78R7869 DAK-F


By:  Nixon, Allen, Capelo, Woolley,                               H.B. No. 4  
 
    Cook of Colorado, et al.                                                 

Substitute the following for H.B. No. 4:                                      

By:  King                                                     C.S.H.B. No. 4  


A BILL TO BE ENTITLED
AN ACT
relating to reform of certain procedures and remedies in civil actions. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CLASS ACTIONS
SECTION 1.01. Subtitle B, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 26 to read as follows:
CHAPTER 26. CLASS ACTIONS INVOLVING JURISDICTION
OF STATE AGENCY
Sec. 26.001. DEFINITIONS. In this chapter: (1) "Agency statute" means a statute of this state administered or enforced by a state agency. (2) "Claimant" means a party seeking recovery of damages or other relief and includes a plaintiff, counterclaimant, cross-claimant, or third-party claimant. (3) "Contested case" has the meaning assigned by Section 2001.003, Government Code. (4) "Defendant" means a party from whom a claimant seeks recovery of damages or other relief. (5) "Rule" has the meaning assigned by Section 2001.003, Government Code. (6) "State agency" means a board, commission, department, office, or agency that: (A) is in the executive branch of state government; (B) is created by the constitution or a statute of this state; and (C) has statewide jurisdiction. Sec. 26.002. APPLICABILITY. This chapter applies only to an action in which: (1) a claimant seeks recovery of damages or other relief on behalf of a class of claimants; and (2) a disputed claim in the action involves the interpretation, application, or violation of an agency statute or rule with respect to one or more defendants. Sec. 26.003. HEARING. (a) On motion of a party, a court shall conduct a hearing to determine whether an action should be dismissed or abated under this chapter. (b) Notice of the hearing must be given to the named parties to the action on or before the 21st day before the date of the hearing. Sec. 26.004. DISMISSAL FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. (a) A court shall dismiss an action without prejudice if: (1) a state agency has the exclusive jurisdiction to determine an issue in dispute or grant an administrative remedy before the claimant can seek a judicial remedy; and (2) one or more class representatives failed to exhaust the state agency's administrative remedy. (b) The court's dismissal order must identify the state agency having exclusive jurisdiction and state the administrative remedy available to the claimant. (c) The limitations period applicable to an action dismissed under this section is suspended for members of the class or putative class with respect to the defendants named in the class action commenced in a court of this state for a period beginning on the date the dismissal order is signed and continuing while the class representatives diligently pursue the administrative remedy identified in the dismissal order. Sec. 26.005. ABATEMENT OR DISMISSAL. (a) On motion of a party filed on or before the 30th day after the date the court signed the order certifying the action as a class action, a court shall abate or dismiss without prejudice an action if the court determines that: (1) an issue in dispute in the action involves a question of fact within the jurisdiction of a state agency to determine; (2) an issue in dispute in the action involves the application, interpretation, or violation of an agency statute or rule; (3) a state agency, if allowed to do so, could make findings of fact and conclusions of law or issue orders that would aid the court in resolving the action; or (4) a state agency, through a contested case proceeding, could order all or part of the relief a claimant seeks. (b) The court's abatement or dismissal order must identify the state agency and state the agency statute or rule on which the order is based. (c) A court that abates an action under this section shall: (1) refer specific issues or claims within a state agency's jurisdiction to the agency for action; and (2) direct the state agency to report to the court periodically concerning the disposition of the matters referred to the agency. (d) The limitations period applicable to an action dismissed under this section is suspended for members of the class or putative class with respect to the defendants named in the class action commenced in a court of this state for a period beginning on the date the dismissal order is signed and continuing while the class representatives diligently pursue the administrative remedy identified in the dismissal order. Sec. 26.006. ABATEMENT PERIOD. (a) The order must provide that the abatement period is at least six months from the date the court signs the abatement order. (b) The court may extend the abatement period if the court determines that the state agency is proceeding diligently to resolve the matters the court referred to the agency. (c) The abatement period ends when: (1) the state agency takes its final action on the matters the court referred to the agency; or (2) the court determines that the state agency is not proceeding diligently to resolve the matters the court referred to the agency. Sec. 26.007. PROCEEDING AFTER ABATEMENT; DISMISSAL. (a) After the abatement period ends, the court shall decide whether to dismiss the action, proceed with the action as an individual action, or proceed with the action as a class action. (b) A court shall dismiss an action if the court determines that: (1) the state agency granted all or a substantial part of the relief sought by the claimant; or (2) the relief granted by the state agency is an adequate substitute for the relief sought in the action by the claimant. (c) If the court does not dismiss the action, it shall determine whether to proceed with the action as a class action or as an individual action by considering or reconsidering the case in light of class certification criteria. In determining whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy, the court shall consider the availability of judicial review of the state agency's decision and of declaratory relief under Section 2001.038, Government Code, concerning the validity and applicability of agency rules. (d) Relief awarded to a claimant may be adequate even if the relief does not include exemplary damages, multiple damages, attorney's fees, or costs of court. (e) If a person seeks judicial review of a state agency's decision on an issue referred to the agency by the court, the court may transfer the action to a county of proper venue for the judicial review if the court determines that: (1) the transfer is necessary to avoid the likelihood of conflicting or inconsistent judicial decisions affecting the parties to the action; (2) the transfer would promote judicial economy; (3) the transfer would not work a substantial injustice to the parties to the action; and (4) the balance of interests of the parties to the action predominates in favor of transferring the action. (f) If a person seeks declaratory relief under Section 2001.038, Government Code, concerning the validity or applicability of a state agency rule involved in a state agency's decision on a matter referred to the agency by the court, the court shall transfer the action to Travis County. SECTION 1.02. Title 6, Civil Practice and Remedies Code, is amended by adding Chapter 140 to read as follows:
CHAPTER 140. ATTORNEY'S FEES AWARDED IN CLASS ACTIONS
Sec. 140.001. APPLICABILITY. (a) Except as provided by Subsection (b), this chapter applies to an award of attorney's fees in a class action notwithstanding: (1) any agreement between the attorney or attorneys for the class and any member of the class; or (2) any other law or rule of court. (b) This chapter does not apply to fees payable to the attorney or attorneys by a named plaintiff client out of that client's funds, including the client's share of the common fund recovered for the class, under an agreement between the attorney or attorneys and the client. Sec. 140.002. NO RIGHT TO FEES CREATED. This chapter does not create a right to an award of attorney's fees. Sec. 140.003. AWARD OF FEES. If a court awards a fee in a class action to the attorney or attorneys for the class, the fee must be awarded out of a common fund recovered for the class, and the fee must be computed as provided by this chapter. Sec. 140.004. DETERMINATION OF BASE FEE. (a) In any class action in which an award of attorney's fees is to be made, the court shall first determine the base fee as provided by this section. (b) The court shall find: (1) the number of hours that it considers to have been reasonably and necessarily expended by the attorney or attorneys for the class; and (2) the hourly rates it considers to be appropriate for the services provided by the attorney or attorneys for the class. (c) The rates in Subsection (b)(2) must be based on and cannot exceed the rates customarily charged in the locality for similar legal services in nonclass litigation. (d) To compute the base fee, the court shall multiply the hours found in Subsection (b)(1) by the rates found in Subsection (b)(2). Sec. 140.005. INCREASE OR DECREASE OF BASE FEE. (a) Except as provided by Subsection (b), the court may increase or decrease the base fee determined under Section 140.004 by applying the following factors: (1) the novelty and difficulty of the issues involved in the action; (2) the skill required to properly perform the legal services performed by the attorney or attorneys for the class; (3) the amount of money involved in the action and the results obtained; (4) the time limitations imposed by the class or the circumstances; and (5) the experience, reputation, and ability of the attorney or attorneys performing services for the class. (b) The total fees awarded by the court may not exceed the lesser of: (1) 25 percent of the amounts collected by class members out of the common fund recovered for the class; or (2) four times the base fee as determined under Section 140.004. Sec. 140.006. ACTUAL EXPENSES AND COSTS. In addition to the fee determined by the court under this chapter, the court may award the attorney or attorneys representing the class all reasonable expenses and costs actually incurred by the attorney or attorneys on behalf of the class. SECTION 1.03. Sections 22.225(b) and (d), Government Code, are amended to read as follows: (b) Except as provided by Subsection (c) or (d), a judgment of a court of appeals is conclusive on the law and facts, and a petition for review [writ of error] is not allowed to [from] the supreme court, in the following civil cases: (1) a case appealed from a county court or from a district court when, under the constitution, a county court would have had original or appellate jurisdiction of the case, with the exception of a probate matter or a case involving state revenue laws or the validity or construction of a statute; (2) a case of a contested election other than a contested election for a state officer, with the exception of a case where the validity of a statute is questioned by the decision; (3) an appeal from an interlocutory order appointing a receiver or trustee or from other interlocutory appeals that are allowed by law; (4) an appeal from an order or judgment in a suit in which a temporary injunction has been granted or refused or when a motion to dissolve has been granted or overruled; and (5) all other cases except the cases where appellate jurisdiction is given to the supreme court and is not made final in the courts of appeals. (d) A petition for review [writ of error] is allowed to [from] the supreme court for an appeal from an interlocutory order described by Section 51.014(a)(3) or (6) [51.014(6)], Civil Practice and Remedies Code. SECTION 1.04. Sections 51.014(a) and (b), Civil Practice and Remedies Code, are amended to read as follows: (a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that: (1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure; (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; (6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I [1], Section 8, of the Texas Constitution, or Chapter 73; (7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure, except in a suit brought under the Family Code; [or] (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001; (9) denies all or part of the relief sought by a motion under Section 13.01(b), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); or (10) grants relief sought by a motion under Section 13.01(l), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes). (b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays [shall have the effect of staying] the commencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a)(3) also stays all other proceedings in the trial court pending resolution of that appeal. SECTION 1.05. This article applies only to a suit commenced or pending on or after the effective date of this article.
ARTICLE 2. SETTLEMENT
SECTION 2.01. Subtitle C, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 42 to read as follows:
CHAPTER 42. SETTLEMENT AND RECOVERY OF LITIGATION COSTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 42.001. DEFINITIONS. In this chapter: (1) "Claim" means a request, including a counterclaim, cross-claim, or third-party claim, to recover monetary damages or to obtain other relief. The term does not include a request for an injunction or to recover litigation costs. (2) "Claimant" means a person making a claim. (3) "Defendant" means a person from whom a claimant seeks recovery on a claim, including a counterdefendant, cross-defendant, or third-party defendant. (4) "Governmental unit" means the state, a unit of state government, or a political subdivision of this state. (5) "Litigation costs" means money actually spent and obligations actually incurred that are directly related to an action. "Litigation costs" include: (A) reasonable attorney's fees; (B) court costs; (C) reasonable deposition costs; and (D) reasonable fees for not more than two expert witnesses. (6) "Settlement offer" means an offer to settle or compromise a claim made in compliance with Section 42.051. Sec. 42.002. APPLICABILITY AND EFFECT. (a) This chapter does not apply to an action in which a class has been certified. (b) Without regard to whether an action is brought by itself or in conjunction with other actions, this chapter does not apply to an action: (1) brought under the Family Code; (2) brought under Chapter 27, Property Code; (3) brought on behalf of a minor or person of unsound mind; or (4) to collect workers' compensation benefits under Subtitle A, Title 5, Labor Code. (c) This chapter does not limit or affect the ability of any person to: (1) make an offer to settle or compromise a claim that does not comply with this chapter; or (2) offer to settle or compromise a claim to which this chapter does not apply. (d) An offer to settle or compromise that does not comply with Section 42.051 or an offer to settle or compromise made in an action to which this chapter does not apply does not entitle the offering party to recover litigation costs under this chapter. Sec. 42.003. ELECTION BY GOVERNMENTAL UNITS; WAIVER. (a) This chapter does not apply to an action by or against a governmental unit unless the governmental unit elects to seek recovery of litigation costs under this chapter or elects to waive immunity from liability for costs awarded under this chapter. (b) To be effective as an election or waiver, the governmental unit must make the election or waiver specifically and affirmatively by a writing filed with the court on or before the 45th day after the date the governmental unit files its original petition or original answer. (c) An election or waiver is effective only in the action in which it is filed. Sec. 42.004. MODIFICATION OF TIME LIMITS. A court may modify the time limits specified in this chapter by order resulting from a pretrial conference conducted under Rule 166, Texas Rules of Civil Procedure. Sec. 42.005. SERVICE. When this chapter requires a writing to be served on another party, service is adequate if it is performed in a manner described in Rule 21a, Texas Rules of Civil Procedure.
[Sections 42.006-42.050 reserved for expansion]
SUBCHAPTER B. AWARDING LITIGATION COSTS
Sec. 42.051. SETTLEMENT OFFER. (a) A defendant or a group of defendants may serve on a claimant a settlement offer to settle all claims in the action between that defendant or those defendants and the claimant. (b) The settlement offer must: (1) be in writing; (2) state that it is a settlement offer under this chapter; (3) state the terms by which the claims may be settled; (4) state a deadline by which the settlement offer must be accepted; and (5) be served on the claimant to whom the settlement offer is made. (c) A defendant or group of defendants may not make a settlement offer under this section before the 90th day after the later of: (1) the date any of the offering defendants filed a responsive pleading; or (2) the date any of the offering defendants otherwise appeared in the action. (d) A defendant or group of defendants may not make a settlement offer under this section after the 30th day before the date set for trial. (e) The parties are not required to file a settlement offer with the court. Sec. 42.052. ACCEPTANCE OF SETTLEMENT OFFER. (a) A claimant may accept a settlement offer made under this chapter on or before 5 p.m. on the 30th day after the date the claimant received the settlement offer or before the deadline stated in the settlement offer, whichever is later. (b) Acceptance of a settlement offer must be: (1) in writing; and (2) served on the defendant or defendants who made the settlement offer. Sec. 42.053. WITHDRAWING SETTLEMENT OFFER. (a) A defendant or group of defendants may withdraw a settlement offer by serving a written withdrawal on the claimant to whom the settlement offer was made before the claimant accepts the settlement offer. A claimant may not accept a settlement offer after it is withdrawn. (b) If a settlement offer is withdrawn, the defendant or group of defendants that made the settlement offer is not entitled to recover litigation costs under this chapter. Sec. 42.054. REJECTION OF SETTLEMENT OFFER. For purposes of this chapter, a settlement offer is rejected if: (1) the claimant to whom the settlement offer was made rejects the settlement offer by serving a written rejection on any defendant making the settlement offer; or (2) the settlement offer is not withdrawn and is not accepted before the deadline for accepting the offer. Sec. 42.055. AWARD OF LITIGATION COSTS. (a) In determining the amount of monetary relief to be awarded to a claimant in the judgment under this section, the following are excluded: (1) any litigation costs awarded under this chapter; and (2) any attorney's fees, expenses, and costs incurred by the party to whom the offer was made after the date the offer is rejected. (b) Any defendant who makes a settlement offer under this chapter to a claimant seeking monetary relief shall recover litigation costs from the claimant if: (1) the settlement offer is rejected; (2) the amount of monetary relief to be awarded to the claimant in the judgment is more favorable to the defendant or group of defendants who made the settlement offer than the settlement offer; and (3) the difference between the amount of monetary relief to be awarded to the claimant in the judgment and the amount of the settlement offer is equal to or greater than 10 percent of the amount of the settlement offer. (c) Any defendant who makes a settlement offer to a claimant seeking nonmonetary relief, other than injunctive relief, may recover litigation costs from the claimant if: (1) the settlement offer is rejected; and (2) the judgment is more favorable to the defendant or group of defendants who made the settlement offer than the settlement offer. (d) Litigation costs awarded to a defendant under this section include only those litigation costs incurred by the defendant who made a settlement offer after the rejection of the earliest settlement offer that entitles the defendant to an award of litigation costs under this section. (e) Litigation costs awarded under this section shall: (1) be awarded in the judgment; and (2) offset the claimant's recovery against the offering defendant. (f) The court shall determine the amount of litigation costs awarded based on written or oral evidence presented to the court. In jury trials: (1) the evidence must be presented outside the presence of the jury; and (2) the presentation of evidence may be made after the jury has reached its verdict. (g) The trial judge who presided over the trial of the case shall act as the finder of fact in regard to the award of litigation costs under this section. If that judge is unable to do so, the local presiding judge shall appoint another judge to hear and determine all issues related to the award. (h) An award of litigation costs under this section may be reviewed on appeal from a final judgment for abuse of discretion. Sec. 42.056. LIMITATION ON LITIGATION COSTS. (a) The amount of litigation costs awarded under this chapter shall not exceed the claimant's total recovery in connection with the transactions or occurrences giving rise to the claim. (b) The claimant's total recovery under this section does not include the proceeds of an insurance policy paid to the claimant as a beneficiary of the policy, unless the proceeds are the subject of the litigation. (c) The claimant's total recovery under this section includes: (1) the amount of any monetary relief awarded to the claimant in the judgment; and (2) the amount of any money paid or to be paid to the claimant by any person in consideration of actual or potential liability in connection with the transactions or occurrences giving rise to the claim. (d) If litigation costs are awarded against a claimant under this chapter, the claimant shall not be awarded any attorney's fees, expenses, or costs to which the claimant would otherwise be entitled under any other law that were incurred by the claimant after the claimant's rejection of the earliest settlement offer that entitles the defendant or group of defendants to an award of litigation costs under this section. Sec. 42.057. ADMISSIBILITY OF EVIDENCE. (a) This chapter does not affect the admissibility or inadmissibility of evidence as provided in the Texas Rules of Evidence. (b) The provisions of this chapter may not be made known to the jury through any means, including voir dire, introduction into evidence, instruction, or argument. SECTION 2.02. This article applies only to a civil action described by Chapter 42, Civil Practice and Remedies Code, as added by this article, commenced on or after the effective date of this article. An action commenced before the effective date of this article is governed by the law in effect immediately before the change in law made by this article, and that law is continued in effect for that purpose.
ARTICLE 3. VENUE; FORUM NON CONVENIENS
SECTION 3.01. Chapter 15, Civil Practice and Remedies Code, is amended by adding Subchapter F to read as follows:
SUBCHAPTER F. TRANSFER OF PRETRIAL VENUE IN MULTIDISTRICT LITIGATION
Sec. 15.151. PURPOSE. The purpose of this subchapter is to facilitate the just and efficient resolution of litigation in the courts of this state. To accomplish this purpose, this subchapter shall be construed in harmony with federal judicial interpretation of comparable federal multidistrict litigation statutes to the extent consistent with this purpose. Sec. 15.152. DEFINITIONS. In this subchapter: (1) "Panel" means the judicial panel on multidistrict litigation authorized by Subchapter H, Chapter 74, Government Code. (2) "Related" means that cases involve common material issues of fact. Sec. 15.153. APPLICABILITY. (a) This subchapter applies to any civil action, including any class action, that is one of multiple related cases pending in the district courts of this state. (b) This subchapter does not apply to any action in which this state is a complainant arising under the antitrust laws. Sec. 15.154. TRANSFER FOR COORDINATED OR CONSOLIDATED PRETRIAL PROCEEDINGS. The panel may transfer any case to which this subchapter applies to any district court for the purpose of allowing coordinated or consolidated pretrial proceedings in related cases. Sec. 15.155. INITIATION OF TRANSFER PROCEEDINGS. (a) Proceedings to transfer a case under this subchapter may be initiated by: (1) the panel on its own initiative; or (2) a motion filed with the panel by a party in a case to which this subchapter applies. (b) A motion filed under Subsection (a)(2) must state: (1) the number and style of the case that is the subject of the motion; (2) the number and style of the related case or cases with which coordinated or consolidated pretrial proceedings are sought, and the court and county in which the related case or cases are pending; (3) the material questions of fact common to the cases; (4) the reasons why coordinated or consolidated pretrial proceedings would promote the just and efficient conduct of the cases; and (5) whether the parties to the case that is the subject of the motion agree to the motion. (c) A copy of the motion shall be filed by the movant in each case identified in Subsections (b)(1) and (2). Sec. 15.156. DETERMINATION OF TRANSFER. (a) After notice to all parties in all related cases that may be subject to coordinated or consolidated pretrial proceedings, and a hearing, the panel shall order the transfer of any or all related cases to one or more district courts for coordinated or consolidated pretrial proceedings if it determines that transfer: (1) is for the convenience of parties and witnesses; and (2) will promote the just and efficient conduct of the actions. (b) Any party to any case that would be affected by the proceedings under this subchapter may appear at the hearing and offer evidence on the propriety of coordinated or consolidated pretrial proceedings in the related cases. (c) The panel's order directing or denying transfer must be supported by findings of fact and conclusions of law. Sec. 15.157. FILING OF PANEL ORDERS. (a) Any order of the panel shall be filed by the panel in the district court in which the transfer hearing is to be or has been held. (b) A copy of an order directing or denying transfer of related cases shall be sent by the panel to both the transferee and transferor courts. (c) An order directing the transfer of related cases for coordinated or consolidated pretrial proceedings is effective when filed in the district court in which the transfer hearing was held. Sec. 15.158. REVIEW OF PANEL ORDERS. (a) Review of an order of the panel is by extraordinary writ. (b) A petition for an extraordinary writ to review an order of the panel in regard to setting a transfer hearing, or to review any other order of the panel made before the order either directing or denying transfer is made, must be filed in the court of appeals having jurisdiction over the district in which the transfer hearing is to be or has been held. (c) A petition for an extraordinary writ to review an order directing the transfer of one or more related cases, or to review any order made after the transfer order is made, must be filed in the court of appeals having jurisdiction over the transferee district. (d) An order of the panel denying a motion to transfer for coordinated or consolidated pretrial proceedings may not be appealed or reviewed. Sec. 15.159. ASSIGNMENT. (a) On request of the panel, a district judge may be assigned to preside in the transferee district over coordinated or consolidated pretrial proceedings being conducted pursuant to this subchapter. (b) The assignment may be made by the chief justice of the supreme court or by the presiding judge of the administrative judicial region in which the transferee court sits, in accordance with Subchapter C, Chapter 74, Government Code. Sec. 15.160. CONDUCT OF PROCEEDINGS. (a) The coordinated or consolidated pretrial proceedings shall be conducted by the judge or judges to whom the cases are assigned by the panel. (b) When conducting pretrial proceedings in cases coordinated or consolidated for pretrial proceedings, the judge or judges to whom the cases are assigned, the members of the panel, and other district judges designated when needed by the panel may exercise the powers of a district judge in any district, including deciding motions to transfer venue and motions for summary judgment. Sec. 15.161. REMAND. A court to which a case is transferred under this subchapter shall remand the transferred case, at or before the conclusion of pretrial proceedings, to the district court from which it was transferred unless it has been terminated, except that the court may separate any claim, cross-claim, counterclaim, or third-party claim and remand the separated claim before the remainder of the case is remanded. SECTION 3.02. Chapter 74, Government Code, is amended by adding Subchapter H to read as follows:
SUBCHAPTER H. JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
Sec. 74.161. JUDICIAL PANEL. (a) The judicial panel on multidistrict litigation consists of seven justices of the courts of appeals designated from time to time by the chief justice of the supreme court. Two panel members may not be from the same court of appeals district. (b) The concurrence of four members shall be necessary to any action by the panel. Sec. 74.162. OPERATION; RULES. (a) The judicial panel on multidistrict litigation shall operate subject to rules of administration for multidistrict litigation practice and procedure adopted by the supreme court under Section 74.024. (b) The panel may prescribe additional rules for the conduct of its business not inconsistent with Subchapter F, Chapter 15, Civil Practice and Remedies Code, and the rules of administration for multidistrict litigation practice and procedure, as adopted by the supreme court. SECTION 3.03. Section 15.003, Civil Practice and Remedies Code, is amended to read as follows: Sec. 15.003. MULTIPLE PLAINTIFFS AND INTERVENING PLAINTIFFS. (a) In a suit in which there is [where] more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, [is joined] each plaintiff must, independently of every [any] other plaintiff, establish proper venue. If a plaintiff cannot independently [Any person who is unable to] establish proper venue, that plaintiff's part of the suit, including all of that plaintiff's claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, [may not join or maintain venue for the suit as a plaintiff] unless that plaintiff [the person], independently of every [any] other plaintiff, establishes that: (1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure; (2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit; (3) there is an essential need to have that plaintiff's [the person's] claim tried in the county in which the suit is pending; and (4) the county in which the suit is pending is a fair and convenient venue for that plaintiff [the person seeking to join in or maintain venue for the suit] and all [the] persons against whom the suit is brought. (b) An interlocutory appeal may be taken of a trial court's determination under Subsection (a) that: (1) a plaintiff did or did not independently establish proper venue; or (2) a plaintiff that did not independently establish proper venue did or did not establish the items prescribed by Subsections (a)(1)-(4) [A person may not intervene or join in a pending suit as a plaintiff unless the person, independently of any other plaintiff: [(1) establishes proper venue for the county in which the suit is pending; or [(2) satisfies the requirements of Subdivisions (1) through (4) of Subsection (a)]. (c) An [Any person seeking intervention or joinder, who is unable to independently establish proper venue, or a party opposing intervention or joinder of such a person may contest the decision of the trial court allowing or denying intervention or joinder by taking an] interlocutory appeal permitted by Subsection (b) must be taken to the court of appeals district in which the trial court is located under the procedures established for interlocutory appeals. The appeal may be taken by a party that is affected by the trial court's determination under Subsection (a). [The appeal must be perfected not later than the 20th day after the date the trial court signs the order denying or allowing the intervention or joinder.] The court of appeals shall: (1) determine whether the trial court's order [joinder or intervention] is proper based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard; and (2) render judgment [its decision] not later than the 120th day after the date the appeal is perfected [by the complaining party]. (d) An interlocutory appeal under Subsection (b) has the effect of staying the commencement of trial in the trial court pending resolution of the appeal. SECTION 3.04. Section 71.051, Civil Practice and Remedies Code, is amended by amending Subsection (a) and adding Subsection (j) to read as follows: (a) If [With respect to a plaintiff who is not a legal resident of the United States, if] a court of this state, on written motion of a party, finds that in the interest of justice a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall [may] decline to exercise jurisdiction under the doctrine of forum non conveniens and shall [may] stay or dismiss the claim or action [in whole or in part] on any conditions that may be just. (j) This section does not affect the application of the common law doctrine of forum non conveniens to actions other than actions for personal injury or wrongful death. SECTION 3.05. The following sections of the Civil Practice and Remedies Code are repealed: (1) 71.051(b), (c), (d), (e), (f), (g), and (h); and (2) 71.052. SECTION 3.06. (a) Sections 3.01 and 3.02 of this article apply only to a suit commenced or pending on or after the effective date of this article. (b) Section 3.03 of this article applies only to a suit commenced on or after the effective date of this article. A suit commenced before the effective date of this article is governed by the law in effect immediately before the change in law made by Section 3.03 of this article, and that law is continued in effect for that purpose. (c) Sections 3.04 and 3.05 of this article apply only to a suit commenced on or after the effective date of this article or pending on the effective date of this article and in which the trial, or any new trial or retrial following motion, appeal, or otherwise, begins on or after that date. In a suit commenced before the effective date of this article, a trial, new trial, or retrial that is in progress on that date is governed with respect to the subject matter of Sections 3.04 and 3.05 of this article by the applicable law in effect immediately before that date, and that law is continued in effect for that purpose.
ARTICLE 4. PROPORTIONATE RESPONSIBILITY AND
DESIGNATION OF RESPONSIBLE PARTIES
SECTION 4.01. Section 33.002(a), Civil Practice and Remedies Code, is amended to read as follows: (a) This [Except as provided by Subsections (b) and (c), this] chapter applies to: (1) any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought; or (2) any action brought under the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code) in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought. SECTION 4.02. Section 33.003, Civil Practice and Remedies Code, is amended to read as follows: Sec. 33.003. DETERMINATION OF PERCENTAGE OF RESPONSIBILITY. (a) The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons with respect to each person's causing or contributing to cause in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these: (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been designated [joined] under Section 33.004. (b) This section does not require a submission to the jury of a question regarding conduct by any person without sufficient evidence to support the submission. SECTION 4.03. The heading to Section 33.004, Civil Practice and Remedies Code, is amended to read as follows: Sec. 33.004. DESIGNATION [JOINDER] OF RESPONSIBLE THIRD PARTY [PARTIES]. SECTION 4.04. Section 33.004, Civil Practice and Remedies Code, is amended by amending Subsections (a) and (b) and adding Subsections (f)-(j) to read as follows: (a) A [Except as provided in Subsections (d) and (e), prior to the expiration of limitations on the claimant's claim for damages against the defendant and on timely motion made for that purpose, a] defendant may seek to designate a person as [join] a responsible third party by filing a motion for leave to designate that person as a responsible third party [who has not been sued by the claimant]. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date. (b) Nothing in this section affects [shall affect] the third-party practice as previously recognized in the rules and statutes of this state with regard to the assertion by a defendant of rights to contribution or indemnity. Nothing in this section affects [shall affect] the filing of cross-claims or counterclaims. (f) A court shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served. (g) If an objection to the motion for leave is timely filed, the court shall grant leave to designate the person as a responsible third party unless the objecting party establishes: (1) the defendant did not plead sufficient facts concerning the alleged liability of the responsible person to satisfy the pleading requirements of the Texas Rules of Civil Procedure; and (2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged liability of the responsible person to satisfy the pleading requirements of the Texas Rules of Civil Procedure. (h) By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of this chapter without further action by the court or any party. (i) For a person whose identity is not known, the court shall grant a motion for leave to designate that person as a responsible third party if the court determines that the motion otherwise should be granted under Subsection (f) or (g) and the defendant has stated in the motion all known identifying characteristics of the person. In that circumstance, the person will be denominated as "Jane Doe" or "John Doe" until the person's identity is known. (j) The filing or granting of a motion for leave to designate a person as a responsible third party or a finding of fault against the person: (1) does not by itself impose liability on the person; and (2) may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person. SECTION 4.05. Sections 33.011(1), (2), (5), and (6), Civil Practice and Remedies Code, are amended to read as follows: (1) "Claimant" means a person [party] seeking recovery of damages [pursuant to the provisions of Section 33.001], including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff [seeking recovery of damages]. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, "claimant" includes: (A) the person who was injured, was harmed, or died or whose property was damaged; and (B) any person who is [both that other person and the party] seeking, has sought, or could seek recovery of damages for the injury, harm, or death of that person or for the damage to the property of that person [pursuant to the provisions of Section 33.001]. (2) "Defendant" includes any person [party] from whom, at the time of the submission of the case to the trier of fact, a claimant seeks recovery of damages [pursuant to the provisions of Section 33.001 at the time of the submission of the case to the trier of fact]. (5) "Settling person" means a person who [at the time of submission] has, at any time, paid or promised to pay money or anything of monetary value to a claimant [at any time] in consideration of potential liability [pursuant to the provisions of Section 33.001] with respect to the personal injury, property damage, death, or other harm for which recovery of damages is sought. (6) [(A)] "Responsible third party" means any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these. [to whom all of the following apply: [(i) the court in which the action was filed could exercise jurisdiction over the person; [(ii) the person could have been, but was not, sued by the claimant; and [(iii) the person is or may be liable to the plaintiff for all or a part of the damages claimed against the named defendant or defendants. [(B)] The term "responsible third party" does not include a seller eligible for indemnity under Section 82.002[: [(i) the claimant's employer, if the employer maintained workers' compensation insurance coverage, as defined by Section 401.011(44), Labor Code, at the time of the act, event, or occurrence made the basis of the claimant's suit; or [(ii) a person or entity that is a debtor in bankruptcy proceedings or a person or entity against whom this claimant's claim has been discharged in bankruptcy, except to the extent that liability insurance or other source of third party funding may be available to pay claims asserted against the debtor]. SECTION 4.06. Section 33.012(b), Civil Practice and Remedies Code, is amended to read as follows: (b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a credit equal to one of the following, as elected in accordance with Section 33.014: (1) the sum of the dollar amounts of all settlements; or (2) a percentage equal to each settling person's percentage of responsibility [dollar amount equal to the sum of the following percentages of damages found by the trier of fact: [(A) 5 percent of those damages up to $200,000; [(B) 10 percent of those damages from $200,001 to $400,000; [(C) 15 percent of those damages from $400,001 to $500,000; and [(D) 20 percent of those damages greater than $500,000]. SECTION 4.07. Section 33.013, Civil Practice and Remedies Code, is amended by amending Subsections (a) and (b) and adding Subsections (e) and (f) to read as follows: (a) Except as provided in Subsection [Subsections] (b) [and (c)], a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed. (b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if: (1) the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent; or (2) the defendant, with the specific intent to do harm to others, acted in concert with another person to engage in the conduct described in the following provisions of the Penal Code and in so doing proximately caused the damages legally recoverable by the claimant: (A) Section 19.02 (murder); (B) Section 19.03 (capital murder); (C) Section 20.04 (aggravated kidnapping); (D) Section 22.02 (aggravated assault); (E) Section 22.011 (sexual assault); (F) Section 22.021 (aggravated sexual assault); (G) Section 22.04 (injury to a child, elderly individual, or disabled individual); (H) Section 32.21 (forgery); (I) Section 32.43 (commercial bribery); (J) Section 32.45 (misapplication of fiduciary property or property of financial institution); (K) Section 32.46 (securing execution of document by deception); (L) Section 32.47 (fraudulent destruction, removal, or concealment of writing); or (M) conduct described in Chapter 31 the punishment level for which is a felony of the third degree or higher. (e) Notwithstanding anything to the contrary stated in the provisions of the Penal Code listed in Subsection (b)(2), that subsection applies only if the claimant proves the defendant acted or failed to act with specific intent to do harm. A defendant acts with specific intent to do harm with respect to the nature of the defendant's conduct and the result of the person's conduct when it is the person's conscious effort or desire to engage in the conduct for the purpose of doing substantial harm to others. (f) The jury may not be made aware through voir dire, introduction into evidence, instruction, or any other means that the conduct to which Subsection (b)(2) refers is defined by the Penal Code. SECTION 4.08. Section 33.014, Civil Practice and Remedies Code, is amended to read as follows: Sec. 33.014. ELECTION OF CREDIT FOR SETTLEMENTS. If a claimant has settled with one or more persons, an election must be made as to which [dollar] credit is to be applied under Section 33.012(b). This election shall be made by [any defendant] filing a written election before the issues of the action are submitted to the trier of fact [and, when made, shall be binding on all defendants]. If a defendant does not make an election, that defendant is [no defendant makes this election or if conflicting elections are made, all defendants are] considered to have elected Subdivision (2) of Section 33.012(b). SECTION 4.09. Section 33.017, Civil Practice and Remedies Code, is amended to read as follows: Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY. Nothing in this chapter shall be construed to affect any rights of indemnity granted by [to a seller eligible for indemnity by Chapter 82, the Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil Statutes), or] any [other] statute, [nor shall it affect rights of indemnity granted] by contract, or by [at] common law. To the extent of any conflict between this chapter and any right to indemnification granted by [Section 82.002, the Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's Texas Civil Statutes), or any other] statute, contract, or common law, those rights of indemnification shall prevail over the provisions of this chapter. SECTION 4.10. Section 417.001(b), Labor Code, is amended to read as follows: (b) If a benefit is claimed by an injured employee or a legal beneficiary of the employee, the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third party in the name of the injured employee or the legal beneficiary. The insurance carrier's subrogation interest is limited to the amount of the total benefits paid or assumed by the carrier to the employee or the legal beneficiary, less the amount by which the court reduces the judgment based on the percentage of responsibility determined by the trier of fact under Section 33.003, Civil Practice and Remedies Code, attributable to the employer. If the recovery is for an amount greater than the amount of the insurance carrier's subrogation interest [that paid or assumed by the insurance carrier to the employee or the legal beneficiary], the insurance carrier shall: (1) reimburse itself and pay the costs from the amount recovered; and (2) pay the remainder of the amount recovered to the injured employee or the legal beneficiary. SECTION 4.11. The following sections of the Civil Practice and Remedies Code are repealed: (1) 33.002(b), (d), (e), (f), (g), and (h); (2) 33.004(c), (d), and (e); (3) 33.011(7); (4) 33.012(c); and (5) 33.013(c). SECTION 4.12. (a) Except as provided by Subsection (b) of this section, this article applies only to a suit commenced or pending on or after the effective date of this article. (b) This article does not apply to a suit in which the trial on the merits commenced on or before the effective date of this article; that suit is governed by the law in effect immediately before the change in law made by this article, and that law is continued in effect for that purpose.
ARTICLE 5. PRODUCTS LIABILITY
SECTION 5.01. Section 16.012, Civil Practice and Remedies Code, is amended to read as follows: Sec. 16.012. PRODUCTS LIABILITY[: MANUFACTURING EQUIPMENT]. (a) In this section: (1) "Claimant," ["products liability action,"] "seller," and "manufacturer" have the meanings assigned by Section 82.001. (2) "Products liability action" means any action against a manufacturer or seller relating to an alleged defective product, whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories, and whether the relief sought is the recovery of damages or to obtain any other legal or equitable relief, including a suit for: (A) injury, damage, or loss to real or personal property; (B) personal injury; (C) wrongful death; (D) economic loss; or (E) declaratory, injunctive, or other equitable relief. ["Manufacturing equipment" means equipment and machinery used in the manufacturing, processing, or fabrication of tangible personal property but does not include agricultural equipment or machinery.] (b) Except as provided by Subsection (c), a claimant must commence a products liability action against a manufacturer or seller of a product [manufacturing equipment] before the end of 15 years after the date of the sale of the product [equipment] by the defendant. (c) If a manufacturer or seller expressly warrants in writing [represents] that the product [manufacturing equipment] has a useful safe life of longer than 15 years, a claimant must commence a products liability action against that manufacturer or seller of the product [equipment] before the end of the number of years warranted [represented] after the date of the sale of the product [equipment] by that seller. [(d) This section does not reduce a limitations period that applies to a products liability action involving manufacturing equipment that accrues before the end of the limitations period under this section.] (e) This section does not extend the limitations period within which a products liability action involving the product [manufacturing equipment] may be commenced under any other law. (f) This section applies only to the sale and not to the lease of a product [manufacturing equipment]. SECTION 5.02. Chapter 82, Civil Practice and Remedies Code, is amended by adding Sections 82.003, 82.007, 82.008, and 82.009 to read as follows: Sec. 82.003. LIABILITY OF NONMANUFACTURING SELLERS. A seller that did not manufacture a product is not liable for harm caused to the claimant by that product unless the claimant proves: (1) that the seller altered or modified the product and the claimant's harm resulted from that alteration or modification; (2) that: (A) the seller exercised substantial control over the content of a warning or instruction that accompanied the product; (B) the warning or instruction was inadequate; and (C) the claimant's harm resulted from the inadequacy of the warning or instruction; (3) that: (A) the seller made an express factual representation about an aspect of the product; (B) the representation was incorrect; (C) the claimant relied on the representation in obtaining or using the product; and (D) if the aspect of the product had been as represented, the claimant would not have been harmed by the product or would not have suffered the same degree of harm; or (4) that: (A) the seller actually knew of a defect to the product at the time the seller supplied the product; and (B) the claimant's harm resulted from the defect. Sec. 82.007. MEDICINES. In a products liability action alleging that an injury was caused by a failure to provide adequate warnings or information with regard to a pharmaceutical product, the defendant or defendants, including a health care provider, manufacturer, distributor, and prescriber, are not liable with respect to the allegations if: (1) the warnings or information that accompanied the product in its distribution were those required by the United States Food and Drug Administration for a product approved under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), as amended, or Section 351, Public Health Service Act (42 U.S.C. Section 262), as amended; or (2) the warnings provided were those stated in monographs developed by the United States Food and Drug Administration for pharmaceutical products that may be distributed without an approved new drug application. Sec. 82.008. EVIDENCE OF SUBSEQUENT IMPROVEMENTS AND MEASURES. In a products liability action, a court may not admit, except for purposes of impeachment, evidence of a subsequent improvement made or measure taken with respect to the defect alleged to have caused harm, or a similar product, that, if made or taken before the product was supplied, would have made the claimant's harm less likely. Sec. 82.009. COMPLIANCE WITH GOVERNMENT STANDARDS. (a) A product manufacturer, distributor, or seller is not liable for any injury to a claimant allegedly caused by some aspect of the formulation, labeling, or design of a product if the product manufacturer, distributor, or seller proves by a preponderance of the evidence that the product's formula, labeling, or design complied with mandatory safety standards or regulations adopted and promulgated by the state or federal government, or an agency of the state or federal government, that were applicable to the product at the time of manufacture, and that governed the product risk that caused harm, unless the claimant proves by clear and convincing evidence that the mandatory state or federal safety standards or regulations applicable to the product were grossly inadequate to protect the public from unreasonable risks of injury or damage. (b) A product manufacturer, distributor, or seller is not liable for any injury to a claimant allegedly caused by some aspect of the formulation, labeling, or design of a product if the product manufacturer, distributor, or seller proves by a preponderance of the evidence that the product was subject to premarket licensing or approval by an agency of the state or federal government, that the manufacturer complied with all of the agency's procedures and requirements with respect to premarket licensing or approval, and that after full consideration of the product's risks and benefits the product was approved or licensed for sale by the agency, unless the claimant proves by clear and convincing evidence that: (1) the standards or procedures used in the particular premarket approval or licensing process were grossly inadequate to protect the public from unreasonable risks of injury or damage; or (2) the manufacturer, before or after premarket approval or licensing of the product, withheld from or misrepresented to the agency required information that was material and relevant to the performance of the product and was causally related to the claimant's injury. (c) This section does not extend to manufacturing flaws or defects even though the product manufacturer has complied with all quality control and manufacturing practices mandated by the agency. SECTION 5.03. (a) Section 5.01 of this article applies only to a suit commenced on or after the effective date of this article. A suit commenced before the effective date of this article is governed by the law in effect immediately before the change in law made by Section 5.01 of this article, and that law is continued in effect for that purpose. (b) Section 5.02 of this article applies only to a suit commenced on or after the effective date of this article or pending on the effective date of this article and in which the trial, or any new trial or retrial following motion, appeal, or otherwise, begins on or after that date. In a suit commenced before the effective date of this article, a trial, new trial, or retrial that is in progress on that date is governed with respect to the subject matter of Section 5.02 of this article by the applicable law in effect immediately before that date, and that law is continued in effect for that purpose.
ARTICLE 6. INTEREST
SECTION 6.01. Section 304.003(c), Finance Code, is amended to read as follows: (c) The postjudgment interest rate is: (1) the weekly average one-year constant maturity treasury yield [auction rate quoted on a discount basis for 52-week treasury bills issued by the United States government] as most recently published by the Board of Governors of the Federal Reserve System [Federal Reserve Board] before the date of computation; (2) five [10] percent a year if the weekly average one-year constant maturity treasury yield [auction rate] described by Subdivision (1) is less than five [10] percent; or (3) 15 [20] percent a year if the weekly average one-year constant maturity treasury yield [auction rate] described by Subdivision (1) is more than 15 [20] percent. SECTION 6.02. Subchapter B, Chapter 304, Finance Code, is amended by adding Section 304.1045 to read as follows: Sec. 304.1045. FUTURE DAMAGES. Prejudgment interest may not be assessed or recovered on an award of future damages. SECTION 6.03. This article applies only to a suit in which a judgment is signed on or after the effective date of this article, without regard to whether the suit commenced before, on, or after that date.
ARTICLE 7. APPEAL BONDS
SECTION 7.01. Section 35.006, Civil Practice and Remedies Code, is amended to read as follows: Sec. 35.006. STAY. (a) If the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, that the time for taking an appeal has not expired, or that a stay of execution has been granted, has been requested, or will be requested, and proves that the judgment debtor has furnished or will furnish the security for the satisfaction of the judgment required by the state in which it was rendered, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated. (b) If the judgment debtor shows the court a ground on which enforcement of a judgment of the court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period and require the same security for suspending enforcement [satisfaction] of the judgment that is required in this state in accordance with Section 52.006. SECTION 7.02. Chapter 52, Civil Practice and Remedies Code, is amended by adding Section 52.006 to read as follows: Sec. 52.006. AMOUNT OF SECURITY FOR MONEY JUDGMENT. (a) Subject to Subsection (b), when a judgment is for money, the amount of security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgement. (b) Notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of: (1) 50 percent of the judgment debtor's net worth; or (2) $25 million. (c) On a showing by the judgment debtor that the judgment debtor is likely to suffer substantial economic harm if required to post security in an amount required under Subsection (a) or (b), the trial court shall lower the amount of the security to an amount that will not cause the judgment debtor substantial economic harm. (d) An appellate court may review the amount of security as allowed under Rule 24, Texas Rules of Appellate Procedure, except that when a judgment is for money, the appellate court may not modify the amount of security to exceed the amount allowed under this section. SECTION 7.03. The following sections of the Civil Practice and Remedies Code are repealed: (1) 52.002; (2) 52.003; and (3) 52.004. SECTION 7.04. This article applies only to a suit in which a judgment is signed on or after the effective date of this article, without regard to whether the suit commenced before, on, or after that date.
ARTICLE 8. EVIDENCE RELATING TO SEAT BELTS
SECTION 8.01. Section 545.413(g), Transportation Code, is repealed. SECTION 8.02. (a) Except as provided by Subsection (b) of this section, this article applies only to a suit commenced or pending on or after the effective date of this article. (b) This article does not apply to a suit in which the trial on the merits commenced on or before the effective date of this article.
ARTICLE 9. RESERVED
ARTICLE 10. HEALTH CARE
SECTION 10.01. Section 1.03(a), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by amending Subdivisions (3), (4), and (8) and adding Subdivisions (10)-(22) to read as follows: (3)(A) "Health care provider" means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: (i) [as] a registered nurse; (ii) a [,] hospital; (iii) a nonprofit hospital system; (iv) a [,] dentist; (v) a hospice; (vi) a [,] podiatrist; (vii) a [,] pharmacist; (viii) an emergency medical services provider; (ix) an assisted living facility; (x) a home and community support services agency; (xi) an intermediate care facility for the mentally retarded or a home and community-based services waiver program for persons with mental retardation adopted in accordance with Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)), as amended; [,] or (xii) a nursing home. (B) The term includes: (i) [, or] an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and (ii) an employee, independent contractor, or agent of a health care provider or physician [thereof] acting in the course and scope of the [his] employment or contractual relationship. (4) "Health care liability claim" means a cause of action against a health care provider or physician arising out of or related to [for] treatment, lack of treatment, or other claimed departure from accepted standards of medical care, [or] health care, or safety or professional or administrative services practice or procedure which proximately results in injury to or death of a claimant [the patient], whether the claimant's [patient's] claim or cause of action sounds in tort or contract. (8) "Physician" means: (A) an individual [a person] licensed to practice medicine in this state; (B) a professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) by an individual physician or group of physicians; (C) a partnership or limited liability partnership formed by a group of physicians; (D) a nonprofit health corporation certified under Section 162.001, Occupations Code; or (E) a company formed by a group of physicians under the Texas Limited Liability Company Act (Article 1528n, Vernon's Texas Civil Statutes). (10) "Affiliate" means a person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary. (11) "Claimant" means a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant. (12) "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the person, whether through ownership of equity or securities, by contract, or otherwise. (13) "Economic damages" means compensatory damages for any pecuniary loss or damage. The term does not include noneconomic damages. (14) "Emergency medical care" means bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in: (A) placing the patient's health in serious jeopardy; (B) serious impairment to bodily functions; or (C) serious dysfunction of any bodily organ or part. (15) "Emergency medical services provider" means a licensed public or private provider to which Chapter 773, Health and Safety Code, applies. (16) "Home and community support services agency" means a licensed public or provider agency to which Chapter 142, Health and Safety Code, applies. (17) "Intermediate care facility for the mentally retarded" means a licensed public or private institution to which Chapter 252, Health and Safety Code, applies. (18) "Noneconomic damages" means any loss or damage, however characterized, for past, present, and future physical pain and suffering, mental anguish and suffering, loss of consortium, loss of companionship and society, disfigurement, physical impairment, and any other nonpecuniary loss or damage or element of loss or damage. (19) "Nursing home" means a licensed public or private institution to which Chapter 242, Health and Safety Code, applies. (20) "Professional or administrative services" means those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician's or health care provider's license, accreditation status, or certification to participate in state or federal health care programs. (21) "Hospice" means a hospice facility or activity to which Chapter 142, Health and Safety Code, applies. (22) "Hospital system" means a system of local nonprofit hospitals and nonprofit entities created by the hospital or its parent entity to further the charitable purposes of the hospital under the common governance of a single corporate parent that are located within a radius of not more than 125 linear miles from the corporate parent. SECTION 10.02. Subchapter A, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 1.04 to read as follows: Sec. 1.04. CONFLICT WITH OTHER LAW AND RULES OF CIVIL PROCEDURE. (a) In the event of a conflict between this Act and another law, including a rule of procedure or evidence or court rule, this Act controls to the extent of the conflict. (b) Notwithstanding Section 22.004, Government Code, and except as otherwise provided by this Act, the supreme court may not amend or adopt rules in conflict with this Act. (c) The district courts and statutory county courts in a county may not adopt local rules in conflict with this Act. SECTION 10.03. Section 4.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Subsection (f) to read as follows: (f) Notwithstanding the provisions of Rule 202, Texas Rules of Civil Procedure, a deposition may not be taken of a physician or health care provider for the purpose of investigating a health care liability claim before the filing of a lawsuit. SECTION 10.04. The heading to Subchapter G, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: SUBCHAPTER G. EVIDENTIARY MATTERS [RES IPSA LOQUITUR] SECTION 10.05. Subchapter G, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Sections 7.03 and 7.04 to read as follows: Sec. 7.03. FEDERAL OR STATE INCOME TAXES. (a) Notwithstanding any other law, in a health care liability claim, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, evidence to prove the loss must be presented in the form of a net after-tax loss that either was or should have been paid by the injured party or decedent through which the alleged loss has occurred. (b) In a health care liability claim, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, the court shall instruct the jury whether any recovery for compensatory damages sought by the claimant is subject to federal or state income taxes. Sec. 7.04. JURY INSTRUCTIONS IN CASES INVOLVING EMERGENCY MEDICAL CARE. (a) In a health care liability claim that involves a claim of negligence arising from the provision of emergency medical care, the court shall instruct the jury to consider, together with all other relevant matters: (1) whether the person providing care did not have the patient's medical history or was unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications; (2) the lack of a preexisting physician-patient relationship or health care provider-patient relationship; (3) the circumstances constituting the emergency; and (4) the circumstances surrounding the delivery of the emergency medical care. (b) The provisions of Subsection (a) of this section do not apply to medical care or treatment: (1) that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient; or (2) that is unrelated to the original medical emergency. SECTION 10.06. The heading to Subchapter I, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:
SUBCHAPTER I. PAYMENT OF MEDICAL OR HEALTH CARE EXPENSES [ADVANCE PAYMENTS]
SECTION 10.07. Subchapter I, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 9.01 to read as follows: Sec. 9.01. RECOVERY OF MEDICAL OR HEALTH CARE EXPENSES. Recovery of medical or health care expenses in a health care liability claim shall be limited to the amount actually paid or incurred by or on behalf of the claimant. SECTION 10.08. Section 10.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: Sec. 10.01. LIMITATION ON HEALTH CARE LIABILITY CLAIMS. (a) Notwithstanding any other law and subject to Subsection (b) of this section, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability. (b) A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred. SECTION 10.09. Section 11.02, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Subsections (e) and (f) to read as follows: (e) The limitation on health care liability claims contained in Subsection (a) of this section includes punitive damages. (f) The limitation on health care liability claims contained in Subsection (a) of this section shall be applied on a per-claimant basis. SECTION 10.10. Section 11.03, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: Sec. 11.03. LIMITATION ON NONECONOMIC DAMAGES [ALTERNATIVE PARTIAL LIMIT ON CIVIL LIABILITY]. [In the event that Section 11.02(a) of this subchapter is stricken from this subchapter or is otherwise invalidated by a method other than through legislative means, the following shall become effective:] In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for noneconomic damages of the physician or health care provider shall be limited to an amount not to exceed $250,000 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based [of the physician or health care provider for all past and future noneconomic losses recoverable by or on behalf of any injured person and/or the estate of such person, including without limitation as applicable past and future physical pain and suffering, mental anguish and suffering, consortium, disfigurement, and any other nonpecuniary damage, shall be limited to an amount not to exceed $150,000]. SECTION 10.11. Subchapter K, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 11.031 to read as follows: Sec. 11.031. ALTERNATIVE LIMITATION ON NONECONOMIC DAMAGES. (a) In the event that Section 11.03 of this subchapter is stricken from this subchapter or is otherwise to any extent invalidated by a method other than through legislative means, the following, subject to the provisions of this section, shall become effective: In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for all damages and losses, other than economic damages, shall be limited to an amount not to exceed $250,000 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based. (b) Effective before September 1, 2005, Subsection (a) of this section applies to any physician or health care provider that provides evidence of financial responsibility in the following amounts in effect for any act or omission to which this subchapter applies: (1) at least $100,000 for each health care liability claim and at least $300,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician participating in an approved residency program; (2) at least $200,000 for each health care liability claim and at least $600,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician or health care provider, other than a hospital; and (3) at least $500,000 for each health care liability claim and at least $1.5 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a hospital. (c) Effective September 1, 2005, Subsection (a) of this section applies to any physician or health care provider that provides evidence of financial responsibility in the following amounts in effect for any act or omission to which this subchapter applies: (1) at least $100,000 for each health care liability claim and at least $300,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician participating in an approved residency program; (2) at least $300,000 for each health care liability claim and at least $900,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician or health care provider, other than a hospital; and (3) at least $750,000 for each health care liability claim and at least $2.25 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a hospital. (d) Effective September 1, 2007, Subsection (a) of this section applies to any physician or health care provider that provides evidence of financial responsibility in the following amounts in effect for any act or omission to which this subchapter applies: (1) at least $100,000 for each health care liability claim and at least $300,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician participating in an approved residency program; (2) at least $500,000 for each health care liability claim and at least $1 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician or health care provider, other than a hospital; and (3) at least $1 million for each health care liability claim and at least $3 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a hospital. (e) Evidence of financial responsibility may be established at the time of judgment by providing proof of: (1) the purchase of a contract of insurance or other plan of insurance authorized by this state; (2) the purchase of coverage from a trust organized and operating under Article 21.49-4, Insurance Code; (3) the purchase of coverage or another plan of insurance provided by or through a risk retention group or purchasing group authorized under applicable laws of this state or under the Product Liability Risk Retention Act of 1981 (15 U.S.C. Section 3901 et seq.), as amended, or the Liability Risk Retention Act of 1986 (15 U.S.C. Section 3901 et seq.), as amended, or any other contract or arrangement for transferring and distributing risk relating to legal liability for damages, including cost or defense, legal costs, fees, and other claims expenses; or (4) the maintenance of financial reserves in or an irrevocable letter of credit from a federally insured financial institution that has its main office or a branch office in this state. SECTION 10.12. Section 11.04, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: Sec. 11.04. ADJUSTMENT OF LIABILITY LIMIT [LIMITS]. When there is an increase or decrease in the consumer price index with respect to the amount of that index on the effective date of this subchapter, [each of] the liability limit [limits] prescribed in Section 11.02(a) [or in Section 11.03] of this subchapter[, as applicable,] shall be increased or decreased, as applicable, by a sum equal to the amount of such limit multiplied by the percentage increase or decrease in the consumer price index between the effective date of this subchapter and the time at which damages subject to such limit [limits] are awarded by final judgment or settlement. SECTION 10.13. Subchapter L, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 12.02 to read as follows: Sec. 12.02. STANDARD OF PROOF IN CASES INVOLVING EMERGENCY MEDICAL CARE. In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care, the person bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the person shows by clear and convincing evidence that the physician or health care provider did not use the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances. SECTION 10.14. The heading to Section 13.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: Sec. 13.01. [COST BOND, DEPOSIT, AND] EXPERT REPORT. SECTION 10.15. Section 13.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by amending Subsections (a), (b), (i), (j), (k), and (l) and adding Subsections (s) and (t) to read as follows: (a) In a health care liability claim, a claimant shall, not later than the 180th [90th] day after the date the claim is filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the[: [(1) file a separate cost bond in the amount of $5,000 for each physician or health care provider named by the claimant in the action; [(2) place cash in an escrow account in the amount of $5,000 for each physician or health care provider named in the action; or [(3) file an expert] report for each physician or health care provider against whom a liability claim is asserted [with respect to whom a cost bond has not been filed and cash in lieu of the bond has not been deposited under Subdivision (1) or (2) of this subsection]. (b) If, as to a defendant physician or health care provider, an expert report[, cost bond, or cash in lieu of bond] has not been served [filed or deposited] within the period specified by Subsection (a) [or (h)] of this section, the court, on the motion of the affected physician or health care provider, shall enter an order that: (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider [requires the filing of a $7,500 cost bond with respect to the physician or health care provider not later than the 21st day after the date of the order]; and (2) dismisses the claim [provides that if the claimant fails to comply with the order, the action shall be dismissed for want of prosecution] with respect to the physician or health care provider, with prejudice to the refiling of the claim [subject to reinstatement in accordance with the applicable rules of civil procedure and Subsection (c) of this section]. (i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving [filing] an expert report by serving [filing] reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider. (j) Nothing in this section shall be construed to require the serving [filing] of an expert report regarding any issue other than an issue relating to liability or causation. (k) An [Notwithstanding any other law, an] expert report served [filed] under this section: (1) is not admissible in evidence by any party [a defendant]; (2) shall not be used in a deposition, trial, or other proceeding; and (3) shall not be referred to by any party [a defendant] during the course of the action for any purpose. (l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective [a] good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section. (s) Until a claimant has served the expert report and curriculum vitae, as required by Subsection (a) of this section, all discovery in a health care liability claim is stayed except for the acquisition of the patient's medical records, medical or psychological studies, or tissue samples through: (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure; (2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure. (t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement of Subsection (a) of this section, the restrictions imposed by Subsection (k) of this section on use of the expert report by any party are waived. SECTION 10.16. Section 13.01(r)(5), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: (5) "Expert" means: (A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 14.01(a) of this Act; [or] (B) with respect to a person giving opinion testimony regarding whether [about] a [nonphysician] health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 14.02 of this Act; (C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence; (D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist who is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence; or (E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist who is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence [who has knowledge of accepted standards of care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim]. SECTION 10.17. Sections 14.01(e) and (g), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), are amended to read as follows: (e) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications. (g) In this subchapter [section], "physician" means a person who is: (1) licensed to practice medicine in one or more states in the United States; or (2) a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant's standard of care, the alleged departure from that standard of care, or the causal relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed. SECTION 10.18. Subchapter N, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Sections 14.02 and 14.03 to read as follows: Sec. 14.02. QUALIFICATIONS OF EXPERT WITNESS IN SUIT AGAINST HEALTH CARE PROVIDER. (a) For purposes of this section, "practicing health care" includes: (1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider. (b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person: (1) is practicing health care in the same field of practice as the defendant health care provider at the time the testimony is given or was practicing that type of health care at the time the claim arose; (2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. (c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is certified by a Texas licensing agency or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim. (d) The court shall apply the criteria specified in Subsections (a), (b), and (c) of this section in determining whether an expert is qualified to offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria. (e) This section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider, from qualifying as an expert. (f) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications. Sec. 14.03. QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided by Subsections (b) and (c) of this section, in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (b) In a suit involving a health care liability claim against a dentist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a dentist and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (c) In a suit involving a health care liability claim against a podiatrist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a podiatrist and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (d) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications. SECTION 10.19. Section 16.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows: Sec. 16.01. APPLICATION OF OTHER LAW. Notwithstanding Chapter 304, Finance Code [Articles 1E.101, 1E.102, and 1E.104-1E.108, Title 79, Revised Statutes], prejudgment interest in a judgment on a health care liability claim shall be awarded in accordance with this subchapter. SECTION 10.20. Sections 16.02(b) and (c), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), are amended to read as follows: (b) Subject to Subchapter K of this Act [In a health care liability claim that is not settled within the period specified by Subsection (a) of this section], the judgment must include prejudgment interest on past damages awarded in the judgment [found by the trier of fact], but shall not include prejudgment interest on future damages awarded in the judgment [found by the trier of fact]. (c) Prejudgment interest allowed under this subchapter shall be computed in accordance with Section 304.003(c)(1), Finance Code [Article 1E.103, Title 79, Revised Statutes], for a period beginning on the date of injury and ending on the date before the date the judgment is signed. SECTION 10.21. The Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is amended by adding Subchapters Q, R, S, and T to read as follows:
SUBCHAPTER Q. COLLATERAL SOURCE BENEFITS
Sec. 17.01. DEFINITION. In this subchapter, "collateral source benefit" means a benefit paid or payable to or on behalf of a claimant under: (1) the Social Security Act (42 U.S.C. Section 301 et seq.), and its subsequent amendments; (2) a state or federal income replacement, disability, workers' compensation, or other law that provides partial or full income replacement; or (3) any insurance policy, other than a life insurance policy, including: (A) an accident, health, or sickness insurance policy; and (B) a disability insurance policy. Sec. 17.02. ADMISSIBILITY OF EVIDENCE OF COLLATERAL SOURCE BENEFITS. A defendant physician or health care provider may introduce evidence in a health care liability claim of any amount payable to the claimant as a collateral benefit. If a defendant physician or health care provider introduces evidence of a collateral source benefit, the claimant may introduce evidence of any amount the claimant has paid to secure the right to the benefit. Sec. 17.03. MAINTENANCE OF COVERAGE DURING CLAIM. (a) During the pendency of a health care liability claim, if the claimant has a policy of insurance that provides health benefits or income disability coverage and the claimant is unwilling or unable to pay the costs of renewing or continuing that policy of insurance in force, the defendant physician or health care provider may tender to the claimant the cost of maintaining the insurance coverage. (b) On receipt of the tender, the claimant shall continue the policy in force. Sec. 17.04. SUBROGATION. The payer of collateral benefits introduced under this subchapter may not recover any amount against the claimant and is not subrogated to any rights or claims of the claimant, unless authorized by a federal law.
SUBCHAPTER R. PAYMENT FOR FUTURE LOSSES
Sec. 18.01. DEFINITIONS. In this subchapter: (1) "Future damages" means damages that are incurred after the date of judgment for: (A) medical, health care, or custodial care services; (B) physical pain and mental anguish, disfigurement, or physical impairment; (C) loss of consortium, companionship, or society; or (D) loss of earnings. (2) "Future loss of earnings" means the following losses incurred after the date of the judgment: (A) loss of income, wages, or earning capacity and other pecuniary losses; and (B) loss of inheritance. (3) "Periodic payments" means the payment of money or its equivalent to the recipient of future damages at defined intervals. Sec. 18.02. SCOPE OF SUBCHAPTER. This subchapter applies only to an action on a health care liability claim against a physician or health care provider in which the present value of the award of future damages, as determined by the court, equals or exceeds $100,000. Sec. 18.03. COURT ORDER FOR PERIODIC PAYMENTS. (a) At the request of a defendant physician or health care provider or claimant, the court shall order that future damages awarded in a health care liability claim be paid in whole or in part in periodic payments rather than by a lump-sum payment. (b) The court shall make a specific finding of the dollar amount of periodic payments that will compensate the claimant for the future damages. (c) The court shall specify in its judgment ordering the payment of future damages by periodic payments the: (1) recipient of the payments; (2) dollar amount of the payments; (3) interval between payments; and (4) number of payments or the period of time over which payments must be made. Sec. 18.04. RELEASE. The entry of an order for the payment of future damages by periodic payments constitutes a release of the health care liability claim filed by the claimant. Sec. 18.05. FINANCIAL RESPONSIBILITY. (a) As a condition to authorizing periodic payments of future damages, the court shall require a defendant who is not adequately insured to provide evidence of financial responsibility in an amount adequate to assure full payment of damages awarded by the judgment. (b) The judgment must provide for payments to be funded by: (1) an annuity contract issued by a company licensed to do business as an insurance company; (2) an obligation of the United States; (3) applicable and collectible liability insurance from one or more qualified insurers; or (4) any other satisfactory form of funding approved by the court. (c) On termination of periodic payments of future damages, the court shall order the return of the security, or as much as remains, to the defendant. Sec. 18.06. DEATH OF RECIPIENT. (a) On the death of the recipient, money damages awarded for loss of future earnings continue to be paid to the estate of the recipient of the award without reduction. (b) Periodic payments, other than future loss of earnings, terminate on the death of the recipient. (c) If the recipient of periodic payments dies before all payments required by the judgment are paid, the court may modify the judgment to award and apportion the unpaid damages for future loss of earnings in an appropriate manner. (d) Following the satisfaction or termination of any obligations specified in the judgment for periodic payments, any obligation of the defendant physician or health care provider to make further payments ends and any security given reverts to the defendant. Sec. 18.07. AWARD OF ATTORNEY'S FEES. For purposes of computing the award of attorney's fees when the claimant is awarded a recovery that will be paid in periodic payments, the court shall: (1) place a total value on the payments based on the claimant's projected life expectancy; and (2) reduce the amount in Subdivision (1) to present value.
SUBCHAPTER S. ATTORNEY'S FEES
Sec. 19.01. DEFINITION. In this subchapter, "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical or health care services incurred by the claimant and the attorney's office overhead costs or charges are not deductible disbursements or costs. Sec. 19.02. APPLICABILITY. The limitations in this subchapter apply without regard to whether: (1) the recovery is by settlement, arbitration, or judgment; or (2) the person for whom the recovery is sought is an adult, a minor, or an incapacitated person. Sec. 19.03. PERIODIC PAYMENTS. If periodic payments are recovered by the claimant, the court shall place a total value on these payments based on the claimant's projected life expectancy and then reduce this amount to present value for purposes of computing the award of attorney's fees. Sec. 19.04. LIMITATION ON ATTORNEY CONTINGENCY FEE AGREEMENTS. (a) An attorney may not contract for or collect a contingency fee for representing any person seeking damages in connection with a health care liability claim in excess of 33-1/3 percent of the amount recovered. (b) This section has no effect if Section 11.03 of this Act is stricken from this Act or is otherwise to any extent invalidated by a method other than through legislative means. Sec. 19.05. ALTERNATIVE LIMIT ON ATTORNEY CONTINGENCY FEES. (a) If Section 11.03 of this Act is stricken from this Act or is otherwise to any extent invalidated by a method other than through legislative means, this section is effective. (b) An attorney may not contract for or collect a contingency fee for representing any person seeking damages in connection with a health care liability claim that exceeds the following limits: (1) 40 percent of the first $50,000 recovered; (2) 33.3 percent of the next $50,000 recovered; (3) 25 percent of the next $500,000 recovered; and (4) 15 percent of any additional amount recovered.
SUBCHAPTER T. DECLARATORY JUDGMENTS; INJUNCTIONS; APPEALS
Sec. 20.01. APPLICABILITY. This subchapter applies only to an amendment to this Act that is effective on or after January 1, 2003. Sec. 20.02. DECLARATORY JUDGMENT. The constitutionality and other validity under the state or federal constitution of all or any part of an amendment to this Act may be determined in an action for declaratory judgment in a district court in Travis County under Chapter 37, Civil Practice and Remedies Code, if it is alleged that the amendment or a part of the amendment affects the rights, status, or legal relation of a party in a civil action with respect to any other party in the civil action. Sec. 20.03. ACCELERATED APPEAL. (a) An appeal of a declaratory judgment or order, however characterized, of a district court, including an appeal of the judgment of an appellate court, holding or otherwise determining, under Section 20.02 of this subchapter, that all or any part of an amendment to this Act is constitutional or unconstitutional, or otherwise valid or invalid, under the state or federal constitution is an accelerated appeal. (b) If the judgment or order is interlocutory, an interlocutory appeal may be taken from the judgment or order and is an accelerated appeal. Sec. 20.04. INJUNCTIONS. A district court in Travis County may grant or deny a temporary or otherwise interlocutory injunction or a permanent injunction on the grounds of the constitutionality or unconstitutionality, or other validity or invalidity, under the state or federal constitution of all or any part of an amendment to this Act. Sec. 20.05. DIRECT APPEAL. (a) There is a direct appeal to the supreme court from an order, however characterized, of a trial court granting or denying a temporary or otherwise interlocutory injunction or a permanent injunction on the grounds of the constitutionality or unconstitutionality, or other validity or invalidity, under the state or federal constitution of all or any part of any amendment to this Act. (b) The direct appeal is an accelerated appeal. (c) This section exercises the authority granted by Section 3-b, Article V, Texas Constitution. Sec. 20.06. STANDING OF AN ASSOCIATION OR ALLIANCE TO SUE. (a) An association or alliance has standing to sue for and obtain the relief described by Subsection (b) of this section if it is alleged that: (1) the association or alliance has more than one member who has standing to sue in the member's own right; (2) the interests the association or alliance seeks to protect are germane to a purpose of the association or alliance; and (3) the claim asserted and declaratory relief requested by the association or alliance relate to all or a specified part of the amendment involved in the action being found constitutional or unconstitutional on its face, or otherwise found valid or invalid on its face, under the state or federal constitution. (b) The association or alliance has standing: (1) to sue for and obtain a declaratory judgment under Section 20.02 of this subchapter in an action filed and maintained by the association or alliance; (2) to appeal or otherwise be a party to an appeal under Section 20.03 of this subchapter; (3) to sue for and obtain an order under Section 20.04 of this subchapter granting or denying a temporary or otherwise interlocutory injunction or a permanent injunction in an action filed and maintained by the association or alliance; and (4) to appeal or otherwise be a party to an appeal under Section 20.05 of this subchapter. Sec. 20.07. RULES FOR APPEALS. An appeal under this subchapter, including an interlocutory, accelerated, or direct appeal, is governed, as applicable, by the Texas Rules of Appellate Procedure, including Rules 25.1(d)(6), 26.1(b), 28.1, 28.3, 32.1(g), 37.3(a)(1), 38.6(a) and (b), 40.1(b), and 49.4. SECTION 10.22. Section 84.003, Civil Practice and Remedies Code, is amended by adding Subdivision (6) to read as follows: (6) "Person responsible for the patient" means: (A) the patient's parent, managing conservator, or guardian; (B) the patient's grandparent; (C) the patient's adult brother or sister; (D) another adult who has actual care, control, and possession of the patient and has written authorization to consent for the patient from the parent, managing conservator, or guardian of the patient; (E) an educational institution in which the patient is enrolled that has written authorization to consent for the patient from the parent, managing conservator, or guardian of the patient; or (F) any other person with legal responsibility for the care of the patient. SECTION 10.23. Section 84.004(c), Civil Practice and Remedies Code, is amended to read as follows: (c) Except as provided by Subsection (d) and Section 84.007, a volunteer health care provider [who is serving as a direct service volunteer of a charitable organization] is immune from civil liability for any act or omission resulting in death, damage, or injury to a patient if: (1) [the volunteer was acting in good faith and in the course and scope of the volunteer's duties or functions within the organization; [(2)] the volunteer commits the act or omission in the course of providing health care services to the patient; (2) [(3)] the services provided are within the scope of the license of the volunteer; and (3) [(4)] before the volunteer provides health care services, the patient or, if the patient is a minor or is otherwise legally incompetent, the person responsible for the patient [patient's parent, managing conservator, legal guardian, or other person with legal responsibility for the care of] signs a written statement that acknowledges: (A) that the volunteer is providing care that is not administered for or in expectation of compensation; and (B) the limitations on the recovery of damages from the volunteer in exchange for receiving the health care services. SECTION 10.24. Chapter 84, Civil Practice and Remedies Code, is amended by adding Section 84.0065 to read as follows: Sec. 84.0065. ORGANIZATION LIABILITY OF HOSPITALS. Except as provided by Section 84.007, in any civil action brought against a hospital or hospital system, or its employees, officers, directors, or volunteers, for damages based on an act or omission by the hospital or hospital system, or its employees, officers, directors, or volunteers, the liability of the hospital or hospital system is limited to money damages in a maximum amount of $500,000 for any act or omission resulting in death, damage, or injury to a patient if the patient or, if the patient is a minor or is otherwise legally incompetent, the person responsible for the patient, signs a written statement that acknowledges: (1) that the hospital is providing care that is not administered for or in expectation of compensation; and (2) the limitations on the recovery of damages from the hospital in exchange for receiving the health care services. SECTION 10.25. Section 88.002, Civil Practice and Remedies Code, is amended by adding Subsection (l) to read as follows: (l) This chapter does not create liability on the part of physicians or health care providers for medical care or health care services performed or furnished or that should have been performed or furnished for, to, or on behalf of a patient. SECTION 10.26. Article 5.15-1, Insurance Code, is amended by adding Section 11 to read as follows: Sec. 11. VENDOR'S ENDORSEMENT. An insurer may not exclude or otherwise limit coverage for physicians or health care providers under a vendor's endorsement issued to a manufacturer, as that term is defined by Section 82.001, Civil Practice and Remedies Code. A physician or health care provider shall be considered a vendor for purposes of coverage under a vendor's endorsement or a manufacturer's general liability or products liability policy. SECTION 10.27. The following provisions are repealed: (1) Section 11.02(c), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); (2) Sections 13.01(c), (d), (e), (f), (g), (h), (m), (n), (o), and (r)(3), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); (3) Section 16.02(a), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); and (4) Section 242.0372, Health and Safety Code. SECTION 10.28. (a) The Legislature of the State of Texas finds that: (1) the number of health care liability claims (frequency) has increased since 1995 inordinately; (2) the filing of legitimate health care liability claims in Texas is a contributing factor affecting medical professional liability rates; (3) the amounts being paid out by insurers in judgments and settlements (severity) have likewise increased inordinately in the same short period of time; (4) the effect of the above has caused a serious public problem in availability of and affordability of adequate medical professional liability insurance; (5) the situation has created a medical malpractice insurance crisis in Texas; (6) this crisis has had a material adverse effect on the delivery of medical and health care in Texas, including significant reductions of availability of medical and health care services to the people of Texas and a likelihood of further reductions in the future; (7) the crisis has had a substantial impact on the physicians and hospitals of Texas and the cost to physicians and hospitals for adequate medical malpractice insurance has dramatically risen in price, with cost impact on patients and the public; (8) the direct cost of medical care to the patient and public of Texas has materially increased due to the rising cost of malpractice insurance protection for physicians and hospitals in Texas; (9) the crisis has increased the cost of medical care both directly through fees and indirectly through additional services provided for protection against future suits or claims, and defensive medicine has resulted in increasing cost to patients, private insurers, and Texas and has contributed to the general inflation that has marked health care in recent years; (10) satisfactory insurance coverage for adequate amounts of insurance in this area is often not available at any price; (11) the combined effect of the defects in the medical, insurance, and legal systems has caused a serious public problem both with respect to the availability of coverage and to the high rates being charged by insurers for medical professional liability insurance to some physicians, health care providers, and hospitals; and (12) the adoption of certain modifications in the medical, insurance, and legal systems, the total effect of which is currently undetermined, will have a positive effect on the rates charged by insurers for medical professional liability insurance. (b) Because of the conditions stated in Subsection (a) of this section, it is the purpose of this article to improve and modify the system by which health care liability claims are determined in order to: (1) reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems; (2) decrease the cost of those claims and ensure that awards are rationally related to actual damages; (3) do so in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis; (4) make available to physicians, hospitals, and other health care providers protection against potential liability through the insurance mechanism at reasonably affordable rates; (5) make affordable medical and health care more accessible and available to the citizens of Texas; (6) make certain modifications in the medical, insurance, and legal systems in order to determine whether or not there will be an effect on rates charged by insurers for medical professional liability insurance; (7) make certain modifications to the liability laws as they relate to health care liability claims only and with an intention of the legislature to not extend or apply such modifications of liability laws to any other area of the Texas legal system or tort law; (8) encourage offering services by physicians and hospitals, particularly those involving high risk, that will benefit, in particular, high-cost and low-income groups because lower malpractice insurance rates increase the willingness of physicians and hospitals to provide treatments that carry a relatively high risk of failure but offer the only real prospect of success for seriously ill patients; (9) encourage quality of care and discourage defensive medicine; (10) decrease malpractice insurance premiums, which are a significant part of overall health care cost, and, as the cost savings are reflected in health insurance premiums, make health insurance benefit programs more affordable to businesses, particularly small businesses, and increase employee participation in health insurance programs offered by their employers; (11) discourage unnecessary services and encourage fewer tests, procedures, and visits so that the direct financial cost to the patient will be reduced as well as time, travel, and other indirect costs; (12) support health care insurance for employers and employees because malpractice insurance is a component of the overhead costs that providers must take into account in negotiating reimbursement rates with commercial insurers and employers that pay all or a portion of the premiums for their employees will save money and may make the difference in whether an employer can afford to maintain current health insurance benefits for its employees; (13) reduce the time required for plaintiffs to obtain awards; (14) reduce malpractice pressure and, as a result, increase the supply of physicians, especially obstetricians and other impacted specialists; (15) contribute to the viability of community hospitals by lowering malpractice insurance premiums; (16) free funds in the operating budgets of self-insured hospitals, allowing the hospital to treat more patients; (17) reduce or eliminate the incentive for physicians to go without insurance; (18) lower costs for teaching and safety-net hospitals as well as nonprofit community clinics; (19) decrease the costs for health care facilities that self-insure; and (20) allow the Texas Medicaid program to save resources that can be used to provide additional health care goods and services. SECTION 10.29. (a) Except as provided by Sections 10.30 and 10.31 of this article, the changes in law made by this article to the Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) apply to a cause of action that accrues on or after January 1, 2004. Except as provided by this section and Sections 10.30 and 10.31 of this article, a cause of action that accrues before January 1, 2004, is governed by the law in effect immediately before the effective date of this article, and that law is continued in effect for that purpose. (b) Subchapter S, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), as added by this article, applies only to an attorney's fee agreement or contract that is entered into on or after January 1, 2004. An attorney's fee agreement or contract entered into before January 1, 2004, is governed by the law in effect immediately before the effective date of this article, and that law is continued in effect for that purpose. (c) This article does not make any change in law with respect to the adjustment under Section 11.04, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), of the liability limit prescribed in Section 11.02(a) of that Act, and that law is continued in effect only for that liability limit. SECTION 10.30. (a) This section applies only if this article takes effect September 1, 2003. (b) All changes in law made by this article to the Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), other than Subchapter S, added by this article, also apply to a health care liability claim that is included in an action or suit filed on or after September 1, 2003, and to that action or suit. (c) If written notice of a health care liability claim is given by certified mail, return receipt requested, in compliance with Section 4.01(a), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), on or after June 1, 2003, and before September 1, 2003, the giving of that notice constitutes, for purposes of this section, the filing, as of the date of depositing that notice in the mail, of an action or suit that includes that claim against each physician or health care provider to whom that notice is given. SECTION 10.31. (a) This section applies only if this article takes effect immediately. (b) All changes in law made by this article to the Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), other than Subchapter S, added by this article, also apply to a health care liability claim that is included in an action or suit filed on or after the 60th day after the effective date of this article, and to that action or suit. (c) If written notice of a health care liability claim is given by certified mail, return receipt requested, in compliance with Section 4.01(a), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), on or after the effective date of this article, and before the 60th day after the effective date of this article, the giving of that notice constitutes, for purposes of this section, the filing, as of the date of depositing that notice in the mail, of an action or suit that includes that claim against each physician or health care provider to whom that notice is given.
ARTICLE 11. CLAIMS AGAINST EMPLOYEES OR VOLUNTEERS OF A UNIT OF LOCAL GOVERNMENT
SECTION 11.01. Sections 108.002(a) and (b), Civil Practice and Remedies Code, are amended to read as follows: (a) Except in an action arising under the constitution or laws of the United States, a public servant [, other than a provider of health care as that term is defined in Section 108.002(c),] is not personally liable for damages in excess of $100,000 arising from personal injury, death, or deprivation of a right, privilege, or immunity if: (1) the damages are the result of an act or omission by the public servant in the course and scope of the public servant's office, employment, or contractual performance for or service on behalf of a state agency, institution, department, or local government; and (2) for the amount not in excess of $100,000, the public servant is covered: (A) by the state's obligation to indemnify under Chapter 104; (B) by a local government's authorization to indemnify under Chapter 102; (C) by liability or errors and omissions insurance; or (D) by liability or errors and omissions coverage under an interlocal agreement. (b) Except in an action arising under the constitution or laws of the United States, a public servant [, other than a provider of health care as that term is defined in Section 108.002(c),] is not liable for damages in excess of $100,000 for property damage if: (1) the damages are the result of an act or omission by the public servant in the course and scope of the public servant's office, employment, or contractual performance for or service on behalf of a state agency, institution, department, or local government; and (2) for the amount not in excess of $100,000, the public servant is covered: (A) by the state's obligation to indemnify under Chapter 104; (B) by a local government's authorization to indemnify under Chapter 102; (C) by liability or errors and omissions insurance; or (D) by liability or errors and omissions coverage under an interlocal agreement. SECTION 11.02. Section 285.071, Health and Safety Code, is amended to read as follows: Sec. 285.071. DEFINITION. In this chapter, "hospital district management contractor" means a nonprofit corporation, partnership, or sole proprietorship that manages a hospital or provides services [as a part of a rural health network as defined under 42 U.S.C. Section 1395i-4(g)] under contract with a hospital district that was created by general or special law [and that has a population under 50,000]. SECTION 11.03. Section 108.002(c), Civil Practice and Remedies Code, is repealed. SECTION 11.04. This article applies to a suit filed on or after the effective date of this article.
ARTICLE 12. JUROR QUALIFICATION
SECTION 12.01. Section 62.105, Government Code, is amended to read as follows: Sec. 62.105. DISQUALIFICATION FOR PARTICULAR JURY. (a) A person is disqualified to serve as a petit juror in a particular case if the person [he]: (1) is a witness in the case; (2) is interested, directly or indirectly, in the subject matter of the case; (3) is related by consanguinity or affinity within the third degree, as determined under Chapter 573, to a party in the case; (4) has a bias or prejudice in favor of or against a party in the case; or (5) has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact. (b) In an action seeking damages for personal injury or death, a person's answer in voir dire that the person could not award a certain sum of money damages based on a hypothetical set of circumstances does not, in and of itself, establish a bias or prejudice in favor of or against a party in the action that warrants disqualification under Subsection (a)(4). SECTION 12.02. (a) Except as provided by Subsection (b) of this section, this article applies only to a suit commenced or pending on or after the effective date of this article. (b) This article does not apply to a suit in which the trial on the merits commenced on or before the effective date of this article; that suit is governed by the law in effect immediately before the change in law made by this article, and that law is continued in effect for that purpose.
ARTICLE 13. EXEMPLARY DAMAGES
SECTION 13.01. Section 41.001(1), Civil Practice and Remedies Code, is amended to read as follows: (1) "Claimant" means a person [party], including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking or who has sought recovery of exemplary damages. In a cause of action in which a party seeks recovery of exemplary damages related to injury to another person, damage to the property of another person, death of another person, or other harm to another person, "claimant" includes both that other person and the party seeking recovery of exemplary damages. SECTION 13.02. Sections 41.008(b) and (c), Civil Practice and Remedies Code, are amended to read as follows: (b) Exemplary damages awarded against a defendant to a claimant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages to be awarded in the judgment; plus (B) an amount equal to any noneconomic damages to be awarded in the judgment [found by the jury], not to exceed $750,000; or (2) $200,000. (c) Subsection (b) does not apply to a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct for which the defendant has been convicted of [described as] a felony in the following sections or chapter of the Penal Code if, except for Sections 49.07 and 49.08, the conduct was committed knowingly or intentionally: (1) Section 19.02 (murder); (2) Section 19.03 (capital murder); (3) Section 20.04 (aggravated kidnapping); (4) Section 22.02 (aggravated assault); (5) Section 22.011 (sexual assault); (6) Section 22.021 (aggravated sexual assault); (7) Section 22.04 (injury to a child, elderly individual, or disabled individual); (8) Section 32.21 (forgery); (9) Section 32.43 (commercial bribery); (10) Section 32.45 (misapplication of fiduciary property or property of financial institution); (11) Section 32.46 (securing execution of document by deception); (12) Section 32.47 (fraudulent destruction, removal, or concealment of writing); (13) Chapter 31 (theft) the punishment level for which is a felony of the third degree or higher; (14) Section 49.07 (intoxication assault); or (15) Section 49.08 (intoxication manslaughter). SECTION 13.03. (a) Except as provided by Subsection (b) of this section, this article applies only to a suit commenced or pending on or after the effective date of this article. (b) This article does not apply to a suit in which the trial on the merits commenced on or before the effective date of this article; that suit is governed by the law in effect immediately before the change in law made by this article, and that law is continued in effect for that purpose.
ARTICLE 14. ASSIGNMENT OF JUDGES
SECTION 14.01. Subchapter B, Chapter 74, Government Code, is amended by adding Section 74.0241 to read as follows: Sec. 74.0241. ASSIGNMENT OF JUDGES FOR HEALTH CARE LIABILITY CLAIMS. (a) In this section, "health care liability claim" has the meaning assigned by Section 1.03, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes). (b) Notwithstanding any other law or rule, and on motion of a party to a health care liability claim, the supreme court shall assign a judge for the health care liability claim and any action or suit that includes the claim. (c) The supreme court shall provide each party to the health care liability claim and any action or suit that includes the claim a list of the judges from whom the assigned judge will be selected. (d) Within a period specified by the supreme court, each of the following groups of parties may file with the supreme court a written objection to one of the judges on the list provided under Subsection (c) who is not a regular judge in the county in which the suit is pending: (1) all of the parties asserting the claim; (2) all of the parties against whom the claim is asserted; and (3) all other parties in the case. (e) After the period specified for filing an objection under Subsection (d) has expired, no further objection may be made. The supreme court shall assign one judge on the list who has not been timely objected to under Subsection (d) to serve as the assigned judge for the health care liability claim and any action or suit that includes the claim. (f) Notwithstanding any other law or rule, the supreme court has authority to issue any rule necessary or appropriate to implement this section. SECTION 14.02. (a) Except as provided by Subsection (b) of this section, this article applies only to a suit commenced or pending on or after the effective date of this article. (b) This article does not apply to a suit in which the trial on the merits commenced on or before the effective date of this article; that suit is governed by the law in effect immediately before the change in law made by this article, and that law is continued in effect for that purpose.
ARTICLE 15. PUBLIC SCHOOL TEACHERS
SECTION 15.01. Section 22.051, Education Code, is amended by adding Subsection (a-1) and amending Subsections (b) and (c) to read as follows: (a-1) A teacher employed by a school district is not personally liable for any act that is incident to or within the scope of the duties of the teacher's position of employment. This subsection does not apply to any act that constitutes a criminal offense, including sexual misconduct. (b) Subsection (a) [This section] does not apply to the operation, use, or maintenance of any motor vehicle. (c) In this section, "professional employee" includes: (1) a superintendent, principal, [teacher,] supervisor, social worker, counselor, nurse, and teacher's aide; (2) a student in an education preparation program participating in a field experience or internship; (3) a school bus driver certified in accordance with standards and qualifications adopted by the Department of Public Safety; and (4) any other person, except a teacher, whose employment requires certification and the exercise of discretion. SECTION 15.02. This article applies only to a cause of action that accrues on or after the effective date of this article. An action that accrued before the effective date of this article is governed by the law applicable to the action immediately before the effective date of this article, and that law is continued in effect for that purpose.
ARTICLE 16. EFFECTIVE DATE
SECTION 16.01. (a) All articles of this Act, other than Article 10, take effect September 1, 2003. (b) Article 10 of this Act takes effect immediately if this Act receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, Article 10 of this Act takes effect September 1, 2003. (c) The articles of this Act apply as provided by each article.