By Maxey                                               H.B. No. 163
         77R7 DLF-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to liability associated with the provision of human milk
 1-3     by certain persons.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Chapter 77, Civil Practice and Remedies Code, is
 1-6     amended by adding Subchapter B to read as follows:
 1-7                    SUBCHAPTER B. PROVISION OF HUMAN MILK
 1-8           Sec. 77.051.  DEFINITION. In this subchapter, "nonprofit milk
 1-9     bank" means an entity that:
1-10                 (1)  procures, processes, distributes, or uses human
1-11     milk for human consumption; and
1-12                 (2)  is an organization exempt from federal income tax
1-13     under Section 501(a) of the Internal Revenue Code of 1986 by being
1-14     listed as an exempt organization in Section 501(c)(3) or 501(c)(4)
1-15     of the code.
1-16           Sec. 77.052.  LIMITATION OF LIABILITY. (a)  A nonprofit milk
1-17     bank is not liable for damages that arise from the procuring,
1-18     processing, distribution, or use of human milk for human
1-19     consumption unless the damages result from:
1-20                 (1)  the failure to comply with minimum standards
1-21     adopted under Section 77.054; or
1-22                 (2)  negligence, gross negligence, or an intentional
1-23     tort.
1-24           (b)  Any officer, employee, volunteer, or other agent of a
 2-1     nonprofit milk bank is not liable for damages that arise from the
 2-2     procuring, processing, distribution, or use of human milk for human
 2-3     consumption unless the damages result from:
 2-4                 (1)  the failure of that person to comply with minimum
 2-5     standards adopted under Section 77.054; or
 2-6                 (2)  negligence, gross negligence, or an intentional
 2-7     tort of that person.
 2-8           (c)  Subchapter E, Chapter 17, Business & Commerce Code, does
 2-9     not apply with respect to claims for damages for personal injury or
2-10     death resulting or alleged to have resulted from negligence on the
2-11     part of a nonprofit milk bank or a person described by Subsection
2-12     (b) in connection with an activity described by Subsection (a) or
2-13     (b).
2-14           (d)  The implied warranties of merchantability and fitness do
2-15     not apply to the furnishing of human milk by nonprofit milk banks.
2-16     For purposes of this subchapter, human milk is not a commodity
2-17     subject to sale or barter.
2-18           Sec. 77.053.  EXCEPTION: SALE OF HUMAN MILK FOR PROFIT.
2-19     Section 77.052 does not apply to damages that arise from the
2-20     procuring, processing, distribution, or use of human milk if the
2-21     milk bank receives compensation for that milk that exceeds an
2-22     amount reasonably calculated to recover all the milk bank's costs
2-23     associated with procuring, processing, distributing, or using
2-24     human milk for human consumption, including any administrative
2-25     costs.
2-26           Sec. 77.054.  MINIMUM STANDARDS. The Texas Board of Health
2-27     shall adopt minimum standards for the procuring, processing,
 3-1     distribution, or use of human milk by nonprofit milk banks.
 3-2           Sec. 77.055.  EFFECT ON OTHER LAW. This chapter is in
 3-3     addition to any other protection from liability granted to a
 3-4     nonprofit milk bank or an officer, employee, volunteer, or other
 3-5     agent of a nonprofit milk bank under law, including Chapter 84.
 3-6           SECTION 2.  The chapter heading of Chapter 77, Civil Practice
 3-7     and Remedies Code, is amended to read as follows:
 3-8        CHAPTER 77. LIABILITY FOR DISTRIBUTION OF CERTAIN PRODUCTS OF
 3-9                   THE BODY [TRANSPLANTS AND TRANSFUSIONS]
3-10           SECTION 3.  Sections 77.001-77.004, Civil Practice and
3-11     Remedies Code, are redesignated as Subchapter A, Chapter 77, Civil
3-12     Practice and Remedies Code, and a new subchapter heading is added
3-13     to read as follows:
3-14                 SUBCHAPTER A. TRANSPLANTS AND TRANSFUSIONS
3-15           SECTION 4.  The Texas Board of Health shall adopt the minimum
3-16     standards required by Subchapter B, Chapter 77, Civil Practice and
3-17     Remedies Code, as added by this Act, not later than December 1,
3-18     2001.
3-19           SECTION 5.  This Act takes effect September 1, 2001, and
3-20     applies only to a cause of action that accrues on or after January
3-21     1, 2002.  A cause of action that accrues before January 1, 2002, is
3-22     governed by the law as it existed immediately before the effective
3-23     date of this Act, and that law is continued in effect for this
3-24     purpose.