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AN ACT
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relating to the adjudication of certain claims under a written |
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contract with a special-purpose district or authority or local |
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governmental entity. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 5, Civil Practice and Remedies Code, is |
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amended by adding Chapter 113 to read as follows: |
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CHAPTER 113. WATER SUPPLY CONTRACT CLAIM AGAINST LOCAL DISTRICT |
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OR AUTHORITY |
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Sec. 113.001. DEFINITIONS. In this chapter: |
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(1) "Adjudicating a claim" means the bringing of a |
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civil suit and prosecution to final judgment in court and includes |
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the bringing of an authorized arbitration proceeding and |
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prosecution to final resolution in accordance with any mandatory |
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procedures established in the contract that is the subject of the |
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dispute under Section 113.002. |
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(2) "Local district or authority" means a |
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special-purpose district or authority, including a levee |
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improvement district, drainage district, irrigation district, |
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water improvement district, water control and improvement |
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district, water control and preservation district, fresh water |
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supply district, navigation district, special utility district, |
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and river authority, and any conservation and reclamation district. |
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Sec. 113.002. WAIVER OF IMMUNITY TO SUIT FOR CLAIM |
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REGARDING WATER SUPPLY CONTRACT. A local district or authority |
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that enters into a written contract stating the essential terms |
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under which the local district or authority is to provide water to a |
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purchaser for use in connection with the generation of electricity |
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waives sovereign immunity to suit for the purpose of adjudicating a |
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claim that the local district or authority breached the contract by |
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not providing water, or access to water, according to the |
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contract's terms. |
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Sec. 113.003. REMEDIES. (a) Except as provided by |
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Subsection (b), remedies awarded in a proceeding adjudicating a |
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claim under this chapter may include any remedy available for |
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breach of contract that is not inconsistent with the terms of the |
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contract, including the cost of cover and specific performance. |
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(b) Remedies awarded in a proceeding adjudicating a claim |
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under this chapter may not include consequential or exemplary |
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damages. |
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Sec. 113.004. NO WAIVER OF OTHER DEFENSES. This chapter |
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does not waive a defense or a limitation on damages available to a |
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party to a contract other than sovereign immunity to suit. |
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Sec. 113.005. NO WAIVER OF IMMUNITY TO SUIT IN FEDERAL |
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COURT. This chapter does not waive sovereign immunity to suit in |
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federal court. |
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Sec. 113.006. NO WAIVER OF IMMUNITY TO SUIT FOR TORT |
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LIABILITY. This chapter does not waive sovereign immunity to suit |
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for a cause of action for a negligent or intentional tort. |
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Sec. 113.007. NO NEW OR ADDITIONAL WATER RIGHTS. This |
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chapter does not grant any user of water any new or additional |
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rights to water or any new or additional priority to water rights. |
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This chapter does not confer any rights inconsistent with the terms |
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of the contract that is the subject of a dispute under Section |
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113.002. |
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Sec. 113.008. AUTHORITY OF REGULATORY AGENCIES; COMPLIANCE |
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WITH REGULATORY ORDER. (a) This chapter does not limit the |
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authority of the Texas Commission on Environmental Quality or any |
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other state regulatory agency. |
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(b) Compliance with an order of the Texas Commission on |
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Environmental Quality or any other state regulatory agency that |
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expressly curtails water delivery to a specific electric generating |
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facility is not considered a breach of contract for the purposes of |
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this chapter. |
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Sec. 113.009. NO THIRD-PARTY BENEFICIARIES. (a) This |
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chapter waives sovereign immunity only for the benefit of: |
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(1) a party to the contract that is the subject of a |
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dispute under Section 113.002; or |
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(2) the assignee of a party to the contract, if |
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assignment of an interest in the contract is permitted by the terms |
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of the contract. |
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(b) Except for an assignment described by Subsection |
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(a)(2), a party authorized by this chapter to sue for a cause of |
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action of breach of contract may not transfer or assign that cause |
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of action to any person. |
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SECTION 2. Section 271.151(2), Local Government Code, is |
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amended to read as follows: |
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(2) "Contract subject to this subchapter" means: |
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(A) a written contract stating the essential |
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terms of the agreement for providing goods or services to the local |
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governmental entity that is properly executed on behalf of the |
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local governmental entity; or |
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(B) a written contract, including a right of |
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first refusal, regarding the sale or delivery of not less than |
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1,000 acre-feet of reclaimed water by a local governmental entity |
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intended for industrial use. |
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SECTION 3. Section 271.153, Local Government Code, is |
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amended by amending Subsection (a) and adding Subsection (c) to |
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read as follows: |
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(a) Except as provided by Subsection (c), the [The] total |
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amount of money awarded in an adjudication brought against a local |
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governmental entity for breach of a contract subject to this |
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subchapter is limited to the following: |
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(1) the balance due and owed by the local governmental |
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entity under the contract as it may have been amended, including any |
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amount owed as compensation for the increased cost to perform the |
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work as a direct result of owner-caused delays or acceleration; |
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(2) the amount owed for change orders or additional |
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work the contractor is directed to perform by a local governmental |
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entity in connection with the contract; |
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(3) reasonable and necessary attorney's fees that are |
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equitable and just; and |
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(4) interest as allowed by law, including interest as |
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calculated under Chapter 2251, Government Code. |
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(c) Actual damages, specific performance, or injunctive |
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relief may be granted in an adjudication brought against a local |
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governmental entity for breach of a contract described by Section |
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271.151(2)(B). |
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SECTION 4. (a) Chapter 113, Civil Practice and Remedies |
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Code, as added by this Act, applies only to a cause of action that |
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accrues on or after the effective date of this Act. A cause of |
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action that accrues before the effective date of this Act is |
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governed by the law in effect immediately before that date, and that |
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law is continued in effect for that purpose. |
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(b) Chapter 113, Civil Practice and Remedies Code, as added |
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by this Act, does not waive sovereign immunity to suit for any |
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claims related to or arising out of a contract that was the subject |
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of litigation that was adjudicated or dismissed on the basis of |
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sovereign immunity prior to the effective date of this Act. |
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(c) Sections 271.151(2) and 271.153, Local Government Code, |
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as amended by this Act, apply to a claim that arises under a |
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contract executed on or after the effective date of this Act. A |
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claim that arises under a contract executed before the effective |
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date of this Act is governed by the law in effect on the date the |
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contract was executed, and the former law is continued in effect for |
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that purpose. |
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SECTION 5. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2013. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 3511 was passed by the House on May 2, |
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2013, by the following vote: Yeas 147, Nays 0, 2 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 3511 on May 24, 2013, by the following vote: Yeas 144, Nays 0, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 3511 was passed by the Senate, with |
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amendments, on May 22, 2013, by the following vote: Yeas 31, Nays |
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0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |