84R1231 CAE-F
By: Miles H.B. No. 264
A BILL TO BE ENTITLED
AN ACT
relating to procedures for asserting taking claims against certain
governmental entities.
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 112 to read as follows:
CHAPTER 112. TAKING CLAIMS AGAINST CERTAIN GOVERNMENTAL ENTITIES
Sec. 112.001. DEFINITIONS. In this chapter:
(1) "Economic damages" has the meaning assigned by
Section 41.001.
(2) "Expert" means a person giving opinion testimony
who is qualified to do so under the Texas Rules of Evidence.
(3) "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.
(4) "Governmental action" includes an action
described by Section 2007.003, Government Code.
(5) "Governmental entity," "owner," and "taking" have
the meanings assigned by Section 2007.002, Government Code.
(6) "Taking claim" means a suit by an owner against a
governmental entity for damages or injunctive relief on the ground
that governmental action resulted in a taking.
Sec. 112.002. APPLICABILITY. This chapter applies to a
taking claim filed in this state in which the governmental entity is
an incorporated municipality with a population of more than two
million.
Sec. 112.003. NOTICE TO GOVERNMENTAL ENTITY. (a) Not later
than the 60th day before the date on which an owner brings a suit to
which this chapter applies, the owner must give written notice to
the governmental entity. 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).
(b) In a suit to which this chapter applies, 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 governmental entity of notice under this
section tolls any applicable statute of limitation until the 75th
day after the date the notice is received.
Sec. 112.004. REPLY BY GOVERNMENTAL ENTITY. Not later than
the 45th day after the date a governmental entity receives notice
under Section 112.003, the governmental entity shall deliver to the
owner, in person using a third-party delivery service or by
certified mail, return receipt requested, a reply stating:
(1) whether 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) whether the governmental action, if any, was
undertaken to enforce a law enacted to protect public health and
safety and, if so, specifically identifying that law.
Sec. 112.005. EXPERT REPORT. (a) In a suit on a taking
claim in which a governmental entity, in the reply required by
Section 112.004, asserts that the governmental action was
undertaken due to a condition or use of private real property
described by Section 112.004(1) or to enforce a public health and
safety law as described by Section 112.004(2), 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
governmental entity against which a taking claim is asserted. The
date for serving the report may be extended by written agreement of
the parties. Each governmental entity 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 governmental entity fails
to file the objection.
(b) If, as to a governmental entity, an expert report has
not been served within the period specified by Subsection (a), the
court, on the motion of the affected governmental entity, shall,
subject to Subsection (c), enter an order that:
(1) awards to the affected governmental entity
reasonable attorney's fees and costs of court incurred by the
governmental entity; and
(2) dismisses the claim with respect to the
governmental entity.
(c) If an expert report has not been served within the
period specified by Subsection (a) 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.
(d) 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.
(e) 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 for an expert report under Subsections (h)
and (i).
(f) Until an owner has served the expert report and
curriculum vitae as required by Subsection (a), 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.
(g) 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 (a).
(h) 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.
(i) 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.
Sec. 112.006. INTERLOCUTORY APPEAL. 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 this chapter has not
been served.
Sec. 112.007. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154
applies to a taking claim.
SECTION 2. 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 3. This Act takes effect September 1, 2015.