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Sec. 112.001. DEFINITIONS.
(a) In this chapter:
(1) "Affected parties" means the claimant and the
governmental entity who are directly affected by an act or agreement
required or permitted by this chapter and does not include other parties to
an action who are not directly affected by that particular act or
agreement.
(2) "Claimant" means a person, including a decedent's
estate, seeking recovery of damages or injunctive relief in a taking claim.
All persons claiming to have sustained damages as the result of a taking
are considered a single claimant.
(3) "Defendant" means a governmental entity against whom a
taking claim is asserted. The term includes a third-party defendant,
cross-defendant, or counterdefendant.
(4) "Economic
damages" has the same meaning as in Section 41.001.
(5) "Expert"
means a person giving opinion testimony who is qualified to do so under the
Texas Rules of Evidence.
(6) "Expert
report" means a written report by an expert providing a fair summary
of the expert's opinion(s) as of the date of the report, which report shall
provide:
(A) if the claim alleges
that the taking has denied the owner all economically viable use of the
property, a statement that the expert has concluded the taking has denied
the owner of such use, together with a statement of the facts on which the
expert relied in reaching the said conclusion;
(B) if the claim alleges
that the taking has made the property unusable for its intended purpose, a
statement that the expert has concluded the taking has made the property
unusable for its intended purpose, together with a statement of the facts
on which the expert relied in reaching the said conclusion;
(C) if the claim alleges
that the taking has interfered with the owner's investment-back expectations,
a statement that the expert has concluded the taking interfered with such
expectations, together with a statement of the facts on which the expert
relied in reaching the said conclusion; and
(D) if the claim alleges
that an owner has sustained economic damages as a result of the taking:
(i) a statement that the
expert has concluded the taking has resulted in economic damages sustained
by the owner as a result of the taking;
(ii) a good-faith estimate
of the amount of the said damages;
(iii) a statement of the
facts on which the expert relied in making the good-faith estimate; and
(iv) an explanation of why
the said damages are not de minimis when compared to the benefit, if any,
to the public resulting from the taking.
(7) "Governmental
entity" has the same meaning as in Section 2007.002, Government Code.
(8) "Owner" has the same meaning as in Section 2007.002,
Government Code.
(9) "Taking" has the same meaning as in Section 2007.002,
Government Code.
(10) "Taking
claim" means a cause of action
against a governmental entity for a taking.
(b) Any legal term or word of art used in this chapter, not otherwise
defined in this chapter, shall have such meaning as is consistent with
common law.
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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.
(See Sec 112.005(h)
below.)
(See Sec. 112.005(h)
below.)
(See Sec. 112.005(h)
below.)
(See Sec. 112.005(i)
below.)
(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.
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Sec. 112.002. NOTICE OF
TAKING CLAIM.
(a) Any person or his authorized agent asserting a
taking claim shall give written notice of such claim by certified mail, return receipt requested,
to the governmental entity against which such claim is being made at least
60 days before the filing of a suit in any court based upon a taking claim.
(b) The notice required by
Subsection (a) shall:
(1) State the sender's
mailing address;
(2) Describe in reasonable
detail the facts supporting the claim; and
(3) Be delivered in
person, by third-party delivery, or by certified mail, return receipt
requested, to the person described in Section 101.102(c) to receive service
of citation in suits under Chapter 101.
(c) In pleading subsequently filed in any court, each party asserting a taking claim shall
state that it has complied fully with the provisions of this section and
shall provide such evidence thereof as the
judge of the court may require to determine if the provisions of this
chapter have been met.
(d) Notice given as provided in this chapter
shall toll the applicable statute of limitations to and including a period
of 75 days following the giving of the
notice, and this tolling shall apply to all parties and potential parties.
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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.
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Sec. 112.003. RESPONSE TO
NOTICE OF TAKING CLAIM.
(a) No fewer than 45 days
after receipt of a notice required by Section 112.002(a), the governmental
entity shall deliver to the sender in person, by third-party delivery, or
by certified mail, return receipt requested, a response stating
whether or not the governmental entity contends in good faith that
one or more of the facts described by the claimant in the notice required
by Section 112.002(a) were the result of the governmental entity's
enforcement of one or more laws enacted for the protection of public
health or safety and, if yes, identifying the said law or laws.
(b) If the response required by Subsection (a) does not state that
one or more of the facts described in the claimant's notice were the result
of the governmental entity's enforcement of one or more laws enacted for
the protection of public health or safety, Section 112.004 does apply to
the taking claim.
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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:
(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.
(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
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Sec. 112.004. EXPERT
REPORT.
(a) If a pleading of a claimant filed in any court may be fairly
construed to make one or more of the allegations described in Section
112.001(a)(6), the claimant
shall, not later than the 120th day after the date the original petition 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 affected
parties. Each defendant 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 it was served, failing which all objections are
waived.
(b) If, as to a defendant,
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, with
prejudice to the refiling of the claim.
(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 claimant in order to cure the deficiency. If the claimant
does not receive notice of the court's ruling granting the extension until
after the 120-day deadline has passed, then the 30-day extension shall run
from the date the plaintiff first received the notice.
(d) Notwithstanding any
other provision of this section, a claimant 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 hearing, that the report does not represent a good faith
effort to comply with the definition of an expert report in Section
112.001.
(f) Until a claimant 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 claimant 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
claimants, collectively, may take not more than two depositions before the
expert report is served as required by Subsection (a).
(See Sec.
112.001(a)(6)(A)-(C) above.)
(See Sec. 112.001(a)(6)(D)
above.)
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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 of 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.
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