PMWJ C.S.H.B. 2917 75(R)C O R R E C T E D
BILL ANALYSIS


JUDICIAL AFFAIRS
H.B. 2917
By: Berlanga
C.S.H.B. 2917
By: Thompson
4-9-97
Committee Report (Substituted)




BACKGROUND

 The need of low-income Texas families for legal representation to handle
their critical civil legal problems (e.g., protection against domestic
violence, unlawful evictions, and wrongful denial of Medicare and Social
Security benefits) far exceeds presently available resources.  A 1991
State Bar of Texas study found that poor Texans go without legal help to
assist them in almost 70% of the legal problems they face.  If
unaddressed, a poor family's legal problems often become a community's
problem:  families who are unlawfully evicted become homeless; Texans
unable to obtain protective orders and legal counseling remain in violent
homes; Texans wrongfully denied Medicare or Medicaid forgo health care;
families wrongfully denied food stamps often go hungry.  
 If low-income people are denied access to legal assistance, courts will
become even more burdened with more unrepresented parties unable to
advance their cases properly; the already overburdened social services
agencies will experience sharp increases in persons in need of legal
assistance; and, local government officials will be visited by persons
looking for solutions to problems more properly handled by attorneys. 
 Since 1974, the year President Nixon signed the Legal Services Act,
Congress has funded non-profit corporations that provide legal services to
the poor.  The 11 Texas legal services program rely on the federal Legal
Services Corporation for over 75% of their funding.  In 1996, Congress cut
LSC funding for Texas Legal Services programs by $9 million, almost
one-third of the previous budget.  Further cuts are threatened for 1998.
Another primary source of funding for Texas Legal Services programs, the
IOLTA (Interest on Lawyers Trust Accounts)  program, is tied to interest
rates and, as a result, has seen its revenues in Texas fall from a high of
$9.7 million in 1991 to approximately $5 million in 1996.  The IOLTA
program is also facing a serious challenge in federal court, where a Fifth
Circuit panel has held it unconstitutional.  All of these cuts are
occurring just as the number of poor Texans eligible for legal assistance
is increasing. 
 At least 17 state legislatures, including Virginia, Tennessee, and
Kentucky, have passed some form of filing fee add-on legislation to help
replace cuts in funding to programs that provide legal services to the
indigent.   


PURPOSE

 The purpose of C.S.H.B. 2917 is to increase the funds available for basic
legal services to indigents.  C.S.H.B. 2917 provides for modest increases
in existing civil lawsuit filing fees to be dedicated to funding
non-profit charitable organizations that provide legal services to
low-income Texans. 

 
RULEMAKING AUTHORITY

 C.S.H.B. 2917 expressly grants rulemaking authority to the supreme court
for the distribution of funds created by this act and for establishing
income eligibility requirements in new Government Code Sec. 51.902 in
Section 1 of the bill.  New Section 51.903(b) in Section 1 of the bill
gives the supreme court the authority to approve vouchers before the
comptroller may issue payment to  programs providing basic legal services
to the indigent. 

SECTION BY SECTION ANALYSIS

 SECTION 1 amends Chapter 51 of the Government Code by adding a new
Subchapter J, entitled "Additional Filing Fee for Basic Civil Legal
Services for Indigents,"  to read as follows: 
 Section 51.901, Additional Filing Fee for Basic Civil Legal Services for
Indigents. 
 Subsec. (a) requires the clerk of each court to collect, in addition to
other fees authorized or required by law, the following fees on the filing
of any civil action or proceeding requiring a filing fee, including an
appeal, counterclaim, cross-action, intervention, interpleader, or
third-party action requiring a filing fee: 
 Supreme Court and Courts of Appeals:  $25; 
 District Court (other than divorce and other family law matters):  $10;
 District Court (for divorce and other family law matters):  $5;
 Statutory and constitutional county courts:  $5;
 justice of the peace courts:  $ 2;
 Subsec. (b) requires that fees collected under this subchapter be
collected in the same manner as other fees, fines, and costs in the case. 
 Subsec. (c) requires the clerk to send the fees collected to the
comptroller at least as frequently as quarterly, and requires the
comptroller to deposit the fees to the credit of the basic civil legal
services account of the judicial fund for use in programs approved by the
supreme court that provide basic civil legal services to the indigent.  
 Subsec. (d) defines "family law matters" and "indigent."
 Section 51.902, Rules, grants rulemaking authority regarding the
distribution of the funds to the supreme court, and provides that funds
may only be distributed to nonprofit organizations that provide basic
legal services to persons meeting the income eligibility requirements
established by the supreme court.  
 Section 51.903, Basic Civil Legal Services Account.
 Subsec. (a) provides that the basic civil legal services account is an
account in the judicial fund administered by the supreme court. 
 Subsec. (b) provides that funds in this account may only be used to
support programs that provide basic civil legal services to the indigent.
Funds from the account may only be paid by the comptroller on vouchers
approved by the supreme court. 
 Subsec. (c) provides that with certain exceptions listed in this
subsection, the funds from this account may not be used to directly or
indirectly support a class action lawsuit, abortion-related litigation, or
lawsuits against a governmental entity, political party, candidate or
officeholder, or for lobbying for against a candidate or issue.  Funds
from the account may not be used to provide legal services in matters of
asylum unless necessary to protect the physical safety of the individual.
Funds from this account may be used to support a lawsuit against a
governmental entity on behalf of an individual to secure benefits provided
by a government, including social security benefits, aid to families with
dependent children, food stamps, special education for the handicapped,
Medicare, Medicaid, subsidized or public housing, and other economic,
shelter, or medical benefits provided by a government directly to an
indigent individual, but not including a claim for actual or punitive
damages. 
 Subsec. (d) provides that, with certain exceptions listed in this
subsection, funds from the account may not be used for actions that, if
undertaken by an attorney in private practice, might reasonably be
expected to result in payment of a fee for legal services from an award to
the client from public funds or an opposing party unless the indigent
seeking legal assistance made a reasonable effort to obtain private
counsel and has been unable to obtain legal services. 
 Subsec. (e) requires the supreme court to file an annual report with the
Legislative Budget Board showing disbursements from the account and the
purpose for each disbursement and provides that all funds expended are
subject to audit by the supreme court, the comptroller and the state
auditor. 
 Subsec. (f) states that the purpose of this subchapter is to increase the
funds available for basic civil legal services to the indigent and
provides that these funds may be supplemented by local or federal funds
and private and public grants.  
 
 SECTION 2.  Effective date.  Application of act.

 SECTION 3.  Emergency clause.


COMPARISON OF ORIGINAL TO SUBSTITUTE

 The submission of fees collected under this subchapter are to be
submitted by the clerk to the comptroller at least as frequently as
quarterly under Section 59.901(c) in Section 1 of the substitute.  In
Section 51.901(c) in the original bill, fees collected under this
subchapter were to be submitted by the clerk to the comptroller at least
as frequently as monthly.  
 The definition of "indigent" was added to new Gov't Code ' 51.901(d) in
Section 1 of the substitute; this was not in the original bill.   
 "Abortion-related litigation, or a lawsuit against a governmental entity,
political party, candidate, or officeholder for an action taken in the
individual's official capacity" was added to the list of cases that a
basic civil legal services program for the indigent is prohibited from
undertaking in Section 51.903(c) in Section 1 of the substitute; this was
not in the original bill. 
  "Funds from the basic legal services account may not be used to provide
legal services to an individual who is not legally in this country in
matters of asylum unless necessary to protect the physicial safety of the
individual" was also added to Section 51.903(c) in Section 1 of the
substitute; this was not in the original bill. 
 Section 51.903(c) in Section 1 of the original bill contained the
statement, "Funds from the basic civil legal services account may be used
to support a lawsuit against a governmental entity on behalf of an
individual to secure benefits provided by a government directly to an
individual, including social security benefits, aid to families with
dependent children, food stamps, special education for the handicapped,
Medicare, Medicaid, subsidized or public housing housing, and other
economic, shelter, or medical benefits provided by a government directly
to an indigent individual." In the substitute, this was changed to "Funds
from the basic civil legal services account may be used to support a
lawsuit brought by an individual against a governmental entity [on behalf
of an individual] to secure benefits that the individual or the
individual's dependent or ward may be eligible to receive from [provided
by] a governmental entity under a statute or regulation [government
directly to an individual], including social security benefits, aid to
families with dependent children, financial assistance under Chapter 31,
Human Resources Code, food stamps, special education for the handicapped,
Medicare, Medicaid, subsidized or public housing housing, and other
economic, shelter, or medical benefits provided by a government directly
to an indigent individual but not including a claim for actual or punitive
damages." 
 The substitute added a new Subsec. (d) to Section 51.903 in Section 1 of
the bill.  New Subsec. (d) provides that, with certain exceptions listed
in this subsection, funds from the account may not be used for actions
that, if undertaken by an attorney in private practice, might reasonably
be expected to result in payment of a fee for legal services from an award
to the client from public funds or an opposing party unless the indigent
seeking legal assistance made a reasonable effort to obtain private
counsel and has been unable to obtain legal services.  This provision was
not in the original bill. 
 Section 51.903(d) in Section 1 of the original bill becomes Section
51.903(e) in Section 1 of the substitute and adds the supreme court as an
agency which may demand an audit; this authority was in the original bill. 
 Section 51.903(e) in Section 1 of the original bill becomes Section
51.903(f) in Section 1 of the substitute. 
 Sections 2 and 3 are the same in both versions of the bill.