By Bosse H.B. No. 3125
77R9293 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain injuries or death, including injuries resulting
1-3 from malicious conduct endangering public safety; providing
1-4 penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1. CIVIL REMEDIES
1-7 SECTION 1.01. Title 4, Civil Practice and Remedies Code, is
1-8 amended by adding Chapter 98 to read as follows:
1-9 CHAPTER 98. MALICIOUS CONDUCT ENDANGERING PUBLIC SAFETY
1-10 Sec. 98.001. DEFINITIONS. In this chapter:
1-11 (1) "Claimant" means a party seeking relief. The term
1-12 includes a plaintiff, counterclaimant, or cross-claimant.
1-13 (2) "Defendant" means a party from whom a claimant
1-14 seeks relief. The term includes a counterdefendant,
1-15 cross-defendant, or third-party defendant.
1-16 (3) "Governmental agency" includes any department,
1-17 board, commission, or similar regulatory agency of this state, any
1-18 other state, the United States, or any foreign jurisdiction.
1-19 (4) "Knowingly" has the meaning assigned by Section
1-20 6.03(b), Penal Code.
1-21 Sec. 98.002. APPLICABILITY. (a) This chapter applies to an
1-22 action for recovery of damages arising out of personal injury or
1-23 death caused by a defective product, without regard to the theory
1-24 on which the action is brought, in which the claimant proves by a
2-1 preponderance of the evidence that the defendant:
2-2 (1) committed an act or omission that had the purpose
2-3 or effect of preventing the public from becoming aware of a known
2-4 risk giving rise to the claimant's claim; or
2-5 (2) committed improper conduct described by Subsection
2-6 (b), if, had the conduct not been committed:
2-7 (A) the existence of any part of the claimant's
2-8 cause of action would have been revealed; or
2-9 (B) the existence of incidents similar to the
2-10 incident that gave rise to the claimant's cause of action would
2-11 have been revealed.
2-12 (b) A defendant has committed improper conduct for the
2-13 purpose of Subsection (a) if the defendant knowingly:
2-14 (1) hid the existence or location of a document or
2-15 other information regarding a risk, claim, or incident, regardless
2-16 of the media or format in which the information exists;
2-17 (2) destroyed or altered a document or other
2-18 information regarding a risk, claim, or incident, regardless of the
2-19 media or format in which the information exists;
2-20 (3) made a false or misleading statement:
2-21 (A) representing that a product has or has not
2-22 been tested with respect to a risk; or
2-23 (B) relating to the testing or the results of
2-24 the testing of a product with respect to a risk;
2-25 (4) failed to take timely action to recall a defective
2-26 product or make the risk known to the public after the risk becomes
2-27 known to the defendant;
3-1 (5) failed to comply with any regulatory requirement
3-2 of any governmental agency with respect to the risk;
3-3 (6) made a false or misleading representation with
3-4 respect to the risk to a governmental agency;
3-5 (7) failed to disclose any information to a
3-6 governmental agency that the defendant was under a duty to
3-7 disclose, with the purpose or effect of preventing, delaying,
3-8 hindering, or impairing a governmental agency from:
3-9 (A) performing a duty of the agency; or
3-10 (B) taking any action to protect the public
3-11 from, or to inform the public of, the risk;
3-12 (8) entered into an agreement with another person not
3-13 to reveal information regarding the risk, claim, or incident, or
3-14 any act or omission of the defendant described in Subsection (a),
3-15 regardless of whether the agreement was:
3-16 (A) made in connection with litigation in any
3-17 jurisdiction of the United States or any foreign country; or
3-18 (B) the subject of a court order in any
3-19 jurisdiction of the United States or any foreign country;
3-20 (9) violated a law of any jurisdiction of the United
3-21 States or any foreign country, or any rule of any court of any
3-22 jurisdiction of the United States or any foreign country, if:
3-23 (A) the purpose or effect of the law or rule is
3-24 to make information available to a governmental agency, the
3-25 claimant, a party, the public, or the court; and
3-26 (B) the information that was the subject of the
3-27 violation relates to the risk that gives rise to the claimant's
4-1 cause of action; or
4-2 (10) participated in a conspiracy with one or more
4-3 other persons to engage in any of the conduct described in
4-4 Subdivisions (1)-(9) or to conceal, withhold, or hide information
4-5 regarding conduct described by Subsection (a).
4-6 Sec. 98.003. PRIMA FACIE SHOWING OF CLAIM. (a) A claimant
4-7 may not plead that this chapter applies before the claimant makes a
4-8 prima facie showing, by evidence in the record or proffered by the
4-9 claimant, that the defendant engaged in conduct described by
4-10 Section 98.002.
4-11 (b) The prima facie showing required by this section is not
4-12 required to be made by a preponderance of the evidence and is
4-13 considered satisfied if the claimant produces evidence of conduct
4-14 described in Section 98.002. The evidence is not required to be in
4-15 an admissible form and may include affidavits, deposition
4-16 testimony, discovery responses, or other evidence.
4-17 (c) If the claimant makes the prima facie showing required
4-18 by this section, the court shall permit the claimant to amend the
4-19 claimant's pleadings to assert that this chapter applies to the
4-20 action and to include any claims or remedies authorized by law for
4-21 an action to which this chapter applies.
4-22 (d) The Texas Rules of Civil Procedure shall be liberally
4-23 construed to allow the claimant discovery that appears reasonably
4-24 calculated to lead to evidence relating to whether a prima facie
4-25 case exists that is sufficient to support amendment of the
4-26 pleadings under this section.
4-27 Sec. 98.004. EFFECT ON CLAIM. A claimant that makes the
5-1 demonstration required by Section 98.002 that this chapter is
5-2 applicable to an action may pursue any legal or equitable remedy
5-3 and is entitled to the rights and remedies provided with regard to
5-4 the action under other law, including Chapters 16, 33, and 41.
5-5 Sec. 98.005. EXEMPTION FOR CERTAIN SELLERS; INDEMNITY. (a)
5-6 In this section, "seller" and "manufacturer" have the meanings
5-7 assigned by Section 82.001.
5-8 (b) This chapter does not apply to a seller of a defective
5-9 product who:
5-10 (1) did not commit conduct described by Section
5-11 98.002; and
5-12 (2) after becoming aware of a risk of a defective
5-13 product, acted reasonably to make the public aware of the risk.
5-14 (c) A seller described by Subsection (b) who incurs damages
5-15 as a result of defending against an action relating to the
5-16 defective product has, against a manufacturer or other seller who
5-17 engages in conduct described by Section 98.002, a right of
5-18 indemnification for the damages incurred, including:
5-19 (1) damages paid by the seller to a claimant;
5-20 (2) attorney's fees;
5-21 (3) court costs;
5-22 (4) lost earnings; and
5-23 (5) any other direct damages or costs incurred by the
5-24 seller as a result of defending against an action brought against
5-25 the seller for personal injury or death of which the defective
5-26 product was a producing cause.
5-27 Sec. 98.006. PROTECTIONS FOR CERTAIN EMPLOYEES. (a)
6-1 Notwithstanding any other law, an employer may not terminate the
6-2 employment of a person or otherwise retaliate against the person in
6-3 the terms and conditions of employment because the person acted to
6-4 make any governmental agency or the public aware of a risk of
6-5 personal injury or death created by a defective product.
6-6 (b) A person may bring a cause of action against an employer
6-7 for a violation of Subsection (a). If the claimant proves by a
6-8 preponderance of the evidence that the employer violated Subsection
6-9 (a), the trier of fact may award the claimant actual damages,
6-10 exemplary damages, and the costs of pursuing the action, including
6-11 court costs and attorney's fees.
6-12 Sec. 98.007. OTHER LAW. To the extent of any conflict
6-13 between this chapter and any other law, this chapter prevails.
6-14 SECTION 1.02. Section 16.003, Civil Practice and Remedies
6-15 Code, is amended by adding Subsections (c) and (d) to read as
6-16 follows:
6-17 (c) A cause of action for personal injury or death accrues
6-18 for purposes of Subsection (b) at the time the claimant knows, or
6-19 in the exercise of reasonable diligence should know, of the injury
6-20 and the cause in fact of the injury.
6-21 (d) In an action to which Chapter 98 applies, the statute of
6-22 limitations applicable to a cause of action for personal injury or
6-23 death is tolled from the time the defendant began conduct described
6-24 by Section 98.002. The period during which the statute of
6-25 limitations is tolled under this subsection ends at the time the
6-26 defendant takes action to eliminate the result of the conduct
6-27 described by Section 98.002, so that the claimant should, in the
7-1 exercise of reasonable diligence, know of the injury and the cause
7-2 in fact of the injury.
7-3 SECTION 1.03. Section 33.001, Civil Practice and Remedies
7-4 Code, is amended to read as follows:
7-5 Sec. 33.001. PROPORTIONATE RESPONSIBILITY. (a) In an
7-6 action to which this chapter applies, a claimant may not recover
7-7 damages if his percentage of responsibility is greater than 50
7-8 percent.
7-9 (b) This section does not apply to an action to which
7-10 Chapter 98 applies.
7-11 SECTION 1.04. Section 33.013, Civil Practice and Remedies
7-12 Code, is amended by amending Subsection (d) and adding Subsection
7-13 (e) to read as follows:
7-14 (d) Notwithstanding Subsection (a), in an action to which
7-15 Chapter 98 applies, each liable defendant who is liable for conduct
7-16 described by Section 98.002 is jointly and severally liable for the
7-17 damages recoverable by the claimant under Section 33.012.
7-18 (e) This section does not create a cause of action.
7-19 SECTION 1.05. Section 41.001(7), Civil Practice and Remedies
7-20 Code, is amended to read as follows:
7-21 (7) "Malice" means:
7-22 (A) a specific intent by the defendant to cause
7-23 substantial injury to the claimant; [or]
7-24 (B) conduct described by Section 98.002; or
7-25 (C) an act or omission:
7-26 (i) which when viewed objectively from the
7-27 standpoint of the actor at the time of its occurrence involves an
8-1 extreme degree of risk, considering the probability and magnitude
8-2 of the potential harm to others; and
8-3 (ii) of which the actor has actual,
8-4 subjective awareness of the risk involved, but nevertheless
8-5 proceeds with conscious indifference to the rights, safety, or
8-6 welfare of others.
8-7 SECTION 1.06. Section 41.008, Civil Practice and Remedies
8-8 Code, is amended by adding Subsections (f) and (g) to read as
8-9 follows:
8-10 (f) Subsection (b) does not apply to an action to which
8-11 Chapter 98 applies.
8-12 (g) In an action to which Subsection (b) does not apply and
8-13 in which the amount of exemplary damages that may be awarded is not
8-14 limited by another law, the amount of exemplary damages that may be
8-15 awarded by the trier of fact is the amount allowed under the
8-16 constitution of this state and of the United States.
8-17 SECTION 1.07. Section 41.011(a), Civil Practice and Remedies
8-18 Code, is amended to read as follows:
8-19 (a) In determining the amount of exemplary damages, the
8-20 trier of fact shall consider evidence, if any, relating to:
8-21 (1) the nature of the wrong;
8-22 (2) the character of the conduct involved;
8-23 (3) the degree of culpability of the wrongdoer;
8-24 (4) the situation and sensibilities of the parties
8-25 concerned;
8-26 (5) the extent to which such conduct offends a public
8-27 sense of justice and propriety; [and]
9-1 (6) the net worth of the defendant; and
9-2 (7) in an action to which Chapter 98 applies, the
9-3 extent to which the defendant engaged in conduct described by
9-4 Section 98.002.
9-5 SECTION 1.08. Section 82.005(d), Civil Practice and Remedies
9-6 Code, is amended to read as follows:
9-7 (d) This section does not apply to:
9-8 (1) a cause of action based on a toxic or
9-9 environmental tort as defined by Sections 33.013(c)(2) and (3);
9-10 [or]
9-11 (2) a drug or device, as those terms are defined in
9-12 the federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321);
9-13 or
9-14 (3) an action to which Chapter 98 applies.
9-15 SECTION 1.09. Section 82.006, Civil Practice and Remedies
9-16 Code, is amended by adding Subsection (c) to read as follows:
9-17 (c) This section does not apply to an action to which
9-18 Chapter 98 applies.
9-19 SECTION 1.10. This article applies only to a cause of action
9-20 that accrues on or after the effective date of this Act. A cause
9-21 of action that accrues before the effective date of this Act is
9-22 governed by the law as it existed immediately before the effective
9-23 date of this Act, and that law is continued in effect for that
9-24 purpose.
9-25 ARTICLE 2. CRIMINAL PENALTIES
9-26 SECTION 2.01. Section 22.05, Penal Code, is amended by
9-27 adding Subsection (f) to read as follows:
10-1 (f) Notwithstanding Subsection (e), an offense under
10-2 Subsection (a) is a felony of the second degree if, at the guilt
10-3 or innocence phase of the trial the judge or jury, whichever is the
10-4 trier of fact, determines beyond a reasonable doubt that the
10-5 conduct engaged in by the actor is conduct described by Section
10-6 98.002(b), Civil Practice and Remedies Code.
10-7 SECTION 2.02. Section 22.09, Penal Code, is amended by
10-8 amending Subsection (d) and adding Subsection (e) to read as
10-9 follows:
10-10 (d) A person commits an offense if, by engaging in conduct
10-11 described by Section 98.002(b), Civil Practice and Remedies Code,
10-12 the person:
10-13 (1) knowingly prevents a member of the public from
10-14 becoming aware of a risk from a consumer product; and
10-15 (2) knows that the product will be offered for sale to
10-16 the public or as a gift to another.
10-17 (e) An offense under Subsection (b) or (d) is a felony
10-18 of the second degree unless a person suffers serious bodily injury,
10-19 in which event it is a felony of the first degree. An offense
10-20 under Subsection (c) is a felony of the third degree.
10-21 SECTION 2.03. The heading to Section 22.09, Penal Code, is
10-22 amended to read as follows:
10-23 Sec. 22.09. CONDUCT RELATED TO [TAMPERING WITH] CONSUMER
10-24 PRODUCT.
10-25 SECTION 2.04. Section 32.42, Penal Code, is amended by
10-26 amending Subsection (b) and adding Subsection (e) to read as
10-27 follows:
11-1 (b) A person commits an offense if in the course of business
11-2 he intentionally, knowingly, recklessly, or with criminal
11-3 negligence commits one or more of the following deceptive business
11-4 practices:
11-5 (1) using, selling, or possessing for use or sale a
11-6 false weight or measure, or any other device for falsely
11-7 determining or recording any quality or quantity;
11-8 (2) selling less than the represented quantity of a
11-9 property or service;
11-10 (3) taking more than the represented quantity of
11-11 property or service when as a buyer the actor furnishes the weight
11-12 or measure;
11-13 (4) selling an adulterated or mislabeled commodity or
11-14 a commodity with a defect known to the actor;
11-15 (5) passing off property or service as that of
11-16 another;
11-17 (6) representing that a commodity is original or new
11-18 if it is deteriorated, altered, rebuilt, reconditioned, reclaimed,
11-19 used, or secondhand;
11-20 (7) representing that a commodity or service is of a
11-21 particular style, grade, or model if it is of another;
11-22 (8) advertising property or service with intent:
11-23 (A) not to sell it as advertised, or
11-24 (B) not to supply reasonably expectable public
11-25 demand, unless the advertising adequately discloses a time or
11-26 quantity limit;
11-27 (9) representing the price of property or service
12-1 falsely or in a way tending to mislead;
12-2 (10) making a materially false or misleading statement
12-3 of fact concerning the reason for, existence of, or amount of a
12-4 price or price reduction;
12-5 (11) conducting a deceptive sales contest; or
12-6 (12) making a materially false or misleading
12-7 statement:
12-8 (A) in an advertisement for the purchase or sale
12-9 of property or service; or
12-10 (B) otherwise in connection with the purchase or
12-11 sale of property or service.
12-12 (e) Notwithstanding Subsection (c), at the guilt or
12-13 innocence phase of the trial of an offense under Subsection (b)(4),
12-14 if the judge or jury, whichever is the trier of fact, determines
12-15 beyond a reasonable doubt that the conduct engaged in by the actor
12-16 is conduct described by Section 98.002(b), Civil Practice and
12-17 Remedies Code, the offense is:
12-18 (1) a state jail felony if the actor commits the
12-19 offense with criminal negligence and a person suffers serious
12-20 bodily injury or death caused by the adulterated or mislabeled
12-21 commodity or commodity with a defect known to the actor;
12-22 (2) a felony of the third degree if the actor commits
12-23 the offense recklessly and a person suffers serious bodily injury
12-24 caused by the adulterated or mislabeled commodity or commodity with
12-25 a defect known to the actor; or
12-26 (3) a felony of the second degree if the actor commits
12-27 the offense knowingly and a person suffers serious bodily injury
13-1 caused by the adulterated or mislabeled commodity or commodity with
13-2 a defect known to the actor.
13-3 SECTION 2.05. Chapter 37, Penal Code, is amended by adding
13-4 Section 37.14 to read as follows:
13-5 Sec. 37.14. CONDUCT ENDANGERING PUBLIC SAFETY. (a) A person
13-6 commits an offense if the person with criminal negligence makes a
13-7 misleading representation to an agency of government with respect
13-8 to a risk created by a product, or fails to disclose any
13-9 information to an agency of government that the person is under a
13-10 duty to disclose with respect to a risk created by a product, with
13-11 the purpose or effect of preventing, delaying, hindering, or
13-12 impairing the agency from performing a duty of the agency or taking
13-13 any action to protect the public from, or to inform the public of,
13-14 the risk.
13-15 (b) An offense under Subsection (a) is a Class A
13-16 misdemeanor, except that the offense is:
13-17 (1) a state jail felony if the actor commits the
13-18 offense with criminal negligence and a person suffers serious
13-19 bodily injury or death caused by the risk created by the product;
13-20 (2) a felony of the third degree if the actor commits
13-21 the offense recklessly and a person suffers serious bodily injury
13-22 caused by the risk created by the product; or
13-23 (3) a felony of the second degree if the actor commits
13-24 the offense knowingly and a person suffers serious bodily injury
13-25 caused by the risk created by the product.
13-26 (c) It is an affirmative defense to prosecution under this
13-27 section that misrepresentation or failure to disclose information
14-1 could have no effect on the agency of government's purpose for
14-2 requiring, or its use of, the information that was the subject of
14-3 the misrepresentation or failure.
14-4 SECTION 2.06. (a) The change in law made by this article
14-5 applies only to the punishment for an offense committed on or after
14-6 the effective date of this Act. For purposes of this section, an
14-7 offense is committed before the effective date of this Act if any
14-8 element of the offense occurs before the effective date.
14-9 (b) An offense committed before the effective date of this
14-10 Act is covered by the law in effect when the offense was committed,
14-11 and the former law is continued in effect for that purpose.
14-12 ARTICLE 3. JUDICIAL ACTION
14-13 SECTION 3.01. Not later than January 1, 2002, the supreme
14-14 court shall adopt and amend rules governing practice and procedure,
14-15 including the rules regarding sealing of records, to prevent the
14-16 courts of this state from being used in a manner that constitutes a
14-17 danger to the public health and safety and constitutes conduct
14-18 described by Section 98.002, Civil Practice and Remedies Code, as
14-19 added by this Act.
14-20 SECTION 3.02. Not later than January 1, 2002, the supreme
14-21 court shall adopt rules of professional responsibility and
14-22 discipline that prevent attorneys practicing law in this state from
14-23 engaging in conduct that constitutes a danger to the public health
14-24 and safety and constitutes conduct described by Section 98.002,
14-25 Civil Practice and Remedies Code, as added by this Act. The rules
14-26 must address the practice of attorneys for parties to litigation or
14-27 potential litigation to enter into agreements that constitute
15-1 conduct described by Section 98.002, Civil Practice and Remedies
15-2 Code, as added by this Act, including agreements to return, or
15-3 maintain as confidential, information obtained by a party to an
15-4 action that relates to a risk to public health and safety.
15-5 ARTICLE 4. EFFECTIVE DATE
15-6 SECTION 4.01. This Act takes effect immediately if it
15-7 receives a vote of two-thirds of all the members elected to each
15-8 house, as provided by Section 39, Article III, Texas Constitution.
15-9 If this Act does not receive the vote necessary for immediate
15-10 effect, this Act takes effect September 1, 2001.