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.