May 21, 2017

All,

According to the Legislative Reference Library, as of May 21st, only 255 of the 6,631 bills filed this session have passed. Seventeen monitored legislative proposals remain in play with less than 10 days left in the regular session. With deadlines looming, the Senate and House continue working to pass legislation. The Legislature typically passes between 1,000 and 1,500 bills, so the week ahead should be interesting.

As usual, pending bills heard or passed last week are listed in The Week in Review section. Meanwhile, bills continue to be added to the “Bills Likely to Fail” and “Bills Sent to the Governor” categories. [Reminder: Some of the internal links (i.e., those that hyperlink to locations within the update) may not work on iPad or iPhone. However, the external links (i.e., those that hyperlink to the text of a bill, the bill analysis, and to other documents or video at another location) should work on all web-accessible devices.]

The Week in Review

Bills Signed by Governor

Governor Abbott signed HB 1995 (Amendments to the Texas Uniform Trade Secrets Act).

Bills Passed

Senate:

The Senate passed the following bills:

HB 25 (Elimination of straight-party voting)

HB 53 (Limitations on settlement agreements with governmental units)

HB 1704 (Award of attorney's fees and court costs in actions to determine applicability of local government regulations)

HB 1761 (Supreme Court jurisdiction) (as amended)

HB 1774 (Actions on and liability associated with certain insurance claims)

The Senate concurred in the House amendments to SB 44 (Requirements for applications for a place on the ballot), so the bill will be sent to the Governor.

House:

The House passed SB 302 (Continuation of the State Bar of Texas), as amended, on May 16, 2017 and SB 813 (Recovery of damages, attorney's fees, and costs related to a frivolous regulatory action), as amended, on May 21st. The bills will move back to the Senate to determine whether the Senate will agree with the House amendments.

The House concurred in the Senate amendments to HB 1761 (Supreme Court jurisdiction) and HB 25 (Elimination of straight-party voting), so the bills will be sent to the Governor.

Bills Voted Out of Committee

The following monitored bills and resolutions were voted out of committee:

Health & Human Services (Senate):

HB 2891 (Medical authorizations to release protected health information in health care liability claims)

State Affairs (Senate):

HB 45 (Application of foreign laws and foreign forum selection in Texas family law cases)

HB 53 (Limitations on settlement agreements with governmental units)

HB 214 (Recording certain Supreme Court and Court of Criminal Appeals proceedings)

HB 2776 (Superseding a judgment or order on appeal)

HJR 10 (Eligibility requirements and terms of office for the judiciary)

Judiciary & Civil Jurisprudence (House):

SB 813 (Recovery of damages, attorney's fees, and costs related to a frivolous regulatory action)

SB 949 (Limitation on attorney’s fees awarded in cases assigned to special three-judge district courts)

SB 1233 (Writs of mandamus against associate family court judges)

SB 1736 (Business owner liability for prohibiting license holders from carrying handguns)

SB 1893 (Redistricting of administrative judicial regions)

Committee Hearings

House and/or Senate committees conducted hearings on the following bills:

Judiciary & Civil Jurisprudence (House):

SB 813 (Recovery of damages, attorney's fees, and costs related to a frivolous regulatory action)

SB 949 (Limitation on attorney’s fees awarded in cases assigned to special three-judge district courts)

SB 1233 (Writs of mandamus against associate family court judges)

SB 1736 (Business owner liability for prohibiting license holders from carrying handguns)

SB 1893 (Redistricting of administrative judicial regions)

State Affairs (Senate):

HB 45 (Application of foreign laws and foreign forum selection in Texas family law cases)

HB 53 (Limitations on settlement agreements with governmental units)

HB 214 (Recording certain Supreme Court and Court of Criminal Appeals proceedings)

HB 2776 (Superseding a judgment or order on appeal)

HJR 10 (Eligibility requirements and terms of office for the judiciary)

Links to the archived video and other information about each bill are located in the bill summaries below.

The Week Ahead

As of May 21st, no monitored bills are set for committee hearing next week. However such hearings could occur on relatively short notice.

BILLS SIGNED BY THE GOVERNOR

SB 4 - State and Local Governmental Entity Enforcement of State and Federal Laws Governing Immigration

· 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 (ICE) 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.

SB 4 may also be of interest to appellate courts and practitioners because it would create another accelerated appeal in civil cases brought under proposed Section 752.055(b), which authorizes the AG to file a petition for a writ of mandamus or apply for other appropriate equitable relief to compel compliance by entities or an institution's campus police department that has violated the law relating to immigration enforcement policies.

· Fiscal Note: Legislative Budget Board

· Bill Analysis: House Research Organization

· Bill Status: The Governor signed SB 4 on May 7, 2017. It becomes effective on September 1, 2017.

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 (UTSA)) to (1) make the UTSA consistent with the Defend Trade Secrets Act of 1986 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); and (4) 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.

· Bill Analysis: House Research Organization

· Bill Status: The Governor signed HB 1995 on May 19, 2017. It becomes effective on September 1, 2017.

BILLS SENT TO THE GOVERNOR

Attorney’s Fees and Other Attorney-Related Matters

HB 1704 - Award of Attorney's Fees and Court Costs in Actions to Determine Applicability of Local Government Regulations

· Summary: HB 1704, filed by Rep. John Kuempel (R - Seguin), 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 determine the applicability of a local government regulation.

· Bill Analysis: House Research Organization

· Bill Status: The House passed HB 1704 on April 28th. [House committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 4, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1704 begins around the 00:35:30 mark. The bill was voted out of committee, without amendments, on April 11th.]

The Senate passed HB 1704, without amendments, on May 19, 2017. [Senate committee history: State Affairs conducted a public hearing on May 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 1704 begins around the 00:27:30 mark. The bill was voted out of committee, without amendments, on May 12th.]

Elections

HB 25 - Elimination of Straight-Party Voting

· Summary: HB 25, filed by Rep. Ron Simmons (R - Carrollton) and others, would amend section 62.011 and other sections of the Election Code to eliminate straight ticket voting. The changes to the law would be effective September 1, 2020.

· Bill Analysis: House Research Organization

· Bill Status: The House passed HB 25, as amended, on May 5, 2017. [House committee history: Elections conducted a public hearing on March 13, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 25 begins around the 1:00 mark. HB 25 was voted out of committee on March 13th without amendments.]

The Senate passed HB 25, as amended, on May 17, 2017. [Senate committee history: Business & Commerce conducted a public hearing on May 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 25 begins around the 1:01:30 mark. The Senate voted HB 25 out of committee, without amendments, on May 11th.]

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 any provision in a settlement agreement that is in violation of the non-disclosure prohibition is void and unenforceable; however, the bill does not affect information that is privileged or confidential under other law.

The companion bill (SB 1463) was filed by Sen. Joan Huffman (R - Houston).

· Bill Analysis: House Research Organization

· Bill Status: The House passed HB 53, as amended, on April 27th. [House committee history: Judiciary & Civil Jurisprudence conducted a public hearing on March 14, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 53 begins around the 1:02:30 mark. The committee substitute was voted out of committee on March 21st.]

The Senate passed HB 53, without amendments, on May 19, 2017. [Senate committee history: State Affairs conducted a public hearing on May 15, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 53 begins around the 01:28:45 mark. The bill was voted out of committee, without amendments, on May 15th.]

Insurance

HB 1774 - Insurance Claims and Prohibited Acts in the Business of Insurance

· Summary: HB 1774, filed by Rep. Greg Bonnen (R - League City), but co-authored by multiple representatives, would amend various sections of the Insurance Code to do, among other things, the following:

o Provide for an election of remedies between Chapter 541 of the Insurance Code and the DTPA;

o Cut the interest penalty from 18% to prime + 3% and bar the additional recovery of prejudgment interest;

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 Provide an insurer with a right of inspection;

o Limit on attorney’s fees (e.g., barring attorney’s fees if an insured fails to timely give notice);

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

o Allow 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), but co-authored by multiple representatives. The House passed an amended version of HB 1774. It is no longer identical to the original version, but retains many of the original concepts (i.e., requiring pre-suit notice, provides a right of inspection, limits the recovery of attorney’s fees, etc.).

· Bill Analysis: House Research Organization

· Bill Status: The House passed HB 1774, as amended, on May 5, 2017. [House committee history: Insurance conducted a public hearing on March 28, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives (Part 1) and House Video Archives (Part 2). Testimony about HB 1774 begins around the 00:51:30 mark in Part 1 and at the 00:00:20 mark in Part 2. The bill was voted out of committee, as amended, on April 4th.]

The Senate passed HB 1774 on May 17, 2017 and will be sent to the Governor. [Senate committee history: Business & Commerce conducted a public hearing on May 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 1774 begins around the 00:42:00 mark. The bill was voted out of committee, without amendments, on May 11th.]

Judiciary

SB 44 - Filing Requirements for Candidates for Certain Judicial Offices

· 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.

· Bill Analysis: House Research Organization

· Bill Status: The Senate passed SB 44 on February 28th. [Senate committee history: State Affairs conducted a public hearing on February 13, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 44 begins around the 4:10 mark. SB 44 was voted out of committee on February 21st.]

The House passed the bill, as amended, on May 9th. The amendments added provisions to the Election Code related to challenges to a petition. The Senate concurred in the House amendments on May 16th, so the bill will be sent to the Governor. [House committee history: Elections voted SB 44 out of committee, as amended, on May 4th.]

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) delete the phrases “coextensive with the limits of the state” and “extending to all questions of law;” and (4) repeal 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 verbiage associated with the writ of error process. Finally, the bill repeals portions of section 22.225 of the Government Code, which potentially expands the Court’s jurisdiction in certain areas (i.e., makes 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 potentially limits its jurisdiction in other areas (i.e., by removing conflict and dissent jurisdiction and its jurisdiction over the interlocutory appeals described in CPRC §51.014 (a)(3), (6), (11), and (d)).

· Bill Analysis: House Research Organization

· Bill Status: The House unanimously passed HB 1761, without amendments, on April 20th. [House committee history: Judiciary & Civil Jurisprudence conducted a public hearing on March 21, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1761 begins around the 02:42:00 mark. The bill was voted out of committee, without amendments, on April 4th.]

The Senate passed HB 1761, as amended, on May 15th. On May 19th, the House concurred in the Senate amendments, which clarified that the changes to the law under HB 11761 apply to orders signed after the effective date; therefore, the bill was sent to the Governor. [Senate committee history: In the Senate, State Affairs conducted a public hearing on May 8, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 1761 begins around the 00:47:40 mark. The bill was voted out of committee, without amendments, on May 8th.]

PENDING BILLS

In an attempt to make the updates more reader-friendly, the pending bills remain grouped by subject-matter. The subject matter hyperlinks below will take you directly to a bill category. Once you have completed reading a specific bill summary, you can return to the beginning of the update by clicking on the subject heading directly above the summarized bill.

Pending Bills (by Category):

Attorney’s Fees and Other Attorney-Related Matters

Constitutional Challenges to Texas Statutes

Decisions Based on Foreign Laws

Family Law

Frivolous State Agency Regulatory Actions

Handgun Liability

Health Care Liability

Insurance

Judiciary/Court Administration

Wrongful Birth Cause of Action

Attorney’s Fees and Other Attorney-Related Matters

SB 949 - Limitation on Attorney’s Fees Awarded in Cases Assigned to 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 companion bill (HB 2221) was filed by Rep. Mike Schofield (R - Houston).

· Bill Analysis (SB 949): House Research Organization

· Bill Analysis (HB 2221): House Research Organization

· Bill Status (SB 949): The Senate passed SB 949 on April 24th. [Committee history: State Affairs conducted a public hearing on April 6, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 949 begins around the 00:06:24 mark. On April 10th, the bill was voted out of committee without amendments.]

In the House, SB 949 was referred to Judiciary & Civil Jurisprudence on May 15th. The bill was voted out of committee, without amendments, on May 18th.

· Bill Status (HB 2221): Judiciary & Civil Jurisprudence conducted a public hearing on April 25, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2221 begins around the 3:10:50 mark. On April 27th, the bill was voted out of committee without amendments.

HB 744 - Recovery of Attorney's Fees in Certain Civil Cases (Similar Bill: HB 2457)

· Summary: HB 744, filed by Rep. Jessica Farrar (D - Houston), would amend Chapter 38.001 of the Civil Practice and Remedies Code (CPRC) to provide that a person may recover reasonable attorney’s fees “from an individual or organization, or the state, an agency or institution of the state, or a political subdivision of the state…”. HB 744 further provides that the term "organization" has the meaning assigned by section 1.002 of the Business Organizations Code, which defines “organization” as “a corporation, limited or general partnership, limited liability company, business trust, real estate investment trust, joint venture, joint stock company, cooperative, association, bank, insurance company, credit union, savings and loan association, or other organization, regardless of whether the organization is for-profit, nonprofit, domestic, or foreign.“ [Note: The original version of HB 744 would have amended 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 original version would have further provided 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. However, HB 744 was amended on the floor on its way to passage in the House. In addition to the change in definitions, the amended version eliminated the provision dealing with governmental entities.]

A similar, though not identical, bill (HB 2457) was filed by Rep. Morgan Meyer (R - Dallas). The original version of HB 2457 added “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. The version of HB 2457 voted out of committee also adds the state, state agencies, and political subdivisions of the state to the list.

· Bill Analysis (HB 744): House Research Organization

· Bill Analysis (HB 2457): House Research Organization

· Bill Status (HB 744): On March 15th, the House passed HB 744, as amended, by a vote of 103-45 (one present, not voting). [Committee history: Before the House passed the bill, Judiciary & Civil Jurisprudence conducted a public hearing on March 7, 2017. Those who testified or registered a position 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: House Video Archives. Testimony about HB 744 begins around the 2:32:30 mark. HB 744 was voted out of committee, without amendments, on March 7th.]

In the Senate, HB 744 was referred to State Affairs on May 18, 2017.

· Bill Status (HB 2457): Judiciary & Civil Jurisprudence conducted a public hearing on April 18, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2457 begins around the 2:24:40 mark. The bill, as amended, was voted out of committee on April 27th.

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

· Summary: SB 302, filed by Sen. Kirk Watson (D - Austin), would continue the existence of the State Bar of Texas through September 1, 2029 in accordance with the Sunset Advisory Commission Recommendations. The Commission’s recommendations included, among other things, provisions based on 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 proposed restructuring the rulemaking process under a newly created Committee on Disciplinary Rules and Referenda (CDR), 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 monitor and take action against unethical attorneys. The changes would include, among other things, 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. The Senate amended SB 302 to include changes to the rule-making process intended to improve efficiency; allow the Supreme Court to control over a majority of the appointments to the CDRs; clarify that, if a proposal fails, the process can begin again; and allow the Supreme Court to extend rule-making deadlines up to ninety (90) days. The companion bill (HB 2102) was filed by Rep. Senfronia Thompson (D - Houston).

· Bill Analysis (SB 302): Senate Research Center

· Bill Status (SB 302): The full Senate approved SB 302, as amended, on April 4th. [Senate committee history: State Affairs conducted a public hearing on March 23, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 302 begins around the 03:23:45 mark. A committee substitute for SB 302 was proposed, which included changes to the rule-making process intended to improve efficiency; allows the Supreme Court to control over a majority of the appointments to the CDRs; clarifies that, if a proposal fails, the process can begin again; and allows the Supreme Court to extend rule-making deadlines up to ninety (90) days. The committee substitute was unanimously approved and voted out of committee on March 29th.]

The full House passed SB 302, as amended, on May 16, 2017. The amendments included revisions to the sections related to bar dues increases, the grievance process, a limitation on fingerprint-based criminal background checks for Texas attorneys (fingerprints not required for those already licensed), and the addition of a section that, according to the amendment sponsor, is intended to protect the right of an attorney to practice law in a manner that does not violate a “sincerely held religious belief.” [House committee history: The House received the bill on April 5, 2017 and referred it to Judiciary & Civil Jurisprudence on April 12th. SB 302 was voted out of committee, without amendments, on May 4th.]

· Bill Status (HB 2102): Judiciary & Civil Jurisprudence conducted a public hearing on March 21, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2102 begins around the 00:02:30 mark. The bill was left pending.

Constitutional Challenges to Texas Statutes

SJR 6 - Constitutional Amendment Authorizing the Legislature to Require a Court to Notify the Attorney General of Constitutional Challenges to State Statutes (Companion: HJR 45)

· 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).]

· Resolution Analysis (SJR 6): Senate Research Center

· Resolution Analysis (HJR 45): House Research Organization

· Resolution Status (SJR 6): The Senate passed SJR 6 on May 1, 2017. [Senate committee history: State Affairs conducted a public hearing on April 20, 2017. Those who testified or registered a position on the resolution are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SJR 6 begins around the 01:11:15. Sen. Zaffirini offered a committee substitute which clarifies that the court in which the challenge is filed is the court required to provide notice to the AG and that the “reasonable period of notice” would not exceed 45 days. SJR 6 was voted out of committee on April 26th.]

In the House, SJR 6 was referred to Judiciary & Civil Jurisprudence on May 3rd. SJR 6 was voted out of committee, without amendments, on May 4th.

· Resolution Status (HJR 45): Judiciary & Civil Jurisprudence conducted a public hearing on April 4, 2017. Those who testified or registered a position on the resolution are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HJR 45 begins around the 3:40:00 mark. The resolution was voted out of committee, without amendments, on April 11th.

Decisions Based on Foreign Laws (Family Law Cases)

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 in a family law proceeding 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. Additionally, HB 45 would require the Supreme Court to adopt rules of evidence and procedure to implement the limitations on the granting of comity to a foreign judgment or an arbitration award involving a marriage relationship or a parent-child relationship under the Family Code to protect against violations of constitutional rights and public policy. The rules adopted by the Supreme Court must:

(1) require that any party who intends to seek enforcement of a judgment or an arbitration award based on foreign law provide timely notice to the court and to each other party, including by providing information required by Rule 203 of the Texas Rules of Evidence, and by describing the court’s authority to enforce or decide to enforce the judgment or award;

(2) require that any party who intends to oppose the enforcement of a judgment or an arbitration award based on foreign law provide timely notice to the court and to each other party and include with the notice an explanation of the party’s basis for opposition, including by stating whether the party asserts that the judgment or award violates constitutional rights or public policy;

(3) require a hearing on the record, after notice to the parties, to determine whether the proposed enforcement of a judgment or an arbitration award based on foreign law violates constitutional rights or public policy;

(4) require that a court state its findings of fact and conclusions of law in a written order determining whether to enforce a foreign judgment or an arbitration award based on foreign law;

(5) require that a court’s determination be made promptly so that the action may proceed expeditiously; and

(6) provide that a court “may issue any orders the court considers necessary to preserve principles of comity or the freedom to contract for arbitration while protecting against violations of constitutional rights and public policy in the application of foreign law and the recognition and enforcement of foreign judgments and arbitration awards.”

In addition to the rules required above, the Supreme Court must adopt any other rules the Court considers necessary or advisable to accomplish the purposes of the bill and “provide for a course of instruction that relates to issues regarding foreign law, foreign judgments, and arbitration awards in relation to foreign law that arise in actions under the Family Code involving the marriage relationship and the parent-child relationship” for family law judges. The “course of instruction” must include information about: (1) the limits on comity and the freedom to contract for arbitration that protect against violations of constitutional rights and public policy in the application of foreign law and the recognition and enforcement of foreign judgments and arbitration awards in actions brought under the Family Code; and (2) the rules of evidence and procedure adopted under the bill.

· Bill Analysis: House Research Organization

· Bill Status: The House passed HB 45, without amendments, on May 6, 2017. [House committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 4, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 45 begins around the 00:43:45 mark. The bill was voted out of committee, as amended, on April 18th.]

In the Senate, State Affairs conducted a public hearing on HB 45 on May 18, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 45 begins around the 00:06:00 mark. The bill was voted out of committee, without amendments, on May 18th.

Family Law

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).

· Bill Analysis (SB 1233): House Research Organization

· Bill Analysis (HB 1480): House Research Organization

· Bill Status (HB 1480): The House passed HB 1480, without amendments, on May 9, 2017. [Committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 18, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1480 begins around the 00:13:00 mark. The bill was voted out of committee, without amendments, on April 25th.]

In the Senate, HB 1480 was referred to Administration on May 18, 2017.

· Bill Status (SB 1233): The Senate passed SB 1233, without amendments, on April 19th. [Committee history: State Affairs conducted a public hearing on April 10, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 1233 begins around the 01:09:30 mark. The bill was unanimously voted out of committee, without amendments, on April 11th.]

In the House, SB 1233 was referred to Judiciary & Civil Jurisprudence on May 4th. The bill, as amended, was voted out of committee on May 18th. The committee added statutory county and statutory probate county courts to the list of judges against whom a court of appeals may issue writs of mandamus.

Frivolous State Agency Regulatory Actions

SB 813 - Recovery of Damages, Attorney's Fees, and Costs Related to a Frivolous Regulatory Action

· 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.

· Bill Analysis: House Research Organization

· Bill Status: The full Senate passed SB 813, without amendments, on April 12, 2017. [Senate committee history: State Affairs conducted a public hearing on March 27, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 813 begins around the 1:39:45 mark. On April 3rd, the bill was voted out of committee without amendments.]

The House passed SB 813, as amended, on May 21st. The House amendments would add “political subdivisions” to the bill and require a claimant to exhaust administrative remedies before pursuing a civil cause of action against a state agency or political subdivision. [House committee history: Judiciary & Civil Jurisprudence considered SB 813 in a formal meeting on May 5th. The bill was voted out of committee, without amendments, on May 16th.]

Handgun Liability

SB 1736 - Business Owner Liability for Prohibiting License Holders from Carrying Handguns

· Summary: SB 1736, filed by Sen. Bryan Hughes (R - Mineola), would add Chapter 95A to the CPRC and provide that the fact that a card, sign, or other document described by Section 30.06(c)(3) or 30.07(c)(3), Penal Code, is not posted on the property of a business or any other evidence that a person failed to exercise the person’s option to forbid the carrying of a handgun by a license holder on the property: (1) is not admissible as evidence in a trial on the merits in an action: (A) against a person, including a business or other entity, who owns, controls, or manages the property; and (B) in which the cause of action arises from an injury sustained on the property; and (2) does not support a cause of action described by the statute.

· Bill Analysis: Senate Research Organization

· Bill Status: SB 1736 was passed by the Senate, as amended, on April 20th. [Committee history: State Affairs conducted a public hearing on April 6, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 1736 begins around the 02:15:20 mark. The bill was voted out of committee, as amended, on April 18th.]

In the House, SB 1736 was referred to Judiciary & Civil Jurisprudence on May 5th. The bill was considered in a formal meeting and voted out of committee, without amendments, on May 16th.

Health Care Liability

HB 2891 - Medical Authorizations to Release Protected Health Information in Health Care Liability Claims (Companion: SB 1872)

· Summary: HB 2891, filed by Rep. John Smithee (R - Amarillo), would amend section 74.052 of the CPRC to require medical authorizations used to obtain patient health information (PHI) in health care liability claims to include, among other things, the following:

o An authorization to release billing records associated with PHI;

o A category of “Other – Specify: ___________” would be added to the list of permitted purposes for the release of PHI;

o Allows a patient/patient’s legal representative to exclude from disclosure certain types of PHI, including HIV/AIDS test results and/or treatment; drugs/alcohol/substance abuse treatment; mental health records; and genetic information/test results; and

o Adds experts to the list of individuals to whom PHI released under this authorization can be disclosed.

The companion bill (SB 1872) was filed by Sen. Brandon Creighton (R - Conroe).

· Bill Analysis (HB 2891): House Research Organization

· Bill Status (SB 1872): Referred to Health & Human Services on March 23, 2017.

· Bill Status (HB 2891): The House passed HB 2891 on April 27th. [Committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2891 begins around the 05:19:40 mark. The bill was unanimously voted out of committee, without amendments, on April 18th.]

In the Senate, Health & Human Services conducted a public hearing on May 10, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 2891 begins around the 00:48:30 mark. The bill, as amended, was voted out of committee on May 18th.

Judiciary/Court Administration

SB 1/HB 1 Budget 2018-2019 Biennium

· Summary: Information about the proposed 2018-2019 budgets from both chambers, including summaries of the House Committee Decision Documents and the Senate Finance Committee Decision Document (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. OCA was one of the judicial agencies that initially received a 4% cut to its baseline appropriation in the introduced version of the budget. Although some of the funds have been restored in current proposals, there are still discrepancies between the two budget proposals in various areas, such as IT funding, staff merit increases, court security position, and new child protection courts. As you know, OCA funding is essential to assist the trial and appellate courts and other agencies of the judicial branch.

· Bill Status (SB 1): The full Senate unanimously passed SB 1 on March 28th. The House Appropriations committee considered SB 1 on March 29th and approved a committee substitute that essentially replaced the Senate’s version of the budget with the House version. The House approved its version of the budget bill on April 7th. The House budget bill appropriates just over $218 billion in funding for the next biennium, and allocates $825 million to the judiciary’s portion of the budget (Article IV). A conference committee was appointed to reconcile the Senate and House versions of the budget. An agreement was reportedly reached on May 20th: Conference Committee Decision Document.

· Bill Status (HB 1): Referred to Appropriations on February 13, 2017.

SB 409 - County and Justice Court Jurisdiction in Civil Matters

· 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.

· Bill Analysis: Senate Research Center

· Bill Status: The full Senate passed SB 409 on April 11th. [Committee history: State Affairs conducted a public hearing on March 30, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 409 begins around the 00:02:10 mark. On April 3rd, the bill was voted out of committee without amendments.]

In the House, SB 409 was referred to Judiciary & Civil Jurisprudence on May 5th.

SB 1893 - Redistricting of Administrative Judicial Regions

· Summary: SB 1893, filed by Sen. Brian Birdwell (R - Granbury) and Sen. Judith Zaffirini (D - Laredo), would redistrict the administrative judicial regions unto thirteen (13) districts that align with the appellate districts. The bill would also require the Texas Judicial Council to collect judicial statistics and other pertinent information from the presiding judges of each administrative judicial region regarding the amount and character of any business transacted by the presiding judges. The presiding judges would be required to report monthly any information required by the council.

· Bill Analysis: House Research Organization

· Bill Status: The Senate passed SB 1893 on May 4, 2017. [Committee history: State Affairs conducted a public hearing on April 24, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 1893 begins around the 00:28:25 mark. A committee substitute was proposed that would (1) create only two new administrative judicial regions by splitting the 1st (Northeast Texas, including Dallas County) and the 2nd (Southeast Texas, including Harris County) regions and (2) change region boundaries. On May 1st, SB 1893, as amended, was voted out of committee.]

In the House, SB 1893 was referred to Judiciary & Civil Jurisprudence on May 5th. The bill was considered in a formal meeting and voted out of committee, without amendments, on May 16th.

HB 214 - Recording of Certain Supreme Court and Court of Criminal Appeals Proceedings

· Summary: HB 214, filed by Rep. Terry Canales (D- Edinburg), would add section 22.303 to the 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, provided that the cost associated with the recording of such proceedings are funded by private sources.

· Bill Analysis: Senate Research Center

· Bill Status: The House passed HB 214 on May 4, 2017. [Committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 214 begins around the 02:03:45 mark. The bill, as amended, was voted out of committee on April 18th.]

In the Senate, State Affairs conducted a public hearing on HB 214 on May 19, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 214 begins around the 00:10:15 mark. The bill, as amended, was voted out of committee on May 21st.

HB 1258 - Availability of Information in Electronic Court Records

· Summary: HB 1258, filed by Rep. Travis Clardy (R - Nacogdoches) and amended in committee, is intended to ensure that privacy safeguards are implemented and followed with respect to electronic court records made available to the public. The bill would also allow the Supreme Court, in consultation with the court clerks, to establish fees for accessing electronic court records and grant immunity to court clerks and county commissioners courts with respect to the handling of electronic court filings. When originally filed, HB 1258 sought to prohibit a person, including a governmental entity, who establishes, maintains, or operates an electronic court record database 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 Analysis: House Research Organization

· Bill Status: The House passed HB 1258, as amended, on May 9, 2017. [Committee history: Judiciary & Civil Jurisprudence conducted a public hearing on March 7, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1258 begins around the 34:40 mark. HB 1258 was voted out of committee, with amendments, on April 11th.]

In the Senate, HB 1258 was referred to State Affairs on May 18, 2017.

HB 2776 - Superseding a Judgment or Order on Appeal (Companion: SB 1441)

· 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.

The companion bill (SB 1441) was filed by Sen. Brandon Creighton (R - Conroe).

· Bill Analysis (HB 2776): Senate Research Center

· Bill Analysis (SB 1441): Senate Research Center

· Bill Status (SB 1441): State Affairs conducted a public hearing on April 6, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 1441 begins around the 00:09:35 mark. On April 10th, the bill was voted out of committee without amendments.

· Bill Status (HB 2776): The House passed HB 2776 on May 6, 2017. [Committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2776 begins around the 04:53:00 mark. The bill was voted out of committee, without amendments, on April 27th.]

In the Senate, State Affairs conducted a public hearing on May 18, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HB 2776 begins around the 1:24:00 mark. The bill, as amended, was voted out of committee on May 19th.

HJR 10 - Eligibility Requirements and Terms of Office for Judiciary (Similar Resolutions: HJR 11; HJR 117)

· Summary: HJR 10, filed by Rep. John Smithee (R - Amarillo), would amend the Texas Constitution and specifically provide that:

o In order to be eligible to serve as chief justice or a justice of the Supreme Court, presiding judge or judge of the CCA, or chief justice or justice of the court of appeals, the person must be licensed to practice law in the State of Texas and, at the time of election, be a citizen of the United States and of the State of Texas; be at least thirty-five years of age; and has been a practicing lawyer licensed in the State of Texas for at least ten years, or has been a practicing lawyer licensed in the State of Texas and judge of a state court or county court established by the Legislature by statute for a combined total of at least ten years, during which time the person ’s license to practice law has not been revoked, suspended, or subject to a probated suspension.

o The terms of office for Supreme Court justices, CCA judges, and court of appeals justices would be extended to eight years and the terms would be staggered. The terms of district judges would be extended to six years.

o The effective date of the changes to the Constitution would be January 1, 2018. The implementation of the staggered term process would begin with those justices whose terms begin to expire in 2021, and continue as outlined in HJR 10.

Rep. Smithee also filed similar resolutions HJR 11 (Eligibility requirements for appellate judicial offices) and HJR 117 (Terms of office for judicial offices).

· Resolution Analysis (HJR 10): House Research Organization

· Fiscal Note (HJR 10): Legislative Budget Board

· Resolution Status (HJR 10): On May 11, 2017, the House passed HJR 10, as amended. [Committee history: Judiciary & Civil Jurisprudence conducted a public hearing on April 4, 2017. Those who testified or registered a position on the resolution are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HJR 10 begins around the 00:03:30 mark. A committee substitute was proposed that would incorporate the text of HJR 11 and HJR 117 into HJR 10. HJR 10 was voted out of committee, as amended, on April 27th.]

In the Senate, State Affairs conducted a public hearing on May 18, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about HJR 10 begins around the 1:35:40 mark. The resolution was voted out of committee, without amendments, on May 18th.

Wrongful Birth Cause of Action

SB 25 - Elimination of 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 bill also expressly provides that it should not be construed to eliminate any duty of a physician or health care practitioner that exists under applicable law.

The companion bill (HB 434) was filed by Rep. Ron Simmons (R - Carrollton).

· Bill Analysis (SB 25): Senate Research Center.

· Bill Analysis (HB 434): House Research Organization

· Bill Status (SB 25): The Senate passed SB 25 by a vote of 21-9 on March 21, 2017. [Senate committee history: The State Affairs committee had conducted a public hearing on SB 25 on February 27, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Archives. Testimony begins around the 1:03:40 mark. SB 25 was voted out of committee, as amended, on March 6, 2017.]

In the House, SB 25 was referred to State Affairs on May 3rd. The bill was voted out of committee, without amendments, on May 5th.

· Bill Status (HB 434): State Affairs conducted a public hearing on April 5, 2017. Those who testified or registered a position on the bill were the same individuals who testified in the Senate. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 434 begins around the 00:27:00 mark. Upon consideration of further amendments, which included the addition of a provision stating that the changes to the law made by HB 434 may not be construed to eliminate any duty of a physician or other health care practitioner under any other applicable law, HB 434, as amended, was voted out of committee on April 17th.

BILLS LIKELY TO FAIL

Attorney-Related Bills

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.

· Bill Status: Judiciary & Civil Jurisprudence has scheduled the bill for public hearing on April 25, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1951 begins around the 03:03:45 mark. The bill was left pending.

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.

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

Construction Law

SB 621 - Liability of Employees of Real Property Owners Arising from Construction Activities (Companion: HB 1315)

· Summary: SB 621, filed by Sen. Brandon Creighton (R - Conroe), would amend section 95.001(3) of the CPRC to provide that the definition of “property owner” includes an employee of the property owner for purpose of the limitation of liability of an owner for work done by an independent contractor on the owner’s premises. The companion bill (HB 1315) was filed by Rep. Phil King (R - Weatherford).

· Bill Status (SB 621): Referred to State Affairs on February 13, 2017.

· Bill Status (HB 1315): Judiciary & Civil Jurisprudence conducted a public hearing on March 28, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1315 begins around the 03:25:40 mark. A committee substitute was considered by the committee. The bill was left pending.

HB 1053 - Amendment to the Statute of Repose

· Summary: HB 1053, filed by Rep. Morgan Meyer (R - Dallas), would amend section 16.008 of the CPRC and reduce the statute of repose for construction defect claims against architects, designers, or engineers from 10 to 5 years.

· Bill Status: Judiciary & Civil Jurisprudence conducted a public hearing on March 28, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1053 begins around the 03:36:45 mark. The bill was left pending.

HB 2422 - Certificates of Merit in Certain Proceedings

· Summary: HB 2422, filed by Rep. Mike Schofield (R - Houston), would amend section 150.002 of the CPRC to require an affiant who produces a certificate of merit in an action against a licensed architect, engineer, surveyor, or landscape architect to establish the affiant’s familiarity or experience with the practice area at issue such that they establish the affiant’s ability to render an opinion on the issue. HB 2422 would also require the affiant to attach a CV or similar document to the affidavit.

· Bill Analysis (HB 2422): House Research Organization

· Bill Status: Judiciary & Civil Jurisprudence conducted a public hearing on April 4, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2422 begins around the 03:21:00 mark. The bill was voted out of committee, as amended, on April 11th.

HB 2343 - Prerequisites for Asserting Construction Defect Claims

· Summary: HB 2343, filed by Rep. Paul Workman (R - Austin), would add Chapter 130A to the CPRC and do the following:

o Require a person with an interest in real property with an alleged construction defect to obtain a written report from an independent third-party licensed professional engineer prior to filing a lawsuit;

o Require the claimant to notify each party subject to the claim at least ten (10) days prior to the inspection and give each party the right to attend the inspection;

o Create a right to correct a construction defect or related condition identified in the report within one hundred-fifty (150) days;

o Toll the statute of limitations for one year if the claim is brought in the final year of the limitations period;

o Provide for an abatement of a lawsuit for up to one year on a showing of non-compliance with the inspection requirement and dismissal with prejudice if the claimant does not comply; and

o Except from the inspection and right to correct requirement: (1) a claim asserted by a contractor, subcontractor, supplier, or design professional; (2) a claim for personal injury, survival, or wrongful death; (3) a claim involving construction of residential property governed by Ch. 27, Property Code; (4) a defect or design claim covered by §82.119, Property Code (Uniform Condominium Act); (5) a contract entered into by the Texas Department of Transportation; or (6) a project that receives money from the state or federal highway fund.

The amended version of HB 2343 adopted by the House Business & Industry committee modified the bill to expressly provide that it applies only to improvements to real property intended for commercial use.

· Bill Analysis: Senate Research Center

· Bill Status: Business & Industry conducted a public hearing on April 24, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2343 begins around the 01:42:20 mark. The bill was voted out of committee, as amended, on April 27th.

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.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 15, 2017.

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 stating that (1) the amount a person charged for a service was reasonable at the time and place that the service was provided, and (2) 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 into evidence to serve a copy of the affidavit on each of the other parties 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 into 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.

· Bill Status: Judiciary & Civil Jurisprudence conducted a public hearing on April 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2301 begins around the 05:58:15 mark. A committee substitute was proposed and the bill was left pending.

Dram Shop Act

SB 875 - Civil Liability under the Dram Shop Act

· Summary: SB 875, filed by Sen. Kelly Hancock (R - North Richland Hills), would amend the Alcoholic Beverage Code and do the following:

o Require that an action against an alcoholic beverage provider not commence unless the “obviously intoxicated person” is a named defendant in the action and is retained in the action until the conclusion of the litigation, whether by trial or settlement;

o Create a rebuttable presumption that an alcoholic beverage provider who did not last sell, serve, or provide an alcoholic beverage to an obviously intoxicated person did not commit an act giving rise to a cause of action;

o Bar a cause of action against a provider by an obviously intoxicated person or a person who bought an alcoholic beverage for or provided one to an obviously intoxicated person;

o Require 120-day pre-suit notice to all alcoholic beverage providers, running from the date the claimant enters into an attorney-client relationship for the purposes of bringing a cause of action against a provider;

o Provide that all defenses available to an obviously intoxicated person are available to a provider;

o Bar damages for financial support, services, gifts, parental training, guidance, love, society or companionship of the alleged obviously intoxicated person;

o Bar suit by a parent if the other parent recovers in a separate action, but provide for the survival of a right of action to or against the deceased party’s representative;

o In an action by a spouse, child, or parent, the general reputation of a spousal or child-parent relationship is prima facie evidence of the relationship, and the recovery of a child, spouse, or parent is the sole property of that person; and

o Establish a two-year limitations period from the day the cause of action accrues.

· Bill Status: Referred to Business & Commerce on February 27, 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 no 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 no 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 the attorney to provide a prospective client with a disclosure form promulgated by the State Bar of Texas (SBOT) that includes 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.

· Bill Analysis: House Research Organization

· Bill Status: Juvenile Justice & Family Issues conducted a public hearing on March 29, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 730 begins around the 00:01:20 mark. On April 5th, HB 730 was voted out of committee.

Handgun Liability

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 95A to the CPRC and provide that there is no cause of action against an owner, lessee, or manager of property based on the owner's, lessee's, or manager's decision not to exercise the option to forbid the carrying of handguns by a license holder on the property by providing notice under Sections 30.06 and 30.07 of the Penal Code. The original version of HB 606 would have created 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 Analysis (HB 606): House Research Organization

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

· Bill Status (HB 606): Judiciary & Civil Jurisprudence conducted a public hearing on March 28, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 606 begins around the 00:28:45 mark. The bill was voted out of committee, as amended, on April 27, 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: Judiciary & Civil Jurisprudence conducted a public hearing on March 28, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 719 begins around the 01:23:45. The bill remains pending.

Judiciary/Court Administration

SB 525 - Review of State Laws Requiring an Action or Proceeding to be Brought in Travis County or a Travis County Court

· 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.

SB 985 - Abolishment of County Court at Law Nos. 3 through 5 of Dallas County

· Summary: SB 985, filed by Sen. Don Huffines (R – Dallas), would abolish County Court at Law Nos. 3 through 5 of Dallas County and transfer all of the cases pending in those courts to County Court at Law Nos. 1-2.

· Bill Status: Referred to State Affairs on March 29, 2017.

SB 1307 - Authority of State Commission on Judicial Conduct to Discipline Judges (Companion: HB 3135)

· Summary: SB 1307, filed by Sen. Bob Hall (R - Rockwall), would amend section 33.001 of the Government Code and provide that a judge will not be subject to any disciplinary action, investigation, censure, or sanction for criticizing or refusing to follow an action or ruling of a federal court. SB 1307 further provides that “[a] judge’s criticism of or refusal to follow an action or ruling of a federal court is considered the judge’s right to freedom of speech, protected under Section 8, Article I, Texas Constitution.” The companion bill (HB 3135) was filed by Rep. Briscoe Cain (R - Houston).

· Bill Status (SB 1307): Referred to State Affairs on March 14, 2017.

· Bill Status (HB 3135): Referred to Judiciary & Civil Jurisprudence on March 29, 2017.

SJR 12 - Constitutional Amendment to Limit the Number of Terms that Judges and Justices May Serve on Texas Courts (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 term 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.

HB 369/HJR 32 - Creation of Texas Redistricting Commission

· 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 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.

HB 474 - Creation of Fifteenth District Court of Appeals

· Summary: HB 474, 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.

HB 887 - Judicial Recusal Based on Political Contributions

· Summary: HB 887, authored by Rep. Richard Raymond (D - Laredo), would require justices on the Supreme Court and judges on the CCA (but 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.

HB 958 - Interim Study Regarding the Method by Which Judges and Justices are Selected

· Summary: HB 958, filed by Rep. Justin Rodriguez (D - San Antonio), would create a joint interim committee on judicial selection (consisting of 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 recommendations 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 the 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.

HB 1038 - Award of Costs and Attorney’s Fees in a Motion to Dismiss Actions that Have No Basis in Law or Fact (Similar Bill: SB 1946)

· Summary: The current version of HB 1038, filed by Rep. Matt Rinaldi (R - Farmers Branch), would amend section 30.021 of the CPRC of the Government Code to make the award of costs and attorney’s fees following the grant or denial of a motion to dismiss filed under the rules adopted by the Supreme Court under section 22.004(g) of Government Code (i.e., TRCP 91a) discretionary instead of mandatory. The original version of the bill would have required a court to award costs and reasonable and necessary attorney’s fees to the prevailing party if the prevailing party was the party that filed the motion to dismiss. Currently, CPRC §30.021 provides that a trial court shall award costs and attorney’s fees to the prevailing party, but does not require that the party awarded with costs and attorney’s fees be the movant.

Sen. Bryan Hughes (R - Mineola) filed SB 1946, which would amend section 30.021 of the Government Code to make the award of costs and attorney’s fees following the grant or denial of a motion to dismiss filed under the rules adopted by the Supreme Court under section 22.004(g) of Government Code (i.e., TRCP 91a) discretionary instead of mandatory.

· Bill Analysis (HB 1038): House Research Organization

· Bill Status (HB 1038): Judiciary & Civil Jurisprudence conducted a public hearing on April 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1038 begins around the 02:34:45 mark. The bill was voted out of committee, as amended, on May 4th.

· Bill Status (SB 1946): Referred to State Affairs on March 27, 2017.

HB 1058 - Prohibition of Sale of Court Records Filed Through Statewide Electronic Filing System

· 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 1465 - Prohibition on Judge's Imposition of Court Costs on Indigent Parties

· 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.

· Bill Status: Criminal Jurisprudence conducted a public hearing on April 3, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 1465 begins around the 4:21:30 mark. The bill was left pending in committee.

HB 1652 - Study of Pending Court Matters

· 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.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 6, 2017.

HB 2574 - Rules Adopted by Supreme Court to Promote Expedited Resolution Civil Actions

· 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, but that any attorney’s fees awarded under section 22.004(h) cannot exceed $50,000.

· Bill Analysis: House Research Organization

· Bill Status (HB 2574): Judiciary & Civil Jurisprudence conducted a public hearing on April 18, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 2574 begins around the 2:29:20 mark. The bill was voted out of committee, as amended, on April 27th.

HB 2594 - Creation of the Chancery Court and Court of Chancery Appeals to Hear Certain Cases

· 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 cases 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; and

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 2015 chancery court bill (HB 1603) that was voted out of committee last session, but failed to pass in the House.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 30, 2017.

HB 3971 - Method of Calculating Judicial Salaries (Companion: SB 1938)

· Summary: HB 3971, filed by Rep. Mike Schofield (R - Houston), would amend the Government Code to provide a formula for determining the salaries of Texas judges. Under HB 3971, the salary of a supreme court justice (other than chief justice) and a CCA judge (other than the presiding judge) would be equal to the sum of:

(1) 1/3 of the average salary, on January 1st, of the justices (excluding chief justices) on the highest appellate courts of the 9 most populous states, not including Texas;

(2) 1/3 of the salary, on January 1st, of a judge of a U.S. court of appeals; and

(3) 1/3 of the average starting base salary, on January 1st, of first year associates at the five largest law firms in Texas.

The salary of a court of appeals justice (other than the chief justice) would be 91% of a supreme court justice (other than the chief justice). The salary of a district judge would be 82.5 % of the salary of a supreme court justice (other than the chief justice). Using this formula, the salaries for the justices would be approximately $194,000.00 for a supreme court justice, $176,500.00 for a court of appeals justice, and $160,000.00 for a district court judge.

Other features of the bill include the following:

o OCA would collect and provide the data for (1) and (2) above to the Legislative Budget Board (LBB) by February 1st of each year;

o The State Bar would collect and provide the data for (3) above to the LBB by February 1st of each year;

o LBB would calculate the salaries and provide them to the comptroller by March 1st of each year;

o Salaries would be adjusted on October 1st of each year, but the adjusted salary of a supreme court justice (other than the chief justice) and a judge on the CCA (other than the presiding judge) could not increase more than 4% per year or by the percentage change in the Consumer Price Index, whichever is higher;

o As is the case currently, the chief justice or presiding judge of an appellate court would be entitled to an annual salary that is $2,500 more than the salaries provided for the other justices or judges on the court;

o The effective date would be January 1, 2019; and

o The first pay increase would be on October 1, 2019. As such, there’d be no fiscal impact for the next biennium.

The companion bill (SB 1938) was filed by Sen. Bryan Hughes (R - Mineola).

· Fiscal Note (HB 3971): Legislative Budget Board

· Fiscal Note (SB 1938): Legislative Budget Board

· Bill Analysis (HB 3971): House Research Organization

· Bill Analysis (SB 1938): Senate Research Center

· Bill Status (SB 1938): State Affairs conducted a public hearing on April 27, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: Senate Video Archives. Testimony about SB 1938 begins around the 00:39:45 mark. The bill was left pending.

· Bill Status (HB 3971): Judiciary & Civil Jurisprudence conducted a public hearing on April 11, 2017. Those who testified or registered a position on the bill are listed here: Witness List. For those interested in watching the proceedings, here is a link to the archived broadcast of the hearing: House Video Archives. Testimony about HB 3971 begins around the 00:02:30 mark. The bill was voted out of committee, as amended, on April 27th.

Jury Charge

HB 3911 - Trial Court Instructions to Jury

· Summary: HB 3911, filed by Rep. John Kuempel (R - Seguin), would amend chapter 32 of the Government Code and require a trial judge to instruct the members of the jury of their duty to (1) “judge the law to determine whether the law is unjust or unjustly applied to a party in a case”; (2) “determine the validity of the evidence”; and (3) “vote on the jury verdict according to the members’ consciences.”

· Bill Status: Referred to Judiciary & Civil Jurisprudence on April 3, 2017.

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 have 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.

Real Estate Litigation

SB 1894 - Suits Involving Real Property

· Summary: SB 1894, filed by Sen. Konni Burton (R - Colleyville), would amend section 16.003 of the CPRC to provide that the two-year limitations period for a suit for trespass for injury to real property would apply only to a suit for damages arising from the trespass. SB 1894 would also amend section 37.004 of the CPRC (i.e., the Uniform Declaratory Judgments Act (UDJA)) to provide that (1) a UDJA action to determine proper boundary lines of real property owned by the person bringing the action would not be subject to a limitations period and (2) a person may bring an action for trespass to real property and an action to obtain a determination under the UDJA of the proper boundary line of the property in the same proceeding and may recover costs and attorney’s fees under the UDJA for both causes of action.

· Bill Status: Referred to State Affairs on March 23, 2017.

Sovereign/Governmental Immunity

HB 2260 – Discovery Procedures for Claims against Governmental Entities under the Tort Claims Act

· Summary: HB 2260, filed by Rep. Harold V. Dutton, Jr. (D- Houston), would amend Chapter 101 of the CPRC and require the Supreme Court to adopt rules under which a claimant under the Texas Tort Claims Act may “obtain reasonable discovery to investigate whether circumstances exist that would confer jurisdiction on the court” when a defendant asserts a plea to the jurisdiction.

· Bill Status: Referred to Judiciary & Civil Jurisprudence on March 15, 2017.

Texas Citizens Participation Act

HB 3811 - Actions Involving the Exercise of Constitutional Rights

· Summary: HB 3811, filed by Rep. J.M. Lozano (R - Portland), would amend Chapter 27 of the CPRC (also known as the Texas Citizens Participation Act (TCPA)) by making several changes to the TCPA. Such changes to the TCPA would include the following:

o Redefine the term “communication" to limit the definition to statements or documents to those publicly made or submitted. It would specifically exclude statements or documents that are made or submitted privately;

o Redefine the phrase "constitutional right to petition, to speak freely, or to associate freely" to mean “the exercise of any of those rights as they are provided by the constitutions of this state and the United States and applied by the courts of this state and the United States;"

o Exclude discovery motions, motions for summary judgment, and any other type of procedural action from the definition of "legal action;" and

o In order for a party to seek dismissal of a legal action under the TCPA, the legal action must be based on, related to, or in response to “a party’s participation in the government by the exercise of the constitutional right to petition, to speak freely, or to associate freely…”

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


 

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