By Lucio S.B. No. 31
74R2593 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the assessment of attorney's fees and costs for certain
1-3 frivolous lawsuits and defenses.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 2, Civil Practice and Remedies
1-6 Code, is amended by adding Chapter 10 to read as follows:
1-7 CHAPTER 10. CERTAIN FRIVOLOUS LAWSUITS AND DEFENSES
1-8 Sec. 10.001. DEFINITION. In this chapter, "litigant" means:
1-9 (1) a party that brings or defends an action or part
1-10 of an action; or
1-11 (2) an attorney representing that party.
1-12 Sec. 10.002. APPLICABILITY. This chapter applies to any
1-13 civil action unless other applicable law provides for an assessment
1-14 of attorney's fees and costs in a manner that a greater amount
1-15 would be assessed than that provided by this chapter.
1-16 Sec. 10.003. ASSESSMENT OF ATTORNEY'S FEES AND COSTS FOR
1-17 FRIVOLOUS SUIT OR DEFENSE. (a) Except as provided by Sections
1-18 10.007 and 10.008, on the motion of any party or its own motion, a
1-19 court shall assess reasonable attorney's fees and costs against a
1-20 litigant who brings or defends an action or a part of an action in
1-21 a manner that the court finds:
1-22 (1) frivolous, groundless in fact or in law, or
1-23 vexatious;
1-24 (2) is for delay or harassment; or
2-1 (3) unnecessarily expands the action because of
2-2 improper conduct by the litigant, including abuse of discovery
2-3 procedures.
2-4 (b) A party may make a motion under this section at any time
2-5 while proceedings are pending before the trial court.
2-6 Sec. 10.004. FACTORS IN ASSESSING ATTORNEY'S FEES AND COSTS.
2-7 In determining whether to assess attorney's fees and costs against
2-8 a litigant who brings or defends an action and the amount to be
2-9 assessed, the court shall consider:
2-10 (1) any effort by the litigant to determine the
2-11 validity of the action before bringing it;
2-12 (2) any effort by the litigant after the commencement
2-13 of the action to reduce the number of claims or defenses asserted
2-14 or to dismiss claims or defenses found invalid;
2-15 (3) the availability to the litigant of facts to
2-16 determine the validity of the action or defense;
2-17 (4) the relative financial position of the parties;
2-18 (5) whether the litigant brought or defended the
2-19 action in bad faith;
2-20 (6) whether facts relating to the validity of the
2-21 action or defense were reasonably in conflict;
2-22 (7) the extent to which the litigant prevailed
2-23 compared with the number of claims in controversy and the amount of
2-24 the judgment;
2-25 (8) whether the litigant asserted a claim or defense
2-26 in a good faith attempt to establish a new theory of law;
2-27 (9) the amount or conditions of any offer of judgment
3-1 or settlement compared to the amount or conditions of any judgment;
3-2 (10) whether the litigant made a reasonable effort to
3-3 determine whether a party sued or joined to the action owed the
3-4 litigant a legally defined duty; and
3-5 (11) any effort by the litigant to reduce the number
3-6 of parties in the action.
3-7 Sec. 10.005. STATEMENT OF REASONS FOR AWARD. A court that
3-8 assesses attorney's fees and costs under this chapter shall state
3-9 the reasons for the assessment in writing.
3-10 Sec. 10.006. METHOD OF ASSESSMENT. (a) Attorney's fees and
3-11 costs assessed under this chapter are in addition to any other fees
3-12 or costs assessed by the court.
3-13 (b) A court may assess attorney's fees and costs under this
3-14 chapter directly against a litigant or the court may include the
3-15 fees and costs as a part of its judgment.
3-16 (c) A court may allocate attorney's fees and costs assessed
3-17 under this chapter among more than one litigant.
3-18 Sec. 10.007. EXCEPTION FOR DISMISSAL OR NONSUIT. A court
3-19 may not assess attorney's fees or costs under this chapter against
3-20 a litigant for bringing an action if the litigant dismisses the
3-21 action, or takes a nonsuit, within a reasonable time after the
3-22 litigant knew or reasonably should have known that it would not
3-23 prevail on the action.
3-24 Sec. 10.008. EXCEPTION FOR PARTY APPEARING WITHOUT ATTORNEY.
3-25 (a) A court may not assess attorney's fees or costs under this
3-26 chapter against a party who is not represented by an attorney
3-27 unless the court finds that the party clearly knew or reasonably
4-1 should have known that action or part of an action brought or
4-2 defended by the party was frivolous, groundless in fact or in law,
4-3 or vexatious.
4-4 (b) This section does not apply to a party who is an
4-5 attorney.
4-6 Sec. 10.009. APPROVAL OF CERTAIN STIPULATIONS. A court may
4-7 approve a written stipulation filed with the court or an oral
4-8 stipulation in open court agreeing to:
4-9 (1) no award of attorney's fees or costs as provided
4-10 by this chapter; or
4-11 (2) an award of attorney's fees or costs in a manner
4-12 different from that provided by this chapter.
4-13 Sec. 10.010. MANDATORY APPELLATE REVIEW. On timely filing
4-14 of an appeal or other submission to a court with appellate
4-15 jurisdiction, including a court of appeals or the supreme court, as
4-16 appropriate, the court with appellate jurisdiction shall review:
4-17 (1) the determination of a court to award or deny
4-18 attorney's fees and costs under this chapter; or
4-19 (2) the determination of an appellate court to uphold
4-20 or reverse an award or denial of attorney's fees and costs under
4-21 this chapter.
4-22 Sec. 10.011. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
4-23 (a) To the extent that this chapter conflicts with the Texas Rules
4-24 of Civil Procedure, this chapter controls.
4-25 (b) Notwithstanding Section 22.004, Government Code, the
4-26 supreme court may not amend or adopt rules in conflict with this
4-27 chapter.
5-1 (c) The district courts and statutory county courts in a
5-2 county may not adopt local rules in conflict with this chapter.
5-3 SECTION 2. This Act takes effect September 1, 1995, and
5-4 applies only to an action commenced on or after that date. An
5-5 action commenced before the effective date of this Act is governed
5-6 by the law in effect at the time the action was commenced, and that
5-7 law is continued in effect for that purpose.
5-8 SECTION 3. The importance of this legislation and the
5-9 crowded condition of the calendars in both houses create an
5-10 emergency and an imperative public necessity that the
5-11 constitutional rule requiring bills to be read on three several
5-12 days in each house be suspended, and this rule is hereby suspended.