Question about SB987

[Mike1951]

Bill status report reads:

Impact: Requires the Texas Attorney General to seek a permanent or temporary injunction against any county seeking to regulate sport shooting ranges in violation of the Texas range protection laws.

But I read it as:

(f)AAThe attorney general may bring an action in the name of the state to obtain a temporary or permanent injunction against a
municipality adopting a regulation in violation of this section.

I don't see the imperative, only the option. Am I reading it wrong?

Whoever follows Greg Abbott may not be as diligent.

[baldeagle]

The bill that was introduced read "(f) The attorney general shall bring an action in the name of the state to obtain a temporary or permanent injunction against a municipality adopting a regulation in violation of this section." The bill that was engrossed and sent to the House was a committee substitute and reads "(f) The attorney general may bring an action in the name of the state to obtain a temporary or permanent injunction against a municipality adopting a regulation in violation of this section.

So you are correct. The language was changed from an imperative to a permissive grant. That is bad. Hopefully it can be changed back to an imperative in the House and retained in conference. It will be interesting to see the Committee hearing on this bill to see why it was changed and by whom.

The committee read the bill on Monday, March 25, 2013.

[Mike1951]

Missed that. Since the substitution happened a week ago, it was off the bottom of my screen.

[baldeagle]

I'm listening to the Committee meeting now. Senator Hagar, who was the author of the bill, introduced the committee substitute, which made the power optional. He did not explain why the change was made except to say that directing the AG to file the injunction rather than making it optional would be "more restrictive than state law". The tape starts about the 6:30 mark. Alice Tripp was for the bill but chose not to testify. Karen Mitchell with the NRA testified about the substitute and asked the committee to consider language that would reaffirm a private citizen's right to sue for an injunction and to consider awarding attorney's fees. Senator Hagar spoke favorably with regard to Mitchell's testimony and the committee discussing bringing up those issues as amendments on the floor of the Senate.

[baldeagle]

A floor amendment was offered but was withdrawn by Senator Birdwell.

Amend
CSSB
i
987
(senate committee printing) as follows:
(1)ii
In the recital to SECTION 1 of the bill (page 1, line 22), strike "Subsection (f)" and substitute "Subsections (f), (g), and (h)".
(2)ii
In SECTION 1 of the bill, following Section 229.001(f), Local Government
Code (page 1, between lines 25 and 26), insert the following:
(g) ii
A person or an organization whose membership is adversely affected by a regulation adopted by a municipality in violation of this section may file suit against the municipality in the appropriate court for equitable relief, including a declaratory judgment and injunctive relief, and for actual and consequential damages. Notwithstanding any other provision of law and in addition to other remedies available, a person who brings an action under this section is entitled to recover reasonable attorney’s fees and costs and: actual damages if, not later than the 30th day after the date the suit is filed and not earlier than the date of the court’s final determination of the case, the municipality repeals the regulation adopted in violation of this section;
an amount equal to three times the total of actual prejudgment damages if, after the 30th day after the date the suit is filed and not earlier than the date of the court’s final determination of the case, the municipality repeals the regulation adopted in violation of this section; or
an amount equal to three times the total of actual damages if the court makes a final determination in favor of the person bringing the action under this section.
(h) ii
Sovereign immunity to suit and from liability is waived and abolished to the extent of liability created by Subsection (g), and a claimant may sue a municipality for damages allowed by that subsection.
(3) ii
In SECTION 2 of the bill, in amended Section 236.002, Local Government Code (page 1, between lines 39 and 40), insert the following:
(c) ii
A person or an organization whose membership is adversely affected by a regulation adopted by a county in violation of this section may file suit against the county in the appropriate court for equitable relief, including a declaratory judgment and injunctive relief, and for actual and consequential damages. Notwithstanding any other provision of law and in addition to other remedies available, a person who brings an action under this section is entitled to recover reasonable attorney’s fees and costs and:
(1) ii
actual damages if, not later than the 30th day after the date the suit is filed and not earlier than the date of the court’s final determination of the case, the county repeals the regulation adopted in violation of this section;
(2) ii
an amount equal to three times the total of actual prejudgment damages if, after the 30th day after the date the suit is filed and not earlier than the date of the court’s final determination of the case, the county repeals the regulation adopted in violation of this section; or
(3) ii
an amount equal to three times the total of actual damages if the court makes a final determination in favor of the person bringing the action under this section.
(d) ii
Sovereign immunity to suit and from liability is waived and abolished to the extent of liability created by Subsection (c), and a claimant may sue a county for damages allowed by that subsection.

The amendment to CSSB 987 was read.

Senator Birdwell withdrew Floor Amendment No. 1

[baldeagle]

SB 987 was heard on the Senate floor on 4/4/2013. The 2nd tape, at 2:15:15 begins the discussion. Senator West questioned what Senator Birdwell meant by "actual and consequential damages" and stated that he thought tort reformers were opposed to consequential damages. After some discussion Senator Birdwell stated that he wanted to remove his amendment so he could "work on it some more". After that, the committee substitute was passed and engrossed and sent to the House. I assume they expect to work out these issues in Conference.