Texas 2009 - 81st Regular

Texas House Bill HB4 Compare Versions

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

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1	1	81R2148 UM-D
2	2	By: Orr H.B. No. 4
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to eminent domain, including certain limitations,
8	8	procedures, and standards relating to the use of eminent domain.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 2206, Government Code, is amended to
11	11	read as follows:
12	12	CHAPTER 2206. [LIMITATIONS ON USE OF] EMINENT DOMAIN
13	13	SUBCHAPTER A. LIMITATION ON PURPOSE AND USE OF PROPERTY ACQUIRED
14	14	THROUGH EMINENT DOMAIN
15	15	Sec. 2206.001. LIMITATION ON EMINENT DOMAIN FOR PRIVATE
16	16	PARTIES OR ECONOMIC DEVELOPMENT PURPOSES. (a) This section
17	17	applies to the use of eminent domain under the laws of this state,
18	18	including a local or special law, by any governmental or private
19	19	entity, including:
20	20	(1) a state agency, including an institution of higher
21	21	education as defined by Section 61.003, Education Code;
22	22	(2) a political subdivision of this state; or
23	23	(3) a corporation created by a governmental entity to
24	24	act on behalf of the entity.
25	25	(b) A governmental or private entity may not take private
26	26	property through the use of eminent domain if the taking:
27	27	(1) confers a private benefit on a particular private
28	28	party through the use of the property;
29	29	(2) is for a public use that is merely a pretext to
30	30	confer a private benefit on a particular private party; or
31	31	(3) is for economic development purposes, unless the
32	32	economic development is a secondary purpose resulting from
33	33	municipal community development or municipal urban renewal
34	34	activities to eliminate an existing affirmative harm on society
35	35	from slum or blighted areas under:
36	36	(A) Chapter 373 or 374, Local Government Code,
37	37	other than an activity described by Section 373.002(b)(5), Local
38	38	Government Code; or
39	39	(B) Section 311.005(a)(1)(I), Tax Code.
40	40	(c) This section does not affect the authority of an entity
41	41	authorized by law to take private property through the use of
42	42	eminent domain for:
43	43	(1) transportation projects, including, but not
44	44	limited to, railroads, airports, or public roads or highways;
45	45	(2) entities authorized under Section 59, Article XVI,
46	46	Texas Constitution, including:
47	47	(A) port authorities;
48	48	(B) navigation districts; and
49	49	(C) any other conservation or reclamation
50	50	districts that act as ports;
51	51	(3) water supply, wastewater, flood control, and
52	52	drainage projects;
53	53	(4) public buildings, hospitals, and parks;
54	54	(5) the provision of utility services;
55	55	(6) a sports and community venue project approved by
56	56	voters at an election held on or before December 1, 2005, under
57	57	Chapter 334 or 335, Local Government Code;
58	58	(7) the operations of:
59	59	(A) a common carrier pipeline [subject to Chapter
60	60	111, Natural Resources Code, and Section B(3)(b), Article 2.01,
61	61	Texas Business Corporation Act]; or
62	62	(B) an energy transporter, as that term is
63	63	defined by Section 186.051, Utilities Code;
64	64	(8) a purpose authorized by Chapter 181, Utilities
65	65	Code;
66	66	(9) underground storage operations subject to Chapter
67	67	91, Natural Resources Code;
68	68	(10) a waste disposal project; or
69	69	(11) a library, museum, or related facility and any
70	70	infrastructure related to the facility.
71	71	(d) This section does not affect the authority of a
72	72	governmental entity to condemn a leasehold estate on property owned
73	73	by the governmental entity.
74	74	(e) The determination by the governmental or private entity
75	75	proposing to take the property that the taking does not involve an
76	76	act or circumstance prohibited by Subsection (b) does not create a
77	77	presumption with respect to whether the taking involves that act or
78	78	circumstance.
79	79	SUBCHAPTER B. AUTHORIZATION TO INITIATE EMINENT DOMAIN PROCEEDING
80	80	Sec. 2206.051. APPLICABILITY OF SUBCHAPTER. This
81	81	subchapter applies only to the use of eminent domain under the laws
82	82	of this state by a governmental entity.
83	83	Sec. 2206.052. VOTE ON USE OF EMINENT DOMAIN. (a) Before a
84	84	governmental entity initiates a condemnation proceeding by filing a
85	85	petition under Chapter 21, Property Code, the entity must authorize
86	86	the initiation of the condemnation proceedings at an open public
87	87	meeting by a record vote. Except as provided by Subsection (b), a
88	88	separate record vote must be taken for each unit of property for
89	89	which condemnation proceedings are to be initiated.
90	90	(b) For the purposes of Subsection (a), if two or more units
91	91	of real property are owned by the same person, the governmental
92	92	entity may treat those units of property as one unit of property.
93	93	(c) The motion to adopt an ordinance, resolution, or order
94	94	authorizing the initiation of condemnation proceedings under
95	95	Chapter 21, Property Code, must be made in a form substantially
96	96	similar to the following: "I move that the (name of governmental
97	97	entity) authorize the use of the power of eminent domain to acquire
98	98	(describe the property) for (describe the public use)."
99	99	SUBCHAPTER C. EXPIRATION OF CERTAIN EMINENT DOMAIN AUTHORITY
100	100	Sec. 2206.101. REPORT OF EMINENT DOMAIN AUTHORITY;
101	101	EXPIRATION OF AUTHORITY. (a) Not later than December 31, 2010, an
102	102	entity, including a private entity, authorized by the state by a
103	103	general or special law to exercise the power of eminent domain shall
104	104	submit to the comptroller of public accounts a letter stating that
105	105	the entity is authorized by the state to exercise the power of
106	106	eminent domain and identifying the provision or provisions of law
107	107	that grant the entity that authority. The entity must send the
108	108	letter by certified mail, return receipt requested.
109	109	(b) The authority of an entity to exercise the power of
110	110	eminent domain expires on September 1, 2011, unless the entity
111	111	submits a letter in accordance with Subsection (a).
112	112	(c) Not later than March 1, 2011, the comptroller shall
113	113	submit to the governor, the lieutenant governor, the speaker of the
114	114	house of representatives, the appropriate standing committees of
115	115	the senate and the house of representatives, and the Texas
116	116	Legislative Council a report that contains:
117	117	(1) the name of each entity that submitted a letter in
118	118	accordance with this section; and
119	119	(2) a corresponding list of the provisions granting
120	120	eminent domain authority as identified by each entity that
121	121	submitted a letter.
122	122	(d) The Texas Legislative Council shall prepare for
123	123	consideration by the 83rd Legislature, Regular Session, a
124	124	nonsubstantive revision of the statutes of this state as necessary
125	125	to reflect the state of the law after the expiration of an entity's
126	126	eminent domain authority effective under Subsection (b).
127	127	SECTION 2. Section 21.0111, Property Code, is amended to
128	128	read as follows:
129	129	Sec. 21.0111. DISCLOSURE OF CERTAIN INFORMATION REQUIRED;
130	130	INITIAL OFFER. (a) An [A governmental] entity with eminent domain
131	131	authority that wants to acquire real property for a public use
132	132	shall, by certified mail, return receipt requested, disclose to the
133	133	property owner at the time an offer to purchase or lease the
134	134	property is made any and all [existing] appraisal reports produced
135	135	or acquired by the [governmental] entity relating specifically to
136	136	the owner's property and used in determining the final valuation
137	137	offer.
138	138	(b) A property owner shall disclose to the [acquiring
139	139	governmental] entity seeking to acquire the property any and all
140	140	current [existing] appraisal reports produced or acquired by the
141	141	property owner relating specifically to the owner's property and
142	142	used in determining the owner's opinion of value. Such disclosure
143	143	shall take place not later than the earlier of:
144	144	(1) the 10th day after the date of [within 10 days of]
145	145	receipt of an appraisal report; or
146	146	(2) the day before the date of a special commissioners
147	147	hearing if an existing appraisal report is to be used at the
148	148	hearing.
149	149	(c) The property owner's failure to obtain or disclose an
150	150	appraisal report as required by Subsection (b) does not affect the
151	151	authority of the special commissioners to admit other evidence
152	152	relating specifically to the owner's property [reports but no later
153	153	than 10 days prior to the special commissioner's hearing].
154	154	(d) The initial offer to purchase made by the entity must
155	155	also include:
156	156	(1) a copy of this section and Section 21.0114;
157	157	(2) a written estimate of:
158	158	(A) the fair market value of the property the
159	159	entity is offering to acquire; and
160	160	(B) the amount of damages to the property owner's
161	161	remaining property, if any, that will result from the acquisition;
162	162	and
163	163	(3) a statement that the property owner has a right to
164	164	make a written request to the entity for:
165	165	(A) an appraisal of the property, at the entity's
166	166	expense, in accordance with Section 21.0114; and
167	167	(B) certain information regarding transactions
168	168	involving the entity for nearby property the entity intends to use
169	169	for a similar purpose.
170	170	(e) A property owner may submit a written request to the
171	171	entity for each appraisal report completed, offer to purchase made,
172	172	and negotiated purchase price paid by the entity for property that
173	173	is wanted for a purpose that relates to the purpose for which the
174	174	entity seeks to acquire the property owner's property and:
175	175	(1) that is adjacent to the property owner's property;
176	176	(2) that is adjacent to property adjacent to the
177	177	property owner's property; or
178	178	(3) any point on the boundary of which is located one
179	179	mile or less from any point on the boundary of the property owner's
180	180	property.
181	181	(f) If, at the time the request under Subsection (e) is
182	182	made, a special commissioners hearing has been set regarding the
183	183	condemnation of the property, the request must be made not later
184	184	than the 15th day before the date set for the hearing.
185	185	(g) The entity shall make the disclosures required by
186	186	Subsection (e) in writing by certified mail, return receipt
187	187	requested, or by hand delivery to the property owner not later than
188	188	the earlier of:
189	189	(1) the 10th day after the date of the receipt of the
190	190	request; or
191	191	(2) the 10th day before the date of any scheduled
192	192	special commissioners hearing.
193	193	(h) The condemning entity shall supplement a disclosure
194	194	made under this section with any new information received by the
195	195	condemning entity that is required to be disclosed under this
196	196	section not later than the 10th day after the date the entity
197	197	receives the information.
198	198	(i) A subsequent bona fide purchaser for value from the
199	199	acquiring [governmental] entity may conclusively presume that the
200	200	requirement of this section has been met. This section does not
201	201	apply to acquisitions of real property for which an [a
202	202	governmental] entity does not have eminent domain authority.
203	203	SECTION 3. Subchapter B, Chapter 21, Property Code, is
204	204	amended by adding Sections 21.0113, 21.0114, and 21.0115 to read as
205	205	follows:
206	206	Sec. 21.0113. FINAL OFFER. (a) An entity with eminent
207	207	domain authority that wants to acquire real property for a public
208	208	use shall provide to the property owner at least two written offers
209	209	proposing a purchase or lease of the property, as the entity
210	210	determines in good faith is appropriate in accordance with Section
211	211	21.0115. The last offer the entity intends to make to the property
212	212	owner shall be in writing and be designated on its face as the
213	213	entity's final offer.
214	214	(b) This section does not require the entity's initial offer
215	215	and final offer to differ in substance.
216	216	Sec. 21.0114. APPRAISAL REQUEST. (a) Subject to
217	217	Subsection (b), after a property owner receives an offer from an
218	218	entity with eminent domain authority proposing to acquire the
219	219	owner's property for a public use, but not later than the 20th day
220	220	after the date the property owner receives an offer designated as a
221	221	final offer under Section 21.0113, the property owner may, by
222	222	certified mail, return receipt requested, request that the entity
223	223	procure an appraisal report of the property produced and certified
224	224	by an independent and certified appraiser chosen by the property
225	225	owner. The entity shall pay the reasonable cost of the appraisal
226	226	report and provide the report to the property owner not later than
227	227	the 30th day after the date the entity receives a request under this
228	228	subsection.
229	229	(b) An entity is not required to provide more than one
230	230	appraisal report under this section.
231	231	Sec. 21.0115. GOOD FAITH NEGOTIATION REQUIRED. (a) Before
232	232	an entity with eminent domain authority may file a condemnation
233	233	petition under this chapter, the entity shall negotiate in good
234	234	faith to acquire the property through a voluntary purchase or lease
235	235	agreement.
236	236	(b) In determining whether an entity has negotiated in good
237	237	faith to acquire a property through a voluntary purchase or lease
238	238	agreement, the court shall consider:
239	239	(1) whether the entity has complied with applicable
240	240	disclosure provisions and procedural requirements, including
241	241	Sections 21.0111-21.0114;
242	242	(2) whether the entity has provided the property owner
243	243	with a written initial offer and a written final offer to acquire
244	244	the property; and
245	245	(3) whether an offer provided by the entity to the
246	246	property owner is a good faith offer that is not arbitrary or
247	247	capricious and is based on a reasonably thorough investigation and
248	248	honest assessment of the fair and reasonable compensation for
249	249	acquisition of the property.
250	250	(c) For purposes of this section, evidence that an entity
251	251	with eminent domain authority failed to disclose or provide
252	252	information required to be disclosed under Section 21.0111,
253	253	21.0112, or 21.0114 is prima facie evidence that the entity failed
254	254	to negotiate in good faith to acquire the property through a
255	255	voluntary purchase or lease agreement.
256	256	SECTION 4. Section 21.012, Property Code, is amended to
257	257	read as follows:
258	258	Sec. 21.012. CONDEMNATION PETITION. (a) If an entity [the
259	259	United States, this state, a political subdivision of this state, a
260	260	corporation] with eminent domain authority[, or an irrigation,
261	261	water improvement, or water power control district created by law]
262	262	wants to acquire real property for public use but is unable to agree
263	263	with the owner of the property on the amount of damages, the
264	264	[condemning] entity may begin a condemnation proceeding by filing a
265	265	petition in the proper court.
266	266	(b) The petition must:
267	267	(1) describe the property to be condemned;
268	268	(2) state with specificity the public purpose for
269	269	which the entity intends to use the property;
270	270	(3) state the name of the owner of the property if the
271	271	owner is known;
272	272	(4) state that the entity and the property owner are
273	273	unable to agree on the damages after negotiating in good faith; and
274	274	(5) if applicable, state that the entity provided the
275	275	property owner with the landowner's bill of rights statement in
276	276	accordance with Section 21.0112.
277	277	SECTION 5. Section 21.014(a), Property Code, is amended to
278	278	read as follows:
279	279	(a) The judge of a court in which a condemnation petition is
280	280	filed or to which an eminent domain case is assigned shall appoint
281	281	three disinterested real property owners [freeholders] who reside
282	282	in the county as special commissioners to assess the damages of the
283	283	owner of the property being condemned. The judge appointing the
284	284	special commissioners shall give preference to persons agreed on by
285	285	the parties. The judge shall provide each party a reasonable period
286	286	to strike one of the three commissioners appointed by the judge. If
287	287	a person fails to serve as a commissioner or is struck by a party to
288	288	the suit, the judge shall [may] appoint a replacement.
289	289	SECTION 6. Section 21.015(a), Property Code, is amended to
290	290	read as follows:
291	291	(a) The special commissioners in an eminent domain
292	292	proceeding shall promptly schedule a hearing for the parties at the
293	293	earliest practical time but may not schedule a hearing to assess
294	294	damages before the 20th day after the date the special
295	295	commissioners were appointed. The special commissioners shall
296	296	schedule a hearing for the parties [and] at a place that is as near
297	297	as practical to the property being condemned or at the county seat
298	298	of the county in which the proceeding is being held.
299	299	SECTION 7. Section 21.016(b), Property Code, is amended to
300	300	read as follows:
301	301	(b) Notice of the hearing must be served on a party not later
302	302	than the 20th [11th] day before the day set for the hearing. A
303	303	person competent to testify may serve the notice.
304	304	SECTION 8. Section 21.023, Property Code, is amended to
305	305	read as follows:
306	306	Sec. 21.023. DISCLOSURE OF INFORMATION REQUIRED AT TIME OF
307	307	ACQUISITION. An [A governmental] entity with eminent domain
308	308	authority shall disclose in writing to the property owner, at the
309	309	time of acquisition of the property through eminent domain, that:
310	310	(1) the owner or the owner's heirs, successors, or
311	311	assigns may be [are] entitled to:
312	312	(A) repurchase the property under Subchapter E
313	313	[if the public use for which the property was acquired through
314	314	eminent domain is canceled before the 10th anniversary of the date
315	315	of acquisition]; or
316	316	(B) request from the entity certain information
317	317	relating to the use of the property and any actual progress made
318	318	toward that use; and
319	319	(2) the repurchase price is the price paid to the owner
320	320	by the entity at the time the entity acquired the property through
321	321	eminent domain [fair market value of the property at the time the
322	322	public use was canceled].
323	323	SECTION 9. The heading to Section 21.047, Property Code, is
324	324	amended to read as follows:
325	325	Sec. 21.047. ASSESSMENT OF COSTS AND FEES.
326	326	SECTION 10. Section 21.047, Property Code, is amended by
327	327	adding Subsection (d) to read as follows:
328	328	(d) If a court hearing a suit under this chapter finds that
329	329	the condemnor did not negotiate in good faith to acquire the
330	330	property in accordance with Section 21.0115, the court shall order
331	331	the condemnor to pay:
332	332	(1) all costs as provided by Subsection (a); and
333	333	(2) all reasonable attorney's fees and other
334	334	professional fees incurred by the owner.
335	335	SECTION 11. Subchapter E, Chapter 21, Property Code, is
336	336	amended to read as follows:
337	337	SUBCHAPTER E. REPURCHASE OF REAL PROPERTY FROM CONDEMNING
338	338	[GOVERNMENTAL] ENTITY
339	339	Sec. 21.101. RIGHT OF REPURCHASE [APPLICABILITY]. (a) A
340	340	person from whom [Except as provided in Subsection (b), this
341	341	subchapter applies only to] a real property interest is acquired by
342	342	an [a governmental] entity through eminent domain for a public use,
343	343	or that person's heirs, successors, or assigns, is entitled to
344	344	repurchase the property as provided by this subchapter if:
345	345	(1) the public use for which the property was acquired
346	346	through eminent domain is [that was] canceled;
347	347	(2) no actual progress is made toward the public use
348	348	for which the property was acquired between the date of acquisition
349	349	and the 10th anniversary of that date; or
350	350	(3) the property becomes unnecessary for the public
351	351	use for which the property was acquired [before the 10th
352	352	anniversary of the date of acquisition].
353	353	(b) In this section, "actual progress" means the completion
354	354	of two or more of the following actions:
355	355	(1) the performance of a significant amount of labor
356	356	to develop the property or other property acquired for the same
357	357	public use project for which the property owner's property was
358	358	acquired;
359	359	(2) the furnishing of a significant amount of
360	360	materials to develop the property or other property acquired for
361	361	the same public use project for which the property owner's property
362	362	was acquired;
363	363	(3) the hiring of and performance of a significant
364	364	amount of work by an architect, engineer, or surveyor to prepare a
365	365	plan or plat that includes the property or other property acquired
366	366	for the same public use project for which the property owner's
367	367	property was acquired;
368	368	(4) application for state or federal funds to develop
369	369	the property or other property acquired for the same public use
370	370	project for which the property owner's property was acquired; or
371	371	(5) the acquisition of a tract or parcel of real
372	372	property adjacent to the property for the same public use project
373	373	for which the owner's property was acquired [This subchapter does
374	374	not apply to a right-of-way under the jurisdiction of:
375	375	[(1) a county;
376	376	[(2) a municipality; or
377	377	[(3) the Texas Department of Transportation].
378	378	(c) A district court may determine all issues in any suit
379	379	regarding the repurchase of a real property interest acquired
380	380	through eminent domain by the former property owner or the owner's
381	381	heirs, successors, or assigns.
382	382	Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER REQUIRED [AT
383	383	TIME OF CANCELLATION OF PUBLIC USE]. Not later than the 180th day
384	384	after the date an entity that acquired a real property interest
385	385	through eminent domain determines that the former property owner is
386	386	entitled to repurchase the property under Section 21.101 [of the
387	387	cancellation of the public use for which real property was acquired
388	388	through eminent domain from a property owner under Subchapter B],
389	389	the [governmental] entity shall send by certified mail, return
390	390	receipt requested, to the property owner or the owner's heirs,
391	391	successors, or assigns a notice containing:
392	392	(1) an identification, which is not required to be a
393	393	legal description, of the property that was acquired;
394	394	(2) an identification of the public use for which the
395	395	property had been acquired and a statement that:
396	396	(A) the public use has been canceled;
397	397	(B) no actual progress was made toward the public
398	398	use; or
399	399	(C) the property has become unnecessary for the
400	400	public use; and
401	401	(3) a description of the person's right under this
402	402	subchapter to repurchase the property.
403	403	Sec. 21.1021. REQUESTS FOR INFORMATION REGARDING CONDEMNED
404	404	PROPERTY. (a) On or after the 10th anniversary of the date on which
405	405	real property was acquired by an entity through eminent domain, a
406	406	property owner or the owner's heirs, successors, or assigns may
407	407	request that the condemning entity make a determination and provide
408	408	a statement and other relevant information regarding:
409	409	(1) whether the public use for which the property was
410	410	acquired has been canceled;
411	411	(2) whether any actual progress was made toward the
412	412	public use between the date of acquisition and the 10th anniversary
413	413	of that date, including an itemized description of the progress
414	414	made, if applicable; and
415	415	(3) whether the property has become unnecessary for
416	416	the public use of the property.
417	417	(b) A request under this section must contain sufficient
418	418	detail to allow the entity to identify the specific tract of land in
419	419	relation to which the information is sought.
420	420	(c) Not later than the 90th day following the receipt of the
421	421	request for information, the entity shall send a written response
422	422	by certified mail, return receipt requested, to the requestor.
423	423	Sec. 21.103. RESALE OF PROPERTY; PRICE. (a) Not later than
424	424	the 180th day after the date of the postmark on a [the] notice sent
425	425	under Section 21.102 or a response to a request made under Section
426	426	21.1021 that indicates that the property owner or the owner's
427	427	heirs, successors, or assigns is entitled to repurchase the
428	428	property interest in accordance with Section 21.101, the property
429	429	owner or the owner's heirs, successors, or assigns must notify the
430	430	[governmental] entity of the person's intent to repurchase the
431	431	property interest under this subchapter.
432	432	(b) As soon as practicable after receipt of a notice of
433	433	intent to repurchase [the notification] under Subsection (a), the
434	434	[governmental] entity shall offer to sell the property interest to
435	435	the person for the price paid to the owner by the entity at the time
436	436	the entity acquired the property through eminent domain [fair
437	437	market value of the property at the time the public use was
438	438	canceled]. The person's right to repurchase the property expires
439	439	on the 90th day after the date on which the [governmental] entity
440	440	makes the offer.
441	441	SECTION 12. The changes in law made by Chapter 2206,
442	442	Government Code, and Chapter 21, Property Code, as amended by this
443	443	Act, apply only to a condemnation proceeding in which the petition
444	444	is filed on or after the effective date of this Act and to any
445	445	property condemned through the proceeding. A condemnation
446	446	proceeding in which the petition is filed before the effective date
447	447	of this Act and any property condemned through the proceeding is
448	448	governed by the law in effect immediately before that date, and that
449	449	law is continued in effect for that purpose.
450	450	SECTION 13. This Act takes effect immediately if it
451	451	receives a vote of two-thirds of all the members elected to each
452	452	house, as provided by Section 39, Article III, Texas Constitution.
453	453	If this Act does not receive the vote necessary for immediate
454	454	effect, this Act takes effect September 1, 2009.