Texas 2019 - 86th Regular

Texas House Bill HB991 Compare Versions

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

Old	New	Differences
1	1	86R8097 BEE-F
2	2	By: Burns H.B. No. 991
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the acquisition of real property by an entity with
8	8	eminent domain authority.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 21.0113, Property Code, is amended by
11	11	adding Subsections (c) and (d) to read as follows:
12	12	(c) Notwithstanding Subsection (b), a private entity as
13	13	defined by Section 21.031 has made a bona fide offer only if the
14	14	entity:
15	15	(1) satisfies the requirements of Subsection (b);
16	16	(2) includes in the initial offer:
17	17	(A) a copy of the provisions of Section 21.0471;
18	18	(B) a statement of the compensation being offered
19	19	for:
20	20	(i) the value of the property the entity
21	21	seeks to acquire; and
22	22	(ii) the damage and loss of value to the
23	23	remaining property, if applicable; and
24	24	(C) notice that the property owner will also
25	25	receive a final offer accompanied by an appraisal; and
26	26	(3) includes, in the initial offer and in any
27	27	subsequent offer, a certification by the entity that the offer is in
28	28	an amount that will not require the entity to make a payment for a
29	29	low initial offer under Section 21.0471.
30	30	(d) Notwithstanding Subsections (b) and (c), a private
31	31	entity subject to Subchapter B-1 has made a bona fide offer only if
32	32	the entity:
33	33	(1) satisfies the requirements of Subsections (b) and
34	34	(c);
35	35	(2) includes in the initial offer a copy of the notice
36	36	of public meeting required by Section 21.036; and
37	37	(3) participates in the public meeting in the manner
38	38	prescribed by Section 21.038.
39	39	SECTION 2. Subchapter B, Chapter 21, Property Code, is
40	40	amended by adding Sections 21.0114 and 21.0115 to read as follows:
41	41	Sec. 21.0114. REQUIRED TERMS FOR INSTRUMENTS OF CONVEYANCE
42	42	BY CERTAIN PRIVATE ENTITIES. (a) Except as provided by Subsection
43	43	(b), the deed, easement, or other instrument provided to a property
44	44	owner by a private entity, as defined by Section 21.031, must
45	45	include the following terms, as applicable:
46	46	(1) if the instrument conveys a pipeline right-of-way
47	47	easement:
48	48	(A) the maximum number of pipelines that may be
49	49	installed in the easement;
50	50	(B) the maximum diameter, excluding any
51	51	protective coating or wrapping, of each pipeline to be installed in
52	52	the easement;
53	53	(C) the type or category of each substance to be
54	54	transported through the pipelines to be installed in the easement;
55	55	(D) a general description of any use of the
56	56	surface of the easement the entity intends to acquire;
57	57	(E) a metes and bounds or centerline description
58	58	of the location of the easement, plat, or other legally sufficient
59	59	description of the location of the easement;
60	60	(F) the maximum width of the easement;
61	61	(G) the minimum depth at which the pipeline will
62	62	initially be installed;
63	63	(H) whether the double-ditch method will be used
64	64	for installation of the pipeline in areas that are not
65	65	bore-drilled;
66	66	(I) a prohibition against the transfer of the
67	67	property without:
68	68	(i) written notice to the property owner;
69	69	or
70	70	(ii) the express written consent of the
71	71	property owner if the transferee, including a transferee that is an
72	72	affiliate or subsidiary of or entity related to the private entity,
73	73	does not have eminent domain authority;
74	74	(J) whether the entity has exclusive,
75	75	nonexclusive, or otherwise limited rights to the easement;
76	76	(K) a provision limiting access to the easement
77	77	area by a third party for a purpose that is not related to the
78	78	pipeline's construction, safety, maintenance, or operation
79	79	activities;
80	80	(L) a provision regarding the right to recover
81	81	actual monetary damages arising from construction, maintenance,
82	82	repair, replacement, or future removal of the pipeline in the
83	83	easement, including any actual monetary damages to growing crops or
84	84	livestock, or a statement that the offer includes such future
85	85	damages;
86	86	(M) a provision regarding the property owner's
87	87	right to negotiate to recover damages for:
88	88	(i) tree loss;
89	89	(ii) income loss from interference with
90	90	hunting or recreational activities; or
91	91	(iii) income loss from disruption of
92	92	agricultural production;
93	93	(N) a provision regarding the use and repair of
94	94	any gates and fences;
95	95	(O) a provision regarding the entity's
96	96	obligation to maintain the easement, including leveling of the
97	97	easement area;
98	98	(P) a provision regarding the repair and
99	99	restoration of areas used or damaged outside the easement area to
100	100	their original condition or better, to the extent reasonably
101	101	practicable, or the payment of actual monetary damages for areas
102	102	not restored; and
103	103	(Q) the manner in which the entity will access
104	104	the easement;
105	105	(2) if the instrument conveys an electrical
106	106	transmission right-of-way easement:
107	107	(A) a general description of any use of the
108	108	surface of the easement the entity intends to acquire;
109	109	(B) a depiction identifying the approximate
110	110	location of the easement on the property;
111	111	(C) a metes and bounds or centerline description
112	112	of the location of the easement, plat, or other legally sufficient
113	113	description of the location of the easement;
114	114	(D) the maximum width of the easement;
115	115	(E) the manner in which the entity will access
116	116	the easement;
117	117	(F) a provision limiting access to the easement
118	118	area by a third party for a purpose that is not related to the
119	119	transmission line's construction, safety, maintenance, or
120	120	operation activities;
121	121	(G) a provision regarding the right to recover
122	122	actual monetary damages arising from construction, maintenance,
123	123	repair, replacement, or future removal of lines and support
124	124	facilities in the easement or a statement that the offer includes
125	125	such future damages;
126	126	(H) a provision regarding the property owner's
127	127	right to negotiate to recover damages for:
128	128	(i) tree loss;
129	129	(ii) income loss from interference with
130	130	hunting or recreational activities; or
131	131	(iii) income loss from disruption of
132	132	agricultural production;
133	133	(I) a provision regarding the use and repair of
134	134	any gates and fences;
135	135	(J) a provision regarding the entity's
136	136	obligation to maintain the easement;
137	137	(K) a provision regarding the repair and
138	138	restoration of areas used or damaged outside the easement area to
139	139	their original condition or better, to the extent reasonably
140	140	practicable, or the payment of actual monetary damages for areas
141	141	not restored;
142	142	(L) whether the entity has exclusive,
143	143	nonexclusive, or otherwise limited rights to the right-of-way; and
144	144	(M) a prohibition against the transfer of the
145	145	property without:
146	146	(i) written notice to the property owner;
147	147	or
148	148	(ii) the express written consent of the
149	149	property owner if the transferee, including a transferee that is an
150	150	affiliate or subsidiary of or entity related to the private entity,
151	151	does not have eminent domain authority;
152	152	(3) a prohibition against any use of the property
153	153	being conveyed, other than a use stated in the deed, easement, or
154	154	other instrument, without the express written consent of the
155	155	property owner;
156	156	(4) a covenant that the entity will keep in effect at
157	157	all times while the entity uses the condemned property, including
158	158	during construction and operations on the easement, a policy or
159	159	policies of liability insurance:
160	160	(A) issued by an insurer authorized to issue such
161	161	policies in this state; and
162	162	(B) insuring the property owner against
163	163	liability for personal injuries and property damage sustained by
164	164	any person that arises from or is related to the use of the easement
165	165	property by the entity or the entity's agents or contractors; and
166	166	(5) a statement that the terms of the deed, easement,
167	167	or other instrument will bind the successors and assigns of the
168	168	parties to the instrument.
169	169	(b) The private entity, as defined by Section 21.031, may
170	170	present and include terms in addition to the terms required under
171	171	Subsection (a). The property owner and the entity may consider and
172	172	agree to the additional terms, including rights and uses that may
173	173	not be the subject of a later condemnation proceeding, if so stated
174	174	in the instrument. A property owner may negotiate a deed, easement,
175	175	or other instrument that does not include all of the terms required
176	176	under Subsection (a).
177	177	(c) The attorney general shall prepare and make generally
178	178	available a standard form that contains the terms required by
179	179	Subsection (a).
180	180	(d) The attorney general may:
181	181	(1) bring an action in the name of the state to enjoin
182	182	a violation of this section; and
183	183	(2) recover reasonable attorney's fees and costs
184	184	incurred in bringing an action under this subsection.
185	185	Sec. 21.0115. COMMUNICATION BY CERTAIN PRIVATE ENTITIES.
186	186	(a) A private entity, as defined by Section 21.031, that wants to
187	187	acquire real property for a public use may not, without first
188	188	attempting to include the owner of the real property, engage in ex
189	189	parte communication with:
190	190	(1) a court that has jurisdiction of a condemnation
191	191	proceeding involving the property; or
192	192	(2) a special commissioner appointed in the
193	193	condemnation proceeding.
194	194	(b) A private entity shall provide written notice to a
195	195	property owner of any communication between the entity and a court
196	196	or special commissioner described by Subsection (a) for which the
197	197	property owner is not present.
198	198	(c) For the purposes of this section, "private entity"
199	199	includes:
200	200	(1) the entity's attorney; and
201	201	(2) any third-party contractor of the entity,
202	202	including a right-of-way agent.
203	203	SECTION 3. Section 21.012, Property Code, is amended by
204	204	adding Subsection (b-1) to read as follows:
205	205	(b-1) In addition to the contents prescribed by Subsection
206	206	(b), a petition filed by a private entity as defined by Section
207	207	21.031 must state the terms to be included in the instrument of
208	208	conveyance under Section 21.0114 using the form prepared by the
209	209	attorney general under Section 21.0114(c).
210	210	SECTION 4. Chapter 21, Property Code, is amended by adding
211	211	Subchapter B-1 to read as follows:
212	212	SUBCHAPTER B-1. ACQUISITION OF PROPERTY BY CERTAIN PRIVATE
213	213	ENTITIES
214	214	Sec. 21.031. DEFINITION. In this subchapter, "private
215	215	entity" includes:
216	216	(1) a corporation, including a corporation organized
217	217	under Chapter 67, Water Code, authorized to exercise the power of
218	218	eminent domain to acquire private property for public use; and
219	219	(2) any affiliate or subsidiary of or entity related
220	220	to the corporation.
221	221	Sec. 21.032. APPLICABILITY OF SUBCHAPTER. This subchapter
222	222	applies only to a private entity that wants to acquire for the same
223	223	public use one or more tracts or parcels of real property:
224	224	(1) located entirely in one county; and
225	225	(2) owned by at least four property owners.
226	226	Sec. 21.033. NOTICE OF INTENT. (a) Not later than the 45th
227	227	day before the date a private entity makes an initial offer to
228	228	acquire real property under this chapter, the entity must send a
229	229	written notice of intent to a court that would have jurisdiction of
230	230	a condemnation proceeding involving the property.
231	231	(b) A notice sent under Subsection (a) must:
232	232	(1) state the private entity's intent to acquire real
233	233	property for public use;
234	234	(2) specify the public use;
235	235	(3) identify the real property the entity intends to
236	236	acquire and the owners of the property; and
237	237	(4) disclose the date by which the entity will make the
238	238	initial offer.
239	239	Sec. 21.034. PUBLIC MEETING. (a) Not later than the 30th
240	240	day after the date a court receives a notice of intent required by
241	241	Section 21.033, the court shall select the date on which a public
242	242	meeting regarding the proposed acquisition will be held. The court
243	243	shall facilitate the meeting.
244	244	(b) The meeting described by Subsection (a):
245	245	(1) must take place in a public location appropriate
246	246	to the size and nature of the meeting in the county in which the real
247	247	property is located; and
248	248	(2) may not take place earlier than the 14th day after
249	249	the date a private entity makes an initial offer to a property owner
250	250	identified in the notice of intent under Section 21.033.
251	251	Sec. 21.035. NOTICE OF PUBLIC MEETING. (a) As soon as is
252	252	practicable after a court selects a date for a public meeting under
253	253	Section 21.034, the court shall:
254	254	(1) give notice of the meeting to the private entity
255	255	that sent the notice of intent under Section 21.033;
256	256	(2) publish notice of the public meeting on the
257	257	county's Internet website; and
258	258	(3) publish notice of the public meeting in a
259	259	newspaper of general circulation in the county.
260	260	(b) A notice of public meeting under this section must
261	261	include the date, time, and location of the meeting.
262	262	Sec. 21.036. NOTICE OF PUBLIC MEETING IN INITIAL OFFER. A
263	263	private entity that gives a notice of intent under Section 21.033
264	264	must include with the entity's initial offer notice of the public
265	265	meeting to be held under Section 21.034, including the date, time,
266	266	and location of the meeting.
267	267	Sec. 21.037. PARTICIPATION BY PRIVATE ENTITY REQUIRED. A
268	268	representative of the private entity that gives a notice of intent
269	269	under Section 21.033 shall:
270	270	(1) attend the public meeting; and
271	271	(2) participate in the public meeting in the manner
272	272	prescribed by Section 21.038.
273	273	Sec. 21.038. PUBLIC MEETING AGENDA. At a public meeting
274	274	scheduled under Section 21.034:
275	275	(1) the court shall present the information contained
276	276	in the landowner's bill of rights statement required to be provided
277	277	to a property owner under Section 21.0112;
278	278	(2) the private entity shall present:
279	279	(A) a description of the public use for which the
280	280	entity wants to acquire the real property, including technical
281	281	details;
282	282	(B) if applicable, a statement of the terms
283	283	required under Section 21.0114 to be included in a deed, easement,
284	284	or other instrument provided by the entity to the property owner;
285	285	(C) the method and factors used by the entity to
286	286	calculate the entity's initial offer, including:
287	287	(i) how damages to remaining property were
288	288	evaluated; and
289	289	(ii) if the entity used a property
290	290	appraisal or market value study, the name of the person that
291	291	performed the appraisal or study;
292	292	(D) the entity's justification for the proposed
293	293	public use, including any materials used by the entity to obtain a
294	294	determination that the project is a public use;
295	295	(E) the legal and factual basis for the entity's
296	296	exercise of its eminent domain authority;
297	297	(F) the name and contact information of any
298	298	third-party contractor to be used by the entity to acquire the land
299	299	or undertake the project; and
300	300	(G) a description of any regulatory process
301	301	required for approval of the project, including any evaluation of
302	302	the project's necessity, and information about how a property owner
303	303	may participate in the process; and
304	304	(3) the property owners identified by the private
305	305	entity under Section 21.033, the public, and public officials must
306	306	be given an opportunity to ask questions and make comments
307	307	regarding:
308	308	(A) the rights of the property owners;
309	309	(B) the proposed public use; and
310	310	(C) terms required under Section 21.0114 to be
311	311	included in a deed, easement, or other instrument provided by the
312	312	entity to a property owner.
313	313	Sec. 21.039. CONTACT AFTER PUBLIC MEETING. A private
314	314	entity may not contact a property owner to whom the entity has made
315	315	an initial offer before the seventh day after the date of the public
316	316	meeting held under Section 21.034.
317	317	Sec. 21.0391. CERTIFICATION OF ENTITY PARTICIPATION IN
318	318	PUBLIC MEETING REQUIRED. (a) After a private entity participates
319	319	in a meeting held under Section 21.034, the entity shall submit
320	320	evidence documenting its participation to the court that
321	321	facilitated the meeting. The court shall review the evidence
322	322	submitted by the entity and, if the court determines that the entity
323	323	has satisfied the requirements of this subchapter, shall certify
324	324	that the entity has satisfied the requirements of this subchapter.
325	325	(b) A private entity may not acquire property to which this
326	326	subchapter applies unless the entity receives the certification
327	327	under Subsection (a) with respect to the property.
328	328	Sec. 21.0392. PUBLICATION AND PROVISION OF CERTAIN
329	329	MATERIALS. A private entity shall:
330	330	(1) publish on an Internet website any materials
331	331	presented under Section 21.038(2)(D); and
332	332	(2) provide to property owners identified by the
333	333	entity under Section 21.033 any materials presented under Section
334	334	21.038(2)(D).
335	335	Sec. 21.0393. PROPERTY OWNER CHALLENGE OF EMINENT DOMAIN
336	336	AUTHORITY. (a) A property owner identified by a private entity
337	337	under Section 21.033 may challenge the eminent domain authority of
338	338	the entity in the court that provided the certification under
339	339	Section 21.0391.
340	340	(b) A challenge under Subsection (a) must be filed not later
341	341	than the 30th day after the date of the public meeting held under
342	342	Section 21.038.
343	343	Sec. 21.0394. INJUNCTION. (a) The attorney general may
344	344	bring an action in the name of the state to enjoin a violation of
345	345	this subchapter.
346	346	(b) The attorney general may recover reasonable attorney's
347	347	fees and costs incurred in bringing an action under this section.
348	348	SECTION 5. Section 21.042, Property Code, is amended by
349	349	amending Subsection (d) and adding Subsections (d-1) and (d-2) to
350	350	read as follows:
351	351	(d) In estimating injury or benefit under Subsection (c),
352	352	the special commissioners shall consider an injury or benefit that
353	353	is peculiar to the property owner and that relates to the property
354	354	owner's ownership, use, or enjoyment of the particular parcel of
355	355	real property, including:
356	356	(1) an injury or benefit to the remaining property as a
357	357	result of:
358	358	(A) the characteristics of any infrastructure on
359	359	the condemned property, including the size or visibility of the
360	360	infrastructure or the pressure or voltage range provided by the
361	361	infrastructure;
362	362	(B) any limitation of future expansion on the
363	363	remaining property; and
364	364	(C) a provision in an easement acquired in
365	365	connection with, or the alignment of an easement in connection
366	366	with, the condemnation; and
367	367	(2) a material impairment of direct access on or off
368	368	the remaining property that affects the market value of the
369	369	remaining property.
370	370	(d-1) In estimating injury or benefit under Subsection (c),
371	371	the special commissioners[, but they] may not consider an injury or
372	372	benefit that the property owner experiences in common with the
373	373	general community, including circuity of travel and diversion of
374	374	traffic.
375	375	(d-2) In Subsection (d)(2) [this subsection], "direct
376	376	access" means ingress and egress on or off a public road, street, or
377	377	highway at a location where the remaining property adjoins that
378	378	road, street, or highway.
379	379	SECTION 6. Subchapter C, Chapter 21, Property Code, is
380	380	amended by adding Section 21.0471 to read as follows:
381	381	Sec. 21.0471. PAYMENT FOR LOW INITIAL OFFER BY PRIVATE
382	382	ENTITY. (a) This section applies only to a condemnor that is a
383	383	private entity as defined by Section 21.031.
384	384	(b) If the special commissioners award to the property owner
385	385	damages in an amount that exceeds the amount of the condemnor's
386	386	initial offer by:
387	387	(1) at least 25 percent but less than 50 percent, the
388	388	condemnor shall pay to the property owner the damages awarded and an
389	389	additional amount equal to 25 percent of the damages awarded;
390	390	(2) at least 50 percent but less than 100 percent, the
391	391	condemnor shall pay to the property owner the damages awarded and an
392	392	additional amount equal to 30 percent of the damages awarded; or
393	393	(3) 100 percent or more, the condemnor shall pay to the
394	394	property owner the damages awarded and an additional amount equal
395	395	to 35 percent of the damages awarded.
396	396	(c) A property owner is entitled to an additional amount
397	397	under Subsection (b) without regard to:
398	398	(1) whether the condemnor objects to the findings of
399	399	the special commissioners or appeals the decision of a trial court
400	400	in the condemnation proceeding; or
401	401	(2) the amount of damages ultimately awarded to the
402	402	property owner by a court.
403	403	SECTION 7. The changes in law made by this Act apply only to
404	404	the acquisition of real property in connection with an initial
405	405	offer made under Chapter 21, Property Code, on or after the
406	406	effective date of this Act. An acquisition of real property in
407	407	connection with an initial offer made under Chapter 21, Property
408	408	Code, before the effective date of this Act is governed by the law
409	409	applicable to the acquisition immediately before the effective date
410	410	of this Act, and that law is continued in effect for that purpose.
411	411	SECTION 8. This Act takes effect September 1, 2019.