2019S0352-T 03/05/19
By: Huffman S.B. No. 28
A BILL TO BE ENTITLED
AN ACT
relating to procurement of a contingent fee contract for legal
services by a state agency or political subdivision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2254.101, Government Code, is amended by
adding Subdivisions (2-a) and (2-b) to read as follows:
(2-a) "Governmental entity" means a political
subdivision and a state governmental entity.
(2-b) "Political subdivision" has the meaning
assigned by Section 2254.021.
SECTION 2. Sections 2254.102(a) and (b), Government Code,
are amended to read as follows:
(a) This subchapter applies only to a contingent fee
contract for legal services entered into by a [state] governmental
entity.
(b) The legislature by this subchapter is providing, in
accordance with Sections [Section] 44 and 53, Article III, Texas
Constitution, for the manner in which and the situations under
which a [state] governmental entity may compensate a public
contractor under a contingent fee contract for legal services.
SECTION 3. The heading to Section 2254.103, Government
Code, is amended to read as follows:
Sec. 2254.103. STATE GOVERNMENTAL ENTITY: CONTRACT
APPROVAL; SIGNATURE.
SECTION 4. Subchapter C, Chapter 2254, Government Code, is
amended by adding Sections 2254.1032, 2254.1034, 2254.1036,
2254.1037, and 2254.1038 to read as follows:
Sec. 2254.1032. POLITICAL SUBDIVISION: SELECTION OF
PROVIDER. (a) A political subdivision may select an attorney or
law firm to award a contingent fee contract only in accordance with
Section 2254.003(a) and this section.
(b) In procuring legal services under a contingent fee
contract, a political subdivision shall:
(1) select the most highly qualified attorney or law
firm on the basis of demonstrated competence, qualifications, and
experience in the requested services; and
(2) attempt to negotiate a contract with that attorney
or law firm for a fair and reasonable price.
(c) If a satisfactory contract cannot be negotiated with the
most highly qualified attorney or law firm under Subsection (b),
the political subdivision shall:
(1) formally end negotiations with that attorney or
law firm;
(2) select the next most highly qualified attorney or
law firm; and
(3) attempt to negotiate a contract with that attorney
or law firm at a fair and reasonable price.
(d) A political subdivision described by Subsection (c)
shall continue the process described by that subsection to select
and negotiate with attorneys or law firms until a contract is
entered into or the political subdivision terminates the
procurement process.
Sec. 2254.1034. POLITICAL SUBDIVISION: INDEMNIFICATION.
(a) A political subdivision may require an attorney or law firm
selected under Section 2254.1032 to indemnify or hold harmless the
political subdivision from claims and liabilities resulting from
negligent acts or omissions of the attorney or law firm or persons
employed by the attorney or law firm.
(b) A political subdivision may not require an attorney or
law firm selected under Section 2254.1032 to indemnify, hold
harmless, or, subject to Subsection (c), defend the political
subdivision for claims or liabilities resulting from negligent acts
or omissions of the political subdivision or its employees.
(c) Subsection (b) does not prevent an attorney or law firm
selected under Section 2254.1032 from defending the political
subdivision or its employees in accordance with a contract for the
defense of negligent acts or omissions of the political subdivision
or its employees.
Sec. 2254.1036. POLITICAL SUBDIVISION: CONTRACT NOTICE;
APPROVAL BY GOVERNING BODY. (a) A political subdivision may enter
into a contingent fee contract for legal services only if the
governing body of the political subdivision:
(1) before or at the time of giving the written notice
required by Section 551.041 for a meeting described by Subdivision
(2), also provides written notice to the public stating:
(A) the reasons for pursuing the matter that is
the subject of the legal services for which the attorney or law firm
would be retained and the desired outcome of pursuing the matter;
(B) the competence, qualifications, and
experience demonstrated by the attorney or law firm selected under
Section 2254.1032;
(C) the nature of any relationship, including the
beginning of the relationship, between the political subdivision or
governing body and the attorney or law firm selected under Section
2254.1032;
(D) the reasons the political subdivision is not
able to pursue the matter using its own resources and without
retaining an outside attorney or law firm on a contingent fee basis;
(E) the reasons the legal services cannot be
reasonably obtained from attorneys in private practice under a
contract providing for the payment of hourly fees without
contingency; and
(F) the reasons entering into a contingent fee
contract for legal services is in the best interest of the residents
of the political subdivision; and
(2) approves the contract in an open meeting called
for the purpose of considering:
(A) the need for obtaining the legal services;
(B) the terms of the contract;
(C) the competence, qualifications, and
experience of the attorney or law firm; and
(D) the reasons the contract is in the best
interest of the residents of the political subdivision.
(b) On approval of a contingent fee contract, the governing
body of a political subdivision shall state in writing that the
political subdivision finds that:
(1) there is a substantial need for the legal
services;
(2) the legal services cannot be adequately performed
by the attorneys and supporting personnel of the political
subdivision;
(3) the legal services cannot reasonably be obtained
from attorneys in private practice under a contract providing only
for the payment of hourly fees, without regard to the outcome of the
matter, because of the nature of the matter for which the services
will be obtained or because the political subdivision does not have
funds to pay the estimated amounts required under a contract
providing only for the payment of hourly fees; and
(4) the relationship between the political
subdivision or the governing body and the attorney or law firm being
retained is not improper and would not appear improper to a
reasonable person.
Sec. 2254.1037. POLITICAL SUBDIVISION: CONTRACT AS PUBLIC
INFORMATION. A contingent fee contract approved under Section
2254.1036 is public information under Chapter 552 and may not be
withheld from a requestor under Section 552.103 or any other
exception from required disclosure.
Sec. 2254.1038. POLITICAL SUBDIVISION: ATTORNEY GENERAL
REVIEW OF CONTRACT. (a) Before a political subdivision may enter
into a contingent fee contract for legal services, the political
subdivision must receive attorney general approval of the contract.
The political subdivision shall file the contract with the attorney
general along with:
(1) a description of the matter to be pursued by the
political subdivision;
(2) a description of the interest that the state or any
other governmental entity may have in the matter;
(3) a copy of the notice required by Section
2254.1036(a) and a statement of the method and date of the provision
of the notice;
(4) a copy of the statement required by Section
2254.1036(b); and
(5) any supporting documentation required by the
attorney general.
(b) The attorney general may refuse to approve a contract
under Subsection (a) if the attorney general finds that:
(1)(A) the legal matter that is the subject of the
contract presents one or more questions of law or fact that are in
common with a matter the state already has addressed or is pursuing;
and
(B) pursuit of the matter by the political
subdivision will not promote the just and efficient resolution of
the matter; or
(2) the political subdivision failed to comply with
Section 2254.1036 or the findings made by the political subdivision
under that section are not supported by the documents provided by
the political subdivision.
(c) Unless the political subdivision requests expedited
review when requesting review under Subsection (a), the attorney
general shall approve or deny a contract not later than the 90th day
after the date the attorney general receives the request.
(d) This section does not apply to a contract with total
aggregated claims of less than $100,000.
SECTION 5. Sections 2254.104(b), (c), and (d), Government
Code, are amended to read as follows:
(b) The contracting attorney or law firm shall permit the
governing body or governing officer of the [state] governmental
entity, the attorney general, and the state auditor or the
political subdivision's auditor, as applicable, each to inspect or
obtain copies of the time and expense records at any time on
request.
(c) On conclusion of the matter for which legal services
were obtained, the contracting attorney or law firm shall provide
the contracting [state] governmental entity with a complete written
statement that describes the outcome of the matter, states the
amount of any recovery, shows the contracting attorney's or law
firm's computation of the amount of the contingent fee, and
contains the final complete time and expense records required by
Subsection (a). The complete written statement required by this
subsection is public information under Chapter 552 and may not be
withheld from a requestor under that chapter under Section 552.103
or any other exception from required disclosure.
(d) This subsection does not apply to the complete written
statement required by Subsection (c). All time and expense records
required under this section are public information subject to
required public disclosure under Chapter 552. Information in the
records may be withheld from a member of the public under Section
552.103 only if, in addition to meeting the requirements of Section
552.103, the chief legal officer or employee of the [state]
governmental entity determines that withholding the information is
necessary to protect the entity's strategy or position in pending
or reasonably anticipated litigation. Information withheld from
public disclosure under this subsection shall be segregated from
information that is subject to required public disclosure.
SECTION 6. Section 2254.108(d), Government Code, is amended
to read as follows:
(d) Litigation and other expenses payable under the
contract, including expenses attributable to attorney, paralegal,
accountant, expert, or other professional work performed by a
person who is not a contracting attorney or a partner, shareholder,
or employee of a contracting attorney or law firm, may be reimbursed
only if the [state] governmental entity and, if applicable, the
entity's [state] auditor determine that the expenses were
reasonable, proper, necessary, actually incurred on behalf of the
[state] governmental entity, and paid for by the contracting
attorney or law firm. The contingent fee may not be paid until the
entity's [state] auditor, or the governing body of a political
subdivision without an auditor, as applicable, has reviewed the
relevant time and expense records and verified that the hours of
work on which the fee computation is based were actually worked in
performing reasonable and necessary services for the [state]
governmental entity under the contract.
SECTION 7. Sections 2254.109(a) and (c), Government Code,
are amended to read as follows:
(a) This subchapter does not limit the right of a [state]
governmental entity to recover fees and expenses from opposing
parties under other law.
(c) An [A state] officer, employee, or governing body of a
governmental entity, including the attorney general, may not waive
the requirements of this subchapter or prejudice the interests of
the governmental entity [state] under this subchapter. This
subchapter does not waive the state's sovereign immunity or a
political subdivision's governmental immunity from suit or the
state's [its] immunity from suit in federal court under the
Eleventh Amendment to the federal constitution.
SECTION 8. Subchapter C, Chapter 2254, Government Code, is
amended by adding Section 2254.110 to read as follows:
Sec. 2254.110. VOID CONTRACT. A contract entered into or an
arrangement made in violation of this subchapter is void as against
public policy.
SECTION 9. Section 403.0305, Government Code, is repealed.
SECTION 10. Subchapter C, Chapter 2254, Government Code, as
amended by this Act, applies only to a contract entered into on or
after the effective date of this Act.
SECTION 11. This Act takes effect September 1, 2019.