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A BILL TO BE ENTITLED
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AN ACT
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relating to procedures for asserting taking claims arising from the |
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enforcement of health and safety laws. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 5, Civil Practice and Remedies Code, is |
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amended by adding Chapter 112 to read as follows: |
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CHAPTER 112. PROCEDURES FOR TAKING CLAIMS ARISING FROM |
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ENFORCEMENT OF HEALTH AND SAFETY LAWS |
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Sec. 112.001. DEFINITIONS. |
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(a) In this chapter: |
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(1) "Affected parties" means the claimant and the |
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governmental entity who are directly affected by an act or |
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agreement required or permitted by this chapter and does not |
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include other parties to an action who are not directly affected by |
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that particular act or agreement. |
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(2) "Claimant" means a person, including a decedent's |
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estate, seeking recovery of damages or injunctive relief in a |
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taking claim. All persons claiming to have sustained damages as the |
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result of a taking are considered a single claimant. |
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(3) "Defendant" means a governmental entity against |
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whom a taking claim is asserted. The term includes a third-party |
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defendant, cross-defendant, or counterdefendant. |
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(4) "Economic damages" has the same meaning as in |
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Section 41.001. |
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(5) "Expert" means a person giving opinion testimony |
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who is qualified to do so under the Texas Rules of Evidence. |
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(6) "Expert report" means a written report by an |
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expert providing a fair summary of the expert's opinion(s) as of the |
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date of the report, which report shall provide: |
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(A) if the claim alleges that the taking has |
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denied the owner all economically viable use of the property, a |
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statement that the expert has concluded the taking has denied the |
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owner of such use, together with a statement of the facts on which |
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the expert relied in reaching the said conclusion; |
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(B) if the claim alleges that the taking has made |
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the property unusable for its intended purpose, a statement that |
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the expert has concluded the taking has made the property unusable |
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for its intended purpose, together with a statement of the facts on |
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which the expert relied in reaching the said conclusion; |
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(C) if the claim alleges that the taking has |
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interfered with the owner's investment-back expectations, a |
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statement that the expert has concluded the taking interfered with |
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such expectations, together with a statement of the facts on which |
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the expert relied in reaching the said conclusion; and |
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(D) if the claim alleges that an owner has |
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sustained economic damages as a result of the taking: |
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(i) a statement that the expert has |
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concluded the taking has resulted in economic damages sustained by |
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the owner as a result of the taking; |
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(ii) a good-faith estimate of the amount of |
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the said damages; |
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(iii) a statement of the facts on which the |
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expert relied in making the good-faith estimate; and |
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(iv) an explanation of why the said damages |
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are not de minimis when compared to the benefit, if any, to the |
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public resulting from the taking. |
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(7) "Governmental entity" has the same meaning as in |
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Section 2007.002, Government Code. |
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(8) "Owner" has the same meaning as in Section |
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2007.002, Government Code. |
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(9) "Taking" has the same meaning as in Section |
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2007.002, Government Code. |
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(10) "Taking claim" means a cause of action against a |
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governmental entity for a taking. |
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(b) Any legal term or word of art used in this chapter, not |
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otherwise defined in this chapter, shall have such meaning as is |
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consistent with common law. |
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Sec. 112.002. NOTICE OF TAKING CLAIM. |
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(a) Any person or his authorized agent asserting a taking |
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claim shall give written notice of such claim by certified mail, |
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return receipt requested, to the governmental entity against which |
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such claim is being made at least 60 days before the filing of a suit |
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in any court based upon a taking claim. |
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(b) The notice required by Subsection (a) shall: |
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(1) State the sender's mailing address; |
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(2) Describe in reasonable detail the facts supporting |
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the claim; and |
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(3) Be delivered in person, by third-party delivery, |
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or by certified mail, return receipt requested, to the person |
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described in Section 101.102(c) to receive service of citation in |
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suits under Chapter 101. |
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(c) In pleading subsequently filed in any court, each party |
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asserting a taking claim shall state that it has complied fully with |
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the provisions of this section and shall provide such evidence |
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thereof as the judge of the court may require to determine if the |
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provisions of this chapter have been met. |
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(d) Notice given as provided in this chapter shall toll the |
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applicable statute of limitations to and including a period of 75 |
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days following the giving of the notice, and this tolling shall |
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apply to all parties and potential parties. |
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Sec. 112.003. RESPONSE TO NOTICE OF TAKING CLAIM. |
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(a) No fewer than 45 days after receipt of a notice required |
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by Section 112.002(a), the governmental entity shall deliver to the |
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sender in person, by third-party delivery, or by certified mail, |
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return receipt requested, a response stating whether or not the |
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governmental entity contends in good faith that one or more of the |
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facts described by the claimant in the notice required by Section |
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112.002(a) were the result of the governmental entity's enforcement |
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of one or more laws enacted for the protection of public health or |
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safety and, if yes, identifying the said law or laws. |
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(b) If the response required by Subsection (a) does not |
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state that one or more of the facts described in the claimant's |
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notice were the result of the governmental entity's enforcement of |
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one or more laws enacted for the protection of public health or |
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safety, Section 112.004 does apply to the taking claim. |
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Sec. 112.004. EXPERT REPORT. |
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(a) If a pleading of a claimant filed in any court may be |
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fairly construed to make one or more of the allegations described in |
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Section 112.001(a)(6), the claimant shall, not later than the 120th |
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day after the date the original petition is filed, serve on each |
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party or the party's attorney one or more expert reports, with a |
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curriculum vitae of each expert listed in the report, for each |
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governmental entity against which a taking claim is asserted. The |
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date for serving the report may be extended by written agreement of |
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the affected parties. Each defendant whose conduct is implicated |
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in a report must file and serve any objection to the sufficiency of |
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the report not later than the 21st day after the date it was served, |
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failing which all objections are waived. |
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(b) If, as to a defendant, an expert report has not been |
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served within the period specified by Subsection (a), the court, on |
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the motion of the affected governmental entity, shall, subject to |
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Subsection (c), enter an order that: |
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(1) awards to the affected governmental entity |
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reasonable attorney's fees and costs of court incurred by the |
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governmental entity; and |
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(2) dismisses the claim with respect to the |
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governmental entity, with prejudice to the refiling of the claim. |
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(c) If an expert report has not been served within the |
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period specified by Subsection (a) because elements of the report |
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are found deficient, the court may grant one 30-day extension to the |
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claimant in order to cure the deficiency. If the claimant does not |
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receive notice of the court's ruling granting the extension until |
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after the 120-day deadline has passed, then the 30-day extension |
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shall run from the date the plaintiff first received the notice. |
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(d) Notwithstanding any other provision of this section, a |
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claimant may satisfy any requirement of this section for serving an |
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expert report by serving reports of separate experts regarding |
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different issues related to the taking claim. |
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(e) A court shall grant a motion challenging the adequacy of |
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an expert report only if it appears to the court, after hearing, |
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that the report does not represent a good faith effort to comply |
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with the definition of an expert report in Section 112.001. |
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(f) Until a claimant has served the expert report and |
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curriculum vitae as required by Subsection (a), all discovery in a |
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taking claim is stayed except for the acquisition by the claimant of |
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information by means of: |
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(1) written discovery as defined in Rule 192.7, Texas |
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Rules of Civil Procedure; |
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(2) depositions on written questions under Rule 200, |
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Texas Rules of Civil Procedure; and |
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(3) discovery from nonparties under Rule 205, Texas |
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Rules of Civil Procedure. |
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(g) Notwithstanding any other provision of this section, |
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after a taking claim is filed, all claimants, collectively, may |
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take not more than two depositions before the expert report is |
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served as required by Subsection (a). |
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Sec. 112.005. APPEAL FROM INTERLOCUTORY ORDER. |
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(a) A governmental entity may appeal from an interlocutory |
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order of a court that: |
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(1) denies a motion for summary judgment filed in good |
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faith by the government entity on one or more elements of a taking |
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claim; or |
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(2) denies a motion filed in good faith by the |
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governmental entity under Section 112.004(b). |
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(b) An interlocutory appeal under Subsection (a) stays all |
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other proceedings in the trial court pending resolution of that |
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appeal. |
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Sec. 112.006. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154 |
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applies to a taking claim. |
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SECTION 2. This Act takes effect September 1, 2013. |