By:  Fraser, Ratliff                                   S.B. No. 113
                                A BILL TO BE ENTITLED
                                       AN ACT
 1-1     relating to contingent fee contracts for legal services entered
 1-2     into by a state governmental entity and to the deposit of certain
 1-3     delinquent or disputed funds recovered by a state governmental
 1-4     entity.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  (a)  The legislature finds that:
 1-7                 (1)  a payment to a private attorney or law firm under
 1-8     a contingent fee contract for legal services entered into by a
 1-9     state governmental entity constitutes compensation paid to a public
1-10     contractor for which the legislature must provide by law under
1-11     Section 44, Article III, Texas Constitution; and
1-12                 (2)  funds recovered by a state governmental entity in
1-13     litigation or in settlement of a matter that could have resulted in
1-14     litigation are state funds that must be deposited in the state
1-15     treasury and made subject to the appropriations process.
1-16           (b)  It is the policy of this state that all funds recovered
1-17     by a state governmental entity from an opposing party in litigation
1-18     or in settlement of a matter that could have resulted in
1-19     litigation, including funds designated as damages, amounts adjudged
1-20     or awarded, attorney's fees, costs, interest, settlement proceeds,
1-21     or expenses, are the property of the state governmental entity that
1-22     must be deposited in the manner that public funds of the entity
1-23     must be deposited.  Legal fees and expenses may be paid from the
1-24     recovered funds under a contingent fee contract for legal services
 2-1     only after the funds have been appropriately deposited and only in
 2-2     accordance with applicable law.
 2-3           SECTION 2.  Subchapter F, Chapter 404, Government Code, is
 2-4     amended by adding Section 404.097 to read as follows:
 2-5           Sec. 404.097.  DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR
 2-6     SETTLEMENT.  (a)  Notwithstanding Section 404.093, this section
 2-7     applies by its terms to each state governmental entity.
 2-8           (b)  In this section, "contingent fee contract" and "state
 2-9     governmental entity" have the meanings assigned by Section
2-10     2254.101.
2-11           (c)  All funds recovered by a state governmental entity in
2-12     litigation or in settlement of a matter that could have resulted in
2-13     litigation, including funds designated as damages, amounts adjudged
2-14     or awarded, attorney's fees, costs, interest, settlement proceeds,
2-15     or expenses, are public funds of the state or the state
2-16     governmental entity and shall be deposited in the state treasury to
2-17     the credit of the appropriate fund or account.
2-18           (d)  Legal fees and expenses may be paid from the recovered
2-19     funds under a contingent fee contract for legal services only:
2-20                 (1)  after the funds are deposited in accordance with
2-21     this section; and
2-22                 (2)  in accordance with Subchapter C, Chapter 2254.
2-23           SECTION 3.  Chapter 2254, Government Code, is amended by
2-24     adding Subchapter C to read as follows:
2-25          SUBCHAPTER C.  CONTINGENT FEE CONTRACT FOR LEGAL SERVICES
2-26           Sec. 2254.101.  DEFINITIONS.  In this subchapter:
 3-1                 (1)  "Contingent fee" means that part of a fee for
 3-2     legal services, under a contingent fee contract, the amount or
 3-3     payment of which is contingent on the outcome of the matter for
 3-4     which the services were obtained.
 3-5                 (2)  "Contingent fee contract" means a contract for
 3-6     legal services under which the amount or the payment of the fee for
 3-7     the services is contingent in whole or in part on the outcome of
 3-8     the matter for which the services were obtained.
 3-9                 (3)  "State governmental entity":
3-10                       (A)  means the state or a board, commission,
3-11     department, office, or other agency in the executive branch of
3-12     state government created under the constitution or a statute of the
3-13     state, including an institution of higher education as defined by
3-14     Section 61.003, Education Code;
3-15                       (B)  includes the state when a state officer is
3-16     bringing a parens patriae proceeding in the name of the state; and
3-17                       (C)  does not include a state agency or state
3-18     officer acting as a receiver, special deputy receiver, liquidator,
3-19     or liquidating agent in connection with the administration of the
3-20     assets of an insolvent entity under Article 21.28, Insurance Code,
3-21     or Chapter 36, 66, 96, or 126, Finance Code.
3-22           Sec. 2254.102.  APPLICABILITY.  (a)  This subchapter applies
3-23     only to a contingent fee contract for legal services entered into
3-24     by a state governmental entity.
3-25           (b)  The legislature by this subchapter is providing, in
3-26     accordance with Section 44, Article III, Texas Constitution, for
 4-1     the manner in which and the situations under which a state
 4-2     governmental entity may compensate a public contractor under a
 4-3     contingent fee contract for legal services.
 4-4           Sec. 2254.103.  CONTRACT APPROVAL; SIGNATURE.  (a)  A state
 4-5     governmental entity that has authority to enter into a contract for
 4-6     legal services in its own name may enter into a contingent fee
 4-7     contract for legal services only if:
 4-8                 (1)  the governing body of the state governmental
 4-9     entity approves the contract and the approved contract is signed by
4-10     the presiding officer of the governing body; or
4-11                 (2)  for an entity that is not governed by a
4-12     multimember governing body, the elected or appointed officer who
4-13     governs the entity approves and signs the contract.
4-14           (b)  The attorney general may enter into a contingent fee
4-15     contract for legal services in the name of the state in relation to
4-16     a matter that has been referred to the attorney general under law
4-17     by another state governmental entity only if the other state
4-18     governmental entity approves and signs the contract in accordance
4-19     with Subsection (a).
4-20           (c)  A state governmental entity, including the state, may
4-21     enter into a contingent fee contract for legal services that is not
4-22     described by Subsection (a) or (b) only if the governor approves
4-23     and signs the contract.
4-24           (d)  Before approving the contract, the governing body,
4-25     elected or appointed officer, or governor, as appropriate, must
4-26     find that:
 5-1                 (1)  there is a substantial need for the legal
 5-2     services;
 5-3                 (2)  the legal services cannot be adequately performed
 5-4     by the attorneys and supporting personnel of the state governmental
 5-5     entity or by the attorneys and supporting personnel of another
 5-6     state governmental entity; and
 5-7                 (3)  the legal services cannot reasonably be obtained
 5-8     from attorneys in private practice under a contract providing only
 5-9     for the payment of hourly fees, without regard to the outcome of
5-10     the matter, because of the nature of the matter for which the
5-11     services will be obtained or because the state governmental entity
5-12     does not have appropriated funds available to pay the estimated
5-13     amounts required under a contract providing only for the payment of
5-14     hourly fees.
5-15           (e)  Before entering into a contingent fee contract for legal
5-16     services in which the estimated amount that may be recovered
5-17     exceeds $100,000, a state governmental entity that proposes to
5-18     enter into the contract in its own name or in the name of the state
5-19     must also notify the Legislative Budget Board that the entity
5-20     proposes to enter into the contract, send the board copies of the
5-21     proposed contract, and send the board information demonstrating
5-22     that the conditions required by Subsection (d)(3) exist.  If the
5-23     state governmental entity finds under Subsection (d)(3) that the
5-24     state governmental entity does not have appropriated funds
5-25     available to pay the estimated amounts required under a contract
5-26     for the legal services providing only for the payment of hourly
 6-1     fees, the state governmental entity may not enter into the proposed
 6-2     contract in its own name or in the name of the state unless the
 6-3     Legislative Budget Board finds that the state governmental entity's
 6-4     finding with regard to available appropriated funds is correct.
 6-5           (f)  A contingent fee contract for legal services that is
 6-6     subject to Subsection (e) and requires a finding by the Legislative
 6-7     Budget Board is void unless the board has made the finding required
 6-8     by Subsection (e).
 6-9           Sec. 2254.104.  TIME AND EXPENSE RECORDS REQUIRED; FINAL
6-10     STATEMENT.  (a)  The contract must require that the contracting
6-11     attorney or law firm keep current and complete written time and
6-12     expense records that describe in detail the time and money spent
6-13     each day in performing the contract.
6-14           (b)  The contracting attorney or law firm shall permit the
6-15     governing body or governing officer of the state governmental
6-16     entity, the attorney general, and the state auditor each to inspect
6-17     or obtain copies of the time and expense records at any time on
6-18     request.
6-19           (c)  On conclusion of the matter for which legal services
6-20     were obtained, the contracting attorney or law firm shall provide
6-21     the contracting state governmental entity with a complete written
6-22     statement that describes the outcome of the matter, states the
6-23     amount of any recovery, shows the contracting attorney's or law
6-24     firm's computation of the amount of the contingent fee, and
6-25     contains the final complete time and expense records required by
6-26     Subsection (a).  The complete written statement required by this
 7-1     subsection is public information under Chapter 552 and may not be
 7-2     withheld from a requestor under that chapter under Section 552.103
 7-3     or any other exception from required disclosure.
 7-4           (d)  This subsection does not apply to the complete written
 7-5     statement required by Subsection (c).  All time and expense records
 7-6     required under this section are public information subject to
 7-7     required public disclosure under Chapter 552.  Information in the
 7-8     records may be withheld from a member of the public under Section
 7-9     552.103 only if, in addition to meeting the requirements of Section
7-10     552.103, the chief legal officer or employee of the state
7-11     governmental entity determines that withholding the information is
7-12     necessary to protect the entity's strategy or position in pending
7-13     or reasonably anticipated litigation.  Information withheld from
7-14     public disclosure under this subsection shall be segregated from
7-15     information that is subject to required public disclosure.
7-16           Sec. 2254.105.  CERTAIN GENERAL CONTRACT REQUIREMENTS.  The
7-17     contract must:
7-18                 (1)  provide for the method by which the contingent fee
7-19     is computed;
7-20                 (2)  state the differences, if any, in the method by
7-21     which the contingent fee is computed if the matter is settled,
7-22     tried, or tried and appealed;
7-23                 (3)  state how litigation and other expenses will be
7-24     paid and, if reimbursement of any expense is contingent on the
7-25     outcome of the matter or reimbursable from the amount recovered in
7-26     the matter, state whether the amount recovered for purposes of the
 8-1     contingent fee computation is considered to be the amount obtained
 8-2     before or after expenses are deducted;
 8-3                 (4)  state that any subcontracted legal or support
 8-4     services performed by a person who is not a contracting attorney or
 8-5     a partner, shareholder, or employee of a contracting attorney or
 8-6     law firm is an expense subject to reimbursement only in accordance
 8-7     with this subchapter; and
 8-8                 (5)  state that the amount of the contingent fee and
 8-9     reimbursement of expenses under the contract will be paid and
8-10     limited in accordance with this subchapter.
8-11           Sec. 2254.106.  CONTRACT REQUIREMENTS: COMPUTATION OF
8-12     CONTINGENT FEE; REIMBURSEMENT OF EXPENSES.  (a)  The contract must
8-13     establish the reasonable hourly rate for work performed by an
8-14     attorney, law clerk, or paralegal who will perform legal or support
8-15     services under the contract based on the reasonable and customary
8-16     rate in the relevant locality for the type of work performed and on
8-17     the relevant experience, demonstrated ability, and standard hourly
8-18     billing rate, if any, of the person performing the work.  The
8-19     contract may establish the reasonable hourly rate for one or more
8-20     persons by name and may establish a rate schedule for work
8-21     performed by unnamed persons.  The highest hourly rate for a named
8-22     person or under a rate schedule may not exceed $1,000 an hour.
8-23     This subsection applies to subcontracted work performed by an
8-24     attorney, law clerk, or paralegal who is not a contracting attorney
8-25     or a partner, shareholder, or employee of a contracting attorney or
8-26     law firm as well as to work performed by a contracting attorney or
 9-1     by a partner, shareholder, or employee of a contracting attorney or
 9-2     law firm.
 9-3           (b)  The contract must establish a base fee to be computed as
 9-4     follows.  For each attorney, law clerk, or paralegal who is a
 9-5     contracting attorney or a partner, shareholder, or employee of a
 9-6     contracting attorney or law firm, multiply the number of hours the
 9-7     attorney, law clerk, or paralegal works in providing legal or
 9-8     support services under the contract times the reasonable hourly
 9-9     rate for the work performed by that attorney, law clerk, or
9-10     paralegal.  Add the resulting amounts to obtain the base fee.  The
9-11     computation of the base fee may not include hours or costs
9-12     attributable to work performed by a person who is not a contracting
9-13     attorney or a partner, shareholder, or employee of a contracting
9-14     attorney or law firm.
9-15           (c)  Subject to Subsection (d), the contingent fee is
9-16     computed by multiplying the base fee by a multiplier.  The contract
9-17     must establish a reasonable multiplier based on any expected
9-18     difficulties in performing the contract, the amount of expenses
9-19     expected to be risked by the contractor, the expected risk of no
9-20     recovery, and any expected long delay in recovery.  The multiplier
9-21     may not exceed four without prior approval by the legislature.
9-22           (d)  In addition to establishing the method of computing the
9-23     fee under Subsections (a), (b), and (c), the contract must limit
9-24     the amount of the contingent fee to a stated percentage of the
9-25     amount recovered.  The contract may state different percentage
9-26     limitations for different ranges of possible recoveries and
 10-1    different percentage limitations in the event the matter is
 10-2    settled, tried, or tried and appealed.  The percentage limitation
 10-3    may not exceed 35 percent without prior approval by the
 10-4    legislature.  The contract must state that the amount of the
 10-5    contingent fee will not exceed the lesser of the stated percentage
 10-6    of the amount recovered or the amount  computed under Subsections
 10-7    (a), (b), and (c).
 10-8          (e)  The contract also may:
 10-9                (1)  limit the amount of expenses that may be
10-10    reimbursed; and
10-11                (2)  provide that the amount or payment of only part of
10-12    the fee is contingent on the outcome of the matter for which the
10-13    services were obtained, with the amount and payment of the
10-14    remainder of the fee payable on a regular hourly rate basis without
10-15    regard to the outcome of the matter.
10-16          (f)  Except as provided by Section 2254.107, this section
10-17    does not apply to a contingent fee contract for legal services:
10-18                (1)  in which the expected amount to be recovered and
10-19    the actual amount recovered do not exceed $100,000; or
10-20                (2)  under which a series of recoveries is contemplated
10-21    and the amount of each individual recovery is not expected to and
10-22    does not exceed $100,000.
10-23          (g)  This section applies to a contract described by
10-24    Subsection (f) for each individual recovery under the contract that
10-25    actually exceeds $100,000, and the contract must provide for
10-26    computing the fee in accordance with this section for each
 11-1    individual recovery that actually exceeds $100,000.
 11-2          Sec. 2254.107.  MIXED HOURLY AND CONTINGENT FEE CONTRACTS;
 11-3    REIMBURSEMENT FOR SUBCONTRACTED WORK. (a)  This section applies
 11-4    only to a contingent fee contract:
 11-5                (1)  under which the amount or payment of only part of
 11-6    the fee is contingent on the outcome of the matter for which the
 11-7    services were obtained, with the amount and payment of the
 11-8    remainder of the fee payable on a regular hourly rate basis without
 11-9    regard to the outcome of the matter; or
11-10                (2)  under which reimbursable expenses are incurred for
11-11    subcontracted legal or support services performed by a person who
11-12    is not a contracting attorney or a partner, shareholder, or
11-13    employee of a contracting attorney or law firm.
11-14          (b)  Sections 2254.106(a) and (e) apply to the contract
11-15    without regard to the expected or actual amount of recovery under
11-16    the contract.
11-17          (c)  The limitations prescribed by Section 2254.106 on the
11-18    amount of the contingent fee apply to the entire amount of the fee
11-19    under the contingent fee contract, including the part of the fee
11-20    the amount and payment of which is not contingent on the outcome of
11-21    the matter.
11-22          (d)  The limitations prescribed by Section 2254.108 on
11-23    payment of the fee apply only to payment of the contingent portion
11-24    of the fee.
11-25          Sec. 2254.108.  FEE PAYMENT AND EXPENSE REIMBURSEMENT.
11-26    (a)  Except as provided by Subsection (b), a contingent fee and a
 12-1    reimbursement of an expense under a contract with a state
 12-2    governmental entity is payable only from funds the legislature
 12-3    specifically appropriates to pay the fee or reimburse the expense.
 12-4    An appropriation to pay the fee or reimburse the expense must
 12-5    specifically describe the individual contract, or the class of
 12-6    contracts classified by subject matter, on account of which the fee
 12-7    is payable or expense is reimbursable.  A general reference to
 12-8    contingent fee contracts for legal services or to contracts subject
 12-9    to this subchapter or a similar general description is not a
12-10    sufficient description for purposes of this subsection.
12-11          (b)  If the legislature has not specifically appropriated
12-12    funds for paying the fee or reimbursing the expense, a state
12-13    governmental entity may pay the fee or reimburse the expense from
12-14    other available funds only if:
12-15                (1)  the legislature is not in session; and
12-16                (2)  the Legislative Budget Board gives its prior
12-17    approval for that payment or reimbursement under Section 69,
12-18    Article XVI, Texas Constitution, after examining the statement
12-19    required under Section 2254.104(c) and determining that the
12-20    requested payment and the contract under which payment is requested
12-21    meet all the requirements of this subchapter.
12-22          (c)  A payment or reimbursement under the contract may not be
12-23    made until:
12-24                (1)  final and unappealable arrangements have been made
12-25    for depositing all recovered funds to the credit of the appropriate
12-26    fund or account in the state treasury; and
 13-1                (2)  the state governmental entity and the state
 13-2    auditor have received from the contracting attorney or law firm the
 13-3    statement required under Section 2254.104(c).
 13-4          (d)  Litigation and other expenses payable under the
 13-5    contract, including expenses attributable to attorney, paralegal,
 13-6    accountant, expert, or other professional work performed by a
 13-7    person who is not a contracting attorney or a partner, shareholder,
 13-8    or employee of a contracting attorney or law firm, may be
 13-9    reimbursed only if the state governmental entity and the state
13-10    auditor determine that the expenses were reasonable, proper,
13-11    necessary, actually incurred on behalf of the state governmental
13-12    entity, and paid for by the contracting attorney or law firm.  The
13-13    contingent fee may not be paid until the state auditor has reviewed
13-14    the relevant time and expense records and verified that the hours
13-15    of work on which the fee computation is based were actually worked
13-16    in performing reasonable and necessary services for the state
13-17    governmental entity under the contract.
13-18          Sec. 2254.109.  EFFECT ON OTHER LAW.  (a)  This subchapter
13-19    does not limit the right of a state governmental entity to recover
13-20    fees and expenses from opposing parties under other law.
13-21          (b)  Compliance with this subchapter does not relieve a
13-22    contracting attorney or law firm of an obligation or responsibility
13-23    under other law, including under the Texas Disciplinary Rules of
13-24    Professional Conduct.
13-25          (c)  A state officer, employee, or governing body, including
13-26    the attorney general, may not waive the requirements of this
 14-1    subchapter or prejudice the interests of the state under this
 14-2    subchapter.  This subchapter does not waive the state's sovereign
 14-3    immunity from suit or its immunity from suit in federal court under
 14-4    the Eleventh Amendment to the federal constitution.
 14-5          SECTION 4.  This Act takes effect September 1, 1999, and the
 14-6    changes in law made by this Act apply only to a contract entered
 14-7    into on or after that date.
 14-8          SECTION 5.  The importance of this legislation and the
 14-9    crowded condition of the calendars in both houses create an
14-10    emergency and an imperative public necessity that the
14-11    constitutional rule requiring bills to be read on three several
14-12    days in each house be suspended, and this rule is hereby suspended.