HBA-TYH H.B. 604 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 604
By: Craddick
State Affairs
2/9/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, state and local governmental entities are not prohibited from
entering into contingent fee contracts for legal services.  H.B.  604
establishes a formal approval process for approval of such contingent fee
contracts contemplated by state and local governments.  This bill states
when, how, and on what terms governmental entities may enter into such a
contract, ensures reasonable fees, and provides that all funds recovered by
a state or local governmental entity shall be first distributed to the
state or local governmental entity, which will then disburse the
appropriate share to the legal service provider upon determining that all
fees and expenses are reasonable. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1. Provides legislative findings and policy.

SECTION 2.  Amends Chapter 140, Local Government Code, by adding Section
140.008, as follows: 

Sec. 140.008.  DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR SETTLEMENT.
Provides that "contingent fee contract" and "local governmental entity"
have the meanings assigned by Section 2254.101, Government Code
(Definitions). Provides that all funds recovered by or for a local
governmental entity in litigation or in a settlement are public funds of
the local governmental entity. Requires that the funds be deposited in a
depository of the local governmental entity.  Authorizes legal fees and
expenses to be paid from the recovered funds under a contingent fee
contract for legal services (contingent fee contract) only after the funds
are deposited in accordance with this section and Subchapter C, Chapter
2254, Government Code (Contingent Fee Contract for Legal Services). 

SECTION 3.  Amends Subchapter F, Chapter 404, Government Code, by adding
Section 404.097, as follows: 

Sec. 404.097.  DEPOSIT OF FUNDS RECOVERED BY LITIGATION OR SETTLEMENT.
Provides that notwithstanding Section 404.093 (Applicability of Subchapter;
Exemptions), this section applies by its terms to each state governmental
entity.  Provides that "contingent fee contract" and "state governmental
entity" have the meanings assigned by Section 2254.101,  Government Code
(Definitions).  Provides that all funds recovered by or for a state
governmental entity in litigation or in a settlement are public funds of
the state or the state governmental entity. Requires that the funds be
deposited in the state treasury to the credit of the appropriate fund or
account.  Authorizes legal fees and expenses to be paid from the recovered
funds under a contingent fee contract only after the funds are deposited in
accordance with this section and Subchapter C, Chapter 2254, Government
Code (Contingent Fee Contract for Legal Services). 

SECTION 4.  Amends Chapter 2254, Government Code, by adding Subchapter C,
as follows: 
 
SUBCHAPTER C.  CONTINGENT FEE CONTRACT FOR LEGAL SERVICES

Sec. 2254.101.  DEFINITIONS.  Defines "contingent fee," "contingent fee
contract," "local governmental entity," and "state governmental entity." 

Sec. 2254.102.  APPLICABILITY.  Provides that this subchapter applies only
to a contingent fee contract entered into by a state or local governmental
entity.  Provides that the legislature by this subchapter is providing, in
accordance with Section 44, Article III, Texas Constitution (Compensation
of Public Officers, Servants, Agents, And Contractors; Extra Compensation;
Unauthorized Claims; Unauthorized Employment), for the manner in which and
the situations under which a state or local governmental entity may
compensate a public contractor under a contingency fee contract. 

Sec. 2254.103.  CONTRACT APPROVAL; SIGNATURE.  (a)  Authorizes a local
governmental entity that has authority to enter into a contingent fee
contract only if the governing body of the local governmental entity
approves the contract and the presiding officer of the governing body signs
the contract. 

(b) Authorizes a state governmental entity that has authority to enter into
a contingent fee contract only if either the governing body of the state
governmental entity approves the contract and the presiding officer of the
governing body signs the contract or, for an entity not governed by a multi
member governing body, the officer who governs the entity approves and
signs the contract. 

(c)  Authorizes the attorney general to enter into a contingent fee
contract in the name of the state in matters that have been referred to the
attorney general under law by another state governmental entity only if the
other state governmental entity approves and signs the contract in
accordance with Subsection (b). 

(d)  Authorizes a state governmental entity, including the state, to enter
into a contingent fee contract not described in Subsection (b) or (c) only
if the governor approves and signs the contract. 

(e)  Provides that before approving the contract, the governing body,
elected or appointed officer, or governor, as appropriate, must find that
there is a substantial need for the legal services, that the legal services
cannot be adequately performed by the attorneys and supporting personnel of
another governmental entity, and that the legal services cannot be
reasonably obtained from attorneys in private practice under a contract
providing only for the hourly fees because of specified reasons, without
regard to the outcome of the matter. 

(f)  Provides that before entering into a contingent fee contract in which
the estimated amount that may be recovered exceeds $100,000, a state
governmental entity that proposes to enter into the contract must also
notify the governor, lieutenant governor, and Legislative Budget Board
about the proposal to enter into the contract, send them copies of the
proposed contract, and send them information demonstrating the existence of
conditions listed in Subsection (e).  Prohibits the state governmental
entity from entering into the proposed contract in its own name or in the
name of the state unless the governor and the lieutenant governor, after
consulting the Legislative Budget Board, find that the proposed contract
complies with all requirements of this subchapter and that entering into
the proposed contract is preferable to paying only hourly fees for the
legal services. 

(g)  Provides that a contingent fee contract subject to Subsection (f)  is
void unless the governor and the lieutenant governor have made the findings
required by Subsection (f). 

Sec. 2254.104.   TIME AND EXPENSE RECORDS REQUIRED; FINAL STATEMENT. (a)
Provides that the contract must require the contracting attorney or law
firm to keep current and complete written time and expense records that
describe in detail the time and money spent each day in performing the
contract. 
 
(b)  Requires the contracting attorney or law firm under a contract with a
state governmental entity to permit the governing body or governing
officer, the attorney general, and the state auditor each to inspect or
obtain copies of the time and expense records at any time.  Requires the
contracting attorney or law firm under a contract with a local governmental
entity to permit the governing body of the governmental entity, the chief
legal officer or employee of the governmental entity, and the chief
financial officer or employee of the governmental entity each to inspect or
obtain copies of the time and expense records at any time. 

(c)  Requires the contracting attorney or law firm, on conclusion of the
matter for which legal services were obtained, to provide the contracting
governmental entity with a complete written statement that describes the
outcome of the matter, states the amount of recovery, shows the contracting
attorney's or law firm's computation of the amount of the contingent fee,
and contains the final complete time and expense records required by
Subsection (a).  

(d)  Provides that all time and expense records required under this section
are public information subject to public disclosure under Chapter 552
(Public Information). Authorizes information in the records to be withheld
from a member of the public under Section 552.103 (Exception: Litigation or
Settlement Negotiations Involving the State or a Political Subdivision)
only if, in addition to meeting the requirements of Section 552.103, the
chief legal officer or employee of the state or local governmental entity
determines that withholding the information is necessary to protect the
entity's strategy or position in pending or reasonably anticipated
litigation.  

Sec. 2254.105.  CERTAIN GENERAL CONTRACT REQUIREMENTS.  Specifies that the
contract must:  

(1)  provide the method of computing the contingent fee; 
(2)  state the differences in the method of computing the contingent fee if
the matter is settled, tried, or tried and appealed; 
(3)  state how litigation and other expenses will be paid and, if
applicable, whether the amount recovered for purposes of the contingent fee
computation is considered to be the amount obtained before or after
expenses are deducted; 
(4)  state that any subcontracted legal or support services performed by a
person who is not affiliated with a contracting attorney or law firm is an
expense subject to reimbursement only in accordance with this subchapter;
and 
(5)  state that the amount of the contingent fee and reimbursement of
expenses under the contract will be paid and limited in accordance with
this subchapter.  

Sec. 2254.106.  CONTRACT REQUIREMENTS: COMPUTATION OF CONTINGENT FEE;
REIMBURSEMENT OF EXPENSES.  (a)  Provides that the contract must establish
the reasonable hourly rate for work performed by an attorney, law clerk, or
paralegal who will perform legal or support services under the contract
based on the reasonable and customary rate in the relevant locality for the
type of work performed and on the relevant experience, demonstrated
ability, and standard hourly billing rate, if any, of the person performing
the work.  Authorizes the contract to establish the reasonable hourly rate
for one or more persons by name and may establish a rate schedule for work
performed by unnamed persons. Prohibits the highest hourly rate for a named
person or under a rate schedule from exceeding $1,000 an hour. Provides
that this subsection applies to subcontracted work performed by an
attorney, law clerk, or paralegal who is not affiliated with the
contracting attorney or law firm, as well as to work performed by a
contracting attorney or by a  partner, shareholder, or employee of a
contracting attorney or law firm.  

(b)  Provides that the contract must establish a base fee to be computed,
as follows: for each attorney, law clerk, or paralegal who is a contracting
attorney or a partner, shareholder, or employee of a contracting attorney
or law firm,  multiply the number of hours of work providing legal or
support services under the contract times the reasonable hourly rate for
the work performed by that person and add the resulting amounts to obtain
the base fee. Prohibits the computation of the base fee from including
hours or costs attributable to work performed by a person who is not
affiliated with a contracting attorney or law firm.  

(c) Provides that subject to Subsection (d), the contingent fee is computed
by multiplying the base fee by a  multiplier. Provides that the contract
must establish a reasonable multiplier based on any expected difficulties
in performing the contract, the amount of expenses expected to be risked by
the contractor, the expected risk of no recovery, and any expected long
delay in recovery. Prohibits the multiplier from exceeding four without
prior approval by the legislature.  

(d) Provides that the contract must limit the amount of the contingent fee
to a stated percentage of the amount recovered.  Authorizes the contract to
state different percentage limitations, not to exceed 35 percent without
prior approval by the legislature, for different ranges of possible
recoveries and different percentage limitations in the event the matter is
settled, tried, or tried and appealed.  Provides that the contract must
state that the amount of the contingent fee will not exceed the lesser of
the stated percentage of the amount recovered or the amount  computed under
Subsections (a), (b), and (c).  

(e)  Authorizes the contract to limit the amount of expenses that may be
reimbursed, and provides that the amount or payment of only part of the fee
is contingent on the outcome of the matter for which the services were
obtained, with the amount and payment of the remainder of the fee payable
on a regular hourly rate basis without regard to the outcome of the matter.

 (f)  Provides that this section does not apply to a contingent  fee
contract in which the expected amount to be recovered and the actual amount
recovered do not exceed $100,000 or under which a series of recoveries is
contemplated, and the amount of each individual recovery is not expected to
and does not exceed $100,000, except as provided by Section 2254.107.  

(g)  Provides that this section applies to a contract described by
Subsection (f) for each individual recovery under the contract that
actually exceeds $100,000 and that the contract must provide for computing
the fee in accordance with this section for each individual recovery that
actually exceeds $100,000.  

(h)  Provides that, except as provided by Section 2254.107, this section
does not apply to a contingent fee contract authorized under Section 6.30,
Tax Code (Attorneys Representing Taxing Units), for the recovery of
delinquent taxes owed by persons to a local governmental entity.  

Sec. 2254.107.  MIXED HOURLY AND CONTINGENT FEE CONTRACTS; REIMBURSEMENT
FOR SUBCONTRACTED WORK.  (a)  Provides that this section only applies to a
contingent fee contract under which the amount or payment of only part of
the fee is contingent on the outcome of the matter for which the services
were obtained, with the amount and payment of the remainder of the fee
payable on a regular hourly rate basis without regard to the outcome of the
matter, or under which reimbursable expenses are incurred for subcontracted
services performed by a person who is not affiliated with a contracting
attorney or law firm. 

(b)  Provides that Sections 2254.106(a) and 2254.106(e) apply to the
contract without regard to whether the contract is authorized under Section
6.30, Tax Code (Attorneys Representing Taxing Units), and without regard to
the expected or actual amount of recovery under the contract.  Provides
that in the event of a conflict between Section 2254.106(a) or 2254.106(e)
and Section 6.30, Tax Code, the Tax Code prevails.  

(c)  Provides that the limitations prescribed by Section 2254.106 on the
amount of the contingent fee apply to the entire amount of the fee under
the contingent fee contract, including the part of the fee not contingent
on the outcome of the matter.  
 
(d)  Provides that the limitations prescribed by Sections 2254.108 and
2254.109 on payment of the fee apply only to  payment of the contingent
portion of the fee.  

Sec. 2254.108.  FEE PAYMENT AND EXPENSE REIMBURSEMENT UNDER CONTRACT WITH
LOCAL GOVERNMENTAL ENTITY.  (a)  Provides that the governing body of a
local governmental entity must specifically approve a payment of contingent
fee and a reimbursement of expenses under the contract.  

(b) Prohibits the governing body from approving a fee payment or expense
reimbursement under the contract until final and unappealable arrangements
have been made for depositing all recovered funds to the credit of the
local governmental entity in its depository under state law and  the local
governmental entity has received from the contracting attorney or law firm
the statement required under Section 2254.104(c).  

(c)  Authorizes litigation and other expenses payable under the contract to
be reimbursed only if the governing body determines that the expenses were
reasonable, proper, necessary, actually incurred on behalf of the local
governmental entity, and paid for by the contracting attorney or law firm.  

Sec. 2254.109.  FEE PAYMENT AND EXPENSE REIMBURSEMENT UNDER CONTRACT WITH
STATE  GOVERNMENTAL ENTITY.  (a)  Provides that a contingent fee and a
reimbursement of an expense under a contract with a state governmental
entity is payable only from funds the legislature specifically appropriates
to pay the fee or reimburse the expense, except as provided by Subsection
(b).  Provides that an appropriation to pay the fee or reimburse the
expense must specifically describe the individual contract, or the class of
contracts classified by subject matter, on account of which the fee is
payable or expense is reimbursable.  Provides that a general reference to
contingent fee contracts or to contracts subject to this subchapter or a
similar general description is not a sufficient description for purposes of
this subsection.  

(b)  Authorizes a state governmental entity, if the legislature has not
specifically appropriated funds for paying the fee or reimbursing the
expense, to pay the fee or reimburse the expense from other available funds
only if the legislature is not in session and if the Legislative Budget
Board gives its prior approval for that payment or reimbursement under
Section 69, Article XVI, Texas Constitution (Prior Approval of Expenditure
or Emergency Transfer of Appropriated Funds), after examining the statement
required under Section 2254.104(c) and determining that the requested
payment and the contract under which payment is requested meet all the
requirements of this subchapter.  

(c)  Prohibits a payment or reimbursement under the contract from being
made until final and unappealable arrangements have been made for
depositing all recovered funds to the credit of the appropriate fund or
account in the state treasury and until the state governmental entity and
the state auditor have received from the contracting attorney or law firm
the statement required under Section 2254.104(c).  
 
(d)  Authorizes litigation and other expenses payable under the contract to
be reimbursed only if the state governmental entity and the state auditor
determine that the expenses were reasonable, proper, necessary, actually
incurred on  behalf of the state governmental entity, and paid for by the
contracting attorney or law firm.  Prohibits the contingent fee from being
paid until the state auditor has reviewed the relevant time and expense
records and verified that the hours of work on which the fee computation is
based were actually worked in performing reasonable and necessary services
for the state governmental entity under the contract. 

Sec. 2254.110.  EFFECT ON OTHER LAW.    (a)  Provides that this subchapter
does not limit the right of a governmental entity to recover fees and
expenses from opposing parties under other law.  
 
(b)  Provides that compliance with this subchapter does not relieve a
contracting attorney or law firm of an obligation or responsibility under
other law, including under the Texas Disciplinary Rules of Professional
Conduct.  

(c)  Prohibits a state or local officer, employee, or governing body,
including the attorney general, from waiving  the requirements of this
subchapter or from prejudicing the interests of the state under this
subchapter.  Provides  that this subchapter does not  waive the state's
sovereign immunity from suit or its immunity from suit in federal court
under the Eleventh Amendment to the federal constitution.  

SECTION 5. Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 6.  Emergency clause.