TEXAS UPDATE

By CHAMBERLAIN McHANEY

TEXAS LAWYERS

 

Well, today is the third of June, another sleepy, dusty Delta day…and also the day that Billy Joe McAllister jumped off the Tallahatchie Bridge.

 

            Vanity Fair is a magazine that aspires to reach the journalistic level of Texas Update.   Last week, while seeking to achieve such a lofty goal, VF revealed the identity of Deep Throat.   How lame.  Texas Update will soon reveal where Jimmy Hoffa’s body is buried.

 

            The Texas legislative session came to an infamous end on Monday evening amid much blame shifting and finger pointing.   Here is what did and did not happen as far as the civil justice system is concerned (warning: the following is not suitable for viewing by children):

 

SB 890 (Senator Williams/Rep. Nixon) – Restoration of the Dollar-for Dollar-Settlement Credit

 

SB 890 restores the dollar-for-dollar settlement credit in civil actions other than health care liability actions.  HB 4, the 2003 tort reform bill, eliminated the dollar-for-dollar credit election, leaving only a percentage reduction credit (real malpractice trap for defense lawyers and grossly unfair to our clients).  Health care liability actions, however, were treated differently.  The election between the dollar-for-dollar credit and the percentage reduction credit was retained in health care liability cases.

As finally passed by the Legislature, SB 890 replaces the percentage reduction credit with a straight dollar-for-dollar credit.  The bill does not affect the current election of credit in health care liability claims.  The bill will become effective immediately upon the Governor’s signature and applies to all actions pending on that date for which trial has not yet commenced.

HB 107 (Rep. Van Arsdale/Senator Carona)—Obesity

 

            HB 107 slammed the courthouse door on plump people.  The so-called “cheeseburger” bill foreclosed all lawsuits based on the health effects of obesity caused by food consumption.  HB 107 specifically preserves existing statutory and common law claims for fraud, adulteration, product liability, and deceptive labeling, as well as claims based on the consumption of dietary supplements and pharmaceuticals. The bill passed the House and the Senate.

            Scientists also report that if a human’s DNA could be unraveled and laid out end to end, it would stretch from earth to the moon.  Yikes!  We do need to go on a diet.

 

SB 15 (Senator Janek/Rep. Nixon) – Asbestos/Silica Reform

            SB 15 establishes medical criteria for all asbestos and silica claims and applies the current MDL rules to certain pending cases.    The Legislature passed the bill several weeks ago and Governor Perry has signed it into law.

              This bill is a fair and balanced approach to weeding unimpaired claimants out of the system, thus preserving assets to compensate those with verifiable asbestos and silica-related diseases.

 

SB 368 (Senator Duncan/Rep. Hartnett) – Judicial Compensation

The greatest disappointment of the session was the failure of SB 368, which would have provided much-needed pay increases for Texas judges. 

Unfortunately, SB 368 was caught in the political crossfire and died in the session’s closing hours.  The bill passed both houses and received broad-based support only to have time run out when the two houses could not agree on an unrelated amendment.    If the Governor calls a special session, it is possible he may add judicial compensation to the call.  

Texas Judges are among the most poorly paid in the country (39th among the 50 states).

SB 1704 (Senator Ellis/Rep. Hartnett)—Juror Pay

            Parts of the Jury Patriot Act were ultimately adopted by the Legislature in SB 1704 and sent to the Governor for signature.  SB 1704 increases juror pay from $6 to $40 per day, provides penalties for falsely claiming an exemption from jury service, and helps assure that potential jurors will not be repeatedly called to service within a short period of time.   This is the first raise Texas jurors have received in over 50 years.                      

HB 205 (Rep. Goodman) – Collaborative Law Procedure

HB 205 proposed to extend the current statute authorizing the use of “collaborative law procedures” to all civil actions.  It is currently limited to family law cases.  This bill would add an unnecessary and potentially expensive step to litigation, wrest control of the trial docket from the trial judge, give rise to problematical ethical issues and create a significant difference in state and federal procedure. Moreover, under current law the parties are always free to settle their case at any time they choose, either with or without the assistance of a mediator.  HB 205 died in House Civil Practices Committee.

HB 1294 (Rep. Rose/Senator Williams) – Permissive Interlocutory Appeals

As originally filed, HB 1294 amended Section 51.014, CPRC (which currently allows a district court to permit an interlocutory appeal on a controlling question of law, if the parties agree) to allow an interlocutory appeal of a controlling question of law at the will of any party.  After substantial amendment on the House floor, HB 1294 was changed in Senate committee simply to extend current law to county courts and county courts-at-law.  The House accepted the Senate amendments and the bill passed.

 

HB 755 (Rep. Gattis/Senator Duncan)—Forum non conveniens

 

            HB 755 responded to Judge Mark Davidson’s order in an asbestos MDL case involving a non-Texas resident.  Judge Davidson ruled that the current forum non conveniens statute precluded him from dismissing the claim because the plaintiff merely alleged that part of the cause of action arose in Texas.  This bill requires the judge to make specific findings of fact and conclusions of law on which a forum non conveniens dismissal must be based.  HB 755 did finally pass and has been signed by the Governor.  It becomes effective on September 1, 2005.

 

HB 1626 (Rep. Nixon)—Statutory Employer

 

            This bill would have extended the exclusive remedy of workers’ compensation to a premises owner where there was workers compensation coverage.   We felt this bill, if passed, would have undermined workplace safety and would have had the unintended effect of shifting a plaintiff’s focus to other potential defendants who do not enjoy the same immunity.   HB 1626 was never heard in committee due in part to the controversy surrounding the fatal BP Refinery explosion in Houston that killed more than a dozen subcontractors.

 

HB 7 (Rep. Solomons/Senator Staples)—Workers’ Compensation

 

             This bill abolishes the Texas Workers’ Compensation Commission and transfers its functions to the Texas Department of Insurance.  It also establishes a network of approved health care providers, raises benefit levels, and sets up a program designed to get injured employees back to work.  

 

HB 2875 (Rep. Solis/Senator Hinojosa)—Probate court jurisdiction

 

            As proposed, HB 2875 would have given probate courts wide latitude to transfer death cases to distant venues.  We felt that this bill unduly interfered with the current venue law and subjected defendants to potentially unfair and expensive forum shopping.  HB 2875 died in the House.

 

            AND FINALLY, the sexy cheerleader bill failed, but the Texas Lege passed sorely needed legislation declaring chips and salsa to be the official snack food of Texas and the chuck wagon to be the official vehicle of Texas.  Due to the fact the Lege could not find the time or the courage to pass school funding legislation, the cheerleaders and other students will be riding the chuck wagon to school and lunching on chips and salsa.  Boy, we are going to miss reporting on this stuff.

 

TEXAS UPDATE IS BROUGHT TO YOU
AS A SERVICE OF CHAMBERLAIN-McHANEY

 

DAVID E. CHAMBERLAIN

CHAMBERLAIN-McHANEY

AUSTIN & SAN ANTONIO

512.474.9124

VISIT US AT www.chmc-law.com