83R6542 TJS-F

By: Coleman H.B. No. 3320

A BILL TO BE ENTITLED

AN ACT

relating to certain taking claims against certain governmental entities.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 2007.003(a) and (b), Government Code, are amended to read as follows:

(a) This chapter applies only to the following governmental actions:

(1) the adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure;

(2) an action that imposes a physical invasion or requires a dedication or exaction of private real property;

(3) an action by a municipality that has effect in the extraterritorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces an ordinance, rule, regulation, or plan that does not impose identical requirements or restrictions in the entire extraterritorial jurisdiction of the municipality; [and]

(4) enforcement of a governmental action listed in Subdivisions (1) through (3), whether the enforcement of the governmental action is accomplished through the use of permitting, citations, orders, judicial or quasi-judicial proceedings, or other similar means; and

(5) subject to Subchapter D, an action listed in Subdivisions (1) through (3), including an action by a municipality or other political subdivision, that is taken:

(A) to prohibit or restrict a condition or use of private real property on the ground that the condition or use constitutes a public or private nuisance as defined by background principles of nuisance and property law of this state; or

(B) in response to a threat to public health and safety and designed to significantly advance the health and safety purpose without imposing a greater burden than is necessary to achieve the health and safety purpose.

(b) This chapter does not apply to the following governmental actions:

(1) an action by a municipality except as provided by Subsections [Subsection] (a)(3) and (a)(5);

(2) a lawful forfeiture or seizure of contraband as defined by Article 59.01, Code of Criminal Procedure;

(3) a lawful seizure of property as evidence of a crime or violation of law;

(4) an action, including an action of a political subdivision, that is reasonably taken to fulfill an obligation mandated by federal law or an action of a political subdivision that is reasonably taken to fulfill an obligation mandated by state law;

(5) the discontinuance or modification of a program or regulation that provides a unilateral expectation that does not rise to the level of a recognized interest in private real property;

(6) [an action taken to prohibit or restrict a condition or use of private real property if the governmental entity proves that the condition or use constitutes a public or private nuisance as defined by background principles of nuisance and property law of this state;

[(7)] an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat to life or property;

(7) [(8)] a formal exercise of the power of eminent domain;

(8) [(9)] an action taken under a state mandate to prevent waste of oil and gas, protect correlative rights of owners of interests in oil or gas, or prevent pollution related to oil and gas activities;

(9) [(10)] a rule or proclamation adopted for the purpose of regulating water safety, hunting, fishing, or control of nonindigenous or exotic aquatic resources;

(10) [(11)] an action taken by a political subdivision:

(A) to regulate construction in an area designated under law as a floodplain;

(B) to regulate on-site sewage facilities;

(C) under the political subdivision's [subdivisions's] statutory authority to prevent waste or protect rights of owners of interest in groundwater; or

(D) to prevent subsidence;

(11) [(12)] the appraisal of property for purposes of ad valorem taxation; or

(12) [(13) an action that:

[(A) is taken in response to a real and substantial threat to public health and safety;

[(B) is designed to significantly advance the health and safety purpose; and

[(C) does not impose a greater burden than is necessary to achieve the health and safety purpose; or

[(14)] an action or rulemaking undertaken by the Public Utility Commission of Texas to order or require the location or placement of telecommunications equipment owned by another party on the premises of a certificated local exchange company.

SECTION 2. Subchapter B, Chapter 2007, Government Code, is amended by adding Sections 2007.0211 and 2007.0212 to read as follows:

Sec. 2007.0211. NOTICE TO POLITICAL SUBDIVISION. (a) Not later than the 60th day before the date on which an owner brings suit under Section 2007.021, the owner must give written notice to the political subdivision. 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), Civil Practice and Remedies Code.

(b) In a suit filed under Section 2007.021, 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 political subdivision of notice under this section tolls any applicable statute of limitation until the 75th day after the date the notice is received.

Sec. 2007.0212. REPLY BY POLITICAL SUBDIVISION. Not later than the 45th day after the date a political subdivision receives notice under Section 2007.0211, the political subdivision shall deliver to the owner, in person using a third-party delivery service or by certified mail, return receipt requested, a reply stating whether:

(1) 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

(2) the governmental action, if any, was undertaken in response to a threat to public health and safety and designed to significantly advance the health and safety purpose without imposing a greater burden than was necessary to achieve the health and safety purpose.

SECTION 3. Section 2007.025, Government Code, is amended by adding Subsection (d) to read as follows:

(d) A governmental entity may appeal from an interlocutory order of a court that denies a motion for summary judgment filed in good faith by the governmental entity on the ground that:

(1) the owner has not met the owner's burden of production regarding one or more elements of the taking claim; or

(2) an expert report required by Subchapter D has not been served.

SECTION 4. Chapter 2007, Government Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. EXPERT REPORT REQUIRED IN CERTAIN SUITS

Sec. 2007.051. EXPERT REPORT. (a) In this section:

(1) "Expert" means a person giving opinion testimony who is qualified to do so under the Texas Rules of Evidence.

(2) "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.

(b) This section applies only to a suit filed under Section 2007.021 in which a political subdivision, in the reply required by Section 2007.0212, asserts that the governmental action was undertaken due to a condition or use of private real property described by Section 2007.0212(1) or in response to a threat to public health and safety as described by Section 2007.0212(2).

(c) In a suit described by Subsection (b), 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 political subdivision against which a taking claim is asserted. The date for serving the report may be extended by written agreement of the parties. Each political subdivision 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 political subdivision fails to file the objection.

(d) If, as to a political subdivision, an expert report has not been served within the period specified by Subsection (c), the court, on the motion of the affected political subdivision, shall, subject to Subsection (e), enter an order that:

(1) awards to the affected political subdivision reasonable attorney's fees and costs of court incurred by the political subdivision; and

(2) dismisses the claim with respect to the political subdivision.

(e) If an expert report has not been served within the period specified by Subsection (c) 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.

(f) 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.

(g) 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 (j) and (k).

(h) Until an owner has served the expert report and curriculum vitae as required by Subsection (c), 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.

(i) 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 (c).

(j) 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.

(k) 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.

SECTION 5. The change in law made by this Act applies only to an action on a taking claim with respect to a taking alleged to have occurred on or after the effective date of this Act. An action on a taking claim with respect to a taking alleged to have occurred before the effective date of this Act is governed by the law as it existed immediately before that date, and the former law is continued in effect for that purpose.

SECTION 6. This Act takes effect September 1, 2013.