82R21264 CAE-F
By: Creighton, Aliseda, Kleinschmidt, H.B. No. 274
Jackson, Sheets, et al.
Substitute the following for H.B. No. 274:
By: Jackson C.S.H.B. No. 274
A BILL TO BE ENTITLED
AN ACT
relating to the reform of certain remedies and procedures in civil
actions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. EARLY DISMISSAL OF ACTIONS
SECTION 1.01. Section 22.004, Government Code, is amended
by adding Subsection (g) to read as follows:
(g) The supreme court shall adopt rules to provide for the
dismissal of certain causes of action that the supreme court
determines should be disposed of as a matter of law on motion and
without evidence.
SECTION 1.02. Chapter 30, Civil Practice and Remedies Code,
is amended by adding Section 30.021 to read as follows:
Sec. 30.021. AWARD OF ATTORNEY'S FEES IN RELATION TO
CERTAIN MOTIONS TO DISMISS. In a civil proceeding, on a trial
court's granting or denial, in whole or in part, of a motion to
dismiss filed under the rules adopted by the supreme court under
Section 22.004(g), Government Code, the court may award costs and
reasonable and necessary attorney's fees to the prevailing party
that the court determines are equitable and just.
ARTICLE 2. EXPEDITED CIVIL ACTIONS
SECTION 2.01. Section 22.004, Government Code, is amended
by adding Subsection (h) to read as follows:
(h) The supreme court shall adopt rules to promote the
prompt, efficient, and cost-effective resolution of civil actions
in which the amount in controversy, inclusive of all claims for
damages of any kind, whether actual or exemplary, a penalty,
attorney's fees, expenses, costs, interest, or any other type of
damage of any kind, is more than $10,000 but does not exceed
$100,000. The rules shall address the need for lowering discovery
costs in these actions and the procedure for ensuring that these
actions will be expedited in the civil justice system. The supreme
court may not adopt rules under this subsection that conflict with a
provision of:
(1) Chapter 74, Civil Practice and Remedies Code;
(2) the Family Code;
(3) the Property Code; or
(4) the Tax Code.
ARTICLE 3. NO IMPLIED CAUSE OF ACTION
SECTION 3.01. 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 the statute by clear
and unambiguous language creates a cause of action.
ARTICLE 4. APPEAL OF CONTROLLING QUESTION OF LAW
SECTION 4.01. Section 51.014, Civil Practice and Remedies
Code, is amended by amending Subsections (d) and (e) and adding
Subsection (f) to read as follows:
(d) On a party's motion or on its own initiative, a trial
court in a civil action [A district court, county court at law, or
county court] may, by [issue a] written order, permit an appeal from
an order that is [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; and
(2) an immediate appeal from the order may materially
advance the ultimate termination of the litigation[; and
[(3) the parties agree to the order].
(e) An appeal under Subsection (d) does not stay proceedings
in the trial court unless:
(1) the parties agree to a stay; or
(2) [and] the trial 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 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 having appellate jurisdiction over the
action an application for interlocutory appeal explaining why an
appeal is warranted under Subsection (d). If the court of appeals
accepts the appeal, the appeal is governed by the procedures 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 applicable to filing the notice of
appeal.
SECTION 4.02. Section 51.015, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 51.015. COSTS OF APPEAL. In the case of an appeal
brought pursuant to Section 51.014(a)(6) or (d) [51.014(6)], if the
order appealed from is affirmed, the court of appeals shall order
the appellant to pay all costs and reasonable attorney fees of the
appeal; otherwise, each party shall be liable for and taxed its own
costs of the appeal.
SECTION 4.03. 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.
ARTICLE 5. RECOVERY OF ATTORNEY'S FEES
SECTION 5.01. Section 38.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. A person may
recover reasonable attorney's fees from an individual or
corporation, 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; or
(7) a sworn account[; or
[(8) an oral or written contract].
SECTION 5.02. Chapter 38, Civil Practice and Remedies Code,
is amended by adding Section 38.0015 to read as follows:
Sec. 38.0015. ORAL AND WRITTEN CONTRACTS. The prevailing
party may recover reasonable attorney's fees from an individual,
corporation, or other legal entity if the claim is for breach of an
oral or written contract.
SECTION 5.03. Section 38.002, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES. To
recover attorney's fees under this chapter:
(1) the person seeking to recover attorney's fees
[claimant] must be represented by an attorney;
(2) the claimant 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 must not have been
tendered before the expiration of the 30th day after the claim is
presented.
ARTICLE 6. ALLOCATION OF LITIGATION COSTS
SECTION 6.01. Sections 42.001(5) and (6), Civil Practice
and Remedies Code, are amended to read as follows:
(5) "Litigation costs" means money actually spent and
obligations actually incurred that are directly related to the
action [case] in which a settlement offer is made. The term
includes:
(A) court costs;
(B) reasonable deposition costs;
(C) reasonable fees for not more than two
testifying expert witnesses; and
(D) [(C)] reasonable attorney's fees.
(6) "Settlement offer" means an offer to settle or
compromise a claim made in compliance with Section 42.003 [this
chapter].
SECTION 6.02. Sections 42.002(b), (d), and (e), Civil
Practice and Remedies Code, are amended to read as follows:
(b) This chapter does not apply to:
(1) a class action;
(2) a shareholder's derivative action;
(3) an action by or against a governmental unit;
(4) an action brought under the Family Code;
(5) an action to collect workers' compensation
benefits under Subtitle A, Title 5, Labor Code; or
(6) an action filed in a justice of the peace court or
a small claims court.
(d) This chapter does not limit or affect the ability of any
person to:
(1) make an offer to settle or compromise a claim that
does not comply with Section 42.003 [this chapter]; or
(2) offer to settle or compromise a claim in an action
to which this chapter does not apply.
(e) An offer to settle or compromise that does not comply
with Section 42.003 [is not made under this chapter] or an offer to
settle or compromise made in an action to which this chapter does
not apply does not entitle any [the offering] party to recover
litigation costs under this chapter.
SECTION 6.03. Section 42.003, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 42.003. MAKING SETTLEMENT OFFER. (a) After a
defendant files a declaration under Section 42.002(c), the
defendant filing the declaration and any party with a claim against
that defendant may make a settlement offer to settle all claims in
the action between the parties.
(b) A settlement offer must:
(1) be in writing;
(2) state that it is made under this chapter;
(3) state the terms by which the claims may be settled;
(4) state a deadline by which the settlement offer
must be accepted; and
(5) be served on all parties to whom the settlement
offer is made.
(c) The parties are not required to file a settlement offer
with the court.
SECTION 6.04. Section 42.004(c), Civil Practice and
Remedies Code, is amended to read as follows:
(c) The litigation costs that may be recovered by the
offering party under this section are limited to those litigation
costs incurred by the offering party after the date the rejecting
party rejected the earliest settlement offer that entitles the
party to an award of litigation costs under this section.
SECTION 6.05. Sections 42.004(d) and (g), Civil Practice
and Remedies Code, are repealed.
ARTICLE 7. EFFECTIVE DATE
SECTION 7.01. The changes in law made by this Act apply only
to a civil action commenced on or after the effective date of the
change in law as provided by this article. A civil action commenced
before the effective date of the change in law as provided by this
article is governed by the law in effect immediately before the
effective date of the change in law, and that law is continued in
effect for that purpose.
SECTION 7.02. (a) Except as provided by Subsection (b) of
this section:
(1) 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; and
(2) if this Act does not receive the vote necessary for
immediate effect, this Act takes effect September 1, 2011.
(b) Articles 4, 5, and 6 of this Act take effect September 1,
2011.