AUSTIN – After being sent back to committee on a point of order yesterday, proponents of House Bill 2144 – legislation that seeks to restore the tort of public nuisance back to its original intent – believe the bill will be back on the calendar soon.
From climate change litigation to bombarding Big Pharma with opioid lawsuits, the legal theory of public nuisance has become somewhat of a “catch all hammer” for local governments and the trial lawyers they hire.
For example, in a case currently before the Texas Supreme Court, ExxonMobil is arguing California local governments are using climate change lawsuits to chill free speech and commandeer public policy.
During a hearing on HB 2144 earlier this month, the bill’s author, state Rep. Cody Harris, said “profit-motivated” lawyers have been using public nuisance torts as a “catch all hammer” to extort money from businesses.
Traditionally, public nuisance has been used to enforce “established public rights,” which means the common interest of all members of the public to the use of public land, air, and water.
Tort reform groups such as the Texas Civil Justice League have thrown their support behind HB 2144, arguing that the measure is necessary because state and local governments have expanded the use of public nuisance to pursue litigation against businesses, often employing private contingent fee law firms to get the job done.
George Christian, senior counsel for TCJL, says HB 2144 seeks to restore the appropriate separation of powers between the legislature and the courts.
"As public nuisance litigation has expanded nationwide and in Texas, it has become clear that (some people) seek to substitute the opinion of judges for the wisdom of the people and their elected representatives,” Christian said. “Those trying to use the courts to challenge the decisions of the legislature … should advocate for legislative policy changes and go through the same process everyone else does."
Christian says it’s not uncommon for a bill to be sent back to committee to iron out any technical issues and that there is still time for HB 2144 to get back on the calendar.
Opponents of the bill, like Harris County for example, argue that municipalities throughout the state rely on public nuisance law to combat public health crises.
TCJL maintains HB 2144 does not impair the ability of state and local governments to pursue public nuisance torts that fall in line with the statute. But that the bill does, however, require such actions be undertaken by the government’s own attorneys.