82R13370 CAE-F
By: Creighton H.B. No. 274
A BILL TO BE ENTITLED
AN ACT
relating to attorney's fees, early dismissal, expedited trials, and
the reform of certain remedies and procedures in civil actions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Civil Practice and Remedies Code, is
amended by designating Sections 38.001 through 38.006 as Subchapter
A, Chapter 38, Civil Practice and Remedies Code, and adding a
heading to Subchapter A to read as follows:
SUBCHAPTER A. RECOVERY OF ATTORNEY'S FEES BY PREVAILING PARTY
SECTION 2. Sections 38.001, 38.002, and 38.006, Civil
Practice and Remedies Code, are amended to read as follows:
Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. The prevailing
party with respect to a claim [A person] may recover reasonable
attorney's fees from an individual, [or] corporation, or other
legal entity [in addition to the amount of a valid claim and costs,]
if the claim is for:
(1) rendered services;
(2) performed labor;
(3) furnished material;
(4) freight or express overcharges;
(5) lost or damaged freight or express;
(6) killed or injured stock;
(7) a sworn account; or
(8) an oral or written contract.
Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES.
Attorney's [To recover attorney's] fees may be recovered under this
subchapter if [chapter]:
(1) the person seeking to recover attorney's fees is
[claimant must be] represented by an attorney;
(2) the claimant presents [must present] the claim to
the opposing party or to a duly authorized agent of the opposing
party; and
(3) payment for the just amount owed is [must] not
[have been] tendered before the expiration of the 30th day after the
claim is presented.
Sec. 38.006. EXCEPTIONS. This subchapter [chapter] does
not apply to a contract issued by an insurer that is subject to the
provisions of:
(1) Title 11, Insurance Code;
(2) Chapter 541, Insurance Code;
(3) the Unfair Claim Settlement Practices Act
(Subchapter A, Chapter 542, Insurance Code); or
(4) Subchapter B, Chapter 542, Insurance Code.
SECTION 3. Chapter 38, Civil Practice and Remedies Code, is
amended by adding Subchapter B to read as follows:
SUBCHAPTER B. ELECTION REGARDING LITIGATION COSTS
Sec. 38.011. DEFINITIONS. In this subchapter:
(1) "Abusive civil action" means a civil action that a
reasonable person would conclude is an abuse of the civil justice
process.
(2) "Claim" means a request for monetary damages filed
in a civil action, other than a request for reimbursement of
attorney's fees or other costs of litigation in a civil action, if
the request is for:
(A) damages for alleged personal injury,
property damage, breach of contract, or death, regardless of the
legal theories or statutes on the basis of which recovery is sought;
or
(B) damages other than for alleged personal
injury, property damage, or death allegedly resulting from any
tortious conduct, regardless of the legal theories or statutes on
the basis of which recovery is sought.
(3) "Claimant" means a party who has asserted a claim,
including a plaintiff, counterclaimant, cross-claimant,
third-party plaintiff, or intervenor.
(4) "Defendant" means a party against whom a claim has
been made, including a defendant, counterdefendant,
cross-defendant, or third-party defendant.
(5) "Financial interest" means a financial interest
held by an attorney under an agreement between the attorney and a
claimant or defendant in which the amount or the payment of the fee
for the attorney's legal services is contingent wholly or partly on
the outcome of the civil action.
Sec. 38.012. APPLICABILITY. (a) This subchapter does not
apply to:
(1) a class action;
(2) a shareholder's derivative action;
(3) an action brought under the Family Code;
(4) an action to collect workers' compensation
benefits under Subtitle A, Title 5, Labor Code; or
(5) an action filed in a justice of the peace court.
(b) This subchapter does not apply to a civil action in
which the amount in controversy, including all requests for
damages, reimbursement of attorney's fees, and litigation costs, is
less than $100,000 and the claimant has made an election to proceed
under Chapter 29A.
Sec. 38.013. ELECTION. (a) A defendant may elect to apply
the provisions of this subchapter to any civil action in which a
claimant has asserted a claim against the defendant.
(b) An election under this section must identify each
claimant against whom the election is made. An election may not be
made before the 60th day after the date the defendant filed an
answer to the claimant's civil action or within 60 days of the date
of trial. The election must be:
(1) in writing;
(2) signed by the attorneys of record of the
defendant;
(3) filed with the papers as part of the record; and
(4) served on all claimants against whom the election
is made.
(c) A deadline under this subchapter may be amended or
modified by agreement of the parties or by order of the court in a
discovery control plan as provided by Rule 190, Texas Rules of Civil
Procedure.
Sec. 38.014. REVOCATION OF ELECTION. (a) An election made
under Section 38.013 may be revoked wholly or partly by agreement of
the parties.
(b) A revocation under this section must identify the
claimants and defendants for whom the revocation is made. A
revocation may be made at any time before an award is made under
Section 38.016 based on the election. The revocation must be:
(1) in writing;
(2) signed by the attorneys of record of all parties to
whom the revocation applies; and
(3) filed as part of the record.
Sec. 38.015. DISMISSAL OR NONSUIT OF ACTION. If a claimant
against whom an election is made under Section 38.013 nonsuits or
voluntarily dismisses with prejudice the civil action for which the
election is made not later than the 15th day after the date the
claimant was served with the election, the election does not apply
to the nonsuited or dismissed civil action.
Sec. 38.016. AWARD OF LITIGATION COSTS. (a) If an election
is made under this subchapter, the prevailing party may recover the
prevailing party's litigation costs.
(b) The determination of which party is the prevailing party
is a question of law for the court.
(c) Litigation costs under this subchapter are costs
directly related to the civil action between the claimant and the
defendant. Litigation costs include:
(1) reasonable and necessary attorney's fees;
(2) reasonable and necessary travel expenses;
(3) reasonable fees for not more than two testifying
expert witnesses; and
(4) court costs.
(d) A fee agreement that results in a fee that is fixed or
contingent on results obtained or uncertainty of collection before
the legal services have been rendered may not be considered in the
determination of the amount of reasonable and necessary attorney's
fees.
Sec. 38.017. LIABILITY OF ATTORNEY. (a) This section
applies to a civil action if:
(1) a party is entitled to recover litigation costs
under Section 38.016;
(2) the election under Section 38.013 states that the
party making the election will seek litigation costs under this
section; and
(3) an attorney of record for the party against whom
litigation costs are recoverable has a financial interest in the
civil action.
(b) If the trier of fact determines that a civil action is an
abusive civil action, an attorney of record for the party against
whom litigation costs are recoverable is liable to the prevailing
party, jointly and severally, for the amount of the litigation
costs awarded.
(c) The determination of whether an attorney has a financial
interest in a civil action is a question of law for the court. An
attorney is not an attorney of record for the purposes of this
section if the attorney withdraws as attorney of record and
relinquishes any financial interest in the civil action more than
60 days before trial.
(d) The determination of whether a civil action is an
abusive civil action is a question of fact. In a case in which the
determination of whether a civil action is an abusive civil action
is submitted to a jury, the charge to the jury must ask whether the
civil action prosecuted by the claimant was an abusive civil
action. The following instruction must be included in the
charge: "You are instructed that an abusive civil action is a
civil action that a reasonable person would conclude is an abuse of
the civil justice process."
Sec. 38.018. APPLICABILITY OF OTHER LAW. (a) Except as
provided by Subsection (b), if an election is made under this
subchapter, this subchapter controls over any other law to the
extent the other law requires, authorizes, prohibits, or otherwise
governs the award of attorney's fees or other costs of litigation in
connection with the civil action.
(b) This subchapter does not govern the recovery of
litigation costs incurred in connection with a claim asserted
under:
(1) Subchapter E, Chapter 17, Business & Commerce
Code; or
(2) Chapter 541, Insurance Code.
SECTION 4. Section 51.014, Civil Practice and Remedies
Code, is amended by amending Subsections (d) and (e) and adding
Subsections (f) and (g) to read as follows:
(d) A person may appeal from an interlocutory order of a
district court, county court at law, or county court that is [may
issue a written order for interlocutory appeal in a civil action]
not otherwise appealable [under this section] if:
(1) [the parties agree that] the order to be appealed
involves a controlling question of law as to which there is a
substantial ground for difference of opinion;
(2) an immediate appeal from the order may materially
advance the ultimate termination of the litigation; and
(3) the court of appeals accepts the interlocutory
appeal as provided by Subsection (f) [the parties agree to the
order].
(e) An appeal under Subsection (d) does not stay proceedings
in the trial court unless the parties agree to a stay or [and] the
trial court or appellate court[, the court of appeals, or a judge of
the court of appeals] orders a stay of the proceedings pending
appeal.
(f) An appellate court may, in its discretion, accept an
appeal permitted by Subsection (d) if the appealing party, not
later than the 15th day after the date the trial court signs the
order to be appealed, files in the court of appeals an application
for interlocutory appeal. The application must state the reasons
why an appeal is warranted under Subsection (d). If the court of
appeals accepts the appeal, the appeal is governed by the
procedures set forth in the Texas Rules of Appellate Procedure for
pursuing an accelerated appeal. The date the court of appeals
enters the order accepting the appeal starts the time for filing the
notice of appeal.
(g) If a party pursues an appeal under this section, the
trial court must state whether the trial court believes that an
appeal is warranted under Subsection (d).
SECTION 5. Subtitle B, Title 2, Civil Practice and Remedies
Code, is amended by adding Chapters 29 and 29A to read as follows:
CHAPTER 29. EARLY DISMISSAL OF ACTIONS
Sec. 29.001. POLICY. It is the policy of this state that
all civil actions be disposed of fairly, promptly, and with the
least possible expense to the litigants and to the state.
Sec. 29.002. ADOPTION OF RULES BY SUPREME COURT. (a) The
supreme court shall adopt rules to provide for the fair and early
dismissal of non-meritorious cases.
(b) The supreme court shall model the rules after Rules 9
and 12, Federal Rules of Civil Procedure, to the extent possible.
(c) The supreme court shall adopt rules under this chapter
not later than December 31, 2011. This subsection expires
September 1, 2012.
CHAPTER 29A. EXPEDITED CIVIL ACTIONS
Sec. 29A.001. DEFINITIONS. In this chapter:
(1) "Claim" means a request, including a counterclaim,
cross-claim, or third-party claim, to recover monetary damages.
(2) "Claimant" means a party, including a plaintiff,
counterclaimant, cross-claimant, third-party plaintiff, or
intervenor, seeking recovery of damages and, in an action for
recovery of damages for injury to another person, damage to
property of another person, death of another person, or harm to
another person, includes both the other person and the party
seeking recovery of damages.
(3) "Damages" means all claims under common law or
statutory and equitable causes of action for actual damages,
including economic and noneconomic damages, and additional
damages, including knowing damages, punitive damages, treble
damages, penalties, prejudgment interest, postjudgment interest,
attorney's fees, litigation costs, costs of court, and all other
damages of any kind.
(4) "Defendant" means a party, including a
counterdefendant, cross-defendant, or third-party defendant, from
whom a claimant seeks damages.
Sec. 29A.002. APPLICABILITY. (a) This chapter applies to
any party who is a claimant or defendant, including:
(1) a county;
(2) a municipality;
(3) a public school district;
(4) a public junior college district;
(5) a charitable organization;
(6) a nonprofit organization;
(7) a hospital district;
(8) a hospital authority;
(9) any other political subdivision of the state; and
(10) the State of Texas.
(b) This chapter does not apply to any civil action
primarily governed by the Family Code.
(c) In an action to which this chapter applies, the
provisions of this chapter prevail over all other law to the extent
of any conflict.
(d) This chapter does not waive sovereign immunity or
governmental immunity of any claimant or defendant.
Sec. 29A.003. CLAIMANT TO MAKE ELECTION. (a) This chapter
applies only in a civil action in which:
(1) the total amount of damages the claimant seeks to
recover for all claims is not less than $10,000 and not more than
$100,000; and
(2) the claimant files and serves a written election
under this chapter.
(b) An election must be made at the time the electing
claimant first files a claim in the action.
(c) Notwithstanding Subsection (b), and on the agreement of
all parties, a claimant may make an election not later than the 60th
day after the date the last defendant has filed an answer.
(d) An election made by a claimant under this section is
binding on all parties to the expedited civil action unless a
defendant files a claim more than 60 days before trial and in that
claim makes a good faith claim that the recovery of monetary damages
might be in excess of $100,000.
Sec. 29A.004. RULES. (a) The supreme court shall adopt
rules to implement this chapter. The rules shall promote the
prompt, efficient, and cost-effective resolution of an expedited
civil action, including the discovery between the parties.
(b) The supreme court shall adopt rules as required by this
section not later than January 1, 2012. This subsection expires
September 1, 2012.
Sec. 29A.005. CONFLICT OF LAWS. In the event of a conflict
between this chapter and Chapter 74, Chapter 74 prevails.
SECTION 6. Section 22.225(d), Government Code, is amended
to read as follows:
(d) A petition for review is allowed to the supreme court
for an appeal from an interlocutory order described by Section
51.014(a)(3), (6), or (11) or (d), Civil Practice and Remedies
Code.
SECTION 7. Subchapter C, Chapter 311, Government Code, is
amended by adding Section 311.035 to read as follows:
Sec. 311.035. NO IMPLIED CAUSE OF ACTION. A statute may not
be construed to create a cause of action unless a cause of action is
created by clear and unambiguous language in the statute.
SECTION 8. Subchapter B, Chapter 312, Government Code, is
amended by adding Section 312.017 to read as follows:
Sec. 312.017. NO IMPLIED CAUSE OF ACTION. A statute may not
be construed to create a cause of action unless a cause of action is
created by clear and unambiguous language in the statute.
SECTION 9. This Act applies only to a civil action filed on
or after the effective date of this Act. An action filed before the
effective date of this Act, including an action filed before that
date on which a party is joined or designated after that date, 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 10. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are severable.
SECTION 11. This Act takes effect September 1, 2011.