By Clark                                              H.B. No. 1524
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the awarding of litigation costs in certain civil
 1-3     actions.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Subtitle C, Title 2, Civil Practice and Remedies
 1-6     Code, is amended by adding Chapter 42 to read as follows:
 1-7         CHAPTER 42.  LITIGATION COSTS FOLLOWING AN OFFER TO SETTLE
 1-8                      SUBCHAPTER A.  GENERAL PROVISIONS
 1-9           Sec. 42.001.  DEFINITIONS.  In this chapter:
1-10                 (1)  "Claim" means a claim to recover monetary damages
1-11     or for other relief, including a counterclaim, cross-claim, or
1-12     third-party claim.  The term does not include a claim for
1-13     injunctive relief or for litigation costs.
1-14                 (2)  "Claimant" means a person making a claim.
1-15                 (3)  "Defendant" means a person from whom a claimant
1-16     seeks recovery of damages on a claim, including a counterdefendant,
1-17     cross-defendant, or third-party defendant.
1-18                 (4)  "Litigation costs" means costs actually incurred
1-19     that are directly related to preparing an action for trial and
1-20     actual trial expenses, including:
1-21                       (A)  attorney's fees;
 2-1                       (B)  costs of court;
 2-2                       (C)  reasonable deposition costs; and
 2-3                       (D)  reasonable fees for not more than two expert
 2-4     witnesses.
 2-5                 (6)  "Offer to settle" means an offer to settle or
 2-6     compromise a claim made in compliance with Section 42.021.
 2-7           Sec. 42.002.  APPLICABILITY AND EFFECT.  (a)  This chapter
 2-8     does not apply to:
 2-9                 (1)  a class action;
2-10                 (2)  a shareholder's derivative action;
2-11                 (3)  an action brought under the Deceptive Trade
2-12     Practices-Consumer Protection Act (Sections 17.41 et seq., Business
2-13     & Commerce Code);
2-14                 (4)  an action brought under the Family Code;
2-15                 (5)  an action to collect workers' compensation
2-16     benefits under Subtitle A, Title 5, Labor Code; or
2-17                 (6)  an action for which another statute specifically
2-18     authorizes recovery of attorney's fees or litigation costs by the
2-19     prevailing party.
2-20           (b)  This chapter does not limit or affect the ability of any
2-21     person to make an offer to settle or compromise a claim that does
2-22     not comply with this chapter.  A party's offer to settle or
2-23     compromise that does not comply with Section 42.021 does not
2-24     entitle the party to recover litigation costs under this section.
2-25           Sec. 42.003.  ELECTION BY GOVERNMENTAL UNITS; WAIVER.
 3-1     (a)  This chapter does not apply to an action by or against the
 3-2     state, any unit of state government, or any political subdivision
 3-3     of the state unless the governmental unit expressly elects both to
 3-4     seek recovery of litigation costs under this chapter and to waive
 3-5     immunity from liability for litigation costs awarded under this
 3-6     chapter.
 3-7           (b)  To be effective as an election and waiver, the
 3-8     governmental unit must make the election and waiver specifically
 3-9     and affirmatively by a writing filed with the court within 45 days
3-10     of the filing of the governmental unit's original petition or
3-11     original answer.
3-12           (c)  An election and waiver is effective only in the action
3-13     in which it is filed, even if the action is subsequently joined or
3-14     consolidated with another action.
3-15           Sec. 42.004.  MODIFICATION OF TIME LIMITS.  A court may
3-16     modify the time limits specified in this chapter in an order issued
3-17     following a pretrial conference directed pursuant to Rule 166,
3-18     Texas Rules of Civil Procedure.
3-19           Sec. 42.005.  SERVICE.  When this chapter requires a writing
3-20     to be served on another party, service is adequate if it is
3-21     performed in a manner described in Rule 21a, Texas Rules of Civil
3-22     Procedure.
3-23             (Sections 42.006 to 42.020 reserved for expansion
 4-1                       SUBCHAPTER B.  OFFER TO SETTLE;
 4-2                          AWARDING LITIGATION COSTS
 4-3           Sec. 42.021.  OFFER TO SETTLE.  (a)  A party may serve on an
 4-4     opposing party an offer to settle all the claims in the action
 4-5     between that party and the opposing party.
 4-6           (b)  The offer to settle:
 4-7                 (1)  must be in writing;
 4-8                 (2)  must state that it is an offer to settle under
 4-9     this section;
4-10                 (3)  must specify the terms by which the claims may be
4-11     settled;
4-12                 (4)  must specify a deadline by which the offer must be
4-13     accepted;
4-14                 (5)  may not include a demand for litigation costs
4-15     except for costs of court;
4-16                 (6)  must offer to allow a judgment to be entered
4-17     consistent with the terms of the offer; and
4-18                 (7)  must be served on the party to whom the offer is
4-19     made.
4-20           (c)  A party may not make an offer to settle a claim under
4-21     this section until the 45th day after the date the defendant filed
4-22     the first responsive pleading to the claim.
4-23           (d)  A party may not make an offer to settle under this
4-24     section after the 10th day before the date set for trial, except
4-25     that a party may make an offer to settle that is a counteroffer on
 5-1     or before the seventh day before the date set for trial.
 5-2           (e)  The parties are not required to file with the court an
 5-3     offer to settle.
 5-4           Sec. 42.022.  ACCEPTANCE OF OFFER.  (a)  A party may accept
 5-5     an offer to settle on or before 5:00 p.m. on the 14th day after the
 5-6     date the party received the offer to settle or before the deadline
 5-7     specified in the offer, whichever is later.
 5-8           (b)  Acceptance of an offer must be:
 5-9                 (1)  in writing; and
5-10                 (2)  served on the party who made the offer.
5-11           Sec. 42.023.  WITHDRAWING AN OFFER.  (a)  A party may
5-12     withdraw an offer to settle by a writing served on the party to
5-13     whom the offer was made before the party accepts the offer.  A
5-14     party may not accept an offer to settle after it is withdrawn.  A
5-15     party may not withdraw an offer to settle after it has been
5-16     accepted.
5-17           (b)  If a party withdraws an offer to settle, that offer does
5-18     not entitle the party to recover litigation costs.
5-19           Sec. 42.024.  REJECTION OF OFFER.  For purposes of this
5-20     chapter, an offer to settle a claim is rejected if:
5-21                 (1)  the party to whom the offer was made rejects the
5-22     offer by a writing served on the party making the offer; or
5-23                 (2)  the offer is not withdrawn and is not accepted
5-24     before the deadline for accepting the offer.
5-25           Sec. 42.025.  AWARD OF LITIGATION COSTS.  (a)  A party who
 6-1     made an offer to settle the claims between that party and the party
 6-2     to whom the offer was made may recover litigation costs provided:
 6-3                 (1)  the offer to settle was rejected;
 6-4                 (2)  the claims were tried, proceeded to a verdict, and
 6-5     the court entered a judgment on the claims;
 6-6                 (3)  if a party sought monetary damages:
 6-7                       (A)  the amount of monetary damages awarded on
 6-8     the claims in the judgment is more favorable to the party who made
 6-9     the offer than the offer to settle the claims, and
6-10                       (B)  the difference between the amount of
6-11     monetary damages awarded on the claims in the judgment and the
6-12     amount of the offer to settle the claims is equal to or greater
6-13     than 10 percent of the amount of the offer to settle the claims;
6-14     and
6-15                 (4)  if a party sought nonmonetary relief, the judgment
6-16     is as favorable or more favorable to the party who made the offer
6-17     to settle the claims.
6-18           (b)  Litigation costs awarded to a party under this section
6-19     shall include only those costs incurred by the party who made the
6-20     offer to settle after the rejection of the earliest offer to settle
6-21     which, if it had been accepted, would have been more favorable to
6-22     the person who rejected the offer than the judgment.
6-23           (c)  Each element of litigation costs awarded under this
6-24     chapter must be both reasonable and necessary to the prosecution or
6-25     defense of the action.
 7-1           (d)  The court may review and reduce an award of litigation
 7-2     costs as justice requires.
 7-3           Sec. 42.026.  AMOUNT OF ATTORNEY'S FEES.  (a)  A party may
 7-4     not recover attorney's fees as litigation costs under this chapter
 7-5     unless the party was represented by an attorney.
 7-6           (b)  The court shall limit the amount of attorney's fees
 7-7     included in litigation costs awarded to a claimant against a
 7-8     defendant under this chapter to one-third of the amount of damages
 7-9     recovered by the claimant from the defendant on the claims that
7-10     were the subject of the offer to settle.
7-11           (c)  The courts shall limit the amount of attorney's fees
7-12     included in litigation costs awarded to a defendant against a
7-13     claimant under this chapter to one-third of the amount of damages
7-14     sought by the claimant against the defendant at the time the
7-15     claimant rejected the offer to settle.
7-16           Sec. 42.027.  LIMITATION ON LITIGATION COSTS.  The amount of
7-17     litigation costs awarded  against the claimant in an action for
7-18     personal injury or death may not exceed the amount of the damages
7-19     recovered by the claimant in the action.
7-20           Sec. 42.028.  EVIDENCE NOT ADMISSIBLE.  (a)  Evidence
7-21     relating to offers to settle is not admissible except in an action
7-22     to enforce the settlement or in a proceeding to obtain litigation
7-23     costs under this chapter.
7-24           (b)  Except in an action or proceeding described in
7-25     Subsection (a), the provisions of this chapter may not be made
 8-1     known to the jury through any means, including voir dire,
 8-2     introduction into evidence, instruction, or argument.
 8-3           SECTION 2.  This Act takes effect September 1, 1999, and
 8-4     applies only to a civil action described by Chapter 42, Civil
 8-5     Practice and Remedies Code, as added by this Act, commenced on or
 8-6     after the effective date of this Act.  An action that commenced
 8-7     before the effective date of this Act is governed by the law in
 8-8     effect immediately before that date, and that law is continued in
 8-9     effect for that purpose.
8-10           SECTION 3.  The importance of this legislation and the
8-11     crowded condition of the calendars in both houses create an
8-12     emergency and an imperative public necessity that the
8-13     constitutional rule requiring bills to be read on three several
8-14     days in each house be suspended, and this rule is hereby suspended.