Tuesday, May 29, 2012
Report: Tort “Reform” in Texas: Implementing the Corporate Immunity Agenda
Texas Watch Foundation—September 26th, 2011
"Despite a professed desire to adhere to fundamental constitutional principles, Governor Rick Perry’s tenure has been marked by radical changes that arbitrarily and dangerously restrict the legal and constitutional rights of Texans of all walks of life, including patients, families, workers, homeowners, senior citizens, policyholders, and small business owners. This report discusses the most notable of these statutory changes and details their devastating human cost, namely, how they have closed the courthouse door on many Texas families.
... The framers of the United States and Texas constitutions, who enshrined trial by jury as a fundamental right and believed in checks and balances, would not recognize the current Texas legal system, which perverts the rule of law into an instrument for the moneyed and powerful, as well as divorces it from any concept of justice.
Along with others in the state’s political leadership, Governor Perry has presided over a series of draconian legislative reforms, particularly in 2003 and the sessions to follow, that effectively reward those who needlessly endanger our community, socializing risk and forcing victims, taxpayers, and responsible business owners to bear the costs of others’ wrongdoing.
The homebuilding industry, one of the wealthiest and most powerful constituencies within the corporate immunity lobby, successfully created an entirely new state agency, the Texas Residential Construction Commission (TRCC), with the passage of HB 730 in 2003.
At a time when state government faced a multi-billion dollar budget shortfall, and when the ruling majority professed allegiance to small government, questions arise: Why would an industry demand the creation of a state agency, and why would an anti-government legislature accede so readily to those demands? The answers lie in the structure of the agency and its authority. Dominated from within by industry representatives, the TRCC was more about regulating homeowners’ claims against builders than regulating the industry’s building practices to ensure homes were constructed in a safe, sound, and habitable manner.
Establishing weak building standards and warranties, forcing homeowners into a lengthy administrative gauntlet under the auspices of a state-sponsored inspection and resolution process, and making homeowners prove two cases in one if they somehow persevered and took their case to trial, the TRCC immunized many builders from liability by exhausting already-distressed homeowners and giving the state’s imprimatur to inadequate building practices.
This industry enjoyed not one but two layers of special protection, having already pushed through the “Residential Construction Liability Act” over a decade earlier, which limits homeowners’ damages, requires them to give pre-suit notice and inspections of their property, as well as empowers shoddy builders to make offers that can carry consequences if the homeowner rejects. This corner of the law exemplifies the power of special interests.
The Texas Legislature undertakes a periodic “Sunset” review of state agencies to determine whether they should continue (and in what form). Six years after it came into being, the much-maligned and fatally-flawed TRCC did not survive this process. After homeowners and their advocates fought to try to give the TRCC real teeth, the homebuilding lobby showed its true colors and decided it would rather have no agency than one that actually regulated the industry in a meaningful way.
Homebuilders and contractors were able to fall back to the aforementioned special protections already on the books. Even in the one time it lost, the corporate immunity lobby in Texas still came out ahead."
My deepest sympathies to Texas folks...