By:  Sibley, et al.                                     S.B. No. 28
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to responsibility for, and recovery of, damages in certain
    1-2  civil actions.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 33, Civil Practice and Remedies Code, is
    1-5  amended to read as follows:
    1-6        CHAPTER 33.  PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
    1-7       SUBCHAPTER A.  PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
    1-8        Sec. 33.001.  PROPORTIONATE <COMPARATIVE> RESPONSIBILITY.
    1-9  <(a)>  In an action to which this chapter applies <recover damages
   1-10  for negligence resulting in personal injury, property damage, or
   1-11  death or an action for products liability grounded in negligence>,
   1-12  a claimant may not recover damages <only> if his percentage of
   1-13  responsibility is greater <less> than <or equal to> 50 percent.
   1-14        <(b)  In an action to recover damages for personal injury,
   1-15  property damage, or death in which at least one defendant is found
   1-16  liable on a basis of strict tort liability, strict products
   1-17  liability, or breach of warranty under Chapter 2, Business &
   1-18  Commerce Code, a claimant may recover damages only if his
   1-19  percentage of responsibility is less than 60 percent.>
   1-20        <(c)  In an action in which a claimant seeks damages for harm
   1-21  other than personal injury, property damage, or death, arising out
   1-22  of any action grounded in negligence, including but not limited to
   1-23  negligence relating to any professional services rendered by an
   1-24  architect, attorney, certified public accountant, real estate
    2-1  broker or agent, or engineer licensed by this state, a claimant may
    2-2  recover damages only if his percentage of responsibility is less
    2-3  than or equal to 50 percent.>
    2-4        Sec. 33.002.  APPLICABILITY.  (a)  Except as provided by
    2-5  Subsections (b) and (c), this chapter applies to any cause of
    2-6  action based on tort in which a defendant, settling person, or
    2-7  responsible third party is found responsible for a percentage of
    2-8  the harm for which relief is sought <This chapter does not apply to
    2-9  a claim based on an intentional tort or a claim for exemplary
   2-10  damages included in an action to which this chapter otherwise
   2-11  applies>.
   2-12        (b)  Notwithstanding Subsection (a), a defendant who, with
   2-13  the specific intent to do harm to others, acts in concert with
   2-14  another person to engage in the conduct described in the following
   2-15  sections of the Penal Code shall be jointly and severally liable
   2-16  with such other person for the damages legally recoverable by the
   2-17  claimant that were proximately caused by such conduct:
   2-18              (1)  Section 19.02 (murder);
   2-19              (2)  Section 19.03 (capital murder);
   2-20              (3)  Section 20.04 (aggravated kidnapping);
   2-21              (4)  Section 22.02 (aggravated assault);
   2-22              (5)  Section 22.011 (sexual assault);
   2-23              (6)  Section 22.021 (aggravated sexual assault);
   2-24              (7)  Section 22.04 (injury to child, elderly
   2-25  individual, or disabled individual);
   2-26              (8)  Section 32.21 (forgery);
   2-27              (9)  Section 32.43 (commercial bribery);
    3-1              (10)  Section 32.45 (misapplication of fiduciary
    3-2  property or property of financial institution);
    3-3              (11)  Section 32.46 (securing execution of document by
    3-4  deception);
    3-5              (12)  Section 32.47 (fraudulent destruction, removal,
    3-6  or concealment of writing); or
    3-7              (13)  conduct described in Chapter 31 the punishment
    3-8  level for which is a felony of the third degree or higher.
    3-9        (c)  This chapter does not apply to:
   3-10              (1)  an action to collect workers' compensation
   3-11  benefits under the workers' compensation laws of this state
   3-12  (Subtitle A, Title 5, Labor Code) <(Article 8306 et seq., Vernon's
   3-13  Texas Civil Statutes)> or actions against an employer for exemplary
   3-14  damages arising out of the death of an employee; or
   3-15              (2)  a claim for exemplary damages included in an
   3-16  action to which this chapter otherwise applies <an action brought
   3-17  under the Deceptive Trade Practices-Consumer Protection Act
   3-18  (Subchapter E, Chapter 17, Business & Commerce Code) except as
   3-19  specifically provided in Section 17.50 of that Act; or>
   3-20              <(3)  an action brought under Chapter 21, Insurance
   3-21  Code>.
   3-22        (d)  Notwithstanding anything to the contrary stated in the
   3-23  sections of the Penal Code listed in Subsection (b), that
   3-24  subsection shall not apply unless the claimant proves the defendant
   3-25  acted or failed to act with intent to do harm as defined in this
   3-26  section.
   3-27        (e)  For purposes of this section, a person acts with intent
    4-1  to do harm with respect to the nature of the person's conduct and
    4-2  the result of the person's conduct when it is the person's
    4-3  conscious effort or desire to engage in such conduct for the
    4-4  purpose of doing substantial harm to others.
    4-5        (f)  Nothing in this section shall require a submission to
    4-6  the jury of a question regarding conduct by any party absent
    4-7  sufficient evidence to support the submission.
    4-8        (g)  The jury shall not be made aware through voir dire,
    4-9  introduction into evidence, instruction, or any other means that
   4-10  the conduct to which Subsection (b) applies is defined by the Penal
   4-11  Code.
   4-12        Sec. 33.003.  DETERMINATION OF PERCENTAGE OF <COMPARATIVE>
   4-13  RESPONSIBILITY.  The trier of fact, as to each cause of action
   4-14  asserted, shall determine the percentage of responsibility, stated
   4-15  in whole numbers, for the following persons with respect to each
   4-16  person's causing or contributing to cause in any way the harm for
   4-17  which recovery of damages is sought, whether by negligent act or
   4-18  omission, by any defective or unreasonably dangerous product, by
   4-19  other conduct or activity that violates an applicable legal
   4-20  standard, or by any combination of these:
   4-21              (1)  each claimant;
   4-22              (2)  each defendant; <and>
   4-23              (3)  each settling person; and
   4-24              (4)  each responsible third party who has been joined
   4-25  under Section 33.004.
   4-26        Sec. 33.004.  JOINDER OF RESPONSIBLE THIRD PARTIES.
   4-27  (a)  Prior to the expiration of limitations on the claimant's claim
    5-1  for damages against the defendant and on timely motion made for
    5-2  that purpose, a defendant may seek to join a responsible third
    5-3  party who has not been sued by the claimant.
    5-4        (b)  Nothing in this section shall affect the third-party
    5-5  practice as previously recognized in the rules and statutes of this
    5-6  state with regard to the assertion by a defendant of rights to
    5-7  contribution or indemnity.
    5-8        (c)  A seller eligible for indemnity under Section 82.002
    5-9  shall not be joined as a responsible third party under this section
   5-10  unless there is alleged against the seller a claim for relief based
   5-11  on the seller's negligence, intentional misconduct, or other act or
   5-12  omission, such as negligently modifying or altering a product, for
   5-13  which the seller is independently liable to the claimant.
   5-14        (d)  A third party claim by a defendant under this section
   5-15  may be filed, even though the claimant's action against the
   5-16  responsible third party would be barred by limitations, if the
   5-17  third party claim is filed on or before 30 days after the date the
   5-18  defendant's answer is required to be filed.  This section shall not
   5-19  apply if the limitations period governing the claimant's action
   5-20  against the defendant joining the responsible third party is longer
   5-21  than the limitations period governing the claimant's action against
   5-22  the responsible third party.
   5-23        (e)  A claimant may join a responsible third party, even
   5-24  though such joinder would otherwise be barred by limitations, if
   5-25  the claimant seeks to join the responsible third party not later
   5-26  than 60 days after a third party claim is filed under Subsection
   5-27  (d).
    6-1                      SUBCHAPTER B.  CONTRIBUTION
    6-2        Sec. 33.011.  DEFINITIONS.  In this chapter:
    6-3              (1)  "Claimant" means a party seeking recovery of
    6-4  damages pursuant to the provisions of Section 33.001, including a
    6-5  plaintiff, counterclaimant, cross-claimant, or third-party
    6-6  plaintiff seeking recovery of damages.  In an action in which a
    6-7  party seeks recovery of damages for injury to another person,
    6-8  damage to the property of another person, death of another person,
    6-9  or other harm to another person, "claimant" includes both that
   6-10  other person and the party seeking recovery of damages pursuant to
   6-11  the provisions of Section 33.001.
   6-12              (2)  "Defendant" includes any party from whom a
   6-13  claimant seeks recovery of damages pursuant to the provisions of
   6-14  Section 33.001 at the time of the submission of the case to the
   6-15  trier of fact.
   6-16              (3)  "Liable defendant" means a defendant against whom
   6-17  a judgment can be entered for at least a portion of the damages
   6-18  awarded to the claimant.
   6-19              (4)  "Percentage of responsibility" means that
   6-20  percentage, stated in whole numbers, attributed by the trier of
   6-21  fact to each claimant, each defendant, <or> each settling person,
   6-22  or each responsible third party with respect to causing or
   6-23  contributing to cause in any way, whether by negligent act or
   6-24  omission, by any defective or unreasonably dangerous product, by
   6-25  other conduct or activity violative of the applicable legal
   6-26  standard, or by any combination of the foregoing, the personal
   6-27  injury, property damage, death, or other harm for which recovery of
    7-1  damages is sought.
    7-2              (5)  "Settling person" means a person who at the time
    7-3  of submission has paid or promised to pay money or anything of
    7-4  monetary value to a claimant at any time in consideration of
    7-5  potential liability pursuant to the provisions of Section 33.001
    7-6  with respect to the personal injury, property damage, death, or
    7-7  other harm for which recovery of damages is sought.
    7-8              (6)(A)  "Responsible third party" means any person to
    7-9  whom all of the following apply:
   7-10                          (i)  the court in which the action was
   7-11  filed could exercise jurisdiction over the person;
   7-12                          (ii)  the person could have been, but was
   7-13  not, sued by the claimant; and
   7-14                          (iii)  the person is or may be liable to
   7-15  the plaintiff for all or a part of the damages claimed against the
   7-16  named defendant or defendants.
   7-17                    (B)  The term "responsible third party" does not
   7-18  include:
   7-19                          (i)  an employer who maintained workers'
   7-20  compensation insurance coverage, as defined in Section 401.011(44),
   7-21  Labor Code, at the time of the act, event, or occurrence made the
   7-22  basis of claimant's suit;
   7-23                          (ii)  a person or entity that is a debtor
   7-24  in bankruptcy proceedings; or
   7-25                          (iii)  a person or entity against whom the
   7-26  claimant's claim has been discharged in bankruptcy.
   7-27              (7)  "Toxic tort" means a cause of action in tort or
    8-1  for breach of implied warranty under Chapter 2, Business & Commerce
    8-2  Code, for damages of any kind arising out of or caused by exposure
    8-3  to or the deposit, discharge, or release into the environment of
    8-4  hazardous chemicals, hazardous wastes, hazardous hydrocarbons,
    8-5  similarly harmful organic or mineral substances, hazardous
    8-6  radiation sources, and other similarly harmful substances,
    8-7  including torts arising out of exposure to such substances in the
    8-8  work place, but not including any "drug" as defined in Section
    8-9  82.005(d)(2).
   8-10        Sec. 33.012.  AMOUNT OF RECOVERY.  (a)  If the claimant is
   8-11  not barred from recovery under Section 33.001, the court shall
   8-12  reduce the amount of damages to be recovered by the claimant with
   8-13  respect to a cause of action by a percentage equal to the
   8-14  claimant's percentage of responsibility.
   8-15        (b)  If the claimant has settled with one or more persons,
   8-16  the court shall further reduce the amount of damages to be
   8-17  recovered by the claimant with respect to a cause of action by a
   8-18  credit equal to one of the following, as elected in accordance with
   8-19  Section 33.014:
   8-20              (1)  the sum of the dollar amounts of all settlements;
   8-21  or
   8-22              (2)  a dollar amount equal to the sum of the following
   8-23  percentages of damages found by the trier of fact:
   8-24                    (A)  5 percent of those damages up to $200,000;
   8-25                    (B)  10 percent of those damages from $200,001 to
   8-26  $400,000;
   8-27                    (C)  15 percent of those damages from $400,001 to
    9-1  $500,000; and
    9-2                    (D)  20 percent of those damages greater than
    9-3  $500,000.
    9-4        (c)  The amount of damages recoverable by the claimant may
    9-5  only be reduced once by the credit provided for in Subsection (b).
    9-6        (d)  This section shall not apply to benefits paid by or on
    9-7  behalf of an employer to an employee pursuant to workers'
    9-8  compensation insurance coverage, as defined in Section 401.011(44),
    9-9  Labor Code, in effect at the time of the act, event, or occurrence
   9-10  made the basis of claimant's suit.
   9-11        Sec. 33.013.  AMOUNT OF LIABILITY.  (a)  Except as provided
   9-12  in Subsections (b) and (c), a liable defendant is liable to a
   9-13  claimant only for the percentage of the damages found by the trier
   9-14  of fact equal to that defendant's percentage of responsibility with
   9-15  respect to the personal injury, property damage, death, or other
   9-16  harm for which the damages are allowed.
   9-17        (b)  Notwithstanding Subsection (a), each liable defendant
   9-18  is, in addition to his liability under Subsection (a), jointly and
   9-19  severally liable for the damages recoverable by the claimant under
   9-20  Section 33.012 with respect to a cause of action if<:>
   9-21              <(1)>  the percentage of responsibility attributed to
   9-22  the defendant is greater than 50 <20> percent<; and>
   9-23              <(2)  only for a negligence action pursuant to Section
   9-24  33.001(a) or (c), the percentage of responsibility attributed to
   9-25  the defendant is greater than the percentage of responsibility
   9-26  attributed to the claimant>.
   9-27        (c)  Notwithstanding Subsections <Subsection> (a) and (b),
   10-1  each liable defendant is, in addition to his liability under
   10-2  Subsection (a), jointly and severally liable for the damages
   10-3  recoverable by the claimant under Section 33.012 with respect to a
   10-4  cause of action if:
   10-5              (1)  <no percentage of responsibility is attributed to
   10-6  the claimant and> the percentage of responsibility attributed to
   10-7  the defendant is greater than 20 <10> percent; and <or>
   10-8              <(2)>  the claimant's personal injury, property damage,
   10-9  <or> death, or other harm is caused by the depositing, discharge,
  10-10  or release into the environment of any hazardous or harmful
  10-11  substance as described in Section 33.011(7) <Subdivision (3)>; or
  10-12              (2) <(3)>  the claimant's personal injury, property
  10-13  damage, <or> death, or other harm resulted from a <">toxic tort.<"
  10-14  "Toxic tort" means a cause of action in tort or for breach of
  10-15  implied warranty under Chapter 2, Business & Commerce Code, arising
  10-16  out of exposure to hazardous chemicals, hazardous wastes, hazardous
  10-17  hydrocarbons, similarly harmful organic or mineral substances,
  10-18  hazardous radiation sources, and other similarly harmful substances
  10-19  (which usually, but need not necessarily, arise in the work place),
  10-20  but not including any "drug" as defined in Section 81.001(3), Civil
  10-21  Practice and Remedies Code.>
  10-22        (d)  This section does not create a cause of action.
  10-23        Sec. 33.014.  ELECTION OF CREDIT FOR SETTLEMENTS.  <(a)>  If
  10-24  a claimant has settled with one or more persons, an election must
  10-25  be made as to which dollar credit is to be applied under Section
  10-26  33.012(b).  This election shall be made by any defendant filing a
  10-27  written election before the issues of the action are submitted to
   11-1  the trier of fact and, when made, shall be binding on all
   11-2  defendants.  If no defendant makes this election or if conflicting
   11-3  elections are made, all defendants are considered to have elected
   11-4  Subdivision (2) of Section 33.012(b).
   11-5        Sec. 33.015.  CONTRIBUTION.  (a)  If a defendant who is
   11-6  jointly and severally liable under Section 33.013 pays a percentage
   11-7  of the damages for which the defendant is jointly and severally
   11-8  liable greater than his percentage of responsibility, that
   11-9  defendant has a right of contribution for the overpayment against
  11-10  each other liable defendant to the extent that the other liable
  11-11  defendant has not paid the percentage of the damages found by the
  11-12  trier of fact equal to that other defendant's percentage of
  11-13  responsibility.
  11-14        (b)  As among themselves, each of the defendants who is
  11-15  jointly and severally liable under Section 33.013 is liable for the
  11-16  damages recoverable by the claimant under Section 33.012 in
  11-17  proportion to his respective percentage of responsibility.  If a
  11-18  defendant who is jointly and severally liable pays a larger
  11-19  proportion of those damages than is required by his percentage of
  11-20  responsibility, that defendant has a right of contribution for the
  11-21  overpayment against each other defendant with whom he is jointly
  11-22  and severally liable under Section 33.013 to the extent that the
  11-23  other defendant has not paid the proportion of those damages
  11-24  required by that other defendant's percentage of responsibility.
  11-25        (c)  If for any reason a liable defendant does not pay or
  11-26  contribute the portion of the damages required by his percentage of
  11-27  responsibility, the amount of the damages not paid or contributed
   12-1  by that defendant shall be paid or contributed by the remaining
   12-2  defendants who are jointly and severally liable for those damages.
   12-3  The additional amount to be paid or contributed by each of the
   12-4  defendants who is jointly and severally liable for those damages
   12-5  shall be in proportion to his respective percentage of
   12-6  responsibility.
   12-7        (d)  No defendant has a right of contribution against any
   12-8  settling person.
   12-9        Sec. 33.016.  CLAIM AGAINST CONTRIBUTION DEFENDANT.  (a)  In
  12-10  this section, "contribution defendant" means any defendant,
  12-11  counterdefendant, or third-party defendant from whom any party
  12-12  seeks contribution with respect to any portion of damages for which
  12-13  that party may be liable, but from whom the claimant seeks no
  12-14  relief at the time of submission.
  12-15        (b)  Each liable defendant is entitled to contribution from
  12-16  each person who is not a settling person and who is liable to the
  12-17  claimant for a percentage of responsibility but from whom the
  12-18  claimant seeks no relief at the time of submission.  A party may
  12-19  assert this contribution right against any such person as a
  12-20  contribution defendant in the claimant's action.
  12-21        (c)  The trier of fact shall determine as a separate issue or
  12-22  finding of fact the percentage of responsibility with respect to
  12-23  each contribution defendant and these findings shall be solely for
  12-24  purposes of this section and Section 33.015 and not as a part of
  12-25  the percentages of responsibility determined under Section 33.003.
  12-26  Only the percentage of responsibility of each defendant and
  12-27  contribution defendant shall be included in this determination.
   13-1        (d)  As among liable defendants, including each defendant who
   13-2  is jointly and severally liable under Section 33.013, each
   13-3  contribution defendant's percentage of responsibility is to be
   13-4  included for all purposes of Section 33.015.  The amount to be
   13-5  contributed by each contribution defendant pursuant to Section
   13-6  33.015 shall be in proportion to his respective percentage of
   13-7  responsibility relative to the sum of percentages of responsibility
   13-8  of all liable defendants and liable contribution defendants.
   13-9        Sec. 33.017.  PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.
  13-10  Nothing in this chapter shall be construed to affect any rights of
  13-11  indemnity granted to a seller eligible for indemnity by Chapter 82,
  13-12  the Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's
  13-13  Texas Civil Statutes), or any other statute, nor shall it affect
  13-14  rights of indemnity granted by contract or at common law.  To the
  13-15  extent of any conflict between this chapter and any right to
  13-16  indemnification granted by Section 82.002, the Texas Motor Vehicle
  13-17  Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
  13-18  or any other statute, contract, or common law, those rights of
  13-19  indemnification shall prevail over the provisions of this chapter.
  13-20        SECTION 2.  This Act takes effect September 1, 1995, and
  13-21  applies only to a cause of action that accrues on or after that
  13-22  date.  A cause of action that accrued before the effective date of
  13-23  this Act is governed by the law in effect at the time the action
  13-24  accrued, and that law is continued in effect for that purpose.
  13-25        SECTION 3.  The importance of this legislation and the
  13-26  crowded condition of the calendars in both houses create an
  13-27  emergency and an imperative public necessity that the
   14-1  constitutional rule requiring bills to be read on three several
   14-2  days in each house be suspended, and this rule is hereby suspended.
   14-3                       COMMITTEE AMENDMENT NO. 1
   14-4        Amend S.B. No. 28, in SECTION 1, by striking Section
   14-5  33.013(c), Civil Practice and Remedies Code, and substituting a new
   14-6  Section 33.013(c) to read as follows:
   14-7        (c)  Notwithstanding Subsections <Subsection> (a) and (b),
   14-8  each liable defendant is, in addition to his liability under
   14-9  Subsection (a), jointly and severally liable for the damages
  14-10  recoverable by the claimant under Section 33.012 with respect to a
  14-11  cause of action if:
  14-12              (1)  <no percentage of responsibility is attributed to
  14-13  the claimant and> the percentage of responsibility attributed to
  14-14  the defendant is greater than 20 <10> percent; or
  14-15              (2)  the claimant's personal injury, property damage,
  14-16  <or> death, or other harm is caused by the depositing, discharge,
  14-17  or release into the environment of any hazardous or harmful
  14-18  substance as described in Section 33.011(7) <Subdivision (3)>; or
  14-19              (3)  the claimant's personal injury, property damage,
  14-20  <or> death, or other harm resulted from a <">toxic tort.<"  "Toxic
  14-21  tort" means a cause of action in tort or for breach of implied
  14-22  warranty under Chapter 2, Business & Commerce Code, arising out of
  14-23  exposure to hazardous chemicals, hazardous wastes, hazardous
  14-24  hydrocarbons, similarly harmful organic or mineral substances,
  14-25  hazardous radiation sources, and other similarly harmful substances
  14-26  (which usually, but need not necessarily, arise in the work place),
  14-27  but not including any "drug" as defined in Section 81.001(3), Civil
   15-1  Practice and Remedies Code.>
   15-2  74R11566 DAK-D                                               Wolens