By Sibley, et al.                                       S.B. No. 25
       74R3372 DLF-F
                                 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)  "Defendant" means a party, including a
   1-17  counterdefendant, cross-defendant, or third-party defendant, from
   1-18  whom a claimant seeks relief with respect to exemplary damages.
   1-19              (3)  "Economic damages" means compensatory damages for
   1-20  pecuniary loss.  The term does not include exemplary damages or
   1-21  damages for physical pain and suffering, mental anguish and
   1-22  suffering, loss of consortium, and disfigurement.
   1-23              (4)  "Exemplary damages" means any damages awarded as
   1-24  <an example to others, as> a penalty<,> or by way of punishment.
    2-1  "Exemplary damages" includes punitive damages.
    2-2              (5) <(4)>  "Fraud" means fraud other than constructive
    2-3  fraud.
    2-4              <(5)  "Gross negligence" means more than momentary
    2-5  thoughtlessness, inadvertence, or error of judgment.  It means such
    2-6  an entire want of care as to establish that the act or omission was
    2-7  the result of actual conscious indifference to the rights, safety,
    2-8  or welfare of the person affected.>
    2-9              (6)  "Malice" means:
   2-10                    (A)  a specific intent <conduct that is
   2-11  specifically intended> by the defendant to cause substantial injury
   2-12  to the claimant; or
   2-13                    (B)  <an act that is carried out by the defendant
   2-14  with a> flagrant disregard by the defendant for the rights of
   2-15  others and <with> actual awareness on the part of the defendant
   2-16  that the act or omission will, in reasonable probability, result in
   2-17  human death, great bodily injury <harm>, or property damage.
   2-18        Sec. 41.002.  APPLICABILITY.  (a)  This chapter applies to
   2-19  any <an> action in which a claimant seeks exemplary damages
   2-20  relating to a cause of action <as defined by Section 33.001>.
   2-21        (b)  This chapter establishes the maximum exemplary damages
   2-22  that may be awarded in an action subject to this chapter, including
   2-23  an action for which exemplary damages are awarded under another law
   2-24  of this state.  This chapter does not apply to the extent another
   2-25  law establishes a lower maximum amount of exemplary damages for a
   2-26  particular claim<:>
   2-27              <(1)  an action brought under the Deceptive Trade
    3-1  Practices-Consumer Protection Act (Subchapter E, Chapter 17,
    3-2  Business & Commerce Code)  except as specifically provided in
    3-3  Section 17.50 of that Act;>
    3-4              <(2)  an action brought under Chapter 21, Insurance
    3-5  Code;>
    3-6              <(3)  an action brought under the workers' compensation
    3-7  laws of this state (Article 8306 et seq., Revised Statutes);>
    3-8              <(4)  an action to recover exemplary damages against an
    3-9  employer by the employee's beneficiaries in a death action arising
   3-10  out of the course and scope of employment where the employer is a
   3-11  subscriber under the workers' compensation laws of this state
   3-12  (Article 8306 et seq., Revised Statutes);>
   3-13              <(5)  an action brought under Chapter 246, Acts of the
   3-14  63rd Legislature, Regular Session, 1973, Home Solicitation
   3-15  Transactions (Article 5069-13.01 et seq., Vernon's Texas Civil
   3-16  Statutes);>
   3-17              <(6)  an action brought under Chapter 547, Acts of the
   3-18  63rd Legislature, Regular Session, 1973, Debt Collection Practices
   3-19  (Article 5069-11.01 et seq., Vernon's Texas Civil Statutes);>
   3-20              <(7)  an action brought under Chapter 54, 91, or 92,
   3-21  Property Code;>
   3-22              <(8)  an action brought under the Texas Manufactured
   3-23  Housing Standards Act (Article 5221f, Vernon's Texas Civil
   3-24  Statutes);>
   3-25              <(9)  an action brought under the Texas Motor Vehicle
   3-26  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes);>
   3-27              <(10)  an action brought under the Texas Proprietary
    4-1  School Act, Chapter 32, Education Code;>
    4-2              <(11)  an action brought under Section 9.507 or Section
    4-3  2.01, Business & Commerce Code;>
    4-4              <(12)  an action brought under Chapter 36, Family Code;>
    4-5              <(13)  an action brought under the Health Spa Act
    4-6  (Article 5221l, Vernon's Texas Civil Statutes);>
    4-7              <(14)  an action brought under the Business Opportunity
    4-8  Act (Article 5069-16.01 et seq., Vernon's Texas Civil Statutes); or>
    4-9              <(15)  an action brought under the Texas Timeshare Act
   4-10  (Article 6573c, Vernon's Texas Civil Statutes)>.
   4-11        (c)  Except as provided by Subsection (b), in <In> an action
   4-12  to which this chapter applies, the provisions of this chapter
   4-13  prevail over all other law to the extent of any conflict.
   4-14        Sec. 41.003.  STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES.
   4-15  (a)  Except as provided by Subsection (c), exemplary <Exemplary>
   4-16  damages may be awarded only if the claimant proves that the
   4-17  <personal injury, property damage, death, or other> harm with
   4-18  respect to which the claimant seeks recovery of exemplary damages
   4-19  results from:
   4-20              (1)  fraud; or
   4-21              (2)  malice<; or>
   4-22              <(3)  gross negligence>.
   4-23        (b)  The claimant must prove the elements of exemplary
   4-24  damages as provided by this section <Subsection (a)(1), (a)(2), or
   4-25  (a)(3)>.  This burden of proof may not be shifted to the defendant
   4-26  or satisfied by evidence of ordinary negligence, bad faith, or a
   4-27  deceptive trade practice.
    5-1        (c)  If the claimant relies on a statute establishing a cause
    5-2  of action and authorizing exemplary damages in specified
    5-3  circumstances or in conjunction with a specified culpable mental
    5-4  state, exemplary damages may be awarded only if the claimant proves
    5-5  that the damages result from the specified circumstances or
    5-6  culpable mental state.
    5-7        Sec. 41.004.  FACTORS PRECLUDING RECOVERY.  (a)  Except as
    5-8  provided by Subsection (b), exemplary <Exemplary> damages may be
    5-9  awarded only if damages other than nominal damages are awarded.
   5-10        (b)  A claimant may recover exemplary damages, even if only
   5-11  nominal damages are awarded, if the claimant establishes, beyond a
   5-12  reasonable doubt, that the harm with respect to which the claimant
   5-13  seeks recovery of exemplary damages results from malice.
   5-14  <Exemplary damages may not be awarded to a claimant who elects to
   5-15  have his recovery multiplied under another statute.>
   5-16        Sec. 41.005.  MULTIPLE AWARDS AGAINST DEFENDANT.  (a)  Except
   5-17  as provided by Subsection (d), a court may not award exemplary
   5-18  damages to a claimant if:
   5-19              (1)  exemplary damages have been previously awarded
   5-20  against the defendant by a court; and
   5-21              (2)  the harm with respect to which the claimant seeks
   5-22  recovery of exemplary damages resulted from the same act or course
   5-23  of conduct that formed the basis of the previous exemplary damage
   5-24  award.
   5-25        (b)  On request of a defendant, the court shall conduct a
   5-26  pretrial hearing at which the defendant may present evidence that
   5-27  exemplary damages have been previously awarded against the
    6-1  defendant for the same act or course of conduct that formed the
    6-2  basis of the action.
    6-3        (c)  Except as provided by Subsection (d), if the defendant
    6-4  at the pretrial hearing presents prima facie evidence of a previous
    6-5  award of exemplary damages as described by Subsection (a), the
    6-6  claimant may not present a claim for exemplary damages during the
    6-7  trial of the action.
    6-8        (d)  Subsections (a) and (c) do not apply if the claimant
    6-9  establishes at the pretrial hearing that:
   6-10              (1)  substantial evidence of malice, fraud, or other
   6-11  circumstances or culpable mental state described by Section
   6-12  41.003(c) relating to the act or course of conduct exists; and
   6-13              (2)  that evidence was not available at the time the
   6-14  previous exemplary damage award was entered.
   6-15        (e)  If the claimant makes the showing required by Subsection
   6-16  (d), the court shall reduce the amount of exemplary damages awarded
   6-17  to the claimant, if any, by the amount of all previous exemplary
   6-18  damage awards against the defendant based on the same act or course
   6-19  of conduct.
   6-20        (f)  For purposes of this section, the manufacture of
   6-21  multiple identical individual units of a product line is a single
   6-22  act or course of conduct.
   6-23        Sec. 41.006.  HARM RESULTING FROM REGULATED ACTIVITY.  (a)
   6-24  Except as provided by Subsections (b) and (c), a court may not
   6-25  award a claimant exemplary damages if the harm with respect to
   6-26  which the claimant seeks recovery of exemplary damages results
   6-27  from:
    7-1              (1)  conduct or a product that is subject to regulation
    7-2  by an agency of this state or the United States; or
    7-3              (2)  a product whose design, formulation, testing,
    7-4  packaging, labeling, or warning was approved or certified before
    7-5  sale by an agency of this state or the United States.
    7-6        (b)  A court may award a claimant exemplary damages in the
    7-7  circumstances described by Subsection (a)(1) if the claimant proves
    7-8  that the defendant did not comply with applicable regulations
    7-9  promulgated by the regulating agency.
   7-10        (c)  Subsection (a) does not apply if the claimant proves
   7-11  that the defendant:
   7-12              (1)  knowingly and in violation of law withheld or
   7-13  misrepresented material information required to be submitted to the
   7-14  regulating agency; or
   7-15              (2)  made an illegal payment to an official of the
   7-16  regulating agency to secure approval of the conduct or product in
   7-17  question.
   7-18        Sec. 41.007.  HARM RESULTING FROM CRIMINAL ACT.  In an action
   7-19  arising from harm resulting from an assault, theft, or another
   7-20  criminal act, a court may not award exemplary damages against an
   7-21  owner or occupier of real property for failing to prevent another
   7-22  person from committing the criminal act.
   7-23        Sec. 41.008.  AWARD SPECIFIC TO DEFENDANT.  In any action in
   7-24  which there are two or more defendants, an award of exemplary
   7-25  damages must be specific as to a defendant, and each defendant is
   7-26  liable only for the amount of the award made against that
   7-27  defendant.
    8-1        Sec. 41.009 <Sec. 41.006>.  PREJUDGMENT INTEREST.
    8-2  Prejudgment interest may not be assessed or recovered on an award
    8-3  of exemplary damages.
    8-4        Sec. 41.010 <Sec. 41.007>.  LIMITATION ON AMOUNT OF RECOVERY.
    8-5  (a)  In an action in which a claimant seeks recovery of exemplary
    8-6  damages, the trier of fact shall determine the amount of economic
    8-7  damages separately from the amount of other compensatory damages.
    8-8        (b)  Except as provided by Subsection (c) <Section 41.008>,
    8-9  exemplary damages awarded against a defendant may not exceed two
   8-10  <four> times the amount of actual damages or $200,000, whichever is
   8-11  greater.
   8-12        (c)  In an action in which the trier of fact finds that the
   8-13  harm with respect to which the claimant seeks exemplary damages
   8-14  results from malice, exemplary damages awarded against a defendant
   8-15  may not exceed four times the amount of actual damages or $200,000,
   8-16  whichever is greater.
   8-17        (d)  The provisions of Subsections (b) and (c) may not be
   8-18  made known to a jury by any means, including voir dire,
   8-19  introduction into evidence, argument, or instruction.
   8-20        Sec. 41.011.  BIFURCATED TRIAL.  (a)  On motion by a party,
   8-21  the court shall provide for a bifurcated trial under this section.
   8-22        (b)  In the first phase of a bifurcated trial, the trier of
   8-23  fact shall determine:
   8-24              (1)  liability for compensatory and exemplary damages;
   8-25  and
   8-26              (2)  the amount of compensatory damages.
   8-27        (c)  If liability for exemplary damages is established during
    9-1  the first phase of a bifurcated trial, the trier of fact shall, in
    9-2  the second phase of the trial, determine the amount of exemplary
    9-3  damages to be awarded, if any.
    9-4        (d)  Evidence that is relevant only to the amount of
    9-5  exemplary damages that may be awarded is not admissible during the
    9-6  first phase of a bifurcated trial.
    9-7        Sec. 41.012.  UNANIMOUS JURY.  In a trial to a jury,
    9-8  exemplary damages may not be awarded unless the jury unanimously
    9-9  finds that the defendant is liable for exemplary damages in
   9-10  accordance with Section 41.003.
   9-11        Sec. 41.013.  CONSIDERATIONS IN MAKING AWARD.  (a)  Before
   9-12  making an award of exemplary damages, the trier of fact shall
   9-13  consider the definition and purposes of exemplary damages as
   9-14  provided by Section 41.001.
   9-15        (b)  The determination of whether to award exemplary damages
   9-16  and the amount of exemplary damages to be awarded is within the
   9-17  discretion of the trier of fact.
   9-18        Sec. 41.014.  EVIDENCE RELATING TO AMOUNT OF EXEMPLARY
   9-19  DAMAGES.  (a)  In determining the amount of exemplary damages, the
   9-20  trier of fact may only consider evidence relating to:
   9-21              (1)  the reprehensibility of the defendant's motives;
   9-22              (2)  the likelihood, at the time of the conduct, of
   9-23  serious harm;
   9-24              (3)  the defendant's awareness of the likelihood of
   9-25  serious harm;
   9-26              (4)  the duration of the conduct; and
   9-27              (5)  the harm suffered by the claimant.
   10-1        (b)  In determining the amount of exemplary damages, the
   10-2  trier of fact may not consider evidence relating to the defendant's
   10-3  wealth or ability to pay, including the defendant's net worth and
   10-4  gross or net revenues.
   10-5        Sec. 41.015.  JURY INSTRUCTIONS. In a trial to a jury, the
   10-6  court shall instruct the jury with regard to Sections 41.013 and
   10-7  41.014(a).
   10-8        Sec. 41.016.  JUDICIAL REVIEW OF AWARD.  An appellate court
   10-9  that reviews the evidence with respect to a finding by a trier of
  10-10  fact concerning liability for exemplary damages or with respect to
  10-11  the amount of exemplary damages awarded shall state, in a written
  10-12  opinion, the court's reasons for upholding or disturbing the
  10-13  finding or award.  The written opinion must address the evidence or
  10-14  lack of evidence with specificity,  as it relates to the liability
  10-15  for or amount of exemplary damages, in light of the requirements of
  10-16  this chapter.
  10-17        <Sec. 41.008.  EXCEPTION. Section 41.007 does not apply to
  10-18  exemplary damages resulting from malice as defined by Section
  10-19  41.001(6)(A) or to an intentional tort>.
  10-20        <Sec. 41.009.  PROVISIONS NOT TO BE MADE KNOWN TO JURY.  The
  10-21  provisions of Section 41.007 may not be made known to the jury
  10-22  through any means, including voir dire, introduction into evidence,
  10-23  or instruction.>
  10-24        SECTION 2.  This Act takes effect September 1, 1995, and
  10-25  applies only to a cause of action that commences on or after that
  10-26  date.  An action that commenced before the effective date of this
  10-27  Act is governed by the law applicable to the action as it existed
   11-1  immediately before the effective date of this Act, and that law is
   11-2  continued in effect for that purpose.
   11-3        SECTION 3.  The importance of this legislation and the
   11-4  crowded condition of the calendars in both houses create an
   11-5  emergency and an imperative public necessity that the
   11-6  constitutional rule requiring bills to be read on three several
   11-7  days in each house be suspended, and this rule is hereby suspended.