                                                                             ACCEPTED
                                                                        13-16-00099-CV
                                                        THIRTEENTH COURT OF APPEALS
                                                               CORPUS CHRISTI, TEXAS
                                                                 12/30/2016 10:09:11 PM
                                                                       Dorian E. Ramirez
                                                                                  CLERK

                     NO. 13-16-00099-CV
 ________________________________________________________
                                                FILED IN
                IN THE COURT OF APPEALS 13th COURT   OF APPEALS
                                     CORPUS CHRISTI/EDINBURG, TEXAS
             FOR THE THIRTEENTH DISTRICT 1/3/2017 8:00:00 AM
          AT CORPUS CHRISTI/EDINBURG, TEXAS
                                          DORIAN E. RAMIREZ
 ________________________________________________________
                                                 Clerk


                      FIRST CASH, LTD

                             VS

          JQ-PARKDALE, LLC, H&JQ PD, LLC,
  W-SB STAPLES/SPID LLC, R-SB STAPLES/SPID, LLC,
PARKDALE INCOME PARTNERS, LP, & CAPITOL AREA
           RETAIL DEVELOPMENT, II, INC.
________________________________________________________

            AN APPEAL FROM THE 319th COURT
               OF NUECES COUNTY, TEXAS
 ________________________________________________________

                CROSS-APPELLEES’ BRIEF
          FOR JQ-PARKDALE, LLC, H&JQ PD, LLC,
   W-SB STAPLES/SPID LLC, and R-SB STAPLES/SPID, LLC
________________________________________________________
                              John Runde
                              Tx Bar # 24093084
                              Eric Stewart
                              Tx Bar # 24058133
                              HUSEMAN & STEWART
                              615 N. Upper Broadway #2000
                              Corpus Christi, Tx 78401
                              Tel: 361.883.3563
 ORAL ARGUMENT IS RE-         Fax: 361.883.0210
 QUESTED                      JRunde@HusemanStewart.com
                              EStewart@HusemanStewart.com




                                  1
     NAMES AND ADDRESSES OF ALL PARTIES

APPELLANT/CROSS-AP-   First Cash, ltd.
PELLEE:
TRIAL COUNSEL:        Mr. Patrick L. Gaas
                      Mr. Paul Catalano
                      Mr. Edward S. Hubbard
                      COATS ROSE YALE RYMAN & LEE, PC
                      3 East Greenway Plaza, Suite 2000
                      Houston, TX 77046
                      Email: pgaas@coatsrose.com
                      Email: pcatalano@coatsrose.com
                      Email: ehubbard@coatsrose.com

                      Mr. Darrell Barger
                      Mr. Richard Crews
                      HARTLINE DACUS BARGER DEYER, LLP
                      800 N. Shoreline Blvd.
                      Suite 2000, N. Tower
                      Corpus Christi, TX 78401
                      Email: dbarger@hdbdlaw.com
                      Email: rcrews@hdbdlaw.com

APPELLATE COUNSEL:    Mr. Edward S. Hubbard
                      Mr. Patrick L. Gaas
                      COATS ROSE YALE RYMAN & LEE, PC
                      3 East Greenway Plaza, Suite 2000
                      Houston, TX 77046
                      Email: pgaas@coatsrose.com
                      Email: ehubbard@coatsrose.com

                      Mr. Richard Crews
                      HARTLINE DACUS BARGER DEYER, LLP
                      800 N. Shoreline Blvd.
                      Suite 2000, N. Tower
                      Corpus Christi, TX 78401
                      Email: rcrews@hdbdlaw.com




                            2
APPELLEES/CROSS-AP-   JQ-Parkdale, LLC, H&JQ PD, LLC,
PELLANTS              W-SB Staples/SPID LLC, R-SB Sta-
                      ples/SPID LLC
TRIAL COUNSEL:        Van Huseman
                      Eric Stewart
                      HUSEMAN & STEWART
                      615 N. Upper Broadway #2000
                      Corpus Christi, Tx 78401
                      Tel: 361.883.3563
                      Fax: 361.883.0210
                      VHuseman@HusemanStewart.com
                      EStewart@HusemanStewart.com
APPELLATE COUNSEL:    John Runde
                      Eric Stewart
                      HUSEMAN & STEWART
                      615 N. Upper Broadway #2000
                      Corpus Christi, Tx 78401
                      Tel: 361.883.3563
                      Fax: 361.883.0210
                      JRunde@HusemanStewart.com
                      EStewart@HusemanStewart.com

APPELLEES:            Parkdale Income Partners, LP, and
                      Capitol Area Retail Development, II,
                      Inc.
TRIAL AND APPELLATE   Paul Dodson
COUNSEL:              218 Leming Ave.
                      Corpus Christi, Tx 78404
                      Tel: 361.364.7415
                      Fax: 361.237.1963
                      paul@PaulDodson.net




                           3
                REQUEST FOR ORAL ARGUMENT

      JQ-Parkdale, LLC, H&JQ PD, LLC, W-SB Staples/SPID LLC, and R-
SB Staples/SPID LLC, respectfully request oral argument at the time of sub-
mission.




                                      4
                                        TABLE OF CONTENTS

NAMES AND ADDRESSES OF ALL PARTIES ................................................ 2	
REQUEST FOR ORAL ARGUMENT .................................................................. 4	

TABLE OF CONTENTS .......................................................................................... 5	
LIST OF AUTHORITIES.......................................................................................... 7	
REPLY ISSUE ............................................................................................................ 10	
      Reply Issue: Texas Civil Practice and Remedies Code § 38.001 does not
      authorize recovery of attorney fees from a limited liability company ......... 10	
STATEMENT OF FACTS ...................................................................................... 11	
SUMMARY OF THE ARGUMENT ..................................................................... 11	

      Texas Civil Practice and Remedies Code § 38.001 does not authorize
      recovery of attorney fees from a limited liability company ........................... 12	
            Standard of review for JNOV and statutory construction ..................... 12	
            Primary rule of statutory interpretation: if the law is not ambiguous,
            read it literally ................................................................................................ 13	
            Chapter 38 means what it says: only individuals and corporations can
            be liable for attorney fees, not LLCs ......................................................... 14	
                    LLCs are not corporations ................................................................. 14	
                    All of First Cash’s arguments to ignore the wording of § 38.001
                    have been rejected ............................................................................... 17	
                       ‘Fleming involved a limited partnership’ ....................................... 17	
                         ‘Corporations and limited liability companies are similar’ ........ 17	
                         ‘Attorney fees have been awarded against limited-liability
                         entities’ .............................................................................................. 18	
                         ‘The revision to Article 2226 was nonsubstantive’ .................... 19	
                    The Legislature has rejected efforts to amend § 38.001 to include
                    non-corporation entities ..................................................................... 20	




                                                                5
         Intermediate appellate courts lack the authority to make
         exceptions to the American Rule ...................................................... 22	
PRAYER FOR RELIEF ........................................................................................... 23	
CERTIFICATE OF SERVICE ............................................................................... 24	
CERTIFICATE OF COMPLIANCE .................................................................... 24	
APPENDIX ................................................................................................................ 25	




                                                             6
                                        LIST OF AUTHORITIES

Cases	
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp.,
    299 S.W.3d 106 (Tex. 2009) ............................................................................. 23
Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438 (Tex. App.—Houston [14th
    Dist.] 2016, pet. denied) ............................................................................. 16, 20
Baylor Health Care Sys. v. Nat’l Elevator Indus. Health Benefit Plan, 2008
    U.S. Dist. LEXIS 4304 (N.D. Tex. 2008) ................................................ 17, 21
Box v. Dallas Mexican Consulate Gen., 2014 WL 3952932, 2014 U.S. Dist.
   LEXIS 111751 (N.D. Tex. 2014), aff’d, 623 Fed. Appx. 649 (5th Cir.
   2015), cert. denied, 136 S. Ct. 1729 (2016) .................................................... 17
Campbell v. State, 85 S.W.3d 176 (Tex 2002) ...................................................... 20
CBIF Ltd. P’ship v. TGI Friday’s Inc., No. 050-15-00157-CV, 2016 Tex. App.
   LEXIS 12844 (Tex. App.—Dallas 2016, no pet. h.) .................................... 16
Choice! Power, L.P. v. Feeley, 2016 WL 4151041, 2016 Tex. App. LEXIS
   8409, (Tex. App.—Houston [1st Dist.] 2016, no pet.) ...................15, 16, 20
City of Corpus Christi v. Taylor, 126 S.W.3d 712 (Tex. App.—Corpus Christi
    2004, pet. dism’d) .............................................................................................. 13
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ........................................ 13
Combs v. Health Care Servs. Corp., 401 S.W.3d 623 (Tex. 2013) .................... 15
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009). ............... 14
Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) ....................................................... 23
Exco Operating Co. v. McGee, 2016 WL 4379484, 2016 Tex. App. LEXIS
   8934 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (mem. op.) ............ 17
Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560 (Tex. App.—Houston
    [14th Dist.], pet. denied) ............................................................................. 17, 21
Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999)................ 20
Ganz v. Lyons P’ship, L.P., 173 F.R.D. 173 (N.D. Tex. 1997) ................... 17, 19
Greco v. NFL, 2015 U.S. Dist. LEXIS 96239 (N.D. Tex. 2015) ................ 17, 20
Hoffman v. L&M Arts, 2015 US. Dist. LEXIS 27784 (N.D. Tex. 2015) . 17, 18,
   19, 20




                                                                7
In the Interest of A.M., 101 S.W.3d 480 (Tex. App.—Corpus Christi 2002),
     rev’d, 192 S.W.3d 570 (Tex. 2006) .................................................................. 20
In the Interest of M.N., 262 S.W.3d 799 (Tex. 2008) ......................................... 14
Lair v. Horn, 2002 WL 34249735, 2002 Tex. App. LEXIS 2935 (Tex. App.—
    Corpus Christi 2002, pet. denied) (mem. op.), cert. denied, 539 U.S. 965
    (2003) ................................................................................................................... 20
Marmon v. Mustang Aviation, Inc. 430 S.W.2d 182, (Tex. 1968) ..................... 22
Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) ............................................... 14
Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525 (Tex. 2000). ...................... 14
Nathan v. Whittington, 408 S.W.3d 870 (Tex. 2013) .......................................... 14
Petro. Solutions, Inc. v. Head, 454 S.W.3d 518 (Tex. App.—Corpus Christi
    2011), aff’d in part, rev’d in part, (Tex. 2014) ............................................... 23
Reedy v. Pompa, 310 S.W.3d 112 (Tex. App.—Corpus Christi 2010), rev’d,
   (Tex. 2011) .......................................................................................................... 14
Riner v. Neumann, 353 S.W.3d 312 (Tex. App.—Dallas 2011, no pet.) ......... 23
SJ Med. Ctr., LLC v. Estahbanati, 418 S.W.3d 867 (Tex. App.—Houston [14th
    Dist.] 2013, no pet.)........................................................................................... 18
St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex.1997) ................... 14
Tex. DOT v. Needham, 82 S.W.3d 314 (Tex. 2002) ........................................... 14
Tony Gullo Motor I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). ................... 23
Traxler v. Enrgergy Gulf States, Inc., 376 S.W.3d 742 (Tex. 2012) .................. 22
Traxxas, L.P. v. Dewitt, 2015 WL 7777986, 2015 U.S. Dist. LEXIS 161763
    (E.D. Tex. 2015) ................................................................................................ 17
United States v. South Buffalo Ry., 333 U.S. 771 (1947) .................................... 22
Varel Int'l Indus., L.P. v. PetroDrillbits Int'l, Inc., 2016 WL 4535779, 2016
    Tex. App. LEXIS 9619 (Tex. App.— Dallas 2016, pet. denied) (mem.
    op.) ....................................................................................................................... 16
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897 (Tex. 2004) .................. 13


Statutes	
TEX. BUS. ORGS. CODE § 1.002 .............................................................................. 15




                                                                      8
TEX. CIV. PRAC. & REM. CODE § 38.001 .............................................................. 15
TEX. REV. CIV. STAT. ANN. art. 2226 (Vernon Supp. 1985) (repealed 1985) . 20


Rules	
TEX. R. APP. 33 ......................................................................................................... 20


Other Authorities	
Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38
   TEX. L. REV. 361, 366 (1960). ......................................................................... 13
W. Wendell Hall, & al., Hall’s Standards of Review in Texas, 42 ST. MARY’S L. J. 3
   (2010) ................................................................................................................... 13




                                                                    9
                     NO. 13-16-00099-CV
 ________________________________________________________

                IN THE COURT OF APPEALS
             FOR THE THIRTEENTH DISTRICT
          AT CORPUS CHRISTI/EDINBURG, TEXAS
 ________________________________________________________

                           FIRST CASH, LTD

                                    VS

           JQ-PARKDALE, LLC, H&JQ PD, LLC,
   W-SB STAPLES/SPID LLC, R-SB STAPLES/SPID, LLC,
 PARKDALE INCOME PARTNERS, LP, & CAPITOL AREA
            RETAIL DEVELOPMENT, II, INC.
 ________________________________________________________

            AN APPEAL FROM THE 319th COURT
               OF NUECES COUNTY, TEXAS
 ________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      JQ-Parkdale, LLC, H&JQ PD, LLC, W-SB Staples/SPID, LLC, AND

R-SB Staples/SPID, LLC, file their brief as Cross-Appellants.


                               REPLY ISSUE

      Texas Civil Practice and Remedies Code § 38.001 does not authorize re-

covery of attorney fees from a limited liability company.




                                       10
                         STATEMENT OF FACTS

      First Cash sued its Landlord, four limited liability companies (JQ-Park-

dale, LLC, H&JQ PD, LLC, W-SB Staples/SPID LLC, and R-SB Staples/

SPID LLC) jointly, for breach of a written lease and sought attorney fees under

Chapter 38 of the Civil Practice and Remedies Code. C.R. 48, 52 (Fourth

Amended Petition). Over objection, the trial court submitted an attorney fee

question, with the caveat that it did not expect to award any attorney fees to

First Cash. 20 R.R. 142, 184. The jury made a fact finding on First Cash’s attor-

ney fees, but, following the Landlord’s objection, the trial court declined to

award fees against those limited liability companies. 2 Supp. C.R. 4, 14-15

(Court’s Charge), 813 (Defendants’ Amended Motion for Judgment N.O.V.),

881 (Final Judgment).


                   SUMMARY OF THE ARGUMENT

      Chapter 38 of the Civil Practice and Remedies Code authorizes an award

of attorney fees only against individuals and corporations. The Landlord de-

fendants are neither individuals nor corporations; they are limited liability com-

panies. The trial court correctly interpreted Section 38.001 and properly fol-

lowed the cases dealing with the liability of non-corporate entities under that

statute when it declined to award attorney fees to First Cash.




                                        11
                                  ARGUMENT
Reply Issue Restated: Texas Civil Practice and Remedies Code § 38.001 does
not authorize recovery of attorney fees from a limited liability company.

       Standards of review for JNOV and statutory construction. Appellate

courts review a judgment notwithstanding the verdict under a legal sufficiency

standard. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); W. Wendell

Hall, & al., Hall’s Standards of Review in Texas, 42 ST. MARY’S L. J. 3, 195-196

(2010). Evidence is legally insufficient if the record reflects one of the follow-

ing:

       • there is a complete absence of evidence of a vital fact,

       • the court is barred by rules of law or of evidence from giving
         weight to the only evidence offered to prove a vital fact,

       • the evidence offered to prove a vital fact is no more than a
         mere scintilla, or

       • the evidence establishes conclusively the opposite of a vital
         fact.

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004); City of Cor-

pus Christi v. Taylor, 126 S.W.3d 712, 717-18 (Tex. App.—Corpus Christi 2004,

pet. dism’d); see Robert W. Calvert, “No Evidence” and “Insufficient Evidence”

Points of Error, 38 TEX. L. REV. 361, 366 (1960).




                                         12
       Questions of statutory construction are reviewed de novo. Tex. DOT v.

Needham, 82 S.W.3d 314 (Tex. 2002); Reedy v. Pompa, 310 S.W.3d 112, 117 (Tex.

App.—Corpus Christi 2010), rev’d on other grounds, (Tex. 2011)


       Primary rule of statutory interpretation: if the law is not ambigu-

ous, read it literally. In construing the language of a statute, the court’s pri-

mary goal is to ascertain the legislative intent behind the statute and to interpret

so as to give effect to that intent. In the Interest of M.N., 262 S.W.3d 799, 802

(Tex. 2008); Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.

2000). The legislature’s intent is determined primarily from the plain and com-

mon meaning of the words used. Nathan v. Whittington, 408 S.W.3d 870, 872

(Tex. 2013); Reedy v. Pompa, 310 S.W.3d at 117. The words the Legislature

chooses “should be the surest guide to legislative intent.” Entergy Gulf States, Inc.

v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).

       If the statutory language is unambiguous, courts will typically adopt the

interpretation supported by the statute's plain meaning. St. Luke's Episcopal

Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); Reedy v. Pompa, 310 S.W.3d at

117.This rules apply unless enforcing the plain meaning of the statute as written

would produce absurd or nonsensical results. Molinet v. Kimbrell, 356 S.W.3d

407, 411 (Tex. 2011). This exception, however, is a “high bar,” “reserved for




                                         13
truly exceptional cases, and mere oddity does not equal absurdity.” Combs v.

Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex. 2013).


      Chapter 38 means what it says: only individuals and corporations

can be liable for attorney fees, not LLCs. First Cash argues it should recover

its attorney fees pursuant to Chapter 38 of the Civil Practice and Remedies

Code, which allows recovery of “reasonable attorney’s fees from an individual

or corporation … if the claim is for … an oral or written contract.” TEX. CIV.

PRAC. & REM. CODE § 38.001; First Cash’s Appellant’s brief at 14, et seq. In

making this argument, First Cash ignores the literal wording of the § 38.001

and Texas’s general policy against fee shifting.


      LLCs are not corporations. The Landlord’s entities are all limited

liability companies, not corporations. The word "corporation" has a definite,

statuto-rily-defined meaning in Texas. Choice! Power, L.P. v. Feeley, 2016 WL

4151041, 2016 Tex. App. LEXIS 8409, *28 (Tex. App.—Houston [1st Dist.]

2016, no pet.). Under the Business Organizations Code, a “corporation”

means an entity governed as a corporation under Title 2 or 7 and includes for-

profit, nonprofit, and professional corporations. TEX. BUS. ORGS. CODE §

1.002(14). Title 2 of the Business Organizations Code deals with corporations

and Title 7 deals with




                                        14
professional entities. Limited liability companies are governed under Title 3,

and partnerships are governed under Title 4. Consequently, Chapter 38 literally

does not apply to First Cash’s claim for attorney fees against the defendant lim-

ited liability companies.

        This conclusion, based on the plain meaning of the statute, has been

confirmed by the courts that have reached the issue. “Under the plain language

of section 38.001, a trial court cannot order limited liability partnerships, lim-

ited liability companies, or limited partnerships to pay attorney's fees.” CBIF

Ltd. P’ship v. TGI Friday’s Inc., No. 050-15-00157-CV, 2016 Tex. App. LEXIS

12844, *69 (Tex. App.—Dallas 2016, no pet. h.). In support of this conclusion,

the Dallas Court of Appeals relied on the literal statute and on these decisions:

        • Varel Int'l Indus., L.P. v. PetroDrillbits Int'l, Inc., 2016 WL
          4535779, *7, 2016 Tex. App. LEXIS 9619, *20-21 (Tex.
          App.— Dallas 2016, pet. denied) (mem. op.) (acknowledging
          rule, but finding a fact issue as to whether defendants were
          corporations);1

        • Choice! Power, L.P. v. Feeley, 2016 WL 4151041, 2016 Tex. App.
          LEXIS 8409, *30 (section 38.001 does not permit recovery
          against an L.P.);




1
         First Cash does not argue there is a fact issue about the Landlord entities being lim-
ited liability companies: “none of the Legacy Landlord entities … is a limited partnership—
all of them are limited-liability companies.” First Cash’s Appellants’ brief at 17.




                                               15
          • Alta Mesa Holdings, L.P. v. Ives, 488 S.W.3d 438, 452-53 (Tex.
            App.—Houston [14th Dist.] 2016, pet. denied) (section 38.001
            does not permit recovery against an L.L.C.);

          • Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 574 (Tex.
            App.—Houston [14th Dist.] , pet. denied) (section 38.001 does
            not permit recovery against an L.L.P.)).

          The Dallas Court of Appeals might have cited additional cases to the same

effect:

          • Exco Operating Co. v. McGee, 2016 WL 4379484, *11, 2016 Tex.
            App. LEXIS 8934, *5 (Tex. App.—Houston [1st Dist.] 2016,
            no pet.) (mem. op.) (limited partnership not liable for attorney
            fees);

          • Traxxas, L.P. v. Dewitt, 2015 WL 7777986, 2015 U.S. Dist.
            LEXIS 161763, * 23-24 (E.D. Tex. 2015) (magistrate mem.
            op.) (limited partnership not liable for attorney fees, citing
            Ganz v. Lyons P’ship, L.P., 173 F.R.D. 173 (N.D. Tex. 1997));

          • Hoffman v. L&M Arts, 2015 US. Dist. LEXIS 27784, *25 (N.D.
            Tex. 2015) (limited liability company not liable for attorney
            fees);

          • Greco v. NFL, 2015 U.S. Dist. LEXIS 96239, *11-22 (N.D.
            Tex. 2015) (unincorporated association not liable for attorney
            fees);

          • Box v. Dallas Mexican Consulate Gen., 2014 WL 3952932, 2014
            U.S. Dist. LEXIS 111751, *5-7 (N.D. Tex. 2014), aff’d, 623
            Fed. Appx. 649, 657 (5th Cir. 2015), cert. denied, 136 S. Ct.
            1729 (2016) (foreign government not liable for attorney fees);

          • Baylor Health Care Sys. v. Nat’l Elevator Indus. Health Benefit Plan,
            2008 U.S. Dist. LEXIS 4304 (N.D. Tex. 2008) (ERISA self-
            funded trust not liable for attorney fees);




                                             16
       • Ganz v. Lyons P’ship, L.P., 173 F.R.D. 173 (N.D. Tex. 1997)
         (limited partnership not liable for attorney fees).

       All of First Cash’s arguments to ignore the wording of § 38.001 have

been rejected. The arguments made by First Cash for ignoring the literal word-

ing of Section 38.001 and distinguishing Fleming have all been previously con-

sidered and rejected by Texas courts of appeal.

       •       “Fleming involved a limited partnership.” First Cash Appellant’s

brief at 17. The decisions in Alta Mesa Holdings and Hoffman v. L&M Arts, supra,

rejected this distinction and applied Fleming to limited liability companies.

       •       “Corporations and limited liability companies are similar.” First

Cash argues that because LLCs and corporation both provide providing tax

and liability benefits, they should have the same attorney fee liabilities” First

Cash Appellant’s brief at 17-18. The court in Hoffman v. L&M Arts considered

the arguments that a limited liability company could be treated as an “individ-

ual”2 or a “corporation” and rejected it. That court recognized that LLCs af-

ford “corporation-like benefit of limited liability but with partnership tax treat-

ment,” but found LLCs are neither corporations nor partnerships. Hoffman,



2
        First Cash only argues that an LLC should be treated as a corporation, not an indi-
vidual. First Cash Appellant’s brief at 18.




                                             17
2015 U.S. Dist. LEXIS 27784 at 22, citing SJ Med. Ctr., LLC v. Estahbanati, 418

S.W.3d 867, 874-75 (Tex. App.—Houston [14th Dist.] 2013, no pet). While the

Business Organizations Code occasionally treats LLCs and corporations the

same,

        LLCs and corporations are distinct legal entities. Otherwise, there
        would be no need, for example, for Texas law to provide that cor-
        porations and LLCs are to be treated the same in certain enumer-
        ated circumstances.… Provisions of law that apply to corpora-
        tions would necessarily pertain to LLCs.

Hoffman, 2015 U.S. Dist. LEXIS 27784 at 23, citation omitted. Corporations

and LLCs have some characteristics in common, but they are not identical.

Their similarities provide no basis for departing from the literal wording of §

38.001. See also Ganz, 173 F.R.D. at 177, where the court found multiple dis-

tinctions between a limited partnership and a corporation that precluded treat-

ing a limited partnership as a “corporation” for purposes of § 38,001.

        •     “Attorney fees have been awarded against limited-liability enti-

ties.” First Cash Appellant’s brief at 19, 20 at fn 8. More accurately, attorney

fees have been awarded against LLCs where the applicability of Chapter 38 to limited-

liability entities was not raised or discussed. Cf. Ganz, 173 F.R.D. at 175 (giving “nom-

inal weight” to similar awards—“the courts’ silence suggests there was no issue

raised or considered about the legality of the awarding of such fees against a




                                           18
limited partnership”). None of the cases cited by First Cash required those

courts to consider the argument now presented, which was ruled upon by the

trial court in this case. Issues not raised in the trial court are waived. TEX. R.

APP. 33.1; Campbell v. State, 85 S.W.3d 176, 197 (Tex 2002); Lair v. Horn, 2002

WL 34249735, 2002 Tex. App. LEXIS 2935, *7-8 (Tex. App.—Corpus Christi

2002, pet. denied) (mem. op.), cert. denied, 539 U.S. 965 (2003).

       •      “The revision to Article 2226 was nonsubstantive.” The pre-codi-

fication version of Chapter 38 allowed an award of attorney fees for breach of

contract by “a person or corporation.” TEX. REV. CIV. STAT. ANN. art. 2226

(Vernon Supp. 1985)(repealed 1985). Codification is generally nonsubstantive,

but that is not always the rule. Where “specific provisions of a ‘nonsubstantive’

codification and the code as a whole are direct, unambiguous, and cannot be

reconciled with prior law, the codification rather than the prior, repealed statute

must be given effect.” Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286

(Tex. 1999); In the Interest of A.M., 101 S.W.3d 480, 489 (Tex. App.—Corpus

Christi 2002), rev’d on other grounds, 192 S.W.3d 570 (Tex. 2006). The Fleming

Foods analysis was cited in several of the decisions rejecting the argument now

made by First Cash. See Choice! Power, L.P., 2016 Tex App. LEXIS 8409 at * 26;

Alta Mesa Holdings, L.P. 2016 Tex. App. LEXIS 3872 at *38-40; Greco, 2015 U.S.




                                         19
Dist. LEXIS 96239 at *17; Hoffman v. L&M Arts, 2015 U.S. Dist. LEXIS 27784

at *27; Fleming & Assocs., L.L.P., 425 S.W.3d at 575; Baylor Health Care Sys., 2008

U.S. Dist. LEXIS 43044 at *13-15.


       The Legislature has rejected efforts to amend § 38.001 to include non-

corporation entities. The Texas Legislature has twice considered and twice re-

jected modifications to allow attorney fees to be awarded against other entities

under Chapter 38.

       The Fleming Associates decision was handed down in 2014. Thereafter,

House Bill 230 was introduced in the Texas Legislature; this bill would have

amended § 38.001(a) to allow recovery of reasonable attorney’s fees, in certain

cases, from an individual “or other legal entity.” See Appendix 1.3 The Bill

Analysis states the bill was motivated by “a recent court decision … that a re-

covery of attorney’s fees under certain civil practice and remedies provisions is

inapplicable to partnership, and the parties are concerned that this could also

be interpreted to mean that the statute is inapplicable to limited partnership and




3
        Exhibits 1-3 can be found through the website of the Legislative Reference Library
of Texas: http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legSession=84-
0&billtypeDetail=HB&billNumberDetail=230&billSuffixDetail=&star-
tRow=1&IDlist=&unClicklist=&number=100 (last accessed December 30, 2016).




                                            20
limited liability companies as well. Appendix 2. Although the bill passed the

House, it died in the Senate and never became law. Appendix 3.

       In 2011, after the Ganz and Greco decisions, House Bill 274 was pro-

posed to amend § 38.001 and allow reasonable attorney’s fees to “the prevailing

party with respect to a claim … from an individual, corporation, or other legal en-

tity” in a breach of contract action. Appendix 4.4 H.B. 274, 82nd Leg., Reg.

Sess. (Tex. 2011) (as introduced Mar. 10, 2011). The bill analysis indicated the

amendment would have broadened the scope of § 38.001 to make partnerships,

limited liability companies, trusts, and other non-corporate legal entities to po-

tential liability for attorney’s fees. Appendix 5. The Bill passed the House, but

without this particular change to § 38.001. Exhibit 6. H.B. 274 eventually be-

came law, but only after it was amended to remove the proposed changes to §

38.001. Appendix 7, 8.

       Courts presume the Legislature acts with awareness of relevant case law.

Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742 748 (Tex. 2012). Should an in-

terpretation of a statute by the courts be unacceptable to the Legislature, a sim-

ple remedy is available by the process of legislative amendment. United States v.

4
        Emphasis added. Exhibits 4-6 can also be found through the website of the Legisla-
tive Reference Library of Texas: http://www.lrl.state.tx.us/legis/billsearch/text.cfm?legSes-
sion=82-0&billtypeDetail=HB&billNumberDetail=274&billSuffixDetail=&star-
tRow=1&IDlist=&unClicklist=&number=100 (last accessed December 30, 2016).




                                             21
South Buffalo Ry., 333 U.S. 771, 775 (1947), cited in Marmon v. Mustang Aviation,

Inc., 430 S.W.2d 182, 186 (Tex. 1968). The Legislature acquiesced in the inter-

pretation of § 38.001 that removes non-corporation entities from liability for

attorney fees; it is not up to the courts to rule otherwise.

       Intermediate appellate courts lack the authority to make exceptions to

the American Rule. Texas follows the American Rule, whereby litigants may re-

cover attorney fees only as provided by statute or contract. Epps v. Fowler, 351

S.W.3d 862, 865 (Tex. 2011); Petro. Solutions, Inc. v. Head, 454 S.W.3d 518, 560

(Tex. App.—Corpus Christi 2011), aff’d in part, rev’d in part on other grounds (Tex.

2014). This settled principle has been part of the state’s jurisprudence for over

one hundred years. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. &

Research Corp., 299 S.W.3d 106, 120 (Tex. 2009); Riner v. Neumann, 353 S.W.3d

312, 322 (Tex. App.—Dallas 2011, no pet.). The Texas Supreme Court contin-

ues to adhere to the Rule. See, Tony Gullo Motor I, L.P. v. Chapa, 212 S.W.3d 299,

311 (Tex. 2006). If an exception to the American Rule is to be created from

whole cloth, that is the job of the Supreme Court, and intermediate courts are

not at liberty to create equitable exceptions to the Rule. Riner, 353 S.W.3d at

323.




                                         22
                           PRAYER FOR RELIEF

       WHEREFORE, Appellees pray that this Court deny the relief sought by

First Cash, for costs of court, and for general relief.



                                   Respectfully submitted

                                   /s/ John Runde
                                   John Runde
                                   Tx Bar # 24093084
                                   Eric Stewart
                                   Tx Bar # 24058133
                                   HUSEMAN & STEWART
                                   615 N. Upper Broadway #2000
                                   Corpus Christi, Tx 78401
                                   Tel: 361.883.3563
                                   Fax: 361.883.0210
                                   JRunde@HusemanStewart.com
                                   EStewart@HusemanStewart.com




                                         23
                       CERTIFICATE OF SERVICE

      By affixing my signature below, I certify that a true copy of the foregoing
document was delivered on December 30, 2016, to the following attorneys in
accordance with the Texas Rules of Appellate Procedure:

       Mr. Edward S. Hubbard
       Mr. Patrick L. Gaas
       COATS ROSE YALE RYMAN & LEE, PC
       3 East Greenway Plaza, Suite 2000
       Houston, TX 77046

       Mr. Richard Crews
       HARTLINE DACUS BARGER DEYER, LLP
       800 N. Shoreline Blvd.
       Suite 2000, N. Tower
       Corpus Christi, TX 78401

       Paul Dodson
       218 Leming Ave.
       Corpus Christi, Tx 78404



                                   /s/ John Runde
                                   John Runde



                   CERTIFICATE OF COMPLIANCE

       The number of words in this document, excluding those provisions de-
scribed in TEX. R. APP. P. 9.4(i)(1) is 2642. This figure is provided in reliance on
the word count of the computer program used to prepare this document.




                                        24
                    NO. 13-16-00099-CV
________________________________________________________

               IN THE COURT OF APPEALS
            FOR THE THIRTEENTH DISTRICT
         AT CORPUS CHRISTI/EDINBURG, TEXAS
________________________________________________________

                        FIRST CASH, LTD

                                 VS

          JQ-PARKDALE, LLC, H&JQ PD, LLC,
  W-SB STAPLES/SPID LLC, R-SB STAPLES/SPID, LLC,
PARKDALE INCOME PARTNERS, LP, & CAPITOL AREA
           RETAIL DEVELOPMENT, II, INC.
________________________________________________________

           AN APPEAL FROM THE 319th COURT
              OF NUECES COUNTY, TEXAS
________________________________________________________

                              APPENDIX
Tab   Document                              Record reference

 1    H.B. No. 230                              C.R. 835
 2    H.B. No. 230 (bill analysis)              C.R. 837
 3    H.B. No. 230 (actions taken)              C.R. 838
 4    H.B. No. 274                              C.R. 840
 5.   H.B. No. 274 (bill analysis)              C.R. 853
 6.   H.B. No. 274 (modified)                   C.R. 856
 7.   H.B. No. 274 (enacted)                    C.R. 866
 8.   H.B. No. 274 (actions taken)              C.R. 874




                                     25
     By:AAFarrar                                                       H.B.ANo.A230



                              A BILL TO BE ENTITLED

1                                     AN ACT

2    relating to recovery of attorney ’s fees in certain civil cases.

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

4          SECTIONA1.AASection      38.001,      Civil   Practice      and    Remedies

5    Code, is amended to read as follows:

6          Sec.A38.001.AARECOVERY OF ATTORNEY ’S FEES.              (a)      Except as

7    provided by Subsection (b), a [A] person may recover reasonable

8    attorney ’s fees from an individual, [or] corporation, or other

9    legal entity, in addition to the amount of a valid claim and costs,

10   if the claim is for:

11                 (1)AArendered services;

12                 (2)AAperformed labor;

13                 (3)AAfurnished material;

14                 (4)AAfreight or express overcharges;

15                 (5)AAlost or damaged freight or express;

16                 (6)AAkilled or injured stock;

17                 (7)AAa sworn account; or

18                 (8)AAan oral or written contract.

19         (b)AASubsection    (a)   does       not   authorize   the    recovery       of

20   attorney ’s fees from the state, an agency or institution of the

21   state, or a political subdivision of the state.             This section does

22   not affect any other statute regarding the recovery of attorney ’s

23   fees from the state, an agency or institution of the state, or a

24   political subdivision of the state.




     84R1790 CAE-F                         1

                                                                                 835
                                                           H.B.ANo.A230

1         SECTIONA2.AAThe change in law made by this Act applies only

2   to an award of attorney ’s fees in an action commenced on or after

3   the effective date of this Act.   An award of attorney ’s fees in an

4   action commenced before the effective date of this Act is governed

5   by the law applicable to the award immediately before the effective

6   date of this Act, and that law is continued in effect for that

7   purpose.

8         SECTIONA3.AAThis Act takes effect September 1, 2015.




                                      2

                                                                  836
                                        BILL ANALYSIS



                                                                                          H.B. 230
                                                                                         By: Farrar
                                                                   Judiciary & Civil Jurisprudence
                                                                  Committee Report (Unamended)



BACKGROUND AND PURPOSE

Interested parties point out that a recent court decision held that a recovery of attorney's fees
under certain civil practice and remedies provisions is inapplicable to partnerships, and the
parties are concerned that this could also be interpreted to mean that the statute is inapplicable to
limited partnerships and limited liability companies as well. H.B. 230 seeks to clarify this matter.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase
the punishment for an existing criminal offense or category of offenses, or change the eligibility
of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking
authority to a state officer, department, agency, or institution.

ANALYSIS

H.B. 230 amends the Civil Practice and Remedies Code to include, in addition to an individual
and a corporation, other legal entities among the parties to certain civil cases from which a
person is authorized to recover reasonable attorney's fees. The bill establishes that this provision
does not authorize the recovery of attorney's fees from the state, an agency or institution of the
state, or a political subdivision of the state and that the recovery of attorney's fees in the
applicable cases does not affect any other statute regarding the recovery of attorney's fees from
these state entities.

EFFECTIVE DATE

September 1, 2015.




84R 14119                                                                                15.65.307


                                                 1

                                                                                                837
Texas Legislature Online
History


Bill: HB 230           Legislative Session: 84(R)                               Council Document: 84R 1790 CAE-F



Last Action:           05/21/2015 S Left pending in committee

Caption Version:       Engrossed
Caption Text:          Relating to recovery of attorney's fees in certain civil cases.

Author:                Farrar

Sponsor:               Ellis

Subjects:              Civil Remedies & Liabilities (I0065)
                       Lawyers (I0515)
                       ATTORNEY'S FEES (S0202)

House Committee: Judiciary & Civil Jurisprudence
Status:                Out of committee
Vote:                  Ayes=9    Nays=0    Present Not Voting=0     Absent=0

Senate Committee: State Affairs
Status:                In committee

Actions: (descending date order)
Viewing Votes: Most Recent House Vote
                       Description                            Comment     Date           Time   Journal Page
S Left pending in committee                                             05/21/2015
S Considered in public hearing                                          05/21/2015
S Scheduled for public hearing on . . .                                 05/21/2015
S   Referred to State Affairs                                           05/04/2015                 1296
S   Read first time                                                     05/04/2015                 1296
S   Received from the House                                             04/13/2015                 763
H   Reported engrossed                                                  04/10/2015 08:03 AM        1530
H   Nonrecord vote recorded in Journal                                  04/09/2015                 1449
H Record vote                                                 RV#181 04/09/2015                    1449
H Passed                                                             04/09/2015                    1449
H Read 3rd time                                                      04/09/2015                    1449
H Nonrecord vote recorded in Journal                                    04/09/2015                 1442
H Passed to engrossment                                                 04/09/2015                 1442

H   Read 2nd time                                                       04/09/2015                 1442
H   Placed on Local, Consent, and Res. Calendar                         04/09/2015
H   Considered in Local & Consent Calendars                             04/06/2015
H   Comm. report sent to Local & Consent Calendar                       03/23/2015
H Committee report distributed                                          03/19/2015 02:58 PM
H Comte report filed with Committee Coordinator                         03/19/2015                  961
                                                                                                      838
H Reported favorably w/o amendment(s)                                   03/17/2015
H Recommended to be sent to Local & Consent                 03/17/2015
H   Considered in public hearing                            03/17/2015
H   Left pending in committee                               03/10/2015
H   Testimony taken/registration(s) recorded in committee   03/10/2015
H   Considered in public hearing                            03/10/2015
H   Scheduled for public hearing on . . .                   03/10/2015
H   Referred to Judiciary & Civil Jurisprudence             02/10/2015 11:34 AM   264
H   Read first time                                         02/10/2015            264
H   Filed                                                   11/11/2014




                                                                                   839
     By:AACreighton                                                  H.B.ANo.A274



                                A BILL TO BE ENTITLED

1                                      AN ACT

2    relating to attorney ’s fees, early dismissal, expedited trials, and

3    the reform of certain remedies and procedures in civil actions.

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

5            SECTIONA1.AAChapter 38, Civil Practice and Remedies Code, is

6    amended by designating Sections 38.001 through 38.006 as Subchapter

7    A,   Chapter   38, Civil   Practice   and   Remedies   Code,    and   adding   a

8    heading to Subchapter A to read as follows:

9         SUBCHAPTER A. RECOVERY OF ATTORNEY ’S FEES BY PREVAILING PARTY

10           SECTIONA2.AASections    38.001,     38.002,    and     38.006,   Civil

11   Practice and Remedies Code, are amended to read as follows:

12           Sec.A38.001.AARECOVERY OF ATTORNEY ’S FEES.          The prevailing

13   party with respect to a claim [A person] may recover reasonable

14   attorney ’s fees from an individual, [or] corporation, or other

15   legal entity [in addition to the amount of a valid claim and costs,]

16   if the claim is for:

17                  (1)AArendered services;

18                  (2)AAperformed labor;

19                  (3)AAfurnished material;

20                  (4)AAfreight or express overcharges;

21                  (5)AAlost or damaged freight or express;

22                  (6)AAkilled or injured stock;

23                  (7)AAa sworn account; or

24                  (8)AAan oral or written contract.




     82R13370 CAE-F                        1

                                                                              840
                                                                 H.B.ANo.A274

1          Sec.A38.002.AAPROCEDURE    FOR    RECOVERY   OF   ATTORNEY ’S   FEES.

2    Attorney ’s [To recover attorney ’s] fees may be recovered under this

3    subchapter if [chapter]:

4                 (1)AAthe person seeking to recover attorney ’s fees is

5    [claimant must be] represented by an attorney;

6                 (2)AAthe claimant presents [must present] the claim to

7    the opposing party or to a duly authorized agent of the opposing

8    party; and

9                 (3)AApayment for the just amount owed is [must] not

10   [have been] tendered before the expiration of the 30th day after the

11   claim is presented.

12         Sec.A38.006.AAEXCEPTIONS.        This subchapter [chapter] does

13   not apply to a contract issued by an insurer that is subject to the

14   provisions of:

15                (1)AATitle 11, Insurance Code;

16                (2)AAChapter 541, Insurance Code;

17                (3)AAthe   Unfair   Claim    Settlement      Practices     Act

18   (Subchapter A, Chapter 542, Insurance Code); or

19                (4)AASubchapter B, Chapter 542, Insurance Code.

20         SECTIONA3.AAChapter 38, Civil Practice and Remedies Code, is

21   amended by adding Subchapter B to read as follows:

22              SUBCHAPTER B. ELECTION REGARDING LITIGATION COSTS

23         Sec.A38.011.AADEFINITIONS. In this subchapter:

24                (1)AA"Abusive civil action" means a civil action that a

25   reasonable person would conclude is an abuse of the civil justice

26   process.

27                (2)AA"Claim" means a request for monetary damages filed




                                       2

                                                                           841
                                                                          H.B.ANo.A274

1    in   a   civil    action,   other   than   a    request   for    reimbursement     of

2    attorney ’s fees or other costs of litigation in a civil action, if

3    the request is for:

4                          (A)AAdamages        for     alleged       personal   injury,

5    property damage, breach of contract, or death, regardless of the

6    legal theories or statutes on the basis of which recovery is sought;

7    or

8                          (B)AAdamages       other    than    for   alleged    personal

9    injury, property damage, or death allegedly resulting from any

10   tortious conduct, regardless of the legal theories or statutes on

11   the basis of which recovery is sought.

12                    (3)AA"Claimant" means a party who has asserted a claim,

13   including         a   plaintiff,         counterclaimant,         cross-claimant,

14   third-party plaintiff, or intervenor.

15                    (4)AA"Defendant" means a party against whom a claim has

16   been      made,       including      a         defendant,       counterdefendant,

17   cross-defendant, or third-party defendant.

18                    (5)AA"Financial interest" means a financial interest

19   held by an attorney under an agreement between the attorney and a

20   claimant or defendant in which the amount or the payment of the fee

21   for the attorney ’s legal services is contingent wholly or partly on

22   the outcome of the civil action.

23            Sec.A38.012.AAAPPLICABILITY.            (a)   This subchapter does not

24   apply to:

25                    (1)AAa class action;

26                    (2)AAa shareholder ’s derivative action;

27                    (3)AAan action brought under the Family Code;




                                                3

                                                                                  842
                                                                               H.B.ANo.A274

1                  (4)AAan    action       to        collect   workers ’       compensation

2    benefits under Subtitle A, Title 5, Labor Code; or

3                  (5)AAan action filed in a justice of the peace court.

4            (b)AAThis subchapter does not apply to a civil action in

5    which   the   amount    in    controversy,         including       all    requests      for

6    damages, reimbursement of attorney ’s fees, and litigation costs, is

7    less than $100,000 and the claimant has made an election to proceed

8    under Chapter 29A.

9            Sec.A38.013.AAELECTION.         (a)       A defendant may elect to apply

10   the provisions of this subchapter to any civil action in which a

11   claimant has asserted a claim against the defendant.

12           (b)AAAn    election    under       this    section    must       identify      each

13   claimant against whom the election is made.                 An election may not be

14   made before the 60th day after the date the defendant filed an

15   answer to the claimant ’s civil action or within 60 days of the date

16   of trial. The election must be:

17                 (1)AAin writing;

18                 (2)AAsigned      by     the       attorneys     of     record      of     the

19   defendant;

20                 (3)AAfiled with the papers as part of the record; and

21                 (4)AAserved on all claimants against whom the election

22   is made.

23           (c)AAA    deadline    under    this      subchapter    may       be   amended       or

24   modified by agreement of the parties or by order of the court in a

25   discovery control plan as provided by Rule 190, Texas Rules of Civil

26   Procedure.

27           Sec.A38.014.AAREVOCATION OF ELECTION.                (a)    An election made




                                                 4

                                                                                           843
                                                                          H.B.ANo.A274

1    under Section 38.013 may be revoked wholly or partly by agreement of

2    the parties.

3          (b)AAA       revocation    under    this    section   must    identify       the

4    claimants    and    defendants    for    whom    the   revocation    is    made.      A

5    revocation may be made at any time before an award is made under

6    Section 38.016 based on the election.            The revocation must be:

7                 (1)AAin writing;

8                 (2)AAsigned by the attorneys of record of all parties to

9    whom the revocation applies; and

10                (3)AAfiled as part of the record.

11         Sec.A38.015.AADISMISSAL OR NONSUIT OF ACTION.                 If a claimant

12   against whom an election is made under Section 38.013 nonsuits or

13   voluntarily dismisses with prejudice the civil action for which the

14   election is made not later than the 15th day after the date the

15   claimant was served with the election, the election does not apply

16   to the nonsuited or dismissed civil action.

17         Sec.A38.016.AAAWARD OF LITIGATION COSTS.              (a)     If an election

18   is made under this subchapter, the prevailing party may recover the

19   prevailing party ’s litigation costs.

20         (b)AAThe determination of which party is the prevailing party

21   is a question of law for the court.

22         (c)AALitigation       costs       under    this   subchapter        are   costs

23   directly related to the civil action between the claimant and the

24   defendant.   Litigation costs include:

25                (1)AAreasonable and necessary attorney ’s fees;

26                (2)AAreasonable and necessary travel expenses;

27                (3)AAreasonable fees for not more than two testifying




                                              5

                                                                                     844
                                                                      H.B.ANo.A274

1    expert witnesses; and

2                   (4)AAcourt costs.

3            (d)AAA fee agreement that results in a fee that is fixed or

4    contingent on results obtained or uncertainty of collection before

5    the legal services have been rendered may not be considered in the

6    determination of the amount of reasonable and necessary attorney ’s

7    fees.

8            Sec.A38.017.AALIABILITY     OF   ATTORNEY.    (a)    This    section

9    applies to a civil action if:

10                  (1)AAa party is entitled to recover litigation costs

11   under Section 38.016;

12                  (2)AAthe election under Section 38.013 states that the

13   party making the election will seek litigation costs under this

14   section; and

15                  (3)AAan attorney of record for the party against whom

16   litigation costs are recoverable has a financial interest in the

17   civil action.

18           (b)AAIf the trier of fact determines that a civil action is an

19   abusive civil action, an attorney of record for the party against

20   whom litigation costs are recoverable is liable to the prevailing

21   party, jointly and severally, for the amount of the litigation

22   costs awarded.

23           (c)AAThe determination of whether an attorney has a financial

24   interest in a civil action is a question of law for the court. An

25   attorney is not an attorney of record for the purposes of this

26   section   if   the   attorney   withdraws   as   attorney   of    record   and

27   relinquishes any financial interest in the civil action more than




                                          6

                                                                            845
                                                                                      H.B.ANo.A274

1    60 days before trial.

2             (d)AAThe    determination         of       whether    a    civil       action      is     an

3    abusive civil action is a question of fact.                        In a case in which the

4    determination of whether a civil action is an abusive civil action

5    is submitted to a jury, the charge to the jury must ask whether the

6    civil    action    prosecuted    by    the          claimant      was     an    abusive      civil

7    action.      The     following   instruction               must    be     included         in    the

8    charge:AA"You are instructed that an abusive civil action is a

9    civil action that a reasonable person would conclude is an abuse of

10   the civil justice process."

11            Sec.A38.018.AAAPPLICABILITY OF OTHER LAW.                             (a)       Except as

12   provided    by    Subsection    (b),       if   an    election       is       made   under      this

13   subchapter, this subchapter controls over any other law to the

14   extent the other law requires, authorizes, prohibits, or otherwise

15   governs the award of attorney ’s fees or other costs of litigation in

16   connection with the civil action.

17            (b)AAThis       subchapter    does          not    govern        the    recovery          of

18   litigation       costs   incurred     in    connection         with       a    claim      asserted

19   under:

20                 (1)AASubchapter         E,    Chapter         17,     Business         &    Commerce

21   Code; or

22                 (2)AAChapter 541, Insurance Code.

23            SECTIONA4.AASection        51.014,          Civil     Practice          and      Remedies

24   Code, is amended by amending Subsections (d) and (e) and adding

25   Subsections (f) and (g) to read as follows:

26            (d)AAA person may appeal from an interlocutory order of a

27   district court, county court at law, or county court that is [may




                                                     7

                                                                                                  846
                                                                         H.B.ANo.A274

1    issue a written order for interlocutory appeal in a civil action]

2    not otherwise appealable [under this section] if:

3                 (1)AA[the parties agree that] the order to be appealed

4    involves a controlling question of law as to which there is a

5    substantial ground for difference of opinion;

6                 (2)AAan immediate appeal from the order may materially

7    advance the ultimate termination of the litigation; and

8                 (3)AAthe   court   of   appeals    accepts      the   interlocutory

9    appeal as provided by Subsection (f) [the parties agree to the

10   order].

11         (e)AAAn appeal under Subsection (d) does not stay proceedings

12   in the trial court unless the parties agree to a stay or [and] the

13   trial court or appellate court[, the court of appeals, or a judge of

14   the court of appeals] orders a stay of the proceedings pending

15   appeal.

16         (f)AAAn appellate court may, in its discretion, accept an

17   appeal permitted by Subsection (d) if the appealing party, not

18   later than the 15th day after the date the trial court signs the

19   order to be appealed, files in the court of appeals an application

20   for interlocutory appeal.       The application must state the reasons

21   why an appeal is warranted under Subsection (d). If the court of

22   appeals    accepts   the   appeal,   the    appeal     is    governed     by   the

23   procedures set forth in the Texas Rules of Appellate Procedure for

24   pursuing   an   accelerated   appeal.     The   date   the   court   of   appeals

25   enters the order accepting the appeal starts the time for filing the

26   notice of appeal.

27         (g)AAIf a party pursues an appeal under this section, the




                                           8

                                                                                847
                                                                              H.B.ANo.A274

1    trial court must state whether the trial court believes that an

2    appeal is warranted under Subsection (d).

3           SECTIONA5.AASubtitle B, Title 2, Civil Practice and Remedies

4    Code, is amended by adding Chapters 29 and 29A to read as follows:

5                      CHAPTER 29. EARLY DISMISSAL OF ACTIONS

6           Sec.A29.001.AAPOLICY.          It is the policy of this state that

7    all civil actions be disposed of fairly, promptly, and with the

8    least possible expense to the litigants and to the state.

9           Sec.A29.002.AAADOPTION OF RULES BY SUPREME COURT.                        (a) The

10   supreme court shall adopt rules to provide for the fair and early

11   dismissal of non-meritorious cases.

12          (b)AAThe supreme court shall model the rules after Rules 9

13   and 12, Federal Rules of Civil Procedure, to the extent possible.

14          (c)AAThe supreme court shall adopt rules under this chapter

15   not   later   than   December     31,    2011.       This    subsection         expires

16   September 1, 2012.

17                      CHAPTER 29A. EXPEDITED CIVIL ACTIONS

18          Sec.A29A.001.AADEFINITIONS.           In this chapter:

19                 (1)AA"Claim" means a request, including a counterclaim,

20   cross-claim, or third-party claim, to recover monetary damages.

21                 (2)AA"Claimant" means a party, including a plaintiff,

22   counterclaimant,       cross-claimant,            third-party          plaintiff,        or

23   intervenor,      seeking   recovery     of   damages      and,    in   an    action   for

24   recovery    of   damages    for   injury     to    another       person,     damage      to

25   property of another person, death of another person, or harm to

26   another    person,   includes     both   the      other    person      and   the   party

27   seeking recovery of damages.




                                              9

                                                                                        848
                                                                            H.B.ANo.A274

1                 (3)AA"Damages" means all claims under common law or

2    statutory   and   equitable      causes   of    action    for    actual   damages,

3    including    economic      and   noneconomic       damages,      and    additional

4    damages,    including     knowing     damages,    punitive       damages,   treble

5    damages, penalties, prejudgment interest, postjudgment interest,

6    attorney ’s fees, litigation costs, costs of court, and all other

7    damages of any kind.

8                 (4)AA"Defendant"           means     a     party,      including      a

9    counterdefendant, cross-defendant, or third-party defendant, from

10   whom a claimant seeks damages.

11         Sec.A29A.002.AAAPPLICABILITY.             (a) This chapter applies to

12   any party who is a claimant or defendant, including:

13                (1)AAa county;

14                (2)AAa municipality;

15                (3)AAa public school district;

16                (4)AAa public junior college district;

17                (5)AAa charitable organization;

18                (6)AAa nonprofit organization;

19                (7)AAa hospital district;

20                (8)AAa hospital authority;

21                (9)AAany other political subdivision of the state; and

22                (10)AAthe State of Texas.

23         (b)AAThis        chapter   does    not    apply    to   any   civil   action

24   primarily governed by the Family Code.

25         (c)AAIn     an    action   to     which   this     chapter    applies,    the

26   provisions of this chapter prevail over all other law to the extent

27   of any conflict.




                                             10

                                                                                  849
                                                                              H.B.ANo.A274

1            (d)AAThis    chapter    does      not   waive      sovereign     immunity       or

2    governmental immunity of any claimant or defendant.

3            Sec.A29A.003.AACLAIMANT TO MAKE ELECTION.                   (a) This chapter

4    applies only in a civil action in which:

5                   (1)AAthe total amount of damages the claimant seeks to

6    recover for all claims is not less than $10,000 and not more than

7    $100,000; and

8                   (2)AAthe claimant files and serves a written election

9    under this chapter.

10           (b)AAAn   election     must    be    made     at   the   time    the   electing

11   claimant first files a claim in the action.

12           (c)AANotwithstanding Subsection (b), and on the agreement of

13   all parties, a claimant may make an election not later than the 60th

14   day after the date the last defendant has filed an answer.

15           (d)AAAn election made by a claimant under this section is

16   binding   on   all   parties   to   the     expedited       civil   action     unless   a

17   defendant files a claim more than 60 days before trial and in that

18   claim makes a good faith claim that the recovery of monetary damages

19   might be in excess of $100,000.

20           Sec.A29A.004.AARULES.          (a)      The supreme court shall adopt

21   rules   to   implement   this   chapter.        The    rules     shall   promote    the

22   prompt, efficient, and cost-effective resolution of an expedited

23   civil action, including the discovery between the parties.

24           (b)AAThe supreme court shall adopt rules as required by this

25   section not later than January 1, 2012.                    This subsection expires

26   September 1, 2012.

27           Sec.A29A.005.AACONFLICT OF LAWS.              In the event of a conflict




                                               11

                                                                                       850
                                                              H.B.ANo.A274

1    between this chapter and Chapter 74, Chapter 74 prevails.

2            SECTIONA6.AASection 22.225(d), Government Code, is amended

3    to read as follows:

4            (d)AAA petition for review is allowed to the supreme court

5    for an appeal from an interlocutory order described by Section

6    51.014(a)(3), (6), or (11) or (d), Civil Practice and Remedies

7    Code.

8            SECTIONA7.AASubchapter C, Chapter 311, Government Code, is

9    amended by adding Section 311.035 to read as follows:

10           Sec.A311.035.AANO IMPLIED CAUSE OF ACTION.   A statute may not

11   be construed to create a cause of action unless a cause of action is

12   created by clear and unambiguous language in the statute.

13           SECTIONA8.AASubchapter B, Chapter 312, Government Code, is

14   amended by adding Section 312.017 to read as follows:

15           Sec.A312.017.AANO IMPLIED CAUSE OF ACTION.   A statute may not

16   be construed to create a cause of action unless a cause of action is

17   created by clear and unambiguous language in the statute.

18           SECTIONA9.AAThis Act applies only to a civil action filed on

19   or after the effective date of this Act. An action filed before the

20   effective date of this Act, including an action filed before that

21   date on which a party is joined or designated after that date, is

22   governed by the law in effect immediately before the effective date

23   of this Act, and that law is continued in effect for that purpose.

24           SECTIONA10.AAIf any provision of this Act or its application

25   to any person or circumstance is held invalid, the invalidity does

26   not affect other provisions or applications of this Act that can be

27   given effect without the invalid provision or application, and to




                                      12

                                                                     851
                                                          H.B.ANo.A274

1   this end the provisions of this Act are severable.

2         SECTIONA11.AAThis Act takes effect September 1, 2011.




                                    13

                                                                  852
                                        BILL ANALYSIS


                                                                                       C.S.H.B. 274
                                                                                      By: Creighton
                                                                    Judiciary & Civil Jurisprudence
                                                                    Committee Report (Substituted)




BACKGROUND AND PURPOSE


Interested parties contend that the civil justice system needs to be more efficient, less expensive,
and more accessible. C.S.H.B. 274 proposes certain reforms to make the civil justice system
more efficient, less costly, and more accessible by reforming certain procedures in these cases
and making available certain new procedures.


RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the Supreme
Court of Texas in SECTIONS 1.01 and 2.01 of this bill.

ANALYSIS

Early Dismissal of Actions

C.S.H.B. 274 amends the Government Code to require the supreme court to adopt rules to
provide for the dismissal of certain causes of action that the supreme court determines should
be disposed of as a matter of law on motion and without evidence.

C.S.H.B. 274 amends the Civil Practice and Remedies Code to authorize a court, in a civil
proceeding, on a trial court's granting or denial, in whole or in part, of a motion to dismiss
filed under the rules adopted by the supreme court Section 22.004(g), Government Code, to
award costs and reasonable and necessary attorney's fees to the prevailing party that the court
determines are equitable and just.

Expedited Civil Actions

C.S.H.B. 274 amends the Government Code to require the supreme court to adopt rules to
promote the prompt, efficient, and cost-effective resolution of civil actions in which the
amount in controversy, inclusive of all claims for damages of any kind, whether actual or
exemplary, a penalty, attorney's fees, expenses, costs, interest, or any other type of damage of
any kind, is more than $10,000 but does not exceed $100,000. The bill requires the rules to
address the need for lowering discovery costs in these actions and the procedure for ensuring
that these actions will be expedited in the civil justice system. The bill prohibits the supreme
court from adopting rules that conflict with the Family Code, the Property Code, the Tax Code
or Chapter 74 of the Civil Practice and Remedies Code.

No Implied Cause of Action

C.S.H.B. 274 amends the Government Code to prohibit a statute from being construed to
create a cause of action unless the statute by clear and unambiguous language creates a cause
of action.

Appeal of Controlling Question of Law

C.S.H.B. 274 amends the Civil Practice and Remedies Code to authorize a trial court in a civil action,
on a party's motion or on its own initiative and by written order, to permit an appeal from an order


C.S.H.B. 274 82(R)                                                                                  1

                                                                                                  853
that is not otherwise appealable if the order involves a controlling question of law as to which there is
a substantial ground for disagreement, and an immediate appeal may materially advance the
termination of the litigation. The bill removes the requirement that the parties agree for such an order
to be subject to immediate appeal. The bill specifies that an appeal does not stay proceedings in the
trial court unless either the parties agree to a stay or the trial or appellate court orders a stay of the
proceedings pending appeal. The bill removes language authorizing a judge of the court of appeals to
order a stay.

C.S.H.B. 274 authorizes an appellate court to accept such an appeal if the appealing party, not later
than the 15th day after the date the trial court signs the order to be appealed, files in the court of
appeals having appellate jurisdiction over the action an application for interlocutory appeal
explaining why such an appeal is warranted. The bill specifies that if the court of appeals accepts the
appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for
pursuing an accelerated appeal. The bill starts the time applicable to filing the notice of appeal on the
date the court of appeals enters the order accepting the appeal.

C.S.H.B. 274 amends the Civil Practice and Remedies Code to require the appealing party to pay
costs and attorney's fees if the order appealed from is affirmed, amends the Government Code to
allow a petition for review to the supreme court for an appeal of the order, and specifies that the bill's
provisions relating to the appeal of controlling questions of law are effective September 1, 2011.

Recovery of Attorney's Fees

C.S.H.B. 274 amends the Civil Practice and Remedies Code to establish that the prevailing party,
rather than only the claimant, may recover reasonable attorney's fees from an individual, corporation,
or other legal entity if a claim is for breach of an oral or written contract. The bill makes conforming
changes and specifies that the bill's provisions relating to the recovery of attorney's fees are effective
September 1, 2011.

Allocation of Litigation Costs

C.S.H.B. 274 amends the Civil Practice and Remedies Code to redefine "litigation costs" to include
reasonable deposition costs and to redefine "settlement offer." The bill specifies that provisions of
law relating to offers of settlement do not apply to an action filed in a small claims court. The bill
specifies that an offer to settle or compromise a claim that does not comply with provisions of law
relating to making a settlement offer does not entitle any party, rather than only the offering party, to
recover litigation costs.

C.S.H.B. 274 authorizes a defendant filing a declaration under provisions of law relating to making a
settlement offer and any party with a claim against that defendant to make a settlement offer to settle
all claims in the action between the parties. The bill specifies that the parties are not required to file a
settlement offer with the court. The bill specifies that the litigation costs that may be recovered by the
offering party are limited to those litigation costs incurred by the offering party after the date the
rejecting party rejected the earliest settlement offer that entitles the party to an award of litigation
costs. The bill repeals provisions of law relating to a limitation on recovery of litigation costs and to
the awarding of litigation costs as an offset.

C.S.H.B. 274 makes conforming and nonsubstantive changes and specifies that the bill's provisions
relating to the allocation of litigation costs are effective September 1, 2011.

C.S.H.B. 274 repeals Sections 42.004(d) and (g), Civil Practice and Remedies Code, effective
September 1, 2011.

EFFECTIVE DATE

Except as otherwise provided, on passage, or, if the bill does not receive the necessary vote,
September 1, 2011.


COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 274 omits a provision included in the original establishing state policy regarding the early
dismissal of civil actions. The substitute differs from the original by requiring the supreme court to
adopt rules to provide for the dismissal of certain causes of action that the supreme court determines
C.S.H.B. 274 82(R)                                                                                        2

                                                                                                       854
should be disposed of as a matter of law on motion and without evidence, whereas the original
requires the rules to provide for the fair and early dismissal of non-meritorious cases. The substitute
omits provisions included in the original requiring the supreme court to model the rules after
specified Federal Rules of Civil Procedure. The substitute omits a provision included in the original
relating to a deadline for adopting those rules and setting an expiration date for that provision.

C.S.H.B. 274 contains a provision not included in the original setting out provisions for the award of
attorney's fees in relation to certain motions to dismiss.

C.S.H.B. 274 omits provisions included in the original relating to expedited civil actions, including
definitions, applicability, and the claimant's option to elect an expedited civil action. The substitute
differs from the original by requiring the supreme court to adopt rules to promote the prompt,
efficient, and cost-effective resolution of certain civil actions that address the need for lowering
discovery costs in those actions and the procedure for ensuring that those actions are expedited,
whereas the original requires the adopted rules to implement provisions of the bill that promote the
prompt, efficient, and cost-effective resolution of an expedited civil action, including the discovery
between parties. The substitute omits a provision included in the original relating to a deadline for
adopting those rules and setting an expiration date for that provision. The substitute differs from the
original by prohibiting the supreme court from adopting rules that conflict with the Family Code, the
Property Code, the Tax Code, or certain provisions of the Civil Practice and Remedies Code,
whereas the original establishes that certain provisions of the Civil Practice and Remedies Code
prevail over the rules in the event of a conflict.

C.S.H.B. 274 retains a provision included in the original that prohibits a statute from being construed
to create a cause of action absent clear and unambiguous language and omits a provision included in
the original that duplicates this provision in another general statutory provision.

C.S.H.B. 274 differs from the original by authorizing a trial court in a civil action, on a party's
motion or on its own initiative and by written order, to permit an appeal from an order that is not
otherwise appealable, whereas the original authorizes a person to seek an appeal from an
interlocutory order of certain courts with the appellate court without first obtaining an order from the
trial court allowing the appeal. The substitute contains provisions not included in the original
clarifying that an appeal from an order that is not otherwise appealable is filed with the court of
appeals having appellate jurisdiction over the action and requiring the appealing party to pay costs
and attorney's fees if the order is affirmed. The substitute omits a provision included in the original
requiring a trial court to state whether the trial court believes an appeal is warranted.

C.S.H.B. 274 omits a provision included in the original that authorizes a prevailing party with respect
to a claim, rather than a person, to recover attorney's fees from an individual, corporation, or other
legal entity, rather than from an individual or corporation in addition to the amount of a valid claim
and costs, if the claim is for certain specified items.

C.S.H.B. 274 contains provisions not included in the original amending provisions of the Civil
Practice and Remedies Code relating to the definitions of terms in general provisions relating to
settlement. The substitute omits provisions included in the original relating to a defendant's election
to apply provisions relating to allocation of litigation costs to a civil action in which a claimant has
asserted a claim against the defendant, including provisions relating to definitions, applicability of
these provisions, the election, a revocation of an election, dismissal or nonsuit of action, award of
litigation costs, liability of attorney, and the applicability of other law.

C.S.H.B. 274 contains provisions not included in the original repealing Sections 42.004(d) and (g),
Civil Practice and Remedies Code. The substitute omits a severability provision included in the
original. The substitute contains a provision not included in the original making its provisions
effective on passage if it receives the necessary vote. The substitute differs from the original in
nonsubstantive ways reflective of certain bill drafting conventions.




C.S.H.B. 274 82(R)                                                                                         3

                                                                                                     855
     By:AACreighton, Aliseda, Kleinschmidt,                       H.B.ANo.A274
     AAAAAJackson, Sheets, et al.


                             A BILL TO BE ENTITLED

1                                      AN ACT

2    relating to the reform of certain remedies and procedures in civil

3    actions and family law matters.

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

5                   ARTICLE 1.   EARLY DISMISSAL OF ACTIONS

6          SECTIONA1.01.AASection 22.004, Government Code, is amended

7    by adding Subsection (g) to read as follows:

8          (g)AAThe supreme court shall adopt rules to provide for the

9    dismissal of certain causes of action and defenses that the supreme

10   court determines should be disposed of as a matter of law on motion

11   and without evidence.   Rules adopted under this subsection do not

12   apply to an action under the Family Code.

13         SECTIONA1.02.AAChapter 30, Civil Practice and Remedies Code,

14   is amended by adding Section 30.021 to read as follows:

15         Sec.A30.021.AAAWARD    OF    ATTORNEY ’S   FEES   IN   RELATION    TO

16   CERTAIN MOTIONS TO DISMISS.       In a civil proceeding, on a trial

17   court ’s granting or denial, in whole or in part, of a motion to

18   dismiss filed under the rules adopted by the supreme court under

19   Section 22.004(g), Government Code, the court may award costs and

20   reasonable and necessary attorney ’s fees to the prevailing party

21   that the court determines are equitable and just.       This section does

22   not apply to an action under the Family Code.

23                   ARTICLE 2.   EXPEDITED CIVIL ACTIONS

24         SECTIONA2.01.AASection 22.004, Government Code, is amended




                                         1

                                                                        856
                                                                          H.B.ANo.A274

1    by adding Subsection (h) to read as follows:

2          (h)AAThe    supreme   court      shall   adopt   rules    to    promote     the

3    prompt, efficient, and cost-effective resolution of civil actions.

4    The rules shall apply to civil actions in district courts, county

5    courts at law, and statutory probate courts in which the amount in

6    controversy,   inclusive    of   all    claims   for   damages       of   any   kind,

7    whether actual or exemplary, a penalty, attorney ’s fees, expenses,

8    costs, interest, or any other type of damage of any kind, does not

9    exceed $100,000.     The rules shall address the need for lowering

10   discovery costs in these actions and the procedure for ensuring

11   that these actions will be expedited in the civil justice system.

12   The supreme court may not adopt rules under this subsection that

13   conflict with a provision of:

14              (1)AAChapter 74, Civil Practice and Remedies Code;

15              (2)AAthe Family Code;

16              (3)AAthe Property Code; or

17              (4)AAthe Tax Code.

18                    ARTICLE 3. NO IMPLIED CAUSE OF ACTION

19         SECTIONA3.01.AASubchapter C, Chapter 311, Government Code,

20   is amended by adding Section 311.035 to read as follows:

21         Sec.A311.035.AANO IMPLIED CAUSE OF ACTION.               A statute may not

22   be construed to create a cause of action unless the statute by clear

23   and unambiguous language creates a cause of action.                  This section

24   does not apply to an action under the Family Code.

25            ARTICLE 4. APPEAL OF CONTROLLING QUESTION OF LAW

26         SECTIONA4.01.AASection 51.014, Civil Practice and Remedies

27   Code, is amended by amending Subsections (d) and (e) and adding




                                             2

                                                                                     857
                                                            H.B.ANo.A274

1    Subsection (f) to read as follows:

2          (d)AAOn a party ’s motion or on its own initiative, a trial

3    court in a civil action [A district court, county court at law, or

4    county court] may, by [issue a] written order, permit an appeal from

5    an order that is   [for interlocutory appeal in a civil action] not

6    otherwise appealable [under this section] if:

7                (1)AA[the parties agree that] the order to be appealed

8    involves a controlling question of law as to which there is a

9    substantial ground for difference of opinion; and

10               (2)AAan immediate appeal from the order may materially

11   advance the ultimate termination of the litigation[; and

12               [(3)AAthe parties agree to the order].

13         (e)AAAn appeal under Subsection (d) does not stay proceedings

14   in the trial court unless:

15               (1)AAthe parties agree to a stay; or

16               (2)AA[and] the trial or appellate court[, the court of

17   appeals, or a judge of the court of appeals] orders a stay of the

18   proceedings pending appeal.

19         (f)AAAn appellate court may accept an appeal permitted by

20   Subsection (d) if the appealing party, not later than the 15th day

21   after the date the trial court signs the order to be appealed, files

22   in the court of appeals having appellate jurisdiction over the

23   action an application for interlocutory appeal explaining why an

24   appeal is warranted under Subsection (d).   If the court of appeals

25   accepts the appeal, the appeal is governed by the procedures in the

26   Texas Rules of Appellate Procedure for pursuing an accelerated

27   appeal.   The date the court of appeals enters the order accepting




                                      3

                                                                   858
                                                                            H.B.ANo.A274

1    the   appeal   starts   the   time   applicable       to    filing   the    notice    of

2    appeal.

3            SECTIONA4.02.AASection        22.225(d),            Government      Code,     is

4    amended to read as follows:

5            (d)AAA petition for review is allowed to the supreme court

6    for an appeal from an interlocutory order described by Section

7    51.014(a)(3), (6), or (11), or (d), Civil Practice and Remedies

8    Code.

9                     ARTICLE 5.    RECOVERY OF ATTORNEY ’S FEES

10           SECTIONA5.01.AASection 38.001, Civil Practice and Remedies

11   Code, is amended to read as follows:

12           Sec.A38.001.AARECOVERY       OF       ATTORNEY ’S    FEES.    A    person    may

13   recover    reasonable     attorney ’s         fees   from      an    individual       or

14   corporation, in addition to the amount of a valid claim and costs,

15   if the claim is for:

16                  (1)AArendered services;

17                  (2)AAperformed labor;

18                  (3)AAfurnished material;

19                  (4)AAfreight or express overcharges;

20                  (5)AAlost or damaged freight or express;

21                  (6)AAkilled or injured stock;

22                  (7)AAa sworn account; or

23                  (8)AAan appeal to the court under Section 11.43, Tax

24   Code, or an appeal to the court of a determination of an appraisal

25   review board on a motion filed under Section 11.45, Tax Code [an

26   oral or written contract].

27           SECTIONA5.02.AAChapter 38, Civil Practice and Remedies Code,




                                               4

                                                                                     859
                                                                            H.B.ANo.A274

1    is amended by adding Section 38.0015 to read as follows:

2             Sec.A38.0015.AAORAL AND WRITTEN CONTRACTS.                Unless otherwise

3    provided in a written contract, the prevailing party may recover

4    reasonable    attorney ’s   fees    from    an   individual,        corporation,         or

5    other legal entity if the claim is for breach of an oral or written

6    contract.

7             SECTIONA5.03.AASection 38.002, Civil Practice and Remedies

8    Code, is amended to read as follows:

9             Sec.A38.002.AAPROCEDURE FOR RECOVERY OF ATTORNEY ’S FEES.                       To

10   recover attorney ’s fees under this chapter:

11                 (1)AAthe    person    seeking      to    recover      attorney ’s     fees

12   [claimant] must be represented by an attorney;

13                 (2)AAthe    claimant     must      present      the    claim    to     the

14   opposing party or to a duly authorized agent of the opposing party;

15   and

16                 (3)AApayment for the just amount owed, if any, must not

17   have been tendered before the expiration of the 30th day after the

18   claim is presented.

19                  ARTICLE 6.   ALLOCATION OF LITIGATION COSTS

20            SECTIONA6.01.AASections 42.001(5) and (6), Civil Practice

21   and Remedies Code, are amended to read as follows:

22                 (5)AA"Litigation costs" means money actually spent and

23   obligations actually incurred that are directly related to the

24   action    [case]   in   which   a   settlement        offer   is    made.    The    term

25   includes:

26                       (A)AAcourt costs;

27                       (B)AAreasonable deposition costs;




                                             5

                                                                                        860
                                                                         H.B.ANo.A274

1                      (C)AAreasonable         fees   for    not   more    than    two

2    testifying expert witnesses; and

3                      (D)A[(C)]AAreasonable attorney ’s fees.

4                 (6)AA"Settlement offer" means an offer to settle or

5    compromise a claim made in compliance with Section 42.003 [this

6    chapter].

7          SECTIONA6.02.AASections         42.002(b),       (d),   and    (e),    Civil

8    Practice and Remedies Code, are amended to read as follows:

9          (b)AAThis chapter does not apply to:

10                (1)AAa class action;

11                (2)AAa shareholder ’s derivative action;

12                (3)AAan action by or against a governmental unit;

13                (4)AAan action brought under the Family Code;

14                (5)AAan    action   to       collect   workers ’       compensation

15   benefits under Subtitle A, Title 5, Labor Code; or

16                (6)AAan action filed in a justice of the peace court or

17   a small claims court.

18         (d)AAThis chapter does not limit or affect the ability of any

19   person to:

20                (1)AAmake an offer to settle or compromise a claim that

21   does not comply with Section 42.003 [this chapter]; or

22                (2)AAoffer to settle or compromise a claim in an action

23   to which this chapter does not apply.

24         (e)AAAn offer to settle or compromise that does not comply

25   with Section 42.003 [is not made under this chapter] or an offer to

26   settle or compromise made in an action to which this chapter does

27   not apply does not entitle any [the offering] party to recover




                                           6

                                                                                 861
                                                                    H.B.ANo.A274

1    litigation costs under this chapter.

2          SECTIONA6.03.AASection 42.003, Civil Practice and Remedies

3    Code, is amended to read as follows:

4          Sec.A42.003.AAMAKING     SETTLEMENT      OFFER.        (a)      After    a

5    defendant   files   a   declaration    under    Section      42.002(c),     the

6    defendant filing the declaration and any party with a claim against

7    that defendant may make a settlement offer to settle all claims in

8    the action between the parties.

9          (b)AAA settlement offer must:

10               (1)AAbe in writing;

11               (2)AAstate that it is made under this chapter;

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

13               (4)AAstate a deadline by which the settlement offer

14   must be accepted; and

15               (5)AAbe served on all parties to whom the settlement

16   offer is made.

17         (c)AAThe parties are not required to file a settlement offer

18   with the court.

19         SECTIONA6.04.AASection      42.004(c),         Civil    Practice      and

20   Remedies Code, is amended to read as follows:

21         (c)AAThe    litigation   costs   that    may   be   recovered    by   the

22   offering party under this section are limited to those litigation

23   costs incurred by the offering party after the date the rejecting

24   party rejected the earliest settlement offer that entitles the

25   party to an award of litigation costs under this section.

26         SECTIONA6.05.AASections 42.004(d) and (g), Civil Practice

27   and Remedies Code, are repealed.




                                        7

                                                                              862
                                                                 H.B.ANo.A274

1             ARTICLE 7. DESIGNATION OF RESPONSIBLE THIRD PARTIES

2            SECTIONA7.01.AASection     33.004(e),      Civil   Practice     and

3    Remedies Code, is repealed.

4                         ARTICLE 8.   FAMILY LAW MATTERS

5            SECTIONA8.01.AATitle 6, Civil Practice and Remedies Code, is

6    amended by adding Chapter 148 to read as follows:

7      CHAPTER 148.   APPLICATION OF FOREIGN LAWS; SELECTION OF FOREIGN

8                                      FORUM

9            Sec.A148.001.AADEFINITION.       In this chapter, "foreign law"

10   means a law, rule, or legal code of a jurisdiction outside of the

11   states and territories of the United States.

12           Sec.A148.002.AADECISION BASED ON FOREIGN LAW.        A ruling or

13   decision of a court, arbitrator, or administrative adjudicator on a

14   matter arising under the Family Code may not be based on a foreign

15   law if the application of that law would violate a right guaranteed

16   by the United States Constitution or the constitution or a statute

17   of this state.

18           Sec.A148.003.AACHOICE OF FOREIGN LAW OR FORUM IN CONTRACT.

19   (a)   A contract provision providing that a foreign law is to govern

20   a dispute arising under the Family Code is void to the extent that

21   the application of the foreign law to the dispute would violate a

22   right   guaranteed   by   the   United    States   Constitution   or    the

23   constitution of this state.

24           (b)AAA contract provision providing that the forum to resolve

25   a dispute arising under the Family Code is located outside the

26   states and territories of the United States is void if the foreign

27   law that would be applied to the dispute in that forum would, as




                                         8

                                                                           863
                                                                           H.B.ANo.A274

1    applied,   violate     a   right     guaranteed     by    the     United    States

2    Constitution or the constitution of this state.

3           SECTIONA8.02.AA(a)          Section    148.002,    Civil       Practice   and

4    Remedies Code, as added by this Act, applies only to a ruling or

5    decision that becomes final on or after the effective date of this

6    Act.   A ruling or decision that becomes final before the effective

7    date of this Act and any appeal of that ruling or decision are

8    governed by the law in effect immediately before the effective date

9    of this Act, and that law is continued in effect for that purpose.

10          (b)AASection 148.003, Civil Practice and Remedies Code, as

11   added by this Act, applies only to a contract entered into on or

12   after the effective date of this Act.               A contract entered into

13   before the effective date of this Act is governed by the law in

14   effect immediately before that date, and that law is continued in

15   effect for that purpose.

16          SECTIONA8.03.AAThis Act takes effect September 1, 2011.

17                    ARTICLE 9.   CONTESTED TAX APPRAISAL COSTS

18          SECTIONA9.01.AAIn      an   action    contesting    a    tax    appraisal   a

19   taxpayer   who    prevails    is   entitled    to   an   award    of    costs    and

20   attorney ’s fees.     If the appraisal district or taxing authority

21   prevails the appraisal district or taxing authority is not entitled

22   to costs and attorney ’s fees.

23                          ARTICLE 10.     EFFECTIVE DATE

24          SECTIONA10.01.AAThe changes in law made by this Act apply

25   only to a civil action commenced on or after the effective date of

26   the change in law as provided by this article. A civil action

27   commenced before the effective date of the change in law as provided




                                            9

                                                                                  864
                                                             H.B.ANo.A274

1    by this article is governed by the law in effect immediately before

2    the effective date of the change in law, and that law is continued

3    in effect for that purpose.

4          SECTIONA10.02.AA(a)     Except as provided by Subsection (b) of

5    this section:

6               (1)AAthis Act takes effect immediately if it receives a

7    vote of two-thirds of all the members elected to each house, as

8    provided by Section 39, Article III, Texas Constitution; and

9               (2)AAif this Act does not receive the vote necessary for

10   immediate effect, this Act takes effect September 1, 2011.

11         (b)AAArticles 4, 5, 6, and 7 of this Act take effect September

12   1, 2011.




                                       10

                                                                    865
                                                                  H.B.ANo.A274




1                                      AN ACT

2    relating to the reform of certain remedies and procedures in civil

3    actions and family law matters.

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

5                   ARTICLE 1.   EARLY DISMISSAL OF ACTIONS

6          SECTIONA1.01.AASection 22.004, Government Code, is amended

7    by adding Subsection (g) to read as follows:

8          (g)AAThe supreme court shall adopt rules to provide for the

9    dismissal of causes of action that have no basis in law or fact on

10   motion and without evidence.       The rules shall provide that the

11   motion to dismiss shall be granted or denied within 45 days of the

12   filing of the motion to dismiss.           The rules shall not apply to

13   actions under the Family Code.

14         SECTIONA1.02.AAChapter 30, Civil Practice and Remedies Code,

15   is amended by adding Section 30.021 to read as follows:

16         Sec.A30.021.AAAWARD    OF    ATTORNEY ’S   FEES   IN   RELATION    TO

17   CERTAIN MOTIONS TO DISMISS.       In a civil proceeding, on a trial

18   court ’s granting or denial, in whole or in part, of a motion to

19   dismiss filed under the rules adopted by the supreme court under

20   Section 22.004(g), Government Code, the court shall award costs and

21   reasonable and necessary attorney ’s fees to the prevailing party.

22   This section does not apply to actions by or against the state,

23   other governmental entities, or public officials acting in their

24   official capacity or under color of law.




                                         1

                                                                        866
                                                                        H.B.ANo.A274

1                     ARTICLE 2.     EXPEDITED CIVIL ACTIONS

2          SECTIONA2.01.AASection 22.004, Government Code, is amended

3    by adding Subsection (h) to read as follows:

4          (h)AAThe   supreme   court      shall   adopt   rules   to    promote     the

5    prompt, efficient, and cost-effective resolution of civil actions.

6    The rules shall apply to civil actions in district courts, county

7    courts at law, and statutory probate courts in which the amount in

8    controversy,   inclusive   of   all    claims   for   damages      of   any   kind,

9    whether actual or exemplary, a penalty, attorney ’s fees, expenses,

10   costs, interest, or any other type of damage of any kind, does not

11   exceed $100,000.    The rules shall address the need for lowering

12   discovery costs in these actions and the procedure for ensuring

13   that these actions will be expedited in the civil justice system.

14   The supreme court may not adopt rules under this subsection that

15   conflict with a provision of:

16              (1)AAChapter 74, Civil Practice and Remedies Code;

17              (2)AAthe Family Code;

18              (3)AAthe Property Code; or

19              (4)AAthe Tax Code.

20            ARTICLE 3. APPEAL OF CONTROLLING QUESTION OF LAW

21         SECTIONA3.01.AASection 51.014, Civil Practice and Remedies

22   Code, is amended by amending Subsections (d) and (e) and adding

23   Subsections (d-1) and (f) to read as follows:

24         (d)AAOn a party ’s motion or on its own initiative, a trial

25   court in a civil action [A district court, county court at law, or

26   county court] may, by [issue a] written order, permit an appeal from

27   an order that is   [for interlocutory appeal in a civil action] not




                                            2

                                                                                   867
                                                                      H.B.ANo.A274

1    otherwise appealable [under this section] if:

2                   (1)AA[the parties agree that] the order to be appealed

3    involves a controlling question of law as to which there is a

4    substantial ground for difference of opinion; and

5                   (2)AAan immediate appeal from the order may materially

6    advance the ultimate termination of the litigation[; and

7                   [(3)AAthe parties agree to the order].

8           (d-1)AASubsection (d) does not apply to an action brought

9    under the Family Code.

10          (e)AAAn appeal under Subsection (d) does not stay proceedings

11   in the trial court unless:

12                  (1)AAthe parties agree to a stay; or

13                  (2)AA[and] the trial or appellate court[, the court of

14   appeals, or a judge of the court of appeals] orders a stay of the

15   proceedings pending appeal.

16          (f)AAAn appellate court may accept an appeal permitted by

17   Subsection (d) if the appealing party, not later than the 15th day

18   after the date the trial court signs the order to be appealed, files

19   in the court of appeals having appellate jurisdiction over the

20   action an application for interlocutory appeal explaining why an

21   appeal is warranted under Subsection (d).          If the court of appeals

22   accepts the appeal, the appeal is governed by the procedures in the

23   Texas Rules of Appellate Procedure for pursuing an accelerated

24   appeal.   The date the court of appeals enters the order accepting

25   the   appeal   starts   the   time   applicable   to   filing   the   notice    of

26   appeal.

27          SECTIONA3.02.AASection         22.225(d),       Government     Code,     is




                                             3

                                                                               868
                                                                            H.B.ANo.A274

1    amended to read as follows:

2             (d)AAA petition for review is allowed to the supreme court

3    for an appeal from an interlocutory order described by Section

4    51.014(a)(3), (6), or (11), or (d), Civil Practice and Remedies

5    Code.

6                   ARTICLE 4.   ALLOCATION OF LITIGATION COSTS

7             SECTIONA4.01.AASections 42.001(5) and (6), Civil Practice

8    and Remedies Code, are amended to read as follows:

9                  (5)AA"Litigation costs" means money actually spent and

10   obligations actually incurred that are directly related to the

11   action    [case]   in   which   a   settlement     offer    is   made.    The    term

12   includes:

13                       (A)AAcourt costs;

14                       (B)AAreasonable deposition costs;

15                       (C)AAreasonable         fees   for     not   more    than     two

16   testifying expert witnesses; and

17                       (D)A[(C)]AAreasonable attorney ’s fees.

18                 (6)AA"Settlement offer" means an offer to settle or

19   compromise a claim made in compliance with Section 42.003 [this

20   chapter].

21            SECTIONA4.02.AASections       42.002(b),        (d),    and    (e),    Civil

22   Practice and Remedies Code, are amended to read as follows:

23            (b)AAThis chapter does not apply to:

24                 (1)AAa class action;

25                 (2)AAa shareholder ’s derivative action;

26                 (3)AAan action by or against a governmental unit;

27                 (4)AAan action brought under the Family Code;




                                             4

                                                                                     869
                                                                     H.B.ANo.A274

1                  (5)AAan   action   to       collect   workers ’   compensation

2    benefits under Subtitle A, Title 5, Labor Code; or

3                  (6)AAan action filed in a justice of the peace court or

4    a small claims court.

5          (d)AAThis chapter does not limit or affect the ability of any

6    person to:

7                  (1)AAmake an offer to settle or compromise a claim that

8    does not comply with Section 42.003 [this chapter]; or

9                  (2)AAoffer to settle or compromise a claim in an action

10   to which this chapter does not apply.

11         (e)AAAn offer to settle or compromise that does not comply

12   with Section 42.003 [is not made under this chapter] or an offer to

13   settle or compromise made in an action to which this chapter does

14   not apply does not entitle any [the offering] party to recover

15   litigation costs under this chapter.

16         SECTIONA4.03.AASection 42.003, Civil Practice and Remedies

17   Code, is amended to read as follows:

18         Sec.A42.003.AAMAKING SETTLEMENT OFFER.             (a)AAA settlement

19   offer must:

20                 (1)AAbe in writing;

21                 (2)AAstate that it is made under this chapter;

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

23                 (4)AAstate a deadline by which the settlement offer

24   must be accepted; and

25                 (5)AAbe served on all parties to whom the settlement

26   offer is made.

27         (b)AAThe parties are not required to file a settlement offer




                                           5

                                                                           870
                                                                H.B.ANo.A274

1    with the court.

2          SECTIONA4.04.AASection     42.004(d),      Civil    Practice     and

3    Remedies Code, is amended to read as follows:

4          (d)AAThe litigation costs that may be awarded under this

5    chapter to any party may not be greater than the total amount that

6    the claimant recovers or would recover before adding an award of

7    litigation costs under this chapter in favor of the claimant or

8    subtracting as an offset an award of litigation costs under this

9    chapter in favor of the defendant [an amount computed by:

10                [(1)AAdetermining the sum of:

11                      [(A)AA50 percent of the economic damages to be

12   awarded to the claimant in the judgment;

13                      [(B)AA100 percent of the noneconomic damages to be

14   awarded to the claimant in the judgment; and

15                      [(C)AA100 percent of the exemplary or additional

16   damages to be awarded to the claimant in the judgment; and

17                [(2)AAsubtracting   from   the   amount   determined    under

18   Subdivision (1) the amount of any statutory or contractual liens in

19   connection with the occurrences or incidents giving rise to the

20   claim].

21             ARTICLE 5. DESIGNATION OF RESPONSIBLE THIRD PARTIES

22         SECTIONA5.01.AASection 33.004, Civil Practice and Remedies

23   Code, is amended by adding Subsection (d) to read as follows:

24         (d)AAA defendant may not designate a person as a responsible

25   third party with respect to a claimant ’s cause of action after the

26   applicable limitations period on the cause of action has expired

27   with respect to the responsible third party if the defendant has




                                       6

                                                                          871
                                                            H.B.ANo.A274

1    failed to comply with its obligations, if any, to timely disclose

2    that the person may be designated as a responsible third party under

3    the Texas Rules of Civil Procedure.

4          SECTIONA5.02.AASection    33.004(e),   Civil   Practice     and

5    Remedies Code, is repealed.

6                         ARTICLE 6. EFFECTIVE DATE

7          SECTIONA6.01.AAThe changes in law made by this Act apply only

8    to a civil action commenced on or after the effective date of the

9    change in law as provided by this article. A civil action commenced

10   before the effective date of the change in law as provided by this

11   article is governed by the law in effect immediately before the

12   effective date of the change in law, and that law is continued in

13   effect for that purpose.

14         SECTIONA6.02.AAThis Act takes effect September 1, 2011.




                                      7

                                                                     872
                                                              H.B.ANo.A274


______________________________            ______________________________

AAAAPresident of the Senate                     Speaker of the HouseAAAAAA


      I certify that H.B. No. 274 was passed by the House on May 9,

2011, by the following vote:AAYeas 96, Nays 49, 3 present, not

voting; and that the House concurred in Senate amendments to H.B.

No. 274 on MayA25, 2011, by the following vote:AAYeasA130, NaysA13,

2Apresent, not voting.


                                          ______________________________

                                                Chief Clerk of the HouseAAA


      I certify that H.B. No. 274 was passed by the Senate, with

amendments,   on   MayA24,   2011,   by   the   following   vote:AAYeasA31,

NaysA0.


                                          ______________________________

                                                Secretary of the SenateAAA


APPROVED: __________________

AAAAAAAAAAAAAAAAADateAAAAAAA



AAAAAAAAA __________________

AAAAAAAAAAAAAAAGovernorAAAAAAA




                                     8

                                                                     873
Texas Legislature Online
History


Bill: HB 274          Legislative Session: 82(R)                             Council Document: 82R 13370 CAE-F



Last Action:          05/30/2011 E Effective on 9/1/11

Caption Version:      Enrolled
Caption Text:         Relating to the reform of certain remedies and procedures in civil actions and family law
                      matters.

Author:               Creighton | Aliseda | Kleinschmidt | Jackson, Jim | Sheets

Coauthor:             Anderson, Charles "Doc" | Anderson, Rodney | Aycock | Beck | Berman | Bohac | Bonnen |
                      Branch | Brown | Burkett | Button | Cain | Callegari | Carter | Chisum | Christian | Cook |
                      Crownover | Darby | Davis, John | Davis, Sarah | Driver | Eissler | Elkins | Fletcher | Flynn |
                      Frullo | Garza | Gonzales, Larry | Gooden | Hamilton | Hancock | Hardcastle | Harless |
                      Harper-Brown | Hilderbran | Hopson | Howard, Charlie | Huberty | Isaac | Keffer | King, Phil
                      | King, Susan | Kolkhorst | Kuempel | Landtroop | Larson | Laubenberg | Lavender | Legler
                      | Lyne | Madden | Margo | Miller, Doug | Miller, Sid | Morrison | Murphy | Nash | Orr | Otto |
                      Parker | Patrick, Diane | Paxton | Pena | Perry | Pitts | Price | Schwertner | Scott | Shelton |
                      Simpson | Smith, Todd | Smith, Wayne | Taylor, Larry | Taylor, Van | Torres | Truitt | Weber
                      | White | Woolley | Workman | Zedler | Zerwas

Sponsor:              Huffman

Subjects:             Civil Remedies & Liabilities (I0065)
                      Courts--Civil Procedure (I0135)
                      Tort Reform (I0816)
                      ATTORNEY'S FEES (S0202)
                      SUPREME COURT (V0311)

House Committee: Judiciary & Civil Jurisprudence               Bill Subcommittee: Torts
Status:               Out of committee                         Madden (Chair) | Davis, Sarah | Lewis
Vote:                 Ayes=7     Nays=1   Present Not Voting=0    Absent=3

Senate Committee: State Affairs
Status:               Out of committee
Vote:                 Ayes=9     Nays=0   Present Not Voting=0    Absent=0

Actions: (descending date order)
Viewing Votes: Most Recent House Vote | Most Recent Senate Vote
                                                                                                         Time Journal
                   Description                                  Comment                   Date
                                                                                                               Page
E Effective on 9/1/11                                                                  05/30/2011
E Signed by the Governor                                                               05/30/2011                 6917
E Sent to the Governor                                                                 05/27/2011                 6459
S Signed in the Senate                                                                 05/27/2011                 4373
H Signed in the House                                                                  05/27/2011                 6275
                                                                                                      07:45
                                                                                                         874
H Reported enrolled                                                                    05/27/2011                 6459
                                                                                                     AM
S House concurs in Senate amendment(s)-                      05/25/2011            3715
  reported
H Text of Senate Amendment(s)                                05/25/2011            5704
H Statement(s) of vote recorded in Journal                   05/25/2011            5704
H Record vote                                  RV#1504       05/25/2011            5704
H House concurs in Senate amendment(s)                       05/25/2011            5704
                                                                         06:44
H Senate Amendments Analysis distributed                     05/24/2011
                                                                        PM
                                                                         06:43
H Senate Amendments distributed                              05/24/2011
                                                                        PM
H Senate passage as amended reported                         05/24/2011            5390
S   Record vote                                              05/24/2011            3373
S   Passed                                                   05/24/2011            3373
S   Read 3rd time                                            05/24/2011            3373
S   Record vote                                              05/24/2011            3373
S Three day rule suspended                                   05/24/2011            3373
S Vote recorded in Journal                                   05/24/2011            3373
S Read 2nd time & passed to 3rd reading                      05/24/2011            3373
S Record vote                                                05/24/2011            3373
S Rules suspended-Regular order of business                  05/24/2011            3373
S Placed on intent calendar                                  05/24/2011
                                                                           11:14
S Committee report printed and distributed                   05/23/2011
                                                                          AM
S Reported favorably as substituted                          05/23/2011            3319
S   Testimony taken in committee                             05/21/2011
S   Considered in public hearing                             05/21/2011
S   Left pending in committee                                05/16/2011
S   Testimony taken in committee                             05/16/2011
S   Considered in public hearing                             05/16/2011
S   Scheduled for public hearing on . . .                    05/16/2011
S   Referred to State Affairs                                05/10/2011            2188
S   Read first time                                          05/10/2011            2188
S Received from the House                                    05/10/2011            2156
                                                                           07:50
H Reported engrossed                                         05/10/2011            3652
                                                                          AM
H   Reason for vote recorded in Journal                      05/09/2011            3221
H   Statement(s) of vote recorded in Journal                 05/09/2011            3221
H   Record vote                                RV#857        05/09/2011            3220
H   Passed as amended                                        05/09/2011            3220
H Record vote                                  RV#856        05/09/2011            3220
H Amendment tabled                             11-Dutton     05/09/2011            3220
H Record vote                                  RV#855        05/09/2011            3219
H   Amendment tabled                           10-Dutton     05/09/2011            3219
H   Record vote                                RV#854        05/09/2011            3218
H   Amendment tabled                           9-Dutton      05/09/2011            3218
H   Amended                                    4-Lucio       05/09/2011            3218
H   Vote reconsidered                                        05/09/2011            3218
H   Statement(s) of vote recorded in Journal                 05/09/2011            3217
H   Record vote                                RV#853        05/09/2011            3217
H   Amendment adopted as amended               7-Gutierrez   05/09/2011            3217
H Record vote                                  RV#852        05/09/2011      875   3216
H Motion to table fails                            7-Gutierrez                       05/09/2011            3216
H   Amendment amended                              8-Gutierrez                       05/09/2011            3216
H   Amendment(s) offered                           7-Gutierrez                       05/09/2011            3216
H   Statement(s) of vote recorded in Journal                                         05/09/2011            3215
H   Record vote                                    RV#851                            05/09/2011            3215
H   Amended                                        6-Hilderbran                      05/09/2011            3214
H   Statement(s) of vote recorded in Journal                                         05/09/2011            3214
H   Record vote                                    RV#850                            05/09/2011            3213
H   Amended                                        5-Lewis                           05/09/2011            3213
H Statement(s) of vote recorded in Journal                                           05/09/2011            3213
H Record vote                                      RV#849                            05/09/2011            3212
H Amendment tabled                                 4-Lucio                           05/09/2011            3212
H Amendment withdrawn                              3-Eiland                          05/09/2011            3212
H Amendment adopted as amended                     1-Creighton                       05/09/2011            3211
H Statement of Leg. Intent Recorded in Journal                                       05/09/2011            3209
H Amendment amended                                2-Creighton                       05/09/2011            3209
H   Amendment(s) offered                           1-Creighton                       05/09/2011            3209
H   Statement of Leg. Intent Recorded in Journal                                     05/09/2011            3206
H   Read 3rd time                                                                    05/09/2011            3206
H   Statement(s) of vote recorded in Journal                                         05/07/2011            3200
H Record vote                                      RV#847                            05/07/2011            3200
H   Passed to engrossment                                                            05/07/2011            3200
H   Statement(s) of vote recorded in Journal                                         05/07/2011            3199
H   Record vote                                    RV#846                            05/07/2011            3199
H   Motion prevails                                                                  05/07/2011            3199
H   Motion for the previous question                                                 05/07/2011            3199
H   Statement(s) of vote recorded in Journal                                         05/07/2011            3198
H   Record vote                                    RV#844                            05/07/2011            3197
H   Motion to suspend rules                                                          05/07/2011            3197
                                                    Rule 6, Section 6 and Rule 13,
H Point of order overruled                                                           05/07/2011            3197
                                                   Section 1
H   Read 2nd time                                                                    05/07/2011            3197
H   Placed on Emergency Calendar                                                     05/07/2011
H   Considered in Calendars                                                          05/06/2011
H   Committee report sent to Calendars                                               05/05/2011
                                                                                                   11:09
H Committee report distributed                                                       05/05/2011
                                                                                                  PM
H Comte report filed with Committee Coordinator                                      05/05/2011            3178
H Reported favorably as substituted                                                  05/05/2011
H Committee substitute considered in committee                                       05/05/2011
H Considered in formal meeting                                                       05/05/2011
H Returned to committee                                                              05/05/2011            3073
H Point of order sustained                         Rule 4, Section 32(b)(9)          05/05/2011            3073
H   Point of order overruled                       Rule 4, Section 32(b)             05/05/2011            3073
H   Read 2nd time                                                                    05/05/2011            3073
H   Placed on Major State Calendar                                                   05/05/2011
H   Considered in Calendars                                                          05/02/2011
H Committee report sent to Calendars                                                 04/27/2011
                                                                                                   05:38
H Committee report distributed                                                       04/26/2011
                                                                                                  PM 876
H Comte report filed with Committee Coordinator                                      04/26/2011            2324
H Reported favorably as substituted                04/14/2011
H Committee substitute considered in committee     04/14/2011
H Recalled from subcommittee                       04/14/2011
H   Considered in formal meeting                   04/14/2011
H   Subcommittee members named                     04/11/2011
H   Referred to subcommittee                       04/11/2011
H   Committee substitute considered in committee   04/11/2011
H   Recalled from subcommittee                     04/11/2011
H   Considered in public hearing                   04/11/2011
H   Scheduled for public hearing on . . .          04/11/2011
H   Left pending in subcommittee                   04/06/2011
    Testimony taken/registration(s) recorded in
H                                                  04/06/2011
    subcommittee
H Considered by s/c in public hearing              04/06/2011
H Scheduled for public hearing in s/c on . . .     04/06/2011
H Posting rule suspended                           04/05/2011         1488
H   Subcommittee members named                     04/04/2011
H   Referred directly to subcommittee by chair     04/04/2011
H   Referred to Judiciary & Civil Jurisprudence    03/14/2011         777
H   Read first time                                03/14/2011         777
H Filed                                            03/10/2011




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