75R16163 E                          

         By Bivins, et al.                                      S.B. No. 220

         Substitute the following for S.B. No. 220:

         By Gray                                            C.S.S.B. No. 220

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to lawsuits arising outside or brought by persons who

 1-3     reside outside of Texas.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 71.051, Civil Practice and Remedies Code,

 1-6     is amended to read as follows:

 1-7           Sec. 71.051.  FORUM NON CONVENIENS.  (a)  With respect to a

 1-8     plaintiff [claimant] who is not a legal resident of the United

 1-9     States, if a court of this state, on written motion of a party,

1-10     finds that in the interest of justice a claim or [an] action to

1-11     which this section applies would be more properly heard in a forum

1-12     outside this state, the court may decline to exercise jurisdiction

1-13     under the doctrine of forum non conveniens and may stay or dismiss

1-14     the claim or action in whole or in part on any conditions that may

1-15     be just.

1-16           (b)  With respect to a plaintiff [claimant] who is a legal

1-17     resident of the United States, on written motion of a party, a

1-18     claim or [an] action to which this section applies may be stayed or

1-19     dismissed in whole or in part under the doctrine of forum non

1-20     conveniens if the party seeking to stay or dismiss the claim or

1-21     action proves by a preponderance of the evidence that:

1-22                 (1)  an alternative forum exists in which the claim or

1-23     action  may be tried [a forum outside this state is a more

1-24     appropriate forum that:]

 2-1                       [(A)  offers a remedy for the causes of action

 2-2     brought by a party to which this section applies;]

 2-3                       [(B)  as a result of the submission of the

 2-4     parties or otherwise, can exercise jurisdiction over all parties

 2-5     and claims properly joined in the action by the claimant; and]

 2-6                       [(C)  would provide a place of trial that is

 2-7     fair, reasonable, and convenient to the parties];

 2-8                 (2)  the alternate forum provides an adequate remedy;

 2-9                 (3)  maintenance of the claim or action in the courts

2-10     of this state would work a substantial injustice to the moving

2-11     party [and the balance of the private interests of all the parties

2-12     and the public interest of the state predominates in favor of the

2-13     action being brought in the other forum];

2-14                 (4)  the alternate forum, as a result of the submission

2-15     of the parties or otherwise, can exercise jurisdiction over all the

2-16     defendants properly joined to the plaintiff's claim;

2-17                 (5)  the balance of the private interests of the

2-18     parties and the public interest of the state predominate in favor

2-19     of the claim or action being brought in an alternate forum; and

2-20                 (6) [(3)]  the stay or dismissal would not [, in

2-21     reasonable probability,] result in unreasonable duplication or

2-22     proliferation of litigation.

2-23           (c)  The court may set terms and conditions for staying or

2-24     dismissing a claim or action under this section as the interests of

2-25     justice may require, giving due regard to the rights of the parties

2-26     to the claim or action.  If a moving party violates a term or

2-27     condition of a stay or dismissal, the court shall withdraw the

 3-1     order staying or dismissing the claim or action and proceed as if

 3-2     the order had never been issued.  Notwithstanding any other law,

 3-3     the court shall have continuing jurisdiction for purposes of this

 3-4     subsection [No stay or dismissal shall be granted under Subsection

 3-5     (b) until all properly joined defendants file with the clerk of the

 3-6     court a written stipulation that each defendant will:]

 3-7                 [(1)  submit to the personal jurisdiction of the courts

 3-8     of the other forum; and]

 3-9                 [(2)  waive any defense based on the statute of

3-10     limitations applicable in the other forum with respect to all

3-11     causes of action brought by a party to which this section applies].

3-12           (d)  [The court may, on motion and notice to the parties,

3-13     modify an order granting a stay or dismissal under this section and

3-14     take any further action in the proceeding as the interests of

3-15     justice may require.  If the moving party violates a stipulation

3-16     required by Subsection (c), the court shall withdraw the order

3-17     staying or dismissing the action and proceed as if the order had

3-18     never been issued.  Notwithstanding any other law, the court shall

3-19     have continuing jurisdiction for the purposes of this subsection.]

3-20           [(e)]  A request for stay or dismissal under this section is

3-21     timely if it is filed not later than 180 days after the time

3-22     required for filing a motion to transfer venue of the claim or

3-23     action.  [Otherwise, any objection under this section to the

3-24     court's exercise of jurisdiction is waived.]  The court may rule on

3-25     a motion filed under this section only after a hearing with notice

3-26     to all parties not less than 21 days before the date specified for

3-27     the hearing.   The court shall afford all of the parties ample

 4-1     opportunity to obtain discovery of information relevant to the

 4-2     motion prior to a hearing on a motion under this section.  The

 4-3     moving party shall have the responsibility to request and obtain a

 4-4     hearing on such motion at a reasonable time prior to commencement

 4-5     of the trial, and in no case shall the hearing be held less than 30

 4-6     days prior to trial.

 4-7           (e)  The court may not stay or dismiss a plaintiff's claim

 4-8     under Subsection (b) if the plaintiff is a legal resident of this

 4-9     state.  If an action involves both plaintiffs who are legal

4-10     residents of this state and plaintiffs who are not, the court may

4-11     not stay or dismiss the action under Subsection (b) if the

4-12     plaintiffs who are legal residents of this state are properly

4-13     joined in the action and the action arose out of a single

4-14     occurrence.  The court shall dismiss a claim under Subsection (b)

4-15     if the court finds by a preponderance of the evidence that a party

4-16     was joined solely for the purpose of obtaining or maintaining

4-17     jurisdiction in this state and the party's claim would be more

4-18     properly heard in a forum outside of this state.

4-19           (f)  A court may not stay or dismiss a claim or [an] action

4-20     pursuant to Subsection (b)[:]

4-21                 [(1)  if a claimant in the action who is properly

4-22     joined is a legal resident of this state;]

4-23                 [(2)]  if a party opposing the motion under Subsection

4-24     (b) alleges and makes a prima facie showing that an act or omission

4-25     that was a proximate or producing cause of the injury or death

4-26     occurred in this state.  The [Notwithstanding Subsection (h), said]

4-27     prima facie showing need not be made by a preponderance of the

 5-1     evidence and shall be deemed to be satisfied if the [said] party

 5-2     produces credible evidence in support of the pleading, which

 5-3     evidence need not be in admissible form and may include affidavits,

 5-4     deposition testimony, discovery responses, or other verified

 5-5     evidence[;]

 5-6                 [(3)  in an action brought under the federal Employers'

 5-7     Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety

 5-8     Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler

 5-9     Inspection Act (45 U.S.C. Section 22 et seq.);]

5-10                 [(4)  in an action in which it is alleged that the

5-11     personal injury or death was caused by a means of air

5-12     transportation operated in this state or occurred while traveling

5-13     in or on a means of air transportation during a trip originating

5-14     from or destined for a location in this state; or]

5-15                 [(5)  in an action in which it is alleged that harm was

5-16     caused by exposure to asbestos fibers].

5-17           (g)  [This section does not apply if the personal injury or

5-18     death that is the subject of the cause of action resulted from a

5-19     violation of the laws of this state or of the United States,

5-20     including but not limited to exposure to a substance referred to in

5-21     Section 33.013(c)(3) that was transported out of this state or the

5-22     United States in violation of the laws of this state or the United

5-23     States.]

5-24           [(h)  The burden is on the party opposing a motion under

5-25     Subsection (b) to assert and prove by a preponderance of the

5-26     evidence an exception provided by Subsection (f), if applicable.

5-27     If a party opposing a motion under Subsection (b) fails to timely

 6-1     raise an exception under Subsection (f), that party's right to

 6-2     raise such exception is waived, but such waiver does not relieve

 6-3     the moving party as to any requirement of this section.  An

 6-4     exception filed not less than seven days before the hearing on a

 6-5     motion made under Subsection (b) shall be deemed to be timely.]

 6-6           [(i)]  Any time limit established by this section may be

 6-7     extended by the court at the request of any party for good cause

 6-8     shown.

 6-9           (h) [(j)]  In this section:

6-10                 (1)  "Legal resident" means an individual [a person]

6-11     who intends the specified political subdivision to be his permanent

6-12     residence and who intends to return to the specified political

6-13     subdivision despite temporary residence elsewhere or despite

6-14     temporary absences, without regard to the individual's [person's]

6-15     country of citizenship or national origin.  The term does not

6-16     include an individual [a person] who adopts a residence in the

6-17     specified political subdivision in bad faith for purposes of

6-18     avoiding the application of this section.

6-19                 (2)  "Plaintiff" ["Claimant"] means a party[, including

6-20     a plaintiff, counterclaimant, cross-claimant, or third-party

6-21     plaintiff,] seeking recovery of damages for personal injury or

6-22     wrongful death.  In a cause of action in which a party seeks

6-23     recovery of damages for personal injury to or the wrongful death of

6-24     another person, "plaintiff" ["claimant"] includes both that other

6-25     person and the party seeking such recovery.  The term does not

6-26     include a counterclaimant, cross-claimant, or third-party plaintiff

6-27     or a person who is assigned a cause of action for personal injury,

 7-1     or who accepts an appointment as a personal representative in a

 7-2     wrongful death action, in bad faith for purposes of affecting in

 7-3     any way the application of this section.

 7-4           (i) [(k)]  This section applies to actions for personal

 7-5     injury or wrongful death.  This section shall govern the courts of

 7-6     this state in determining issues under the doctrine of forum non

 7-7     conveniens in the actions to which it applies, notwithstanding

 7-8     Section 71.031(a) or any other law.

 7-9           SECTION 2.   Subchapter D, Chapter 71, Civil Practice and

7-10     Remedies Code, is amended by adding Section 71.052 to read as

7-11     follows:

7-12           Sec. 71.052.  JURISDICTION; ELECTION; STIPULATIONS.  (a)

7-13     This section applies only to a claim for personal injury or

7-14     wrongful death in which:

7-15                 (1)  the plaintiff was not a resident of this state at

7-16     the time the claim arose;

7-17                 (2)  the plaintiff's claim arose outside this state;

7-18     and

7-19                 (3)  the plaintiff's claim alleges that harm was caused

7-20     by exposure to asbestos fibers.

7-21           (b)  The court, on motion of a defendant, shall dismiss each

7-22     claim against the defendant that is subject to this section and was

7-23     filed in this state on or after January 1, 1997, on the filing of a

7-24     stipulation by the defendant that, for the purposes of limitations,

7-25     the filing of the claim in another forum would relate back to the

7-26     date each plaintiff filed his claim in this state.

7-27           (c)  The court, on motion of a defendant, shall dismiss each

 8-1     claim against the defendant that is subject to this section and

 8-2     was commenced in this state on or after August 1, 1995, but before

 8-3     January 1, 1997, unless the plaintiff files a written statement

 8-4     electing to:

 8-5                 (1)  abate the plaintiff's claim against the defendant

 8-6     for a period of 180 days from the date the court disposes of the

 8-7     defendant's motion, to afford the plaintiff an opportunity to file

 8-8     a new action on the claims in another state of the United States;

 8-9     or

8-10                 (2)  retain the plaintiff's claims against the

8-11     defendant in this state and limit the plaintiff's recovery on the

8-12     claims for exemplary damages, if any, against the defendant to an

8-13     amount not to exceed the greater of:

8-14                       (A)  two times the amount of economic damages

8-15     plus an amount equal to any noneconomic damages found by the trier

8-16     of fact, not to exceed $750,000; or

8-17                       (B)  $200,000.

8-18           (d)  If a plaintiff files a written statement making an

8-19     election under Subsection (c), the court shall deny the defendant's

8-20     motion filed under Subsection (c) and shall enter an order in

8-21     accordance with the plaintiff's election.  If the plaintiff makes

8-22     an election under Subsection (c), the election is effective as to

8-23     all defendants and the court may not require the plaintiff to

8-24     refile the election against any subsequent motion filed by a

8-25     defendant under Subsection (c).  If a plaintiff elects to abate the

8-26     claim, the court shall dismiss each of the plaintiff's claims

8-27     against the defendants at the end of the abatement period.

 9-1           (e)  A court may not abate or dismiss a claim under

 9-2     Subsection (c) against a defendant until the defendant files with

 9-3     the court or with the clerk of the court a written stipulation

 9-4     that, with respect to a new action on the claim commenced by the

 9-5     plaintiff, the defendant waives the right to assert a statute of

 9-6     limitations defense in all other states of the United States in

 9-7     which the claim was not barred by limitations at the time the claim

 9-8     was filed in this state as necessary to effect a tolling of the

 9-9     limitations periods in those states beginning on the date the claim

9-10     was filed in this state and ending on the date the claim is

9-11     dismissed or the period of abatement ends.

9-12           (f)  The court may not abate or dismiss a claim under this

9-13     section against a defendant until the defendant files with the

9-14     court or with the clerk of the court a written stipulation that,

9-15     with respect to a new action on the claim commenced by the

9-16     plaintiff in another state of the United States, the plaintiff may

9-17     elect that the plaintiff and the defendant may:

9-18                 (1)  rely on responses to discovery already provided

9-19     under the Texas Rules of Civil Procedure, plus any additional

9-20     discovery that may be conducted under the rules of civil procedure

9-21     in the other state; or

9-22                 (2)  use responses to discovery already provided and

9-23     conduct additional discovery as permitted under the rules of civil

9-24     procedure in the other state.

9-25           (g)  To comply with this section in relation to an action

9-26     that involves both claims that arose in this state and claims that

9-27     arose outside this state, a court shall consider each claim

 10-1    individually and shall sever from the action the claims that are

 10-2    subject to this section.

 10-3          (h)  A court shall determine that a claim arose in the

 10-4    jurisdiction in which the plaintiff was located at the time the

 10-5    plaintiff is alleged to have been exposed to asbestos fibers.  If a

 10-6    plaintiff alleges that the plaintiff was exposed to asbestos fibers

 10-7    while located in more than one jurisdiction, the court shall

 10-8    determine, for purposes of this section, which of the jurisdictions

 10-9    is the most appropriate forum for the claim, considering the

10-10    relative amounts and lengths of the plaintiff's exposure to

10-11    asbestos fibers in each of the jurisdictions.

10-12          SECTION 3.  Subsections (a) and (b), Section 71.031, Civil

10-13    Practice and Remedies Code, are amended to read as follows:

10-14          (a)  An action for damages for the death or personal injury

10-15    of a citizen of this state, of the United States, or of a foreign

10-16    country may be enforced in the courts of this state, although the

10-17    wrongful act, neglect, or default causing the death or injury takes

10-18    place in a foreign state or country, if:

10-19                (1)  a law of the foreign state or country or of this

10-20    state gives a right to maintain an action for damages for the death

10-21    or injury;

10-22                (2)  the action is begun in this state within the time

10-23    provided by the laws of this state for beginning the action; [and]

10-24                (3)  for a resident of a foreign state or country, the

10-25    action is begun in this state within the time provided by the laws

10-26    of the foreign state or country in which the wrongful act, neglect,

10-27    or default took place; and

 11-1                (4)  in the case of a citizen of a foreign country, the

 11-2    country has equal treaty rights with the United States on behalf of

 11-3    its citizens.

 11-4          (b)  Except as provided by Subsection (a), all [All] matters

 11-5    pertaining to procedure in the prosecution or maintenance of the

 11-6    action in the courts of this state are governed by the law of this

 11-7    state.

 11-8          SECTION 4.  (a)  Section 1 of this Act applies to:

 11-9                (1)  a civil action commenced on or after January 1,

11-10    1999, that is:

11-11                      (A)  an action against a railroad company brought

11-12    under the federal Employers' Liability Act (45 U.S.C. Section 51 et

11-13    seq.), the federal Safety Appliance Act (45 U.S.C. Section 1 et

11-14    seq.), or the federal Boiler Inspection Act (45 U.S.C. Section 22

11-15    et seq.); or

11-16                      (B)  an action in which it is alleged that the

11-17    personal injury or death was caused by a means of air

11-18    transportation operated in this state or occurred while traveling

11-19    in or on a means of air transportation during a trip originating

11-20    from or destined for a location in this state; and

11-21                (2)  a civil action commenced on or after the effective

11-22    date of this Act, other than an action described in Subdivision (1)

11-23    of this section.

11-24          (b)  Section 2 of this Act applies to a civil action that is

11-25    pending on the effective date of this Act, in which the plaintiff

11-26    alleges that harm was caused by exposure to asbestos fibers, and in

11-27    which the trial, or any new trial or retrial following motion,

 12-1    appeal, or otherwise, begins on or after that date.  In an action

 12-2    commenced before the effective date of this Act, a trial, new

 12-3    trial, or retrial that is in progress on that date is governed with

 12-4    respect to the subject matter of Section 2 of this Act by the

 12-5    applicable law in effect immediately before that date, and that law

 12-6    is continued in effect for that purpose.

 12-7          (c)  Section 3 of this Act applies to a civil action

 12-8    commenced on or after the effective date of this Act.  A civil

 12-9    action commenced before the effective date of this Act is governed

12-10    by the applicable law in effect immediately before that date, and

12-11    that law is continued in effect for that purpose.

12-12          SECTION 5.  The importance of this legislation and the

12-13    crowded condition of the calendars in both houses create an

12-14    emergency and an imperative public necessity that the

12-15    constitutional rule requiring bills to be read on three several

12-16    days in each house be suspended, and this rule is hereby suspended,

12-17    and that this Act take effect and be in force from and after its

12-18    passage, and it is so enacted.