Texas 2009 - 81st Regular

Texas House Bill HB1483 Compare Versions

Only one version of the bill is available at this time.

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1	1	81R624 UM-D
2	2	By: Pitts H.B. No. 1483
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the use of eminent domain authority.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 2206, Government Code, is amended to
10	10	read as follows:
11	11	CHAPTER 2206. [LIMITATIONS ON USE OF] EMINENT DOMAIN
12	12	SUBCHAPTER A. GENERAL PROVISIONS
13	13	Sec. 2206.001. DEFINITION OF PUBLIC USE. Except as
14	14	otherwise provided by this chapter, "public use," with respect to
15	15	the use of eminent domain authority, means a use of property,
16	16	including a use described by Section 2206.051(c), that allows the
17	17	state, a political subdivision of the state, or the general public
18	18	of the state to possess, occupy, and enjoy the property.
19	19	SUBCHAPTER B. LIMITATIONS ON PURPOSE AND USE OF PROPERTY
20	20	ACQUIRED THROUGH EMINENT DOMAIN
21	21	Sec. 2206.051. LIMITATION ON EMINENT DOMAIN FOR PRIVATE
22	22	PARTIES OR ECONOMIC DEVELOPMENT PURPOSES. (a) This section
23	23	applies to the use of eminent domain under the laws of this state,
24	24	including a local or special law, by any governmental or private
25	25	entity, including:
26	26	(1) a state agency, including an institution of higher
27	27	education as defined by Section 61.003, Education Code;
28	28	(2) a political subdivision of this state; or
29	29	(3) a corporation created by a governmental entity to
30	30	act on behalf of the entity.
31	31	(b) A governmental or private entity may not take private
32	32	property through the use of eminent domain if the taking:
33	33	(1) confers a private benefit on a particular private
34	34	party through the use of the property;
35	35	(2) is for a public use that is merely a pretext to
36	36	confer a private benefit on a particular private party; [or]
37	37	(3) is for economic development purposes, unless the
38	38	economic development is a secondary purpose resulting from
39	39	municipal community development or municipal urban renewal
40	40	activities to eliminate an existing affirmative harm on society
41	41	from slum or blighted areas under:
42	42	(A) Chapter 373 or 374, Local Government Code,
43	43	other than an activity described by Section 373.002(b)(5), Local
44	44	Government Code; or
45	45	(B) Section 311.005(a)(1)(I), Tax Code; or
46	46	(4) is not for a public use.
47	47	(c) This section does not affect the authority of an entity
48	48	authorized by law to take private property through the use of
49	49	eminent domain for:
50	50	(1) transportation projects, including, but not
51	51	limited to, railroads, airports, or public roads or highways;
52	52	(2) entities authorized under Section 59, Article XVI,
53	53	Texas Constitution, including:
54	54	(A) port authorities;
55	55	(B) navigation districts; and
56	56	(C) any other conservation or reclamation
57	57	districts that act as ports;
58	58	(3) water supply, wastewater, flood control, and
59	59	drainage projects;
60	60	(4) public buildings, hospitals, and parks;
61	61	(5) the provision of utility services;
62	62	(6) a sports and community venue project approved by
63	63	voters at an election held on or before December 1, 2005, under
64	64	Chapter 334 or 335, Local Government Code;
65	65	(7) the operations of:
66	66	(A) a common carrier pipeline [subject to Chapter
67	67	111, Natural Resources Code, and Section B(3)(b), Article 2.01,
68	68	Texas Business Corporation Act]; or
69	69	(B) an energy transporter, as that term is
70	70	defined by Section 186.051, Utilities Code;
71	71	(8) a purpose authorized by Chapter 181, Utilities
72	72	Code;
73	73	(9) underground storage operations subject to Chapter
74	74	91, Natural Resources Code;
75	75	(10) a waste disposal project; or
76	76	(11) a library, museum, or related facility and any
77	77	infrastructure related to the facility.
78	78	(d) This section does not affect the authority of a
79	79	governmental entity to condemn a leasehold estate on property owned
80	80	by the governmental entity.
81	81	(e) The determination by the governmental or private entity
82	82	proposing to take the property that the taking does not involve an
83	83	act or circumstance prohibited by Subsection (b) does not create a
84	84	presumption with respect to whether the taking involves that act or
85	85	circumstance.
86	86	Sec. 2206.052. LIMITATIONS ON EASEMENTS. (a) A property
87	87	owner whose property is acquired through the use of eminent domain
88	88	under Chapter 21, Property Code, for the purpose of creating an
89	89	easement through that owner's property may construct streets or
90	90	roads, including a gravel, asphalt, or concrete road, at any
91	91	locations above the easement that the property owner chooses.
92	92	(b) The portion of a road constructed under this section
93	93	that is over the easement may not exceed 40 feet in width.
94	94	SUBCHAPTER C. PROCEDURES REQUIRED TO INITIATE
95	95	EMINENT DOMAIN PROCEEDINGS
96	96	Sec. 2206.101. SHORT TITLE. This subchapter may be cited as
97	97	the Truth in Condemnation Procedures Act.
98	98	Sec. 2206.102. APPLICABILITY. The procedures in this
99	99	subchapter apply only to the use of eminent domain under the laws of
100	100	this state by a governmental entity.
101	101	Sec. 2206.103. VOTE ON USE OF EMINENT DOMAIN. (a) Before a
102	102	governmental entity initiates a condemnation proceeding by filing a
103	103	petition under Section 21.012, Property Code, the governmental
104	104	entity must authorize the initiation of the condemnation
105	105	proceedings at a public meeting by a record vote.
106	106	(b) A single ordinance, resolution, or order may be adopted
107	107	for all units of property to be condemned if:
108	108	(1) the motion required by Subsection (e) indicates
109	109	that the first record vote applies to all units of property to be
110	110	condemned; and
111	111	(2) the minutes of the entity reflect that the first
112	112	vote applies to all of those units.
113	113	(c) If more than one member of the governing body objects to
114	114	adopting a single ordinance, resolution, or order by a record vote
115	115	for all units of property for which condemnation proceedings are to
116	116	be initiated, a separate record vote must be taken for each unit of
117	117	property.
118	118	(d) For the purposes of Subsections (a) and (c), if two or
119	119	more units of real property are owned by the same person, the
120	120	governmental entity may treat those units of property as one unit of
121	121	property.
122	122	(e) The motion to adopt an ordinance, resolution, or order
123	123	authorizing the initiation of condemnation proceedings under
124	124	Chapter 21, Property Code, must be made in a form substantially
125	125	similar to the following: "I move that the (name of governmental
126	126	entity) authorize the use of the power of eminent domain to acquire
127	127	(describe the property) for (describe the public use)." The
128	128	description of the property required by this subsection is
129	129	sufficient if the description of the location of and interest in the
130	130	property that the governmental entity seeks to acquire is
131	131	substantially similar to the description that is or could properly
132	132	be used in a petition to condemn the property under Section 21.012,
133	133	Property Code.
134	134	(f) If a project for a public use described by Section
135	135	2206.051(c)(3) will require a governmental entity to acquire
136	136	multiple tracts or units of property to construct facilities
137	137	connecting one location to another location, the governing body of
138	138	the entity may adopt a single ordinance, resolution, or order by a
139	139	record vote that delegates the authority to initiate condemnation
140	140	proceedings to the chief administrative official of the
141	141	governmental entity.
142	142	(g) An ordinance, resolution, or order adopted under
143	143	Subsection (f) is not required to identify specific properties that
144	144	the governmental entity will acquire. The ordinance, resolution,
145	145	or order must identify the general area to be covered by the project
146	146	or the general route that will be used by the governmental entity
147	147	for the project in a way that provides property owners in and around
148	148	the area or along the route reasonable notice that the owners'
149	149	properties may be subject to condemnation proceedings during the
150	150	planning or construction of the project.
151	151	SECTION 2. Subchapter B, Chapter 21, Property Code, is
152	152	amended by adding Section 21.0113 to read as follows:
153	153	Sec. 21.0113. BONA FIDE OFFER REQUIRED. An entity with
154	154	eminent domain authority that wants to acquire real property for a
155	155	public use must make a bona fide offer to acquire the property from
156	156	the property owner voluntarily. A bona fide offer is an offer that
157	157	is not arbitrary or capricious and is based on a reasonably thorough
158	158	investigation and honest assessment of the amount of the just
159	159	compensation due to the landowner as a result of the taking.
160	160	SECTION 3. Section 21.012(b), Property Code, is amended to
161	161	read as follows:
162	162	(b) The petition must:
163	163	(1) describe the property to be condemned;
164	164	(2) state the purpose for which the entity intends to
165	165	use the property;
166	166	(3) state the name of the owner of the property if the
167	167	owner is known;
168	168	(4) state that the entity and the property owner are
169	169	unable to agree on the damages; [and]
170	170	(5) if applicable, state that the entity provided the
171	171	property owner with the landowner's bill of rights statement in
172	172	accordance with Section 21.0112; and
173	173	(6) state that the entity made a bona fide offer to
174	174	acquire the property from the property owner voluntarily.
175	175	SECTION 4. Section 21.023, Property Code, is amended to
176	176	read as follows:
177	177	Sec. 21.023. DISCLOSURE OF INFORMATION REQUIRED AT TIME OF
178	178	ACQUISITION. A governmental entity shall disclose in writing to
179	179	the property owner, at the time of acquisition of the property
180	180	through eminent domain, that:
181	181	(1) the owner or the owner's heirs, successors, or
182	182	assigns are entitled to repurchase the property if the public use
183	183	for which the property was acquired through eminent domain is
184	184	canceled before the 10th anniversary of the date of acquisition;
185	185	and
186	186	(2) the repurchase price is the price paid to the owner
187	187	by the governmental entity at the time the governmental entity
188	188	acquired the property through eminent domain [fair market value of
189	189	the property at the time the public use was canceled].
190	190	SECTION 5. The heading to Section 21.024, Property Code, is
191	191	amended to read as follows:
192	192	Sec. 21.024. PRODUCTION OF INFORMATION BY CERTAIN ENTITIES
193	193	[CONSIDERED TO BE CRITICAL INFRASTRUCTURE].
194	194	SECTION 6. Sections 21.024(a) and (e), Property Code, are
195	195	amended to read as follows:
196	196	(a) [A utility, a common carrier, or a transporter of oil,
197	197	gas, or the products of oil or gas is considered to be within the
198	198	definition of critical infrastructure under Section 421.001,
199	199	Government Code.] Notwithstanding any other law, an entity that is
200	200	not subject to Chapter 552, Government Code, and that [which is
201	201	considered critical infrastructure and which] is authorized by law
202	202	to acquire [take] private property through the use of eminent
203	203	domain is required to produce information as provided by this
204	204	section if the information is:
205	205	(1) requested by a person who owns property that is the
206	206	subject of a proposed or existing eminent domain proceeding; and
207	207	(2) [, but only if the information is] related to the
208	208	taking of the person's private property by the entity through the
209	209	use of eminent domain.
210	210	(e) Jurisdiction to enforce the provisions of this section
211	211	resides in:
212	212	(1) the court in which the condemnation was initiated;
213	213	or
214	214	(2) if the condemnation proceeding has not been
215	215	initiated:
216	216	(A) a court that would have jurisdiction over a
217	217	proceeding to condemn the requestor's property; or
218	218	(B) a court with eminent domain jurisdiction in
219	219	the county in which the entity has its principal place of business
220	220	[that has jurisdiction over condemnation proceedings under this
221	221	chapter].
222	222	SECTION 7. Section 21.041, Property Code, is amended to
223	223	read as follows:
224	224	Sec. 21.041. EVIDENCE. (a) For the purposes of this
225	225	section, market value is the price a property will bring when
226	226	offered for sale by a person who desires to sell the property, but
227	227	is not obliged to sell the property, and is bought by a person who
228	228	desires to buy the property, but is not under a necessity to buy the
229	229	property.
230	230	(b) As the basis for assessing actual damages to a property
231	231	owner from a condemnation, the special commissioners shall, subject
232	232	to the Texas Rules of Evidence, admit evidence on:
233	233	(1) the market value, before the condemnation, of the
234	234	property being condemned;
235	235	(2) subject to Section 21.042, the net change to the
236	236	market value of [the injury to the property owner;
237	237	[(3) the benefit to] the property owner's remaining
238	238	property, considering both injury and benefit to the property
239	239	owner; and
240	240	(3) [(4)] the use of the property for the purpose of
241	241	the condemnation.
242	242	SECTION 8. Section 21.042(e), Property Code, is amended to
243	243	read as follows:
244	244	(e) If a portion of a tract or parcel of real property is
245	245	condemned for the use, construction, operation, or maintenance of
246	246	the state highway system or of a county toll project described by
247	247	Chapter 284, Transportation Code, that is eligible for designation
248	248	as part of the state highway system, the special commissioners
249	249	shall consider any diminished access to the highway and to or from
250	250	the remaining property to the extent that it affects the present
251	251	market value of the real property, including any factors considered
252	252	when determining actual fair market value of property for ad
253	253	valorem tax purposes [or for the use, construction, development,
254	254	operation, or maintenance of an improvement or project by a
255	255	metropolitan rapid transit authority created before January 1,
256	256	1980, with a principal municipality having a population of less
257	257	than 1.9 million and established under Chapter 451, Transportation
258	258	Code, the special commissioners shall determine the damage to the
259	259	property owner regardless of whether the property owner makes a
260	260	claim for damages to the remaining property. In awarding
261	261	compensation or assessing the damages, the special commissioners
262	262	shall consider any special and direct benefits that arise from the
263	263	highway improvement or the transit authority improvement or project
264	264	that are peculiar to the property owner and that relate to the
265	265	property owner's ownership, use, or enjoyment of the particular
266	266	parcel of remaining real property].
267	267	SECTION 9. Sections 21.046(a) and (b), Property Code, are
268	268	amended to read as follows:
269	269	(a) A department, agency, instrumentality, or political
270	270	subdivision of this state shall [may] provide a relocation advisory
271	271	service for an individual, a family, a business concern, a farming
272	272	or ranching operation, or a nonprofit organization that [if the
273	273	service] is compatible with the Federal Uniform Relocation
274	274	Assistance Advisory Program, 42 U.S.C.A. 4601 [23 U.S.C.A. 501], et
275	275	seq.
276	276	(b) This state or a political subdivision of this state
277	277	shall [may], as a cost of acquiring real property, pay moving
278	278	expenses and rental supplements, make relocation payments, provide
279	279	financial assistance to acquire replacement housing, and
280	280	compensate for expenses incidental to the transfer of the property
281	281	if an individual, a family, the personal property of a business, a
282	282	farming or ranching operation, or a nonprofit organization is
283	283	displaced in connection with the acquisition.
284	284	SECTION 10. The heading to Section 21.047, Property Code,
285	285	is amended to read as follows:
286	286	Sec. 21.047. ASSESSMENT OF COSTS AND FEES.
287	287	SECTION 11. Section 21.047, Property Code, is amended by
288	288	adding Subsection (d) to read as follows:
289	289	(d) If a court hearing a suit under this chapter determines
290	290	that a condemning entity did not make a bona fide offer to acquire
291	291	the property from the property owner voluntarily as required by
292	292	Section 21.0113, the court shall abate the suit and order the
293	293	condemnor to make a bona fide offer. If the court finds that by
294	294	filing a petition under Section 21.012 or by filing any other motion
295	295	or pleading in the proceeding initiated by the filing of that
296	296	petition the condemnor violated Chapter 10, Civil Practice and
297	297	Remedies Code, the court shall order the condemnor to pay:
298	298	(1) all costs as provided by Subsection (a); and
299	299	(2) any reasonable attorney's fees incurred by the
300	300	owner that are directly related to the violation.
301	301	SECTION 12. Section 21.101(a), Property Code, is amended to
302	302	read as follows:
303	303	(a) Except as provided in Subsection (b), this subchapter
304	304	applies only to a real property interest acquired by a governmental
305	305	entity through eminent domain for a public use, other than a real
306	306	property interest acquired by a port for deep water navigation. A
307	307	person from whom the property interest is acquired or that person's
308	308	heirs, successors, or assigns are entitled to repurchase the
309	309	property as provided by this subchapter if that public use was
310	310	canceled before the 10th anniversary of the date of acquisition or
311	311	the governmental entity fails to begin the operation or
312	312	construction of the project for which the property was acquired
313	313	before the 10th anniversary of that date.
314	314	SECTION 13. Section 21.102, Property Code, is amended to
315	315	read as follows:
316	316	Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER AT TIME OF
317	317	CANCELLATION OF PUBLIC USE OR ON FAILURE TO BEGIN OPERATION OR
318	318	CONSTRUCTION OF PROJECT. Not later than the 180th day after the
319	319	date of the cancellation of the public use for which real property
320	320	was acquired through eminent domain from a property owner under
321	321	Subchapter B or the 180th day after the 10th anniversary of the date
322	322	on which the property was acquired if the governmental entity fails
323	323	to begin the operation or construction of the project for which the
324	324	property was acquired before the 10th anniversary of that date, the
325	325	governmental entity shall send by certified mail, return receipt
326	326	requested, to the property owner or the owner's heirs, successors,
327	327	or assigns a notice containing:
328	328	(1) an identification, which is not required to be a
329	329	legal description, of the property that was acquired;
330	330	(2) an identification of the public use for which the
331	331	property had been acquired and a statement that the public use has
332	332	been canceled or the governmental entity has failed to begin the
333	333	operation or construction of the project for which the property was
334	334	acquired; and
335	335	(3) a description of the person's right under this
336	336	subchapter to repurchase the property.
337	337	SECTION 14. Section 21.103(b), Property Code, is amended to
338	338	read as follows:
339	339	(b) As soon as practicable after receipt of a [the]
340	340	notification under Subsection (a), the governmental entity shall
341	341	offer to sell the property interest to the person for the price paid
342	342	to the owner by the governmental entity at the time the governmental
343	343	entity acquired the property through eminent domain [fair market
344	344	value of the property at the time the public use was canceled]. The
345	345	person's right to repurchase the property expires on the 90th day
346	346	after the date on which the governmental entity makes the offer.
347	347	SECTION 15. Subchapter B, Chapter 111, Natural Resources
348	348	Code, is amended by adding Section 111.0195 to read as follows:
349	349	Sec. 111.0195. RIGHT OF EMINENT DOMAIN: ADDITIONAL
350	350	PROCEDURES. (a) This section applies only to a condemnation
351	351	proceeding initiated by a common carrier, as that term is defined by
352	352	Section 111.002.
353	353	(b) On or before the date a common carrier that intends to
354	354	exercise the power of eminent domain files a condemnation petition,
355	355	the common carrier must serve the owner of the property to be
356	356	acquired with notice that the common carrier intends to initiate
357	357	condemnation proceedings.
358	358	(c) The special commissioners in an eminent domain
359	359	proceeding to which this section applies:
360	360	(1) may not schedule a hearing to assess damages
361	361	before the 30th day after the date of the special commissioners'
362	362	appointment; and
363	363	(2) must serve a property owner with notice informing
364	364	the property owner of the time and place of the hearing not later
365	365	than the 21st day before the date set for the hearing.
366	366	(d) A court that has jurisdiction over a condemnation
367	367	proceeding may appoint a replacement special commissioner if:
368	368	(1) the property owner or the common carrier objects
369	369	to the appointment of a special commissioner by filing a written
370	370	statement of the person's objections on the grounds of:
371	371	(A) a conflict of interest; or
372	372	(B) other good cause; and
373	373	(2) the court determines in a hearing that good cause
374	374	is shown.
375	375	(e) The special commissioners may delay scheduling a
376	376	hearing for a reasonable period if, by motion to the court that has
377	377	jurisdiction over the condemnation proceeding, the property owner
378	378	requests and is granted a delay by the court for good cause shown.
379	379	(f) A notice to a property owner under this section must be
380	380	served by:
381	381	(1) regular mail; and
382	382	(2) certified mail, return receipt requested.
383	383	(g) A common carrier has the burden of proof to establish
384	384	that notice was provided as required by Subsection (b).
385	385	SECTION 16. Subchapter G, Chapter 13, Water Code, is
386	386	amended by adding Section 13.258 to read as follows:
387	387	Sec. 13.258. EMINENT DOMAIN. (a) A water and sewer utility
388	388	that is operating in accordance with its certificate of convenience
389	389	and necessity may acquire by condemnation only easements or lesser
390	390	property interests reasonably necessary to comply with federal and
391	391	state regulations relating to sanitation.
392	392	(b) The water and sewer utility shall exercise the power of
393	393	eminent domain in the manner provided by Chapter 21, Property Code.
394	394	(c) The water and sewer utility may not exercise the power
395	395	of eminent domain to condemn land to acquire rights to underground
396	396	water or for water or water rights.
397	397	(d) A water and sewer utility may not exercise the power of
398	398	eminent domain in a municipality with a population of more than 1.7
399	399	million or in the municipality's extraterritorial jurisdiction to
400	400	condemn land in which the municipality owns a fee, easement, or
401	401	lesser property interest.
402	402	SECTION 17. Subchapter D, Chapter 101, Government Code, is
403	403	amended by adding Section 101.06161 to read as follows:
404	404	Sec. 101.06161. DISTRICT COURT FEES AND COSTS: PROPERTY
405	405	CODE. The clerk of a district court shall collect the following
406	406	fees and costs under the Property Code:
407	407	(1) court costs for each special commissioner in an
408	408	eminent domain proceeding (Sec. 21.047, Property Code) . . . as
409	409	taxed by the court, $10 or more; and
410	410	(2) court costs and attorney's fees in an eminent
411	411	domain proceeding (Sec. 21.047, Property Code) . . . as taxed by
412	412	the court and as reasonable, respectively.
413	413	SECTION 18. Section 101.0816, Government Code, is amended
414	414	to read as follows:
415	415	Sec. 101.0816. STATUTORY COUNTY COURT FEES AND COSTS:
416	416	PROPERTY CODE. The clerk of a statutory county court shall collect
417	417	fees and costs under the Property Code as follows:
418	418	(1) court costs [a court cost in the amount of $10 or
419	419	more, as taxed by the court under Section 21.047, Property Code,]
420	420	for each special commissioner in an eminent domain proceeding (Sec.
421	421	21.047, Property Code) . . . as taxed by the court, $10 or more; and
422	422	(2) court costs and attorney's fees in an eminent
423	423	domain proceeding (Sec. 21.047, Property Code) . . . as taxed by
424	424	the court and as reasonable, respectively.
425	425	SECTION 19. Subchapter G, Chapter 101, Government Code, is
426	426	amended by adding Section 101.12151 to read as follows:
427	427	Sec. 101.12151. COUNTY COURT FEES AND COSTS: PROPERTY CODE.
428	428	The clerk of a county court shall collect the following fees and
429	429	costs under the Property Code:
430	430	(1) court costs for each special commissioner in an
431	431	eminent domain proceeding (Sec. 21.047, Property Code) . . . as
432	432	taxed by the court, $10 or more; and
433	433	(2) court costs and attorney's fees in an eminent
434	434	domain proceeding (Sec. 21.047, Property Code) . . . as taxed by
435	435	the court and as reasonable, respectively.
436	436	SECTION 20. (a) Section 21.024(i), Property Code, is
437	437	repealed.
438	438	(b) Section 552.0037, Government Code, is repealed.
439	439	SECTION 21. Not later than January 1, 2011, the comptroller
440	440	shall:
441	441	(1) identify all public and private entities with
442	442	eminent domain authority; and
443	443	(2) make recommendations to the legislature and the
444	444	governor regarding:
445	445	(A) which entities have, need, or should have
446	446	eminent domain authority;
447	447	(B) whether that eminent domain authority of
448	448	those entities should be continued, expanded, or limited; and
449	449	(C) the cause and effect of continuing,
450	450	eliminating, expanding, or limiting the eminent domain authority of
451	451	those entities.
452	452	SECTION 22. The changes in law made by Chapter 2206,
453	453	Government Code, and Chapter 21, Property Code, as amended by this
454	454	Act, and Section 111.0195, Natural Resources Code, and Section
455	455	13.258, Water Code, as added by this Act, apply only to a
456	456	condemnation proceeding in which the petition is filed on or after
457	457	the effective date of this Act and to any property condemned through
458	458	the proceeding. A condemnation proceeding in which the petition is
459	459	filed before the effective date of this Act and any property
460	460	condemned through the proceeding is governed by the law in effect
461	461	immediately before that date, and that law is continued in effect
462	462	for that purpose.
463	463	SECTION 23. This Act takes effect September 1, 2009.