Texas 2021 - 87th Regular

Texas House Bill HB2144 Compare Versions

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

Old	New	Differences
1	1	87R5454 AJA-F
2	2	By: Harris H.B. No. 2144
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the tort of public nuisance.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Title 4, Civil Practice and Remedies Code, is
10	10	amended by adding Chapter 100F to read as follows:
11	11	CHAPTER 100F. PUBLIC NUISANCE
12	12	Sec. 100F.001. PURPOSE; ABROGATION OF COMMON LAW;
13	13	CONFLICTS. (a) The purpose of this chapter is to ensure that the
14	14	tort of public nuisance is defined clearly and in a manner
15	15	consistent with its traditional scope for purposes of its use as a
16	16	cause of action in this state.
17	17	(b) This chapter abrogates the common law of public nuisance
18	18	and supersedes any other statute to the extent of a conflict. This
19	19	chapter provides the only remedies for the tort of public nuisance
20	20	in this state.
21	21	(c) This chapter does not affect:
22	22	(1) the availability of a remedy provided by Chapter
23	23	125 or another statute for conditions or activities involving
24	24	criminal conduct and designated by statute as a common nuisance or
25	25	public nuisance; or
26	26	(2) the authority of a governmental entity to take a
27	27	regulatory or enforcement action authorized by statute in
28	28	connection with a condition designated by statute as a public
29	29	nuisance.
30	30	Sec. 100F.002. DEFINITIONS. In this chapter:
31	31	(1) "Established public right" means a right, commonly
32	32	held by all members of the public, to the use of public land, air, or
33	33	water.
34	34	(2) "Government attorney" means an attorney regularly
35	35	employed on a salaried basis by this state or a political
36	36	subdivision of this state. The term does not include an attorney
37	37	hired on a contingency fee or hourly basis or an attorney hired on a
38	38	short-term or temporary basis, including a legal fellow, special
39	39	prosecutor, or other similar provisional position.
40	40	(3) "Public nuisance" means an unlawful condition that
41	41	violates an established public right.
42	42	(4) "Special injury" means an injury that is different
43	43	in kind, not just in degree, from an injury suffered by the public
44	44	at large.
45	45	(5) "Unlawful condition" means an ongoing
46	46	circumstance or effect of an instrumentality that is expressly
47	47	prohibited by the laws of this state.
48	48	Sec. 100F.003. LIABILITY. A person may be held liable for a
49	49	public nuisance only if the person causes an unlawful condition and
50	50	controls that unlawful condition at the time the condition violates
51	51	an established public right.
52	52	Sec. 100F.004. LIMITATIONS ON LIABILITY. (a) Conditions
53	53	arising from the following conduct are not considered unlawful
54	54	conditions for purposes of a public nuisance action in this state:
55	55	(1) an activity expressly authorized or encouraged by
56	56	a statute, ordinance, rule, or other similar measure adopted by
57	57	this state, a political subdivision of this state, the United
58	58	States, or a regulatory agency of this state or the United States;
59	59	and
60	60	(2) the lawful manufacturing, distributing, selling,
61	61	advertising, or promoting of a lawful product.
62	62	(b) Subsection (a) is not exhaustive. It may not be presumed
63	63	that a person may be held liable for a public nuisance arising from
64	64	conduct or conditions not listed in Subsection (a).
65	65	(c) The aggregation of multiple individual injuries or
66	66	private nuisances do not constitute violations of an established
67	67	public right for purposes of a public nuisance action.
68	68	Sec. 100F.005. ENFORCEMENT BY GOVERNMENT. (a) Except as
69	69	provided by Subsection (b), only the state or a political
70	70	subdivision of this state may bring a public nuisance action and may
71	71	do so only by a government attorney of the relevant jurisdiction.
72	72	(b) Absent a clear and convincing showing otherwise, it
73	73	shall be presumed that only a single governmental entity within
74	74	this state has standing to file or maintain a public nuisance action
75	75	relating to the real property or waterway to which the public
76	76	nuisance relates.
77	77	(c) To bring a public nuisance action, the state or the
78	78	political subdivision must have substantial ownership interest in
79	79	or authority over the real property or waterway, or ancillary space
80	80	related to the real property or waterway, to which the public
81	81	nuisance relates.
82	82	(d) A financial expenditure made by the state or a political
83	83	subdivision related to the remediation, abatement, or injunction of
84	84	an unlawful condition does not constitute an injury sufficient to
85	85	confer standing to file or maintain a public nuisance action.
86	86	Sec. 100F.006. ENFORCEMENT BY PRIVATE CITIZEN. (a) A
87	87	private citizen may maintain an action in the private citizen's
88	88	individual capacity to enjoin a public nuisance only if the private
89	89	citizen can show a special injury by clear and convincing evidence.
90	90	(b) As a matter of law, use of or damage to public land, air,
91	91	or water with only personal, spiritual, cultural, or emotional
92	92	significance to the individual is not a special injury for purposes
93	93	of a public nuisance claim.
94	94	(c) An individual may not seek relief for both a public
95	95	nuisance under the special injury exception provided by this
96	96	section and for a private nuisance for a harm related to the same
97	97	unlawful condition.
98	98	Sec. 100F.007. REMEDIES. (a) Remedies in a public nuisance
99	99	action are limited to:
100	100	(1) injunctive relief sufficient to prevent the
101	101	unlawful condition from violating an established public right; and
102	102	(2) monetary and nonmonetary resources necessary to
103	103	abate the public nuisance, if quantifiable and based on relevant
104	104	and reliable cost factors, which may not include:
105	105	(A) speculative estimates of current needs;
106	106	(B) the costs of future remediation;
107	107	(C) the costs of investigating and identifying
108	108	the existence of an unlawful condition;
109	109	(D) the costs of public services provided as a
110	110	result of the public nuisance; or
111	111	(E) damages of any kind, except for compensatory
112	112	damages for a special injury established in accordance with this
113	113	chapter.
114	114	(b) For purposes of Subsection (a)(2), the necessity of
115	115	monetary resources to abate the public nuisance must be established
116	116	by the plaintiff by clear and convincing evidence.
117	117	SECTION 2. The heading to Chapter 125, Civil Practice and
118	118	Remedies Code, is amended to read as follows:
119	119	CHAPTER 125. REMEDIES FOR CERTAIN CONDITIONS AND CONDUCT DESIGNATED
120	120	AS COMMON OR [AND] PUBLIC NUISANCE [NUISANCES]
121	121	SECTION 3. The changes in law made by this Act apply only to
122	122	a cause of action that accrues on or after the effective date of
123	123	this Act. A cause of action that accrued before the effective date
124	124	of this Act is governed by the law applicable to the cause of action
125	125	immediately before the effective date of this Act, and that law is
126	126	continued in effect for that purpose.
127	127	SECTION 4. This Act takes effect September 1, 2021.