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.