HBA-ATS H.B. 900 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 900
By: Dutton
Civil Practices
4/13/1999
Introduced



BACKGROUND AND PURPOSE 

Under Texas law, defendants who have a default judgment entered against
them in trial court may nonetheless file a bill of review in that court to
directly attack the default judgment after the time for filing a motion for
a new trial has expired and a restricted appeal is not available.  The bill
of review is an equitable principle.  Accordingly, case law sets forth the
guidelines governing a bill of review. A defendant must generally file the
bill of review (an independent suit) within four years.  The defendant must
file a sworn pleading that states the grounds for review.  Those grounds
must allege that the defendant has a meritorious defense to the original
action, but that the defendant did not have an opportunity to present that
defense.  The failure to provide the defense must be due to fraud,
accident, wrongful act of the plaintiff, or official mistake.  In addition,
the defendant must show that the defendant was not at fault or negligent.
However, a defendant who alleges defective service of process or notice of
a hearing does not have to show a meritorious defense. 

H.B. 900 authorizes a court to grant a bill of review for a court order or
judgment (order) if an applicant demonstrates that the timely pursuit of a
legal remedy to contest an order was hampered by factors beyond the
applicant's control, that notice or service of process in relation to the
order was legally insufficient, or that notice by publication in relation
to the order precluded the discovery of the notice or any subsequent court
notices.  The bill of review must be filed within four years.  An
applicant, by verified affidavit, must state that notice in relation to the
court order was legally insufficient, or state that the applicant relies on
a ground enumerated above, other than the ground that the timely pursuit of
a legal remedy to contest an order was hampered by factors beyond the
applicant's control, and allege a meritorious claim or defense in relation
to the court order. 

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.  Amends Title 3, Civil Practice and Remedies Code, by adding
Chapter 67, as follows: 

CHAPTER 67.  BILL OF REVIEW

Sec. 67.001.  APPLICATION OF EQUITY PRINCIPLES.  Provides that the
principles governing a court of equity apply to a bill of review. 

Sec. 67.002.  AVAILABILITY.  Authorizes a court to grant a bill of review
for a court order or judgment in a civil case if an applicant demonstrates
that the timely pursuit of a legal remedy to contest an order was hampered
because of fraud, mistake of fact, accident, wrongful act, or court error,
that notice or service of process in relation to the order was legally
insufficient, or that notice by publication in relation to the order
precluded the discovery of the notice or any subsequent court notices. 

Sec. 67.003.  LIMITATIONS PERIOD.  Establishes the period of time during
which a bill of review must be filed as within four years from the date of
the order or judgment. 

 Sec. 67.004.  VENUE.  Specifies the court in which the application for a
bill of review (application) must be filed as the court that rendered the
order or judgment, or a successor of that court. 

Sec. 67.005.  CONTENTS OF APPLICATION.  Describes the information required
in an application.  Provides that the application must contain, by verified
affidavit, a statement that notice in relation to the court order was
legally insufficient, or state that the applicant relies on a ground under
Section 67.002, other than the ground that the timely pursuit of a legal
remedy to contest an order was hampered by factors beyond the applicant's
control, and allege a meritorious claim or defense in relation to the court
order. 

Sec. 67.006.  NECESSARY PARTY.  Defines a necessary party and authorizes a
necessary party to intervene at any time. 

Sec. 67.007.  PRETRIAL HEARING.  Describes when a court may provide for a
pretrial hearing on matters relating to an action for a bill of review. 

SECTION 2.  Effective date: September 1, 1999.
            Makes application of this Act prospective.

SECTION 3.  Emergency clause.