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 * * * * *