Texas 2009 - 81st Regular

Texas Senate Bill SB394 Compare Versions

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1	1	By: Lucio S.B. No. 394
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the appointment of an attorney for a workers'
7	7	compensation claimant in certain proceedings initiated by a
8	8	workers' compensation insurance carrier.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subchapter G, Chapter 410, Labor Code, is
11	11	amended by adding Section 410.309 to read as follows:
12	12	Sec. 410.309. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN
13	13	PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial
14	14	initiated by an insurance carrier under this subchapter, at the
15	15	request of the claimant the court shall appoint an attorney to
16	16	represent the claimant before the court. The court may hold a
17	17	pretrial hearing to determine whether the claimant made a good
18	18	faith effort to obtain representation by an attorney before the
19	19	appointment of an attorney.
20	20	(b) The insurance carrier is liable for the attorney's
21	21	reasonable and necessary fees as determined by the jury in the case,
22	22	or by the trial judge when a jury is not requested, in accordance
23	23	with Section 408.221(c) on any issue on which the claimant
24	24	prevails.
25	25	(c) The subsequent injury fund is liable for the attorney's
26	26	reasonable and necessary fees as determined by the jury in the case,
27	27	or by the trial judge when a jury is not requested, in accordance
28	28	with Section 408.221(c-1) on any issue on which the insurance
29	29	carrier prevails.
30	30	SECTION 2. Section 408.221, Labor Code, is amended by
31	31	amending Subsections (b) and (i) and adding Subsection (c-1) to
32	32	read as follows:
33	33	(b) Except as otherwise provided, an attorney's fee under
34	34	this section is based on the attorney's time and expenses according
35	35	to written evidence presented to the division or court. Except as
36	36	provided by Subsection (c) or (c-1) or Section 408.147(c), the
37	37	attorney's fee shall be paid from the claimant's recovery.
38	38	(c-1) In a judicial review proceeding initiated by an
39	39	insurance carrier under Subchapter G, Chapter 410, in which the
40	40	court has appointed an attorney for the claimant under Section
41	41	410.309, the subsequent injury fund is liable for the attorney's
42	42	reasonable and necessary fees as provided by Subsection (d) on any
43	43	issue on which the insurance carrier prevails. If the insurance
44	44	carrier appeals multiple issues and the insurance carrier prevails
45	45	on some, but not all, of the issues appealed, the court shall
46	46	apportion and award fees to the claimant's court-appointed attorney
47	47	from the subsequent injury fund only for issues on which the
48	48	insurance carrier prevails. In making that apportionment, the
49	49	court shall consider the factors prescribed by Subsection (d). An
50	50	award of attorney's fees under this subsection is not subject to
51	51	commissioner rules adopted under Subsection (f).
52	52	(i) Except as provided by Subsection (c) or (c-1) or Section
53	53	408.147(c), an attorney's fee may not exceed 25 percent of the
54	54	claimant's recovery.
55	55	SECTION 3. Subsection (b), Section 403.006, Labor Code, is
56	56	amended to read as follows:
57	57	(b) The subsequent injury fund is liable for:
58	58	(1) the payment of compensation as provided by Section
59	59	408.162;
60	60	(2) reimbursement of insurance carrier claims of
61	61	overpayment of benefits made under an interlocutory order or
62	62	decision of the commissioner as provided by this subtitle,
63	63	consistent with the priorities established by rule by the
64	64	commissioner;
65	65	(3) reimbursement of insurance carrier claims as
66	66	provided by Sections 408.042 and 413.0141, consistent with the
67	67	priorities established by rule by the commissioner; [and]
68	68	(4) the reimbursement of an insurance carrier as
69	69	provided by Section 408.0041(f-1); and
70	70	(5) the payment of court-appointed attorney's fees as
71	71	provided by Section 408.221(c-1).
72	72	SECTION 4. The change in law made by this Act applies only
73	73	to a trial or judicial review proceeding initiated under Subchapter
74	74	G, Chapter 410, Labor Code, on or after the effective date of this
75	75	Act. A trial or judicial review proceeding initiated before that
76	76	date is governed by the law in effect on the date the trial or
77	77	judicial review proceeding was initiated, and the former law is
78	78	continued in effect for that purpose.
79	79	SECTION 5. This Act does not make an appropriation. A
80	80	provision in this Act that creates a new governmental program,
81	81	creates a new entitlement, or imposes a new duty on a governmental
82	82	entity is not mandatory during a fiscal period for which the
83	83	legislature has not made a specific appropriation to implement the
84	84	provision. This section does not apply if this Act does not require
85	85	an appropriation.
86	86	SECTION 6. This Act takes effect September 1, 2009.