82R2543 NC-F
By: Patrick S.B. No. 1201
A BILL TO BE ENTITLED
AN ACT
relating to regulatory takings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2007.002, Government Code, is amended by
amending Subdivision (5) and adding Subdivision (6) to read as
follows:
(5) "Taking" means:
(A) a governmental action or series of actions
that affects private real property, in whole or in part or
temporarily or permanently, in a manner that requires the
governmental entity to compensate the private real property owner
as provided by the Fifth and Fourteenth Amendments to the United
States Constitution or Section 17 or 19, Article I, Texas
Constitution; [or]
(B) a governmental action or series of actions
that:
(i) affects an owner's private real
property that is the subject of the governmental action, in whole or
in part or temporarily or permanently, in a manner that restricts or
limits the owner's right to the property that would otherwise exist
in the absence of the governmental action; and
(ii) is the producing cause of a reduction
of at least 25 percent in the market value of the affected private
real property, determined by comparing the market value of the
property as if the governmental action is not in effect and the
market value of the property determined as if the governmental
action is in effect; or
(C) a governmental action or series of actions
that has the effect of limiting the overall impervious cover of any
development or use of an owner's private real property to less than
35 percent of the surface area of the property, excluding any
portion of the property that is within the 100-year floodplain as
determined by the most recent maps published by the Federal
Emergency Management Agency or that slopes more than 35 percent.
(6) "Impervious cover" means impermeable surfaces,
including pavement and rooftops, that prevent the infiltration of
water into the soil. The term does not include a rainwater
collection system for a domestic water supply.
SECTION 2. Sections 2007.003(a), (b), and (d), Government
Code, are amended to read as follows:
(a) This chapter applies only to the following governmental
actions:
(1) the adoption or issuance of an ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure;
(2) an action that imposes a physical invasion or
requires a dedication or exaction of private real property; and
(3) [an action by a municipality that has effect in the
extraterritorial jurisdiction of the municipality, excluding
annexation, and that enacts or enforces an ordinance, rule,
regulation, or plan that does not impose identical requirements or
restrictions in the entire extraterritorial jurisdiction of the
municipality; and
[(4)] enforcement of a governmental action listed in
Subdivisions (1) and (2) [through (3)], whether the enforcement of
the governmental action is accomplished through the use of
permitting, citations, orders, judicial or quasi-judicial
proceedings, or other similar means.
(b) This chapter does not apply to the following
governmental actions:
(1) [an action by a municipality except as provided by
Subsection (a)(3);
[(2)] a lawful forfeiture or seizure of contraband as
defined by Article 59.01, Code of Criminal Procedure;
(2) [(3)] a lawful seizure of property as evidence of
a crime or violation of law;
(3) [(4) an action, including an action of a political
subdivision, that is reasonably taken to fulfill an obligation
mandated by federal law or an action of a political subdivision that
is reasonably taken to fulfill an obligation mandated by state law;
[(5)] the discontinuance or modification of a program
or regulation that provides a unilateral expectation that does not
rise to the level of a recognized interest in private real property;
(4) [(6)] an action taken to prohibit or restrict a
condition or use of private real property if the governmental
entity proves that the condition or use constitutes a public or
private nuisance as defined by background principles of nuisance
and property law of this state;
(5) [(7)] an action taken out of a reasonable good
faith belief that the action is necessary to prevent a grave and
immediate threat to life or property;
(6) [(8)] a formal exercise of the power of eminent
domain;
(7) [(9)] an action taken under a state mandate to
prevent waste of oil and gas, protect correlative rights of owners
of interests in oil or gas, or prevent pollution related to oil and
gas activities;
(8) [(10)] a rule or proclamation adopted for the
purpose of regulating water safety, hunting, fishing, or control of
nonindigenous or exotic aquatic resources;
(9) [(11)] an action taken by a political subdivision
[:
[(A) to regulate construction in an area
designated under law as a floodplain;
[(B) to regulate on-site sewage facilities;
[(C) under the political subdivisions's
statutory authority to prevent waste or protect rights of owners of
interest in groundwater; or
[(D)] to prevent subsidence;
(10) [(12)] the appraisal of property for purposes of
ad valorem taxation;
(11) [(13)] an action that[:
[(A) is taken in response to a real and
substantial threat to public health and safety;
[(B)] is designed to significantly advance a
[the] health and safety purpose; [and
[(C) does not impose a greater burden than is
necessary to achieve the health and safety purpose;] or
(12) [(14)] an action or rulemaking undertaken by the
Public Utility Commission of Texas to order or require the location
or placement of telecommunications equipment owned by another party
on the premises of a certificated local exchange company.
(d) This chapter does not apply to an action taken by a
political subdivision to ensure compliance with on-site sewage
facility regulations promulgated by the Texas Commission on
Environmental Quality [applies to a governmental action taken by a
county only if the action is taken on or after September 1, 1997].
SECTION 3. Section 2007.021(b), Government Code, is amended
to read as follows:
(b) A suit under this subchapter must be filed not later
than the second anniversary of the later of:
(1) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the suit is based is enforced with respect to the
owner's private real property; or
(2) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the suit is based is applied to the owner's private
real property with respect to any permit application affecting the
real property [180th day after the date the private real property
owner knew or should have known that the governmental action
restricted or limited the owner's right in the private real
property].
SECTION 4. Section 2007.022(b), Government Code, is amended
to read as follows:
(b) A contested case must be filed with the agency not later
than the second anniversary of the later of:
(1) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the case is based is enforced with respect to the
owner's private real property; or
(2) the earliest date on which the ordinance, rule,
regulatory requirement, resolution, policy, guideline, or similar
measure on which the case is based is applied to the owner's private
real property with respect to any permit application affecting the
real property [the 180th day after the date the private real
property owner knew or should have known that the governmental
action restricted or limited the owner's right in the private real
property].
SECTION 5. Section 2007.023(b), Government Code, is amended
to read as follows:
(b) If the trier of fact in a suit or contested case filed
under this subchapter finds that the governmental action is a
taking under this chapter, the private real property owner is only
entitled to, and the governmental entity is only liable for:
(1) [,] invalidation of the governmental action or the
part of the governmental action resulting in the taking; and
(2) damages determined under Section 2007.024(b).
SECTION 6. Section 2007.024, Government Code, is amended by
amending Subsection (b) and adding Subsection (b-1) to read as
follows:
(b) The judgment or final decision or order shall include a
fact finding that determines the monetary damages suffered by the
private real property owner as a result of the taking, including, if
the governmental action has ceased or has been rescinded, amended,
invalidated, or repealed, the temporary or permanent economic loss
sustained by the private real property owner while the governmental
action was in effect.
(b-1) The amount of damages under Subsection (b) is
determined from the date of the taking.
SECTION 7. Section 2007.026(b), Government Code, is amended
to read as follows:
(b) The court or the state agency shall award a governmental
entity that prevails in a suit or contested case filed under this
subchapter reasonable and necessary attorney's fees and court costs
only if the court determines that the private real property owner
knew that the suit or contested case had no merit at the time the
owner filed the suit or contested case.
SECTION 8. Section 2007.041(a), Government Code, is amended
to read as follows:
(a) The attorney general shall prepare guidelines to assist
governmental entities in identifying and evaluating those
governmental actions described in Sections [Section]
2007.003(a)(1) and (2) [through (3)] that may result in a taking.
SECTION 9. Section 2007.042(a), Government Code, is amended
to read as follows:
(a) A political subdivision that proposes to engage in a
governmental action described in Section 2007.003(a)(1) or (2)
[through (3)] that may result in a taking shall provide at least 30
days' notice of its intent to engage in the proposed action by
providing a reasonably specific description of the proposed action
in a notice published in a newspaper of general circulation
published in the county in which affected private real property is
located. If a newspaper of general circulation is not published in
that county, the political subdivision shall publish a notice in a
newspaper of general circulation located in a county adjacent to
the county in which affected private real property is located. The
political subdivision shall, at a minimum, include in the notice a
reasonably specific summary of the takings impact assessment that
was prepared as required by this subchapter and the name of the
official of the political subdivision from whom a copy of the full
assessment may be obtained.
SECTION 10. Section 2007.044, Government Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) A governmental action requiring a takings impact
assessment is void if an assessment is not prepared in compliance
with the evaluation guidelines developed by the attorney general
under Section 2007.041. A private real property owner affected by a
governmental action taken without the preparation of a takings
impact assessment as required by this subchapter may bring suit for
a declaration of the invalidity of the governmental action.
(d) A proposed governmental action described by Section
2007.003(a)(1) or (2) that requires a takings impact assessment may
be stayed if an assessment is not prepared or if the assessment is
not in compliance with the evaluation guidelines developed by the
attorney general under Section 2007.041. A private real property
owner affected by the proposed governmental action may bring suit
to enforce the preparation of a takings impact assessment in
compliance with those guidelines. If the trier of fact in a suit
filed under this subchapter finds that the takings impact
assessment is not prepared or is not in compliance with the
evaluation guidelines, the court shall stay the proposed
governmental action.
SECTION 11. The change in law made by this Act applies only
to a governmental action or series of actions that commences on or
after the effective date of this Act. A governmental action or
series of actions that commences before the effective date of this
Act is governed by the law in effect immediately before that date,
and that law is continued in effect for that purpose.
SECTION 12. 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, 2011.