1-1     By:  Ratliff                                           S.B. No. 532
 1-2           (In the Senate - Filed February 16, 1999; February 17, 1999,
 1-3     read first time and referred to Committee on Economic Development;
 1-4     April 22, 1999, reported favorably by the following vote:  Yeas 4,
 1-5     Nays 0; April 22, 1999, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to the awarding of litigation costs in certain civil
 1-9     actions.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Subtitle C, Title 2, Civil Practice and Remedies
1-12     Code, is amended by adding Chapter 42 to read as follows:
1-13         CHAPTER 42.  LITIGATION COSTS FOLLOWING AN OFFER TO SETTLE
1-14                      SUBCHAPTER A.  GENERAL PROVISIONS
1-15           Sec. 42.001.  DEFINITIONS.  In this chapter:
1-16                 (1)  "Claim" means a claim to recover monetary damages
1-17     or for other relief, including a counterclaim, cross-claim, or
1-18     third-party claim.  The term does not include a claim for
1-19     injunctive relief or for litigation costs.
1-20                 (2)  "Claimant" means a person making a claim.
1-21                 (3)  "Defendant" means a person from whom a claimant
1-22     seeks recovery of damages on a claim, including a counterdefendant,
1-23     cross-defendant, or third-party defendant.
1-24                 (4)  "Litigation costs" means costs actually incurred
1-25     that are directly related to preparing an action for trial and
1-26     actual trial expenses, including:
1-27                       (A)  attorney's fees;
1-28                       (B)  costs of court;
1-29                       (C)  reasonable deposition costs; and
1-30                       (D)  reasonable fees for not more than two expert
1-31     witnesses.
1-32                 (5)  "Offer to settle" means an offer to settle or
1-33     compromise a claim made in compliance with Section 42.021.
1-34           Sec. 42.002.  APPLICABILITY AND EFFECT.  (a)  This chapter
1-35     does not apply to:
1-36                 (1)  a class action;
1-37                 (2)  a shareholder's derivative action;
1-38                 (3)  an action brought under the Deceptive Trade
1-39     Practices-Consumer Protection Act (Sections 17.41 et seq., Business
1-40     & Commerce Code);
1-41                 (4)  an action brought under the Family Code;
1-42                 (5)  an action to collect workers' compensation
1-43     benefits under Subtitle A, Title 5, Labor Code; or
1-44                 (6)  an action for which another statute specifically
1-45     authorizes recovery of attorney's fees or litigation costs by the
1-46     prevailing party.
1-47           (b)  This chapter does not limit or affect the ability of any
1-48     person to make an offer to settle or compromise a claim that does
1-49     not comply with this chapter.  A party's offer to settle or
1-50     compromise that does not comply with Section 42.021 does not
1-51     entitle the party to recover litigation costs under this chapter.
1-52           Sec. 42.003.  ELECTION BY GOVERNMENTAL UNITS; WAIVER.
1-53     (a)  This chapter does not apply to an action by or against the
1-54     state, any unit of state government, or any political subdivision
1-55     of the state unless the governmental unit expressly elects both to
1-56     seek recovery of litigation costs under this chapter and to waive
1-57     immunity from liability for litigation costs awarded under this
1-58     chapter.
1-59           (b)  To be effective as an election and waiver, the
1-60     governmental unit must make the election and waiver specifically
1-61     and affirmatively by a writing filed with the court within 45 days
1-62     of the filing of the governmental unit's original petition or
1-63     original answer.
1-64           (c)  An election and waiver is effective only in the action
 2-1     in which it is filed, even if the action is subsequently joined or
 2-2     consolidated with another action.
 2-3           Sec. 42.004.  MODIFICATION OF TIME LIMITS.  A court may
 2-4     modify the time limits specified in this chapter in an order issued
 2-5     following a pretrial conference directed pursuant to Rule 166,
 2-6     Texas Rules of Civil Procedure.
 2-7           Sec. 42.005.  SERVICE.  When this chapter requires a writing
 2-8     to be served on another party, service is adequate if it is
 2-9     performed in a manner described in Rule 21a, Texas Rules of Civil
2-10     Procedure.
2-11             (Sections 42.006 to 42.020 reserved for expansion
2-12           SUBCHAPTER B.  OFFER TO SETTLE; AWARDING LITIGATION COSTS
2-13           Sec. 42.021.  OFFER TO SETTLE.  (a)  A party may serve on an
2-14     opposing party an offer to settle all the claims in the action
2-15     between that party and the opposing party.
2-16           (b)  The offer to settle:
2-17                 (1)  must be in writing;
2-18                 (2)  must state that it is an offer to settle under
2-19     this section;
2-20                 (3)  must specify the terms by which the claims may be
2-21     settled;
2-22                 (4)  must specify a deadline by which the offer must be
2-23     accepted;
2-24                 (5)  may not include a demand for litigation costs
2-25     except for costs of court;
2-26                 (6)  must offer to allow a judgment to be entered
2-27     consistent with the terms of the offer; and
2-28                 (7)  must be served on the party to whom the offer is
2-29     made.
2-30           (c)  A party may not make an offer to settle a claim under
2-31     this section until the 45th day after the date the defendant filed
2-32     the first responsive pleading to the claim.
2-33           (d)  A party may not make an offer to settle under this
2-34     section after the 10th day before the date set for trial, except
2-35     that a party may make an offer to settle that is a counteroffer on
2-36     or before the seventh day before the date set for trial.
2-37           (e)  The parties are not required to file with the court an
2-38     offer to settle.
2-39           Sec. 42.022.  ACCEPTANCE OF OFFER.  (a)  A party may accept
2-40     an offer to settle on or before 5:00 p.m. on the 14th day after the
2-41     date the party received the offer to settle or before the deadline
2-42     specified in the offer, whichever is later.
2-43           (b)  Acceptance of an offer must be:
2-44                 (1)  in writing; and
2-45                 (2)  served on the party who made the offer.
2-46           Sec. 42.023.  WITHDRAWING AN OFFER.  (a)  A party may
2-47     withdraw an offer to settle by a writing served on the party to
2-48     whom the offer was made before the party accepts the offer.  A
2-49     party may not accept an offer to settle after it is withdrawn.  A
2-50     party may not withdraw an offer to settle after it has been
2-51     accepted.
2-52           (b)  If a party withdraws an offer to settle, that offer does
2-53     not entitle the party to recover litigation costs.
2-54           Sec. 42.024.  REJECTION OF OFFER.  For purposes of this
2-55     chapter, an offer to settle a claim is rejected if:
2-56                 (1)  the party to whom the offer was made rejects the
2-57     offer by a writing served on the party making the offer; or
2-58                 (2)  the offer is not withdrawn and is not accepted
2-59     before the deadline for accepting the offer.
2-60           Sec. 42.025.  AWARD OF LITIGATION COSTS.  (a)  A party who
2-61     made an offer to settle the claims between that party and the party
2-62     to whom the offer was made may recover litigation costs provided:
2-63                 (1)  the offer to settle was rejected;
2-64                 (2)  the claims were tried, proceeded to a verdict, and
2-65     the court entered a judgment on the claims;
2-66                 (3)  if a party sought monetary damages:
2-67                       (A)  the amount of monetary damages awarded on
2-68     the claims in the judgment is more favorable to the party who made
2-69     the offer than the offer to settle the claims; and
 3-1                       (B)  the difference between the amount of
 3-2     monetary damages awarded on the claims in the judgment and the
 3-3     amount of the offer to settle the claims is equal to or greater
 3-4     than 10 percent of the amount of the offer to settle the claims;
 3-5     and
 3-6                 (4)  if a party sought nonmonetary relief, the judgment
 3-7     is as favorable or more favorable to the party who made the offer
 3-8     to settle the claims.
 3-9           (b)  Litigation costs awarded to a party under this section
3-10     shall include only those costs incurred by the party who made the
3-11     offer to settle after the rejection of the earliest offer to settle
3-12     which, if it had been accepted, would have been more favorable to
3-13     the person who rejected the offer than the judgment.
3-14           (c)  Each element of litigation costs awarded under this
3-15     chapter must be both reasonable and necessary to the prosecution or
3-16     defense of the action.
3-17           (d)  The court may review and reduce an award of litigation
3-18     costs as justice requires.
3-19           Sec. 42.026.  AMOUNT OF ATTORNEY'S FEES.  (a)  A party may
3-20     not recover attorney's fees as litigation costs under this chapter
3-21     unless the party was represented by an attorney.
3-22           (b)  The court shall limit the amount of attorney's fees
3-23     included in litigation costs awarded to a claimant against a
3-24     defendant under this chapter to one-third of the amount of damages
3-25     recovered by the claimant from the defendant on the claims that
3-26     were the subject of the offer to settle.
3-27           (c)  The court shall limit the amount of attorney's fees
3-28     included in litigation costs awarded to a defendant against a
3-29     claimant under this chapter to one-third of the amount of damages
3-30     sought by the claimant against the defendant at the time the
3-31     claimant rejected the offer to settle.
3-32           Sec. 42.027.  LIMITATION ON LITIGATION COSTS.  The amount of
3-33     litigation costs awarded  against the claimant in an action for
3-34     personal injury or death may not exceed the amount of the damages
3-35     recovered by the claimant in the action.
3-36           Sec. 42.028.  EVIDENCE NOT ADMISSIBLE.  (a)  Evidence
3-37     relating to offers to settle is not admissible except in an action
3-38     to enforce the settlement or in a proceeding to obtain litigation
3-39     costs under this chapter.
3-40           (b)  Except in an action or proceeding described in
3-41     Subsection (a), the provisions of this chapter may not be made
3-42     known to the jury through any means, including voir dire,
3-43     introduction into evidence, instruction, or argument.
3-44           SECTION 2.  This Act takes effect September 1, 1999, and
3-45     applies only to a civil action described by Chapter 42, Civil
3-46     Practice and Remedies Code, as added by this Act, commenced on or
3-47     after the effective date of this Act.  An action that commenced
3-48     before the effective date of this Act is governed by the law in
3-49     effect immediately before that date, and that law is continued in
3-50     effect for that purpose.
3-51           SECTION 3.  The importance of this legislation and the
3-52     crowded condition of the calendars in both houses create an
3-53     emergency and an imperative public necessity that the
3-54     constitutional rule requiring bills to be read on three several
3-55     days in each house be suspended, and this rule is hereby suspended.
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