November 1, 2016
Status of Interim Charges
As you may recall, the Lt. Governor and the Speaker of the House issued several civil justice system-related (several of which are listed below) to be studied by a designated Senate or House committee prior to the 2017 legislative session. To date, the Legislature has held hearings on all but one of the monitored charges (i.e., the House Committee on Insurance as yet to conduct a hearing on the weather-related property insurance claims charge). For those who may be interested in watching any of the charge hearings listed below, I have included links to the video streams, hearing notices, and witness lists for each charge. The interim charge that has not been scheduled for hearing will not have any hyperlinks listed below it.
· Senate Committee on State Affairs
o Religious Liberty: Examine measures to affirm 1st Amendment religious liberty protections in Texas, along with the relationship between local ordinances and state and federal law. Make recommendations to ensure that the government does not force individuals, organizations or businesses to violate their sincerely held religious beliefs. (testimony begins around the 00:45 mark)
o Judicial Matters: Examine the need to adjust Texas judicial salaries to attract, maintain, and support a qualified judiciary capable of meeting the current and future needs of Texas and its citizens. Study and recommend whether Texas should delink legislators' standard service retirement annuities from district judge salaries. Examine the effect of eliminating straight-party voting for candidates for judicial office and make recommendations to ensure candidates are given individual consideration by voters. (testimony begins around the 00:30 mark)
· Senate Committee on Business and Commerce
o Hail Storm: Monitor the number of lawsuits related to property claims filed as a result of multiple hail storms and weather related events across Texas. Examine negative consumer trends that may result in market disruption such as higher premiums and deductibles, less coverage, non-renewals, and inability to secure coverage due to insurance carrier withdrawal from the state and make recommendations on legislative action needed. (testimony begins around the 57:30 mark)
o Texas Prompt Pay Law: Study the impact of the penalty calculations under the current prompt payment of health care claim laws and regulations, including comparing penalties in other states and late payment penalties in Texas for other lines of insurance. Evaluate whether unregulated billed charges is the appropriate basis for determining penalty amounts and make recommendations for statutory changes, if needed. (testimony begins around the 1:10 mark)
· Senate Committee on Health and Human Services
o Wrongful Birth Cause of Action: Examine the cause of action known as “wrongful birth.” The study should examine (1) its history in Texas, (2) its effect on the practice of medicine, and (3) its effect on children with disabilities and their families. Examine related measures proposed or passed in other states. (testimony begins around the 5:29:30 mark)
· House Committee on Business and Industry
o Shareholder Rights and Remedies: Study the impact of recent Texas cases related to the rights and remedies of shareholders of Texas corporate forms, including the impact of those decisions on the legal rights of both Texas corporations and shareholders and any impact on the Texas business climate. (testimony begins around the 1:32:45 mark)
· House Committee on Insurance
o Weather-Related Property Insurance Claims: Examine available data on the cost of weather-related property insurance claims and the incidence of litigation of these claims. Study whether these data reveal trends or patterns over time and what the drivers of these trends might be. Identify impacts on the property insurance market and on consumers from claims litigation.
· House Committee on Judiciary and Civil Jurisprudence
o Application of Foreign Law to Family Law Cases: Examine whether family law statutes and those affecting the parent-child relationship provide sufficient guidance to Texas judges as to the appropriate application of foreign law. Consider whether additional statutory provisions regarding application of foreign law could provide useful guidance while preserving judges' ability to consider the circumstances of each case and not needlessly prolonging litigation. (testimony begins around the 1:37:45 mark)
o Pro Se Litigants: Evaluate recent efforts to make the court system more accessible for self-represented litigants, and make recommendations on how the courts can more effectively interact with unrepresented parties and increase access to legal information, assistance, and representation. Examine similar efforts in other states. (testimony begins around the 39:45 mark)
o Jury Service: Examine issues related to jury service in Texas, including participation and response rates, the accuracy of jury wheel data, and possible methods to improve response and participation. (testimony begins around the 20:30 mark)
o Expedited Actions: Study the implementation of the expedited action provisions of (82R), and examine whether these provisions have been effective in encouraging the prompt and efficient resolution of cases. (testimony begins around the 1:10 mark)
Any committee reports on the interim charges will be published prior to the start of the 2017 session. As usual, I’ll keep monitoring the Legislature and advise everyone if/when additional hearings are scheduled and final reports are released to the public.
SBOT Section Legislative Proposals
Several SBOT sections submitted legislative proposals to be included in the SBOT’s legislative package. Of the proposals submitted, the following are noteworthy from a civil trial and appellate standpoint:
- Family Law Section – Appeals in Family Law Cases
The Family Law section submitted several proposals, only one of which deals with appeals. The appeals proposal includes the following proposed amendments/revisions to the Family Code:
- Section 9.007 would be amended to create a “grace period” (30 days after judgment or 30 days after post-judgment motion overruled, whichever is later) in which the enforcement remedies in the Family Code may not be used so that the judgment debtor may supersede property division orders.
- Section 6.709 would be amended to provide the trial court with express authority to (1) enjoin a judgment debtor from dissipating property awarded to the judgment creditor and (2) suspend enforcement of its property division order while the case is on appeal provided that reasonable steps are taken by the trial court to protect the judgment creditor from the judgment debtor's dissipation of the property.
- Section 6.711 would be amended to clarify that (1) a trial court is required to make findings and conclusions as to the character and value of all assets, liabilities, claims, and offsets on which disputed evidence has been presented, and; (2) the findings and conclusions required by Section 6.711 are in addition to the findings and conclusions allowed under the rules of civil procedure.
- Section 109.001 would be amended to provide the trial court with express authority to enjoin a party from molesting or disturbing the peace of the child or another party.
- Sections 6.709 and 109.001 would be amended to: (1) extend the trial court's jurisdiction over motions for temporary orders to sixty days after all eligible parties have filed a notice of appeal; and (2) clarify that the trial court retains jurisdiction to not only enforce its temporary orders during an appeal, but also to modify its temporary orders when a material and substantial change in circumstances has occurred and modification would be equitable and necessary to preserve the property or to protect the parties.
- Section 109.002 would be amended to clarify that an appeal of an order issued for the return of a child under The Hague Convention is governed by Family Code §152.314 and would be handled as an accelerated appeal.
- Section 154.130 would be amended to change the deadline for requesting findings of fact and conclusions of law when an order for child support is made (i.e., from 10 days after the hearing to no later than 20 days after order) and clarify that the trial court is not required to make findings as to the child support obligee's net resources unless evidence is offered as to the net resources.
- ADR/Collaborative Law Sections – Collaborative Law Extension to Civil Cases
The ADR and Collaborative Law proposal would extend collaborative law principles to general civil litigation. TTLA, TADC, SBOT Litigation Section, and TEX-ABOTA opposed the proposal, as they have done in previous legislative sessions. (Note: The proposal failed to receive the support of the SBOT Board of Directors and will not be included in its legislative package; however, proposed legislation addressing the topic will likely be filed.)
You can review the complete list of the section proposals included in the SBOT legislative program here: .
Judicial Council Legislative Proposals
The Judicial Council is considering several legislative proposals that have policy implications in the administration of justice. Some of the being considered include the following:
- Adequate funding of the courts (special focus on judicial education)
- Additional state funding for the increased cost of indigent defense
- Adequate funding for civil legal aid
- Increase in judicial compensation and recommendations of Judicial Compensation Commission
- Consolidation of civil filing fees, standardization of certain service fees, and standardization of costs for electronic copies of court documents
- Repeal or modify statutes requiring sensitive data in court filings
Judicial Compensation Commission Recommendations
The Judicial Compensation Commissions will be making the following recommendations to the Legislature:
- 10.2 % pay raise for state judges and justices
- De-link judicial salaries from legislative pensions
- Automatically include a judicial compensation adjustment in the baseline budget