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.