81R624 UM-D
By: Pitts H.B. No. 1483
A BILL TO BE ENTITLED
AN ACT
relating to the use of eminent domain authority.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2206, Government Code, is amended to
read as follows:
CHAPTER 2206. [LIMITATIONS ON USE OF] EMINENT DOMAIN
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2206.001. DEFINITION OF PUBLIC USE. Except as
otherwise provided by this chapter, "public use," with respect to
the use of eminent domain authority, means a use of property,
including a use described by Section 2206.051(c), that allows the
state, a political subdivision of the state, or the general public
of the state to possess, occupy, and enjoy the property.
SUBCHAPTER B. LIMITATIONS ON PURPOSE AND USE OF PROPERTY
ACQUIRED THROUGH EMINENT DOMAIN
Sec. 2206.051. LIMITATION ON EMINENT DOMAIN FOR PRIVATE
PARTIES OR ECONOMIC DEVELOPMENT PURPOSES. (a) This section
applies to the use of eminent domain under the laws of this state,
including a local or special law, by any governmental or private
entity, including:
(1) a state agency, including an institution of higher
education as defined by Section 61.003, Education Code;
(2) a political subdivision of this state; or
(3) a corporation created by a governmental entity to
act on behalf of the entity.
(b) A governmental or private entity may not take private
property through the use of eminent domain if the taking:
(1) confers a private benefit on a particular private
party through the use of the property;
(2) is for a public use that is merely a pretext to
confer a private benefit on a particular private party; [or]
(3) is for economic development purposes, unless the
economic development is a secondary purpose resulting from
municipal community development or municipal urban renewal
activities to eliminate an existing affirmative harm on society
from slum or blighted areas under:
(A) Chapter 373 or 374, Local Government Code,
other than an activity described by Section 373.002(b)(5), Local
Government Code; or
(B) Section 311.005(a)(1)(I), Tax Code; or
(4) is not for a public use.
(c) This section does not affect the authority of an entity
authorized by law to take private property through the use of
eminent domain for:
(1) transportation projects, including, but not
limited to, railroads, airports, or public roads or highways;
(2) entities authorized under Section 59, Article XVI,
Texas Constitution, including:
(A) port authorities;
(B) navigation districts; and
(C) any other conservation or reclamation
districts that act as ports;
(3) water supply, wastewater, flood control, and
drainage projects;
(4) public buildings, hospitals, and parks;
(5) the provision of utility services;
(6) a sports and community venue project approved by
voters at an election held on or before December 1, 2005, under
Chapter 334 or 335, Local Government Code;
(7) the operations of:
(A) a common carrier pipeline [subject to Chapter
111, Natural Resources Code, and Section B(3)(b), Article 2.01,
Texas Business Corporation Act]; or
(B) an energy transporter, as that term is
defined by Section 186.051, Utilities Code;
(8) a purpose authorized by Chapter 181, Utilities
Code;
(9) underground storage operations subject to Chapter
91, Natural Resources Code;
(10) a waste disposal project; or
(11) a library, museum, or related facility and any
infrastructure related to the facility.
(d) This section does not affect the authority of a
governmental entity to condemn a leasehold estate on property owned
by the governmental entity.
(e) The determination by the governmental or private entity
proposing to take the property that the taking does not involve an
act or circumstance prohibited by Subsection (b) does not create a
presumption with respect to whether the taking involves that act or
circumstance.
Sec. 2206.052. LIMITATIONS ON EASEMENTS. (a) A property
owner whose property is acquired through the use of eminent domain
under Chapter 21, Property Code, for the purpose of creating an
easement through that owner's property may construct streets or
roads, including a gravel, asphalt, or concrete road, at any
locations above the easement that the property owner chooses.
(b) The portion of a road constructed under this section
that is over the easement may not exceed 40 feet in width.
SUBCHAPTER C. PROCEDURES REQUIRED TO INITIATE
EMINENT DOMAIN PROCEEDINGS
Sec. 2206.101. SHORT TITLE. This subchapter may be cited as
the Truth in Condemnation Procedures Act.
Sec. 2206.102. APPLICABILITY. The procedures in this
subchapter apply only to the use of eminent domain under the laws of
this state by a governmental entity.
Sec. 2206.103. VOTE ON USE OF EMINENT DOMAIN. (a) Before a
governmental entity initiates a condemnation proceeding by filing a
petition under Section 21.012, Property Code, the governmental
entity must authorize the initiation of the condemnation
proceedings at a public meeting by a record vote.
(b) A single ordinance, resolution, or order may be adopted
for all units of property to be condemned if:
(1) the motion required by Subsection (e) indicates
that the first record vote applies to all units of property to be
condemned; and
(2) the minutes of the entity reflect that the first
vote applies to all of those units.
(c) If more than one member of the governing body objects to
adopting a single ordinance, resolution, or order by a record vote
for all units of property for which condemnation proceedings are to
be initiated, a separate record vote must be taken for each unit of
property.
(d) For the purposes of Subsections (a) and (c), if two or
more units of real property are owned by the same person, the
governmental entity may treat those units of property as one unit of
property.
(e) The motion to adopt an ordinance, resolution, or order
authorizing the initiation of condemnation proceedings under
Chapter 21, Property Code, must be made in a form substantially
similar to the following: "I move that the (name of governmental
entity) authorize the use of the power of eminent domain to acquire
(describe the property) for (describe the public use)." The
description of the property required by this subsection is
sufficient if the description of the location of and interest in the
property that the governmental entity seeks to acquire is
substantially similar to the description that is or could properly
be used in a petition to condemn the property under Section 21.012,
Property Code.
(f) If a project for a public use described by Section
2206.051(c)(3) will require a governmental entity to acquire
multiple tracts or units of property to construct facilities
connecting one location to another location, the governing body of
the entity may adopt a single ordinance, resolution, or order by a
record vote that delegates the authority to initiate condemnation
proceedings to the chief administrative official of the
governmental entity.
(g) An ordinance, resolution, or order adopted under
Subsection (f) is not required to identify specific properties that
the governmental entity will acquire. The ordinance, resolution,
or order must identify the general area to be covered by the project
or the general route that will be used by the governmental entity
for the project in a way that provides property owners in and around
the area or along the route reasonable notice that the owners'
properties may be subject to condemnation proceedings during the
planning or construction of the project.
SECTION 2. Subchapter B, Chapter 21, Property Code, is
amended by adding Section 21.0113 to read as follows:
Sec. 21.0113. BONA FIDE OFFER REQUIRED. An entity with
eminent domain authority that wants to acquire real property for a
public use must make a bona fide offer to acquire the property from
the property owner voluntarily. A bona fide offer is an offer that
is not arbitrary or capricious and is based on a reasonably thorough
investigation and honest assessment of the amount of the just
compensation due to the landowner as a result of the taking.
SECTION 3. Section 21.012(b), Property Code, is amended to
read as follows:
(b) The petition must:
(1) describe the property to be condemned;
(2) state the purpose for which the entity intends to
use the property;
(3) state the name of the owner of the property if the
owner is known;
(4) state that the entity and the property owner are
unable to agree on the damages; [and]
(5) if applicable, state that the entity provided the
property owner with the landowner's bill of rights statement in
accordance with Section 21.0112; and
(6) state that the entity made a bona fide offer to
acquire the property from the property owner voluntarily.
SECTION 4. Section 21.023, Property Code, is amended to
read as follows:
Sec. 21.023. DISCLOSURE OF INFORMATION REQUIRED AT TIME OF
ACQUISITION. A governmental entity shall disclose in writing to
the property owner, at the time of acquisition of the property
through eminent domain, that:
(1) the owner or the owner's heirs, successors, or
assigns are entitled to repurchase the property if the public use
for which the property was acquired through eminent domain is
canceled before the 10th anniversary of the date of acquisition;
and
(2) the repurchase price is the price paid to the owner
by the governmental entity at the time the governmental entity
acquired the property through eminent domain [fair market value of
the property at the time the public use was canceled].
SECTION 5. The heading to Section 21.024, Property Code, is
amended to read as follows:
Sec. 21.024. PRODUCTION OF INFORMATION BY CERTAIN ENTITIES
[CONSIDERED TO BE CRITICAL INFRASTRUCTURE].
SECTION 6. Sections 21.024(a) and (e), Property Code, are
amended to read as follows:
(a) [A utility, a common carrier, or a transporter of oil,
gas, or the products of oil or gas is considered to be within the
definition of critical infrastructure under Section 421.001,
Government Code.] Notwithstanding any other law, an entity that is
not subject to Chapter 552, Government Code, and that [which is
considered critical infrastructure and which] is authorized by law
to acquire [take] private property through the use of eminent
domain is required to produce information as provided by this
section if the information is:
(1) requested by a person who owns property that is the
subject of a proposed or existing eminent domain proceeding; and
(2) [, but only if the information is] related to the
taking of the person's private property by the entity through the
use of eminent domain.
(e) Jurisdiction to enforce the provisions of this section
resides in:
(1) the court in which the condemnation was initiated;
or
(2) if the condemnation proceeding has not been
initiated:
(A) a court that would have jurisdiction over a
proceeding to condemn the requestor's property; or
(B) a court with eminent domain jurisdiction in
the county in which the entity has its principal place of business
[that has jurisdiction over condemnation proceedings under this
chapter].
SECTION 7. Section 21.041, Property Code, is amended to
read as follows:
Sec. 21.041. EVIDENCE. (a) For the purposes of this
section, market value is the price a property will bring when
offered for sale by a person who desires to sell the property, but
is not obliged to sell the property, and is bought by a person who
desires to buy the property, but is not under a necessity to buy the
property.
(b) As the basis for assessing actual damages to a property
owner from a condemnation, the special commissioners shall, subject
to the Texas Rules of Evidence, admit evidence on:
(1) the market value, before the condemnation, of the
property being condemned;
(2) subject to Section 21.042, the net change to the
market value of [the injury to the property owner;
[(3) the benefit to] the property owner's remaining
property, considering both injury and benefit to the property
owner; and
(3) [(4)] the use of the property for the purpose of
the condemnation.
SECTION 8. Section 21.042(e), Property Code, is amended to
read as follows:
(e) If a portion of a tract or parcel of real property is
condemned for the use, construction, operation, or maintenance of
the state highway system or of a county toll project described by
Chapter 284, Transportation Code, that is eligible for designation
as part of the state highway system, the special commissioners
shall consider any diminished access to the highway and to or from
the remaining property to the extent that it affects the present
market value of the real property, including any factors considered
when determining actual fair market value of property for ad
valorem tax purposes [or for the use, construction, development,
operation, or maintenance of an improvement or project by a
metropolitan rapid transit authority created before January 1,
1980, with a principal municipality having a population of less
than 1.9 million and established under Chapter 451, Transportation
Code, the special commissioners shall determine the damage to the
property owner regardless of whether the property owner makes a
claim for damages to the remaining property. In awarding
compensation or assessing the damages, the special commissioners
shall consider any special and direct benefits that arise from the
highway improvement or the transit authority improvement or project
that are peculiar to the property owner and that relate to the
property owner's ownership, use, or enjoyment of the particular
parcel of remaining real property].
SECTION 9. Sections 21.046(a) and (b), Property Code, are
amended to read as follows:
(a) A department, agency, instrumentality, or political
subdivision of this state shall [may] provide a relocation advisory
service for an individual, a family, a business concern, a farming
or ranching operation, or a nonprofit organization that [if the
service] is compatible with the Federal Uniform Relocation
Assistance Advisory Program, 42 U.S.C.A. 4601 [23 U.S.C.A. 501], et
seq.
(b) This state or a political subdivision of this state
shall [may], as a cost of acquiring real property, pay moving
expenses and rental supplements, make relocation payments, provide
financial assistance to acquire replacement housing, and
compensate for expenses incidental to the transfer of the property
if an individual, a family, the personal property of a business, a
farming or ranching operation, or a nonprofit organization is
displaced in connection with the acquisition.
SECTION 10. The heading to Section 21.047, Property Code,
is amended to read as follows:
Sec. 21.047. ASSESSMENT OF COSTS AND FEES.
SECTION 11. Section 21.047, Property Code, is amended by
adding Subsection (d) to read as follows:
(d) If a court hearing a suit under this chapter determines
that a condemning entity did not make a bona fide offer to acquire
the property from the property owner voluntarily as required by
Section 21.0113, the court shall abate the suit and order the
condemnor to make a bona fide offer. If the court finds that by
filing a petition under Section 21.012 or by filing any other motion
or pleading in the proceeding initiated by the filing of that
petition the condemnor violated Chapter 10, Civil Practice and
Remedies Code, the court shall order the condemnor to pay:
(1) all costs as provided by Subsection (a); and
(2) any reasonable attorney's fees incurred by the
owner that are directly related to the violation.
SECTION 12. Section 21.101(a), Property Code, is amended to
read as follows:
(a) Except as provided in Subsection (b), this subchapter
applies only to a real property interest acquired by a governmental
entity through eminent domain for a public use, other than a real
property interest acquired by a port for deep water navigation. A
person from whom the property interest is acquired or that person's
heirs, successors, or assigns are entitled to repurchase the
property as provided by this subchapter if that public use was
canceled before the 10th anniversary of the date of acquisition or
the governmental entity fails to begin the operation or
construction of the project for which the property was acquired
before the 10th anniversary of that date.
SECTION 13. Section 21.102, Property Code, is amended to
read as follows:
Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER AT TIME OF
CANCELLATION OF PUBLIC USE OR ON FAILURE TO BEGIN OPERATION OR
CONSTRUCTION OF PROJECT. Not later than the 180th day after the
date of the cancellation of the public use for which real property
was acquired through eminent domain from a property owner under
Subchapter B or the 180th day after the 10th anniversary of the date
on which the property was acquired if the governmental entity fails
to begin the operation or construction of the project for which the
property was acquired before the 10th anniversary of that date, the
governmental entity shall send by certified mail, return receipt
requested, to the property owner or the owner's heirs, successors,
or assigns a notice containing:
(1) an identification, which is not required to be a
legal description, of the property that was acquired;
(2) an identification of the public use for which the
property had been acquired and a statement that the public use has
been canceled or the governmental entity has failed to begin the
operation or construction of the project for which the property was
acquired; and
(3) a description of the person's right under this
subchapter to repurchase the property.
SECTION 14. Section 21.103(b), Property Code, is amended to
read as follows:
(b) As soon as practicable after receipt of a [the]
notification under Subsection (a), the governmental entity shall
offer to sell the property interest to the person for the price paid
to the owner by the governmental entity at the time the governmental
entity acquired the property through eminent domain [fair market
value of the property at the time the public use was canceled]. The
person's right to repurchase the property expires on the 90th day
after the date on which the governmental entity makes the offer.
SECTION 15. Subchapter B, Chapter 111, Natural Resources
Code, is amended by adding Section 111.0195 to read as follows:
Sec. 111.0195. RIGHT OF EMINENT DOMAIN: ADDITIONAL
PROCEDURES. (a) This section applies only to a condemnation
proceeding initiated by a common carrier, as that term is defined by
Section 111.002.
(b) On or before the date a common carrier that intends to
exercise the power of eminent domain files a condemnation petition,
the common carrier must serve the owner of the property to be
acquired with notice that the common carrier intends to initiate
condemnation proceedings.
(c) The special commissioners in an eminent domain
proceeding to which this section applies:
(1) may not schedule a hearing to assess damages
before the 30th day after the date of the special commissioners'
appointment; and
(2) must serve a property owner with notice informing
the property owner of the time and place of the hearing not later
than the 21st day before the date set for the hearing.
(d) A court that has jurisdiction over a condemnation
proceeding may appoint a replacement special commissioner if:
(1) the property owner or the common carrier objects
to the appointment of a special commissioner by filing a written
statement of the person's objections on the grounds of:
(A) a conflict of interest; or
(B) other good cause; and
(2) the court determines in a hearing that good cause
is shown.
(e) The special commissioners may delay scheduling a
hearing for a reasonable period if, by motion to the court that has
jurisdiction over the condemnation proceeding, the property owner
requests and is granted a delay by the court for good cause shown.
(f) A notice to a property owner under this section must be
served by:
(1) regular mail; and
(2) certified mail, return receipt requested.
(g) A common carrier has the burden of proof to establish
that notice was provided as required by Subsection (b).
SECTION 16. Subchapter G, Chapter 13, Water Code, is
amended by adding Section 13.258 to read as follows:
Sec. 13.258. EMINENT DOMAIN. (a) A water and sewer utility
that is operating in accordance with its certificate of convenience
and necessity may acquire by condemnation only easements or lesser
property interests reasonably necessary to comply with federal and
state regulations relating to sanitation.
(b) The water and sewer utility shall exercise the power of
eminent domain in the manner provided by Chapter 21, Property Code.
(c) The water and sewer utility may not exercise the power
of eminent domain to condemn land to acquire rights to underground
water or for water or water rights.
(d) A water and sewer utility may not exercise the power of
eminent domain in a municipality with a population of more than 1.7
million or in the municipality's extraterritorial jurisdiction to
condemn land in which the municipality owns a fee, easement, or
lesser property interest.
SECTION 17. Subchapter D, Chapter 101, Government Code, is
amended by adding Section 101.06161 to read as follows:
Sec. 101.06161. DISTRICT COURT FEES AND COSTS: PROPERTY
CODE. The clerk of a district court shall collect the following
fees and costs under the Property Code:
(1) court costs for each special commissioner in an
eminent domain proceeding (Sec. 21.047, Property Code) . . . as
taxed by the court, $10 or more; and
(2) court costs and attorney's fees in an eminent
domain proceeding (Sec. 21.047, Property Code) . . . as taxed by
the court and as reasonable, respectively.
SECTION 18. Section 101.0816, Government Code, is amended
to read as follows:
Sec. 101.0816. STATUTORY COUNTY COURT FEES AND COSTS:
PROPERTY CODE. The clerk of a statutory county court shall collect
fees and costs under the Property Code as follows:
(1) court costs [a court cost in the amount of $10 or
more, as taxed by the court under Section 21.047, Property Code,]
for each special commissioner in an eminent domain proceeding (Sec.
21.047, Property Code) . . . as taxed by the court, $10 or more; and
(2) court costs and attorney's fees in an eminent
domain proceeding (Sec. 21.047, Property Code) . . . as taxed by
the court and as reasonable, respectively.
SECTION 19. Subchapter G, Chapter 101, Government Code, is
amended by adding Section 101.12151 to read as follows:
Sec. 101.12151. COUNTY COURT FEES AND COSTS: PROPERTY CODE.
The clerk of a county court shall collect the following fees and
costs under the Property Code:
(1) court costs for each special commissioner in an
eminent domain proceeding (Sec. 21.047, Property Code) . . . as
taxed by the court, $10 or more; and
(2) court costs and attorney's fees in an eminent
domain proceeding (Sec. 21.047, Property Code) . . . as taxed by
the court and as reasonable, respectively.
SECTION 20. (a) Section 21.024(i), Property Code, is
repealed.
(b) Section 552.0037, Government Code, is repealed.
SECTION 21. Not later than January 1, 2011, the comptroller
shall:
(1) identify all public and private entities with
eminent domain authority; and
(2) make recommendations to the legislature and the
governor regarding:
(A) which entities have, need, or should have
eminent domain authority;
(B) whether that eminent domain authority of
those entities should be continued, expanded, or limited; and
(C) the cause and effect of continuing,
eliminating, expanding, or limiting the eminent domain authority of
those entities.
SECTION 22. The changes in law made by Chapter 2206,
Government Code, and Chapter 21, Property Code, as amended by this
Act, and Section 111.0195, Natural Resources Code, and Section
13.258, Water Code, as added by this Act, apply only to a
condemnation proceeding in which the petition is filed on or after
the effective date of this Act and to any property condemned through
the proceeding. A condemnation proceeding in which the petition is
filed before the effective date of this Act and any property
condemned through the proceeding is governed by the law in effect
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 23. This Act takes effect September 1, 2009.