By Wentworth S.B. No. 924
76R7832 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to liability for loss caused by the use of controlled
1-3 substances.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle C, Title 6, Health and Safety Code, is
1-6 amended by adding Chapter 486 to read as follows:
1-7 CHAPTER 486. LIABILITY FOR DISTRIBUTION
1-8 OF CONTROLLED SUBSTANCES
1-9 Sec. 486.001. DEFINITIONS. In this chapter:
1-10 (1) "Claimant" means a party, including a plaintiff,
1-11 counterclaimant, cross-claimant, or third-party claimant, seeking
1-12 recovery of damages.
1-13 (2) "Controlled substance" has the meaning assigned by
1-14 Section 481.002.
1-15 (3) "Defendant" means a party, including a
1-16 counterdefendant, cross-defendant, or third-party defendant, from
1-17 whom a claimant seeks damages under this chapter.
1-18 (4) "Deliver" has the meaning assigned by
1-19 Section 481.002.
1-20 (5) "Marihuana" has the meaning assigned by
1-21 Section 481.002.
1-22 Sec. 486.002. PERSONS WHO MAY BRING ACTION. (a) A claimant
1-23 may recover damages under this chapter for personal injury, death,
1-24 or property damage caused by an individual's use of a controlled
2-1 substance in violation of the law if the claimant:
2-2 (1) is a parent, legal guardian, child, spouse, or
2-3 sibling of the individual who used the controlled substance,
2-4 including a child exposed to a controlled substance in utero;
2-5 (2) is an employer of the individual who used the
2-6 controlled substance;
2-7 (3) has paid for or is liable to pay for, under a
2-8 contract of insurance or otherwise, medical services relating to
2-9 the use of the controlled substance, including drug treatment or
2-10 employee assistance services, for the individual who used the
2-11 controlled substance;
2-12 (4) has provided or is liable to provide medical
2-13 services relating to the use of the controlled substance, including
2-14 drug treatment or employee assistance services, to the individual
2-15 who used the controlled substance; or
2-16 (5) is injured as a result of a wilful, reckless, or
2-17 negligent act or omission of the individual who used the controlled
2-18 substance, if that act or omission was:
2-19 (A) committed while the individual was under the
2-20 influence of a controlled substance; or
2-21 (B) otherwise related to the use of a controlled
2-22 substance.
2-23 (b) An individual who used a controlled substance may
2-24 recover damages under this chapter for personal injury, death, or
2-25 property damage caused by the individual's use of a controlled
2-26 substance only to the extent authorized by Section 486.004.
2-27 (c) Notwithstanding Subsection (a)(4), an agency of local,
3-1 state, or federal government, other than a medical facility
3-2 operated by an agency of local, state, or federal government that
3-3 has provided medical services, may not bring a cause of action
3-4 under this chapter. A cause of action under this chapter may not
3-5 be assigned, directly or indirectly, to an agency of local, state,
3-6 or federal government, and an agency of local, state, or federal
3-7 government does not have any right to subrogation of a cause of
3-8 action under this chapter.
3-9 Sec. 486.003. PERSONS WHO MAY BE HELD LIABLE. (a) Except
3-10 as provided by Section 486.004, a claimant may recover damages
3-11 from:
3-12 (1) a person who, in violation of law, knowingly
3-13 delivered a controlled substance to the individual who used the
3-14 controlled substance; or
3-15 (2) a person who knowingly participated in the illegal
3-16 drug market in this state if:
3-17 (A) the person's participation in the illegal
3-18 drug market:
3-19 (i) related to a specified controlled
3-20 substance used by the individual who used the controlled substance;
3-21 (ii) occurred in the county in which the
3-22 individual used the controlled substance; and
3-23 (iii) occurred during the period the
3-24 individual used the controlled substance; and
3-25 (B) the person has been convicted of an offense
3-26 for an act described by Paragraph (A), without regard to whether
3-27 the act occurred during a period described by Paragraph (A)(iii).
4-1 (b) For purposes of this section, a person knowingly
4-2 participates in the illegal drug market if the person manufactures
4-3 or delivers a controlled substance, possesses a controlled
4-4 substance with the intent to manufacture or deliver, or delivers or
4-5 possesses marihuana in violation of Subchapter D, Chapter 481. The
4-6 phrase does not include possession of a controlled substance for
4-7 personal use only.
4-8 Sec. 486.004. CAUSE OF ACTION. (a) An individual who used
4-9 a controlled substance in violation of the law may recover damages
4-10 under this chapter only if:
4-11 (1) the individual personally discloses to a law
4-12 enforcement authority any information known to the individual
4-13 regarding the individual's sources of controlled substances;
4-14 (2) the individual has not used any controlled
4-15 substance in violation of law after the 30th day before the date on
4-16 which the suit is filed; and
4-17 (3) the individual does not use any controlled
4-18 substance in violation of law during the pendency of the action.
4-19 (b) An individual who used a controlled substance in
4-20 violation of the law may bring an action under this chapter only
4-21 against a person described in Section 486.003(a)(1).
4-22 (c) An individual who used a controlled substance in
4-23 violation of the law may not recover damages for noneconomic loss
4-24 or exemplary damages described by Section 486.005(1)(B) or (2).
4-25 Sec. 486.005. DAMAGES. Subject to Section 486.006 and
4-26 except as provided by Section 486.004(c), a claimant may recover:
4-27 (1) compensatory damages, including damages for:
5-1 (A) economic loss proximately caused by the use
5-2 of the controlled substance, including:
5-3 (i) the cost of treatment and
5-4 rehabilitation;
5-5 (ii) medical expenses;
5-6 (iii) loss of economic or educational
5-7 potential;
5-8 (iv) loss of productivity;
5-9 (v) loss associated with absences from
5-10 school or work;
5-11 (vi) loss associated with accident or
5-12 injury; and
5-13 (vii) expenses for necessary support; and
5-14 (B) noneconomic loss proximately caused by the
5-15 use of the controlled substance, including:
5-16 (i) physical and emotional pain;
5-17 (ii) suffering;
5-18 (iii) physical impairment;
5-19 (iv) emotional distress;
5-20 (v) mental anguish;
5-21 (vi) loss associated with disfigurement;
5-22 (vii) loss of enjoyment; and
5-23 (viii) loss of companionship, services,
5-24 and consortium;
5-25 (2) exemplary damages under Chapter 41, Civil Practice
5-26 and Remedies Code;
5-27 (3) reasonable attorney's fees; and
6-1 (4) costs, including reasonable expert witness fees.
6-2 Sec. 486.006. LIMITATION ON DAMAGES; PROPORTIONATE
6-3 RESPONSIBILITY. (a) A person described by Section 486.003(a)(2)
6-4 is liable only for:
6-5 (1) 25 percent of the claimant's damages, if the
6-6 offense for which the person was convicted involved:
6-7 (A) delivery of less than 1 ounce of a
6-8 controlled substance other than marihuana;
6-9 (B) manufacture or possession with the intent to
6-10 manufacture or deliver of less than 4 ounces of a controlled
6-11 substance other than marihuana;
6-12 (C) delivery of more than 28.5 grams but less
6-13 than 1 pound of marihuana;
6-14 (D) possession of at least 4 ounces but less
6-15 than 4 pounds of marihuana; or
6-16 (E) possession of at least 25 but fewer than 50
6-17 marihuana plants;
6-18 (2) 50 percent of the claimant's damages, if the
6-19 offense for which the person was convicted involved:
6-20 (A) delivery of at least 1 ounce but less than 2
6-21 ounces of a controlled substance other than marihuana;
6-22 (B) manufacture or possession with the intent to
6-23 manufacture or deliver of at least 4 ounces but less than 8 ounces
6-24 of a controlled substance other than marihuana;
6-25 (C) delivery of at least 1 pound but less than 5
6-26 pounds of marihuana;
6-27 (D) possession of at least 4 pounds but less
7-1 than 8 pounds of marihuana; or
7-2 (E) possession of at least 50 but fewer than 75
7-3 marihuana plants;
7-4 (3) 75 percent of the claimant's damages, if the
7-5 offense for which the person was convicted involved:
7-6 (A) delivery of at least 2 ounces but less than
7-7 4 ounces of a controlled substance other than marihuana;
7-8 (B) manufacture or possession with the intent to
7-9 manufacture or deliver of at least 8 ounces but less than 16 ounces
7-10 of a controlled substance other than marihuana;
7-11 (C) delivery of at least 5 pounds but less than
7-12 10 pounds of marihuana;
7-13 (D) possession of at least 8 pounds but less
7-14 than 16 pounds of marihuana; or
7-15 (E) possession of at least 75 but fewer than 100
7-16 marihuana plants; or
7-17 (4) 100 percent of the claimant's damages, if the
7-18 offense for which the person was convicted involved:
7-19 (A) delivery of at least 4 ounces of a
7-20 controlled substance other than marihuana;
7-21 (B) manufacture or possession with the intent to
7-22 manufacture or deliver of at least 16 ounces of a controlled
7-23 substance other than marihuana;
7-24 (C) delivery of at least 10 pounds of marihuana;
7-25 (D) possession of at least 16 pounds of
7-26 marihuana; or
7-27 (E) possession of at least 100 marihuana plants.
8-1 (b) In determining a person's percentage of liability under
8-2 this section, a person who is convicted of more than one offense
8-3 described by Subsections (a)(1)-(4) is liable as if only one
8-4 offense had been committed. If the offenses committed by the
8-5 person are described by different subdivisions, the person's
8-6 percentage of liability is the highest percentage for which the
8-7 person could be liable under a single subdivision.
8-8 (c) Chapter 33, Civil Practice and Remedies Code, does not
8-9 apply to a claim brought under this chapter by a person other than
8-10 the individual who used a controlled substance in violation of the
8-11 law.
8-12 (d) Chapter 33, Civil Practice and Remedies Code, applies to
8-13 a claim brought by the individual who used a controlled substance
8-14 in violation of the law under this chapter, except Section 33.001,
8-15 Civil Practice and Remedies Code, does not apply to the claim.
8-16 After a claimant's percentage of responsibility is determined under
8-17 Section 33.003, Civil Practice and Remedies Code, the court shall
8-18 reduce the amount of damages that would be recoverable by the
8-19 claimant under Subsection (a) by a percentage equal to the
8-20 claimant's percentage of responsibility, in accordance with Section
8-21 33.012, Civil Practice and Remedies Code.
8-22 Sec. 486.007. STANDARD OF PROOF; RES JUDICATA. (a) A
8-23 claimant must show by clear and convincing evidence that the
8-24 defendant is a person from whom the claimant is entitled to recover
8-25 under Section 486.003.
8-26 (b) A final conviction for a criminal offense is res
8-27 judicata as to any element of the offense that is relevant in an
9-1 action under this chapter.
9-2 Sec. 486.008. STATUTE OF LIMITATIONS. Notwithstanding
9-3 Section 16.003, Civil Practice and Remedies Code, a claimant must
9-4 bring suit under this chapter not later than the later of:
9-5 (1) the first anniversary of the last date on which
9-6 the defendant committed an act that would result in liability under
9-7 Section 486.003; or
9-8 (2) the first anniversary of the date on which the
9-9 defendant was convicted of an act that would result in liability
9-10 under Section 486.003.
9-11 Sec. 486.009. JOINT ACTIONS. (a) Two or more claimants may
9-12 join in one action under this chapter if:
9-13 (1) at least one of the claims of each claimant
9-14 involves participation in the illegal drug market that occurred in
9-15 the same county; and
9-16 (2) there is a common point in time at which each
9-17 individual on whose use of a controlled substance a joined claim is
9-18 based was using a controlled substance.
9-19 (b) Any person who is alleged to be liable to at least one
9-20 properly joined claimant may be joined as a defendant in an action
9-21 under this chapter.
9-22 Sec. 486.010. EX PARTE PREJUDGMENT ATTACHMENT. (a) A
9-23 claimant may file an ex parte motion requesting that the court
9-24 issue a prejudgment attachment order against any assets of the
9-25 defendant in an amount sufficient to satisfy a potential judgment
9-26 against the defendant.
9-27 (b) The court may grant the motion for a prejudgment
10-1 attachment order if the claimant establishes:
10-2 (1) a prima facie claim under this chapter against the
10-3 defendant; and
10-4 (2) that there is reason to believe that the defendant
10-5 will remove or dispose of the defendant's property for the purpose
10-6 of avoiding payment of a judgment under this chapter.
10-7 (c) Not later than the first day after the date on which an
10-8 ex parte prejudgment attachment order is issued under this section,
10-9 the claimant shall notify the defendant of the order and, if the
10-10 defendant has not been served with citation, shall serve the
10-11 citation. If the claimant is unable to notify the defendant and
10-12 serve citation, the claimant shall notify the court.
10-13 (d) A defendant against whom an ex parte prejudgment
10-14 attachment order has been issued is entitled to a hearing on the
10-15 order not later than the first day after the date on which a
10-16 request for hearing is made.
10-17 (e) The court shall revoke a prejudgment attachment order
10-18 issued under this section if the defendant:
10-19 (1) demonstrates that assets will be available for the
10-20 potential judgment; or
10-21 (2) posts a bond sufficient to cover the potential
10-22 judgment.
10-23 Sec. 486.011. INSURANCE COVERAGE. An insurance company may
10-24 not indemnify a defendant for liability for damages awarded under
10-25 this chapter and may not provide or pay for a defense on behalf of
10-26 the defendant.
10-27 Sec. 486.012. STAY OF ACTION FOR INVESTIGATION. On motion
11-1 by a governmental agency involved in the investigation or
11-2 prosecution of crimes relating to the distribution or use of
11-3 controlled substances, the court shall stay an action brought under
11-4 this chapter until the completion of a related criminal
11-5 investigation or prosecution.
11-6 Sec. 486.013. LAW ENFORCEMENT. A law enforcement officer or
11-7 agency, this state, or a person acting at the direction of a law
11-8 enforcement officer or agency is not liable under this chapter for
11-9 any conduct engaged in furtherance of an official investigation.
11-10 SECTION 2. A claimant under Chapter 486, Health and Safety
11-11 Code, as added by this Act, may not recover under that chapter as a
11-12 result of any conduct described by Section 486.003, Health and
11-13 Safety Code, as added by this Act, that occurred before the
11-14 effective date of this Act.