75R9940 DLF-F
By Nixon, et al. H.B. No. 95
Substitute the following for H.B. No. 95:
By Roman C.S.H.B. No. 95
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to summary judgments in civil actions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subtitle C, Title 2, Civil Practice and Remedies
1-5 Code, is amended by adding Chapter 40 to read as follows:
1-6 CHAPTER 40. SUMMARY JUDGMENT
1-7 Sec. 40.001. DEFINITIONS. In this chapter:
1-8 (1) "Claimant" means a party, including a plaintiff,
1-9 counterclaimant, cross-claimant, or third-party claimant, seeking
1-10 recovery of damages or other affirmative relief.
1-11 (2) "Defendant" means a party, including a
1-12 counterdefendant, cross-defendant, or third-party defendant, from
1-13 whom a claimant seeks damages or other affirmative relief.
1-14 Sec. 40.002. MOTION BY CLAIMANT. (a) Except as provided by
1-15 Subsection (c), for a claim or issue for which a claimant moves for
1-16 summary judgment, the court may grant the motion if the claimant
1-17 proves:
1-18 (1) each essential element of the claim or issue; and
1-19 (2) that there is not a genuine issue of material fact
1-20 with respect to the claim or issue.
1-21 (b) The burden of proof applicable under Subsection (a) is
1-22 the burden that would apply at the trial to entitle the claimant to
1-23 an instructed verdict. The claimant does not have the burden of
1-24 producing evidence to establish the absence of a genuine issue of
2-1 material fact on any claim or issue with respect to which the
2-2 defendant would have the burden of proof at trial.
2-3 (c) The court shall not grant a motion for summary judgment
2-4 under Subsection (a) if the defendant establishes that there is a
2-5 genuine issue of material fact as to whether each element of an
2-6 affirmative defense applies to the claim or issue.
2-7 Sec. 40.003. MOTION BY DEFENDANT. (a) For a claim or issue
2-8 for which a defendant moves for summary judgment, the court may
2-9 grant the motion if the defendant:
2-10 (1) demonstrates the absence of proof by a claimant of
2-11 an essential element of a claim or issue with respect to which the
2-12 claimant has the burden of proof at trial;
2-13 (2) disproves an essential element of a claim or issue
2-14 with respect to which the claimant has the burden of proof at
2-15 trial; or
2-16 (3) proves each essential element of an affirmative
2-17 defense applicable to the claim or issue and proves that there is
2-18 not a genuine issue of material fact with respect to the defense.
2-19 (b) The burden of proof applicable under Subsection (a) is
2-20 the burden that would apply at trial to entitle the defendant to an
2-21 instructed verdict. The defendant does not have the burden of
2-22 producing evidence to establish the absence of a genuine issue of
2-23 material fact on any claim or issue with respect to which the
2-24 claimant would have the burden of proof at trial.
2-25 (c) If a motion by a defendant is based on absence of proof
2-26 on a claim or issue with respect to which the claimant has the
2-27 burden of proof, the claimant must respond with evidence sufficient
3-1 to entitle the claimant to submission of the claim or issue to the
3-2 jury. If the claimant does not respond as required by this
3-3 subsection, the court may grant summary judgment in favor of the
3-4 defendant.
3-5 Sec. 40.004. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
3-6 (a) To the extent of any conflict with Rule 166a, Texas Rules of
3-7 Civil Procedure, this section controls.
3-8 (b) Notwithstanding Section 22.004, Government Code, this
3-9 chapter may not be modified or repealed by a rule adopted by the
3-10 supreme court.
3-11 SECTION 2. This Act takes effect September 1, 1997, and
3-12 applies only to a claim, or an issue arising with respect to a
3-13 claim, that is filed on or after that date. A claim, or an issue
3-14 arising with respect to a claim, that is filed before the effective
3-15 date of this Act is governed by the law as it existed immediately
3-16 before the effective date of this Act, and that law is continued in
3-17 effect for that purpose.
3-18 SECTION 3. The importance of this legislation and the
3-19 crowded condition of the calendars in both houses create an
3-20 emergency and an imperative public necessity that the
3-21 constitutional rule requiring bills to be read on three several
3-22 days in each house be suspended, and this rule is hereby suspended.