Highlights This Week
Pandemic Liability Protection Act Clears House Committee
SB 6 passed the Senate 29-1 on April 8, and cleared House Judiciary on April 28 with a unanimous bipartisan vote of 8-0. It will now head to House Calendars. The substitute makes some technical changes and removes the sections of the bill related to Chapter 79, CPRC. These provisions would have triggered the emergency room standard of care in any future declared statewide disaster, not just a pandemic-related disaster. Chairman Leach decided to remove this language in response to objections by members of the committee and others over the scope of the bill. Senator Hancock and Rep. Leach also agreed on additional language to clarify that a person who in good faith substantially complies with at least one conflicting government-promulgated order, rule, or declaration receives the liability protections of the bill. Please join TCJL in once again thanking Sen. Hancock, Rep. Leach, and their staffs for their tireless efforts to garner bipartisan support for this important legislation.
Eminent Domain
Efforts continue on HB 2730, the comprehensive eminent domain reform bill. Four joint authors have signed onto the bill along with Chairman Deshotel, including Chairmen Burns, Geren, Canales, and Ken King. Chairman DeWayne Burns has been the leader on this issue for the last three sessions, and continues to play a major role. HB 2730 has now reached a point that most stakeholders support the bill, including the Coalition for Critical Infrastructure, Texas Farm Bureau, Texas Association of Realtors, Texas Oil & Gas Association, Association of Electric Companies of Texas, and the Texas Pipeline Association. Discussions are ongoing with stakeholders not supporting the current version on HB 2730.
Trucking Litigation Reform Clears Texas House
HB 19 by House Judiciary & Civil Jurisprudence Chair Jeff Leach (R-Plano) passed the House earlier today, but not before the bill was amended on second reading to make a significant change to the type of evidence that may be admitted in the first phase of a bifurcated trial. As it came out of committee, CSHB 19 would have limited the first phase to the employee defendant’s liability for the accident and compensatory damages. The amendment, offered by Rep. Eddie Lucio III (D-Brownsville), allows the plaintiff to introduce evidence in the first phase of a bifurcated trial in regard to a defendant employer who is regulated by the Motor Vehicle Safety Improvement Act of 1999 or Chapter 644, Transportation Code.
HB 19 now heads to the Senate, where Senator Larry Taylor (R-Friendswood) has filed the companion (SB 17). SB 17 was referred to the Senate Transportation Committee.
Remote Court Proceedings Bill Moves Forward in House
Legislation authorizing trial courts to mandate remote proceedings is moving forward in the Texas House, but not without substantial changes to the filed version of the bill. As originally filed, HB 3611 by Rep. Leach and SB 690 by Senator Zaffirini adds §21.013, Government Code, to authorize a court of this state, either on its own motion or on motion of a party, to (1) conduct a hearing or other proceeding remotely without consent of the parties (except where consent is constitutionally required), and (2) allow a judge, party, attorney, witness, court reporter, juror, or any other individual to participate in a remote proceeding, including a deposition, hearing, trial, or other proceeding. If a jury trial is to be conducted remotely, the court shall consider on the record any motion or objection related to proceeding with the trial not later than 7 days before trial, or if a motion or objection is made within 7 days before trial, as soon as practicable. The bill further requires the court to ensure that prospective jurors have access to the necessary technology, and the court to provide reasonable notice to the public if the court will hold a proceeding away from the court’s usual location. Finally, the bill repeals §30.012(b), CPRC, which permits a witness deposition by electronic means only if it is conducted before the commencement of trial.
After receiving significant pushback from criminal, family law, and civil trial lawyers, as well as from advocates for children and the disabled, a committee substitute made significant changes in the bill.
CSHB 3611 was voted favorably as substituted from House Judiciary on 4/28. SB 690 has been heard in Senate State Affairs and remains pending.
Royalty Suspense
SB 1259 by Birdwell/HB 3262 by Smith: Provides that the payee of a royalty does not have a cause of action against the payor for withholding royalty payments in the event of a title dispute, unless the contract requiring payment requires otherwise. HB 3262 was voted unanimously 8-0 from House Judiciary & Civil Jurisprudence on April 8 and set on the House Calendar on April 27. It was postponed until May 6, waiting for the SB 1259 to catch up. SB 1259 was voted unanimously 9-0 from Senate Natural Resources & Economic Development on April 23, and voted unanimously 31-0 from the Senate on April 27. It is now in House Judiciary & Civil Jurisprudence.
Paid or Incurred
SB 207 by Schwertner/HB 1617 by Bonnen: By a 19-12 margin, the Texas Senate has passed SB 207 by Senator Charles Schwertner (R-Georgetown). This heavily negotiated bill addresses a loophole in the paid or incurred statute (§41.0105, CPRC) by which a plaintiff’s lawyer can get an agreement from a health care provider not to submit medical expenses to a third-party payor in a personal injury lawsuit. This practice allows the plaintiff to submit as evidence only the billed chargemaster rates, which no one actually pays. As amended on the Senate floor, SB 207 now provides a safe harbor from discovery for a health care provider that submits either the amounts actually paid by third-party payors, such as private insurers, Medicare, or workers’ compensation insurance, or, in the absence of actual payments, 150% of the workers’ compensation reimbursement rate for the same procedure. SB 207 further addresses a glaring abuse of §18.001, CPRC, which allows a plaintiff to submit health care expenses in an affidavit certified by a billing clerk but does not allow a defendant to file a counter-affidavit contesting the reasonableness of the charges without hiring an expert. To make matters worse, trial judges routinely strike counter-affidavits given by medical billing experts, and even physicians with knowledge of particular procedures. SB 207 addresses these abuses by eliminating the counter-affidavit and substituting a notice to controvert in its place. It also provides that if the defendant serves notice to controvert, the plaintiff’s affidavit comes in to evidence as a business record, not an opinion of the reasonableness of the charges. As previously noted, if the health care provider submits actual payments or 150% of workers’ comp, a defendant would not have the ability to do any further discovery from the provider. HB 1617 was heard and left pending in House Judiciary on April 6. SB 207 passed the Senate 19-12 on April 20. It was referred to House Judiciary on April 26.
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TCJL Tracking Report 4-30-21
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includes links to 629 bills tracked by TCJL
