Senator Robert "Bob" Deuell, M.D.
The Texas State Senate
District 2

For Immediate Release
August 19, 2003

***CAPITOL UPDATE***

Constitutional Amendment Election Information

AUSTIN - This week, I will continue with the analysis of proposed constitutional amendments. The election will be held on September 13, and Texans will vote on 22 proposed amendments to the Texas Constitution. This article focuses on amendments 12 and 13. The analyses contained in these articles comes from the Texas Legislative Council's "Condensed Analysis of Proposed Constitutional Amendments." To view the entire document, please visit their website at www.tlc.state.tx.us, or feel free to contact my office for a hard copy.

AMENDMENT NO. 12

The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the legislature to determine limitations on non-economic damages.

SUMMARY: The proposed amendment would add a new Section 66 to Article III, Texas Constitution, that authorizes the legislature by statute to determine the limit of liability for all damages and losses, however characterized, other than economic damages, in health care liability laims and other claims.

The first part of new Section 66 to Article III, Texas Constitution, authorizes the legislature by statute to determine liability limits for a provider of medical or health care with respect to treatment, lack of treatment, or other claimed departure from an accepted standard of medical or health care or safety, however characterized, that is or is claimed to be a cause of, or that contributes or is claimed to contribute to, disease, injury, or death of a person. "Economic damages" are defined to mean compensatory damages for any pecuniary loss or damage. "Economic damages" do not include any loss or damage, however characterized, for past, present, and future physical pain and suffering, mental anguish and suffering, loss of consortium, loss of companionship and society, disfigurement, or physical impairment. The authority of the legislature by statute to determine liability limits applies without regard to whether the claim or cause of action arises under or is derived from common law, a statute, or other law, including any claim or cause of action based or sounding in tort, contract, or any other theory or any combination of theories of liability. The claim or cause of action includes a medical or health care liability claim as defined by the legislature. This first part authorizes the legislature to determine liability limits by a law enacted by the 78th Legislature, Regular Session, 2003, and by all subsequent regular or special sessions of the legislature.

The second part of new Section 66 to Article III, Texas Constitution, authorizes the legislature by statute to determine the limit of liability for all damages and losses, however characterized, other than economic damages, for claims or causes of action other than medical or health care liability claims. This authorization applies without regard to whether the claim or cause of action arises under or is derived from common law, a statute, or other law, including any claim or cause of action based or sounding in tort, contract, or any other theory or any combination of theories of liability. This second part authorizes the legislature by statute to determine liability limits for claims and causes of action that are not medical or health care liability claims only after January 1, 2005, and only by at least a three-fifths vote of all the members elected to each house. The statute adopted by the legislature must include language that cites new Section 66 as its authority.

Finally, H.J.R. No. 3 provides that if the voters reject the proposed amendment, a court could not consider any aspect of the vote for any purpose, in any manner, or to any extent.

ARGUMENTS FOR: In 2003, the legislature found a serious public problem in the availability and affordability of adequate medical professional liability insurance that created a medical malpractice insurance crisis in Texas. It found that this crisis has had a material adverse effect on the delivery of medical and health care in Texas, including significant reductions of availability of medical and health care services to the people of Texas and a likelihood of further reductions. The proposed amendment is both balanced and limited in its manner of addressing the identified crisis. It does not authorize the legislature to limit the direct economic costs that may arise from a claim against a health care provider, nor does it authorize the legislature to limit in any way more indirect economic costs, such as lost wages. The amendment only authorizes the legislature to limit noneconomic damages, such as pain and suffering, which is the element of a lawsuit that is the least predictable and the most subjective. Under the 2003 legislation, a claimant in a health care liability claim could recover as much as $750,000 for noneconomic damages, and the right of a person to obtain full redress for negligence that injures him or her is not unduly affected by allowing the legislature to impose such a limit.

In 1977, the legislature enacted the initial liability limits on the recovery of noneconomic damages in health care liability claims, and it was not until 1988--eleven years later--that the Texas Supreme Court found those limits unconstitutional for common law causes of action. The long lag between enactment by the legislature of a limit on noneconomic damages and a definitive determination of constitutionality by the Texas Supreme Court is inherent in the judicial system and severely reduces both the effectiveness and predictability of any future liability limits enacted by the legislature. To promote predictability and stability in the civil justice system for doctors, health care providers, hospitals, and other health care institutions, it is necessary to give the legislature clear constitutional authority to enact limits on noneconomic damages.

To effectively respond to future crises, the amendment authorizes the legislature to adopt, beginning January 1, 2005, limits on noneconomic damages for lawsuits other than health care liability claims. This authority will also allow the legislature to adopt liability limits that may avoid crises in those areas altogether. As a recognition of the seriousness of limits on noneconomic damages in lawsuits and as a further check and balance to legislative power, the amendment would provide that in suits other than health care liability claims, the legislature may only limit noneconomic damages by at least a three-fifths vote of all the members elected to each house, instead of a simple majority.

ARGUMENTS AGAINST: Section 13, Article I, Texas Constitution, known as the "open courts provision" provides that "[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." This is a fundamental right, contained in the Bill of Rights in the Texas Constitution, and is properly protected by the courts. Even in the midst of a medical malpractice insurance crisis in Texas, it is the judiciary that is the proper forum to determine the extent to which a fundamental right may be reasonably restricted. The test established by the Texas Supreme Court in 1983 is reasonable, appropriate, and fully adequate: whether any limit on noneconomic damages adopted by the legislature is "unreasonable or arbitrary when balanced against the purpose and basis of the statute." Under the 2003 legislation, a claimant in a health care liability claim could recover as much as $750,000 for noneconomic damages. That amount may be adequate and just for many cases, but it will not be adequate and just for all.

Although a lengthy lag between enactment by the legislature of a limit on noneconomic damages and a definitive determination of constitutionality by the Texas Supreme Court may be, to a certain extent, inherent in the judicial system, it need not take nearly as long as it has in the past. The Texas Constitution authorizes the legislature to provide for a direct appeal to the supreme court of the finding by a trial court that a statute is unconstitutional, and legislation enacted by the 78th Legislature provides for just such an accelerated appeal. Even if the medical malpractice insurance crisis in Texas justifies the legislature to enact limits on noneconomic damages in health care liability claims, no similar crisis has been identified by the legislature to justify it to enact limits on noneconomic damages for areas other than health care. Absent an identifiable and critical need, the courts are the appropriate guardian of the fundamental right that they be open to the people to fully redress wrongs. The requirement that, in suits other than health care liability claims, the legislature may only limit noneconomic damages by at least a three-fifths vote of all the members elected to each house, instead of a simple majority, is not a sufficient replacement for the traditional protection of this fundamental right by the judiciary.

AMENDMENT NO. 13

The constitutional amendment to permit counties, cities and towns, and junior college districts to establish an ad valorem tax freeze on residence homesteads of the disabled and of the elderly and their spouses.

SUMMARY: The proposed amendment amends Section 1-b, Article VIII, Texas Constitution, by adding Subsection (h) to authorize the governing body of a county, a municipality, or a junior college district to prohibit increases in the amount of county, municipal, or junior college district ad valorem taxes that may be imposed on the residence homestead of a person who is disabled or who is 65 years of age or older. The proposed amendment would provide a means by which disabled and elderly persons can be provided the same beneficial tax treatment in connection with their county, municipal, or junior college district property taxes that elderly persons currently enjoy in connection with their public school district property taxes.

ARGUMENTS FOR: Due to inflation, rising property values, or increases in tax rates, taxes imposed by counties, municipalities, and junior college districts have consistently increased over time. Tax increases are particularly hard on persons on fixed incomes, such as many elderly or disabled persons. The proposed amendment would allow local officials or voters to protect homeowners who are disabled or 65 years of age or older from increases in county, municipal, or junior college district property taxes, allowing those persons to remain in their homes. The amendment provides a local option method by which a county, a municipality, or a junior college district may limit tax increases on the residence homesteads of the disabled or elderly. The amendment does not require a county, municipality, or junior college district to establish a property tax freeze, nor does the amendment relieve disabled and elderly homeowners from all of the taxes they must pay to their county, municipality, or junior college district. The amount of tax revenue that will be lost in future years will be minimal and can be made up from other sources of revenue without significantly increasing the tax burdens of other taxpayers.

ARGUMENTS AGAINST: Limiting the amount of county, municipal, or junior college district taxes on the residence homesteads of the disabled or the elderly does not affect the total tax burden of the county, municipality, or junior college district but will only shift the tax burden among taxpayers. By limiting increases in the taxes owed by a disabled or elderly person on the person's home, the amendment unfairly shifts a portion of the tax burden to other homeowners and to owners of other types of property, primarily business property, who are not entitled to any limitation on such taxes. Regardless of the amount of tax revenue that will be lost if the amendment is adopted, the county, municipality, or junior college district will be forced to consider imposing higher taxes on other property owners to maintain the same level of services it currently provides. Because the amendment provides that a limitation on taxes that is adopted may not be rescinded or repealed, a county, municipality, or junior college district will be prevented from ever again asking its disabled or elderly residents to pay their fair share of the costs incurred in providing those services.

If you would like to receive the Capitol Update via e-mail, please contact me at bob.deuell@senate.state.tx.us.

To contact Sen. Deuell about the legislative process, contact the Capitol Office at (512) 463-0556 or mail to Sen. Bob Deuell, Texas Senate, P.O. Box 12068, Austin, TX 78711. The website for the Texas Senate is www.Senate.state.tx.us. The e-mail address for Sen. Deuell is: bob.deuell@senate.state.tx.us.

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