Under new law, loser of new ‘motion to dismiss’ pays winner’s attorney fees

After calling for laws against "frivolous lawsuits" during his 2010 re-election campaign, Gov. Rick Perry gave the issue oomph toward the end of the 2011 regular legislative session. On May 6, he declared the reform of "civil remedies and procedures" an emergency item.

The next day, Texas House Republicans used a rare maneuver to force a vote on House Bill 274 by Rep. Brandon Creighton, R-Conroe, barring both debate and floor amendments. On May 30, the session's last day, Perry signed the bill into law, saying that it "provides defendants and judges with a variety of tools that will cut down on frivolous claims in Texas."

Nearly nine months earlier, during his gubernatorial contest with Democratic nominee Bill White, Perry detailed a four-point proposal for changes to the state's legal system in a Sept. 15 press release. One of those, titled "Loser Pays for Frivolous Lawsuits," said that "if a court determines that a lawsuit is groundless or a jury determines a suit is frivolous, then the plaintiff should be required to pay the defendant's attorney's fees."

Does the new law, which takes effect Sept. 1, accomplish that?

Pretty much.

House Bill 274, which includes several legal reforms, instructs the Texas Supreme Court to adopt rules for judges to dismiss lawsuits "that have no basis in law or fact” and to "award costs and reasonable and necessary attorney's fees to the prevailing party.”

In an email, Brad Parker of the Texas Trial Lawyers Association, which supported the legislation's final version, summarized that "loser pays" provision this way: "Defendants who believe a case is baseless can seek a dismissal by the judge early in the process," and if the judge rules for the defendant, "payment of the defendant's attorney fees by the plaintiff is mandatory and the case is dismissed."

Perry spokeswoman Catherine Frazier echoed Parker's characterization but said the reverse is also true: "If the defendant files a motion for early dismissal and doesn't get it, he or she pays the plaintiff's attorney fees" for the cost of battling that motion.

Perry's original promise included a wrinkle that did not play out in the measure he signed into law. His mention of a jury potentially deciding a lawsuit is frivolous conflicts with practices in Texas, where legal experts, including Alexandra Albright, associate dean at the University of Texas School of Law, told us that juries are generally not asked to make that determination; the new law doesn't change that.

Still, we rate this promise Kept.