Reform Legislation in Texas, 1995-2017

Since 1995, TLR has worked to end lawsuit abuse and assure that an effective and equitable civil justice system is available to every Texan. Our goal is to make Texas civil courts balanced, fair and predictable.

Reform Legislation in Texas, 1995-2015

Since 1995, TLR has worked to end lawsuit abuse and assure that an effective and equitable civil justice system is available to every Texan. Our goal is to make Texas civil courts balanced, fair and predictable.

• 1995
• 1997
• 1999
• 2003
• 2005
• 2007
• 2011
• 2013
• 2015
• 2017

1995

Punitive Damages (S.B. 25) | Read the Bill

• Entitlement to punitive damages must be established by clear and convincing evidence, not merely a preponderance of the evidence.
• Punitive damages no longer imposed “as an example to others” but only if appropriate as punishment for wrongful conduct.
• Nominal actual damages cannot support an award of punitive damages unless the defendant acted with malice toward the plaintiff.
• Punitive damages capped at the greater of: (i) $200,000 or (ii) two times economic damages plus an amount not to exceed $750,000 for non-economic damages.
• No liability for punitive damages resulting from the criminal act of a third party except in unusual circumstances.

Proportionate Responsibility (S.B. 28) | Read the Bill

• Defendant is liable only for its own percentage of fault unless it is more than 50 percent responsible, in which case it could be required to pay the entire judgment and seek appropriate contributions from less-responsible defendants. Prior law allowed joint and several liability for all defendants having only 20 percent or more responsibility.
• Plaintiffs found more than 50 percent responsible barred from recovery in all cases. Prior law did not bar recovery by a plaintiff in a strict liability case unless the plaintiff’s percentage of responsibility exceeded 60 percent.
• Proportionate responsibility rules applied to all tort cases; repealing exceptions making the statute inapplicable to intentional tort cases.
• Responsibility allocation rules permit factfinder to mix negligence, product liability, fraud, or any kind of conduct in a single allocation array.
• Factfinder required to allocate to fault among all potentially responsible actors, including “responsible third parties.”

Property Owner Liability for Independent Contractor Acts (S.B. 28) | Read the Bill

• Property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including damage arising from the failure to provide a safe workplace, unless property owner exercises control over the manner in which the work is performed and had actual knowledge of the danger or condition that caused harm and failed to warn.

Frivolous Litigation (S.B. 31) | Read the Bill

• Signing a pleading or motion certifies that the action is not meant to harass, cause unnecessary delay, or accomplish an improper purpose.
• Person signing abusive document may be made to pay court costs; attorney’s fees and other costs arising from the frivolous action may be awarded if due diligence was not exercised by the person filing the pleading or motion.

Venue (S.B. 32) | Read the Bill

• Highly permissive venue laws allowing out-of-state corporations to be sued anywhere they had an agent is repealed.
• Generally applicable venue statute does not override other mandatory venue statutes.
• Each plaintiff in a multi-plaintiff case must independently establish venue.
• Trial court may transfer a case to another county of proper venue if maintaining the case in the original county would work an injustice and another county is more convenient.

Judicial Campaign Finance Limitations (S.B. 94) | Read the Bill

• Imposes disclosure requirements on the process of judicial fundraising.
• Imposes limits on the amount of funds that any individual or law firm can make to a judicial candidate, to offset the appearance of impropriety associated with unlimited campaign contributions by lawyers to judges.

Public Servant Liability and Volunteer Immunity (H.B. 383) | Read the Bill

• Public servants liability for job related acts or omissions generally limited to $100,000 for personal injury, death, and property damage claims.
• Prior law’s immunity coverage of state and local elected and appointed officials expanded to include uncompensated volunteers, board members, and commission members.

Deceptive Trade Practices-Consumer Protection Act (H.B. 668) | Read the Bill

• Act no longer applies to claims involving matters with a total value of more than $500,000, or more than $100,000 for claims based on a written contract if the plaintiff received independent legal advice prior to signing the contract (except for claims related to the consumer’s residence).
• Act can be used against professionals only when the claim involves misrepresentation, unconscionable conduct, or breach of warranty.
• Act is no longer available for personal injury or death claims.
• Mental anguish damages cannot be recovered under the Act unless the defendant acted knowingly, as defined by the Act.
• Actual damages can be trebled only if defendant acted knowingly.
• Amounts awarded for attorney fees, court costs, and prejudgment interest excluded from definition of “actual damages.”
• Any party can force mediation of a claim brought under the Act.
• A defendant can make an offer of settlement in response to a demand made by a plaintiff under the Act. If the offer is rejected but the final judgment is substantially the same as the offer, the plaintiff’s damages are limited to the amount of the offer.
• Cases brought under the Act are subject to the proportionate responsibility statute applicable to all other cases in Texas.

Insurance—Unfair Settlement Practices Act (H.B. 668) | Read the Bill

• Party to an action for unfair settlement practices can force mediation of a claim brought under the statute.
• A defendant can make an offer of settlement in response to a demand made by a plaintiff under the statute. If the offer is rejected but the final judgment is substantially the same as the offer, the plaintiff’s damages are limited to the amount of the offer.

Healthcare Providers’ Liability (H.B. 971) | Read the Bill

• Plaintiff in healthcare liability case must file an affidavit by a qualified physician detailing the specific acts or omissions alleged to have caused injury.
• Person offering an expert opinion based on accepted standards of medical care must be qualified to offer that opinion based on training and experience.
• If a medical liability claim is settled within 181 days after suit is filed, prejudgment interest applies only to past damages, not future damages.

1997

Interstate Forum Shopping (S.B. 220) | Read the Bill

• Forum non conveniens statute applies to individual claims, not entire actions.
• Multiple elements that previous had to be satisfied before a claim could be dismissed under the forum non conveniens statute were reduced to a narrower six-element test.
• Defendants do not have to consent to personal jurisdiction in the forum to which the case might be transferred.
• Exceptions prohibiting the transfer of cases brought under the Federal Employers Liability Act, arising from an airplane crash, or arising from exposure to asbestos (with many conditions) are eliminated.

Statute of Limitations (S.B. 220) | Read the Bill

• Action for injury or death brought in a Texas court by or on behalf of a non-resident of Texas must be brought within the applicable period of limitations of the state in which the injury-causing event occurred.

1999

Limits on Attorney General Contingent Fee Contracting (S.B. 178) | Read the Bill

• Awards of contingent legal fees for representing the State of Texas based on a percentage of the recovery are prohibited. Only hourly “lodestar” fees are permitted, which, if made contingent on success, may include a 4x premium to account for results obtained and risk taken.
• Attorney General may not award even an hourly based contingency fee contract without concurrence of either the Legislature or a special committee that includes the lieutenant governor and the speaker of the house when the Legislature is not in session.

Volunteer Healthcare Provider Immunity (S.B. 215) | Read the Bill

• “Good Samaritan” statute expanded to extend liability protection to doctors and other healthcare providers who donate time and skill to treat persons unable to afford medical care.

Lawsuits Against Firearms Manufacturers (S.B. 717) | Read the Bill

• Bans lawsuits by government entities against firearm manufacturers and sellers for damages resulting from, or for injunctive relief or abatement of a nuisance relating to, the lawful design, manufacture, marketing, or sale of firearms or ammunition to the public.

Former-Employee References (H.B. 341) | Read the Bill

• Employer who discloses information about a current or former employee is immune from civil liability for that disclosure unless it is proven by clear and convincing evidence that the information disclosed was known by that employer to be false at the time the disclosure was made or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed.

2003

Class Actions (H.B. 4) | Read the Bill

• Class action contingency fees abolished in favor of hourly rates based on hours worked, with possible 4x multiplier to reflect value of work done and amount of risk taken.
• When class actions are settled using coupons, the lawyers also must be paid in coupons in the same proportion as the class.
• Class actions within the jurisdiction of a state agency must be addressed by that agency before proceeding in court.
• Texas Supreme Court given jurisdiction in appeals from trial court class certification orders, and trial court proceedings are stayed pending appeal.

Punitive Damages (H.B. 4) | Read the Bill

• Unanimous jury verdict required to award punitive damages.

Proportionate Responsibility (H.B. 4) | Read the Bill

• Factfinder must assign percentages of fault to all potentially responsible persons, whether actually before the court as a party or not. (Prior law may have required that the “responsible third parties” be joined in the lawsuit as a party.) Fault assignments are not limited by the status of the person. Therefore, percentages of fault may be assigned to persons who are not parties to the case but, in actuality, share the blame, such as those who have settled, bankrupts, fugitive criminals, private and governmental entities entitled to immunity, employers covered by workers’ compensation, and persons beyond the court’s jurisdiction. Fugitive “John Doe” criminals can be named even if they cannot be identified by name.
• Fault assignments determine what percentage of a judgment the named parties must pay, but fault assignments as to nonparties have no legal effect on them.

Product Liability (H.B. 4) | Read the Bill

• In pharmaceutical cases, a rebuttable presumption is established in favor of manufacturers, distributors, or prescribers of pharmaceutical products in cases alleging failure to provide adequate warning about the product’s risk, if the defendant provided the government-approved warnings with the product.
• In other product cases, a rebuttable presumption is established in favor of manufacturers who comply with federal standards or regulatory requirements applicable to a product, provided the government standard was: (1) mandatory, (2) applicable to the aspect of the product that allegedly caused the harm, and (3) adequate to protect the public from risk.
• Sellers of products are not liable for a product defect if the seller does nothing more than acquire the product from the manufacturer and sell it to the customer, in cases where the manufacturer is subject to a Texas court’s jurisdiction.
• Fifteen-year statute of repose for most product liability claims.

Venue (H.B. 4) | Read the Bill

• Judicially created loophole in the 1995 statute requiring all plaintiffs to independently establish that suit is brought in the proper venue is closed.
• Immediate appeal is allowed of a trial court’s decision allowing multiple plaintiffs to join a case, if choice of venue is questioned by a defendant.

Offer of Settlement (H.B. 4) | Read the Bill

• Parties who make reasonable pretrial settlement offers may be entitled to recover attorney fees and other litigation-related costs when the opponent rejects the offer, but then recovers significantly less in the judgment.
• Process may be initiated only by defendant, in order to prevent the rule from becoming a one-way “defendant pay” rule because plaintiffs often are unable to pay—particularly in personal injury cases.
• Fees that may be assessed against a plaintiff can be the amount of all punitive damages plus non-economic damages plus one-half of actual damages.

Actual Damages (H.B. 4) | Read the Bill

• Limits recovery of damages for healthcare expenses to expenses actually incurred by the plaintiff; correcting a prior deficiency in the law that allowed a plaintiff to recover as “actual damages” amounts that were never paid for the plaintiff’s healthcare by the plaintiff or anyone else on the plaintiff’s behalf.
• Allows the factfinder to consider a plaintiff’s income taxes when awarding lost future income.
• Allows factfinder to consider that personal injury awards are not taxable.

Judgment Interest (H.B. 4) | Read the Bill

• Prohibits the assessment of prejudgment interest on an award of future damages.
• Lowers prejudgment and post-judgment interest rates to market rates, but not below 5 percent or above 15 percent (eliminating windfalls under the previous statute that set the floor at 10 percent).

Interstate Forum Shopping (H.B. 4) | Read the Bill

• Further simplifies forum non conveniens statute by eliminating additional barriers to dismissing or transferring a case having no connection to Texas.

Appeal Bonds (H.B. 4) | Read the Bill

• The bond a party must post to prevent collection of a judgment while that party pursues an appeal cannot exceed the lesser of $25 million, one-half of defendant’s net worth, or the total compensatory (not punitive) damages awarded to the plaintiff.
• Savings provision for circumstances where 50 percent of net worth or the total compensatory damages would still produce a bond that the defendant reasonably could not be post.

Multidistrict Litigation Panel (H.B. 4) | Read the Bill

• Judicial Panel on Multidistrict Litigation created and empowered to transfer factually similar cases (like lawsuits resulting from a bus accident or industrial spill) to a single court for coordinated pretrial proceedings, to lessen the burden of litigation on the court system, the parties, and the witnesses.

Seat Belt Evidence (H.B. 4) | Read the Bill

• Allows the factfinder to know whether a plaintiff was wearing a seat belt at the time of an accident for the purpose of determining the cause of damages and allocating fault, if relevant and otherwise admissible.

Healthcare Providers’ Liability (H.B. 4) | Read the Bill

• Plaintiff in healthcare liability case still must file an affidavit by a qualified physician detailing the specific acts or omissions alleged to have caused injury. Court’s decision on whether affidavit is sufficient is immediately appealable.
• Caps on noneconomic damages, such as pain and suffering, imposed in all medical cases. $250,000 per-claimant cap applies to doctors and nurses; a separate $250,000 cap applies to each healthcare institution on a per-defendant basis, subject to a $500,000 aggregate noneconomic damages cap in favor of all health care institutions in the case; resulting in a total cap of $750,000 in a single healthcare liability case.
• Limitation on personal liability of government employees extended to other healthcare professionals in government hospitals as well as nonprofit operators of city or hospital district hospitals.
• Provides additional limits under defined circumstances to nonprofit hospitals or systems that provide charity care and community benefits in an amount equal to at least eight percent of the net patient revenue of the hospital or system, and that provides at least 40 percent of the charity care provided in the county in which the hospital or system is located.

Air Migration of Particles “Trespass” Claims (H.B. 4) | Read the Bill

• Narrows a loophole being promoted by plaintiffs in environmental and toxic tort cases in which defendant’s molecules are supposedly “trespassing” and therefore creating liability without fault. Limits trespass actions for migration or transport of an air contaminant (other than odors) only on a showing of actual and substantial damage to the plaintiff.

Schoolteacher Liability (H.B. 4) | Read the Bill

• Provides liability protection for teachers against non-meritorious litigation related to actions taken by the teacher at school.

Volunteer Immunity (H.B. 4) | Read the Bill

• Provides additional protection from lawsuits for volunteers of charitable organizations and volunteer firefighters.

Limitation on Claims Against Design Professionals (H.B. 4) | Read the Bill

• In a suit against a registered architect or licensed professional engineer, re­quires the plaintiff, at the time suit is filed, to provide an affidavit by a third-party registered architect or licensed professional engineer setting forth the specific acts of negligence allegedly committed by the defendant.

2005

Asbestos and Silica Litigation Reform (S.B. 15) | Read the Bill

• Imposes medically sound diagnostic criteria for courts to use to determine if a plaintiff who has filed an asbestos or silica lawsuit has an actual disease caused by exposure to asbestos or silica.
• Allows transfer of all asbestos and silica cases pending in a Texas state court to a multidistrict litigation court for coordinated pretrial proceedings.
• Moved pending cases by unimpaired plaintiffs to an “inactive docket” managed by a multidistrict litigation court, where the cases remain pending until the plaintiff establishes an actual impairment under the statutory medical criteria. New cases filed by unimpaired plaintiffs are dismissed if medical criteria are not met, but these cases may be re-filed later if actual impairment can be demonstrated.
• Stops “bundling” of hundreds of cases by allowing only one unrelated plaintiff per trial.
• Limits the use of diagnostic materials obtained through mass x-ray screenings sponsored by lawyers.
• Assures fairness by extending statute of limitation to permit lawsuits to be filed within two years after diagnosis of actual impairment

Interstate Forum Shopping (H.B. 755) | Read the Bill

• Prohibition on dismissing a lawsuit that is based on an act that occurred in Texas is deleted from forum non conveniens statute.

2007

Venue in Dredging Litigation (H.B. 1602) | Read the Bill

• Most Texans can file a lawsuit in his or her home county only when the defendant has no place of business in Texas and the accident did not occur within this state. The 1995 venue legislation, however, made an exception from this generally applicable venue statute for maritime cases brought under the Jones Act, which could be filed in the plaintiff’s county of residence. This exception to the Texas general venue statute generated an explosion of lawsuits filed in several counties along the Texas border against dredgers that was cured by H.B. 1602 in 2007.

Asbestos and Silica Litigation Reform (S.B. 749) | Read the Bill

• Postponement of trial after remand by MDL pretrial court is prohibited when the plaintiff is suffering from asbestos-caused or silica-caused cancer or other malignant disease (keeping with intent of 2005 legislation).

2011

Texas Windstorm Insurance Association (H.B. 3, 1st C.S.) | Read the Bill

• Implements procedural steps that must be taken, and an appraisal process that must be used, by a Texas Windstorm Insurance Association (TWIA) policyholder to pursue a claim against TWIA for failure to pay, or timely pay, a claim.
• A policyholder must file a claim under the policy not later than the first anniversary date on which the damage to the property was done, which may be extended for a period not exceeding 180 days by the commissioner of the Texas Department of Insurance (TDI) for a claimant showing good cause. Prior law had no deadline for filing a claim.
• Not later than the 60th day after the date TWIA receives the necessary information to make a determination on the claim, it must provide the claimant with notice that the association has: (i) accepted coverage for the claim in full, (ii) accepted coverage in part and rejected it in part, or (iii) denied coverage in full.
• If a policyholder disputes the amount of loss that TWIA will pay for a covered claim, the policyholder may demand an appraisal not later than the 60th day after the claimant has received notice from TWIA stating the amount the association will pay. The claimant may get a 30 day extension to demand appraisal upon showing good cause.
• In most instances, the appraisal process should resolve the dispute. Only after the appraisal process is complete may a TWIA policyholder pursue other legal remedies.

Trespasser Liability (S.B. 1160) | Read the Bill

• Texas common law provides that a property owner owes no duty of care to a trespasser, except in very narrow and well-defined circumstances. S.B. 1160 codifies the common law to preempt courts from adopting liberal provisions of the new Restatement (Third) of Torts, which would dramatically expand trespasses’ rights to sue landowners when injured on the landowner’s property.

Frivolous Litigation (H.B. 274) | Read the Bill

• Texas Supreme Court must “adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence,” thus allowing courts to evaluate and rule on legal issues that do not require discovery or factual development.
• Losing party must pay the prevailing party’s litigation costs.

Offer of Settlement (H.B. 274) | Read the Bill

• Attorney fees that may be assessed against a plaintiff who rejects a settlement offer that is better than the ultimate judgment may be the full amount of any judgment recovered by the plaintiff. Prior law limited the amount of attorney fees that could be awarded to the party who made the settlement offer.

Expediting Small Civil Cases (H.B. 274) | Read the Bill

• Requires the Supreme Court to provide rules to expedite civil cases having less than $100,000 in dispute.
• Supreme Court rules limit pretrial discovery, require a trial setting within six months, and limit the amount of time that may be used to try the case.

Appeals of Controlling Questions of Law (H.B. 274) | Read the Bill

• Refines existing statute allowing for the mid-case appeal of a controlling question of law to eliminate the requirement that the parties agree to the appeal. Instead, the question to allow an appeal is within the hands of the trial judge and appellate court.

Barratry (H.B. 1716) | Read the Bill

• A lawyer who procures representation of a person through barratry (“ambulance chasing”) may be required to disgorge to the represented person the entire fee paid to the lawyer.

2013

Asbestos and Silica Litigation Reform (H.B. 1325) | Read the Bill

• Unimpaired plaintiffs’ cases sitting on the “inactive docket” must be dismissed in an orderly process provided by the MDL pretrial court.
• Dismissed cases may be re-filed if the plaintiff can demonstrate compliance with applicable medical criteria. Re-filed cases are pursued as if never dismissed.

Barratry (H.B. 1711) | Read the Bill

• 2011 barratry statute amended to allow civil barratry action against ambulance chasing attorney even if attorney voluntarily forfeits the attorney fee contract.

Subrogation (H.B. 1869) | Read the Bill

• Changes the way healthcare plans are reimbursed following liability suits from funds recovered by the injured party. Under prior law, a person could be injured, sue for damages, receive a settlement, and then be required to pay the entire settlement to their health insurer as reimbursement for medical expenses paid for by the insurer, thus reducing the incentive for an injured person to settle for a reasonable sum. This legislation allocates the recovered funds between the plaintiff, his or her attorney, and the insurer.

Probate (H.B. 2380) | Read the Bill

• Clarifies the law regarding “no-contest clauses” contained in many wills and trust documents (which provide that an heir who challenges a will cannot inherit under the will) by providing that a will or trust containing a no-contest clause is enforceable unless a person challenging the will or trust proves that the challenge is brought “in good faith and with just cause.” Unless the challenge is brought in good faith and with just cause, the no-contest clause will be enforced.

2015

Asbestos transparency (H.B. 1492) | Read the Bill

• A plaintiff in an asbestos case must file claims with all available asbestos bankruptcy trusts, and provide the trust-claim documents to the litigation defendants, before the case can be presented to a judge or jury. This file-and-disclose requirement reverses the current practice employed by plaintiff’s attorneys of pursuing litigation before filing trust claims. It forces asbestos claimants to provide a true and complete picture of their exposure histories to litigation defendants before the case proceeds to trial.

Net worth discovery (S.B. 735) | Read the Bill

• Protects private financial information from disclosure in litigation by allowing pretrial discovery of a defendant’s net worth to support a claim for punitive damages only if the plaintiff convinces the trial court that she has a substantial likelihood of succeeding on her claim for punitive damages. Discovery of financial information is no longer permitted based on the mere pleading of a claim for punitive damages.
• When discovery of financial information is allowed, the plaintiff must use the least restrictive means available to obtain that information.

2017