Bill Text: TX HB2144 | 2021-2022 | 87th Legislature | Introduced
Bill Title: Relating to the tort of public nuisance.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2021-05-03 - Committee report sent to Calendars [HB2144 Detail]
Download: Texas-2021-HB2144-Introduced.html
87R5454 AJA-F | ||
By: Harris | H.B. No. 2144 |
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relating to the tort of public nuisance. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 4, Civil Practice and Remedies Code, is | ||
amended by adding Chapter 100F to read as follows: | ||
CHAPTER 100F. PUBLIC NUISANCE | ||
Sec. 100F.001. PURPOSE; ABROGATION OF COMMON LAW; | ||
CONFLICTS. (a) The purpose of this chapter is to ensure that the | ||
tort of public nuisance is defined clearly and in a manner | ||
consistent with its traditional scope for purposes of its use as a | ||
cause of action in this state. | ||
(b) This chapter abrogates the common law of public nuisance | ||
and supersedes any other statute to the extent of a conflict. This | ||
chapter provides the only remedies for the tort of public nuisance | ||
in this state. | ||
(c) This chapter does not affect: | ||
(1) the availability of a remedy provided by Chapter | ||
125 or another statute for conditions or activities involving | ||
criminal conduct and designated by statute as a common nuisance or | ||
public nuisance; or | ||
(2) the authority of a governmental entity to take a | ||
regulatory or enforcement action authorized by statute in | ||
connection with a condition designated by statute as a public | ||
nuisance. | ||
Sec. 100F.002. DEFINITIONS. In this chapter: | ||
(1) "Established public right" means a right, commonly | ||
held by all members of the public, to the use of public land, air, or | ||
water. | ||
(2) "Government attorney" means an attorney regularly | ||
employed on a salaried basis by this state or a political | ||
subdivision of this state. The term does not include an attorney | ||
hired on a contingency fee or hourly basis or an attorney hired on a | ||
short-term or temporary basis, including a legal fellow, special | ||
prosecutor, or other similar provisional position. | ||
(3) "Public nuisance" means an unlawful condition that | ||
violates an established public right. | ||
(4) "Special injury" means an injury that is different | ||
in kind, not just in degree, from an injury suffered by the public | ||
at large. | ||
(5) "Unlawful condition" means an ongoing | ||
circumstance or effect of an instrumentality that is expressly | ||
prohibited by the laws of this state. | ||
Sec. 100F.003. LIABILITY. A person may be held liable for a | ||
public nuisance only if the person causes an unlawful condition and | ||
controls that unlawful condition at the time the condition violates | ||
an established public right. | ||
Sec. 100F.004. LIMITATIONS ON LIABILITY. (a) Conditions | ||
arising from the following conduct are not considered unlawful | ||
conditions for purposes of a public nuisance action in this state: | ||
(1) an activity expressly authorized or encouraged by | ||
a statute, ordinance, rule, or other similar measure adopted by | ||
this state, a political subdivision of this state, the United | ||
States, or a regulatory agency of this state or the United States; | ||
and | ||
(2) the lawful manufacturing, distributing, selling, | ||
advertising, or promoting of a lawful product. | ||
(b) Subsection (a) is not exhaustive. It may not be presumed | ||
that a person may be held liable for a public nuisance arising from | ||
conduct or conditions not listed in Subsection (a). | ||
(c) The aggregation of multiple individual injuries or | ||
private nuisances do not constitute violations of an established | ||
public right for purposes of a public nuisance action. | ||
Sec. 100F.005. ENFORCEMENT BY GOVERNMENT. (a) Except as | ||
provided by Subsection (b), only the state or a political | ||
subdivision of this state may bring a public nuisance action and may | ||
do so only by a government attorney of the relevant jurisdiction. | ||
(b) Absent a clear and convincing showing otherwise, it | ||
shall be presumed that only a single governmental entity within | ||
this state has standing to file or maintain a public nuisance action | ||
relating to the real property or waterway to which the public | ||
nuisance relates. | ||
(c) To bring a public nuisance action, the state or the | ||
political subdivision must have substantial ownership interest in | ||
or authority over the real property or waterway, or ancillary space | ||
related to the real property or waterway, to which the public | ||
nuisance relates. | ||
(d) A financial expenditure made by the state or a political | ||
subdivision related to the remediation, abatement, or injunction of | ||
an unlawful condition does not constitute an injury sufficient to | ||
confer standing to file or maintain a public nuisance action. | ||
Sec. 100F.006. ENFORCEMENT BY PRIVATE CITIZEN. (a) A | ||
private citizen may maintain an action in the private citizen's | ||
individual capacity to enjoin a public nuisance only if the private | ||
citizen can show a special injury by clear and convincing evidence. | ||
(b) As a matter of law, use of or damage to public land, air, | ||
or water with only personal, spiritual, cultural, or emotional | ||
significance to the individual is not a special injury for purposes | ||
of a public nuisance claim. | ||
(c) An individual may not seek relief for both a public | ||
nuisance under the special injury exception provided by this | ||
section and for a private nuisance for a harm related to the same | ||
unlawful condition. | ||
Sec. 100F.007. REMEDIES. (a) Remedies in a public nuisance | ||
action are limited to: | ||
(1) injunctive relief sufficient to prevent the | ||
unlawful condition from violating an established public right; and | ||
(2) monetary and nonmonetary resources necessary to | ||
abate the public nuisance, if quantifiable and based on relevant | ||
and reliable cost factors, which may not include: | ||
(A) speculative estimates of current needs; | ||
(B) the costs of future remediation; | ||
(C) the costs of investigating and identifying | ||
the existence of an unlawful condition; | ||
(D) the costs of public services provided as a | ||
result of the public nuisance; or | ||
(E) damages of any kind, except for compensatory | ||
damages for a special injury established in accordance with this | ||
chapter. | ||
(b) For purposes of Subsection (a)(2), the necessity of | ||
monetary resources to abate the public nuisance must be established | ||
by the plaintiff by clear and convincing evidence. | ||
SECTION 2. The heading to Chapter 125, Civil Practice and | ||
Remedies Code, is amended to read as follows: | ||
CHAPTER 125. REMEDIES FOR CERTAIN CONDITIONS AND CONDUCT DESIGNATED | ||
AS COMMON OR [ |
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SECTION 3. The changes in law made by this Act apply only to | ||
a cause of action that accrues on or after the effective date of | ||
this Act. A cause of action that accrued before the effective date | ||
of this Act is governed by the law applicable to the cause of action | ||
immediately before the effective date of this Act, and that law is | ||
continued in effect for that purpose. | ||
SECTION 4. This Act takes effect September 1, 2021. |