(A) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations there under.
(B) A contract may be construed either before or after there has been a breach.
37.002 provides that the chapter is remedial: “It’s purpose is to settle and to afford relief from uncertainty and in security with respect to rights, status, and other legal relations; and it is to be legally construed and administered.” The Act does not create or enlarge jurisdiction. E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Pursuant to §37.003, a declaration may be either affirmative or negative in form and effect. Thus, an insured can seek an affirmative finding of coverage, or an insurer can seek a negative determination that coverage does not exist. However, each party must still plead for relief and carry its own burden of proof. See, e.g., City of Galveston v. Giles, 902 S.W.2d 167 (Tex. App.–Houston [1st Dist.] 1995, no writ); Employers Cas. Co. v. Tilley, 484 S.W.2d 802, 806 (Tex. Civ. App.–Beaumont 1972), aff’d other grounds, 496 S.W.2d 552 (Tex. 1973) (court had no authority to order declaration against insurer in response to insured’s motion for summary judgment on insurer’s claims); Indigo Oil, Inc. v. Wiser Oil Co., 1998 TEX. APP. LEXIS 7550 (Tex. App.–Dallas 1998, pet. denied) (failure to satisfy burden is not finding of proof of opposite).
37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding.
(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
* * *
2202. Further relief
Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Specialized Expertise with Investigating, Prosecuting Insurance Fraud
AUSTIN – The Texas Department of Insurance (TDI) announced William “Doug” Wallace as a fraud prosecutor who will work exclusively with criminal prosecutors in the Tarrant County District Attorney’s Office to combat insurance fraud.
Wallace has two decades of insurance industry experience and has focused much of his professional career on special investigations and fraud as well as insurance defense, coverage and subrogation. He spent four years at Nationwide Insurance Trial Division and also served as general counsel of US Lloyds Insurance Company. He is a 2005 graduate of the University of Oklahoma College of Law. Before attending law school, Wallace spent 12 years in the insurance industry as a claims adjuster, supervisor, manager, and litigation manager.
TDI partners with district attorneys in Dallas, Harris, Tarrant and Bexar counties to provide expertise in the investigation and prosecution of insurance fraud.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
AUSTIN, TX — The Division of Workers’ Compensation is hosting a regional workplace safety workshop August 12 in Austin to help employers learn how to avoid common workplace injuries and comply with federal safety requirements.
The workshop will be 8 a.m. to 4 p.m. at the Holiday Inn Austin-Town Lake, 20 North IH-35. The cost is $50 per person, which includes coffee and snacks. Presentations will cover:
Components of an effective accident prevention program.
Guidance on complying with Occupational Safety and Health Administration (OSHA) programs and training.
The latest information on safe work areas, construction requirements for exit routes, and how to develop effective emergency action plans and fire prevention plans.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
The Occupational Safety and Health Administration (OSHA) has expanded its requirement for reporting fatalities and severe injuries, and updated the list of industries exempt from recordkeeping requirements. The final rule announced September 11, 2014 requires all employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation or loss of an eye. The rule, which also updates the list of employers partially exempt from OSHA record-keeping requirements, will go into effect on January 1, 2015 for workplaces under federal OSHA jurisdiction.
What Incidents Must be Reported to OSHA?
Under the revised rule, employers will be required to notify OSHA of:
work-related fatalities within eight hours of knowledge;
work-related in-patient hospitalizations within 24 hours of knowledge;
amputations within 24 hours of knowledge; and
losses of an eye within 24 hours of knowledge.
Previously, OSHA’s regulations required an employer to report only work-related fatalities and in-patient hospitalizations of three or more employees. Reporting single hospitalizations, amputations or loss of an eye was not required under the previous rule.
All employers covered by the Occupational Safety and Health Act, even those who are exempt from maintaining injury and illness records as described below, are required to comply with OSHA’s new severe injury and illness reporting requirements.
How to Report Incidents to OSHA
Employers can report these events by telephone to the nearest OSHA Area Office during normal business hours or the 24-hour OSHA hotline 1-800-321-OSHA [6742], or electronically through a new tool which will be released soon and accessible at the link below.
Updated List of Industries Exempt from OSHA Recordkeeping Requirements
The new rule maintains the exemption for any employer with 10 or fewer employees, regardless of their industry classification, from the requirement to routinely keep records of employee injuries and illnesses.
In the new rule, OSHA has updated the list of industries that, due to relatively low occupational injury and illness rates, are exempt from the requirement to routinely keep injury and illness records. The rule will go into effect January 1, 2015 for workplaces under federal OSHA jurisdiction.
The previous list of exempt industries was based on the old Standard Industrial Classification (SIC) system and the new rule uses the North American Industry Classification System (NAICS) to classify establishments by industry. The new list is based on updated injury and illness data from the Bureau of Labor Statistics.
For more information on the industries now exempt from keeping records or new industries now covered, please visit OSHA’s website.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Vernon’s Texas Statutes and Codes Annotated Transportation Code
Texas Seatbelt Laws
TRANSPORTATION CODE Chapter 545. Operation and Movement of Vehicles § 545.412. Child Passenger Safety Seat Systems; Offense.
(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 and not more than $250.
(b-1) [Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 4 (S.B. 1), § 69.01(1), effective September 28, 2011.]
(c) It is a defense to prosecution under this section that the person was operating the vehicle in an emergency or for a law enforcement purpose.
(d) [Repealed by Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 8.01, effective September 1, 2003.]
(e) This section does not apply to a person:
(1) operating a vehicle transporting passengers for hire, excluding third-party transport service providers when transporting clients pursuant to a contract to provide nonemergency Medicaid transportation; or
(2) transporting a child in a vehicle in which all seating positions equipped with child passenger safety seat systems or safety belts are occupied.
(f) In this section:
(1) “Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.
(2) “Passenger vehicle” means a passenger car, light truck, sport utility vehicle, passenger van designed to transport 15 or fewer passengers, including the driver, truck, or truck tractor.
(3) “Safety belt” means a lap belt and any shoulder straps included as original equipment on or added to a vehicle.
(4) “Secured,” in connection with use of a safety belt, means using the lap belt and any shoulder straps according to the instructions of:
(A) the manufacturer of the vehicle, if the safety belt is original equipment; or
(B) the manufacturer of the safety belt, if the safety belt has been added to the vehicle.
(g) A judge, acting under Article 45.0511, Code of Criminal Procedure, who elects to defer further proceedings and to place a defendant accused of a violation of this section on probation under that article, in lieu of requiring the defendant to complete a driving safety course approved by the Texas Education Agency, shall require the defendant to attend and present proof that the defendant has successfully completed a specialized driving safety course approved by the Texas Education Agency under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon’s Texas Civil Statutes) that includes four hours of instruction that encourages the use of child passenger safety seat systems and the wearing of seat belts and emphasizes:
(1) the effectiveness of child passenger safety seat systems and seat belts in reducing the harm to children being transported in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
(h) Notwithstanding Section 542.402(a), a municipality or county, at the end of the municipality’s or county’s fiscal year, shall send to the comptroller an amount equal to 50 percent of the fines collected by the municipality or the county for violations of this section. The comptroller shall deposit the amount received to the credit of the tertiary care fund for use by trauma centers.
Chapter 545. Operation and Movement of Vehicles § 545.4121. Dismissal; Obtaining Child Passenger Safety Seat System.
(a) This section applies to an offense committed under Section 545.412.
(b) It is a defense to prosecution of an offense to which this section applies that the defendant provides to the court evidence satisfactory to the court that:
(1) at the time of the offense:
(A) the defendant was not arrested or issued a citation for violation of any other offense;
(B) the defendant did not possess a child passenger safety seat system in the vehicle; and
(C) the vehicle the defendant was operating was not involved in an accident; and
(2) subsequent to the time of the offense, the defendant obtained an appropriate child passenger safety seat system for each child required to be secured in a child passenger safety seat system under Section 545.412(a).
Chapter 545. Operation and Movement of Vehicles § 545.413. Safety Belts; Offense.
(a) A person commits an offense if:
(1) the person:
(A) is at least 15 years of age;
(B) is riding in a passenger vehicle while the vehicle is being operated;
(C) is occupying a seat that is equipped with a safety belt; and
(D) is not secured by a safety belt; or
(2) as the operator of a school bus equipped with a safety belt for the operator’s seat, the person is not secured by the safety belt.
(b) A person commits an offense if the person:
(1) operates a passenger vehicle that is equipped with safety belts; and
(2) allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in the vehicle without requiring the child to be secured by a safety belt, provided the child is occupying a seat that is equipped with a safety belt.
(b-1) A person commits an offense if the person allows a child who is younger than 17 years of age and who is not required to be secured in a child passenger safety seat system under Section 545.412(a) to ride in a passenger van designed to transport 15 or fewer passengers, including the driver, without securing the child individually by a safety belt, if the child is occupying a seat that is equipped with a safety belt.
(c) A passenger vehicle or a seat in a passenger vehicle is considered to be equipped with a safety belt if the vehicle is required under Section 547.601 to be equipped with safety belts.
(d) An offense under Subsection (a) is a misdemeanor punishable by a fine of not less than $25 or more than $50. An offense under Subsection (b) is a misdemeanor punishable by a fine of not less than $100 or more than $200.
(e) It is a defense to prosecution under this section that:
(1) the person possesses a written statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(2) the person presents to the court, not later than the 10th day after the date of the offense, a statement from a licensed physician stating that for a medical reason the person should not wear a safety belt;
(3) the person is employed by the United States Postal Service and performing a duty for that agency that requires the operator to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle;
(4) the person is engaged in the actual delivery of newspapers from a vehicle or is performing newspaper delivery duties that require frequent entry into and exit from a vehicle;
(5) the person is employed by a public or private utility company and is engaged in the reading of meters or performing a similar duty for that company requiring the operator to frequently enter into and exit from a vehicle;
(6) the person is operating a commercial vehicle registered as a farm vehicle under the provisions of Section 502.433 that does not have a gross weight, registered weight, or gross weight rating of 48,000 pounds or more; or
(7) the person is the operator of or a passenger in a vehicle used exclusively to transport solid waste and performing duties that require frequent entry into and exit from the vehicle.
(f) The department shall develop and implement an educational program to encourage the wearing of safety belts and to emphasize:
(1) the effectiveness of safety belts and other restraint devices in reducing the risk of harm to passengers in motor vehicles; and
(2) the requirements of this section and the penalty for noncompliance.
Chapter 545. Operation and Movement of Vehicles § 545.414. Riding in Open Beds; Offense.
(a) A person commits an offense if the person operates an open-bed pickup truck or an open flatbed truck or draws an open flatbed trailer when a child younger than 18 years of age is occupying the bed of the truck or trailer.
(b) An offense under this section is a misdemeanor punishable by a fine of not less than $25 or more than $200.
(c) It is a defense to prosecution under this section that the person was:
(1) operating or towing the vehicle in a parade or in an emergency;
(2) operating the vehicle to transport farmworkers from one field to another field on a farm-to-market road, ranch-to-market road, or county road outside a municipality;
(3) operating the vehicle on a beach;
(4) operating a vehicle that is the only vehicle owned or operated by the members of a household; or
(5) operating the vehicle in a hayride permitted by the governing body of or a law enforcement agency of each county or municipality in which the hayride will occur.
(d) Compliance or noncompliance with Subsection (a) is not admissible evidence in a civil trial.
(e) In this section, “household” has the meaning assigned by Section 71.005, Family Code.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
This reprint generally retains the section numbers originally created by Congress in the Occupational Safety and Health (OSH) Act of 1970, Pub. L. 91-596, 84 Stat 1590. This document includes some editorial changes, such as changing the format to make it easier to read, correcting typographical errors, and updating some of the margin notes. Because Congress enacted amendments to the Act since 1970, this version differs from the original version of the OSH Act. It also differs slightly from the version published in the United States Code at 29 U.S.C. 661 et seq . For example, this reprint refers to the statute as the “Act” rather than the “chapter.”
This reprint reflects the provisions of the OSH Act that are in effect as of January 1, 2004. Citations to Public Laws which made important amendments to the OSH Act since 1970 are set forth in the margins and explanatory notes are included below.
NOTE: Some provisions of the OSH Act may be affected by the enactment of, or amendments to, other statutes. Section 17(h)(1), 29 U.S.C. 666, is an example. The original provision amended section 1114 of title 18 of the United States Code to include employees of “the Department of Labor assigned to perform investigative, inspection, or law enforcement functions” within the list of persons protected by the provisions to allow prosecution of persons who have killed or attempted to kill an officer or employee of the U.S. government while performing official duties. This reprint sets forth the text of section 17(h) as enacted in 1970. However, since 1970, Congress has enacted multiple amendments to 18 U.S.C. 1114. The current version does not specifically include the Department of Labor in a list; rather it states that “Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance shall be punished . . .” as provided by the statute. Readers are reminded that the official version of statutes can be found in the current volumes of the United States Code, and more extensive historical notes can be found in the current volumes of the United States Code Annotated.
Amendments
On January 2, 1974, section 2(c) of Pub. L. 93-237 replaced the phrase “7(b)(6)” in section 28(d) of the OSH Act with “7(b)(5)”. 87 Stat. 1023. Note: The text of Section 28 (Economic Assistance to Small Business) amended Sections 7(b) and Section 4(c)(1) of the Small Business Act. Because these amendments are no longer current, the text of section 28 is omitted in this reprint. For the current version, see 15 U.S.C. 636.
In 1977, the U.S. entered into the Panama Canal Treaty of 1977, Sept. 7, 1977, U.S.-Panama, T.I.A.S. 10030, 33 U.S.T. 39. In 1979, Congress enacted implementing legislation. Panama Canal Act of 1979, Pub. L. 96-70, 93 Stat. 452 (1979). Although no corresponding amendment to the OSH Act was enacted, the Canal Zone ceased to exist in 1979. The U.S. continued to manage, operate and facilitate the transit of ships through the Canal under the authority of the Panama Canal Treaty until December 31, 1999, at which time authority over the Canal was transferred to the Republic of Panama.
On March 27, 1978, Pub. L. 95-251, 92 Stat. 183, replaced the term “hearing examiner(s)” with “administrative law judge(s)” in all federal laws, including sections 12(e), 12(j), and 12(k) of the OSH Act, 29 U.S.C. 661.
On October 13, 1978, Pub. L. 95-454, 92 Stat. 1111, 1221, which redesignated section numbers concerning personnel matters and compensation, resulted in the substitution of section 5372 of Title 5 for section 5362 in section 12(e) of the OSH Act, 29 U.S.C. 661.
On October 17, 1979, Pub. L. 96-88, Title V, section 509(b), 93 Stat. 668, 695, redesignated references to the Department of Health, Education, and Welfare to the Department of Health and Human Services and redesignated references to the Secretary of Health, Education, and Welfare to the Secretary of Health and Human Services.
On September 13, 1982, Pub. L. 97-258, §4(b), 96 Stat. 877, 1067, effectively substituted “Section 3324(a) and (b) of Title 31” for “Section 3648 of the Revised Statutes, as amended (31 U.S.C. 529)” in section 22 (e)(8), 29 U.S.C. 671, relating to NIOSH procurement authority.
On December 21, 1982, Pub. L. 97-375, 96 Stat. 1819, deleted the sentence in section 19(b) of the Act, 29 U.S.C. 668, that directed the President of the United States to transmit annual reports of the activities of federal agencies to the House of Representatives and the Senate.
On October 12, 1984, Pub. L. 98-473, Chapter II, 98 Stat. 1837, 1987, (commonly referred to as the “Sentencing Reform Act of 1984”) instituted a classification system for criminal offenses punishable under the United States Code. Under this system, an offense with imprisonment terms of “six months or less but more than thirty days,” such as that found in 29 U.S.C. 666(e) for a willful violation of the OSH Act, is classified as a criminal “Class B misdemeanor.” 18 U.S.C. 3559(a)(7).
The criminal code increases the monetary penalties for criminal misdemeanors beyond what is provided for in the OSH Act: a fine for a Class B misdemeanor resulting in death, for example, is not more than $250,000 for an individual, and is not more than $500,000 for an organization. 18 U.S.C. 3571(b)(4), (c)(4). The criminal code also provides for authorized terms of probation for both individuals and organizations. 18 U.S.C. 3551, 3561. The term of imprisonment for individuals is the same as that authorized by the OSH Act. 18 U.S.C. 3581(b)(7).
On November 8, 1984, Pub. L. 98-620, 98 Stat. 3335, deleted the last sentence in section 11(a) of the Act, 29 U.S.C. 660, that required petitions filed under the subsection to be heard expeditiously.
On November 5, 1990, Pub. L. 101-508, 104 Stat. 1388, amended section 17 of the Act, 29 U.S.C. 666, by increasing the penalties in section 17(a) from $10,000 for each violation to “$70,000 for each violation, but not less than $5,000 for each willful violation,” and increased the limitation on penalties in sections (b), (c), (d), and (i) from $1,000 to $7,000.
On October 26, 1992, Pub. L. 102-522, 106 Stat. 3410, 3420, added to Title 29, section 671a “Workers’ Family Protection” to grant authority to the Director of NIOSH to evaluate, investigate and if necessary, for the Secretary of Labor to regulate employee transported releases of hazardous material that result from contamination on the employee’s clothing or person and may adversely affect the health and safety of workers and their families. Note: section 671a was enacted as section 209 of the Fire Administration Authorization Act of 1992, but it is reprinted here because it is codified within the chapter that comprises the OSH Act.
On October 28, 1992, the Housing and Community Development Act of 1992, Pub. L. 102-550, 106 Stat. 3672, 3924, amended section 22 of the Act, 29 U.S.C. 671, by adding subsection (g), which requires NIOSH to institute a training grant program for lead-based paint activities.
On July 5, 1994, section 7(b) of Pub. L. 103-272, 108 Stat. 745, repealed section 31 of the OSH Act, “Emergency Locator Beacons.” Section 1(e) of the same Public Law, however, enacted a modified version of section 31 of the OSH Act. This provision, titled “Emergency Locator Transmitters,” is codified at 49 U.S.C. 44712.
On December 21, 1995, Section 3003 of Pub. L. 104-66, 109 Stat. 707, as amended, effective May 15, 2000, terminated the provisions relating to the transmittal to Congress of reports under section 26 of the OSH Act. 29 U.S.C. 675.
On July 16, 1998, Pub. L. 105-197, 112 Stat. 638, amended section 21 of the Act, 29 U.S.C. 670, by adding subsection (d), which required the Secretary to establish a compliance assistance program by which employers can consult with state personnel regarding the application of and compliance with OSHA standards.
On July 16, 1998, Pub. L. 105-198, 112 Stat. 640, amended section 8 of the Act, 29 U.S.C. 657, by adding subsection (h), which forbids the Secretary to use the results of enforcement activities to evaluate the employees involved in such enforcement or to impose quotas or goals.
On September 29, 1998, Pub. L. 105-241, 112 Stat. 1572, amended sections 3(5) and 19(a) of the Act, 29 U.S.C. 652 and 668, to include the United States Postal Service as an “employer” subject to OSHA enforcement.
On June 12, 2002, Pub. L. 107-188, Title I, Section 153, 116 Stat. 631, Congress enacted 29 U.S.C. 669a, to expand research on the “health and safety of workers who are at risk for bioterrorist threats or attacks in the workplace.”
Jurisdictional Note
Although no corresponding amendments to the OSH Act have been made, OSHA no longer exercises jurisdiction over the entity formerly known as the Trust Territory of the Pacific Islands. The Trust Territory, which consisted of the Former
Japanese Mandated Islands, was established in 1947 by the Security Council of the United Nations, and administered by the United States. Trusteeship Agreement for the Former Japanese Mandated Islands, Apr. 2-July 18, 1947, 61 Stat. 3301, T.I.A.S. 1665, 8 U.N.T.S. 189.
From 1947 to 1994, the people of these islands exercised the right of self-determination conveyed by the Trusteeship four times, resulting in the division of the Trust Territory into four separate entities. Three entities: the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands, became “Freely Associated States,” to which U.S. Federal Law does not apply. Since the OSH Act is a generally applicable law that applies to Guam, it applies to the Commonwealth of Northern Mariana Islands, which elected to become a “Flag Territory” of the United States. See Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Article V, section 502(a) as contained in Pub. L. 94-24, 90 Stat. 263 (Mar. 24, 1976)[citations to amendments omitted]; 48 U.S.C. 1801 and note (1976); s ee also Saipan Stevedore Co., Inc. v. Director, Office of Workers’Compensation Programs, 133 F.3d 717, 722 (9th Cir. 1998)(Longshore and Harbor Workers’ Compensation Act applies to the Commonwealth of Northern Mariana Islands pursuant to section 502(a) of the Covenant because the Act has general application to the states and to Guam). For up-to-date information on the legal status of these freely associated states and territories, contact the Office of Insular Affairs of the Department of the Interior. (Web address: http://www.doi.gov/oia/)
Omitted Text. Reasons for textual deletions vary. Some deletions may result from amendments to the OSH Act; others to subsequent amendments to other statutes which the original provisions of the OSH Act may have amended in 1970. In some instances, the original provision of the OSH Act was date-limited and is no longer operative.
The text of section 12(c), 29 U.S.C. 661, is omitted. Subsection (c) amended sections 5314 and 5315 of Title 5, United States Code, to add the positions of Chairman and members of the Occupational Safety and Health Review Commission.
The text of section 27, 29 U.S.C. 676, is omitted. Section 27 listed Congressional findings on workers’ compensation and established the National Commission on State Workmen’s Compensation Laws, which ceased to exist ninety days after the submission of its final report, which was due no later than July 31, 1972.
The text of section 28 (Economic Assistance to Small Business) amended sections 7(b) and section 4(c)(1) of the Small Business Act to allow for small business loans in order to comply with applicable standards. Because these amendments are no longer current, the text is omitted here. For the current version see 15 U.S.C. 636.
The text of section 29, (Additional Assistant Secretary of Labor), created an Assistant Secretary for Occupational Safety and Health, and section 30 (Additional Positions) created additional positions within the Department of Labor and the Occupational Safety and Health Review Commission in order to carry out the provisions of the OSH Act. The text of these sections is omitted here because it no longer reflects the current statutory provisions for staffing and pay. For current
provisions, see 29 U.S.C. 553 and 5 U.S.C. 5108 (c).
Section 31 of the original OSH Act amended 49 U.S.C. 1421 by inserting a section entitled “Emergency Locator Beacons.” The text of that section is omitted in this reprint because Pub. L. 103-272, 108 Stat.745, (July 5, 1994), repealed the text of section 31 and enacted a modified version of the provision, entitled “Emergency Locator Transmitters,” which is codified at 49 U.S.C. 44712.
Notes on other legislation affecting the administration of the Occupational Safety and Health Act. Sometimes legislation does not directly amend the OSH Act, but does place requirements on the Secretary of Labor either to act or to refrain from acting under the authority of the OSH Act. Included below are some examples of such legislation. Please note that this is not intended to be a comprehensive list.
STANDARDS PROMULGATION.
For example, legislation may require the Secretary to promulgate specific standards pursuant to authority under section 6 of the OSH Act, 29 U.S.C. 655. Some examples include the following:
Hazardous Waste Operations. Pub. L. 99-499, Title I, section 126(a)-(f), 100 Stat. 1613 (1986), as amended by Pub. L. 100-202, section 101(f), Title II, section 201, 101 Stat. 1329 (1987), required the Secretary of Labor to promulgate standards concerning hazardous waste operations.
Chemical Process Safety Management. Pub. L. 101-549, Title III, section 304, 104 Stat. 2399 (1990), required the Secretary of Labor, in coordination with the Administrator of the Environmental Protection Agency, to promulgate a chemical process safety standard.
Hazardous Materials. Pub. L. 101-615, section 29, 104 Stat. 3244 (1990), required the Secretary of Labor, in consultation with the Secretaries of Transportation and Treasury, to issue specific standards concerning the handling of hazardous materials.
Bloodborne Pathogens Standard. Pub. L. 102-170, Title I, section 100, 105 Stat. 1107 (1991), required the Secretary of Labor to promulgate a final Bloodborne Pathogens standard.
Lead Standard. The Housing and Community Development Act of 1992, Pub. L. 102-550, Title X, sections 1031 and 1032, 106 Stat. 3672 (1992), required the Secretary of Labor to issue an interim final lead standard.
EXTENSION OF COVERAGE.
Sometimes a statute may make some OSH Act provisions applicable to certain entities that are not subject to those provisions by the terms of the OSH Act. For example, the Congressional Accountability Act of 1995, Pub. L. 104-1, 109 Stat. 3, (1995), extended certain OSH Act coverage, such as the duty to comply with Section 5 of the OSH Act, to the Legislative Branch. Among other provisions, this legislation authorizes the General Counsel of the Office of Compliance within the Legislative Branch to exercise the authority granted to the Secretary of Labor in the OSH Act to inspect places of employment and issue a citation or notice to correct the violation found. This statute does not make all the provisions of the OSH Act applicable to the Legislative Branch. Another example is the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Title IX, Section 947, Pub. L. 108-173, 117 Stat. 2066 (2003), which requires public hospitals not otherwise subject to the OSH Act to comply with OSHA’s Bloodborne Pathogens standard, 29 CFR 1910.1030. This statute provides for the imposition and collection of civil money penalties by the Department of Health and Human Services in the event that a hospital fails to comply with OSHA’s Bloodborne Pathogens standard.
PROGRAM CHANGES ENACTED THROUGH APPROPRIATIONS LEGISLATION.
Sometimes an appropriations statute may allow or restrict certain substantive actions by OSHA or the Secretary of Labor. For example, sometimes an appropriations statute may restrict the use of money appropriated to run the Occupational Safety and Health Administration or the Department of Labor. One example of such a restriction, that has been included in OSHA’s appropriation for many years, limits the applicability of OSHA requirements with respect to farming operations that employ ten or fewer workers and do not maintain a temporary labor camp. Another example is a restriction that limits OSHA’s authority to conduct certain enforcement activity with respect to employers of ten or fewer employees in low hazard industries. See Consolidated Appropriations Act, 2004, Pub. L. 108-199, Div. E – Labor, Health and Human Services, and Education, and Related Agencies Appropriations, 2004, Title I – Department of Labor, 118 Stat. 3 (2004). Sometimes an appropriations statute may allow OSHA to retain some money collected to use for occupational safety and health training or grants. For example, the Consolidated Appropriations Act, 2004, Div. E, Title I, cited above, allows OSHA to retain up to $750,000 of training institute course tuition fees per fiscal year for such uses. For the statutory text of currently applicable appropriations provisions, consult the OSHA appropriations statute for the fiscal year in question.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Information on NFPA Codes and Standards Development
I. Applicable Regulations. The primary rules governing the processing of NFPA documents (codes, standards, recommended practices, and guides) are the NFPA Regulations Governing Committee Projects (Regs). Other applicable rules include NFPA Bylaws, NFPA Technical Meeting Convention Rules, NFPA Guide for the Conduct of Participants in the NFPA Standards Development Process, and the NFPA Regulations Governing Petitions to the Board of Directors from Decisions of the Standards Council. Most of these rules and regulations are contained in the NFPA Directory. For copies of the Directory, contact Codes and Standards Administration at NFPA Headquarters; all these documents are also available on the NFPA website at “www.nfpa.org.” The following is general information on the NFPA process. All participants, however, should refer to the actual rules and regulations for a full understanding of this process and for the criteria that govern participation.
II. Technical Committee Report. The Technical Committee Report is defined as “the Report of the Technical Committee and Technical Correlating Committee (if any) on a document. A Technical Committee Report consists of the Report on Proposals (ROP), as modified by the Report on Comments (ROC), published by the Association.”
III. Step 1: Report on Proposals (ROP). The ROP is defined as “a report to the Association on the actions taken by Technical Committees and/or Technical Correlating Committees, accompanied by a ballot statement and one or more proposals on text for a new document or to amend an existing document.” Any objection to an action in the ROP must be raised through the filing of an appropriate Comment for consideration in the ROC or the objection will be considered resolved.
IV. Step 2: Report on Comments (ROC). The ROC is defined as “a report to the Association on the actions taken by Technical Committees and/or Technical Correlating Committees accompanied by a ballot statement and one or more comments resulting from public review of the Report on Proposals (ROP).” The ROP and the ROC together constitute the Technical Committee Report. Any outstanding objection following the ROC must be raised through an appropriate Amending Motion at the Association Technical Meeting or the objection will be considered resolved.
V. Step 3a: Action at Association Technical Meeting. Following the publication of the ROC, there is a period during which those wishing to make proper Amending Motions on the Technical Committee Reports must signal their intention by submitting a Notice of Intent to Make a Motion. Documents that receive notice of proper Amending Motions (Certified Amending Motions) will be presented for action at the annual June Association Technical Meeting. At the meeting, the NFPA membership can consider and act on these Certified Amending Motions as well as Follow-up Amending Motions, that is, motions that become necessary as a result of a previous successful Amending Motion. (See 4.6.2 through 4.6.9 of Regs for a summary of the available Amending Motions and who may make them.) Any outstanding objection following action at an Association Technical Meeting (and any further Technical Committee consideration following successful Amending Motions, see Regs at 4.7) must be raised through an appeal to the Standards Council or it will be considered to be resolved.
VI. Step 3b: Documents Forwarded Directly to the Council. Where no Notice of Intent to Make a Motion (NITMAM) is received and certified in accordance with the Technical Meeting Convention Rules, the document is forwarded directly to the Standards Council for action on issuance. Objections are deemed to be resolved for these documents.
VII. Step 4a: Council Appeals. Anyone can appeal to the Standards Council concerning procedural or substantive matters related to the development, content, or issuance of any document of the Association or on matters within the purview of the authority of the Council, as established by the Bylaws and as determined by the Board of Directors. Such appeals must be in written form and filed with the Secretary of the Standards Council (see 1.6 of Regs). Time constraints for filing an appeal must be in accordance with 1.6.2 of the Regs. Objections are deemed to be resolved if not pursued at this level.
VIII. Step 4b: Document Issuance. The Standards Council is the issuer of all documents (see Article 8 of Bylaws). The Council acts on the issuance of a document presented for action at an Association Technical Meeting within 75 days from the date of the recommendation from the Association Technical Meeting, unless this period is extended by the Council (see 4.8 of Regs). For documents forwarded directly to the Standards Council, the Council acts on the issuance of the document at its next scheduled meeting, or at such other meeting as the Council may determine (see 4.5.6 and 4.8 of Regs).
IX. Petitions to the Board of Directors. The Standards Council has been delegated the responsibility for the administration of the codes and standards development process and the issuance of documents. However, where extraordinary circumstances requiring the intervention of the Board of Directors exist, the Board of Directors may take any action necessary to fulfill its obligations to preserve the integrity of the codes and standards development process and to protect the interests of the Association. The rules for petitioning the Board of Directors can be found in the Regulations Governing Petitions to the Board of Directors from Decisions of the Standards Council and in 1.7 of the Regs. X. For More Information. The program for the Association Technical Meeting (as well as the NFPA website as information becomes available) should be consulted for the date on which each report scheduled for consideration at the meeting will be presented. For copies of the ROP and ROC as well as more information on NFPA rules and for up-to-date information on schedules and deadlines for processing NFPA documents, check the NFPA website (www.nfpa.org) or contact NFPA Codes & Standards Administration at (617) 984-7246.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Following a series of TSDF losses, starting in 2005 at Environmental Quality (EQ) in Romulus, Michigan to a more recent fatality and serious burn injury at Heritage WTI in East Liverpool, Ohio in December 2011, the CSB has recommended the NFPA “develop a fire protection standard for TSDFs addressing fire prevention, detection, control, and suppression requirements.” The applicability of NFPA codes and standards to hazardous wastes and TSDFs was not clear.In 2013, the NFPA Hazardous Chemicals Technical Committee created a task group to further investigate the TSDF fire problem in the context of the NFPA 400 Hazardous Materials Code. The task group identified the need for additional research regarding TSDF incidents in the form of a gap analysis. This code fund project, through the Fire Protection Research Foundation (FPRF), was created to gather information on TSDF losses including causes and contributing factors; to identify trends and challenges unique to TSDFs; to review the fire codes in the context of TSDFs; to identify gaps, both real and perceived, by Chemical Safety Board (CSB) and others; and propose a strategy for implementing code language with the existing MAQ per control area approach to fundamental requirements, fire prevention and fire protection for TSDFs containing a cross section of hazardous materials.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
The Biennial Report of the Texas Department of Insurance to the 83rd Legislature , released December 2012 by the Texas Department of Insurance, reports fewer Texas employers are currently opting to leave the state’s workers’ compensation system. According to the report prepared for the Texas legislature, lower workers compensation insurance premiums and an increased availability of workers compensation health care networks have led to fewer employers opting out of the system. “The percentage of Texas employers that are nonsubscribers to the workers compensation system decreased to 33 percent in 2012 — the second-lowest percentage since 1993 (an estimated 113,000 employers in 2012).” In 1993, 44 percent of Texas employers were non-subscribers. The report also noted a reversal of the trend of larger employers choosing to opt out of the Texas workers’ compensation system after 2008. The non-subscription rates among large employers fell from 26 percent in 2008 to 15 percent in 2010 and 17 percent in 2012.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
167. OFFER OF SETTLEMENT; AWARD OF LITIGATION COSTS
167.1 Generally. Certain litigation costs may be awarded against a party who rejects an offer made
substantially in accordance with this rule to settle a claim for monetary damages — including a
counterclaim, crossclaim, or third-party claim — except in:
(a) a class action;
(b) a shareholder’s derivative action;
(c) an actionby or against the State, a unit of state government, or a politicalsubdivisionof the
State;
(d) an action brought under the Family Code;
(e) an action to collect workers’ compensation benefits under title 5, subtitle A of the Labor
Code; or
(f) an action filed in a justice of the peace court or small claims court.
167.2 Settlement Offer.
(a) Defendant’s declarationa prerequisite; deadline. A settlement offer under this rule may
not be made until a defendant — a party against whom a claim for monetary damages is
made—files a declaration invoking this rule. When a defendant files such a declaration,
an offer or offers may be made under this rule to settle only those claims by and against
that defendant. The declaration must be filed no later than 45 days before the case is set
for conventional trial on the merits.
(b) Requirements of an offer. A settlement offer must:
(1) be in writing;
(2) state that it is made under Rule 167 and Chapter 42 of the Texas Civil Practice
and Remedies Code;
(3) identify the party or parties making the offer and the party or parties to whom the
offer is made;
(4) state the terms by which all monetary claims — including any attorney fees,
interest, and costs that would be recoverable up to the time of the offer —
betweenthe offeror or offerors on the one hand and the offeree or offerees on the
other may be settled;
(5) state a deadline — no sooner than 14 days after the offer is served — by which
the offer must be accepted;
(6) be served on all parties to whom the offer is made.
(c) Conditions of offer. An offer may be made subject to reasonable conditions, including
the executionof appropriate releases, indemnities, and other documents. An offeree may
object to a condition by written notice served on the offeror before the deadline stated in
the offer. A condition to which no such objection is made is presumed to have been
reasonable. Rejection of an offer made subject to a condition determined by the trial court
to have been unreasonable cannot be the basis for an award of litigation costs under this
rule.
(d) Non-monetary and excepted claims not included. An offer must not include nonmonetary
claims and other claims to which this rule does not apply.
(e) Time limitations. An offer may not be made:
(1) before a defendant’s declaration is filed;
(2) within 60 days after the appearance in the case of the offeroror offeree, whichever
is later;
(3) within 14 days before the date the case is set for a conventionaltrialon the merits,
except that an offer may be made within that period if it is in response to, and
within seven days of, a prior offer.
(f) Successive offers. A party may make an offer after having made or rejected a prior offer.
A rejection of an offer is subject to imposition of litigation costs under this rule only if the
offer is more favorable to the offeree than any prior offer.
167.3 Withdrawal, Acceptance, and Rejection of Offer.
(a) Withdrawal of offer. An offer can be withdrawn before it is accepted. Withdrawal is
effective when written notice of the withdrawal is served on the offeree. Once an
unaccepted offer has been withdrawn, it cannot be accepted or be the basis for awarding
litigation costs under this rule.
(b) Acceptance of offer. An offer that has not been withdrawn can be accepted only by
written notice served on the offeror by the deadline stated in the offer. When an offer is
accepted, the offeror or offeree mayfile the offer and acceptance and may move the court
to enforce the settlement.
(c) Rejection of offer. An offer that is not withdrawn or accepted is rejected. An offer may
also be rejected by written notice served on the offeror by the deadline stated in the offer.
(d) Objection to offer made before an offeror’s joinder or designation of responsible
third party. An offer made before an offeror joins another party or designates a
responsible third party may not be the basis for awarding litigation costs under this rule
against an offeree who files an objection to the offer within 15 days after service of the
offeror’s pleading or designation.
167.4 Awarding Litigation Costs.
(a) Generally. If a settlement offer made under this rule is rejected, and the judgment to be
awarded on the monetary claims covered by the offer is significantly less favorable to the
offeree than was the offer, the court must award the offeror litigation costs against the
offeree from the time the offer was rejected to the time of judgment.
(b) “Significantly less favorable” defined. A judgment award on monetary claims is
significantly less favorable than an offer to settle those claims if:(1) the offeree is a claimant and the judgment would be less than 80 percent of the
offer; or
(2) the offeree is a defendant and the judgment would be more than 120 percent of
the offer.
(c) Litigation costs. Litigation costs are the expenditures actually made and the obligations
actually incurred — directly in relation to the claims covered by a settlement offer under
this rule — for the following:
(1) court costs;
(2) reasonable fees for not more than two testifying expert witnesses; and
(3) reasonable attorney fees.
(d) Limits on litigation costs. The litigation costs that maybe awarded under this rule must
not exceed the following amount:
(1) the sum ofthe noneconomic damages, the exemplary or additional damages, and
one-half of the economic damages to be awarded to the claimant in the judgment;
minus
(2) the amount of any statutory or contractual liens in connectionwiththe occurrences
or incidents giving rise to the claim.
(e) No double recovery permitted. A party who is entitled to recover attorney fees and
costs under another lawmay not recover those same attorney fees and costs as litigation
costs under this rule.
(f) Limitation on attorney fees and costs recovered by a party against whom litigation
costs are awarded. A party against whom litigation costs are awarded maynot recover
attorney fees and costs under another law incurred after the date the party rejected the
settlement offer made the basis of the award.
(g) Litigation costs to be awarded to defendant as a setoff. Litigation costs awarded to
a defendant must be made a setoff to the claimant’s judgment against the defendant.
167.5 Procedures.
(a) Modification of time limits. On motion, and for good cause shown, the court may—
by written order made before commencement of trial on the merits — modify the time
limits for filing a declaration under Rule 167.2(a) or for making an offer.
(b) Discovery permitted. On motion, and for good cause shown, a party against whom
litigationcosts are to be awarded may conduct discovery to ascertain the reasonableness
of the costs requested. If the court determines the costs to be reasonable, it must order
the party requesting discovery to pay all attorney fees and expenses incurred by other
parties in responding to such discovery.
(c) Hearing required. The court must, upon request, conduct a hearing on a request for an
award of litigation costs, at which the affected parties may present evidence.
167.6 Evidence Not Admissible. Evidence relating to an offer made under this rule is not admissible
except for purposes of enforcinga settlement agreement or obtaininglitigationcosts. The provisions
of this rule may not be made known to the jury by any means.
167.7 Other Settlement Offers Not Affected. This rule does not apply to any offer made in a
mediation or arbitration proceeding. A settlement offer not made under this rule, or made in an
action to whichthis rule does not apply, cannot be the basis for awarding litigation costs under this
rule. This rule does not limit or affect a party’s right to make a settlement offer that does not
comply with this rule, or in an action to which this rule does not apply.
IN THE SUPREME COURT OF TEXAS
Misc. Docket No. 03– 9145
AMENDMENTS TO
THE TEXAS RULES OF CIVIL PROCEDURE,
THE TEXAS RULES OF APPELLATE PROCEDURE,
THE TEXAS RULES OF EVIDENCE, AND
THE TEXAS RULES OF JUDICIAL ADMINISTRATION
ORDERED that:
1. As required by the Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen.
Laws ___ (“HB 4), and in accordance with its mandatory deadlines:
a. Rule 166 of the Texas Rules of Civil Procedure is amended as follows,
effective September 1, 2003;
b. Rules 24.2(a)(1), 24.2(b), and 24.4(a) of the Texas Rules of Appellate
Procedure are amended, and Rules 24.2(c)-(d) are added, as follows, effective in all cases in
which a final judgment is signed on or after September 1, 2003 (see HB 4 §§ 7.02, 7.03,
7.04(b));
c. Rule 407(a) of the Texas Rules of Evidence is amended as follows, effective
in all cases filed on or after July 1, 2003 (see HB § 5.03, 23.02(c));
d. Rule 11.1 of the Texas Rules of Judicial Administration is amended, and Rule
11.7 is added, as follows, effective in all cases pending on August 31, 2003; and
e. Rule 13 of the Texas Rules of Judicial Administration is added as follows,
effective in all cases filed on or after September 1, 2003 (see HB 4 §§ 3.03, 23.02(a)).
Page 2
2. The Clerk is directed to:
a. file a copy of this Order with the Secretary of State;
b. cause a copy of this Order to be mailed to each registered member of the State
Bar of Texas by publication in the Texas Bar Journal;
c. send a copy of this Order to each elected member of the Legislature; and
d. submit a copy of the Order for publication in the Texas Register.
3. These amendments may be changed in response to comments received before
December 1, 2003. Any interested party may submit comments in writing as follows:
by mail addressed to Rules Attorney
The Supreme Court of Texas
P.O. Box 12248
Austin TX 7871
by fax to the attention of the Rules Attorney at 512-463-1365
by email to chris.griesel@courts.state.tx.us.
Page 3
SIGNED AND ENTERED this 29th day of August, 2003.
Thomas R. Phillips, Chief Justice
Nathan L. Hecht, Justice
Craig T. Enoch, Justice
Priscilla R. Owen, Justice
Harriet O’Neill, Justice
Wallace B. Jefferson, Justice
Michael H. Schneider, Justice
Steven Wayne Smith, Justice
J. Dale Wainwright, Justice
1. Rule 166, Texas Rules of Civil Procedure, is amended by adding the following paragraph to
the end of the rule:
Pretrial proceedings in multidistrict litigation may also be governed by Rules 11 and
13 of the Rules of Judicial Administration.
2. Rule 24.2(a)(1) of the Texas Rules of Appellate Procedure is amended as follows:
24.2. Amount of Bond, Deposit or Security
(a) Type of Judgment.
(1) For Recovery of Money. When the judgment is for money, the amount of the
bond, deposit, or security must be at least equal the amount sum of
compensatory damages awarded in the judgment, interest for the estimated
duration of the appeal, and costs awarded in the judgment. But the amount
must not exceed the lesser of:
(A) 50 percent of the judgment debtor’s current net worth; or
(B) 25 million dollars.
3. Rule 24.2(b) of the Texas Rules of Appellate Procedure is amended as follows:
24.2. Amount of Bond, Deposit or Security
* * *
(b) Lesser Amount. The trial court may order a lesser amount than must lower the
amount of security required by (a) to an amount that will not cause the judgment
debtor substantial economic harm if, after notice to all parties and a hearing, the court
finds:
(1) that posting a bond, deposit, or security in the amount required by (a) will
irreparably harm is likely to cause the judgment debtor substantial economic
harm; and
Page 5
(2) that posting a bond, deposit, or security in a lesser amount will not
substantially impair the judgment creditor’s ability to recover under the
judgment after all appellate remedies are exhausted.
4. Rules 24.2(c)-(d) of the Texas Rules of Appellate Procedure are added as follows:
24.2. Amount of Bond, Deposit or Security
* * *
(c) Determination of Net Worth.
(1) Judgment Debtor’s Affidavit Required; Contents; Prima Facie Evidence. A
judgment debtor who provides a bond, deposit, or security under (a)(2) in an
amount based on the debtor’s net worth must simultaneously file an affidavit
that states the debtor’s net worth and states complete, detailed information
concerning the debtor’s assets and liabilities from which net worth can be
ascertained. The affidavit is prima facie evidence of the debtor’s net worth.
(2) Contest; Discovery. A judgment creditor may file a contest to the debtor’s
affidavit of net worth. The contest need not be sworn. The creditor may
conduct reasonable discovery concerning the judgment debtor’s net worth.
(3) Hearing; Burden of Proof; Findings. The trial court must hear a judgment
creditor’s contest promptly after any discovery has been completed. The
judgment debtor has the burden of proving net worth. The trial court must
issue an order that states the debtor’s net worth and states with particularity
the factual basis for that determination.
(d) Injunction. The trial court may enjoin the judgment debtor from dissipating or
transferring assets to avoid satisfaction of the judgment, but the trial court may not
make any order that interferes with the judgment debtor’s use, transfer, conveyance,
or dissipation of assets in the normal course of business.
Page 6
5. Rules 24.4(a) of the Texas Rules of Appellate Procedure is amended as follows:
24.4. Appellate Review
(a) Motions; Review. On a party’s motion to the appellate court, that court may review:
(1) the sufficiency or excessiveness of the amount of security, but when the
judgment is for money, the appellate court must not modify the amount of
security to exceed the limits imposed by rule 24.2(a)(1);
(2) the sureties on any bond;
(3) the type of security;
(4) the determination whether to permit suspension of enforcement; and
(5) the trial court’s exercise of discretion under 24.3(a).
6. Rules 407(a) of the Texas Rules of Evidence is amended as follows:
RULE 407. Subsequent Remedial Measures; Notification of Defect
(a) Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an
event, measures are taken which that, if taken previously, would have made the event injury or harm
less likely to occur, evidence of the subsequent remedial measures is not admissible to prove
negligence, or culpable conduct, a defect in a product, a defect in a product’s design, or a need for
a warning or instruction in connection with the event. This rule does not require the exclusion of
evidence of subsequent remedial measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Nothing in this rule shall preclude admissibility in products liability cases based on strict liability.
7. Rule 11.1 of the Texas Rules of Judicial Administration is amended as follows:
11.1 Applicability. This rule applies to any case filed before September 1, 2003, that involves
material questions of fact and law in common with another case pending in another court in
another county on or after October 1, 1997.
Page 7
8. Rule 11.7 of the Texas Rules of Judicial Administration is added as follows:
11.7 Relationship to Rule 13.
(a) Generally. This rule is to be construed and applied so as to facilitate the
implementation of Rule 13 to the greatest extent possible.
(b) Application of Rule 13 by Agreement of the Parties. Parties may agree to the
application of Rule 13. Such an agreement must be in writing and must be joined by
all parties to the case. An agreement is effective and irrevocable when it is filed with
the trial court if:
(1) no pretrial judge has been appointed in the case, or
(2) a pretrial judge has been appointed in the case, and the parties in all related
cases to which the same pretrial judge has been assigned have likewise agreed
to the application of Rule 13.
(c) Assignments of Pretrial Judges After September 1, 2003. An assignment of a pretrial
judge to any case after September 1, 2003, must be made in consultation with the
Chair of the Multidistrict Litigation Panel.
(d) Consultation of Pretrial Judges. In conducting pretrial proceedings and deciding
pretrial matters, a pretrial judge assigned under this rule must consult with the judge
of a pretrial court to which related cases have been transferred under Rule 13.
9. Rule 13 of the Texas Rules of Judicial Administration is added as follows:
Rule 13. Multidistrict Litigation
13.1 Authority and Applicability.
(a) Authority. This rule is promulgated under sections 74.161-.164 of the Texas
Government Code.
Page 8
(b) Applicability. This rule applies to civil actions that involve one or more common
questions of fact and that were filed in a constitutional county court, county court at
law, probate court, or district court on or after September 1, 2003. Cases filed before
that date are governed by Rule 11 of these rules.
13.2 Definitions. As used in this rule:
(a) MDL Panel means the judicial panel on multidistrict litigation designated pursuant
to section 74.161 of the Texas Government Code, including any temporary members
designated by the Chief Justice of the Supreme Court of Texas in his or her discretion
when regular members are unable to sit for any reason.
(b) Chair means the chair of the MDL Panel, who is designated by the Chief Justice of
the Supreme Court of Texas.
(c) MDL Panel Clerk means the Clerk of the Supreme Court of Texas.
(d) Trial court means the court in which a case is filed.
(e) Pretrial court means the district court to which related cases are transferred for
consolidated or coordinated pretrial proceedings under this rule.
(f) Related means that cases involve one or more common questions of fact.
(g) Tag-along case means a case related to cases in an MDL transfer order but not itself
the subject of an initial MDL motion or order.
13.3 Procedure for Requesting Transfer.
(a) Motion for Transfer; Who May File; Contents. A party in a case may move for
transfer of the case and related cases to a pretrial court. The motion must be in
writing and must:
(1) state the common question or questions of fact involved in the cases;
(2) contain a clear and concise explanation of the reasons that transfer would be
for the convenience of the parties and witnesses and would promote the just
and efficient conduct of the cases;
Page 9
(3) state whether all parties in those cases for which transfer is sought agree to
the motion; and
(4) contain an appendix that lists:
(A) the cause number, style, and trial court of the related cases for which
transfer is sought; and
(B) all parties in those cases and the names, addresses, telephone
numbers, fax numbers, and email addresses of all counsel.
(b) Request for Transfer by Judges. A trial court or a presiding judge of an
administrative judicial region may request a transfer of related cases to a pretrial
court. The request must be in writing and must list the cases to be transferred.
(c) Transfer on the MDL Panel’s Own Initiative. The MDL Panel may, on its own
initiative, issue an order to show cause why related cases should not be transferred
to a pretrial court.
(d) Response; Reply; Who May File; When to File. Any party in a related case may file:
(1) a response to a motion or request for transfer within twenty days after service
of such motion or request;
(2) a response to an order to show cause issued under subparagraph (c) within the
time provided in the order; and
(3) a reply to a response within ten days after service of such response.
(e) Form of Motion, Response, Reply, and Other Documents. A motion for transfer,
response, reply, or other document addressed to the MDLPanel must conform to the
requirements of Rule 9.4 of the Texas Rules of Appellate Procedure. Without leave
of the MDLPanel, the following must not exceed 20 pages: the portions of a motion
to transfer required by subparagraphs (a)(1)-(2); a response; and a reply. The MDL
Panel may request additional briefing from any party.
(f) Filing. A motion, request, response, reply, or other document addressed to the MDL
Panel must be filed with the MDL Panel Clerk. The MDL Panel Clerk may require
Page 10
that all documents also be transmitted to the clerk electronically. In addition, a party
must send a copy of the motion, response, reply, or other document to each member
of the MDL Panel.
(g) Filing Fees. The MDL Panel Clerk may set reasonable fees approved by the
Supreme Court of Texas for filing and other services provided by the clerk.
(h) Service. A party must serve a motion, response, reply, or other document on all
parties in related cases in which transfer is sought. The MDL Panel Clerk may
designate a party or parties to serve a request for transfer on all other parties. Service
is governed by Rule 9.5 of the Texas Rules of Appellate Procedure.
(i) Notice to Trial Court. A party must file in the trial court a notice — in the form
prescribed by the MDLPanel—that a motion for transfer has been filed. The MDL
Panel Clerk must cause such notice to be filed when a request for transfer by a judge
has been filed.
(j) Evidence. The MDL Panel will accept as true facts stated in a motion, response, or
reply unless another party contradicts them. A party may file evidence with the MDL
Panel Clerk only with leave of the MDL Panel. The MDL Panel may order parties
to submit evidence by affidavit or deposition and to file documents, discovery, or
stipulations from related cases.
(k) Hearing. The MDL Panel may decide any matter on written submission or after an
oral hearing before one or more of its members at a time and place of its choosing.
Notice of the date of submission or the time and place of oral hearing must be given
to all parties in all related cases.
(l) Decision. The MDL Panel may order transfer if three members concur in a written
order finding that related cases involve one or more common questions of fact, and
that transfer to a specified district court will be for the convenience of the parties and
witnesses and will promote the just and efficient conduct of the related cases.
(m) Orders Signed by Chair or Clerk; Members Identified. Every order of the MDL
Panel must be signed by either the chair or by the MDL Panel Clerk, and must
identify the members of the MDL Panel who concurred in the ruling.
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(n) Notice of Actions by MDL Panel. The MDL Panel Clerk must give notice to all
parties in all related cases of all actions of the MDL Panel, including orders to show
cause, settings of submissions and oral arguments, and decisions. The MDL Panel
Clerk may direct a party or parties to give such notice. The clerk may determine the
manner in which notice is to be given, including that notice should be given only by
email or fax.
(o) Retransfer. On its own initiative, on a party’s motion, or at the request of the pretrial
court, the MDL Panel may order cases transferred from one pretrial court to another
pretrial court when the pretrial judge has died, resigned, been replaced at an election,
requested retransfer, recused, or been disqualified, or in other circumstances when
retransfer will promote the just and efficient conduct of the cases.
13.4 Effect on the Trial Court of the Filing of a Motion for Transfer.
(a) No Automatic Stay. The filing of a motion under this rule does not limit the
jurisdiction of the trial court or suspend proceedings or orders in that court.
(b) Stay of Proceedings. The trial court or the MDL Panel may stay all or part of any
trial court proceedings until a ruling by the MDL Panel.
13.5 Transfer to a Pretrial Court.
(a) Transfer Effective upon Notice. A case is deemed transferred from the trial court to
the pretrial court when a notice of transfer is filed with the trial court and the pretrial
court. The notice must:
(1) list all parties who have appeared and remain in the case, and the names,
addresses, phone numbers, and bar numbers of their attorneys or, if a party
is pro se, the party’s name, address, and phone number;
(2) list those parties who have not yet appeared in the case; and
(3) attach a copy of the MDL transfer order.
(b) No Further Action in Trial Court. After notice of transfer is filed in the trial court,
the trial court must take no further action in the case except for good cause stated in
the order in which such action is taken and after conferring with the pretrial court.
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But service of any process already issued by the trial court may be completed and the
return filed in the pretrial court.
(c) Transfer of Files; Master File and New Files in the Pretrial Court. If the trial court
and pretrial court are in the same county, the trial court must transfer the case file to
the pretrial court in accordance with local rules governing the courts of that county.
If the trial court and pretrial court are not in the same county, the trial court clerk
must transmit the case file to the pretrial court clerk. The pretrial court clerk, after
consultation with the judge of the pretrial court, must establish a master file and open
new files for each case transferred using the information provided in the notice of
transfer. The pretrial court may direct the manner in which pretrial documents are
filed, including electronic filing.
(d) Filing Fees and Costs. Unless the MDL Panel assesses costs otherwise, the party
moving for transfer must pay the cost of refiling the transferred cases in the pretrial
court, including filing fees and other reasonable costs.
(e) Transfer of Tag-along Cases. A tag-along case is deemed transferred to the pretrial
court when a notice of transfer—in the form described in Rule 13.5(a)—is filed in
both the trial court and the pretrial court. Within 30 days after service of the notice,
a party to the case or to any of the related cases already transferred to the pretrial
court may move the pretrial court to remand the case to the trial court on the ground
that it is not a tag-along case. If the motion to remand is granted, the case must be
returned to the trial court, and costs including attorney fees may be assessed by the
pretrial court in its remand order. The order of the pretrial court may be appealed to
the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk.
13.6 Proceedings in Pretrial Court.
(a) Judges Who May Preside. The MDL Panel may assign as judge of the pretrial court
any active district judge, or any former or retired district or appellate judge who is
approved by the Chief Justice of the Supreme Court of Texas. An assignment under
this rule is not subject to objection under chapter 74 of the Government Code. The
judge assigned as judge of the pretrial court has exclusive jurisdiction over each
related case transferred pursuant to this rule unless a case is retransferred by theMDL
Panel or is finally resolved or remanded to the trial court for trial.
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(b) Authority of Pretrial Court. The pretrial court has the authority to decide, in place
of the trial court, all pretrial matters in all related cases transferred to the court.
Those matters include, for example, jurisdiction, joinder, venue, discovery, trial
preparation (such as motions to strike expert witnesses, preadmission of exhibits, and
motions in limine), mediation, and disposition by means other than conventional trial
on the merits (such as default judgment, summary judgment, and settlement). The
pretrial court may set aside or modify any pretrial ruling made by the trial court
before transfer over which the trial court’s plenary power would not have expired had
the case not been transferred.
(c) Case Management. The pretrial court should apply sound judicial management
methods early, continuously, and actively, based on its knowledge of each individual
case and the entire litigation, in order to set fair and firm time limits tailored to
ensure the expeditious resolution of each case and the just and efficient conduct of
the litigation as a whole. After a case is transferred, the pretrial court should, at the
earliest practical date, conduct a hearing and enter a case management order. The
pretrial court should consider at the hearing, and its order should address, all matters
pertinent to the conduct of the litigation, including:
(1) settling the pleadings;
(2) determining whether severance, consolidation, or coordination with other
actions is desirable and whether identification of separable triable portions of
the case is desirable;
(3) scheduling preliminary motions;
(4) scheduling discovery proceedings and setting appropriate limitations on
discovery, including the establishment and timing of discovery procedures;
(5) issuing protective orders;
(6) scheduling alternative dispute resolution conferences;
(7) appointing organizing or liaison counsel;
(8) scheduling dispositive motions;
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(9) providing for an exchange of documents, including adopting a uniform
numbering system for documents, establishing a document depository, and
determining whether electronic service of discovery materials and pleadings
is warranted;
(10) determining if the use of technology, videoconferencing, or teleconferencing
is appropriate;
(11) considering such other matters the court or the parties deem appropriate for
the just and efficient resolution of the cases; and
(12) scheduling further conferences as necessary.
(d) Trial Settings. The pretrial court, in conjunction with the trial court, may set a
transferred case for trial at such a time and on such a date as will promote the
convenience of the parties and witnesses and the just and efficient disposition of all
related proceedings. The pretrial court must confer, or order the parties to confer,
with the trial court regarding potential trial settings or other matters regarding
remand. The trial court must cooperate reasonably with the pretrial court, and the
pretrial court must defer appropriately to the trial court’s docket. The trial court must
not continue or postpone a trial setting without the concurrence of the pretrial court.
13.7 Remand to Trial Court.
(a) No Remand If Final Disposition by Pretrial Court. A case in which the pretrial court
has rendered a final and appealable judgment will not be remanded to the trial court.
(b) Remand. The pretrial court may order remand of one or more cases, or separable
triable portions of cases, when pretrial proceedings have been completed to such a
degree that the purposes of the transfer have been fulfilled or no longer apply.
(c) Transfer of Files. When a case is remanded to the trial court, the clerk of the pretrial
court will send the case file to the trial court without retaining a copy unless
otherwise ordered. The parties may file in the remanded case copies of any pleadings
or orders from the pretrial court’s master file. The clerk of the trial court will reopen
the trial court file under the cause number of the trial court, without a new filing fee.
13.8 Pretrial court orders binding in the trial court after remand.
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(a) Generally. The trial court should recognize that to alter a pretrial court order without
a compelling justification would frustrate the purpose of consolidated and
coordinated pretrial proceedings. The pretrial court should recognize that its rulings
should not unwisely restrict a trial court from responding to circumstances that arise
following remand.
(b) Concurrence of the Pretrial Court Required to Change Its Orders. Without the
written concurrence of the pretrial court, the trial court cannot, over objection, vacate,
set aside, or modify pretrial court orders, including orders related to summary
judgment, jurisdiction, venue, joinder, special exceptions, discovery, sanctions
related to pretrial proceedings, privileges, the admissibility of expert testimony, and
scheduling.
(c) Exceptions. The trial court need not obtain the written concurrence of the pretrial
court to vacate, set aside, or modify pretrial court orders regarding the admissibility
of evidence at trial (other than expert evidence) when necessary because of changed
circumstances, to correct an error of law, or to prevent manifest injustice. But the
trial court must support its action with specific findings and conclusions in a written
order or stated on the record.
(d) Unavailability of Pretrial Court. If the pretrial court is unavailable to rule, for
whatever reason, the concurrence of the MDL Panel Chair must be obtained.
13.9 Review.
(a) MDLPanel Decision. Orders of the MDL Panel, including those granting or denying
motions for transfer, may be reviewed only by the Supreme Court in original
proceedings.
(b) Orders by the Trial Court and Pretrial Court. Orders and judgments of the trial
court and pretrial court maybe reviewed by the appellate court that regularly reviews
orders of the court in which the case is pending at the time review is sought,
irrespective of whether that court issued the order or judgment to be reviewed.
13.10 MDL Panel Rules. The MDL Panel will operate at the direction of its Chair in accordance
with rules prescribed by the panel and approved by the Supreme Court of Texas.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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