82R999 EES-D
By: Riddle H.B. No. 1150
A BILL TO BE ENTITLED
AN ACT
relating to an affidavit required to be filed in a cause of action
against a licensed attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 150A to read as follows:
CHAPTER 150A. SUITS AGAINST ATTORNEYS
Sec. 150A.001. DEFINITION. In this chapter, "legal
services" means the preparation of a pleading or other document
incident to an action or special proceeding or the management of the
action or proceeding on behalf of a client before a judge in court
as well as services rendered out of court, including giving advice
or rendering services requiring the use of legal skill or
knowledge, such as preparing a will, contract, or other instrument,
the legal effect of which under the facts and conclusions involved
must be carefully determined.
Sec. 150A.002. CERTIFICATE OF MERIT. (a) In an action or
arbitration proceeding for damages arising out of the provision of
legal services by a licensed attorney, the plaintiff must file with
the complaint an affidavit of a third-party attorney who:
(1) is:
(A) licensed to practice law in this state;
(B) actively engaged in the practice of law;
(C) competent to testify; and
(D) knowledgeable in the defendant's area of
practice; and
(2) offers testimony based on the person's:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
(b) The affidavit must state that a reasonable probability
exists that the care, skill, or knowledge exercised or exhibited in
the provision of the legal services that are the subject of the
complaint fell outside the acceptable standards of professional
conduct.
(c) The time prescribed by Subsection (a) for the filing of
an affidavit does not apply to a case in which the limitations
period applicable to a cause of action asserted expires on or before
the 10th day after the date the complaint is filed and the plaintiff
alleges that, because of time constraints, the required affidavit
could not be timely prepared. In a case described by this
subsection, the plaintiff must, not later than the 30th day after
the date the complaint was filed, supplement the pleadings with an
affidavit that satisfies the requirements of Subsections (a) and
(b). The trial court may, on motion, after hearing and for good
cause, extend the time for the filing of the affidavit for the fair
administration of justice.
(d) The defendant may not be required to file an answer to
the complaint and affidavit before the 30th day after the date the
required affidavit is filed.
(e) If the plaintiff fails to file the affidavit required by
this section, the trial court must, on the court's own motion or on
the defendant's motion, dismiss the complaint against the
defendant. Dismissal under this subsection may be with prejudice.
(f) An order granting or denying a motion for dismissal may
be appealed as an interlocutory order.
(g) This section may not be construed to extend any
applicable statute of limitation or repose.
(h) This section does not apply to an action or arbitration
proceeding for the payment of fees arising out of the provision of
legal services.
SECTION 2. The change in law made by this Act applies only
to an action or arbitration filed or commenced on or after the
effective date of this Act. An action or arbitration filed or
commenced before the effective date of this Act is governed by the
law in effect immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2011.