By Harris S.B. No. 898
75R4129 RJA-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to nonsubstantive additions to and corrections in enacted
1-3 codes, including the nonsubstantive codification of various laws
1-4 omitted from enacted codes, and to conforming codifications enacted
1-5 by the 74th Legislature to other Acts of that legislature.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 ARTICLE 1. GENERAL PROVISIONS
1-8 SECTION 1.01. This Act is enacted as part of the state's
1-9 continuing statutory revision program under Chapter 323, Government
1-10 Code. This Act is a revision for purposes of Section 43, Article
1-11 III, Texas Constitution, and has the purposes of:
1-12 (1) codifying without substantive change various
1-13 statutes that were omitted from enacted codes;
1-14 (2) conforming codifications enacted by the 74th
1-15 Legislature to other Acts of that legislature that amended the laws
1-16 codified or added new law to subject matter codified;
1-17 (3) making necessary corrections to enacted
1-18 codifications; and
1-19 (4) renumbering titles, chapters, and sections of
1-20 codes that duplicate title, chapter, or section numbers.
1-21 SECTION 1.02. (a) The repeal of a statute by this Act does
1-22 not affect an amendment, revision, or reenactment of the statute by
1-23 the 75th Legislature, Regular Session, 1997. The amendment,
1-24 revision, or reenactment is preserved and given effect as part of
2-1 the code provision that revised the statute so amended, revised, or
2-2 reenacted.
2-3 (b) If any provision of this Act conflicts with a statute
2-4 enacted by the 75th Legislature, Regular Session, 1997, the statute
2-5 controls.
2-6 SECTION 1.03. (a) A transition or saving provision of a law
2-7 codified by this Act applies to the codified law to the same extent
2-8 as it applied to the original law.
2-9 (b) The repeal of a transition or saving provision by this
2-10 Act does not affect the application of the provision to the
2-11 codified law.
2-12 (c) In this section, "transition provision" includes any
2-13 temporary provision providing for a special situation in the
2-14 transition period between the existing law and the establishment or
2-15 implementation of the new law.
2-16 ARTICLE 2. CHANGES RELATING TO AGRICULTURE CODE
2-17 SECTION 2.01. Chapter 19, Agriculture Code, as added by
2-18 Section 2.01, Chapter 76, Acts of the 74th Legislature, Regular
2-19 Session, 1995, is repealed because of the repeal of the source law
2-20 from which it was derived by Section 10.09(19), Chapter 419, Acts
2-21 of the 74th Legislature, Regular Session, 1995.
2-22 ARTICLE 3. CHANGES RELATING TO BUSINESS & COMMERCE CODE
2-23 SECTION 3.01. Section 21(b), Chapter 962, Acts of the 74th
2-24 Legislature, Regular Session, 1995, is amended to read as follows:
2-25 (b) If a security interest in a security is perfected under
2-26 Chapter 8, Business & Commerce Code, on the date this Act takes
2-27 effect, and the action by which the security interest was perfected
3-1 would suffice to perfect a security interest under ^uChapter 9,^w
3-2 ^uBusiness & Commerce Code, as amended^w [^sChapter 8, Business &^t
3-3 ^sCommerce Code, as revised^t] by this Act, no further action is
3-4 required to continue perfection. If a security interest in a
3-5 security is perfected under Chapter 8, Business & Commerce Code, on
3-6 the date this Act takes effect but the action by which the security
3-7 interest was perfected would not suffice to perfect a security
3-8 interest under ^uChapter 9, Business & Commerce Code, as amended^w
3-9 [^sChapter 8, Business & Commerce Code, as revised^t] by this Act, the
3-10 security interest remains perfected until January 1, 1996, and
3-11 continues perfected on and after that date if appropriate action to
3-12 perfect under ^uChapter 9, Business & Commerce Code, as amended^w
3-13 [^sChapter 8, Business & Commerce Code, as revised^t] by this Act is
3-14 taken before January 1, 1996. If a security interest is perfected
3-15 under Chapter 8, Business & Commerce Code, on the date this Act
3-16 takes effect and the security interest can be perfected by filing
3-17 under ^uChapter 9, Business & Commerce Code, as amended^w [^sChapter 8,^t
3-18 ^sBusiness & Commerce Code, as revised^t] by this Act, a financing
3-19 statement signed by the secured party instead of the debtor may be
3-20 filed before January 1, 1996, to continue perfection or filed on or
3-21 after that date to perfect.
3-22 ARTICLE 4. CHANGES RELATING TO CIVIL PRACTICE
3-23 AND REMEDIES CODE
3-24 SECTION 4.01. Section 41.002(b), Civil Practice and Remedies
3-25 Code, is revised and amended to reflect amendment by Chapter 19,
3-26 Acts of the 74th Legislature, Regular Session, 1995, and amendment
3-27 to conform citations to certain codes by Chapter 260, Acts of the
4-1 74th Legislature, Regular Session, 1995, to read as follows:
4-2 (b) This chapter establishes the maximum exemplary damages
4-3 that may be awarded in an action subject to this chapter, including
4-4 an action for which exemplary damages are awarded under another law
4-5 of this state. This chapter does not apply to the extent another
4-6 law establishes a lower maximum amount of exemplary damages for a
4-7 particular claim. [^sThis chapter does not apply to:^t]
4-8 [^s(1) an action brought under the Deceptive Trade^t
4-9 ^sPractices-Consumer Protection Act (Subchapter E, Chapter 17,^t
4-10 ^sBusiness & Commerce Code) except as specifically provided in^t
4-11 ^sSection 17.50 of that Act;^t]
4-12 [^s(2) an action brought under Chapter 21, Insurance^t
4-13 ^sCode;^t]
4-14 [^s(3) an action brought under the workers' compensation^t
4-15 ^slaws of this state (Title 5, Labor Code);^t]
4-16 [^s(4) an action to recover exemplary damages against an^t
4-17 ^semployer by the employee's beneficiaries in a death action arising^t
4-18 ^sout of the course and scope of employment where the employer is a^t
4-19 ^ssubscriber under the workers' compensation laws of this state^t
4-20 ^s(Title 5, Labor Code);^t]
4-21 [^s(5) an action brought under Chapter 246, Acts of the^t
4-22 ^s63rd Legislature, Regular Session, 1973, Home Solicitation^t
4-23 ^sTransactions (Article 5069-13.01 et seq., Vernon's Texas Civil^t
4-24 ^sStatutes);^t]
4-25 [^s(6) an action brought under Chapter 547, Acts of the^t
4-26 ^s63rd Legislature, Regular Session, 1973, Debt Collection Practices^t
4-27 ^s(Article 5069-11.01 et seq., Vernon's Texas Civil Statutes);^t]
5-1 [^s(7) an action brought under Chapter 54, 91, or 92,^t
5-2 ^sProperty Code;^t]
5-3 [^s(8) an action brought under the Texas Manufactured^t
5-4 ^sHousing Standards Act (Article 5221f, Vernon's Texas Civil^t
5-5 ^sStatutes);^t]
5-6 [^s(9) an action brought under the Texas Motor Vehicle^t
5-7 ^sCommission Code (Article 4413(36), Vernon's Texas Civil Statutes);^t]
5-8 [^s(10) an action brought under Chapter 132, Education^t
5-9 ^sCode;^t]
5-10 [^s(11) an action brought under Section 9.507 or Section^t
5-11 ^s27.01, Business & Commerce Code;^t]
5-12 [^s(12) an action brought under Chapter 36, Family Code;^t]
5-13 [^s(13) an action brought under the Health Spa Act^t
5-14 ^s(Article 5221l, Vernon's Texas Civil Statutes);^t]
5-15 [^s(14) an action brought under the Business Opportunity^t
5-16 ^sAct (Article 5069-16.01 et seq., Vernon's Texas Civil Statutes); or^t]
5-17 [^s(15) an action brought under Chapter 221, Property^t
5-18 ^sCode.^t]
5-19 ARTICLE 5. GENERAL ARBITRATION
5-20 SECTION 5.01. Chapter 171, Civil Practice and Remedies Code,
5-21 is revised to read as follows:
5-22 CHAPTER 171. GENERAL ARBITRATION
5-23 SUBCHAPTER A. GENERAL PROVISIONS
5-24 Sec. 171.001. ARBITRATION AGREEMENTS VALID. (a) A written
6-1 agreement to arbitrate is valid and enforceable if the agreement is
6-2 to arbitrate a controversy that:
6-3 (1) exists at the time of the agreement; or
6-4 (2) arises between the parties after the date of the
6-5 agreement.
6-6 (b) A party may revoke the agreement only on a ground that
6-7 exists at law or in equity for the revocation of a contract.
6-8 Sec. 171.002. SCOPE OF CHAPTER. (a) This chapter does not
6-9 apply to:
6-10 (1) a collective bargaining agreement between an
6-11 employer and a labor union;
6-12 (2) an agreement for the acquisition by one or more
6-13 individuals of property, services, money, or credit in which the
6-14 total consideration to be furnished by the individual is not more
6-15 than $50,000, except as provided by Subsection (b);
6-16 (3) a claim for personal injury, except as provided by
6-17 Subsection (c);
6-18 (4) a claim for workers' compensation benefits; or
6-19 (5) an agreement made before January 1, 1966.
6-20 (b) An agreement described by Subsection (a)(2) is subject
6-21 to this chapter if:
6-22 (1) the parties to the agreement agree in writing to
6-23 arbitrate; and
6-24 (2) the agreement is signed by each party and each
7-1 party's attorney.
7-2 (c) A claim described by Subsection (a)(3) is subject to
7-3 this chapter if:
7-4 (1) each party to the claim, on the advice of counsel,
7-5 agrees in writing to arbitrate; and
7-6 (2) the agreement is signed by each party and each
7-7 party's attorney.
7-8 Sec. 171.003. UNIFORM INTERPRETATION. This chapter shall be
7-9 construed to effect its purpose and make uniform the construction
7-10 of other states' law applicable to an arbitration.
7-11 (Sections 171.004-171.020 reserved for expansion)
7-12 SUBCHAPTER B. PROCEEDINGS TO COMPEL OR STAY ARBITRATIONS
7-13 Sec. 171.021. PROCEEDING TO COMPEL ARBITRATION. (a) A
7-14 court shall order the parties to arbitrate on application of a
7-15 party showing:
7-16 (1) an agreement to arbitrate; and
7-17 (2) the opposing party's refusal to arbitrate.
7-18 (b) If a party opposing an application made under Subsection
7-19 (a) denies the existence of the agreement, the court shall
7-20 summarily determine that issue. The court shall order the
7-21 arbitration if it finds for the party that made the application. If
7-22 the court does not find for that party, the court shall deny the
7-23 application.
7-24 (c) An order compelling arbitration must include a stay of
8-1 any proceeding subject to Section 171.025.
8-2 Sec. 171.022. UNCONSCIONABLE AGREEMENTS UNENFORCEABLE. A
8-3 court may not enforce an agreement to arbitrate if the court finds
8-4 the agreement was unconscionable at the time the agreement was
8-5 made.
8-6 Sec. 171.023. PROCEEDING TO STAY ARBITRATION. (a) A court
8-7 may stay an arbitration commenced or threatened on application and
8-8 a showing that there is not an agreement to arbitrate.
8-9 (b) If there is a substantial bona fide dispute as to
8-10 whether an agreement to arbitrate exists, the court shall try the
8-11 issue promptly and summarily.
8-12 (c) The court shall stay the arbitration if the court finds
8-13 for the party moving for the stay. If the court finds for the
8-14 party opposing the stay, the court shall order the parties to
8-15 arbitrate.
8-16 Sec. 171.024. PLACE FOR MAKING APPLICATION. (a) If there
8-17 is a proceeding pending in a court involving an issue referable to
8-18 arbitration under an alleged agreement to arbitrate, a party may
8-19 make an application under this subchapter only in that court.
8-20 (b) If Subsection (a) does not apply, a party may make an
8-21 application in any court, subject to Section 171.096.
8-22 Sec. 171.025. STAY OF RELATED PROCEEDING. (a) The court
8-23 shall stay a proceeding that involves an issue subject to
8-24 arbitration if an order for arbitration or an application for that
9-1 order is made under this subchapter.
9-2 (b) The stay applies only to the issue subject to
9-3 arbitration if that issue is severable from the remainder of the
9-4 proceeding.
9-5 Sec. 171.026. VALIDITY OF UNDERLYING CLAIM. A court may not
9-6 refuse to order arbitration because:
9-7 (1) the claim lacks merit or bona fides; or
9-8 (2) the fault or ground for the claim is not shown.
9-9 (Sections 171.027-171.040 reserved for expansion)
9-10 SUBCHAPTER C. ARBITRATION
9-11 Sec. 171.041. APPOINTMENT OF ARBITRATORS. (a) The method
9-12 of appointment of arbitrators is as specified in the agreement to
9-13 arbitrate.
9-14 (b) The court, on application of a party stating the nature
9-15 of the issues to be arbitrated and the qualifications of the
9-16 proposed arbitrators, shall appoint one or more qualified
9-17 arbitrators if:
9-18 (1) the agreement to arbitrate does not specify a
9-19 method of appointment;
9-20 (2) the agreed method fails or cannot be followed; or
9-21 (3) an appointed arbitrator fails or is unable to act
9-22 and a successor has not been appointed.
9-23 (c) An arbitrator appointed under Subsection (b) has the
9-24 powers of an arbitrator named in the agreement to arbitrate.
10-1 Sec. 171.042. MAJORITY ACTION BY ARBITRATORS. The powers of
10-2 the arbitrators are exercised by a majority unless otherwise
10-3 provided by the agreement to arbitrate or this chapter.
10-4 Sec. 171.043. HEARING CONDUCTED BY ARBITRATORS. (a) Unless
10-5 otherwise provided by the agreement to arbitrate, all the
10-6 arbitrators shall conduct the hearing. A majority of the
10-7 arbitrators may determine a question and render a final award.
10-8 (b) If, during the course of the hearing, an arbitrator
10-9 ceases to act, one or more remaining arbitrators appointed to act
10-10 as neutral arbitrators may hear and determine the controversy.
10-11 Sec. 171.044. TIME AND PLACE OF HEARING; NOTICE. (a)
10-12 Unless otherwise provided by the agreement to arbitrate, the
10-13 arbitrators shall set a time and place for the hearing and notify
10-14 each party.
10-15 (b) The notice must be served not later than the fifth day
10-16 before the hearing either personally or by registered or certified
10-17 mail with return receipt requested. Appearance at the hearing
10-18 waives the notice.
10-19 (c) The court on application may direct the arbitrators to
10-20 proceed promptly with the hearing and determination of the
10-21 controversy.
10-22 Sec. 171.045. ADJOURNMENT OR POSTPONEMENT. Unless otherwise
10-23 provided by the agreement to arbitrate, the arbitrators may:
10-24 (1) adjourn the hearing as necessary; and
11-1 (2) on request of a party and for good cause, or on
11-2 their own motion, postpone the hearing to a time not later than:
11-3 (A) the date set by the agreement for making the
11-4 award; or
11-5 (B) a later date agreed to by the parties.
11-6 Sec. 171.046. FAILURE OF PARTY TO APPEAR. Unless otherwise
11-7 provided by the agreement to arbitrate, the arbitrators may hear
11-8 and determine the controversy on the evidence produced without
11-9 regard to whether a party who has been notified as provided by
11-10 Section 171.044 fails to appear.
11-11 Sec. 171.047. RIGHTS OF PARTY AT HEARING. Unless otherwise
11-12 provided by the agreement to arbitrate, a party at the hearing is
11-13 entitled to:
11-14 (1) be heard;
11-15 (2) present evidence material to the controversy; and
11-16 (3) cross-examine any witness.
11-17 Sec. 171.048. REPRESENTATION BY ATTORNEY; FEES. (a) A
11-18 party is entitled to representation by an attorney at a proceeding
11-19 under this chapter.
11-20 (b) A waiver of the right described by Subsection (a) before
11-21 the proceeding is ineffective.
11-22 (c) The arbitrators shall award attorney's fees as
11-23 additional sums required to be paid under the award only if the
11-24 fees are provided for:
12-1 (1) in the agreement to arbitrate; or
12-2 (2) by law for a recovery in a civil action in the
12-3 district court on a cause of action on which any part of the award
12-4 is based.
12-5 Sec. 171.049. OATH. The arbitrators, or an arbitrator at
12-6 the direction of the arbitrators, may administer to each witness
12-7 testifying before them the oath required of a witness in a civil
12-8 action pending in a district court.
12-9 Sec. 171.050. DEPOSITIONS. (a) The arbitrators may
12-10 authorize a deposition:
12-11 (1) for use as evidence to be taken of a witness who
12-12 cannot be required by subpoena to appear before the arbitrators or
12-13 who is unable to attend the hearing; or
12-14 (2) for discovery or evidentiary purposes to be taken
12-15 of an adverse witness.
12-16 (b) A deposition under this section shall be taken in the
12-17 manner provided by law for a deposition in a civil action pending
12-18 in a district court.
12-19 Sec. 171.051. SUBPOENAS. (a) The arbitrators, or an
12-20 arbitrator at the direction of the arbitrators, may issue a
12-21 subpoena for:
12-22 (1) attendance of a witness; or
12-23 (2) production of books, records, documents, or other
12-24 evidence.
13-1 (b) A witness required to appear by subpoena under this
13-2 section may appear at the hearing before the arbitrators or at a
13-3 deposition.
13-4 (c) A subpoena issued under this section shall be served in
13-5 the manner provided by law for the service of a subpoena issued in
13-6 a civil action pending in a district court.
13-7 (d) Each provision of law requiring a witness to appear,
13-8 produce evidence, and testify under a subpoena issued in a civil
13-9 action pending in a district court applies to a subpoena issued
13-10 under this section.
13-11 Sec. 171.052. WITNESS FEE. The fee for a witness attending
13-12 a hearing or a deposition under this subchapter is the same as the
13-13 fee for a witness in a civil action in a district court.
13-14 Sec. 171.053. ARBITRATORS' AWARD. (a) The arbitrators'
13-15 award must be in writing and signed by each arbitrator joining in
13-16 the award.
13-17 (b) The arbitrators shall deliver a copy of the award to
13-18 each party personally, by registered or certified mail, or as
13-19 provided in the agreement.
13-20 (c) The arbitrators shall make the award:
13-21 (1) within the time established by the agreement to
13-22 arbitrate; or
13-23 (2) if a time is not established by the agreement,
13-24 within the time ordered by the court on application of a party.
14-1 (d) The parties may extend the time for making the award
14-2 either before or after the time expires. The extension must be in
14-3 writing.
14-4 (e) A party waives the objection that an award was not made
14-5 within the time required unless the party notifies the arbitrators
14-6 of the objection before the delivery of the award to that party.
14-7 Sec. 171.054. MODIFICATION OR CORRECTION TO AWARD. (a) The
14-8 arbitrators may modify or correct an award:
14-9 (1) on the grounds stated in Section 171.091; or
14-10 (2) to clarify the award.
14-11 (b) A modification or correction under Subsection (a) may be
14-12 made only:
14-13 (1) on application of a party; or
14-14 (2) on submission to the arbitrators by a court, if an
14-15 application to the court is pending under Sections 171.087,
14-16 171.088, 171.089, and 171.091, subject to any condition ordered by
14-17 the court.
14-18 (c) A party may make an application under this section not
14-19 later than the 20th day after the date the award is delivered to
14-20 the applicant.
14-21 (d) An applicant shall give written notice of the
14-22 application promptly to the opposing party. The notice must state
14-23 that the opposing party must serve any objection to the application
14-24 not later than the 10th day after the date of notice.
15-1 (e) An award modified or corrected under this section is
15-2 subject to Sections 171.087, 171.088, 171.089, 171.090, and
15-3 171.091.
15-4 Sec. 171.055. ARBITRATOR'S FEES AND EXPENSES. Unless
15-5 otherwise provided in the agreement to arbitrate, the arbitrators'
15-6 expenses and fees, with other expenses incurred in conducting the
15-7 arbitration, shall be paid as provided in the award.
15-8 (Sections 171.056-171.080 reserved for expansion)
15-9 SUBCHAPTER D. COURT PROCEEDINGS
15-10 Sec. 171.081. JURISDICTION. The making of an agreement
15-11 described by Section 171.001 that provides for or authorizes an
15-12 arbitration in this state and to which that section applies confers
15-13 jurisdiction on the court to enforce the agreement and to render
15-14 judgment on an award under this chapter.
15-15 Sec. 171.082. APPLICATION TO COURT; FEES. (a) The filing
15-16 with the clerk of the court of an application for an order under
15-17 this chapter, including a judgment or decree, invokes the
15-18 jurisdiction of the court.
15-19 (b) On the filing of the initial application and the payment
15-20 to the clerk of the fees of court required to be paid on the filing
15-21 of a civil action in the court, the clerk shall docket the
15-22 proceeding as a civil action pending in that court.
15-23 Sec. 171.083. TIME FOR FILING. An applicant for a court
15-24 order under this chapter may file the application:
16-1 (1) before arbitration proceedings begin in support of
16-2 those proceedings;
16-3 (2) during the period the arbitration is pending
16-4 before the arbitrators; or
16-5 (3) subject to this chapter, at or after the
16-6 conclusion of the arbitration.
16-7 Sec. 171.084. STAY OF CERTAIN PROCEEDINGS. (a) After an
16-8 initial application is filed, the court may stay:
16-9 (1) a proceeding under a later filed application in
16-10 another court to:
16-11 (A) invoke the jurisdiction of that court; or
16-12 (B) obtain an order under this chapter; or
16-13 (2) a proceeding instituted after the initial
16-14 application has been filed.
16-15 (b) A stay under this section affects only an issue subject
16-16 to arbitration under an agreement in accordance with the terms of
16-17 the initial application.
16-18 Sec. 171.085. CONTENTS OF APPLICATION. (a) A court may
16-19 require that an application filed under this chapter:
16-20 (1) show the jurisdiction of the court;
16-21 (2) have attached a copy of the agreement to
16-22 arbitrate;
16-23 (3) define the issue subject to arbitration between
16-24 the parties under the agreement;
17-1 (4) specify the status of the arbitration before the
17-2 arbitrators; and
17-3 (5) show the need for the court order sought by the
17-4 applicant.
17-5 (b) A court may not find an application inadequate because