January 3, 2017

Legislative Update

January 3, 2017

As of today (January 3rd), 1,183 bills and resolutions have been filed, which is way ahead of last session’s pace in terms of pre-session filings. Of the bills filed thus far, several relate to the judiciary and the civil justice system. Overviews of some of the more notable bills are listed below. Those that have been added since the previous update are marked with a double asterisk.


Attorney’s Fees

**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.

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).

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

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 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.

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

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 candidates. 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.

In 2015, the Legislature passed SB 1073 (also filed by Sen. Zaffirini) that included provisions removing the petition requirements from the Election Code.

**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.

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.

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, and HB 434, filed by Rep. Ron Simmons (R - Carrollton), 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 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 Business & Industry, Insurance, and Judiciary/Civil Jurisprudence committees have yet to publish their respective reports. 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

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

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.


Video (testimony begins around the 1:32:45 mark)

Witness List

Committee Handouts

· House Committee on Insurance

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.


Video (testimony begins around the 1:10 mark)

Witness List

Committee Handouts

· House Committee on Judiciary and Civil Jurisprudence

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.


Video (testimony begins around the 1:37:45 mark)

Witness List

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.


Video (testimony begins around the 39:45 mark)

Witness List

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.


Video (testimony begins around the 20:30 mark)

Witness List

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.


Video (testimony begins around the 1:10 mark)

Witness List


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


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


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