Texas 2013 - 83rd Regular

Texas House Bill HB2930 Compare Versions

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1	1	83R22010 TJS-F
2	2	By: Miles H.B. No. 2930
3	3	Substitute the following for H.B. No. 2930:
4	4	By: King of Hemphill C.S.H.B. No. 2930
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to procedures for asserting taking claims against certain
10	10	governmental entities.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Title 5, Civil Practice and Remedies Code, is
13	13	amended by adding Chapter 112 to read as follows:
14	14	CHAPTER 112. CERTAIN TAKING CLAIMS AGAINST GOVERNMENTAL ENTITIES
15	15	Sec. 112.001. DEFINITIONS. In this chapter:
16	16	(1) "Economic damages" has the meaning assigned by
17	17	Section 41.001.
18	18	(2) "Expert" means a person giving opinion testimony
19	19	who is qualified to do so under the Texas Rules of Evidence.
20	20	(3) "Expert report" means a written report by an
21	21	expert providing a fair summary of the expert's opinion as of the
22	22	date of the report.
23	23	(4) "Governmental action" includes an action
24	24	described by Section 2007.003, Government Code.
25	25	(5) "Governmental entity," "owner," and "taking" have
26	26	the meanings assigned by Section 2007.002, Government Code.
27	27	(6) "Taking claim" means a suit by an owner against a
28	28	governmental entity for damages or injunctive relief on the ground
29	29	that governmental action resulted in a taking.
30	30	Sec. 112.002. APPLICABILITY. This chapter applies to a
31	31	taking claim filed in this state in which the governmental entity is
32	32	an incorporated municipality with a population of more than two
33	33	million.
34	34	Sec. 112.003. NOTICE TO GOVERNMENTAL ENTITY. (a) Not later
35	35	than the 60th day before the date on which an owner brings a suit to
36	36	which this chapter applies, the owner must give written notice to
37	37	the governmental entity. The notice must:
38	38	(1) state the owner's mailing address;
39	39	(2) describe in reasonable detail the facts supporting
40	40	the owner's claim; and
41	41	(3) be delivered in person using a third-party
42	42	delivery service or sent by certified mail, return receipt
43	43	requested, to the person on whom citation would be served in a suit
44	44	under Section 101.102(c).
45	45	(b) In a suit to which this chapter applies, the owner's
46	46	pleadings must include a statement that the owner has complied with
47	47	the notice requirements of this section and provide evidence of a
48	48	receipt issued by a third-party delivery service or a return
49	49	receipt, as applicable.
50	50	(c) Receipt by a governmental entity of notice under this
51	51	section tolls any applicable statute of limitation until the 75th
52	52	day after the date the notice is received.
53	53	Sec. 112.004. REPLY BY GOVERNMENTAL ENTITY. Not later than
54	54	the 45th day after the date a governmental entity receives notice
55	55	under Section 112.003, the governmental entity shall deliver to the
56	56	owner, in person using a third-party delivery service or by
57	57	certified mail, return receipt requested, a reply stating:
58	58	(1) whether the governmental action, if any, was
59	59	undertaken due to a condition or use of the owner's private real
60	60	property that constituted a public or private nuisance as defined
61	61	by background principles of nuisance and property law of this
62	62	state; or
63	63	(2) whether the governmental action, if any, was
64	64	undertaken to enforce a law enacted to protect public health and
65	65	safety and, if so, specifically identifying that law.
66	66	Sec. 112.005. EXPERT REPORT. (a) In a suit on a taking
67	67	claim in which a governmental entity, in the reply required by
68	68	Section 112.004, asserts that the governmental action was
69	69	undertaken due to a condition or use of private real property
70	70	described by Section 112.004(1) or to enforce a public health and
71	71	safety law as described by Section 112.004(2), the owner shall, not
72	72	later than the 120th day after the date the suit is filed, serve on
73	73	each party or the party's attorney one or more expert reports, with
74	74	a curriculum vitae of each expert listed in the report, for each
75	75	governmental entity against which a taking claim is asserted. The
76	76	date for serving the report may be extended by written agreement of
77	77	the parties. Each governmental entity whose conduct is implicated
78	78	in a report must file and serve any objection to the sufficiency of
79	79	the report not later than the 21st day after the date the report was
80	80	served. All objections are waived if the governmental entity fails
81	81	to file the objection.
82	82	(b) If, as to a governmental entity, an expert report has
83	83	not been served within the period specified by Subsection (a), the
84	84	court, on the motion of the affected governmental entity, shall,
85	85	subject to Subsection (c), enter an order that:
86	86	(1) awards to the affected governmental entity
87	87	reasonable attorney's fees and costs of court incurred by the
88	88	governmental entity; and
89	89	(2) dismisses the claim with respect to the
90	90	governmental entity.
91	91	(c) If an expert report has not been served within the
92	92	period specified by Subsection (a) because elements of the report
93	93	are found deficient, the court may grant one 30-day extension to the
94	94	owner in order to cure the deficiency. If the owner does not receive
95	95	notice of the court's ruling granting the extension until after the
96	96	120-day deadline has passed, the 30-day extension shall run from
97	97	the date the owner first received the notice.
98	98	(d) Notwithstanding any other provision of this section, an
99	99	owner may satisfy any requirement of this section for serving an
100	100	expert report by serving reports of separate experts regarding
101	101	different issues related to the taking claim.
102	102	(e) A court shall grant a motion challenging the adequacy of
103	103	an expert report only if it appears to the court, after a hearing,
104	104	that the report does not represent a good faith effort to comply
105	105	with the requirements of an expert report under Subsections (h) and
106	106	(i).
107	107	(f) Until an owner has served the expert report and
108	108	curriculum vitae as required by Subsection (a), all discovery in a
109	109	taking claim is stayed except for the acquisition by the owner of
110	110	information by means of:
111	111	(1) written discovery as defined in Rule 192.7, Texas
112	112	Rules of Civil Procedure;
113	113	(2) depositions on written questions under Rule 200,
114	114	Texas Rules of Civil Procedure; and
115	115	(3) discovery from nonparties under Rule 205, Texas
116	116	Rules of Civil Procedure.
117	117	(g) Notwithstanding any other provision of this section,
118	118	after a taking claim is filed, all owners, collectively, may not
119	119	take more than two depositions before the expert report is served as
120	120	required by Subsection (a).
121	121	(h) At a minimum, an expert report under this section must
122	122	state the expert's conclusion, together with the facts on which the
123	123	expert relied in reaching that conclusion, with respect to whether
124	124	the alleged taking:
125	125	(1) has denied the owner all economically viable use
126	126	of the property, if that is the basis for the owner's claim;
127	127	(2) has made the private real property unusable for
128	128	its intended purpose, if that is the basis for the owner's claim; or
129	129	(3) has interfered with the owner's investment-backed
130	130	expectations, if that is the basis for the owner's claim.
131	131	(i) If an owner's taking claim alleges that the owner has
132	132	sustained economic damages as the result of an alleged taking, the
133	133	expert report under this section must state the expert's
134	134	conclusion, together with the facts on which the expert relied in
135	135	reaching that conclusion, regarding:
136	136	(1) whether the alleged taking has resulted in
137	137	economic damages to the owner as alleged;
138	138	(2) the amount of economic damages, if any; and
139	139	(3) whether the damages are de minimis compared to a
140	140	public benefit, if any, that resulted from the taking.
141	141	Sec. 112.006. INTERLOCUTORY APPEAL. A governmental entity
142	142	may appeal from an interlocutory order of a court that denies a
143	143	motion for summary judgment filed in good faith by the governmental
144	144	entity on the ground that:
145	145	(1) the owner has not met the owner's burden of
146	146	production regarding one or more elements of the taking claim; or
147	147	(2) an expert report required by this chapter has not
148	148	been served.
149	149	Sec. 112.007. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154
150	150	applies to a taking claim.
151	151	SECTION 2. The change in law made by this Act applies only
152	152	to an action on a taking claim with respect to a taking alleged to
153	153	have occurred on or after the effective date of this Act. An action
154	154	on a taking claim with respect to a taking alleged to have occurred
155	155	before the effective date of this Act is governed by the law as it
156	156	existed immediately before that date, and the former law is
157	157	continued in effect for that purpose.
158	158	SECTION 3. This Act takes effect September 1, 2013.