74R9539 E
          By Sibley, et al.                                       S.B. No. 25
          Substitute the following for S.B. No. 25:
          By Black                                            C.S.S.B. No. 25
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to exemplary damages in civil suits.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 41, Civil Practice and Remedies Code, is
    1-5  amended to read as follows:
    1-6                    CHAPTER 41.  EXEMPLARY DAMAGES
    1-7        Sec. 41.001.  DEFINITIONS.  In this chapter:
    1-8              (1)  "Claimant" means a party, including a plaintiff,
    1-9  counterclaimant, cross-claimant, or third-party plaintiff, seeking
   1-10  recovery of exemplary damages.  In a cause of action in which a
   1-11  party seeks recovery of exemplary damages related to injury to
   1-12  another person, damage to the property of another person, death of
   1-13  another person, or other harm to another person, "claimant"
   1-14  includes both that other person and the party seeking recovery of
   1-15  exemplary damages.
   1-16              (2)  "Clear and convincing" means the measure or degree
   1-17  of proof that will produce in the mind of the trier of fact a firm
   1-18  belief or conviction as to the truth of the allegations sought to
   1-19  be established.
   1-20              (3)  "Defendant" means a party, including a
   1-21  counterdefendant, cross-defendant, or third-party defendant, from
   1-22  whom a claimant seeks relief with respect to exemplary damages.
   1-23              (4)  "Economic damages" means compensatory damages for
   1-24  pecuniary loss; the term does not include exemplary damages or
    2-1  damages for physical pain and mental anguish, loss of consortium,
    2-2  disfigurement, physical impairment, or loss of companionship and
    2-3  society.
    2-4              (5) <(3)>  "Exemplary damages" means any damages
    2-5  awarded as <an example to others, as> a penalty<,> or by way of
    2-6  punishment.  "Exemplary damages" includes punitive damages.
    2-7              (6) <(4)>  "Fraud" means fraud other than constructive
    2-8  fraud.
    2-9              (7) <(5)  "Gross negligence" means more than momentary
   2-10  thoughtlessness, inadvertence, or error of judgment.  It means such
   2-11  an entire want of care as to establish that the act or omission was
   2-12  the result of actual conscious indifference to the rights, safety,
   2-13  or welfare of the person affected.>
   2-14              <(6)>  "Malice" means:
   2-15                    (A)  a specific intent <conduct that is
   2-16  specifically intended> by the defendant to cause substantial injury
   2-17  to the claimant; or
   2-18                    (B)  an act or omission:
   2-19                          (i)  which when viewed objectively from the
   2-20  standpoint of the actor at the time of its occurrence involves an
   2-21  extreme degree of risk, considering the probability and magnitude
   2-22  of the potential harm to others; and
   2-23                          (ii)  of which the actor has actual,
   2-24  subjective awareness of the risk involved, but nevertheless
   2-25  proceeds with conscious indifference to the rights, safety, or
   2-26  welfare of others <that is carried out by the defendant with a
   2-27  flagrant disregard for the rights of others and with actual
    3-1  awareness on the part of the defendant that the act  will, in
    3-2  reasonable probability, result in human death, great bodily  harm,
    3-3  or property damage>.
    3-4        Sec. 41.002.  APPLICABILITY.  (a)  This chapter applies to
    3-5  any <an> action in which a claimant seeks exemplary damages
    3-6  relating to a cause of action <as defined by Section 33.001>.
    3-7        (b)  This chapter establishes the maximum exemplary damages
    3-8  that may be awarded in an action subject to this chapter, including
    3-9  an action for which exemplary damages are awarded under another law
   3-10  of this state.  This chapter does not apply to the extent another
   3-11  law establishes a lower maximum amount of exemplary damages for a
   3-12  particular claim<:>
   3-13              <(1)  an action brought under the Deceptive Trade
   3-14  Practices-Consumer Protection Act (Subchapter E, Chapter 17,
   3-15  Business & Commerce Code) except as specifically provided in
   3-16  Section 17.50 of that Act;>
   3-17              <(2)  an action brought under Chapter 21, Insurance
   3-18  Code;>
   3-19              <(3)  an action brought under the workers' compensation
   3-20  laws of this state (Article 8306 et seq., Revised Statutes);>
   3-21              <(4)  an action to recover exemplary damages against an
   3-22  employer by the employee's beneficiaries in a death action arising
   3-23  out of the course and scope of employment where the employer is a
   3-24  subscriber under the workers' compensation laws of this state
   3-25  (Article 8306 et seq., Revised Statutes);>
   3-26              <(5)  an action brought under Chapter 246, Acts of the
   3-27  63rd Legislature, Regular Session, 1973, Home Solicitation
    4-1  Transactions (Article 5069-13.01 et seq., Vernon's Texas Civil
    4-2  Statutes);>
    4-3              <(6)  an action brought under Chapter 547, Acts of the
    4-4  63rd Legislature, Regular Session, 1973, Debt Collection Practices
    4-5  (Article 5069-11.01 et seq., Vernon's Texas Civil Statutes);>
    4-6              <(7)  an action brought under Chapter 54, 91, or 92,
    4-7  Property Code;>
    4-8              <(8)  an action brought under the Texas Manufactured
    4-9  Housing Standards Act (Article 5221f, Vernon's Texas Civil
   4-10  Statutes);>
   4-11              <(9)  an action brought under the Texas Motor Vehicle
   4-12  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes);>
   4-13              <(10)  an action brought under the Texas Proprietary
   4-14  School Act, Chapter 32, Education Code;>
   4-15              <(11)  an action brought under Section 9.507 or Section
   4-16  27.01, Business & Commerce Code;>
   4-17              <(12)  an action brought under Chapter 36, Family Code;>
   4-18              <(13)  an action brought under the Health Spa Act
   4-19  (Article 5221l, Vernon's Texas Civil Statutes);>
   4-20              <(14)  an action brought under the Business Opportunity
   4-21  Act (Article 5069-16.01 et seq., Vernon's Texas Civil Statutes); or>
   4-22              <(15)  an action brought under the Texas Timeshare Act
   4-23  (Article 6573c, Vernon's Texas Civil Statutes)>.
   4-24        (c)  Except as provided by Subsections (b) and (d), in <In>
   4-25  an action to which this chapter applies, the provisions of this
   4-26  chapter prevail over all other law to the extent of any conflict.
   4-27        (d)  Notwithstanding any provision to the contrary, this
    5-1  chapter does not apply to Section 15.21, Business & Commerce Code
    5-2  (Texas Free Enterprise and Antitrust Act of 1983), an action
    5-3  brought under the Deceptive Trade Practices-Consumer Protection Act
    5-4  (Subchapter E, Chapter 17, Business & Commerce Code) except as
    5-5  specifically provided in Section 17.50 of that Act, or an action
    5-6  brought under Chapter 21, Insurance Code.
    5-7        Sec. 41.003.  STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES.
    5-8  (a)  Except as provided by Subsection (c), exemplary <Exemplary>
    5-9  damages may be awarded only if the claimant proves by clear and
   5-10  convincing evidence that the <personal injury, property damage,
   5-11  death, or other> harm with respect to which the claimant seeks
   5-12  recovery of exemplary damages results from:
   5-13              (1)  fraud;
   5-14              (2)  malice; or
   5-15              (3)  wilful act or omission or gross neglect in
   5-16  wrongful death actions brought by or on behalf of a surviving
   5-17  spouse or heirs of the decedent's body, under a statute enacted
   5-18  pursuant to Section 26, Article XVI, Texas Constitution.  In such
   5-19  cases, the definition of "gross neglect" in the instruction
   5-20  submitted to the jury shall be the definition stated in Section
   5-21  41.001(7)(B) <gross negligence>.
   5-22        (b)  The claimant must prove by clear and convincing evidence
   5-23  the elements of exemplary damages as provided by this section
   5-24  <Subsection (a)(1), (a)(2), or (a)(3)>.  This burden of proof may
   5-25  not be shifted to the defendant or satisfied by evidence of
   5-26  ordinary negligence, bad faith, or a deceptive trade practice.
   5-27        (c)  If the claimant relies on a statute establishing a cause
    6-1  of action and authorizing exemplary damages in specified
    6-2  circumstances or in conjunction with a specified culpable mental
    6-3  state, exemplary damages may be awarded only if the claimant proves
    6-4  by clear and convincing evidence that the damages result from the
    6-5  specified circumstances or culpable mental state.
    6-6        Sec. 41.004.  FACTORS PRECLUDING RECOVERY.  (a)  Except as
    6-7  provided by Subsection (b), exemplary <Exemplary> damages may be
    6-8  awarded only if damages other than nominal damages are awarded.
    6-9        (b)  A claimant may recover exemplary damages, even if only
   6-10  nominal damages are awarded, if the claimant establishes by clear
   6-11  and convincing evidence that the harm with respect to which the
   6-12  claimant seeks recovery of exemplary damages results from malice as
   6-13  defined in Section 41.001(7)(A).  Exemplary damages may not be
   6-14  awarded to a claimant who elects to have his recovery multiplied
   6-15  under another statute.
   6-16        Sec. 41.005.  HARM RESULTING FROM CRIMINAL ACT.  (a)  In an
   6-17  action arising from harm resulting from an assault, theft, or other
   6-18  criminal act, a court may not award exemplary damages against a
   6-19  defendant because of the criminal act of another.
   6-20        (b)  The exemption provided by Subsection (a) does not apply
   6-21  if:
   6-22              (1)  the criminal act was committed by an agent or
   6-23  employee of the defendant;
   6-24              (2)  the defendant is criminally responsible as a party
   6-25  to  the criminal act under the provisions of Chapter 7, Penal Code;
   6-26              (3)  the criminal act occurred at a location where, at
   6-27  the time of the criminal act, the defendant was maintaining a
    7-1  common nuisance under the provisions of Chapter 125, Civil Practice
    7-2  and Remedies Code, and had not made reasonable attempts to abate
    7-3  the nuisance; or
    7-4              (4)  the criminal act resulted from the defendant's
    7-5  intentional or knowing violation of a statutory duty under
    7-6  Subchapter D, Chapter 92, Property Code, and the criminal act
    7-7  occurred after the statutory deadline for compliance with that
    7-8  duty.
    7-9        (c)  In an action arising out of a criminal act committed by
   7-10  an agent or employee, the principal or employer may be liable for
   7-11  punitive damages but only if:
   7-12              (1)  the employer or principal authorized the doing and
   7-13  the manner of the act;
   7-14              (2)  the employee or agent was unfit and the employer
   7-15  or principal acted with malice in employing or retaining him;
   7-16              (3)  the employee or agent was employed in a managerial
   7-17  capacity and was acting in the scope of employment; or
   7-18              (4)  the principal or employer or a manager of the
   7-19  principal or employer ratified or approved the act.
   7-20        Sec. 41.006.  AWARD SPECIFIC TO DEFENDANT.  In any action in
   7-21  which there are two or more defendants, an award of exemplary
   7-22  damages must be specific as to a defendant, and each defendant is
   7-23  liable only for the amount of the award made against that
   7-24  defendant.
   7-25        Sec. 41.007 <41.006>.  PREJUDGMENT INTEREST.  Prejudgment
   7-26  interest may not be assessed or recovered on an award of exemplary
   7-27  damages.
    8-1        Sec. 41.008 <41.007>.  LIMITATION ON AMOUNT OF RECOVERY.  (a)
    8-2  In an action in which a claimant seeks recovery of exemplary
    8-3  damages, the trier of fact shall determine the amount of economic
    8-4  damages separately from the amount of other compensatory damages.
    8-5        (b)  Exemplary <Except as provided by Section 41.008,
    8-6  exemplary> damages awarded against a defendant may not exceed an
    8-7  amount equal to the greater of:
    8-8              (1)(A)  two <four> times the amount of economic
    8-9  <actual> damages; plus
   8-10                    (B)  an amount equal to any noneconomic damages
   8-11  found by the jury, not to exceed $750,000; or
   8-12              (2)  $200,000<, whichever is greater>.
   8-13        (c)  Subsection (b) does not apply to a cause of action
   8-14  against a defendant from whom a plaintiff seeks recovery of
   8-15  exemplary damages based on conduct described as a felony in the
   8-16  following sections of the Penal Code if the conduct was committed
   8-17  knowingly or intentionally:
   8-18              (1)  Section 19.02 (murder);
   8-19              (2)  Section 19.03 (capital murder);
   8-20              (3)  Section 20.04 (aggravated kidnapping);
   8-21              (4)  Section 22.02 (aggravated assault);
   8-22              (5)  Section 22.011 (sexual assault);
   8-23              (6)  Section 22.021 (aggravated sexual assault);
   8-24              (7)  Section 22.04 (injury to a child, elderly
   8-25  individual, or disabled individual);
   8-26              (8)  Section 32.21 (forgery);
   8-27              (9)  Section 32.43 (commercial bribery);
    9-1              (10)  Section 32.45 (misapplication of fiduciary
    9-2  property or property of financial institution);
    9-3              (11)  Section 32.46 (securing execution of document by
    9-4  deception);
    9-5              (12)  Section 32.47 (fraudulent destruction, removal,
    9-6  or concealment of writing); or
    9-7              (13)  Chapter 31 (theft) the punishment level for which
    9-8  is a felony of the third degree or higher.
    9-9        (d)  In this section, "intentionally" and "knowingly" have
   9-10  the same meanings assigned those terms in Sections 6.03(a) and (b),
   9-11  Penal Code.
   9-12        (e)  The provisions of Subsections (a) and (b) may not be
   9-13  made known to a jury by any means, including voir dire,
   9-14  introduction into evidence, argument, or instruction.
   9-15        Sec. 41.009.  BIFURCATED TRIAL.  (a)  On motion by a
   9-16  defendant, the court shall provide for a bifurcated trial under
   9-17  this section.  A motion under this subsection shall be made prior
   9-18  to voir dire examination of the jury or at a time specified by a
   9-19  pretrial court order issued under Rule 166, Texas Rules of Civil
   9-20  Procedure.
   9-21        (b)  In an action with more than one defendant, the court
   9-22  shall provide for a bifurcated trial on motion of any defendant.
   9-23        (c)  In the first phase of a bifurcated trial, the trier of
   9-24  fact shall determine:
   9-25              (1)  liability for compensatory and exemplary damages;
   9-26  and
   9-27              (2)  the amount of compensatory damages.
   10-1        (d)  If liability for exemplary damages is established during
   10-2  the first phase of a bifurcated trial, the trier of fact shall, in
   10-3  the second phase of the trial, determine the amount of exemplary
   10-4  damages to be awarded, if any.
   10-5        Sec. 41.010.  CONSIDERATIONS IN MAKING AWARD.  (a)  Before
   10-6  making an award of exemplary damages, the trier of fact shall
   10-7  consider the definition and purposes of exemplary damages as
   10-8  provided by Section 41.001.
   10-9        (b)  The determination of whether to award exemplary damages
  10-10  and the amount of exemplary damages to be awarded is within the
  10-11  discretion of the trier of fact.
  10-12        Sec. 41.011.  EVIDENCE RELATING TO AMOUNT OF EXEMPLARY
  10-13  DAMAGES.  (a)  In determining the amount of exemplary damages, the
  10-14  trier of fact shall consider evidence, if any, relating to:
  10-15              (1)  the nature of the wrong;
  10-16              (2)  the character of the conduct involved;
  10-17              (3)  the degree of culpability of the wrongdoer;
  10-18              (4)  the situation and sensibilities of the parties
  10-19  concerned;
  10-20              (5)  the extent to which such conduct offends a public
  10-21  sense of justice and propriety; and
  10-22              (6)  the net worth of the defendant.
  10-23        (b)  Evidence that is relevant only to the amount of
  10-24  exemplary damages that may be awarded is not admissible during the
  10-25  first phase of a bifurcated trial.
  10-26        Sec. 41.012.  JURY INSTRUCTIONS.  In a trial to a jury, the
  10-27  court shall instruct the jury with regard to Sections 41.001,
   11-1  41.003, 41.010, and 41.011.
   11-2        Sec. 41.013.  JUDICIAL REVIEW OF AWARD.  (a)  Except as
   11-3  provided for in Subsection (b), an appellate court that reviews the
   11-4  evidence with respect to a finding by a trier of fact concerning
   11-5  liability for exemplary damages or with respect to the amount of
   11-6  exemplary damages awarded shall state, in a written opinion, the
   11-7  court's reasons for upholding or disturbing the finding or award.
   11-8  The written opinion shall address the evidence or lack of evidence
   11-9  with specificity, as it relates to the liability for or amount of
  11-10  exemplary damages, in light of the requirements of this chapter.
  11-11        (b)  This section does not apply to the supreme court with
  11-12  respect to its consideration of an application for writ of error.
  11-13        <Sec. 41.008.  EXCEPTION.  Section 41.007 does not apply to
  11-14  exemplary damages resulting from malice as defined by Section
  11-15  41.001(6)(A) or to an intentional tort.>
  11-16        <Sec. 41.009.  PROVISIONS NOT TO BE MADE KNOWN TO JURY.  The
  11-17  provisions of Section 41.007 may not be made known to the jury
  11-18  through any means, including voir dire, introduction into evidence,
  11-19  or instruction.>
  11-20        SECTION 2.  This Act takes effect September 1, 1995, and
  11-21  applies only to a cause of action that accrues on or after that
  11-22  date.  A suit filed before the effective date of this Act is
  11-23  governed by the law applicable to the claim that existed
  11-24  immediately before the effective date of this Act, and that law is
  11-25  continued in effect for that purpose.
  11-26        SECTION 3.  The importance of this legislation and the
  11-27  crowded condition of the calendars in both houses create an
   12-1  emergency and an imperative public necessity that the
   12-2  constitutional rule requiring bills to be read on three several
   12-3  days in each house be suspended, and this rule is hereby suspended.