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A BILL TO BE ENTITLED
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AN ACT
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relating to attorney's fees, early dismissal, expedited trials, and |
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the reform of certain remedies and procedures in civil actions. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Civil Practice and Remedies Code, is |
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amended by designating Sections 38.001 through 38.006 as Subchapter |
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A, Chapter 38, Civil Practice and Remedies Code, and adding a |
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heading to Subchapter A to read as follows: |
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SUBCHAPTER A. RECOVERY OF ATTORNEY'S FEES BY PREVAILING PARTY |
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SECTION 2. Sections 38.001, 38.002, and 38.006, Civil |
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Practice and Remedies Code, are amended to read as follows: |
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Sec. 38.001. RECOVERY OF ATTORNEY'S FEES. The prevailing |
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party with respect to a claim [A person] may recover reasonable |
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attorney's fees from an individual, [or] corporation, or other |
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legal entity [in addition to the amount of a valid claim and costs,] |
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if the claim is for: |
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(1) rendered services; |
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(2) performed labor; |
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(3) furnished material; |
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(4) freight or express overcharges; |
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(5) lost or damaged freight or express; |
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(6) killed or injured stock; |
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(7) a sworn account; or |
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(8) an oral or written contract. |
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Sec. 38.002. PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES. |
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Attorney's [To recover attorney's] fees may be recovered under this |
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subchapter if [chapter]: |
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(1) the person seeking to recover attorney's fees is |
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[claimant must be] represented by an attorney; |
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(2) the claimant presents [must present] the claim to |
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the opposing party or to a duly authorized agent of the opposing |
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party; and |
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(3) payment for the just amount owed is [must] not |
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[have been] tendered before the expiration of the 30th day after the |
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claim is presented. |
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Sec. 38.006. EXCEPTIONS. This subchapter [chapter] does |
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not apply to a contract issued by an insurer that is subject to the |
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provisions of: |
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(1) Title 11, Insurance Code; |
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(2) Chapter 541, Insurance Code; |
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(3) the Unfair Claim Settlement Practices Act |
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(Subchapter A, Chapter 542, Insurance Code); or |
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(4) Subchapter B, Chapter 542, Insurance Code. |
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SECTION 3. Chapter 38, Civil Practice and Remedies Code, is |
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amended by adding Subchapter B to read as follows: |
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SUBCHAPTER B. ELECTION REGARDING LITIGATION COSTS |
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Sec. 38.011. DEFINITIONS. In this subchapter: |
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(1) "Abusive civil action" means a civil action that a |
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reasonable person would conclude is an abuse of the civil justice |
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process. |
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(2) "Claim" means a request for monetary damages filed |
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in a civil action, other than a request for reimbursement of |
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attorney's fees or other costs of litigation in a civil action, if |
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the request is for: |
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(A) damages for alleged personal injury, |
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property damage, breach of contract, or death, regardless of the |
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legal theories or statutes on the basis of which recovery is sought; |
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or |
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(B) damages other than for alleged personal |
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injury, property damage, or death allegedly resulting from any |
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tortious conduct, regardless of the legal theories or statutes on |
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the basis of which recovery is sought. |
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(3) "Claimant" means a party who has asserted a claim, |
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including a plaintiff, counterclaimant, cross-claimant, |
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third-party plaintiff, or intervenor. |
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(4) "Defendant" means a party against whom a claim has |
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been made, including a defendant, counterdefendant, |
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cross-defendant, or third-party defendant. |
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(5) "Financial interest" means a financial interest |
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held by an attorney under an agreement between the attorney and a |
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claimant or defendant in which the amount or the payment of the fee |
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for the attorney's legal services is contingent wholly or partly on |
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the outcome of the civil action. |
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Sec. 38.012. APPLICABILITY. (a) This subchapter does not |
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apply to: |
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(1) a class action; |
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(2) a shareholder's derivative action; |
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(3) an action brought under the Family Code; |
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(4) an action to collect workers' compensation |
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benefits under Subtitle A, Title 5, Labor Code; or |
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(5) an action filed in a justice of the peace court. |
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(b) This subchapter does not apply to a civil action in |
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which the amount in controversy, including all requests for |
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damages, reimbursement of attorney's fees, and litigation costs, is |
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less than $100,000 and the claimant has made an election to proceed |
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under Chapter 29A. |
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Sec. 38.013. ELECTION. (a) A defendant may elect to apply |
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the provisions of this subchapter to any civil action in which a |
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claimant has asserted a claim against the defendant. |
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(b) An election under this section must identify each |
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claimant against whom the election is made. An election may not be |
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made before the 60th day after the date the defendant filed an |
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answer to the claimant's civil action or within 60 days of the date |
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of trial. The election must be: |
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(1) in writing; |
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(2) signed by the attorneys of record of the |
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defendant; |
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(3) filed with the papers as part of the record; and |
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(4) served on all claimants against whom the election |
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is made. |
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(c) A deadline under this subchapter may be amended or |
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modified by agreement of the parties or by order of the court in a |
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discovery control plan as provided by Rule 190, Texas Rules of Civil |
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Procedure. |
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Sec. 38.014. REVOCATION OF ELECTION. (a) An election made |
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under Section 38.013 may be revoked wholly or partly by agreement of |
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the parties. |
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(b) A revocation under this section must identify the |
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claimants and defendants for whom the revocation is made. A |
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revocation may be made at any time before an award is made under |
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Section 38.016 based on the election. The revocation must be: |
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(1) in writing; |
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(2) signed by the attorneys of record of all parties to |
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whom the revocation applies; and |
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(3) filed as part of the record. |
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Sec. 38.015. DISMISSAL OR NONSUIT OF ACTION. If a claimant |
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against whom an election is made under Section 38.013 nonsuits or |
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voluntarily dismisses with prejudice the civil action for which the |
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election is made not later than the 15th day after the date the |
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claimant was served with the election, the election does not apply |
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to the nonsuited or dismissed civil action. |
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Sec. 38.016. AWARD OF LITIGATION COSTS. (a) If an election |
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is made under this subchapter, the prevailing party may recover the |
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prevailing party's litigation costs. |
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(b) The determination of which party is the prevailing party |
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is a question of law for the court. |
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(c) Litigation costs under this subchapter are costs |
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directly related to the civil action between the claimant and the |
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defendant. Litigation costs include: |
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(1) reasonable and necessary attorney's fees; |
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(2) reasonable and necessary travel expenses; |
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(3) reasonable fees for not more than two testifying |
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expert witnesses; and |
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(4) court costs. |
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(d) A fee agreement that results in a fee that is fixed or |
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contingent on results obtained or uncertainty of collection before |
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the legal services have been rendered may not be considered in the |
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determination of the amount of reasonable and necessary attorney's |
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fees. |
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Sec. 38.017. LIABILITY OF ATTORNEY. (a) This section |
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applies to a civil action if: |
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(1) a party is entitled to recover litigation costs |
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under Section 38.016; |
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(2) the election under Section 38.013 states that the |
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party making the election will seek litigation costs under this |
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section; and |
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(3) an attorney of record for the party against whom |
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litigation costs are recoverable has a financial interest in the |
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civil action. |
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(b) If the trier of fact determines that a civil action is an |
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abusive civil action, an attorney of record for the party against |
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whom litigation costs are recoverable is liable to the prevailing |
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party, jointly and severally, for the amount of the litigation |
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costs awarded. |
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(c) The determination of whether an attorney has a financial |
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interest in a civil action is a question of law for the court. An |
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attorney is not an attorney of record for the purposes of this |
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section if the attorney withdraws as attorney of record and |
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relinquishes any financial interest in the civil action more than |
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60 days before trial. |
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(d) The determination of whether a civil action is an |
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abusive civil action is a question of fact. In a case in which the |
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determination of whether a civil action is an abusive civil action |
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is submitted to a jury, the charge to the jury must ask whether the |
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civil action prosecuted by the claimant was an abusive civil |
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action. The following instruction must be included in the |
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charge: "You are instructed that an abusive civil action is a |
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civil action that a reasonable person would conclude is an abuse of |
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the civil justice process." |
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Sec. 38.018. APPLICABILITY OF OTHER LAW. (a) Except as |
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provided by Subsection (b), if an election is made under this |
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subchapter, this subchapter controls over any other law to the |
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extent the other law requires, authorizes, prohibits, or otherwise |
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governs the award of attorney's fees or other costs of litigation in |
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connection with the civil action. |
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(b) This subchapter does not govern the recovery of |
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litigation costs incurred in connection with a claim asserted |
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under: |
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(1) Subchapter E, Chapter 17, Business & Commerce |
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Code; or |
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(2) Chapter 541, Insurance Code. |
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SECTION 4. Section 51.014, Civil Practice and Remedies |
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Code, is amended by amending Subsections (d) and (e) and adding |
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Subsections (f) and (g) to read as follows: |
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(d) A person may appeal from an interlocutory order of a |
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district court, county court at law, or county court that is [may
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issue a written order for interlocutory appeal in a civil action] |
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not otherwise appealable [under this section] if: |
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(1) [the parties agree that] the order to be appealed |
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involves a controlling question of law as to which there is a |
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substantial ground for difference of opinion; |
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(2) an immediate appeal from the order may materially |
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advance the ultimate termination of the litigation; and |
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(3) the court of appeals accepts the interlocutory |
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appeal as provided by Subsection (f) [the parties agree to the
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order]. |
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(e) An appeal under Subsection (d) does not stay proceedings |
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in the trial court unless the parties agree to a stay or [and] the |
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trial court or appellate court[, the court of appeals, or a judge of
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the court of appeals] orders a stay of the proceedings pending |
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appeal. |
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(f) An appellate court may, in its discretion, accept an |
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appeal permitted by Subsection (d) if the appealing party, not |
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later than the 15th day after the date the trial court signs the |
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order to be appealed, files in the court of appeals an application |
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for interlocutory appeal. The application must state the reasons |
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why an appeal is warranted under Subsection (d). If the court of |
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appeals accepts the appeal, the appeal is governed by the |
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procedures set forth in the Texas Rules of Appellate Procedure for |
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pursuing an accelerated appeal. The date the court of appeals |
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enters the order accepting the appeal starts the time for filing the |
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notice of appeal. |
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(g) If a party pursues an appeal under this section, the |
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trial court must state whether the trial court believes that an |
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appeal is warranted under Subsection (d). |
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SECTION 5. Subtitle B, Title 2, Civil Practice and Remedies |
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Code, is amended by adding Chapters 29 and 29A to read as follows: |
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CHAPTER 29. EARLY DISMISSAL OF ACTIONS |
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Sec. 29.001. POLICY. It is the policy of this state that |
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all civil actions be disposed of fairly, promptly, and with the |
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least possible expense to the litigants and to the state. |
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Sec. 29.002. ADOPTION OF RULES BY SUPREME COURT. (a) The |
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supreme court shall adopt rules to provide for the fair and early |
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dismissal of non-meritorious cases. |
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(b) The supreme court shall model the rules after Rules 9 |
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and 12, Federal Rules of Civil Procedure, to the extent possible. |
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(c) The supreme court shall adopt rules under this chapter |
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not later than December 31, 2011. This subsection expires |
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September 1, 2012. |
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CHAPTER 29A. EXPEDITED CIVIL ACTIONS |
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Sec. 29A.001. DEFINITIONS. In this chapter: |
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(1) "Claim" means a request, including a counterclaim, |
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cross-claim, or third-party claim, to recover monetary damages. |
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(2) "Claimant" means a party, including a plaintiff, |
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counterclaimant, cross-claimant, third-party plaintiff, or |
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intervenor, seeking recovery of damages and, in an action for |
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recovery of damages for injury to another person, damage to |
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property of another person, death of another person, or harm to |
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another person, includes both the other person and the party |
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seeking recovery of damages. |
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(3) "Damages" means all claims under common law or |
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statutory and equitable causes of action for actual damages, |
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including economic and noneconomic damages, and additional |
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damages, including knowing damages, punitive damages, treble |
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damages, penalties, prejudgment interest, postjudgment interest, |
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attorney's fees, litigation costs, costs of court, and all other |
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damages of any kind. |
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(4) "Defendant" means a party, including a |
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counterdefendant, cross-defendant, or third-party defendant, from |
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whom a claimant seeks damages. |
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Sec. 29A.002. APPLICABILITY. (a) This chapter applies to |
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any party who is a claimant or defendant, including: |
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(1) a county; |
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(2) a municipality; |
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(3) a public school district; |
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(4) a public junior college district; |
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(5) a charitable organization; |
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(6) a nonprofit organization; |
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(7) a hospital district; |
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(8) a hospital authority; |
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(9) any other political subdivision of the state; and |
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(10) the State of Texas. |
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(b) This chapter does not apply to any civil action |
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primarily governed by the Family Code. |
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(c) In an action to which this chapter applies, the |
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provisions of this chapter prevail over all other law to the extent |
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of any conflict. |
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(d) This chapter does not waive sovereign immunity or |
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governmental immunity of any claimant or defendant. |
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Sec. 29A.003. CLAIMANT TO MAKE ELECTION. (a) This chapter |
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applies only in a civil action in which: |
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(1) the total amount of damages the claimant seeks to |
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recover for all claims is not less than $10,000 and not more than |
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$100,000; and |
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(2) the claimant files and serves a written election |
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under this chapter. |
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(b) An election must be made at the time the electing |
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claimant first files a claim in the action. |
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(c) Notwithstanding Subsection (b), and on the agreement of |
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all parties, a claimant may make an election not later than the 60th |
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day after the date the last defendant has filed an answer. |
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(d) An election made by a claimant under this section is |
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binding on all parties to the expedited civil action unless a |
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defendant files a claim more than 60 days before trial and in that |
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claim makes a good faith claim that the recovery of monetary damages |
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might be in excess of $100,000. |
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Sec. 29A.004. RULES. (a) The supreme court shall adopt |
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rules to implement this chapter. The rules shall promote the |
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prompt, efficient, and cost-effective resolution of an expedited |
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civil action, including the discovery between the parties. |
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(b) The supreme court shall adopt rules as required by this |
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section not later than January 1, 2012. This subsection expires |
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September 1, 2012. |
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Sec. 29A.005. CONFLICT OF LAWS. In the event of a conflict |
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between this chapter and Chapter 74, Chapter 74 prevails. |
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SECTION 6. Section 22.225(d), Government Code, is amended |
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to read as follows: |
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(d) A petition for review is allowed to the supreme court |
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for an appeal from an interlocutory order described by Section |
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51.014(a)(3), (6), or (11) or (d), Civil Practice and Remedies |
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Code. |
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SECTION 7. Subchapter C, Chapter 311, Government Code, is |
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amended by adding Section 311.035 to read as follows: |
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Sec. 311.035. NO IMPLIED CAUSE OF ACTION. A statute may not |
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be construed to create a cause of action unless a cause of action is |
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created by clear and unambiguous language in the statute. |
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SECTION 8. Subchapter B, Chapter 312, Government Code, is |
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amended by adding Section 312.017 to read as follows: |
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Sec. 312.017. NO IMPLIED CAUSE OF ACTION. A statute may not |
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be construed to create a cause of action unless a cause of action is |
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created by clear and unambiguous language in the statute. |
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SECTION 9. This Act applies only to a civil action filed on |
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or after the effective date of this Act. An action filed before the |
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effective date of this Act, including an action filed before that |
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date on which a party is joined or designated after that date, is |
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governed by the law in effect immediately before the effective date |
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of this Act, and that law is continued in effect for that purpose. |
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SECTION 10. If any provision of this Act or its application |
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to any person or circumstance is held invalid, the invalidity does |
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not affect other provisions or applications of this Act that can be |
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given effect without the invalid provision or application, and to |
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this end the provisions of this Act are severable. |
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SECTION 11. This Act takes effect September 1, 2011. |