Significant Session
Other Historic Measures in the State Legislature

By MARTY THOMPSON, PATRICE PUJOL and JOI LAKES

In addition to tort reform, the 78th Texas Legislature addressed other issues affecting not only the practice of law, but also several controversial issues, including abortion and school prayer. This article briefly discusses some of this new legislation.

Minute of Silence at Texas Schools
All Texas school districts must now require their students to recite the Texas and United States pledges of allegiance (unless the student is excused by a written request by their parent or guardian) and to observe a one-minute “moment of silence” after the recitation of the pledges.1 The moment of silence was previously optional, at the discretion of the school district. During this moment, students are allowed by the bill to pray, meditate, reflect or engage in any other silent, non-distracting activity. The act will go into effect with the 2003-04 school year.

Cameras Banned from Jury Rooms
Codifying the holding of State of Texas ex rel. Charles A. Rosenthal, Jr. vs. the Honorable Ted Poe, Texas law now forbids the use of any device to make an audio, visual, or audio visual broadcast, recording or photograph of a jury while it is deliberating.2 This law was initiated in reaction to controversy over a proposal by a television network to televise jury deliberations in a Houston capital murder case. This law applies to any trial commenced on or after September 1, 2003.

$250 Fee for Out-of-State Lawyers to Use Texas Courts
Texas has joined 20 other states and U.S. territories in requiring nonresident lawyers to pay a fee to participate in Texas courts. All attorneys not certified by the State Bar of Texas and who reside and are bar certified in a state other than Texas must now pay a $250 fee to request permission to participate in Texas court proceedings.3 The fees collected will be used in supreme court-approved programs that provide legal services to indigents.
If a nonresident attorney seeks to represent an indigent person in the state of Texas, the supreme court may adopt rules to waive or reduce the fee. Without this waiver, however, the nonresident attorney must pay the fee before filing her motion requesting permission to participate in proceedings. When filing the motion, the nonresident attorney must represent that she paid the fee.
This fee applies to a nonresident attorney who files a motion to participate in a proceeding in a Texas court on or after September 1, 2003.

Restrictions on Abortion
Dubbed the “Women’s Right to Know Act,” this new law requires abortions after the 16th week of pregnancy to be performed at a licensed hospital or an ambulatory surgical center.4 Doctors who intentionally violate this restriction commit a misdemeanor punishable by a fine of up to $10,000.
In addition, all abortions, regardless of the week of pregnancy, are now permitted only if the patient has given her “voluntary and informed consent.” The consent procedure now involves several additional steps. The referring physician must inform the patient of the name of the physician performing the abortion; the medical risks associated with abortion; the availability of prenatal, childbirth and neonatal care; the availability of child support and counseling; information about her unborn child; and alternatives to abortion. Moreover, this information must be conveyed either orally or via telephone at least 24 hours before the abortion. It must either include written materials or a written statement by the patient stating that she would rather view the materials on an Internet site. Finally, the act reduces the number of abortions — now limited to 10 per month or 100 per year — that a facility may perform without being licensed as an abortion provider.
This legislation takes effect September 1, 2003, and applies only to an abortion performed on or after January 1, 2004.

Residential Construction Standards
Currently, Texas lacks state performance standards for residential construction. As a result, homeowners and homebuilders end up fighting over these standards in court. With the passage of the Texas Residential Construction Commission Act, the dispute resolution process between owners and builders has been simplified.5
The act establishes a nine-member commission that will oversee the building defect investigation and dispute resolution process. The act requires builders to meet a list of criteria, including background checks and fee payments. Builders also must register their homes with the Texas Residential Construction Commission, which also has the responsibility of setting up certification guidelines for arbitrators and third-party inspectors. The Act establishes procedures for investigating claims and resolving disputes. It grants the builder a right of inspection and an opportunity to correct problems. Finally, the act provides minimum standards for the length and levels of coverage available in builder warranties.
This act takes effect September 1, 2003.

Homeowner Insurance Reform
This new legislation regulates existing homeowners and automobile owner insurance.6 In Texas, only 5 percent of the homeowners insurance market is regulated. As a result, Texans pay the highest homeowners premiums in the United States. Rates of most residential property and personal automobile insurers are now to be regulated. The Commissioner of Insurance must review rates filed by insurers in order for an insurer to be authorized to use the rate. This regulation empowers the commissioner to disapprove of rates that are not supported by actuarial risk data. Rating manuals, supporting data and underwriting guidelines must also be submitted to the commissioner.
Under the new provisions, insurance rates are considered excessive if they are likely to produce long-term profits which are unreasonably high in comparison to the insurance coverage provided in exchange. Conversely, insurance rates are considered inadequate if they are insufficient to cover the projected losses and expenses supposedly covered by the rate. Finally, an insurance rate is unfairly discriminatory if it is not based on sound actuarial principles, does not bear a reasonable relationship to the expected loss and expense experience among risks, or is based in whole or in part on the race, creed, color, ethnicity, or national origin of the policyholder or an insured.
Credit scoring cannot be used in an unfair or discriminatory manner, which means that insurers are forbidden from giving a policy holder a low rating because she does not have a credit card or has little credit information. Insurers also must inform applicants that their credit report will be used for underwriting or rating and provide notice if a negative decision was made based on the credit report of the applicant.
Finally, the new legislation contains extensive provisions addressing refund and notice to the insured. For example, insurers must inform their policyholders of rate increases that are 10 percent or higher. Additionally, insurers must issue refunds to their policyholders if their rates are found to be excessive or unfairly prejudicial.
These provisions apply to an insurance policy that is delivered, issued for delivery, or renewed on or after the effective date and to the rates for that policy. The effective date of these provisions is June 10, 2003. However, the rate regulation provisions of the bill will become effective on December 1, 2004. Additionally, the provisions addressing windstorm insurance will become effective on January 1, 2004.

Constitutional Amendment Capping Non-Economic Damages in Civil Cases
H.J.R. 3 proposes an amendment to the Texas state constitution which applies primarily to doctors and other health care providers.7 Currently, there is no cap for damages in common law causes of action against health care providers because the Texas Supreme Court held it to be unconstitutional to cap these damages. There is, however, a $500,000 cap on damages awarded against health care providers for statutory causes of action. The amendment would allow the legislature to determine a limit for all damages and losses other than economic damages, regardless of whether the action arose from a statute or the common law. This includes all losses or damages for past, present and future physical pain and suffering, mental anguish, loss of consortium, loss of companionship, disfigurement or physical impairment.
The amendment will be presented to the voters for ratification at a referendum to be held on September 13, 2003.
Several major attempts at reform were defeated in the session. Among these are tort reform aimed specifically at asbestos cases and the proposed legislation on judicial selection reform. Asbestos reform is slated for discussion during the Special Session that began June 30. The hot-button issue of judicial selection reform will likely reappear in the 2005 Regular Session.

Asbestos Reform Bill
Senate Bill 496, if enacted, will implement several measures designed not only to reduce the number of active asbestos cases that are currently overcrowding Texas court dockets, but also to channel available funds to those victims who are currently ill.
This legislation will create a new Chapter 90 in the Civil Practice and Remedies Code. Within the framework of this chapter, the supreme court will establish an inactive docket to which cases involving non-malignant plaintiffs will be transferred. While a case is on the inactive docket, the statute of limitations will be tolled as to all named defendants, and no discovery will be conducted.
To have his case returned to the active docket, a plaintiff will have to show that he has a malignant disease. To make this showing, a randomly-selected independent expert will determine the plaintiff’s diagnosis and submit a report to the court. If a proper and sufficient showing is made, then the claim is removed from the inactive docket and placed in the trial court’s active docket. Essentially, the case will return to the same court in which it was filed.

Gubernatorial Appointment of All State Judges
Under current law, the voters of Texas elect the judges of the Supreme Court, Court of Criminal Appeals, the courts of appeal, and the district, family and probate courts. Senate Joint Resolution 33 and House Joint Resolution 63, if passed, will eradicate these elections and propose certain constitutional amendments empowering the Governor of Texas to appoint these judges.
Under the proposed system, the governor will select a judge to serve a term of four or six years, depending on the particular court. The judge will then be confirmed or rejected by a two-thirds vote of the membership of a senate committee designated for that purpose. This committee will also work during legislative recesses.
Finally, at the end of each judge’s appointed term, the voters will determine whether to retain the judge. The vote will take place in a non-partisan retention election. If the voters elect to retain the judge, then the judge will sit for an additional term. If, however, the judge is not retained, the process will begin again with a new gubernatorial appointment

ENDNOTES
1. S.B. 83, 78th Leg., R.S. (2003) (to be codified at Tex. Educ. Code § 25.082). 2. S.B. 164, 78th Leg., R.S. (2003) (to be codified at Tex. Code Crim. Proc. art. 36.215 and Tex. Civ. Prac. & Rem. Code § 24.001). 3. H.B. 462, 78th Leg., R.S. (2003) (to be codified at Tex. Gov’t Code § 82.0361). 4. H.B. 15, 78th Leg., R.S. (2003) (to be codified at Tex. Health & Safety Code 171). 5. H.B. 730, 78th Leg., R.S. (2003) (to be codified at Tex. Prop. Code 16). 6. S.B. 14, 78th Leg., R.S. (2003) (to be codified at Tex. Ins. Code 5). 7. H.J.R. 3, 78th Leg., R.S. (2003) (seeking to amend Article III of the Texas Constitution by adding new section 66).


Marty Thompson is a business and environmental litigation attorney in the Houston office of Haynes and Boone, LLP. She earned her J.D. from The University of Texas School of Law in 2002. In 1999, Thompson graduated magna cum laude from the University of St. Thomas in Houston.

Patrice Pujol is a litigation and appellate attorney with Spain Hastings Willingham Beason and Ward. She earned her J.D. from South Texas College of Law in 1995. She is the articles editor of The Houston Lawyer.

Joi Lakes is a law student at New York University School of Law. She expects to earn her J.D. in May 2005. Lakes is a cum laude graduate of Southwestern University in Georgetown, Texas. During June and July 2003, Lakes was a summer associate with the Houston office of Haynes and Boone, LLP.

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