HBA-ATS S.B. 731 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 731
By: Harris
Civil Practices
4/25/1999
Engrossed



BACKGROUND AND PURPOSE 

Currently, no clear requirements exist for an attorney to convey
information to a claimant about an offer of a structured settlement after
the claimant has filed a personal injury suit.  This failing may force the
claimant to accept a settlement that may not be in the claimant's best
interest.  Setting forth certain time periods, conditions under which an
attorney is appointed, and procedures under which a structured settlement
is presented may help a client make an informed decision. 

S.B. 731 provides that an offer of a structured settlement made after a
suit on a claim for damages arising from personal injury (injury) to an
incapacitated person or in which the injury has resulted in the substantial
disablement of the injured person has been filed must be made in writing
and presented to the attorney for the claimant.  The attorney receiving the
offer is required to present it to the claimant or the claimant's personal
representative.  In addition, to the extent reasonably necessary to permit
the claimant or the claimant's personal representative to make an informed
decision regarding the acceptance or rejection of a proposed structured
settlement, the attorney must advise the claimant or the claimant's
personal representative about the terms, conditions, and other attributes
of the proposed structured settlement, and the appropriateness of the
structured settlement under the circumstances. 

If a guardian ad litem (GAL) has been appointed by the court to participate
in the case as necessary to protect the interests of the claimant, the GAL
owes to the claimant a fiduciary duty of integrity, loyalty, and the utmost
good faith, and is required  to obtain, before any  structured settlement
offer is accepted, competent counsel from a person qualified  to analyze
and explain structured settlement offers and make suggestions for tailoring
the structured settlement to meet the needs of the claimant. A court may,
on the application of the claimant's next friend, order the appointment of
an attorney ad litem (AAL) for the claimant if the court finds that any GAL
appointed for the claimant is not adequately performing the guardian's
duties or the claimant would otherwise be benefitted by the appointment of
the AAL. 

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 6, Civil Practice and Remedies Code, by adding
Chapter 139, as follows: 

CHAPTER 139.  PERSONAL INJURY TO CERTAIN PERSONS

SUBCHAPTER A.  GENERAL PROVISIONS
       
Sec. 139.001.  DEFINITIONS.  Defines "claimant" and "incapacitated person."

Sec. 139.002.  SCOPE OF CHAPTER.  Provides that this chapter applies only
to a suit on a claim for damages arising from personal injury (injury) to
an incapacitated person or in which the injury has resulted in the
substantial disablement of the injured person. 
 
SUBCHAPTER B.  ATTORNEY AD LITEM

Sec. 139.051.  APPLICATION OF NEXT FRIEND.  Authorizes a court, on the
application of the claimant's next friend, to order the appointment of an
attorney ad litem (AAL) for the claimant if the court finds that any
guardian ad litem (GAL) appointed for the claimant is not adequately
performing the guardian's duties or the claimant would otherwise be
benefitted by the appointment of the AAL. 

SUBCHAPTER C.  STRUCTURED SETTLEMENT OFFER

Sec. 139.101.  WRITTEN OFFER REQUIRED.  Provides that an offer of a
structured settlement made after a suit to which this chapter applies has
been filed must be made in writing and presented to the attorney for the
claimant. 

Sec. 139.102.  PRESENTATION TO CLAIMANT.  Requires the attorney receiving
the offer to present it to the claimant or the claimant's personal
representative as soon as practicable after receiving the offer under
Section 139.101, but not later than any expiration date that may accompany
the quotation that outlines the terms of the structured settlement offered.
Requires the attorney, to the extent reasonably necessary to permit the
claimant or the claimant's personal representative to make an informed
decision regarding the acceptance or rejection of a proposed structured
settlement, to advise the claimant or the claimant's personal
representative about the terms, conditions, and other attributes of the
proposed structured settlement, and the appropriateness of the structured
settlement under the circumstances. 

Sec. 139.103.  DUTIES OF GUARDIAN AD LITEM.  Provides that a GAL who has
been appointed by the court to participate in the case as necessary to
protect the interests of the claimant owes to the claimant a fiduciary duty
of integrity, loyalty, and the utmost good faith. Requires the GAL to
obtain, before any  structured settlement offer is accepted, competent
counsel from a person qualified  to analyze and explain structured
settlement offers and make suggestions for tailoring the structured
settlement to meet the needs of the claimant. 

SECTION 2.  Effective date: September 1, 1999.

SECTION 3.  Makes application of this Act prospective.

SECTION 4.  Emergency clause.