The Texas Legislature has taken significant steps to improve efficiency, prevent abusive litigation from impeding and delaying the process of justice, and make the appellate courts available to all parties to a lawsuit. This important work will continue through future legislative sessions as new challenges arise.
2021: Tweaking the Multidistrict Litigation Statute
The multidistrict litigation (MDL) panel has the power to transfer factually-related cases from multiple courts to a single trial court for consolidated or coordinated pretrial proceedings.
This helps ensure consistency, predictability and efficiency, and saves time and money when multiple lawsuits arise from the same facts in multiple counties. Cases that are not settled return to the original counties for a trial on the merits.
House Bill 2950 amends the Government Code to:
- Provide that the Texas Supreme Court as a whole will appoint judges to the MDL panel. Previously, those appointments were made by the chief justice alone.
- Add former and retired court of appeals justices to the list of people who can serve on the MDL panel.
- DTPA cases brought by the Consumer Protection Division of the Texas Attorney General’s Office will remain exempt from the MDL process. The bill clarifies that other DTPA cases not brought by the AG’s office will be subject to the MDL process.
2019: Addressing Abuses of the Texas Citizens’ Participation Act
The Legislature passed the Texas Citizens’ Participation Act (TCPA) in 2011 to ensure a powerful entity couldn’t use a frivolous lawsuit to bully a Texan out of exercising his or her rights of free speech and association. These lawsuits are sometimes called Strategic Litigation Against Public Participation, or SLAPP. The TCPA, otherwise known as the Anti-SLAPP statute, provides a way to end this type of abusive lawsuit early and shift the legal costs to the person who filed the lawsuit to suppress another person’s right to speak or associate freely. Over time, however, the law was being used in ways the Legislature never intended—for example, to shield actions like extortion and theft of trade secrets—which wasted judicial time and resources. House Bill 2730 was passed in 2019 to guarantee Texans can continue to exercise their constitutional rights of speech and association, while making adjustments to prevent the statute’s overly broad application.
2017: Requiring Pre-Suit Notice to Curb Drive-By ADA Lawsuits
In 2015 and 2016, a rash of lawsuits were filed against Texas businesses under the Americans with Disabilities Act (ADA) and a parallel Texas statute. Most of the lawsuits were filed by a single Austin-based attorney. In all of these lawsuits, it was alleged that the physical facility for each business contained structural barriers to access by people with disabilities. It was clear these lawsuits were not brought because a disabled individual had not been able to access the business, but because a lawyer had driven from business to business, identifying one or more minor infractions of the ADA’s building codes. He then filed cookie-cutter lawsuits, attaching photographs of the alleged infraction, and demanded an out-of-court settlement from each defendant—even if the defendant fixed the alleged barrier to access.
In House Bill 1463 of 2017, the Legislature passed a statute requiring that before a lawsuit may be filed alleging that an architectural barrier prevents a disabled person from accessing a public facility, the owner or lessee of the property must be given notice of the impediment and an opportunity to fix it. If it is not fixed within the allotted time, the lawsuit may proceed. The goal of the law is to encourage business owners to comply with the architectural requirements of the ADA so that every business is accessible to all Texans. At the same time, the statute should reduce the number of unscrupulous “drive-by” lawsuits.
For a more detailed review of drive-by lawsuits under disability laws, please read Access Litigation in Texas Under the Americans with Disabilities Act and its Texas Companion, a paper by the TLR Foundation.
2017: Ensuring Fairness in Collection of Foreign-Country Judgments Act
In 2015, the U.S. Fifth Circuit Court of Appeals handed down an opinion interpreting Texas’ Foreign-Country Money Judgments Recognition Act, the law that provides the procedure for collecting a judgment in Texas rendered by a court in a foreign nation. The Fifth Circuit concluded that the due process provision of the U.S. Constitution does not require that the defendant be afforded a fair process in the foreign country, only that the country’s legal system as a whole not be fundamentally unfair.
In Senate Bill 944 of 2017, the Texas Legislature replaced the existing law for collecting a foreign judgment with a new law that ensures that Texas courts only enforce foreign judgments that deserve recognition, while rejecting foreign judgments from countries whose judicial systems do not provide impartial trials or procedures compatible with the requirements of due process of law, or when the judgment or the cause of action on which the judgment is based is counter to the public policy of Texas or the U.S.
2013: Balancing the Rights of Parties to a Recovery (Subrogation)
Subrogation happens in several contexts, but the most common has to do with the payment of healthcare claims. When a person is injured in an accident, her accident-related medical bills will often be paid by her health insurance company. Under the standard contract with a health insurer, the insurer has a right to sue the person who caused the accident to recover the money it spent on the injured person’s healthcare. This is permitted in the law because the wrongdoer should not be allowed to force someone else (like an insurance company) to pay the costs resulting from his wrongful conduct. Having one person (like an insurance company) assume part of another person’s right to sue a wrongdoer is called subrogation.
In common practice, insurance companies do not exercise their subrogation right directly. Instead, insurance companies typically allow the injured person to bring the lawsuit for themselves. Then, when the injured person recovers from the wrongdoer, she is obligated to reimburse the insurance company for the money it spent on her behalf if she was notified of the insurance company’s subrogation interest. Her attorney will have done all of the work to collect the money. Of course, because it seems unfair for the insurance company to recover 100 percent of its money when it did none of the work required to collect that money, the common practice was that that the plaintiff would be made whole before the insurer would receive any money.
In 2007, the Texas Supreme Court handed down a decision holding that an insurance company that had a contractual right to subrogation is entitled to be paid first, and in full, from the money received by a person injured in an accident. Recognizing that this decision could unfairly limit an injured Texan’s recovery, the 2013 Texas Legislature passed House Bill 1869, changing the way health insurers are reimbursed from funds recovered by an injured party to ensure the injured Texan is adequately compensated before an insurer is paid. TLR worked closely with the trial bar to secure passage of this bill.
2011, 2019: Expediting Small Civil Cases
Pursuing a lawsuit can be time consuming and expensive for all parties and the judicial system. In order to keep the cost of litigation from barring Texans’ ability to pursue a small civil case, the Legislature passed House Bill 274 in 2011, requiring the Texas Supreme Court to write procedural rules to ensure expeditious handling of civil cases with less than $100,000 in dispute. In response, the court wrote rules limiting pretrial discovery, requiring a trial setting within six months and limiting the amount of time that may be used to try such a case.
In 2019, the Legislature passed Senate Bill 2342, making additional changes to improve Texans’ access to courts to resolve smaller civil disputes. The bill increased justice of the peace civil jurisdiction from $10,000 to $20,000, giving more Texans the ability to resolve disputes in these efficient, accessible and relatively low-cost venues. It also increased the standard jurisdiction in county courts-at-law from $200,000 to $250,000, and required a 12-person jury to be used in any county court-at-law case with more than $250,000 in controversy. Finally, it expanded 2011’s successful expedited-case procedures to apply to any case in a county-court-at-law with less than $250,000 in controversy.
2003, 2017: Expanding Supreme Court Jurisdiction
Historically, the Texas Supreme Court was prevented from hearing some appeals because the statute defining its jurisdiction required either that the court of appeals’ ruling in the case conflicted with an earlier appeals court ruling in a different case, or that there was a dissenting opinion from an appellate judge on the case. Dissenting opinions at the court of appeals level are rare, and the statutory definition for a jurisdictional conflict before 2003 was narrow. As a consequence, sometimes a body of law would develop in the wrong direction. However, because each court of appeals merely followed prior decisions by other courts of appeals and dissenting opinions were never written, the Supreme Court could not get jurisdiction to take an appropriate case and redirect the law.
In 2003, the Texas Legislature began to address the problem by redefining what it means to have a conflict of decisions. In House Bill 4, the Legislature rewrote the statute to provide that one court of appeals holds differently from another “when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” This broader definition allows the Texas Supreme Court to hear more appeals. The Legislature also amended the same statute to give the Texas Supreme Court jurisdiction to hear an appeal from a trial court’s decision to certify a class action.
In 2017, the Legislature entirely eliminated both dissent and conflict jurisdiction in House Bill 1761. Now, the Texas Supreme Court may hear any appeal that is important to the continued development of the law in Texas. This streamlines procedure for the court and eliminates the need to write extensive briefs discussing the court’s jurisdiction, saving both the court and litigants time and expense.
2003: Reining in Class Action Lawsuits
In House Bill 4 of 2003, the Texas Legislature required the Texas Supreme Court to adopt rules “to provide for the fair and efficient resolution of class actions.” The Legislature specifically mandated that the rules deal with the methods for calculating and awarding attorney fees in class actions. (See Attorneys for a description of the attorney fee provisions.) Additionally, the new law provides that class actions within the jurisdiction of a state agency must be addressed by that agency before proceeding in court. Also, the statute allows the losing party in a trial court’s class certification order to appeal the trial court’s decision to an intermediate appeals court, and gives the Texas Supreme Court ultimate jurisdiction to approve or disapprove the trial court’s order.
2003: Allowing Evidence of Seat Belt Non-Use
Texas law requires an adult to wear a seat belt while driving or riding in a vehicle, and also to ensure that all children are wearing a seat belt. Before 2003, the law provided that a jury in a civil case could not be told that an injured person was not wearing a seat belt at the time of the accident. In House Bill 4 of 2003, the Texas Legislature repealed this limitation on the use of seat belt evidence, allowing juries in Texas to consider whether a plaintiff was wearing a seat belt at the time of an accident in order to determine the cause of damages and allocate fault.
2003: Ensuring an Effective Right to Appeal
Before 2003, a person who was on the losing end of a civil case was required to post a bond for the entire amount of the judgment in order to avoid collection of the judgment during an appeal. In some cases, typically originating from Texas’ “hellhole” jurisdictions with incompetent or biased trial judges, the size of the judgment made it virtually impossible for the losing party to post the bond. But the failure to post the bond meant that collection efforts could cause significant financial distress or even bankruptcy before the case could be resolved on appeal.
House Bill 4, passed in 2003, amended Texas law to provide that the losing party in a civil lawsuit cannot be forced to post an appeal bond exceeding the greater of:
- half of a party’s net worth,
- the total compensatory (not punitive) damages awarded to the prevailing party, or
- $25 million.
Furthermore, if the losing party can show that he is likely to suffer substantial economic harm if forced to post a bond in the amount required, the trial court must lower the bond to an amount that will not cause substantial economic harm.
2003: Creating Efficiency in Handling Multiple Related Cases
In some circumstances, a single event may trigger multiple plaintiffs to file lawsuits. For example, a commercial jetliner crash or chemical plant explosion may kill or injure multiple people, resulting in multiple independent lawsuits. In other circumstances, unrelated events may trigger multiple lawsuits against common defendants alleging the same or similar causes of action. For example, multiple plaintiffs might sue a product manufacturer for the same alleged injury-causing defect in a product (see also Asbestos). These kinds of cases often raise identical facts or legal issues. Conducting redundant discovery about the same issue in multiple cases is costly and often causes unnecessary delay.
As part of House Bill 4 in 2003, the Texas Legislature created a method for efficiently dealing with these kinds of related cases. The Legislature created the Judicial Panel on Multidistrict Litigation (MDL Panel), consisting of five members appointed by the chief justice of the Texas Supreme Court. The MDL Panel is authorized to consolidate civil actions in different state trial courts that involve one or more common questions of fact to any Texas district court for coordinated pretrial proceedings. A transfer may be made for the convenience of the parties and witnesses and to promote the just and efficient conduct of the actions. Once coordinated pretrial proceedings are concluded, the judge presiding over the consolidated cases sends them back to the originating county for trial.
2003: Expanding the Right to Appeal in Medical Liability Cases
In 2003, the Legislature made substantial changes to the laws governing personal injury and wrongful death lawsuits against healthcare providers. (For a description of this legislation, see Medical Liability.) As part of that legislation (House Bill 4), the Legislature gave Texas’ courts of appeals jurisdiction over any appeal from a trial court order finding the plaintiff’s expert witness affidavit was insufficient or not filed on time.
2003: Requiring Evidence of Negligence in Lawsuits Against Architects and Engineers
When a construction defect causes a loss in the value of property (like a sinking foundation) or a personal injury, the injured person will typically sue the builder, architect or engineer who was involved in the construction of the building. The idea is to “sue everyone” and then let the defendants sort out which of them made the injury-causing defect. In many instances, the work done by the architect or engineer has nothing to do with the defect. In 2003, the Texas Legislature passed House Bill 4, which includes a provision requiring a plaintiff in a lawsuit against an architect or engineer to provide, at the time the lawsuit is filed, an affidavit by a third-party architect or engineer setting forth the specific acts of negligence allegedly committed by the defendant. In Texas, if you are going to sue an architect or engineer, you must have expert evidence from the outset that the prospective defendant actually did something wrong.
2001, 2011: Allowing Immediate Appeals of Controlling Questions of Law
For the most part, Texas law allows a party to appeal a trial judge’s decision only after all trial court proceedings have concluded. In some circumstances, waiting this long to appeal a ruling wastes substantial time and resources. While it is not common, a trial judge will occasionally make a decision in a civil case on a disputed legal issue that controls the outcome of the case. The judge and all parties benefit from an immediate decision from a higher court about that legal issue.
For example, a number of years ago, it was unclear whether Texas law allowed a person to be held liable for negligence that caused another person extreme emotional distress. A defendant who was sued for negligently causing emotional distress would have argued early in the case that the cause of action did not exist under Texas law and the case should be dismissed. The plaintiff would have responded by arguing that the cause of action did exist and that the case should be allowed to proceed to trial. If the trial court ruled in the plaintiff’s favor, the case would proceed. However, if the case was appealed after trial and the appellate court held that the defendant was correct all along, then there would have been a significant waste of time by the plaintiff, defendant, court and members of the jury.
In 2001, House Bill 978 added a provision to Texas law allowing a Texas trial court to issue an order allowing for the immediate appeal of a mid-case trial court ruling, like the one described above, but only if all parties agreed the ruling involved a controlling question of law that might materially advance the ultimate termination of the case.
In 2011, the Texas Legislature expanded this statute to make it more useful. Before 2011, appealing a controlling question of law was possible only if both parties agreed to allow one party to take the appeal. In most cases, the party who had prevailed in the trial court had little motivation to agree to an appeal, thus thwarting the use of the statute. House Bill 274 refined the statute to eliminate the requirement that the parties agree to the appeal. Now, the question to allow an appeal is in the hands of the trial judge and appellate court.
