as of January 27, 2017

2,029 Bills filed through today
1,288 House Bills
620 Senate Bills
121 Resolutions
Bill filing deadline is Friday, March 10
Session ends Monday, May 29 

Today ends the third week of the 85th Texas Legislature.  Senate committees were appointed last week, and House committees are expected by the middle of February.  The hot topic this week is the state budget. The only bill the Legislature is required to pass is the state budget, and the price of oil and somewhat lower sales tax revenue has created a gap between current spending and expected revenue.

Senate Finance began meeting this week following Comptroller Glenn Hegar’s revenue estimate of 104.9 billion.  To balance the budget with that number, the Legislature will need to cut at least 4 billion from the 2018-2019 budget. In addition, there’s a gap between estimated income and projected expenditures in the state budget between now and the end of this fiscal year on August 31, 2017. Chairman Jane Nelson (R-Flower Mound) filed the senate appropriations bill, SB1, on January 17. SB1 contains some carefully crafted reductions, plus an across-the-board 1.5% reduction in everything but the Foundation School Program.

Following John Otto’s retirement from the House, Representative Drew Darby (R-San Angelo) is the current front-runner expected to take over as Chairman of House Appropriations.

ADA “Drive-by” Lawsuits
Seliger
Smithee

Similar to patent trolling, some plaintiff’s lawyers have developed a practice of sending demand letters to Texas premises owners threatening to sue them under the Americans with Disabilities Act if they don’t pay a specified “settlement” amount. These demands may be groundless or involve minor violations. TCJL proposes that property owners be notified of potential violations and be given a right to cure. We also propose to entrust the Attorney General with enforcement authority over bad faith ADA claims.

Eminent Domain – Coalition for Critical Infrastructure

Legislation will be introduced this session to shift liability for attorney’s fees and litigation costs to an entity with eminent domain authority if a final adjudicated award exceeds the entity’s offer to the property owner by more than a specified percentage. The proposal will encourage more litigation, increase the cost to taxpayers and consumers for critical infrastructure and services, and divert resources to litigation that should be used to compensate landowners and invest in Texas communities. TCJL seeks equity and fairness in the eminent domain process without creating new incentives for litigation.

Chapter 95 – Premises Owner Liability
SB 621 by Creighton
HB 1315 by King, Phil

Under the 1995 tort reforms, a property owner cannot be held liable for the actions of an independent contractor if the owner does not control the contractor’s work. A recent Texas Supreme Court case held that based on the language of the statute, this provision only applies to the owner, not the owner’s employee. TCJL proposes to amend the definition of “property owner” to include an employee of the owner.

Medical Expense Affidavits
Schofield

Current law provides that only medical expenses actually “paid or incurred” are reimbursable in a lawsuit. The law establishes a procedure for the plaintiff to prove up medical expenses by affidavit of a records custodian, but the law does not require the custodian to have personal knowledge of the contents of the record. The current procedure also does not give a defendant adequate time to contest an affidavit if the defendant believes it does not reflect the “paid or incurred” or amount. TCJL will seek corrective legislation to address these problems this session.

Anti-SLAPP – Texas Citizens Participation Act

Broad language currently allows TCPA to be overused in civil litigation, reaching into unforeseen areas most likely not intended by the legislature.  Several appellate justices have written that the statute is too broad and can be interpreted far beyond the stated legislative intent.  These judges have called upon the legislature to clarify intent and provide guidance.  TCJL will seek to address the unintended use of this statute.

Caps on Non-Economic Damages (DEFENSE)

Legislation has been filed to index the $250,000 cap on non-economic damages in a health care liability claim using the consumer price index. This change would significantly increase the cap and undermine the 2003 reforms that have successfully enhanced access to health care in Texas. TCJL will vigorously oppose this proposal.

Uniform Foreign Judgments

A recent decision by the U.S. Fifth Circuit Court of Appeals held that a foreign government could enforce a judgment rendered by a foreign court against a Texas business, despite the fact that basic due process rights were not afforded the business in the foreign venue. Texas should adopt the Uniform Foreign Judgments Act to address this problem and assure that Texas businesses cannot be treated unfairly in international transactions.

Hail Litigation

Litigation abuses in mass hailstorm litigation continue to threaten the integrity of the insurance markets and the fair and prompt resolution of hailstorm claims. TCJL will serve as a resource to end these abuses and restore fairness to the claims process.

Attorney Drug Advertising

Some plaintiff’s attorneys attempt to solicit clients by targeting people taking certain pharmaceutical products with misleading television advertising.  These ads can frighten patients and cause them to stop taking their medications without physician consultation, sometimes with dire consequences. TCJL proposes that attorney advertising be required to include a recommendation to consult the consumer’s physician before discontinuing a medication. TCJL also proposes reviewing barratry laws to assure that they are adequate to prohibit aggressive solicitation using personally identifying health care information.  At this time, this issue may be most appropriate for an interim study.

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