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A BILL TO BE ENTITLED
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AN ACT
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relating to the appointment of an attorney for a workers' |
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compensation claimant in certain proceedings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 403.006(b), Labor Code, is amended to |
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read as follows: |
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(b) The subsequent injury fund is liable for: |
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(1) the payment of compensation as provided by Section |
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408.162; |
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(2) reimbursement of insurance carrier claims of |
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overpayment of benefits made under an interlocutory order or |
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decision of the commissioner as provided by this subtitle, |
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consistent with the priorities established by rule by the |
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commissioner; |
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(3) reimbursement of insurance carrier claims as |
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provided by Sections 408.042 and 413.0141, consistent with the |
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priorities established by rule by the commissioner; [and] |
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(4) the reimbursement of an insurance carrier as |
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provided by Section 408.0041(f-1); and |
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(5) the payment of court-appointed attorney's fees as |
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provided by Section 408.221(c-1). |
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SECTION 2. Section 408.221, Labor Code, is amended by |
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amending Subsections (b) and (i) and adding Subsection (c-1) to |
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read as follows: |
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(b) Except as otherwise provided, an attorney's fee under |
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this section is based on the attorney's time and expenses according |
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to written evidence presented to the division or court. Except as |
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provided by Subsection (c) or (c-1) or Section 408.147(c), the |
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attorney's fee shall be paid from the claimant's recovery. |
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(c-1) In a judicial review proceeding initiated by an |
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insurance carrier under Subchapter G, Chapter 410, or Subchapter C, |
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Chapter 413, in which the court has appointed an attorney for the |
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claimant under Section 410.309 or 413.033, the subsequent injury |
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fund is liable for the attorney's reasonable and necessary fees as |
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provided by Subsection (d) on any issue on which the insurance |
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carrier prevails. If the insurance carrier appeals multiple issues |
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and the insurance carrier prevails on some, but not all, of the |
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issues appealed, the court shall apportion and award fees to the |
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claimant's court-appointed attorney from the subsequent injury |
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fund only for issues on which the insurance carrier prevails. In |
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making that apportionment, the court shall consider the factors |
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prescribed by Subsection (d). An award of attorney's fees under |
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this subsection is not subject to commissioner rules adopted under |
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Subsection (f). |
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(i) Except as provided by Subsection (c) or (c-1) or Section |
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408.147(c), an attorney's fee may not exceed 25 percent of the |
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claimant's recovery. |
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SECTION 3. Subchapter G, Chapter 410, Labor Code, is |
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amended by adding Section 410.309 to read as follows: |
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Sec. 410.309. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN |
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PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial |
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initiated by an insurance carrier under this subchapter, at the |
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request of the claimant the court shall appoint an attorney to |
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represent the claimant before the court. The court may hold a |
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pretrial hearing to determine whether the claimant has made a good |
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faith effort to obtain representation by an attorney before the |
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appointment of an attorney. A claimant who did not prevail in an |
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administrative proceeding before the division: |
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(1) is not entitled to a court-appointed attorney; and |
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(2) may recover reasonable and necessary attorney's |
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fees and expenses incurred in a trial initiated by the claimant in |
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which the claimant prevails as provided by Subsection (b). |
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(b) The insurance carrier is liable for the attorney's |
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reasonable and necessary fees as determined by the jury in the case, |
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or by the trial judge when a jury is not requested, in accordance |
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with Section 408.221(c-1) on any issue on which the claimant |
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prevails. |
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(c) The subsequent injury fund is liable for the attorney's |
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reasonable and necessary fees as determined by the jury in the case, |
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or by the trial judge when a jury is not requested, in accordance |
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with Section 408.221(c-1) on any issue on which the insurance |
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carrier prevails. |
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SECTION 4. Subchapter C, Chapter 413, Labor Code, is |
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amended by adding Section 413.033 to read as follows: |
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Sec. 413.033. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN |
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PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial |
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initiated by an insurance carrier under this subchapter, at the |
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request of the claimant the court shall appoint an attorney to |
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represent the claimant before the court. The court may hold a |
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pretrial hearing to determine whether the claimant has made a good |
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faith effort to obtain representation by an attorney before the |
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appointment of an attorney. A claimant who did not prevail in an |
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administrative proceeding before the division: |
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(1) is not entitled to a court-appointed attorney; and |
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(2) may recover reasonable and necessary attorney's |
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fees and expenses incurred in a trial initiated by the claimant in |
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which the claimant prevails as provided by Subsection (b). |
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(b) The insurance carrier is liable for the attorney's |
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reasonable and necessary fees as determined by the jury in the case, |
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or by the trial judge when a jury is not requested, in accordance |
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with Section 408.221(c-1) on any issue on which the claimant |
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prevails. |
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(c) The subsequent injury fund is liable for the attorney's |
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reasonable and necessary fees as determined by the jury in the case, |
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or by the trial judge when a jury is not requested, in accordance |
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with Section 408.221(c-1) on any issue on which the insurance |
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carrier prevails. |
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SECTION 5. The change in law made by this Act applies only |
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to a proceeding initiated under Subchapter G, Chapter 410, Labor |
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Code, or Subchapter C, Chapter 413, Labor Code, on or after the |
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effective date of this Act. A proceeding initiated before that date |
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is governed by the law in effect on the date the proceeding was |
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initiated, and the former law is continued in effect for that |
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purpose. |
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SECTION 6. This Act takes effect September 1, 2011. |