Bill Text: TX HB3320 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to certain taking claims against certain governmental entities.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-03-25 - Referred to Land & Resource Management [HB3320 Detail]
Download: Texas-2013-HB3320-Introduced.html
83R6542 TJS-F | ||
By: Coleman | H.B. No. 3320 |
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relating to certain taking claims against certain governmental | ||
entities. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Sections 2007.003(a) and (b), Government Code, | ||
are amended to read as follows: | ||
(a) This chapter applies only to the following governmental | ||
actions: | ||
(1) the adoption or issuance of an ordinance, rule, | ||
regulatory requirement, resolution, policy, guideline, or similar | ||
measure; | ||
(2) an action that imposes a physical invasion or | ||
requires a dedication or exaction of private real property; | ||
(3) an action by a municipality that has effect in the | ||
extraterritorial jurisdiction of the municipality, excluding | ||
annexation, and that enacts or enforces an ordinance, rule, | ||
regulation, or plan that does not impose identical requirements or | ||
restrictions in the entire extraterritorial jurisdiction of the | ||
municipality; [ |
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(4) enforcement of a governmental action listed in | ||
Subdivisions (1) through (3), whether the enforcement of the | ||
governmental action is accomplished through the use of permitting, | ||
citations, orders, judicial or quasi-judicial proceedings, or | ||
other similar means; and | ||
(5) subject to Subchapter D, an action listed in | ||
Subdivisions (1) through (3), including an action by a municipality | ||
or other political subdivision, that is taken: | ||
(A) to prohibit or restrict a condition or use of | ||
private real property on the ground that the condition or use | ||
constitutes a public or private nuisance as defined by background | ||
principles of nuisance and property law of this state; or | ||
(B) in response to a threat to public health and | ||
safety and designed to significantly advance the health and safety | ||
purpose without imposing a greater burden than is necessary to | ||
achieve the health and safety purpose. | ||
(b) This chapter does not apply to the following | ||
governmental actions: | ||
(1) an action by a municipality except as provided by | ||
Subsections [ |
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(2) a lawful forfeiture or seizure of contraband as | ||
defined by Article 59.01, Code of Criminal Procedure; | ||
(3) a lawful seizure of property as evidence of a crime | ||
or violation of law; | ||
(4) an action, including an action of a political | ||
subdivision, that is reasonably taken to fulfill an obligation | ||
mandated by federal law or an action of a political subdivision that | ||
is reasonably taken to fulfill an obligation mandated by state law; | ||
(5) the discontinuance or modification of a program or | ||
regulation that provides a unilateral expectation that does not | ||
rise to the level of a recognized interest in private real property; | ||
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belief that the action is necessary to prevent a grave and immediate | ||
threat to life or property; | ||
(7) [ |
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domain; | ||
(8) [ |
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prevent waste of oil and gas, protect correlative rights of owners | ||
of interests in oil or gas, or prevent pollution related to oil and | ||
gas activities; | ||
(9) [ |
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purpose of regulating water safety, hunting, fishing, or control of | ||
nonindigenous or exotic aquatic resources; | ||
(10) [ |
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subdivision: | ||
(A) to regulate construction in an area | ||
designated under law as a floodplain; | ||
(B) to regulate on-site sewage facilities; | ||
(C) under the political subdivision's | ||
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rights of owners of interest in groundwater; or | ||
(D) to prevent subsidence; | ||
(11) [ |
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ad valorem taxation; or | ||
(12) [ |
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Utility Commission of Texas to order or require the location or | ||
placement of telecommunications equipment owned by another party on | ||
the premises of a certificated local exchange company. | ||
SECTION 2. Subchapter B, Chapter 2007, Government Code, is | ||
amended by adding Sections 2007.0211 and 2007.0212 to read as | ||
follows: | ||
Sec. 2007.0211. NOTICE TO POLITICAL SUBDIVISION. (a) Not | ||
later than the 60th day before the date on which an owner brings | ||
suit under Section 2007.021, the owner must give written notice to | ||
the political subdivision. The notice must: | ||
(1) state the owner's mailing address; | ||
(2) describe in reasonable detail the facts supporting | ||
the owner's claim; and | ||
(3) be delivered in person using a third-party | ||
delivery service or sent by certified mail, return receipt | ||
requested, to the person on whom citation would be served in a suit | ||
under Section 101.102(c), Civil Practice and Remedies Code. | ||
(b) In a suit filed under Section 2007.021, the owner's | ||
pleadings must include a statement that the owner has complied with | ||
the notice requirements of this section and provide evidence of a | ||
receipt issued by a third-party delivery service or a return | ||
receipt, as applicable. | ||
(c) Receipt by a political subdivision of notice under this | ||
section tolls any applicable statute of limitation until the 75th | ||
day after the date the notice is received. | ||
Sec. 2007.0212. REPLY BY POLITICAL SUBDIVISION. Not later | ||
than the 45th day after the date a political subdivision receives | ||
notice under Section 2007.0211, the political subdivision shall | ||
deliver to the owner, in person using a third-party delivery | ||
service or by certified mail, return receipt requested, a reply | ||
stating whether: | ||
(1) the governmental action, if any, was undertaken | ||
due to a condition or use of the owner's private real property that | ||
constituted a public or private nuisance as defined by background | ||
principles of nuisance and property law of this state; or | ||
(2) the governmental action, if any, was undertaken in | ||
response to a threat to public health and safety and designed to | ||
significantly advance the health and safety purpose without | ||
imposing a greater burden than was necessary to achieve the health | ||
and safety purpose. | ||
SECTION 3. Section 2007.025, Government Code, is amended by | ||
adding Subsection (d) to read as follows: | ||
(d) A governmental entity may appeal from an interlocutory | ||
order of a court that denies a motion for summary judgment filed in | ||
good faith by the governmental entity on the ground that: | ||
(1) the owner has not met the owner's burden of | ||
production regarding one or more elements of the taking claim; or | ||
(2) an expert report required by Subchapter D has not | ||
been served. | ||
SECTION 4. Chapter 2007, Government Code, is amended by | ||
adding Subchapter D to read as follows: | ||
SUBCHAPTER D. EXPERT REPORT REQUIRED IN CERTAIN SUITS | ||
Sec. 2007.051. EXPERT REPORT. (a) In this section: | ||
(1) "Expert" means a person giving opinion testimony | ||
who is qualified to do so under the Texas Rules of Evidence. | ||
(2) "Expert report" means a written report by an | ||
expert providing a fair summary of the expert's opinion as of the | ||
date of the report. | ||
(b) This section applies only to a suit filed under Section | ||
2007.021 in which a political subdivision, in the reply required by | ||
Section 2007.0212, asserts that the governmental action was | ||
undertaken due to a condition or use of private real property | ||
described by Section 2007.0212(1) or in response to a threat to | ||
public health and safety as described by Section 2007.0212(2). | ||
(c) In a suit described by Subsection (b), the owner shall, | ||
not later than the 120th day after the date the suit is filed, serve | ||
on each party or the party's attorney one or more expert reports, | ||
with a curriculum vitae of each expert listed in the report, for | ||
each political subdivision against which a taking claim is | ||
asserted. The date for serving the report may be extended by written | ||
agreement of the parties. Each political subdivision whose conduct | ||
is implicated in a report must file and serve any objection to the | ||
sufficiency of the report not later than the 21st day after the date | ||
the report was served. All objections are waived if the political | ||
subdivision fails to file the objection. | ||
(d) If, as to a political subdivision, an expert report has | ||
not been served within the period specified by Subsection (c), the | ||
court, on the motion of the affected political subdivision, shall, | ||
subject to Subsection (e), enter an order that: | ||
(1) awards to the affected political subdivision | ||
reasonable attorney's fees and costs of court incurred by the | ||
political subdivision; and | ||
(2) dismisses the claim with respect to the political | ||
subdivision. | ||
(e) If an expert report has not been served within the | ||
period specified by Subsection (c) because elements of the report | ||
are found deficient, the court may grant one 30-day extension to the | ||
owner in order to cure the deficiency. If the owner does not receive | ||
notice of the court's ruling granting the extension until after the | ||
120-day deadline has passed, the 30-day extension shall run from | ||
the date the owner first received the notice. | ||
(f) Notwithstanding any other provision of this section, an | ||
owner may satisfy any requirement of this section for serving an | ||
expert report by serving reports of separate experts regarding | ||
different issues related to the taking claim. | ||
(g) A court shall grant a motion challenging the adequacy of | ||
an expert report only if it appears to the court, after a hearing, | ||
that the report does not represent a good faith effort to comply | ||
with the requirements of an expert report under Subsections (j) and | ||
(k). | ||
(h) Until an owner has served the expert report and | ||
curriculum vitae as required by Subsection (c), all discovery in a | ||
taking claim is stayed except for the acquisition by the owner of | ||
information by means of: | ||
(1) written discovery as defined in Rule 192.7, Texas | ||
Rules of Civil Procedure; | ||
(2) depositions on written questions under Rule 200, | ||
Texas Rules of Civil Procedure; and | ||
(3) discovery from nonparties under Rule 205, Texas | ||
Rules of Civil Procedure. | ||
(i) Notwithstanding any other provision of this section, | ||
after a taking claim is filed, all owners, collectively, may not | ||
take more than two depositions before the expert report is served as | ||
required by Subsection (c). | ||
(j) At a minimum, an expert report under this section must | ||
state the expert's conclusion, together with the facts on which the | ||
expert relied in reaching that conclusion, with respect to whether | ||
the alleged taking: | ||
(1) has denied the owner all economically viable use | ||
of the property, if that is the basis for the owner's claim; | ||
(2) has made the private real property unusable for | ||
its intended purpose, if that is the basis for the owner's claim; or | ||
(3) has interfered with the owner's investment-backed | ||
expectations, if that is the basis for the owner's claim. | ||
(k) If an owner's taking claim alleges that the owner has | ||
sustained economic damages as the result of an alleged taking, the | ||
expert report under this section must state the expert's | ||
conclusion, together with the facts on which the expert relied in | ||
reaching that conclusion, regarding: | ||
(1) whether the alleged taking has resulted in | ||
economic damages to the owner as alleged; | ||
(2) the amount of economic damages, if any; and | ||
(3) whether the damages are de minimis compared to a | ||
public benefit, if any, that resulted from the taking. | ||
SECTION 5. The change in law made by this Act applies only | ||
to an action on a taking claim with respect to a taking alleged to | ||
have occurred on or after the effective date of this Act. An action | ||
on a taking claim with respect to a taking alleged to have occurred | ||
before the effective date of this Act is governed by the law as it | ||
existed immediately before that date, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 6. This Act takes effect September 1, 2013. |