1-1  By:  Sibley, et al.                                     S.B. No. 25
    1-2        (In the Senate - Filed January 11, 1995; January 11, 1995,
    1-3  read first time and referred to Committee on Economic Development;
    1-4  February 14, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 8, Nays 0;
    1-6  February 14, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 25                    By:  Sibley
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to exemplary damages in civil suits.
   1-11        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-12        SECTION 1.  Chapter 41, Civil Practice and Remedies Code, is
   1-13  amended to read as follows:
   1-14                    CHAPTER 41.  EXEMPLARY DAMAGES
   1-15        Sec. 41.001.  DEFINITIONS.  In this chapter:
   1-16              (1)  "Claimant" means a party, including a plaintiff,
   1-17  counterclaimant, cross-claimant, or third-party plaintiff, seeking
   1-18  recovery of exemplary damages.  In a cause of action in which a
   1-19  party seeks recovery of exemplary damages related to injury to
   1-20  another person, damage to the property of another person, death of
   1-21  another person, or other harm to another person, "claimant"
   1-22  includes both that other person and the party seeking recovery of
   1-23  exemplary damages.
   1-24              (2)  "Clear and convincing" means the measure or degree
   1-25  of proof that will produce in the mind of the trier of fact a firm
   1-26  belief or conviction as to the truth of the allegations sought to
   1-27  be established.
   1-28              (3)  "Defendant" means a party, including a
   1-29  counterdefendant, cross-defendant, or third-party defendant, from
   1-30  whom a claimant seeks relief with respect to exemplary damages.
   1-31              (4)  "Economic damages" means compensatory damages for
   1-32  pecuniary loss; the term does not include exemplary damages or
   1-33  damages for physical pain and mental anguish, loss of consortium,
   1-34  disfigurement, physical impairment, or loss of companionship and
   1-35  society.
   1-36              (5) <(3)>  "Exemplary damages" means any damages
   1-37  awarded as <an example to others, as> a penalty<,> or by way of
   1-38  punishment.  "Exemplary damages" includes punitive damages.
   1-39              (6) <(4)>  "Fraud" means fraud other than constructive
   1-40  fraud.
   1-41              (7) <(5)  "Gross negligence" means more than momentary
   1-42  thoughtlessness, inadvertence, or error of judgment.  It means such
   1-43  an entire want of care as to establish that the act or omission was
   1-44  the result of actual conscious indifference to the rights, safety,
   1-45  or welfare of the person affected.>
   1-46              <(6)>  "Malice" means:
   1-47                    (A)  a specific intent <conduct that is
   1-48  specifically intended> by the defendant to cause substantial injury
   1-49  to the claimant; or
   1-50                    (B)  an act or omission:
   1-51                          (i)  which when viewed objectively from the
   1-52  standpoint of the actor at the time of its occurrence involves an
   1-53  extreme degree of risk, considering the probability and magnitude
   1-54  of the potential harm to others; and
   1-55                          (ii)  of which the actor has actual,
   1-56  subjective awareness of the risk involved, but nevertheless
   1-57  proceeds with conscious indifference to the rights, safety, or
   1-58  welfare of others <that is carried out by the defendant with a
   1-59  flagrant disregard for the rights of others and with actual
   1-60  awareness on the part of the defendant that the act  will, in
   1-61  reasonable probability, result in human death, great bodily  harm,
   1-62  or property damage>.
   1-63        Sec. 41.002.  APPLICABILITY.  (a)  This chapter applies to
   1-64  any <an> action in which a claimant seeks exemplary damages
   1-65  relating to a cause of action <as defined by Section 33.001>.
   1-66        (b)  This chapter establishes the maximum exemplary damages
   1-67  that may be awarded in an action subject to this chapter, including
   1-68  an action for which exemplary damages are awarded under another law
    2-1  of this state.  This chapter does not apply to the extent another
    2-2  law establishes a lower maximum amount of exemplary damages for a
    2-3  particular claim<:>
    2-4              <(1)  an action brought under the Deceptive Trade
    2-5  Practices-Consumer Protection Act (Subchapter E, Chapter 17,
    2-6  Business & Commerce Code) except as specifically provided in
    2-7  Section 17.50 of that Act;>
    2-8              <(2)  an action brought under Chapter 21, Insurance
    2-9  Code;>
   2-10              <(3)  an action brought under the workers' compensation
   2-11  laws of this state (Article 8306 et seq., Revised Statutes);>
   2-12              <(4)  an action to recover exemplary damages against an
   2-13  employer by the employee's beneficiaries in a death action arising
   2-14  out of the course and scope of employment where the employer is a
   2-15  subscriber under the workers' compensation laws of this state
   2-16  (Article 8306 et seq., Revised Statutes);>
   2-17              <(5)  an action brought under Chapter 246, Acts of the
   2-18  63rd Legislature, Regular Session, 1973, Home Solicitation
   2-19  Transactions (Article 5069-13.01 et seq., Vernon's Texas Civil
   2-20  Statutes);>
   2-21              <(6)  an action brought under Chapter 547, Acts of the
   2-22  63rd Legislature, Regular Session, 1973, Debt Collection Practices
   2-23  (Article 5069-11.01 et seq., Vernon's Texas Civil Statutes);>
   2-24              <(7)  an action brought under Chapter 54, 91, or 92,
   2-25  Property Code;>
   2-26              <(8)  an action brought under the Texas Manufactured
   2-27  Housing Standards Act (Article 5221f, Vernon's Texas Civil
   2-28  Statutes);>
   2-29              <(9)  an action brought under the Texas Motor Vehicle
   2-30  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes);>
   2-31              <(10)  an action brought under the Texas Proprietary
   2-32  School Act, Chapter 32, Education Code;>
   2-33              <(11)  an action brought under Section 9.507 or Section
   2-34  27.01, Business & Commerce Code;>
   2-35              <(12)  an action brought under Chapter 36, Family Code;>
   2-36              <(13)  an action brought under the Health Spa Act
   2-37  (Article 5221l, Vernon's Texas Civil Statutes);>
   2-38              <(14)  an action brought under the Business Opportunity
   2-39  Act (Article 5069-16.01 et seq., Vernon's Texas Civil Statutes); or>
   2-40              <(15)  an action brought under the Texas Timeshare Act
   2-41  (Article 6573c, Vernon's Texas Civil Statutes)>.
   2-42        (c)  Except as provided by Subsection (b) and (d), in <In> an
   2-43  action to which this chapter applies, the provisions of this
   2-44  chapter prevail over all other law to the extent of any conflict.
   2-45        (d)  Notwithstanding any provision to the contrary, this
   2-46  chapter does not apply to Section 15.21, Business & Commerce Code
   2-47  (Texas Free Enterprise and Antitrust Act of 1983).
   2-48        Sec. 41.003.  STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES.
   2-49  (a)  Except as provided by Subsection (c), exemplary <Exemplary>
   2-50  damages may be awarded only if the claimant proves by clear and
   2-51  convincing evidence that the <personal injury, property damage,
   2-52  death, or other> harm with respect to which the claimant seeks
   2-53  recovery of exemplary damages results from:
   2-54              (1)  fraud; or
   2-55              (2)  malice<; or>
   2-56              <(3)  gross negligence>.
   2-57        (b)  The claimant must prove by clear and convincing evidence
   2-58  the elements of exemplary damages as provided by this section
   2-59  <Subsection (a)(1), (a)(2), or (a)(3)>.  This burden of proof may
   2-60  not be shifted to the defendant or satisfied by evidence of
   2-61  ordinary negligence, bad faith, or a deceptive trade practice.
   2-62        (c)  If the claimant relies on a statute establishing a cause
   2-63  of action and authorizing exemplary damages in specified
   2-64  circumstances or in conjunction with a specified culpable mental
   2-65  state, exemplary damages may be awarded only if the claimant proves
   2-66  by clear and convincing evidence that the damages result from the
   2-67  specified circumstances or culpable mental state.
   2-68        Sec. 41.004.  FACTORS PRECLUDING RECOVERY.  (a)  Except as
   2-69  provided by Subsection (b), exemplary <Exemplary> damages may be
   2-70  awarded only if damages other than nominal damages are awarded.
    3-1        (b)  A claimant may recover exemplary damages, even if only
    3-2  nominal damages are awarded, if the claimant establishes by clear
    3-3  and convincing evidence that the harm with respect to which the
    3-4  claimant seeks recovery of exemplary damages results from malice as
    3-5  defined in Section 41.001(7)(A).  Exemplary damages may not be
    3-6  awarded to a claimant who elects to have his recovery multiplied
    3-7  under another statute.
    3-8        Sec. 41.005.  HARM RESULTING FROM CRIMINAL ACT.  (a)  In an
    3-9  action arising from harm resulting from an assault, theft, or other
   3-10  criminal act, a court may not award exemplary damages against a
   3-11  defendant because of the criminal act.
   3-12        (b)  The exemption provided by Subsection (a) does not apply
   3-13  if:
   3-14              (1)  the criminal act was committed by an employee of
   3-15  the defendant;
   3-16              (2)  the defendant is criminally responsible as a party
   3-17  to  the criminal act under the provisions of Chapter 7, Penal Code;
   3-18              (3)  the criminal act occurred at a location where, at
   3-19  the time of the criminal act, the defendant was maintaining a
   3-20  common nuisance under the provisions of Chapter 125, Civil Practice
   3-21  and Remedies Code, and had not made reasonable attempts to abate
   3-22  the nuisance; or
   3-23              (4)  the criminal act resulted from the defendant's
   3-24  intentional or knowing violation of a statutory duty under
   3-25  Subchapter D, Chapter 92, Property Code, and the criminal act
   3-26  occurred after the statutory deadline for compliance with that
   3-27  duty.
   3-28        (c)  In an action arising out of a criminal act committed by
   3-29  an employee, the employer may be liable for punitive damages but
   3-30  only if:
   3-31              (1)  the principal authorized the doing and the manner
   3-32  of the act;
   3-33              (2)  the agent was unfit and the principal acted with
   3-34  malice in employing or retaining him;
   3-35              (3)  the agent was employed in a managerial capacity
   3-36  and was acting in the scope of employment; or
   3-37              (4)  the employer or a manager of the employer ratified
   3-38  or approved the act.
   3-39        Sec. 41.006.  AWARD SPECIFIC TO DEFENDANT.  In any action in
   3-40  which there are two or more defendants, an award of exemplary
   3-41  damages must be specific as to a defendant, and each defendant is
   3-42  liable only for the amount of the award made against that
   3-43  defendant.
   3-44        Sec. 41.007 <41.006>.  PREJUDGMENT INTEREST.  Prejudgment
   3-45  interest may not be assessed or recovered on an award of exemplary
   3-46  damages.
   3-47        Sec. 41.008 <41.007>.  LIMITATION ON AMOUNT OF RECOVERY.
   3-48  (a)  In an action in which a claimant seeks recovery of exemplary
   3-49  damages, the trier of fact shall determine the amount of economic
   3-50  damages separately from the amount of other compensatory damages.
   3-51        (b)  Exemplary <Except as provided by Section 41.008,
   3-52  exemplary> damages awarded against a defendant may not exceed an
   3-53  amount equal to the greater of:
   3-54              (1)(A)  two <four> times the amount of economic
   3-55  <actual> damages; plus
   3-56                    (B)  an amount equal to any noneconomic damages
   3-57  found by the jury, not to exceed $750,000; or
   3-58              (2)  $200,000<, whichever is greater>.
   3-59        (c)  This section does not apply to circumstances in which
   3-60  there was an intentional or knowing felony offense as defined in
   3-61  the following sections of the Penal Code:
   3-62              (1)  Section 19.02 (murder);
   3-63              (2)  Section 19.03 (capital murder);
   3-64              (3)  Section 20.04 (aggravated kidnapping);
   3-65              (4)  Section 22.02 (aggravated assault);
   3-66              (5)  Section 22.011 (sexual assault);
   3-67              (6)  Section 22.021 (aggravated sexual assault);
   3-68              (7)  Section 22.04 (injury to a child, elderly
   3-69  individual, or disabled individual);
   3-70              (8)  Section 32.21 (forgery);
    4-1              (9)  Section 32.43 (commercial bribery);
    4-2              (10)  Section 32.45 (misapplication of fiduciary
    4-3  property or property of financial institution);
    4-4              (11)  Section 32.46 (securing execution of document by
    4-5  deception); or
    4-6              (12)  Section 32.47 (fraudulent destruction, removal,
    4-7  or concealment of writing).
    4-8        (d)  This section does not apply to circumstances in which
    4-9  there was an intentional or knowing third degree felony offense or
   4-10  greater as defined in Chapter 31, Penal Code (theft).
   4-11        (e)  In this section, "intentionally" and "knowingly" have
   4-12  the same meanings assigned those terms in Sections 6.03(a) and (b),
   4-13  Penal Code.
   4-14        (f)  The provisions of Subsections (a) and (b) may not be
   4-15  made known to a jury by any means, including voir dire,
   4-16  introduction into evidence, argument, or instruction.
   4-17        Sec. 41.009.  BIFURCATED TRIAL.  (a)  On motion by a
   4-18  defendant, the court shall provide for a bifurcated trial under
   4-19  this section.  A motion under this subsection shall be made prior
   4-20  to voir dire examination of the jury or at a time specified by a
   4-21  pretrial court order issued under Rule 166, Texas Rules of Civil
   4-22  Procedure.
   4-23        (b)  In an action with more than one defendant, the court
   4-24  shall provide for a bifurcated trial on motion of any defendant.
   4-25        (c)  In the first phase of a bifurcated trial, the trier of
   4-26  fact shall determine:
   4-27              (1)  liability for compensatory and exemplary damages;
   4-28  and
   4-29              (2)  the amount of compensatory damages.
   4-30        (d)  If liability for exemplary damages is established during
   4-31  the first phase of a bifurcated trial, the trier of fact shall, in
   4-32  the second phase of the trial, determine the amount of exemplary
   4-33  damages to be awarded, if any.
   4-34        Sec. 41.010.  CONSIDERATIONS IN MAKING AWARD.  (a)  Before
   4-35  making an award of exemplary damages, the trier of fact shall
   4-36  consider the definition and purposes of exemplary damages as
   4-37  provided by Section 41.001.
   4-38        (b)  The determination of whether to award exemplary damages
   4-39  and the amount of exemplary damages to be awarded is within the
   4-40  discretion of the trier of fact.
   4-41        Sec. 41.011.  EVIDENCE RELATING TO AMOUNT OF EXEMPLARY
   4-42  DAMAGES.  (a)  In determining the amount of exemplary damages, the
   4-43  trier of fact shall consider evidence, if any, relating to:
   4-44              (1)  the nature of the wrong;
   4-45              (2)  the character of the conduct involved;
   4-46              (3)  the degree of culpability of the wrongdoer;
   4-47              (4)  the situation and sensibilities of the parties
   4-48  concerned;
   4-49              (5)  the extent to which such conduct offends a public
   4-50  sense of justice and propriety; and
   4-51              (6)  the net worth of the defendant.
   4-52        (b)  Evidence that is relevant only to the amount of
   4-53  exemplary damages that may be awarded is not admissible during the
   4-54  first phase of a bifurcated trial.
   4-55        Sec. 41.012.  JURY INSTRUCTIONS.  In a trial to a jury, the
   4-56  court shall instruct the jury with regard to Sections 41.001,
   4-57  41.003, 41.010, and 41.011.
   4-58        Sec. 41.013.  JUDICIAL REVIEW OF AWARD.  (a)  Except as
   4-59  provided for in Subsection (b), an appellate court that reviews the
   4-60  evidence with respect to a finding by a trier of fact concerning
   4-61  liability for exemplary damages or with respect to the amount of
   4-62  exemplary damages awarded shall state, in a written opinion, the
   4-63  court's reasons for upholding or disturbing the finding or award.
   4-64  The written opinion shall address the evidence or lack of evidence
   4-65  with specificity, as it relates to the liability for or amount of
   4-66  exemplary damages, in light of the requirements of this chapter.
   4-67        (b)  This section does not apply to the supreme court with
   4-68  respect to its consideration of an application for writ of error.
   4-69        <Sec. 41.008.  EXCEPTION.  Section 41.007 does not apply to
   4-70  exemplary damages resulting from malice as defined by Section
    5-1  41.001(6)(A) or to an intentional tort.>
    5-2        <Sec. 41.009.  PROVISIONS NOT TO BE MADE KNOWN TO JURY.  The
    5-3  provisions of Section 41.007 may not be made known to the jury
    5-4  through any means, including voir dire, introduction into evidence,
    5-5  or instruction.>
    5-6        SECTION 2.  This Act takes effect September 1, 1995, and
    5-7  applies only to a cause of action that accrues on or after that
    5-8  date.  An action that accrued before the effective date of this Act
    5-9  is governed by the law in effect when the cause of action accrued,
   5-10  and that law is continued in effect for that purpose.
   5-11        SECTION 3.  The importance of this legislation and the
   5-12  crowded condition of the calendars in both houses create an
   5-13  emergency and an imperative public necessity that the
   5-14  constitutional rule requiring bills to be read on three several
   5-15  days in each house be suspended, and this rule is hereby suspended.
   5-16                               * * * * *