HBA-EVB C.S.H.C.R. 120 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.C.R. 120 By: Yarbrough Civil Practices 4/30/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE C.S.H.C.R. 120 grants permission to Larry P. Shepherd to sue the State of Texas and the Texas Natural Resource Conservation Commission (TNRCC), and makes certain allegations, as follows: (1) Mr. Shepherd alleges that in December 1995, as a general partner in Shepherd and White, he entered into an agreement with Gibson Recycling, Inc., leasing property owned by Shepherd and White for the recycling of waste tires. (2) Mr. Shepherd alleges that in December 1995, Gibson Recycling, Inc., entered into an agreement with TNRCC under the waste tire recycling program. (3) Mr. Shepherd alleges that Gibson Recycling, Inc., failed to maintain the site, and on March 19, 1998, TNRCC advised Mr. Shepherd that TNRCC had closed the site and declared the site abandoned. (4) Mr. Shepherd alleges that he is entitled to the costs incurred in the removal and cleanup of the tire chips on the property and legal fees incurred. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS C.S.H.C.R. 120 grants permission to Larry P. Shepherd to sue the State of Texas and the Texas Natural Resource Conservation Commission (TNRCC) for the costs incurred in the removal and cleanup of the tire chips on the property and legal fees incurred. H.C.R. 120 also provides the following: Requires the suit authorized by this resolution to be brought in Harris County. Prohibits the total of all damages awarded in the suit authorized by this resolution, including any court costs, attorney's fees, and prejudgment interest awarded under law from exceeding $250,000. Prohibits Mr. Shepherd from pleading an amount in excess of that amount in a suit authorized by this resolution, and provides that this is the total amount that may be recovered with respect to that agreement. Provides that payment of any damages awarded in the suit authorized by this resolution from the state treasury is subject to appropriation. Sets forth that it is the intent of the 76th Legislature of the State of Texas that, if any damages are awarded in a suit authorized by this resolution, the damages be paid from money appropriated to or otherwise available to TNRCC. Provides that the remedies available to Mr. Shepherd in the suit authorized by this resolution are limited to the remedies traditionally available for breach of contract, except that he is prohibited from recovering exemplary or punitive damages resulting from any breach of contract, and that this resolution does not authorize suit on any claim that sounds in tort. Provides that the executive director of the TNRCC be served process as provided by Section 107.002(a)(3) (Effect of Grant of Permission), Civil Practices and Remedies Code. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute differs from the original by deleting the allegations in Subdivisions (4) and (5), in which Larry P. Shepherd alleges that on April 20, 1998, TNRCC advised him that the state would start cleaning up the site not later than July, 17, 1998; and alleges that TNRCC has failed to clean up the site. The substitute differs from the original by redesignating allegation (6) of the original as allegation (4) of the substitute. The substitute differs from the original by adding new resolutions, as follows: Requires the suit authorized by this resolution to be brought in Harris County. Prohibits the total of all damages awarded in the suit authorized by this resolution, including any court costs, attorney's fees, and prejudgment interest awarded under law from exceeding $250,000. Prohibits Mr. Shepherd from pleading an amount in excess of that amount in a suit authorized by this resolution, and provides that this is the total amount that may be recovered with respect to that agreement. Provides that payment of any damages awarded in the suit authorized by this resolution from the state treasury is subject to appropriation. Sets forth that it is the intent of the 76th Legislature of the State of Texas that, if any damages are awarded in a suit authorized by this resolution, the damages be paid from money appropriated to or otherwise available to TNRCC. Provides that the remedies available to Mr. Shepherd in the suit authorized by this resolution are limited to the remedies traditionally available for breach of contract, except that he is prohibited from recovering exemplary or punitive damages resulting from any breach of contract, and that this resolution does not authorize suit on any claim that sounds in tort.