| 5 | 3 | | |
|---|
| 6 | 4 | | |
|---|
| 7 | 5 | | A BILL TO BE ENTITLED |
|---|
| 8 | 6 | | AN ACT |
|---|
| 9 | 7 | | relating to recovery in a civil action of damages attributable to |
|---|
| 10 | 8 | | excavation activities. |
|---|
| 11 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|---|
| 12 | 10 | | SECTION 1. Section 251.008, Utilities Code, is amended to |
|---|
| 13 | 11 | | read as follows: |
|---|
| 14 | 12 | | Sec. 251.008. EFFECT ON CIVIL REMEDIES. Except as |
|---|
| 15 | 13 | | otherwise specifically provided by Section 251.204 or another |
|---|
| 16 | 14 | | provision of this chapter, this chapter, including Section 251.201, |
|---|
| 17 | 15 | | does not affect any civil remedy for personal injury or for property |
|---|
| 18 | 16 | | damage, including any damage to an underground facility. |
|---|
| 19 | 17 | | SECTION 2. The heading to Subchapter E, Chapter 251, |
|---|
| 20 | 18 | | Utilities Code, is amended to read as follows: |
|---|
| 21 | 19 | | SUBCHAPTER E. PENALTIES AND REMEDIES |
|---|
| 22 | 20 | | SECTION 3. Subchapter E, Chapter 251, Utilities Code, is |
|---|
| 23 | 21 | | amended by adding Section 251.204 to read as follows: |
|---|
| 24 | | - | Sec. 251.204. CIVIL ACTION. (a) An operator or excavator |
|---|
| 25 | | - | may file a civil action for damages arising from a violation of |
|---|
| 26 | | - | Section 251.151, 251.152, 251.154, 251.155, 251.157, or 251.159. |
|---|
| 27 | | - | (b) In a civil action filed under this section the |
|---|
| 28 | | - | substantially prevailing party may recover reasonable attorney's |
|---|
| 29 | | - | fees, court costs, and other expenses incurred in the action if: |
|---|
| 30 | | - | (1) the substantially prevailing party was |
|---|
| 31 | | - | represented by an attorney; |
|---|
| 32 | | - | (2) the substantially prevailing party presents the |
|---|
| 33 | | - | claim to the opposing party or the opposing party's authorized |
|---|
| 34 | | - | agent; and |
|---|
| 35 | | - | (3) payment for the just amount owed is not tendered |
|---|
| 36 | | - | before the expiration of the 30th day after the claim is presented. |
|---|
| 22 | + | Sec. 251.204. CIVIL ACTION. (a) A person may file a civil |
|---|
| 23 | + | action against an excavator that violates Section 251.151, 251.152, |
|---|
| 24 | + | or 251.159 for the reasonable and expected costs of damages and |
|---|
| 25 | + | repair to the operator of an underground facility, including court |
|---|
| 26 | + | costs. |
|---|
| 27 | + | (b) In assessing the damages, a trier of fact shall consider |
|---|
| 28 | + | the actual damages to the facility, the reasonable costs of repair, |
|---|
| 29 | + | the loss of revenue to the operator, the effect of the excavator's |
|---|
| 30 | + | actions on the public health and safety, and whether the violation |
|---|
| 31 | + | was intentional or reckless. |
|---|
| 39 | | - | (d) A civil action under this section is in addition to any |
|---|
| 34 | + | (d) In a civil action filed under this section, the operator |
|---|
| 35 | + | of an underground facility may seek to recover also necessary and |
|---|
| 36 | + | reasonable attorney's fees incurred in the action. In addition, if |
|---|
| 37 | + | the excavator was found to have caused the damages intentionally or |
|---|
| 38 | + | recklessly, the operator may seek to recover also treble the actual |
|---|
| 39 | + | damages. |
|---|
| 40 | + | (e) A civil action under this section is in addition to any |
|---|