUND; USE
6-18 OF MONEY. (a) Exemplary damages awarded against a defendant under
6-19 this chapter shall be paid to the comptroller, who shall credit the
6-20 amount to the general revenue fund.
6-21 (b) The comptroller shall deposit to the credit of a
6-22 separate account exemplary damages collected under this section if
6-23 the damages were awarded:
6-24 (1) against a person who holds a license or
6-25 certificate issued by this state; and
6-26 (2) as a result of conduct arising in the course and
6-27 scope of the person's activities under the license or certificate.
7-1 (c) The legislature may appropriate money in the separate
7-2 account only to the agency of the state that issued the license or
7-3 certificate to the person who paid the damages.
7-4 (d) The comptroller may combine money that the legislature
7-5 may appropriate to a single agency under Subsection (c) in a single
7-6 account.
7-7 ARTICLE 4. ACTIONS UNDER THE DECEPTIVE TRADE PRACTICES ACT
7-8 SECTION 4.01. Section 17.50, Business & Commerce Code, is
7-9 amended by amending Subsections (b) and (d) and adding Subsection
7-10 (e) to read as follows:
7-11 (b) In a suit filed under this section, each consumer who
7-12 prevails may obtain:
7-13 (1) the amount of actual damages found by the trier of
7-14 fact. In addition the court shall award exemplary damages in an
7-15 amount equal to two times that portion of the actual damages that
7-16 does not exceed $1,000. If the trier of fact finds that the
7-17 conduct of the defendant was committed knowingly, the trier of fact
7-18 may also award exemplary damages in an amount equal to not more
7-19 than two <three> times the amount of actual damages in excess of
7-20 $1,000, provided that:
7-21 (A) the provisions of Chapters 33 and 41, Civil
7-22 Practice and Remedies Code, shall govern the determination of the
7-23 consumer's right under this subchapter to recover actual and other
7-24 damages, including exemplary damages, and the amount of those
7-25 damages that may be recovered by the consumer under this
7-26 subchapter, in an action seeking damages for (i) death; (ii)
7-27 personal injury other than mental anguish or distress associated
8-1 with a violation of this subchapter that does not involve death or
8-2 bodily injury; or (iii) damage to property other than the goods
8-3 acquired by the purchase or lease that is involved in the
8-4 consumer's action or claim if that damage arises out of an
8-5 occurrence that involves death or bodily injury; and
8-6 (B) only in an action under this subchapter that
8-7 is subject to Paragraph (A) of this subdivision, the consumer's
8-8 right to recover damages shall be subject to any defense or
8-9 defensive matter that could be considered by the trier of fact in
8-10 an action subject to Chapter 33, Civil Practice and Remedies Code,
8-11 in determining the percentage of responsibility attributable to the
8-12 consumer claimant under that chapter;
8-13 (2) an order enjoining such acts or failure to act;
8-14 (3) orders necessary to restore to any party to the
8-15 suit any money or property, real or personal, which may have been
8-16 acquired in violation of this subchapter; and
8-17 (4) any other relief which the court deems proper,
8-18 including the appointment of a receiver or the revocation of a
8-19 license or certificate authorizing a person to engage in business
8-20 in this state if the judgment has not been satisfied within three
8-21 months of the date of the final judgment. The court may not revoke
8-22 or suspend a license to do business in this state or appoint a
8-23 receiver to take over the affairs of a person who has failed to
8-24 satisfy a judgment if the person is a licensee of or regulated by a
8-25 state agency which has statutory authority to revoke or suspend a
8-26 license or to appoint a receiver or trustee. Costs and fees of
8-27 such receivership or other relief shall be assessed against the
9-1 defendant.
9-2 (d) Each consumer who prevails shall be awarded court costs
9-3 and reasonable and necessary attorneys' fees. An award of
9-4 attorneys' fees under this subsection is subject to Section
9-5 38.0035, Civil Practice and Remedies Code.
9-6 (e) In an action described by Subparagraph (b)(1)(A), if
9-7 final judgment is rendered in favor of the defendant, the court
9-8 shall award to the defendant reasonable and necessary attorney's
9-9 fees as provided by Chapter 38, Civil Practice and Remedies Code.
9-10 ARTICLE 5. EFFECTIVE DATE; TRANSITION AND EMERGENCY
9-11 SECTION 5.01. (a) This Act takes effect September 1, 1995.
9-12 (b) Except as provided by Section 5.02 of this Act, this Act
9-13 applies only to a cause of action that accrues on or after the
9-14 effective date of this Act. An action that accrued before the
9-15 effective date of this Act is governed by the law applicable to the
9-16 action immediately before the effective date of this Act, and that
9-17 law is continued in effect for that purpose.
9-18 SECTION 5.02. Notwithstanding Section 16.0035, Civil
9-19 Practice and Remedies Code, as added by this Act, a suit for
9-20 personal injury or injury resulting in death brought by or on
9-21 behalf of a person who is younger than 18 years of age on the
9-22 effective date of this Act may be brought not later than two years
9-23 after the effective date of this Act.
9-24 SECTION 5.03. The importance of this legislation and the
9-25 crowded condition of the calendars in both houses create an
9-26 emergency and an imperative public necessity that the
9-27 constitutional rule requiring bills to be read on three several
10-1 days in each house be suspended, and this rule is hereby suspended.