By:  Fraser                                  S.B. No. 1754

         97S0887/1                           

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to summary judgment in civil cases.

 1-2           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-3           SECTION 1.  Subtitle C, Title 2, Civil Practice and Remedies

 1-4     Code, is amended by adding Chapter 40 to read as follows:

 1-5           CHAPTER 40.  SUMMARY JUDGMENTS.

 1-6           Sec. 40.001.  PRODUCTION OF EVIDENCE.  (a)  The burden of

 1-7     producing evidence shall be the same on a motion for summary

 1-8     judgment as it would be at trial, except that the nonmovant's

 1-9     burden shall only extend to the elements of claims that the movant

1-10     specifically identifies as being beyond the nonmovant's ability to

1-11     prove.  The nonmovant may accept as true the facts stated in the

1-12     motion.

1-13           (b)  Should it appear from the affidavits of a nonmovant that

1-14     the nonmovant cannot, for reasons stated, present by affidavit the

1-15     facts essential to justify the nonmovant's opposition, the court

1-16     may refuse the application for summary judgment or may order a

1-17     continuance to permit affidavits to be obtained or depositions to

1-18     be taken or discovery to be had or may make such other order as is

1-19     just.

1-20           Sec. 40.002.  STANDARD OF REVIEW OF THE EVIDENCE.  Whenever a

1-21     court is requested by proper pleading to render summary judgment,

1-22     judgment shall be rendered for the movant if, after considering all

1-23     of the evidence in the light most favorable to the nonmovant,

 2-1     reasonable minds could not differ as to the material facts, and

 2-2     application of the law to the facts yields the conclusion that

 2-3     judgment is proper for the movant.

 2-4           SECTION 2.  This Act takes effect September 1, 1997, and

 2-5     applies only to a cause of action that is filed on or after that

 2-6     date.

 2-7           SECTION 3.  The importance of this legislation and the

 2-8     crowded condition of the calendars in both houses create an

 2-9     emergency and an imperative public necessity that the

2-10     constitutional rule requiring bills to be read on three several

2-11     days in each house be suspended, and this rule is hereby suspended.