| 1 | 1 | | 85R10676 SCL-D |
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| 2 | 2 | | By: Schofield H.B. No. 2301 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to affidavits concerning cost and necessity of services. |
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| 8 | 8 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 9 | 9 | | SECTION 1. Section 18.001, Civil Practice and Remedies |
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| 10 | 10 | | Code, is amended by amending Subsections (b), (d), (e), and (f) and |
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| 11 | 11 | | adding Subsection (d-1) to read as follows: |
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| 12 | 12 | | (b) Unless a controverting affidavit is served as provided |
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| 13 | 13 | | by this section, an affidavit that the amount a person charged for a |
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| 14 | 14 | | service was reasonable at the time and place that the service was |
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| 15 | 15 | | provided and that the service was necessary may be admitted as [is |
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| 16 | 16 | | sufficient] evidence [to support a finding of fact by judge or jury] |
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| 17 | 17 | | that the amount charged was reasonable or that the service was |
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| 18 | 18 | | necessary. The affidavit does not create a presumption that the |
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| 19 | 19 | | amount charged was reasonable or that the service was necessary. |
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| 20 | 20 | | (d) The party offering the affidavit in evidence or the |
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| 21 | 21 | | party's attorney must serve a copy of the affidavit on each other |
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| 22 | 22 | | party to the case not later than the earlier of: |
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| 23 | 23 | | (1) 60 [at least 30] days before the date [day on which |
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| 24 | 24 | | evidence is first presented at] the trial commences; or |
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| 25 | 25 | | (2) the date the offering party must designate any |
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| 26 | 26 | | expert witnesses under the Texas Rules of Civil Procedure [of the |
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| 27 | 27 | | case]. |
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| 28 | 28 | | (d-1) The party offering the affidavit in evidence or the |
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| 29 | 29 | | party's attorney must file notice with the clerk of the court, not |
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| 30 | 30 | | later than the latest date for serving a copy of the affidavit under |
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| 31 | 31 | | Subsection (d), that the party or the attorney served a copy of the |
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| 32 | 32 | | affidavit in accordance with this section. Except as provided by |
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| 33 | 33 | | the Texas Rules of Evidence, [the records attached to] the |
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| 34 | 34 | | affidavit is [are] not required to be filed with the clerk of the |
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| 35 | 35 | | court before the trial commences. |
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| 36 | 36 | | (e) Regardless of the date the party offering the affidavit |
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| 37 | 37 | | in evidence serves a copy of the affidavit under Subsection (d), a |
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| 38 | 38 | | [A] party intending to controvert a claim reflected by the |
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| 39 | 39 | | affidavit must serve a copy of the counteraffidavit on each other |
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| 40 | 40 | | party or the party's attorney of record by the earlier of: |
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| 41 | 41 | | (1) 30 days before the date the trial commences [not |
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| 42 | 42 | | later than: |
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| 43 | 43 | | [(A) 30 days after the day the party receives a |
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| 44 | 44 | | copy of the affidavit; and |
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| 45 | 45 | | [(B) at least 14 days before the day on which |
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| 46 | 46 | | evidence is first presented at the trial of the case]; or |
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| 47 | 47 | | (2) the date the party must designate expert witnesses |
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| 48 | 48 | | under the Texas Rules of Civil Procedure [with leave of the court, |
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| 49 | 49 | | at any time before the commencement of evidence at trial]. |
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| 50 | 50 | | (f) The counteraffidavit must: |
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| 51 | 51 | | (1) give reasonable notice of the basis on which the |
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| 52 | 52 | | party serving it intends at trial to controvert the claim reflected |
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| 53 | 53 | | by the initial affidavit; |
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| 54 | 54 | | (2) [and must] be taken before a person authorized to |
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| 55 | 55 | | administer oaths; and |
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| 56 | 56 | | (3) [. The counteraffidavit must] be made by: |
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| 57 | 57 | | (A) the party that seeks to offer the |
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| 58 | 58 | | counteraffidavit or the party's attorney if the initial affidavit |
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| 59 | 59 | | was made by a person described by Subsection (c)(2)(B); or |
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| 60 | 60 | | (B) a person who is qualified, by knowledge, |
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| 61 | 61 | | skill, experience, training, education, or other expertise, to |
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| 62 | 62 | | testify in contravention of all or part of any of the matters |
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| 63 | 63 | | contained in the initial affidavit. |
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| 64 | 64 | | SECTION 2. The change in law made by this Act applies only |
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| 65 | 65 | | to an action commenced on or after the effective date of this Act. |
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| 66 | 66 | | An action commenced before the effective date of this Act is |
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| 67 | 67 | | governed by the law applicable to the action immediately before the |
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| 68 | 68 | | effective date of this Act, and that law is continued in effect for |
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| 69 | 69 | | that purpose. |
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| 70 | 70 | | SECTION 3. This Act takes effect September 1, 2017. |
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