February 12, 2017

Jerry Bullard
Adams, Lynch & Loftin, P.C. 
Co-Chair, Legislative Liaison Committee, State Bar of Texas Appellate Section

The 85th Legislature: Legislative Summary
February 12, 2017

Dear Friends and Colleagues,

Well, since the last update, Governor Abbott delivered his . With the completion of those preliminary (yet significant) events, the 85th Legislature will now really get down to business. State of the State Address, Chief Justice Hecht delivered his State of the Judiciary Address and Speaker Joe Straus announced his House Committee Assignments

The Past Week (or Two) in Review

New Bills

As of February 10th, 2,613 bills and resolutions have been filed, which is a significant increase over the number of bills and resolutions filed at the same point in time during each of the last five sessions.

Since the last update, I have added several news bills to the update, including the following:

  • SB 525 – Review of laws requiring venue in Travis County
  • SB 787 – Authorization to award attorney’s fees and court costs in local regulation enforcement actions
  • SB 813 – Recovery of damages, attorney's fees, and costs related to a frivolous state agency regulatory action
  • HB 1465 – Prohibition on judges imposing court costs on indigent parties
  • HB 1480 – Addition of associate judges in family law courts to the list of judges against whom a court of appeals may issue a writ of mandamus
  • HB 1652 – Requiring the Office of Court Administration to conduct a study on all pending court matters
  • HB 1761 – Jurisdiction of the Texas Supreme Court

Each of the added bills have been summarized below and are marked with a double asterisk. You can jump to the summary of the newly added bills by clicking on the bill numbers above.

Judicial Budget Hearing

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.

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.

State of the Judiciary Address
Chief Justice Nathan Hecht delivered his State of the Judiciary Address before a joint session of the Legislature on Wednesday, February 1st. His points of emphasis included the following: 
  • Need for statewide improvements in judicial and courthouse security;
  • Increase judicial compensation and make it part of the baseline budget and based on a mathematical formula;
  • Adequate funding for “access to justice” programs;
  • Closing the “justice gap” that exists for middle-income families and small businesses by finding ways to bridge the gap between “people who need legal services, lawyers who need jobs, and a market that cannot bring them together;”
  • Facilitating access to electronic court filings statewide while protecting privacy, preventing abusive data-mining, recovering costs, and providing counties with sufficient revenue to establish and maintain a statewide system; and
  • Improving judicial selection by removing judges from straight-ticket voting and implementing a merit selection process followed by nonpartisan retention elections.
House Committee Assignments
On February 9th, Speaker Joe Straus announced his House Committee Assignments. Here is a link to the list: House Committee Assignments (85th Legislature).

The Week Ahead
SB 44 (i.e., regarding petition requirements for judges to get on the general primary election ballot) is scheduled for public hearing in front of the Senate Committee on State Affairs on February 13, 2017. A link to the video feed is located in the bill summary below.
 

MONITORED BILLS

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. If you have completed reading a bill summary and wish to return to the top of the update, click on the subject heading for the summarized bill. [Note: I’ve been told that some of these internal links may not work on some iPads or iPhones, but does on others. If you are in the former category, I apologize. I’m still trying to resolve that issue.]

Monitored Bills:

**Attorney’s Fees

Conflicts Between State and Federal Law

Constitutional Challenges to Texas Statutes

Decisions Based on Foreign Laws (Non-Family Law Proceedings)

Elections

**Family Law

**Frivolous State Agency Regulatory Actions

Government Settlement Agreements

Handgun Liability

Health Care Liability

**Judiciary/Court Administration

Lawsuit Financing

Wrongful Birth Cause of Action

Other Topics:

Interim Charges (All reports have now been published)

Judicial Council Legislative Proposals

Judicial Compensation Commission Recommendations

Attorney’s Fees

**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 otherwise determine the applicability of a local government regulation. The companion bill (HB 1704) was filed by Rep. John Kuempel (R - Seguin).

HB 744 - Recovery of Attorney's Fees in Certain Civil Cases

· Summary: HB 744, filed by Rep. Jessica Farrar (D - Houston), would amend 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 bill would further provide 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. HB 744 is similar to a bill filed last session that failed to pass.

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

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.

Elections (General)

HB 433 - Elimination of Straight-Party Voting

· 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.

Family Law

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.

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.

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.

**HB 1480 - Writs of Mandamus Against Certain Associate Judges (Family Courts)

· 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.

Frivolous State Agency Regulatory Actions

**SB 813 - Recovery of Damages, Attorney's Fees, and Costs Related to a Frivolous Regulatory Action

· 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.

Government Settlement Agreements

HB 53 - Limitations on Settlement Agreements with Governmental Units

· Summary: 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.

Handgun Liability

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.

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 wilful or wanton act or gross negligence by the property owner.

· Bill Status (SB 86): Referred to State Affairs on January 24, 2017.

Health Care Liability

HB 791 - Liability Limits in a Health Care Liability Claim

· Summary: HB 791, 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.

Judiciary/Court Administration

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 Status (SB 44): Scheduled for public hearing in State Affairs on February 13, 2017. Notice Video Link

SB 409 - County and Justice Court Jurisdiction in Civil Matters

· 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.

· Bill Status: 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.

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.

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.

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.

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.”

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.

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 1393has been filed by Rep. Ron Reynolds (D - Missouri City).

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.

**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.

**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.

**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).

Lawsuit Financing

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.

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 Status: Referred to State Affairs on January 24, 2017.

INTERIM CHARGES

The Legislature has now published reports on all of the civil justice system-related interim charges (several of which are listed below) issued by the Lt. Governor and Speaker of the House in preparation for the 2017 legislative session. Parenthetical references to the page of the report where a specific charge listed below is discussed will follow the summary of the charge.

· Senate Committee on State Affairs - Interim Report

o Religious Liberty: Examine measures to affirm 1st Amendment religious liberty protections in Texas, along with the relationship between local ordinances and state and federal law. Make recommendations to ensure that the government does not force individuals, organizations or businesses to violate their sincerely held religious beliefs. (Interim Report at p. 1)

o Judicial Matters: Examine the need to adjust Texas judicial salaries to attract, maintain, and support a qualified judiciary capable of meeting the current and future needs of Texas and its citizens. Study and recommend whether Texas should delink legislators' standard service retirement annuities from district judge salaries. Examine the effect of eliminating straight-party voting for candidates for judicial office and make recommendations to ensure candidates are given individual consideration by voters. (Interim Report at p. 11)

· Senate Committee on Business and Commerce - Interim Report

o Hail Storm: Monitor the number of lawsuits related to property claims filed as a result of multiple hail storms and weather related events across Texas. Examine negative consumer trends that may result in market disruption such as higher premiums and deductibles, less coverage, non-renewals, and inability to secure coverage due to insurance carrier withdrawal from the state and make recommendations on legislative action needed. (Interim Report at p. 9)

o Texas Prompt Pay Law: Study the impact of the penalty calculations under the current prompt payment of health care claim laws and regulations, including comparing penalties in other states and late payment penalties in Texas for other lines of insurance. Evaluate whether unregulated billed charges is the appropriate basis for determining penalty amounts and make recommendations for statutory changes, if needed. (Interim Report at p. 19)

· Senate Committee on Health and Human Services - Interim Report

o Wrongful Birth Cause of Action: Examine the cause of action known as “wrongful birth.” The study should examine (1) its history in Texas, (2) its effect on the practice of medicine, and (3) its effect on children with disabilities and their families. Examine related measures proposed or passed in other states. (Interim Report at p. 5)

· House Committee on Business and Industry - Interim Report

o Shareholder Rights and Remedies: Study the impact of recent Texas cases related to the rights and remedies of shareholders of Texas corporate forms, including the impact of those decisions on the legal rights of both Texas corporations and shareholders and any impact on the Texas business climate. (Interim Report at p. 36)

· House Committee on Insurance - Interim Report

o Weather-Related Property Insurance Claims: Examine available data on the cost of weather-related property insurance claims and the incidence of litigation of these claims. Study whether these data reveal trends or patterns over time and what the drivers of these trends might be. Identify impacts on the property insurance market and on consumers from claims litigation. (Interim Report at p. 5)

· House Committee on Judiciary and Civil Jurisprudence - Interim Report

o Application of Foreign Law to Family Law Cases: Examine whether family law statutes and those affecting the parent-child relationship provide sufficient guidance to Texas judges as to the appropriate application of foreign law. Consider whether additional statutory provisions regarding application of foreign law could provide useful guidance while preserving judges' ability to consider the circumstances of each case and not needlessly prolonging litigation. (Interim Report at p. 7)

o Pro Se Litigants: Evaluate recent efforts to make the court system more accessible for self-represented litigants, and make recommendations on how the courts can more effectively interact with unrepresented parties and increase access to legal information, assistance, and representation. Examine similar efforts in other states. (Interim Report at p. 14)

o Jury Service: Examine issues related to jury service in Texas, including participation and response rates, the accuracy of jury wheel data, and possible methods to improve response and participation. (Interim Report at p. 17)

o Expedited Actions: Study the implementation of the expedited action provisions of HB 274 (82R), and examine whether these provisions have been effective in encouraging the prompt and efficient resolution of cases. (Interim Report at p. 20)

JUDICIAL COUNCIL LEGISLATIVE PROPOSALS

The Texas Judicial Council has several legislative proposals that have policy implications in the administration of justice. Some of the proposals include the following:

  • Adequate funding of the courts (special focus on judicial education)
  • Additional state funding for the increased cost of indigent defense
  • Adequate funding for civil legal aid
  • Increase in judicial compensation and recommendations of Judicial Compensation Commission
  • Consolidation of civil filing fees, standardization of certain service fees, and standardization of costs for electronic copies of court documents
  • Repeal or modify statutes requiring sensitive data in court filings

JUDICIAL COMPENSATION COMMISSION RECOMMENDATIONS

The Judicial Compensation Commission will be making the following recommendations to the Legislature:

  • 10.2 % pay raise for state judges and justices
  • De-link judicial salaries from legislative pensions
  • Automatically include a judicial compensation adjustment in the baseline budget

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.

 

 

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