87R5454 AJA-F
By: Harris H.B. No. 2144
A BILL TO BE ENTITLED
AN ACT
relating to the tort of public nuisance.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 100F to read as follows:
CHAPTER 100F. PUBLIC NUISANCE
Sec. 100F.001. PURPOSE; ABROGATION OF COMMON LAW;
CONFLICTS. (a) The purpose of this chapter is to ensure that the
tort of public nuisance is defined clearly and in a manner
consistent with its traditional scope for purposes of its use as a
cause of action in this state.
(b) This chapter abrogates the common law of public nuisance
and supersedes any other statute to the extent of a conflict. This
chapter provides the only remedies for the tort of public nuisance
in this state.
(c) This chapter does not affect:
(1) the availability of a remedy provided by Chapter
125 or another statute for conditions or activities involving
criminal conduct and designated by statute as a common nuisance or
public nuisance; or
(2) the authority of a governmental entity to take a
regulatory or enforcement action authorized by statute in
connection with a condition designated by statute as a public
nuisance.
Sec. 100F.002. DEFINITIONS. In this chapter:
(1) "Established public right" means a right, commonly
held by all members of the public, to the use of public land, air, or
water.
(2) "Government attorney" means an attorney regularly
employed on a salaried basis by this state or a political
subdivision of this state. The term does not include an attorney
hired on a contingency fee or hourly basis or an attorney hired on a
short-term or temporary basis, including a legal fellow, special
prosecutor, or other similar provisional position.
(3) "Public nuisance" means an unlawful condition that
violates an established public right.
(4) "Special injury" means an injury that is different
in kind, not just in degree, from an injury suffered by the public
at large.
(5) "Unlawful condition" means an ongoing
circumstance or effect of an instrumentality that is expressly
prohibited by the laws of this state.
Sec. 100F.003. LIABILITY. A person may be held liable for a
public nuisance only if the person causes an unlawful condition and
controls that unlawful condition at the time the condition violates
an established public right.
Sec. 100F.004. LIMITATIONS ON LIABILITY. (a) Conditions
arising from the following conduct are not considered unlawful
conditions for purposes of a public nuisance action in this state:
(1) an activity expressly authorized or encouraged by
a statute, ordinance, rule, or other similar measure adopted by
this state, a political subdivision of this state, the United
States, or a regulatory agency of this state or the United States;
and
(2) the lawful manufacturing, distributing, selling,
advertising, or promoting of a lawful product.
(b) Subsection (a) is not exhaustive. It may not be presumed
that a person may be held liable for a public nuisance arising from
conduct or conditions not listed in Subsection (a).
(c) The aggregation of multiple individual injuries or
private nuisances do not constitute violations of an established
public right for purposes of a public nuisance action.
Sec. 100F.005. ENFORCEMENT BY GOVERNMENT. (a) Except as
provided by Subsection (b), only the state or a political
subdivision of this state may bring a public nuisance action and may
do so only by a government attorney of the relevant jurisdiction.
(b) Absent a clear and convincing showing otherwise, it
shall be presumed that only a single governmental entity within
this state has standing to file or maintain a public nuisance action
relating to the real property or waterway to which the public
nuisance relates.
(c) To bring a public nuisance action, the state or the
political subdivision must have substantial ownership interest in
or authority over the real property or waterway, or ancillary space
related to the real property or waterway, to which the public
nuisance relates.
(d) A financial expenditure made by the state or a political
subdivision related to the remediation, abatement, or injunction of
an unlawful condition does not constitute an injury sufficient to
confer standing to file or maintain a public nuisance action.
Sec. 100F.006. ENFORCEMENT BY PRIVATE CITIZEN. (a) A
private citizen may maintain an action in the private citizen's
individual capacity to enjoin a public nuisance only if the private
citizen can show a special injury by clear and convincing evidence.
(b) As a matter of law, use of or damage to public land, air,
or water with only personal, spiritual, cultural, or emotional
significance to the individual is not a special injury for purposes
of a public nuisance claim.
(c) An individual may not seek relief for both a public
nuisance under the special injury exception provided by this
section and for a private nuisance for a harm related to the same
unlawful condition.
Sec. 100F.007. REMEDIES. (a) Remedies in a public nuisance
action are limited to:
(1) injunctive relief sufficient to prevent the
unlawful condition from violating an established public right; and
(2) monetary and nonmonetary resources necessary to
abate the public nuisance, if quantifiable and based on relevant
and reliable cost factors, which may not include:
(A) speculative estimates of current needs;
(B) the costs of future remediation;
(C) the costs of investigating and identifying
the existence of an unlawful condition;
(D) the costs of public services provided as a
result of the public nuisance; or
(E) damages of any kind, except for compensatory
damages for a special injury established in accordance with this
chapter.
(b) For purposes of Subsection (a)(2), the necessity of
monetary resources to abate the public nuisance must be established
by the plaintiff by clear and convincing evidence.
SECTION 2. The heading to Chapter 125, Civil Practice and
Remedies Code, is amended to read as follows:
CHAPTER 125. REMEDIES FOR CERTAIN CONDITIONS AND CONDUCT DESIGNATED
AS COMMON OR [AND] PUBLIC NUISANCE [NUISANCES]
SECTION 3. The changes in law made by this Act apply only to
a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrued before the effective date
of this Act is governed by the law applicable to the cause of action
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2021.