Texas 2009 - 81st Regular

Texas House Bill HB2696 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R8751 CAE-F
2	2	By: Gattis H.B. No. 2696
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to arbitration proceedings.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 51.014(a), Civil Practice and Remedies
10	10	Code, is amended to read as follows:
11	11	(a) A person may appeal from an interlocutory order of a
12	12	district court, county court at law, or county court that:
13	13	(1) appoints a receiver or trustee;
14	14	(2) overrules a motion to vacate an order that
15	15	appoints a receiver or trustee;
16	16	(3) certifies or refuses to certify a class in a suit
17	17	brought under Rule 42 of the Texas Rules of Civil Procedure;
18	18	(4) grants or refuses a temporary injunction or grants
19	19	or overrules a motion to dissolve a temporary injunction as
20	20	provided by Chapter 65;
21	21	(5) denies a motion for summary judgment that is based
22	22	on an assertion of immunity by an individual who is an officer or
23	23	employee of the state or a political subdivision of the state;
24	24	(6) denies a motion for summary judgment that is based
25	25	in whole or in part upon a claim against or defense by a member of
26	26	the electronic or print media, acting in such capacity, or a person
27	27	whose communication appears in or is published by the electronic or
28	28	print media, arising under the free speech or free press clause of
29	29	the First Amendment to the United States Constitution, or Article
30	30	I, Section 8, of the Texas Constitution, or Chapter 73;
31	31	(7) grants or denies the special appearance of a
32	32	defendant under Rule 120a, Texas Rules of Civil Procedure, except
33	33	in a suit brought under the Family Code;
34	34	(8) grants or denies a plea to the jurisdiction by a
35	35	governmental unit as that term is defined in Section 101.001;
36	36	(9) denies all or part of the relief sought by a motion
37	37	under Section 74.351(b), except that an appeal may not be taken from
38	38	an order granting an extension under Section 74.351;
39	39	(10) grants relief sought by a motion under Section
40	40	74.351(l); [or]
41	41	(11) denies a motion to dismiss filed under Section
42	42	90.007; or
43	43	(12) denies an application to compel or grants an
44	44	application to stay arbitration.
45	45	SECTION 2. Section 171.001, Civil Practice and Remedies
46	46	Code, is amended by adding Subsections (c) and (d) to read as
47	47	follows:
48	48	(c) A written arbitration agreement described by Subsection
49	49	(a)(1) must include a statement, initialed by each party to the
50	50	agreement, stating that the party has chosen to arbitrate a
51	51	controversy that exists at the time of the agreement. A written
52	52	arbitration agreement described by Subsection (a)(2) must include a
53	53	statement, initialed by each party to the agreement, stating that
54	54	the party has chosen to arbitrate any controversy that arises
55	55	between the parties after the date of the agreement. An agreement
56	56	to arbitrate must be prominently displayed in the document and in
57	57	12-point bold type.
58	58	(d) A party to a contract may not require any other party to
59	59	the contract to agree to arbitration as a condition of the contract.
60	60	SECTION 3. Section 171.021, Civil Practice and Remedies
61	61	Code, is amended by adding Subsection (d) to read as follows:
62	62	(d) An order compelling arbitration may not violate a right
63	63	protected by the United States Constitution or the Texas
64	64	Constitution. The provisions of Section 171.098(a) apply to an
65	65	appeal on constitutional grounds from an order compelling
66	66	arbitration.
67	67	SECTION 4. Section 171.022, Civil Practice and Remedies
68	68	Code, is amended to read as follows:
69	69	Sec. 171.022. UNCONSCIONABLE AGREEMENTS UNENFORCEABLE. A
70	70	court may not enforce an agreement to arbitrate if the court finds
71	71	the agreement was unconscionable at the time the agreement was
72	72	made. An agreement is unconscionable if enforcement of the
73	73	agreement will violate a right protected by the United States
74	74	Constitution or the Texas Constitution.
75	75	SECTION 5. Section 171.041, Civil Practice and Remedies
76	76	Code, is amended by adding Subsection (d) to read as follows:
77	77	(d) An arbitrator appointed under Subsection (b) must
78	78	satisfy objective qualification standards, including an
79	79	appropriate level of education, training, and experience. A court
80	80	may not appoint an unqualified arbitrator. The qualifications of
81	81	an arbitrator are subject to judicial review. If a court determines
82	82	that an arbitrator does not satisfy objective qualification
83	83	standards, an arbitration award of the arbitrator is void and
84	84	unenforceable.
85	85	SECTION 6. Section 171.042, Civil Practice and Remedies
86	86	Code, is amended to read as follows:
87	87	Sec. 171.042. MAJORITY ACTION BY ARBITRATORS. The powers
88	88	of the arbitrators are exercised by a majority [unless otherwise
89	89	provided by the agreement to arbitrate or this chapter].
90	90	SECTION 7. Section 171.043(a), Civil Practice and Remedies
91	91	Code, is amended to read as follows:
92	92	(a) Unless otherwise provided by the agreement to
93	93	arbitrate, all the arbitrators shall conduct the hearing. A
94	94	majority of the arbitrators is required to [may] determine a
95	95	question and render a final award.
96	96	SECTION 8. Section 171.044, Civil Practice and Remedies
97	97	Code, is amended by amending Subsection (b) and adding Subsection
98	98	(d) to read as follows:
99	99	(b) The notice must be served not later than the fifth day
100	100	before the hearing either personally or by registered or certified
101	101	mail with return receipt requested. Notice may not be waived, and
102	102	the hearing may not proceed without proper [Appearance at the
103	103	hearing waives the] notice.
104	104	(d) Notwithstanding Subsection (c), a hearing may not
105	105	proceed without notice or waiver of notice in accordance with this
106	106	section.
107	107	SECTION 9. Section 171.047, Civil Practice and Remedies
108	108	Code, is amended to read as follows:
109	109	Sec. 171.047. RIGHTS OF PARTY AT HEARING. Unless otherwise
110	110	provided by the agreement to arbitrate, a party at the hearing is
111	111	entitled to:
112	112	(1) be heard;
113	113	(2) present evidence material to the controversy;
114	114	[and]
115	115	(3) cross-examine any witness; and
116	116	(4) a transcript of the hearing.
117	117	SECTION 10. Subchapter C, Chapter 171, Civil Practice and
118	118	Remedies Code, is amended by adding Section 171.0481 to read as
119	119	follows:
120	120	Sec. 171.0481. TRANSCRIPT. (a) A transcript of the hearing
121	121	must be requested by a party before commencement of the hearing or
122	122	the right to a transcript is waived.
123	123	(b) A party requesting the transcript is responsible for the
124	124	cost. A party requesting a copy of the transcript is responsible
125	125	for the cost of the copy.
126	126	(c) An arbitrator may consider the cost of the transcript to
127	127	be an expense incurred in conducting the arbitration as provided by
128	128	Section 171.055.
129	129	(d) A transcript of a hearing must be prepared by a person
130	130	authorized by law to record testimony.
131	131	SECTION 11. Sections 171.049 and 171.055, Civil Practice
132	132	and Remedies Code, are amended to read as follows:
133	133	Sec. 171.049. OATH. The arbitrators, or an arbitrator at
134	134	the direction of the arbitrators, shall [may] administer to each
135	135	witness testifying before them the oath required of a witness in a
136	136	civil action pending in a district court.
137	137	Sec. 171.055. ARBITRATOR'S FEES AND EXPENSES. Unless
138	138	otherwise provided in the agreement to arbitrate, the arbitrators'
139	139	reasonable expenses and fees, with other reasonable expenses
140	140	incurred in conducting the arbitration, shall be paid as provided
141	141	in the award.
142	142	SECTION 12. Section 171.088(a), Civil Practice and Remedies
143	143	Code, is amended to read as follows:
144	144	(a) On application of a party, the court shall vacate an
145	145	award if:
146	146	(1) the award was obtained by corruption, fraud, or
147	147	other undue means;
148	148	(2) the rights of a party were prejudiced by:
149	149	(A) evident partiality by an arbitrator
150	150	appointed as a neutral arbitrator;
151	151	(B) corruption in an arbitrator; or
152	152	(C) misconduct or wilful misbehavior of an
153	153	arbitrator;
154	154	(3) the arbitrators:
155	155	(A) exceeded their powers;
156	156	(B) refused to postpone the hearing after a
157	157	showing of sufficient cause for the postponement;
158	158	(C) refused to hear evidence material to the
159	159	controversy; or
160	160	(D) conducted the hearing, contrary to Section
161	161	171.043, 171.044, 171.045, 171.046, or 171.047, in a manner that
162	162	substantially prejudiced the rights of a party; [or]
163	163	(4) there was no agreement to arbitrate, the issue was
164	164	not adversely determined in a proceeding under Subchapter B, and
165	165	the party did not participate in the arbitration hearing without
166	166	raising the objection; or
167	167	(5) the award clearly violates fundamental public
168	168	policy.
169	169	SECTION 13. Section 171.098(a), Civil Practice and Remedies
170	170	Code, is amended to read as follows:
171	171	(a) A party may appeal a judgment or decree entered under
172	172	this chapter or an order:
173	173	(1) granting or denying an application to compel
174	174	arbitration made under Section 171.021;
175	175	(2) granting an application to stay arbitration made
176	176	under Section 171.023;
177	177	(3) confirming or denying confirmation of an award;
178	178	(4) modifying or correcting an award; or
179	179	(5) vacating an award without directing a rehearing.
180	180	SECTION 14. The change in law made by this Act applies only
181	181	to arbitration commenced on or after the effective date of this Act.
182	182	An arbitration commenced before the effective date of this Act is
183	183	governed by the law applicable to arbitrations immediately before
184	184	the effective date of this Act, and that law is continued in effect
185	185	for that purpose.
186	186	SECTION 15. This Act takes effect immediately if it
187	187	receives a vote of two-thirds of all the members elected to each
188	188	house, as provided by Section 39, Article III, Texas Constitution.
189	189	If this Act does not receive the vote necessary for immediate
190	190	effect, this Act takes effect September 1, 2009.