TABLE OF CONTENTS
FROM THE BENCH
SWALL AT AALL
of SWALL Annual Business Meeting
Okra and Killer Iced Tea
of the Texas 77th Legislative Session, 2001
From The New Mexico 2001 Legislature
From the CoALL Institute
Holterhoff Visits with CoALL
AFFECTING THE PRACTICE OF LAW IN TEXAS :
The first legislative session of the twenty-first century officially ended on June 17th, the deadline for Texas Governor Perry to sign or veto the submitted bills. More than fifty bills affecting the practice of law in Texas were introduced during the session. Of these only eight have or will become law. Two were vetoed, and the remaining bills were left in committee "limbo."
The enrolled bills that have been signed or filed without signature, including effective dates, are listed first under the topical headings below. Vetoed bills, including veto proclamations, and bills left in committee are listed separately. For the full text of the bills, go to the Texas Legislature Online site at: http://www.capitol.state.tx.us.
BILLS SIGNED INTO LAW OR FILED WITHOUT SIGNATURE
SB 7 - Indigent
Right to Representation
This bill includes express provisions to ensure that indigent defendants, including juvenile offenders, have ready access to counsel. It establishes quantitative deadlines for the appointment of counsel to represent eligible individuals who are involved in an adverse proceeding that may result in punishment by confinement or in any criminal proceeding. It also sets forth procedures for disclosing these rights to indigent defendants and for appointing counsel.
SB 1789 - Appointment
of Public Defenders
This bill adds Article 26.053 to the Code of Criminal Procedure and empowers the Commissioners Court of Randall County to appoint public defenders. The bill sets forth the requirements for the position and the procedures for appointment and removal of public defenders and public defender assistants.
LICENSING & CONTINUING LEGAL EDUCATION
HB 1712 - Online
This bill requires online profiles of all licensed attorneys to be made available to the public by the State Bar of Texas.
SB 695 - Representation
of Government Entities
This bill adds a section to the Open Meetings chapter to address the communication methods and scope of consultations between a government body and its attorney.
HB 1876 - Masters
This bill grants authority to an attorney appointed as a master in chancery for a delinquent ad valorem tax suit to practice law in that court.
UNAUTHORIZED PRACTICE OF LAW
HB 3134 - Penalties
for Notaries Public
This bill requires non-attorney notaries to disclose publicly that they are not attorneys and may not practice law, give legal advice or accept fees for legal advice in the State of Texas. Violation of this measure results in a Class A misdemeanor. If the person was previously convicted for misrepresentation, the violation will be treated as a felony.
WILLS & PROBATE
HB 1083 - Durable
Powers of Attorney
This bill adds a section that addresses the effect of a bankruptcy proceeding on a durable power of attorney.
HB 2152 - Valid
This bill addresses the validity of certain devises or bequests in wills executed after its effective date of 6/11/01.
SB 1210 - Judicial
Clerks & Attorneys - Conflicts of Interest
This bill, as well as the companion HB 2889, sought to clarify the circumstances under which judicial law clerks and staff attorneys may accept offers of employment, signing bonuses, etc. from law firms or other private entities. It also required clerks and attorneys, who accepted offers of employment and/or bonuses from private employers, to recuse themselves from any matter before the court that involved the private employer.
VETO PROCLAMATION: "Senate Bill No. 1210 is overly broad, vague, and restricts the ability of judges across the state to hire qualified judicial clerks, who are instrumental to the functioning of courts."1
SB 1654 - Defense
Counsel Provided to Insured by Insurers
This bill would have added a provision to Title 2 that prohibits an insurer from imposing certain "litigation-management guidelines" that may potentially compromise the interests of the insured. In addition, the insurer may not require defense counsel to accept a "flat fee" for representing an insured. An insured may sue for injunctive relief for violations of these sections, and insurers found liable are subject to a civil penalty of up to $10,000 for each violation.
VETO PROCLAMATION: "Although Senate Bill No. 1654 is ostensibly aimed at protecting consumers, I am concerned that its practical effect will be to invite litigation, which, in turn, would ultimately increase costs to the very consumers it seeks to protect."2
BILLS NOW MORIBUND
House Bill 24
- Contingency Fees
This bill seeks to protect injured parties by placing certain limitations on the amount of attorney's contingency fees after a settlement or settlement offer.
HB 559 - Fee
Awards - Property Tax Assessments
This bill addresses the limitations of the award of attorney's fees to a property owner who prevails in a judicial appeal of certain ad valorem tax determinations.
HB 3250 - Barratry
This bill adds a subsection to the barratry statute that excepts attorneys from the application of the statute in certain instances.
HB 2843 &
SB 1765 - Award of Litigation Costs
These bills provide for an award of litigation costs in certain judgments following a settlement offer.
HB 1904 - Legislative
This bill increases from 30 to 45 days the period of continuance that a pending case may be extended where either a party or its counsel is participating in or attending the legislative session, pursuant to Sec. 30.003 of the Civil Practices. & Remedies. Code.
HB 267 - Death
This bill addresses the quality of court-appointed legal representation in capital cases.
HB 293 - Grand
This bill addresses attorney appearances in Grand Jury proceedings.
H.B. 2607 - Fees
for Collecting Delinquent Fines
This bill establishes fees that may be collected from attorneys' offices by county or district attorneys for delinquent fines, court costs or court-ordered attorneys' fees that have been received by the attorney's office but not paid within the period permitted by the judgment.
SB 1610 - Fees
for Collecting Delinquent Fines
Rather than adding a subsection to Chapter 102, per HB 2607, SB 1610 simply amends Art. 102.007 to add "delinquent fines" to those fines which may be collected by a county or district or criminal district attorney.
SB 1778 - Collection
of Court Costs
This bill authorizes a municipal governing body or commissioner's court to hire a public or private vendor to provide collection services of court costs, fines, fees, restitution, etc.
H.B. 2766 &
SB 792 - Repayment of Educational Loans
These bills enable the Texas Higher Education Coordinating Board to provide repayment assistance for certain educational loans to attorneys who are licensed and have been employed by the State of Texas for at least one year.
H.B. 2553 - Repayment
of Educational Loans
This bill provides repayment assistance of law school education loans for attorneys who agree to serve as a district or county attorney in rural counties for at least five years.
HB 2323 - Repayment
of Educational Loans
This bill makes available "repayment assistance grants" for up to 50% of law school educational loans. To be eligible, an attorney must be employed by a non-profit organization that provides criminal defense and civil legal services for indigent individuals.
SB 1477 - Organ
This bill enables the Department of Health to develop a program to educate attorneys and health care providers about anatomical gifts in order to encourage organ donation.
HB 847 - Ad Litem
This bill addresses the duties, limits of liability and fees paid to attorneys who are appointed as guardian ad litem on behalf of a child in suits affecting the parent-child relationship.
HB 873 - Modification
This bill addresses settlement offers and the award of attorneys' fees in an action for modification of an order in a suit affecting the parent-child relationship.
HB 1383 - Independent
Counsel for Insureds
This bill enables the State Insurance Commissioner to adopt rules, with the State Bar of Texas, to ensure the independence of counsel provided to an insured under a casualty insurance policy.
HB 1433 - Audits
of Billing Statements
This bill provides that an insurer, obligated to defend an insured under an insurance casualty policy, may not submit, or require the insured's counsel to submit, to a third party auditor a billing statement that details the services performed on behalf of the insured, unless full disclosure to the insured has been made following the insured's written consent.
HB 1715 - County
This bill places limitations on the authority of certain county judges to engage in the private practice of law.
LICENSING & CONTINUING LEGAL EDUCATION 3
House Bill 214
& Senate Bill 1365 - Licensing & CLE Requirements
These bills enable the Supreme Court to exempt individuals from the licensing examination requirement under certain conditions. The Senate Bill imposes CLE requirements on attorneys exempted from the Texas Bar Examination requirement, whereas the House Bill does not.
HB 3325; Attorneys
Licensed in Other States
This bill addresses the effective date of rules adopted by the Supreme Court of Texas relating to the practice of law in Texas by attorneys licensed in other jurisdictions.
HB 387 &
SB 1369 - Pro Bono Programs
These bills indemnify attorneys from malpractice liability in connection with their participation in pro bono programs, under certain circumstances, and permit the State Bar to credit participants with selected state-required continuing legal education credits.
HB 2042 - Sexual
This bill expands the criteria for proving a lack of consent in the prosecution of sexual assault in Sec. 22.011(b) of the Penal Code.
PROFESSIONAL LIABILITY & DISCIPLINARY PROCEEDINGS 4
HB 792 - Liability
of State Bar
This bill sets forth the criteria for which the State Bar may be found liable for the conduct of its employees.
PUBLIC OFFICERS & EMPLOYEES
HB 1868 &
SB 629 - Administering Oaths
These bills add "Attorney General" to the list of those individuals by whom an oath may be administered and a certificate of fact given.
HB 2329 - Public
This bill directs the issuer of public securities to retain local counsel in the area in which the issuer is located after the securities have been issued.
HB 1775 - Unauthorized
Practice of Law
This bill broadens the parameters of the unauthorized practice of law from personal injury and property damages to personal causes of action or "other legal matters normally reserved to persons licensed to practice law in this state, another state or a foreign country." Sec. 38.123(a)(1), Texas Penal Code.
WILLS & PROBATE
House Bill 19
This bill addresses the personal representatives of decedents' estates and the regulation of attorneys representing those personal representatives.
HB 1160 - Duty
of Care for Wills
This bill imposes a "duty of care" on attorneys retained to prepare a will. This duty is owed to the testator and person(s) named as beneficiaries, legatees and devisees of the will.
HB 1324 - Worker's
This bill adds a section making insurance carriers liable for "reasonable and necessary attorney's fees incurred by the claimant" (Sec. 402.221(c), Labor Code), in certain Worker's Compensation cases.
1 See Veto Proclamation for SB 1210 listed on the Texas Governor's Web site, News & Information, at http://www.governor.state.tx.us/current_events/news_info.htm.
2 Id. at SB 1654.
3 See also PRO BONO category.
4 See also PRO BONO category.