AN ACT
1-1 relating to lawsuits arising outside or brought by persons who
1-2 reside outside of Texas.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 71.051, Civil Practice and Remedies Code,
1-5 is amended to read as follows:
1-6 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a
1-7 plaintiff [claimant] who is not a legal resident of the United
1-8 States, if a court of this state, on written motion of a party,
1-9 finds that in the interest of justice a claim or [an] action to
1-10 which this section applies would be more properly heard in a forum
1-11 outside this state, the court may decline to exercise jurisdiction
1-12 under the doctrine of forum non conveniens and may stay or dismiss
1-13 the claim or action in whole or in part on any conditions that may
1-14 be just.
1-15 (b) With respect to a plaintiff [claimant] who is a legal
1-16 resident of the United States, on written motion of a party, a
1-17 claim or [an] action to which this section applies may be stayed or
1-18 dismissed in whole or in part under the doctrine of forum non
1-19 conveniens if the party seeking to stay or dismiss the claim or
1-20 action proves by a preponderance of the evidence that:
1-21 (1) an alternative forum exists in which the claim or
1-22 action may be tried [a forum outside this state is a more
1-23 appropriate forum that:]
2-1 [(A) offers a remedy for the causes of action
2-2 brought by a party to which this section applies;]
2-3 [(B) as a result of the submission of the
2-4 parties or otherwise, can exercise jurisdiction over all parties
2-5 and claims properly joined in the action by the claimant; and]
2-6 [(C) would provide a place of trial that is
2-7 fair, reasonable, and convenient to the parties];
2-8 (2) the alternate forum provides an adequate remedy;
2-9 (3) maintenance of the claim or action in the courts
2-10 of this state would work a substantial injustice to the moving
2-11 party [and the balance of the private interests of all the parties
2-12 and the public interest of the state predominates in favor of the
2-13 action being brought in the other forum];
2-14 (4) the alternate forum, as a result of the submission
2-15 of the parties or otherwise, can exercise jurisdiction over all the
2-16 defendants properly joined to the plaintiff's claim;
2-17 (5) the balance of the private interests of the
2-18 parties and the public interest of the state predominate in favor
2-19 of the claim or action being brought in an alternate forum; and
2-20 (6) [(3)] the stay or dismissal would not[, in
2-21 reasonable probability,] result in unreasonable duplication or
2-22 proliferation of litigation.
2-23 (c) The court may set terms and conditions for staying or
2-24 dismissing a claim or action under this section as the interests of
2-25 justice may require, giving due regard to the rights of the parties
3-1 to the claim or action. If a moving party violates a term or
3-2 condition of a stay or dismissal, the court shall withdraw the
3-3 order staying or dismissing the claim or action and proceed as if
3-4 the order had never been issued. Notwithstanding any other law,
3-5 the court shall have continuing jurisdiction for purposes of this
3-6 subsection [No stay or dismissal shall be granted under Subsection
3-7 (b) until all properly joined defendants file with the clerk of the
3-8 court a written stipulation that each defendant will:]
3-9 [(1) submit to the personal jurisdiction of the courts
3-10 of the other forum; and]
3-11 [(2) waive any defense based on the statute of
3-12 limitations applicable in the other forum with respect to all
3-13 causes of action brought by a party to which this section applies].
3-14 (d) [The court may, on motion and notice to the parties,
3-15 modify an order granting a stay or dismissal under this section and
3-16 take any further action in the proceeding as the interests of
3-17 justice may require. If the moving party violates a stipulation
3-18 required by Subsection (c), the court shall withdraw the order
3-19 staying or dismissing the action and proceed as if the order had
3-20 never been issued. Notwithstanding any other law, the court shall
3-21 have continuing jurisdiction for the purposes of this subsection.]
3-22 [(e)] A request for stay or dismissal under this section is
3-23 timely if it is filed not later than 180 days after the time
3-24 required for filing a motion to transfer venue of the claim or
3-25 action. [Otherwise, any objection under this section to the
4-1 court's exercise of jurisdiction is waived.] The court may rule on
4-2 a motion filed under this section only after a hearing with notice
4-3 to all parties not less than 21 days before the date specified for
4-4 the hearing. The court shall afford all of the parties ample
4-5 opportunity to obtain discovery of information relevant to the
4-6 motion prior to a hearing on a motion under this section. The
4-7 moving party shall have the responsibility to request and obtain a
4-8 hearing on such motion at a reasonable time prior to commencement
4-9 of the trial, and in no case shall the hearing be held less than 30
4-10 days prior to trial.
4-11 (e) The court may not stay or dismiss a plaintiff's claim
4-12 under Subsection (b) if the plaintiff is a legal resident of this
4-13 state. If an action involves both plaintiffs who are legal
4-14 residents of this state and plaintiffs who are not, the court may
4-15 not stay or dismiss the action under Subsection (b) if the
4-16 plaintiffs who are legal residents of this state are properly
4-17 joined in the action and the action arose out of a single
4-18 occurrence. The court shall dismiss a claim under Subsection (b)
4-19 if the court finds by a preponderance of the evidence that a party
4-20 was joined solely for the purpose of obtaining or maintaining
4-21 jurisdiction in this state and the party's claim would be more
4-22 properly heard in a forum outside this state.
4-23 (f) A court may not stay or dismiss a claim or [an] action
4-24 pursuant to Subsection (b)[:]
4-25 [(1) if a claimant in the action who is properly
5-1 joined is a legal resident of this state;]
5-2 [(2)] if a party opposing the motion under Subsection
5-3 (b) alleges and makes a prima facie showing that an act or omission
5-4 that was a proximate or producing cause of the injury or death
5-5 occurred in this state. The [Notwithstanding Subsection (h), said]
5-6 prima facie showing need not be made by a preponderance of the
5-7 evidence and shall be deemed to be satisfied if the [said] party
5-8 produces credible evidence in support of the pleading, which
5-9 evidence need not be in admissible form and may include affidavits,
5-10 deposition testimony, discovery responses, or other verified
5-11 evidence[;]
5-12 [(3) in an action brought under the federal Employers'
5-13 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety
5-14 Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler
5-15 Inspection Act (45 U.S.C. Section 22 et seq.);]
5-16 [(4) in an action in which it is alleged that the
5-17 personal injury or death was caused by a means of air
5-18 transportation operated in this state or occurred while traveling
5-19 in or on a means of air transportation during a trip originating
5-20 from or destined for a location in this state; or]
5-21 [(5) in an action in which it is alleged that harm was
5-22 caused by exposure to asbestos fibers].
5-23 (g) [This section does not apply if the personal injury or
5-24 death that is the subject of the cause of action resulted from a
5-25 violation of the laws of this state or of the United States,
6-1 including but not limited to exposure to a substance referred to in
6-2 Section 33.013(c)(3) that was transported out of this state or the
6-3 United States in violation of the laws of this state or the United
6-4 States.]
6-5 [(h) The burden is on the party opposing a motion under
6-6 Subsection (b) to assert and prove by a preponderance of the
6-7 evidence an exception provided by Subsection (f), if applicable.
6-8 If a party opposing a motion under Subsection (b) fails to timely
6-9 raise an exception under Subsection (f), that party's right to
6-10 raise such exception is waived, but such waiver does not relieve
6-11 the moving party as to any requirement of this section. An
6-12 exception filed not less than seven days before the hearing on a
6-13 motion made under Subsection (b) shall be deemed to be timely.]
6-14 [(i)] Any time limit established by this section may be
6-15 extended by the court at the request of any party for good cause
6-16 shown.
6-17 (h) [(j)] In this section:
6-18 (1) "Legal resident" means an individual [a person]
6-19 who intends the specified political subdivision to be his permanent
6-20 residence and who intends to return to the specified political
6-21 subdivision despite temporary residence elsewhere or despite
6-22 temporary absences, without regard to the individual's [person's]
6-23 country of citizenship or national origin. The term does not
6-24 include an individual [a person] who adopts a residence in the
6-25 specified political subdivision in bad faith for purposes of
7-1 avoiding the application of this section.
7-2 (2) "Plaintiff" ["Claimant"] means a party[, including
7-3 a plaintiff, counterclaimant, cross-claimant, or third-party
7-4 plaintiff,] seeking recovery of damages for personal injury or
7-5 wrongful death. In a cause of action in which a party seeks
7-6 recovery of damages for personal injury to or the wrongful death of
7-7 another person, "plaintiff" ["claimant"] includes both that other
7-8 person and the party seeking such recovery. The term does not
7-9 include a counterclaimant, cross-claimant, or third-party plaintiff
7-10 or a person who is assigned a cause of action for personal injury,
7-11 or who accepts an appointment as a personal representative in a
7-12 wrongful death action, in bad faith for purposes of affecting in
7-13 any way the application of this section.
7-14 (i) [(k)] This section applies to actions for personal
7-15 injury or wrongful death. This section shall govern the courts of
7-16 this state in determining issues under the doctrine of forum non
7-17 conveniens in the actions to which it applies, notwithstanding
7-18 Section 71.031(a) or any other law.
7-19 SECTION 2. Subchapter D, Chapter 71, Civil Practice and
7-20 Remedies Code, is amended by adding Section 71.052 to read as
7-21 follows:
7-22 Sec. 71.052. JURISDICTION; ELECTION; STIPULATIONS.
7-23 (a) This section applies only to a claim for personal injury or
7-24 wrongful death in which:
7-25 (1) the plaintiff was not a resident of this state at
8-1 the time the claim arose;
8-2 (2) the plaintiff's claim arose outside this state;
8-3 and
8-4 (3) the plaintiff's claim alleges that harm was caused
8-5 by exposure to asbestos fibers.
8-6 (b) The court, on motion of a defendant, shall dismiss each
8-7 claim against the defendant that is subject to this section and was
8-8 filed in this state on or after January 1, 1997, on the filing of a
8-9 stipulation by the defendant that, for the purposes of limitations,
8-10 the filing of the claim in another forum would relate back to the
8-11 date each plaintiff filed his claim in this state.
8-12 (c) The court, on motion of a defendant, shall dismiss each
8-13 claim against the defendant that is subject to this section and was
8-14 commenced in this state on or after August 1, 1995, but before
8-15 January 1, 1997, unless the plaintiff files a written statement
8-16 electing to:
8-17 (1) abate the plaintiff's claim against the defendant
8-18 for a period of 180 days from the date the court disposes of the
8-19 defendant's motion, to afford the plaintiff an opportunity to file
8-20 a new action on the claims in another state of the United States;
8-21 or
8-22 (2) retain the plaintiff's claims against the
8-23 defendant in this state and limit the plaintiff's recovery on the
8-24 claims for exemplary damages, if any, against the defendant to an
8-25 amount not to exceed the greater of:
9-1 (A) two times the amount of economic damages
9-2 plus an amount equal to any noneconomic damages found by the trier
9-3 of fact, not to exceed $750,000; or
9-4 (B) $200,000.
9-5 (d) If a plaintiff files a written statement making an
9-6 election under Subsection (c), the court shall deny the defendant's
9-7 motion filed under Subsection (c) and shall enter an order in
9-8 accordance with the plaintiff's election. If the plaintiff makes
9-9 an election under Subsection (c), the election is effective as to
9-10 all defendants and the court may not require the plaintiff to
9-11 refile the election against any subsequent motion filed by a
9-12 defendant under Subsection (c). If a plaintiff elects to abate the
9-13 claim, the court shall dismiss each of the plaintiff's claims
9-14 against the defendants at the end of the abatement period.
9-15 (e) A court may not abate or dismiss a claim under
9-16 Subsection (c) against a defendant until the defendant files with
9-17 the court or with the clerk of the court a written stipulation
9-18 that, with respect to a new action on the claim commenced by the
9-19 plaintiff, the defendant waives the right to assert a statute of
9-20 limitations defense in all other states of the United States in
9-21 which the claim was not barred by limitations at the time the claim
9-22 was filed in this state as necessary to effect a tolling of the
9-23 limitations periods in those states beginning on the date the claim
9-24 was filed in this state and ending on the date the claim is
9-25 dismissed or the period of abatement ends.
10-1 (f) The court may not abate or dismiss a claim under this
10-2 section against a defendant until the defendant files with the
10-3 court or with the clerk of the court a written stipulation that,
10-4 with respect to a new action on the claim commenced by the
10-5 plaintiff in another state of the United States, the plaintiff may
10-6 elect that the plaintiff and the defendant may:
10-7 (1) rely on responses to discovery already provided
10-8 under the Texas Rules of Civil Procedure, plus any additional
10-9 discovery that may be conducted under the rules of civil procedure
10-10 in the other state; or
10-11 (2) use responses to discovery already provided and
10-12 conduct additional discovery as permitted under the rules of civil
10-13 procedure in the other state.
10-14 (g) To comply with this section in relation to an action
10-15 that involves both claims that arose in this state and claims that
10-16 arose outside this state, a court shall consider each claim
10-17 individually and shall sever from the action the claims that are
10-18 subject to this section.
10-19 (h) A court shall determine that a claim arose in the
10-20 jurisdiction in which the plaintiff was located at the time the
10-21 plaintiff is alleged to have been exposed to asbestos fibers. If a
10-22 plaintiff alleges that the plaintiff was exposed to asbestos fibers
10-23 while located in more than one jurisdiction, the court shall
10-24 determine, for purposes of this section, which of the jurisdictions
10-25 is the most appropriate forum for the claim, considering the
11-1 relative amounts and lengths of the plaintiff's exposure to
11-2 asbestos fibers in each of the jurisdictions.
11-3 SECTION 3. Subsections (a) and (b), Section 71.031, Civil
11-4 Practice and Remedies Code, are amended to read as follows:
11-5 (a) An action for damages for the death or personal injury
11-6 of a citizen of this state, of the United States, or of a foreign
11-7 country may be enforced in the courts of this state, although the
11-8 wrongful act, neglect, or default causing the death or injury takes
11-9 place in a foreign state or country, if:
11-10 (1) a law of the foreign state or country or of this
11-11 state gives a right to maintain an action for damages for the death
11-12 or injury;
11-13 (2) the action is begun in this state within the time
11-14 provided by the laws of this state for beginning the action; [and]
11-15 (3) for a resident of a foreign state or country, the
11-16 action is begun in this state within the time provided by the laws
11-17 of the foreign state or country in which the wrongful act, neglect,
11-18 or default took place; and
11-19 (4) in the case of a citizen of a foreign country, the
11-20 country has equal treaty rights with the United States on behalf of
11-21 its citizens.
11-22 (b) Except as provided by Subsection (a), all [All] matters
11-23 pertaining to procedure in the prosecution or maintenance of the
11-24 action in the courts of this state are governed by the law of this
11-25 state.
12-1 SECTION 4. (a) Section 1 of this Act applies to:
12-2 (1) a civil action commenced on or after January 1,
12-3 1999, that is:
12-4 (A) an action against a railroad company brought
12-5 under the federal Employers' Liability Act (45 U.S.C. Section 51 et
12-6 seq.), the federal Safety Appliance Act (45 U.S.C. Section 1 et
12-7 seq.), or the federal Boiler Inspection Act (45 U.S.C. Section 22
12-8 et seq.); or
12-9 (B) an action in which it is alleged that the
12-10 personal injury or death was caused by a means of air
12-11 transportation operated in this state or occurred while traveling
12-12 in or on a means of air transportation during a trip originating
12-13 from or destined for a location in this state; and
12-14 (2) a civil action commenced on or after the effective
12-15 date of this Act, other than an action described in Subdivision (1)
12-16 of this section.
12-17 (b) Section 2 of this Act applies to a civil action that is
12-18 pending on the effective date of this Act in which the plaintiff
12-19 alleges that harm was caused by exposure to asbestos fibers. In an
12-20 action commenced before the effective date of this Act, a trial of
12-21 a plaintiff's action that was completed before that date, or that
12-22 is in progress on that date, and a subsequent new trial or retrial
12-23 of that plaintiff's action are governed with respect to the subject
12-24 matter of Section 2 of this Act by the applicable law in effect
12-25 immediately before that date, and that law is continued in effect
13-1 for that purpose.
13-2 (c) Section 3 of this Act applies to a civil action
13-3 commenced on or after the effective date of this Act. A civil
13-4 action commenced before the effective date of this Act is governed
13-5 by the applicable law in effect immediately before that date as to
13-6 all parties joined in that action before that date and as to other
13-7 defendants properly joined after the effective date who could not
13-8 have been joined in the action before the effective date because of
13-9 the existence of an injunction prohibiting such joinder, and that
13-10 law is continued in effect for that purpose.
13-11 SECTION 5. The importance of this legislation and the
13-12 crowded condition of the calendars in both houses create an
13-13 emergency and an imperative public necessity that the
13-14 constitutional rule requiring bills to be read on three several
13-15 days in each house be suspended, and this rule is hereby suspended,
13-16 and that this Act take effect and be in force from and after its
13-17 passage, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 220 passed the Senate on
March 18, 1997, by the following vote: Yeas 27, Nays 4; and that
the Senate concurred in House amendments on May 27, 1997, by the
following vote: Yeas 28, Nays 3.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 220 passed the House, with
amendments, on May 24, 1997, by the following vote: Yeas 128,
Nays 5, three present not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor