By Corte, Chisum H.B. No. 1153
74R1509 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to attorney's fees in civil actions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 38, Civil Practice and Remedies Code, is
1-5 amended to read as follows:
1-6 CHAPTER 38. ATTORNEY'S FEES
1-7 Sec. 38.001. DEFINITIONS. In this chapter:
1-8 (1) "Claim" means a claim, including a counterclaim,
1-9 cross-claim, or third-party claim, seeking recovery of damages or
1-10 other civil relief.
1-11 (2) "Claimant" means a party making a claim, including
1-12 a plaintiff, counterclaimant, cross-claimant, or third-party
1-13 claimant.
1-14 (3) "Defendant" means a party, including a
1-15 counterdefendant, cross-defendant, or third-party defendant,
1-16 against whom a claimant makes a claim <RECOVERY OF ATTORNEY'S FEES.
1-17 A person may recover reasonable attorney's fees from an individual
1-18 or corporation, in addition to the amount of a valid claim and
1-19 costs, if the claim is for:>
1-20 <(1) rendered services;>
1-21 <(2) performed labor;>
1-22 <(3) furnished material;>
1-23 <(4) freight or express overcharges;>
1-24 <(5) lost or damaged freight or express;>
2-1 <(6) killed or injured stock;>
2-2 <(7) a sworn account; or>
2-3 <(8) an oral or written contract>.
2-4 Sec. 38.002. SCOPE OF CHAPTER. This chapter applies to any
2-5 claim for civil relief in a court of this state, including a claim
2-6 for damages or for injunctive, declaratory, or other equitable
2-7 relief.
2-8 Sec. 38.003. AWARD TO PREVAILING PARTY. (a)
2-9 Notwithstanding any other law, a court shall award the party who
2-10 prevails on a claim reasonable attorney's fees as appropriate for
2-11 that claim.
2-12 (b) For purposes of this chapter:
2-13 (1) the claimant prevails on a claim if damages or
2-14 other favorable relief is granted to the claimant for that claim;
2-15 and
2-16 (2) the defendant prevails on a claim if damages or
2-17 other favorable relief is not granted to the claimant for that
2-18 claim.
2-19 Sec. 38.004. MULTIPLE CLAIMS. In a case in which there are
2-20 multiple claims for civil relief and different parties prevail on
2-21 different claims, the court shall compute the appropriate award of
2-22 attorney's fees for each claim separately.
2-23 Sec. 38.005. MUST BE REPRESENTED BY ATTORNEY <PROCEDURE FOR
2-24 RECOVERY OF ATTORNEY'S FEES>. To recover attorney's fees under
2-25 this chapter<:>
2-26 <(1)> the person to whom attorney's fees are to be
2-27 awarded <claimant> must be represented by an attorney<;>
3-1 <(2) the claimant must present the claim to the
3-2 opposing party or to a duly authorized agent of the opposing party;
3-3 and>
3-4 <(3) payment for the just amount owed must not have
3-5 been tendered before the expiration of the 30th day after the claim
3-6 is presented>.
3-7 Sec. 38.006 <38.003>. PRESUMPTION. It is presumed that the
3-8 usual and customary attorney's fees for a claim of the type for
3-9 which attorney's fees are to be awarded <described in Section
3-10 38.001> are reasonable. The presumption may be rebutted.
3-11 Sec. 38.007. CONTINGENT FEE. (a) A payment of attorney's
3-12 fees made under this chapter for an attorney who is representing a
3-13 client for a contingent fee shall be paid to the client and not to
3-14 the attorney.
3-15 (b) The actual amount paid to an attorney who is
3-16 representing a client for a contingent fee shall be computed using
3-17 the amount of any award to the claimant, less the amount of
3-18 attorney's fees awarded under this chapter. This subsection
3-19 applies without regard to any conflicting provision in the
3-20 agreement between the attorney and the client.
3-21 (c) In this section, "contingent fee" means a fee that is:
3-22 (1) contingent on the outcome of litigation; and
3-23 (2) computed as a percentage of the award made to the
3-24 client.
3-25 Sec. 38.008 <38.004>. JUDICIAL NOTICE. The court may take
3-26 judicial notice of the usual and customary attorney's fees and of
3-27 the contents of the case file without receiving further evidence
4-1 in:
4-2 (1) a proceeding before the court; or
4-3 (2) a jury case in which the amount of attorney's fees
4-4 is submitted to the court by agreement.
4-5 Sec. 38.009 <38.005>. LIBERAL CONSTRUCTION. This chapter
4-6 shall be liberally construed to promote its underlying purposes.
4-7 Sec. 38.010 <38.006>. CONSTRUCTION OF OTHER LAW. This
4-8 chapter prevails over another provision of law that became
4-9 effective before September 1, 1995, that purports to authorize an
4-10 award of attorney's fees to any party to a claim for civil relief
4-11 <EXCEPTIONS. This chapter does not apply to a contract issued by an
4-12 insurer that is subject to the provisions of:>
4-13 <(1) Article 3.62, Insurance Code;>
4-14 <(2) Section 1, Chapter 387, Acts of the 55th
4-15 Legislature, Regular Session, 1957 (Article 3.62-1, Vernon's Texas
4-16 Insurance Code);>
4-17 <(3) Chapter 9, Insurance Code;>
4-18 <(4) Article 21.21, Insurance Code; or>
4-19 <(5) the Unfair Claim Settlement Practices Act
4-20 (Article 21.21-2, Insurance Code)>.
4-21 SECTION 2. This Act takes effect September 1, 1995, and
4-22 applies only to a claim for civil relief in a suit that is
4-23 commenced on or after the effective date of this Act. A claim for
4-24 civil relief in a suit that is commenced before the effective date
4-25 of this Act is governed by the law applicable to the claim
4-26 immediately before the effective date of this Act, and that law is
4-27 continued in effect for that purpose.
5-1 SECTION 3. Notwithstanding Section 2 of this Act, this Act
5-2 does not apply to a claim for civil relief if:
5-3 (1) before the effective date of this Act, the
5-4 claimant and the claimant's attorney entered into a contingent fee
5-5 agreement applicable to the claim;
5-6 (2) in the absence of this Act, the attorney's fee
5-7 would be paid under the contingent fee agreement; and
5-8 (3) the agreement is filed with the court before the
5-9 date on which the court makes the award of fees.
5-10 SECTION 4. The importance of this legislation and the
5-11 crowded condition of the calendars in both houses create an
5-12 emergency and an imperative public necessity that the
5-13 constitutional rule requiring bills to be read on three several
5-14 days in each house be suspended, and this rule is hereby suspended.