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.