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TX Reforms

Appeal Bond Reform: HB 4 (2003).

Limits the amount a defendant can be required to pay to secure the right to appeal to the lesser of 50% of a defendant’s net worth or $25 million.  Provides that defendants are no longer required to post a bond to appeal punitive damages.  Provides that foreign judgments cannot be executed in Texas if appeal is pending in a foreign jurisdiction and a bond has been or will be posted.

Asbestos Inactive Docket: HB 1325 (2013)

Provides a mechanism for Texas asbestos and silica MDL courts to dismiss long dormant claims on the inactive docket enacted in 2005, while preserving a claimant’s ability to re-file a dismissed case should the claimant develop an impairing condition.

Barratry: SB 1716 (2011)

Provides that a client may bring an action to void any contract for legal services that was procured as a result of barratry by attorneys or other persons. The client is entitled to receive all fees and damages paid to that person under any voided contract, actual damages caused by the prohibited conduct and reasonable attorney's fees and the attorney at fault shall pay a civil penalty of $5,000.

Class Action Reform: HB 4 (2003).

Provides for the interlocutory appeal of class action certification.  Reforms attorney fees whereby fees are based on time and cost expended rather than a percentage of recovery.  Provides for stay on all proceedings during appeal of class certification.  Provides for administrative relief which requires a court to consider administrative relief from state agencies before certifying a class.

Constitutional Amendment - Noneconomic Damages: H.J.R. 3 (Proposition 12) (2003)

Provided that the Texas legislature has the authority to place limits on noneconomic damages.

Deceptive Trade Practices Act: HB 668 (1995)

refocuses the original law's intent to protect consumers from fraud and deceptive practices. The bill limits recovery to economic damages in most cases, however, damages may be tripled if the seller knew his conduct was fraudulent or deceptive.

Early Offer of Settlement: HB 274 (2011)
The main elements of the legislation are: (1) an early dismissal of actions provision in which the Texas Supreme Court is directed to promulgate a new rule of civil procedure providing for the dismissal of cases that have no basis in law or fact; (2) a section that requires the Texas Supreme Court to promulgate rules of civil procedure to “promote the prompt, efficient, and cost-effective resolution of civil actions” in which the amount in dispute is less than $100,000; (3) removal of a requirement that a trial judge obtain permission from all parties before he or she can certify a question for appellate review, and clarification of the procedure for taking the appeal; (4) changes and modifications to the
early offer of settlement statute which are intended to make the statute more balanced and, therefore, more useful; and (5) provisions pertaining to the designation of responsible third parties.
Forum Non Conveniens Doctrine: SB 15 (2005).

Restores the discretion of trial court judges to dismiss lawsuits with little or no connection to Texas under the doctrine of forum non conveniens.

Forum Non Conveniens Doctrine: SB 2 (1993).

Reinstates the forum non conveniens doctrine, which permits a court to decline to hear a case if justice would be better served by trying the case elsewhere.

Forum Non Conveniens Doctrine: SB 220 (1997).

Restores the common-law doctrine of forum non conveniens to allow the court to decline to exercise jurisdiction in an action or claim for personal injury or wrongful death that arose outside of the state.

Frivolous Lawsuits: SB 31 (1995)

adopts the model federal rule so that a court may impose penalties when a groundless lawsuit is filed

Government Retention of Personal Injury Lawyers: SB 113 (1999).

Requires that the state attempt to handle all litigation through in-house counsel.  Provides that when seeking outside counsel, the contracting agency must first seek an hourly fee arrangement.   Provides that contingent fee contracts in excess of $100,000 be approved by a Legislative Review Board.  Requires that at the conclusion of contingent fee representation, the state receive a statement of hours worked and total fees recovered.

Governmental Liability: HB 383 (1995)

provides a $100,000 limit for specified cases of governmental liability

Interlocutory Appeals Reform: SB 453 (1997)

Amends the Texas statute to allow an interlocutory appeal for 1) a special appearance, or 2) a jurisdictional challenge over a unit of state or local government before the time and expense of trial have been incurred

Joint and Several Liability Reform: HB 4 (2003).

Defendant pays only assessed percentage of fault unless defendant is 50% or more responsible.  Defendants can designate (as opposed to join) other responsible third parties whose fault contributed to causing plaintiff’s harm.  In toxic tort cases, the threshold for joint and several liability raised from 15% to 50%.

Joint and Several Liability Reform: SB 28 (1995).

Bars application of the rule of joint and several liability in the recovery of all damages from defendants found to be less than 51% at fault.

Joint and Several Liability Reform: SB 5 (1987).

Bars application of the rule of joint and several liability in the recovery of all damages from defendants found to be less than 20% at fault, except when a plaintiff is found to be fault free and a defendant’s share exceeds 10%, and when damages result from environmental pollution or hazardous waste.

Jury Service Reform: S.B. 1704 (2005).

Increases juror pay in both civil and criminal cases from not less than $6 per day to not less than $40 per day, beginning on the second day of service.  The increased compensation is to be financed by a $4 fee placed on individuals convicted of a crime.  Provides prospective jurors with one automatic postponement from service, in which case service must be rescheduled within six months after the date of the original summons.

Medical Liability Reform: Noneconomic Damages Reform: HB 4 (2003).

Limits the award of noneconomic damages in medical malpractice cases to $250,000 against all doctors and health care practitioners and a $250,000 per-facility cap against health care facilities such as hospitals and nursing homes, with an overall cap of $500,000 against health care facilities, creating in effect an overall limit of noneconomic damages in medical malpractice cases of $750,000.

Medical Liability Reform: Wrongful Death: Tex. Rev. Civ. Stat. art. 4590i § 11.02.

Limits damages in wrongful death actions to $500,000. The statute originally limited damages in all negligence actions, but the Texas Supreme Court held it unconstitutional except as to wrongful death actions in Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990)  .

Obesity Litigation Reform: HB 107 (2005)
Exempted from civil liability trade associations, livestock producers, agricultural producers and manufacturers, sellers, marketers, distributors, and advertisers of food (as defined in 21 U.S.C. 321 (f);(g);(i)) for claims arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or other generally known conditions allegedly caused by or allegedly likely to result from long-term consumption of food. This liability exemption includes actions brought by a person other than the individual whose weight gain, obesity, or health condition the action is based. It also includes any derivative action brought by or on behalf of any individual or any representative, spouse, parent, child, or other relative or individual. The liability exemption does not apply for a violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling or sale of food and the violation was committed knowingly and willfully. The liability exemption also does not prohibit an action from being brought under Chapter 431, Health Safety Code; or by the attorney general under Section 17.47, Business & Commerce Code. Provided that discovery and all other proceedings shall be stayed during a motion to dismiss.
Prejudgment Interest Reform: HB 4 (2003).

Sets the prejudgment interest rate to the New York Federal Reserve prime rate, with a floor of 5% and a ceiling of 15%.

Prejudgment Interest Reform: HB 971 (1995).

Allows prejudgment interest only for damages that occurred before judgment.

Prejudgment Interest Reform: SB 6 (1987).

Limits the period during which prejudgment interest may accrue if the defendant has made an offer to settle the lawsuit.

Product Liability Reform: HB 4 (2003).

Provides for a 15 year statute of repose for product liability cases.  In cases involving latent diseases, the plaintiff must have been exposed within 15 years of the product’s sale and must show symptoms more than 15 years after the sale.  Provides for an innocent seller provision which prohibits actions against non-manufacturing sellers except in specific circumstances such as if the seller participated in the design of the product or knew of the defect at the time of the sale.

Product Liability Reform: SB 4 (1993).

Requires proof of an economically and technologically feasible safer alternative design available at the time of manufacture in most product liability actions for defective design.  Provides a defense for manufacturers and sellers of inherently unsafe products that are known to be unsafe.  Establishes a fifteen‑year statute of repose for product liability actions against manufacturers or sellers of manufacturing equipment.  Provides protection for innocent retailers and wholesalers.

Punitive Damages Reform: HB 4 (2003). Tex. Civ. Prac. & Rem. Code §§ 41.003.

Requires unanimous jury verdict to award punitive damages.  Specifies that jury must be so instructed.

Punitive Damages Reform: SB 25 (1995): Tex. Civ. Prac. & Rem. Code §§ 41.003, 41.008.

Limits the award of punitive damages to the greater of $200,000 or two times the award of economic damages plus non‑economic damages up to $750,000.  Requires a plaintiff to show by “clear and convincing” evidence that a defendant acted with malice, defined as the “conscious indifference to the rights, safety, or welfare of others.”  Requires the determination of awards for punitive damages to be made in a separate proceeding at the request of the defendant.

Punitive Damages Reform: SB 5 (1987).

Requires a plaintiff to show that a defendant’s actions were fraudulent, malicious, or grossly negligent.  Limits the award of punitive damages to the greater of four times the amount of actual damages or $200,000.

Rural Health Care Act: HB 18 - Effective September 1, 1989 (1989)
▪ requires that juries be instructed that a bad medical outcome does not necessarily justify a finding of negligence;
▪ requires that expert witnesses be practicing physicians;
▪ indemnifies physicians with a case load of 10% or more charity cases.
Note: under the Act, OB-GYN's and emergency room physicians would be indemnified for the first $100,000
and all physicians meeting the patient load, risk management and insurance requirements would be
indemnified for the first $25,000.
Settlement Credits Reform: SB 890 (2005)

Restored dollar-for-dollar settlement credit in a multiple defendant civil action

Trespasser Liability Reform: SB 1160 (2011)
S.B. 1160 codifies traditional common law rules with respect to the duty a landowner owes to a trespasser and prevent courts from adopting the new radical standard recommended in the Restatement of Torts (third). In Texas, landowners currently do not owe a duty of care to trespassers and are not liable for their injuries. There are certain exceptions, but these are narrow in scope and well defined. Specifically, S.B. 1160: (1) defines a trespasser; (2) codifies the existing rule that land possessors owe no duty of care to trespassers; (3) provides well-recognized exceptions to the general rule; (4) provides that a child who is at least 14 years of age appreciates the risk of a highly dangerous artificial condition on land; (5) makes clear that the use of justifiable force to repel an intruder, as permitted under the Penal Code,
will not result in civil liability for injury to a trespasser; (6) clarifies that this new code does not affect other statutory provisions regarding the duty owed by land possessors, or otherwise create or increase the liability of any person or entity; and (7) provides that the legislation is prospective only.
TX Note:

In 1999, the Texas Legislature adopted several recommendations of the Texas Supreme Court’s Jury Task Force.  These reforms included increasing juror pay from $6 per day to a rate that varies based on the length of jury service, establishing a uniform juror summons and questionnaire form, exempting from jury service those who have served within the past three years, and strengthening civil penalties and adding criminal penalties against employers who fire or threaten employees for performing jury duties.

Venue Reform: HB 4 (2003).

Provides that every plaintiff must establish venue independently of every other plaintiff.  Mandates dismissal or transfer of any plaintiff who cannot establish venue except upon exception showing.  Provides for interlocutory de novo appellate review of order granting or denying transfer or dismissal.  Contains a forum non conveniens clause that states that the court must decline jurisdiction if there is a better forum for the suit.

Venue Reform: SB 32 (1995).

Allows a plaintiff to bring a lawsuit where the injury occurred, where the defendant resides, or (if none of those apply) where the plaintiff resided when the injury or harm occurred.

Volunteer Immunity: SB 215 (1999)

Provides immunity to licensed health care providers who volunteer their services for or on behalf of charitable organizations

Y2K Liability: SB 598 (1999)

Provides a two-year statute of limitations and a fifteen-year statute of repose; requires a 60 day cooling off period before a suit may be filed; protects sellers and users who rely on statements that a product or service does not have a Y2K problem; establishes affirmative defenses; requires alternative dispute resolution before trial; prohibits pain and suffering awards, and limits punitive damages, unless the plaintiff can prove by clear and convincing evidence that the defendant committed fraud or malice.