84R1231 CAE-F

By: Miles H.B. No. 264

A BILL TO BE ENTITLED

AN ACT

relating to procedures for asserting taking claims against certain governmental entities.

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

SECTION 1. Title 5, Civil Practice and Remedies Code, is amended by adding Chapter 112 to read as follows:

CHAPTER 112. TAKING CLAIMS AGAINST CERTAIN GOVERNMENTAL ENTITIES

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.

(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.

Sec. 112.002. APPLICABILITY. This chapter applies to a taking claim filed in this state in which the governmental entity is an incorporated municipality with a population of more than two million.

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.

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:

(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

(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.

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 for 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.

Sec. 112.006. INTERLOCUTORY APPEAL. 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 this chapter has not been served.

Sec. 112.007. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154 applies to a taking claim.

SECTION 2. 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 3. This Act takes effect September 1, 2015.