82R21264 CAE-F

By: Creighton, Aliseda, Kleinschmidt, H.B. No. 274

Jackson, Sheets, et al.

Substitute the following for H.B. No. 274:

By: Jackson C.S.H.B. No. 274

A BILL TO BE ENTITLED

AN ACT

relating to the reform of certain remedies and procedures in civil actions.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

ARTICLE 1. EARLY DISMISSAL OF ACTIONS

SECTION 1.01. Section 22.004, Government Code, is amended by adding Subsection (g) to read as follows:

(g) The supreme court shall adopt rules to provide for the dismissal of certain causes of action that the supreme court determines should be disposed of as a matter of law on motion and without evidence.

SECTION 1.02. Chapter 30, Civil Practice and Remedies Code, is amended by adding Section 30.021 to read as follows:

Sec. 30.021. AWARD OF ATTORNEY'S FEES IN RELATION TO CERTAIN MOTIONS TO DISMISS. In a civil proceeding, on a trial court's granting or denial, in whole or in part, of a motion to dismiss filed under the rules adopted by the supreme court under Section 22.004(g), Government Code, the court may award costs and reasonable and necessary attorney's fees to the prevailing party that the court determines are equitable and just.

ARTICLE 2. EXPEDITED CIVIL ACTIONS

SECTION 2.01. Section 22.004, Government Code, is amended by adding Subsection (h) to read as follows:

(h) The supreme court shall adopt rules to promote the prompt, efficient, and cost-effective resolution of civil actions in which the amount in controversy, inclusive of all claims for damages of any kind, whether actual or exemplary, a penalty, attorney's fees, expenses, costs, interest, or any other type of damage of any kind, is more than $10,000 but does not exceed $100,000. The rules shall address the need for lowering discovery costs in these actions and the procedure for ensuring that these actions will be expedited in the civil justice system. The supreme court may not adopt rules under this subsection that conflict with a provision of:

(1) Chapter 74, Civil Practice and Remedies Code;

(2) the Family Code;

(3) the Property Code; or

(4) the Tax Code.

ARTICLE 3. NO IMPLIED CAUSE OF ACTION

SECTION 3.01. Subchapter C, Chapter 311, Government Code, is amended by adding Section 311.035 to read as follows:

Sec. 311.035. NO IMPLIED CAUSE OF ACTION. A statute may not be construed to create a cause of action unless the statute by clear and unambiguous language creates a cause of action.

ARTICLE 4. APPEAL OF CONTROLLING QUESTION OF LAW

SECTION 4.01. Section 51.014, Civil Practice and Remedies Code, is amended by amending Subsections (d) and (e) and adding Subsection (f) to read as follows:

(d) On a party's motion or on its own initiative, a trial court in a civil action [A district court, county court at law, or county court] may, by [issue a] written order, permit an appeal from an order that is [for interlocutory appeal in a civil action] not otherwise appealable [under this section] if:

(1) [the parties agree that] the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation[; and

[(3) the parties agree to the order].

(e) An appeal under Subsection (d) does not stay proceedings in the trial court unless:

(1) the parties agree to a stay; or

(2) [and] the trial or appellate court[, the court of appeals, or a judge of the court of appeals] orders a stay of the proceedings pending appeal.

(f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal.

SECTION 4.02. Section 51.015, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 51.015. COSTS OF APPEAL. In the case of an appeal brought pursuant to Section 51.014(a)(6) or (d) [51.014(6)], if the order appealed from is affirmed, the court of appeals shall order the appellant to pay all costs and reasonable attorney fees of the appeal; otherwise, each party shall be liable for and taxed its own costs of the appeal.

SECTION 4.03. Section 22.225(d), Government Code, is amended to read as follows:

(d) A petition for review is allowed to the supreme court for an appeal from an interlocutory order described by Section 51.014(a)(3), (6), or (11), or (d), Civil Practice and Remedies Code.

ARTICLE 5. RECOVERY OF ATTORNEY'S FEES

SECTION 5.01. Section 38.001, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;

(2) performed labor;

(3) furnished material;

(4) freight or express overcharges;

(5) lost or damaged freight or express;

(6) killed or injured stock; or

(7) a sworn account[; or

[(8) an oral or written contract].

SECTION 5.02. Chapter 38, Civil Practice and Remedies Code, is amended by adding Section 38.0015 to read as follows:

Sec. 38.0015. ORAL AND WRITTEN CONTRACTS. The prevailing party may recover reasonable attorney's fees from an individual, corporation, or other legal entity if the claim is for breach of an oral or written contract.

SECTION 5.03. Section 38.002, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES. To recover attorney's fees under this chapter:

(1) the person seeking to recover attorney's fees [claimant] must be represented by an attorney;

(2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and

(3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

ARTICLE 6. ALLOCATION OF LITIGATION COSTS

SECTION 6.01. Sections 42.001(5) and (6), Civil Practice and Remedies Code, are amended to read as follows:

(5) "Litigation costs" means money actually spent and obligations actually incurred that are directly related to the action [case] in which a settlement offer is made. The term includes:

(A) court costs;

(B) reasonable deposition costs;

(C) reasonable fees for not more than two testifying expert witnesses; and

(D) [(C)] reasonable attorney's fees.

(6) "Settlement offer" means an offer to settle or compromise a claim made in compliance with Section 42.003 [this chapter].

SECTION 6.02. Sections 42.002(b), (d), and (e), Civil Practice and Remedies Code, are amended to read as follows:

(b) This chapter does not apply to:

(1) a class action;

(2) a shareholder's derivative action;

(3) an action by or against a governmental unit;

(4) an action brought under the Family Code;

(5) an action to collect workers' compensation benefits under Subtitle A, Title 5, Labor Code; or

(6) an action filed in a justice of the peace court or a small claims court.

(d) 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 Section 42.003 [this chapter]; or

(2) offer to settle or compromise a claim in an action to which this chapter does not apply.

(e) An offer to settle or compromise that does not comply with Section 42.003 [is not made under this chapter] or an offer to settle or compromise made in an action to which this chapter does not apply does not entitle any [the offering] party to recover litigation costs under this chapter.

SECTION 6.03. Section 42.003, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 42.003. MAKING SETTLEMENT OFFER. (a) After a defendant files a declaration under Section 42.002(c), the defendant filing the declaration and any party with a claim against that defendant may make a settlement offer to settle all claims in the action between the parties.

(b) A settlement offer must:

(1) be in writing;

(2) state that it is made 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 all parties to whom the settlement offer is made.

(c) The parties are not required to file a settlement offer with the court.

SECTION 6.04. Section 42.004(c), Civil Practice and Remedies Code, is amended to read as follows:

(c) The litigation costs that may be recovered by the offering party under this section are limited to those litigation costs incurred by the offering party after the date the rejecting party rejected the earliest settlement offer that entitles the party to an award of litigation costs under this section.

SECTION 6.05. Sections 42.004(d) and (g), Civil Practice and Remedies Code, are repealed.

ARTICLE 7. EFFECTIVE DATE

SECTION 7.01. The changes in law made by this Act apply only to a civil action commenced on or after the effective date of the change in law as provided by this article. A civil action commenced before the effective date of the change in law as provided by this article is governed by the law in effect immediately before the effective date of the change in law, and that law is continued in effect for that purpose.

SECTION 7.02. (a) Except as provided by Subsection (b) of this section:

(1) this Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution; and

(2) if this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.

(b) Articles 4, 5, and 6 of this Act take effect September 1, 2011.