By Nixon H.B. No. 1352 74R5636 DLF-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to summary judgments in civil actions. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Subtitle C, Title 2, Civil Practice and Remedies 1-5 Code, is amended by adding Chapter 40 to read as follows: 1-6 CHAPTER 40. SUMMARY JUDGMENT 1-7 Sec. 40.001. DEFINITIONS. In this chapter: 1-8 (1) "Claimant" means a party, including a plaintiff, 1-9 counterclaimant, cross-claimant, or third-party claimant, seeking 1-10 recovery of damages or other affirmative relief. 1-11 (2) "Defendant" means a party, including a 1-12 counterdefendant, cross-defendant, or third-party defendant, from 1-13 whom a claimant seeks damages or other affirmative relief. 1-14 Sec. 40.002. MOTION BY CLAIMANT. (a) Except as provided by 1-15 Subsection (c), for a claim for which a claimant moves for summary 1-16 judgment, the court shall grant the motion if the claimant proves: 1-17 (1) each essential element of the claim; and 1-18 (2) that there is not an issue of material fact with 1-19 respect to the claim. 1-20 (b) The burden of proof applicable under Subsection (a) is 1-21 the burden that would apply at the trial of the claim. The court 1-22 shall consider any question as to the sufficiency of the evidence 1-23 in the light most favorable to the defendant. 1-24 (c) The court may not grant a motion for summary judgment 2-1 under Subsection (a) if the defendant establishes that there is an 2-2 issue of material fact as to whether an affirmative defense applies 2-3 to the claim. The defendant is not required to prove each element 2-4 of the affirmative defense. 2-5 Sec. 40.003. MOTION BY DEFENDANT. (a) For a claim for 2-6 which a defendant moves for summary judgment, the court shall grant 2-7 the motion if the defendant: 2-8 (1) proves a complete failure by the claimant to prove 2-9 an essential element of the claim; 2-10 (2) disapproves an essential element of the claim; or 2-11 (3) proves each essential element of an affirmative 2-12 defense applicable to the claim and proves that there is not an 2-13 issue of material fact with respect to the defense. 2-14 (b) The burden of proof applicable under Subsection (a) is 2-15 the burden that would apply at the trial of the claim. The court 2-16 shall consider any question as to the sufficiency of the evidence 2-17 in the light most favorable to the claimant. 2-18 Sec. 40.004. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE. 2-19 (a) To the extent of any conflict with Section 166a, Texas Rules 2-20 of Civil Procedure, this section controls. 2-21 (b) Notwithstanding Section 22.004, Government Code, this 2-22 chapter may not be modified or repealed by a rule adopted by the 2-23 supreme court. 2-24 SECTION 2. This Act takes effect September 1, 1995, and 2-25 applies only to a claim that is filed on or after the effective 2-26 date of this Act. A claim that is filed before the effective date 2-27 of this Act is governed by the law as it existed immediately before 3-1 the effective date of this Act, and that law is continued in effect 3-2 for that purpose. 3-3 SECTION 3. The importance of this legislation and the 3-4 crowded condition of the calendars in both houses create an 3-5 emergency and an imperative public necessity that the 3-6 constitutional rule requiring bills to be read on three several 3-7 days in each house be suspended, and this rule is hereby suspended.