A proposal to codify the collaborative dispute resolution process in Texas civil law is not included in the legislative package approved Sept. 21 by the State Bar of Texas board of directors for submission to the state Legislature in 2013.

At its meeting in Tyler, the board affirmed the State Bar Legislative Policy Subcommittee’s recommendation to exclude proposed legislation that would create a new Chapter 161 in the Texas Civil Practice & Remedies Code for collaborative law.

Two State Bar sections on collaborative law and alternative dispute resolution are jointly sponsoring the legislative initiative.

Dallas solo Lawrence R. Maxwell Jr., Collaborative Law Section chairman, says the proposal would provide the benefits and protections currently available under the Collaborative Family Law Act enacted by the Legislature in 2011 to parties in civil law cases. Two significant reasons for the proposed legislation, Maxwell says, are to ensure confidentiality in the collaborative law process and to provide statutory privilege so that participants in a collaborative law procedure cannot be compelled to testify in court about what went on in the procedure if no resolution was reached.

Maxwell says collaborative law procedures, which are voluntary, involve interest-based negotiations, not position- or rights-based bargaining, and result in a “win-win,” not a winner and a loser.

“My view is this is significant legislation that the State Bar should support. They chose not to do so,” Maxwell says.

Legislative Policy Subcommittee member Tom Riney, a partner in Amarillo’s Riney & Mayfield, says the subcommittee recommended that the collaborative law proposal be excluded from the legislative package because it is “certain to cause divisiveness.”

State Bar Board Policy Manual §8.01.03(c) states the following criteria for the Bar’s support of legislation: “The proposed legislation or legislative action does not carry the potential of deep philosophical or emotional division among a substantial segment of the membership of the bar.”

Maxwell says the Texas Association of Defense Counsel (TADC) and the Texas Trial Lawyers Association (TTLA) opposed similar collaborative law proposals in the 2005 and 2007 legislative sessions. “Those two organizations make up less than 5 percent of the lawyers in Texas,” he says.

Mona Fults with TTLA writes in an email that the trial lawyers’ association has approximately 2,400 members. Debbie Hutchinson, an administrative assistant at TADC, says the defense counsel organization has between 1,700 and 1,800 members. The State Bar has almost 90,000 active members, according to the Bar’s 2011-2012 annual report posted on its website.

Personal-injury plaintiffs lawyer Daniel Horowitz III, a Bar director and partner in Houston’s Abraham Watkins Nichols Sorrels Agosto & Friend, says personally he is against the proposal because of the disqualification provision in the collaborative law bill submitted to the subcommittee. Under §161.106 of the bill, the collaborative lawyer and other lawyers in the collaborative lawyer’s firm are disqualified from representing the participants if the matters are unresolved and the case goes to court.

Horowitz says personal injury lawyers work on a contingency basis. “I don’t get paid unless we win,” he says.

Maxwell says that with the disqualification provision, “everyone focuses on getting the matter resolved.” He also says that clients are much more willing to speak up if they know that the lawyer representing the other side in a collaborative law procedure will not be cross-examining them if the matter ends up in court.

The Legislature considered bills that would have made collaborative law provisions then in the Family Code applicable to other areas of law in 2005 and 2007. Maxwell says the state Senate passed a collaborative law measure in the 2005 session, but it died in a House committee. Despite the Bar’s exclusion of the collaborative law proposal from its 2013 legislative package, the sections will seek House and Senate sponsors for the legislation, he says.

Alternative Dispute Resolution Section chairman Alvin Zimmerman, a shareholder in Houston’s Zimmerman, Axelrad, Meyer, Stern & Wise, says, “We will continue to work on this project because we think it will be an alternative to litigation and a cost-savings.”

Dangerous Dog Determinations

Among the items included in the Bar’s legislative package is proposed legislation sought by the Animal Law Section to give county courts-at-law jurisdiction to hear appeals of dangerous dog determinations. As proposed, the bill also would allow trial by jury for dangerous dog cases in municipal and justice-of-the-peace courts.

Fort Worth’s 2nd Court of Appeals found in 2008′s In Re Loban that no statutory provision authorized a dog owner’s appeal of a municipal court’s affirmance of the city animal control officer’s declaration that the owner’s dog was dangerous.

Animal Law Section vice chairman Randy Turner, an associate with Bailey & Galyen in Bedford, says the Legislature authorized appeals of dangerous dog declarations. But Turner says the 2nd Court’s ruling in Loban means that in larger counties that have criminal courts or courts of criminal appeals at the county level, there is no court that has jurisdiction to hear appeals of dangerous dog determinations from municipal courts even though the Legislature authorized such appeals.

As noted in the 2nd Court’s opinion in Loban, the Tarrant County criminal courts have no jurisdiction over civil matters, and a municipal court’s order that a dog is dangerous and must be destroyed is a civil matter. A county court-at-law acquires jurisdiction over appeals from a municipal court only if there is no county criminal court or court of appeals, according to the opinion.

Notes Turner, “You have the right to appeal; there’s just no court to appeal it to.”