H.B. No. 2850
AN ACT
relating to discovery procedures for civil actions brought under
the Family Code.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Family Code is amended by adding Title 6 to
read as follows:
TITLE 6. CIVIL PROCEDURE
CHAPTER 301. DISCOVERY PROCEDURES FOR CIVIL ACTIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 301.001. APPLICABILITY OF CHAPTER. This chapter
applies only to a civil action brought under this code.
Sec. 301.002. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
Notwithstanding Section 22.004, Government Code, this chapter may
not be modified or repealed by a rule adopted by the supreme court.
Sec. 301.003. DRAFT EXPERT REPORTS AND DISCLOSURES
PROTECTED. A draft expert report or draft disclosure required
under this chapter is protected from discovery, regardless of the
form in which the draft is recorded.
SUBCHAPTER B. REQUEST FOR DISCLOSURE
Sec. 301.051. REQUEST. Not later than the 30th day before
the last day of any applicable discovery period, a party may obtain
disclosure from another party of the information or material
described by Section 301.052 by serving the other party the
following request:
"Under Subchapter B, Chapter 301, Family Code, you are
requested to disclose, not later than the 30th day after the date of
service of this request, the information or material described by
Section (state applicable provision of Section 301.052)."
Sec. 301.052. CONTENT. (a) A party may request disclosure
under Section 301.051 of any or all of the following:
(1) the correct names of the parties to the action;
(2) the name, address, and telephone number of any
potential parties;
(3) the legal theories and, in general, the factual
bases of the responding party's claims or defenses;
(4) the amount and any method of calculating economic
damages;
(5) the name, address, and telephone number of any
person having knowledge of relevant facts and a brief statement of
each identified person's connection with the action;
(6) for any testifying expert:
(A) the expert's name, address, and telephone
number;
(B) the subject matter on which the expert will
testify;
(C) the general substance of the expert's mental
impressions and opinions and a brief summary of the basis for those
impressions and opinions, or if the expert is not retained by,
employed by, or otherwise subject to the control of the responding
party, documents reflecting that information; and
(D) if the expert is retained by, employed by, or
otherwise subject to the control of the responding party:
(i) all documents, tangible things,
reports, models, or data compilations that have been provided to,
reviewed by, or prepared by or for the expert in anticipation of the
expert's testimony; and
(ii) the expert's current resume and
biography;
(7) any discoverable settlement agreement described
by Rule 192.3(g), Texas Rules of Civil Procedure;
(8) any discoverable witness settlement described by
Rule 192.3(h), Texas Rules of Civil Procedure;
(9) in an action alleging physical or mental injury
and damages from the occurrence that is the subject of the action:
(A) all medical records and bills that are
reasonably related to the injuries or damages asserted; or
(B) an authorization permitting the disclosure
of the information described by Paragraph (A);
(10) in an action alleging physical or mental injury
and damages from the occurrence that is the subject of the action,
all medical records and bills obtained by the responding party
through an authorization provided by the requesting party; and
(11) the name, address, and telephone number of any
person who may be designated as a responsible third party.
(b) For purposes of Subsection (a)(3), the responding party
is not required to compile all evidence that may be offered at
trial.
Sec. 301.053. RESPONSE. The responding party must serve a
written response on the requesting party not later than the 30th day
after the date the requesting party serves a request under Section
301.051, except that:
(1) a defendant served with a request before the
defendant's answer is due is not required to respond until the 50th
day after the date the request is served; and
(2) a response to a request under Section
301.052(a)(6) is governed by Subchapter C.
Sec. 301.054. PRODUCTION OF DOCUMENTS AND TANGIBLE ITEMS.
The responding party shall provide copies of documents and other
tangible items with the response to a request served under Section
301.051 unless:
(1) the responsive documents are voluminous;
(2) the responding party states a reasonable time and
place for the production of the documents;
(3) the responding party produces the documents at the
time and place stated under Subdivision (2) unless otherwise agreed
by the parties or ordered by the court; and
(4) the responding party provides the requesting party
a reasonable opportunity to inspect the documents.
Sec. 301.055. WORK PRODUCT OBJECTION PROHIBITED. A party
may not assert a work product privilege for or object on the basis
of a work product privilege to a request served under Section
301.051.
Sec. 301.056. CERTAIN RESPONSES NOT ADMISSIBLE. A response
to a request under Section 301.052(a)(3) or (4) that has been
changed by an amended or supplemental response is not admissible
and may not be used for impeachment.
SUBCHAPTER C. DISCOVERY REGARDING TESTIFYING EXPERT WITNESSES
Sec. 301.101. PERMISSIBLE DISCOVERY METHODS. A party may
request another party to designate and disclose information
concerning testifying expert witnesses only through:
(1) a disclosure request served under Section 301.051;
or
(2) a deposition or report permitted by this
subchapter.
Sec. 301.102. DEADLINE FOR RESPONSE. Unless otherwise
ordered by the court, a responding party shall provide the
information requested under Section 301.052(a)(6) not later than
the later of:
(1) the 30th day after the date the request is served;
or
(2) either, as applicable:
(A) with respect to an expert testifying for a
party seeking affirmative relief, the 90th day before the end of the
discovery period; or
(B) with respect to an expert not described by
Paragraph (A), the 60th day before the end of the discovery period.
Sec. 301.103. DEPOSITION AVAILABILITY. (a) A party
seeking affirmative relief shall make an expert retained by,
employed by, or otherwise under the control of the party available
for a deposition in accordance with this section.
(b) If a party seeking affirmative relief does not provide a
report of the party's expert's factual observations, tests,
supporting data, calculations, photographs, and opinions when the
party designates the expert, the party shall make the expert
available for a deposition reasonably promptly after the
designation. If the deposition cannot be reasonably concluded more
than 15 days before the deadline for designating other experts due
to the actions of the party who designated the expert, the court
shall extend the deadline for other experts testifying on the same
subject.
(c) If a party seeking affirmative relief provides a report
of the party's expert's factual observations, tests, supporting
data, calculations, photographs, and opinions when the party
designates the expert, the party is not required to make the expert
available for a deposition until reasonably promptly after all
other experts have been designated.
(d) A party not seeking affirmative relief shall make an
expert retained by, employed by, or otherwise under the control of
the party available for a deposition reasonably promptly after the
party designates the expert and the experts testifying on the same
subject for the party seeking affirmative relief have been deposed.
Sec. 301.104. CONTENT OF ORAL DEPOSITIONS AND COURT-ORDERED
REPORTS. In addition to a disclosure request served under Section
301.051, a party may obtain discovery by oral deposition and a
report prepared in accordance with Section 301.105 of:
(1) the subject matter on which a testifying expert is
expected to testify;
(2) the expert's mental impressions and opinions;
(3) the facts known to the expert, regardless of when
the factual information is acquired, that relate to or form the
basis of the expert's mental impressions and opinions; and
(4) other discoverable items, including documents not
produced in response to a disclosure request.
Sec. 301.105. COURT-ORDERED REPORTS. If the discoverable
factual observations, tests, supporting data, calculations,
photographs, or opinions of an expert are not recorded and reduced
to tangible form, the court may order that information be reduced to
tangible form and produced in addition to the deposition.
Sec. 301.106. AMENDMENT AND SUPPLEMENTATION OF DISCOVERY.
A party's duty to amend and supplement written discovery regarding
a testifying expert is governed by Rule 193.5, Texas Rules of Civil
Procedure. If a party retains, employs, or otherwise controls an
expert witness, the party must amend or supplement the expert's
deposition testimony or written report only with regard to the
expert's mental impressions or opinions and the basis for those
impressions or opinions.
Sec. 301.107. COST OF EXPERT WITNESSES. When a party takes
the oral deposition of an expert witness retained by an opposing
party, the party retaining the expert shall pay all reasonable fees
charged by the expert for time spent in preparing for, giving,
reviewing, and correcting the deposition.
Sec. 301.108. EXPERT COMMUNICATIONS PROTECTED.
Communications between a party's attorney and a testifying expert
witness in an action subject to this chapter are protected from
discovery regardless of the form of the communications, except to
the extent that the communications:
(1) relate to compensation for the expert's study or
testimony;
(2) identify facts or data that the party's attorney
provided and that the expert considered in forming the opinions the
expert will express; or
(3) identify assumptions that the party's attorney
provided and that the expert relied on in forming the opinions the
expert will express.
SECTION 2. Chapter 301, Family Code, as added by this Act,
applies only to an action filed on or after the effective date of
this Act.
SECTION 3. This Act takes effect September 1, 2023.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2850 was passed by the House on May 4,
2023, by the following vote: Yeas 142, Nays 2, 1 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2850 was passed by the Senate on May
24, 2023, by the following vote: Yeas 30, Nays 1.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor