By Nixon                                               H.B. No. 117
         77R378 DAK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to proportionate responsibility in certain civil suits.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Chapter 33, Civil Practice and Remedies Code, is
 1-5     amended to read as follows:
 1-6                  CHAPTER 33.  PROPORTIONATE RESPONSIBILITY
 1-7                [SUBCHAPTER A.  PROPORTIONATE RESPONSIBILITY]
 1-8           Sec. 33.001.  DEFINITIONS.  In this chapter:
 1-9                 (1)  "Claimant" means a party seeking recovery of
1-10     damages, including a plaintiff, counterclaimant, cross-claimant, or
1-11     third party plaintiff seeking recovery of damages.  In an action in
1-12     which a party seeks recovery of damages for injury to another
1-13     person, damage to the property of another person, death of another
1-14     person, or other harm to another person, "claimant" includes both
1-15     that other person and the party seeking recovery of damages.
1-16                 (2)  "Defendant" includes any party from whom a
1-17     claimant seeks recovery of damages at the time of the submission of
1-18     the case to the trier of fact.
1-19                 (3)  "Liable defendant" means a defendant against whom
1-20     a judgment can be entered for at least a portion of the damages
1-21     awarded to the claimant.
1-22                 (4)  "Percentage of responsibility" means that
1-23     percentage, stated in whole numbers, attributed by the trier of
1-24     fact to each claimant, each defendant, each settling person, or
 2-1     each responsible third party with respect to causing or
 2-2     contributing to cause in any way, whether by negligent act or
 2-3     omission, by any defective or unreasonably dangerous product, by
 2-4     other conduct or activity violative of the applicable legal
 2-5     standard, or by any combination of the foregoing, the personal
 2-6     injury, property damage, death, or other harm for which recovery of
 2-7     damages is sought.
 2-8                 (5)  "Settling person" means a person who at the time
 2-9     of submission has paid or promised to pay money or anything of
2-10     monetary value to a claimant at any time in consideration of
2-11     potential liability with respect to the personal injury, property
2-12     damage, death, or other harm for which recovery of damages is
2-13     sought.
2-14                 (6)(A)  "Responsible third party" means any person to
2-15     whom all of the following apply:
2-16                             (i)  the court in which the action was
2-17     filed could exercise jurisdiction over the person;
2-18                             (ii)  the person could have been, but was
2-19     not, sued by the claimant; and
2-20                             (iii)  the person is or may be liable to
2-21     the plaintiff for all or a part of the damages claimed against the
2-22     named defendant or defendants.
2-23                       (B)  The term "responsible third party" does not
2-24     include:
2-25                             (i)  the claimant's employer, if the
2-26     employer maintained workers' compensation insurance coverage, as
2-27     defined by  Section 401.011(44), Labor Code, at the time of the
 3-1     act, event, or occurrence made the basis of the claimant's suit; or
 3-2                             (ii)  a person or entity that is a debtor
 3-3     in bankruptcy proceedings or a person or entity against whom this
 3-4     claimant's claim has been discharged in bankruptcy, except to the
 3-5     extent that liability insurance or other source of third party
 3-6     funding may be available to pay claims asserted against the debtor
 3-7     [PROPORTIONATE RESPONSIBILITY.  In an action to which this chapter
 3-8     applies, a claimant may not recover damages if his percentage of
 3-9     responsibility is greater than 50 percent].
3-10           Sec. 33.002.  APPLICABILITY.  (a)  This [Except as provided
3-11     by Subsections (b) and (c), this] chapter applies to any cause of
3-12     action based on tort in which a defendant, settling person, or
3-13     responsible third party is found responsible for a percentage of
3-14     the harm for which relief is sought.
3-15           (b)  [Notwithstanding Subsection (a), a defendant who, with
3-16     the specific intent to do harm to others, acts in concert with
3-17     another person to engage in the conduct described in the following
3-18     sections of the Penal Code shall be jointly and severally liable
3-19     with such other person for the damages legally recoverable by the
3-20     claimant that were proximately caused by such conduct:]
3-21                 [(1)  Section 19.02 (murder);]
3-22                 [(2)  Section 19.03 (capital murder);]
3-23                 [(3)  Section 20.04 (aggravated kidnapping);]
3-24                 [(4)  Section 22.02 (aggravated assault);]
3-25                 [(5)  Section 22.011 (sexual assault);]
3-26                 [(6)  Section 22.021 (aggravated sexual assault);]
3-27                 [(7)  Section 22.04 (injury to child, elderly
 4-1     individual, or disabled individual);]
 4-2                 [(8)  Section 32.21 (forgery);]
 4-3                 [(9)  Section 32.43 (commercial bribery);]
 4-4                 [(10)  Section 32.45 (misapplication of fiduciary
 4-5     property or property of financial institution);]
 4-6                 [(11)  Section 32.46 (securing execution of document by
 4-7     deception);]
 4-8                 [(12)  Section 32.47 (fraudulent destruction, removal,
 4-9     or concealment of writing); or]
4-10                 [(13)  conduct described in Chapter 31 the punishment
4-11     level for which is a felony of the third degree or higher.]
4-12           [(c)]  This chapter does not apply to:
4-13                 (1)  an action to collect workers' compensation
4-14     benefits under the workers' compensation laws of this state
4-15     (Subtitle A, Title 5, Labor Code)  or actions against an employer
4-16     for exemplary damages arising out of the death of an employee; or
4-17                 (2)  a claim for exemplary damages included in an
4-18     action to which this chapter otherwise applies.
4-19           (c) [(d)  Notwithstanding anything to the contrary stated in
4-20     the sections of the Penal Code listed in Subsection (b), that
4-21     subsection shall not apply unless the claimant proves the defendant
4-22     acted or failed to act with intent to do harm as defined in this
4-23     section.]
4-24           [(e)  For purposes of this section, a person acts with intent
4-25     to do harm with respect to the nature of the person's conduct and
4-26     the result of the person's conduct when it is the person's
4-27     conscious effort or desire to engage in such conduct for the
 5-1     purpose of doing substantial harm to others.]
 5-2           [(f)  Nothing in this section shall require a submission to
 5-3     the jury of a question regarding conduct by any party absent
 5-4     sufficient evidence to support the submission.]
 5-5           [(g)  The jury shall not be made aware through voir dire,
 5-6     introduction into evidence, instruction, or any other means that
 5-7     the conduct to which Subsection (b) applies is defined by the Penal
 5-8     Code.]
 5-9           [(h)]  This chapter applies to an action brought under the
5-10     Deceptive Trade Practices-Consumer Protection Act (Subchapter E,
5-11     Chapter 17, Business & Commerce Code).
5-12           Sec. 33.003.  DETERMINATION OF PERCENTAGE OF RESPONSIBILITY.
5-13     The trier of fact, as to each cause of action asserted, shall
5-14     determine the percentage of responsibility, stated in whole
5-15     numbers, for the following persons with respect to each person's
5-16     causing or contributing to cause in any way the harm for which
5-17     recovery of damages is sought, whether by negligent act or
5-18     omission, by any defective or unreasonably dangerous product, by
5-19     other conduct or activity that violates an applicable legal
5-20     standard, or by any combination of these:
5-21                 (1)  each claimant;
5-22                 (2)  each defendant;
5-23                 (3)  each settling person; and
5-24                 (4)  each responsible third party who has been joined
5-25     under Section 33.004.
5-26           Sec. 33.004.  JOINDER OF RESPONSIBLE THIRD PARTIES. (a)
5-27     Except as provided in Subsections (d) and (e), prior to the
 6-1     expiration of limitations on the claimant's claim for damages
 6-2     against the defendant and on timely motion made for that purpose, a
 6-3     defendant may seek to join a responsible third party who has not
 6-4     been sued by the claimant.
 6-5           (b)  Nothing in this section shall affect the third-party
 6-6     practice as previously recognized in the rules and statutes of this
 6-7     state with regard to the assertion by a defendant of rights to
 6-8     contribution or indemnity.  Nothing in this section shall affect
 6-9     the filing of cross-claims or counterclaims.
6-10           (c)  A seller eligible for indemnity under Section 82.002
6-11     shall not be joined as a responsible third party under this section
6-12     unless there is alleged against the seller a claim for relief based
6-13     on the seller's negligence, intentional misconduct, or other act or
6-14     omission, such as negligently modifying or altering a product, for
6-15     which the seller is independently liable to the claimant.
6-16           (d)  A third party claim by a defendant under this section
6-17     may be filed, even though the claimant's action against the
6-18     responsible third party would be barred by limitations, if the
6-19     third party claim is filed on or before 30 days after the date the
6-20     defendant's answer is required to be filed.  This section shall not
6-21     apply if the limitations period governing the claimant's action
6-22     against the defendant joining the responsible third party is longer
6-23     than the limitations period governing the claimant's action against
6-24     the responsible third party.
6-25           (e)  A claimant may join a responsible third party, even
6-26     though such joinder would otherwise be barred by limitations, if
6-27     the claimant seeks to join the responsible third party not later
 7-1     than 60 days after a third party claim is filed under Subsection
 7-2     (d).
 7-3                        [SUBCHAPTER B.  CONTRIBUTION]
 7-4           [Sec. 33.011.  DEFINITIONS. In this chapter:]
 7-5                 [(1)  "Claimant" means a party seeking recovery of
 7-6     damages pursuant to the provisions of Section 33.001, including a
 7-7     plaintiff, counterclaimant, cross-claimant, or third-party
 7-8     plaintiff seeking recovery of damages.  In an action in which a
 7-9     party seeks recovery of damages for injury to another person,
7-10     damage to the property of another person, death of another person,
7-11     or other harm to another person, "claimant" includes both that
7-12     other person and the party seeking recovery of damages pursuant to
7-13     the provisions of Section 33.001.]
7-14                 [(2)  "Defendant" includes any party from whom a
7-15     claimant seeks recovery of damages pursuant to the provisions of
7-16     Section 33.001 at the time of the submission of the case to the
7-17     trier of fact.]
7-18                 [(3)  "Liable defendant" means a defendant against whom
7-19     a judgment can be entered for at least a portion of the damages
7-20     awarded to the claimant.]
7-21                 [(4)  "Percentage of responsibility" means that
7-22     percentage, stated in whole numbers, attributed by the trier of
7-23     fact to each claimant, each defendant, each settling person, or
7-24     each responsible third party with respect to causing or
7-25     contributing to cause in any way, whether by negligent act or
7-26     omission, by any defective or unreasonably dangerous product, by
7-27     other conduct or activity violative of the applicable legal
 8-1     standard, or by any combination of the foregoing, the personal
 8-2     injury, property damage, death, or other harm for which recovery of
 8-3     damages is sought.]
 8-4                 [(5)  "Settling person" means a person who at the time
 8-5     of submission has paid or promised to pay money or anything of
 8-6     monetary value to a claimant at any time in consideration of
 8-7     potential liability pursuant to the provisions of Section 33.001
 8-8     with respect to the personal injury, property damage, death, or
 8-9     other harm for which recovery of damages is sought.]
8-10                 [(6)(A)  "Responsible third party" means any person to
8-11     whom all of the following apply:]
8-12                             [(i)  the court in which the action was
8-13     filed could exercise jurisdiction over the person;]
8-14                             [(ii)  the person could have been, but was
8-15     not, sued by the claimant; and]
8-16                             [(iii)  the person is or may be liable to
8-17     the plaintiff for all or a part of the damages claimed against the
8-18     named defendant or defendants.]
8-19                       [(B)  The term "responsible third party" does not
8-20     include:]
8-21                             [(i)  the claimant's employer, if the
8-22     employer maintained workers' compensation insurance coverage, as
8-23     defined by  Section 401.011(44), Labor Code, at the time of the
8-24     act, event, or occurrence made the basis of the claimant's suit; or]
8-25                             [(ii)  a person or entity that is a debtor
8-26     in bankruptcy proceedings or a person or entity against whom this
8-27     claimant's claim has been discharged in bankruptcy, except to the
 9-1     extent that liability insurance or other source of third party
 9-2     funding may be available to pay claims asserted against the debtor.]
 9-3                 [(7)  "Toxic tort" means a cause of action in tort or
 9-4     for breach of implied warranty under Chapter 2, Business & Commerce
 9-5     Code, for damages of any kind arising out of or caused by exposure
 9-6     to or the deposit, discharge, or release into the environment of
 9-7     hazardous chemicals, hazardous wastes, hazardous hydrocarbons,
 9-8     similarly harmful organic or mineral substances, hazardous
 9-9     radiation sources, and other similarly harmful substances,
9-10     including torts arising out of exposure to such substances in the
9-11     work place, but not including any "drug" as defined in Section
9-12     82.005(d)(2).]
9-13           Sec. 33.005 [33.012].  AMOUNT OF RECOVERY. (a)  The [If the
9-14     claimant is not barred from recovery under Section 33.001, the]
9-15     court shall reduce the amount of damages to be recovered by the
9-16     claimant with respect to a cause of action by a percentage equal to
9-17     the claimant's percentage of responsibility.
9-18           (b)  If the claimant has settled with one or more persons,
9-19     the court shall further reduce the amount of damages to be
9-20     recovered by the claimant with respect to a cause of action by a
9-21     credit equal to one of the following, as elected in accordance with
9-22     Section 33.007 [33.014]:
9-23                 (1)  the sum of the dollar amounts of all settlements;
9-24     or
9-25                 (2)  a dollar amount equal to the sum of the following
9-26     percentages of damages found by the trier of fact:
9-27                       (A)  5 percent of those damages up to $200,000;
 10-1                      (B)  10 percent of those damages from $200,001 to
 10-2    $400,000;
 10-3                      (C)  15 percent of those damages from $400,001 to
 10-4    $500,000; and
 10-5                      (D)  20 percent of those damages greater than
 10-6    $500,000.
 10-7          (c)  The amount of damages recoverable by the claimant may
 10-8    only be reduced once by the credit provided for in Subsection (b).
 10-9          (d)  This section shall not apply to benefits paid by or on
10-10    behalf of an employer to an employee pursuant to workers'
10-11    compensation insurance coverage, as defined in Section 401.011(44),
10-12    Labor Code, in effect at the time of the act, event, or occurrence
10-13    made the basis of claimant's suit.
10-14          Sec. 33.006 [33.013].  AMOUNT OF LIABILITY. (a)  A [Except as
10-15    provided in Subsections (b) and (c), a] liable defendant is liable
10-16    to a claimant only for the percentage of the damages found by the
10-17    trier of fact equal to that defendant's percentage of
10-18    responsibility with respect to the personal injury, property
10-19    damage, death, or other harm for which the damages are allowed.
10-20          (b)  [Notwithstanding Subsection (a), each liable defendant
10-21    is, in addition to his liability under Subsection (a), jointly and
10-22    severally liable for the damages recoverable by the claimant under
10-23    Section 33.012 with respect to a cause of action if the percentage
10-24    of responsibility attributed to the defendant is greater than 50
10-25    percent.]
10-26          [(c)  Notwithstanding Subsections (a) and (b), each liable
10-27    defendant is, in addition to his liability under Subsection (a),
 11-1    jointly and severally liable for the damages recoverable by the
 11-2    claimant under Section 33.012 with respect to a cause of action if
 11-3    the percentage of responsibility attributed to the defendant is
 11-4    equal to or greater than 15 percent and:]
 11-5                [(1)  the claimant's personal injury, property damage,
 11-6    death, or other harm is caused by the depositing, discharge, or
 11-7    release into the environment of any hazardous or harmful substance
 11-8    as described in Section 33.011(7); or]
 11-9                [(2)  the claimant's personal injury, property damage,
11-10    death, or other harm resulted from a toxic tort.]
11-11          [(d)]  This section does not create a cause of action.
11-12          Sec. 33.007 [33.014].  ELECTION OF CREDIT FOR SETTLEMENTS. If
11-13    a claimant has settled with one or more persons, an election must
11-14    be made as to which dollar credit is to be applied under Section
11-15    33.005(b) [33.012(b)].  This election shall be made by any
11-16    defendant filing a written election before the issues of the action
11-17    are submitted to the trier of fact and, when made, shall be binding
11-18    on all defendants.  If no defendant makes this election or if
11-19    conflicting elections are made, all defendants are considered to
11-20    have elected Subdivision (2) of Section 33.005(b) [33.012(b)].
11-21          [Sec. 33.015.  CONTRIBUTION.  (a)  If a defendant who is
11-22    jointly and severally liable under Section 33.013 pays a percentage
11-23    of the damages for which the defendant is jointly and severally
11-24    liable greater than his percentage of responsibility, that
11-25    defendant has a right of contribution for the overpayment against
11-26    each other liable defendant to the extent that the other liable
11-27    defendant has not paid the percentage of the damages found by the
 12-1    trier of fact equal to that other defendant's percentage of
 12-2    responsibility.]
 12-3          [(b)  As among themselves, each of the defendants who is
 12-4    jointly and severally liable under Section 33.013 is liable for the
 12-5    damages recoverable by the claimant under Section 33.012 in
 12-6    proportion to his respective percentage of responsibility.  If a
 12-7    defendant who is jointly and severally liable pays a larger
 12-8    proportion of those damages than is required by his percentage of
 12-9    responsibility, that defendant has a right of contribution for the
12-10    overpayment against each other defendant with whom he is jointly
12-11    and severally liable under Section 33.013 to the extent that the
12-12    other defendant has not paid the proportion of those damages
12-13    required by that other defendant's percentage of responsibility.]
12-14          [(c)  If for any reason a liable defendant does not pay or
12-15    contribute the portion of the damages required by his percentage of
12-16    responsibility, the amount of the damages not paid or contributed
12-17    by that defendant shall be paid or contributed by the remaining
12-18    defendants who are jointly and severally liable for those damages.
12-19    The additional amount to be paid or contributed by each of the
12-20    defendants who is jointly and severally liable for those damages
12-21    shall be in proportion to his respective percentage of
12-22    responsibility.]
12-23          [(d)  No defendant has a right of contribution against any
12-24    settling person.]
12-25          [Sec. 33.016.  CLAIM AGAINST CONTRIBUTION DEFENDANT.  (a)  In
12-26    this section, "contribution defendant" means any defendant,
12-27    counterdefendant, or third-party defendant from whom any party
 13-1    seeks contribution with respect to any portion of damages for which
 13-2    that party may be liable, but from whom the claimant seeks no
 13-3    relief at the time of submission.]
 13-4          [(b)  Each liable defendant is entitled to contribution from
 13-5    each person who is not a settling person and who is liable to the
 13-6    claimant for a percentage of responsibility but from whom the
 13-7    claimant seeks no relief at the time of submission.  A party may
 13-8    assert this contribution right against any such person as a
 13-9    contribution defendant in the claimant's action.]
13-10          [(c)  The trier of fact shall determine as a separate issue
13-11    or finding of fact the percentage of responsibility with respect to
13-12    each contribution defendant and these findings shall be solely for
13-13    purposes of this section and Section 33.015 and not as a part of
13-14    the percentages of responsibility determined under Section 33.003.
13-15    Only the percentage of responsibility of each defendant and
13-16    contribution defendant shall be included in this determination.]
13-17          [(d)  As among liable defendants, including each defendant
13-18    who is jointly and severally liable under Section 33.013, each
13-19    contribution defendant's percentage of responsibility is to be
13-20    included for all purposes of Section 33.015.  The amount to be
13-21    contributed by each contribution defendant pursuant to Section
13-22    33.015 shall be in proportion to his respective percentage of
13-23    responsibility relative to the sum of percentages of responsibility
13-24    of all liable defendants and liable contribution defendants.]
13-25          Sec. 33.008 [33.017].  PRESERVATION OF EXISTING RIGHTS OF
13-26    INDEMNITY.  Nothing in this chapter shall be construed to affect
13-27    any rights of indemnity granted to a seller eligible for indemnity
 14-1    by Chapter 82, the Texas Motor Vehicle Commission Code (Article
 14-2    4413(36), Vernon's Texas Civil Statutes), or any other statute, nor
 14-3    shall it affect rights of indemnity granted by contract or at
 14-4    common law.  To the extent of any conflict between this chapter and
 14-5    any right to indemnification granted by Section 82.002, the Texas
 14-6    Motor Vehicle Commission Code (Article 4413(36), Vernon's Texas
 14-7    Civil Statutes), or any other statute, contract, or common law,
 14-8    those rights of indemnification shall prevail over the provisions
 14-9    of this chapter.
14-10          SECTION 2. This Act takes effect September 1, 2001, and
14-11    applies only to a cause of action that accrues on or after that
14-12    date.  An action that accrued before the effective date of this Act
14-13    is governed by the law applicable to the action immediately before
14-14    the effective date of this Act, and that law is continued in effect
14-15    for that purpose.