By: Bivins, et al. S.B. No. 220
A BILL TO BE ENTITLED
AN ACT
1-1 relating to lawsuits arising outside or brought by persons who
1-2 reside outside of Texas.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 71.001, Civil Practice and Remedies Code,
1-5 is amended to read as follows:
1-6 Sec. 71.001. DEFINITIONS. In this subchapter:
1-7 (1) "Corporation" means a municipal, private, public,
1-8 or quasi-public corporation other than a county or a common or
1-9 independent school district.
1-10 (2) "Just" means conforming to or consonant with what
1-11 is legal or lawful.
1-12 (3) "Person" means an individual, association of
1-13 individuals, joint-stock company, or corporation or a trustee or
1-14 receiver of an individual, association of individuals, joint-stock
1-15 company, or corporation.
1-16 SECTION 2. Section 71.051, Civil Practice and Remedies Code,
1-17 is amended to read as follows:
1-18 Sec. 71.051. FORUM NON CONVENIENS. (a) If [With respect to
1-19 a claimant who is not a legal resident of the United States, if] a
1-20 court of this state, on written motion of a party, finds that in
1-21 the interest of justice a claim [an action] to which this section
1-22 applies would be more properly heard in a forum outside this state,
1-23 the court may decline to exercise jurisdiction under the doctrine
2-1 of forum non conveniens and may stay or dismiss the claim [action
2-2 in whole or in part] on any conditions that may be just. This
2-3 subsection is intended to restore the common-law doctrine of forum
2-4 non conveniens to actions or claims for personal injury or wrongful
2-5 death.
2-6 (b) A court may not stay or dismiss a claim pursuant to
2-7 Subsection (a) if the claimant is an individual who was a legal
2-8 resident of this state at the time the cause of action arose. An
2-9 individual is a resident of the state where the individual's
2-10 residence is, as determined pursuant to Section 1.015, Election
2-11 Code.
2-12 (c) [With respect to a claimant who is a legal resident of
2-13 the United States, on written motion of a party, an action to which
2-14 this section applies may be stayed or dismissed in whole or in part
2-15 under the doctrine of forum non conveniens if the party seeking to
2-16 stay or dismiss the action proves by a preponderance of the
2-17 evidence that:]
2-18 [(1) a forum outside this state is a more appropriate
2-19 forum that:]
2-20 [(A) offers a remedy for the causes of action
2-21 brought by a party to which this section applies;]
2-22 [(B) as a result of the submission of the
2-23 parties or otherwise, can exercise jurisdiction over all parties
2-24 and claims properly joined in the action by the claimant; and]
2-25 [(C) would provide a place of trial that is
3-1 fair, reasonable, and convenient to the parties;]
3-2 [(2) maintenance of the action in the courts of this
3-3 state would work a substantial injustice to the moving party and
3-4 the balance of the private interests of all the parties and the
3-5 public interest of the state predominates in favor of the action
3-6 being brought in the other forum; and]
3-7 [(3) the stay or dismissal would not, in reasonable
3-8 probability, result in unreasonable duplication or proliferation of
3-9 litigation.]
3-10 [(c) No stay or dismissal shall be granted under Subsection
3-11 (b) until all properly joined defendants file with the clerk of the
3-12 court a written stipulation that each defendant will:]
3-13 [(1) submit to the personal jurisdiction of the courts
3-14 of the other forum; and]
3-15 [(2) waive any defense based on the statute of
3-16 limitations applicable in the other forum with respect to all
3-17 causes of action brought by a party to which this section applies.]
3-18 [(d) The court may, on motion and notice to the parties,
3-19 modify an order granting a stay or dismissal under this section and
3-20 take any further action in the proceeding as the interests of
3-21 justice may require. If the moving party violates a stipulation
3-22 required by Subsection (c), the court shall withdraw the order
3-23 staying or dismissing the action and proceed as if the order had
3-24 never been issued. Notwithstanding any other law, the court shall
3-25 have continuing jurisdiction for the purposes of this subsection.]
4-1 [(e) A request for stay or dismissal under this section is
4-2 timely if it is filed not later than the time required for filing a
4-3 motion to transfer venue of the action. Otherwise, any objection
4-4 under this section to the court's exercise of jurisdiction is
4-5 waived. The court may rule on a motion filed under this section
4-6 only after a hearing with notice to all parties not less than 21
4-7 days before the date specified for the hearing. The court shall
4-8 afford all of the parties ample opportunity to obtain discovery of
4-9 information relevant to the motion prior to a hearing on a motion
4-10 under this section. The moving party shall have the responsibility
4-11 to request and obtain a hearing on such motion at a reasonable time
4-12 prior to commencement of the trial, and in no case shall the
4-13 hearing be held less than 30 days prior to trial.]
4-14 [(f) A court may not stay or dismiss an action pursuant to
4-15 Subsection (b):]
4-16 [(1) if a claimant in the action who is properly
4-17 joined is a legal resident of this state;]
4-18 [(2) if a party opposing the motion under Subsection
4-19 (b) alleges and makes a prima facie showing that an act or omission
4-20 that was a proximate or producing cause of the injury or death
4-21 occurred in this state. Notwithstanding Subsection (h), said prima
4-22 facie showing need not be made by a preponderance of the evidence
4-23 and shall be deemed to be satisfied if said party produces credible
4-24 evidence in support of the pleading, which evidence need not be in
4-25 admissible form and may include affidavits, deposition testimony,
5-1 discovery responses, or other verified evidence;]
5-2 [(3) in an action brought under the federal Employers'
5-3 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety
5-4 Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler
5-5 Inspection Act (45 U.S.C. Section 22 et seq.);]
5-6 [(4) in an action in which it is alleged that the
5-7 personal injury or death was caused by a means of air
5-8 transportation operated in this state or occurred while traveling
5-9 in or on a means of air transportation during a trip originating
5-10 from or destined for a location in this state; or]
5-11 [(5) in an action in which it is alleged that harm was
5-12 caused by exposure to asbestos fibers.]
5-13 [(g) This section does not apply if the personal injury or
5-14 death that is the subject of the cause of action resulted from a
5-15 violation of the laws of this state or of the United States,
5-16 including but not limited to exposure to a substance referred to in
5-17 Section 33.013(c)(3) that was transported out of this state or the
5-18 United States in violation of the laws of this state or the United
5-19 States.]
5-20 [(h) The burden is on the party opposing a motion under
5-21 Subsection (b) to assert and prove by a preponderance of the
5-22 evidence an exception provided by Subsection (f), if applicable.
5-23 If a party opposing a motion under Subsection (b) fails to timely
5-24 raise an exception under Subsection (f), that party's right to
5-25 raise such exception is waived, but such waiver does not relieve
6-1 the moving party as to any requirement of this section. An
6-2 exception filed not less than seven days before the hearing on a
6-3 motion made under Subsection (b) shall be deemed to be timely.]
6-4 [(i) Any time limit established by this section may be
6-5 extended by the court at the request of any party for good cause
6-6 shown.]
6-7 [(j) In this section:]
6-8 [(1) "Legal resident" means a person who intends the
6-9 specified political subdivision to be his permanent residence and
6-10 who intends to return to the specified political subdivision
6-11 despite temporary residence elsewhere or despite temporary
6-12 absences, without regard to the person's country of citizenship or
6-13 national origin. The term does not include a person who adopts a
6-14 residence in the specified political subdivision in bad faith for
6-15 purposes of avoiding the application of this section.]
6-16 [(2) "Claimant" means a party, including a plaintiff,
6-17 counterclaimant, cross-claimant, or third-party plaintiff, seeking
6-18 recovery for personal injury or wrongful death. In a cause of
6-19 action in which a party seeks recovery of damages for personal
6-20 injury to or the wrongful death of another person, "claimant"
6-21 includes both that other person and the party seeking such
6-22 recovery. The term does not include a person who is assigned a
6-23 cause of action for personal injury, or who accepts an appointment
6-24 as a personal representative in a wrongful death action, in bad
6-25 faith for purposes of affecting in any way the application of this
7-1 section.]
7-2 [(k)] This section applies only to actions for personal
7-3 injury or wrongful death. This section shall govern the courts of
7-4 this state in determining issues under the doctrine of forum non
7-5 conveniens in the actions to which it applies, notwithstanding
7-6 Section 71.031(a) or any other law.
7-7 SECTION 3. Subchapter D, Chapter 71, Civil Practice and
7-8 Remedies Code, is amended by adding Section 71.052 to read as
7-9 follows:
7-10 Sec. 71.052. JURISDICTION OVER CERTAIN CLAIMS. (a) This
7-11 section applies only to a civil claim for personal injury or
7-12 wrongful death in which:
7-13 (1) the plaintiff was not a resident of this state at
7-14 the time the claim arose;
7-15 (2) the plaintiff's claim arose outside this state;
7-16 and
7-17 (3) the plaintiff's claim is a claim:
7-18 (A) brought under the federal Employers'
7-19 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety
7-20 Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler
7-21 Inspection Act (45 U.S.C. Section 22 et seq.);
7-22 (B) in which it is alleged that the personal
7-23 injury or death was caused by a means of air transportation
7-24 operated in this state or occurred while traveling in or on a means
7-25 of air transportation during a trip originating from or destined
8-1 for a location in this state; or
8-2 (C) in which it is alleged that harm was caused
8-3 by exposure to asbestos fibers.
8-4 (b) The court, on motion of a defendant, shall abate a claim
8-5 against the defendant for one year if:
8-6 (1) on the date the claim was filed in this state, the
8-7 claim was barred by the applicable limitations law in the
8-8 jurisdiction in which the claim arose;
8-9 (2) the defendant is subject to personal jurisdiction
8-10 in one or more other states of the United States; and
8-11 (3) the claim against the defendant would not be
8-12 barred by the applicable limitations law in one or more of the
8-13 other states identified in Subdivision (2).
8-14 (c) At the end of the period of abatement, the court shall
8-15 dismiss the claim against the defendant. The court may include the
8-16 order dismissing the claim in the same order that abates the claim.
8-17 (d) A court may not dismiss a claim under this section
8-18 against a defendant until the defendant files with the court or
8-19 with the clerk of the court a written stipulation that, with
8-20 respect to a new action on the claim commenced by the claimant, the
8-21 defendant waives the right to assert a statute of limitations
8-22 defense in all other states of the United States in which the claim
8-23 was not barred by limitations at the time the claim was filed in
8-24 this state as necessary to effect a tolling of the limitations
8-25 periods in those states beginning on the date the claim was filed
9-1 in this state and ending on the date the period of abatement ends.
9-2 (e) A defendant may satisfy Subdivision (b)(2) by
9-3 stipulating in writing that the defendant submits to personal
9-4 jurisdiction in all other states of the United States in which the
9-5 defendant was subject to personal jurisdiction with respect to the
9-6 claim at the time it was filed in this state. A defendant may
9-7 satisfy Subdivision (b)(3) by stipulating in writing that the
9-8 defendant waives defenses to the claim based on the statute of
9-9 limitations applicable in all other states of the United States in
9-10 which the claim was not barred by limitations at the time the claim
9-11 was filed in this state.
9-12 (f) To comply with this section in relation to an action
9-13 that involves both claims that arose in this state and claims that
9-14 arose outside this state, a court shall consider each claim
9-15 individually and shall sever from the action the claims that are
9-16 the subject of a motion filed under Subsection (b).
9-17 (g) A court shall determine that a claim arose in the
9-18 jurisdiction in which the plaintiff was located at the time the
9-19 plaintiff is alleged to have suffered the physical harm that is the
9-20 subject of the claim. If a plaintiff alleges the plaintiff
9-21 suffered physical harm while located in more than one jurisdiction,
9-22 the court shall determine, for purposes of this section, that the
9-23 claim arose in the jurisdiction in which the plaintiff was located
9-24 for the longest period of time.
9-25 (h) A defendant must file a motion under this section on or
10-1 before September 1, 1998. If the trial of a claim to which this
10-2 section applies commences before September 1, 1998, a defendant
10-3 must file a motion under this section not later than the seventh
10-4 day before the trial commences.
10-5 (i) A court may not abate or dismiss a claim pursuant to
10-6 this section if:
10-7 (1)(A) as of January 16, 1997, the claimant had been
10-8 diagnosed by a physician as having mesothelioma or other malignancy
10-9 in which exposure to asbestos is a producing or proximate cause;
10-10 and
10-11 (B) the claimant's cause of action did not, at
10-12 the time of filing, arise under Section 71.002 or 71.021, Civil
10-13 Practice and Remedies Code; and
10-14 (2) as of the effective date of this section, the
10-15 original date set for commencing the trial of the claim is March 2,
10-16 1998, or earlier.
10-17 (j) This section expires September 2, 1998.
10-18 SECTION 4. Subsections (a) and (b), Section 71.031, Civil
10-19 Practice and Remedies Code, are amended to read as follows:
10-20 (a) An action for damages for the death or personal injury
10-21 of a citizen of this state, of the United States, or of a foreign
10-22 country may be enforced in the courts of this state, although the
10-23 wrongful act, neglect, or default causing the death or injury takes
10-24 place in a foreign state or country, if:
10-25 (1) a law of the foreign state or country or of this
11-1 state gives a right to maintain an action for damages for the death
11-2 or injury;
11-3 (2) the action is begun in this state within the time
11-4 provided by the laws of this state for beginning the action; [and]
11-5 (3) for a citizen of a foreign state or country, the
11-6 action is begun in this state within the time provided by the laws
11-7 of the foreign state or country in which the wrongful act, neglect,
11-8 or default took place; and
11-9 (4) in the case of a citizen of a foreign country, the
11-10 country has equal treaty rights with the United States on behalf of
11-11 its citizens.
11-12 (b) Except as provided by Subsection (a), all [All] matters
11-13 pertaining to procedure in the prosecution or maintenance of the
11-14 action in the courts of this state are governed by the law of this
11-15 state.
11-16 SECTION 5. (a) Section 2 of this Act applies:
11-17 (1) to a civil action commenced on or after the
11-18 effective date of this Act; and
11-19 (2) to a civil action described in Subsection (a),
11-20 Section 71.052, Civil Practice and Remedies Code, as added by this
11-21 Act, which is pending on the effective date of this Act and in
11-22 which the trial, or any new trial or retrial following motion,
11-23 appeal, or otherwise, begins on or after that date. In an action
11-24 commenced before the effective date of this Act, a trial, new
11-25 trial, or retrial that is in progress on that date is governed with
12-1 respect to the subject matter of Section 2 of this Act by the
12-2 applicable law in effect immediately before that date, and that law
12-3 is continued in effect for that purpose.
12-4 (b) Section 3 of this Act applies to a civil action pending
12-5 on the effective date of this Act in which the trial, or any new
12-6 trial or retrial following motion, appeal, or otherwise, has not
12-7 commenced before that date.
12-8 (c) Section 4 of this Act applies to a civil action
12-9 commenced on or after the effective date of this Act. A civil
12-10 action commenced before the effective date of this Act is governed
12-11 with respect to the subject matter of Section 4 of this Act by the
12-12 applicable law in effect immediately before that date, and that law
12-13 is continued in effect for that purpose.
12-14 SECTION 6. The importance of this legislation and the
12-15 crowded condition of the calendars in both houses create an
12-16 emergency and an imperative public necessity that the
12-17 constitutional rule requiring bills to be read on three several
12-18 days in each house be suspended, and this rule is hereby suspended,
12-19 and that this Act take effect and be in force from and after its
12-20 passage, and it is so enacted.