Appellate Section of the State Bar of Texas

March 5, 2017

Legislative Update
The 85th Legislature: Legislative Summary
March 5, 2017

Dear Friends and Colleagues,

This Friday, March 10th, is the deadline for filing bills and joint resolutions other than local bills, emergency appropriations, and bills that have been declared an emergency by the governor. As of March 3rd, 4,281 bills and resolutions have been filed.

The Week in Review

Out of all the bills filed since the last update, the chancery courts bill (HB 2594) is perhaps the most notable from a civil justice system standpoint. In addition to HB 2594, I have added the following bills to the “Monitored Bill” list:

HB 2574 (Amendment to expedited civil action statute)

HB 2776 (Right to supersede a judgment or order on appeal)

Each of the added bills have been summarized below. You can jump to the summary of the newly added bills by clicking on the bill numbers above.

The Week Ahead

HB 744 (attorney’s fees under CPRC 38.001) and HB 1258 (information available in electronic court records) are scheduled for public hearing in front of the Judiciary and Civil Jurisprudence Committee on March 7th. A link to the video feed is located in the bill summary below.

Using the past few sessions as a barometer, there is an excellent chance that more than 2,000 bills and resolutions will be filed this week. As such, an avalanche warning has been issued. Keep those candles burning!

MONITORED BILLS

For those of you who are receiving this update for the first time, I have grouped the monitored bills by subject-matter and created hyperlinks within the updates to permit you to jump to a bill category (or other topics) by clicking on the subject headings below instead of perusing the entire list from top-to-bottom. New categories or categories to which bills have been added are marked with asterisks. Once you have completed reading a specific bill summary, you can return to the beginning of the update by clicking on the subject heading for the summarized bill.

Monitored Bills (by Category):

Conflicts Between State and Federal Law

Damages

Elections
Family Law

Government Settlement Agreements
Handgun Liability
Health Care Liability
Insurance
**Judiciary/Court Administration
Lawsuit Financing
Sovereign/Governmental Immunity
Uniform Trade Secrets Act
Wrongful Birth Cause of Action

Attorney’s Fees and Other Attorney-Related Matters

SB 787 - Award of Attorney's Fees and Court Costs in Actions to Determine Applicability of Local Government Regulations(Companion: HB 1704)

· Summary: SB 787, filed by Sen. Joan Huffman (R - Houston), would amend section 245.006 of the Local Government Code to authorize a court to award court costs and attorney’s fees to the prevailing party in a suit to enforce or otherwise determine the applicability of a local government regulation. The companion bill (HB 1704) was filed by Rep. John Kuempel (R - Seguin).

· Bill Status: Referred to State Affairs on February 22, 2017

SB 949 - Limitation on Attorney’s Fees Awarded in Cases Assigned Special Three-Judge District Courts (Companion: HB 2221)

· Summary: SB 949, filed by Sen. Lois Kolkhorst (R - Brenham), would add section 22A.0055 to the Government Code and limit attorney’s fees awarded in a case assigned to a special three-judge district court (and in any related case consolidated with the case before the court) to an amount not to exceed $250,000. The House companion bill (HB 2221) was filed by Rep. Mike Schofield (R - Houston).

· Bill Status: Referred to State Affairs on March 1, 2017

(Similar Bills: HB 2457; HB 2843)

· Summary: HB 744, filed by Rep. Jessica Farrar (D - Houston), would amend Chapter 38.001 of the Civil Practice and Remedies Code (CPRC) to (1) add “other legal entity” to the list of those from whom attorney’s fees can be recovered; and (2) expressly provide that Chapter 38.001 does not authorize the recovery of attorney’s fees from the state, an agency or institution of the state, or a political subdivision. The bill would further provide that the amendment to Chapter 38.001 does not affect any other statute that permits the recovery of attorney’s fees from the governmental entities listed in the statute. HB 744 is similar to a bill filed last session that failed to pass.

Similar, though not identical, bills have been filed by Rep. Morgan Meyer (R - Dallas) (HB 2457) and Rep. Dustin Burrows (R - Lubbock) (HB 2843). HB 2457 adds “other organization” to the list of those from whom attorney’s fees can be recovered and provides that “organization” will be defined as it is in section 1.002 of the Business Organizations Code. HB 2843, on the other hand, adds “business entity” to the list and defines “business entity” as “any entity recognized by law through which business for profit is conducted, including a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, or trust.”

· Bill Status (HB 744): HB 744 is scheduled for public hearing in Judiciary & Civil Jurisprudence on March 7, 2017 at 2:00 p.m.. Here is the meeting notice and a link to the live broadcast of the hearing Notice House Live Broadcast.

HB 1951 - Firm Names Used by Attorneys

· Summary: HB 1951, filed by Rep. Matt Shaheen (R - Plano), would add section 81.116 to the Government Code and prohibit an attorney from using a firm name, letterhead, or other professional designation that is false, misleading, or deceptive. The bill would permit an attorney to practice under a trade name that: (1) does not imply a connection with either a government agency or a public or charitable legal services organization; (2) does not imply the firm is something other than a private law firm; and (3) is not false, misleading, or deceptive.

HB 2102 - Continuation of the State Bar of Texas (Companion: SB 302)

· Summary: HB 2102, filed by Rep. Senfronia Thompson (D - Houston), would continue the existence of the State Bar of Texas through September 1, 2029 in accordance with the Sunset Advisory Commission Recommendations, which included, among other things, the following based on the Commission’s concerns with the slow and recently ineffective process for updating rules and procedures governing attorney conduct and the disciplinary process. In its recommendations, the Commission recommended restructuring the rulemaking process under a newly created Committee on Disciplinary Rules and Referenda, while maintaining the authority of State Bar members to approve rule changes through a referendum. The Commission also recommended a series of “best practices” to help improve efficiency and responsiveness for attorneys and the public, and help the Office of the Chief Disciplinary Counsel better do its job to monitor and take action against unethical attorneys. The changes would include creating an independent ombudsman’s office at the Supreme Court, better use of the informal dispute resolution, and ensuring the State Bar can access criminal records for licensed attorneys, among other recommendations. The Senate companion bill (SB 302) was filed by Sen. Kirk Watson (D - Austin).

· Bill Status (SB 302): Referred to State Affairs on February 27, 2017

Conflicts Between State and Federal Law

SB 89 - Execution or Enforcement of Federal Laws that Violate the Texas Constitution/SJR 7

· Summary: SB 89 and SJR 7, filed by Sen. Bob Hall (R - Rockwall), would amend the Texas Constitution and add Chapter 393 to the Government Code so as to prohibit a state agency, political subdivision, or any officer or employee of a state agency or political subdivision, from executing or enforcing a provision, penalty, or sanction provided by a federal law that the Texas Legislature determines to be a violation of Article I (Bill of Rights) of the Texas Constitution.

· Bill Status: Referred to State Affairs on January 24, 2017

Constitutional Challenges to Texas Statutes

· Summary: SJR 6, filed by Sen. Judith Zaffirini (D - Laredo), would amend the Texas Constitution to specifically authorize the Legislature to (1) require a court to notify the attorney general of a challenge to the constitutionality of a Texas statute, and (2) prescribe a reasonable period after notice is provided during which the court may not enter a judgment holding a statute unconstitutional. The companion resolution in the House, HJR 45, was filed by Rep. Mike Schofield (R - Houston). [Note: SJR 6 is the legislative response to the 2013 decision by the CCA (Ex parte Lo) holding that section 402.010(a)-(b) of the Government Code, which prevents a court from entering a final judgment until the Attorney General (AG) is notified of a constitutional challenge to a statute, violated the separation-of-powers principles set forth in the Texas Constitution]. As you may recall, the Legislature passed legislation in 2011 (HB 2425) amending the Government Code to require courts to notify the AG when constitutional challenges to state statutes were raised. The law was amended in 2013 to place the burden of notifying the court of the pleading that should be served on the AG on the party raising the constitutional challenge (SB 392).

· Bill Status: Referred to State Affairs on January 25, 2017

Damages

HB 2300 – Recovery of Medical/Health Care Expenses as Damages Civil Actions

· Summary: HB 2300, filed by Rep. Mike Schofield (R - Houston), would amend section 41.0105 of the CPRC to provide that the recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. More specifically, under HB 2300, the amount actually paid or incurred by or on behalf of the claimant for medical or health care expenses incurred for treatment by a physician would be limited to the amount the treating physician normally would be paid for similar services in a non-litigation context, determined as follows to the extent applicable:

(1) if the claimant was covered by health insurance or any other form of health benefits, including workers’ compensation, Medicare, or Medicaid, that would pay or reimburse the expenses and the claimant accessed those benefits in obtaining the services, then the amount actually paid or incurred by or on behalf of the claimant is limited to the amount that the payor of the benefits paid or would pay for the services plus any cost-sharing amount for which the claimant is responsible, up to the allowed amount on which the payor’s payment is or would be based; or

(2) if the claimant did not have health benefits as described above or did not access those benefits in obtaining the services, then the amount actually paid or incurred by or on behalf of the claimant is limited to 125 percent of the Medicare reimbursement rate for the services.

HB 2301 – Affidavits Concerning the Cost and Necessity of Services

· Summary: HB 2301, filed by Rep. Mike Schofield (R - Houston), would amend section 18.001 of the CPRC to provide that, unless a controverting affidavit is served, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary may be admitted as evidence that the amount charged was reasonable or that the service was necessary. The affidavit does not create a presumption that the amount charged was reasonable or that the service was necessary.

HB 2301 would also require the party (or the party’s attorney) offering the affidavit in evidence to serve a copy of the affidavit on each other party to the case no later than the earlier of: (1) 60 days before the date the trial commences; or (2) the date the offering party must designate any expert witnesses under the Texas Rules of Civil Procedure. Further, the party (or party’s attorney) offering the affidavit in evidence must file notice with the court no later than the latest date for serving a copy of the affidavit under 18.001.

Under HB 2301, regardless of the date the party offering the affidavit in evidence serves a copy of the affidavit, a party intending to controvert a claim reflected by the affidavit must serve a copy of the counter affidavit on each other party or the party’s attorney of record by the earlier of: (1) 30 days before the date the trial commences, or (2) the date the party must designate expert witnesses under the Texas Rules of Civil Procedure. The counter affidavit must: (1) give reasonable notice of the basis on which the party serving it intends at trial to controvert the claim reflected by the initial affidavit; (2) be taken before a person authorized to administer oaths; and (3) be made by: (a) the party (or party’s attorney) that seeks to offer the counter affidavit if the initial affidavit was made by a person described in the statute; or (b) a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.

Decisions Based on Foreign Laws (Non-Family Law Proceedings)

HB 45 - Application of Foreign Laws and Foreign Forum Selection in Texas

· Summary: HB 45, filed by Rep. Dan Flynn (R - Canton), is similar to bills filed in 2011, 2013, and 2015 that failed to pass. HB 45 would prohibit a court, arbitrator, or administrative adjudicator from basing “a ruling or decision” on “a foreign law,” or otherwise enforcing contract provisions that either require the application of a foreign law to a dispute or require parties to litigate their dispute in a forum outside of the United States if such provisions would violate a right guaranteed by the United States Constitution or the Texas Constitution.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 13, 2017

Elections (General)

HB 433 - Elimination of Straight-Party Voting (Companion: HB 25)

· Summary: HB 433, filed by Rep. Ron Simmons (R - Carrollton), would amend section 62.011 and other sections of the Election Code to eliminate straight ticket voting. A companion bill (HB 25) was also filed by Rep. Ron Simmons (R - Carrollton) and others.

· Bill Status (HB 433): Referred to Elections on February 20, 2017

· Bill Status (HB 25): Referred to Elections on February 16, 2017

Family Law

HB 498 - Application of Foreign Laws and Foreign Forum Selection in Certain Family Law Proceedings

· Summary: HB 498, filed by Rep. Pat Fallon (R - Little Elm), would prohibit a court or arbitrator in suits involving the dissolution of a marriage from making a ruling or decision based on a foreign law, foreign judgment, or arbitration decision if the application of such law, judgment, or decision would violate a right guaranteed by the United States Constitution, the Texas Constitution, or a Texas statute. The prohibition would also apply to forum selection clauses. HB 498 is similar to various bills that failed to pass in previous sessions.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 16, 2017

HB 687 - Motion for a New Trial and Appeal Following a Final Order in Suits Affecting the Parent-Child Relationship

· Summary: HB 687, filed by Rep. Gene Wu (D - Houston), would, among other things, amend section 263.405 of the Family Code to require: (1) a motion for a new trial following a final order in a SAPCR proceeding be filed no later than the 5th day after the date the final order is rendered; (2) a trial court to hold a hearing on the motion for a new trial not later than the 14th day after the date the motion is filed; and (3) if a motion for a new trial is filed, that an appeal of a final order under section 263.405 be filed not later than the 20th day after the date the court rules on the motion for a new trial. Further, to the extent there is any conflict with the Texas Rules of Civil Procedure or the Texas Rules of Appellate Procedure, the amended section 263.405 would control.

· Bill Status: Referred to Juvenile Justice & Family Issues on February 27, 2017

HB 730 - Disclosure by an Attorney Before Accepting Representation in a Marriage Dissolution Proceeding

· Summary: HB 730, filed by Rep. Dwayne Bohac (R - Houston), would require an attorney to disclose certain information to a prospective client before agreeing to represent that client in a divorce proceeding. More specifically, HB 730 would amend the Family Code to require: (1) the attorney to provide a prospective client with a disclosure form promulgated by the State Bar of Texas (SBOT); and (2) the client to acknowledge in writing that the client has received and understands the disclosure. The disclosure must include information about arbitration, mediation, collaborative law, and alternatives to retaining an attorney for the dissolution of a marriage, as well as any other information that the SBOT may require. HB 730 is essentially the same bill that Rep. Bohac filed in both 2013 and 2015, which died in committee.

· Bill Status: Referred to Juvenile Justice & Family Issues on March 1, 2017

HB 1480 - Writs of Mandamus Against Certain Associate Judges (Family Courts)(Companion: SB 1233)

· Summary: HB 1480, filed by Rep. Senfronia Thompson (D - Houston), would amend section 22.221(b) of the Government Code so as to add “an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code” to the list of judges against whom a court of appeals may issue a writ of mandamus. The companion bill (SB 1233) was filed by Sen. Jose Rodriguez (D - El Paso).

Frivolous State Agency Regulatory Actions

(Companion: HB 2516)

· Summary: SB 813, filed by Sen. Bryan Hughes (R - Mineola) and others, would amend section 105 of the CPRC by adding a cause of action for frivolous state agency regulatory actions. More specifically, a claimant would be permitted to bring an action against a state agency if the state agency takes a regulatory action against the claimant that is “frivolous, unreasonable, or without foundation.” Under SB 813, a claimant may recover, in addition to all other costs permitted by law or regulation, damages caused by the state agency’s frivolous regulatory action, including reasonable attorney’s fees and costs incurred in defending against a frivolous regulatory action during an administrative proceeding and judicial review of that proceeding, if: (1) the person prevails in the judicial review of an administrative proceeding; and (2) the state agency is unable to demonstrate that the agency has good cause for the regulatory action. The companion bill (HB 2516) was filed by Rep. Morgan Meyer (R - Dallas).

· Bill Status (SB 813): Referred to State Affairs on February 27, 2017

Government Settlement Agreements

HB 53 - Limitations on Settlement Agreements with Governmental Units

· Summary: HB 53, filed by Rep. Ramon Romero, Jr. (D - Fort Worth), would prohibit a state or local governmental unit from entering into a settlement of a claim or action against the governmental unit in which: (1) the amount of the settlement is equal to or greater than $30,000; and (2) a condition of the settlement requires the party seeking affirmative relief against the governmental unit to agree not to disclose any fact, allegation, evidence, or other matter to any other person, including a journalist or other member of the media. HB 53 would also provide that:

o a provision in a settlement agreement that is in violation of the non-disclosure prohibition is void and unenforceable.

o it does not affect information that is privileged or confidential under other law.

o evidence of furnishing (or offering or promising to furnish) or accepting (or offering or promising to accept) a valuable consideration in compromising or attempting to compromise a disputed claim against a governmental unit is not admissible to prove liability for or the invalidity of the claim or its amount.

o evidence of conduct or statements made in settlement negotiations is likewise not admissible; that such prohibitions do not require the exclusion of any evidence otherwise discoverable merely because it is presented during settlement negotiations, or when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 13, 2017

Handgun Liability

HB 447 - Business Owner Liability for Prohibiting License Holders from Carrying Handguns (Similar Bills: HB 497; HB 556)

· Summary: HB 447, filed by Rep. Cecil Bell (R- Magnolia), would add Chapter 95A to the CPRC and impose liability on a business owner who forbids entry on the premises by a license holder with a handgun for damages that could have been prevented by the license holder’s lawful use of a handgun if the license holder had been permitted to carry a handgun onto the premises. The bill would also create immunity for the business owner who allows license holders to carry a handgun on the owner’s premises. HB 497 and HB 556, filed by Rep. Matt Rinaldi (R - Farmers Branch) and Rep. Mark Keough (R - The Woodlands) respectively, are similar, though not identical to HB 447, with the most significant difference being that HB 556 would impose strict liability on a business or apartment owner for damages that could have been prevented if the owner had permitted a license holder to carry a handgun.

· Bill Status (HB 447): Referred to Judiciary & Civil Jurisprudence on February 16, 2017

· Bill Status (HB 497): Referred to Judiciary & Civil Jurisprudence on February 16, 2017

· Bill Status (HB 556): Referred to Judiciary & Civil Jurisprudence on February 20, 2017

HB 606 - Limited Immunity for Claims Based on a Business Owner's Failure to Forbid Handguns (Similar Bill: SB 86)

· Summary: HB 606, filed by Rep. Drew Springer (R - Gainesville), would add Chapter 95 A to the CPRC and provide immunity from civil liability for a business owner/manager with respect to a claim that is based on the owner/manager’s failure to exercise the option to forbid the carrying of handguns by a license holder on the property unless the business owner/manager was grossly negligent. SB 86, filed by Sen. Bob Hall (R - Rockwall), would also create limited civil liability for a property owner (not necessarily a business owner/manager) who fails to forbid the carrying of handguns by license holders; however, under Sen. Hall’s bill, immunity would not apply to any damage or injury that arises from a willful or wanton act or gross negligence by the property owner.

· Bill Status (SB 86): Referred to State Affairs on January 24, 2017

· Bill Status (HB 606): Referred to Judiciary & Civil Jurisprudence on February 22, 2017

Health Care Liability

HB 719 - Liability Limits in a Health Care Liability Claim

· Summary: HB 719, filed by Rep. Gene Wu (D - Houston), would amend sections 74.301 and 74.302 of the CPRC so as to provide for an adjustment to the noneconomic damages caps based on the consumer price index (CPI). More specifically, the bill provides that, when there is an increase or decrease in the CPI, the liability limit prescribed by the noneconomic damage limitation sections will be increased or decreased, as applicable, by a sum equal to the amount of such limit multiplied by the percentage increase or decrease in the CPI that measures the average changes in prices of goods and services purchased by urban wage earners and clerical workers’ families and single workers living alone (CPI-W: Seasonally Adjusted U.S. City Average--All Items), between September 1, 2003, and the time at which damages subject to such limits are awarded by final judgment or settlement.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 20, 2017

Insurance

(Companion: HB 1774)

· Summary: SB 10, filed by Sen. Hancock (but co-authored by multiple senators), would amend various sections of the Insurance Code to do, among other things, the following:

o A claimant seeking damages in an action against an insurer would be required to provide written notice to the insurer at least 61 days prior to filing suit that includes the following information: (1) the specific damage items and the amount alleged to be owed by the insurer; (2) the amount of attorney’s fees the claimant reasonably incurred in asserting the claim against the insurer; (3) a statement of the acts or omissions giving rise to the claim; and (4) the identity of any agent whose act or omission caused or contributed to the claimant’s loss of claim.

o Establish a requirement in which a failure to provide requisite notice prior to filing suit would, in certain circumstances, be subject to abatement.

o Allows an insurer to accept liability for the acts of an agent, thereby preventing a claimant from filing suit against the agent.

The companion bill (HB 1774) was filed by Rep. Greg Bonnen (R - League City).

· Bill Status (SB 10): Referred to Business & Commerce on February 14, 2017

Judiciary/Court Administration

SB 1/HB 1 – Budget 2018-2019 Biennium

The House Appropriations Subcommittee on Articles I, IV & V met on Thursday, February 23 to consider budget recommendations for Article IV, the judicial portion of the budget. Representatives from the Texas Supreme Court, Court of Criminal Appeals, Courts of Appeals and judicial agencies appeared before the committee. For those interested, you can watch the video of the House subcommittee hearing by clicking on the following link: House Subcommittee Hearing (Article IV). The initial House Appropriations subcommittee decision can be viewed here: House Committee Decision Documents.

The Senate Committee on Finance conducted its judicial budget hearing on February 8th when Chief Justice Nathan Hecht, along with CCA Presiding Judge Sharon Keller, Chief Justice Jeff Rose (on behalf of all chiefs of the intermediate appellate courts), and representatives from various judicial branch agencies testified on the budget recommendations for the 2018-19 biennium. For those who are interested, you can watch the video of the Senate hearing by clicking the following link: Finance Committee Hearing (Part 1). The video stream begins with testimony regarding the CCA budget. Testimony regarding the intermediate appellate courts begins around the 16:30 mark. Testimony about the Supreme Court’s budget occurred in a second Finance Committee hearing (Finance Committee Hearing (Part 2)) and begins around the 1:44:00 mark. The initial Senate Finance Committee decision can be viewed here: .

Information about the proposed 2018-2019 budgets from both chambers, including summaries of the and (Article IV pertains to the judiciary), can be found on the Legislative Budget Board’s website. From the judicial branch’s perspective, the Senate and House versions of the budget restore for the courts (not so for judicial agencies, such as the Office of Court Administration) the 4% cut that was imposed on all state agencies and courts in the legislative appropriation request process. The only exception for the Supreme Court on this front was for Basic Civil Legal Services funding, where the 4% cut was imposed (presumably because the Pope Act from last session has generated significant revenue from some civil penalties). The Senate’s budget proposal includes a rider that would reduce all budgets by 1.5%, which could be problematic for the courts since it would certainly impact their operations.

OCA was one of the judicial agencies that received a 4% cut to its baseline appropriation in the introduced version of the budget. OCA also faces an additional budget reduction of $1.2 million, which would result in the removal of guardianship compliance project funding, the funding to OCA to assist the appellate court and judicial branch agencies as they transition to a new financial system, and funding for two staff positions.

(Companion: HB 1242)

· Summary: SB 44, filed by Sen. Judith Zaffirini (D - Laredo), would add sections 172.021(e) and (g) to the Election Code, which would reinstate the petition requirement for certain judicial candidates that was removed in 2015 when the 84th Legislature passed SB 1073. Specifically, under SB 44, candidates for the following judicial offices would have to include a petition with their application to get on the general primary election ballot:

o Chief Justice or justice of the Supreme Court;

o Presiding Judge or judge of the Court of Criminal Appeals;

o Chief justice or justice of a court of appeals in an appellate district in which a county with a population of more than one million is wholly or partly situated;

o district or criminal district judge of a court in a judicial district wholly contained in a county with a population of more than 1.5 million;

o judge of a statutory county court in a county with a population of more than 1.5 million; and

o justice of the peace in a county with a population of more than 1.5 million.

The companion to SB 44 (HB 1242) was filed by Rep. Mike Schofield (R - Houston).

· Bill Analysis (SB 44): Senate Research Center

· Bill Status (SB 44): State Affairs conducted a public hearing February 13, 2017. Those who testified either for or on the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Archives. Testimony about SB 44 begins around the 4:10 mark. SB 44 was voted out of committee on February 21stand passed by the full Senate on February 28th.

· Bill Status (HB 1242): Referred to Elections on February 22, 2017

(Companion: HB 2573)

· Summary: SB 409, filed by Sen. Don Huffines (R – Dallas), would amend the Government Code to increase the amount-in-controversy jurisdiction of justice courts (and the corresponding county court’s concurrent jurisdiction) over civil matters to $20,000.

The companion to SB 409 (HB 2573) was filed by Rep. Terry Wilson (R - Marble Falls).

· Bill Status (SB 409): Referred to State Affairs on February 1, 2017

· Summary: SB 525, filed by Sen. Brian Birdwell (R - Granbury), would create a commission to review Texas laws to identify each statute and state agency rule that requires an action or proceeding to be brought or considered in Travis County, a Travis County district or statutory county court, or the Third Court of Appeals and make recommendations on whether the location of the action or proceeding in each statute or state agency rule serves a legitimate state purpose, other than the convenience of the state agency, that supersedes the interests of persons required to travel to Travis County to attend or participate in the action or proceeding or whether the identified statute or state agency rule should be revised to authorize an action or proceeding to be brought or considered in another Texas county.

· Bill Status: Referred to Business & Commerce on February 6, 2017

(Related Bill: SB 109)

· Summary: SJR 12 and SB 109, filed by Sen. Don Huffines (R – Dallas), would amend the Texas Constitution to add section 22.021 to the Texas Government Code and place terms limits on judges and justices, limiting the length of time for each judge or justice to serve on any one court to 18 years. Sen. Huffines has also filed bills to establish term limits for virtually every elected office in Texas.

· Bill Status (SJR 12): Referred to State Affairs on January 25, 2017

· Bill Status (SB 109): Referred to State Affairs on January 25, 2017

· Summary: HB 214, filed by Rep. Terry Canales (D- Edinburg), would add section 22.303 to the Texas Government Code and require the Supreme Court and Court of Criminal Appeals to (1) make a video recording (or other electronic visual and audio recording) of each oral argument and public meeting, and (2) post the recording on each court’s website.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 13, 2017

HB 369/

· Summary: HB 369 and HJR 32, filed by Rep. Donna Howard (D – Austin), would create the Texas Redistricting Commission (“TRC”), which would be responsible for adopting redistricting plans for the election of the Texas House of Representatives, the Texas Senate, and the members of the United States House of Representatives elected from the state of Texas following each federal census. The TRC also would be responsible for reapportioning judicial districts in the event the Judicial Districts Board failed to reapportion the districts.

· Bill Status: Referred to Redistricting on February 16, 2017

· Summary: HB 464, filed by Rep. Phil Stephenson (R - Rosenberg), would create the Fifteenth District Court of Appeals, which would sit in Edinburg and be composed of Cameron, Hidalgo, and Willacy counties. The court would consist of three (3) justices. Under HB 474, the number of justices on the Thirteenth District Court of Appeals would be reduced to three (3) justices.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 16, 2017

· Summary: HB 887, authored by Rep. Richard Raymond (D - Laredo), would require justices on the Supreme Court and judges on the CCA (but apparently not intermediate appellate court justices) to “recuse himself or herself from any case in which the justice or judge has in the preceding four years accepted political contributions…in a total amount of $2,500 or more” from “(1) a party to the case, (2) attorney of record in the case, (3) the law firm of an attorney of record in the case, (4) the managing agent of a party to the case, (5) a member of the board of directors of a party to the case, or (6) a general-purpose committee…that is established or administered by a person who is a party to the case.”

· Bill Status: Referred to General Investigating & Ethics on February 28, 2017

· Summary: HB 958, filed by Rep. Justin Rodriguez (D - San Antonio), would create a joint interim committee on judicial selection (consisting a six (6) members from both the House and Senate) to study and review the method by which statutory county court, district and appellate justices/judges are selected for office. The joint committee would be required to report its findings and recommendation to the governor, lieutenant governor, and speaker of the House by January 6, 2019. HB 958 is similar to legislation proposed in previous sessions and HB 2772 that passed in 2013 and was signed by Governor; however, the joint committee created under HB 2772 never met and a report was never generated.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 27, 2017

· Summary: HB 1058, filed by Rep. Justin Holland (R - Rockwall), would prohibit a person who operates a Supreme Court approved system to electronically file court records from selling or offering to sell a copy of any court record filed through the statewide filing system unless the person selling or offering to sell the document is the clerk of the court in which the document was originally filed. A similar (though not identical) bill (HB 1393) has been filed by Rep. Ron Reynolds (D - Missouri City).

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 21, 2017

HB 1258 - Availability of Information in Electronic Court Records

· Summary: HB 1258, filed by Rep. Travis Clardy (R - Nacogdoches), would prohibit a person, including a governmental entity, who establishes, maintains, or operates an electronic court record database may from allowing public access to any court document electronically filed with a county court, statutory county court, or district court unless: (1) the clerk of the court enters into a written agreement with the person authorizing public access to the document through the database; and (2) the commissioners court of the county in which the court is located approves the agreement.

· Bill Status: HB 1258 is scheduled for public hearing in Judiciary & Civil Jurisprudence on March 7, 2017 at 2:00 p.m.. Here is the meeting notice and a link to the live broadcast of the hearingNotice House Live Broadcast.

· Summary: HB 1465, filed by Rep. Joe Moody (D - El Paso), would add Chapter 104 to the Government Code and would require all judges and justices who find that a defendant or plaintiff in a criminal or civil proceeding is indigent (i.e., an individual who earns not more than 125 percent of the income standard established by applicable federal poverty guidelines) to waive all court costs, including costs on conviction, and all filing fees and other fees imposed by law on the indigent defendant or plaintiff.

· Summary: HB 1652, filed by Rep. Mike Lang (R - Granbury), would amend the Government Code to require OCA to conduct a study of pending court matters to analyze “the backlog of current pending matters by county, judicial region, and type of matter”; “the use of senior judges to assist in the reduction of pending matters;” and make “recommendations to reduce pending matters and improve efficiency.” Under the bill, OCA would be required to provide the report to the governor, lieutenant governor, and speaker of the house no later than January 1, 2019.

HB 1761 - Supreme Court Jurisdiction

· Summary: HB 1761, filed by Rep. John Smithee (R - Amarillo), would amend section 22.001 of the Government Code and do the following: (1) remove all grounds of jurisdiction except for “important to the jurisdiction of the state;” (2) provide that appeals may be taken to the Supreme Court only after the appeal was first taken to the court of appeals unless it is an appeal from injunctions based on the constitutionality of a statute; (3) deletes the phrases “coextensive with the limits of the state” and “extending to all questions of law;” and (4) repeals the conflicts jurisdiction provision (section 22.001(e)). HB 1761 also repeals and/or amends provisions of section 22.007 to eliminate references to the “application for writ of error” and processes associated with the writ of error process. Finally, the bill also repeals portions of section 22.225 of the Government Code, which arguably has the effect of expanding its jurisdiction in certain areas (i.e., making certain appeals no longer final in the court of appeals, such as FED and other cases where a county court has original jurisdiction; receivers; temporary injunctions, and local elections) but arguably limits its jurisdiction in other areas by removing conflict and dissent jurisdiction, and its jurisdiction over interlocutory appeals described in CPRC §51.014 (a)(3), (6), or (11), or (d).

· Summary: HB 2574, filed by Rep. Andrew Murr (R - Kerrville), would amend section 22.004(h) of the Government Code so as to increase the amount in controversy for cases subject to the expedited civil action rules to $200,000. HB 2574 would also provide that attorney’s fees are not included in determining the amount in controversy.

· Summary: HB 2594, filed by Rep. Jason Villalba (R - Dallas), would create a statewide specialized civil trial court and an appellate court to hear certain business-related litigation cases, such as actions against businesses, accusations of wrongdoing by businesses or their members, disputes between businesses, violations of the Business Organizations Code, Finance Code, and Business & Commerce Code. The “chancery court” would not have jurisdiction over governmental entities (absent the government entity invoking or consenting to jurisdiction), personal injury cases, or cased brought under the Estates Code, Family Code, the DTPA, and Title 9 (Trusts) of the Property Code, unless agreed to by the parties and the court. Some of the other notable components of the bill are:

o The chancery court would be composed of seven (7) judges who are appointed by the governor for staggered six (6) year terms. The judges would be selected from a list of qualified candidates compiled by a bipartisan advisory council (Chancery Court Nominations Advisory Council) and would have to have at least 10 years of experience in complex business law.

o The court clerk would be located in Travis County, but individual judges would be based in the county seat of their respective counties.

o Current venue rules would apply, but cases could be heard in an agreed-upon county or where the court may decide to be more convenient or necessary.

o There would be a removal procedure for cases filed in a district court.

o The Court of Chancery Appeals, which would handle appeals from the chancery trial court, would be composed of seven (7) justices who are appointed by the governor based on a list of qualified candidates compiled by the advisory council. Justices would serve six (6) year terms and would hear cases in panels of three (3) randomly-selected justices. Appeals from the Chancery CA would go to the Supreme Court.

HB 2594 is virtually identical to the version of the chancery court bill (HB 1603) that was voted out of committee last session.

· Summary: HB 2776, filed by Rep. John Smithee (R - Amarillo), would amend section 22.004 of the Government Code to require the Supreme Court to adopt rules to provide that the right of an appellant under CPRC §6.001(b)(1), (2), or (3) to supersede a judgment or order on appeal is not subject to being counter-superseded under Rule 24.2(a)(3) of the Texas Rules of Appellate Procedure, or any other rule.

Lawsuit Financing

HB 584 - Litigation Finance Agreements

· Summary: HB 584, filed by Rep. Anna Hernandez (D - Houston), would add Chapter 354 to the Finance Code and establish statutory requirements for “litigation financing agreements.” Under HB 584, a litigation financing agreement would be defined as an agreement under which “money is provided to or on behalf of a consumer by a litigation financing company for a purpose other than prosecuting the consumer’s legal claim” and “the repayment of the money is in accordance with a litigation financing transaction the terms of which are included as part of the litigation financing agreement.”

HB 584 would require litigation financing agreements to: (1) be in writing; (2) contain the initials of the consumer on each page; and (3) be “otherwise complete” when presented to the consumer for signature. Other required terms and disclosures, which has to be on the front page of the agreement under appropriate headings, would include the following: (1) the funded amount to be paid to the consumer by the litigation financing company; (2) an itemization of one-time charges; (3) the total amount to be assigned by the consumer to the company, including the funded amount and all charges; and (4) a payment schedule that: (a) includes the funded amount and charges; and (b) lists all dates and the amount due at the end of each 180-day period from the funding date until the due date of the maximum amount due to the company by the consumer to satisfy the amount owed under the agreement.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on February 20, 2017

Sovereign/Governmental Immunity

(Companion Bills: HB 611, HB 754, HB 889, HB 1308)

· Summary: SB 4, filed by Sen. Charles Perry (R - Lubbock) (but co-authored by multiple senators), would, among other things, prohibit state and local government policies that prevent local law enforcement from inquiring about a person's immigration status and complying with detainer requests. SB 4 would also waive sovereign and governmental immunity for those entities that release from custody a person who is the subject of an immigration detainer request issued by the United States Immigration and Customs Enforcement and would create liability for damages resulting from a felony committed by the person within 10 years following the person’s release if: (1) the state criminal justice agency, county, or municipality did not detain the person as requested; (2) the person was not a citizen of the United States at the time of release; and (3) the attorney general has petitioned the chief justice of the supreme court to convene the special three-judge district court to hear an action brought under that section against the county or municipality.

The companion bills were filed by Rep. Jeff Leach (R - Plano) (HB 611), Rep. Pat Fallon (R - Little Elm) (HB 754), Rep. Charlie Geren (R - Fort Worth) (HB 889); and Rep. Justin Holland (R - Rockwall) (HB 1308).

· Bill Status (SB 4): State Affairs voted SB 4 out of committee on February 3, 2017 and the full Senate passed SB 4, as amended, on February 8th. SB has been sent to the House.

· Bill Status (HB 611): Referred to State Affairs on February 22, 2017

· Bill Status (HB 754): Referred to State Affairs on March 1, 2017

· Bill Status (HB 889): Referred to State Affairs on February 22, 2017

· Bill Status (HB 1308): Referred to State Affairs on February 27, 2017

Uniform Trade Secrets Act

HB 1995 – Amendments to the Texas Uniform Trade Secrets Act

· Summary: HB 1995, filed by Rep. Gary Elkins (R - Houston), would amend chapter 134A of the CPRC (a/k/a Texas Uniform Trade Secrets Act) to (1) make the UTSA consistent with the Defend Trade Secrets Act passed by Congress in May 2016; (2) add a definition of “clear and convincing evidence” to be consistent with the same definition in other sections of the CPRC; (3) add a definition of “willful and malicious appropriation” (using a 7th Circuit case for guidance); (4) and codify concepts from the Texas Supreme Court’s 2016 decision in In re M-I LLC, which explored the tension between the rights of litigants to hear the evidence presented against them and a trade secret owner’s right to protect the confidentiality of its trade secrets during litigation.

Wrongful Birth Cause of Action

(Companion: HB 434)

· Summary: SB 25, filed by Sen. Brandon Creighton (R - Conroe) and co-authored by multiple senators, would amend the CPRC to expressly prohibit a cause of action and damages arising on a claim that “but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” The companion bill (HB 434) was filed by Rep. Ron Simmons (R - Carrollton),

· Bill Analysis: Senate Research Center.

· Bill Status: State Affairs conducted a public hearing on SB 25 on February 27, 2017. Those who testified either for or on the bill are listed here: Witness List. For those who are interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Archives.

If you have any questions about these topics or any other matter that comes to mind, feel free to contact me. If I do not know the answer to your questions, I’ll do my best to find someone who does.

Sincerely,

Jerry Bullard

Co-Chair, Legislative Liaison Committee

State Bar of Texas Appellate Section

Jerry D. Bullard*
Adams, Lynch & Loftin, P.C.
3950 Highway 360
Grapevine, Texas 76051
O: 817.552.7742
F: 817.328.2942
email: jdb@all-lawfirm.com

* Board Certified - Civil Appellate Law
Texas Board of Legal Specialization