Trails Bill HB2125 to be Heard in Legislature Monday April 20 Can You Guys Help Too?
Rick Perkins
David Richardson is volunteering to be there, but I think we need some back up to speak to this. Unfortunately, I am going to be in Dallas working this next week.
If you can help out by spending some time at the Capitol between 12 Noon and say 6 pm, please email or phone Drew Dupuy at 619-1418 or andrew...@house.state.tx.us
This is the Recreational Easement Bill that will put court costs and attorney fees on the loser of a lawsuit regarding recreational easements. The Bill is HB 2125.
Here is the Committee Info:
COMMITTEE:
Judiciary & Civil Jurisprudence
TIME & DATE:
upon final adjourn./recess
Monday, April 20, 2009
PLACE:
E2.010 (IN UNDERGROUND CAPITOL EXTENSION, LOWER LEVEL)
CHAIR:
Rep. Todd Hunter
HB 2125 will be heard in the Judiciary & Civil Jurisprudence Committee on Monday, April 20. http://www.legis.state.tx.us/tlodocs/81R/schedules/html/C3302009042000001.htm
If you can only write a letter in support, bring 15 copies of that letter. This would be a good thing for whoever is on site at the time of the Committee Hearing to have in their hand. Hill Country Conservancy and Austin Parks Foundation may be able to muster these letters.
Please let us know.
Thanks,
-------- Original Message --------
| Subject: | RE: Recreational Trails bill in committee Monday, April 20 |
|---|---|
| Date: | Fri, 17 Apr 2009 14:05:20 -0500 |
| From: | Andrew Dupuy <Andrew...@house.state.tx.us> |
| To: | David Richardson <drichard...@earthlink.net> |
| CC: | Mark Bentley <meb7...@gmail.com>, <cmc...@austinparks.org>, Rick Perkins <rperki...@att.net> |
| References: | <0924E997F20CF140B317...@CP2K3HSEEMLV1.capitol.local> <E1Lusl5-...@elasmtp-masked.atl.sa.earthlink.net> |
David,
Thanks a lot. Yeah, I know it's a crappy situation, but with the infrequency the Legislature meets, it's kind of how things go.
I can't tell you when the House will adjourn on Monday (and thus, the committee hearing will start). Here's the deal: we are doing the budget today, and it could go all night and into tomorrow. As such, there's a possibility the House will start later than normal on Monday morning, or they may go in on time (9 or 10 am).
My best guess is this: be "on call" and ready to head over to the Capitol after 12:00 noon. I will call you when the House adjourns. However, in all likelihood, you won't need to be here until later in the afternoon (3:00? 4:00? It's anybody's guess.)
I will call you when I know something. However, since I'm juggling five bills at the same time on Monday, you can help me help you if you call or text my cell (619-1418) on Monday just to check in for an update, and so I don't forget you.
ALSO (for everyone): Whether you can or can't testify, or if you can only stop by to put your name in, you can write a letter as written testimony and either deliver it yourself, or give it to David. Bring ~15 copies so that every member of the Committee can get a copy.
Thanks again,
Drew
--
Drew Dupuy
Office of State Representative Valinda Bolton
512.463.0652
andrew...@house.state.tx.us
From:
David Richardson [mailto:drichard...@earthlink.net]
Sent: Friday, April 17,
2009 1:26
PM
To: Andrew Dupuy; 'Rick
Perkins'
Cc: 'Mark Bentley';
cmc...@austinparks.org
Subject: RE:
Recreational Trails
bill in committee Monday, April 20
Drew
Thank you for your candor. I will be there. What time? My mobile is 512.423.5292
David
From:
Andrew Dupuy [mailto:Andrew...@house.state.tx.us]
Sent: Friday, April 17,
2009 11:07
AM
To: David Richardson;
Rick Perkins
Cc: Mark Bentley;
cmc...@austinparks.org
Subject: RE:
Recreational Trails
bill in committee Monday, April 20
It's potentially going to be a long day. Rep. Bolton has to lay out five different bills in three different committees, which invariably creates a difficult juggling act and can make things happen.
The bottom line, to be frank, is that your bill is not going to go anywhere if at least one person can't be there to speak first-hand on its merits and necessity.
I am not suggesting this as an alternative, but if additional people come to testify but have to leave, or can only stop by the committee while it's meeting, they can register their name, who they represent, and their position on the bill ("For" HB 3712). It goes into the official record, and it's better than nothing. It's called "putting in a card," and you do so by filling out a Witness Affirmation Form in the committee.
However, to reiterate, it's showtime for you guys and the bill y'all brought to us, and nobody on the committee is going to give a lick for your issue if y'all can't speak to your firsthand experiences and the basis of need.
Let me know if you plan to -- or might -- testify. Include your cell phone number, and indicate if you can receive text messages, My cell is 619-1418.
I think there's some spotty free WiFi available in the committee room. It's fine to have a laptop in there. I also recommend bringing a book (newspapers get a little noisy).
Thanks,
Drew
|
COMMITTEE: |
|
Judiciary & Civil Jurisprudence |
|
TIME & DATE: |
|
upon
final adjourn./recess |
|
PLACE: |
|
E2.010 (IN UNDERGROUND CAPITOL EXTENSION, LOWER LEVEL) |
|
CHAIR: |
|
Rep. Todd Hunter |
--
Drew Dupuy
Office of State Representative Valinda Bolton
512.463.0652
andrew...@house.state.tx.us
From:
David Richardson [mailto:drichard...@earthlink.net]
Sent: Friday, April 17,
2009 6:25
AM
To: 'Rick Perkins';
Andrew Dupuy
Cc: 'Mark Bentley';
cmc...@austinparks.org
Subject: RE:
Recreational Trails
bill in committee Monday, April 20
I’d hate to lose a day. Everybody’s got a life during the day (I hope). I might be able to borrow a laptop.
David
From: Rick
Perkins [mailto:rperki...@att.net]
Sent: Thursday, April
16, 2009
10:38 PM
To: Andrew Dupuy
Cc: David Richardson;
Mark Bentley;
cmc...@austinparks.org
Subject: Re:
Recreational Trails
bill in committee Monday, April 20
Importance: High
Hi all,
I would be interested in doing so, but unfortunately I am working in Dallas this
entire week.
Is anyone else available for this? Charlie, possibly someone from the
Austin Trails Network?
Thanks,
Andrew Dupuy wrote:
Gentlemen,
HB 2125 will be heard in the Judiciary & Civil Jurisprudence Committee on Monday, April 20. http://www.legis.state.tx.us/tlodocs/81R/schedules/html/C3302009042000001.htm
The hearing starts upon adjournment of the full House, and it's really hard to say when it will be heard.
Whoever will testify needs to anticipate waiting for hours -- most of the day (and possibly into the evening), really.
Call or email me Friday and we'll work it out. But y'all should start seeing who can come down to the Capitol on Monday to testify for the bill.
Thanks,
Drew
--
Drew Dupuy
Office of State Representative Valinda Bolton
512.463.0652
andrew...@house.state.tx.us
From: David
Richardson [mailto:drichard...@earthlink.net]
Sent: Wednesday,
February 25, 2009
6:20 PM
To: Andrew
Dupuy; 'Mark Bentley'; 'Rick Perkins'
Cc: Elizabeth
Hartman; cmc...@austinparks.org
Subject: RE: Mark
Bentley on the
Recreational Easement Statute
Drew
Thanks for your efforts on this. I am not an attorney either, but if Mark Bentley thinks these changes would address landowners concerns and reduce liability insurance costs for groups like ours, it’s a step in the right direction for all Texans.
David Richardson
(Speaking only for myself with no official capacity (yea!))
From: Andrew
Dupuy [mailto:Andrew...@house.state.tx.us]
Sent: Wednesday,
February 25, 2009
2:32 PM
To: Mark Bentley; Rick
Perkins
Cc: drichard...@earthlink.net;
Elizabeth Hartman; cmc...@austinparks.org
Subject: RE: Mark
Bentley on the
Recreational Easement Statute
OK, so is the consensus here that y'all would be satisfied if we filed this version?
Thanks,
Drew
--
Drew Dupuy
Office of State Representative Valinda Bolton
512.463.0652
andrew...@house.state.tx.us
From: Mark
Bentley [mailto:meb7...@gmail.com]
Sent: Tuesday, February
24, 2009
11:59 AM
To: Rick Perkins
Cc: Andrew
Dupuy; <drichard...@earthlink.net>;
Elizabeth Hartman; cmc...@austinparks.org
Subject: Re: Mark
Bentley on the
Recreational Easement Statute
I believe this would help alot, and might make the insurance mentioned in that chapter less expensive as well.
Mark
Sent from my iPhone
On Feb 24, 2009, at 7:52 AM, Rick Perkins <rperki...@att.net>
wrote:
Thanks Mark. So, do you believe a private property owner would be more likely to allow a recreational easement with these changes?
The Trails Groups often have the problem of the private property owner hesitant to give the Rec Easement for fear of a lawsuit. (I haven't read the bill modifications, obviously.)
Rick Perkins
From: Mark Bentley <meb7...@gmail.com>
To: Andrew Dupuy <Andrew...@house.state.tx.us>
Cc: "<rperki...@att.net>" <rperki...@att.net>; "<drichard...@earthlink.net>" <drichard...@earthlink.net>; Elizabeth Hartman <Elizabet...@house.state.tx.us>
Sent: Tuesday, February 24, 2009 7:40:09 AM
Subject: Re: Mark Bentley on the Recreational Easement StatuteI think the changes address all of my suggestions and will improve the statute greatly.
Mark
Sent from my iPhone
On Feb 23, 2009, at 2:57 PM, "Andrew Dupuy" <Andrew...@house.state.tx.us> wrote:Mark, Rick and David,
I just got a draft of the recreational trails bill back from our attorney. Please review it to see if it accomplishes your aims. I'm not a lawyer, and y'all understand this issue much more than I do.
When I first looked at the bill, it seemed like it actually increased liability for land owners. Evidently, that is because the attorney separated out agricultural land from non-ag land, and drew a division (on non-ag land) between gross negligence as opposed to malice/bad faith. So make sure to look at the bill in the context of existing statute: http://www.statutes.legis.state.tx.us/SOTWDocs/CP/htm/CP.75.htm
Section 75.002(c), which is repealed, was the old language that applied to non-ag land. I kind of thought that language provides some cover from liability, so y'all should figure out if that should have been retained.
(d-1) clarifies that non-ag land owners are not limited from liability for malice or bad faith. But they are, in fact, limited from liability resulting from gross negligence.
The added section 75.005 allows the defendant land owner to recoup court costs if he is sued, and wins.
75.003(b) was repealed to eliminate attractive nuisance.
Let me know how this works for everyone.
Best,
Drew
P.S. You need not keep Heather Welles (in Rep. Bolton's office) in this conversation. I'm the lead on it, but I'm also cc'ing Chief of Staff Elizabeth Hartman.
Reference: 81R 5896 CAE
From: Rick Perkins [mailto:rperki...@att.net]
Sent: Wednesday, February 04, 2009 10:32 PM
To: David Richardson; Heather Welles
Cc: 'Mark E. Bentley'; cmc...@austinparks.org; hksm...@aol.com; 'annick.beaudet'; gri...@markethardware.com; mye...@austin.rr.com; jim.t...@meanderingtrails.com; hi...@bicyclesportshop.com; 'Kathryn Nichols'; jrg...@austin.rr.com; kath...@nps.gov; marta20...@yahoo.com; ma...@biketexas.org; 'Robin Stallings'; 'Jeb Boyt'
Subject: Mark Bentley on the Recreational Easement Statute Re: Response to online submission
Response from Mark Bentley reviewing the Recreational Easement Statute and Making Recommendations for Improvement:
-------- Original Message --------
Subject:
Re: Texas Recreational Easement Statute Review (Resent to Correct Email Address)
Date:
Wed, 4 Feb 2009 22:18:13 -0600
From:
To:
Rick Perkins <rperki...@att.net>
CC:
Charlie McCabe <cmc...@austinparks.org>, Kathryn Nichols <Kathryn...@nps.gov>
Rick,
Haven't looked at any cases construing the statute, but have just read it and tried to see what it does. I agree that this statute goes a long way to limit liability, but it doesn't accomplish everything a landowner might want. First, you can always sue somebody, and a plaintiff's attorney would try to establish a cause of action against a wealthy landowner, or at least one perceived to be solvent, by alleging gross or willful negligence (such as knowing of an unsafe condition - poor lighting, frequent crime, unsafe trail or bridge) or by pursuing the idea of attractive nuisance (knowing that the trail was unsafe in some way, but also knowing that the public would be drawn to some element of it, like a great view from that barely-balanced rock above the gorge). These are carve-outs from the release of liability in the statute. Also, there is a big difference between a release of liability and indemnification. Indemnification means that a third party will pay the amount of the judgment against you and sometimes your attorney's fees. A release is just that - a defense in a lawsuit. But in tort, ordinarily there is no award of attorney's fees to the prevailing party, meaning that even if the landowner was successful in getting the action dismissed, they still would be out their costs and fees. Sometimes a landowner's insurance will cover this, but that assumes they have liability insurance for that. If the trails association could find some not-too-expensive insurance to cover the situation, that would help, but I bet it would cost a lot.
It would be helpful if the statute could be amended to allow the prevailing party to recover attorney's fees and costs in such an action, and to eliminate the "attractive nuisance" exception. Gross negligence could be limited to intentional acts, and suits by persons enjoying the trail could be virtually eliminated.
Governmental entities have sovereign immunity, which is waived to a limited amount by the Torts Claims Act (that is the reference to Chapter 101). Private entities don't have it, so sometimes the private landowner is the only target an opportunistic plaintiff has.
Mark
David Richardson wrote:Heather
Thanks for responding to my question below. There has been discussion at the Austin Trails Network as well with the following comment from Jeb Boyt:
Please be aware that there is a bill pending in the Legislature, HB 859, that would make an easement holder liable to a property owner for any damage to the property outside of the easement, regardless of whether the easement holder commits a negligent or intentional act.
http://tinyurl.com/bkvgxm
JebThis brings up a liability issue I hadn’t considered but makes sense and that is things like a fire, inadvertent or arson or dumping etc. The prospect just gives people pause… They just might not want potential entanglement.
And while they can avoid the liability donating the land to the City or an agency, might they lose impervious cover rights as a result of giving away their land. Seems to me that ought to be a given that for supporting public use with a donation, even if compensated financially, they should not lose any prior right to develop their land to the limit of their entitlement. But I don’t know how this is handled in Austin or elsewhere in the State. At this time, it seems the role of government is it should facilitate the creation of alternate modes of transportation to serve the community, reduce the number of cars on the road and green house gases. Thanks again.
David
And from Charlie McCabe, below
Date: Wed, 4 Feb 2009 08:43:05 -0600
From: rperki...@att.net
To: drichard...@earthlink.net
CC: cmc...@austinparks.org; hksm...@aol.com; annick....@ci.austin.tx.us; gri...@markethardware.com; mye...@austin.rr.com; jim.t...@meanderingtrails.com; hi...@bicyclesportshop.com; jeb...@hotmail.com; Kathryn...@nps.gov; jrg...@austin.rr.com; kath...@nps.gov; marta20...@yahoo.com; ma...@biketexas.org; ro...@biketexas.org
Subject: Re: Recreation easements and landowners liability
Thanks David. This is the actual statute that creates the recreational easement.
Mark Bentley (a real estate attorney with the UT System and Oak Hill resident) has volunteered to look over the recreational use statute to see if there are any holes in it, and if so, possibly make recommendations on amending it.
From: Heather Welles [mailto:Heather...@house.state.tx.us]
Sent: Wednesday, February 04, 2009 2:59 PM
To: drichard...@earthlink.net
Subject: Response to online submission
February 4, 2009
Dear Mr. Richardson,
I received your email about the Oak Hills Trails Association and the impediments to establishing recreational easements at the back of certain private properties. I agree that it is unfortunate that otherwise willing property owners may be reluctant to grant recreational easements for fear of legal liability. As such, I instructed my staff to have a bill drafted to rectify the problem.
However, the Legislature's drafting attorneys found that Section 75.002, Subsection (c) of the Civil Practices and Remedies code (available at http://www.statutes.legis.state.tx.us/SOTWDocs/CP/htm/CP.75.htm#75.002) already indemnifies property owners against liability when they grant permission to use land for recreation. The statute states (emphasis added):
(c) If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted.
The only exception is in the case of gross negligence or malice:
(d) Subsections (a), (b), and (c) shall not limit the liability of an owner, lessee, or occupant of real property who has been grossly negligent or has acted with malicious intent or in bad faith.
Therefore, I believe that the law clearly limits liability for property owners. However, if you or Mr. Ralph Weston have a different interpretation of this statute, or know of another aspect of the law that prevents the granting of recreational easements or exposes owners to liability, please let me know. My staff will be happy to work with you toward creating any necessary legislative fix so that access to recreational trails can be expanded.
Sincerely,
<image001.jpg>
Valinda Bolton
VB/and
<RecTrailEaseBill_022309t.pdf>
Patrick Dixon
I was there yesterday and got caught up with a different committee
meeting. They all seem to be much less predictable than past
sessions. I was unable to get on the record in support of the bill,
but will send the letter I showed you to the committee members.
Patrick Dixon
"Everyone is always poor. Life is an underpaid occupation"
Milton Friedman