1-1  By:  Lucio, et al.                                      S.B. No. 31
    1-2        (In the Senate - Filed January 11, 1995; January 16, 1995,
    1-3  read first time and referred to Committee on Economic Development;
    1-4  January 31, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 11, Nays 0;
    1-6  January 31, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 31                     By:  Lucio
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the assessment of attorney's fees, costs, and damages
   1-11  for certain frivolous lawsuits and defenses.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Subtitle A, Title 2, Civil Practice and Remedies
   1-14  Code, is amended by adding Chapter 10 to read as follows:
   1-15         CHAPTER 10.  CERTAIN FRIVOLOUS LAWSUITS AND DEFENSES
   1-16        Sec. 10.001.  DEFINITION.  In this chapter, "litigant" means:
   1-17              (1)  a party that brings or defends an action or part
   1-18  of an action; or
   1-19              (2)  an attorney representing that party.
   1-20        Sec. 10.002.  APPLICABILITY.  This chapter applies to any
   1-21  civil action unless other applicable law provides for an assessment
   1-22  of attorney's fees, costs, or damages in an amount greater than
   1-23  that which would be assessed pursuant to the provisions of this
   1-24  chapter.
   1-25        Sec. 10.003.  ASSESSMENT OF ATTORNEY'S FEES, COSTS, AND
   1-26  DAMAGES FOR FRIVOLOUS SUIT OR DEFENSE.  (a)  Except as provided by
   1-27  Section 10.008, on the motion of any party or its own motion, a
   1-28  court shall assess reasonable attorney's fees and costs against a
   1-29  litigant who brings or defends an action or a part of an action in
   1-30  a manner that the court finds:
   1-31              (1)  is frivolous, groundless in fact or in law, or
   1-32  vexatious;
   1-33              (2)  is for delay or harassment; or
   1-34              (3)  unnecessarily expands the action because of
   1-35  improper conduct by the litigant, including abuse of discovery
   1-36  procedures.
   1-37        (b)  If the court makes the finding required by Subsection
   1-38  (a), the court may also award additional damages for inconvenience,
   1-39  harassment, and any out-of-pocket expense incurred.
   1-40        (c)  A party may make a motion under this section at any time
   1-41  while proceedings are pending before the trial court.
   1-42        (d)  Attorney's fees, costs, or damages under this chapter
   1-43  may not be awarded for the filing of a general denial under Rule
   1-44  92, Texas Rules of Civil Procedure.
   1-45        (e)  Attorney's fees, costs, or damages under this chapter
   1-46  may not be awarded if the court determines that a litigant has
   1-47  asserted a claim or defense in good faith to establish a new theory
   1-48  of law.
   1-49        Sec. 10.004.  FACTORS IN ASSESSING ATTORNEY'S FEES, COSTS,
   1-50  AND DAMAGES.  In determining whether to assess attorney's fees,
   1-51  costs, or damages under Section 10.003 against a litigant who
   1-52  brings or defends an action and the amount to be assessed, the
   1-53  court shall consider:
   1-54              (1)  any effort by the litigant to determine the
   1-55  validity of the action before bringing it;
   1-56              (2)  any effort by the litigant after the commencement
   1-57  of the action to reduce the number of claims or defenses asserted
   1-58  or to dismiss claims or defenses found invalid;
   1-59              (3)  the availability to the litigant of facts to
   1-60  determine the validity of the action or defense;
   1-61              (4)  whether the litigant brought or defended the
   1-62  action in bad faith;
   1-63              (5)  whether facts relating to the validity of the
   1-64  action or defense were reasonably in conflict;
   1-65              (6)  the extent to which the litigant prevailed
   1-66  compared with the number of claims in controversy and the amount of
   1-67  the judgment;
   1-68              (7)  whether the litigant asserted a claim or defense
    2-1  in a good faith attempt to establish a new theory of law;
    2-2              (8)  the amount or conditions of any offer of judgment
    2-3  or settlement compared to the amount or conditions of any judgment;
    2-4              (9)  whether the litigant made a reasonable effort to
    2-5  determine whether a party sued or joined to the action owed the
    2-6  litigant a legally defined duty; and
    2-7              (10)  any effort by the litigant to reduce the number
    2-8  of parties in the action.
    2-9        Sec. 10.005.  NOTICE AND HEARING REQUIREMENTS.  (a)  A court
   2-10  may not assess attorney's fees, costs, or damages unless the court
   2-11  gives the litigant against whom the award of attorney's fees,
   2-12  costs, or damages would be made:
   2-13              (1)  notice;
   2-14              (2)  a reasonable opportunity to respond; and
   2-15              (3)  a hearing.
   2-16        (b)  Notice under this chapter must be given in accordance
   2-17  with the Texas Rules of Civil Procedure.
   2-18        Sec. 10.006.  STATEMENT OF REASONS FOR AWARD.  A court that
   2-19  assesses attorney's fees, costs, or damages under this chapter
   2-20  shall state the reasons for the assessment in writing.
   2-21        Sec. 10.007.  METHOD OF ASSESSMENT.  (a)  Attorney's fees,
   2-22  costs, or damages assessed under this chapter are in addition to
   2-23  any other fees, costs, or damages assessed by the court.
   2-24        (b)  A court may assess attorney's fees, costs, or damages
   2-25  under this chapter directly against a litigant or the court may
   2-26  include the fees, costs, or damages as a part of its judgment.
   2-27        (c)  A court may allocate attorney's fees, costs, or damages
   2-28  assessed under this chapter among more than one litigant.
   2-29        Sec. 10.008.  EXCEPTION FOR PARTY APPEARING WITHOUT ATTORNEY.
   2-30  (a)  A court may not assess attorney's fees, costs, or damages
   2-31  under this chapter against a party who is not represented by an
   2-32  attorney unless the court finds that the party clearly knew or
   2-33  reasonably should have known that action or part of an action
   2-34  brought or defended by the party was frivolous, groundless in fact
   2-35  or in law, or vexatious.
   2-36        (b)  This section does not apply to a party who is an
   2-37  attorney.
   2-38        Sec. 10.009.  APPROVAL OF CERTAIN STIPULATIONS.  (a)  A court
   2-39  may approve a written stipulation filed with the court or an oral
   2-40  stipulation in open court agreeing to:
   2-41              (1)  no award of attorney's fees, costs, or damages as
   2-42  provided by this chapter; or
   2-43              (2)  an award of attorney's fees, costs, or damages in
   2-44  a manner different from that provided by this chapter.
   2-45        (b)  Once filed, the stipulation may not be withdrawn and
   2-46  remains effective throughout the pendency of the litigation, unless
   2-47  the court determines that the stipulation:
   2-48              (1)  was obtained by fraud; or
   2-49              (2)  is void on another ground that would void a
   2-50  contract, other than the requirement for consideration necessary
   2-51  for the formation of a contract.
   2-52        Sec. 10.010.  MANDATORY APPELLATE REVIEW.  On timely filing
   2-53  of an appeal or other submission to a court with appellate
   2-54  jurisdiction, including a court of appeals or the supreme court, as
   2-55  appropriate, the court with appellate jurisdiction shall review:
   2-56              (1)  the determination of a court to award or deny
   2-57  attorney's fees, costs, or damages under this chapter; or
   2-58              (2)  the determination of an appellate court to uphold
   2-59  or reverse an award or denial of attorney's fees, costs, or damages
   2-60  under this chapter.
   2-61        SECTION 2.  This Act takes effect September 1, 1995, and
   2-62  applies only to an action commenced on or after that date.  An
   2-63  action commenced before the effective date of this Act is governed
   2-64  by the law in effect at the time the action was commenced, and that
   2-65  law is continued in effect for that purpose.
   2-66        SECTION 3.  The importance of this legislation and the
   2-67  crowded condition of the calendars in both houses create an
   2-68  emergency and an imperative public necessity that the
   2-69  constitutional rule requiring bills to be read on three several
   2-70  days in each house be suspended, and this rule is hereby suspended.
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