By Mike Hailey
Capitol Inside Editor

The state House floor fight this week on the Texas Department of Insurance sunset bill is expected to become the major battlefield in this year's tort reform fight amid speculation that Democrats and some Republicans will attempt to load it up with amendments as a vehicle for the trial lawyers highest priority items at the Capitol in 2009.

As the House braced for a floor battle on insurance regulation in Texas as early as Thursday or Friday, it appeared that trial lawyer allies were preparing to transform separate legislation they've been pushing into TDI sunset amendments dealing with workers compensation law related to the Entergy case at the Texas Supreme Court, mesothelioma lawsuit standards, so-called paid or incurred provisions, limits on multidistrict litigation transfers and other issues.

With the vast majority of the House's Republican majority opposed to the legislation that trial lawyers favor, the prospects for a TDI sunset bill loaded with amendments that tort reform advocates are against would appear to have the potential to put the insurance agency life-extension measure in possible peril on the eve of the debate in the lower chamber.

If the sunset plan did fall victim to the ongoing war between tort reformers and trial lawyers or simple partisan politics before the Legislature's biennial gathering ends in 12 days, it would set the stage for an almost certain special session that Governor Rick Perry would likely feel compelled to call to keep TDI in business and insurance regulation alive in Texas. The Republican governor warned lawmakers on Wednesday that he would summon them back to Austin for a special session if they fail to pass a windstorm insurance plan that will be a source of debate when the House takes up the TDI sunset plan on the floor this week.

The sunset legislation in SB 1007 narrowly cleared the House Insurance Committee this week on a strict 5-4 party line vote with all of the Democrats on the panel opposing it. But if the trial lawyers' allies are as successful with the TDI sunset amendments as they were with the Entergy bill that passed the House last week and the meso bill that won Senate approval in April, it's conceivable that the insurance department sunset bill could experience a reverse backlash with Republicans who would have otherwise supported it voting no at the urging of business interests in the opposite corner in the tort reform fight.

The trial lawyers won those two preliminary key victories with the help of some support from Republicans who'd sided with tort reform proponents on major civil justice legislation in recent years. But the Entergy bill's fate remains uncertain in the Senate with time ticking away on the regular session - and the meso bill and paid or incurred measure that trial lawyers favor have been bottled up for more than a month in the House Judiciary & Civil Jurisprudence Committee where they've appeared to be dying a slow death.

The battle over the TDI sunset bill and the way the insurance industry is regulated in the state - as a result - could become a tangled web that threatens to jeopardize its chances of passing by the time the full House goes to work on it in the next day or two.

State Rep. Carl Isett, a Lubbock Republican who's sponsoring SB 1007 in the House as the chairman of the Sunset Advisory Commission, acknowledged that he's been expecting a rash of floor amendments containing all of the separate pieces of legislation that have been high on the trial lawyers' agenda this year.

"My encouragement would be that the members consider the gravity of the bill," Isett said. "We know we need to regulate insurance in Texas and keep the process moving."

But Isett said the sunset process has been "adulterated" over the years by legislators who see it as an opportunity to advance their legislative programs in a way that's expanded the scope of what regulatory agencies oversee rather than simply making sure they're doing their jobs as the Legislature has prescribed the way the system was initially intended to do.

The Democrats on the House insurance panel who voted against the sunset measure - State Reps. Trey Martinez Fischer of San Antonio, Joe Deshotel of Beaumont, Craig Eiland of Galveston and Senfronia Thompson of Houston - were upset that they weren't given the opportunity to amend the bill in committee. The chief complaint about the sunset legislation so far from Democrats in the House and the Senate has been the fact that it still contains a file-and-use system that allows insurance companies to start charging higher rates before they've been approved by state regulators.

But Isett, an Insurance Committee, said the Democrats who opposed the sunset bill when the panel approved it didn't voice their concerns about the file-and-use system to him directly until raising their objections before the vote earlier this week.

The provisions that trial lawyers hope to tack on to the TDI sunset bill are guaranteed to spark fireworks on the floor this week. The least controversial trial lawyer-backed measure so far this year may be the multidistrict litigation proposal that was approved early this month on a 9-0 vote by the House Judiciary & Civil Jurisprudence Committee where other bills that plaintiff attorneys support have been stuck.

But that bill has been pending in the Calendars Committee for the past two weeks. And even though it drew no dissenting votes in committee, the MLD legislation can also be expected to trigger to substantial debate on the floor considering that the Texans for Lawsuit Reform has been opposed to the measure. Sponsored by Eiland, the House speaker pro tem, the multidistrict litigation bill would restrict the use of the MDL process to lawsuits involving product liability related to pharmaceutical products and asbestos and silica cases.