83R6542 TJS-F
By: Coleman H.B. No. 3320
A BILL TO BE ENTITLED
AN ACT
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; [and]
(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 [Subsection] (a)(3) and (a)(5);
(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;
(6) [an action taken to prohibit or restrict a
condition or use of private real property if the governmental
entity proves that the condition or use constitutes a public or
private nuisance as defined by background principles of nuisance
and property law of this state;
[(7)] an action taken out of a reasonable good faith
belief that the action is necessary to prevent a grave and immediate
threat to life or property;
(7) [(8)] a formal exercise of the power of eminent
domain;
(8) [(9)] an action taken under a state mandate to
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) [(10)] a rule or proclamation adopted for the
purpose of regulating water safety, hunting, fishing, or control of
nonindigenous or exotic aquatic resources;
(10) [(11)] an action taken by a political
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
[subdivisions's] statutory authority to prevent waste or protect
rights of owners of interest in groundwater; or
(D) to prevent subsidence;
(11) [(12)] the appraisal of property for purposes of
ad valorem taxation; or
(12) [(13) an action that:
[(A) is taken in response to a real and
substantial threat to public health and safety;
[(B) is designed to significantly advance the
health and safety purpose; and
[(C) does not impose a greater burden than is
necessary to achieve the health and safety purpose; or
[(14)] an action or rulemaking undertaken by the Public
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.