79R4113 MFC-F
By: Pena H.B. No. 1355
A BILL TO BE ENTITLED
AN ACT
relating to liability of certain persons for participation in the
illegal drug market.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 94 to read as follows:
CHAPTER 94. LIABILITY FOR PARTICIPATION IN ILLEGAL DRUG MARKET
Sec. 94.001. SHORT TITLE. This Act may be cited as the Drug
Dealer Liability Act.
Sec. 94.002. DEFINITIONS. In this chapter:
(1) "Claimant" has the meaning assigned by Section
33.011.
(2) "Defendant" has the meaning assigned by Section
33.011.
(3) "Illegal drug" means a drug whose distribution is
a violation of state law.
(4) "Illegal drug market" means the support system of
illegal drug-related operations, from production to retail sales,
through which an illegal drug reaches an individual drug user.
(5) "Illegal drug market target community" means an
area described as follows:
(A) for a level 1 violation, the county
containing the defendant's place of participation;
(B) for a level 2 violation, the target community
described in Paragraph (A) and any county with a border contiguous
to that target community;
(C) for a level 3 violation, the target community
described in Paragraph (B) and any county with a border contiguous
to that target community; or
(D) for a level 4 violation, the state.
(6) "Individual drug user" means an individual whose
illegal drug use is the basis of an action brought under this
chapter.
(7) "Level 1 violation" means:
(A) possession of one-fourth ounce or more but
less than four ounces of a specified illegal drug;
(B) distribution of less than one ounce of a
specified illegal drug;
(C) possession of one pound or more or 25 plants
or more but less than four pounds or 50 plants of marihuana; or
(D) distribution of less than one pound of
marihuana.
(8) "Level 2 violation" means:
(A) possession of four ounces or more but less
than eight ounces of a specified illegal drug;
(B) distribution of one ounce or more but less
than two ounces of a specified illegal drug;
(C) possession of four pounds or more or 50
plants or more but less than eight pounds or 75 plants of marihuana;
or
(D) distribution of one pound or more but less
than five pounds of marihuana.
(9) "Level 3 violation" means:
(A) possession of eight ounces or more but less
than 16 ounces of a specified illegal drug;
(B) distribution of two ounces or more but less
than four ounces of a specified illegal drug;
(C) possession of eight pounds or more or 75
plants or more but less than 16 pounds or 100 plants of marihuana;
or
(D) distribution of five pounds or more but less
than 10 pounds of marihuana.
(10) "Level 4 violation" means:
(A) possession of at least 16 ounces or more of a
specified illegal drug;
(B) distribution of four ounces or more of a
specified illegal drug;
(C) possession of 16 pounds or more or 100 plants
or more of marihuana; or
(D) distribution of 10 pounds or more of
marihuana.
(11) "Period of illegal drug use" means, in relation
to the individual drug user, the period beginning on the date the
individual first uses an illegal drug and ending on the date a cause
of action relating to the use of the drug under this chapter
accrues.
(12) "Place of illegal drug activity" means each
county in which, during the period of an individual's illegal drug
use, the individual:
(A) possesses or uses an illegal drug; or
(B) resides, attends school, or is employed.
(13) "Place of participation" means each county in
which, during the period of a defendant's participation in the
illegal drug market, the defendant:
(A) participates in the illegal drug market; or
(B) resides, attends school, or is employed.
(14) "Specified illegal drug" means cocaine, heroin,
methamphetamine, and any drug other than marihuana whose
distribution is a violation of state law.
Sec. 94.003. LIABILITY FOR PARTICIPATION IN THE ILLEGAL
DRUG MARKET. (a) A person who knowingly participates in the
illegal drug market within this state by engaging in any of the
following activities is liable for damages as provided in this
chapter:
(1) distribution of an illegal drug;
(2) possession with an intent to distribute an illegal
drug;
(3) commission of an act intended to facilitate the
marketing or distribution of an illegal drug; or
(4) agreement to distribute, possess with an intent to
distribute, or commit an act intended to facilitate the marketing
and distribution of an illegal drug.
(b) A law enforcement officer or agency, the state, or a
person acting at the direction of a law enforcement officer or
agency or the state is not liable for participating in the illegal
drug market if the participation is in furtherance of an official
investigation.
(c) Participation in the illegal drug market under
Subsection (a) does not include the purchase or receipt of a drug
solely for personal use.
Sec. 94.004. RECOVERY OF DAMAGES. (a) An action for
damages caused by an individual's use of an illegal drug may be
brought by:
(1) a parent, legal guardian, child, spouse, or
sibling of the individual drug user;
(2) an individual who was exposed to an illegal drug in
utero;
(3) an employer of the individual drug user;
(4) a medical facility, insurer, governmental entity,
or other entity that funds a drug treatment program or employee
assistance program for the individual drug user or that otherwise
spends money on behalf of the individual drug user; or
(5) a person injured as a result of the wilful,
reckless, or negligent actions of an individual drug user.
(b) A person entitled to bring an action under this section
may seek damages from:
(1) a person who knowingly distributed an illegal drug
or knowingly participated in the chain of distribution of an
illegal drug that was actually used by the individual drug user; and
(2) a person who knowingly participated in the illegal
drug market if:
(A) the place of illegal drug activity by the
individual drug user is within the illegal drug market target
community of the defendant;
(B) the defendant's participation in the illegal
drug market was connected with the same type of illegal drug used by
the individual drug user; and
(C) the defendant participated in the illegal
drug market at any time during the individual drug user's period of
illegal drug use.
(c) A person entitled to bring an action under this section
may recover:
(1) economic damages, including the cost of treatment
and rehabilitation, medical expenses, loss of economic or
educational potential, loss of productivity, absenteeism, support
expenses, accidents or injury, and any other pecuniary loss
proximately caused by the illegal drug use;
(2) noneconomic damages, as defined by Section 41.001;
(3) exemplary damages, as defined by Section 41.001;
(4) reasonable attorney fees; and
(5) costs of suit, including reasonable expenses for
expert testimony.
Sec. 94.005. LIMITED RECOVERY OF DAMAGES. (a) Except as
otherwise provided by this section, an individual drug user may not
bring an action for damages caused by the use of an illegal drug.
(b) An individual drug user may bring an action for damages
caused by the use of an illegal drug if:
(1) the individual personally discloses to narcotics
enforcement authorities, not less than six months before filing the
action, all of the information known to the individual regarding
all of the individual's sources of illegal drugs;
(2) the individual has not used an illegal drug within
the six months before filing the action; and
(3) the individual does not use an illegal drug
throughout the pendency of the action.
(c) An individual drug user entitled to bring an action
under this section may seek damages only from a person who
distributed an illegal drug or is involved in the chain of
distribution of an illegal drug that was actually used by the
individual drug user.
(d) An individual drug user entitled to bring an action
under this section may not recover noneconomic or exemplary
damages.
Sec. 94.006. AGREEMENT VOID AND UNENFORCEABLE. A covenant,
promise, agreement, or understanding contained in, collateral to,
or affecting a contract of insurance or an indemnity obligation is
void if it purports to indemnify a person against liability for
damages under this chapter.
Sec. 94.007. JOINDER OF PARTIES. (a) Two or more persons
may be joined in one action under this chapter as claimants if:
(1) their respective actions involve at least one
common place of illegal drug activity; and
(2) any portion of the period of illegal drug use for
one claimant overlaps with the period of illegal drug use for every
other claimant.
(b) Two or more persons may be joined in one action under
this chapter as defendants if those persons are jointly liable to at
least one claimant.
Sec. 94.008. BURDEN OF PROOF; EFFECT OF CRIMINAL DRUG
CONVICTION. (a) In an action brought under this chapter, the
claimant must establish proof of participation in the illegal drug
market by clear and convincing evidence. The claimant must
establish any other element of the cause of action by a
preponderance of the evidence.
(b) Unless the defendant proves otherwise by clear and
convincing evidence:
(1) an individual drug user's period of drug use is
presumed to commence two years before the cause of action accrues;
and
(2) an individual drug user's place of illegal drug
activity is presumed to be a location defined by Section
94.002(12).
(c) If a person against whom recovery is sought has a
criminal conviction under the drug laws of this state or the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 801 et seq.), the person is estopped from denying
participation in the illegal drug market, and the conviction is
prima facie evidence of the person's participation in the illegal
drug market during the two years preceding the date of an act giving
rise to the conviction.
Sec. 94.009. PREJUDGMENT ATTACHMENT; EXECUTION ON
JUDGMENT. (a) Notwithstanding Subsection (c), a claimant under
this chapter may request a writ of attachment from the court against
all assets of a defendant sufficient to satisfy a potential award.
If a writ of attachment is issued, a defendant is entitled to an
immediate hearing. Attachment may be lifted if the defendant
demonstrates that the assets will be available for a potential
award or if the defendant posts a bond sufficient to cover a
potential award.
(b) Except as provided by Section 50, Article XVI, Texas
Constitution, a person against whom a judgment has been rendered
under this chapter is not eligible to exempt any property from
process of levy or execution on the judgment.
(c) Any asset sought to satisfy a judgment under this
chapter that is named in a forfeiture action or has been seized for
forfeiture by any state or federal agency may not be used to satisfy
a judgment unless the asset has been released:
(1) following the conclusion of the forfeiture action;
or
(2) by the agency that seized the asset.
Sec. 94.010. STATUTE OF LIMITATIONS. (a) Except as
otherwise provided by this section, a claim under this chapter may
not be brought more than two years after the cause of action
accrues.
(b) A cause of action accrues under this chapter when a
person described by Section 94.004 or 94.005 has reason to know of
the harm from illegal drug use that is the basis for the cause of
action and has reason to know that the illegal drug use is the cause
of the harm.
(c) The statute of limitations under this section is tolled
for a claimant who is incapacitated by the use of an illegal drug to
the extent that the claimant cannot reasonably be expected to seek
recovery under this chapter or as otherwise provided by law.
(d) The statute of limitations under this section is tolled
for a defendant for a period of six months following the defendant's
conviction on a criminal drug offense or as otherwise provided by
law.
Sec. 94.011. REPRESENTATION OF GOVERNMENTAL ENTITIES; STAY
OF ACTION. (a) An action brought under this chapter may be brought
in the name of the state or a political subdivision of the state by
the attorney general or by a district or county attorney.
(b) On motion by a governmental agency involved in a drug
investigation or prosecution, a court shall stay an action brought
under this chapter until the completion of the criminal
investigation or prosecution that is the subject of the motion.
Sec. 94.012. EFFECT ON OTHER LIABILITY. This chapter does
not affect judicially developed or developing rules under which a
person is or is not totally or partially immune from tort liability
by virtue of family relationship.
SECTION 2. (a) Chapter 94, Civil Practice and Remedies
Code, as added by this Act, applies only to a cause of action that
accrues on or after the effective date of this Act. A cause of
action that accrues before the effective date of this Act is
governed by the law in effect immediately before that time, and the
former law is continued in effect for that purpose.
(b) The statute of limitations created by Section 94.010,
Civil Practice and Remedies Code, as added by this Act, does not
commence until the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2005.