Texas 2011 - 82nd Regular

Texas Senate Bill SB766 Compare Versions

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1	1	By: Estes, et al. S.B. No. 766
2	2	(Isaac)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the liability of a sport shooting range and the
8	8	regulation of firearms, ammunition, firearm supplies, and sport
9	9	shooting ranges.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. The heading to Chapter 128, Civil Practice and
12	12	Remedies Code, is amended to read as follows:
13	13	CHAPTER 128. LIMITATION ON SUITS AGAINST SPORT SHOOTING RANGE
14	14	OR FIREARMS OR AMMUNITION MANUFACTURER, TRADE
15	15	ASSOCIATION, OR SELLER
16	16	SECTION 2. Chapter 128, Civil Practice and Remedies Code,
17	17	is amended by designating Section 128.001 as Subchapter A, Chapter
18	18	128, Civil Practice and Remedies Code, and adding a heading to
19	19	Subchapter A to read as follows:
20	20	SUBCHAPTER A. SUIT BY GOVERNMENTAL UNIT
21	21	SECTION 3. Section 128.001, Civil Practice and Remedies
22	22	Code, is amended by amending Subsections (a) and (b) and adding
23	23	Subsection (f) to read as follows:
24	24	(a) In this section:
25	25	(1) "Governmental[, "governmental] unit" means:
26	26	(A) [(1)] a political subdivision of the state,
27	27	including a municipality or county; and
28	28	(B) [(2)] any other agency of government whose
29	29	authority is derived from the laws or constitution of this state.
30	30	(2) "Sport shooting range" has the meaning assigned by
31	31	Section 250.001, Local Government Code.
32	32	(b) Except as provided by Subsections [Subsection] (c) and
33	33	(f), a governmental unit may not bring suit against:
34	34	(1) a firearms or ammunition manufacturer, trade
35	35	association, or seller for recovery of damages resulting from, or
36	36	injunctive relief or abatement of a nuisance relating to, the
37	37	lawful design, manufacture, marketing, or sale of firearms or
38	38	ammunition to the public; or
39	39	(2) a sport shooting range, the owners or operators of
40	40	a sport shooting range, or the owners of real property on which a
41	41	sport shooting range is operated, for the lawful discharge of
42	42	firearms on the sport shooting range.
43	43	(f) Nothing in this section shall prohibit a governmental
44	44	unit from bringing an action against a sport shooting range, the
45	45	owners or operators of a sport shooting range, or the owners of real
46	46	property on which a sport shooting range is operating if the sport
47	47	shooting range began operation after September 1, 2011, and
48	48	operates exclusively within the governmental unit's geographical
49	49	limits, exclusive of the governmental unit's extraterritorial
50	50	jurisdiction:
51	51	(1) for injunctive relief to enforce a valid
52	52	ordinance, statute, or regulation; or
53	53	(2) to require the sport shooting range to comply with
54	54	generally accepted standards followed in the sport shooting range
55	55	industry in this state at the time of the sport shooting range's
56	56	construction.
57	57	SECTION 4. Chapter 128, Civil Practice and Remedies Code,
58	58	is amended by adding Subchapter B to read as follows:
59	59	SUBCHAPTER B. CIVIL ACTIONS
60	60	Sec. 128.051. DEFINITIONS. In this subchapter:
61	61	(1) "Claim" means any relief sought in a civil action,
62	62	including all forms of monetary recovery or injunctive relief.
63	63	(2) "Claimant" has the meaning assigned by Section
64	64	41.001.
65	65	(3) "Expert" means a person who is:
66	66	(A) giving opinion testimony about the
67	67	appropriate standard of care for a sport shooting range, an owner or
68	68	operator of a sport shooting range, or the owner of real property on
69	69	which a sport shooting range is operated, or the causal
70	70	relationship between the injury, harm, or damages claimed and the
71	71	alleged departure from the applicable standard of care; and
72	72	(B) qualified to render opinions on the standards
73	73	and causal relationship described by Paragraph (A) under the Texas
74	74	Rules of Evidence.
75	75	(4) "Expert report" means a written report by an
76	76	expert that provides a fair summary of the expert's opinions as of
77	77	the date of the report regarding applicable standards of care for
78	78	operation of a sport shooting range, the manner in which a defendant
79	79	failed to meet the standards, and the causal relationship between
80	80	that failure and the injury, harm, or damages claimed.
81	81	(5) "Sport shooting range" has the meaning assigned by
82	82	Section 250.001, Local Government Code.
83	83	Sec. 128.052. LIMITATION ON CIVIL ACTION AND RECOVERY OF
84	84	DAMAGES. (a) Except as provided by Subsection (b), a civil action
85	85	may not be brought against a sport shooting range, the owner or
86	86	operator of a sport shooting range, or the owner of the real
87	87	property on which a sport shooting range is operated for recovery of
88	88	damages resulting from, or injunctive relief or abatement of a
89	89	nuisance relating to, the discharge of firearms.
90	90	(b) Nothing in this section prohibits a civil action against
91	91	a sport shooting range, the owner or operator of a sport shooting
92	92	range, or the owner of the real property on which a sport shooting
93	93	range is operated for recovery of damages for:
94	94	(1) breach of contract for use of the real property on
95	95	which a sport shooting range is located;
96	96	(2) damage or harm to private property caused by the
97	97	discharge of firearms on a sport shooting range;
98	98	(3) personal injury or death caused by the discharge
99	99	of a firearm on a sport shooting range; or
100	100	(4) injunctive relief to enforce a valid ordinance,
101	101	statute, or regulation.
102	102	(c) Damages may be awarded, or an injunction may be
103	103	obtained, in a civil action brought under this section if the
104	104	claimant shows by a preponderance of the evidence, through the
105	105	testimony of one or more expert witnesses, that the sport shooting
106	106	range, the owner or operator of the sport shooting range, or the
107	107	owner of real property on which the sport shooting range is operated
108	108	deviated from the standard of care that is reasonably expected of an
109	109	ordinarily prudent sport shooting range, owner or operator of a
110	110	sport shooting range, or owner of real property on which a sport
111	111	shooting range is operated in the same or similar circumstances.
112	112	Sec. 128.053. EXPERT REPORT. (a) In a suit against a sport
113	113	shooting range, an owner or operator of a sport shooting range, or
114	114	the owner of real property on which a sport shooting range is
115	115	operated, a claimant shall, not later than the 90th day after the
116	116	date the original petition was filed, serve on each party or the
117	117	party's attorney one or more expert reports, with a curriculum
118	118	vitae of each expert listed in the report for each defendant against
119	119	whom a claim is asserted. The date for serving the report may be
120	120	extended by written agreement of the affected parties. Each
121	121	defendant whose conduct is implicated in a report must file and
122	122	serve any objection to the sufficiency of the report not later than
123	123	the 21st day after the date the report is served or all objections
124	124	are waived.
125	125	(b) If, as to a defendant, an expert report has not been
126	126	served within the period specified by Subsection (a), the court, on
127	127	the motion of the affected defendant, shall, subject to Subsection
128	128	(c), enter an order that:
129	129	(1) awards to the affected defendant attorney's fees
130	130	and costs of court incurred by the defendant; and
131	131	(2) dismisses the claim with prejudice with respect to
132	132	the affected defendant.
133	133	(c) If an expert report has not been served within the
134	134	period specified by Subsection (a) because elements of the report
135	135	are found deficient, the court may grant one extension of not more
136	136	than 30 days to the claimant in order to cure the deficiency. If the
137	137	claimant does not receive notice of the court's ruling granting the
138	138	extension until after the 90th day after the date the deadline has
139	139	passed, then the 30-day extension runs from the date the plaintiff
140	140	first receives the notice.
141	141	(d) Notwithstanding any other provision of this section, a
142	142	claimant may satisfy any requirement of this section for serving an
143	143	expert report by serving reports of separate experts regarding
144	144	different defendants or regarding different issues arising from the
145	145	conduct of a defendant, including issues of liability and
146	146	causation. Nothing in this section shall be construed to mean that
147	147	a single expert must address all liability and causation issues
148	148	with respect to all defendants or with respect to both liability and
149	149	causation issues for a defendant.
150	150	(e) A court shall grant a motion challenging the adequacy of
151	151	an expert report only if it appears to the court, after a hearing,
152	152	that the report does not represent an objective, good faith effort
153	153	to comply with the requirements of an expert report.
154	154	(f) Until a claimant has served the expert report and
155	155	curriculum vitae as required by Subsection (a), all discovery is
156	156	stayed except that after a claim is filed all claimants,
157	157	collectively, may take not more than two depositions before the
158	158	expert report is served as required by Subsection (a).
159	159	SECTION 5. Section 229.001, Local Government Code, is
160	160	amended by amending Subsections (a) and (b) and adding Subsection
161	161	(e) to read as follows:
162	162	(a) Notwithstanding any other law, including Section 43.002
163	163	of this code and Chapter 251, Agriculture Code, a [A] municipality
164	164	may not adopt regulations relating to:
165	165	(1) the transfer, private ownership, keeping,
166	166	transportation, licensing, or registration of firearms,
167	167	ammunition, or firearm supplies; or
168	168	(2) the discharge of a firearm at a sport shooting
169	169	range.
170	170	(b) Subsection (a) does not affect the authority a
171	171	municipality has under another law to:
172	172	(1) require residents or public employees to be armed
173	173	for personal or national defense, law enforcement, or another
174	174	lawful purpose;
175	175	(2) regulate the discharge of firearms within the
176	176	limits of the municipality, other than at a sport shooting range;
177	177	(3) regulate the use of property, the location of a
178	178	business, or uses at a business under the municipality's fire code,
179	179	zoning ordinance, or land-use regulations as long as the code,
180	180	ordinance, or regulations are not used to circumvent the intent of
181	181	Subsection (a) or Subdivision (5) of this subsection;
182	182	(4) regulate the use of firearms in the case of an
183	183	insurrection, riot, or natural disaster if the municipality finds
184	184	the regulations necessary to protect public health and safety;
185	185	(5) regulate the storage or transportation of
186	186	explosives to protect public health and safety, except that 25
187	187	pounds or less of black powder for each private residence and 50
188	188	pounds or less of black powder for each retail dealer are not
189	189	subject to regulation; [or]
190	190	(6) regulate the carrying of a firearm by a person
191	191	other than a person licensed to carry a concealed handgun under
192	192	Subchapter H, Chapter 411, Government Code, at a:
193	193	(A) public park;
194	194	(B) public meeting of a municipality, county, or
195	195	other governmental body;
196	196	(C) political rally, parade, or official
197	197	political meeting; or
198	198	(D) nonfirearms-related school, college, or
199	199	professional athletic event; or
200	200	(7) regulate the hours of operation of a sport
201	201	shooting range, except that the hours of operation may not be more
202	202	limited than the least limited hours of operation of any other
203	203	business in the municipality other than a business permitted or
204	204	licensed to sell or serve alcoholic beverages for on-premises
205	205	consumption.
206	206	(e) In this section, "sport shooting range" has the meaning
207	207	assigned by Section 250.001.
208	208	SECTION 6. Subtitle B, Title 7, Local Government Code, is
209	209	amended by adding Chapter 236 to read as follows:
210	210	CHAPTER 236. COUNTY REGULATION OF FIREARMS, AMMUNITION, FIREARM
211	211	SUPPLIES, AND SPORT SHOOTING RANGES
212	212	Sec. 236.001. DEFINITION. In this chapter, "sport shooting
213	213	range" has the meaning assigned by Section 250.001.
214	214	Sec. 236.002. FIREARMS; SPORT SHOOTING RANGE.
215	215	Notwithstanding any other law, including Chapter 251, Agriculture
216	216	Code, a county may not adopt regulations relating to:
217	217	(1) the transfer, private ownership, keeping,
218	218	transportation, licensing, or registration of firearms,
219	219	ammunition, or firearm supplies; or
220	220	(2) the discharge of a firearm at a sport shooting
221	221	range.
222	222	Sec. 236.003. REGULATION OF OUTDOOR SPORT SHOOTING RANGE.
223	223	Notwithstanding Section 236.002, a county may regulate the
224	224	discharge of a firearm at an outdoor sport shooting range as
225	225	provided by Subchapter B, Chapter 235.
226	226	SECTION 7. Subsection (a), Section 250.001, Local
227	227	Government Code, is amended to read as follows:
228	228	(a) In this section:
229	229	(1) "Association" or "private club" means an
230	230	association or private club that operates a sport shooting range at
231	231	which not fewer than 20 different individuals discharge firearms
232	232	each calendar year.
233	233	(2) "Sport[, "sport] shooting range" means a business
234	234	establishment, private club, or association that operates an area
235	235	for the discharge or other use of firearms for silhouette, skeet,
236	236	trap, black powder, target, self-defense, or similar recreational
237	237	shooting.
238	238	SECTION 8. The change in law made by this Act applies only
239	239	to a cause of action that accrues on or after the effective date of
240	240	this Act. A cause of action that accrues before the effective date
241	241	of this Act is governed by the law in effect immediately before the
242	242	effective date of this Act, and that law is continued in effect for
243	243	that purpose.
244	244	SECTION 9. This Act takes effect on September 1, 2011.