By: Burns H.B. No. 902
A BILL TO BE ENTITLED
AN ACT
relating to the acquisition of real property by an entity with
eminent domain authority; requiring an occupational license;
authorizing a fee; providing a civil penalty; imposing a criminal
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. INFORMATION FOR LANDOWNERS
SECTION 1.01. Subchapter B, Chapter 402, Government Code,
is amended by adding Section 402.032 to read as follows:
Sec. 402.032. OMBUDSMAN FOR LANDOWNERS; LANDOWNER'S BILL OF
RIGHTS. (a) The attorney general shall establish an ombudsman
office within the office of the attorney general for the purpose of
providing information to landowners whose real property may be
acquired by a governmental or private entity through the use of the
entity's eminent domain authority. The attorney general shall
select the ombudsman.
(b) The ombudsman shall provide information to and answer
questions from landowners described by Subsection (a), through the
attorney general's Internet website and a toll-free telephone
number established by the ombudsman, regarding:
(1) the landowner's bill of rights prescribed by
Subsection (c); and
(2) the procedures for acquiring real property through
the use of eminent domain authority under Chapter 21, Property
Code, or other law.
(c) The attorney general shall provide notice by
publication to all counties in the State of Texas and shall make
available on the attorney general's Internet website a landowner's
bill of rights that is written in plain language designated to be
easily understood by the average property owner and to read as
follows:
TEXAS LANDOWNER'S BILL OF RIGHTS
The Texas Constitution gives state and local governments and
some private entities, such as utility or pipeline entities, the
legal authority to acquire private property, or a partial interest
in private property, for public use. This authority is called the
power of eminent domain.
In most instances, the power of eminent domain is used to
acquire property to build large infrastructure projects that
benefit all Texans, such as highways and roads, power lines, water,
oil and other common carrier pipelines, and gas utility pipelines,
and flood control projects. The Texas Constitution does not allow
an entity to use the power of eminent domain exclusively, for
private purposes, such as for real estate development or other
economic purposes. Entities authorized by law to exercise the
power of eminent domain must do so by following detailed procedures
found in Chapter 21 of the Texas Property Code or other Texas law.
An entity that wants to acquire your property for public use must
compensate you for it.
Private property rights are cherished by all Texas
landowners, and your rights are protected by the Texas Constitution
and the laws that govern the use of the power of eminent domain. If
you are approached by a public or private entity interested in
acquiring your property or an interest in your property for public
use, you should be aware not only of your legal rights, but also of
certain practical considerations that will help guide you in your
negotiations.
YOU HAVE A RIGHT TO ASK QUESTIONS. Who exactly wants the
property and what does that entity want to do with it? You have a
right to know the identity of the entity that wants to acquire all
or part of your property and what the entity plans to do with the
property.
DO NOT SIGN A DOCUMENT YOU DON'T UNDERSTAND. If you don't
understand what is in the document you are being asked to sign, seek
advice from a trusted source, such as a family member, a fellow
property owner who has dealt with a similar situation, a real estate
professional who can help evaluate the property being sought, or an
attorney who can help you navigate the eminent domain process, if
that becomes necessary.
KNOW YOUR LEGAL RIGHTS AND FAMILIARIZE YOURSELF WITH THE
PROCESS. An entity cannot acquire an interest in your property
without first providing you with a written offer to buy the
interest. You can expect to be given the financial basis for the
offer. You may also request an in-person, remote or telephonic
meeting with the acquiring entity to discuss the project. You
should receive the name and contact information of an employee of
the acquiring entity so you can ask questions.
NEGOTIATE WITH THE ACQUIRING ENTITY. In the vast majority of
property acquisitions, the property owner and the acquiring entity
come to a voluntary agreement on the amount of compensation to be
paid and, if only part of the property is acquired (most often as an
easement), on the terms under which the entity may use the property.
Keep in mind that an entity taking an easement or other partial
interest in the property will want to maintain a good long-term
relationship with you, so it is beneficial for both parties to talk
about all the concerns and come to a mutual understanding before
signing the agreement.
WHAT HAPPENS IF YOU CANNOT REACH AN AGREEMENT? In some cases,
the property owner and the acquiring entity simply can't come to an
agreement on the amount of compensation for the acquisition or the
terms of the instrument that grants the acquiring entity the
property rights it seeks to acquire. In any such case, a panel of
three local landowners (called "special commissioners") will be
appointed by a judge to decide how much compensation you are owed
for the property interest sought. The hearing is informal and does
not require you to have a lawyer or other expert, such as an
appraiser, but you are free to have one or both. The panel also
determines the amount of compensation for the reduction in value,
if any, to your remaining property as a result of the property
interest sought.
WHAT HAPPENS IF YOU STILL AREN'T SATISFIED? If you don't
believe the compensation awarded by the special commissioners is
adequate, of if you don't think the acquiring entity has the legal
authority to acquire the property, you may request a trial before a
judge or a jury of your peers. If you get to this point, it is
recommended that you engage a lawyer and probably an expert
appraiser to make your case. In a very small number of cases, there
may be a question about the acquiring entity's right to use eminent
domain in the first place. In that event, a court has to verify the
entity's authority to use eminent domain and determine whether the
project is for a "public use." If you disagree with the outcome in
the trial court, you can appeal the court's decision to a court of
appeals.
STILL HAVE QUESTIONS ABOUT THE EMINENT DOMAIN PROCESS? The
Office of the Attorney General has an Internet website at [insert
Internet website address] and a toll-free number [insert telephone
number] where you can learn more.
SECTION 1.02. Section 402.031, Government Code, is
repealed.
SECTION 1.03. Not later than January 1, 2022, the office of
the attorney general shall:
(1) make the landowner's bill of rights statement
provided by Section 402.032, Government Code, as added by this Act,
available on the attorney general's Internet website; and
(2) establish an ombudsman office for landowners as
required by Section 402.032, Government Code, as added by this Act.
ARTICLE 2. ELIGIBILITY FOR RIGHT-OF-WAY AGENT CERTIFICATION
SECTION 2.01. Section 1101.502(a), Occupations Code, is
amended to read as follows:
Sec. 1101.502. ELIGIBILITY REQUIREMENTS FOR CERTIFICATE.
(a) To be eligible to receive a certificate of registration or a
renewal certificate under this subchapter, a person must [be]:
(1) be at least 18 years of age; [and]
(2) be a citizen of the United States or a lawfully
admitted alien; and
(3) successfully complete the required courses of
study, including qualifying or continuing education requirements,
prescribed by this subchapter.
SECTION 2.02. Section 1101.508, Occupations Code, is added
to read as follows:
Sec. 1101.508. PROBATIONARY CERTIFICATE. (a) The
commission may issue a probationary certificate.
(b) The commission by rule shall adopt reasonable terms for
issuing a probationary certificate.
SECTION 2.03. Section 1101.509, Occupations Code, is added
to read as follows:
Sec. 1101.509. QUALIFYING AND CONTINUING EDUCATION
REQUIREMENTS. (a) The commission by rule shall approve coursework
that an applicant must successfully complete to be eligible for a
certification or renewal certification under this subchapter.
(b) An applicant for a certification or renewal
certification shall submit evidence satisfactory to the commission
that the applicant has successfully completed at least 16 classroom
hours of coursework every two years approved by the commission in:
(1) the law of eminent domain, including the rights of
property owners;
(2) appropriate standards of professionalism in
contacting and conducting negotiations with property owners; and
(3) ethical considerations in the performance of
right-of-way acquisition services.
SECTION 2.04. Section 1101.653, Occupations Code, is
amended to read as follows:
Sec. 1101.653. GROUNDS FOR SUSPENSION OR REVOCATION OF
CERTIFICATE. The commission may suspend or revoke a certificate of
registration issued under this chapter if the certificate holder:
(1) engages in dishonest dealing, fraud, unlawful
discrimination, or a deceptive act;
(2) makes a misrepresentation;
(3) acts in bad faith;
(4) demonstrates untrustworthiness;
(5) fails to honor, within a reasonable time, a check
issued to the commission after the commission has mailed a request
for payment to the certificate holder's last known address
according to the commission's records;
(6) fails to provide to a party to a transaction a
written notice prescribed by the commission that:
(A) must be given before the party is obligated
to sell, buy, lease, or transfer a right-of-way or easement; and
(B) contains:
(i) the name of the certificate holder;
(ii) the certificate number;
(iii) the name of the person the
certificate holder represents;
(iv) a statement advising the party that
the party may seek representation from a lawyer or broker in the
transaction; and
(v) a statement generally advising the
party that the right-of-way or easement may affect the value of the
property;
(7) directly or indirectly, takes a financial
incentive to make an initial offer that the certificate holder
knows or should have known is lower than the just and reasonable
compensation required under the Texas Constitution; or
(7) (8) disregards or violates this chapter or a
commission rule relating to certificate holders. SECTION 2.05. Not
later than December 1, 2021, the Texas Real Estate Commission shall
adopt rules necessary to implement the changes in law made by this
Act to Chapters 1101, Occupations Code.
SECTION 2.06. Chapter 1101, Occupations Code, as amended by
this Act, apply only to an original or renewal certificate of
registration as an easement or right-of-way agent for which an
application was submitted on or after January 1, 2022. An original
or renewal certificate of registration as an easement or
right-of-way agent for which an application was submitted before
January 1, 2022, is governed by the law in effect on the date the
application was submitted, and the former law is continued in
effect for that purpose. An applicant for an original easement or
right of way agent certificate of registration submitted on or
after January 1, 2022 will have until January 1, 2024 to complete
the educational requirements under Chapter 1101.
ARTICLE 3. EXERCISE OF EMINENT DOMAIN AUTHORITY
SECTION 3.01. Section 21.0112(a), Property Code, is amended
to read as follows:
(a) An [Not later than the seventh day before the date a
governmental or private entity with eminent domain authority makes
a final offer to a property owner to acquire real property, the
entity must send by first class mail or otherwise provide a
landowner's bill of rights statement provided by Section 402.031,
Government Code, to the last known address of the person in whose
name the property is listed the most recent tax roll of any
appropriate taxing unit authorized by law to levy property taxes
against the property. In addition to the other requirements of this
subsection, an] entity with eminent domain authority shall provide
a copy of the landowner's bill of rights statement prescribed by
Section 402.032, Government Code, to a landowner at or before the
first in-person contact unless the entity expressly states, at that
time, it will not seek to file a petition under this chapter before
or at the same time as the entity first represents in any manner to
the landowner that the entity asserts, intends to assert, or
possesses eminent domain authority to acquire the landowner's
property for public use
in-person contact does not include contact conducted by telephonic
or video-conferencing.
SECTION 3.02. Section 21.0113, Property Code, is amended by
amending Subsection (b) to read as follows:
(b) An entity with eminent domain authority has made a bona
fide offer if:
(1) an initial offer is made in writing to a property
owner that includes:
(A) a copy of the landowner's bill of rights
statement prescribed by Section 402.032, Government Code, unless
the entity has previously provided a copy of the statement to the
property owner;
(B) an offer of compensation in an amount equal
to or greater than one of the following:
(i) the market value of the property rights
sought to be acquired, based on an appraisal of the property
prepared by a certified general appraiser licensed under Chapter
1103, Occupations Code;
(ii) the estimated price or market value of
the property rights sought to be acquired based on data for at least
three comparable arm's-length sales of a property;
(iii) the estimated price or market value
of the property rights sought to be acquired based on a comparative
market analysis prepared by a real estate broker licensed under
Chapter 1101, Occupations Code, or a certified general appraiser
licensed under Chapter 1103, Occupations Code;
(iv) the estimated price of the property
rights sought to be acquired based on a broker price opinion
prepared by a real estate broker licensed under Chapter 1101,
Occupations Code;
(v) the estimated market value of the
property rights sought to be acquired based on a market study
prepared by a real estate broker licensed under Chapter 1101,
Occupations Code, or a certified general appraiser licensed under
Chapter 1103, Occupations Code; or
(vi) 150 percent of the per acre value for
each acre or part of an acre sought to be acquired, based on the
total land value for the whole property out of which the property
rights are sought to be acquired, as reflected in the most recent
tax rolls of the central appraisal district in which the property is
located;
(C) as applicable, the complete written report,
as prepared by the certified appraiser or real estate broker, that
forms the basis for the amount of the offer of compensation under
Paragraph(B)(i), (iii), or (iv) or a brief written summary that
forms the basis for the amount of the offer of compensation under
Paragraph(B)(ii), (v), or (vi);
(D) an instrument of conveyance in accordance
with Section 21.0114, as applicable; and
(E) the name and telephone number of a
representative of the entity. Representative is defined as:
(i) an employee of the entity;
(ii) an employee of an affiliate providing
services on behalf of the entity;
(iii) the legal representative; or
(iv) in the case of an entity without
employees, an individual designated to represent the day-to-day
operations of the entity;
(2) the entity satisfies the requirements of
Subchapter B-1, as applicable;
(3) [(2)] a final offer is made in writing to the
property owner;
(4) [(3)] the final offer is made on or after the 30th
day after the date on which the entity makes a written initial offer
to the property owner;
(5) [(4)] before making a final offer, the entity
obtains a written appraisal report from a certified appraiser of
the value of the property rights being acquired and the damages, if
any, to any of the property owner's remaining property;
(6) [(5)] the final offer is equal to or greater than
the amount of the written appraisal report obtained by the entity;
(7) [(6)] the following items are included with the
final offer or have been previously provided to the owner by the
entity:
(A) a copy of the written appraisal report;
(B) a copy of the deed, easement, or other
instrument conveying the property sought to be acquired; and
(C) the landowner's bill of rights statement
required [prescribed] by Section 21.0112; and
(8) [(7)] the entity provides the property owner with
at least 14 days to respond to the final offer and the property
owner does not agree to the terms of the final offer within that
period.
SECTION 3.03. Subchapter B, Chapter 21, Property Code, is
amended by adding Section 21.0114 to read as follows:
Sec. 21.0114. TERMS REQUIRED FOR INSTRUMENT OF CONVEYANCE
OF EASEMENT. (a) Except as provided by Subsection (b), an
instrument of conveyance of an easement, that does not relate to an
oil, natural gas, oil product, or liquidified mineral pipeline,
provided to a property owner under Section 21.0113 must include the
following terms:
(1) the name of the grantor;
(2) the name of grantee;
(3) a description of the purpose of the easement;
(4) a description or illustration of the location of
the easement, including a metes and bounds or centerline
description, plat, or aerial or other map-based depiction of the
location of the easement on the property;
(5) a description of the types of improvements that
may be placed by the grantee within the easement, including whether
the type of improvement would be above or below the existing surface
of the land;
(6) a provision regarding the grantee's right, if any,
to install future improvements within the easement and to
reconstruct, remove, replace, or repair any grantee improvements;
(7) a provision regarding the grantor's retained
rights to use the land, if any;
(8) a provision regarding the grantor's right, if any,
to actual monetary damages for claims arising from the construction
and installation of each improvement to be installed in, on, or
under the easement, or a statement that the consideration for the
easement includes any monetary damages arising from the
construction and installation of each improvement to be installed
in, on, or under the easement;
(9) a provision regarding the grantor's right after
initial construction and installation of each improvement to be
installed in, on, or under the easement to actual monetary damages
arising from the repair, maintenance, inspection, replacement,
operation, or removal of each improvement to be installed in, on, or
under the easement or a statement that the consideration for the
easement includes any monetary damages arising from the repair,
maintenance, inspection, replacement, operation, or removal of
each improvement to be installed in, on, or under the easement;
(10) a provision regarding:
(A) the repair and restoration, to the extent
reasonably practicable, of areas used or damaged by the grantee
outside the easement area to substantially the same condition as
the original condition or better; or
(B) the payment of actual monetary damages for
areas not restored; and
(11) a provision describing the grantee's rights of
ingress, egress, entry, and access on, to, over, and across the
easement and the grantor's adjoining property.
(b) An instrument of conveyance of an easement provided to a
property owner under Section 21.0113, that relates to an oil,
natural gas, oil product, or liquidified mineral pipeline, must
include the following, in substantial form and content:
NOTICE OF CONFIDENTIALITY RIGHTS: YOU MAY REMOVE OR STRIKE
ANY OR ALL OF YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE
PUBLIC RECORDS.
PERMANENT EASEMENT AGREEMENT
This Permanent Easement Agreement (the "Agreement") is by and
between [Name in Bold], whose address is
[insert Address NO Abbreviations], (hereinafter referred to as
"Grantor", whether one or more) and , with offices at
, and its successors and assigns (such entity and its
successors and assigns are collectively referred to as the
"Grantee"). For the consideration of TEN AND NO/100 Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor does hereby
GRANT, BARGAIN, SELL, and CONVEY unto Grantee a perpetual
non-exclusive free and unobstructed permanent pipeline easement
feet in width [or if it varies, describe], in order to, among
other rights described below, construct, operate, and maintain one
(1) pipeline [or if permanent pipeline easement is sought for more
than one pipeline, specify in the instrument the number of
pipelines sought] not to exceed inches in nominal diameter
(whether one or more, the "Pipeline") and any appurtenant
facilities in, over, through, across, under, and along land owned
by the Grantor, said easement being described on the exhibit(s)
attached hereto and made part hereof (the "Permanent Pipeline
Easement"), and if described on the exhibit(s) attached hereto (i)
a permanent exclusive surface site easement as described on the
exhibit(s) attached hereto for the purpose of erecting, laying,
constructing, maintaining, fencing, operating, repairing,
inspecting, replacing, protecting, altering, and removing [specify
in the instrument one or more of the following facilities sought to
be installed] both above and below the surface, pipelines, pipeline
gate valve(s), by-passes, cross-overs, loops, risers, vents,
cables, meters, valves, cathodic protection, conduits,
launching-receiving equipment/in-line pigging facilities,
alternating current mitigation equipment, electrical supply
facilities, wires and poles, solar power facilities, generators,
treating and dehydration facilities, monitoring cameras, slug
catchers, compressors, pumps, radio and communications equipment
and facilities, measuring equipment and meter runs, and any other
appurtenances that may be necessary or desirable in connection
therewith (the "Surface Site Easement"), (ii) a temporary or
permanent access easement as identified on the exhibit(s) hereto
on, over, through, across, and along Grantor's property, as more
particularly described on the exhibit(s) hereto, for ingress and
egress by Grantee and its employees, designees, contractors,
successors, and assigns, and all those acting by or on behalf of it,
for the unobstructed passage of persons, vehicles, equipment,
and/or machinery, together with the non-exclusive right to use any
existing roadway and/or to construct, protect, inspect, repair,
alter, reconstruct, restore, improve, maintain, and use a road,
including ditches, culverts, drains, and such other appurtenant
facilities (the "Access Easement"), and (iii) a perpetual
non-exclusive free and unobstructed permanent easement feet
in width, for the purpose of erecting, laying, constructing,
maintaining, operating, repairing, inspecting, replacing,
protecting, altering, and removing power lines, poles and related
appurtenances to serve the Pipeline or appurtenances thereto (the
"Electric Line Easement").
Grantor does also hereby GRANT, BARGAIN, SELL, and CONVEY
unto Grantee temporary workspace and extra/additional temporary
workspace, if any, as generally described in the exhibit(s)
attached hereto, in order to construct the Pipeline and any
appurtenant facilities in, over, through, across, under, and along
the property and to restore the property as required under this
Agreement (the "Temporary Construction Easement") (The Permanent
Pipeline Easement and Temporary Construction Easement, together
with the Surface Site Easement, the Access Easement and the Electic
Line Easement (to the extent described in the exhibit(s) hereto),
are collectively referred to as the "Easements"). The term of the
Temporary Construction Easement and Access Easement (if identified
as temporary on the exhibit(s) hereto) shall be for a period to
extend twenty-four (24) months from the date of construction
commencement on Grantor's property. However, if Grantee has
completed its use of the Temporary Construction Easement or Access
Easement (if identified as temporary) prior to the expiration of
said period, then the Temporary Construction Easement and such
Access Easement shall immediately terminate. All rights, duties,
and/or obligations arising by or under this Agreement shall only
apply to the Temporary Construction Easement and Access Easement
(if identified as temporary) while same are in effect.
It is further agreed as follows:
1. Permanent Pipeline Easement. The right to use the
Easements shall belong to the Grantee and its agents, employees,
designees, contractors, guests, invitees, successors, and assigns,
and all those acting by or on behalf of it, or to any of them, for
the purposes of establishing, laying, constructing,
reconstructing, installing, realigning, modifying, replacing,
improving, adding, altering, substituting, operating, maintaining,
accessing, inspecting, patrolling, protecting, repairing, changing
the size of, relocating, and changing the route or routes of the
Pipeline within the Permanent Easement and abandoning in place and
removing at will, in whole or in part, the Pipeline, for the
transportation of [the instrument to specify one or more of the
following] oil, gas, oil products, liquefied minerals (including
without limitation, condensate, whether obtained from oil or gas
wells, ethane, ethylene, propane, butane, isobutene, pentane,
natural gasoline, and other products derived from hydrocarbons),
crude petroleum, hydrocarbon gas liquids, or other mineral
solutions, together with above and below ground appurtenances as
may be necessary or desirable for the operation of the Pipeline
over, across, under, and upon the Permanent Easement.
2. Minimum Burial Depth. At the time of initial
construction, Grantee shall bury the Pipeline to a minimum depth of
thirty-six inches (36") below the surface of the ground and any then
existing drainage ditches, creeks, and roads, provided however at
those locations where rock is encountered, the Pipeline may be
buried at a lesser depth. If the Pipeline crosses a river or other
large drainage feature or is intended to be placed above ground, the
Pipeline can be installed, where permitted by law, along a bridge,
or in above ground pipe racks or upon the surface, as permitted by
law.
3. Ingress and Egress. Grantee shall have the right of
ingress, egress, entry, and access in, to, through, on, over,
under, and across the Easements and where same intersect any public
road or public right-of-way or other easement to which Grantee has
the right to access and along any roads designated by Grantor and
any roads or routes as needed during an emergency, for any and all
purposes necessary and/or incident to the exercise by the Grantee
of the rights granted to it by this Agreement. Grantee shall
promptly repair any damage to Grantor's roads caused by Grantee in
the exercise of any rights granted in as good a condition as existed
prior to use by Grantee.
4. Lateral Support. Grantee shall have the right to select
the exact location of the Pipeline within the Permanent Easement.
Further, Grantee shall have the right to construct, maintain, and
change slopes of cuts and fills to ensure proper lateral and
subjacent support for and drainage for the Pipeline and appurtenant
facilities.
5. Damages. The consideration paid by Grantee in this
Agreement includes the market value of the Easements and including
without limitation any and all (i) damages resulting from the
removal or clearing of any trees, shrubs, and other improvements or
obstructions within the Easements, (ii) damages resulting from
Grantee's digging and trenching operations within the Easements,
(iii) crop damages in connection with any farm lands located within
the Easements, (iv) damages to the remaining property, if any, as a
result of the granting of the Easements and the installation of the
Pipeline, including any diminution in value, if any, (v) damages to
the Easements themselves by reason of the operation, maintenance,
repair, alteration, and/or servicing of the Pipeline after initial
pipeline construction and remediation is completed, and (vi)
damages or claims resulting from the remediation performed by
Grantee on Grantor's lands following initial construction, and
(vii) damages resulting from routine clearing of the permanent
Easements of obstructions and maintaining a line of sight along the
Easements. The initial consideration does not cover any damages
which may accrue from time to time to Grantor's other lands outside
the Easements and Grantee shall pay Grantor for any and all other
such reasonable and actual damages promptly as they may accrue.
6. Fences. Grantee shall have the right to remove any fence
that now crosses or may cross the Easements during initial
construction of the Pipeline or thereafter. Prior to cutting any
fence, however, Grantee shall brace the existing fence to be cut
adequately on both sides of the proposed cut by suitable H-braces to
prevent the remainder of the fence from sagging and shall promptly
install wire gaps or gates in any fence opening created by Grantee.
Each such wire gap or gate is to be reinforced so as to be strong
enough to prevent livestock from passing through same, where
livestock is present. Upon completion of initial construction
operations, each wire gap will be removed and at Grantee's sole
option replaced with (i) fencing of the same or better grade and
condition as existed before Grantee cut and gapped same or (ii) a
permanent gate, which gate shall, to the extent reasonably
practicable, be constructed out of similar or better grade
materials than already used for existing gates on the property.
Each entry and exit gate shall be securely closed and locked, except
when Grantee or its authorized personnel are actually passing
through same, and Grantor and Grantee shall each be entitled to
maintain their own lock in any such gate, such that Grantor and
Grantee shall each have the right of free passage through any such
gates. If Grantee fails to restore any fences or gates disturbed by
Grantee to the same or better grade and condition as existed before
Grantee disturbed same, Grantee shall pay Grantor the reasonable
costs to restore any such fences or gates to the same or better
grade and condition as existed before Grantee disturbed same.
7. Crossing Rights and Surface Limitations. Grantor may use
the Easements for any and all purposes not inconsistent with the
purposes set forth in this Agreement; provided, however, that
Grantor may not use any part of the Easements if such use may
damage, destroy, injure, and/or interfere with Grantee's use of the
Easements for the purposes for which the Easements are being sought
by Grantee. Notwithstanding anything herein to the contrary,
Grantor is not permitted to conduct any of the following activities
on the Easements: (1) construct any temporary or permanent
building or site improvements; (2) drill or operate any well on the
Easements; provided that a well can be directionally drilled under
the Easements subject to the terms for drilling set forth in
Paragraph 9 below; (3) remove soil or change the grade or slope; (4)
impound surface water; or (5) plant trees or landscaping. Grantor
further agrees it may not cause above- or below-ground obstruction
to interfere with the purposes for which this Agreement is being
acquired may be placed, erected, installed, or permitted upon the
Easements without the prior written permission of Grantee. Grantor
and Grantor's heirs, successors, and assigns shall have the right,
after prior written notice to Grantee and review and approval by
Grantee thereof, to construct, reconstruct, and maintain streets,
sidewalks, roads or drives, road ditches, drainage ditches, and
utilities, near perpendicular but in no event at any angle of not
less than forty-five (45) degrees to Grantee's Pipeline over and
across the Permanent Easement, provided that all of Grantee's
required and applicable spacing and crossing guidelines,
including, without limitation, horizontal and vertical separation
limits and other protective requirements, are met by Grantor at
Grantor's cost. In the event the terms of this paragraph are
violated, such violation shall immediately be corrected or
eliminated by Grantor upon receipt of written notice from Grantee
or Grantee shall have the immediate right to correct or eliminate
such violation at the sole risk and expense of Grantor. Grantor
shall promptly reimburse Grantee for any expenses or costs related
thereto. Further, Grantor will not hereafter interfere in any
manner with the purposes for which the Easements are conveyed, and
Grantee shall have the right to remove any improvement, facility,
or structure that interferes with the purposes for which the
Easements are granted or which may endanger or interfere with the
efficiency, safety, or convenient operation and maintenance of the
Pipeline and appurtenant facilities and which is installed by
Grantor subsequent to the date that Grantee acquires possession of
the Easements, without liability for damages and at Grantor's cost.
Grantor agrees that Grantee will not be liable to repair, replace or
be liable for the cost of repair or replacement of any of Grantor's
above or below ground obstructions installed by virtue of this
paragraph as a result of Grantee's use of the Easements.
8. Mowing/Clearing. Grantee has the right, from time to
time without paying any damages to Grantor, to mow the Permanent
Easement and to trim or cut down or eliminate from the Easements
trees or shrubbery, in the sole judgment of Grantee and its
successors and assigns, as may be necessary to install the Pipeline
and thereafter on the Permanent Easement to prevent possible
interference with the operation and maintenance of the Pipeline and
to remove possible hazard thereto. All trees and brush removed
during construction and other debris generated during construction
shall be burned and/or chipped and spread on the Easements or
removed to an appropriate disposal site. The method of disposal
shall be selected by Grantee.
9. Oil and Gas. To the extent of its authority over the
mineral estate, Grantor shall retain all the oil, gas, and other
minerals in, on, and under the Easements; provided, however, that
Grantor, to the extent of its authority over the mineral estate,
shall not be permitted to drill or operate equipment for the
production or development of minerals on the Easements, but it will
be permitted to extract the oil and other minerals from and under
the Easements by directional drilling and other means, provided the
drill bit enters the Easements at a subsurface depth of one hundred
feet (100') or deeper and so long as such activities do not damage,
destroy, injure, and/or interfere with the Grantee's use of the
Easements for the purposes for which the Easements are being sought
by Grantee.
10. Pipeline Installation and Grading. Grantee will,
insofar as reasonably practicable, level, re-grade, and reseed the
ground disturbed by Grantee's use of the Easements and will
maintain the Easements clean of all litter and trash gererated by
Grantee during periods of construction, operation, maintenance,
repair, or removal. All construction debris shall be cleaned up and
removed from Grantor's lands upon completion of installation and
construction of the Pipeline, associated equipment, and
appurtenances thereto. During the initial construction, the
trenching (but not installation by horizontal directional drilling
or underground boring) in areas of Grantor's lands that are
currently being used for growing commercial crops or purposefully
fallowed for a period of time not to exceed the lesser of five years
or the number of consecutive years such land was used for growing
commercial crops prior to being fallow, shall be done in such a
manner so that at least twelve inches (12") of top soil (or the
amount of top soil present if less than twelve inches (12") exists)
will be separated from the balance of the dirt removed in making the
ditch or trench for installation of the Pipeline. In backfilling
after installation of the Pipeline, the topsoil so first removed
and segregated shall be used as cover soil in such a manner so as to
result in it being returned to the top of the ditch as topsoil.
11. Use Limitations. Grantee shall use the Easements solely
for the purposes specified in this Agreement. There shall be no
hunting or fishing on the Easements or any of Grantor's lands by
Grantee or its officers, agents, employees, contractors, invitees,
guests, or representatives at any time. No firearms or fishing
equipment shall be taken on the Easements by Grantee or its
officers, agents, employees, contractors, invitees, guests, or
representatives at any time.
12. Above Ground Appurtenances. Except for facilities
located on the Surface Site Easement and Electric Line Easement(if
identified and included in the exhibit(s) hereto), Grantee shall
not place any above ground appurtenances on the Permanent Pipeline
Easement except for pipeline markers and cathodic protection units,
cathodic test leads, alternating current mitigation equipment,
and/or other cathodic protection appurtenances, necessary to
monitor and control potential corrosion, including, without
limitation, decouplers, pedestals, rectifiers, electric lines,
electrical facilities, electric meters, junction boxes, anodes,
wires, poles, ground beds, fencing, bollards, grounding systems,
and any other appurtenances necessary for cathodic protection or
corrosion control, if necessary for the operation of the Pipeline,
as determined by Grantee in its sole discretion, and except for
[describe other above ground appurtenances, if any, which will be
installed within the Permanent Pipeline Easement]. Grantee shall
use reasonable efforts to place such above ground signage and
cathodic protection facilities at the junction of the Permanent
Pipeline Easement and fence lines, property lines, pipeline
crossings, river or creek crossings, or road crossings, provided
however, Grantee shall have the right to place same at any other
location required by applicable law, regulation, or rule on
Grantor's property.
13. Indemnity. GRANTEE SHALL DEFEND WITH COUNSEL OF
GRANTEE'S CHOICE, INDEMNIFY, PROTECT, AND HOLD HARMLESS GRANTOR,
GRANTOR'S HEIRS, SUCCESSORS, ASSIGNS AND RELATED OR AFFILIATED
ENTITIES (THE "INDEMNIFIED PARTIES"), FROM ANY AND ALL LIENS,
CLAIMS, DEMANDS, COSTS (INCLUDING BUT NOT LIMITED TO REASONABLE
ATTORNEYS' FEES), EXPENSES, DAMAGES, LOSSES, AND CAUSES OF ACTION
FOR DAMAGES ASSERTED BY PERSONS OR ENTITIES UNAFFILIATED WITH THE
INDEMNIFIED PARTIES BECAUSE OF INJURY TO PERSONS (INCLUDING DEATH)
AND INJURY OR DAMAGE TO OR LOSS OF ANY PROPERTY OR IMPROVEMENTS TO
THE EXTENT CAUSED BY GRANTEE'S NEGLIGENCE, GROSS NEGLIGENCE,
WILLFUL MISCONDUCT, OR STRICT LIABILITY.
14. Tenants. Grantor hereby identifies the following as
people or entities having a lease, sublease, or other possessory
interest in Grantor's property:
___________________
___________________
___________________
___________________
(If this paragraph is left blank, then Grantor represents
there are no such persons or entities.)
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original of this Agreement
but all of which, when delivered and taken together, shall
constitute one and the same Agreement and be binding upon the
parties who executed any counterpart, regardless of whether it is
executed by all parties named herein.
16. Assignability. Grantee shall have the right to assign
this grant in whole or in part, in which event Grantor acknowledges
and agrees that the assignee shall succeed to the rights and
obligations of Grantee to the extent conveyed in such assignment,
and Grantee shall be relieved of obligations with respect to the
assigned interest which accrue after the date of assignment.
17. Integration Clause. This Agreement constitutes the
entire agreement and supersedes any and all prior oral
understandings and agreements, if any, concerning the subject of
this Agreement. Grantor confirms and agrees that Grantor has been
made no promise or agreement by Grantee or any agent of Grantee
(which is not expressed or referenced specifically within this
Agreement) in executing this Agreement, that Grantor is not relying
upon any statement or representation of Grantee or any agent of
Grantee and that Grantor's execution of this Agreement is free and
voluntary. This Agreement may not be modified or amended except on
or after the date hereof except by a writing signed by the party
against whom said modification or amendment is to be enforced and no
party shall be liable or bound to any other party in any manner
except as specifically set forth herein.
18. Disclaimer. NEITHER PARTY HAS RELIED UPON AND HEREBY
EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS,
INFORMATION, OR MATERIALS PROVIDED, SUPPLIED, OR FURNISHED BY THE
OTHER PARTY OR OTHERWISE MADE AVAILABLE BY EITHER PARTY IN THE
PUBLIC DOMAIN OR OTHERWISE (OTHER THAN THOSE MADE IN THIS
AGREEMENT).
TO HAVE AND TO HOLD, subject to all matters of record which
are valid and subsisting and affect Grantor's property burdened by
this Permanent Easement Agreement, the rights, privileges, and
authority hereby granted unto the Grantee and its successors and
assigns, forever, and Grantor does hereby agree to warrant and
defend said Easements unto Grantee and its successors and assigns,
by, through, or under Grantor, but not otherwise. This Agreement
and all of its terms, provisions, and obligations shall be
covenants running with the land affected thereby and shall inure to
the benefit of and be binding upon Grantor and Grantee and their
respective heirs, executors, administrators, successors, and
assigns.
EXECUTED and effective as of the day of
20 .
GRANTOR(S):
By:
ACKNOWLEDGEMENT
STATE OF TEXAS
COUNTY OF
BEFORE ME, the undersigned authority, on this day personally
appeared , known to me to be the person whose name
is subscribed to the foregoing instrument and acknowledged to me
that he/she executed the same for the purposes and consideration
therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
20 .
_______________________________________________________
Notary Public in and for the State of Texas
(Print Name of Notary Public Here)
(c) A property owner may negotiate for terms not required
under Subsection (a) for an easement agreement or provided under
Subsection (b) for a pipeline easement agreement. An entity and a
property owner may, at any time:
(1) agree to alter or omit a term required under
Subsection (a) for an easement agreement or provided by Subsection
(b) for a pipeline easement agreement; or
(2) execute an instrument of conveyance that is
different in some or all aspects than the pipeline easement
agreement form provided by Subsection (b).
SECTION 3.04. Section 21.014, Property Code, is amended by
amending Subsection (a) and adding Subsection (d) 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, not
later than the 15th calendar day after the date the petition is
filed, appoint three disinterested real property owners who reside
in the county as special commissioners to assess the damages of the
owner of the property being condemned and appoint two disinterested
real property owners who reside in the county as alternate special
commissioners. The judge appointing the special commissioners
shall give preference to persons agreed on by the parties before the
court appoints the special commissioners. The judge shall provide
the names and contact information of the special commissioner and
alternate special commissions to the parties. Each party shall
have seven calendar days after the date of the order appointing the
special commissioners [The judge shall provide each party a
reasonable period] to strike one of the three special commissioners
[appointed by the judge]. If a person fails to serve as a special
commissioner or is struck by a party to the suit in accordance with
this subsection, an alternate special commissioner shall serve as a
replacement for the special commissioner based on the order that
the alternate special commissioners are listed in the initial order
of appointment [, the judge shall appoint a replacement].
(d) In this section, "disinterested real property owner"
means a real property owner who:
(1) is not related to a party or the representative of
a party by affinity within the second degree or by consanguinity
within the third degree, as determined under Chapter 573,
Government Code;
(2) does not own property that an entity with eminent
domain authority is currently attempting to acquire for public use;
and
(3) is not related by affinity within the second
degree or by consanguinity within the third degree, as determined
under Chapter 573, Government Code, to a person who has owned or
currently owns property described by Subdivision (2).
SECTION 3.05. 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 to occur not earlier
than [for the parties at the earliest practical time but may not
schedule a hearing to assess damages before] the 20th day or later
than the 40th day after the date the special commissioners were
appointed, unless otherwise agreed to by the parties. The special
commissioners shall schedule a hearing for the parties 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,
or at the request of either party, by video-conferencing.
SECTION 3.06. Section 21.016(d), Property Code, is amended
to read as follows:
(d) Notice may be served[:
[(1)] by delivering a copy of the notice to the party or
to the party's agent or attorney or in any other manner provided by
the Texas Rules of Civil Procedure for service of citation[;
[(2) if the property being condemned belongs to a
deceased's estate or to a minor or other legally disabled person and
the person or estate has a legal representative, by delivering a
copy of the notice to the legal representative; or
[(3) if the property being condemned belongs to a
nonresident of this state and there has been no personal service on
the owner, if the identity or the residence of the property owner is
unknown, or if the property owner avoids service of notice by
hiding, by publication in the same manner as service of citation by
publication in other civil cases in the district courts or county
courts at law].
SECTION 3.07. Chapter 21, Property Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. IN-PERSON MEETING
Sec. 21.0301. DEFINITION. In this subchapter, "in-person
meeting" includes a meeting conducted by telephonic or video
conferencing at the option of either the entity or landowner.
Sec. 21.0302. APPLICABILITY TO CERTAIN ENTITIES. This
subchapter does not apply to an entity that is required by law to
participate or voluntarily participates in a public meeting or
hearing regarding the exercise of the entity's eminent domain
authority at the Public Utility Commission of Texas or to an entity
that holds a public meeting as part of the entity's regulatory or
condemnation process.
Sec. 21.0303. METHOD OF NOTICE. Notice may be given under
this subchapter by:
(1) mailing the notice to the property owner listed
for the property on the most recent tax roll for a taxing unit with
authority to impose an ad valorem tax on the property, at the
address for the property owner listed on the tax roll; or
(2) any method authorized by Section 21.016(d).
Sec. 21.0304. NOTICE TO PROPERTY OWNER. Before or at the
time an entity with eminent domain authority makes an initial offer
to a property owner to acquire a property interest for a project,
the entity shall provide notice to the property owner of the
property owner's right to request an in-person meeting with the
entity to discuss the project.
Sec. 21.0305. PROPERTY OWNER REQUEST FOR IN-PERSON MEETING.
A property owner who receives notice from an entity under Section
21.0304 may request an in-person meeting with the entity. The
property owner's request must be in writing and received by the
entity not later than the seventh day after the date the property
owner received the notice.
Sec. 21.0306. SCHEDULING OF IN-PERSON MEETING. (a) On
receipt of a request from a property owner under Section 21.0305 the
entity shall propose not fewer than three different meeting times
on three different meeting dates for the in-person meeting.
(b) A meeting time proposed under Subsection (a) may not be
earlier than the seventh day or later than the 30th day after the
date the entity received the property owner's request.
(c) A property owner who wishes to accept a proposed meeting
time under this section must confirm acceptance in writing of the
meeting time not later than the earlier of the:
(1) third day before the proposed meeting time; or
(2) seventh day after the date the property owner
receives proposed meeting times from the entity.
Sec. 21.0307. SATISFACTION OF BONA FIDE OFFER REQUIREMENT
GENERALLY. An entity satisfies the requirements of this subchapter
for purposes of Section 21.0113(b)(2) with respect to a property
owner if the entity:
(1) provides notice to the property owner as required
by Section 21.0304 and the property owner does not timely request an
in-person meeting under Section 21.0305;
(2) proposes meeting times to the property owner as
required by Section 21.0306 and the property owner:
(A) does not timely confirm the property owner's
preferred meeting time under that section; or
(B) rejects the proposed meeting times; or
(3) schedules a meeting with a property owner as
required under Section 21.0306, whether or not the property owner
participates in the meeting.
Sec. 21.0308. SATISFACTION OF BONA FIDE OFFER REQUIREMENT:
VOLUNTARY MEETING. Notwithstanding any other provision of this
subchapter, an entity satisfies the requirements of this subchapter
for purposes of Section 21.0113(b)(2) with respect to a property
owner if:
(1) the entity voluntarily initiates an in-person meeting
with the property owner or with a group of affected
property owners;
(2) provides notice of the meeting to the property owner at
least 14 days before the meeting; and
(3) the meeting is held before a final offer is made to the
property owner.
Sec. 21.0309. EFFECT OF IN-PERSON MEETING ON TIMING OF
FINAL OFFER. Notwithstanding any other provision of this
subchapter, an entity that participates in an in-person meeting
with a property owner may not make a final offer to the property
owner earlier than the third day after the date of the in-person
meeting unless the property owner agrees to an earlier date.
SECTION 3.08. (a) Sections 21.0112 and 21.0113, Property
Code, as amended by this Act, and Section 21.0114 and Subchapter
B-1, Chapter 21, Property Code, as added by this Act, apply only to
the acquisition of real property in connection with an initial
offer made on or after the effective date of this Act. An
acquisition of real property in connection with an initial offer
made before the effective date of this Act is governed by the law
applicable to the acquisition immediately before that date, and
that law is continued in effect for that purpose.
(b) Sections 21.014, 21.015, and 21.016, Property Code, as
amended by this Act, apply only to a condemnation proceeding
commenced on or after the effective date of this Act. A
condemnation proceeding commenced before the effective date of this
Act is governed by the law applicable to the condemnation
proceeding immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
ARTICLE 4. EFFECTIVE DATE
SECTION 4.01. (a) Except as provided by Subsection (b) of
this section, this Act takes effect January 1, 2022.
(b) Sections 1.03 and 2.30 of this Act take effect September
1, 2021.