By Sibley S.B. No. 29
74R3373 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to tort reform.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 ARTICLE I. VENUE
1-5 SECTION 1.01. Section 15.001, Civil Practice and Remedies
1-6 Code, is amended to read as follows:
1-7 Sec. 15.001. VENUE: GENERAL RULE. Except as otherwise
1-8 provided by this subchapter or Subchapter B or C, all lawsuits
1-9 shall be brought:
1-10 (1) in the county in which all or part of the cause of
1-11 action accrued; <or>
1-12 (2) in the county of defendant's residence if
1-13 defendant is a natural person; or
1-14 (3) in the county of the defendant's principal place
1-15 of business in this state, if the defendant is not a natural
1-16 person.
1-17 SECTION 1.02. Subchapter B, Chapter 15, Civil Practice and
1-18 Remedies Code, is amended by adding Section 15.018 to read as
1-19 follows:
1-20 Sec. 15.018. JOINDER OF DEFENDANTS. (a) Except as provided
1-21 by Subsection (b), if two or more parties are joined as defendants
1-22 in the same action, the action shall be brought in the county in
1-23 which all or part of the cause of action accrued.
1-24 (b) If venue under Sections 15.001(2) and (3) for each
2-1 defendant joined in the action is in the same county, the action
2-2 may be brought in that county.
2-3 (c) This section does not apply to an action governed by
2-4 another section of this subchapter.
2-5 SECTION 1.03. Sections 15.032 and 15.033, Civil Practice and
2-6 Remedies Code, are amended to read as follows:
2-7 Sec. 15.032. INSURANCE. Suit against fire, marine, or
2-8 inland insurance companies may also be commenced in any county in
2-9 which the insured property was situated. A suit on a policy may be
2-10 brought against any life insurance company, or accident insurance
2-11 company, or life and accident, or health and accident, or life,
2-12 health, and accident insurance company in the county in which the
2-13 company's principal place of business in this state <home office of
2-14 the company> is located or in the county in which the loss has
2-15 occurred or in which the policyholder or beneficiary instituting
2-16 the suit resided at the time the cause of action accrued <resides>.
2-17 Sec. 15.033. BREACH OF WARRANTY BY MANUFACTURER. A suit for
2-18 breach of warranty by a manufacturer of consumer goods may be
2-19 brought in the <any> county in which the manufacturer's principal
2-20 place of business in this state is located <in which all or a part
2-21 of the cause of action accrued, in any county in which the
2-22 manufacturer may have an agency or representative, in the county in
2-23 which the principal office of the company may be situated,> or in
2-24 the county in which the plaintiff resided at the time the cause of
2-25 action accrued <or plaintiffs reside>.
2-26 SECTION 1.04. Section 15.035, Civil Practice and Remedies
2-27 Code, is amended by amending Subsection (a) and adding Subsection
3-1 (c) to read as follows:
3-2 (a) Except as provided by Subsection (b), if a party
3-3 <person> has contracted in writing to perform an obligation in a
3-4 particular county, expressly naming the county or a definite place
3-5 in that county by that writing, suit on or by reason of the
3-6 obligation may be brought against that party <him> either in:
3-7 (1) that county;
3-8 (2) <or in> the county of defendant's residence if
3-9 defendant is a natural person; or
3-10 (3) in the county of the defendant's principal place
3-11 of business in this state, if the defendant is not a natural person
3-12 <in which the defendant has his domicile>.
3-13 (c) The parties to a written contract may agree in writing
3-14 to exclusive venue in the county of the residence or principal
3-15 place of business of either party or in the county in which the
3-16 contract is to be performed. An agreement under this subsection
3-17 must appear in a conspicuous place and in a conspicuous manner in
3-18 the contract. This subsection does not apply to a contract arising
3-19 out of or based on a consumer obligation or consumer transaction
3-20 for goods, a service, a loan, or an extension of credit intended
3-21 primarily for personal, family, household, or agricultural use.
3-22 SECTION 1.05. Subchapter C, Chapter 15, Civil Practice and
3-23 Remedies Code, is amended by adding Section 15.041 to read as
3-24 follows:
3-25 Sec. 15.041. LIBEL, SLANDER, OR INVASION OF PRIVACY. A suit
3-26 for damages for libel, slander, or invasion of privacy may be
3-27 brought in the county in which the plaintiff resided at the time
4-1 the cause of action accrued.
4-2 SECTION 1.06. Section 15.061, Civil Practice and Remedies
4-3 Code, is amended to read as follows:
4-4 Sec. 15.061. JOINDER OF <DEFENDANTS OR> CLAIMS. (a) Two
4-5 <When two> or more <parties are joined as defendants in the same
4-6 action or two or more> claims or causes of action may be <are>
4-7 properly joined in one action only if:
4-8 (1) the claims or causes of action arose, in whole or
4-9 in part, in the same county; and
4-10 (2) venue as to each defendant for each claim or cause
4-11 of action under Sections 15.001(2) and (3) is in the same county.
4-12 (b) Notwithstanding Subsection (a), a claim or cause of
4-13 action that <and the court has venue of an action or claim against
4-14 any one defendant, the court also has venue of all claims or
4-15 actions against all defendants unless one or more of the claims or
4-16 causes of action> is governed by one of the provisions of
4-17 Subchapter B requiring transfer of the claim or cause of action
4-18 shall be transferred, on proper objection, to the mandatory county.
4-19 SECTION 1.07. Chapter 15, Civil Practice and Remedies Code,
4-20 is amended by adding Subchapter F to read as follows:
4-21 SUBCHAPTER F. TRANSFER OF MULTI-COUNTY CASES
4-22 Sec. 15.121. DEFINITION. In this subchapter, "panel" means
4-23 the judicial panel on multi-county litigation.
4-24 Sec. 15.122. TRANSFER AUTHORIZED FOR COORDINATED AND
4-25 CONSOLIDATED PRETRIAL PROCEEDINGS. (a) The judicial panel on
4-26 multi-county litigation may transfer one or more civil actions to
4-27 another county for coordinated or consolidated pretrial proceedings
5-1 as provided by this subchapter.
5-2 (b) The panel may not transfer an action under this section
5-3 unless:
5-4 (1) the action involves a question of fact common to
5-5 another action pending in the county to which the action is to be
5-6 transferred; and
5-7 (2) the panel finds that transfer of the action would
5-8 be for the convenience of the parties and witnesses and would
5-9 promote the just and efficient conduct of the action.
5-10 Sec. 15.123. TRANSFER FOR CONVENIENCE OF PARTIES. The panel
5-11 may transfer as provided by this subchapter an action to another
5-12 county in which the action may have been brought for the
5-13 convenience of the parties and witnesses and in the interest of
5-14 justice.
5-15 Sec. 15.124. TRANSFER PROCEEDINGS; HEARING. (a) A party to
5-16 an action may file a motion with the panel requesting transfer
5-17 under this subchapter. The party must file a copy of the motion in
5-18 the court in which the action to be transferred is pending.
5-19 (b) The panel shall hold a hearing to determine whether to
5-20 order the transfer of the action.
5-21 (c) The panel shall notify each party in each action that
5-22 may be affected by the transfer that the panel has received a
5-23 motion to transfer an action under this subchapter. The notice
5-24 must state the time and place of the hearing.
5-25 (d) A party to an action that may be affected by the
5-26 transfer may offer evidence relevant to whether the transfer should
5-27 be made.
6-1 (e) The panel's order must be supported by findings of fact
6-2 and conclusions of law based on the record of the hearing.
6-3 Sec. 15.125. FILING OF ORDER. (a) The panel's order
6-4 transferring an action is effective at the time it is filed in the
6-5 office of the clerk of the court to which the action is being
6-6 transferred.
6-7 (b) The clerk of the court shall, not later than the fifth
6-8 day after the date the order is filed, transmit a certified copy of
6-9 the panel's order to each court from which an action is being
6-10 transferred.
6-11 (c) The panel shall file an order of the panel denying a
6-12 motion to transfer an action in the court in which the action is
6-13 pending.
6-14 (d) The panel shall file a copy of any order of the panel,
6-15 including an order to set a hearing, in the office of the clerk of
6-16 the court in which a transfer hearing is to be or has been held.
6-17 Sec. 15.126. JUDGE FOR COORDINATED OR CONSOLIDATED PRETRIAL
6-18 PROCEEDINGS. The panel shall assign one or more judges of the
6-19 appropriate court in the county in which coordinated or
6-20 consolidated pretrial proceedings are to be conducted to conduct
6-21 the proceedings.
6-22 Sec. 15.127. REMAND TO ORIGINATING COUNTY. (a) The panel
6-23 shall remand an action transferred under Section 15.122 to the
6-24 county in which it originated not later than the conclusion of the
6-25 pretrial proceedings.
6-26 (b) The panel may separate a claim, cross-claim,
6-27 counterclaim, or third-party claim from the action and remand that
7-1 claim to the originating county before remanding the remainder of
7-2 the action.
7-3 (c) The panel may not remand an action or claim to the
7-4 originating county after the claim has been settled or otherwise
7-5 terminated.
7-6 Sec. 15.128. REVIEW OF ORDER OF PANEL. (a) Review of an
7-7 order of the panel is by extraordinary writ.
7-8 (b) A petition for a writ initially filed in a court of
7-9 appeals to review an order transferring an action, and any
7-10 subsequent order of the panel relating to that action, must be
7-11 filed in the court of appeals that would have jurisdiction of an
7-12 appeal from the court to which the action is to be transferred.
7-13 (c) A petition for a writ initially filed in a court of
7-14 appeals to review an order of the panel other than an order
7-15 described by Subsection (b) must be filed in the court with
7-16 jurisdiction over the district in which the panel is sitting.
7-17 Sec. 15.129. MANDAMUS. The supreme court, a court of
7-18 appeals, or a justice of the supreme court or a court of appeals
7-19 may issue a writ of mandamus against the panel and may issue other
7-20 writs against the panel as necessary.
7-21 Sec. 15.130. JUDICIAL PANEL ON MULTI-COUNTY LITIGATION. (a)
7-22 The judicial panel on multi-county litigation is appointed by the
7-23 supreme court and is composed of seven justices and judges selected
7-24 from the courts of appeals and district courts of this state. The
7-25 panel may not include more than two individuals from any court of
7-26 appeals district.
7-27 (b) The members of the panel serve staggered six-year terms
8-1 expiring February 1 of odd-numbered years.
8-2 (c) The supreme court shall fill any vacancy on the panel,
8-3 including a vacancy caused by a judge on the panel leaving office.
8-4 (d) The concurrence of at least four members of the panel is
8-5 required for any action of the panel.
8-6 (e) A member of the panel may not receive compensation for
8-7 serving as a member of the panel. The supreme court may reimburse
8-8 a member of the panel for expenses actually incurred by the member
8-9 in performing the member's duties.
8-10 Sec. 15.131. RULES. The supreme court may adopt rules
8-11 governing the operation of the panel as provided by Section 22.004,
8-12 Government Code.
8-13 SECTION 1.08. Sections 15.017, 15.036, 15.037, and 15.040,
8-14 Civil Practice and Remedies Code, are repealed.
8-15 SECTION 1.09. In making the initial appointments to the
8-16 judicial panel on multi-county litigation under Subchapter F,
8-17 Chapter 15, Civil Practice and Remedies Code, as added by this
8-18 article, the supreme court shall appoint two members for terms
8-19 expiring February 1, 1997, two members for terms expiring February
8-20 1, 1999, and three members for terms expiring February 1, 2001.
8-21 ARTICLE II. RESPONSIBILITY FOR DAMAGES
8-22 SECTION 2.01. Chapter 33, Civil Practice and Remedies Code,
8-23 is amended to read as follows:
8-24 CHAPTER 33. PROPORTIONATE <COMPARATIVE> RESPONSIBILITY
8-25 <SUBCHAPTER A. COMPARATIVE RESPONSIBILITY>
8-26 Sec. 33.001. DEFINITIONS. In this chapter:
8-27 (1) "Claimant" means a party seeking recovery of
9-1 damages, including a plaintiff, counterclaimant, cross-claimant, or
9-2 third-party plaintiff seeking recovery of damages. In an action in
9-3 which a party seeks recovery of damages for injury to another
9-4 person, damage to the property of another person, death of another
9-5 person, or other harm to another person, "claimant" includes both
9-6 that other person and the party seeking recovery of damages.
9-7 (2) "Defendant" includes any party from whom a
9-8 claimant seeks recovery of damages at the time of the submission of
9-9 the case to the trier of fact.
9-10 (3) "Liable defendant" means a defendant against whom
9-11 a judgment can be entered for at least a portion of the damages
9-12 awarded to the claimant.
9-13 (4) "Percentage of responsibility" means that
9-14 percentage attributed by the trier of fact as provided by Section
9-15 33.004.
9-16 (5) "Settling person" means a person who at the time
9-17 of submission has paid or promised to pay money or anything of
9-18 monetary value to a claimant at any time in consideration of
9-19 potential liability with respect to the harm for which recovery of
9-20 damages is sought.
9-21 Sec. 33.002 <33.001>. PROPORTIONATE <COMPARATIVE>
9-22 RESPONSIBILITY. <(a)> In an action to which this chapter applies
9-23 under Section 33.003 <recover damages for negligence resulting in
9-24 personal injury, property damage, or death or an action for
9-25 products liability grounded in negligence>, a claimant may recover
9-26 damages only if the claimant's <his> percentage of responsibility
9-27 is less than or equal to 50 percent.
10-1 <(b) In an action to recover damages for personal injury,
10-2 property damage, or death in which at least one defendant is found
10-3 liable on a basis of strict tort liability, strict products
10-4 liability, or breach of warranty under Chapter 2, Business &
10-5 Commerce Code, a claimant may recover damages only if his
10-6 percentage of responsibility is less than 60 percent.>
10-7 <(c) In an action in which a claimant seeks damages for harm
10-8 other than personal injury, property damage, or death, arising out
10-9 of any action grounded in negligence, including but not limited to
10-10 negligence relating to any professional services rendered by an
10-11 architect, attorney, certified public accountant, real estate
10-12 broker or agent, or engineer licensed by this state, a claimant may
10-13 recover damages only if his percentage of responsibility is less
10-14 than or equal to 50 percent.>
10-15 Sec. 33.003 <33.002>. APPLICABILITY. (a) Except as
10-16 provided by Subsection (b), this chapter applies to any tort,
10-17 including an action to recover damages for:
10-18 (1) negligence resulting in personal injury, property
10-19 damage, or death;
10-20 (2) products liability grounded in negligence;
10-21 (3) personal injury, property damage, or death in
10-22 which at least one defendant is found liable on a basis of strict
10-23 tort liability, strict products liability, or breach of warranty
10-24 under Chapter 2, Business & Commerce Code;
10-25 (4) harm, other than personal injury, property damage,
10-26 or death, arising out of any action grounded in negligence,
10-27 including negligence relating to any professional services rendered
11-1 by an architect, attorney, certified public accountant, real estate
11-2 broker or agent, or engineer licensed by this state; or
11-3 (5) an intentional act. <This chapter does not apply
11-4 to a claim based on an intentional tort or a claim for exemplary
11-5 damages included in an action to which this chapter otherwise
11-6 applies.>
11-7 (b) This chapter does not apply to:
11-8 (1) an action to collect workers' compensation
11-9 benefits under the workers' compensation laws of this state
11-10 (Subtitle A, Title 5, Labor Code) <(Article 8306 et seq., Vernon's
11-11 Texas Civil Statutes)> or actions against an employer for exemplary
11-12 damages arising out of the death of an employee;
11-13 (2) an action brought under the Deceptive Trade
11-14 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
11-15 Business & Commerce Code) <except as specifically provided in
11-16 Section 17.50 of that Act>; <or>
11-17 (3) an action brought under Chapter 21, Insurance
11-18 Code; or
11-19 (4) a claim for exemplary damages included in an
11-20 action to which this chapter applies.
11-21 Sec. 33.004 <33.003>. DETERMINATION OF PERCENTAGE OF
11-22 <COMPARATIVE> RESPONSIBILITY. The trier of fact, as to each cause
11-23 of action asserted, shall determine the percentage of
11-24 responsibility for the following persons with respect to their
11-25 causing or contributing to cause in any way, including by negligent
11-26 act or omission, by any defective or unreasonably dangerous
11-27 product, by other conduct or activity that violates an applicable
12-1 legal standard, or by any combination of these, the harm for which
12-2 recovery of damages is sought:
12-3 (1) each claimant;
12-4 (2) each defendant; <and>
12-5 (3) each settling person; and
12-6 (4) any other person, subject to Section 33.005,
12-7 without regard to whether that person was or could have been named
12-8 as a party to the action.
12-9 Sec. 33.005. PERCENTAGE OF RESPONSIBILITY FOR A NONPARTY.
12-10 (a) The trier of fact may determine the percentage of
12-11 responsibility for a person who is not a party to the action or is
12-12 not a settling person only if the defendant files a pleading in the
12-13 action stating:
12-14 (1) the person's name and last known address or, if
12-15 the name and address is not known, the best identification of the
12-16 person that is possible under the circumstances; and
12-17 (2) the basis for believing the person to be wholly or
12-18 partially at fault.
12-19 (b) The defendant must file the pleading required by this
12-20 section not later than the 90th day after the date the defendant is
12-21 served process in the action unless the court grants leave to file
12-22 the pleading at a later time.
12-23 <Sections 33.004-33.010 reserved for expansion>
12-24 <SUBCHAPTER B. CONTRIBUTION>
12-25 <Sec. 33.011. DEFINITIONS. In this chapter:>
12-26 <(1) "Claimant" means a party seeking recovery of
12-27 damages pursuant to the provisions of Section 33.001, including a
13-1 plaintiff, counterclaimant, cross-claimant, or third-party
13-2 plaintiff seeking recovery of damages. In an action in which a
13-3 party seeks recovery of damages for injury to another person,
13-4 damage to the property of another person, death of another person,
13-5 or other harm to another person, "claimant" includes both that
13-6 other person and the party seeking recovery of damages pursuant to
13-7 the provisions of Section 33.001.>
13-8 <(2) "Defendant" includes any party from whom a
13-9 claimant seeks recovery of damages pursuant to the provisions of
13-10 Section 33.001 at the time of the submission of the case to the
13-11 trier of fact.>
13-12 <(3) "Liable defendant" means a defendant against whom
13-13 a judgment can be entered for at least a portion of the damages
13-14 awarded to the claimant.>
13-15 <(4) "Percentage of responsibility" means that
13-16 percentage attributed by the trier of fact to each claimant, each
13-17 defendant, or each settling person with respect to causing or
13-18 contributing to cause in any way, whether by negligent act or
13-19 omission, by any defective or unreasonably dangerous product, by
13-20 other conduct or activity violative of the applicable legal
13-21 standard, or by any combination of the foregoing, the personal
13-22 injury, property damage, death, or other harm for which recovery of
13-23 damages is sought.>
13-24 <(5) "Settling person" means a person who at the time
13-25 of submission has paid or promised to pay money or anything of
13-26 monetary value to a claimant at any time in consideration of
13-27 potential liability pursuant to the provisions of Section 33.001
14-1 with respect to the personal injury, property damage, death, or
14-2 other harm for which recovery of damages is sought.>
14-3 <Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is
14-4 not barred from recovery under Section 33.001, the court shall
14-5 reduce the amount of damages to be recovered by the claimant with
14-6 respect to a cause of action by a percentage equal to the
14-7 claimant's percentage of responsibility.>
14-8 <(b) If the claimant has settled with one or more persons,
14-9 the court shall further reduce the amount of damages to be
14-10 recovered by the claimant with respect to a cause of action by a
14-11 credit equal to one of the following, as elected in accordance with
14-12 Section 33.014:>
14-13 <(1) the sum of the dollar amounts of all settlements;
14-14 or>
14-15 <(2) a dollar amount equal to the sum of the following
14-16 percentages of damages found by the trier of fact:>
14-17 <(A) 5 percent of those damages up to $200,000;>
14-18 <(B) 10 percent of those damages from $200,001
14-19 to $400,000;>
14-20 <(C) 15 percent of those damages from $400,001
14-21 to $500,000; and>
14-22 <(D) 20 percent of those damages greater than
14-23 $500,000.>
14-24 <(c) The amount of damages recoverable by the claimant may
14-25 only be reduced once by the credit provided for in Subsection (b).>
14-26 Sec. 33.006 <33.013>. Amount of Liability. (a) This
14-27 section applies only if a claimant is not barred from recovery
15-1 under Section 33.002.
15-2 (b) A <Except as provided in Subsections (b) and (c), a>
15-3 liable defendant is liable to a claimant only for an amount of
15-4 damages calculated by multiplying the total amount of the
15-5 claimant's damages as found by the trier of fact by the defendant's
15-6 percentage of responsibility as found by the trier of fact.
15-7 (c) A court may not enter a judgment against a liable
15-8 defendant that results in the defendant's being jointly liable for
15-9 the claimant's damages. <the percentage of the damages found by
15-10 the trier of fact equal to that defendant's percentage of
15-11 responsibility with respect to the personal injury, property
15-12 damage, death, or other harm for which the damages are allowed.>
15-13 <(b) Notwithstanding Subsection (a), each liable defendant
15-14 is, in addition to his liability under Subsection (a), jointly and
15-15 severally liable for the damages recoverable by the claimant under
15-16 Section 33.012 with respect to a cause of action if:>
15-17 <(1) the percentage of responsibility attributed to
15-18 the defendant is greater than 20 percent; and>
15-19 <(2) only for a negligence action pursuant to Section
15-20 33.001(a) or (c), the percentage of responsibility attributed to
15-21 the defendant is greater than the percentage of responsibility
15-22 attributed to the claimant.>
15-23 <(c) Notwithstanding Subsection (a), each liable defendant
15-24 is, in addition to his liability under Subsection (a), jointly and
15-25 severally liable for the damages recoverable by the claimant under
15-26 Section 33.012 with respect to a cause of action if:>
15-27 <(1) no percentage of responsibility is attributed to
16-1 the claimant and the percentage of responsibility attributed to the
16-2 defendant is greater than 10 percent; or>
16-3 <(2) the claimant's personal injury, property damage,
16-4 or death is caused by the depositing, discharge, or release into
16-5 the environment of any hazardous or harmful substance as described
16-6 in Subdivision (3); or>
16-7 <(3) the claimant's personal injury, property damage,
16-8 or death resulted from a "toxic tort." "Toxic tort" means a cause
16-9 of action in tort or for breach of implied warranty under Chapter
16-10 2, Business & Commerce Code, arising out of exposure to hazardous
16-11 chemicals, hazardous wastes, hazardous hydrocarbons, similarly
16-12 harmful organic or mineral substances, hazardous radiation sources,
16-13 and other similarly harmful substances (which usually, but need not
16-14 necessarily, arise in the work place), but not including any "drug"
16-15 as defined in Section 81.001(3), Civil Practice and Remedies Code.>
16-16 (d) This section does not create a cause of action.
16-17 <Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. (a) If a
16-18 claimant has settled with one or more persons, an election must be
16-19 made as to which dollar credit is to be applied under Section
16-20 33.012(b). This election shall be made by any defendant filing a
16-21 written election before the issues of the action are submitted to
16-22 the trier of fact and, when made, shall be binding on all
16-23 defendants. If no defendant makes this election or if conflicting
16-24 elections are made, all defendants are considered to have elected
16-25 Subdivision (2) of Section 33.012(b).>
16-26 <Sec. 33.015. CONTRIBUTION. (a) If a defendant who is
16-27 jointly and severally liable under Section 33.013 pays a percentage
17-1 of the damages for which the defendant is jointly and severally
17-2 liable greater than his percentage of responsibility, that
17-3 defendant has a right of contribution for the overpayment against
17-4 each other liable defendant to the extent that the other liable
17-5 defendant has not paid the percentage of the damages found by the
17-6 trier of fact equal to that other defendant's percentage of
17-7 responsibility.>
17-8 <(b) As among themselves, each of the defendants who is
17-9 jointly and severally liable under Section 33.013 is liable for the
17-10 damages recoverable by the claimant under Section 33.012 in
17-11 proportion to his respective percentage of responsibility. If a
17-12 defendant who is jointly and severally liable pays a larger
17-13 proportion of those damages than is required by his percentage of
17-14 responsibility, that defendant has a right of contribution for the
17-15 overpayment against each other defendant with whom he is jointly
17-16 and severally liable under Section 33.013 to the extent that the
17-17 other defendant has not paid the proportion of those damages
17-18 required by that other defendant's percentage of responsibility.>
17-19 <(c) If for any reason a liable defendant does not pay or
17-20 contribute the portion of the damages required by his percentage of
17-21 responsibility, the amount of the damages not paid or contributed
17-22 by that defendant shall be paid or contributed by the remaining
17-23 defendants who are jointly and severally liable for those damages.
17-24 The additional amount to be paid or contributed by each of the
17-25 defendants who is jointly and severally liable for those damages
17-26 shall be in proportion to his respective percentage of
17-27 responsibility.>
18-1 <(d) No defendant has a right of contribution against any
18-2 settling person.>
18-3 <Sec. 33.016. CLAIM AGAINST CONTRIBUTION DEFENDANT. (a) In
18-4 this section, "contribution defendant" means any defendant, counter
18-5 defendant, or third-party defendant from whom any party seeks
18-6 contribution with respect to any portion of damages for which that
18-7 party may be liable, but from whom the claimant seeks no relief at
18-8 the time of submission.>
18-9 <(b) Each liable defendant is entitled to contribution from
18-10 each person who is not a settling person and who is liable to the
18-11 claimant for a percentage of responsibility but from whom the
18-12 claimant seeks no relief at the time of submission. A party may
18-13 assert this contribution right against any such person as a
18-14 contribution defendant in the claimant's action.>
18-15 <(c) The trier of fact shall determine as a separate issue
18-16 or finding of fact the percentage of responsibility with respect to
18-17 each contribution defendant and these findings shall be solely for
18-18 purposes of this section and Section 33.015 and not as a part of
18-19 the percentages of responsibility determined under Section 33.003.
18-20 Only the percentage of responsibility of each defendant and
18-21 contribution defendant shall be included in this determination.>
18-22 <(d) As among liable defendants, including each defendant
18-23 who is jointly and severally liable under Section 33.013, each
18-24 contribution defendant's percentage of responsibility is to be
18-25 included for all purposes of Section 33.015. The amount to be
18-26 contributed by each contribution defendant pursuant to Section
18-27 33.015 shall be in proportion to his respective percentage of
19-1 responsibility relative to the sum of percentages of responsibility
19-2 of all liable defendants and liable contribution defendants.>
19-3 SECTION 2.02. Section 32.001, Civil Practice and Remedies
19-4 Code, is amended by adding Subsection (c) to read as follows:
19-5 (c) This chapter does not apply to an action to which
19-6 Chapter 33 applies.
19-7 ARTICLE III. EXEMPLARY DAMAGES
19-8 SECTION 3.01. Chapter 41, Civil Practice and Remedies Code,
19-9 is amended to read as follows:
19-10 CHAPTER 41. EXEMPLARY DAMAGES
19-11 Sec. 41.001. DEFINITIONS. In this chapter:
19-12 (1) "Claimant" means a party, including a plaintiff,
19-13 counterclaimant, cross-claimant, or third-party plaintiff, seeking
19-14 recovery of exemplary damages. In a cause of action in which a
19-15 party seeks recovery of exemplary damages related to injury to
19-16 another person, damage to the property of another person, death of
19-17 another person, or other harm to another person, "claimant"
19-18 includes both that other person and the party seeking recovery of
19-19 exemplary damages.
19-20 (2) "Defendant" means a party, including a
19-21 counterdefendant, cross-defendant, or third-party defendant, from
19-22 whom a claimant seeks relief with respect to exemplary damages.
19-23 (3) "Economic damages" means compensatory damages for
19-24 pecuniary loss. The term does not include exemplary damages or
19-25 damages for physical pain and suffering, mental anguish and
19-26 suffering, loss of consortium, and disfigurement.
19-27 (4) "Exemplary damages" means any damages awarded as
20-1 <an example to others, as> a penalty<,> or by way of punishment.
20-2 "Exemplary damages" includes punitive damages.
20-3 (5) <(4)> "Fraud" means fraud other than constructive
20-4 fraud.
20-5 <(5) "Gross negligence" means more than momentary
20-6 thoughtlessness, inadvertence, or error of judgment. It means such
20-7 an entire want of care as to establish that the act or omission was
20-8 the result of actual conscious indifference to the rights, safety,
20-9 or welfare of the person affected.>
20-10 (6) "Malice" means:
20-11 (A) a specific intent <conduct that is
20-12 specifically intended> by the defendant to cause substantial injury
20-13 to the claimant; or
20-14 (B) <an act that is carried out by the defendant
20-15 with a> flagrant disregard by the defendant for the rights of
20-16 others and <with> actual awareness on the part of the defendant
20-17 that the act or omission will, in reasonable probability, result in
20-18 human death, great bodily injury <harm>, or property damage.
20-19 Sec. 41.002. APPLICABILITY. (a) This chapter applies to
20-20 any <an> action in which a claimant seeks exemplary damages
20-21 relating to a cause of action <as defined by Section 33.001>.
20-22 (b) This chapter establishes the maximum exemplary damages
20-23 that may be awarded in an action subject to this chapter, including
20-24 an action for which exemplary damages are awarded under another law
20-25 of this state. This chapter does not apply to the extent another
20-26 law establishes a lower maximum amount of exemplary damages for a
20-27 particular claim<:>
21-1 <(1) an action brought under the Deceptive Trade
21-2 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
21-3 Business & Commerce Code) except as specifically provided in
21-4 Section 17.50 of that Act;>
21-5 <(2) an action brought under Chapter 21, Insurance
21-6 Code;>
21-7 <(3) an action brought under the workers' compensation
21-8 laws of this state (Article 8306 et seq., Revised Statutes);>
21-9 <(4) an action to recover exemplary damages against an
21-10 employer by the employee's beneficiaries in a death action arising
21-11 out of the course and scope of employment where the employer is a
21-12 subscriber under the workers' compensation laws of this state
21-13 (Article 8306 et seq., Revised Statutes);>
21-14 <(5) an action brought under Chapter 246, Acts of the
21-15 63rd Legislature, Regular Session, 1973, Home Solicitation
21-16 Transactions (Article 5069-13.01 et seq., Vernon's Texas Civil
21-17 Statutes);>
21-18 <(6) an action brought under Chapter 547, Acts of the
21-19 63rd Legislature, Regular Session, 1973, Debt Collection Practices
21-20 (Article 5069-11.01 et seq., Vernon's Texas Civil Statutes);>
21-21 <(7) an action brought under Chapter 54, 91, or 92,
21-22 Property Code;>
21-23 <(8) an action brought under the Texas Manufactured
21-24 Housing Standards Act (Article 5221f, Vernon's Texas Civil
21-25 Statutes);>
21-26 <(9) an action brought under the Texas Motor Vehicle
21-27 Commission Code (Article 4413(36), Vernon's Texas Civil Statutes);>
22-1 <(10) an action brought under the Texas Proprietary
22-2 School Act, Chapter 32, Education Code;>
22-3 <(11) an action brought under Section 9.507 or Section
22-4 2.01, Business & Commerce Code;>
22-5 <(12) an action brought under Chapter 36, Family Code;>
22-6 <(13) an action brought under the Health Spa Act
22-7 (Article 5221l, Vernon's Texas Civil Statutes);>
22-8 <(14) an action brought under the Business Opportunity
22-9 Act (Article 5069-16.01 et seq., Vernon's Texas Civil Statutes); or>
22-10 <(15) an action brought under the Texas Timeshare Act
22-11 (Article 6573c, Vernon's Texas Civil Statutes)>.
22-12 (c) Except as provided by Subsection (b), in <In> an action
22-13 to which this chapter applies, the provisions of this chapter
22-14 prevail over all other law to the extent of any conflict.
22-15 Sec. 41.003. STANDARDS FOR RECOVERY OF EXEMPLARY DAMAGES.
22-16 (a) Except as provided by Subsection (c), exemplary <Exemplary>
22-17 damages may be awarded only if the claimant proves that the
22-18 <personal injury, property damage, death, or other> harm with
22-19 respect to which the claimant seeks recovery of exemplary damages
22-20 results from:
22-21 (1) fraud; or
22-22 (2) malice<; or>
22-23 <(3) gross negligence>.
22-24 (b) The claimant must prove the elements of exemplary
22-25 damages as provided by this section beyond a reasonable doubt
22-26 <Subsection (a)(1), (a)(2), or (a)(3)>. This burden of proof may
22-27 not be shifted to the defendant or satisfied by evidence of
23-1 ordinary negligence, bad faith, or a deceptive trade practice.
23-2 (c) If the claimant relies on a statute establishing a cause
23-3 of action and authorizing exemplary damages in specified
23-4 circumstances or in conjunction with a specified culpable mental
23-5 state, exemplary damages may be awarded only if the claimant proves
23-6 beyond a reasonable doubt that the damages result from the
23-7 specified circumstances or culpable mental state.
23-8 Sec. 41.004. FACTORS PRECLUDING RECOVERY. (a) Except as
23-9 provided by Subsection (b), exemplary <Exemplary> damages may be
23-10 awarded only if damages other than nominal damages are awarded.
23-11 (b) A claimant may recover exemplary damages, even if only
23-12 nominal damages are awarded, if the claimant establishes, beyond a
23-13 reasonable doubt, that the harm with respect to which the claimant
23-14 seeks recovery of exemplary damages results from malice.
23-15 <Exemplary damages may not be awarded to a claimant who elects to
23-16 have his recovery multiplied under another statute.>
23-17 Sec. 41.005. MULTIPLE AWARDS AGAINST DEFENDANT. (a) Except
23-18 as provided by Subsection (d), a court may not award exemplary
23-19 damages to a claimant if:
23-20 (1) exemplary damages have been previously awarded
23-21 against the defendant by a court; and
23-22 (2) the harm with respect to which the claimant seeks
23-23 recovery of exemplary damages resulted from the same act or course
23-24 of conduct that formed the basis of the previous exemplary damage
23-25 award.
23-26 (b) On request of a defendant, the court shall conduct a
23-27 pretrial hearing at which the defendant may present evidence that
24-1 exemplary damages have been previously awarded against the
24-2 defendant for the same act or course of conduct that formed the
24-3 basis of the action.
24-4 (c) Except as provided by Subsection (d), if the defendant
24-5 at the pretrial hearing presents prima facie evidence of a previous
24-6 award of exemplary damages as described by Subsection (a), the
24-7 claimant may not present a claim for exemplary damages during the
24-8 trial of the action.
24-9 (d) Subsections (a) and (c) do not apply if the claimant
24-10 establishes at the pretrial hearing that:
24-11 (1) substantial evidence of malice, fraud, or other
24-12 circumstances or culpable mental state described by Section
24-13 41.003(c) relating to the act or course of conduct exists; and
24-14 (2) that evidence was not available at the time the
24-15 previous exemplary damage award was entered.
24-16 (e) If the claimant makes the showing required by Subsection
24-17 (d), the court shall reduce the amount of exemplary damages awarded
24-18 to the claimant, if any, by the amount of all previous exemplary
24-19 damage awards against the defendant based on the same act or course
24-20 of conduct.
24-21 (f) For purposes of this section, the manufacture of
24-22 multiple identical individual units of a product line is a single
24-23 act or course of conduct.
24-24 Sec. 41.006. HARM RESULTING FROM REGULATED ACTIVITY. (a)
24-25 Except as provided by Subsections (b) and (c), a court may not
24-26 award a claimant exemplary damages if the harm with respect to
24-27 which the claimant seeks recovery of exemplary damages results
25-1 from:
25-2 (1) conduct or a product that is subject to regulation
25-3 by an agency of this state or the United States; or
25-4 (2) a product whose design, formulation, testing,
25-5 packaging, labeling, or warning was approved or certified before
25-6 sale by an agency of this state or the United States.
25-7 (b) A court may award a claimant exemplary damages in the
25-8 circumstances described by Subsection (a)(1) if the claimant proves
25-9 that the defendant did not comply with applicable regulations
25-10 promulgated by the regulating agency.
25-11 (c) Subsection (a) does not apply if the claimant proves
25-12 that the defendant:
25-13 (1) knowingly and in violation of law withheld or
25-14 misrepresented material information required to be submitted to the
25-15 regulating agency; or
25-16 (2) made an illegal payment to an official of the
25-17 regulating agency to secure approval of the conduct or product in
25-18 question.
25-19 Sec. 41.007. HARM RESULTING FROM CRIMINAL ACT. In an action
25-20 arising from harm resulting from an assault, theft, or another
25-21 criminal act, a court may not award exemplary damages against an
25-22 owner or occupier of real property for failing to prevent another
25-23 person from committing the criminal act.
25-24 Sec. 41.008. AWARD SPECIFIC TO DEFENDANT. In any action in
25-25 which there are two or more defendants, an award of exemplary
25-26 damages must be specific as to a defendant, and each defendant is
25-27 liable only for the amount of the award made against that
26-1 defendant.
26-2 Sec. 41.009 <Sec. 41.006>. PREJUDGMENT INTEREST.
26-3 Prejudgment interest may not be assessed or recovered on an award
26-4 of exemplary damages.
26-5 Sec. 41.010 <Sec. 41.007>. LIMITATION ON AMOUNT OF RECOVERY.
26-6 (a) In an action in which a claimant seeks recovery of exemplary
26-7 damages, the trier of fact shall determine the amount of economic
26-8 damages separately from the amount of other compensatory damages.
26-9 (b) Except as provided by Subsection (c) <Section 41.008>,
26-10 exemplary damages awarded against a defendant may not exceed two
26-11 <four> times the amount of actual damages or $200,000, whichever is
26-12 greater.
26-13 (c) In an action in which the trier of fact finds that the
26-14 harm with respect to which the claimant seeks exemplary damages
26-15 results from malice, exemplary damages awarded against a defendant
26-16 may not exceed four times the amount of actual damages or $200,000,
26-17 whichever is greater.
26-18 (d) The provisions of Subsections (b) and (c) may not be
26-19 made known to a jury by any means, including voir dire,
26-20 introduction into evidence, argument, or instruction.
26-21 Sec. 41.011. BIFURCATED TRIAL. (a) On motion by a party,
26-22 the court shall provide for a bifurcated trial under this section.
26-23 (b) In the first phase of a bifurcated trial, the trier of
26-24 fact shall determine:
26-25 (1) liability for compensatory and exemplary damages;
26-26 and
26-27 (2) the amount of compensatory damages.
27-1 (c) If liability for exemplary damages is established during
27-2 the first phase of a bifurcated trial, the trier of fact shall, in
27-3 the second phase of the trial, determine the amount of exemplary
27-4 damages to be awarded, if any.
27-5 (d) Evidence that is relevant only to the amount of
27-6 exemplary damages that may be awarded is not admissible during the
27-7 first phase of a bifurcated trial.
27-8 Sec. 41.012. UNANIMOUS JURY. In a trial to a jury,
27-9 exemplary damages may not be awarded unless the jury unanimously
27-10 finds that the defendant is liable for exemplary damages in
27-11 accordance with Section 41.003.
27-12 Sec. 41.013. CONSIDERATIONS IN MAKING AWARD. (a) Before
27-13 making an award of exemplary damages, the trier of fact shall
27-14 consider the definition and purposes of exemplary damages as
27-15 provided by Section 41.001.
27-16 (b) The determination of whether to award exemplary damages
27-17 and the amount of exemplary damages to be awarded is within the
27-18 discretion of the trier of fact.
27-19 Sec. 41.014. EVIDENCE RELATING TO AMOUNT OF EXEMPLARY
27-20 DAMAGES. (a) In determining the amount of exemplary damages, the
27-21 trier of fact may only consider evidence relating to:
27-22 (1) the reprehensibility of the defendant's motives;
27-23 (2) the likelihood, at the time of the conduct, of
27-24 serious harm;
27-25 (3) the defendant's awareness of the likelihood of
27-26 serious harm;
27-27 (4) the duration of the conduct; and
28-1 (5) the harm suffered by the claimant.
28-2 (b) In determining the amount of exemplary damages, the
28-3 trier of fact may not consider evidence relating to the defendant's
28-4 wealth or ability to pay, including the defendant's net worth and
28-5 gross or net revenues.
28-6 Sec. 41.015. JURY INSTRUCTIONS. In a trial to a jury, the
28-7 court shall instruct the jury with regard to Sections 41.013 and
28-8 41.014(a).
28-9 Sec. 41.016. JUDICIAL REVIEW OF AWARD. An appellate court
28-10 that reviews the evidence with respect to a finding by a trier of
28-11 fact concerning liability for exemplary damages or with respect to
28-12 the amount of exemplary damages awarded shall state, in a written
28-13 opinion, the court's reasons for upholding or disturbing the
28-14 finding or award. The written opinion must address the evidence or
28-15 lack of evidence with specificity, as it relates to the liability
28-16 for or amount of exemplary damages, in light of the requirements of
28-17 this chapter.
28-18 <Sec. 41.008. EXCEPTION. Section 41.007 does not apply to
28-19 exemplary damages resulting from malice as defined by Section
28-20 41.001(6)(A) or to an intentional tort>.
28-21 <Sec. 41.009. PROVISIONS NOT TO BE MADE KNOWN TO JURY. The
28-22 provisions of Section 41.007 may not be made known to the jury
28-23 through any means, including voir dire, introduction into evidence,
28-24 or instruction.>
28-25 SECTION 3.02. This article applies only to a cause of
28-26 action that commences on or after the effective date of this Act.
28-27 An action that commenced before the effective date of this Act is
29-1 governed by the law applicable to the action as it existed
29-2 immediately before the effective date of this Act, and that law is
29-3 continued in effect for that purpose.
29-4 ARTICLE IV. REMEDIES FOR DECEPTIVE
29-5 TRADE PRACTICES
29-6 SECTION 4.01. Sections 17.42, 17.43, and 17.44, Business &
29-7 Commerce Code, are amended to read as follows:
29-8 Sec. 17.42. WAIVERS: PUBLIC POLICY. (a) Any waiver by a
29-9 consumer of the provisions of this subchapter is contrary to public
29-10 policy and is unenforceable and void; provided, however, that a
29-11 waiver is valid and enforceable if the waiver is in writing and <a
29-12 defendant in an action or claim under this subchapter pleads and
29-13 proves:>
29-14 <(1) the consumer is not in a significantly disparate
29-15 bargaining position;>
29-16 <(2)> the consumer is represented by legal counsel <in
29-17 seeking or acquiring goods or services, other than the purchase or
29-18 lease of a family residence occupied or to be occupied as the
29-19 consumer's residence, by a purchase or a lease for a consideration
29-20 paid or to be paid that exceeds $500,000; and>
29-21 <(3) the consumer waives all or part of this
29-22 subchapter, other than Section 17.555, by an express provision in a
29-23 written contract signed by both the consumer and the consumer's
29-24 legal counsel; and provided, however, that a business consumer with
29-25 assets of $5 million or more according to the most recent financial
29-26 statement of the business consumer prepared in accordance with
29-27 generally accepted accounting principles that has knowledge and
30-1 experience in financial and business matters that enable it to
30-2 evaluate the merits and risks of a transaction and that is not in a
30-3 significantly disparate bargaining position may by written contract
30-4 waive the provisions of this subchapter, other than Section
30-5 17.555>.
30-6 (b) A waiver under Subsection (a) is not effective if the
30-7 consumer's legal counsel was directly or indirectly identified,
30-8 suggested, or selected by a defendant or an agent of the defendant
30-9 <The existence or absence of a disparate bargaining position may
30-10 not be established as a matter of law solely by evidence of the
30-11 consumer's financial position relative to other parties to the
30-12 contract or by matters contained in a written contract relating to
30-13 the relative bargaining position of the parties>.
30-14 (c) A waiver under this section must be in bold-face type of
30-15 at least 10 points in size and must be in substantially the
30-16 following form:
30-17 "The undersigned waive their rights under the Deceptive
30-18 Trade Practices-Consumer Protection Act, Section 17.41,
30-19 et seq., Business & Commerce Code, a law that confers
30-20 special rights on consumers. After consultation with
30-21 an attorney of their own selection, the undersigned
30-22 voluntarily consent to this waiver."
30-23 (d) The waiver required by Subsection (c) may be modified to
30-24 waive only specified rights under this subchapter.
30-25 Sec. 17.43. CUMULATIVE REMEDIES. The provisions of this
30-26 subchapter are not exclusive. The remedies provided in this
30-27 subchapter are in addition to any other procedures or remedies
31-1 provided for in any other law; provided, however, that no recovery
31-2 shall be permitted under both this subchapter and another law of
31-3 both <actual> damages and penalties for the same act or practice.
31-4 A violation of a provision of law other than this subchapter is not
31-5 in and of itself a violation of this subchapter. An act or
31-6 practice that is a violation of a provision of law other than this
31-7 subchapter may be made the basis of an action under this subchapter
31-8 if the act or practice is proscribed by a provision of this
31-9 subchapter or is declared by such other law to be actionable under
31-10 this subchapter. The provisions of this subchapter do not in any
31-11 way preclude other political subdivisions of this state from
31-12 dealing with deceptive trade practices.
31-13 Sec. 17.44. CONSTRUCTION AND APPLICATION. (a) This
31-14 subchapter shall be liberally construed and applied to promote its
31-15 underlying purposes, which are to provide special remedies to
31-16 individual and small business <protect> consumers in transactions
31-17 not larger than $500,000 against false, misleading, and deceptive
31-18 business practices, unconscionable actions, and breaches of
31-19 warranty and to provide efficient and economical procedures to
31-20 secure such protection.
31-21 (b) This section may not be construed to derogate a
31-22 reasonable business or commercial practice or to penalize a person
31-23 who substantially complies with the requirements of this
31-24 subchapter.
31-25 SECTION 4.02. Section 17.45, Business & Commerce Code, is
31-26 amended by amending Subdivisions (4), (5), (9), and (10) and adding
31-27 Subdivisions (11), (12), and (13) to read as follows:
32-1 (4) "Consumer" means an individual<, partnership,
32-2 corporation, this state, or a subdivision or agency of this state>
32-3 who seeks or acquires by purchase or lease, any goods or services,
32-4 except that the term does not include a business consumer that has
32-5 assets of $25 million or more<, or that is owned or controlled by a
32-6 corporation or entity with assets of $25 million or more>.
32-7 (5) "Unconscionable action or course of action" means
32-8 an act or practice which, to a consumer's <person's> detriment,<:>
32-9 <(A)> takes advantage of the lack of knowledge,
32-10 ability, experience, or capacity of the consumer <a person> to a
32-11 grossly unfair degree<; or>
32-12 <(B) results in a gross disparity between the
32-13 value received and consideration paid, in a transaction involving
32-14 transfer of consideration>.
32-15 (9) "Knowingly" means actual awareness of the falsity,
32-16 deception, or unfairness of the act or practice giving rise to the
32-17 consumer's claim or, in an action brought under Subdivision (2) of
32-18 Subsection (a) of Section 17.50, actual awareness of the act, <or>
32-19 practice, condition, defect, or failure constituting the breach of
32-20 warranty, but actual awareness may be inferred where objective
32-21 manifestations indicate that a person acted with actual awareness.
32-22 (10) "Business consumer" means an individual<,
32-23 partnership, or corporation> who seeks or acquires by purchase or
32-24 lease, any goods or services for commercial or business use. <The
32-25 term does not include this state or a subdivision or agency of this
32-26 state.>
32-27 (11) "Intentionally" means actual awareness of the
33-1 falsity, deception, or unfairness of the act or practice giving
33-2 rise to the consumer's claim, coupled with the specific intent that
33-3 the consumer act in detrimental reliance on the falsity or
33-4 deception or in detrimental ignorance of the unfairness. Intention
33-5 may be inferred from objective manifestations that indicate that
33-6 the person acted intentionally or from facts showing that a
33-7 defendant acted with flagrant disregard of prudent and fair
33-8 business practices to the extent that the defendant should be
33-9 treated as having acted intentionally.
33-10 (12) "Professional service" means a service provided
33-11 by or under the direct supervision of a registered, certified, or
33-12 licensed person in the scope of the registration, certification, or
33-13 license as:
33-14 (A) an accountant;
33-15 (B) an architect;
33-16 (C) a lawyer;
33-17 (D) a pharmacist;
33-18 (E) a professional engineer; or
33-19 (F) a real estate broker.
33-20 (13) "Economic damages" means damages for pecuniary
33-21 loss resulting from loss of or damage to tangible property,
33-22 including costs of repair and replacement.
33-23 SECTION 4.03. Section 17.46(d), Business & Commerce Code, is
33-24 amended to read as follows:
33-25 (d) For the purposes of the relief authorized in Subdivision
33-26 (1) of Subsection (a) of Section 17.50 of this subchapter, the term
33-27 "false, misleading, or deceptive acts or practices" is limited to
34-1 the acts that are enumerated in specific subdivisions of Subsection
34-2 (b) of this section and that the trier of fact finds were committed
34-3 knowingly. This subsection does not apply to the authority of the
34-4 consumer protection division or any other person seeking injunctive
34-5 or other equitable relief.
34-6 SECTION 4.04. Section 17.49, Business & Commerce Code, is
34-7 amended by adding Subsections (c), (d), and (e) to read as follows:
34-8 (c) This subchapter does not apply to a cause of action
34-9 against an individual arising out of the provision of professional
34-10 services by the individual.
34-11 (d) This subchapter does not apply to a cause of action for
34-12 bodily injury or death or to any other cause of action in tort for
34-13 damages other than damage to tangible property.
34-14 (e) This subchapter does not apply to a cause of action
34-15 arising out of a transaction the total dollar value of which
34-16 exceeds $500,000.
34-17 SECTION 4.05. Sections 17.50(a) and (b), Business & Commerce
34-18 Code, are amended to read as follows:
34-19 (a) A consumer may maintain an action where any of the
34-20 following constitute a producing cause of economic <actual>
34-21 damages:
34-22 (1) the use or employment by any person of a false,
34-23 misleading, or deceptive act or practice that is specifically
34-24 enumerated in a subdivision of Subsection (b) of Section 17.46 of
34-25 this subchapter;
34-26 (2) breach of an express or implied warranty;
34-27 (3) any unconscionable action or course of action by
35-1 any person; or
35-2 (4) the use or employment by any person of an act or
35-3 practice in violation of Article 21.21, Texas Insurance Code, as
35-4 amended, or rules or regulations issued by the State Board of
35-5 Insurance under Article 21.21, Texas Insurance Code, as amended.
35-6 (b) In a suit filed under this section, each consumer who
35-7 prevails may obtain:
35-8 (1) the amount of economic <actual> damages found by
35-9 the trier of fact. In addition the court shall award exemplary
35-10 damages in an amount equal to two times that portion of the
35-11 economic <actual> damages that does not exceed $1,000. If the
35-12 trier of fact finds that the conduct of the defendant was committed
35-13 intentionally or knowingly in the case of a breach of an express or
35-14 implied warranty, the trier of fact may also award exemplary
35-15 damages in an amount equal to not more than three times the amount
35-16 of economic <actual> damages in excess of $1,000, subject to
35-17 Section 17.501 and the maximum limit on exemplary damages
35-18 established by Chapter 41, Civil Practice and Remedies Code
35-19 <provided that:>
35-20 <(A) the provisions of Chapters 33 and 41, Civil
35-21 Practice and Remedies Code, shall govern the determination of the
35-22 consumer's right under this subchapter to recover actual and other
35-23 damages, including exemplary damages, and the amount of those
35-24 damages that may be recovered by the consumer under this
35-25 subchapter, in an action seeking damages for (i) death; (ii)
35-26 personal injury other than mental anguish or distress associated
35-27 with a violation of this subchapter that does not involve death or
36-1 bodily injury; or (iii) damage to property other than the goods
36-2 acquired by the purchase or lease that is involved in the
36-3 consumer's action or claim if that damage arises out of an
36-4 occurrence that involves death or bodily injury; and>
36-5 <(B) only in an action under this subchapter
36-6 that is subject to Paragraph (A) of this subdivision, the
36-7 consumer's right to recover damages shall be subject to any defense
36-8 or defensive matter that could be considered by the trier of fact
36-9 in an action subject to Chapter 33, Civil Practice and Remedies
36-10 Code, in determining the percentage of responsibility attributable
36-11 to the consumer claimant under that chapter>;
36-12 (2) an order enjoining such acts or failure to act;
36-13 (3) orders necessary to restore to any party to the
36-14 suit any money or property, real or personal, which may have been
36-15 acquired in violation of this subchapter; and
36-16 (4) any other relief which the court deems proper,
36-17 including the appointment of a receiver or the revocation of a
36-18 license or certificate authorizing a person to engage in business
36-19 in this state if the judgment has not been satisfied within three
36-20 months of the date of the final judgment. The court may not revoke
36-21 or suspend a license to do business in this state or appoint a
36-22 receiver to take over the affairs of a person who has failed to
36-23 satisfy a judgment if the person is a licensee of or regulated by a
36-24 state agency which has statutory authority to revoke or suspend a
36-25 license or to appoint a receiver or trustee. Costs and fees of
36-26 such receivership or other relief shall be assessed against the
36-27 defendant.
37-1 SECTION 4.06. Subchapter E, Chapter 17, Business & Commerce
37-2 Code, is amended by adding Section 17.501 to read as follows:
37-3 Sec. 17.501. PROPORTIONATE RESPONSIBILITY IN CERTAIN
37-4 ACTIONS. (a) Damages awarded under Section 17.50(b)(1) shall be
37-5 reduced by the percentage of fault attributed to the consumer. If
37-6 the consumer's percentage of fault exceeds 50 percent, the consumer
37-7 may not recover under Section 17.50(b)(1).
37-8 (b) The liability of a defendant is not joint and several,
37-9 but each defendant is liable only for the percentage of the total
37-10 economic damages and nondiscretionary exemplary damages, before any
37-11 reduction under Subsection (a), that is equal to the percentage of
37-12 responsibility of that defendant.
37-13 (c) A defendant is not liable for the percentage of economic
37-14 damages and nondiscretionary exemplary damages equal to the
37-15 percentage of responsibility of another defendant who settled with
37-16 the consumer or of any person not joined in the cause of action.
37-17 (d) An award of discretionary exemplary damages under
37-18 Section 17.50(b)(1) is specific as to each defendant, and only the
37-19 defendant against whom the award is made is liable for the damages.
37-20 (e) In apportioning fault to a consumer under Subsection
37-21 (a), the trier of fact shall include wrongful or negligent conduct
37-22 of the consumer, including negligence, misuse, or failure to
37-23 observe product specifications, warnings, or disclosures, and
37-24 similar acts.
37-25 (f) Notwithstanding Subsection (e), a consumer may rely
37-26 entirely on a representation of a defendant, and the failure of the
37-27 consumer to investigate the representation is not evidence of
38-1 wrongful or negligent conduct in relation to that defendant.
38-2 (g) Chapter 33, Civil Practice and Remedies Code, does not
38-3 apply to an action under this subchapter.
38-4 SECTION 4.07. Section 17.505, Business & Commerce Code, is
38-5 amended to read as follows:
38-6 Sec. 17.505. NOTICE: OFFER OF SETTLEMENT. (a) As a
38-7 prerequisite to filing a suit seeking damages under Subdivision (1)
38-8 of Subsection (b) of Section 17.50 of this subchapter against any
38-9 person, a consumer shall give written notice to the person at least
38-10 60 days before filing the suit advising the person in reasonable
38-11 detail of the consumer's specific complaint and the amount of
38-12 economic <actual> damages and expenses, including attorneys' fees,
38-13 if any, reasonably incurred by the consumer in asserting the claim
38-14 against the defendant. During the 60-day period a written request
38-15 to inspect, in a reasonable manner and at a reasonable time and
38-16 place, the goods that are the subject of the consumer's action or
38-17 claim may be presented to the consumer. If the consumer
38-18 unreasonably refuses to permit the inspection, the court shall not
38-19 award the two times economic <actual> damages not exceeding $1,000,
38-20 as provided in Subsection (b) of Section 17.50 of this subchapter.
38-21 (b) If the giving of 60 days' written notice is rendered
38-22 impracticable by reason of the necessity of filing suit in order to
38-23 prevent the expiration of the statute of limitations or if the
38-24 consumer's claim is asserted by way of counterclaim, the notice
38-25 provided for in Subsection (a) of this section is not required, but
38-26 the tender provided for by Subsection (d) <(c)> of this section and
38-27 by Subsection (d), Section 17.506 of this subchapter may be made
39-1 within 60 days after the filing of the suit or counterclaim.
39-2 (c) If a consumer does not give the written notice required
39-3 by Subsection (a) and Subsection (b) does not apply, the consumer
39-4 may cure the failure by giving the written notice as required by
39-5 Subsection (a) to the person against whom the suit is pending. A
39-6 person receiving notice under this subsection may abate the suit
39-7 only if the person files a plea in abatement and an affidavit
39-8 stating the facts required to be established by this subsection in
39-9 a court in which the suit is pending. The plea in abatement and
39-10 affidavit must be filed not later than the 30th day after the date
39-11 the person receives the written notice. If the consumer does not
39-12 file a controverting affidavit or if, after hearing, the court
39-13 finds the person is entitled to the abatement, the court shall
39-14 abate the suit for 60 days.
39-15 (d) Any person who receives the written notice provided by
39-16 Subsection (a) or (c) of this section may, within 60 days after the
39-17 receipt of the notice, tender to the consumer a written offer of
39-18 settlement, including an agreement to reimburse the consumer for
39-19 the attorneys' fees, if any, reasonably incurred by the consumer in
39-20 asserting his claim up to the date of the written notice. A person
39-21 who does not receive such a written notice due to the consumer's
39-22 suit or counterclaim being filed as provided for by Subsection (b)
39-23 of this section may, within 60 days after the filing of such suit
39-24 or counterclaim, tender to the consumer a written offer of
39-25 settlement, including an agreement to reimburse the consumer for
39-26 the attorneys' fees, if any, reasonably incurred by the consumer in
39-27 asserting his claim up to the date the suit or counterclaim was
40-1 filed. Any offer of settlement not accepted within 30 days of
40-2 receipt by the consumer shall be deemed to have been rejected by
40-3 the consumer.
40-4 (e) <(d)> A settlement offer made in compliance with
40-5 Subsection (d) <(c)> of this section, if rejected by the consumer,
40-6 may be filed with the court together with an affidavit certifying
40-7 its rejection. If the amount tendered in the settlement offer is
40-8 the same as or more than, or if the court finds that amount to be
40-9 substantially the same as, the economic <actual> damages found by
40-10 the trier of fact, the consumer may not recover an amount in excess
40-11 of the amount tendered in the settlement offer or the amount of
40-12 economic <actual> damages found by the trier of fact, whichever is
40-13 less. Such settlement offer shall not be admissible as evidence
40-14 before a jury.
40-15 (f) <(e)> The tender of an offer of settlement is not an
40-16 admission of engaging in an unlawful act or practice or of
40-17 liability under this Act. Evidence of a settlement offer may be
40-18 introduced only to determine the reasonableness of the settlement
40-19 offer as provided for by Subsection (e) <(d)> of this section.
40-20 SECTION 4.08. Section 17.506(d), Business & Commerce Code,
40-21 is amended to read as follows:
40-22 (d) In an action brought under Section 17.50 of this
40-23 subchapter, it is a defense to a cause of action if the defendant
40-24 proves that he received notice from the consumer advising the
40-25 defendant of the nature of the consumer's specific complaint and of
40-26 the amount of economic <actual> damages and expenses, including
40-27 attorneys' fees, if any, reasonably incurred by the consumer in
41-1 asserting the claim against the defendant, and that within 30 days
41-2 after the day on which the defendant received the notice the
41-3 defendant tendered to the consumer:
41-4 (1) the amount of economic <actual> damages claimed;
41-5 and
41-6 (2) the expenses, including attorneys' fees, if any,
41-7 reasonably incurred by the consumer in asserting the claim against
41-8 the defendant.
41-9 SECTION 4.09. Section 17.56, Business & Commerce Code, is
41-10 amended to read as follows:
41-11 Sec. 17.56. VENUE. An action brought which alleges a claim
41-12 to relief under Section 17.50 of this subchapter may be commenced
41-13 in the county in which the person against whom the suit is brought
41-14 resides or<,> has his principal place of business, <or has a fixed
41-15 and established place of business at the time the suit is brought>
41-16 or in the county in which the alleged act or practice occurred or
41-17 in a county in which the defendant or an authorized agent of the
41-18 defendant solicited the transaction made the subject of the action
41-19 at bar.
41-20 ARTICLE V. HEALTH CARE LIABILITY CLAIMS
41-21 SECTION 5.01. The Medical Liability and Insurance
41-22 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
41-23 Statutes) is amended by adding Subchapter H to read as follows:
41-24 SUBCHAPTER H. BAD FAITH CLAIM
41-25 Sec. 8.01. RECOVERY FOR BAD FAITH CLAIM AUTHORIZED. (a) A
41-26 party who brings a claim in bad faith and that party's attorney are
41-27 liable to an opposing party for damages that result from the claim.
42-1 (b) A cause of action under this section may be litigated
42-2 separately from the health care liability claim.
42-3 (c) This section applies only to a claim made in bad faith
42-4 by a party to a health care liability claim, including the health
42-5 care liability claim, a counterclaim, or a cross-claim.
42-6 Sec. 8.02. BAD FAITH CLAIM. A claim is made in bad faith
42-7 for purposes of this subchapter if the party or the party's
42-8 attorney files or continues to maintain the claim:
42-9 (1) with knowledge that reasonable grounds do not
42-10 exist for asserting the claim; or
42-11 (2) with reckless disregard as to whether reasonable
42-12 grounds exist for asserting the claim.
42-13 Sec. 8.03. NOTICE. (a) A person who intends to file a
42-14 cause of action under this subchapter must provide written notice
42-15 of that intent to the person or the attorney for the person against
42-16 whom the action will be filed.
42-17 (b) A person may not file a cause of action under this
42-18 subchapter before the 60th day after the date the notice required
42-19 by this section is given.
42-20 (c) The notice must be given by certified mail, return
42-21 receipt requested.
42-22 SECTION 5.02. Section 11.02(a), Medical Liability and
42-23 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
42-24 Civil Statutes), is amended to read as follows:
42-25 (a) In an action on a health care liability claim where
42-26 final judgment is awarded to the claimant, the combined total
42-27 amount of recovery for civil liability for the claimant, including
43-1 any amount awarded under Subchapter P of this Act, may not
43-2 <rendered against a physician or health care provider, the limit of
43-3 civil liability for damages of the physician or health care
43-4 provider shall be limited to an amount not to> exceed $500,000.
43-5 SECTION 5.03. Section 12.01(a), Medical Liability and
43-6 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
43-7 Civil Statutes), is amended to read as follows:
43-8 (a) Notwithstanding any other law, no provisions of
43-9 Subchapter E, Chapter 17 <Sections 17.41-17.63>, Business &
43-10 Commerce Code, shall apply to physicians or health care providers
43-11 as defined in Section 1.03(3) of this Act, with respect to claims
43-12 for damages for personal injury or death resulting, or alleged to
43-13 have resulted, from negligence, from breach of warranty, including
43-14 an implied warranty for good and workmanlike service, from breach
43-15 of an implied contract, or from misrepresentation on the part of
43-16 any physician or health care provider.
43-17 SECTION 5.04. Sections 13.01(a), (b), (c), and (e), Medical
43-18 Liability and Insurance Improvement Act of Texas (Article 4590i,
43-19 Vernon's Texas Civil Statutes), are amended to read as follows:
43-20 (a) In a health care liability claim, the plaintiff's
43-21 attorney or, if the plaintiff is not represented by an attorney,
43-22 the plaintiff shall, on <within 90 days after> the date the action
43-23 is <was> commenced, file an affidavit attesting that the attorney
43-24 or plaintiff has obtained a written opinion from an expert who has
43-25 knowledge of accepted standards of care for the diagnosis, care, or
43-26 treatment of the illness, injury, or condition involved in the
43-27 claim, that the acts or omissions of the physician or health care
44-1 provider were negligent and a proximate cause of the injury, harm,
44-2 or damages claimed.
44-3 (b) A plaintiff or plaintiff's attorney shall be deemed to
44-4 be in compliance with Subsection (a) of this section if, on <within
44-5 90 days after> the date the action is <was> commenced, the
44-6 plaintiff posts a bond with surety or any other equivalent security
44-7 approved by the court, including cash in an escrow account, for
44-8 costs in an amount of $2,000.
44-9 (c) If on <the expiration of the 90th day after> the date
44-10 the action is <was> commenced or the expiration of the extension
44-11 period described in Subsection (d) of this section<, whichever is
44-12 later,> the plaintiff has failed to post security as described in
44-13 Subsection (b) of this section or alternatively has failed to file
44-14 an affidavit as described in Subsection (a) of this section, then
44-15 the court on the motion of any party or on the court's own motion
44-16 shall increase the amount of security required by Subsection (b) of
44-17 this section to an amount not to exceed $4,000. If the plaintiff
44-18 fails to post the increased security within 30 days after being
44-19 served with a copy of the court's order or fails to provide an
44-20 affidavit as provided by Subsection (a) of this section, the court
44-21 shall on motion unless good cause is shown for such failure dismiss
44-22 the action with <without> prejudice to its refiling and assess
44-23 costs of court against plaintiff.
44-24 (e) Discovery concerning the affidavit, including the
44-25 written opinion and the identity of the physician or health care
44-26 provider who supplied the opinion, shall <not> be allowed <unless
44-27 the physician or health care provider who supplied the opinion is
45-1 designated as an expert witness by the plaintiff>.
45-2 SECTION 5.05. Section 14.01(a), Medical Liability and
45-3 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
45-4 Civil Statutes), is amended to read as follows:
45-5 (a) In a suit involving a health care liability claim
45-6 against a physician for injury to or death of a patient, a person
45-7 may qualify as an expert witness on the issue of whether the
45-8 physician departed from accepted standards of medical care only if
45-9 the person is a physician who:
45-10 (1) <the person> is practicing at the time such
45-11 testimony is given or was practicing at the time the claim arose;
45-12 (2) held a license to practice in this state at the
45-13 time the claim arose;
45-14 (3) <and> has knowledge of accepted standards of
45-15 medical care for the diagnosis, care, or treatment of the illness,
45-16 injury, or condition involved in the claim; <or>
45-17 (4) is board certified or has the equivalent training
45-18 and experience in the medical specialty relevant to the claim; and
45-19 (5) is familiar with clinical practice in the medical
45-20 specialty relevant to the claim and held hospital staff privileges
45-21 at the time the claim arose that allowed the performance of the
45-22 procedure or treatment at issue in the claim
45-23 <(2) the court, after a hearing conducted outside the
45-24 presence of the jury, determines that the person is otherwise
45-25 qualified to give expert testimony on said issue>.
45-26 SECTION 5.06. The Medical Liability and Insurance
45-27 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
46-1 Statutes) is amended by adding Subchapters P and Q to read as
46-2 follows:
46-3 SUBCHAPTER P. LIMITS ON NONECONOMIC DAMAGES
46-4 Sec. 16.01. LIMITS ON NONECONOMIC DAMAGES. (a) In an
46-5 action on a health care liability claim, the amount of noneconomic
46-6 damages awarded against a physician or health care provider may not
46-7 exceed $250,000.
46-8 (b) For purposes of this section, "noneconomic damages"
46-9 means damages for any past or future nonpecuniary loss, including
46-10 damages for physical pain and suffering, mental anguish and
46-11 suffering, loss of consortium, and disfigurement.
46-12 SUBCHAPTER Q. COLLATERAL SOURCE OF INCOME
46-13 Sec. 17.01. DEFINITION. In this subchapter, "collateral
46-14 source of income" means amounts that are payable:
46-15 (1) to or for the benefit of a patient bringing a
46-16 health care liability claim; and
46-17 (2) as a result of the personal injury or death for
46-18 which the claim was brought.
46-19 Sec. 17.02. REDUCTION OF AWARD. (a) A court shall reduce
46-20 any award of damages to a patient for a health care liability claim
46-21 by the amount of the patient's collateral sources of income.
46-22 (b) In determining the amount of reduction of an award of
46-23 damages to the patient, the court shall receive evidence concerning
46-24 the amount of the patient's collateral sources of income. If the
46-25 claim is tried by a jury, the court shall receive the evidence
46-26 outside the presence of the jury.
46-27 Sec. 17.03. WORKERS' COMPENSATION. This subchapter does not
47-1 apply to workers' compensation benefits received by a patient.
47-2 SECTION 5.07. Section 6, Article 1.05, Title 79, Revised
47-3 Statutes (Article 5069-1.05, Vernon's Texas Civil Statutes), is
47-4 amended by amending Subsection (a) and adding Subsection (h) to
47-5 read as follows:
47-6 (a) Except as provided by Subsection (h) of this section,
47-7 judgments <Judgments> in wrongful death, personal injury, and
47-8 property damage cases must include prejudgment interest. Except as
47-9 provided by Subsections (b), (c), and (d) of this section,
47-10 prejudgment interest accrues on the amount of the judgment during
47-11 the period beginning on the 180th day after the date the defendant
47-12 receives written notice of a claim or on the day the suit is filed,
47-13 whichever occurs first, and ending on the day preceding the date
47-14 judgment is rendered.
47-15 (h) In an action on a health care liability claim, a court
47-16 may not award prejudgment interest for any part of a judgment
47-17 attributable to damages awarded to compensate the claimant for loss
47-18 the claimant will incur after the date of the judgment, including
47-19 loss for future medical and other expenses, future loss of earning
47-20 capacity or wages, future pain and suffering, future mental anguish
47-21 and suffering, future loss of consortium, and future loss
47-22 associated with disfigurement. In this subsection, "health care
47-23 liability claim" has the meaning assigned by Section 1.03, Medical
47-24 Liability and Insurance Improvement Act of Texas (Article 4590i,
47-25 Vernon's Texas Civil Statutes).
47-26 SECTION 5.08. Section 11.03, Medical Liability and Insurance
47-27 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
48-1 Statutes), is repealed.
48-2 SECTION 5.09. Subchapter H, Medical Liability and Insurance
48-3 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
48-4 Statutes), as added by this article, applies only to a bad faith
48-5 claim filed on or after the effective date of this Act. A bad
48-6 faith claim filed before the effective date of this Act is governed
48-7 by the law applicable to the claim as it existed immediately before
48-8 the effective date of this Act, and that law is continued in effect
48-9 for that purpose.
48-10 SECTION 5.10. (a) Sections 11.02(a) and 12.01(a), Medical
48-11 Liability and Insurance Improvement Act of Texas (Article 4590i,
48-12 Vernon's Texas Civil Statutes), as amended by this article, apply
48-13 to all actions:
48-14 (1) commenced on or after the effective date of this
48-15 Act; or
48-16 (2) pending on that effective date and in which the
48-17 trial, or any new trial or retrial following motion, appeal, or
48-18 otherwise, begins on or after that effective date.
48-19 (b) In an action commenced before the effective date of this
48-20 Act, a trial, new trial, or retrial that is in progress on that
48-21 effective date is governed with respect to the subject matter of
48-22 this article by the applicable law in effect immediately before
48-23 that effective date, and that law is continued in effect for that
48-24 purpose.
48-25 SECTION 5.11. Section 13.01, Medical Liability and Insurance
48-26 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
48-27 Statutes), as amended by this article, applies only to a health
49-1 care liability claim filed on or after the effective date of this
49-2 Act. A health care liability claim filed before the effective date
49-3 of this Act is governed by the law applicable to the claim as it
49-4 existed immediately before the effective date of this Act, and that
49-5 law is continued in effect for that purpose.
49-6 SECTION 5.12. Section 14.01(a), Medical Liability and
49-7 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
49-8 Civil Statutes), as amended by this article, applies only to the
49-9 qualification of an expert witness on or after the effective date
49-10 of this Act. The qualification of an expert witness before the
49-11 effective date of this Act is governed by the law applicable to the
49-12 qualification of the witness as it existed immediately before the
49-13 effective date of this Act, and that law is continued in effect for
49-14 that purpose.
49-15 ARTICLE VI. EFFECTIVE DATE; TRANSITION; EMERGENCY
49-16 SECTION 6.01. This Act takes effect September 1, 1995.
49-17 SECTION 6.02. Except as otherwise provided by this Act:
49-18 (1) this Act applies only to a cause of action that
49-19 accrues on or after the effective date of this Act; and
49-20 (2) an action that accrued before the effective date
49-21 of this Act is governed by the law applicable to the action as it
49-22 existed immediately before the effective date of this Act, and that
49-23 law is continued in effect for that purpose.
49-24 SECTION 6.03. The importance of this legislation and the
49-25 crowded condition of the calendars in both houses create an
49-26 emergency and an imperative public necessity that the
49-27 constitutional rule requiring bills to be read on three several
50-1 days in each house be suspended, and this rule is hereby suspended.