By: Fraser S.B. No. 958
(Keffer)
A BILL TO BE ENTITLED
AN ACT
relating to the liability of certain special-purpose districts or
authorities providing water to a purchaser for the generation of
electricity.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 5, Civil Practice and Remedies Code, is
amended by adding Chapter 113 to read as follows:
CHAPTER 113. WATER SUPPLY CONTRACT CLAIM AGAINST LOCAL DISTRICT
OR AUTHORITY
Sec. 113.001. DEFINITIONS. In this chapter:
(1) "Adjudicating a claim" means the bringing of a
civil suit and prosecution to final judgment in court and includes
the bringing of an authorized arbitration proceeding and
prosecution to final resolution in accordance with any mandatory
procedures established in the contract that is the subject of the
dispute under Section 113.002.
(2) "Local district or authority" means a
special-purpose district or authority, including a levee
improvement district, drainage district, irrigation district,
water improvement district, water control and improvement
district, water control and preservation district, fresh water
supply district, navigation district, special utility district,
and river authority, and any conservation and reclamation district.
Sec. 113.002. WAIVER OF IMMUNITY TO SUIT FOR CLAIM
REGARDING WATER SUPPLY CONTRACT. A local district or authority
that enters into a written contract stating the essential terms
under which the local district or authority is to provide water to a
purchaser for use in connection with the generation of electricity
waives sovereign immunity to suit for the purpose of adjudicating a
claim that the local district or authority breached the contract by
not providing water, or access to water, according to the
contract's terms.
Sec. 113.003. REMEDIES. (a) Except as provided by
Subsection (b), remedies awarded in a proceeding adjudicating a
claim under this chapter may include any remedy available for
breach of contract that is not inconsistent with the terms of the
contract, including the cost of cover and specific performance.
(b) Remedies awarded in a proceeding adjudicating a claim
under this chapter may not include consequential or exemplary
damages.
Sec. 113.004. NO WAIVER OF OTHER DEFENSES. This chapter
does not waive a defense or a limitation on damages available to a
party to a contract other than sovereign immunity to suit.
Sec. 113.005. NO WAIVER OF IMMUNITY TO SUIT IN FEDERAL
COURT. This chapter does not waive sovereign immunity to suit in
federal court.
Sec. 113.006. NO WAIVER OF IMMUNITY TO SUIT FOR TORT
LIABILITY. This chapter does not waive sovereign immunity to suit
for a cause of action for a negligent or intentional tort.
Sec. 113.007. NO NEW OR ADDITIONAL WATER RIGHTS. This
chapter does not grant any user of water any new or additional
rights to water or any new or additional priority to water rights.
This chapter does not confer any rights inconsistent with the terms
of the contract that is the subject of a dispute under Section
113.002.
Sec. 113.008. AUTHORITY OF REGULATORY AGENCIES; COMPLIANCE
WITH REGULATORY ORDER. (a) This chapter does not limit the
authority of the Texas Commission on Environmental Quality or any
other state regulatory agency.
(b) Compliance with an order of the Texas Commission on
Environmental Quality or any other state regulatory agency that
expressly curtails water delivery to a specific electric generating
facility is not considered a breach of contract for the purposes of
this chapter.
Sec. 113.009. NO THIRD-PARTY BENEFICIARIES. (a) This
chapter waives sovereign immunity only for the benefit of:
(1) a party to the contract that is the subject of a
dispute under Section 113.002; or
(2) the assignee of a party to the contract, if
assignment of an interest in the contract is permitted by the terms
of the contract.
(b) Except for an assignment described by Subsection
(a)(2), a party authorized by this chapter to sue for a cause of
action of breach of contract may not transfer or assign that cause
of action to any person.
SECTION 2. (a) The change in law made by this Act applies
only to a cause of action that accrues on or after the effective
date of this Act. A cause of action that accrues before the
effective date of this Act is governed by the law in effect
immediately before that date, and that law is continued in effect
for that purpose.
(b) The change in law made by this Act does not waive
sovereign immunity to suit for any claims related to or arising out
of a contract that was the subject of litigation that was
adjudicated or dismissed on the basis of sovereign immunity prior
to the effective date of this Act.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.