HOUSE JOURNAL

SEVENTY-EIGHTH LEGISLATURE, REGULAR SESSION

PROCEEDINGS

THIRTY-SIXTH DAY — WEDNESDAY, MARCH 19, 2003

The house met at 10 a.m. and was called to order by the speaker.

The roll of the house was called and a quorum was announced present (Recordi50).

Present — Mr. Speaker; Allen; Alonzo; Bailey; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Eiland; Eissler; Elkins; Ellis; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Telford; Thompson; Truitt; Turner; Uresti; Van Arsdale; Villarreal; West; Wilson; Wise; Wohlgemuth; Wolens; Wong; Woolley; Zedler.

Absent — Edwards; Solis.

The invocation was offered by Reverend David Meeker Williams, pastor, Park Place Methodist Church, Houston, as follows:

O God, you are the one who, out of nothing, brought everything that is; who, out of the night, made to rise this stunning new day. You are the one who always creates light where there is darkness. You create hope where there is only despair and new life where there is no life.

But Lord, this is a day of deep anxiety for your children throughout this global community–an increasingly small community where all wars are civil wars and every issue is a family issue.

Today we ask that you open us to your presence and direct our powers and our passions, so that in our little part of the world we might be partners with you in creating life where there is death, in putting flesh of action on bare-boned intentions, in lighting fires against a dark night of indifference, and in throwing

(Edwards now present)

CAPITOL PHYSICIAN

The speaker recognized Representative Naishtat who presented Dr. M. W. Blackstock of Austin as the "Doctor for the Day."

The house welcomed Dr. Blackstock and thanked him for his participation in the Physician of the Day Program sponsored by the Texas Academy of Family Physicians.

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 1).

HR 530 - ADOPTED
(by Griggs)

Representative Griggs moved to suspend all necessary rules to take up and consider at this time HRi530.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 530, Welcoming Leadership Northeast Class of 2003 from Tarrant County to the Capitol on March 19, 2003.

HR 530 was read and was adopted without objection.

On motion of Representative Truitt, the names of all the members of the house were added to HRi530 as signers thereof.

HR 379 - ADOPTED
(by Flynn)

Representative Flynn moved to suspend all necessary rules to take up and consider at this time HRi379.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 379, Recognizing March 19, 2003, as Van Zandt County Day at the State Capitol.

HR 379 was adopted without objection.

INTRODUCTION OF GUESTS

The speaker recognized Representative Flynn who introduced a delegation from Van Zandt County.

662 78th LEGISLATURE — REGULAR SESSION

HR 508 - ADOPTED
(by Hopson)

Representative Hopson moved to suspend all necessary rules to take up and consider at this time HRi508.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 508, Recognizing March 18, 2003, as Pharmacy Day at the State Capitol.

HR 508 was adopted without objection.

HR 507 - ADOPTED
(by R. Cook)

Representative R. Cook moved to suspend all necessary rules to take up and consider at this time HRi507.

(Hill in the chair)

The motion prevailed without objection.

The following resolution was laid before the house:

HR 507, Recognizing March 19, 2003, as Firefighters Day at the State Capitol.

(Speaker in the chair)

HR 507 was adopted without objection.

HR 361 - ADOPTED
(by Allen)

Representative Allen moved to suspend all necessary rules to take up and consider at this time HRi361.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 361, In memory of J. C. Swadley of Grand Prairie.

HR 361 was unanimously adopted by a rising vote.

(Solis now present)

HR 529 - ADOPTED
(by Hughes)

Representative Hughes moved to suspend all necessary rules to take up and consider at this time HRi529.

The motion prevailed without objection.

The following resolution was laid before the house:

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 663

HR 529, Honoring M. O. "Mo" and Ada Wells of Scroggins on their 80th wedding anniversary.

HR 529 was adopted without objection.

HCR 106 - ADOPTED
(by Homer)

Representative Homer moved to suspend all necessary rules to take up and consider at this time HCRi106.

The motion prevailed without objection.

The following resolution was laid before the house:

HCR 106, Recognizing March 19, 2003, as Paris-Lamar County Day at the State Capitol.

HCR 106 was adopted without objection.

BILLS AND RESOLUTIONS SIGNED BY THE SPEAKER

Notice was given at this time that the speaker had signed bills and resolutions in the presence of the house (see the addendum to the daily journal, Signed by the Speaker, House List No. 14).

HR 509 - ADOPTED
(by Stick, Rodriguez, Naishtat, Keel, Baxter, et al.)

Representative Stick moved to suspend all necessary rules to take up and consider at this time HRi509.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 509, Honoring the Austin Fire Department.

HR 509 was adopted without objection.

INTRODUCTION OF GUESTS

The speaker recognized Representative Stick who introduced members of the Austin Fire Department.

HR 261 - ADOPTED
(by Kuempel)

Representative Kuempel moved to suspend all necessary rules to take up and consider at this time HRi261.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 261, In memory of Beatrice Ceballos Longoria of Seguin.

(Hunter in the chair)

HR 261 was unanimously adopted by a rising vote.

664 78th LEGISLATURE — REGULAR SESSION

HR 336 - ADOPTED
(by Kuempel)

Representative Kuempel moved to suspend all necessary rules to take up and consider at this time HRi336.

The motion prevailed without objection.

The following resolution was laid before the house:

HR 336, In memory of Brent Kyle Bischoff of Corpus Christi.

(Speaker in the chair)

HR 336 was unanimously adopted by a rising vote.

COMMITTEE MEETING ANNOUNCEMENT

The following committee meeting was announced:

Ways and Means, meeting is canceled for today.

MAJOR STATE CALENDAR
SENATE BILLS
THIRD READING

The following bills were laid before the house and read third time:

SB 104 ON THIRD READING
(Allen, Capelo, Pitts, Lewis, and Nixon - House Sponsors)

SB 104, A bill to be entitled An Act relating to the regulation and enforcement of the practice of medicine by the Texas State Board of Medical Examiners.

A record vote was requested.

SB 104 was passed by (Record 51): 147 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen; Alonzo; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Canales; Capelo; Casteel; Castro; Chavez; Chisum; Christian; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Ellis; Farabee; Farrar; Flores; Flynn; Gallego; Garza; Gattis; Geren; Giddings; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hochberg; Hodge; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Lewis; Luna; Mabry; Madden; Marchant; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Mercer; Merritt; Miller; Moreno, J.; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis;

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 665

Present, not voting — Mr. Speaker(C).

Absent — Bailey.

MAJOR STATE CALENDAR
HOUSE BILLS
SECOND READING

The following bills were laid before the house and read second time:

CSHB 4 ON SECOND READING
(by Nixon, Allen, Capelo, et al.)

CSHB 4, A bill to be entitled An Act relating to reform of certain procedures and remedies in civil actions.

Amendment No. 1

Representative Nixon offered the following amendment to CSHBi4:

Floor Packet Page No. 1

Amend CSHB 4 as follows:

(1)iiOn page 2, line 3, strike "and".

(2)iiOn page 2, line 4, between "jurisdiction" and the period, insert:

"; and

(D)iihas rulemaking authority involving the subject matter of the disputed claim".

(3)iiOn page 8, strike lines 19 and 20 and substitute:

SECTIONi1.03.iiSection 22.225, Government Code, is amended by amending Subsections (b) and (d) and adding Subsection (e) to read as follows:

(4)iiOn page 9, between lines 18 and 19, insert:

(e)iiFor purposes of Subsection (c), one court 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.

(5)iiOn page 9, line 19, strike "Sections 51.014(a) and (b)" and substitute "Sections 51.014(a), (b), and (c)".

(6)iiOn page 11, line 3, strike "Subsection (a)(3)" and substitute "Subsection (a)(3), (5), or (8)".

(7)iiOn page 11, between lines 4 and 5, insert:

(c)iiA denial of a motion for summary judgment, special appearance, or plea to the jurisdiction described by Subsection (a)(5), (7), or (8) is not subject to the automatic stay [of the commencement of trial] under Subsection (b) unless the motion, special appearance, or plea to the jurisdiction is filed and requested for submission or hearing before the trial court not later than the later of:

(1)iia date set by the trial court in a scheduling order entered under the Texas Rules of Civil Procedure; or

(2)iithe 180th day after the date the defendant files:

(A)iithe original answer;

666 78th LEGISLATURE — REGULAR SESSION

(B)iithe first other responsive pleading to the plaintiff's petition; or

(C)iiif the plaintiff files an amended pleading that alleges a new cause of action against the defendant and the defendant is able to raise a defense to the new cause of action under Subsection (a)(5), (7), or (8), the responsive pleading that raises that defense.

(8)iiOn page 11, strike lines 5 and 6 and substitute:

SECTIONi1.05.iiSection 22.001, Government Code, is amended by adding Subsection (e) to read as follows:

(e)iiFor purposes of Subsection (a)(2), one court 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.

SECTIONi1.06.iiThis article applies only to a suit commenced on or after the effective date of this article.

(9)iiOn page 18, strike lines 25 and 26 and substitute:

SUBCHAPTER F. CONSOLIDATION OF MULTIDISTRICT LITIGATION FOR PRETRIAL PROCEEDINGS

(10)iiBeginning on page 32, strike from line 22 through page 33, line 13, and renumber the subsequent SECTIONS of ARTICLE 4 appropriately.

(11)iiOn page 46, strike line 13 and substitute:

ARTICLE 9. BENEVOLENT GESTURES

SECTIONi9.01.iiSection 18.061(c), Civil Practice and Remedies Code, is repealed.

SECTIONi9.02.iiThis article applies only to the admissibility of a communication in a proceeding that begins on or after the effective date of this article. The admissibility of a communication in a proceeding that began before the effective date of the article is governed by the law applicable to the admissibility of the communication immediately before the effective date of this article, and that law is continued in effect for that purpose.

(12)iiOn page 46, line 25, strike "nonprofit".

(13)iiOn page 47, strike lines 12 and 13 and substitute: Section 1396n(c)), as amended; [, or]

(xii)iia nursing home; or

(xiii)iia chiropractor.

(14)iiOn page 47, lines 26 to 27, strike "practice or procedure".

(15)iiOn page 50, strike lines 15 through 20 and substitute:

(22)ii"Hospital system" means a system of hospitals located in this state that are under the common governance or control of a corporate parent.

(16)iiOn page 50, line 23, strike "Section 1.04" and substitute "Sections 1.04 and 1.05".

(17)iiOn page 51, strike lines 2 through 6 and substitute:

(b)iiNotwithstanding Subsection (a) of this section, in the event of a conflict between this Act and Section 101.023, 102.003, or 108.002, Civil Practice and Remedies Code, those sections of the Civil Practice and Remedies Code control to the extent of the conflict.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 667

(c)iiNotwithstanding Section 22.004, Government Code, and except as otherwise provided by this Act, the supreme court may not amend or adopt rules in conflict with this Act.

(d)iiThe district courts and statutory county courts in a county may not adopt local rules in conflict with this Act.

Sec.i1.05.iiSOVEREIGN IMMUNITY NOT WAIVED. This Act does not waive sovereign immunity from suit or from liability.

(18)iiOn page 55, line 7, strike "based" and substitute: based. This section does not apply to a health care liability claim based solely on intentional denial of medical treatment that a patient is otherwise qualified to receive, against the wishes of a patient, or, if the patient is incompetent, against the wishes of the patient's guardian, on the basis of the patient's present or predicted age, disability, degree of medical dependency, or quality of life unless the medical treatment is denied under Chapter 166, Health and Safety Code

(19)iiOn page 58, between lines 26 and 27, insert:

(f)iiThis section does not apply to a health care liability claim based solely on intentional denial of medical treatment that a patient is otherwise qualified to receive, against the wishes of a patient, or, if the patient is incompetent, against the wishes of the patient's guardian, on the basis of the patient's present or predicted age, disability, degree of medical dependency, or quality of life unless the medical treatment is denied under Chapter 166, Health and Safety Code.

(20)iiOn page 60, line 9, strike "(s) and (t)" and substitute "(s), (t), and (u)".

(21)iiOn page 60, strike line 12 and substitute:

later than the 90th day after the date the claim was [is] filed,

(22)iiOn page 63, between lines 5 and 6, insert:

(u)iiNotwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than one deposition before the expert report is served as required by Subsection (a) of this section.

(23)iiOn page 70, line 18, strike "Q,".

(24)iiBeginning on page 70, strike from line 20 through page 71, line 27.

(25)iiOn page 78, between lines 25 and 26, insert a new SECTION 10.22 to read as follows and renumber subsequent sections appropriately:

SECTIONi10.22.iiSection 84.003, Civil Practice and Remedies Code, is amended by adding Subdivision (6) to read as follows:

(6)ii"Hospital system" means a system of hospitals located in this state that are under the common governance or control of a corporate parent.

(26)iiOn page 80, between lines 13 and 14, insert a new SECTION 10.24 to read as follows and renumber subsequent SECTIONS appropriately:

SECTIONi10.24.iiSection 84.004, Civil Practice and Remedies Code, is amended by adding Subsection (f) to read as follows:

(f)iiSubsection (c) applies even if:

(1)iithe patient is incapacitated due to illness or injury and cannot sign the acknowledgment statement required by that subsection; or

(2)iithe patient is a minor or is otherwise legally incompetent and the person responsible for the patient is not reasonably available to sign the acknowledgment statement required by that subsection.

668 78th LEGISLATURE — REGULAR SESSION

(27)iiOn page 80, line 16, between the period and "Except", insert "(a)".

(28)iiOn page 81, between lines 3 and 4, insert:

(b)iiSubsection (a) applies even if:

(1)iithe patient is incapacitated due to illness or injury and cannot sign the acknowledgment statement required by that subsection; or

(2)iithe patient is a minor or is otherwise legally incompetent and the person responsible for the patient is not reasonably available to sign the acknowledgment statement required by that subsection.

(29)iiOn page 88, strike lines 18 and 19 and substitute:

ARTICLE 11. CLAIMS AGAINST EMPLOYEES OR VOLUNTEERS OF A GOVERNMENTAL UNIT

(30)iiOn page 92, strike lines 9 and 10 and substitute:

SECTIONi13.02.iiSection 41.008(b), Civil Practice and Remedies Code, is amended to read as follows:

(31)iiBeginning on page 92, strike from lines 19 through page 93, line 17.

Amendment No. 2

Representative Nixon offered the following amendment to Amendment No.i1:

Amend Floor Amendment No. 1, CSHB 4, as follows:

Amend item (10), page 2, of Floor Amendment 1, to insert between "appropriately" and the period as follows:

, and beginning on page 35, strike from line 12 through line 23 and renumber the subsequent SECTIONS of ARTICLE 4 appropriately.

Amendment No. 2 was adopted without objection.

BILLS AND RESOLUTIONS SIGNED BY THE SPEAKER

Notice was given at this time that the speaker had signed bills and resolutions in the presence of the house (see the addendum to the daily journal, Signed by the Speaker, Senate List No. 9).

CSHB 4 - (consideration continued)

Amendment No. 3

Representative Dunnam offered the following amendment to Amendment No. 1:

Amend Amendment No. 1 by Nixon to CSHB 4 beginning on page 2, by striking line 26 through page 3, line 6.

Representative Nixon moved to table Amendment No. 3.

A record vote was requested.

The motion to table prevailed by (Record 52): 81 Yeas, 64 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flores;

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 669

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Gallego; Garza; Giddings; Goodman; Guillen; Gutierrez; Hartnett; Hochberg; Hodge; Homer; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Reyna; Ritter; Rodriguez; Smith, T.; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Crownover; Haggerty; Mowery.

STATEMENTS OF VOTE

When Record No. 52 was taken, I was in the house but away from my desk. I would have voted yes.

Crownover

When Record No. 52 was taken, I was in the house but away from my desk. I would have voted yes.

Mowery

Amendment No. 4

Representative Eiland offered the following amendment to Amendment No.i1:

Amend Amendment 1 by Nixon to CSHB 4 (page 1, amendment packet) by striking Item (1) of the amendment.

Amendment No. 4 was withdrawn.

Amendment No. 5

Representative Eiland offered the following amendment to Amendment No.i1:

Amend Amendment 1 by Nixon to CSHB 4 (page 2, amendment packet) by striking Item (11) of the amendment.

Representative Nixon moved to table Amendment No. 5.

The motion to table was withdrawn.

Amendment No. 5 was withdrawn.

670 78th LEGISLATURE — REGULAR SESSION

Amendment No. 6

Representative Eiland offered the following amendment to Amendment No.i1:

Amend Amendment 1 by Nixon to CSHB 4 (page 3, amendment packet) by striking Item (12) of the amendment.

Representative Nixon moved to table Amendment No. 6.

The motion to table prevailed.

Amendment No. 7

Representative Eiland offered the following amendment to Amendment No.i1:

Amend Amendment 1 by Nixon to CSHB 4 (page 3, amendment packet) by striking Item (14) of the amendment.

Representative Nixon moved to table Amendment No. 7.

A record vote was requested.

The motion to table prevailed by (Record 53): 93 Yeas, 51 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flores; Flynn; Garza; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Lewis; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; Villarreal; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Gallego; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Hopson; Jones, D.; Jones, J.; Laney; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Bailey; Goodman; Noriega; Talton.

STATEMENTS OF VOTE

I was shown voting no on Record No. 53. I intended to vote yes.

Ellis

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 671

When Record No. 53 was taken, my vote failed to register. I would have voted no.

Noriega

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 2).

CSHB 4 - (consideration continued)

Amendment No. 8

Representative Eiland offered the following amendment to Amendment No.i1:

Amend Amendment 1 by Nixon to CSHB 4 (page 4, amendment packet) by striking Item (18) of the amendment.

Representative Nixon moved to table Amendment No. 8.

A record vote was requested.

The motion to table prevailed by (Record 54): 89 Yeas, 53 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eiland; Eissler; Elkins; Flores; Flynn; Gattis; Geren; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Ellis; Farrar; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Bailey; Farabee; Goodman; Goolsby; Homer; Hopson.

STATEMENTS OF VOTE

When Record No. 54 was taken, I was in the house but away from my desk. I would have voted yes.

Goolsby

672 78th LEGISLATURE — REGULAR SESSION

When Record No. 54 was taken, I was in the house but away from my desk. I would have voted yes.

Homer

When Record No. 54 was taken, I was in the house but away from my desk. I would have voted yes.

Hopson

Amendment No. 9

Representatives Uresti and Solis offered the following amendment to Amendment No. 1:

Amend Amendment 1 by Nixon to CSHB 4 (page 1, amendment packet) on page 6, following line 9, by inserting the following new item, appropriately numbered:

( ) On page 95, between lines 4 and 5, insert:

(g) The system for assigning judges established by this section shall be funded only through appropriations made to the supreme court.

Representative Nixon moved to table Amendment No. 9.

A record vote was requested.

The motion to table prevailed by (Record 55): 85 Yeas, 60 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Flores; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Homer; Hopson; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Solis; Telford; Thompson; Turner; Uresti; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Hughes; Noriega; Villarreal.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 673

STATEMENTS OF VOTE

When Record No. 55 was taken, I was in the house but away from my desk. I would have voted yes.

Hughes

When Record No. 55 was taken, my vote failed to register. I would have voted no.

Noriega

COMMITTEE MEETING ANNOUNCEMENTS

The following committee meetings were announced:

Agriculture and Livestock, meeting is canceled for today.

Urban Affairs, meeting is canceled for today.

Elections, meeting is canceled for today.

Public Education, Subcommittee on Charter Schools, meeting is canceled for today.

CSHB 4 - (consideration continued)

Amendment No. 1, as amended, was adopted.

Amendment No. 10

Representative Nixon offered the following amendment to CSHBi4:

Floor Packet Page No. 7

Amend CSHB 4 by adding a new article, appropriately numbered, to read as follows and renumbering subsequent articles and sections appropriately:

ARTICLEi__.iiLEGISLATIVE OFFICIALS

SECTIONi__.01.iiSubchapter C, Chapter 572, Government Code, is amended by adding Section 572.059 to read as follows:

Sec.i572.059.iiIMMUNITY OF STATE AND LOCAL OFFICERS ACTING IN LEGISLATIVE CAPACITY. (a) For purposes of this section, an officer acts in a legislative capacity if the officer:

(1)iitakes an action permitted by law regarding a legislative measure in the officer's official capacity; or

(2)iiproposes, endorses, or expresses support for or against a legislative measure or takes any action permitted by law to support or oppose a legislative measure.

(b)iiIn this section, "legislative measure" includes a bill, resolution, proposed constitutional amendment or charter amendment subject to a vote of the electorate, ordinance, including a zoning ordinance, order, rule, or policy of general application. For purposes of this subsection, a measure that is applicable to a class or subset of persons or matters that is defined in general terms without naming the particular persons or matters is a measure of general application.

(c)iiA state or local officer acting in a legislative capacity may not be held liable for:

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(1)iithe officer's actions taken in a legislative capacity;

(2)iithe effect on any person of the officer's actions taken in a legislative capacity, including the effect of a legislative measure to which those actions applied; or

(3)iia breach of duty to disclose to any person the officer's actions, or the substance or potential effects of a legislative measure to which those actions applied, in connection with the officer's practice of or employment in a licensed or regulated profession or occupation.

(King in the chair)

Amendment No. 10 - Point of Order

Representative Dutton raised a point of order against further consideration of Amendment No. 10 under Rule 11, Section 2 of the House Rules on the grounds that it is not germane to the bill.

The point of order was withdrawn.

Amendment No. 10 was withdrawn.

Amendment No. 11

Representative Thompson offered the following amendment to CSHBi4:

Floor Packet Page No. 10

Amend CSHB 4 by striking all below the enacting clause and substituting the following:

"SECTION 1. Subtitle B, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 26 to read as follows:

Section 26.001. The Legislature of Texas, representing the people of Texas, believes our state insurance rates shouldn't be the highest in the United States of America.

SECTION 2. This act takes effect September 1, 2003."

Amendment No. 12

Representatives Thompson and Y. Davis offered the following amendment to Amendment No. 11:

(1) Amend Amendment No. 11 to CSHB 4 on line 1, page 1, by striking, "by striking all below the enacting clause and substituting the following:" and substitute "by adding a new Section 1 to CSHB 4 to read as follows and renumber subsequent sections:

"SECTION 1. Subtitle B, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 26 to read as follows:

Sec. 26.001. The Legislature of Texas, representing the people of Texas, believes our state insurance rates shouldn't be the highest in the United States of America."

(2) Amend Title 2, Subtitle A, Chapter 38, Insurance Code, by adding a new Section 38.164 to read as follows:

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"Sec. 38.164. CAPS ON PROFESSIONAL LIABILITY INSURANCE PREMIUMS. No insurer selling professional liability insurance policies in the State may increase premiums before January 1, 2008."

Amendment No. 12 was adopted without objection.

COMMITTEE MEETING ANNOUNCEMENT

The following committee meeting was announced:

Natural Resources, meeting is canceled for today.

CSHB 4 - (consideration continued)

Amendment No. 13

Representatives Thompson and Y. Davis offered the following amendment to Amendment No. 11:

Amend Amendment 11 by Thompson to CSHB 4 (as amended) in added Section 38.164, Civil Practice and Remedies Code, following the period at the end of the section, by inserting "Notwithstanding any other law, this section applies to each insurer authorized to issue insurance in this state, including a trust established under Article 21.49-4, Insurance Code."

Amendment No. 13 was adopted without objection.

Representative Nixon moved to table Amendment No. 11.

A record vote was requested.

The motion to table prevailed by (Record 56): 92 Yeas, 55 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King(C); Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Flores; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Homer; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise.

Present, not voting — Mr. Speaker.

Absent — Wolens.

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Amendment No. 14

Representative Puente offered the following amendment to CSHBi4:

Floor Packet Page No. 11

Substitute the following for CSHB 4.

A BILL TO BE ENTITLED

AN ACT

relating to health care liability claims.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 1.03(a), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by amending Subdivisions (3), (4), and (8) and adding Subdivisions (10)-(22) to read as follows:

(3)(A)ii"Health care provider" means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including:

(i) [as] a registered nurse;

(ii) a [,] hospital;

(iii) a nonprofit hospital system;

(iv) a [,] dentist;

(v) a hospice;

(vi) a [,] podiatrist;

(vii) a [,] pharmicist;

(viii) an emergency medical services provider;

(ix) an assisted living facility;

(x) a home and community support services agency;

(xi) an intermediate care facility for the mentally retarded or a home and community-based services waiver program for persons with mental retardation adopted in accordance with Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)), as amended; [,] or

(xii) a nursing home.

(B) The term includes:

(i) [, or] an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and

(ii) an employee, independent contractor, or agent of a health care provider or physican [thereof] acting in the course and scope of the [his] employment or contractual relationship.

(4)ii"Health care liability claim" means a cause of action against a health care provider or physician arising out of or related to [for] treatment, lack of treatment, or other claimed departure from accepted standards of medical care, [or] health care, or safety or professional or administrative services practice or procedure which proximately results in injury to or death of a claimant [the patient], whether the claimant's [patient's] claim or cause of action sounds in tort or contract.

(8)ii"Physician" means:

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(A)iian individual [a person] licensed to practice medicine in this state;

(B)iia professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) by an individual physician or group of physicians;

(C)iia partnership or limited liability partnership formed by a group of physicians;

(D)iia nonprofit health corporation certified under Section 162.001, Occupations Code; or

(E)iia company formed by a group of physicians under the Texas Limited Liability Company Act (Article 1528n, Vernon's Texas Civil Statutes).

(10)ii"Affiliate" means a person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a specified person, including any direct or indirect parent or subsidiary.

(11)ii"Claimant" means a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.

(12)ii"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the person, whether through ownership of equity or securities, by contract, or otherwise.

(13)ii"Economic damages" means compensatory damages for any pecuniary loss or damage. The term does not include noneconomic damages.

(14)ii"Emergency medical care" means bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in:

(A)iiplacing the patient's health in serious jeopardy;

(B)iiserious impairment to bodily functions; or

(C)iiserious dysfunction of any bodily organ or part.

(15) "Emergency medical services provider" means a licensed public or private provider to which Chapter 773, Health and Safety Code, applies.

(16) "Home and community support services agency" means a licensed public or provider agency to which Chapter 142, Health and Safety Code, applies.

(17) "Intermediate care facility for the mentally retarded" means a licensed public or private institution to which Chapter 252, Health and Safety Code, applies.

(18)ii"Noneconomic damages" means any loss or damage, however characterized, for past, present, and future physical pain and suffering, mental anguish and suffering, loss of consortium, loss of companionship and society, disfigurement, physical impairment, and any other nonpecuniary loss or damage or element of loss or damage.

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(19)ii"Nursing home" means a licensed public or private institution to which Chapter 242, Health and Safety Code, applies.

(20)ii"Professional or administrative services" means those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician's or health care provider's license, accreditation status, or certification to participate in state or federal health care programs.

(21)ii"Hospice" means a hospice facility or activity to which Chapter 142, Health and Safety Code, applies.

(22)ii"Hospital system" means a system of local nonprofit hospitals and nonprofit entities created by the hospital or its parent entity to further the charitable purposes of the hospital under the common governance of a single corporate parent that are located within a radius of not more than 125 linear miles from the corporate parent.

SECTIONi2.iiSubchapter A, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 1.04 to read as follows:

Sec.i1.04.iiCONFLICT WITH OTHER LAW AND RULES OF CIVIL PROCEDURE. (a) In the event of a conflict between this Act and another law, including a rule of procedure or evidence or court rule, this Act controls to the extent of the conflict.

(b)iiNotwithstanding Section 22.004, Government Code, and except as otherwise provided by this Act, the supreme court may not amend or adopt rules in conflict with this Act.

(c)iiThe district courts and statutory county courts in a county may not adopt local rules in conflict with this Act.

SECTIONi3.iiSection 4.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Subsection (f) to read as follows:

(f)iiNotwithstanding the provisions of Rule 202, Texas Rules of Civil Procedure, a deposition may not be taken of a physician or health care provider for the purpose of investigating a health care liability claim before the filing of a lawsuit.

SECTIONi4.iiThe heading to Subchapter G, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

SUBCHAPTER G. EVIDENTIARY MATTERS [RES IPSA LOQUITUR]

SECTIONi5.iiSubchapter G, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Sections 7.03 and 7.04 to read as follows:

Sec.i7.03.iiFEDERAL OR STATE INCOME TAXES. (a) Notwithstanding any other law, in a health care liability claim, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, evidence to prove the loss must be presented in the form of a net after-tax loss that either was or should have been paid by the injured party or decedent through which the alleged loss has occured.

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(b)iiIn a health care liability claim, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, the court shall instruct the jury whether any recovery for compensatory damages sought by the claimant is subject to federal or state income taxes.

Sec.i7.04.iiJURY INSTRUCTIONS IN CASES INVOLVING EMERGENCY MEDICAL CARE. (a) In a health care liability claim that involves a claim of negligence arising from the provision of emergency medical care, the court shall instruct the jury to consider, together with all other relevant matters:

(1)iiwhether the person providing care did not have the patient's medical history or was unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;

(2)iithe lack of a preexisting physician-patient relationship or health care provider-patient relationship;

(3)iithe circumstances constituting the emergency; and

(4)iithe circumstances surrounding the delivery of the emergency medical care.

(b)iiThe provisions of Subsection (a) of this section do not apply to medical care or treatment:

(1)iithat occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient; or

(2)iithat is unrelated to the original medical emergency.

SECTIONi6.iiThe heading to Subchapter I, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

SUBCHAPTER I. PAYMENT OF MEDICAL OR HEALTH CARE EXPENSES [ADVANCE PAYMENTS]

SECTIONi7.iiSubchapter I, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 9.01 to read as follows:

Sec.i9.01.iiRECOVERY OF MEDICAL OR HEALTH CARE EXPENSES. Recovery of medical or health care expenses in a health care liability claim shall be limited to the amount actually paid or incurred by or on behalf of the claimant.

SECTIONi8.iiSection 10.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i10.01.iiLIMITATION ON HEALTH CARE LIABILITY CLAIMS. (a) Notwithstanding any other law and subject to Subsection (b) of this section, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

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(b)iiA claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.

SECTIONi9.iiSection 11.02, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Subsections (e) and (f) to read as follows:

(e)iiThe limitation on health care liability claims contained in Subsection (a) of this section includes punitive damages.

(f)iiThe limitation on health care liability claims contained in Subsection (a) of this section shall be applied on a per-claimant basis.

SECTIONi10.iiSection 11.03, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i11.03.iiLIMITATION ON NONECONOMIC DAMAGES [ALTERNATIVE PARTIAL LIMIT ON CIVIL LIABILITY]. [In the event that Section 11.02(a) of this subchapter is stricken from this subchapter or is otherwise invalidated by a method other than through legislative means, the following shall become effective:]

In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for noneconomic damages of the physician or health care provider shall be limited to an amount not to exceed $250,000 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based [of the physician or health care provider for all past and future noneconomic losses recoverable by or on behalf of any injured person and/or the estate of such person, including without limitation as applicable past and future physical pain and suffering, mental anguish and suffering, consortium, disfigurement, and any other nonpecuniary damage, shall be limited to an amount not to exceed $150,000].

SECTIONi11.iiSubchapter K, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 11.031 to read as follows:

Sec. 11.031. ALTERNATIVE LIMITATION ON NONECONOMIC DAMAGES. (a) iiIn the event that Section 11.03 of this subchapter is stricken from this subchapter or is otherwise to any extent invalidated by a method other than through legislative means, the following, subject to the provisions of this section, shall become effective:

In an action on a health care liability claim where final judgment is rendered against a physician or health care provider, the limit of civil liability for all damages and losses, other than economic damages, shall be limited to an amount not to exceed $250,000 for each claimant, regardless of the number of defendant physicians or health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based.

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(b)iiEffective before September 1, 2005, Subsection (a) of this section applies to any physician or health care provider that provides evidence of financial responsibility in the following amounts in effect for any act or omission to which this subchapter applies:

(1)iiat least $100,000 for each health care liability claim and at least $300,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician participating in an approved residency program;

(2)iiat least $200,000 for each health care liability claim and at least $600,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician or health care provider, other than a hospital; and

(3)iiat least $500,000 for each health care liability claim and at least $1.5 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a hospital.

(c)iiEffective September 1, 2005, Subsection (a) of this section applies to any physician or health care provider that provides evidence of financial responsibility in the following amounts in effect for any act or omission to which this subchapter applies:

(1)iiat least $100,000 for each health care liability claim and at least $300,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician participating in an approved residency program;

(2)iiat least $300,000 for each health care liability claim and at least $900,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician or health care provider, other than a hospital; and

(3)iiat least $750,000 for each health care liability claim and at least $2.25 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a hospital.

(d)iiEffective September 1, 2007, Subsection (a) of this section applies to any physician or health care provider that provides evidence of financial responsibility in the following amounts in effect for any act or omission to which this subchapter applies:

(1)iiat least $100,000 for each health care liability claim and at least $300,000 in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician participating in an approved residency program;

(2)iiat least $500,000 for each health care liability claim and at least $1 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a physician or health care provider, other than a hospital; and

(3)iiat least $1 million for each health care liability claim and at least $3 million in aggregate for all health care liability claims occurring in an insurance policy year, calendar year, or fiscal year for a hospital.

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(e)iiEvidence of financial responsibility may be established at the time of judgment by providing proof of:

(1)iithe purchase of a contract of insurance or other plan of insurance authorized by this state;

(2)iithe purchase of coverage from a trust organized and operating under Article 21.49-4, Insurance Code;

(3)iithe purchase of coverage or another plan of insurance provided by or through a risk retention group or purchasing group authorized under applicable laws of this state or under the Product Liability Risk Retention Act of 1981 (15 U.S.C. Section 3901 et seq.), as amended, or the Liability Risk Retention Act of 1986 (15 U.S.C. Section 3901 et seq.), as amended, or any other contract or arrangement for transferring and distributing risk relating to legal liability for damages, including cost or defense, legal costs, fees, and other claims expenses; or

(4)iithe maintenance of financial reserves in or an irrevocable letter of credit from a federally insured financial institution that has its main office or a branch office in this state.

SECTIONi12.iiSection 11.04, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i11.04.iiADJUSTMENT OF LIABILITY LIMIT [LIMITS]. When there is an increase or decrease in the consumer price index with respect to the amount of that index on the effective date of this subchapter, [each of] the liability limit [limits] prescribed in Section 11.02(a) [or in Section 11.03] of this subchapter[, as applicable,] shall be increased or decreased, as applicable, by a sum equal to the amount of such limit multiplied by the percentage increase or decrease in the consumer price index between the effective date of this subchapter and the time at which damages subject to such limit [limits] are awarded by final judgment or settlement.

SECTIONi13.iiSubchapter L, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 12.02 to read as follows:

Sec.i12.02.iiSTANDARD OF PROOF IN CASES INVOLVING EMERGENCY MEDICAL CARE. In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care, the person bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the person shows by clear and convincing evidence that the physician or health care provider did not use the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

SECTIONi14.iiThe heading to Section 13.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i13.01.ii[COST BOND, DEPOSIT, AND] EXPERT REPORT.

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SECTIONi15.iiSection 13.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by amending Subsections (a), (b), (i), (j), (k), and (l) and adding Subsections (s) and (t) to read as follows:

(a)iiIn a health care liability claim, a claimant shall, not later than the 180th [90th] day after the date the claim is filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the[:

[(1)iifile a separate cost bond in the amount of $5,000 for each physician or health care provider named by the claimant in the action;

[(2)iiplace cash in an escrow account in the amount of $5,000 for each physician or health care provider named in the action; or

[(3)iifile an expert] report for each physician or health care provider against whom a liability claim is asserted [with respect to whom a cost bond has not been filed and cash in lieu of the bond has not been deposited under Subdivision (1) or (2) of this subsection].

(b)iiIf, as to a defendant physician or health care provider, an expert report[, cost bond, or cash in lieu of bond] has not been served [filed or deposited] within the period specified by Subsection (a) [or (h)] of this section, the court, on the motion of the affected physician or health care provider, shall enter an order that:

(1)iiawards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider [requires the filing of a $7,500 cost bond with respect to the physician or health care provider not later than the 21st day after the date of the order]; and

(2)iidismisses the claim [provides that if the claimant fails to comply with the order, the action shall be dismissed for want of prosecution] with respect to the physician or health care provider, with prejudice to the refiling of the claim [subject to reinstatement in accordance with the applicable rules of civil procedure and Subsection (c) of this section].

(i)iiNotwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving [filing] an expert report by serving [filing] reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.

(j)iiNothing in this section shall be construed to require the serving [filing] of an expert report regarding any issue other than an issue relating to liability or causation.

(k)iiAn [Notwithstanding any other law, an] expert report served [filed] under this section:

(1)iiis not admissible in evidence by any party [a defendant];

(2)iishall not be used in a deposition, trial, or other proceeding; and

684 78th LEGISLATURE — REGULAR SESSION

(3)iishall not be referred to by any party [a defendant] during the course of the action for any purpose.

(l)iiA court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective [a] good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.

(s)iiUntil a claimant has served the expert report and curriculum vitae, as required by Subsection (a) of this section, all discovery in a health care liability claim is stayed except for the acquisition of the patient's medical records, medical or psychological studies, or tissue samples through:

(1)iiwritten discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;

(2)iidepositions on written questions under Rule 200, Texas Rules of Civil Procedure; and

(3)iidiscovery from nonparties under Rule 205, Texas Rules of Civil Procedure.

(t)iiIf an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement of Subsection (a) of this section, the restrictions imposed by Subsection (k) of this section on use of the expert report by any party are waived.

SECTIONi16.iiSection 13.01(r)(5), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

(5)ii"Expert" means:

(A)iiwith respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 14.01(a) of this Act; [or]

(B)iiwith respect to a person giving opinion testimony regarding whether [about] a [nonphysician] health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 14.02 of this Act;

(C)iiwith respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence;

(D)iiwith respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist who is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence; or

(E)iiwith respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist who is otherwise qualified to render opinions on that causal relationship under the Texas

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SECTIONi17.iiSections 14.01(e) and (g), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), are amended to read as follows:

(e)iiA pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.

(g)iiIn this subchapter [section], "physician" means a person who is:

(1)iilicensed to practice medicine in one or more states in the United States; or

(2)iia graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant's standard of care, the alleged departure from that standard of care, or the causal relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed.

SECTIONi18.iiSubchapter N, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Sections 14.02 and 14.03 to read as follows:

Sec.i14.02.iiQUALIFICATIONS OF EXPERT WITNESS IN SUIT AGAINST HEALTH CARE PROVIDER. (a) For purposes of this section, "practicing health care" includes:

(1)iitraining health care providers in the same field as the defendant health care provider at an accredited educational institution; or

(2)iiserving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.

(b)iiIn a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:

(1)iiis practicing health care in the same field of practice as the defendant health care provider at the time the testimony is given or was practicing that type of health care at the time the claim arose;

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(2)iihas knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3)iiis qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

(c)iiIn determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:

(1)iiis certified by a Texas licensing agency or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and

(2)iiis actively practicing health care in rendering health care services relevant to the claim.

(d)iiThe court shall apply the criteria specified in Subsections (a), (b), and (c) of this section in determining whether an expert is qualified to offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.

(e)iiThis section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider, from qualifying as an expert.

(f)iiA pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.

Sec.i14.03.iiQUALIFICATIONS OF EXPERT WITNESS ON CAUSATION IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided by Subsections (b) and (c) of this section, in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

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(b)iiIn a suit involving a health care liability claim against a dentist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a dentist and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

(c)iiIn a suit involving a health care liability claim against a podiatrist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a podiatrist and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

(d)iiA pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.

SECTIONi19.iiSection 16.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended to read as follows:

Sec.i16.01.iiAPPLICATION OF OTHER LAW. Notwithstanding Chapter 304, Finance Code [Articles 1E.101, 1E.102, and 1E.104-1E.108, Title 79, Revised Statutes], prejudgment interest in a judgment on a health care liability claim shall be awarded in accordance with this subchapter.

SECTIONi20.iiSections 16.02(b) and (c), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), are amended to read as follows:

(b)iiSubject to Subchapter K of this Act [In a health care liability claim that is not settled within the period specified by Subsection (a) of this section], the judgment must include prejudgment interest on past damages awarded in the judgment [found by the trier of fact], but shall not include prejudgment interest on future damages awarded in the judgment [found by the trier of fact].

(c)iiPrejudgment interest allowed under this subchapter shall be computed in accordance with Section 304.003(c)(1), Finance Code [Article 1E.103, Title 79, Revised Statutes], for a period beginning on the date of injury and ending on the date before the date the judgment is signed.

688 78th LEGISLATURE — REGULAR SESSION

SECTIONi21.iiThe Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is amended by adding Subchapters Q, R, S, and T to read as follows:

SUBCHAPTER Q. COLLATERAL SOURCE BENEFITS

Sec.i17.01.iiDEFINITION. In this subchapter, "collateral source benefit" means a benefit paid or payable to or on behalf of a claimant under:

(1)iithe Social Security Act (42 U.S.C. Section 301 et seq.), and its subsequent amendments;

(2)iia state or federal income replacement, disability, workers' compensation, or other law that provides partial or full income replacement; or

(3)iiany insurance policy, other than a life insurance policy, including:

(A)iian accident, health, or sickness insurance policy; and

(B)iia disability insurance policy.

Sec.i17.02.iiADMISSIBILITY OF EVIDENCE OF COLLATERAL SOURCE BENEFITS. A defendant physician or health care provider may introduce evidence in a health care liability claim of any amount payable to the claimant as a collateral benefit. If a defendant physician or health care provider introduces evidence of a collateral source benefit, the claimant may introduce evidence of any amount the claimant has paid to secure the right to the benefit.

Sec.i17.03.iiMAINTENANCE OF COVERAGE DURING CLAIM.ii(a)iiDuring the pendency of a health care liability claim, if the claimant has a policy of insurance that provides health benefits or income disability coverage and the claimant is unwilling or unable to pay the costs of renewing or continuing that policy of insurance in force, the defendant physician or health care provider may tender to the claimant the cost of maintaining the insurance coverage.

(b)iiOn receipt of the tender, the claimant shall continue the policy in force.

Sec.i17.04.iiSUBROGATION.iiThe payer of collateral benefits introduced under this subchapter may not recover any amount against the claimant and is not subrogated to any rights or claims of the claimant, unless authorized by a federal law.

SUBCHAPTER R. PAYMENT FOR FUTURE LOSSES

Sec.i18.01.iiDEFINITIONS.iiIn this subchapter:

(1)ii"Future damages" means damages that are incurred after the date of judgment for:

(A)iimedical, health care, or custodial care services;

(B)iiphysical pain and mental anguish, disfigurement, or physical impairment;

(C)iiloss of consortium, companionship, or society; or

(D)iiloss of earnings.

(2)ii"Future loss of earnings" means the following losses incurred after the date of the judgment:

(A)iiloss of income, wages, or earning capacity and other pecuniary losses; and

(B)iiloss of inheritance.

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(3)ii"Periodic payments" means the payment of money or its equivalent to the recipient of future damages at defined intervals.

Sec.i18.02.iiSCOPE OF SUBCHAPTER.iiThis subchapter applies only to an action on a health care liability claim against a physician or healthcare provider in which the present value of the award of future damages, as determined by the court, equals or exceeds $100,000.

Sec.i18.03.iiCOURT ORDER FOR PERIODIC PAYMENTS.ii(a)iiAt the request of a defendant physician or health care provider or claimant, the court shall order that future damages awarded in a health care liability claim be paid in whole or in part in periodic payments rather than by a lump-sum payment.

(b)iiThe court shall make a specific finding of the dollar amount of periodic payments that will compensate the claimant for the future damages.

(c)iiThe court shall specify in its judgment ordering the payment of future damages by periodic payments the:

(1)iirecipient of the payments;

(2)iidollar amount of the payments;

(3)iiinterval between payments; and

(4)iinumber of payments or the period of time over which payments must be made.

Sec.i18.04.iiRELEASE.iiThe entry of an order for the payment of future damages by periodic payments constitutes a release of the health care liability claim filed by the claimant.

Sec.i18.05.iiFINANCIAL RESPONSIBILITY.ii(a)iiAs a condition to authorizing periodic payments of future damages, the court shall require a defendant who is not adequately insured to provide evidence of financial responsibility in an amount adequate to assure full payment of damages awarded by the judgment.

(b)iiThe judgment must provide for payments to be funded by:

(1)iian annuity contract issued by a company licensed to do business as an insurance company;

(2)iian obligation of the United States;

(3)iiapplicable and collectible liability insurance from one or more qualified insurers; or

(4)iiany other satisfactory form of funding approved by the court.

(c)iiOn termination of periodic payments of future damages, the court shall order the return of the security, or as much as remains, to the defendant.

Sec.i18.06.iiDEATH OF RECIPIENT.ii(a)iiOn the death of the recipient, money damages awarded for loss of future earnings continue to be paid to the estate of the recipient of the award without reduction.

(b)iiPeriodic payments, other than future loss of earnings, terminate on the death of the recipient.

(c)iiIf the recipient of periodic payments dies before all payments required by the judgment are paid, the court may modify the judgment to award and apportion the unpaid damages for future loss of earnings in an appropriate manner.

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(d)iiFollowing the satisfaction or termination of any obligations specified in the judgment for periodic payments, any obligation of the defendant physician or health care provider to make further payments ends and any security given reverts to the defendant.

Sec.i18.07.iiAWARD OF ATTORNEY'S FEES.iiFor purposes of computing the award of attorney's fees when the claimant is awarded a recovery that will be paid in periodic payments, the court shall:

(1)iiplace a total value on the payments based on the claimant's projected life expectancy; and

(2)iireduce the amount in Subdivision (1) to present value.

SUBCHAPTER S. ATTORNEY'S FEES

Sec.i19.01.iiDEFINITION.iiIn this subchapter, "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical or health care services incurred by the claimant and the attorney's office overhead costs or charges are not deductible disbursements or costs.

Sec.i19.02.iiAPPLICABILITY. The limitations in this subchapter apply without regard to whether:

(1)iithe recovery is by settlement, arbitration, or judgment; or

(2)iithe person for whom the recovery is sought is an adult, a minor, or an incapacitated person.

Sec.i19.03.iiPERIODIC PAYMENTS.iiIf periodic payments are recovered by the claimant, the court shall place a total value on these payments based on the claimant's projected life expectancy and then reduce this amount to present value for purposes of computing the award of attorney's fees.

Sec.i19.04.iiLIMITATION ON ATTORNEY CONTINGENCY FEE AGREEMENTS.ii(a)iiAn attorney may not contract for or collect a contingency fee for representing any person seeking damages in connection with a health care liability claim in excess of 33-1/3 percent of the amount recovered.

(b)iiThis section has no effect if Section 11.03 of this Act is stricken from this Act or is otherwise to any extent invalidated by a method other than through legislative means.

Sec.i19.05.iiALTERNATIVE LIMIT ON ATTORNEY CONTINGENCY FEES.ii(a)iiIf Section 11.03 of this Act is stricken from this Act or is otherwise to any extent invalidated by a method other than through legislative means, this section is effective.

(b)iiAn attorney may not contract for or collect a contingency fee for representing any person seeking damages in connection with a health care liability claim that exceeds the following limits:

(1)ii40 percent of the first $50,000 recovered;

(2)ii33.3 percent of the next $50,000 recovered;

(3)ii25 percent of the next $500,000 recovered; and

(4)ii15 percent of any additional amount recovered.

SUBCHAPTER T. DECLARATORY JUDGMENTS; INJUNCTIONS; APPEALS

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Sec.i20.01.iiAPPLICABILITY.iiThis subchapter applies only to an amendment to this Act that is effective on or after January 1, 2003.

Sec.i20.02.iiDECLARATORY JUDGMENT.iiThe constitutionality and other validity under the state or federal constitution of all or any part of an amendment to this Act may be determined in an action for declaratory judgment in a district court in Travis County under Chapter 37, Civil Practice and Remedies Code, if it is alleged that the amendment or a part of the amendment affects the rights, status, or legal relation of a party in a civil action with respect to any other party in the civil action.

Sec.i20.03.iiACCELERATED APPEAL.ii(a)iiAn appeal of a declaratory judgment or order, however characterized, of a district court, including an appeal of the judgment of an appellate court, holding or otherwise determining, under Section 20.02 of this subchapter, that all or any part of an amendment to this Act is constitutional or unconstitutional, or otherwise valid or invalid, under the state or federal constitution is an accelerated appeal.

(b)iiIf the judgment or order is interlocutory, an interlocutory appeal may be taken from the judgment or order and is an accelerated appeal.

Sec.i20.04.iiINJUNCTIONS.iiA district court in Travis County may grant or deny a temporary or otherwise interlocutory injunction or a permanent injunction on the grounds of the constitutionality or unconstitutionality, or other validity or invalidity, under the state or federal constitution of all or any part of an amendment to this Act.

Sec.i20.05.iiDIRECT APPEAL.ii(a)iiThere is a direct appeal to the supreme court from an order, however characterized, of a trial court granting or denying a temporary or otherwise interlocutory injunction or a permanent injunction on the grounds of the constitutionality or unconstitutionality, or other validity or invalidity, under the state or federal constitution of all or any part of any amendment to this Act.

(b)iiThe direct appeal is an accelerated appeal.

(c)iiThis section exercises the authority granted by Section 3-b, Article V, Texas Constitution.

Sec.i20.06.iiSTANDING OF AN ASSOCIATION OR ALLIANCE TO SUE.ii(a)iiAn association or alliance has standing to sue for and obtain the relief described by Subsection (b) of this section if it is alleged that:

(1)iithe association or alliance has more than one member who has standing to sue in the member's own right;

(2)iithe interests the association or alliance seeks to protect are germane to a purpose of the association or alliance; and

(3)iithe claim asserted and declaratory relief requested by the association or alliance relate to all or a specified part of the amendment involved in the action being found constitutional or unconstitutional on its face, or otherwise found valid or invalid on its face, under the state or federal constitution.

(b)iiThe association or alliance has standing:

(1)iito sue for and obtain a declaratory judgment under Section 20.02 of this subchapter in an action filed and maintained by the association or alliance;

692 78th LEGISLATURE — REGULAR SESSION

(2)iito appeal or otherwise be a party to an appeal under Section 20.03 of this subchapter;

(3)iito sue for and obtain an order under Section 20.04 of this subchapter granting or denying a temporary or otherwise interlocutory injunction or a permanent injunction in an action filed and maintained by the association or alliance; and

(4)iito appeal or otherwise be a party to an appeal under Section 20.05 of this subchapter.

Sec.i20.07.iiRULES FOR APPEALS.iiAn appeal under this subchapter, including an interlocutory, accelerated, or direct appeal, is governed, as applicable, by the Texas Rules of Appellate Procedure, including Rules 25.1(d)(6), 26.1(b), 28.1, 28.3, 32.1(g), 37.3(a)(1), 38.6(a) and (b), 40.1(b), and 49.4.

SECTIONi22.iiSection 84.003, Civil Practice and Remedies Code, is amended by adding Subdivision (6) to read as follows:

(6)ii"Person responsible for the patient" means:

(A)iithe patient's parent, managing conservator, or guardian;

(B)iithe patient's grandparent;

(C)iithe patient's adult brother or sister;

(D)iianother adult who has actual care, control, and possession of the patient and has written authorization to consent for the patient from the parent, managing conservator, or guardian of the patient;

(E)iian educational institution in which the patient is enrolled that has written authorization to consent for the patient from the parent, managing conservator, or guardian of the patient; or

(F)iiany other person with legal responsibility for the care of the patient.

SECTIONi23.iiSection 84.004(c), Civil Practice and Remedies Code, is amended to read as follows:

(c)iiExcept as provided by Subsection (d) and Section 84.007, a volunteer health care provider [who is serving as a direct service volunteer of a charitable organization] is immune from civil liability for any act or omission resulting in death, damage, or injury to a patient if:

(1)ii[the volunteer was acting in good faith and in the course and scope of the volunteer's duties or functions within the organization;

[(2)]iithe volunteer commits the act or omission in the course of providing health care services to the patient;

(2)i[(3)]iithe services provided are within the scope of the license of the volunteer; and

(3)i[(4)]iibefore the volunteer provides health care services, the patient or, if the patient is a minor or is otherwise legally incompetent, the person responsible for the patient [patient's parent, managing conservator, legal guardian, or other person with legal responsibility for the care of] signs a written statement that acknowledges:

(A)iithat the volunteer is providing care that is not administered for or in expectation of compensation; and

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(B)iithe limitations on the recovery of damages from the volunteer in exchange for receiving the health care services.

SECTIONi24.iiChapter 84, Civil Practice and Remedies Code, is amended by adding Section 84.0065 to read as follows:

Sec.i84.0065.iiORGANIZATION LIABILITY OF HOSPITALS. Except as provided by Section 84.007, in any civil action brought against a hospital or hospital system, or its employees, officers, directors, or volunteers, for damages based on an act or omission by the hospital or hospital system, or its employees, officers, directors, or volunteers, the liability of the hospital or hospital system is limited to money damages in a maximum amount of $500,000 for any act or omission resulting in death, damage, or injury to a patient if the patient or, if the patient is a minor or is otherwise legally incompetent, the person responsible for the patient, signs a written statement that acknowledges:

(1)iithat the hospital is providing care that is not administered for or in expectation of compensation; and

(2)iithe limitations on the recovery of damages from the hospital in exchange for receiving the health care services.

SECTIONi25.iiSection 88.002, Civil Practice and Remedies Code, is amended by adding Subsection (l) to read as follows:

(l)iiThis chapter does not create liability on the part of physicians or health care providers for medical care or health care services performed or furnished or that should have been performed or furnished for, to, or on behalf of a patient.

SECTIONi26.iiArticle 5.15-1, Insurance Code, is amended by adding Section 11 to read as follows:

Sec.i11.iiVENDOR'S ENDORSEMENT.iiAn insurer may not exclude or otherwise limit coverage for physicians or health care providers under a vendor's endorsement issued to a manufacturer, as that term is defined by Section 82.001, Civil Practice and Remedies Code. A physician or health care provider shall be considered a vendor for purposes of coverage under a vendor's endorsement or a manufacturer's general liability or products liability policy.

SECTIONi27.iiThe following provisions are repealed:

(1)iiSection 11.02(c), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes);

(2)iiSections 13.01(c), (d), (e), (f), (g), (h), (m), (n), (o), and (r)(3), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes);

(3)iiSection 16.02(a), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); and

(4)iiSection 242.0372, Health and Safety Code.

SECTIONi28.iiThe changes made by this article to the Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) apply to a cause of action that accrues on or after January 1, 2004. A cause of action that accrues before January 1, 2004, is governed by the laws in effect immediately before January 1, 2004, and that law is continued in effect for that purpose.

694 78th LEGISLATURE — REGULAR SESSION

(Speaker in the chair)

Representative Nixon moved to table Amendment No. 14.

A record vote was requested.

The motion to table prevailed by (Record 57): 88 Yeas, 59 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Capelo; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farabee; Farrar; Flores; Gallego; Garza; Giddings; Goodman; Guillen; Gutierrez; Hochberg; Hodge; Homer; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Kuempel.

CSHB 4 - POINT OF ORDER

Representative Hodge raised a point of order against further consideration of CSHB 4 under Rule 4, Section 32(c)(3) of the House Rules on the grounds that the committee report does not contain a statement of rulemaking authority.

The speaker overruled the point of order.

Amendment No. 15

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 61

Amend CSHB 4 as follows:

On page 1, line 12, before "administered", insert "exclusively".

Representative Woolley moved to table Amendment No. 15.

A record vote was requested.

The motion to table prevailed by (Record 58): 84 Yeas, 59 Nays, 2 Present, not voting.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 695

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Elkins; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Gutierrez; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Rose; Seaman; Smith, T.; Smith, W.; Solomons; Stick; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Flores; Gallego; Garza; Giddings; Goodman; Guillen; Haggerty; Hochberg; Hodge; Homer; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C); Smithee.

Absent — Bailey; Chisum; Eissler; Swinford.

STATEMENT OF VOTE

When Record No. 58 was taken, my vote failed to register. I would have voted yes.

Eissler

Amendment No. 16

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 63

Amend CSHB 4 as follows:

On page 2, line 24 strike the words "one or more" and insert in lieu thereof "all"

Representative Woolley moved to table Amendment No. 16.

A record vote was requested.

The motion to table prevailed by (Record 59): 85 Yeas, 61 Nays, 3 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Gutierrez; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer;

696 78th LEGISLATURE — REGULAR SESSION

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Flores; Gallego; Garza; Giddings; Goodman; Guillen; Haggerty; Hochberg; Hodge; Homer; Hopson; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C); Hughes; Smithee.

Amendment No. 17

Representative Deshotel offered the following amendment to CSHBi4:

Floor Packet Page No. 64

Amend CSHB 4 as follows:

On page 3, lines 10-11, strike ", date the court signed the order certifying the action as a class action" and substitute "filing of the defendant's original answer"

Representative Nixon moved to table Amendment No. 17.

A record vote was requested.

The motion to table prevailed by (Record 60): 86 Yeas, 57 Nays, 3 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Rose; Seaman; Smith, T.; Smith, W.; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Flores; Gallego; Garza; Goodman; Guillen; Gutierrez; Hochberg; Hodge; Homer; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C); Hughes; Smithee.

Absent — Farrar; Giddings; Ritter.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 697

Amendment No. 18

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 66

Amend CSHB 4 as follows:

On page 3, line 12, strike "shall" and substitute "may"

Representative Nixon moved to table Amendment No. 18.

(Krusee in the chair)

A record vote was requested.

The motion to table prevailed by (Record 61): 93 Yeas, 54 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Flores; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Amendment No. 19

Representative Eiland offered the following amendment to CSHBi4:

Floor Packet Page No. 67

Amend CSHB 4 as follows:

On page 3, strike 26.005(a)(3), lines 20-22, and substitute "(3) the state agency informs the court in writing that it consents to the proposed abatement or dismissal; or."

Representative Nixon moved to table Amendment No. 19.

A record vote was requested.

The motion to table prevailed by (Record 62): 84 Yeas, 61 Nays, 2 Present, not voting.

698 78th LEGISLATURE — REGULAR SESSION

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Ellis; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hill; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Laubenberg; Madden; Marchant; McCall; Mercer; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Elkins; Farabee; Farrar; Flores; Gallego; Garza; Giddings; Goodman; Guillen; Gutierrez; Hartnett; Hilderbran; Hochberg; Hodge; Homer; Hopson; Jones, J.; Kuempel; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Bailey; Jones, E.

Amendment No. 20

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 68

Amend CSHB 4 as follows:

On page 3, line 24 strike the words "or part"

Representative Nixon moved to table Amendment No. 20.

A record vote was requested.

The motion to table prevailed by (Record 63): 88 Yeas, 56 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flores; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hill; Homer; Hope; Howard; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 699

Nays — Alonzo; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Gallego; Garza; Giddings; Guillen; Hartnett; Hilderbran; Hochberg; Hodge; Hopson; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Reyna; Rodriguez; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Bailey; Davis, J.; Hughes.

Amendment No. 21

Representative Deshotel offered the following amendment to CSHBi4:

Floor Packet Page No. 69

Amend CSHB 4 as follows:

On page 4, line 5, strike "periodically" and substitute "every 90 days".

Representative Nixon moved to table Amendment No. 21.

A record vote was requested.

The motion to table prevailed by (Record 64): 93 Yeas, 54 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Flores; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Amendment No. 22

Representative Eiland offered the following amendment to CSHBi4:

700 78th LEGISLATURE — REGULAR SESSION

Floor Packet Page No. 70

Amend CSHB 4 as follows:

On Page 4, Line 15, strike the words "at least" and insert in lieu thereof "no more than"

Representative Nixon moved to table Amendment No. 22.

A record vote was requested.

The motion to table prevailed by (Record 65): 79 Yeas, 68 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Farabee; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hill; Homer; Hope; Howard; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Laubenberg; Madden; Marchant; McCall; Mercer; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Riddle; Rose; Seaman; Smith, T.; Smith, W.; Solomons; Stick; Swinford; Taylor; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Elkins; Ellis; Farrar; Flores; Gallego; Garza; Giddings; Goodman; Guillen; Gutierrez; Hartnett; Hilderbran; Hochberg; Hodge; Hopson; Hughes; Jones, J.; Kuempel; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Reyna; Ritter; Rodriguez; Smithee; Solis; Talton; Telford; Thompson; Truitt; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Amendment No. 23

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 71

Amend CSHB 4 as follows:

On Page 4, Line 21, strike the words "its final action on" and insert in lieu thereof "such final action as the agency is authorized regarding"

Amendment No. 23 was adopted without objection.

Amendment No. 24

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 72

Amend CSHB 4 as follows:

On page 5, line 3, strike "shall" and substitute "may"

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 701

Representative Nixon moved to table Amendment No. 24.

A record vote was requested.

The motion to table prevailed by (Record 66): 92 Yeas, 53 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laubenberg; Madden; Marchant; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Chisum; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Flores; Gallego; Garza; Guillen; Hochberg; Hodge; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Giddings; McCall.

Amendment No. 25

Representative Deshotel offered the following amendment to CSHBi4:

Floor Packet Page No. 73

Amend CSHB 4 as follows:

On page 5, line 5, strike "or a substantial part"

On page 5, lines 7-8, strike "an adequate substitute for"

Representative Nixon moved to table Amendment No. 25.

A record vote was requested.

The motion to table prevailed by (Record 67): 94 Yeas, 53 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flores; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King;

702 78th LEGISLATURE — REGULAR SESSION

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Amendment No. 26

Representative Eiland offered the following amendment to CSHBi4:

Floor Packet Page No. 74

Amend CSHB 4 as follows:

On page 5, line 6, between "claimant" and ";", insert "and the entire class".

On page 5, line 9, between "claimant" and ";", insert "and the entire class"

Amendment No. 27

Representative Eiland offered the following amendment to Amendment No.i26:

Amend Amendment No. 26 by Eiland to CSHB 4 (beginning on page 74, amendment packet) on page 1 of the amendment as follows:

(1) On the first line of instructions, strike "entire".

(2) On the second line of instructions, strike "entire".

Amendment No. 27 was adopted without objection.

Amendment No. 26, as amended, was adopted without objection.

Amendment No. 28

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 75

Amend CSHB 4 as follows:

On page 5, line 20, strike "multiple damages,".

Amendment No. 28 was withdrawn.

COMMITTEE MEETING ANNOUNCEMENT

The following committee meeting was announced:

Environmental Regulation, upon recess today, Desk 3, for a formal meeting, to consider pending legislation.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 703

CSHB 4 - (consideration continued)

Amendment No. 29

Representative Deshotel offered the following amendment to CSHBi4:

Floor Packet Page No. 76

Amend CSHB 4 as follows:

On page 5, line 21, between "court" and ".", insert ", if the court makes the determination that such relief could not be obtained through further litigation"

Representative Nixon moved to table Amendment No. 29.

A record vote was requested.

The motion to table prevailed by (Record 68): 90 Yeas, 54 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flores; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Gallego; Garza; Goodman; Guillen; Gutierrez; Hochberg; Hopson; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Crownover; Giddings; Hodge.

STATEMENT OF VOTE

When Record No. 68 was taken, I was in the house but away from my desk. I would have voted yes.

Crownover

Amendment No. 30

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 77

Amend CSHB 4 as follows:

On page 7, line 3, strike "must" and substitute "may"

704 78th LEGISLATURE — REGULAR SESSION

On page 7, line 3-4, strike ", and the fee must be computed as provided by this chapter" and substitute "or paid directly to such attorneys by defendant"

Representative Nixon moved to table Amendment No. 30.

A record vote was requested.

The motion to table prevailed by (Record 69): 88 Yeas, 57 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flynn; Gattis; Goolsby; Griggs; Grusendorf; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Flores; Gallego; Garza; Geren; Guillen; Hartnett; Hochberg; Hodge; Hopson; Hughes; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Giddings; Goodman.

Amendment No. 31

Representative Eiland offered the following amendment to CSHBi4:

Floor Packet Page No. 78

Amend CSHB 4 as follows:

On page 7, line 3, between "fund" and "recovered", insert "or as measured by a common benefit"

Representative Nixon moved to table Amendment No. 31.

A record vote was requested.

The motion to table prevailed by (Record 70): 84 Yeas, 62 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Farabee; Flynn; Gattis; Goodman; Goolsby; Griggs; Grusendorf; Gutierrez; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar;

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 705

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farrar; Flores; Gallego; Garza; Geren; Giddings; Guillen; Hartnett; Hochberg; Hodge; Hopson; Howard; Hughes; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Smithee; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Corte.

STATEMENTS OF VOTE

When Record No. 70 was taken, I was in the house but away from my desk. I would have voted yes.

Corte

I was shown voting yes on Record No. 70. I intended to vote no.

Noriega

Amendment No. 32

Representative Thompson offered the following amendment to CSHBi4:

Floor Packet Page No. 79

Amend CSHB 4 on page 8, following line 13 by adding a new Subsection (c) to read as follows:

"(c) The total fees awarded may not be less than the total fees and expenses charged by the attorney or attorneys representing the defendant."

Representative Nixon moved to table Amendment No. 32.

A record vote was requested.

The motion to table prevailed by (Record 71): 84 Yeas, 62 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Flynn; Gattis; Goodman; Goolsby; Griggs; Grusendorf; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Miller;

706 78th LEGISLATURE — REGULAR SESSION

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Elkins; Farabee; Farrar; Flores; Gallego; Garza; Geren; Giddings; Guillen; Gutierrez; Haggerty; Hochberg; Hodge; Homer; Hopson; Jones, D.; Jones, J.; Kolkhorst; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; Krusee(C).

Absent — Ellis.

Amendment No. 33

Representative Deshotel offered the following amendment to CSHBi4:

Floor Packet Page No. 80

Amend CSHB 4 as follows:

On page 8, line 17, between "costs" and "actually", insert "of litigation".

Amendment No. 33 was adopted without objection.

Amendment No. 34

Representative Deshotel offered the following amendment to CSHBi4:

Floor Packet Page No. 81

Amend CSHB 4 as follows:

On page 9, strike lines 15-18.

(Speaker in the chair)

Representative Nixon moved to table Amendment No. 34.

A record vote was requested.

The motion to table prevailed by (Record 72): 96 Yeas, 51 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eiland; Eissler; Elkins; Ellis; Farabee; Flores; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips;

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 707

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Farrar; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Hopson; Jones, J.; Lewis; Luna; Mabry; Martinez Fischer; McClendon; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — McReynolds.

Amendment No. 35

On behalf of Representative Eiland, Representative Uresti offered the following amendment to CSHBi4:

Floor Packet Page No. 82

Amend CSHB 4 as follows:

On page 10, strike lines 19-25.

Representative Nixon moved to table Amendment No. 35.

A record vote was requested.

The motion to table prevailed by (Record 73): 81 Yeas, 66 Nays, 1 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Farabee; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Riddle; Rose; Seaman; Smith, T.; Smith, W.; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Capelo; Castro; Chavez; Chisum; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farrar; Flores; Gallego; Garza; Giddings; Goodman; Guillen; Gutierrez; Hartnett; Hochberg; Hodge; Homer; Hopson; Hughes; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Reyna; Ritter; Rodriguez; Smithee; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Talton.

708 78th LEGISLATURE — REGULAR SESSION

Amendment No. 36

Representative Dutton offered the following amendment to CSHBi4:

Floor Packet Page No. 83

Amend CSHB 4 as follows:

On page 11, line 6, strike "or pending"

Amendment No. 36 was adopted without objection.

Amendment No. 37

Representative Smithee offered the following amendment to CSHBi4:

Floor Packet Page No. 84

Amend CSHB 4 on page 11, line 6, by striking "or pending".

Amendment No. 37 was adopted without objection.

Amendment No. 38

Representative Gallego offered the following amendment to CSHBi4:

Floor Packet Page No. 85

Amend CSHB 4 by striking page 11, line 10, through page 18, line 21, and substituting the following:

CHAPTER 42. SETTLEMENT OFFERS

Sec.i42.001.iiDEFINITIONS. In this chapter:

(1)ii"Claim" means a request, including a counterclaim, cross-claim, or third-party claim, to recover monetary damages or to obtain other relief. The term does not include a request for an injunction.

(2)ii"Claimant" means a party, including a plaintiff, counterclaimant, cross-claimant, third-party plaintiff, or intervenor, seeking recovery of damages or other relief. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, the term includes both that other person and the party seeking recovery of damages.

(3)ii"Defendant" means a person from whom a claimant seeks recovery of damages or other relief on a claim, including a counterdefendant, cross-defendant, or third-party defendant.

(4)ii"Settlement offer" means an offer made by:

(A)iia defendant to a claimant to settle a claim according to the terms of the defendant's offer before trial; or

(B)iia party found by a trier of fact to be liable to another party for damages to settle for an amount or in the manner specified in the liable party's offer.

Sec.i42.002.iiSETTLEMENT OFFER; ACCEPTANCE; REJECTION. (a) On or before the 10th day before the date set for the commencement of a trial, a defendant may serve on the claimant a settlement offer that allows judgment to be taken against the defendant for the money or property or to the effect specified in the offer, including costs accrued to date.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 709

(b)iiIf, on or before the 10th day after the date the claimant received an offer under Subsection (a), the claimant serves on the defendant who made the offer written notice that the offer is accepted, either party may file the offer and notice of acceptance together with proof of service, and the court shall enter judgment.

(c)iiAn offer not accepted on or before the 10th day after the date the claimant received the offer is considered withdrawn, and evidence of the offer is not admissible except in a proceeding to determine costs.

(d)iiIf the judgment obtained by the claimant is not more favorable than the settlement offer, the claimant shall pay the costs incurred by the defendant after the date the defendant made the offer.

(e)iiThe fact that a settlement offer is made but not accepted does not preclude a subsequent offer.

(f)iiAfter the liability of one party to another has been determined by verdict, order, or judgment, but before the amount or extent of the liability has been determined, the party determined to be liable may make a settlement offer on or before the 10th day before the date set for the start of proceedings to determine the amount or extent of liability. A settlement offer under this subsection that is accepted has the same effect as an offer made before trial under Subsection (a).

SECTIONi2.02.iiThis article applies only to a civil action commenced on or after the effective date of this article. An action commenced before the effective date of this article is governed by the law in effect immediately before the effective date of this article, and that law is continued in effect for that purpose.

(J. Keffer in the chair)

Representative Nixon moved to table Amendment No. 38.

A record vote was requested.

The motion to table prevailed by (Record 74): 83 Yeas, 63 Nays, 2 Present, not voting.

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Farabee; Flores; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hill; Hope; Howard; Hunter; Hupp; Isett; Jones, E.; Keel; Keffer, B.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; McCall; Mercer; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Rose; Seaman; Smith, W.; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farrar; Gallego; Garza; Giddings; Guillen; Gutierrez; Hartnett; Hilderbran; Hochberg; Hodge; Homer; Hopson; Hughes; Jones, D.; Jones, J.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt;

710 78th LEGISLATURE — REGULAR SESSION

Present, not voting — Mr. Speaker; Keffer, J.(C).

Absent — Smithee.

Amendment No. 39

Representative Mabry offered the following amendment to CSHBi4:

Floor Packet Page No. 87

Amend CSHB 4 as follows:

On page 12, after line 11, insert a new subsection (2) to read as follows and renumber accordingly:

(2) involving a dispute between a landlord and a tenant: in their capacities as landlord and tenant:

COMMITTEE MEETING ANNOUNCEMENT

The following committee meeting was announced:

Public Education, Subcommittee on Mandate Reform, meeting tomorrow, March 20, is canceled.

CSHB 4 - (consideration continued)

(Speaker in the chair)

Amendment No. 40

Representative Nixon offered the following amendment to Amendment No.i39:

Amend Amendment No. 39 by Mabry to CSHB 4 (beginning page 87, amendment packet) on line 3 of the amendment between "between a" and "landlord", by inserting "residential".

HOUSE AT EASE

At 9:12 p.m., the speaker announced that the house would stand at ease.

The speaker called the house to order at 9:46 p.m.

CSHB 4 - (consideration continued)

Amendment No. 40 was adopted without objection.

Amendment No. 39 was withdrawn.

Amendment No. 41

Representative Gallego offered the following amendment to CSHBi4:

Floor Packet Page No. 88

Amend CSHB 4 as follows:

On page 12, after line 11, insert a new subsection (2) to read as follows and renumber accordingly:

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 711

(2) brought by a homeowners association to enforce deed restrictions or to collect delinquent association fees, dues or assessments:

Amendment No. 41 was adopted without objection.

Amendment No. 42

Representative Telford offered the following amendment to CSHBi4:

Floor Packet Page No. 89

Amend CSHB 4 as follows:

On page 12, after line 11, insert a new subsection (2) to read as follows and renumber accordingly:

(2) brought under the Probate Code:

Amendment No. 43

Representative Eiland offered the following amendment to Amendment No.i42:

Amend Amendment No. 42 by Telford to CSHB 4 (beginning on page 89, amendment packet) on page 1 of the amendment by striking lines 1-3 and substituting:

(1) On page 12, line 14, strike "or".

(2) On page 12, strike line 16 and substitute:

Subtitle A, Title 5, Labor Code;

(5) the Longshore and Harbor Workers' Compensation Act (33 U.S.C. Section 901 et seq), as amended; or

(6) the Jones Act (46 U.S.C. Section 688), as amended.

Amendment No. 43 was adopted without objection.

Amendment No. 42, as amended, was adopted without objection.

Amendment No. 44

Representatives Hope, Gattis, and Ritter offered the following amendment to CSHBi4:

Floor Packet Page No. 90

Amend CSHB 4 as follows:

(1)iiOn page 12, strike lines 6 through 16 and substitute the following:

Sec.i42.002.iiAPPLICABILITY AND EFFECT. (a) This chapter does not apply to:

(1)iian action in which a class has been certified; and

(2)iian action by or against a governmental unit.

(b)iiWithout regard to whether an action is brought by itself or in conjunction with other actions, this chapter does not apply to an action:

(1)iibrought under the Family Code;

(2)iibrought under Chapter 27, Property Code;

(3)iibrought under the Tax Code;

(4)iibrought on behalf of a minor or person of unsound mind; or

712 78th LEGISLATURE — REGULAR SESSION

(5)iito collect workers' compensation benefits under Subtitle A, Title 5, Labor Code.

(2)iiStrike page 12, line 27, through page 13, line 11.

(3)iiOn page 13, line 12, strike "Sec. 42.004." and substitute "Sec. 42.003."

(4)iiOn page 13, line 16, strike "Sec. 42.005." and substitute "Sec. 42.004."

(5)iiStrike page 15, line 17, through page 16, line 16, and substitute:

Sec.i42.055.iiAWARD OF LITIGATION COSTS. (a) Any defendant who makes a settlement offer under this chapter to a claimant seeking monetary relief shall recover litigation costs from the claimant if:

(1)iithe settlement offer is rejected;

(2)iithe amount of monetary relief to be awarded in the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the claimant after rejection of the offer, is more favorable to the defendant or group of defendants who made the settlement offer than the settlement offer; and

(3)iithe difference between the amount of monetary relief to be awarded to the claimant in the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the claimant after rejection of the offer, and the amount of the settlement offer is equal to or greater than 10 percent of the amount of the settlement offer.

(b)iiAny defendant who makes a settlement offer to a claimant seeking nonmonetary relief, other than injunctive relief, may recover litigation costs from the claimant if:

(1)iithe settlement offer is rejected; and

(2)iithe judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the claimant after rejection of the offer, is more favorable to the defendant or group of defendants who made the settlement offer than the settlement offer.

(6)iiOn page 16, line 17, strike "(d)" and substitute "(c)".

(7)iiOn page 16, line 22, strike "(e)" and substitute "(d)".

(8)iiOn page 16, line 26, strike "(f)" and substitute "(e)".

(9)iiOn page 17, line 6, strike "(g)" and substitute "(f)".

(10)iiOn page 17, line 11, strike "(h)" and substitute "(g)".

Amendment No. 45

Representative Van Arsdale offered the following amendment to Amendment No. 44:

Amend Amendment No. 44 by Hope to CSHB 4 (beginning on page 90, amendment packet) on page 1 of the amendment, line 6, by striking "and" and substituting "or".

Amendment No. 45 was adopted without objection.

Amendment No. 46

Representative Hochberg offered the following amendment to Amendment No. 44:

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 713

Amend Amendment No. 44 by Hope to CSHB 4 (beginning on page 90, amendment packet) on page 1 of the amendment as follows:

(1) On line 15, strike "or".

(2) Strike line 17 and substitute:

Subtitle A, Title 5, Labor Code; or

(6) brought in small claims court or justice court.

Amendment No. 46 was adopted without objection.

Amendment No. 47

Representative Gattis offered the following amendment to Amendment No.i44:

Amend Amendment No. 44 by Hope to CSHB 4 (beginning on page 90, amendment packet) by striking everything after line 1 and substituting the following:

(1) On page 12, strike lines 6 through 16 and substitute the following:

Sec. 42.002. APPLICABILITY AND EFFECT. (a) This chapter does not apply to:

(1) an action in which a class has been certified; or

(2) an action by or against a governmental unit.

(b) Without regard to whether on action is brought by itself or in conjunction with other actions, this chapter does not apply to an action:

(1) brought under the Family Code;

(2) brought under Chapter 27, Property Code;

(3) brought under the Tax Code;

(4) brought on behalf of a minor or person of unsound mind;

(5) to collect workers' compensation benefits under Subtitle A, Title 5, Labor Code;

(6) brought under the Longshore and Harbor Workers' Compensation Act (33 U.S.C. Section 901 et seq), as amended;

(7) brought under the Jones Act (46 U.S.C. Section 688), as amended;

(8) brought in small claims court or justice court; or

(9) brought by a homeowners association to enforce deed restrictions or to collect delinquent fees, dues, or assessments.

(2) Strike page 12, line 27, through page 13, line 11.

(3) On page 13, line 12, strike "Sec. 42.004." and substitute "Sec. 42.003."

(4) On page 13, line 16, strike "Sec. 42.005." and substitute "Sec. 42.004."

(5) Strike page 15, line 17, through page 16, line 16, and substitute:

Sec. 42.055. AWARD OF LITIGATION COSTS. (a) Any defendant who makes a settlement offer under this chapter to a claimant seeking monetary relief shall recover litigation costs from the claimant if:

(1) the settlement offer is rejected;

(2) the amount of monetary relief to be awarded in the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the claimant after rejection of the offer, is more favorable to the defendant or group of defendants who made the settlement offer than the settlement offer; and

714 78th LEGISLATURE — REGULAR SESSION

(3) the difference between the amount of monetary relief to be awarded to the claimant in the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the claimant after rejection of the offer, and the amount of the settlement offer is equal to or greater than 10 percent of the amount of the settlement offer.

(b) Any defendant who makes a settlement offer to a claimant seeking nonmonetary relief, other than injunctive relief, may recover litigation costs from the claimant if:

(1) the settlement offer is rejected; and

(2) the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the claimant after rejection of the offer, is more favorable to the defendant or group of defendants who made the settlement offer than the settlement offer.

(6) On page 16, line 17, strike "(d)" and substitute "(c)".

(7) On page 16, line 22, strike "(e)" and substitute "(d)".

(8) On page 16, line 26, strike "(f)" and substitute "(e)".

(9) On page 17, line 6, strike "(g)" and substitute "(f)".

(10) On page 17, line 11, strike "(h)" and substitute "(g)".

Amendment No. 47 was adopted without objection.

Amendment No. 44, as amended, was adopted without objection.

Amendment No. 48

Representative Burnam offered the following amendment to CSHBi4:

Floor Packet Page No. 92

Amend CSHB 4 as follows:

On Page 12, after Line 12 insert a new subdivision (3) to read as follows and renumber the remaining subdivisions appropriately:

(4) involving condemnation of property by a governmental entity, including an action governed by Chapter 21, Property Code, or any other law;

Amendment No. 48 was withdrawn.

Amendment No. 49

Representative Mabry offered the following amendment to CSHBi4:

Floor Packet Page No. 95

Amend CSHB 4 as follows:

On page 11, line 7, strike entire Article 2 of the bill, and renumber accordingly.

(West in the chair)

Representative Nixon moved to table Amendment No. 49.

A record vote was requested.

The motion to table prevailed by (Record 75): 78 Yeas, 68 Nays, 2 Present, not voting.

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 715

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flynn; Gattis; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hilderbran; Hill; Hope; Howard; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Laubenberg; Madden; Marchant; McCall; Mercer; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Riddle; Rose; Seaman; Smith, W.; Solomons; Stick; Swinford; Taylor; Truitt; Van Arsdale; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Flores; Gallego; Garza; Geren; Giddings; Goodman; Guillen; Gutierrez; Hartnett; Hochberg; Hodge; Homer; Hopson; Hughes; Jones, J.; Kuempel; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Moreno, P.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Raymond; Reyna; Ritter; Rodriguez; Smith, T.; Smithee; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker; West(C).

Absent — Quintanilla.

Amendment No. 50

Representative Telford offered the following amendment to CSHBi4:

Floor Packet Page No. 94

Amend CSHB 4 as follows:

On page 11, line 26, after the word "reasonable", insert "and necessary".

On page 12, line 1, after the word "reasonable", insert "and necessary".

Amendment No. 50 was adopted without objection.

Amendment No. 51

Representative Mabry offered the following amendment to CSHBi4:

Floor Packet Page No. 93

Amend CSHB 4 as follows:

On page 11, line 26 at the end of the line add "and"

On page 11, strike line 27, and substitute (b) taxable costs.

On page 12, strike lines 1-3.

Representative Nixon moved to table Amendment No. 51.

(Speaker in the chair)

A record vote was requested.

The motion to table prevailed by (Record 76): 95 Yeas, 50 Nays, 1 Present, not voting.

716 78th LEGISLATURE — REGULAR SESSION

Yeas — Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Ellis; Farabee; Flynn; Gattis; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Heflin; Hegar; Hilderbran; Hill; Homer; Hope; Howard; Hughes; Hunter; Hupp; Isett; Jones, D.; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Madden; Marchant; McCall; Mercer; Merritt; Miller; Morrison; Mowery; Nixon; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Stick; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wohlgemuth; Wong; Woolley; Zedler.

Nays — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Farrar; Gallego; Garza; Giddings; Guillen; Gutierrez; Hochberg; Hodge; Hopson; Jones, J.; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Naishtat; Noriega; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Solis; Telford; Thompson; Turner; Uresti; Villarreal; Wilson; Wise; Wolens.

Present, not voting — Mr. Speaker(C).

Absent — Flores; Moreno, P.; Oliveira.

Amendment No. 52

Representative Mabry offered the following amendment to CSHBi4:

Floor Packet Page No. 102

Amend CSHB 4 as follows:

In Sec. 2.01 of the bill:

On page 12, Line 6 after "EFFECT." insert a new Subsection (a) to read as follows and renumber accordingly:

(a) It is the policy of this state to enact incentives and procedures to encourage the settlement of civil cases on terms that are fair and just to all parties, whether claimant or defendant. The procedures in this chapter are intended to be balanced toward all claimants and all defendants. It is the intent of the Legislature that, to the greatest extent possible, these procedures shall be implemented such that claims are resolved efficiently and fairly and without overreaching by any party or abuse of the system of civil justice.

On page 13, line 22 strike "defendant"

On page 13, line 23 strike "defendants" and substitute "parties" and strike "claimant" and substitute "party"

On page 13, lines 24-25 strike "that defendant or those defendants and the claimant" and substitute "the parties"

On page 14, line 8 strike "defendant or group of defendants" and substitute "party"

On page 14, line 11 strike "offering"

On page 14, line 13 strike "offering"

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 717

On page 14, line 15 strike "defendant or group of defendants" and substitute "party"

On page 14, line 21 strike "claimant" and substitute "party"

On page 14, line 22 strike "claimant" and substitute "party"

On page 14, line 27 strike "defendant or defendants" and substitute "party"

On page 15, line 4 strike "claimant" and substitute "party"

On page 15, line 5 strike "claimant" and substitute "party"

On page 15, line 6 strike "claimant" and substitute "party"

On page 15, lines 7-8 strike "defendant or group of defendants" and substitute "party"

On page 15, line 12 strike "claimant" and substitute "party"

On page 15, line 14 strike "defendant" and substitute "party"

On page 16, line 10, strike "defendant" and substitute "party"

On page 16, line 10, strike "a claimant" and substitute "another party"

On page 16, line 12, strike "claimant" and substitute "party"

On page 16, lines 14-15, strike "defendant or group of defendants" and substitute "party"

On page 16, line 17, strike "defendant" and substitute "party"

On page 16, line 19, strike "defendant" and substitute "party"

On page 16, line 20, strike "defendant" and substitute "party"

On Page 16, Line 23 strike the "and"

On page 16, line 25 strike the period and substitute ": or"

On page 16, between lines 25 and 26, insert a new subdivision (3) to read as follows:

(3) be added to the claimant's recovery against any nonsettling defendant..

On page 18, lines 2 through 5, replace the word "claimant" with the word "party" in each place in which it appears

On page 18, line 6 replace the word "claimant's" with the word "party's"

On page 18, line 7 replace the words "defendants or group of defendants" with "other party"

Representative Nixon moved to table Amendment No. 52.

A record vote was requested.

The vote of the house was taken on the motion to table Amendment No. 52 and the vote was announced yeas 71, nays 77.

A verification of the vote was requested and was granted.

The roll of those voting yea and nay was again called and the verified vote resulted, as follows (Record 77): 69 Yeas, 74 Nays, 0 Present, not voting.

Yeas — Mr. Speaker(C); Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Christian; Cook, B.; Corte; Crownover; Dawson; Delisi; Denny; Driver; Eissler; Flynn; Gattis; Goolsby; Griggs; Grusendorf; Hamilton; Hamric; Hardcastle; Harper-Brown; Heflin; Hegar; Hilderbran; Hill; Hope; Hunter; Hupp; Jones, E.; Keel; Keffer, B.; Keffer, J.; King; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; Marchant; Mercer;

718 78th LEGISLATURE — REGULAR SESSION

Nays — Alonzo; Bailey; Burnam; Canales; Capelo; Castro; Chavez; Chisum; Coleman; Cook, R.; Davis, J.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Elkins; Ellis; Farabee; Farrar; Flores; Gallego; Garza; Geren; Giddings; Goodman; Guillen; Gutierrez; Haggerty; Hartnett; Hochberg; Hodge; Homer; Hopson; Howard; Jones, D.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Merritt; Moreno, J.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Pitts; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Smith, T.; Smithee; Solis; Swinford; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wise; Wolens.

Absent — Crabb; Hughes; Isett; Jones, J.; Moreno, P.; Wilson.

The speaker stated that the motion to table Amendment No. 52 was lost by the above vote.

LEAVES OF ABSENCE GRANTED

The following members were granted leaves of absence for the remainder of today because of important business:

J. Jones on motion of Deshotel.

P. Moreno on motion of D. Jones.

The following members were granted leaves of absence for the remainder of today because of important business in the district:

Crabb on motion of Hupp.

Isett on motion of Hupp.

CSHB 4 - (consideration continued)

Amendment No. 53

Representative Mabry offered the following amendment to Amendment No.i52:

Amend Amendment No. 52 by Mabry to CSHB 4 (beginning on page 102, amendment packet) by striking lines 1-42 and substituting:

(1)iiOn page 12, between lines 5 and 6, insert:

Sec.i42.0015.iiPOLICY; INTENT. It is the policy of this state to enact incentives and procedures to encourage the settlement of civil cases on terms that are fair and just to all parties, whether claimant or defendant. The procedures in this chapter are intended to be balanced toward all claimants and all defendants. It is the intent of the Legislature that, to the greatest extent possible, these procedures shall be implemented such that claims are resolved efficiently and fairly and without overreaching by any party or abuse of the system of civil justice.

(2)iiStrike page 13, line 22 through page 16, line 25, and substitute:

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 719

Sec.i42.051.iiSETTLEMENT OFFER. (a) A party or a group of parties may serve on a party a settlement offer to settle all claims in the action between the parties.

(b)iiThe settlement offer must:

(1)iibe in writing;

(2)iistate that it is a settlement offer under this chapter;

(3)iistate the terms by which the claims may be settled;

(4)iistate a deadline by which the settlement offer must be accepted; and

(5)iibe served on the claimant to whom the settlement offer is made.

(c)iiA party may not make a settlement offer under this section before the 90th day after the later of:

(1)iithe date any of the defendants filed a responsive pleading; or

(2)iithe date any of the defendants otherwise appeared in the action.

(d)iiA party may not make a settlement offer under this section after the 30th day before the date set for trial.

(e)iiThe parties are not required to file a settlement offer with the court.

Sec.i42.052.iiACCEPTANCE OF SETTLEMENT OFFER. (a) A party may accept a settlement offer made under this chapter on or before 5 p.m. on the 30th day after the date the party received the settlement offer or before the deadline stated in the settlement offer, whichever is later.

(b)iiAcceptance of a settlement offer must be:

(1)iiin writing; and

(2)iiserved on the party who made the settlement offer.

Sec.i42.053.iiWITHDRAWING SETTLEMENT OFFER. (a) A party may withdraw a settlement offer by serving a written withdrawal on the party to whom the settlement offer was made before the party accepts the settlement offer. A party may not accept a settlement offer after it is withdrawn.

(b)iiIf a settlement offer is withdrawn, the party that made the settlement offer is not entitled to recover litigation costs under this chapter.

Sec.i42.054.iiREJECTION OF SETTLEMENT OFFER. For purposes of this chapter, a settlement offer is rejected if:

(1)iithe party to whom the settlement offer was made rejects the settlement offer by serving a written rejection on any party making the settlement offer; or

(2)iithe settlement offer is not withdrawn and is not accepted before the deadline for accepting the offer.

Sec.i42.055.iiAWARD OF LITIGATION COSTS. (a) Any party who makes a settlement offer under this chapter to another party seeking monetary relief shall recover litigation costs from the party if:

(1)iithe settlement offer is rejected;

(2)iithe amount of monetary relief to be awarded in the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the party after rejection of the offer, is more favorable to the party who made the settlement offer than the settlement offer; and

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(3)iithe difference between the amount of monetary relief to be awarded to the party in the judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the party after rejection of the offer, and the amount of the settlement offer is equal to or greater than 10 percent of the amount of the settlement offer.

(b)iiAny party who makes a settlement offer to a party seeking nonmonetary relief, other than injunctive relief, may recover litigation costs from the party if:

(1)iithe settlement offer is rejected; and

(2)iithe judgment, exclusive of any litigation costs awarded under this chapter and exclusive of any attorney's fees, expenses, and costs incurred by the party after rejection of the offer, is more favorable to the party who made the settlement offer than the settlement offer.

(c)iiLitigation costs awarded to a party under this section include only those litigation costs incurred by the party who made a settlement offer after the rejection of the earliest settlement offer that entitles the party to an award of litigation costs under this section.

(d)iiLitigation costs awarded under this section shall:

(1)iibe awarded in the judgment;

(2)iioffset the claimant's recovery against the offering defendant; or

(3)iibe added to the claimant's recovery against any nonsettling defendant.

(3)iiOn page 18, strike lines 2-8, and substitute:

(d)iiIf litigation costs are awarded against a party under this chapter, the party shall not be awarded any attorney's fees, expenses, or costs to which the party would otherwise be entitled under any other law that were incurred by the party after the party's rejection of the earliest settlement offer that entitles the other party to an award of litigation costs under this section.

Amendment No. 53 was adopted without objection.

A record vote was requested.

Amendment No. 52 failed of adoption by (Record 78): 66 Yeas, 79 Nays, 0 Present, not voting.

Yeas — Alonzo; Bailey; Burnam; Canales; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Ellis; Farabee; Farrar; Flores; Gallego; Garza; Geren; Giddings; Goodman; Guillen; Gutierrez; Haggerty; Hartnett; Hochberg; Hodge; Homer; Hopson; Hughes; Jones, D.; Laney; Lewis; Luna; Mabry; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, J.; Naishtat; Noriega; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Smith, T.; Smithee; Solis; Talton; Telford; Thompson; Turner; Uresti; Villarreal; Wise; Wolens.

Nays — Mr. Speaker(C); Allen; Baxter; Berman; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Capelo; Casteel; Chisum; Christian; Cook, B.; Corte; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Eissler; Elkins; Flynn; Gattis; Goolsby; Griggs; Grusendorf; Hamilton; Hamric;

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 721

Absent, Excused — Crabb; Isett; Jones, J.; Moreno, P.

COMMITTEE MEETING ANNOUNCEMENTS

The following committee meetings were announced:

Appropriations, will not meet on March 20.

Juvenile Justice and Family Issues, will not meet on March 20.

Environmental Regulation, upon adjournment today, March 20, Desk 3, for a formal meeting, to consider pending legislation.

FIVE DAY POSTING RULE SUSPENDED

Representative Hill moved to suspend the five day posting rule to allow the Committee on Local Government Ways and Means to consider HB 1782 and HJR 69.

The motion prevailed without objection.

RECESS

Representative Allen moved that the house recess until 9ia.m. today in memory of J. C. Swadley.

The motion prevailed without objection.

The house accordingly, at 1:21 a.m. Thursday, March 20, recessed until 9ia.m. today.

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AAAAAADDENDUMAAAAA

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SIGNED BY THE SPEAKER

The following bills and resolutions were today signed in the presence of the house by the speaker:

House List No. 14

HCRi29, HCRi30, HCRi105

Senate List No. 9

SBi15

MESSAGES FROM THE SENATE

The following messages from the senate were today received by the house:

722 78th LEGISLATURE — REGULAR SESSION

Message No. 1

MESSAGE FROM THE SENATE

SENATE CHAMBER

Austin, Texas

Wednesday, March 19, 2003

The Honorable Speaker of the House

House Chamber

Austin, Texas

Mr. Speaker:

I am directed by the senate to inform the house that the senate has taken the following action:

THE SENATE HAS PASSED THE FOLLOWING MEASURES:

Relating to the financing of assessments performed by the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf.

Relating to the creation of a statewide alert system for abducted children.

Relating to the superintendents of the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf.

Respectfully,

Patsy Spaw

Secretary of the Senate

Message No. 2

MESSAGE FROM THE SENATE

SENATE CHAMBER

Austin, Texas

Wednesday, March 19, 2003 - 2

The Honorable Speaker of the House

House Chamber

Austin, Texas

Mr. Speaker:

I am directed by the senate to inform the house that the senate has taken the following action:

THE SENATE HAS PASSED THE FOLLOWING MEASURES:

Recognizing March 19, 2003, as Paris-Lamar County Day at the State Capitol.

Respectfully,

Patsy Spaw

Secretary of the Senate

Wednesday, March 19, 2003 HOUSE JOURNAL — 36th Day 723

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STANDING COMMITTEE REPORTS

Favorable reports have been filed by committees as follows:

March 18

Energy Resources - HBi1193, HBi1195

Government Reform - HBi898

Pensions and Investments - HBi1822

ENGROSSED

March 18 - HBi12, HBi43, HBi44, HBi151, HBi212, HBi233, HBi234, HBi338, HBi479, HBi555, HBi850

ENROLLED

March 18 - HCRi105

SIGNED BY THE GOVERNOR

March 18 - HCRi12, HCRi60, HCRi61, HCRi67, HCRi76, HCRi77, HCRi78, HCRi98

724 78th LEGISLATURE — REGULAR SESSION