SRC-JBJ S.B. 532 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 532
By: Ratliff
Economic Development
4/21/1999
As Filed


DIGEST 

Currently, a party is not penalized for threatening expensive litigation in
a lawsuit, although an abuse of litigation can be extremely costly to both
parties.  An innocent civil defendant may be required to pay a high
litigation expense to fight a claim without merit or may be forced to pay a
large settlement to avoid that litigation expense.  At the same time, a
civil plaintiff who makes a reasonable settlement offer that is rejected
must choose between litigation of a lengthy discovery process and trial
against meritless defenses or acceptance of a low settlement to resolve
promptly the plaintiff's claims.  S.B. 532 would protect victims of abusive
litigation tactics by allowing a party to recover litigation expenses,
including reasonable attorney's fees, if a party rejects a fair settlement
offer and then wins less, or loses more, at trial.   

PURPOSE

As proposed, S.B. 532 authorizes recovery of litigation costs in certain
civil actions. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Title 2C, Civil Practice and Remedies Code, by adding
Chapter 42, as follows: 

CHAPTER 42.  LITIGATION COSTS FOLLOWING AN OFFER TO SETTLE

SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 42.001.  DEFINITIONS.  Defines "claim," "claimant," "defendant,"
"litigation costs," and "offer to settle." 

Sec. 42.002.  APPLICABILITY AND EFFECT.  Sets forth the action to which
this chapter does not apply.  Provides that this chapter does not limit or
affect the ability of any person to make an offer to settle or compromise a
claim that does not comply with this chapter. Provides that a party's offer
to settle or compromise that does not comply with Section 42.021 does not
entitle the party to recover litigation costs under this section. 
 
Sec. 42.003.  ELECTION BY GOVERNMENTAL UNITS; WAIVER. Provides that this
chapter does not apply to actions directly involving any unit of the state
government, or any state political subdivision unless the governmental unit
expressly elects to seek recovery of litigation costs under this chapter
and elects to waive immunity from liability for litigation costs awarded
under this chapter.  Requires the governmental unit to file the waiver with
the court within 45 days of the filing of the governmental unit's original
petition or original answer.  Provides that an election and waiver is
effective only in the action in which it is filed, even if the action is
subsequently joined or consolidated with another action. 

Sec. 42.004.  MODIFICATION OF TIME LIMITS.  Authorizes a court following
pretrial conference to modify the time limits specified in this chapter
pursuant to Rule 166, Texas  Rules of Civil Procedure. 

Sec. 42.005.  SERVICE.  Provides that service under this chapter to another
party is adequate  if service is performed in a manner described in Rule
21a, Texas Rules of Civil Procedure. 

SUBCHAPTER B.  OFFER TO SETTLE; AWARDING LITIGATION COSTS

Sec. 42.021.  OFFER TO SETTLE.  Authorizes a party to serve on opposing
party with an offer to settle all claims in an action between that party
and the opposing party.  Sets forth criteria for the offer to settle.
Prohibits a party from making an offer to settle under this section until
the 45th day after the date the defendant filed the first responsive
pleading to the claim.  Prohibits a party from making an offer to settle
after the 10th day before the date set for trial, except that a party may
make an offer to settle that is a counteroffer on or before the seventh day
before the date set for the trial.  Provides that the parties are not
required to file an offer to settle. 

Sec. 42.022.  ACCEPTANCE OF OFFER.  Authorizes a party to accept an offer
to settle on or before 5:00 p.m. on the 14th day after the date the party
received the offer to settle or before the deadline specified in the offer,
whichever is later.  Sets forth criteria for an acceptance to an offer. 

Sec. 42.023.  WITHDRAWING AN OFFER.  Authorizes a party to withdraw an
offer to settle by a writing served on the party to whom the offer was made
before the party accepts the offer. Prohibits a party from accepting an
offer to settle after it is withdrawn.  Prohibits a party from withdrawing
an offer to settle after it has been accepted.  Provides that an offer to
settle does not entitle the party to recover litigation costs. 

Sec. 42.024.  REJECTION OF OFFER.  Sets forth conditions under which an
offer to settle a claim is rejected. 

Sec. 42.025.  AWARD OF LITIGATION COSTS.  Authorizes a party to recover
litigation costs in an offer to settle claims between the parties under
certain conditions.  Requires litigation costs awarded under this section
to include only those costs incurred by the party who made the offer to
settle under certain conditions.  Requires each element of litigation
awarded under this chapter to be both reasonable and necessary to the
prosecution or defense of the action. Authorizes the court to review and
reduce an award of litigation costs. 

Sec. 42.026.  AMOUNT OF ATTORNEY'S FEES.  Prohibits a party from recovering
attorney's fees as litigation costs under this chapter unless the party was
represented by an attorney.  Requires the court to limit attorney's fees
for a claimant against a defendant to onethird of the amount of damages
recovered by the claimant from the defendant on the claims that were the
subject of the offer to settle, and to limit to one-third the amount of
damages sought by the claimant against the defendant at the time the
claimant rejected the offer to settle. 
 
Sec. 42.027.  LIMITATION ON LITIGATION COSTS.  Prohibits the amount of
litigation costs awarded against the claimant in an action for personal
injury or death from exceeding the amount of the damages recovered by the
claimant in the action. 
 
Sec. 42.028.  EVIDENCE NOT ADMISSIBLE.  Establishes that evidence relating
to an offer to settle is not admissible, except in an action to enforce the
settlement or obtain litigation costs. Prohibits the provisions of this
chapter from being made known to a jury through any means, including voir
dire, introduction into evidence, instruction, or argument, except in an
action or proceeding described in Subsection (a).   

SECTION 2.Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 3.Emergency clause.