By Hartnett H.B. No. 3085
75R5319 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the attorney-client and work-product privileges.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter B, Chapter 113, Property Code, is
1-5 amended by adding Section 113.060 to read as follows:
1-6 Sec. 113.060. PRIVILEGES. (a) Except as provided by
1-7 Subsection (c), a trustee or a trustee's lawyer may not raise,
1-8 assert, or claim against a beneficiary of the trust an
1-9 attorney-client privilege with respect to any communication,
1-10 regardless of whether confidential, concerning the subject matter
1-11 of the trust by, between, or among:
1-12 (1) the trustee and a lawyer;
1-13 (2) the trustee and an agent or representative of a
1-14 lawyer;
1-15 (3) an agent or representative of the trustee and a
1-16 lawyer; or
1-17 (4) an agent or representative of the trustee and an
1-18 agent or representative of a lawyer.
1-19 (b) Except as provided by Subsection (c), a trustee or a
1-20 trustee's lawyer may not raise, assert, or claim against a
1-21 beneficiary of the trust an attorney work-product privilege with
1-22 respect to work-product materials concerning the subject matter of
1-23 the trust.
1-24 (c) A trustee or a trustee's lawyer may raise, assert, or
2-1 claim against a beneficiary of the trust an attorney-client
2-2 privilege or a work-product privilege, as appropriate, with
2-3 respect to a confidential communication or work-product materials
2-4 concerning the subject matter of the trust if:
2-5 (1) an actual, bona fide dispute has arisen between
2-6 the trustee and the beneficiary concerning the creation,
2-7 administration, management, property, distribution, accounts,
2-8 taxation, or duration of the trust;
2-9 (2) the trustee has retained legal counsel at the
2-10 trustee's own expense solely to defend the trustee against a claim
2-11 of misconduct directly related to the creation, administration,
2-12 management, property, distribution, accounts, taxation, or duration
2-13 of the trust; and
2-14 (3) the confidential communication or work-product
2-15 material to which the privilege or exemption is raised, asserted,
2-16 or claimed, relates solely to the defense of the trustee from a
2-17 claim of misconduct described by Subdivision (2).
2-18 (d) To the extent that this section conflicts with the Texas
2-19 Rules of Civil Procedure, including Rule 166b, or the Texas Rules
2-20 of Civil Evidence, including Rule 503, this section controls.
2-21 (e) Notwithstanding Section 22.004, Government Code, this
2-22 section may not be modified or repealed by a rule adopted by the
2-23 supreme court.
2-24 (f) In this section:
2-25 (1) "Subject matter of the trust" includes matters
2-26 concerning the creation, administration, management, property,
2-27 distribution, accounts, taxation, or duration of the trust.
3-1 (2) "Trustee's sole expense" means an expense that is
3-2 paid by the trustee and is not paid or reimbursed, directly or
3-3 indirectly, to the trustee or the trustee's legal counsel from the
3-4 trust property.
3-5 SECTION 2. This Act takes effect September 1, 1997, and
3-6 applies only to:
3-7 (1) a trust created after February 1, 1997; and
3-8 (2) a transaction relating to a trust created before
3-9 February 1, 1997, that occurs on or after February 1, 1997.
3-10 SECTION 3. The importance of this legislation and the
3-11 crowded condition of the calendars in both houses create an
3-12 emergency and an imperative public necessity that the
3-13 constitutional rule requiring bills to be read on three several
3-14 days in each house be suspended, and this rule is hereby suspended.