By Brimer, Burnam                                     H.B. No. 1324
         77R3532 KSD-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to attorney's fees paid in certain workers' compensation
 1-3     cases.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 408.221, Labor Code, is amended to read as
 1-6     follows:
 1-7           Sec. 408.221.  ATTORNEY'S FEES PAID TO CLAIMANT'S COUNSEL.
 1-8     (a)  An attorney's fee, including a contingency fee, for
 1-9     representing a claimant before the commission or court under this
1-10     subtitle must be approved by the commission or court.
1-11           (b)  Except as otherwise provided, an attorney's fee under
1-12     this section is based on the attorney's time and expenses according
1-13     to written evidence presented to the commission or court. Except as
1-14     provided by Subsection (c) or Section 408.147(c), the attorney's
1-15     fee shall be paid from the claimant's recovery.
1-16           (c)  An insurance carrier that seeks judicial review under
1-17     Subchapter G, Chapter 410, of a final decision of a commission
1-18     appeals panel regarding compensability or eligibility for, or the
1-19     amount of, income or death benefits is liable for reasonable and
1-20     necessary attorney's fees incurred by the claimant as a result of
1-21     the insurance carrier's appeal if the claimant prevails in any
1-22     issue on which judicial review is sought.  This subsection does not
1-23     apply to attorney's fees for which an insurance carrier may be
1-24     liable under Section 408.147.  An award of attorney's fees under
 2-1     this subsection is not subject to commission rules adopted under
 2-2     Subsection (f).
 2-3           (d) In approving an attorney's fee under this section, the
 2-4     commission or court shall consider:
 2-5                 (1)  the time and labor required;
 2-6                 (2)  the novelty and difficulty of the questions
 2-7     involved;
 2-8                 (3)  the skill required to perform the legal services
 2-9     properly;
2-10                 (4)  the fee customarily charged in the locality for
2-11     similar legal services;
2-12                 (5)  the amount involved in the controversy;
2-13                 (6)  the benefits to the claimant that the attorney is
2-14     responsible for securing; and
2-15                 (7)  the experience and ability of the attorney
2-16     performing the services.
2-17           (e) [(d)]  The commission by rule or the court may provide
2-18     for the commutation of an attorney's fee, except that the
2-19     attorney's fee shall be paid in periodic payments in a claim
2-20     involving death benefits if the only dispute is as to the proper
2-21     beneficiary or beneficiaries.
2-22           (f) [(e)]  The commission by rule shall provide guidelines
2-23     for maximum attorney's fees for specific services in accordance
2-24     with this section.
2-25           (g) [(f)]  An attorney's fee may not be allowed in a case
2-26     involving a fatal injury or lifetime income benefit if the
2-27     insurance carrier admits liability on all issues and tenders
 3-1     payment of maximum benefits in writing under this subtitle while
 3-2     the claim is pending before the commission.
 3-3           (h) [(g)]  An attorney's fee shall be paid to the attorney by
 3-4     separate draft.
 3-5           (i) [(h)]  Except as provided by Subsection (c) or Section
 3-6     408.147(c), an attorney's fee may not exceed 25 percent of the
 3-7     claimant's recovery.
 3-8           SECTION 2. Section 408.147(c), Labor Code, is amended to read
 3-9     as follows:
3-10           (c)  If an insurance carrier disputes a commission
3-11     determination that an employee is entitled to supplemental income
3-12     benefits or the amount of supplemental income benefits due and the
3-13     employee prevails on any disputed issue, the insurance carrier is
3-14     liable for reasonable and necessary attorney's fees incurred by the
3-15     employee as a result of the insurance carrier's dispute and for
3-16     supplemental income benefits accrued but not paid and interest on
3-17     that amount, according to Section 408.064.  Attorney's fees awarded
3-18     under this subsection are not subject to Sections 408.221(b), (f)
3-19     [(e)], and (i) [(h)].
3-20           SECTION 3. Section 408.222(b), Labor Code, is amended to read
3-21     as follows:
3-22           (b)  In determining whether a fee is reasonable under this
3-23     section, the commission or court shall consider issues analogous to
3-24     those listed under Section 408.221(d) [408.221(c)].  The defense
3-25     counsel shall present written evidence to the commission or court
3-26     relating to:
3-27                 (1)  the time spent and expenses incurred in defending
 4-1     the case; and
 4-2                 (2)  other evidence considered necessary by the
 4-3     commission or court in making a determination under this section.
 4-4           SECTION 4. This Act takes effect September 1, 2001, and
 4-5     applies only to a claim for workers' compensation benefits based on
 4-6     a compensable injury that occurs on or after that date. A claim
 4-7     based on a compensable injury that occurs before the effective date
 4-8     of this Act is governed by the law in effect on the date the
 4-9     compensable injury occurred, and the former law is continued in
4-10     effect for that purpose.