The 85th Legislature: Legislative Summary
March 19, 2017
Now that the bill-filing deadline has passed, the process of conducting public hearings on legislative proposals will be in full swing. Hearings were conducted on a few monitored bills last week; others are scheduled for hearing this week. All are identified in the Week in Review/Week Ahead sections below. Also, the full House passed one monitored bill of interest to many practitioners — HB 744 (attorney’s fees recoverable under §38.001 of the CPRC).
Since the last update, I have added the following bills to the “Monitored Bills” list:
SB 985 (Abolishment of County Court at Law Nos. 3 through 5 of Dallas County)
SB 1894 (Suits involving real property)
HB 2891 (Medical authorizations to release protected health information in health care liability claims)
Each of the added bills and resolutions have been summarized below. You can jump to the summary of the newly added bills by clicking on the bill numbers above.
The Week in Review
Last week, Senate and House committees conducted hearings on the following bills:
HB 25 (Elimination of straight-party voting)
HB 53 (Limitations on settlement agreements with governmental units).
SB 4 (State and local governmental entity enforcement of state and federal immigration laws).
Links to the archived video and other information about each bill are located in the bill summaries below.
The full House passed HB 744 (Attorney’s fees under CPRC §38.001), as amended. The bill now moves to the Senate for consideration.
The Week Ahead
The following bills are set for hearing this week:
HB 1242 (Filing requirements for certain judicial candidates)
HB 1761 (Jurisdiction of the Supreme Court)
HB 2102 (Continuation of the State Bar of Texas)
A link to the video feed and other information about the bill are located in the bill summaries below.
The distribution list continues to grow. For those of you who are receiving this update for the first time, I have grouped the monitored bills by subject-matter and created hyperlinks within the updates to permit you to jump to a bill category (or other topics) by clicking on the subject headings below instead of perusing the entire list from top-to-bottom. New categories or categories to which bills have been added are marked with asterisks. Once you have completed reading a specific bill summary, you can return to the beginning of the update by clicking on the subject heading for the summarized bill.
Monitored Bills (by Category):
Attorney’s Fees and Other Attorney-Related Matters
Conflicts Between State and Federal Law
Constitutional Challenges to Texas Statutes
Decisions Based on Foreign Laws (Non-Family Law Proceedings)
Dram Shop Act
Frivolous State Agency Regulatory Actions
Government Settlement Agreements
**Health Care Liability
**Real Estate Litigation
Uniform Trade Secrets Act
Wrongful Birth Cause of Action
Attorney’s Fees and Other Attorney-Related Matters
SB 787 - Award of Attorney's Fees and Court Costs in Actions to Determine Applicability of Local Government Regulations (Companion: HB 1704)
· Summary: SB 787, filed by Sen. Joan Huffman (R - Houston), would amend section 245.006 of the Local Government Code to authorize a court to award court costs and attorney’s fees to the prevailing party in a suit to enforce or determine the applicability of a local government regulation. The companion bill (HB 1704) was filed by Rep. John Kuempel (R - Seguin).
· Bill Status: Referred to State Affairs on February 22, 2017.
SB 949 - Limitation on Attorney’s Fees Awarded in Cases Assigned Special Three-Judge District Courts (Companion: HB 2221)
· Summary: SB 949, filed by Sen. Lois Kolkhorst (R - Brenham), would add section 22A.0055 to the Government Code and limit attorney’s fees awarded in a case assigned to a special three-judge district court (and in any related case consolidated with the case before the court) to an amount not to exceed $250,000. The companion bill (HB 2221) was filed by Rep. Mike Schofield (R - Houston).
· Bill Status: Referred to State Affairs on March 1, 2017.
SB 1946 - Award of Costs and Attorney's Fees for Motions to Dismiss Actions with No Basis in Law or Fact
· Summary: SB 1946, filed by Sen. Bryan Hughes (R - Mineola), would amend section 30.021 of the Government Code to make the award of costs and attorney’s fees following the grant or denial of a motion to dismiss filed under the rules adopted by the Supreme Court under section 22.004(g) of Government Code (i.e., Rule 91a) discretionary instead of mandatory.
HB 744 - Recovery of Attorney's Fees in Certain Civil Cases (Similar Bills: HB 2457; HB 2843)
· Summary: The original version of HB 744, filed by Rep. Jessica Farrar (D - Houston), would have amended Chapter 38.001 of the Civil Practice and Remedies Code (CPRC) to (1) add “other legal entity” to the list of those from whom attorney’s fees can be recovered; and (2) expressly provide that Chapter 38.001 does not authorize the recovery of attorney’s fees from the state, an agency or institution of the state, or a political subdivision. The original version would have further provided that the amendment to Chapter 38.001 does not affect any other statute that permits the recovery of attorney’s fees from the governmental entities listed in the statute. However, HB 744 was amended on the floor on its way to passage.in the House. As amended, HB 744 provides that a person may recover reasonable attorney’s fees “from an individual or organization, or the state, an agency or institution of the state, or a political subdivision of the state…”. HB 744 further provides that the term "organization" has the meaning assigned by section 1.002 of the Business Organizations Code, which defines “organization” as “a corporation, limited or general partnership, limited liability company, business trust, real estate investment trust, joint venture, joint stock company, cooperative, association, bank, insurance company, credit union, savings and loan association, or other organization, regardless of whether the organization is for-profit, nonprofit, domestic, or foreign.“ The amended version eliminates the provision dealing with governmental entities.
Similar, though not identical, bills have been filed by Rep. Morgan Meyer (R - Dallas) (HB 2457) and Rep. Dustin Burrows (R - Lubbock) (HB 2843). HB 2457 adds “other organization” to the list of those from whom attorney’s fees can be recovered and provides that “organization” will be defined as it is in section 1.002 of the Business Organizations Code. HB 2843, on the other hand, adds “business entity” to the list and defines “business entity” as “any entity recognized by law through which business for profit is conducted, including a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, or trust.”
· Bill Analysis: House Research Organization
· Bill Status (HB 744): The full House passed HB 744, as amended, by a vote of 103-45 (one present, not voting). Judiciary & Civil Jurisprudence had conducted a public hearing on March 7, 2017. Those who testified either for or on the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 744 begins around the 2:32:30 mark. HB 744 was voted out of committee on March 7th without amendments.
HB 1951 - Firm Names Used by Attorneys
· Summary: HB 1951, filed by Rep. Matt Shaheen (R - Plano), would add section 81.116 to the Government Code and prohibit an attorney from using a firm name, letterhead, or other professional designation that is false, misleading, or deceptive. The bill would permit an attorney to practice under a trade name that: (1) does not imply a connection with either a government agency or a public or charitable legal services organization; (2) does not imply the firm is something other than a private law firm; and (3) is not false, misleading, or deceptive.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 16, 2017.
HB 2102 - Continuation of the State Bar of Texas (Companion: SB 302)
· Summary: HB 2102, filed by Rep. Senfronia Thompson (D - Houston), would continue the existence of the State Bar of Texas through September 1, 2029 in accordance with the Sunset Advisory Commission Recommendations. The Commission’s recommendations included, among other things, provisions based on concerns with the slow and recently ineffective process for updating rules and procedures governing attorney conduct and the disciplinary process. In its recommendations, the Commission proposed restructuring the rulemaking process under a newly created Committee on Disciplinary Rules and Referenda, while maintaining the authority of State Bar members to approve rule changes through a referendum. The Commission also recommended a series of “best practices” to help improve efficiency and responsiveness for attorneys and the public, and help the Office of the Chief Disciplinary Counsel better do its job to monitor and take action against unethical attorneys. The changes would include creating an independent ombudsman’s office at the Supreme Court, better use of the informal dispute resolution, and ensuring the State Bar can access criminal records for licensed attorneys, among other recommendations. The Senate companion bill (SB 302) was filed by Sen. Kirk Watson (D - Austin).
· Bill Status (SB 302): Referred to State Affairs on February 27, 2017.
· Bill Status (HB 2102): Referred to Judiciary & Civil Jurisprudence on March 13, 2017. Scheduled for public hearing on March 21, 2017. Notice House Video
Conflicts Between State and Federal Law
SB 89 - Execution or Enforcement of Federal Laws that Violate the Texas Constitution/SJR 7
· Summary: SB 89 and SJR 7, filed by Sen. Bob Hall (R - Rockwall), would amend the Texas Constitution and add Chapter 393 to the Government Code so as to prohibit a state agency, political subdivision, or any officer or employee of a state agency or political subdivision, from executing or enforcing a provision, penalty, or sanction provided by a federal law that the Texas Legislature determines to be a violation of Article I (Bill of Rights) of the Texas Constitution.
· Bill Status: Referred to State Affairs on January 24, 2017.
Constitutional Challenges to Texas Statutes
SJR 6 - Constitutional Amendment Authorizing Legislature to Require a Court to Provide Notice to the Attorney General of a Constitutional Challenge to State Statutes
· Summary: SJR 6, filed by Sen. Judith Zaffirini (D - Laredo), would amend the Texas Constitution to specifically authorize the Legislature to (1) require a court to notify the attorney general of a challenge to the constitutionality of a Texas statute, and (2) prescribe a reasonable period after notice is provided during which the court may not enter a judgment holding a statute unconstitutional. The companion resolution in the House, HJR 45, was filed by Rep. Mike Schofield (R - Houston). [Note: SJR 6 is the legislative response to the 2013 decision by the CCA (Ex parte Lo) holding that section 402.010(a)-(b) of the Government Code, which prevents a court from entering a final judgment until the Attorney General (AG) is notified of a constitutional challenge to a statute, violated the separation-of-powers principles set forth in the Texas Constitution]. As you may recall, the Legislature passed legislation in 2011 (HB 2425) amending the Government Code to require courts to notify the AG when constitutional challenges to state statutes were raised. The law was amended in 2013 to place the burden of notifying the court of the pleading that should be served on the AG on the party raising the constitutional challenge (SB 392).
· Bill Status: Referred to State Affairs on January 25, 2017.
SB 621 - Liability of Employees of Real Property Owners Arising from Construction Activities (Companion: HB 1315)
· Summary: SB 621, filed by Sen. Brandon Creighton (R - Conroe), would amend section 95.001(3) of the CPRC to provide that the definition of “property owner” includes an employee of the property owner for purpose of the limitation of liability of an owner for work done by an independent contractor on the owner’s premises. The companion bill (HB 1315) was filed by Rep. Phil King (R - Weatherford).
· Bill Status (SB 621): Referred to State Affairs on February 13, 2017.
· Bill Status (HB 1315): Referred to Judiciary & Civil Jurisprudence on February 27, 2017.
HB 1053 - Amendment to the Statute of Repose
· Summary: HB 1053, filed by Rep. Morgan Meyer (R - Dallas), would amend section 16.008 of the CPRC and reduce the statute of repose for construction defect claims against architects, designers, or engineers from 10 to 5 years.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 21, 2017.
HB 2422 - Certificates of Merit in Certain Proceedings
· Summary: HB 2422, filed by Rep. Mike Schofield (R - Houston), would amend section 150.002 of the CPRC to require an affiant who produces a certificate of merit in an action against a licensed architect, engineer, surveyor, or landscape architect to establish the affiant’s familiarity or experience with the practice area at issue such that they establish the affiant’s ability to render the opinion on the issue. HB 2422 would also require the affiant to attach a CV to the affidavit.
HB 2343 - Prerequisites for Asserting Construction Defect Claims
· Summary: HB 2343, filed by Rep. Paul Workman (R - Austin), would add Chapter 130A to the CPRC and do the following:
o Require a person with an interest in real property with an alleged construction defect to obtain a written report from an independent third-party licensed professional engineer prior to filing a lawsuit;
o Require the claimant to notify each party subject to the claim at least ten (10) days prior to the inspection and gives each party the right to attend the inspection;
o Create a right to correct a construction defect or related condition identified in the report within one hundred-fifty (150) days;
o Toll the statute of limitations for one year if the claim is brought in the final year of the limitations period;
o Provide for an abatement of a lawsuit for up to one year on a showing of non-compliance with the inspection requirement and dismissal with prejudice if the claimant does not comply;
o Except from the inspection and right to correct requirement: (1) a claim asserted by a contractor, subcontractor, supplier, or design professional; (2) a claim for personal injury, survival, or wrongful death; (3) a claim involving construction of residential property governed by Ch. 27, Property Code; (4) a defect or design claim covered by §82.119, Property Code (Uniform Condominium Act); (5) a contract entered into by the Texas Department of Transportation; or (6) a project that receives money from the state or federal highway fund.
HB 2300 – Recovery of Medical/Health Care Expenses as Damages Civil Actions
· Summary: HB 2300, filed by Rep. Mike Schofield (R - Houston), would amend section 41.0105 of the CPRC to provide that the recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. More specifically, under HB 2300, the amount actually paid or incurred by or on behalf of the claimant for medical or health care expenses incurred for treatment by a physician would be limited to the amount the treating physician normally would be paid for similar services in a non-litigation context, determined as follows to the extent applicable:
(1) if the claimant was covered by health insurance or any other form of health benefits, including workers’ compensation, Medicare, or Medicaid, that would pay or reimburse the expenses and the claimant accessed those benefits in obtaining the services, then the amount actually paid or incurred by or on behalf of the claimant is limited to the amount that the payor of the benefits paid or would pay for the services plus any cost-sharing amount for which the claimant is responsible, up to the allowed amount on which the payor’s payment is or would be based; or
(2) if the claimant did not have health benefits as described above or did not access those benefits in obtaining the services, then the amount actually paid or incurred by or on behalf of the claimant is limited to 125 percent of the Medicare reimbursement rate for the services.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 15, 2017.
HB 2301 – Affidavits Concerning the Cost and Necessity of Services
· Summary: HB 2301, filed by Rep. Mike Schofield (R - Houston), would amend section 18.001 of the CPRC to provide that, unless a controverting affidavit is served, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary may be admitted as evidence that the amount charged was reasonable or that the service was necessary. The affidavit does not create a presumption that the amount charged was reasonable or that the service was necessary.
HB 2301 would also require the party (or the party’s attorney) offering the affidavit in evidence to serve a copy of the affidavit on each other party to the case no later than the earlier of: (1) 60 days before the date the trial commences; or (2) the date the offering party must designate any expert witnesses under the Texas Rules of Civil Procedure. Further, the party (or party’s attorney) offering the affidavit in evidence must file notice with the court no later than the latest date for serving a copy of the affidavit under 18.001.
Under HB 2301, regardless of the date the party offering the affidavit in evidence serves a copy of the affidavit, a party intending to controvert a claim reflected by the affidavit must serve a copy of the counter affidavit on each other party or the party’s attorney of record by the earlier of: (1) 30 days before the date the trial commences, or (2) the date the party must designate expert witnesses under the Texas Rules of Civil Procedure. The counter affidavit must: (1) give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit; (2) be taken before a person authorized to administer oaths; and (3) be made by: (a) the party (or party’s attorney) that seeks to offer the counter affidavit if the initial affidavit was made by a person described in the statute; or (b) a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.
Decisions Based on Foreign Laws (Non-Family Law Proceedings)
HB 45 - Application of Foreign Laws and Foreign Forum Selection in Texas
· Summary: HB 45, filed by Rep. Dan Flynn (R - Canton), is similar to bills filed in 2011, 2013, and 2015 that failed to pass. HB 45 would prohibit a court, arbitrator, or administrative adjudicator from basing “a ruling or decision” on “a foreign law,” or otherwise enforcing contract provisions that either require the application of a foreign law to a dispute or require parties to litigate their dispute in a forum outside of the United States if such provisions would violate a right guaranteed by the United States Constitution or the Texas Constitution.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 13, 2017.
Dram Shop Act
SB 875 - Civil Liability under the Dram Shop Act
· Summary: SB 875, filed by Sen. Kelly Hancock (R - North Richland Hills), would amend the Alcoholic Beverage Code and do the following:
o Require that an action against an alcoholic beverage provider not commence unless the “obviously intoxicated person” is a named defendant in the action and is retained in the action until the conclusion of the litigation, whether by trial or settlement;
o Create a rebuttable presumption that an alcoholic beverage provider who did not last sell, serve, or provide an alcoholic beverage to an obviously intoxicated person did not commit an act giving rise to a cause of action;
o Bar a cause of action against a provider by an obviously intoxicated person or a person who bought an alcoholic beverage for or provided one to an obviously intoxicated person;
o Require 120-day pre-suit notice to all alcoholic beverage providers, running from the date the claimant enters into an attorney-client relationship for the purposes of bringing a cause of action against a provider;
o Provide that all defenses available to an obviously intoxicated person are available to a provider;
o Bar damages for financial support, services, gifts, parental training, guidance, love, society or companionship of the alleged obviously intoxicated person;
o Bar suit by a parent if the other parent recovers in a separate action, but provide for the survival of a right of action to or against the deceased party’s representative;
o In an action by a spouse, child, or parent, the general reputation of a spousal or child-parent relationship is prima facie evidence of the relationship, and the recovery of a child, spouse, or parent is the sole property of that person;
o Establish a two-year limitations period from the day the cause of action accrues.
· Bill Status: Referred to Business & Commerce on February 27, 2017.
HB 433 - Elimination of Straight-Party Voting (Companion: HB 25)
· Summary: HB 433, filed by Rep. Ron Simmons (R - Carrollton), would amend section 62.011 and other sections of the Election Code to eliminate straight ticket voting. A companion bill (HB 25) was also filed by Rep. Ron Simmons (R - Carrollton) and others.
· Bill Status (HB 433): Referred to Elections on February 20, 2017.
· Bill Status (HB 25): Elections conducted a public hearing on March 13, 2017. Those who testified for, on, or against the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 25 begins around the 1:00 mark. HB 25 was voted out of committee on March 13th without amendments.
HB 498 - Application of Foreign Laws and Foreign Forum Selection in Certain Family Law Proceedings
· Summary: HB 498, filed by Rep. Pat Fallon (R - Little Elm), would prohibit a court or arbitrator in suits involving the dissolution of a marriage from making a ruling or decision based on a foreign law, foreign judgment, or arbitration decision if the application of such law, judgment, or decision would violate a right guaranteed by the United States Constitution, the Texas Constitution, or a Texas statute. The prohibition would also apply to forum selection clauses. HB 498 is similar to various bills that failed to pass in previous sessions.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 16, 2017.
HB 687 - Motion for a New Trial and Appeal Following a Final Order in Suits Affecting the Parent-Child Relationship
· Summary: HB 687, filed by Rep. Gene Wu (D - Houston), would, among other things, amend section 263.405 of the Family Code to require: (1) a motion for a new trial following a final order in a SAPCR proceeding be filed no later than the 5th day after the date the final order is rendered; (2) a trial court to hold a hearing on the motion for a new trial not later than the 14th day after the date the motion is filed; and (3) if a motion for a new trial is filed, that an appeal of a final order under section 263.405 be filed not later than the 20th day after the date the court rules on the motion for a new trial. Further, to the extent there is any conflict with the Texas Rules of Civil Procedure or the Texas Rules of Appellate Procedure, the amended section 263.405 would control.
· Bill Status: Referred to Juvenile Justice & Family Issues on February 27, 2017.
HB 730 - Disclosure by an Attorney Before Accepting Representation in a Marriage Dissolution Proceeding
· Summary: HB 730, filed by Rep. Dwayne Bohac (R - Houston), would require an attorney to disclose certain information to a prospective client before agreeing to represent that client in a divorce proceeding. More specifically, HB 730 would amend the Family Code to require: (1) the attorney to provide a prospective client with a disclosure form promulgated by the State Bar of Texas (SBOT); and (2) the client to acknowledge in writing that the client has received and understands the disclosure. The disclosure must include information about arbitration, mediation, collaborative law, and alternatives to retaining an attorney for the dissolution of a marriage, as well as any other information that the SBOT may require. HB 730 is essentially the same bill that Rep. Bohac filed in both 2013 and 2015, which died in committee.
· Bill Status: Referred to Juvenile Justice & Family Issues on March 1, 2017.
HB 1480 - Writs of Mandamus Against Certain Associate Judges (Family Courts) (Companion: SB 1233)
· Summary: HB 1480, filed by Rep. Senfronia Thompson (D - Houston), would amend section 22.221(b) of the Government Code so as to add “an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code” to the list of judges against whom a court of appeals may issue a writ of mandamus. The companion bill (SB 1233) was filed by Sen. Jose Rodriguez (D - El Paso).
· Bill Status (HB 1480): Referred to Judiciary & Civil Jurisprudence on March 7, 2017.
· Bill Status (SB 1233): Referred to State Affairs on March 13, 2017.
Frivolous State Agency Regulatory Actions
SB 813 - Recovery of Damages, Attorney's Fees, and Costs Related to a Frivolous Regulatory Action (Companion: HB 2516)
· Summary: SB 813, filed by Sen. Bryan Hughes (R - Mineola) and others, would amend section 105 of the CPRC by adding a cause of action for frivolous state agency regulatory actions. More specifically, a claimant would be permitted to bring an action against a state agency if the state agency takes a regulatory action against the claimant that is “frivolous, unreasonable, or without foundation.” Under SB 813, a claimant may recover, in addition to all other costs permitted by law or regulation, damages caused by the state agency’s frivolous regulatory action, including reasonable attorney’s fees and costs incurred in defending against a frivolous regulatory action during an administrative proceeding and judicial review of that proceeding, if: (1) the person prevails in the judicial review of an administrative proceeding; and (2) the state agency is unable to demonstrate that the agency has good cause for the regulatory action. The companion bill (HB 2516) was filed by Rep. Morgan Meyer (R - Dallas).
· Bill Status (SB 813): Referred to State Affairs on February 27, 2017.
Government Settlement Agreements
HB 53 - Limitations on Settlement Agreements with Governmental Units (Companion: SB 1463)
· Summary: The original version of HB 53, filed by Rep. Ramon Romero, Jr. (D - Fort Worth), would prohibit a state or local governmental unit from entering into a settlement of a claim or action against the governmental unit in which: (1) the amount of the settlement is equal to or greater than $30,000; and (2) a condition of the settlement requires the party seeking affirmative relief against the governmental unit to agree not to disclose any fact, allegation, evidence, or other matter to any other person, including a journalist or other member of the media. HB 53 would also provide that:
o a provision in a settlement agreement that is in violation of the non-disclosure prohibition is void and unenforceable.
o it does not affect information that is privileged or confidential under other law.
o evidence of furnishing (or offering or promising to furnish) or accepting (or offering or promising to accept) a valuable consideration in compromising or attempting to compromise a disputed claim against a governmental unit is not admissible to prove liability for or the invalidity of the claim or its amount.
o evidence of conduct or statements made in settlement negotiations is likewise not admissible; that such prohibitions do not require the exclusion of any evidence otherwise discoverable merely because it is presented during settlement negotiations, or when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
The companion bill (SB 1463) was filed by Sen. Joan Huffman (R - Houston).
· Bill Status (HB 53): Judiciary & Civil Jurisprudence conducted a public hearing on March 14, 2017. Those who testified for, on, or against the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 53 begins around the 1:02:30 mark. At the hearing, a committee substitute for HB 53 was proposed that strikes the proposed addition of section 116.003 relating to the admissibility of evidence regarding settlement negotiations (i.e., the issues summarized under the last two bullet points above); however, the bill was left pending in committee.
HB 447 - Business Owner Liability for Prohibiting License Holders from Carrying Handguns (Similar Bills: HB 497; HB 556)
· Summary: HB 447, filed by Rep. Cecil Bell (R- Magnolia), would add Chapter 95A to the CPRC and impose liability on a business owner who forbids entry on the premises by a license holder with a handgun for damages that could have been prevented by the license holder’s lawful use of a handgun if the license holder had been permitted to carry a handgun onto the premises. The bill would also create immunity for the business owner who allows license holders to carry a handgun on the owner’s premises. HB 497 and HB 556, filed by Rep. Matt Rinaldi (R - Farmers Branch) and Rep. Mark Keough (R - The Woodlands) respectively, are similar, though not identical to HB 447, with the most significant difference being that HB 556 would impose strict liability on a business or apartment owner for damages that could have been prevented if the owner had permitted a license holder to carry a handgun.
· Bill Status (HB 447): Referred to Judiciary & Civil Jurisprudence on February 16, 2017.
· Bill Status (HB 497): Referred to Judiciary & Civil Jurisprudence on February 16, 2017.
· Bill Status (HB 556): Referred to Judiciary & Civil Jurisprudence on February 20, 2017.
HB 606 - Limited Immunity for Claims Based on a Business Owner's Failure to Forbid Handguns (Similar Bill: SB 86)
· Summary: HB 606, filed by Rep. Drew Springer (R - Gainesville), would add Chapter 95 A to the CPRC and provide immunity from civil liability for a business owner/manager with respect to a claim that is based on the owner/manager’s failure to exercise the option to forbid the carrying of handguns by a license holder on the property unless the business owner/manager was grossly negligent. SB 86, filed by Sen. Bob Hall (R - Rockwall), would also create limited civil liability for a property owner (not necessarily a business owner/manager) who fails to forbid the carrying of handguns by license holders; however, under Sen. Hall’s bill, immunity would not apply to any damage or injury that arises from a willful or wanton act or gross negligence by the property owner.
· Bill Status (SB 86): Referred to State Affairs on January 24, 2017.
· Bill Status (HB 606): Referred to Judiciary & Civil Jurisprudence on February 22, 2017.
Health Care Liability
HB 719 - Liability Limits in a Health Care Liability Claim
· Summary: HB 719, filed by Rep. Gene Wu (D - Houston), would amend sections 74.301 and 74.302 of the CPRC so as to provide for an adjustment to the noneconomic damages caps based on the consumer price index (CPI). More specifically, the bill provides that, when there is an increase or decrease in the CPI, the liability limit prescribed by the noneconomic damage limitation sections will be increased or decreased, as applicable, by a sum equal to the amount of such limit multiplied by the percentage increase or decrease in the CPI that measures the average changes in prices of goods and services purchased by urban wage earners and clerical workers’ families and single workers living alone (CPI-W: Seasonally Adjusted U.S. City Average--All Items), between September 1, 2003, and the time at which damages subject to such limits are awarded by final judgment or settlement.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 20, 2017.
**HB 2891 - Medical Authorizations to Release Protected Health Information in Health Care Liability Claims (Companion: SB 1872)
· Summary: HB 2891, filed by Rep. John Smithee (R - Amarillo), would amend section 74.052 of the CPRC to require medical authorizations used to obtain patient health information (PHI) in health care liability claims to include, among other things, the following:
o An authorization to release billing records associated with PHI;
o A category of “Other – Specify: ___________” would be added to the list of permitted purposes for the release of PHI;
o Allows a patient/patient’s legal representative to exclude from disclosure certain types of PHI, including HIV/AIDS test results and/or treatment; drugs/alcohol/substance abuse treatment; mental health records; and genetic information/test results; and
o Adds experts to the list of individuals to whom PHI released under this authorization can be disclosed.
The companion bill (SB 1872) was filed by Sen. Brandon Creighton (R - Conroe).
SB 10 – Insurance Claims and Prohibited Acts in Business of Insurance (Companion: HB 1774)
· Summary: SB 10, filed by Sen. Kelly Hancock (R - North Richland Hills) (but co-authored by multiple senators), would amend various sections of the Insurance Code to do, among other things, the following:
o Provide for an election of remedies between Chapter 541 of the Insurance Code and the DTPA;
o Cut the interest penalty from 18% to prime + 3% and bar the additional recovery of prejudgment interest;
o A claimant seeking damages in an action against an insurer would be required to provide written notice to the insurer at least 61 days prior to filing suit that includes the following information: (1) the specific damage items and the amount alleged to be owed by the insurer; (2) the amount of attorney’s fees the claimant reasonably incurred in asserting the claim against the insurer; (3) a statement of the acts or omissions giving rise to the claim; and (4) the identity of any agent whose act or omission caused or contributed to the claimant’s loss of claim.
o Provide an insurer with a right of inspection;
o Limit on attorney’s fees (e.g., barring attorney’s fees in an insureds fails to timely give notice);
o Establish a requirement in which a failure to provide requisite notice prior to filing suit would, in certain circumstances, be subject to abatement;
o Allows an insurer to accept liability for the acts of an agent, thereby preventing a claimant from filing suit against the agent.
The companion bill (HB 1774) was filed by Rep. Greg Bonnen (R - League City), but co-authored by multiple representatives.
· Bill Analysis (SB 10): Senate Research Center
· Bill Status (SB 10): Business & Commerce conducted a public hearing on March 9, 2017. Numerous individuals testified either for, on, or against the bill, including representatives from consumer groups and TTLA (against) and representatives from the insurance industry and Texans for Lawsuit Reform (for). Here’s a complete list of those who testified for, on, or against the bill: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Player. Testimony about SB 10 begins around the 5:24:30 mark.
· Bill Status (HB 1774): Referred to Insurance on March 13, 2017.
SB 1/HB 1 – Budget 2018-2019 Biennium
The House Appropriations Subcommittee on Articles I, IV & V met on Thursday, February 23 to consider budget recommendations for Article IV, the judicial portion of the budget. Representatives from the Texas Supreme Court, Court of Criminal Appeals, Courts of Appeals and judicial agencies appeared before the committee. For those interested, you can watch the video of the House subcommittee hearing by clicking on the following link: House Subcommittee Hearing (Article IV). The initial House Appropriations subcommittee decision can be viewed here: House Committee Decision Documents.
The Senate Committee on Finance conducted its judicial budget hearing on February 8th when Chief Justice Nathan Hecht, along with CCA Presiding Judge Sharon Keller, Chief Justice Jeff Rose (on behalf of all chiefs of the intermediate appellate courts), and representatives from various judicial branch agencies testified on the budget recommendations for the 2018-19 biennium. For those who are interested, you can watch the video of the Senate hearing by clicking the following link: Finance Committee Hearing (Part 1). The video stream begins with testimony regarding the CCA budget. Testimony regarding the intermediate appellate courts begins around the 16:30 mark. Testimony about the Supreme Court’s budget occurred in a second Finance Committee hearing (Finance Committee Hearing (Part 2)) and begins around the 1:44:00 mark. The initial Senate Finance Committee decision can be viewed here: Senate Finance Committee Decision Document.
Information about the proposed 2018-2019 budgets from both chambers, including summaries of the House Budget Estimates for Articles IV-X and Senate Budget Estimates for Articles IV-X (Article IV pertains to the judiciary), can be found on the Legislative Budget Board’s website. From the judicial branch’s perspective, the Senate and House versions of the budget restore for the courts (not so for judicial agencies, such as the Office of Court Administration) the 4% cut that was imposed on all state agencies and courts in the legislative appropriation request process. The only exception for the Supreme Court on this front was for Basic Civil Legal Services funding, where the 4% cut was imposed (presumably because the Pope Act from last session has generated significant revenue from some civil penalties). The Senate’s budget proposal includes a rider that would reduce all budgets by 1.5%, which could be problematic for the courts since it would certainly impact their operations.
OCA was one of the judicial agencies that received a 4% cut to its baseline appropriation in the introduced version of the budget. OCA also faces an additional budget reduction of $1.2 million, which would result in the removal of guardianship compliance project funding, the funding to OCA to assist the appellate court and judicial branch agencies as they transition to a new financial system, and funding for two staff positions.
SB 44 - Filing Requirements for Candidates for Certain Judicial Offices (Companion: HB 1242)
· Summary: SB 44, filed by Sen. Judith Zaffirini (D - Laredo), would add sections 172.021(e) and (g) to the Election Code, which would reinstate the petition requirement for certain judicial candidates that was removed in 2015 when the 84th Legislature passed SB 1073. Specifically, under SB 44, candidates for the following judicial offices would have to include a petition with their application to get on the general primary election ballot:
o Chief Justice or justice of the Supreme Court;
o Presiding Judge or judge of the Court of Criminal Appeals;
o Chief justice or justice of a court of appeals in an appellate district in which a county with a population of more than one million is wholly or partly situated;
o district or criminal district judge of a court in a judicial district wholly contained in a county with a population of more than 1.5 million;
o judge of a statutory county court in a county with a population of more than 1.5 million; and
o justice of the peace in a county with a population of more than 1.5 million.
The companion to SB 44 (HB 1242) was filed by Rep. Mike Schofield (R - Houston).
· Bill Analysis (SB 44): Senate Research Center
· Bill Status (SB 44): State Affairs conducted a public hearing February 13, 2017. Those who testified either for or on the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Archives. Testimony about SB 44 begins around the 4:10 mark. SB 44 was voted out of committee on February 21st and passed by the full Senate on February 28th.
· Bill Status (HB 1242): Referred to Elections on February 22, 2017. Scheduled for public hearing on March 20, 2017. Notice House Video
SB 409 - County and Justice Court Jurisdiction in Civil Matters (Companion: HB 2573)
· Summary: SB 409, filed by Sen. Don Huffines (R – Dallas), would amend the Government Code to increase the amount-in-controversy jurisdiction of justice courts (and the corresponding county court’s concurrent jurisdiction) over civil matters to $20,000.
The companion to SB 409 (HB 2573) was filed by Rep. Terry Wilson (R - Marble Falls).
· Bill Status (SB 409): Referred to State Affairs on February 1, 2017.
SB 525 - Review of State Laws Requiring an Action or Proceeding to be Brought in Travis County or a Travis County Court
· Summary: SB 525, filed by Sen. Brian Birdwell (R - Granbury), would create a commission to review Texas laws to identify each statute and state agency rule that requires an action or proceeding to be brought or considered in Travis County, a Travis County district or statutory county court, or the Third Court of Appeals and make recommendations on whether the location of the action or proceeding in each statute or state agency rule serves a legitimate state purpose, other than the convenience of the state agency, that supersedes the interests of persons required to travel to Travis County to attend or participate in the action or proceeding or whether the identified statute or state agency rule should be revised to authorize an action or proceeding to be brought or considered in another Texas county.
· Bill Status: Referred to Business & Commerce on February 6, 2017.
**SB 985 - Abolishment of County Court at Law Nos. 3 through 5 of Dallas County
· Summary: SB 985, filed by Sen. Don Huffines (R – Dallas), would abolish County Court at Law Nos. 3 through 5 of Dallas County and transfer all of the cases pending in those courts to County Court at Law Nos. 1-2.
SB 1307 - Authority of State Commission on Judicial Conduct to Discipline Judges (Companion: HB 3135)
· Summary: SB 1307, filed by Sen. Bob Hall (R - Rockwall), would amend section 33.001 of the Government Code and provide that a judge will not be subject to any disciplinary action, investigation, censure, or sanction for criticizing or refusing to follow an action or ruling of a federal court. SB 1307 further providers that “[a] judge’s criticism of or refusal to follow an action or ruling of a federal court is considered the judge ’s right to freedom of speech, protected under Section 8, Article I, Texas Constitution.” The companion bill (HB 3135) was filed by Rep. Briscoe Cain (R - Houston).
· Bill Status (SB 1307): Referred to State Affairs on March 14, 2017.
SJR 12 - Constitutional Amendment to Limit the Number of Terms that Judges and Justices May Serve on Texas Courts (Related Bill: SB 109)
· Summary: SJR 12 and SB 109, filed by Sen. Don Huffines (R – Dallas), would amend the Texas Constitution to add section 22.021 to the Texas Government Code and place terms limits on judges and justices, limiting the length of time for each judge or justice to serve on any one court to 18 years. Sen. Huffines has also filed bills to establish term limits for virtually every elected office in Texas.
· Bill Status (SJR 12): Referred to State Affairs on January 25, 2017.
· Bill Status (SB 109): Referred to State Affairs on January 25, 2017.
HB 214 - Recording of Certain Supreme Court and Court of Criminal Appeals Proceedings
· Summary: HB 214, filed by Rep. Terry Canales (D- Edinburg), would add section 22.303 to the Texas Government Code and require the Supreme Court and Court of Criminal Appeals to (1) make a video recording (or other electronic visual and audio recording) of each oral argument and public meeting, and (2) post the recording on each court’s website.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 13, 2017.
HB 369/HJR 32 - Creation of Texas Redistricting Commission
· Summary: HB 369 and HJR 32, filed by Rep. Donna Howard (D – Austin), would create the Texas Redistricting Commission (“TRC”), which would be responsible for adopting redistricting plans for the election of the Texas House of Representatives, the Texas Senate, and the members of the United States House of Representatives elected from the state of Texas following each federal census. The TRC also would be responsible for reapportioning judicial districts in the event the Judicial Districts Board failed to reapportion the districts.
· Bill Status: Referred to Redistricting on February 16, 2017.
HB 474 - Creation of Fifteenth District Court of Appeals
· Summary: HB 464, filed by Rep. Phil Stephenson (R - Rosenberg), would create the Fifteenth District Court of Appeals, which would sit in Edinburg and be composed of Cameron, Hidalgo, and Willacy counties. The court would consist of three (3) justices. Under HB 474, the number of justices on the Thirteenth District Court of Appeals would be reduced to three (3) justices.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 16, 2017.
HB 887 - Judicial Recusal Based on Political Contributions
· Summary: HB 887, authored by Rep. Richard Raymond (D - Laredo), would require justices on the Supreme Court and judges on the CCA (but apparently not intermediate appellate court justices) to “recuse himself or herself from any case in which the justice or judge has in the preceding four years accepted political contributions…in a total amount of $2,500 or more” from “(1) a party to the case, (2) attorney of record in the case, (3) the law firm of an attorney of record in the case, (4) the managing agent of a party to the case, (5) a member of the board of directors of a party to the case, or (6) a general-purpose committee…that is established or administered by a person who is a party to the case.”
· Bill Status: Referred to General Investigating & Ethics on February 28, 2017.
HB 958 - Interim Study Regarding the Method by Which Judges and Justices are Selected
· Summary: HB 958, filed by Rep. Justin Rodriguez (D - San Antonio), would create a joint interim committee on judicial selection (consisting a six (6) members from both the House and Senate) to study and review the method by which statutory county court, district and appellate justices/judges are selected for office. The joint committee would be required to report its findings and recommendation to the governor, lieutenant governor, and speaker of the House by January 6, 2019. HB 958 is similar to legislation proposed in previous sessions and HB 2772 that passed in 2013 and was signed by Governor; however, the joint committee created under HB 2772 never met and a report was never generated.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 27, 2017.
HB 1058 - Prohibition of Sale of Court Records Filed Through Statewide Electronic Filing System
· Summary: HB 1058, filed by Rep. Justin Holland (R - Rockwall), would prohibit a person who operates a Supreme Court approved system to electronically file court records from selling or offering to sell a copy of any court record filed through the statewide filing system unless the person selling or offering to sell the document is the clerk of the court in which the document was originally filed. A similar (though not identical) bill (HB 1393) has been filed by Rep. Ron Reynolds (D - Missouri City).
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 21, 2017.
HB 1258 - Availability of Information in Electronic Court Records
· Summary: HB 1258, filed by Rep. Travis Clardy (R - Nacogdoches), would prohibit a person, including a governmental entity, who establishes, maintains, or operates an electronic court record database may from allowing public access to any court document electronically filed with a county court, statutory county court, or district court unless: (1) the clerk of the court enters into a written agreement with the person authorizing public access to the document through the database; and (2) the commissioners court of the county in which the court is located approves the agreement.
· Bill Status: Judiciary & Civil Jurisprudence conducted a public hearing on March 7, 2017. Those who testified for, on or against the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1258 begins around the 34:40 mark. HB 1258 was left pending in committee.
HB 1465 - Prohibition on Judge's Imposition of Court Costs on Indigent Parties
· Summary: HB 1465, filed by Rep. Joe Moody (D - El Paso), would add Chapter 104 to the Government Code and would require all judges and justices who find that a defendant or plaintiff in a criminal or civil proceeding is indigent (i.e., an individual who earns not more than 125 percent of the income standard established by applicable federal poverty guidelines) to waive all court costs, including costs on conviction, and all filing fees and other fees imposed by law on the indigent defendant or plaintiff.
· Bill Status: Referred to Criminal Jurisprudence on March 15, 2017.
HB 1652 - Study of Pending Court Matters
· Summary: HB 1652, filed by Rep. Mike Lang (R - Granbury), would amend the Government Code to require OCA to conduct a study of pending court matters to analyze “the backlog of current pending matters by county, judicial region, and type of matter”; “the use of senior judges to assist in the reduction of pending matters;” and make “recommendations to reduce pending matters and improve efficiency.” Under the bill, OCA would be required to provide the report to the governor, lieutenant governor, and speaker of the house no later than January 1, 2019.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 6, 2017.
HB 1761 - Supreme Court Jurisdiction
· Summary: HB 1761, filed by Rep. John Smithee (R - Amarillo), would amend section 22.001 of the Government Code and do the following: (1) remove all grounds of jurisdiction except for “important to the jurisdiction of the state;” (2) provide that appeals may be taken to the Supreme Court only after the appeal was first taken to the court of appeals unless it is an appeal from injunctions based on the constitutionality of a statute; (3) deletes the phrases “coextensive with the limits of the state” and “extending to all questions of law;” and (4) repeals the conflicts jurisdiction provision (section 22.001(e)). HB 1761 also repeals and/or amends provisions of section 22.007 to eliminate references to the “application for writ of error” and processes associated with the writ of error process. Finally, the bill also repeals portions of section 22.225 of the Government Code, which arguably has the effect of expanding its jurisdiction in certain areas (i.e., making certain appeals no longer final in the court of appeals, such as FED and other cases where a county court has original jurisdiction; receivers; temporary injunctions, and local elections) but arguably limits its jurisdiction in other areas by removing conflict and dissent jurisdiction, and its jurisdiction over interlocutory appeals described in CPRC §51.014 (a)(3), (6), or (11), or (d).
· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 14, 2017. Scheduled for public hearing on March 21, 2017. Notice House Video
HB 2574 - Rules Adopted by Supreme Court to Promote Expedited Resolution Civil Actions
· Summary: HB 2574, filed by Rep. Andrew Murr (R - Kerrville), would amend section 22.004(h) of the Government Code so as to increase the amount in controversy for cases subject to the expedited civil action rules to $200,000. HB 2574 would also provide that attorney’s fees are not included in determining the amount in controversy.
HB 2594 - Creation of the Chancery Court and Court of Chancery Appeals to Hear Certain Cases
· Summary: HB 2594, filed by Rep. Jason Villalba (R - Dallas), would create a statewide specialized civil trial court and an appellate court to hear certain business-related litigation cases, such as actions against businesses, accusations of wrongdoing by businesses or their members, disputes between businesses, violations of the Business Organizations Code, Finance Code, and Business & Commerce Code. The “chancery court” would not have jurisdiction over governmental entities (absent the government entity invoking or consenting to jurisdiction), personal injury cases, or cased brought under the Estates Code, Family Code, the DTPA, and Title 9 (Trusts) of the Property Code, unless agreed to by the parties and the court. Some of the other notable components of the bill are:
o The chancery court would be composed of seven (7) judges who are appointed by the governor for staggered six (6) year terms. The judges would be selected from a list of qualified candidates compiled by a bipartisan advisory council (Chancery Court Nominations Advisory Council) and would have to have at least 10 years of experience in complex business law.
o The court clerk would be located in Travis County, but individual judges would be based in the county seat of their respective counties.
o Current venue rules would apply, but cases could be heard in an agreed-upon county or where the court may decide to be more convenient or necessary.
o There would be a removal procedure for cases filed in a district court.
o The Court of Chancery Appeals, which would handle appeals from the chancery trial court, would be composed of seven (7) justices who are appointed by the governor based on a list of qualified candidates compiled by the advisory council. Justices would serve six (6) year terms and would hear cases in panels of three (3) randomly-selected justices. Appeals from the Chancery CA would go to the Supreme Court.
HB 2594 is virtually identical to the version of the chancery court bill (HB 1603) that was voted out of committee last session.
HB 2776 - Superseding a Judgement or Order on Appeal (Companion: SB 1441)
· Summary: HB 2776, filed by Rep. John Smithee (R - Amarillo), would amend section 22.004 of the Government Code to require the Supreme Court to adopt rules to provide that the right of an appellant under CPRC §6.001(b)(1), (2), or (3) to supersede a judgment or order on appeal is not subject to being counter-superseded under Rule 24.2(a)(3) of the Texas Rules of Appellate Procedure, or any other rule.
The companion bill (SB 1441) was filed by Sen. Brandon Creighton (R - Conroe).
HB 3971 - Method of Calculating Judicial Salaries (Companion: SB 1938)
· Summary: HB 3971, filed by Rep. Mike Schofield (R - Houston), would amend the Government Code to provide a formula for determining the salaries of Texas judges. Under HB 3971, the salary of a supreme court justice (other than chief justice) and a CCA judge (other than the presiding judge) would be equal to the sum of:
(1) 1/3 of the average salary, on January 1st, of the justices (excluding chief justices) on the highest appellate courts of the 9 most populous states, not including Texas;
(2) 1/3 of the salary, on January 1st, of a judge of a U.S. court of appeals; and
(3) 1/3 of the average starting base salary, on January 1st, of first year associates at the five largest law firms in Texas.
The salary of a court of appeals justice (other than the chief justice) would be 91% of a supreme court justice (other than the chief justice). The salary of a district judge would be 82.5 % of the salary of a supreme court justice (other than the chief justice). Using this formula, the salaries for the justices would be approximately $194,000.00 for a supreme court justice, $176,500.00 for a court of appeals justice, and $160,000.00 for a district court judge.
Other features of the bill include the following:
o OCA would have to collect and provide the data for (1) and (2) above to the Legislative Budget Board (LBB) by February 1st of each year.
o The State Bar would collect and provide the data for (3) above to the LBB by February 1st of each year.
o LBB would have to calculate the salaries and provide them to the comptroller by March 1st of each year.
o Salaries would be adjusted on October 1st of each year, but the adjusted salary of a supreme court justice (other than the chief justice) and a judge on the CCA (other than the presiding judge) could not increase more than 4% per year or by the percentage change in the Consumer Price Index, whichever is higher.
o As is the case currently, the chief justice or presiding judge of an appellate court is entitled to an annual salary that is $2,500 more than the salaries provided for the other justices or judges on the court.
o The effective date would be January 1, 2019.
o The first pay increase would be on October 1, 2019. As such, there’d be no fiscal impact for the next biennium.
The companion bill (SB 1938) was filed by Sen. Bryan Hughes (R - Mineola).
HJR 10 - Eligibility Requirements and Terms of Office for Judiciary (Similar Resolutions: HJR 11; HJR 117)
· Summary: HJR 10, filed by Rep. John Smithee (R - Amarillo), would amend the Texas Constitution and specifically provide that:
o In order to be eligible to serve as chief justice or a justice of the Supreme Court, presiding judge or judge of the CCA, or chief justice of justice of the court of appeals, the person must be licensed to practice law in the State of Texas and, at the time of election, be a citizen of the United States and of the State of Texas; be at least thirty-five years of age; and has been a practicing lawyer licensed in the State of Texas for at least ten consecutive years, or has been a practicing lawyer licensed in the State of Texas and judge of a state court or county court established by the Legislature by statute for a combined total of at least ten consecutive years, during which time the person ’s license to practice law has not been revoked, suspended, or subject to a probated suspension.
o The terms of office for Supreme Court justices, CCA judges, and court of appeals justices would be extended to eight years and the terms would be staggered. The terms of district judges would be extended to six years.
o The effective date of the changes to the Constitution would be January 1, 2018. The implementation of the staggered term process would begin with those justices whose terms begin to expire in 2018, and continue as outlined in HJR 10.
Rep. Smithee also filed similar resolutions HJR 11 (Eligibility requirements for appellate judicial offices) and HJR 117 (Terms of office for judicial offices).
HB 3911 - Trial Court Instructions to Jury
· Summary: HB 3911, filed by Rep. John Kuempel (R - Seguin), would amend chapter 32 of the Government Code and require a trial judge to instruct the members of the jury of their duty to (1) “judge the law to determine whether the law is unjust or unjustly applied to a party in a case”; (2) “determine the validity of the evidence”; and (3) “vote on the jury verdict according to the members’ consciences.”
HB 584 - Litigation Finance Agreements
· Summary: HB 584, filed by Rep. Anna Hernandez (D - Houston), would add Chapter 354 to the Finance Code and establish statutory requirements for “litigation financing agreements.” Under HB 584, a litigation financing agreement would be defined as an agreement under which “money is provided to or on behalf of a consumer by a litigation financing company for a purpose other than prosecuting the consumer’s legal claim” and “the repayment of the money is in accordance with a litigation financing transaction the terms of which are included as part of the litigation financing agreement.”
HB 584 would require litigation financing agreements to: (1) be in writing; (2) contain the initials of the consumer on each page; and (3) be “otherwise complete” when presented to the consumer for signature. Other required terms and disclosures, which has to be on the front page of the agreement under appropriate headings, would include the following: (1) the funded amount to be paid to the consumer by the litigation financing company; (2) an itemization of one-time charges; (3) the total amount to be assigned by the consumer to the company, including the funded amount and all charges; and (4) a payment schedule that: (a) includes the funded amount and charges; and (b) lists all dates and the amount due at the end of each 180-day period from the funding date until the due date of the maximum amount due to the company by the consumer to satisfy the amount owed under the agreement.
· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 20, 2017.
Real Estate Litigation
**SB 1894 - Suits Involving Real Property
· Summary: SB 1894, filed by Sen. Konni Burton (R - Colleyville), would amend section 16.003 of the CPRC to provide that the two-year limitations period for a suit for trespass for injury to real property only to a suit for damages arising from the trespass. SB 1894 would also amend section 37.004 of the CPRC (i.e., the Uniform Declaratory Judgments Act (UDJA)) to provide that (1) a UDJA action to determine proper boundary lines of real property owned by the person bringing the action will not be subject to a limitations period and (2) a person may bring an action for trespass to real property and an action to obtain a determination under the UDJA of the proper boundary line of the property in the same proceeding and may recover costs and attorney’s fees under the UDJA for both causes of action.
SB 4 - Relating to the State and Local Governmental Entity Enforcement of State and Federal Laws Governing Immigration (Companion Bills: HB 611, HB 754, HB 889, HB 1308)
· Summary: SB 4, filed by Sen. Charles Perry (R - Lubbock) (but co-authored by multiple senators), would, among other things, prohibit state and local government policies that prevent local law enforcement from inquiring about a person's immigration status and complying with detainer requests. SB 4 would also waive sovereign and governmental immunity for those entities that release from custody a person who is the subject of an immigration detainer request issued by the United States Immigration and Customs Enforcement and would create liability for damages resulting from a felony committed by the person within 10 years following the person’s release if: (1) the state criminal justice agency, county, or municipality did not detain the person as requested; (2) the person was not a citizen of the United States at the time of release; and (3) the attorney general has petitioned the chief justice of the supreme court to convene the special three-judge district court to hear an action brought under that section against the county or municipality.
The companion bills were filed by Rep. Jeff Leach (R - Plano) (HB 611), Rep. Pat Fallon (R - Little Elm) (HB 754), Rep. Charlie Geren (R - Fort Worth) (HB 889); and Rep. Justin Holland (R - Rockwall) (HB 1308).
· Bill Status (SB 4): State Affairs voted SB 4 out of committee on February 3, 2017 and the full Senate passed SB 4, as amended, on February 8th. State Affairs conducted a public hearing on SB 4 on March 15, 2017. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about SB 4 begins around the 7:30 mark. SB 4 was left pending in committee.
· Bill Status (HB 611): Referred to State Affairs on February 22, 2017.
· Bill Status (HB 754): Referred to State Affairs on March 1, 2017.
· Bill Status (HB 889): Referred to State Affairs on February 22, 2017.
· Bill Status (HB 1308): Referred to State Affairs on February 27, 2017.
Uniform Trade Secrets Act
HB 1995 – Amendments to the Texas Uniform Trade Secrets Act (Companion: SB 1945)
· Summary: HB 1995, filed by Rep. Gary Elkins (R - Houston), would amend chapter 134A of the CPRC (a/k/a Texas Uniform Trade Secrets Act) to (1) make the UTSA consistent with the Defend Trade Secrets Act passed by Congress in May 2016; (2) add a definition of “clear and convincing evidence” to be consistent with the same definition in other sections of the CPRC; (3) add a definition of “willful and malicious appropriation” (using a 7th Circuit case for guidance); (4) and codify concepts from the Texas Supreme Court’s 2016 decision in In re M-I LLC, which explored the tension between the rights of litigants to hear the evidence presented against them and a trade secret owner’s right to protect the confidentiality of its trade secrets during litigation.
The companion bill (SB 1945) was filed by Sen. Bryan Hughes (R - Mineola).
· Bill Status: Referred to Government Transparency & Operation on March 15, 2017.
Wrongful Birth Cause of Action
SB 25 - Elimination of Wrongful Birth Cause of Action (Companion: HB 434)
· Summary: SB 25, filed by Sen. Brandon Creighton (R - Conroe) and co-authored by multiple senators, would amend the CPRC to expressly prohibit a cause of action and damages arising on a claim that “but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” The companion bill (HB 434) was filed by Rep. Ron Simmons (R - Carrollton),
· Bill Analysis: Senate Research Center.
· Bill Status: State Affairs conducted a public hearing on SB 25 on February 27, 2017. Those who testified for, on, or against the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Archives. Testimony begins around the 1:03:40 mark. A committee substitute, which added a provision stating that the changes to the law made by SB 25 may not be construed to eliminate any duty of a physician or other health care practitioner under any other applicable law, was approved unanimously by the committee on March 6, 2017.
If you have any questions about these topics or any other matter that comes to mind, feel free to contact me. If I do not know the answer to your questions, I’ll do my best to find someone who does.
Co-Chair, Legislative Liaison Committee
State Bar of Texas Appellate Section
Jerry D. Bullard*
* Board Certified - Civil Appellate Law
Adams, Lynch & Loftin, P.C.
3950 Highway 360
Grapevine, Texas 76051
Texas Board of Legal Specialization