January 27, 2017
Adams, Lynch & Loftin, P.C.
Co-Chair, Legislative Liaison Committee, State Bar of Texas Appellate Section
January 27, 2017
January comes to a close, the Legislature continues to pick up steam. As
of Friday, January 27th, 1,987 bills and resolutions have been
filed. Over the past two weeks, Senate committee assignments have been
announced, the Senate has started referring bills to committees, the House and
Senate have published their respective budget proposals, and members of both
chambers have continued to file bills at an impressive rate. An overview
of some of the more interesting bills and other events are summarized below.
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). However, 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.
The Senate Committee on Finance has scheduled a hearing for Tuesday, February 7th) when Chief Justice Nathan Hecht, along with CCA Presiding Judge Sharon Keller, the chief justices of the state’s intermediate appellate courts and representatives from various judicial branch agencies, will testify before the Senate Committee on Finance on budget recommendations for the 2018-19 biennium. For those who are interested, you can watch the video of the Senate hearing by visiting the Senate website and clicking on the Senate Committee on Finance link when it is posted. The hearing is scheduled to begin at 9:00 a.m. Here’s the posted agenda: Notice of Public Hearing. Of course, I’ll provide an overview of what transpires at the hearing in a future update.
State of the Judiciary Address
Chief Justice Nathan Hecht is scheduled to give the State of the Judiciary address before a joint session of the Legislature at 11 a.m. on Wednesday, February 1st. You can watch the live video stream of Chief Justice Hecht’s address on the House website.
Senate Committee Assignments
On January 18th, Lt. Governor Patrick announced his Senate Committee assignments. Here is the link to the list: Senate Committee Assignments. House committee assignments will be announced in the near future.
Since the last update, I have added several news bills, including two dealing with the availability of electronic court records (i.e., HB 1058 - Prohibition of Sales of Court Records Filed Through Statewide Electronic Filing System; HB 1258 - Availability of Information in Electronic Court Records) and several bills dealing with civil liability arising from a property owner’s decision to prohibit or not prohibit the carrying of handguns by license holders (i.e., HB 447, HB 497, HB 556, HB 606, and SB 86). Each of the added bills have been summarized below and are marked with a double asterisk.
For those of you who are receiving this update for the first time, I have grouped the monitored bills by subject-matter and have created hyperlinks within the updates to permit you to jump to a category of bills (or other topics) by clicking on the subject headings below instead of perusing the entire list from top-to-bottom. New categories or categories where bills have been added are marked with asterisks. You can also jump to the summary of the newly listed bills by clicking on the bill numbers above. If you 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 trying to resolve that issue.]
Conflicts Between State and Federal Law
Constitutional Challenges to Texas Statutes
Decisions Based on Foreign Laws (Non-Family Law Proceedings)
Government Settlement Agreements
Health Care Liability
Wrongful Birth Cause of Action
Judicial Council Legislative Proposals
Judicial Compensation Commission Recommendations
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 Texas Government Code and 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 holding that section 402.010(a)-(b) of the Government Code, which prevents a court from entering a final judgment until the 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.
HB 433 - Elimination of Straight-Party Voting
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 that: (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) the trial court 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, an appeal of a final order under section 263.405 must 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.
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 a provision in a settlement agreement that is in violation of the non-disclosure prohibition is void and unenforceable.
- Provide that the bill does not affect information that is privileged or confidential under other law.
- Provide that 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.
- Provide that 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.
**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 otherwise lawful use of a handgun by a license holder who would otherwise have carried 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 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 who prohibits a license holder for damages that could have been prevented.
**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 for 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. More specifically, the bill provides that, when there is an increase or decrease in the consumer price index (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.
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) of the Election Code, which would reinstate the petition requirement for certain judicial candidate 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:
- Chief Justice or justice of the Supreme Court;
- Presiding Judge or judge of the Court of Criminal Appeals;
- 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;
- 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;
- judge of a statutory county court in a county with a population of more than 1.5 million; and
- 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).
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.
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 term limit bills for virtually every elected office in Texas. Similar bills were filed in 2015.
- 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. A similar bill was filed in 2015.
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. A similar bill and resolution were filed in 2015.
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.” Similar legislation was filed in each of the past 4 sessions, all of which died in committee.
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.
**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 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)
The Legislature has now conducted hearings 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. The Senate has published reports for its interim charges. On December 22nd, the House began releasing its reports; however, the House Insurance committee has yet to publish its report. In those instances where interim charge reports have been published, parenthetical references to the page of the report where a specific charge listed below is discussed will follow the summary of the charge. For those charges not addressed in any of the published reports to date, I have included links to the video streams, hearing notices, and witness lists for each charge.
- Senate Committee on State Affairs - Interim Report
- 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)
- 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
- 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)
- 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
- 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
- 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
- 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.
Video (testimony begins around the 1:10 mark)
- House Committee on Judiciary and Civil Jurisprudence - Interim Report
- 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)
- 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)
- 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)
- 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.