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A BILL TO BE ENTITLED
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AN ACT
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relating to an affidavit required to be filed in a cause of action |
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against a licensed attorney. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 6, Civil Practice and Remedies Code, is |
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amended by adding Chapter 150A to read as follows: |
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CHAPTER 150A. SUITS AGAINST ATTORNEYS |
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Sec. 150A.001. DEFINITION. In this chapter, "legal |
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services" means the preparation of a pleading or other document |
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incident to an action or special proceeding or the management of the |
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action or proceeding on behalf of a client before a judge in court |
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as well as services rendered out of court, including giving advice |
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or rendering services requiring the use of legal skill or |
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knowledge, such as preparing a will, contract, or other instrument, |
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the legal effect of which under the facts and conclusions involved |
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must be carefully determined. |
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Sec. 150A.002. CERTIFICATE OF MERIT. (a) In an action or |
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arbitration proceeding for damages arising out of the provision of |
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legal services by a licensed attorney, the plaintiff must file with |
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the complaint an affidavit of a third-party attorney who: |
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(1) is: |
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(A) licensed to practice law in this state; |
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(B) actively engaged in the practice of law; |
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(C) competent to testify; and |
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(D) knowledgeable in the defendant's area of |
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practice; and |
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(2) offers testimony based on the person's: |
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(A) knowledge; |
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(B) skill; |
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(C) experience; |
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(D) education; |
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(E) training; and |
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(F) practice. |
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(b) The affidavit must state that a reasonable probability |
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exists that the care, skill, or knowledge exercised or exhibited in |
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the provision of the legal services that are the subject of the |
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complaint fell outside the acceptable standards of professional |
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conduct. |
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(c) The time prescribed by Subsection (a) for the filing of |
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an affidavit does not apply to a case in which the limitations |
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period applicable to a cause of action asserted expires on or before |
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the 10th day after the date the complaint is filed and the plaintiff |
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alleges that, because of time constraints, the required affidavit |
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could not be timely prepared. In a case described by this |
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subsection, the plaintiff must, not later than the 30th day after |
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the date the complaint was filed, supplement the pleadings with an |
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affidavit that satisfies the requirements of Subsections (a) and |
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(b). The trial court may, on motion, after hearing and for good |
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cause, extend the time for the filing of the affidavit for the fair |
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administration of justice. |
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(d) The defendant may not be required to file an answer to |
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the complaint and affidavit before the 30th day after the date the |
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required affidavit is filed. |
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(e) If the plaintiff fails to file the affidavit required by |
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this section, the trial court must, on the court's own motion or on |
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the defendant's motion, dismiss the complaint against the |
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defendant. Dismissal under this subsection may be with prejudice. |
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(f) An order granting or denying a motion for dismissal may |
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be appealed as an interlocutory order. |
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(g) This section may not be construed to extend any |
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applicable statute of limitation or repose. |
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(h) This section does not apply to an action or arbitration |
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proceeding for the payment of fees arising out of the provision of |
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legal services. |
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SECTION 2. The change in law made by this Act applies only |
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to an action or arbitration filed or commenced on or after the |
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effective date of this Act. An action or arbitration filed or |
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commenced before the effective date of this Act is governed by the |
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law in effect immediately before the effective date of this Act, and |
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that law is continued in effect for that purpose. |
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SECTION 3. This Act takes effect September 1, 2011. |