By Hunter of Nueces H.B. No. 1095
74R4932 DAK-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. VENUE
1-5 SECTION 1.01. Subchapter A, Chapter 15, Civil Practice and
1-6 Remedies Code, is amended to read as follows:
1-7 SUBCHAPTER A. DEFINITIONS; GENERAL RULES <RULE>
1-8 Sec. 15.001. DEFINITION. In this chapter, "proper venue"
1-9 means:
1-10 (1) the venue required by the mandatory provisions of
1-11 this subchapter and Subchapter B; or
1-12 (2) if the mandatory provisions do not apply, the
1-13 venue provided by the permissive provisions of Subchapter C.
1-14 Sec. 15.002. VENUE: GENERAL RULE. (a) Notwithstanding any
1-15 other provision of this chapter, including Sections 15.018 and
1-16 15.0115, an action may be transferred to a county as provided by
1-17 Subchapter F.
1-18 (b) Subject to Subsection (a) and except as provided by
1-19 <Except as otherwise provided by this subchapter or> Subchapter B
1-20 or C, all lawsuits shall be brought:
1-21 (1) in the county in which all or part of the cause of
1-22 action accrued; <or>
1-23 (2) in the county of defendant's residence if
1-24 defendant is a natural person;
2-1 (3) in the county of the defendant's principal place
2-2 of business in this state, if the defendant is not a natural
2-3 person; or
2-4 (4) if Subdivisions (1), (2), and (3) do not apply, in
2-5 the county in which the plaintiff resided at the time of the
2-6 accrual of the cause of action.
2-7 Sec. 15.003. MULTIPLE PLAINTIFFS AND INTERVENING PLAINTIFFS.
2-8 (a) In a suit brought by more than one plaintiff, each plaintiff
2-9 must, independent of any other plaintiff, establish proper venue
2-10 under this chapter.
2-11 (b) A person seeking to intervene or join in a pending suit
2-12 solely as a plaintiff seeking relief must, independent of any other
2-13 plaintiff, establish proper venue under this chapter.
2-14 Sec. 15.004. MANDATORY VENUE PROVISION GOVERNS MULTIPLE
2-15 CLAIMS. In a suit in which a plaintiff properly joins two or more
2-16 claims or causes of action, and one of the claims or causes of
2-17 action is governed by the mandatory venue provisions of Subchapter
2-18 B, the suit shall be brought in the county required by the
2-19 mandatory venue provision.
2-20 Sec. 15.005. JOINDER OF DEFENDANTS AND CLAIMS AFTER
2-21 PLAINTIFF ESTABLISHES PROPER VENUE. In a suit brought by a
2-22 plaintiff in which the plaintiff has established proper venue under
2-23 this chapter against a defendant, the court also has venue of all
2-24 the defendants in all claims or actions that may be properly joined
2-25 by the plaintiff.
2-26 Sec. 15.006. PERMISSIVE VENUE RESTRICTED ON JOINDER OF
2-27 DEFENDANTS. (a) This section applies only to a suit in which:
3-1 (1) two or more defendants are joined in the same
3-2 suit; and
3-3 (2) venue for the suit is not governed by Subchapter
3-4 B.
3-5 (b) A suit to which this section applies shall be brought:
3-6 (1) in the county in which all or part of the cause of
3-7 action accrued; or
3-8 (2) if venue under Sections 15.002(b)(2) and (3) for
3-9 each defendant joined in the suit is in the same county, in that
3-10 county.
3-11 (c) The general rule for venue in Section 15.002 applies to
3-12 a suit to which this section applies if:
3-13 (1) all or part of the cause of action did not accrue
3-14 in this state; and
3-15 (2) venue under Sections 15.002(b)(2) and (3) for each
3-16 defendant joined in the action is not in the same county.
3-17 SECTION 1.02. Subchapter B, Chapter 15, Civil Practice and
3-18 Remedies Code, is amended by amending Section 15.011 and by adding
3-19 Sections 15.0115 and 15.018 to read as follows:
3-20 Sec. 15.011. LAND. Actions for recovery of real property or
3-21 an estate or interest in real property, for partition of real
3-22 property, to remove encumbrances from the title to real property,
3-23 for recovery of damages to real property, or to quiet title to real
3-24 property shall be brought in the county in which all or a part of
3-25 the property is located.
3-26 Sec. 15.0115. LANDLORD-TENANT. (a) Except as provided by
3-27 another statute prescribing mandatory venue, a suit between a
4-1 landlord and a tenant arising under a lease shall be brought in the
4-2 county in which all or a part of the real property is located.
4-3 (b) In this section, "lease" means any written or oral
4-4 agreement between a landlord and a tenant that establishes or
4-5 modifies the terms, conditions, or other provisions relating to the
4-6 use and occupancy of the real property that is the subject of the
4-7 agreement.
4-8 Sec. 15.018. PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE.
4-9 (a) Except as provided by another statute prescribing mandatory
4-10 venue, a suit for damages for personal injury, death, or property
4-11 damage shall be brought in the county in which the personal injury,
4-12 injury causing death, or property damage occurred.
4-13 (b) A suit for damages for personal injury, death, or
4-14 property damage in which the personal injury, injury causing death,
4-15 or property damage occurred outside this state shall be brought as
4-16 provided by the general rule for venue in Section 15.002.
4-17 (c) If the plaintiff establishes that the county in which
4-18 the personal injury, injury causing death, or property damage
4-19 occurred cannot be determined, the general rule for venue in
4-20 Section 15.002 applies.
4-21 (d) This section does not apply to a suit brought under:
4-22 (1) the Federal Employers Liability Act (45 U.S.C.
4-23 Sec. 51 et seq.); or
4-24 (2) the Jones Act (46 U.S.C. Sec. 688).
4-25 SECTION 1.03. Section 15.032, Civil Practice and Remedies
4-26 Code, is amended to read as follows:
4-27 Sec. 15.032. INSURANCE. Suit against fire, marine, or
5-1 inland insurance companies may also be commenced in any county in
5-2 which the insured property was situated. A suit on a policy may be
5-3 brought against any life insurance company, or accident insurance
5-4 company, or life and accident, or health and accident, or life,
5-5 health, and accident insurance company in the county in which the
5-6 company's principal place of business in this state <home office of
5-7 the company> is located or in the county in which the loss has
5-8 occurred or in which the policyholder or beneficiary instituting
5-9 the suit resided at the time the cause of action accrued <resides>.
5-10 SECTION 1.04. Section 15.035, Civil Practice and Remedies
5-11 Code, is amended by amending Subsection (a) and adding Subsection
5-12 (c) to read as follows:
5-13 (a) Except as provided by Subsection (b), if a party
5-14 <person> has contracted in writing to perform an obligation in a
5-15 particular county, expressly naming the county or a definite place
5-16 in that county by that writing, suit on or by reason of the
5-17 obligation may be brought against that party <him> either in:
5-18 (1) that county;
5-19 (2) <or in> the county of defendant's residence if
5-20 defendant is a natural person; or
5-21 (3) in the county of the defendant's principal place
5-22 of business in this state, if the defendant is not a natural person
5-23 <in which the defendant has his domicile>.
5-24 (c) The parties to a written contract may agree in writing
5-25 to exclusive venue in the county of the residence or principal
5-26 place of business of either party or in the county in which the
5-27 contract is to be performed. An agreement under this subsection
6-1 must appear in a conspicuous place and in a conspicuous manner in
6-2 the contract. This subsection does not apply to a contract arising
6-3 out of or based on a consumer obligation or consumer transaction
6-4 for goods, a service, a loan, or an extension of credit intended
6-5 primarily for personal, family, household, or agricultural use.
6-6 SECTION 1.05. Subchapter D, Chapter 15, Civil Practice and
6-7 Remedies Code, is amended by adding Sections 15.0641-15.0644 to
6-8 read as follows:
6-9 Sec. 15.0641. CHALLENGE OF WAIVER OF VENUE. In a suit in
6-10 which two or more defendants are joined, a waiver of venue by one
6-11 defendant does not operate to establish venue on proper challenge
6-12 by any other defendant.
6-13 Sec. 15.0642. REHEARING. (a) A court for which venue for
6-14 an action has been found proper after a hearing under Section
6-15 15.064 may, at its discretion, at any time during the pretrial or
6-16 trial proceedings, on the motion of a party showing good cause or
6-17 its own motion, conduct a rehearing to determine if venue is
6-18 proper.
6-19 (b) The court may transfer the action to a county in which
6-20 venue is proper if the court finds:
6-21 (1) information is before the court that was not
6-22 before the court that conducted the initial venue hearing; and
6-23 (2) the new information establishes that the plaintiff
6-24 does not have proper venue.
6-25 Sec. 15.0643. MANDAMUS. A party may apply for a writ of
6-26 mandamus with an appellate court to enforce the mandatory venue
6-27 provisions of this chapter.
7-1 Sec. 15.0644. CERTAIN TRANSFERS NOT REVERSIBLE ERROR.
7-2 Notwithstanding Section 15.064, the transfer of a lawsuit from one
7-3 county of proper venue to another county of proper venue is not
7-4 reversible error.
7-5 SECTION 1.06. Subchapter D, Chapter 15, Civil Practice and
7-6 Remedies Code, is amended by adding Section 15.066 to read as
7-7 follows:
7-8 Sec. 15.066. CONFLICT WITH RULES OF CIVIL PROCEDURE.
7-9 Subject to Section 22.004, Government Code, to the extent that this
7-10 chapter conflicts with the Texas Rules of Civil Procedure, this
7-11 chapter controls.
7-12 SECTION 1.07. Chapter 15, Civil Practice and Remedies Code,
7-13 is amended by adding Subchapter F to read as follows:
7-14 SUBCHAPTER F. TRANSFER OF MULTICOUNTY CASES
7-15 Sec. 15.121. DEFINITION. In this subchapter, "panel" means
7-16 the judicial panel on multicounty litigation.
7-17 Sec. 15.122. TRANSFER AUTHORIZED FOR COORDINATED AND
7-18 CONSOLIDATED PRETRIAL PROCEEDINGS. (a) The judicial panel on
7-19 multicounty litigation may transfer one or more civil actions to
7-20 another county for coordinated or consolidated pretrial proceedings
7-21 as provided by this subchapter.
7-22 (b) The panel may not transfer an action under this section
7-23 unless:
7-24 (1) the action involves a question of fact common to
7-25 another action pending in the county to which the action is to be
7-26 transferred; and
7-27 (2) the panel finds that transfer of the action would
8-1 be for the convenience of the parties and witnesses and would
8-2 promote the just and efficient conduct of the action.
8-3 Sec. 15.123. TRANSFER FOR TRIAL; CONSOLIDATION ON AGREEMENT
8-4 OF PARTIES. The panel may transfer as provided by this subchapter
8-5 an action for trial to another county in which the venue is proper
8-6 venue for the convenience of the parties and witnesses and in the
8-7 interest of justice. The panel may consolidate one or more actions
8-8 for trial only if all the parties to the actions agree to the
8-9 consolidation.
8-10 Sec. 15.124. TRANSFER PROCEEDINGS; HEARING. (a) A party to
8-11 an action may file a motion with the panel requesting transfer
8-12 under this subchapter. The party must file a copy of the motion in
8-13 the court in which the action to be transferred is pending.
8-14 (b) The panel shall hold a hearing to determine whether to
8-15 order the transfer of the action.
8-16 (c) The panel shall notify each party in each action that
8-17 may be affected by the transfer that the panel has received a
8-18 motion to transfer an action under this subchapter. The notice
8-19 must state the time and place of the hearing.
8-20 (d) A party to an action that may be affected by the
8-21 transfer may offer evidence relevant to whether the transfer should
8-22 be made.
8-23 (e) The panel's order must be supported by findings of fact
8-24 and conclusions of law based on the record of the hearing.
8-25 Sec. 15.125. FILING OF ORDER. (a) The panel's order
8-26 transferring an action is effective at the time it is filed in the
8-27 office of the clerk of the court to which the action is being
9-1 transferred.
9-2 (b) The clerk of the court shall, not later than the fifth
9-3 day after the date the order is filed, transmit a certified copy of
9-4 the panel's order to each court from which an action is being
9-5 transferred.
9-6 (c) The panel shall file an order of the panel denying a
9-7 motion to transfer an action in the court in which the action is
9-8 pending.
9-9 (d) The panel shall file a copy of any order of the panel,
9-10 including an order to set a hearing, in the office of the clerk of
9-11 the court in which a transfer hearing is to be or has been held.
9-12 Sec. 15.126. JUDGE FOR COORDINATED OR CONSOLIDATED PRETRIAL
9-13 PROCEEDINGS. The panel shall assign one or more judges of the
9-14 appropriate court in the county in which coordinated or
9-15 consolidated pretrial proceedings are to be conducted to conduct
9-16 the proceedings.
9-17 Sec. 15.127. REMAND TO ORIGINATING COUNTY. (a) The panel
9-18 shall remand an action transferred under Section 15.122 to the
9-19 county in which it originated not later than the conclusion of the
9-20 pretrial proceedings.
9-21 (b) The panel may separate a claim, cross-claim,
9-22 counterclaim, or third-party claim from the action and remand that
9-23 claim to the originating county before remanding the remainder of
9-24 the action.
9-25 (c) The panel may not remand an action or claim to the
9-26 originating county after the claim has been settled or otherwise
9-27 terminated.
10-1 Sec. 15.128. REVIEW OF ORDER OF PANEL. (a) Review of an
10-2 order of the panel is by extraordinary writ.
10-3 (b) A petition for writ initially filed in a court of
10-4 appeals to review an order transferring an action, and any
10-5 subsequent order of the panel relating to that action, must be
10-6 filed in the court of appeals that would have jurisdiction of an
10-7 appeal from the court to which the action is to be transferred.
10-8 (c) A petition for a writ initially filed in a court of
10-9 appeals to review an order of the panel other than an order
10-10 described by Subsection (b) must be filed in the court with
10-11 jurisdiction over the district in which the panel is sitting.
10-12 Sec. 15.129. MANDAMUS. The supreme court, a court of
10-13 appeals, or a justice of the supreme court or a court of appeals
10-14 may issue a writ of mandamus against the panel and may issue other
10-15 writs against the panel as necessary.
10-16 Sec. 15.130. JUDICIAL PANEL ON MULTICOUNTY LITIGATION. (a)
10-17 The judicial panel on multicounty litigation is appointed by the
10-18 supreme court and is composed of seven justices and judges selected
10-19 from the courts of appeals and district courts of this state. The
10-20 panel may not include more than two individuals from any court of
10-21 appeals district.
10-22 (b) The members of the panel serve staggered six-year terms
10-23 expiring February 1 of odd-numbered years.
10-24 (c) The supreme court shall fill any vacancy on the panel,
10-25 including a vacancy caused by a judge on the panel leaving office.
10-26 (d) The concurrence of at least four members of the panel is
10-27 required for any action of the panel.
11-1 (e) A member of the panel may not receive compensation for
11-2 serving as a member of the panel. The supreme court may reimburse
11-3 a member of the panel for expenses actually incurred by the member
11-4 in performing the member's duties.
11-5 Sec. 15.131. RULES. The supreme court may adopt rules
11-6 governing the operation of the panel as provided by Section 22.004,
11-7 Government Code.
11-8 SECTION 1.08. Section 17.56, Business & Commerce Code, is
11-9 amended to read as follows:
11-10 Sec. 17.56. Venue. Except as provided by Sections 15.0115
11-11 and 15.018, Civil Practice and Remedies Code, and Article
11-12 5.06-1(8), Insurance Code, an <An> action brought which alleges a
11-13 claim to relief under Section 17.50 of this subchapter shall be
11-14 brought <may be commenced in the county in which the person against
11-15 whom the suit is brought resides, has his principal place of
11-16 business, or has a fixed and established place of business at the
11-17 time the suit is brought or> in the county in which the alleged act
11-18 or practice occurred or in a county in which the defendant or an
11-19 authorized agent of the defendant solicited the transaction made
11-20 the subject of the action at bar.
11-21 SECTION 1.09. Article 5.06-1, Insurance Code, is amended by
11-22 adding Subsection (8) to read as follows:
11-23 (8) Notwithstanding Sections 15.018 and 15.032, Civil
11-24 Practice and Remedies Code, an action against an insurer in
11-25 relation to coverage provided under this article, including an
11-26 action to enforce that coverage, may be brought only:
11-27 (1) in the county in which the plaintiff resided at
12-1 the time of the accident; or
12-2 (2) in the county in which the accident involving the
12-3 uninsured or underinsured motor vehicle occurred.
12-4 SECTION 1.10. Section 410.252, Labor Code, is amended by
12-5 adding Subsection (c) to read as follows:
12-6 (c) Section 15.018, Civil Practice and Remedies Code, does
12-7 not apply to the venue of a suit under this section.
12-8 SECTION 1.11. Section 92.007, Property Code, is amended to
12-9 read as follows:
12-10 Sec. 92.007. VENUE. Venue for an action under this chapter
12-11 is governed by Section 15.0115, Civil Practice and Remedies Code
12-12 <in the county in which the premises are located>.
12-13 SECTION 1.12. Sections 15.033, 15.036, 15.037, 15.040,
12-14 15.061, and 15.062, Civil Practice and Remedies Code, are repealed.
12-15 SECTION 1.13. This article applies only to a suit filed on
12-16 or after the effective date of this article. A suit filed before
12-17 the effective date of this article is governed by the law
12-18 applicable to the suit immediately before the effective date of
12-19 this article, and that law is continued in effect for that purpose.
12-20 SECTION 1.14. In making the initial appointments to the
12-21 judicial panel on multicounty litigation, the supreme court shall
12-22 appoint two members for terms expiring February 1, 1997, two
12-23 members for terms expiring February 1, 1999, and three members for
12-24 terms expiring February 1, 2001.
12-25 ARTICLE 2. PROPORTIONATE RESPONSIBILITY
12-26 SECTION 2.01. Chapter 33, Civil Practice and Remedies Code,
12-27 is amended to read as follows:
13-1 CHAPTER 33. PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
13-2 <SUBCHAPTER A. COMPARATIVE RESPONSIBILITY>
13-3 Sec. 33.001. DEFINITIONS. In this chapter:
13-4 (1) "Claimant" means a party seeking recovery of
13-5 damages, including a plaintiff, counterclaimant, cross-claimant, or
13-6 third-party plaintiff seeking recovery of damages. In an action in
13-7 which a party seeks recovery of damages for injury to another
13-8 person, damage to the property of another person, death of another
13-9 person, or other harm to another person, "claimant" includes both
13-10 that other person and the party seeking recovery of damages.
13-11 (2) "Defendant" includes any party from whom a
13-12 claimant seeks recovery of damages at the time of the submission of
13-13 the case to the trier of fact.
13-14 (3) "Liable defendant" means a defendant against whom
13-15 a judgment can be entered for at least a portion of the damages
13-16 awarded to the claimant.
13-17 (4) "Percentage of responsibility" means that
13-18 percentage attributed by the trier of fact as provided by Section
13-19 33.004.
13-20 (5) "Settling person" means a person who at the time
13-21 of submission has paid or promised to pay money or anything of
13-22 monetary value to a claimant at any time in consideration of
13-23 potential liability with respect to the harm for which recovery of
13-24 damages is sought.
13-25 Sec. 33.002 <33.001>. PROPORTIONATE <COMPARATIVE>
13-26 RESPONSIBILITY. <(a)> In an action to which this chapter applies
13-27 under Section 33.003 <recover damages for negligence resulting in
14-1 personal injury, property damage, or death or an action for
14-2 products liability grounded in negligence>, a claimant may recover
14-3 damages only if the claimant's <his> percentage of responsibility
14-4 is less than or equal to 50 percent.
14-5 <(b) In an action to recover damages for personal injury,
14-6 property damage, or death in which at least one defendant is found
14-7 liable on a basis of strict tort liability, strict products
14-8 liability, or breach of warranty under Chapter 2, Business &
14-9 Commerce Code, a claimant may recover damages only if his
14-10 percentage of responsibility is less than 60 percent.>
14-11 <(c) In an action in which a claimant seeks damages for harm
14-12 other than personal injury, property damage, or death, arising out
14-13 of any action grounded in negligence, including but not limited to
14-14 negligence relating to any professional services rendered by an
14-15 architect, attorney, certified public accountant, real estate
14-16 broker or agent, or engineer licensed by this state, a claimant may
14-17 recover damages only if his percentage of responsibility is less
14-18 than or equal to 50 percent.>
14-19 Sec. 33.003 <33.002>. APPLICABILITY. (a) Except as
14-20 provided by Subsection (b), this chapter applies to any tort,
14-21 including an action to recover damages for:
14-22 (1) negligence resulting in personal injury, property
14-23 damage, or death;
14-24 (2) products liability grounded in negligence;
14-25 (3) personal injury, property damage, or death in
14-26 which at least one defendant is found liable on a basis of strict
14-27 tort liability, strict products liability, or breach of warranty
15-1 under Chapter 2, Business & Commerce Code;
15-2 (4) harm, other than personal injury, property damage,
15-3 or death, arising out of any action grounded in negligence,
15-4 including negligence relating to any professional services rendered
15-5 by an architect, attorney, certified public accountant, real estate
15-6 broker or agent, or engineer licensed by this state; or
15-7 (5) an intentional act. <This chapter does not apply
15-8 to a claim based on an intentional tort or a claim for exemplary
15-9 damages included in an action to which this chapter otherwise
15-10 applies.>
15-11 (b) This chapter does not apply to:
15-12 (1) an action to collect workers' compensation
15-13 benefits under the workers' compensation laws of this state
15-14 (Subtitle A, Title 5, Labor Code) <(Article 8306 et seq., Vernon's
15-15 Texas Civil Statutes)> or actions against an employer for exemplary
15-16 damages arising out of the death of an employee;
15-17 (2) an action brought under the Deceptive Trade
15-18 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
15-19 Business & Commerce Code) except as specifically provided in
15-20 Section 17.50 of that Act; <or>
15-21 (3) an action brought under Chapter 21, Insurance
15-22 Code; or
15-23 (4) a claim for exemplary damages included in an
15-24 action to which this chapter applies.
15-25 Sec. 33.004 <33.003>. DETERMINATION OF PERCENTAGE OF
15-26 <COMPARATIVE> RESPONSIBILITY. The trier of fact, as to each cause
15-27 of action asserted, shall determine the percentage of
16-1 responsibility for the following persons with respect to their
16-2 causing or contributing to cause in any way, including by negligent
16-3 act or omission, by any defective or unreasonably dangerous
16-4 product, by other conduct or activity that violates an applicable
16-5 legal standard, or by any combination of these, the harm for which
16-6 recovery of damages is sought:
16-7 (1) each claimant;
16-8 (2) each defendant; <and>
16-9 (3) each settling person; and
16-10 (4) any other person, subject to Section 33.005,
16-11 without regard to whether that person was or could have been named
16-12 as a party to the action.
16-13 Sec. 33.005. PERCENTAGE OF RESPONSIBILITY FOR A NONPARTY.
16-14 (a) The trier of fact may determine the percentage of
16-15 responsibility for a person who is not a party to the action or is
16-16 not a settling person only if the defendant files a pleading in the
16-17 action stating:
16-18 (1) the person's name and last known address or, if
16-19 the name and address is not known, the best identification of the
16-20 person that is possible under the circumstances; and
16-21 (2) the basis for believing the person to be wholly or
16-22 partially at fault.
16-23 (b) The defendant must file the pleading required by this
16-24 section not later than the 90th day after the date the defendant is
16-25 served process in the action unless the court grants leave to file
16-26 the pleading at a later time.
16-27 <Sections 33.004-33.010 reserved for expansion>
17-1 <SUBCHAPTER B. CONTRIBUTION>
17-2 <Sec. 33.011. DEFINITIONS. In this chapter:>
17-3 <(1) "Claimant" means a party seeking recovery of
17-4 damages pursuant to the provisions of Section 33.001, including a
17-5 plaintiff, counterclaimant, cross-claimant, or third-party
17-6 plaintiff seeking recovery of damages. In an action in which a
17-7 party seeks recovery of damages for injury to another person,
17-8 damage to the property of another person, death of another person,
17-9 or other harm to another person, "claimant" includes both that
17-10 other person and the party seeking recovery of damages pursuant to
17-11 the provisions of Section 33.001.>
17-12 <(2) "Defendant" includes any party from whom a
17-13 claimant seeks recovery of damages pursuant to the provisions of
17-14 Section 33.001 at the time of the submission of the case to the
17-15 trier of fact.>
17-16 <(3) "Liable defendant" means a defendant against whom
17-17 a judgment can be entered for at least a portion of the damages
17-18 awarded to the claimant.>
17-19 <(4) "Percentage of responsibility" means that
17-20 percentage attributed by the trier of fact to each claimant, each
17-21 defendant, or each settling person with respect to causing or
17-22 contributing to cause in any way, whether by negligent act or
17-23 omission, by any defective or unreasonably dangerous product, by
17-24 other conduct or activity violative of the applicable legal
17-25 standard, or by any combination of the foregoing, the personal
17-26 injury, property damage, death, or other harm for which recovery of
17-27 damages is sought.>
18-1 <(5) "Settling person" means a person who at the time
18-2 of submission has paid or promised to pay money or anything of
18-3 monetary value to a claimant at any time in consideration of
18-4 potential liability pursuant to the provisions of Section 33.001
18-5 with respect to the personal injury, property damage, death, or
18-6 other harm for which recovery of damages is sought.>
18-7 <Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is
18-8 not barred from recovery under Section 33.001, the court shall
18-9 reduce the amount of damages to be recovered by the claimant with
18-10 respect to a cause of action by a percentage equal to the
18-11 claimant's percentage of responsibility.>
18-12 <(b) If the claimant has settled with one or more persons,
18-13 the court shall further reduce the amount of damages to be
18-14 recovered by the claimant with respect to a cause of action by a
18-15 credit equal to one of the following, as elected in accordance with
18-16 Section 33.014:>
18-17 <(1) the sum of the dollar amounts of all settlements;
18-18 or>
18-19 <(2) a dollar amount equal to the sum of the following
18-20 percentages of damages found by the trier of fact:>
18-21 <(A) 5 percent of those damages up to $200,000;>
18-22 <(B) 10 percent of those damages from $200,001
18-23 to $400,000;>
18-24 <(C) 15 percent of those damages from $400,001
18-25 to $500,000; and>
18-26 <(D) 20 percent of those damages greater than
18-27 $500,000.>
19-1 <(c) The amount of damages recoverable by the claimant may
19-2 only be reduced once by the credit provided for in Subsection (b).>
19-3 Sec. 33.006 <33.013>. Amount of Liability. (a) This
19-4 section applies only if a claimant is not barred from recovery
19-5 under Section 33.002.
19-6 (b) A <Except as provided in Subsections (b) and (c), a>
19-7 liable defendant is liable to a claimant only for an amount of
19-8 damages calculated by multiplying the total amount of the
19-9 claimant's damages as found by the trier of fact by the defendant's
19-10 percentage of responsibility as found by the trier of fact.
19-11 (c) A court may not enter a judgment against a liable
19-12 defendant that results in the defendant's being jointly liable for
19-13 the claimant's damages. <the percentage of the damages found by
19-14 the trier of fact equal to that defendant's percentage of
19-15 responsibility with respect to the personal injury, property
19-16 damage, death, or other harm for which the damages are allowed.>
19-17 <(b) Notwithstanding Subsection (a), each liable defendant
19-18 is, in addition to his liability under Subsection (a), jointly and
19-19 severally liable for the damages recoverable by the claimant under
19-20 Section 33.012 with respect to a cause of action if:>
19-21 <(1) the percentage of responsibility attributed to
19-22 the defendant is greater than 20 percent; and>
19-23 <(2) only for a negligence action pursuant to Section
19-24 33.001(a) or (c), the percentage of responsibility attributed to
19-25 the defendant is greater than the percentage of responsibility
19-26 attributed to the claimant.>
19-27 <(c) Notwithstanding Subsection (a), each liable defendant
20-1 is, in addition to his liability under Subsection (a), jointly and
20-2 severally liable for the damages recoverable by the claimant under
20-3 Section 33.012 with respect to a cause of action if:>
20-4 <(1) no percentage of responsibility is attributed to
20-5 the claimant and the percentage of responsibility attributed to the
20-6 defendant is greater than 10 percent; or>
20-7 <(2) the claimant's personal injury, property damage,
20-8 or death is caused by the depositing, discharge, or release into
20-9 the environment of any hazardous or harmful substance as described
20-10 in Subdivision (3); or>
20-11 <(3) the claimant's personal injury, property damage,
20-12 or death resulted from a "toxic tort." "Toxic tort" means a cause
20-13 of action in tort or for breach of implied warranty under Chapter
20-14 2, Business & Commerce Code, arising out of exposure to hazardous
20-15 chemicals, hazardous wastes, hazardous hydrocarbons, similarly
20-16 harmful organic or mineral substances, hazardous radiation sources,
20-17 and other similarly harmful substances (which usually, but need not
20-18 necessarily, arise in the work place), but not including any "drug"
20-19 as defined in Section 81.001(3), Civil Practice and Remedies Code.>
20-20 (d) This section does not create a cause of action.
20-21 <Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. (a) If a
20-22 claimant has settled with one or more persons, an election must be
20-23 made as to which dollar credit is to be applied under Section
20-24 33.012(b). This election shall be made by any defendant filing a
20-25 written election before the issues of the action are submitted to
20-26 the trier of fact and, when made, shall be binding on all
20-27 defendants. If no defendant makes this election or if conflicting
21-1 elections are made, all defendants are considered to have elected
21-2 Subdivision (2) of Section 33.012(b).>
21-3 <Sec. 33.015. CONTRIBUTION. (a) If a defendant who is
21-4 jointly and severally liable under Section 33.013 pays a percentage
21-5 of the damages for which the defendant is jointly and severally
21-6 liable greater than his percentage of responsibility, that
21-7 defendant has a right of contribution for the overpayment against
21-8 each other liable defendant to the extent that the other liable
21-9 defendant has not paid the percentage of the damages found by the
21-10 trier of fact equal to that other defendant's percentage of
21-11 responsibility.>
21-12 <(b) As among themselves, each of the defendants who is
21-13 jointly and severally liable under Section 33.013 is liable for the
21-14 damages recoverable by the claimant under Section 33.012 in
21-15 proportion to his respective percentage of responsibility. If a
21-16 defendant who is jointly and severally liable pays a larger
21-17 proportion of those damages than is required by his percentage of
21-18 responsibility, that defendant has a right of contribution for the
21-19 overpayment against each other defendant with whom he is jointly
21-20 and severally liable under Section 33.013 to the extent that the
21-21 other defendant has not paid the proportion of those damages
21-22 required by that other defendant's percentage of responsibility.>
21-23 <(c) If for any reason a liable defendant does not pay or
21-24 contribute the portion of the damages required by his percentage of
21-25 responsibility, the amount of the damages not paid or contributed
21-26 by that defendant shall be paid or contributed by the remaining
21-27 defendants who are jointly and severally liable for those damages.
22-1 The additional amount to be paid or contributed by each of the
22-2 defendants who is jointly and severally liable for those damages
22-3 shall be in proportion to his respective percentage of
22-4 responsibility.>
22-5 <(d) No defendant has a right of contribution against any
22-6 settling person.>
22-7 <Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In
22-8 this section, "contribution defendant" means any defendant, counter
22-9 defendant, or third-party defendant from whom any party seeks
22-10 contribution with respect to any portion of damages for which that
22-11 party may be liable, but from whom the claimant seeks no relief at
22-12 the time of submission.>
22-13 <(b) Each liable defendant is entitled to contribution from
22-14 each person who is not a settling person and who is liable to the
22-15 claimant for a percentage of responsibility but from whom the
22-16 claimant seeks no relief at the time of submission. A party may
22-17 assert this contribution right against any such person as a
22-18 contribution defendant in the claimant's action.>
22-19 <(c) The trier of fact shall determine as a separate issue
22-20 or finding of fact the percentage of responsibility with respect to
22-21 each contribution defendant and these findings shall be solely for
22-22 purposes of this section and Section 33.015 and not as a part of
22-23 the percentages of responsibility determined under Section 33.003.
22-24 Only the percentage of responsibility of each defendant and
22-25 contribution defendant shall be included in this determination.>
22-26 <(d) As among liable defendants, including each defendant
22-27 who is jointly and severally liable under Section 33.013, each
23-1 contribution defendant's percentage of responsibility is to be
23-2 included for all purposes of Section 33.015. The amount to be
23-3 contributed by each contribution defendant pursuant to Section
23-4 33.015 shall be in proportion to his respective percentage of
23-5 responsibility relative to the sum of percentages of responsibility
23-6 of all liable defendants and liable contribution defendants.>
23-7 SECTION 2.02. Section 32.001, Civil Practice and Remedies
23-8 Code, is amended by adding Subsection (c) to read as follows:
23-9 (c) This chapter does not apply to an action to which
23-10 Chapter 33 applies.
23-11 SECTION 2.03. This article takes effect September 1, 1995,
23-12 and applies only to a cause of action that accrues on or after that
23-13 date. A cause of action that accrued before the effective date of
23-14 this article is governed by the law in effect at the time the
23-15 action accrued, and that law is continued in effect for that
23-16 purpose.
23-17 ARTICLE 3. EXEMPLARY DAMAGES
23-18 SECTION 3.01. Chapter 41, Civil Practice and Remedies Code,
23-19 is amended to read as follows:
23-20 CHAPTER 41. EXEMPLARY DAMAGES
23-21 Sec. 41.001. DEFINITIONS. In this chapter:
23-22 (1) "Claimant" means a party, including a plaintiff,
23-23 counterclaimant, cross-claimant, or third-party plaintiff, seeking
23-24 recovery of exemplary damages. In a cause of action in which a
23-25 party seeks recovery of exemplary damages related to injury to
23-26 another person, damage to the property of another person, death of
23-27 another person, or other harm to another person, "claimant"
24-1 includes both that other person and the party seeking recovery of
24-2 exemplary damages.
24-3 (2) "Defendant" means a party, including a
24-4 counterdefendant, cross-defendant, or third-party defendant, from
24-5 whom a claimant seeks relief with respect to exemplary damages.
24-6 (3) "Economic damages" means damages for pecuniary
24-7 loss, including damages for loss of or damage to property and
24-8 damages for lost wages, loss of earning capacity, expenses for
24-9 medical care, and burial expenses. The term does not include
24-10 damages for pain and suffering, mental anguish, loss associated
24-11 with disfigurement, or loss of companionship or consortium.
24-12 (4) "Exemplary damages" means any damages awarded as
24-13 <an example to others, as> a penalty<,> or by way of punishment.
24-14 "Exemplary damages" includes punitive damages.
24-15 (5) <(4)> "Fraud" means fraud other than constructive
24-16 fraud.
24-17 <(5) "Gross negligence" means more than momentary
24-18 thoughtlessness, inadvertence, or error of judgment. It means such
24-19 an entire want of care as to establish that the act or omission was
24-20 the result of actual conscious indifference to the rights, safety,
24-21 or welfare of the person affected.>
24-22 (6) "Malice" means:
24-23 (A) a specific intent <conduct that is
24-24 specifically intended> by the defendant to cause substantial injury
24-25 to the claimant; or
24-26 (B) <an act that is carried out by the defendant
24-27 with a> flagrant disregard by the defendant for the rights of
25-1 others and <with> actual awareness on the part of the defendant
25-2 that the act or omission will, in reasonable probability, result in
25-3 human death, great bodily injury <harm>, or property damage.
25-4 (7) "Owner" means a person who, in whole or in part,
25-5 owns, operates, manages, leases, subleases, controls, assumes
25-6 control of, or derives a benefit from any real property. The term
25-7 includes an employee or agent of an owner.
25-8 Sec. 41.002. APPLICABILITY. (a) This chapter applies to
25-9 any <an> action in which a claimant seeks exemplary damages
25-10 relating to a cause of action <as defined by Section 33.001>.
25-11 (b) This chapter establishes the maximum exemplary damages
25-12 that may be awarded in an action subject to this chapter, including
25-13 an action for which exemplary damages are awarded under another law
25-14 of this state. This chapter does not apply to the extent another
25-15 law establishes a lower maximum amount of exemplary damages for a
25-16 particular claim<:>
25-17 <(1) an action brought under the Deceptive Trade
25-18 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
25-19 Business & Commerce Code) except as specifically provided in
25-20 Section 17.50 of that Act;>
25-21 <(2) an action brought under Chapter 21, Insurance
25-22 Code;>
25-23 <(3) an action brought under the workers' compensation
25-24 laws of this state (Article 8306 et seq., Revised Statutes);>
25-25 <(4) an action to recover exemplary damages against an
25-26 employer by the employee's beneficiaries in a death action arising
25-27 out of the course and scope of employment where the employer is a
26-1 subscriber under the workers' compensation laws of this state
26-2 (Article 8306 et seq., Revised Statutes);>
26-3 <(5) an action brought under Chapter 246, Acts of the
26-4 63rd Legislature, Regular Session, 1973, Home Solicitation
26-5 Transactions (Article 5069-13.01 et seq., Vernon's Texas Civil
26-6 Statutes);>
26-7 <(6) an action brought under Chapter 547, Acts of the
26-8 63rd Legislature, Regular Session, 1973, Debt Collection Practices
26-9 (Article 5069-11.01 et seq., Vernon's Texas Civil Statutes);>
26-10 <(7) an action brought under Chapter 54, 91, or 92,
26-11 Property Code;>
26-12 <(8) an action brought under the Texas Manufactured
26-13 Housing Standards Act (Article 5221f, Vernon's Texas Civil
26-14 Statutes);>
26-15 <(9) an action brought under the Texas Motor Vehicle
26-16 Commission Code (Article 4413(36), Vernon's Texas Civil Statutes);>
26-17 <(10) an action brought under the Texas Proprietary
26-18 School Act, Chapter 32, Education Code;>
26-19 <(11) an action brought under Section 9.507 or Section
26-20 27.01, Business & Commerce Code;>
26-21 <(12) an action brought under Chapter 36, Family Code;>
26-22 <(13) an action brought under the Health Spa Act
26-23 (Article 5221l, Vernon's Texas Civil Statutes);>
26-24 <(14) an action brought under the Business Opportunity
26-25 Act (Article 5069-16.01 et seq., Vernon's Texas Civil Statutes); or>
26-26 <(15) an action brought under the Texas Timeshare Act
26-27 (Article 6573c, Vernon's Texas Civil Statutes)>.
27-1 (c) Except as provided by Subsection (b), in <In> an action
27-2 to which this chapter applies, the provisions of this chapter
27-3 prevail over all other law to the extent of any conflict.
27-4 Sec. 41.003. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES.
27-5 (a) Except as provided by Subsection (c) and Section 41.004,
27-6 exemplary <Exemplary> damages may be awarded only if the claimant
27-7 proves that the <personal injury, property damage, death, or other>
27-8 harm with respect to which the claimant seeks recovery of exemplary
27-9 damages results from:
27-10 (1) fraud; or
27-11 (2) malice<; or>
27-12 <(3) gross negligence>.
27-13 (b) The claimant must prove the elements of exemplary
27-14 damages as provided by this section beyond a reasonable doubt
27-15 <Subsection (a)(1), (a)(2), or (a)(3)>. This burden of proof may
27-16 not be shifted to the defendant or satisfied by evidence of
27-17 ordinary negligence, bad faith, or a deceptive trade practice.
27-18 (c) If the claimant relies on a statute establishing a cause
27-19 of action and authorizing exemplary damages in specified
27-20 circumstances or in conjunction with a specified culpable mental
27-21 state, exemplary damages may be awarded only if the claimant proves
27-22 that the damages result from the specified circumstances or
27-23 culpable mental state.
27-24 Sec. 41.004. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES IN
27-25 CERTAIN ACTIONS. (a) In an action governed by Section 26, Article
27-26 XVI, Texas Constitution, exemplary damages may be awarded if the
27-27 claimant proves beyond a reasonable doubt that the death with
28-1 respect to which the claimant seeks recovery of exemplary damages
28-2 results from a wilful act or omission or from gross neglect.
28-3 (b) For purposes of this section, gross neglect means more
28-4 than momentary thoughtlessness, inadvertence, or error of judgment.
28-5 (c) To prove gross neglect, the claimant must establish
28-6 that:
28-7 (1) the defendant's act or omission created an extreme
28-8 risk of serious harm to the person affected by the act or omission;
28-9 and
28-10 (2) at the time of the act or omission, the defendant
28-11 had actual subjective knowledge that the act or omission created an
28-12 extreme risk of serious harm to the person affected by the act or
28-13 omission.
28-14 Sec. 41.005. FACTORS PRECLUDING RECOVERY. (a) Except as
28-15 provided by Subsection (b), exemplary <Exemplary> damages may be
28-16 awarded only if damages other than nominal damages are awarded.
28-17 (b) A claimant may recover exemplary damages, even if only
28-18 nominal damages are awarded, if the claimant establishes, beyond a
28-19 reasonable doubt, that the harm with respect to which the claimant
28-20 seeks recovery of exemplary damages results from malice as
28-21 described by Section 41.001(6)(A). <Exemplary damages may not be
28-22 awarded to a claimant who elects to have his recovery multiplied
28-23 under another statute.>
28-24 Sec. 41.006. MULTIPLE AWARDS AGAINST DEFENDANT. (a) Except
28-25 as provided by Subsection (d), a court may not award exemplary
28-26 damages to a claimant if:
28-27 (1) exemplary damages have been previously awarded
29-1 against the defendant by a court; and
29-2 (2) the harm with respect to which the claimant seeks
29-3 recovery of exemplary damages resulted from the same act or course
29-4 of conduct that formed the basis of the previous exemplary damage
29-5 award.
29-6 (b) On request of a defendant, the court shall conduct a
29-7 pretrial hearing at which the defendant may present evidence that
29-8 exemplary damages have been previously awarded against the
29-9 defendant for the same act or course of conduct that formed the
29-10 basis of the action.
29-11 (c) Except as provided by Subsection (d), if the defendant
29-12 at the pretrial hearing presents prima facie evidence of a previous
29-13 award of exemplary damages as described by Subsection (a), the
29-14 claimant may not present a claim for exemplary damages during the
29-15 trial of the action.
29-16 (d) Subsections (a) and (c) do not apply if the claimant
29-17 establishes at the pretrial hearing that:
29-18 (1) substantial evidence of malice, fraud, or other
29-19 circumstances or culpable mental state described by Section
29-20 41.003(c) relating to the act or course of conduct exists; and
29-21 (2) that evidence was not available at the time the
29-22 previous exemplary damage award was entered.
29-23 (e) If the claimant makes the showing required by Subsection
29-24 (d), the court shall reduce the amount of exemplary damages awarded
29-25 to the claimant, if any, by the amount of all previous exemplary
29-26 damage awards against the defendant based on the same act or course
29-27 of conduct.
30-1 (f) For purposes of this section, the manufacture of
30-2 multiple identical individual units of a product line is a single
30-3 act or course of conduct.
30-4 Sec. 41.007. HARM RESULTING FROM REGULATED ACTIVITY. (a)
30-5 Except as provided by Subsections (b) and (c), a court may not
30-6 award a claimant exemplary damages if the harm with respect to
30-7 which the claimant seeks recovery of exemplary damages results
30-8 from:
30-9 (1) conduct or a product that is subject to regulation
30-10 by an agency of this state or the United States; or
30-11 (2) a product whose design, formulation, testing,
30-12 packaging, labeling, or warning was approved or certified before
30-13 sale by an agency of this state or the United States.
30-14 (b) A court may award a claimant exemplary damages in the
30-15 circumstances described by Subsection (a)(1) if the claimant proves
30-16 that the defendant did not comply with applicable regulations
30-17 promulgated by the regulating agency.
30-18 (c) Subsection (a) does not apply if the claimant proves
30-19 that the defendant:
30-20 (1) knowingly and in violation of law withheld or
30-21 misrepresented material information required to be submitted to the
30-22 regulating agency; or
30-23 (2) made an illegal payment to an official of the
30-24 regulating agency to secure approval of the conduct or product in
30-25 question.
30-26 Sec. 41.008. HARM RESULTING FROM CRIMINAL ACT. In an action
30-27 arising from a loss, injury, or death resulting from an assault,
31-1 theft, or another criminal act, a court may not award exemplary
31-2 damages against an owner of real property on which the criminal act
31-3 occurred, in whole or in part, or on which the resulting harm
31-4 occurred, in whole or in part, unless the owner is an active
31-5 participant, acting with malice, in the criminal act.
31-6 Sec. 41.009 <41.005>. AWARD SPECIFIC TO DEFENDANT. In any
31-7 action in which there are two or more defendants, an award of
31-8 exemplary damages must be specific as to a defendant, and each
31-9 defendant is liable only for the amount of the award made against
31-10 that defendant.
31-11 Sec. 41.010 <41.006>. PREJUDGMENT INTEREST. Prejudgment
31-12 interest may not be assessed or recovered on an award of exemplary
31-13 damages.
31-14 Sec. 41.011 <41.007>. LIMITATION ON AMOUNT OF RECOVERY. (a)
31-15 In an action in which a claimant seeks recovery of exemplary
31-16 damages, the trier of fact shall determine the amount of economic
31-17 damages separately from the amount of other compensatory damages.
31-18 (b) Exemplary <Except as provided by Section 41.008,
31-19 exemplary> damages awarded against a defendant may not exceed two
31-20 <four> times the amount of economic <actual> damages or $200,000,
31-21 whichever is greater.
31-22 (c) The provisions of Subsection (b) may not be made known
31-23 to a jury by any means, including voir dire, introduction into
31-24 evidence, argument, or instruction.
31-25 Sec. 41.012. BIFURCATED TRIAL. (a) On motion by a
31-26 defendant, the court shall provide for a bifurcated trial under
31-27 this section. A motion under this subsection must be made before
32-1 the defendant is asked to announce ready for trial or at a
32-2 different time specified by a pretrial court order issued under
32-3 Rule 166, Texas Rules of Civil Procedure.
32-4 (b) In an action with more than one defendant, the court
32-5 shall provide for a bifurcated trial on motion of any defendant.
32-6 (c) In the first phase of a bifurcated trial, the trier of
32-7 fact shall determine:
32-8 (1) liability for compensatory and exemplary damages;
32-9 and
32-10 (2) the amount of compensatory damages.
32-11 (d) If liability for exemplary damages is established during
32-12 the first phase of a bifurcated trial, the trier of fact shall, in
32-13 the second phase of the trial, determine the amount of exemplary
32-14 damages to be awarded, if any.
32-15 (e) Evidence that is relevant only to the amount of
32-16 exemplary damages that may be awarded is not admissible during the
32-17 first phase of a bifurcated trial.
32-18 Sec. 41.013. UNANIMOUS JURY. In a trial to a jury,
32-19 exemplary damages may not be awarded unless the jury unanimously
32-20 finds that the defendant is liable for exemplary damages in
32-21 accordance with Section 41.003.
32-22 Sec. 41.014. CONSIDERATIONS IN MAKING AWARD. (a) Before
32-23 making an award of exemplary damages, the trier of fact shall
32-24 consider the definition and purposes of exemplary damages as
32-25 provided by Section 41.001.
32-26 (b) The determination of whether to award exemplary damages
32-27 and the amount of exemplary damages to be awarded is within the
33-1 discretion of the trier of fact.
33-2 Sec. 41.015. EVIDENCE RELATING TO AMOUNT OF EXEMPLARY
33-3 DAMAGES. (a) In determining the amount of exemplary damages, the
33-4 trier of fact may only consider evidence relating to:
33-5 (1) the reprehensibility of the defendant's motives;
33-6 (2) the likelihood, at the time of the conduct, of
33-7 serious harm;
33-8 (3) the defendant's awareness of the likelihood of
33-9 serious harm;
33-10 (4) the duration of the conduct; and
33-11 (5) the harm suffered by the claimant.
33-12 (b) In determining the amount of exemplary damages, the
33-13 trier of fact may not consider evidence relating to the defendant's
33-14 wealth or ability to pay, including the defendant's net worth and
33-15 gross or net revenues.
33-16 Sec. 41.016. JURY INSTRUCTIONS. In a trial to a jury, the
33-17 court shall instruct the jury with regard to Sections 41.014 and
33-18 41.015(a).
33-19 Sec. 41.017. JUDICIAL REVIEW OF AWARD. An appellate court
33-20 that reviews the evidence with respect to a finding by a trier of
33-21 fact concerning liability for exemplary damages or with respect to
33-22 the amount of exemplary damages awarded shall state, in a written
33-23 opinion, the court's reasons for upholding or disturbing the
33-24 finding or award. The written opinion must address the evidence or
33-25 lack of evidence with specificity, as it relates to the liability
33-26 for or amount of exemplary damages, in light of the requirements of
33-27 this chapter.
34-1 <Sec. 41.008. EXCEPTION. Section 41.007 does not apply to
34-2 exemplary damages resulting from malice as defined by Section
34-3 41.001(6)(A) or to an intentional tort.>
34-4 <Sec. 41.009. PROVISIONS NOT TO BE MADE KNOWN TO JURY. The
34-5 provisions of Section 41.007 may not be made known to the jury
34-6 through any means, including voir dire, introduction into evidence,
34-7 or instruction.>
34-8 SECTION 3.02. (a) Section 408.001(b), Labor Code, is
34-9 amended to read as follows:
34-10 (b) This section does not prohibit the recovery of exemplary
34-11 damages by the surviving spouse or heirs of the body of a deceased
34-12 employee whose death was caused by an intentional act or omission
34-13 of the employer or by the employer's gross neglect, subject to
34-14 Chapter 41, Civil Practice and Remedies Code <negligence>.
34-15 (b) Section 408.001(c), Labor Code, is repealed.
34-16 SECTION 3.03. This article takes effect September 1, 1995,
34-17 and applies only to a cause of action that commences on or after
34-18 that date. An action that commenced before the effective date of
34-19 this article is governed by the law applicable to the action as it
34-20 existed immediately before the effective date of this article, and
34-21 that law is continued in effect for that purpose.
34-22 ARTICLE 4. EMERGENCY
34-23 SECTION 4.01. The importance of this legislation and the
34-24 crowded condition of the calendars in both houses create an
34-25 emergency and an imperative public necessity that the
34-26 constitutional rule requiring bills to be read on three several
34-27 days in each house be suspended, and this rule is hereby suspended.