By Swinford H.B. No. 563
75R3540 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to attorney's fees in civil actions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 38, Civil Practice and Remedies Code, is
1-5 amended to read as follows:
1-6 CHAPTER 38. ATTORNEY'S FEES
1-7 Sec. 38.001. DEFINITIONS. In this chapter:
1-8 (1) "Claim" means a claim, including a counterclaim,
1-9 cross-claim, or third-party claim, seeking recovery of damages or
1-10 other civil relief.
1-11 (2) "Claimant" means a party making a claim, including
1-12 a plaintiff, counterclaimant, cross-claimant, or third-party
1-13 claimant.
1-14 (3) "Defendant" means a party, including a
1-15 counterdefendant, cross-defendant, or third-party defendant,
1-16 against whom a claimant makes a claim [RECOVERY OF ATTORNEY'S FEES.
1-17 A person may recover reasonable attorney's fees from an individual
1-18 or corporation, in addition to the amount of a valid claim and
1-19 costs, if the claim is for:]
1-20 [(1) rendered services;]
1-21 [(2) performed labor;]
1-22 [(3) furnished material;]
1-23 [(4) freight or express overcharges;]
1-24 [(5) lost or damaged freight or express;]
2-1 [(6) killed or injured stock;]
2-2 [(7) a sworn account; or]
2-3 [(8) an oral or written contract].
2-4 Sec. 38.002. SCOPE OF CHAPTER. This chapter applies to any
2-5 claim for civil relief in a court of this state, including a claim
2-6 for damages or for injunctive, declaratory, or other equitable
2-7 relief.
2-8 Sec. 38.003. AWARD TO PREVAILING PARTY. (a)
2-9 Notwithstanding any other law, a court shall award the party who
2-10 prevails on a claim reasonable attorney's fees as appropriate for
2-11 that claim.
2-12 (b) For purposes of this chapter:
2-13 (1) the claimant prevails on a claim if damages or
2-14 other favorable relief is granted to the claimant for that claim;
2-15 and
2-16 (2) the defendant prevails on a claim if damages or
2-17 other favorable relief is not granted to the claimant for that
2-18 claim.
2-19 Sec. 38.004. MULTIPLE CLAIMS. In a case in which there are
2-20 multiple claims for civil relief and different parties prevail on
2-21 different claims, the court shall compute the appropriate award of
2-22 attorney's fees for each claim separately.
2-23 Sec. 38.005. MUST BE REPRESENTED BY ATTORNEY [PROCEDURE FOR
2-24 RECOVERY OF ATTORNEY'S FEES]. To recover attorney's fees under
2-25 this chapter[:]
2-26 [(1)] the person to whom attorney's fees are to be
2-27 awarded [claimant] must be represented by an attorney[;]
3-1 [(2) the claimant must present the claim to the
3-2 opposing party or to a duly authorized agent of the opposing party;
3-3 and]
3-4 [(3) payment for the just amount owed must not have
3-5 been tendered before the expiration of the 30th day after the claim
3-6 is presented].
3-7 Sec. 38.006 [38.003]. PRESUMPTION. It is presumed that the
3-8 usual and customary attorney's fees for a claim of the type for
3-9 which attorney's fees are to be awarded [described in Section
3-10 38.001] are reasonable. The presumption may be rebutted.
3-11 Sec. 38.007 [38.004]. JUDICIAL NOTICE. The court may take
3-12 judicial notice of the usual and customary attorney's fees and of
3-13 the contents of the case file without receiving further evidence
3-14 in:
3-15 (1) a proceeding before the court; or
3-16 (2) a jury case in which the amount of attorney's fees
3-17 is submitted to the court by agreement.
3-18 Sec. 38.008 [38.005]. LIBERAL CONSTRUCTION. This chapter
3-19 shall be liberally construed to promote its underlying purposes.
3-20 Sec. 38.009 [38.006]. CONSTRUCTION OF OTHER LAW. (a)
3-21 Except as provided by Subsection (b), this chapter prevails over
3-22 another provision of law that became effective before September 1,
3-23 1997, that purports to authorize an award of attorney's fees to any
3-24 party to a claim for civil relief.
3-25 (b) This chapter does not affect the award of attorney's
3-26 fees as sanctions under Section 10.004 [EXCEPTIONS. This chapter
3-27 does not apply to a contract issued by an insurer that is subject
4-1 to the provisions of:]
4-2 [(1) Article 3.62, Insurance Code;]
4-3 [(2) Section 1, Chapter 387, Acts of the 55th
4-4 Legislature, Regular Session, 1957 (Article 3.62-1, Vernon's Texas
4-5 Insurance Code);]
4-6 [(3) Chapter 9, Insurance Code;]
4-7 [(4) Article 21.21, Insurance Code; or]
4-8 [(5) the Unfair Claim Settlement Practices Act
4-9 (Article 21.21-2, Insurance Code)].
4-10 SECTION 2. This Act takes effect September 1, 1997, and
4-11 applies only to a claim for civil relief in a suit that is
4-12 commenced on or after that date. A claim for civil relief in a
4-13 suit that is commenced before the effective date of this Act is
4-14 governed by the law applicable to the claim immediately before the
4-15 effective date of this Act, and that law is continued in effect for
4-16 that purpose.
4-17 SECTION 3. Notwithstanding Section 2 of this Act, this Act
4-18 does not apply to a claim for civil relief if:
4-19 (1) before the effective date of this Act, the
4-20 claimant and the claimant's attorney entered into a contingent fee
4-21 agreement applicable to the claim;
4-22 (2) in the absence of this Act, the attorney's fee
4-23 would be paid under the contingent fee agreement; and
4-24 (3) the agreement is filed with the court before the
4-25 date on which the court makes the award of fees.
4-26 SECTION 4. The importance of this legislation and the
4-27 crowded condition of the calendars in both houses create an
5-1 emergency and an imperative public necessity that the
5-2 constitutional rule requiring bills to be read on three several
5-3 days in each house be suspended, and this rule is hereby suspended.