ZEM C.S.H.B. 95 75(R)BILL ANALYSIS CIVIL PRACTICES C.S.H.B. 95 By: Nixon, Joe 4-4-97 Committee Report (Substituted) BACKGROUND A motion for summary judgment is a pre-trial motion made by a party asserting that they should prevail on a claim or issue as a matter of law. The summary judgment is a device designed to effect a prompt disposition of controversies on their merits without resorting to a lengthy trial if there is no question of fact. The standard for summary judgment applied in Texas requires the defendant to disprove one or more of the essential elements of the plaintiff's cause of action in order to prevail upon the motion. Even in a situation where a plaintiff does not have evidence to support one or more of his claims, a defendant must still produce evidence negating those claims. However, when the defendant moves for a judgment at trial based on the same evidence produced in the summary judgment motion, the plaintiff's failure to prove an essential element of his claim would be enough to grant the judgment in favor of the defendant. Under Texas rules, the evidentiary standard required at trial is immaterial to the burden of proof for summary judgment. PURPOSE In the federal system, summary judgments are applied in a different manner, and are based on the standard of proof which is needed at trial. For example, if the standard is "by a preponderance of evidence", the judge may decide based upon the greater weight of credible evidence. This federal standard is used in 27 states. It is the purpose of HB 95 to codify in Texas the standards set forth for the federal court system. The goal of this legislation is to guarantee that litigants receive a speedy trial, while still preserving their right to a fair trial where there is a legitimate dispute. Nuisance suits will be resolved by summary judgment before expensive discovery and trial preparation. Instead of paying as a nuisance value the cost of defending the suit, defendants will be able to resolve the issue of liability for a fraction of the cost of defense. Possible effects may be to: (1) eliminate nuisance suits at an early stage of litigation, (2) lessen the number of cases on court dockets, (3) allow viable claims to receive more of the court's attention, (4) shorten the time for all cases to actually get to trial, and (5) reduce the caseload of the appellate courts. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subtitle C, Title 2 of the Civil Practice and Remedies Code, by adding CHAPTER 40 as follows: Chapter 40. SUMMARY JUDGMENT Sec. 40.001. Defines "claimant" and "defendant". Sec. 40.002. Sets out the elements a claimant must prove for the court, at its discretion, to grant a motion for summary judgment. Defines the burden of proof as that which would apply at trial. Provides that the court shall not grant summary judgment for the claimant if the defendant establishes a genuine issue of material fact with respect to an affirmative defense. Sec. 40.003. Sets out the elements a defendant must prove for the court, at its discretion, to grant a motion for summary judgment. Defines the burden of proof as that which would apply at trial. Specifies that the defendant does not bear the burden for establishing the absence of an issue of material fact on a claim for which the claimant bears the burden of proof at trial. Provides that if a motion by a defendant is based on absence of proof on a claim or issue with respect to which the claimant has the burden of proof, the claimant must respond with evidence sufficient to entitle the claimant to submission of the claim or issue to the jury. Sec. 40.004. Provides that this chapter controls over any conflict with Rule 166a of the Rules of Civil Procedure and that it may not be modified or repealed by a rule adopted by the Supreme Court. SECTION 2. Effective date: September 1, 1997. Applies prospectively; savings clause. SECTION 3. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The committee substitute makes the granting of a summary judgment motion permissive rather than mandatory.