Bill Text: TX SB472 | 2013-2014 | 83rd Legislature | Introduced

---

Bill Title: Relating to procedures for asserting taking claims arising from the enforcement of health and safety laws.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2013-02-13 - Referred to State Affairs [SB472 Detail]

Download: Texas-2013-SB472-Introduced.html

---

By: Ellis S.B. No. 472

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