Appellate Section of the State Bar of Texas

November 27, 2016

Legislative Update

November 27, 2016

PRE-FILED BILLS

As of November 25th, 674 bills and resolutions have been filed covering a variety of topics. There were only a handful of filings relating to the judiciary and the civil justice system. A few bills of note are as follows:

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. [Note: SJR 6 is the legislative response to the 2013 decision by the CCA holding that section 402.010(a)-(b) of the Government Code, which prevents a court from entering a final judgment until the 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).

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

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.

Elections

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.

Government Settlement Agreements

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:

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

o Provide that the bill does not affect information that is privileged or confidential under other law.

o Provide that 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 Provide that 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.

Judiciary

Summary: SB 44, filed by Sen. Judith Zaffirini (D - Laredo), would add sections 172.021(e) and (g) of the Election Code, which would reinstate the petition requirement for certain judicial candidates. 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.

In 2015, the Legislature passed SB 1073 (also filed by Sen. Zaffirini) that included provisions removing the petition requirements from the Election Code.

(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 term limit bills for virtually every elected office in Texas. Similar bills were filed in 2015.

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. A similar bill and resolution were filed in 2015.

Summary: HB 214, filed by Rep. 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. A similar bill was filed in 2015.

(Companion: HB 434)

Summary: SB 25, filed by Sen. Brandon Creighton (R - Conroe) and co-authored by multiple senators, and HB 434, filed by Rep. Ron Simmons (R - Carrollton), would amend the Texas Civil Practice and Remedies Code 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.”

INTERIM CHARGES

As you may recall, the Lt. Governor and the Speaker of the House issued several civil justice system-related interim charges (several of which are listed below) to be studied by a designated Senate or House committee prior to the 2017 legislative session. To date, the Legislature has held hearings on all but one of the monitored charges (i.e., the House Committee on Insurance as yet to conduct a hearing on the weather-related property insurance claims charge). The Senate has published reports for its interim charges. For those who may be interested in watching any of the charge hearings listed below, I have included links to the video streams, hearing notices, and witness lists for each charge. In those instances where interim charge reports have been published, parenthetical references to the page of the report where a specific charge is discussed will be follow the summary of the charge.

· Senate Committee on State Affairs - Interim Report

o Religious Liberty: Examine measures to affirm 1st Amendment religious liberty protections in Texas, along with the relationship between local ordinances and state and federal law. Make recommendations to ensure that the government does not force individuals, organizations or businesses to violate their sincerely held religious beliefs. (Interim Report at p. 1)

Notice

Video (testimony begins around the 00:45 mark)

Witness List

o Judicial Matters: Examine the need to adjust Texas judicial salaries to attract, maintain, and support a qualified judiciary capable of meeting the current and future needs of Texas and its citizens. Study and recommend whether Texas should delink legislators' standard service retirement annuities from district judge salaries. Examine the effect of eliminating straight-party voting for candidates for judicial office and make recommendations to ensure candidates are given individual consideration by voters. Interim Report at p. 11)

Notice

Video (testimony begins around the 00:30 mark)

Witness List

· Senate Committee on Business and Commerce - Interim Report

o Hail Storm: Monitor the number of lawsuits related to property claims filed as a result of multiple hail storms and weather related events across Texas. Examine negative consumer trends that may result in market disruption such as higher premiums and deductibles, less coverage, non-renewals, and inability to secure coverage due to insurance carrier withdrawal from the state and make recommendations on legislative action needed. (Interim Report at p. 9)

Notice

Video (testimony begins around the 57:30 mark)

Witness List

o Texas Prompt Pay Law: Study the impact of the penalty calculations under the current prompt payment of health care claim laws and regulations, including comparing penalties in other states and late payment penalties in Texas for other lines of insurance. Evaluate whether unregulated billed charges is the appropriate basis for determining penalty amounts and make recommendations for statutory changes, if needed. (Interim Report at p. 19)

Notice

Video (testimony begins around the 1:10 mark)

Witness List

· Senate Committee on Health and Human Services - Interim Report

o Wrongful Birth Cause of Action: Examine the cause of action known as “wrongful birth.” The study should examine (1) its history in Texas, (2) its effect on the practice of medicine, and (3) its effect on children with disabilities and their families. Examine related measures proposed or passed in other states. (Interim Report at p. 5)

Notice

Video (testimony begins around the 5:29:30 mark)

Witness List

· House Committee on Business and Industry

o Shareholder Rights and Remedies: Study the impact of recent Texas cases related to the rights and remedies of shareholders of Texas corporate forms, including the impact of those decisions on the legal rights of both Texas corporations and shareholders and any impact on the Texas business climate.

Notice

Video (testimony begins around the 1:32:45 mark)

Witness List

Committee Handouts

· House Committee on Insurance

o Weather-Related Property Insurance Claims: Examine available data on the cost of weather-related property insurance claims and the incidence of litigation of these claims. Study whether these data reveal trends or patterns over time and what the drivers of these trends might be. Identify impacts on the property insurance market and on consumers from claims litigation.

· House Committee on Judiciary and Civil Jurisprudence

o Application of Foreign Law to Family Law Cases: Examine whether family law statutes and those affecting the parent-child relationship provide sufficient guidance to Texas judges as to the appropriate application of foreign law. Consider whether additional statutory provisions regarding application of foreign law could provide useful guidance while preserving judges' ability to consider the circumstances of each case and not needlessly prolonging litigation.

Notice

Video (testimony begins around the 1:37:45 mark)

Witness List

o Pro Se Litigants: Evaluate recent efforts to make the court system more accessible for self-represented litigants, and make recommendations on how the courts can more effectively interact with unrepresented parties and increase access to legal information, assistance, and representation. Examine similar efforts in other states.

Notice

Video (testimony begins around the 39:45 mark)

Witness List

o Jury Service: Examine issues related to jury service in Texas, including participation and response rates, the accuracy of jury wheel data, and possible methods to improve response and participation.

Notice

Video (testimony begins around the 20:30 mark)

Witness List

o Expedited Actions: Study the implementation of the expedited action provisions of HB 274 (82R), and examine whether these provisions have been effective in encouraging the prompt and efficient resolution of cases.

Notice

Video (testimony begins around the 1:10 mark)

Witness List

SBOT SECTION LEGISLATIVE PROPOSALS

Several SBOT sections submitted legislative proposals to be included in the SBOT’s legislative package. Of the proposals submitted, the following are noteworthy from a civil trial and appellate standpoint:

Family Law Section – Appeals in Family Law Cases

The Family Law section submitted several proposals, only one of which deals with appeals. The appeals proposal includes the following proposed amendments/revisions to the Family Code:

Section 9.007 would be amended to create a “grace period” (30 days after judgment or 30 days after post-judgment motion overruled, whichever is later) in which the enforcement remedies in the Family Code may not be used so that the judgment debtor may supersede property division orders.

Section 6.709 would be amended to provide the trial court with express authority to (1) enjoin a judgment debtor from dissipating property awarded to the judgment creditor and (2) suspend enforcement of its property division order while the case is on appeal provided that reasonable steps are taken by the trial court to protect the judgment creditor from the judgment debtor's dissipation of the property.

Section 6.711 would be amended to clarify that (1) a trial court is required to make findings and conclusions as to the character and value of all assets, liabilities, claims, and offsets on which disputed evidence has been presented, and; (2) the findings and conclusions required by Section 6.711 are in addition to the findings and conclusions allowed under the rules of civil procedure.

Section 109.001 would be amended to provide the trial court with express authority to enjoin a party from molesting or disturbing the peace of the child or another party.

Sections 6.709 and 109.001 would be amended to: (1) extend the trial court's jurisdiction over motions for temporary orders to sixty days after all eligible parties have filed a notice of appeal; and (2) clarify that the trial court retains jurisdiction to not only enforce its temporary orders during an appeal, but also to modify its temporary orders when a material and substantial change in circumstances has occurred and modification would be equitable and necessary to preserve the property or to protect the parties.

Section 109.002 would be amended to clarify that an appeal of an order issued for the return of a child under The Hague Convention is governed by Family Code §152.314 and would be handled as an accelerated appeal.

Section 154.130 would be amended to change the deadline for requesting findings of fact and conclusions of law when an order for child support is made (i.e., from 10 days after the hearing to no later than 20 days after order) and clarify that the trial court is not required to make findings as to the child support obligee's net resources unless evidence is offered as to the net resources.

ADR/Collaborative Law Sections – Collaborative Law Extension to Civil Cases

The ADR and Collaborative Law proposal would extend collaborative law principles to general civil litigation. Texas Trial Lawyers Association, Texas Association of Defense Counsel, SBOT Litigation Section, and TEX-ABOTA opposed the proposal, as they have done in previous legislative sessions. (Note: The proposal failed to receive the support of the SBOT Board of Directors and will not be included in its legislative package; however, proposed legislation addressing the topic will likely be filed.)

You can review the complete list of the section proposals included in the SBOT legislative program here: Legislative Program.

JUDICIAL COUNCIL LEGISLATIVE PROPOSALS

The Judicial Council has several legislative proposals that have policy implications in the administration of justice. Some of the proposals include the following:

Adequate funding of the courts (special focus on judicial education)
Additional state funding for the increased cost of indigent defense
Adequate funding for civil legal aid
Increase in judicial compensation and recommendations of Judicial Compensation Commission
Consolidation of civil filing fees, standardization of certain service fees, and standardization of costs for electronic copies of court documents
Repeal or modify statutes requiring sensitive data in court filings

JUDICIAL COMPENSATION COMMISSION RECOMMENDATIONS

The Judicial Compensation Commissions will be making the following recommendations to the Legislature:

10.2 % pay raise for state judges and justices
De-link judicial salaries from legislative pensions
Automatically include a judicial compensation adjustment in the baseline budget