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.