By: Miller of Comal, Keffer, Phillips, H.B. No. 1492
      Clardy, Sheets, et al.
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to consideration of asbestos or silica trust claims in
  certain actions asserting asbestos- or silica-related injuries.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 90, Civil Practice and Remedies Code, is
  amended by designating Sections 90.001 through 90.012 as Subchapter
  A and adding a subchapter heading to read as follows:
  SUBCHAPTER A. GENERAL PROVISIONS
         SECTION 2.  Section 90.010(d-1), Civil Practice and Remedies
  Code, is amended to read as follows:
         (d-1)  Beginning on September 1, 2014, the MDL pretrial court
  shall dismiss each action for an asbestos-related injury or a
  silica-related injury that was pending on August 31, 2005, unless a
  report was served on or after September 1, 2013, that complies with
  Section 90.003, Section 90.004, or Subsection (f).  The MDL
  pretrial court shall provide for the dismissal of such actions in a
  case management order entered for that purpose.  All [such] actions
  for a silica-related injury shall be dismissed on or before August
  31, 2015.  All actions for an asbestos-related injury shall be
  dismissed on or before December 31, 2015.
         SECTION 3.  Chapter 90, Civil Practice and Remedies Code, is
  amended by adding Subchapter B to read as follows:
  SUBCHAPTER B. ASBESTOS OR SILICA TRUST CLAIMS
         Sec. 90.051.  DEFINITIONS. In this subchapter:
               (1)  "Asbestos or silica trust" means a claims
  facility, a claims agent, a qualified settlement fund, or any other
  entity that:
                     (A)  is created under 11 U.S.C. Section 524(g) or
  another applicable law for the benefit of creditors of a bankrupt
  person;
                     (B)  is formed for the purpose of compensating
  claimants for asbestos- or silica-related injuries; and
                     (C)  is in existence on the date trial in an action
  asserting an asbestos- or silica-related injury is set to commence.
               (2)  "Trust claim" means any filing with or claim
  against an asbestos or silica trust seeking recovery of
  compensation or damages for or arising from the asbestos- or
  silica-related injury of an exposed person.
               (3)  "Trust claim material" means documentation filed
  as part of or in connection with a trust claim, including:
                     (A)  documentation that a claimant submits or
  provides to an asbestos or silica trust for the purpose of
  demonstrating asbestos or silica exposure, the existence of an
  asbestos- or silica-related injury, or the validity of a trust
  claim; and
                     (B)  claim forms and other materials that an
  asbestos or silica trust requires a claimant to submit.
         Sec. 90.052.  REQUIREMENT TO MAKE TRUST CLAIMS. (a) Except
  as provided by Subsection (d), a claimant who has filed an action to
  recover damages for or arising from an asbestos- or silica-related
  injury shall make a trust claim against each asbestos or silica
  trust the claimant believes may owe compensation or damages to the
  claimant for the injury that is the basis of the claimant's action.
         (b)  A claimant must make each trust claim required under
  this section not later than:
               (1)  the 150th day before the date trial in the action
  is set to commence; or
               (2)  a date provided by court order if trial is set to
  commence on or before January 31, 2016.
         (c)  A claimant may file a motion seeking relief from the
  obligation to make a trust claim otherwise required by this section
  if the claimant believes that the fees and expenses, including
  attorney's fees, for filing the trust claim exceed the claimant's
  reasonably anticipated recovery from the trust.
         (d)  If a claimant files a motion under Subsection (c), the
  court shall determine whether the claimant's fees and expenses,
  including attorney's fees, for making the trust claim exceed the
  claimant's reasonably anticipated recovery from the trust. If the
  court determines that the claimant's fees and expenses exceed the
  claimant's reasonably anticipated recovery, the claimant is not
  required to make the trust claim but shall provide the court with a
  verified statement of the exposed person's exposure history to
  asbestos or silica that is covered by the trust.
         Sec. 90.053.  NOTICE OF TRUST CLAIM; PRODUCTION OF TRUST
  CLAIM MATERIAL. (a) A claimant in an action to recover damages for
  or arising from an asbestos- or silica-related injury shall serve
  on each party notice of, and trust claim material relating to, each
  trust claim made by or on behalf of the exposed person. The notice
  must:
               (1)  identify each trust claim made by or on behalf of
  the exposed person;
               (2)  state the amount of any trust claim payment made to
  compensate for the exposed person's injury; and
               (3)  state the date each trust claim was made and
  whether a request for individual or enhanced review or for a
  deferral, delay, suspension, or tolling of the claim has been
  submitted to the trust.
         (b)  The claimant shall serve the notice and trust claim
  materials required by Subsection (a) not later than:
               (1)  the 120th day before the date trial in the action
  is set to commence; or
               (2)  a date provided by court order if the court entered
  an order under Section 90.052(b).
         (c)  The notice and trust claim materials required to be
  served under Subsection (a) are in addition to any notice or
  materials required to be served or produced under other law, rule,
  order, or applicable agreement.
         (d)  If a claimant makes a trust claim after the date
  provided by Section 90.052(b) but before the date that trial in the
  action commences, the claimant shall serve the notice of, and trust
  claim material relating to, the trust claim as required by
  Subsection (a) reasonably promptly after making the trust claim,
  but not later than the earlier of:
               (1)  the date that trial commences; or
               (2)  the 15th day after the date the additional trust
  claim is made.
         (e)  If a claimant discovers that the notice or trust claim
  materials provided by the claimant under this section were
  incomplete or incorrect at the time the notice or trust claim
  materials were served or that the notice or trust claim materials as
  served are no longer complete and correct, the claimant shall
  supplement the notice and the production of trust claim materials.
  The claimant shall serve the supplemental notice or trust claim
  materials reasonably promptly after the claimant discovers the
  necessity for the supplementation, but not later than the 15th day
  after the date the claimant discovers the necessity for the
  supplementation.
         (f)  A claimant shall serve notice of, and trust claim
  material relating to, a trust claim regardless of whether the claim
  is for an injury resulting in cancer or an injury not resulting in
  cancer.
         Sec. 90.054.  FAILURE TO MAKE TRUST CLAIM OR PROVIDE NOTICE
  AND TRUST CLAIM MATERIAL. (a) An MDL pretrial court may not remand
  an action to a trial court and a trial court may not commence trial
  in the action unless the claimant has:
               (1)  made each trust claim as required by this
  subchapter; and
               (2)  served the notice of, and trust claim material
  relating to, those trust claims in accordance with Section 90.053.
         (b)  If a claimant received compensation from an asbestos or
  silica trust for an injury that also gave rise to a judgment against
  a defendant for the same injury and the claimant failed to serve the
  relevant notice and trust claim material as required by Section
  90.053, the trial court, on a defendant's or judgment debtor's
  motion and after reasonable notice to the parties, may impose an
  appropriate sanction, including setting aside the judgment and
  ordering a new trial.
         (c)  This section may not be construed to require payment of
  a trust claim by an asbestos or silica trust before the MDL pretrial
  court remands the action for trial or before a judgment is rendered
  in the action.
         Sec. 90.055.  MOTION TO STAY. (a) A defendant may file a
  motion requesting a stay of the proceedings under Section 90.057 on
  or before the later of:
               (1)  the 60th day before the date trial in the action is
  set to commence;
               (2)  the 15th day after the date the defendant first
  obtains asbestos- or silica-exposure information that could
  support an additional asbestos or silica trust claim by the
  claimant; or
               (3)  a date provided by court order if the court entered
  an order under Section 90.052(b).
         (b)  The motion described by Subsection (a) must include:
               (1)  a list of asbestos or silica trusts not disclosed
  by the claimant against which the defendant in good faith believes
  the claimant may make a successful trust claim; and
               (2)  information supporting the additional trust claim
  described by Subdivision (1), including information that may be
  used to meet the trust claim requirements of an asbestos or silica
  trust described by Subdivision (1).
         Sec. 90.056.  RESPONSE TO MOTION TO STAY. (a) Not later
  than the 14th day after the date the defendant files a motion to
  stay under Section 90.055 or the date provided by court order under
  Section 90.052(b), the claimant may file a response:
               (1)  stating and providing proof that the claimant has
  made a trust claim identified in the defendant's motion and served
  the notice of, and trust claim material relating to, the claim as
  prescribed by Section 90.053; or
               (2)  requesting a determination by the court that the
  fees and expenses, including attorney's fees, for filing a trust
  claim identified in the motion exceed the claimant's reasonably
  anticipated recovery from the trust.
         (b)  If the claimant files a response making a request under
  Subsection (a)(2), the court shall determine whether the claimant's
  fees and expenses, including attorney's fees, for making the
  relevant trust claim exceed the claimant's reasonably anticipated
  recovery from the trust. If the court determines that the
  claimant's fees and expenses exceed the claimant's reasonably
  anticipated recovery, the claimant is not required to make the
  trust claim but shall provide the court with a verified statement of
  the exposed person's exposure history to asbestos or silica that is
  covered by the trust.
         Sec. 90.057.  STAY OF PROCEEDINGS. (a) The court shall grant
  a motion to stay under Section 90.055 if the court determines the
  motion was timely filed and the claimant is likely to receive
  compensation from a trust identified by the motion. The stay shall
  continue until the claimant provides proof that the claimant has
  made the claim and served notice of, and trust claim material
  relating to, the claim as prescribed by Section 90.053.
         (b)  The court may not stay the proceedings if, with respect
  to each trust claim identified in the motion:
               (1)  the court determines that the claimant has
  satisfied the requirements of Section 90.053(a); or
               (2)  the court makes a determination described by
  Section 90.052(d) or 90.056(b).
         Sec. 90.058.  EVIDENCE OF TRUST CLAIMS. (a) Trust claim
  material is presumed to be authentic, relevant, and discoverable in
  an action to which this subchapter applies.
         (b)  Notwithstanding an agreement, including a
  confidentiality agreement, trust claim material is presumed to not
  be privileged in an action to which this subchapter applies.
         (c)  This section may not be construed to affect the
  application of Section 33.003 to an action governed by this
  chapter.
         SECTION 4.  Subchapter B, Chapter 90, Civil Practice and
  Remedies Code, as added by this Act, applies to an action:
               (1)  commenced on or after the effective date of this
  Act; or
               (2)  pending on the effective date of this Act.
         SECTION 5.  This Act takes effect September 1, 2015.