1-1           By:  Bivins, et al.                              S.B. No. 220

 1-2           (In the Senate - Filed January 16, 1997; January 21, 1997,

 1-3     read first time and referred to Committee on Economic Development;

 1-4     March 10, 1997, reported adversely, with favorable Committee

 1-5     Substitute by the following vote:  Yeas 10, Nays 0; March 10, 1997,

 1-6     sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 220                   By:  Duncan

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to lawsuits arising outside or brought by persons who

1-11     reside outside of Texas.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13           SECTION 1.  Section 71.001, Civil Practice and Remedies Code,

1-14     is amended to read as follows:

1-15           Sec. 71.001.  DEFINITIONS.  In this subchapter:

1-16                 (1)  "Corporation" means a municipal, private, public,

1-17     or quasi-public corporation other than a county or a common or

1-18     independent school district.

1-19                 (2)  "Just" means conforming to or consonant with what

1-20     is legal or lawful.

1-21                 (3)  "Person" means an individual, association of

1-22     individuals, joint-stock company, or corporation or a trustee or

1-23     receiver of an individual, association of individuals, joint-stock

1-24     company, or corporation.

1-25           SECTION 2.  Section 71.051, Civil Practice and Remedies Code,

1-26     is amended to read as follows:

1-27           Sec. 71.051.  FORUM NON CONVENIENS.  (a)  If [With respect to

1-28     a claimant who is not a legal resident of the United States, if] a

1-29     court of this state, on written motion of a party, finds that in

1-30     the interest of justice a claim [an action] to which this section

1-31     applies would be more properly heard in a forum outside this state,

1-32     the court may decline to exercise jurisdiction under the doctrine

1-33     of forum non conveniens and may stay or dismiss the claim [action

1-34     in whole or in part] on any conditions that may be just.  This

1-35     subsection is intended to restore the common-law doctrine of forum

1-36     non conveniens to actions or claims for personal injury or wrongful

1-37     death.

1-38           (b)  A court may not stay or dismiss a claim pursuant to

1-39     Subsection (a) if the claimant is an individual who was a legal

1-40     resident of this state at the time the cause of action arose.  An

1-41     individual is a resident of the state where the individual's

1-42     residence is, as determined pursuant to Section 1.015, Election

1-43     Code.

1-44           (c)  [With respect to a claimant who is a legal resident of

1-45     the United States, on written motion of a party, an action to which

1-46     this section applies may be stayed or dismissed in whole or in part

1-47     under the doctrine of forum non conveniens if the party seeking to

1-48     stay or dismiss the action proves by a preponderance of the

1-49     evidence that:]

1-50                 [(1)  a forum outside this state is a more appropriate

1-51     forum that:]

1-52                       [(A)  offers a remedy for the causes of action

1-53     brought by a party to which this section applies;]

1-54                       [(B)  as a result of the submission of the

1-55     parties or otherwise, can exercise jurisdiction over all parties

1-56     and claims properly joined in the action by the claimant; and]

1-57                       [(C)  would provide a place of trial that is

1-58     fair, reasonable, and convenient to the parties;]

1-59                 [(2)  maintenance of the action in the courts of this

1-60     state would work a substantial injustice to the moving party and

1-61     the balance of the private interests of all the parties and the

1-62     public interest of the state predominates in favor of the action

1-63     being brought in the other forum; and]

1-64                 [(3)  the stay or dismissal would not, in reasonable

 2-1     probability, result in unreasonable duplication or proliferation of

 2-2     litigation.]

 2-3           [(c)  No stay or dismissal shall be granted under Subsection

 2-4     (b) until all properly joined defendants file with the clerk of the

 2-5     court a written stipulation that each defendant will:]

 2-6                 [(1)  submit to the personal jurisdiction of the courts

 2-7     of the other forum; and]

 2-8                 [(2)  waive any defense based on the statute of

 2-9     limitations applicable in the other forum with respect to all

2-10     causes of action brought by a party to which this section applies.]

2-11           [(d)  The court may, on motion and notice to the parties,

2-12     modify an order granting a stay or dismissal under this section and

2-13     take any further action in the proceeding as the interests of

2-14     justice may require.  If the moving party violates a stipulation

2-15     required by Subsection (c), the court shall withdraw the order

2-16     staying or dismissing the action and proceed as if the order had

2-17     never been issued.  Notwithstanding any other law, the court shall

2-18     have continuing jurisdiction for the purposes of this subsection.]

2-19           [(e)  A request for stay or dismissal under this section is

2-20     timely if it is filed not later than the time required for filing a

2-21     motion to transfer venue of the action.  Otherwise, any objection

2-22     under this section to the court's exercise of jurisdiction is

2-23     waived.  The court may rule on a motion filed under this section

2-24     only after a hearing with notice to all parties not less than 21

2-25     days before the date specified for the hearing.  The court shall

2-26     afford all of the parties ample opportunity to obtain discovery of

2-27     information relevant to the motion prior to a hearing on a motion

2-28     under this section.  The moving party shall have the responsibility

2-29     to request and obtain a hearing on such motion at a reasonable time

2-30     prior to commencement of the trial, and in no case shall the

2-31     hearing be held less than 30 days prior to trial.]

2-32           [(f)  A court may not stay or dismiss an action pursuant to

2-33     Subsection (b):]

2-34                 [(1)  if a claimant in the action who is properly

2-35     joined is a legal resident of this state;]

2-36                 [(2)  if a party opposing the motion under Subsection

2-37     (b) alleges and makes a prima facie showing that an act or omission

2-38     that was a proximate or producing cause of the injury or death

2-39     occurred in this state.  Notwithstanding Subsection (h), said prima

2-40     facie showing need not be made by a preponderance of the evidence

2-41     and shall be deemed to be satisfied if said party produces credible

2-42     evidence in support of the pleading, which evidence need not be in

2-43     admissible form and may include affidavits, deposition testimony,

2-44     discovery responses, or other verified evidence;]

2-45                 [(3)  in an action brought under the federal Employers'

2-46     Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety

2-47     Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler

2-48     Inspection Act (45 U.S.C. Section 22 et seq.);]

2-49                 [(4)  in an action in which it is alleged that the

2-50     personal injury or death was caused by a means of air

2-51     transportation operated in this state or occurred while traveling

2-52     in or on a means of air transportation during a trip originating

2-53     from or destined for a location in this state; or]

2-54                 [(5)  in an action in which it is alleged that harm was

2-55     caused by exposure to asbestos fibers.]

2-56           [(g)  This section does not apply if the personal injury or

2-57     death that is the subject of the cause of action resulted from a

2-58     violation of the laws of this state or of the United States,

2-59     including but not limited to exposure to a substance referred to in

2-60     Section 33.013(c)(3) that was transported out of this state or the

2-61     United States in violation of the laws of this state or the United

2-62     States.]

2-63           [(h)  The burden is on the party opposing a motion under

2-64     Subsection (b) to assert and prove by a preponderance of the

2-65     evidence an exception provided by Subsection (f), if applicable.

2-66     If a party opposing a motion under Subsection (b) fails to timely

2-67     raise an exception under Subsection (f), that party's right to

2-68     raise such exception is waived, but such waiver does not relieve

2-69     the moving party as to any requirement of this section.  An

 3-1     exception filed not less than seven days before the hearing on a

 3-2     motion made under Subsection (b) shall be deemed to be timely.]

 3-3           [(i)  Any time limit established by this section may be

 3-4     extended by the court at the request of any party for good cause

 3-5     shown.]

 3-6           [(j)  In this section:]

 3-7                 [(1)  "Legal resident" means a person who intends the

 3-8     specified political subdivision to be his permanent residence and

 3-9     who intends to return to the specified political subdivision

3-10     despite temporary residence elsewhere or despite temporary

3-11     absences, without regard to the person's country of citizenship or

3-12     national origin.  The term does not include a person who adopts a

3-13     residence in the specified political subdivision in bad faith for

3-14     purposes of avoiding the application of this section.]

3-15                 [(2)  "Claimant" means a party, including a plaintiff,

3-16     counterclaimant, cross-claimant, or third-party plaintiff, seeking

3-17     recovery for personal injury or wrongful death.  In a cause of

3-18     action in which a party seeks recovery of damages for personal

3-19     injury to or the wrongful death of another person, "claimant"

3-20     includes both that other person and the party seeking such

3-21     recovery.  The term does not include a person who is assigned a

3-22     cause of action for personal injury, or who accepts an appointment

3-23     as a personal representative in a wrongful death action, in bad

3-24     faith for purposes of affecting in any way the application of this

3-25     section.]

3-26           [(k)]  This section applies only to actions for personal

3-27     injury or wrongful death.  This section shall govern the courts of

3-28     this state in determining issues under the doctrine of forum non

3-29     conveniens in the actions to which it applies, notwithstanding

3-30     Section 71.031(a) or any other law.

3-31           SECTION 3.  Subchapter D, Chapter 71, Civil Practice and

3-32     Remedies Code, is amended by adding Section 71.052 to read as

3-33     follows:

3-34           Sec. 71.052.  JURISDICTION OVER CERTAIN CLAIMS.  (a)  This

3-35     section applies only to a civil claim for personal injury or

3-36     wrongful death in which:

3-37                 (1)  the plaintiff was not a resident of this state at

3-38     the time the claim arose;

3-39                 (2)  the plaintiff's claim arose outside this state;

3-40     and

3-41                 (3)  the plaintiff's claim is a claim:

3-42                       (A)  brought under the federal Employers'

3-43     Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety

3-44     Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler

3-45     Inspection Act (45 U.S.C. Section 22 et seq.);

3-46                       (B)  in which it is alleged that the personal

3-47     injury or death was caused by a means of air transportation

3-48     operated in this state or occurred while traveling in or on a means

3-49     of air transportation during a trip originating from or destined

3-50     for a location in this state; or

3-51                       (C)  in which it is alleged that harm was caused

3-52     by exposure to asbestos fibers.

3-53           (b)  The court, on motion of a defendant, shall abate a claim

3-54     against the defendant for one year if:

3-55                 (1)  on the date the claim was filed in this state, the

3-56     claim was barred by the applicable limitations law in the

3-57     jurisdiction in which the claim arose;

3-58                 (2)  the defendant is subject to personal jurisdiction

3-59     in one or more other states of the United States; and

3-60                 (3)  the claim against the defendant would not be

3-61     barred by the applicable limitations law in one or more of the

3-62     other states identified in Subdivision (2).

3-63           (c)  At the end of the period of abatement, the court shall

3-64     dismiss the claim against the defendant.  The court may include the

3-65     order dismissing the claim in the same order that abates the claim.

3-66           (d)  A court may not dismiss a claim under this section

3-67     against a defendant until the defendant files with the court or

3-68     with the clerk of the court a written stipulation that, with

3-69     respect to a new action on the claim commenced by the claimant, the

 4-1     defendant waives the right to assert a statute of limitations

 4-2     defense in all other states of the United States in which the claim

 4-3     was not barred by limitations at the time the claim was filed in

 4-4     this state as necessary to effect a tolling of the limitations

 4-5     periods in those states beginning on the date the claim was filed

 4-6     in this state and ending on the date the period of abatement ends.

 4-7           (e)  A defendant may satisfy Subdivision (b)(2) by

 4-8     stipulating in writing that the defendant submits to personal

 4-9     jurisdiction in another state.  A defendant may satisfy Subdivision

4-10     (b)(3) by stipulating in writing that the defendant waives defenses

4-11     based on the statute of limitations applicable in another state.

4-12           (f)  To comply with this section in relation to an action

4-13     that involves both claims that arose in this state and claims that

4-14     arose outside this state, a court shall consider each claim

4-15     individually and shall sever from the action the claims that are

4-16     the subject of a motion filed under Subsection (b).

4-17           (g)  A court shall determine that a claim arose in the

4-18     jurisdiction in which the plaintiff was located at the time the

4-19     plaintiff is alleged to have suffered the physical harm that is the

4-20     subject of the claim.  If a plaintiff alleges the plaintiff

4-21     suffered physical harm while located in more than one jurisdiction,

4-22     the court shall determine, for purposes of this section, that the

4-23     claim arose in the jurisdiction in which the plaintiff was located

4-24     for the longest period of time.

4-25           (h)  A defendant must file a motion under this section on or

4-26     before September 1, 1998.  If the trial of a claim to which this

4-27     section applies commences before September 1, 1998, a defendant

4-28     must file a motion under this section not later than the seventh

4-29     day before the trial commences.

4-30           (i)(1)  A court may not abate or dismiss a claim pursuant to

4-31     this section if, as of January 16, 1997:

4-32                       (A)  the claimant had been diagnosed by a

4-33     physician as having mesothelioma or other malignancy in which

4-34     exposure to asbestos is a producing cause; and

4-35                       (B)  the date set for commencing the trial of the

4-36     claim is January 1, 1998, or earlier.

4-37                 (2)  This subsection does not apply to wrongful death

4-38     claims or to survival actions.

4-39           (j)  This section expires September 2, 1998.

4-40           SECTION 4.  Subsections (a) and (b), Section 71.031, Civil

4-41     Practice and Remedies Code, are amended to read as follows:

4-42           (a)  An action for damages for the death or personal injury

4-43     of a citizen of this state, of the United States, or of a foreign

4-44     country may be enforced in the courts of this state, although the

4-45     wrongful act, neglect, or default causing the death or injury takes

4-46     place in a foreign state or country, if:

4-47                 (1)  a law of the foreign state or country or of this

4-48     state gives a right to maintain an action for damages for the death

4-49     or injury;

4-50                 (2)  the action is begun in this state within the time

4-51     provided by the laws of this state for beginning the action; [and]

4-52                 (3)  for a citizen of a foreign state or country, the

4-53     action is begun in this state within the time provided by the laws

4-54     of the foreign state or country in which the wrongful act, neglect,

4-55     or default took place; and

4-56                 (4)  in the case of a citizen of a foreign country, the

4-57     country has equal treaty rights with the United States on behalf of

4-58     its citizens.

4-59           (b)  Except as provided by Subsection (a), all [All] matters

4-60     pertaining to procedure in the prosecution or maintenance of the

4-61     action in the courts of this state are governed by the law of this

4-62     state.

4-63           SECTION 5.  (a)  Section 2 of this Act applies to a civil

4-64     action:

4-65                 (1)  commenced on or after the effective date of this

4-66     Act; and

4-67                 (2)  described in Subsection (a), Section 71.052, Civil

4-68     Practice and Remedies Code, as added by this Act, which is pending

4-69     on the effective date of this Act and in which the trial, or any

 5-1     new trial or retrial following motion, appeal, or otherwise, begins

 5-2     on or after that date.  In an action commenced before the effective

 5-3     date of this Act, a trial, new trial, or retrial that is in

 5-4     progress on that date is governed with respect to the subject

 5-5     matter of Section 2 of this Act by the applicable law in effect

 5-6     immediately before that date, and that law is continued in effect

 5-7     for that purpose.

 5-8           (b)  Section 3 of this Act applies to a civil action pending

 5-9     on the effective date of this Act in which the trial, or any new

5-10     trial or retrial following motion, appeal, or otherwise, has not

5-11     commenced before that date.

5-12           (c)  Section 4 of this Act applies to a civil action

5-13     commenced on or after the effective date of this Act.  A civil

5-14     action commenced before the effective date of this Act is governed

5-15     with respect to the subject matter of Section 4 of this Act by the

5-16     applicable law in effect immediately before that date, and that law

5-17     is continued in effect for that purpose.

5-18           SECTION 6.  The importance of this legislation and the

5-19     crowded condition of the calendars in both houses create an

5-20     emergency and an imperative public necessity that the

5-21     constitutional rule requiring bills to be read on three several

5-22     days in each house be suspended, and this rule is hereby suspended,

5-23     and that this Act take effect and be in force from and after its

5-24     passage, and it is so enacted.

5-25                                  * * * * *