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A BILL TO BE ENTITLED
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AN ACT
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relating to the tort of public nuisance. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 4, Civil Practice and Remedies Code, is |
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amended by adding Chapter 100F to read as follows: |
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CHAPTER 100F. PUBLIC NUISANCE |
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Sec. 100F.001. PURPOSE; ABROGATION OF COMMON LAW; |
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CONFLICTS. (a) The purpose of this chapter is to ensure that the |
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tort of public nuisance is defined clearly and in a manner |
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consistent with its traditional scope for purposes of its use as a |
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cause of action in this state. |
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(b) This chapter abrogates the common law of public nuisance |
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and supersedes any other statute to the extent of a conflict. This |
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chapter provides the only remedies for the tort of public nuisance |
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in this state. |
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(c) This chapter does not affect: |
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(1) the availability of a remedy provided by Chapter |
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125 or another statute for conditions or activities involving |
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criminal conduct and designated by statute as a common nuisance or |
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public nuisance; or |
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(2) the authority of a governmental entity to take a |
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regulatory or enforcement action authorized by statute in |
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connection with a condition designated by statute as a public |
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nuisance. |
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Sec. 100F.002. DEFINITIONS. In this chapter: |
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(1) "Established public right" means a right, commonly |
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held by all members of the public, to the use of public land, air, or |
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water. |
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(2) "Government attorney" means an attorney regularly |
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employed on a salaried basis by this state or a political |
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subdivision of this state. The term does not include an attorney |
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hired on a contingency fee or hourly basis or an attorney hired on a |
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short-term or temporary basis, including a legal fellow, special |
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prosecutor, or other similar provisional position. |
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(3) "Public nuisance" means an unlawful condition that |
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violates an established public right. |
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(4) "Special injury" means an injury that is different |
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in kind, not just in degree, from an injury suffered by the public |
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at large. |
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(5) "Unlawful condition" means an ongoing |
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circumstance or effect of an instrumentality that is expressly |
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prohibited by the laws of this state. |
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Sec. 100F.003. LIABILITY. A person may be held liable for a |
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public nuisance only if the person causes an unlawful condition and |
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controls that unlawful condition at the time the condition violates |
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an established public right. |
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Sec. 100F.004. LIMITATIONS ON LIABILITY. (a) Conditions |
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arising from the following conduct are not considered unlawful |
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conditions for purposes of a public nuisance action in this state: |
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(1) an activity expressly authorized or encouraged by |
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a statute, ordinance, rule, or other similar measure adopted by |
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this state, a political subdivision of this state, the United |
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States, or a regulatory agency of this state or the United States; |
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and |
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(2) the lawful manufacturing, distributing, selling, |
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advertising, or promoting of a lawful product. |
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(b) Subsection (a) is not exhaustive. It may not be presumed |
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that a person may be held liable for a public nuisance arising from |
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conduct or conditions not listed in Subsection (a). |
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(c) The aggregation of multiple individual injuries or |
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private nuisances do not constitute violations of an established |
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public right for purposes of a public nuisance action. |
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Sec. 100F.005. ENFORCEMENT BY GOVERNMENT. (a) Except as |
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provided by Subsection (b), only the state or a political |
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subdivision of this state may bring a public nuisance action and may |
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do so only by a government attorney of the relevant jurisdiction. |
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(b) Absent a clear and convincing showing otherwise, it |
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shall be presumed that only a single governmental entity within |
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this state has standing to file or maintain a public nuisance action |
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relating to the real property or waterway to which the public |
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nuisance relates. |
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(c) To bring a public nuisance action, the state or the |
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political subdivision must have substantial ownership interest in |
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or authority over the real property or waterway, or ancillary space |
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related to the real property or waterway, to which the public |
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nuisance relates. |
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(d) A financial expenditure made by the state or a political |
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subdivision related to the remediation, abatement, or injunction of |
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an unlawful condition does not constitute an injury sufficient to |
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confer standing to file or maintain a public nuisance action. |
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Sec. 100F.006. ENFORCEMENT BY PRIVATE CITIZEN. (a) A |
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private citizen may maintain an action in the private citizen's |
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individual capacity to enjoin a public nuisance only if the private |
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citizen can show a special injury by clear and convincing evidence. |
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(b) As a matter of law, use of or damage to public land, air, |
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or water with only personal, spiritual, cultural, or emotional |
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significance to the individual is not a special injury for purposes |
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of a public nuisance claim. |
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(c) An individual may not seek relief for both a public |
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nuisance under the special injury exception provided by this |
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section and for a private nuisance for a harm related to the same |
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unlawful condition. |
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Sec. 100F.007. REMEDIES. (a) Remedies in a public nuisance |
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action are limited to: |
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(1) injunctive relief sufficient to prevent the |
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unlawful condition from violating an established public right; and |
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(2) monetary and nonmonetary resources necessary to |
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abate the public nuisance, if quantifiable and based on relevant |
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and reliable cost factors, which may not include: |
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(A) speculative estimates of current needs; |
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(B) the costs of future remediation; |
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(C) the costs of investigating and identifying |
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the existence of an unlawful condition; |
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(D) the costs of public services provided as a |
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result of the public nuisance; or |
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(E) damages of any kind, except for compensatory |
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damages for a special injury established in accordance with this |
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chapter. |
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(b) For purposes of Subsection (a)(2), the necessity of |
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monetary resources to abate the public nuisance must be established |
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by the plaintiff by clear and convincing evidence. |
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SECTION 2. The heading to Chapter 125, Civil Practice and |
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Remedies Code, is amended to read as follows: |
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CHAPTER 125. REMEDIES FOR CERTAIN CONDITIONS AND CONDUCT DESIGNATED |
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AS COMMON OR [AND] PUBLIC NUISANCE [NUISANCES] |
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SECTION 3. The changes in law made by this Act apply only to |
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a cause of action that accrues on or after the effective date of |
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this Act. A cause of action that accrued before the effective date |
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of this Act is governed by the law applicable to the cause of action |
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immediately before the effective date of this Act, and that law is |
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continued in effect for that purpose. |
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SECTION 4. This Act takes effect September 1, 2021. |