Texas 2011 - 82nd Regular

Texas House Bill HB3362 Compare Versions

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Old	New	Differences
1	1	82R18674 RWG-F
2	2	By: Smithee H.B. No. 3362
3	3	Substitute the following for H.B. No. 3362:
4	4	By: Cook C.S.H.B. No. 3362
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the appointment of an attorney for a workers'
10	10	compensation claimant in certain proceedings.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 403.006(b), Labor Code, is amended to
13	13	read as follows:
14	14	(b) The subsequent injury fund is liable for:
15	15	(1) the payment of compensation as provided by Section
16	16	408.162;
17	17	(2) reimbursement of insurance carrier claims of
18	18	overpayment of benefits made under an interlocutory order or
19	19	decision of the commissioner as provided by this subtitle,
20	20	consistent with the priorities established by rule by the
21	21	commissioner;
22	22	(3) reimbursement of insurance carrier claims as
23	23	provided by Sections 408.042 and 413.0141, consistent with the
24	24	priorities established by rule by the commissioner; [and]
25	25	(4) the reimbursement of an insurance carrier as
26	26	provided by Section 408.0041(f-1); and
27	27	(5) the payment of court-appointed attorney's fees as
28	28	provided by Section 408.221(c-1).
29	29	SECTION 2. Section 408.221, Labor Code, is amended by
30	30	amending Subsections (b) and (i) and adding Subsection (c-1) to
31	31	read as follows:
32	32	(b) Except as otherwise provided, an attorney's fee under
33	33	this section is based on the attorney's time and expenses according
34	34	to written evidence presented to the division or court. Except as
35	35	provided by Subsection (c) or (c-1) or Section 408.147(c), the
36	36	attorney's fee shall be paid from the claimant's recovery.
37	37	(c-1) In a judicial review proceeding initiated by an
38	38	insurance carrier under Subchapter G, Chapter 410, or Subchapter C,
39	39	Chapter 413, in which the court has appointed an attorney for the
40	40	claimant under Section 410.309 or 413.033, the subsequent injury
41	41	fund is liable for the attorney's reasonable and necessary fees as
42	42	provided by Subsection (d) on any issue on which the insurance
43	43	carrier prevails. If the insurance carrier appeals multiple issues
44	44	and the insurance carrier prevails on some, but not all, of the
45	45	issues appealed, the court shall apportion and award fees to the
46	46	claimant's court-appointed attorney from the subsequent injury
47	47	fund only for issues on which the insurance carrier prevails. In
48	48	making that apportionment, the court shall consider the factors
49	49	prescribed by Subsection (d). An award of attorney's fees under
50	50	this subsection is not subject to commissioner rules adopted under
51	51	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. Subchapter G, Chapter 410, Labor Code, is
56	56	amended by adding Section 410.309 to read as follows:
57	57	Sec. 410.309. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN
58	58	PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial
59	59	initiated by an insurance carrier under this subchapter, at the
60	60	request of the claimant the court shall appoint an attorney to
61	61	represent the claimant before the court. The court may hold a
62	62	pretrial hearing to determine whether the claimant has made a good
63	63	faith effort to obtain representation by an attorney before the
64	64	appointment of an attorney. A claimant who did not prevail in an
65	65	administrative proceeding before the division:
66	66	(1) is not entitled to a court-appointed attorney; and
67	67	(2) may recover reasonable and necessary attorney's
68	68	fees and expenses incurred in a trial initiated by the claimant in
69	69	which the claimant prevails as provided by Subsection (b).
70	70	(b) The insurance carrier is liable for the attorney's
71	71	reasonable and necessary fees as determined by the jury in the case,
72	72	or by the trial judge when a jury is not requested, in accordance
73	73	with Section 408.221(c-1) on any issue on which the claimant
74	74	prevails.
75	75	(c) The subsequent injury fund is liable for the attorney's
76	76	reasonable and necessary fees as determined by the jury in the case,
77	77	or by the trial judge when a jury is not requested, in accordance
78	78	with Section 408.221(c-1) on any issue on which the insurance
79	79	carrier prevails.
80	80	SECTION 4. Subchapter C, Chapter 413, Labor Code, is
81	81	amended by adding Section 413.033 to read as follows:
82	82	Sec. 413.033. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN
83	83	PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial
84	84	initiated by an insurance carrier under this subchapter, at the
85	85	request of the claimant the court shall appoint an attorney to
86	86	represent the claimant before the court. The court may hold a
87	87	pretrial hearing to determine whether the claimant has made a good
88	88	faith effort to obtain representation by an attorney before the
89	89	appointment of an attorney. A claimant who did not prevail in an
90	90	administrative proceeding before the division:
91	91	(1) is not entitled to a court-appointed attorney; and
92	92	(2) may recover reasonable and necessary attorney's
93	93	fees and expenses incurred in a trial initiated by the claimant in
94	94	which the claimant prevails as provided by Subsection (b).
95	95	(b) The insurance carrier is liable for the attorney's
96	96	reasonable and necessary fees as determined by the jury in the case,
97	97	or by the trial judge when a jury is not requested, in accordance
98	98	with Section 408.221(c-1) on any issue on which the claimant
99	99	prevails.
100	100	(c) The subsequent injury fund is liable for the attorney's
101	101	reasonable and necessary fees as determined by the jury in the case,
102	102	or by the trial judge when a jury is not requested, in accordance
103	103	with Section 408.221(c-1) on any issue on which the insurance
104	104	carrier prevails.
105	105	SECTION 5. The change in law made by this Act applies only
106	106	to a proceeding initiated under Subchapter G, Chapter 410, Labor
107	107	Code, or Subchapter C, Chapter 413, Labor Code, on or after the
108	108	effective date of this Act. A proceeding initiated before that date
109	109	is governed by the law in effect on the date the proceeding was
110	110	initiated, and the former law is continued in effect for that
111	111	purpose.
112	112	SECTION 6. This Act takes effect September 1, 2011.