81R23369 TJS-D
By: Keffer H.B. No. 2044
Substitute the following for H.B. No. 2044:
By: Gallego C.S.H.B. No. 2044
A BILL TO BE ENTITLED
AN ACT
relating to an action on certain contracts for information about
property recoverable by the state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 403, Government Code, is
amended by adding Section 403.0197 to read as follows:
Sec. 403.0197. ACTION ON CONTRACT. (a) If a contract
executed under Section 403.0195 on or before September 1, 2009,
involves royalties or other proceeds of production attributable to
state-owned lands or mineral interests and does not result in the
state filing suit or taking other action to recover on the claim
that is the subject of the contract before the expiration of five
years after the date on which the contract is executed, the
contracting person may file a civil action on the claim that is the
subject of the contract. An action brought under this section is on
behalf of both the contracting person and the state and must be
brought in the name of the person and the state.
(b) A person bringing an action under this section shall
serve a copy of the petition and a written disclosure of
substantially all material evidence and information the person
possesses on the attorney general in compliance with the Texas
Rules of Civil Procedure.
(c) The petition shall be filed in camera and, except as
provided by Subsection (e) or (f), shall remain under seal until at
least the 180th day after the date the petition is filed or the date
on which the state elects to intervene, whichever is earlier. The
petition may not be served on the defendant until the court orders
service on the defendant.
(d) The state may elect to intervene and proceed with the
action not later than the 180th day after the date the attorney
general receives the petition and the material evidence and
information.
(e) At the time the state elects to intervene, the attorney
general may file a motion with the court requesting that the
petition remain under seal for an extended period.
(f) The state may, for good cause shown, move the court to
extend the 180-day deadline under Subsection (c) or (d). A motion
under this subsection may be supported by affidavits or other
submissions in camera.
(g) An action under this section may be dismissed before the
end of the period during which the petition remains under seal only
if the court and the attorney general consent in writing to the
dismissal and state their reasons for consenting.
(h) A defendant is not required to file in accordance with
the Texas Rules of Civil Procedure an answer to a petition filed
under this section until the petition is unsealed and served on the
defendant.
(i) Not later than the last day of the period prescribed by
Subsection (d) or an extension of that period as provided by
Subsection (e) or (f), the state shall:
(1) proceed with the action; or
(2) notify the court that the state declines to take
over the action.
(j) If the state declines to take over the action, the
person bringing the action may proceed without the state's
participation. On request by the state, the state is entitled to be
served with copies of all pleadings filed in the action and be
provided at the state's expense with copies of all deposition
transcripts. If the person bringing the action proceeds without
the state's participation, the court, without limiting the status
and right of that person, may permit the state to intervene at a
later date on a showing of good cause.
(k) If the state proceeds with the action, the state has the
primary responsibility for prosecuting the action and is not bound
by an act of the person bringing the action. The person bringing
the action has the right to continue as a party to the action,
subject to the limitations in this section.
(l) The state may dismiss the action notwithstanding the
objections of the person bringing the action if:
(1) the attorney general notifies the person that the
state has filed a motion to dismiss; and
(2) the court provides the person with an opportunity
for a hearing on the motion.
(m) The state may settle the action with the defendant
notwithstanding the objections of the person bringing the action if
the court determines, after a hearing, that the proposed settlement
is fair, adequate, and reasonable under all the circumstances. On a
showing of good cause, the hearing may be held in camera.
(n) On a showing by the state that unrestricted
participation during the course of the litigation by the person
bringing the action would interfere with or unduly delay the
state's prosecution of the case, or would be repetitious,
irrelevant, or for purposes of harassment, the court may impose
limitations on the person's participation, including:
(1) limiting the number of witnesses the person may
call;
(2) limiting the length of the testimony of witnesses
called by the person;
(3) limiting the person's cross-examination of
witnesses; or
(4) otherwise limiting the participation by the person
in the litigation.
(o) On a showing by the defendant that unrestricted
participation during the course of the litigation by the person
bringing the action would be for purposes of harassment or would
cause the defendant undue burden or unnecessary expense, the court
may limit the participation by the person in the litigation.
(p) A person bringing an action under this section may
recover an amount not greater than five percent of the amount of the
revenue or the value of the other property that the state recovers
as a result of the person bringing the action.
(q) Recovery by a person under this section shall be from
the proceeds of the action, including the proceeds of any
settlement. The court shall determine necessary expenses, fees,
and costs to be awarded under this subsection only after the
defendant has been found liable in the action. A person who
receives a payment under this section is entitled to receive from
the defendant an amount for:
(1) reasonable expenses;
(2) reasonable attorney's fees; and
(3) costs that the court finds to have been
necessarily incurred.
(r) This section does not apply to a claim against a
governmental unit, as defined by Section 101.001, Civil Practice
and Remedies Code.
(s) This section expires January 1, 2015.
SECTION 2. Notwithstanding the expiration of Section
403.0197, Government Code, as added by this Act, an action that is
commenced under that section on or before December 31, 2014, is
governed by that section, and that section is continued in effect
for that purpose.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.