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A BILL TO BE ENTITLED
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AN ACT
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relating to the reform of certain remedies and procedures in civil |
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actions. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 7, Civil Practice and Remedies Code, is |
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amended by adding Chapter 174 to read as follows: |
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CHAPTER 174. EARLY DISMISSAL OF ACTIONS |
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Sec. 174.001. It is the policy of this state that all civil |
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actions shall be disposed of fairly, promptly, and with the least |
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possible expense to the litigants and to the state. |
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Sec. 174.002. ADOPTION OF RULES BY THE SUPREME COURT. |
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(a) The supreme court shall adopt rules to provide for the fair and |
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early dismissal of nonmeritorious cases. |
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(b) The supreme court shall adopt rules under this chapter |
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on or before December 31, 2011. |
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SECTION 2. Title 7, Civil Practice and Remedies Code, is |
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amended by adding Chapter 175 to read as follows: |
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Sec. 175.001. ADOPTION OF RULES BY SUPREME COURT. (a) The |
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supreme court shall adopt rules by which a plaintiff in a civil |
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action may elect a procedure for the prompt, efficient, and |
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cost-effective resolution of civil actions in which the damages are |
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at least $10,000 but not more than $100,000. |
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(b) In this section, "damages" means all claims under common |
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law, statutory, and equitable causes of action for actual damages, |
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including economic and noneconomic damages, and all forms of |
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additional damages including without limitation knowing damages, |
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punitive damages, trebling of damages of any kind, penalties, |
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prejudgment interest, postjudgment interest, attorney's fees, |
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litigation costs, costs of court, and all other damages of any kind |
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or character. |
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(c) The rules promulgated by the supreme court shall not |
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apply to a class action, a civil action primarily governed by the |
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Family Code, a workers' compensation case, or an action governed by |
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Chapter 74. |
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(d) The supreme court shall adopt rules under this section |
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to be in effect by January 1, 2012. |
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SECTION 3. Subchapter C, Chapter 311, Government Code, is |
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amended by adding Section 311.035 to read as follows: |
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Sec. 311.035. NO IMPLIED CAUSE OF ACTION. A statute may not |
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be construed to create a cause of action unless a cause of action is |
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created by clear and unambiguous language in the statute. |
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SECTION 4. Subchapter B, Chapter 312, Government Code, is |
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amended by adding Section 312.017 to read as follows: |
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Sec. 312.017. NO IMPLIED CAUSE OF ACTION. A statute may not |
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be construed to create a cause of action unless a cause of action is |
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created by clear and unambiguous language in the statute. |
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SECTION 5. Sections 38.001 and 38.002, Civil Practice and |
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Remedies Code, are amended to read as follows: |
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Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. The prevailing |
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party [A person] may recover reasonable attorney's fees from an |
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individual, [or] corporation, or other legal entity [in addition to
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the amount of a valid claim and costs,] if the claim is for: |
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(1) rendered services; |
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(2) performed labor; |
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(3) furnished material; |
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(4) freight or express overcharges; |
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(5) lost or damaged freight or express; |
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(6) killed or injured stock; |
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(7) a sworn account; [or] |
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(8) an oral or written contract; or |
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(9) defamation. |
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Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES. |
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For [To recover] attorney's fees to be recovered under this |
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subchapter [chapter]: |
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(1) the person seeking to recover attorney's fees |
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[claimant] must be represented by an attorney; |
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(2) the claimant must present the claim to the |
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opposing party or to a duly authorized agent of the opposing party; |
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and |
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(3) payment for the just amount owed must not have been |
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tendered before the expiration of the 30th day after the claim is |
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presented. |
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SECTION 6. Subdivisions (1), (5), and (6), Section 42.001, |
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Civil Practice and Remedies Code, are amended to read as follows: |
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(1) "Claim" means a request, including a counterclaim, |
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cross-claim, or third-party claim, to recover monetary damages or |
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to obtain other relief. The term does not include a request to |
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recover litigation costs. |
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(5) "Litigation costs" means money actually spent and |
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obligations actually incurred that are directly related to the |
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action [case] in which a settlement offer is made. The term |
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includes: |
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(A) court costs; |
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(B) reasonable deposition costs; |
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(C) reasonable fees for not more than two |
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[testifying] expert witnesses; and |
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(D) [(C)] reasonable attorney's fees. |
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(6) "Settlement offer" means an offer to settle or |
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compromise a claim made in compliance with Section 42.003 [this
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chapter]. |
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SECTION 7. Chapter 42, Civil Practice and Remedies Code, is |
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amended by amending Sections 42.003, 42.004, and 42.005 and adding |
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Section 42.006 to read as follows: |
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Sec. 42.003. MAKING SETTLEMENT OFFER. (a) A defendant may |
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serve on a claimant a settlement offer to settle all claims in the |
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action between that defendant and claimant. |
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(b) A settlement offer must: |
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(1) be in writing; |
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(2) state that it is made under this chapter; |
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(3) state the terms by which the claims may be settled; |
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(4) state a deadline by which the settlement offer |
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must be accepted; and |
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(5) be served on all parties to whom the settlement |
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offer is made. |
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(c) A defendant may not make a settlement offer under this |
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section before the 60th day after the date the defendant files a |
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responsive pleading or otherwise appears in the action. |
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(d) A defendant may not make a settlement offer under this |
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section after the 14th day before the date set for trial. |
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(e) The parties are not required to file a settlement offer |
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with the court. |
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Sec. 42.004. AWARDING LITIGATION COSTS. (a) A defendant |
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who makes a settlement offer to a claimant seeking monetary relief |
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shall recover litigation costs from the claimant if: |
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(1) the settlement offer is rejected; |
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(2) the court signs a judgment on the claim; |
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(3) the amount of monetary relief awarded to the |
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claimant in the judgment is more favorable to the defendant who made |
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the settlement offer than the settlement offer; and |
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(4) the difference between the amount of monetary |
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relief awarded to the claimant in the judgment and the amount of the |
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settlement offer is equal to or greater than 10 percent of the |
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amount of the settlement offer. |
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(b) A defendant who makes a settlement offer to a claimant |
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seeking nonmonetary relief, other than injunctive relief, may |
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recover litigation costs from the claimant if: |
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(1) the settlement offer is rejected; |
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(2) the court signs a judgment on the claim; and |
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(3) the judgment is more favorable to the defendant |
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who made the settlement offer than the settlement offer. |
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(c) A court may include in litigation costs awarded to a |
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defendant under this section only those litigation costs incurred |
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by the defendant who made a settlement offer after the rejection of |
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the earliest settlement offer that entitles the defendant to the |
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award of litigation costs under this section. |
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(d) If a court awards litigation costs against a claimant |
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under this section, the court may not award the claimant the |
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post-settlement offer portion of any litigation costs to which the |
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claimant would otherwise be entitled under Chapter 38 or other |
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applicable law. |
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(e) An award of litigation costs by the court under this |
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section is reviewable under a de novo standard. [If a settlement
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offer is made and rejected and the judgment to be rendered will be
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significantly less favorable to the rejecting party than was the
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settlement offer, the offering party shall recover litigation costs
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from the rejecting party.
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[(b)
A judgment will be significantly less favorable to the
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rejecting party than is the settlement offer if:
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[(1)
the rejecting party is a claimant and the award
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will be less than 80 percent of the rejected offer; or
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[(2)
the rejecting party is a defendant and the award
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will be more than 120 percent of the rejected offer.
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[(c)
The litigation costs that may be recovered by the
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offering party under this section are limited to those litigation
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costs incurred by the offering party after the date the rejecting
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party rejected the settlement offer.
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[(d)
The litigation costs that may be awarded under this
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chapter may not be greater than an amount computed by:
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[(1) determining the sum of:
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[(A)
50 percent of the economic damages to be
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awarded to the claimant in the judgment;
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[(B)
100 percent of the noneconomic damages to be
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awarded to the claimant in the judgment; and
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[(C)
100 percent of the exemplary or additional
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damages to be awarded to the claimant in the judgment; and
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[(2)
subtracting from the amount determined under
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Subdivision (1) the amount of any statutory or contractual liens in
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connection with the occurrences or incidents giving rise to the
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claim.
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[(e)
If a claimant or defendant is entitled to recover fees
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and costs under another law, that claimant or defendant may not
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recover litigation costs in addition to the fees and costs
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recoverable under the other law.
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[(f)
If a claimant or defendant is entitled to recover fees
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and costs under another law, the court must not include fees and
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costs incurred by that claimant or defendant after the date of
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rejection of the settlement offer when calculating the amount of
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the judgment to be rendered under Subsection (a).
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[(g)
If litigation costs are to be awarded against a
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claimant, those litigation costs shall be awarded to the defendant
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in the judgment as an offset against the claimant's recovery from
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that defendant.] |
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Sec. 42.005. SUPREME COURT [TO MAKE] RULES. [(a)] The |
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supreme court may amend or adopt rules that are not inconsistent |
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with this chapter [shall promulgate rules implementing this
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chapter.
The rules must be limited to settlement offers made under
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this chapter.
The rules must be in effect on January 1, 2004.
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[(b)
The rules promulgated by the supreme court must
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provide:
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[(1)
the date by which a defendant or defendants must
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file the declaration required by Section 42.002(c);
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[(2)
the date before which a party may not make a
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settlement offer;
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[(3)
the date after which a party may not make a
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settlement offer; and
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[(4) procedures for:
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[(A) making an initial settlement offer;
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[(B) making successive settlement offers;
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[(C) withdrawing a settlement offer;
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[(D) accepting a settlement offer;
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[(E) rejecting a settlement offer; and
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[(F)
modifying the deadline for making,
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withdrawing, accepting, or rejecting a settlement offer.
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[(c)
The rules promulgated by the supreme court must address
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actions in which there are multiple parties and must provide that if
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the offering party joins another party or designates a responsible
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third party after making the settlement offer, the party to whom the
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settlement offer was made may declare the offer void.
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[(d) The rules promulgated by the supreme court may:
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[(1)
designate other actions to which the settlement
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procedure of this chapter does not apply; and
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[(2)
address other matters considered necessary by the
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supreme court to the implementation of this chapter]. |
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Sec. 42.006. ADMISSIBILITY OF EVIDENCE. (a) This chapter |
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does not affect the admissibility or inadmissibility of evidence as |
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provided in the Texas Rules of Evidence. |
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(b) The provisions of this chapter may not be made known to |
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the jury through any means, including voir dire, introduction into |
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evidence, instruction, or argument. |
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SECTION 8. (a) The Texas Supreme Court shall conduct a |
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study to determine the most effective method to implement a system |
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in which the prevailing party in a civil action may recover its |
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attorney's fees, court costs, and other litigation costs from |
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adverse parties. The system should allow a defendant to determine |
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if the fee-shifting system would apply to a lawsuit and should |
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discourage the filing of frivolous lawsuits. |
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(b) Not later than December 1, 2012, the Texas Supreme Court |
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shall prepare a report of the findings of the study and provide a |
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copy of the report to the governor, the lieutenant governor, and |
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each member of the legislature. |
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SECTION 9. The change in law made by this Act applies only |
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to an action filed on or after the effective date of this Act. An |
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action filed before the effective date of this Act, including an |
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action to which a party is joined or designated after the effective |
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date of this Act, is governed by the law in effect immediately |
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before the change in law made by this Act, and that law is continued |
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in effect for that purpose. |
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SECTION 10. If any provision of this Act or its application |
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to any person or circumstance is held invalid, the invalidity does |
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not affect other provisions or applications of this Act that can be |
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given effect without the invalid provision or application, and to |
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this end the provisions of this Act are declared to be severable. |
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SECTION 11. This Act takes effect September 1, 2011. |