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Floor Packet Page No. 495
Amend CSHB 4 as follows:
(1) On page 12, strike lines 6 through 16 and substitute the
following:
Sec. 42.002. APPLICABILITY AND EFFECT. (a) This chapter
does not apply to:
(1) an action in which a class has been certified; or
(2) an action by or against a governmental unit.
(b) Without regard to whether an action is brought by itself
or in conjunction with other actions, this chapter does not apply to
an action:
(1) brought under the Family Code;
(2) brought under Chapter 27, Property Code;
(3) brought under the Tax Code;
(4) brought on behalf of a minor or person of unsound
mind;
(5) to collect workers' compensation benefits under
Subtitle A, Title 5, Labor Code;
(6) the Longshore and Harbor Workers' Compensation Act
(33 U.S.C. Section 901, et seq), as amended;
(7) the Jones Act (46 U.S.C. Section 688), as amended;
(8) brought in small claims court or justice court; or
(9) brought by a homeowners association to enforce deed
restrictions or to collect delinquent fees, dues, or assessments.
(2) Strike page 12, line 27, through page 13, line 11.
(3) On page 13, line 12, strike "Sec. 42.004." and substitute
"Sec. 42.003."
(4) On page 13, line 16, strike "Sec. 42.005." and substitute
"Sec. 42.004."
(5) Strike page 15, line 17, through page 16, line 16, and
substitute:
Sec. 42.055. AWARD OF LITIGATION COSTS. (a) Any defendant
who makes a settlement offer under this chapter to a claimant
seeking monetary relief shall recover litigation costs from the
claimant if:
(1) the settlement offer is rejected;
(2) the amount of monetary relief to be awarded in the
judgement, exclusive of any litigation costs awarded under this
chapter and exclusive of any attorney's fees, expenses, and costs
incurred by the claimant after rejection of the offer, is more
favorable to the defendant or group of defendants who made the
settlement offer than the settlement offer; and
(3) the difference between the amount of monetary
relief to be awarded to the claimant in the judgment, exclusive of
any litigation costs awarded under this chapter and exclusive of
any attorney's fees, expenses, and costs incurred by the claimant
after rejection of the offer, and the amount of the settlement offer
is equal to or greater than 10 percent of the amount of the
settlement offer.
(b) Any defendant who makes a settlement offer to a claimant
seeking nonmonetary relief, other than injunctive relief, may
recover litigation costs from the claimant if:
(1) the settlement offer is rejected; and
(2) the judgment, exclusive of any litigation costs
awarded under this chapter and exclusive of any attorney's fees,
expenses, and costs incurred by the claimant after rejection of the
offer, is more favorable to the defendant or group of defendants who
made the settlement offer than the settlement offer.
(6) On page 16, line 17, strike "(d)" and substitute "(c)".
(7) On page 16, line 22, strike "(e)" and substitute "(d)".
(8) On page 16, line 26, strike "(f)" and substitute "(e)".
(9) On page 17, line 6, strike "(g)" and substitute "(f)".
(10) On page 17, line 11, strike "(h)" and substitute "(g)".
(11) Strike page 37, line 22, through page 38, line 17, and
substitute the following:
Sec. 16.012. PRODUCTS LIABILITY[: MANUFACTURING
EQUIPMENT]. (a) In this section, "claimant,"[:
[(1) "Claimant,"] "products liability action,"
"seller," and "manufacturer" have the meanings assigned by Section
82.001.
[(2) "Manufacturing equipment" means equipment and
machinery used in the manufacturing, processing, or fabrication of
tangible personal property but does not include agricultural
equipment or machinery.]
(12) On page 38, line 18, strike "Subsection (c)" and
substitute "Subsections [Subsection] (c) and (d)".
(13) On page 39, strike lines 3 through 6 and substitute the
following:
(d) This section does not apply to a products liability
action in which the claimant alleges a product caused a disease the
symptoms of which did not, before the end of 15 years after the date
of the sale of the product by the defendant, manifest themselves to
a degree and for a duration that would put a reasonable person on
notice that the person suffers some injury. This section does not
reduce a limitations period for a cause of action described by this
subsection [that applies to a products liability action involving
manufacturing equipment] that accrues before the end of the
limitations period under this section.
(14) On page 39, between lines 11 and 12, insert the
following appropriately numbered SECTION and renumber existing
SECTIONS of the ARTICLE appropriately:
SECTION _____. Section 82.001(2), Civil Practice and
Remedies Code, is amended to read as follows:
(2) "Products liability action" means any action
against a manufacturer or seller for recovery of damages or other
relief for harm [arising out of personal injury, death, or property
damage] allegedly caused by a defective product, whether the action
is based in strict tort liability, strict products liability,
negligence, misrepresentation, breach of express or implied
warranty, or any other theory or combination of theories, and
whether the relief sought is recovery of damages or any other legal
or equitable relief, including a suit for:
(A) injury or damage to or loss of real or
personal property;
(B) personal injury;
(C) wrongful death;
(D) economic loss; or
(E) declaratory, injunctive, or other equitable
relief.
(15) On page 40, line 10, after the semicolon, strike "or".
(16) On page 40, line 14, between "defect" and the period,
insert the following:
"; or
(5) that the manufacturer of the product is:
(A) insolvent; or
(B) not subject to the jurisdiction of the
court".
(17) On page 40, line 22, strike "required" and substitute
"approved".
(18) On page 41, line 11, strike "A" and substitute "In a
products liability action brought against a product manufacturer or
seller, there is a rebuttable presumption that the".
(19) On page 41, line 12, strike ", distributor,".
(20) On page 41, line 13, strike "allegedly".
(21) On page 41, line 15, strike ", distributor,".
(22) On page 41, lines 15 and 16, strike "proves by a
preponderance of the evidence" and substitute "establishes".
(23) On page 41, line 18, strike "state or".
(24) On page 41, line 19, strike "state or".
(25) On page 41, line 20, after "risk that" insert
"allegedly".
(26) On page 41, lines 21 and 22, strike ", unless the
claimant proves by clear and convincing evidence" and substitute ".
The claimant may rebut this presumption by establishing".
(27) On page 41, line 22, strike "state or".
(28) On page 41, line 23, strike "grossly".
(29) On page 41, line 25, strike "A" and substitute "In a
products liability action brought against a product manufacturer or
seller, there is a rebuttable presumption that the".
(30) On page 41, line 25, strike ", distributor,".
(31) On page 42, line 1, strike ", distributor,".
(32) On page 42, lines 1 and 2, strike "proves by a
preponderance of the evidence" and substitute "establishes".
(33) On page 42, line 2, strike "premarket" and substitute
"pre-market".
(34) On page 42, line 3, strike "an agency of the state or"
and substitute "the".
(35) On page 42, line 3, between "government," and "that",
insert "or an agency of the federal government,".
(36) On page 42, line 4, between "the" and "agency's", insert
"government's or".
(37) On page 42, line 5, strike "premarket" and substitute
"pre-market".
(38) On page 42, line 7, between "for sale by the" and
"agency", insert "government or".
(39) On page 42, lines 7 and 8, strike ", unless the claimant
proves by clear and convincing evidence" and substitute ". The
claimant may rebut this presumption by establishing".
(40) On page 42, line 10, strike "premarket" and substitute
"pre-market".
(41) On page 42, line 10, strike "grossly".
(42) On page 42, line 12, strike "premarket" and substitute
"pre-market".
(43) On page 42, line 14, between "to the" and "agency",
insert "government or".
(44) On page 42, line 14, strike "required".
(45) On page 42, line 19, between "by the" and "agency",
insert "federal government or an".
(46) On page 42, line 19, between "agency" and the period,
insert "of the federal government".
(47) Strike existing Article 15 (page 95, line 13, through
page 96, line 12) and substitute the following:
ARTICLE 15. CLAIMS AGAINST SCHOOL DISTRICTS TRUSTEES AND EMPLOYEES
OF ELEMENTARY AND SECONDARY SCHOOLS
SECTION 15.01. Subchapter C, Chapter 11, Education Code, is
amended by adding Section 11.064 to read as follows:
Sec. 11.064. CIVIL IMMUNITY. A member of the board of
trustees of a school district is considered to be a professional
employee of the district for purposes of Subchapter B, Chapter 22.
SECTION 15.02. Subchapter B, Chapter 22, Education Code, is
amended by amending Section 22.051 and adding Sections
22.0511–22.0517 to read as follows:
Sec. 22.051. DEFINITION. In this subchapter, "professional
employee of a school district" includes:
(1) a superintendent, principal, teacher, supervisor,
social worker, counselor, nurse, and teacher's aide employed by a
school district;
(2) a teacher employed by a company that contracts with
a school district to provide the teacher's services to the
district;
(3) a student in an education preparation program
participating in a field experience or internship;
(4) a school bus driver certified in accordance with
standards and qualifications adopted by the Department of Public
Safety; and
(5) any other person employed by a school district
whose employment requires certification and the exercise of
discretion.
Sec. 22.0511. IMMUNITY FROM LIABILITY [FOR PROFESSIONAL
EMPLOYEES]. (a) A professional employee of a school district is
not personally liable for any act that is incident to or within the
scope of the duties of the employee's position of employment and
that involves the exercise of judgment or discretion on the part of
the employee, except in circumstances in which a professional
employee uses excessive force in the discipline of students or
negligence resulting in bodily injury to students.
(b) This section does not apply to the operation, use, or
maintenance of any motor vehicle.
[(c) In this section, "professional employee" includes:
(1) a superintendent, principal, teacher, supervisor,
social worker, counselor, nurse, and teacher's aide;
(2) a student in an education preparation program
participating in a field experience or internship;
(3) a school bus driver certified in accordance with
standards and qualifications adopted by the Department of Public
Safety; and
(4) any other person whose employment requires
certification and the exercise of discretion.]
Sec. 22.0512. PROTECTION UNDER FEDERAL LAW. (a) In this
section, "school" and "teacher" have the meaning assigned by 20
U.S.C. Section 6733 and its subsequent amendments.
(b) In addition to the immunity provided by Section 22.0511
and other state law, a teacher is entitled to any immunity and other
protections afforded under the Paul D. Coverdell Teacher Protection
Act of 2001 (20 U.S.C. Section 6731 et seq.) and its subsequent
amendments.
(c) This section may not be construed as limiting or
abridging any immunity or protection afforded a teacher under state
law.
Sec. 22.0513. NOTICE OF CLAIM. (a) Not later than the 90th
day before the date a person files an action against a professional
employee of a school district involving an act that is incident to
or within the scope of duties of the employee's position of
employment, the person must give written notice to the employee of
the claim, reasonably describing the act from which the claim
arises.
(b) A professional employee of a school district against
whom an action is pending who did not receive written notice as
required by Subsection (a) may file a plea in abatement not later
than the 30th day after the date the employee files an original
answer in the court in which the action is pending.
(c) The court shall abate the action if the court, after a
hearing, finds that the employee is entitled to an abatement
because notice was not provided as required by this section.
(d) An abatement under Subsection (c) continues until the
90th day after the date written notice is given to the employee as
provided by Subsection (a).
Sec. 22.0514. EXHAUSTION OF REMEDIES. A person may not file
an action against a professional employee of a school district
involving an act that is incident to or within the scope of duties
of the employee's position of employment unless the person has
exhausted any remedies provided by the school district for
resolving the complaint.
Sec. 22.0515. LIMITATION ON DAMAGES. The liability of a
professional employee of a school district for an act incident to or
within the scope of duties of the employee's position of employment
may not exceed $100,000.
Sec. 22.0516. ALTERNATIVE DISPUTE RESOLUTION. A court in
which an action is brought against a professional employee of a
school district involving an act that is incident to or within the
scope of duties of the employee's position of employment may refer
the case to an alternative dispute resolution procedure as
described by Chapter 154, Civil Practice and Remedies Code.
Sec. 22.0517. RECOVERY OF ATTORNEY'S FEES IN ACTION AGAINST
PROFESSIONAL EMPLOYEE. In an action against a professional
employee of a school district involving an act that is incident to
or within the scope of duties of the employee's position of
employment and brought against the employee in the employee's
individual capacity, the employee is entitled to recover attorney's
fees and court costs from the plaintiff if the employee is immune
from liability under this subchapter.
SECTION 15.03. Section 22.053(a), Education Code, is amended
to read as follows:
(a) A volunteer who is serving as a direct service volunteer
of a school district is immune from civil liability to the same
extent as a professional employee of a school district under
Section 22.0511 [22.051].
SECTION 15.04. Section 30.024(c), Education Code, is amended
to read as follows:
(c) In addition to any other federal and state statutes
limiting the liability of employees at the school, Sections
22.0511, 22.0512 [22.051], 22.052, and 22.053, respectively, apply
to professional employees and volunteers of the school.
SECTION 15.05. Section 30.055(c), Education Code, is amended
to read as follows:
(c) In addition to any other federal and state statutes
limiting the liability of employees at the school, Sections
22.0511, 22.0512 [22.051], 22.052, and 22.053, respectively, apply
to professional employees and volunteers of the school.
SECTION 15.06. Section 105.301(e), Education Code, is
amended to read as follows:
(e) The academy is not subject to the provisions of this
code, or to the rules of the Texas Education Agency, regulating
public schools, except that:
(1) professional employees of the academy are entitled
to the limited liability of an employee under Section 22.0512
[22.051] or 22.052;
(2) a student's attendance at the academy satisfies
compulsory school attendance requirements; and
(3) for each student enrolled, the academy is entitled
to allotments from the foundation school program under Chapter 42
as if the academy were a school district, except that the academy
has a local share applied that is equivalent to the local fund
assignment of the Denton Independent School District.
SECTION 15.07. This article applies only to an action for
damages involving conduct that occurs on or after September 1,
2003. An action for damages involving conduct that occurs before
September 1, 2003, is governed by the law in effect on the date the
conduct occurs, and the former law is continued in effect for that
purpose.
(48) On page 96, insert a new article 16 to read as follows
and renumber subsequent articles and sections appropriately:
ARTICLE 16. ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL ACTIONS
SECTION 16.01. Subchapter B, Chapter 32, Human Resources
Code, is amended by adding Section 32.060 to read as follows:
Sec. 32.060. ADMISSIBILITY OF CERTAIN EVIDENCE RELATING TO
NOT-FOR-PROFIT NURSING INSTITUTIONS. (a) The following are not
admissible as evidence in a civil action:
(1) any finding by the department that a not-for-profit
institution licensed under Chapter 242, Health and Safety Code, has
violated a standard for participation in the medical assistance
program under this chapter; and
(2) the fact of the assessment of a monetary penalty
against a not-for-profit institution under Section 32.021 or the
payment of the penalty by an institution.
(b) This section does not apply in an enforcement action in
which the state or an agency or political subdivision of the state
is a party.
SECTION 16.02. Subchapter A, Chapter 242, Health and Safety
Code, is amended by adding Section 242.017 to read as follows:
Sec. 242.017. ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL
ACTIONS. (a) The following are not admissible as evidence in a
civil action:
(1) any finding by the department that a not-for-profit
institution has violated this chapter or a rule adopted under this
chapter; and
(2) the fact of the assessment of a penalty against a
not-for-profit institution under this chapter or the payment of the
penalty by an institution.
(b) This section does not apply in an enforcement action in
which the state or an agency or political subdivision of the state
is a party.
SECTION 16.03. The following laws are repealed:
(1) Sections 32.021(i) and (k), Human Resources Code; and
(2) Section 242.050, Health and Safety Code, as added by
Chapter 1284, Acts of the 77th Legislature, Regular Session, 2001.
SECTION 16.04. (a) Except as provided by subsection (b) of
this section, this article applies only to a suit commenced or
pending on or after the effective date of this article.
(b) This article does not apply to a suit in which the trial
on the merits commenced on or before the effective date of this
article; that suit is governed by the law in effect immediately
before the change in law made by this article, and that law is
continued in effect for that purpose.
(49) On page 96, line 22, insert a new appropriately numbered
article to read as follows and renumber subsequent articles and
sections appropriately:
ARTICLE _____. LIMITATIONS IN CIVIL ACTIONS OF LIABILITIES
RELATING TO CERTAIN MERGERS OR CONSOLIDATIONS
SECTION _____.01. Title 6, Civil Practice and Remedies Code,
is amended by adding Chapter 149 to read as follows:
CHAPTER 149. LIMITATIONS IN CIVIL ACTIONS OF LIABILITIES
RELATING TO CERTAIN MERGERS OR CONSOLIDATIONS
Sec. 149.001. DEFINITIONS. In this chapter:
(1) "Asbestos claim" means any claim, wherever or
whenever made, for damages, losses, indemnification, contribution,
or other relief arising out of, based on, or in any way related to
asbestos, including:
(A) property damage caused by the installation,
presence, or removal of asbestos;
(B) the health effects of exposure to asbestos,
including any claim for:
(i) personal injury or death;
(ii) mental or emotional injury;
(iii) risk of disease or other injury; or
(iv) the costs of medical monitoring or
surveillance; and.
(C) any claim made by or on behalf of any person
exposed to asbestos, or a representative, spouse, parent, child, or
other relative of the person.
(2) "Corporation" means a corporation for profit,
including:
(A) a domestic business corporation organized
under the laws of this state; or,
(B) a foreign corporation organized under laws
other than the laws of this state that has a certificate of
authority to transact business in this state or is doing business in
this state.
(3) "Successor asbestos-related liabilities" means any
liabilities, whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, or due or to become due, that are related in any way
to asbestos claims that were assumed or incurred by a corporation as
a result of or in connection with a merger or consolidation, or the
plan of merger or consolidation related to the merger or
consolidation, with or into another corporation or that are related
in any way to asbestos claims based on the exercise of control or
the ownership of stock of the corporation before the merger or
consolidation. The term includes liabilities that, after the time
of the merger or consolidation for which the fair market value of
total assets is determined under Section 149.004, were or are paid
or otherwise discharged, or committed to be paid or otherwise
discharged, by or on behalf of the corporation, or by or on behalf
of a transferor, in connection with settlements, judgments, or
other discharges in this state or another jurisdiction.
(4) "Transferor" means a corporation from which
successor asbestos-related liabilities are assumed or incurred.
Sec. 149.002. APPLICABILITY. (a) The limitation in Section
149.003 applies to a merger or consolidation effected under the
laws of this state or another jurisdiction.
(b) The limitation in Section 149.003 does not apply to:
(1) workers' compensation benefits paid by or on behalf
of an employer to an employee under the Texas Workers' Compensation
Act, Subtitle A, Title 5, Labor Code, or comparable workers'
compensation law of another jurisdiction;
(2) any claim against a corporation that does not
constitute a successor asbestos-related liability;
(3) an insurance corporation, as that term is used in
the Insurance Code; or
(4) any obligations under the National Labor Relations
Act (29 U.S.C. Section 151 et seq.), as amended, or under any
collective bargaining agreement.
Sec. 149.003. LIMITATION ON SUCCESSOR ASBESTOS-RELATED
LIABILITIES. (a) Except as provided by Subsection (b), the
cumulative successor asbestos-related liabilities of a corporation
are limited to the fair market value of the total assets of the
transferor determined as of the time of the merger or
consolidation. The corporation does not have any responsibility
for successor asbestos-related liabilities in excess of this
limitation.
(b) If the transferor has assumed or incurred successor
asbestos-related liabilities in connection with a prior merger or
consolidation with a prior transferor, the cumulative successor
asbestos-related liabilities of a corporation are limited to the
fair market value of the total assets of the prior transferor,
determined as of the time of the earlier merger or consolidation.
Sec. 149.004. ESTABLISHING FAIR MARKET VALUE OF TOTAL
ASSETS. (a) A corporation may establish the fair market value of
total assets for the purpose of the limitation under Section
149.003 through any method reasonable under the circumstances
including:
(1) by reference to the going concern value of the
assets or to the purchase price attributable to or paid for the
assets in an arm's-length transaction; or
(2) in the absence of other readily available
information from which fair market value can be determined, by
reference to the value of the assets recorded on a balance sheet.
(b) Total assets include intangible asset.
(c) A showing by the corporation of a reasonable
determination of the fair market value of total assets is prima
facie evidence of their fair market value.
Sec. 149.005. CONTESTING FAIR MARKET VALUE. After a
corporation has established a reasonable determination of the fair
market value of total assets under Section 149.004, a claimant
disputing that determination has the burden of establishing a
different fair market value of the assets.
Sec. 149.006. ADJUSTMENT. (a) The fair market value of
total assets at the time of a merger or consolidation increases
annually at a rate equal to the sum of:
(1) the prime rate as listed in the first edition of the
Wall Street Journal published for each calendar year since the
merger or consolidation; and
(2) one percent.
(b) The rate in Subsection (a) is not compounded.
(c) The adjustment of fair market value of total assets
continues as provided under Subsection (a) until the date the
adjusted value is exceeded by the cumulative amounts of successor
asbestos-related liabilities paid or committed to be paid by or on
behalf of the corporation, or by or on behalf of a transferor, after
the time of the merger or consolidation for which the fair market
value of total assets is determined.
Sec. 149.007. SCOPE OF CHAPTER. The courts in this state
shall apply, to the fullest extent permissible under the United
States Constitution, this state's substantive law, including the
limitation under this chapter, to the issue of successor
asbestos-related liabilities.
SECTION _____.02. Chapter 149, Civil Practice and Remedies
Code, as added by this article, applies to all asbestos claims,
including existing asbestos claims, and all litigation, including
existing litigation, in the courts of this state, without regard to
whether a suit was commenced before, on, or after the effective date
of this article.