Texas 2015 - 84th Regular

Texas House Bill HB264 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R1231 CAE-F
2	2	By: Miles H.B. No. 264
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to procedures for asserting taking claims against certain
8	8	governmental entities.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Title 5, Civil Practice and Remedies Code, is
11	11	amended by adding Chapter 112 to read as follows:
12	12	CHAPTER 112. TAKING CLAIMS AGAINST CERTAIN GOVERNMENTAL ENTITIES
13	13	Sec. 112.001. DEFINITIONS. In this chapter:
14	14	(1) "Economic damages" has the meaning assigned by
15	15	Section 41.001.
16	16	(2) "Expert" means a person giving opinion testimony
17	17	who is qualified to do so under the Texas Rules of Evidence.
18	18	(3) "Expert report" means a written report by an
19	19	expert providing a fair summary of the expert's opinion as of the
20	20	date of the report.
21	21	(4) "Governmental action" includes an action
22	22	described by Section 2007.003, Government Code.
23	23	(5) "Governmental entity," "owner," and "taking" have
24	24	the meanings assigned by Section 2007.002, Government Code.
25	25	(6) "Taking claim" means a suit by an owner against a
26	26	governmental entity for damages or injunctive relief on the ground
27	27	that governmental action resulted in a taking.
28	28	Sec. 112.002. APPLICABILITY. This chapter applies to a
29	29	taking claim filed in this state in which the governmental entity is
30	30	an incorporated municipality with a population of more than two
31	31	million.
32	32	Sec. 112.003. NOTICE TO GOVERNMENTAL ENTITY. (a) Not later
33	33	than the 60th day before the date on which an owner brings a suit to
34	34	which this chapter applies, the owner must give written notice to
35	35	the governmental entity. The notice must:
36	36	(1) state the owner's mailing address;
37	37	(2) describe in reasonable detail the facts supporting
38	38	the owner's claim; and
39	39	(3) be delivered in person using a third-party
40	40	delivery service or sent by certified mail, return receipt
41	41	requested, to the person on whom citation would be served in a suit
42	42	under Section 101.102(c).
43	43	(b) In a suit to which this chapter applies, the owner's
44	44	pleadings must include a statement that the owner has complied with
45	45	the notice requirements of this section and provide evidence of a
46	46	receipt issued by a third-party delivery service or a return
47	47	receipt, as applicable.
48	48	(c) Receipt by a governmental entity of notice under this
49	49	section tolls any applicable statute of limitation until the 75th
50	50	day after the date the notice is received.
51	51	Sec. 112.004. REPLY BY GOVERNMENTAL ENTITY. Not later than
52	52	the 45th day after the date a governmental entity receives notice
53	53	under Section 112.003, the governmental entity shall deliver to the
54	54	owner, in person using a third-party delivery service or by
55	55	certified mail, return receipt requested, a reply stating:
56	56	(1) whether the governmental action, if any, was
57	57	undertaken due to a condition or use of the owner's private real
58	58	property that constituted a public or private nuisance as defined
59	59	by background principles of nuisance and property law of this
60	60	state; or
61	61	(2) whether the governmental action, if any, was
62	62	undertaken to enforce a law enacted to protect public health and
63	63	safety and, if so, specifically identifying that law.
64	64	Sec. 112.005. EXPERT REPORT. (a) In a suit on a taking
65	65	claim in which a governmental entity, in the reply required by
66	66	Section 112.004, asserts that the governmental action was
67	67	undertaken due to a condition or use of private real property
68	68	described by Section 112.004(1) or to enforce a public health and
69	69	safety law as described by Section 112.004(2), the owner shall, not
70	70	later than the 120th day after the date the suit is filed, serve on
71	71	each party or the party's attorney one or more expert reports, with
72	72	a curriculum vitae of each expert listed in the report, for each
73	73	governmental entity against which a taking claim is asserted. The
74	74	date for serving the report may be extended by written agreement of
75	75	the parties. Each governmental entity whose conduct is implicated
76	76	in a report must file and serve any objection to the sufficiency of
77	77	the report not later than the 21st day after the date the report was
78	78	served. All objections are waived if the governmental entity fails
79	79	to file the objection.
80	80	(b) If, as to a governmental entity, an expert report has
81	81	not been served within the period specified by Subsection (a), the
82	82	court, on the motion of the affected governmental entity, shall,
83	83	subject to Subsection (c), enter an order that:
84	84	(1) awards to the affected governmental entity
85	85	reasonable attorney's fees and costs of court incurred by the
86	86	governmental entity; and
87	87	(2) dismisses the claim with respect to the
88	88	governmental entity.
89	89	(c) If an expert report has not been served within the
90	90	period specified by Subsection (a) because elements of the report
91	91	are found deficient, the court may grant one 30-day extension to the
92	92	owner in order to cure the deficiency. If the owner does not receive
93	93	notice of the court's ruling granting the extension until after the
94	94	120-day deadline has passed, the 30-day extension shall run from
95	95	the date the owner first received the notice.
96	96	(d) Notwithstanding any other provision of this section, an
97	97	owner may satisfy any requirement of this section for serving an
98	98	expert report by serving reports of separate experts regarding
99	99	different issues related to the taking claim.
100	100	(e) A court shall grant a motion challenging the adequacy of
101	101	an expert report only if it appears to the court, after a hearing,
102	102	that the report does not represent a good faith effort to comply
103	103	with the requirements for an expert report under Subsections (h)
104	104	and (i).
105	105	(f) Until an owner has served the expert report and
106	106	curriculum vitae as required by Subsection (a), all discovery in a
107	107	taking claim is stayed except for the acquisition by the owner of
108	108	information by means of:
109	109	(1) written discovery as defined in Rule 192.7, Texas
110	110	Rules of Civil Procedure;
111	111	(2) depositions on written questions under Rule 200,
112	112	Texas Rules of Civil Procedure; and
113	113	(3) discovery from nonparties under Rule 205, Texas
114	114	Rules of Civil Procedure.
115	115	(g) Notwithstanding any other provision of this section,
116	116	after a taking claim is filed, all owners, collectively, may not
117	117	take more than two depositions before the expert report is served as
118	118	required by Subsection (a).
119	119	(h) At a minimum, an expert report under this section must
120	120	state the expert's conclusion, together with the facts on which the
121	121	expert relied in reaching that conclusion, with respect to whether
122	122	the alleged taking:
123	123	(1) has denied the owner all economically viable use
124	124	of the property, if that is the basis for the owner's claim;
125	125	(2) has made the private real property unusable for
126	126	its intended purpose, if that is the basis for the owner's claim; or
127	127	(3) has interfered with the owner's investment-backed
128	128	expectations, if that is the basis for the owner's claim.
129	129	(i) If an owner's taking claim alleges that the owner has
130	130	sustained economic damages as the result of an alleged taking, the
131	131	expert report under this section must state the expert's
132	132	conclusion, together with the facts on which the expert relied in
133	133	reaching that conclusion, regarding:
134	134	(1) whether the alleged taking has resulted in
135	135	economic damages to the owner as alleged;
136	136	(2) the amount of economic damages, if any; and
137	137	(3) whether the damages are de minimis compared to a
138	138	public benefit, if any, that resulted from the taking.
139	139	Sec. 112.006. INTERLOCUTORY APPEAL. A governmental entity
140	140	may appeal from an interlocutory order of a court that denies a
141	141	motion for summary judgment filed in good faith by the governmental
142	142	entity on the ground that:
143	143	(1) the owner has not met the owner's burden of
144	144	production regarding one or more elements of the taking claim; or
145	145	(2) an expert report required by this chapter has not
146	146	been served.
147	147	Sec. 112.007. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154
148	148	applies to a taking claim.
149	149	SECTION 2. The change in law made by this Act applies only
150	150	to an action on a taking claim with respect to a taking alleged to
151	151	have occurred on or after the effective date of this Act. An action
152	152	on a taking claim with respect to a taking alleged to have occurred
153	153	before the effective date of this Act is governed by the law as it
154	154	existed immediately before that date, and the former law is
155	155	continued in effect for that purpose.
156	156	SECTION 3. This Act takes effect September 1, 2015.