81R2148 UM-D
By: Orr H.B. No. 4
A BILL TO BE ENTITLED
AN ACT
relating to eminent domain, including certain limitations,
procedures, and standards relating to the use of eminent domain.
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. LIMITATION ON PURPOSE AND USE OF PROPERTY ACQUIRED
THROUGH EMINENT DOMAIN
Sec. 2206.001. 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.
(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.
SUBCHAPTER B. AUTHORIZATION TO INITIATE EMINENT DOMAIN PROCEEDING
Sec. 2206.051. APPLICABILITY OF SUBCHAPTER. This
subchapter applies only to the use of eminent domain under the laws
of this state by a governmental entity.
Sec. 2206.052. VOTE ON USE OF EMINENT DOMAIN. (a) Before a
governmental entity initiates a condemnation proceeding by filing a
petition under Chapter 21, Property Code, the entity must authorize
the initiation of the condemnation proceedings at an open public
meeting by a record vote. Except as provided by Subsection (b), a
separate record vote must be taken for each unit of property for
which condemnation proceedings are to be initiated.
(b) For the purposes of Subsection (a), 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.
(c) 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)."
SUBCHAPTER C. EXPIRATION OF CERTAIN EMINENT DOMAIN AUTHORITY
Sec. 2206.101. REPORT OF EMINENT DOMAIN AUTHORITY;
EXPIRATION OF AUTHORITY. (a) Not later than December 31, 2010, an
entity, including a private entity, authorized by the state by a
general or special law to exercise the power of eminent domain shall
submit to the comptroller of public accounts a letter stating that
the entity is authorized by the state to exercise the power of
eminent domain and identifying the provision or provisions of law
that grant the entity that authority. The entity must send the
letter by certified mail, return receipt requested.
(b) The authority of an entity to exercise the power of
eminent domain expires on September 1, 2011, unless the entity
submits a letter in accordance with Subsection (a).
(c) Not later than March 1, 2011, the comptroller shall
submit to the governor, the lieutenant governor, the speaker of the
house of representatives, the appropriate standing committees of
the senate and the house of representatives, and the Texas
Legislative Council a report that contains:
(1) the name of each entity that submitted a letter in
accordance with this section; and
(2) a corresponding list of the provisions granting
eminent domain authority as identified by each entity that
submitted a letter.
(d) The Texas Legislative Council shall prepare for
consideration by the 83rd Legislature, Regular Session, a
nonsubstantive revision of the statutes of this state as necessary
to reflect the state of the law after the expiration of an entity's
eminent domain authority effective under Subsection (b).
SECTION 2. Section 21.0111, Property Code, is amended to
read as follows:
Sec. 21.0111. DISCLOSURE OF CERTAIN INFORMATION REQUIRED;
INITIAL OFFER. (a) An [A governmental] entity with eminent domain
authority that wants to acquire real property for a public use
shall, by certified mail, return receipt requested, disclose to the
property owner at the time an offer to purchase or lease the
property is made any and all [existing] appraisal reports produced
or acquired by the [governmental] entity relating specifically to
the owner's property and used in determining the final valuation
offer.
(b) A property owner shall disclose to the [acquiring
governmental] entity seeking to acquire the property any and all
current [existing] appraisal reports produced or acquired by the
property owner relating specifically to the owner's property and
used in determining the owner's opinion of value. Such disclosure
shall take place not later than the earlier of:
(1) the 10th day after the date of [within 10 days of]
receipt of an appraisal report; or
(2) the day before the date of a special commissioners
hearing if an existing appraisal report is to be used at the
hearing.
(c) The property owner's failure to obtain or disclose an
appraisal report as required by Subsection (b) does not affect the
authority of the special commissioners to admit other evidence
relating specifically to the owner's property [reports but no later
than 10 days prior to the special commissioner's hearing].
(d) The initial offer to purchase made by the entity must
also include:
(1) a copy of this section and Section 21.0114;
(2) a written estimate of:
(A) the fair market value of the property the
entity is offering to acquire; and
(B) the amount of damages to the property owner's
remaining property, if any, that will result from the acquisition;
and
(3) a statement that the property owner has a right to
make a written request to the entity for:
(A) an appraisal of the property, at the entity's
expense, in accordance with Section 21.0114; and
(B) certain information regarding transactions
involving the entity for nearby property the entity intends to use
for a similar purpose.
(e) A property owner may submit a written request to the
entity for each appraisal report completed, offer to purchase made,
and negotiated purchase price paid by the entity for property that
is wanted for a purpose that relates to the purpose for which the
entity seeks to acquire the property owner's property and:
(1) that is adjacent to the property owner's property;
(2) that is adjacent to property adjacent to the
property owner's property; or
(3) any point on the boundary of which is located one
mile or less from any point on the boundary of the property owner's
property.
(f) If, at the time the request under Subsection (e) is
made, a special commissioners hearing has been set regarding the
condemnation of the property, the request must be made not later
than the 15th day before the date set for the hearing.
(g) The entity shall make the disclosures required by
Subsection (e) in writing by certified mail, return receipt
requested, or by hand delivery to the property owner not later than
the earlier of:
(1) the 10th day after the date of the receipt of the
request; or
(2) the 10th day before the date of any scheduled
special commissioners hearing.
(h) The condemning entity shall supplement a disclosure
made under this section with any new information received by the
condemning entity that is required to be disclosed under this
section not later than the 10th day after the date the entity
receives the information.
(i) A subsequent bona fide purchaser for value from the
acquiring [governmental] entity may conclusively presume that the
requirement of this section has been met. This section does not
apply to acquisitions of real property for which an [a
governmental] entity does not have eminent domain authority.
SECTION 3. Subchapter B, Chapter 21, Property Code, is
amended by adding Sections 21.0113, 21.0114, and 21.0115 to read as
follows:
Sec. 21.0113. FINAL OFFER. (a) An entity with eminent
domain authority that wants to acquire real property for a public
use shall provide to the property owner at least two written offers
proposing a purchase or lease of the property, as the entity
determines in good faith is appropriate in accordance with Section
21.0115. The last offer the entity intends to make to the property
owner shall be in writing and be designated on its face as the
entity's final offer.
(b) This section does not require the entity's initial offer
and final offer to differ in substance.
Sec. 21.0114. APPRAISAL REQUEST. (a) Subject to
Subsection (b), after a property owner receives an offer from an
entity with eminent domain authority proposing to acquire the
owner's property for a public use, but not later than the 20th day
after the date the property owner receives an offer designated as a
final offer under Section 21.0113, the property owner may, by
certified mail, return receipt requested, request that the entity
procure an appraisal report of the property produced and certified
by an independent and certified appraiser chosen by the property
owner. The entity shall pay the reasonable cost of the appraisal
report and provide the report to the property owner not later than
the 30th day after the date the entity receives a request under this
subsection.
(b) An entity is not required to provide more than one
appraisal report under this section.
Sec. 21.0115. GOOD FAITH NEGOTIATION REQUIRED. (a) Before
an entity with eminent domain authority may file a condemnation
petition under this chapter, the entity shall negotiate in good
faith to acquire the property through a voluntary purchase or lease
agreement.
(b) In determining whether an entity has negotiated in good
faith to acquire a property through a voluntary purchase or lease
agreement, the court shall consider:
(1) whether the entity has complied with applicable
disclosure provisions and procedural requirements, including
Sections 21.0111-21.0114;
(2) whether the entity has provided the property owner
with a written initial offer and a written final offer to acquire
the property; and
(3) whether an offer provided by the entity to the
property owner is a good faith offer that is not arbitrary or
capricious and is based on a reasonably thorough investigation and
honest assessment of the fair and reasonable compensation for
acquisition of the property.
(c) For purposes of this section, evidence that an entity
with eminent domain authority failed to disclose or provide
information required to be disclosed under Section 21.0111,
21.0112, or 21.0114 is prima facie evidence that the entity failed
to negotiate in good faith to acquire the property through a
voluntary purchase or lease agreement.
SECTION 4. Section 21.012, Property Code, is amended to
read as follows:
Sec. 21.012. CONDEMNATION PETITION. (a) If an entity [the
United States, this state, a political subdivision of this state, a
corporation] with eminent domain authority[, or an irrigation,
water improvement, or water power control district created by law]
wants to acquire real property for public use but is unable to agree
with the owner of the property on the amount of damages, the
[condemning] entity may begin a condemnation proceeding by filing a
petition in the proper court.
(b) The petition must:
(1) describe the property to be condemned;
(2) state with specificity the public 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 after negotiating in good faith; 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.
SECTION 5. Section 21.014(a), Property Code, is amended to
read as follows:
(a) The judge of a court in which a condemnation petition is
filed or to which an eminent domain case is assigned shall appoint
three disinterested real property owners [freeholders] who reside
in the county as special commissioners to assess the damages of the
owner of the property being condemned. The judge appointing the
special commissioners shall give preference to persons agreed on by
the parties. The judge shall provide each party a reasonable period
to strike one of the three commissioners appointed by the judge. If
a person fails to serve as a commissioner or is struck by a party to
the suit, the judge shall [may] appoint a replacement.
SECTION 6. Section 21.015(a), Property Code, is amended to
read as follows:
(a) The special commissioners in an eminent domain
proceeding shall promptly schedule a hearing for the parties at the
earliest practical time but may not schedule a hearing to assess
damages before the 20th day after the date the special
commissioners were appointed. The special commissioners shall
schedule a hearing for the parties [and] at a place that is as near
as practical to the property being condemned or at the county seat
of the county in which the proceeding is being held.
SECTION 7. Section 21.016(b), Property Code, is amended to
read as follows:
(b) Notice of the hearing must be served on a party not later
than the 20th [11th] day before the day set for the hearing. A
person competent to testify may serve the notice.
SECTION 8. Section 21.023, Property Code, is amended to
read as follows:
Sec. 21.023. DISCLOSURE OF INFORMATION REQUIRED AT TIME OF
ACQUISITION. An [A governmental] entity with eminent domain
authority 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 may be [are] entitled to:
(A) repurchase the property under Subchapter E
[if the public use for which the property was acquired through
eminent domain is canceled before the 10th anniversary of the date
of acquisition]; or
(B) request from the entity certain information
relating to the use of the property and any actual progress made
toward that use; and
(2) the repurchase price is the price paid to the owner
by the entity at the time the entity acquired the property through
eminent domain [fair market value of the property at the time the
public use was canceled].
SECTION 9. The heading to Section 21.047, Property Code, is
amended to read as follows:
Sec. 21.047. ASSESSMENT OF COSTS AND FEES.
SECTION 10. 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 finds that
the condemnor did not negotiate in good faith to acquire the
property in accordance with Section 21.0115, the court shall order
the condemnor to pay:
(1) all costs as provided by Subsection (a); and
(2) all reasonable attorney's fees and other
professional fees incurred by the owner.
SECTION 11. Subchapter E, Chapter 21, Property Code, is
amended to read as follows:
SUBCHAPTER E. REPURCHASE OF REAL PROPERTY FROM CONDEMNING
[GOVERNMENTAL] ENTITY
Sec. 21.101. RIGHT OF REPURCHASE [APPLICABILITY]. (a) A
person from whom [Except as provided in Subsection (b), this
subchapter applies only to] a real property interest is acquired by
an [a governmental] entity through eminent domain for a public use,
or that person's heirs, successors, or assigns, is entitled to
repurchase the property as provided by this subchapter if:
(1) the public use for which the property was acquired
through eminent domain is [that was] canceled;
(2) no actual progress is made toward the public use
for which the property was acquired between the date of acquisition
and the 10th anniversary of that date; or
(3) the property becomes unnecessary for the public
use for which the property was acquired [before the 10th
anniversary of the date of acquisition].
(b) In this section, "actual progress" means the completion
of two or more of the following actions:
(1) the performance of a significant amount of labor
to develop the property or other property acquired for the same
public use project for which the property owner's property was
acquired;
(2) the furnishing of a significant amount of
materials to develop the property or other property acquired for
the same public use project for which the property owner's property
was acquired;
(3) the hiring of and performance of a significant
amount of work by an architect, engineer, or surveyor to prepare a
plan or plat that includes the property or other property acquired
for the same public use project for which the property owner's
property was acquired;
(4) application for state or federal funds to develop
the property or other property acquired for the same public use
project for which the property owner's property was acquired; or
(5) the acquisition of a tract or parcel of real
property adjacent to the property for the same public use project
for which the owner's property was acquired [This subchapter does
not apply to a right-of-way under the jurisdiction of:
[(1) a county;
[(2) a municipality; or
[(3) the Texas Department of Transportation].
(c) A district court may determine all issues in any suit
regarding the repurchase of a real property interest acquired
through eminent domain by the former property owner or the owner's
heirs, successors, or assigns.
Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER REQUIRED [AT
TIME OF CANCELLATION OF PUBLIC USE]. Not later than the 180th day
after the date an entity that acquired a real property interest
through eminent domain determines that the former property owner is
entitled to repurchase the property under Section 21.101 [of the
cancellation of the public use for which real property was acquired
through eminent domain from a property owner under Subchapter B],
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:
(A) the public use has been canceled;
(B) no actual progress was made toward the public
use; or
(C) the property has become unnecessary for the
public use; and
(3) a description of the person's right under this
subchapter to repurchase the property.
Sec. 21.1021. REQUESTS FOR INFORMATION REGARDING CONDEMNED
PROPERTY. (a) On or after the 10th anniversary of the date on which
real property was acquired by an entity through eminent domain, a
property owner or the owner's heirs, successors, or assigns may
request that the condemning entity make a determination and provide
a statement and other relevant information regarding:
(1) whether the public use for which the property was
acquired has been canceled;
(2) whether any actual progress was made toward the
public use between the date of acquisition and the 10th anniversary
of that date, including an itemized description of the progress
made, if applicable; and
(3) whether the property has become unnecessary for
the public use of the property.
(b) A request under this section must contain sufficient
detail to allow the entity to identify the specific tract of land in
relation to which the information is sought.
(c) Not later than the 90th day following the receipt of the
request for information, the entity shall send a written response
by certified mail, return receipt requested, to the requestor.
Sec. 21.103. RESALE OF PROPERTY; PRICE. (a) Not later than
the 180th day after the date of the postmark on a [the] notice sent
under Section 21.102 or a response to a request made under Section
21.1021 that indicates that the property owner or the owner's
heirs, successors, or assigns is entitled to repurchase the
property interest in accordance with Section 21.101, the property
owner or the owner's heirs, successors, or assigns must notify the
[governmental] entity of the person's intent to repurchase the
property interest under this subchapter.
(b) As soon as practicable after receipt of a notice of
intent to repurchase [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 entity at the time
the 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 12. The changes in law made by Chapter 2206,
Government Code, and Chapter 21, Property Code, as amended 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 13. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.