Texas 2009 - 81st Regular

Texas House Bill HB3032 Compare Versions

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1	1	H.B. No. 3032
2	2
3	3
4	4	AN ACT
5	5	relating to the sale of certain property at Possum Kingdom Lake by
6	6	the Brazos River Authority.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Chapter 8502, Special District Local Laws Code,
9	9	is amended by adding Section 8502.0132 to read as follows:
10	10	Sec. 8502.0132. SALE OF CAPTIVE PROPERTY AT POSSUM KINGDOM
11	11	LAKE. (a) In this section:
12	12	(1) "Adjacent Land" means the real property owned by
13	13	the applicable Offeree that is adjacent to the applicable Captive
14	14	Property To Be Sold.
15	15	(2) "Captive Property To Be Sold" means those portions
16	16	of the following tracts of real property owned by the Authority at
17	17	the Lake that are located above the 1000' contour line, but does not
18	18	include any portion of the following tracts that is part of Project
19	19	Land or property that is leased for single-family residential
20	20	purposes as of the effective date of the Act enacting this section:
21	21	(A) two tracts of land totaling 2019.86 acres,
22	22	more or less, in Palo Pinto County, Texas, described in Brazos River
23	23	Authority Records as Tracts 8-1-93 and 9-3-9, as such Tracts are
24	24	more particularly described in an Award of Commissioners entered
25	25	June 28, 1940, in the County Court of Palo Pinto County, Texas, in
26	26	Cause No. 2539, styled Brazos River Conservation and Reclamation
27	27	District versus Orland R. Seaman, Et Al., as the same appears on
28	28	file and of record in Volume 5, Pages 414 and 419, et seq., Civil
29	29	Minutes of the County Court of Palo Pinto County, Texas; and
30	30	(B) a 2278.3 acre tract of land, more or less, in
31	31	Palo Pinto County, Texas, described in Brazos River Authority
32	32	records as Tract 11-2-46, as such tract is more particularly
33	33	described in deeds recorded at Book 181, Page 325, Book 182, Page
34	34	339, Book 183, Page 12, and Book 183, Page 16, in Palo Pinto County
35	35	Records, Palo Pinto County, Texas.
36	36	(3) "FERC License" means the order of the Federal
37	37	Energy Regulatory Commission issuing a license to the Authority for
38	38	project number 1490-003-Texas on September 8, 1989, as such license
39	39	has been renewed, extended, or amended and may be further renewed,
40	40	extended, or amended at any time and from time to time, and
41	41	including the Amendment to the original FERC license that was
42	42	issued on May 15, 1980, to the extent incorporated or referenced in
43	43	the FERC License.
44	44	(4) "Lake" means Possum Kingdom Lake located in Young,
45	45	Palo Pinto, Stephens, and Jack Counties. The boundary of the Lake is
46	46	defined by the 1000' contour line, as that contour may meander and
47	47	change over time with natural forces, including erosion and
48	48	accretion. The "1000' contour line" means the line running along
49	49	the periphery of the Lake if the surface of the Lake is at an
50	50	elevation of 1000 feet above mean sea level, as measured from the
51	51	top of the spillway crest gates of the Morris Sheppard Dam, as such
52	52	line may move and shift from time to time due to natural forces.
53	53	(5) "Offeree" means any person to whom an offer to sell
54	54	Captive Property To Be Sold is to be made under this section. To
55	55	qualify as an Offeree, a person must own in fee simple the real
56	56	property adjacent to the Captive Property To Be Sold, and be able to
57	57	provide an attorney's opinion or other satisfactory legal
58	58	documentation that such Offeree meets the qualifications of an
59	59	Offeree under this subdivision.
60	60	(6) "Project Land" means that portion of Authority
61	61	property that is subject to the FERC License, as identified and
62	62	defined in the FERC License, as may be amended at any time, and from
63	63	time to time, and which Project Land may move or change over time
64	64	due to natural forces.
65	65	(b) Notwithstanding any other provision of this chapter,
66	66	the Authority is directed to sell all Captive Property To Be Sold in
67	67	accordance with the directives of this section, including the
68	68	following:
69	69	(1) Within 90 days of the effective date of the Act
70	70	enacting this section, the Authority shall publish a list of the
71	71	parcels at the Lake that qualify as Captive Property To Be Sold and
72	72	an "Application Of Intent To Purchase" form for use by the Offerees
73	73	as provided by this section.
74	74	(2) Each listed parcel of Captive Property To Be Sold
75	75	shall be offered for sale at its fair market value to the Offeree
76	76	who owns any Adjacent Land that is adjacent to that specific parcel
77	77	of Captive Property To Be Sold, and each Adjacent Land owner has the
78	78	right (but not the obligation) to purchase the parcel in equal
79	79	proportion among those wishing to acquire same.
80	80	(3) Any Offeree who desires to purchase Captive
81	81	Property To Be Sold must, within 180 days of the inclusion of that
82	82	property on the published list of Captive Property To Be Sold under
83	83	Subdivision (1), submit a completed Application Of Intent To
84	84	Purchase form to the Authority.
85	85	(4) If the Authority does not receive an Application
86	86	Of Intent To Purchase from an Offeree within the required time, the
87	87	Offeree shall be deemed to have waived any right to purchase the
88	88	subject property under this section and the Authority shall have
89	89	the right to retain or sell such property as directed by the board.
90	90	(5) The Authority shall accept and process all
91	91	Application Of Intent To Purchase forms in the order in which they
92	92	are received.
93	93	(6) Any sale of property under this section must be
94	94	handled as if it were a private sale for fair market value under
95	95	Section 49.226(a), Water Code.
96	96	(7) The fair market value of the Captive Property To Be
97	97	Sold must be determined as follows:
98	98	(A) Within forty-five (45) days of the
99	99	Authority's receipt of the Offeree's completed Application Of
100	100	Intent To Purchase and an acceptable survey as provided by
101	101	Subsection (d)(1), the Authority shall provide the Offeree with an
102	102	appraisal of the fair market value of the Captive Property To Be
103	103	Sold dated within one year of the date of the Authority's receipt of
104	104	the Application Of Intent To Purchase (the "First Appraisal"). The
105	105	Authority's appraiser must be an appraiser certified under Chapter
106	106	1103, Occupations Code. Within fifteen (15) days of receipt of the
107	107	First Appraisal, the Offeree shall notify the Authority in writing
108	108	as to whether the Offeree agrees with or disputes the fair market
109	109	value set forth in the First Appraisal. If the Offeree does not
110	110	dispute the fair market value as determined by the First Appraisal
111	111	within such 15-day time period, then the First Appraisal shall be
112	112	final and binding on all parties to establish the fair market value
113	113	for the Captive Property To Be Sold.
114	114	(B) If the Offeree disputes the fair market value
115	115	determined by the First Appraisal, the Offeree may withdraw its
116	116	application to purchase the Captive Property To Be Sold or employ a
117	117	disinterested appraiser certified under Chapter 1103, Occupations
118	118	Code, to conduct a second appraisal of the fair market value of the
119	119	Captive Property To Be Sold (the "Second Appraisal"). The Second
120	120	Appraisal must be completed and sent to the Authority not later than
121	121	the 45th day after the date the Offeree notifies the Authority that
122	122	the Offeree disputes the First Appraisal. If the Authority does
123	123	not receive the Second Appraisal within such 45-day time period,
124	124	then the Offeree's Application Of Intent To Purchase will be deemed
125	125	withdrawn.
126	126	(C) Within fifteen (15) days of receipt of the
127	127	Second Appraisal, the Authority shall notify the Prospective
128	128	Purchaser in writing as to whether the Authority agrees with or
129	129	disputes the fair market value determined by the Second Appraisal.
130	130	If the Authority does not dispute the fair market value as
131	131	determined by the Second Appraisal within this 15-day time period,
132	132	then the Second Appraisal shall be final and binding on all parties
133	133	to establish the purchase price for the Captive Property To Be Sold.
134	134	If the Authority timely disputes the fair market value determined
135	135	by the Second Appraisal, the two appraisers (or their designated
136	136	agents) shall meet and attempt to reach an agreement on the fair
137	137	market value of the Captive Property To Be Sold, such meeting to
138	138	occur not later than the 30th day after the date the Authority
139	139	notifies the Offeree that the Authority disputes the Second
140	140	Appraisal.
141	141	(D) If the two appraisers reach agreement on the
142	142	fair market value, within 20 days after their meeting they shall
143	143	issue a report of the agreed fair market value to the Authority and
144	144	to the Offeree, and this agreed fair market value shall be final and
145	145	binding on all parties to establish the purchase price. If the two
146	146	appraisers fail to reach agreement on or before the 20th day after
147	147	the date of the meeting, then not later than the 30th day after the
148	148	date of the meeting the two appraisers shall appoint a
149	149	disinterested third appraiser certified under Chapter 1103,
150	150	Occupations Code, to reconcile the two previous appraisals (the
151	151	"Third Appraisal"). The Third Appraisal must be completed on or
152	152	before the 30th day after the date of the third appraiser's
153	153	appointment, and the fair market value determined by the Third
154	154	Appraisal is final and binding on all parties to establish the
155	155	purchase price; provided, however, the final purchase price may not
156	156	be more than the fair market value determined by the First Appraisal
157	157	or less than the fair market value determined by the Second
158	158	Appraisal.
159	159	(E) The appraisal costs must be paid by the
160	160	person who requests the appraisal, except that the Offeree and the
161	161	Authority shall each pay one-half of the cost of the Third Appraisal
162	162	if a Third Appraisal is necessary. If the Offeree fails to pay its
163	163	share of the Third Appraisal, then the Offeree's Application Of
164	164	Intent To Purchase will be deemed withdrawn.
165	165	(F) The timelines established in the appraisal
166	166	process set forth in this subdivision may be extended on joint
167	167	agreement of Authority and Offeree.
168	168	(c) If the Authority seeks to exempt any Captive Property To
169	169	Be Sold from sale under this section as necessary for the continued
170	170	operation of services at the Lake by the Authority, the Authority
171	171	must designate as exempt each parcel it seeks to have exempted and
172	172	provide actual notice of the exemption to any Offeree who otherwise
173	173	would have been eligible to purchase that property. Any such
174	174	Offeree shall have the right, but not the obligation, to challenge
175	175	the exemption designation by the Authority in accordance with
176	176	Subsection (e).
177	177	(d) For each parcel that an Offeree elects to purchase
178	178	pursuant to this section, the Offeree shall:
179	179	(1) provide to the Authority a survey of the property
180	180	that is:
181	181	(A) prepared by a licensed state land surveyor or
182	182	a registered professional land surveyor;
183	183	(B) dated not earlier than the date one year
184	184	before the effective date of the Act enacting this section; and
185	185	(C) acceptable to the Authority and any title
186	186	company providing title insurance for the Offeree; and
187	187	(2) pay all reasonable, normal, customary, and
188	188	documented closing costs associated with the sale of the property.
189	189	(e) A person who disputes the Authority's decision to exempt
190	190	a specific parcel from sale under this section may file a
191	191	declaratory judgment action in the district court of Travis County.
192	192	If a person files such an action:
193	193	(1) any claim to governmental immunity is hereby
194	194	waived for the determination of the dispute;
195	195	(2) the court shall determine all issues presented by
196	196	de novo review; and
197	197	(3) the Authority shall bear the burden to establish
198	198	by a preponderance of the evidence that the parcel it seeks to have
199	199	exempted from sale is necessary for the specifically authorized
200	200	operation of services at the Lake.
201	201	(f) For any property sold under this section:
202	202	(1) the Authority shall provide a Special Warranty
203	203	Deed that encompasses and includes all interests in the property
204	204	held by the Authority, subject only to:
205	205	(A) those restrictions, covenants, and
206	206	prohibitions contained in the deed of conveyance under which the
207	207	Authority originally acquired title to the property, including
208	208	without limitation any releases of the Authority for the
209	209	inundation, overflowing, or flooding of the Lake;
210	210	(B) all encumbrances and other matters filed of
211	211	record in the public records of the county in which the property is
212	212	located; and
213	213	(C) any other matters or conditions that are
214	214	apparent on the ground or that would be reasonably disclosed or
215	215	discovered by an inspection of the property; and
216	216	(2) the Offeree shall release and agree to hold the
217	217	Authority harmless from, and the Authority may not be held liable
218	218	for damages, claims, costs, injuries, or any other harm to any
219	219	Offeree or any other person or the Captive Property To Be Sold or
220	220	any improvements on the property, caused by or arising from any
221	221	temporary flooding of any portion of the Captive Property To Be
222	222	Sold.
223	223	(g) Any sale of Captive Property To Be Sold pursuant to this
224	224	section must allow the Authority the right to enter on the Captive
225	225	Property To Be Sold and the Lake and other bodies of water, if any,
226	226	located within the Captive Property To Be Sold and to cross the
227	227	Adjacent Land on roads with essential equipment for all purposes
228	228	reasonably necessary for the Authority to fulfill its obligations
229	229	as a river authority and any obligations set forth in the FERC
230	230	License, state water rights, or other governmental regulations, or
231	231	that the Authority considers necessary for public safety, health,
232	232	and welfare purposes. Any exercise of those rights by the Authority
233	233	may be conducted only after written notice is given at least 48
234	234	hours in advance of such entry to the Offeree (except in the event
235	235	of an emergency, in which case advance notice is not required, but
236	236	the Authority shall provide such written notice as soon as
237	237	practicable thereafter). The Authority shall use reasonable
238	238	efforts to avoid interfering with the Offeree's use of the Captive
239	239	Property To Be Sold and Adjacent Land and shall promptly repair any
240	240	damage to the Captive Property To Be Sold and Adjacent Land caused
241	241	by the Authority's entrance. Any claim to governmental immunity on
242	242	behalf of the Authority is hereby waived for the recovery of any
243	243	damage caused by the Authority's breach of this subsection.
244	244	(h) Any sale of a parcel of Captive Property To Be Sold
245	245	pursuant to this section the total size of which is greater than 100
246	246	acres must include as a condition of sale an agreement that the
247	247	purchaser of such parcel will place a conservation easement that
248	248	complies with state and federal tax requirements on the property
249	249	conveyed within three (3) years of the closing date for the sale of
250	250	the property.
251	251	(i) Chapters 232 and 272, Local Government Code, do not
252	252	apply to a sale of property under this section.
253	253	(j) The Authority may use proceeds from the sale of property
254	254	under this section for any Authority purpose.
255	255	(k) The Authority shall reserve its interest in all oil,
256	256	gas, and other minerals in and under the Captive Property To Be Sold
257	257	(or any portion thereof) to the extent the Authority owns an
258	258	interest in those minerals.
259	259	(l) To the extent of any conflict with other laws of this
260	260	state, this section prevails.
261	261	SECTION 2. This Act takes effect immediately if it receives
262	262	a vote of two-thirds of all the members elected to each house, as
263	263	provided by Section 39, Article III, Texas Constitution. If this
264	264	Act does not receive the vote necessary for immediate effect, this
265	265	Act takes effect September 1, 2009.
266	266	______________________________ ______________________________
267	267	President of the Senate Speaker of the House
268	268	I certify that H.B. No. 3032 was passed by the House on April
269	269	28, 2009, by the following vote: Yeas 149, Nays 0, 1 present, not
270	270	voting.
271	271	______________________________
272	272	Chief Clerk of the House
273	273	I certify that H.B. No. 3032 was passed by the Senate on May
274	274	15, 2009, by the following vote: Yeas 30, Nays 0.
275	275	______________________________
276	276	Secretary of the Senate
277	277	APPROVED: _____________________
278	278	Date
279	279	_____________________
280	280	Governor