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.