By Duncan, et al. S.B. No. 598
76R6953 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to actions regarding certain computer date failures.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. FINDINGS AND PURPOSE. (a) Whereas, in the early
1-5 years of the computer and information technology industries,
1-6 programmers adopted conventions to use limited and expensive
1-7 computer memory and computer processing capacity as efficiently as
1-8 possible. Among those conventions was the widely adopted
1-9 representation of years by the last two digits of the year.
1-10 Programmers and designers of products containing computer
1-11 processors continued to use this convention for a variety of
1-12 reasons, including compatibility with existing products and
1-13 databases, the desire to save expenses by adapting existing
1-14 programs to new uses, and the anticipation that computers,
1-15 programs, and products would be replaced as outdated or obsolete
1-16 before 2000.
1-17 (b) Whereas, many computers, computer products, and computer
1-18 services are and will be unable to distinguish or process properly
1-19 dates with years beginning with 2000. That inability affects and
1-20 will affect the proper functioning of those computers, computer
1-21 products, and computer services and the ability of those products
1-22 to accurately process, store, receive, transmit, or in any way use
1-23 dates or date data, which is commonly referred to as the "Year
1-24 2000" or "Y2K" problem.
2-1 (c) Whereas, the economy of this state and the economic
2-2 well-being of its citizens have become increasingly dependent on
2-3 information technology and on the use, manufacture, and sale of
2-4 computers, computer products, and computer services.
2-5 (d) Whereas, the response by this state, its citizens, and
2-6 enterprises doing business in this state to the Year 2000 problem
2-7 will determine whether it disrupts substantially the state's
2-8 economy, causes significant or severe economic dislocation among
2-9 consumers, employees, and employers in this state, and impairs the
2-10 ability of state and local governments to provide services and to
2-11 protect and promote the safety and well-being of its citizens.
2-12 (e) Whereas, adverse consequences of the Year 2000 problem
2-13 to the state, its economy, and its citizens can be avoided or
2-14 minimized if users, sellers, manufacturers, and providers of
2-15 computers, computer products, and computer services all act to
2-16 identify problems and to develop and implement solutions before
2-17 harm occurs.
2-18 (f) Whereas, if harm occurs, the state and the well-being of
2-19 its citizens would be best served by prompt resolution of disputes.
2-20 Many disputes can be resolved through the early use of informal,
2-21 nonadversarial dispute resolution techniques. Litigation can be
2-22 expensive and prolonged for the parties and for the courts of the
2-23 state and its political subdivisions and should be used only as a
2-24 last resort if other efforts fail to resolve the dispute to the
2-25 mutual satisfaction of the parties.
2-26 (g) Therefore, this Act adopts reasonable and necessary
2-27 measures to protect and advance the interests of this state, the
3-1 well-being of its citizens, and the health of its economy.
3-2 (h) Further, the purposes of this Act are:
3-3 (1) to protect and promote the well-being of the
3-4 citizens of this state, the health of the state's economy, and the
3-5 ability of state and local governments to provide services by
3-6 avoiding or mitigating the adverse consequences that may result
3-7 from the Year 2000 problem;
3-8 (2) to establish legal incentives that encourage
3-9 users, sellers, manufacturers, and providers of computers, computer
3-10 products, and computer services to identify Year 2000 problems
3-11 early, develop and implement solutions before harm occurs, and
3-12 resolve disputes promptly;
3-13 (3) to encourage parties to resolve disputes through
3-14 informal, nonadversarial means before litigation;
3-15 (4) to discourage litigation or the threat of
3-16 litigation based on speculative theories of recovery or seeking
3-17 damages that are not objectively verifiable, which burdens the
3-18 judicial system and depletes or diverts financial and human
3-19 resources that could be used more productively to solve Year 2000
3-20 problems; and
3-21 (5) to preserve the rights of the citizens of this
3-22 state to seek damages for bodily injury and wrongful death by
3-23 excluding those actions from the scope of this legislation.
3-24 SECTION 2. Title 6, Civil Practice and Remedies Code, is
3-25 amended by adding Chapter 147 to read as follows:
3-26 CHAPTER 147. YEAR 2000 COMPUTER DATE FAILURE
3-27 SUBCHAPTER A. GENERAL PROVISIONS
4-1 Sec. 147.001. DEFINITIONS. In this chapter:
4-2 (1) "Action" means a cause of action to which this
4-3 chapter applies.
4-4 (2) "Claimant" means a party seeking recovery of
4-5 damages, including a plaintiff, counterclaimant, cross-claimant, or
4-6 third-party plaintiff.
4-7 (3) "Computer product" means a computer, computer
4-8 network, computer program, computer software, computer system,
4-9 microprocessor, embedded computer chip, any component of any of
4-10 those items, or a product that includes any of those items as a
4-11 component of the product.
4-12 (4) "Computer service product" means the product of
4-13 the use of a computer, including uses related to data processing
4-14 and storage. The term includes information stored in the computer
4-15 by personnel supporting the computer.
4-16 (5) "Defendant" means a party from whom a claimant
4-17 seeks recovery of damages.
4-18 (6) "Year 2000 Project Office website" means the Texas
4-19 Year 2000 Project Office website administered by the Department of
4-20 Information Resources. The Internet address of the website is
4-21 www.dir.state.tx.us/y2k.
4-22 Sec. 147.002. ACTION FOR COMPUTER DATE FAILURE. Subject to
4-23 Section 147.004 and regardless of the legal theory, statute, or
4-24 cause of action on which the action is based, including an action
4-25 based in tort, contract, or breach of an express or implied
4-26 warranty, this chapter applies only to an action in which a
4-27 claimant seeks recovery of damages or any other relief for harm
5-1 caused by:
5-2 (1) a computer date failure as described by Section
5-3 147.003; and
5-4 (2) the failure to properly detect, disclose, prevent,
5-5 report, correct, cure, or remediate a computer date failure as
5-6 described by Section 147.003.
5-7 Sec. 147.003. COMPUTER DATE FAILURE. A computer date
5-8 failure is the inability to correctly process, recognize, store,
5-9 receive, transmit or in any way use:
5-10 (1) dates containing the year 2000; or
5-11 (2) dates in a four-digit format.
5-12 Sec. 147.004. APPLICABILITY. This chapter does not apply to
5-13 an action:
5-14 (1) for wrongful death or bodily injury;
5-15 (2) to collect workers' compensation benefits under
5-16 the workers' compensation laws of this state; or
5-17 (3) to enforce the terms of a written agreement or to
5-18 seek contractual remedies for breach of an agreement that provides
5-19 for liability and damages for a computer date failure.
5-20 Sec. 147.005. DUTY OR ACTION NOT CREATED. (a) This chapter
5-21 does not create a duty.
5-22 (b) This chapter does not create a cause of action.
5-23 Sec. 147.006. IMMUNITY NOT AFFECTED. This chapter does not
5-24 expand or limit the immunity of a person under any other law or
5-25 statute providing immunity.
5-26 Sec. 147.007. INSURANCE CONTRACT NOT AFFECTED. This chapter
5-27 does not affect the rights or obligations of parties under a
6-1 contract of insurance.
6-2 Sec. 147.008. SOVEREIGN IMMUNITY NOT WAIVED. This chapter
6-3 does not waive sovereign immunity of the state or of a political
6-4 subdivision of the state.
6-5 (Sections 147.009-147.040 reserved for expansion
6-6 SUBCHAPTER B. PREREQUISITES TO BRINGING ACTION
6-7 Sec. 147.041. LIMITATIONS PERIOD. (a) An action must be
6-8 brought not later than two years after the date the computer date
6-9 failure first caused the harm that is the subject matter of the
6-10 action.
6-11 (b) This section does not extend the limitations period
6-12 within which an action for harm caused by a computer date failure
6-13 may be commenced under any other law or revive a claim that is
6-14 barred by the operation of any other law.
6-15 Sec. 147.042. REPOSE. (a) Except as provided by Subsection
6-16 (b), a claimant must commence an action against a manufacturer or
6-17 seller of a computer product or computer service product before the
6-18 end of 15 years after the date of the sale by the defendant.
6-19 (b) If a manufacturer or seller expressly represented that
6-20 the computer product or computer service product would not manifest
6-21 the computer date failure, this section does not apply.
6-22 (c) This section does not reduce a limitations period that
6-23 applies to an action that accrues before the end of the limitations
6-24 period under this section.
6-25 (d) This section does not extend the limitations period
6-26 within which an action may be commenced under any other law.
6-27 Sec. 147.043. DISABILITY. Section 16.001 applies to the
7-1 periods of limitation and repose established by this subchapter.
7-2 Sec. 147.044. NOTICE. (a) A claimant may not commence an
7-3 action unless the claimant gave notice to the defendant before the
7-4 60th day preceding the date the action commences.
7-5 (b) If the 60-day notice requirement under Subsection (a)
7-6 would prevent commencing the action before the expiration of the
7-7 period of limitation or repose, the claimant may commence the
7-8 action if the claimant gave notice to the defendant before the 30th
7-9 day preceding the date the action commences.
7-10 (c) If the action is a counterclaim, cross-claim, or
7-11 third-party action, the claimant must give notice to the defendant
7-12 before the 31st day after the date of service on the defendant.
7-13 (d) The notice must:
7-14 (1) be in writing;
7-15 (2) identify the claimant;
7-16 (3) describe in reasonable detail the computer date
7-17 failure and the harm caused by the failure; and
7-18 (4) include a specific statement of the amount of the
7-19 damages claimed or the remedy sought.
7-20 Sec. 147.045. NOTICE STAYS PROCEEDINGS. All proceedings in
7-21 the action are stayed for 60 days following the date the defendant
7-22 received the notice under Section 147.044.
7-23 Sec. 147.046. FAILURE TO GIVE NOTICE. (a) On motion of the
7-24 defendant that the claimant did not give the notice under Section
7-25 147.044, the court shall:
7-26 (1) abate the action; and
7-27 (2) require the claimant to give the notice before the
8-1 31st day after the date of the order of abatement.
8-2 (b) The court shall dismiss the claimant's action if the
8-3 claimant does not give notice as required by Subsection (a)(2).
8-4 Sec. 147.047. INSPECTION. (a) A person receiving notice
8-5 under Section 147.044 may inspect a computer product or computer
8-6 service product that is subject to the claimant's control to assess
8-7 the nature, scope, and consequences of the computer date failure.
8-8 (b) The inspection must be conducted in a reasonable manner
8-9 and at a reasonable time and place.
8-10 Sec. 147.048. OFFER TO SETTLE. (a) A defendant receiving
8-11 notice under Section 147.044 may offer to settle the claim. The
8-12 offer may include an offer to cure or correct the computer date
8-13 failure.
8-14 (b) The offer must be accepted by the claimant not later
8-15 than the 30th day after the date the offer is made or the offer is
8-16 rejected.
8-17 (c) A defendant may file a rejected offer to settle with the
8-18 court with an affidavit certifying its rejection.
8-19 (d) If the court finds that the amount tendered in a
8-20 rejected offer to settle filed with the court is the same as,
8-21 substantially the same as, or more than the damages found by the
8-22 trier of fact, the claimant may not recover any amount in excess of
8-23 the lesser of:
8-24 (1) the amount of damages tendered in the settlement
8-25 offer; or
8-26 (2) the amount of damages found by the trier of fact.
8-27 (e) Subsection (d) does not apply if the court finds that
9-1 the defendant making the offer:
9-2 (1) could not perform the offer when the offer was
9-3 made; or
9-4 (2) substantially misrepresented the value of the
9-5 offer.
9-6 (Sections 147.049-147.080 reserved for expansion
9-7 SUBCHAPTER C. AFFIRMATIVE DEFENSES TO LIABILITY
9-8 Sec. 147.081. AFFIRMATIVE DEFENSE: GOOD FAITH EFFORT TO
9-9 CURE OR CORRECT. It is an affirmative defense to liability in an
9-10 action if:
9-11 (1) the claimant was notified in the manner provided
9-12 by Section 147.082 that the computer product or computer service
9-13 product may manifest computer date failure;
9-14 (2) the claimant was offered a cure or correction for
9-15 the computer date failure at no additional charge to the claimant
9-16 other than reasonable and customary charges for delivering and
9-17 installing the product or items needed to make the cure; and
9-18 (3) the offered cure or correction would have avoided
9-19 the harm to the claimant caused by the computer date failure.
9-20 Sec. 147.082. NOTICE. (a) Notice under Section 147.081
9-21 must:
9-22 (1) identify the computer product or computer service
9-23 product that manifests or may manifest a computer date failure;
9-24 (2) explain how a cure or correction to the computer
9-25 product or computer service product may be obtained;
9-26 (3) state that there is no additional charge for the
9-27 cure or correction other than reasonable and customary charges for
10-1 delivering and installing the product or items needed to make the
10-2 cure, if any, to obtain the cure or correction; and
10-3 (4) inform the recipient that failure to accept the
10-4 offer of a cure or correction could affect the recipient's rights
10-5 to recover damages for a computer date failure.
10-6 (b) Notice under Section 147.081 must be received by the
10-7 claimant before the beginning of the longer of the following
10-8 periods:
10-9 (1) the 90th day before the date the claimant suffers
10-10 harm from the computer date failure; or
10-11 (2) the time needed to order, deliver, and install the
10-12 correction to the product or service before the claimant suffers
10-13 harm from the computer date failure.
10-14 (c) The defendant may satisfy the notice requirement under
10-15 Section 147.081 by showing that:
10-16 (1) the defendant delivered notice within the period
10-17 provided by this section; or
10-18 (2) the claimant actually received notice within the
10-19 period provided by this section.
10-20 (d) There is a rebuttable presumption that notice has been
10-21 delivered to a claimant if the Year 2000 Project Office website
10-22 provides access to a website or other source of information from
10-23 which a person may obtain the information required by this section
10-24 relating to a cure or correction for the computer date failure.
10-25 The presumption may be rebutted by credible evidence that the
10-26 claimant did not receive notice.
10-27 Sec. 147.083. NOTICE ON YEAR 2000 PROJECT OFFICE WEBSITE.
11-1 (a) A person who provides information to the Year 2000 Project
11-2 Office website to satisfy the requirements of Section 147.082 is
11-3 responsible for the accuracy of the person's information posted on
11-4 the website.
11-5 (b) A person is not subject to the jurisdiction of the state
11-6 courts solely on the basis that the person has provided information
11-7 for posting on the Year 2000 Project Office website.
11-8 (c) The state is not liable for any damages arising from:
11-9 (1) operation of the Year 2000 Project Office website;
11-10 or
11-11 (2) reliance on the accuracy of the information on the
11-12 Year 2000 Project Office website.
11-13 (d) The Department of Information Resources in its Year 2000
11-14 Project Office website shall provide for the posting of information
11-15 and the creating of links to other websites to facilitate the
11-16 posting of notice.
11-17 (e) The Department of Information Resources shall establish
11-18 a toll-free telephone number for persons who are unable to access
11-19 the Internet to provide to those persons information relating to a
11-20 cure or correction for computer date failure posted on or linked to
11-21 the Year 2000 Project Office website.
11-22 Sec. 147.084. AFFIRMATIVE DEFENSE: RELIANCE. (a) In an
11-23 action for fraud, misrepresentation, disparagement, libel, or other
11-24 similar action based on the alleged falsity or misleading character
11-25 of a computer date statement or an express warranty, it is an
11-26 affirmative defense to liability that the defendant:
11-27 (1) reasonably relied on the computer date statement
12-1 or express warranty of an independent, upstream manufacturer or
12-2 seller of the computer product or computer service product that the
12-3 computer product or computer service product would not manifest
12-4 computer date failure; and
12-5 (2) did not have actual knowledge that the statement
12-6 or warranty was not true.
12-7 (b) In this section, "computer date statement" means a
12-8 material statement about a computer product or computer service
12-9 product regarding the present or future ability of a computer
12-10 product in relation to avoiding computer date failure, including a
12-11 statement that a computer product or computer service product:
12-12 (1) is "Year 2000 Compliant" or a similar
12-13 representation; or
12-14 (2) complies with a computer date standard established
12-15 by a state or federal regulatory agency or by a national or
12-16 international service organization.
12-17 Sec. 147.085. ADMISSIBILITY OF STATEMENT RELATING TO
12-18 COMPUTER DATE FAILURE. (a) The following are not admissible to
12-19 prove liability for computer date failure:
12-20 (1) an offer to settle under Section 147.048;
12-21 (2) notice required under Section 147.081(1);
12-22 (3) except as provided by Subsection (b), evidence of
12-23 furnishing or offering or promising to furnish a correction or cure
12-24 for a present or future computer date failure; or
12-25 (4) except as provided by Subsection (c), a statement
12-26 made in the process of correcting, curing, or attempting to correct
12-27 or cure a present or future computer date failure.
13-1 (b) Evidence of furnishing or offering or promising to
13-2 furnish a correction or cure for a present or future computer date
13-3 failure is admissible to the extent it is evidence of a guarantee
13-4 or warranty of the correction or cure and the claim is for breach
13-5 of the guarantee or warranty.
13-6 (c) A statement made in the process of correcting, curing,
13-7 or attempting to correct or cure a present or future computer date
13-8 failure is admissible if:
13-9 (1) the statement is false;
13-10 (2) the statement is made with knowledge that it is
13-11 false; and
13-12 (3) the claimant relied on the statement to the
13-13 claimant's detriment.
13-14 (Sections 147.086-147.120 reserved for expansion
13-15 SUBCHAPTER D. DAMAGES
13-16 Sec. 147.121. DAMAGE LIMITATIONS APPLY ONLY IF DEFENDANT
13-17 SHOWS GOOD FAITH EFFORT TO CURE OR CORRECT. The limitations on the
13-18 recovery of damages established by Section 147.122 apply to a
13-19 defendant only if the defendant can show a good faith effort to
13-20 cure or correct the claimant's possible computer date failure
13-21 problem in the manner described by Section 147.081.
13-22 Sec. 147.122. DAMAGES NOT RECOVERABLE. (a) Subject to
13-23 Section 147.121, a claimant may not recover the following damages
13-24 in an action:
13-25 (1) damages for mental anguish, physical pain, loss of
13-26 consortium, disfigurement, physical impairment, or loss of
13-27 companionship;
14-1 (2) exemplary or punitive damages unless the trier of
14-2 fact finds the conduct of the defendant was committed with fraud or
14-3 malice;
14-4 (3) additional damages under Section 17.50(b)(1),
14-5 Business & Commerce Code, unless the trier of fact finds the
14-6 conduct of the defendant was committed with fraud or malice; or
14-7 (4) consequential damages, unless they were reasonably
14-8 foreseeable.
14-9 (b) In this section:
14-10 (1) "Fraud" means fraud other than constructive fraud.
14-11 (2) "Malice" means a specific intent by the defendant
14-12 to cause substantial injury to the claimant.
14-13 Sec. 147.123. DUTY TO MITIGATE DAMAGES. A claimant in an
14-14 action may not recover damages for harm that the claimant, in the
14-15 exercise of reasonable care, could have avoided or mitigated.
14-16 SECTION 3. Subchapter C, Chapter 101, Civil Practice and
14-17 Remedies Code, is amended by adding Section 101.066 to read as
14-18 follows:
14-19 Sec. 101.066. COMPUTER DATE FAILURE. This chapter does not
14-20 apply to a claim for harm caused by a computer date failure as
14-21 described by Section 147.003.
14-22 SECTION 4. The Department of Information Resources shall
14-23 perform its duties under Sections 147.083(d) and (e), Civil
14-24 Practice and Remedies Code, as added by this Act, before the 31st
14-25 day after the effective date of this Act.
14-26 SECTION 5. This Act applies to a civil action commenced on
14-27 or after the effective date of this Act. An action commenced
15-1 before the effective date of this Act is governed with respect to
15-2 the subject matter of this Act by the applicable law in effect
15-3 immediately before that date, and that law is continued in effect
15-4 for that purpose.
15-5 SECTION 6. The importance of this legislation and the
15-6 crowded condition of the calendars in both houses create an
15-7 emergency and an imperative public necessity that the
15-8 constitutional rule requiring bills to be read on three several
15-9 days in each house be suspended, and this rule is hereby suspended.