73R8898 MI-F
By Lewis H.B. No. 1492
Substitute the following for H.B. No. 1492:
By Tallas C.S.H.B. No. 1492
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to notice requirements for actions affecting permanent
1-3 school fund land and for transfers of real property abutting
1-4 tidally influenced waters of the state, to the sale of state land
1-5 acquired through tax foreclosure, to the sale or lease of and the
1-6 granting of easements across permanent school fund lands, and to
1-7 funds associated with permanent school fund lands.
1-8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-9 SECTION 1. Section 5.115, Water Code, is amended to read as
1-10 follows:
1-11 Sec. 5.115. Notice of Application. (a) At the time an
1-12 application for a permit or license under this code is filed with
1-13 the executive director and is administratively complete, the
1-14 commission shall give notice of the application to any person who
1-15 may be affected by the granting of the permit or license.
1-16 (b) At the time an application for any formal action by the
1-17 commission that will affect lands dedicated to the permanent school
1-18 fund is filed with the executive director or the commission and is
1-19 administratively complete, the commission shall give notice of the
1-20 application to the school land board. Notice shall be delivered by
1-21 certified mail, return receipt requested, addressed to the deputy
1-22 commissioner of the asset management division of the General Land
1-23 Office.
2-1 (c) The commission shall adopt rules for the notice required
2-2 by this section.
2-3 (d) <(c)> The notice must state:
2-4 (1) the identifying number given the application by
2-5 the commission;
2-6 (2) the type of permit or license sought under the
2-7 application;
2-8 (3) the name and address of the applicant;
2-9 (4) the date on which the application was submitted;
2-10 and
2-11 (5) a brief summary of the information included in the
2-12 permit application.
2-13 (e) The notice to the school land board under this section
2-14 shall additionally:
2-15 (1) state the location of the permanent school fund
2-16 land to be affected; and
2-17 (2) describe any foreseeable impact or effect of the
2-18 commission's action on the permanent school fund land.
2-19 (f) A formal action or ruling by the commission on an
2-20 application affecting permanent school fund land that is made
2-21 without the notice required by this section is voidable by the
2-22 school land board as to any permanent school fund lands affected by
2-23 the action or ruling.
2-24 SECTION 2. Subchapter C, Chapter 43, Local Government Code,
2-25 is amended by adding Section 43.0525 to read as follows:
3-1 Sec. 43.0525. NOTICE OF ANNEXATION OF PERMANENT SCHOOL FUND
3-2 LANDS. Notice of the intent of a municipality to annex any state
3-3 land belonging to the permanent school fund shall be given to the
3-4 school land board by certified mail, return receipt requested,
3-5 addressed to the deputy commissioner of the asset management
3-6 division of the General Land Office at least 30 days before the
3-7 date of an annexation election or the issuance of an annexation
3-8 ordinance relating to that land. An annexation that is made
3-9 without the notice required by this subsection is not effective as
3-10 to the permanent school fund land sought to be annexed.
3-11 SECTION 3. Subchapter D, Chapter 11, Natural Resources Code,
3-12 is amended by adding Section 11.082 to read as follows:
3-13 Sec. 11.082. Notice to School Land Board. (a) A state
3-14 agency or political subdivision may not formally take any action
3-15 that may affect state land dedicated to the permanent school fund
3-16 without first giving notice of the action to the board. Notice of
3-17 the proposed action shall be delivered by certified mail, return
3-18 receipt requested, addressed to the deputy commissioner of the
3-19 asset management division of the General Land Office on or before
3-20 the state agency's or political subdivision's formal initiation of
3-21 the action.
3-22 (b) The notice must:
3-23 (1) describe the proposed action;
3-24 (2) state the location of the permanent school fund
3-25 land to be affected; and
4-1 (3) describe any foreseeable impact or effect of the
4-2 state agency's or political subdivision's action on the permanent
4-3 school fund land.
4-4 (c) An action taken by a state agency or political
4-5 subdivision without the notice required by Subsection (a) of this
4-6 section that affects state land dedicated to the permanent school
4-7 fund is not effective as to permanent school fund land affected by
4-8 the action.
4-9 (d) In this section:
4-10 (1) "Action" means:
4-11 (A) formal adoption of an agency or political
4-12 subdivision policy;
4-13 (B) final adoption of an administrative rule;
4-14 (C) issuance of findings of fact or law;
4-15 (D) issuance of an administrative order in an
4-16 administrative hearing; or
4-17 (E) adoption of a local ordinance or resolution.
4-18 (2) "Board" means the school land board.
4-19 (3) "Initiation" means the commencement of the first
4-20 phase of public consideration of a formal policy, rule, or
4-21 ordinance, or a hearing undertaken by a state agency or political
4-22 subdivision that is intended to result in final adoption of a
4-23 formal policy, rule, or ordinance.
4-24 (4) "Political subdivision" means a county,
4-25 municipality, public school district, or special-purpose district
5-1 or authority.
5-2 (5) "State agency" means:
5-3 (A) a department, commission, board, office,
5-4 bureau, council, or other agency in the executive branch of state
5-5 government other than the Texas Department of Transportation and
5-6 the Railroad Commission of Texas; or
5-7 (B) a university system or an institution of
5-8 higher education as defined in Section 61.003, Education Code.
5-9 SECTION 4. Section 32.112, Natural Resources Code, is
5-10 amended to read as follows:
5-11 Sec. 32.112. SALE OF TAX FORECLOSURE PROPERTY. (a) All
5-12 real property or any interest in real property placed in the name
5-13 of the state as a result of a tax foreclosure sale may be sold or
5-14 leased by the board in the same manner as provided for the sale or
5-15 lease of land under Chapter 51 of this code <The board may sell by
5-16 sealed bid all real property placed in the name of the state as a
5-17 result of any tax foreclosure sale. The sealed bid sales shall be
5-18 conducted in the same manner as sealed bid sales for public school
5-19 land>.
5-20 (b) The board may retain from the proceeds of a sale or
5-21 lease conducted under this section the cost of conducting the
5-22 transaction <sale>, including advertising, appraisal, and
5-23 administrative costs. The balance of the proceeds shall be
5-24 deposited in the State Treasury to the credit of the Texas capital
5-25 trust fund.
6-1 SECTION 5. Section 33.015, Natural Resources Code, is
6-2 amended to read as follows:
6-3 Sec. 33.015. SPECIAL FUND. (a) A special fund is created,
6-4 and money received by the board for the grant of permits under this
6-5 chapter shall be deposited in the State Treasury to the credit of
6-6 this special fund.
6-7 (b) Sections 403.094 and 403.095, Government Code, do not
6-8 apply to the fund created under this section.
6-9 SECTION 6. Section 33.131, Natural Resources Code, is
6-10 amended to read as follows:
6-11 Sec. 33.131. Structures as Property of the State. A
6-12 structure presently existing or to be constructed in the future for
6-13 which a permit is required under Section 33.119 of this code
6-14 <subchapter> is the property of the state. Any construction,
6-15 maintenance, or use of the structure other than as provided in this
6-16 subchapter is declared to be a nuisance per se and is expressly
6-17 prohibited.
6-18 SECTION 7. Subchapter D, Chapter 33, Natural Resources Code,
6-19 is amended by adding Section 33.135 to read as follows:
6-20 Sec. 33.135. NOTICE TO PURCHASER OR GRANTEE OF COASTAL AREA
6-21 PROPERTY. (a) A person who sells, transfers, or conveys an
6-22 interest other than a mineral, leasehold, or security interest in
6-23 real property adjoining and abutting the tidally influenced waters
6-24 of the state must include the following notice as a part of a
6-25 written executory contract for the sale, transfer, or conveyance:
7-1 "NOTICE REGARDING COASTAL AREA PROPERTY
7-2 "(1) The real property described in and subject to
7-3 this contract adjoins and shares a common boundary with the tidally
7-4 influenced submerged lands of the state. The boundary is subject
7-5 to change and can be determined accurately only by a survey on the
7-6 ground made by a licensed state land surveyor in accordance with
7-7 the original grant from the sovereign. The owner of the property
7-8 described in this contract may gain or lose portions of the tract
7-9 because of changes in the boundary.
7-10 "(2) The seller, transferor, or grantor has no
7-11 knowledge of any prior fill as it relates to the property described
7-12 in and subject to this contract.
7-13 "(3) State law prohibits the use, encumbrance,
7-14 construction, or placing of any structure in, on, or over
7-15 state-owned submerged lands below the applicable tide line, without
7-16 proper permission.
7-17 "(4) The purchaser or grantee is hereby advised to
7-18 seek the advice of an attorney or other qualified person as to the
7-19 legal nature and effect of the facts set forth in this notice on
7-20 the property described in and subject to this contract.
7-21 Information regarding the location of the applicable tide line as
7-22 to the property described in and subject to this contract may be
7-23 obtained from the surveying division of the General Land Office in
7-24 Austin."
7-25 (b) If property described under Subsection (a) of this
8-1 section is sold, transferred, or conveyed without an executory
8-2 contract for conveyance, a written statement containing the notice
8-3 prescribed by that subsection must be delivered to the grantee for
8-4 execution and acknowledgement of receipt before the conveyance is
8-5 recorded.
8-6 (c) Failure to include the prescribed notice in the written
8-7 executory contract or to deliver a written statement of the notice
8-8 for execution and acknowledgement by the grantee in the absence of
8-9 a written executory contract:
8-10 (1) constitutes a legal right in the purchaser to
8-11 terminate the contract or to renounce a sale, transfer, or
8-12 conveyance;
8-13 (2) requires that any consideration, down payment, or
8-14 deposit paid by the grantee be returned to the grantee, together
8-15 with a cancellation of any promissory note or security instrument
8-16 given in consideration for the sale, conveyance, or transfer; and
8-17 (3) constitutes a deceptive act under Section 17.46,
8-18 Business & Commerce Code.
8-19 (d) This section or the action of any party subject to this
8-20 section does not diminish or modify the beach access and use rights
8-21 of the public as acquired by statute or under common law.
8-22 SECTION 8. Section 51.052, Natural Resources Code, is
8-23 amended by amending Subsections (e) and (f) and adding Subsection
8-24 (i) to read as follows:
8-25 (e) The owner of land that surrounds land in a tract of 700
9-1 <320> acres or less shall have a preference right to purchase the
9-2 tract before the land is made available for sale to any other
9-3 person, provided the person having the preference right pays not
9-4 less than the market value for the land as determined by the board.
9-5 (f) If the surrounding land is owned by more than one
9-6 person, the owners of land with a common boundary with a tract of
9-7 700 <320> acres or less that is for sale shall have a preference
9-8 right to purchase the tract before it is made available to any
9-9 other person, provided the person with the preference right pays
9-10 not less than the market value of the land as determined by the
9-11 board and the board finds use of the preference to be in the best
9-12 interest of the state. The board shall adopt rules to implement
9-13 this preference right.
9-14 (i) If no bid meeting minimum requirements is received for a
9-15 tract of land offered at a sealed bid sale under Subchapter D,
9-16 Chapter 32, of this code, the asset management division of the land
9-17 office may solicit proposals or negotiate a sale, exchange, or
9-18 lease of the property to any person. The sales price may not be
9-19 less than the appraised value of the land as determined by the
9-20 asset management division. The board must approve any negotiated
9-21 sale, exchange, or lease of any land under this section.
9-22 SECTION 9. Section 51.291, Natural Resources Code, is
9-23 amended to read as follows:
9-24 Sec. 51.291. GRANTS OF EASEMENTS. (a) Except as provided
9-25 by Subsection (b) of this section, the <The> commissioner may
10-1 execute grants of easements for rights-of-way across, through, and
10-2 under unsold public school land, the portion of the Gulf of Mexico
10-3 within the jurisdiction of the state, the state-owned riverbeds and
10-4 beds of navigable streams in the public domain, and all islands,
10-5 saltwater lakes, bays, inlets, marshes, and reefs owned by the
10-6 state within tidewater limits for:
10-7 (1) telephone, telegraph, electric transmission, and
10-8 powerlines;
10-9 (2) oil pipelines, including pipelines connecting the
10-10 onshore storage facilities with the offshore facilities of a
10-11 deepwater port, as defined by the federal Deepwater Port Act of
10-12 1974 (33 U.S.C.A. Section 1501 et seq.), gas pipelines, sulphur
10-13 pipelines, and other electric lines and pipelines of any nature;
10-14 (3) irrigation canals, laterals, and water pipelines;
10-15 (4) roads; and
10-16 (5) any other purpose the commissioner considers to be
10-17 in the best interest of the state.
10-18 (b) Consent to conduct an activity that would disturb or
10-19 remove marl, sand, gravel, shell, or mudshell on or near the
10-20 surface of a state-owned riverbed or the bed of a navigable stream
10-21 in the public domain may be granted only under Chapter 86, Parks
10-22 and Wildlife Code.
10-23 (c) Money received by the land office for the grants of
10-24 easements through and under the state-owned riverbeds and beds of
10-25 navigable streams in the public domain shall be deposited in a
11-1 special fund account in the state treasury to be used for the
11-2 removal or improvement of unauthorized structures on permanent
11-3 school fund land. This fund does not impose a duty or obligation
11-4 on the state to accept ownership of, remove, or improve
11-5 unauthorized structures on permanent school fund land.
11-6 SECTION 10. Section 51.302, Natural Resources Code, is
11-7 amended to read as follows:
11-8 Sec. 51.302. Prohibition and Penalty. (a) No person may
11-9 construct or maintain any facility or structure on land <of the
11-10 facilities listed in Sections 51.291 through 51.293 of this code or
11-11 any other facility on or across any section or part of a section of
11-12 land of the character enumerated in Sections 51.291 through 51.293
11-13 of this code and> owned by the state, nor may any person who has
11-14 not acquired a proper easement, lease, permit, or other instrument
11-15 from the state as required by Chapter 33 or 51 of this code
11-16 <provided in this subchapter> and who owns or possesses a <any of
11-17 the facilities listed in Sections 51.291 through 51.293 of this
11-18 code or any other> facility or structure that is now located on or
11-19 across <any section or part of a section of land of the character
11-20 enumerated in Sections 51.291 through 51.293 of this code and owned
11-21 by the> state land continue in possession of the land unless he
11-22 obtains from the commissioner, the school land board, or the board
11-23 of regents an easement, lease, permit, <a grant of a right-of-way
11-24 easement> or other instrument required by Chapter 33 or 51 of this
11-25 code <easement> for the land on which the facility or structure is
12-1 to be constructed or is located.
12-2 (b) A person who constructs, maintains, owns, or possesses a
12-3 facility or structure on state land without a proper easement or
12-4 lease from the state under Chapter 33 or 51 of this code is liable
12-5 for a penalty of not less than $50 or more than $1,000 a day for
12-6 each day that a violation occurs. The penalty shall be recovered
12-7 by the commissioner under Section 51.3021 of this code or in a
12-8 civil action by the attorney general.
12-9 (c) A person who owns, maintains, or possesses an
12-10 unauthorized <abandoned> facility or structure is, for purposes of
12-11 this section, the person who last owned, maintained, or possessed
12-12 the facility or structure <immediately before abandonment>.
12-13 (d) The commissioner or attorney general may also recover
12-14 from a person who constructs, maintains, owns, or possesses a
12-15 facility or structure on state land without the proper easement the
12-16 costs to the state of removing that facility or structure under
12-17 Section 51.3021 of this code.
12-18 (e) Penalties and costs recovered under this section shall
12-19 be deposited in the special fund established under Sections 52.297
12-20 and 53.155 of this code.
12-21 (f) This section is cumulative of all other applicable
12-22 penalties or enforcement provisions of this code.
12-23 (g) In lieu of seeking administrative penalties or removal
12-24 of a facility or structure under Section 51.3021 of this code, the
12-25 commissioner may elect to accept ownership of the facility or
13-1 structure as a fixture and may exercise the state's rights as owner
13-2 of the facility or structure by filing notice of ownership in the
13-3 real property records of the county in which the facility or
13-4 structure is located. For facilities or structures located on
13-5 coastal public land, notice of ownership shall be filed in the
13-6 county adjacent to the property on which the facility or structure
13-7 is located. A state agency fund or trust fund is not liable for
13-8 the condition of any facility or structure as a result of acquiring
13-9 an interest in the facility or structure under this section.
13-10 SECTION 11. Sections 51.3021(b), (g), and (h), Natural
13-11 Resources Code, are amended to read as follows:
13-12 (b) Before the commissioner may remove a facility or
13-13 structure under this section or impose a penalty under Section
13-14 51.302 of this code, the commissioner must give written notice to a
13-15 person who is constructing, maintains, owns, or possesses the
13-16 facility or structure. The notice must state:
13-17 (1) the specific facility or structure that is without
13-18 proper easement or lease or that threatens public health, safety,
13-19 or welfare;
13-20 (2) that the person who is constructing, maintains,
13-21 owns, or possesses the facility or structure shall remove the
13-22 facility or structure:
13-23 (A) not later than the 30th day after the date
13-24 on which the notice is served, if the facility or structure is on
13-25 state land without a proper lease or easement; or
14-1 (B) within a reasonable time specified by the
14-2 commissioner if the facility or structure is an imminent and
14-3 unreasonable threat to public health, safety, or welfare;
14-4 (3) that failure to remove the facility or structure
14-5 may result in liability for a penalty under Section 51.302(b) of
14-6 this code in an amount specified, removal by the commissioner and
14-7 liability for the costs of removal, attachment of a lien to the
14-8 adjacent littoral property to secure payment of the penalty and
14-9 costs of removal, or any combination of those remedies <both>; and
14-10 (4) that the person who is constructing, maintains,
14-11 owns, or possesses the facility or structure may submit, not later
14-12 than the 30th day after the date on which the notice is served,
14-13 written request for a hearing.
14-14 (g) The commissioner may contract for the removal and
14-15 disposal of a facility or structure under this section and may pay
14-16 the costs of removal from the special fund established under
14-17 Sections 52.297 and 53.155 of this code or from funds appropriated
14-18 by the legislature.
14-19 (h) If the person who is constructing, maintains, owns, or
14-20 possesses the facility or structure does not pay assessed
14-21 penalties, removal costs, and other assessed fees and expenses not
14-22 later than the 60th day after the entry of the final order
14-23 assessing the penalties, costs, fees, and expenses, the
14-24 commissioner may:
14-25 (1) sell salvageable parts or attachments of the
15-1 facility or structure to offset those costs;
15-2 (2) record a lien, in the total amount of the
15-3 penalties, costs, and other fees and expenses assessed, against the
15-4 adjacent littoral property;
15-5 (3) request the attorney general to institute civil
15-6 proceedings to collect the penalties, costs of removal, and other
15-7 fees and expenses remaining unpaid; or
15-8 (4) use any combination of the remedies prescribed by
15-9 this subsection, or other remedies authorized by law, to collect
15-10 the unpaid penalties, costs of removal, and other fees and expenses
15-11 assessed on account of the unauthorized facility or structure on
15-12 state land and its removal by the commissioner.
15-13 (i) <(h)> The decision to remove a facility or structure
15-14 under this section is discretionary with the commissioner. This
15-15 section does not impose a duty on the state to remove a facility or
15-16 structure or to remedy or warn of a hazardous condition on state
15-17 land.
15-18 SECTION 12. Section 51.401, Natural Resources Code, is
15-19 amended by adding Subsection (e) to read as follows:
15-20 (e) Sections 403.094 and 403.095, Government Code, do not
15-21 apply to a fund account created under this section.
15-22 SECTION 13. (a) The change in law made by Section 5.115,
15-23 Water Code, as amended by this Act, applies only to an application
15-24 filed with the Texas Water Commission or its successor on or after
15-25 the effective date of this Act.
16-1 (b) The change in law made by Section 43.0525, Local
16-2 Government Code, as added by this Act, applies only to an
16-3 annexation the proceedings for which are initiated on or after the
16-4 effective date of this Act.
16-5 (c) The change in law made by Section 11.082, Natural
16-6 Resources Code, as added by this Act, applies to an action, as
16-7 defined by that section, that is pending before a state agency or
16-8 political subdivision, as defined by that section, on the effective
16-9 date of this Act.
16-10 (d) The change in law made by Section 33.135, Natural
16-11 Resources Code, as added by this Act, applies only to a transfer
16-12 that occurs on or after the effective date of this Act.
16-13 SECTION 14. The importance of this legislation and the
16-14 crowded condition of the calendars in both houses create an
16-15 emergency and an imperative public necessity that the
16-16 constitutional rule requiring bills to be read on three several
16-17 days in each house be suspended, and this rule is hereby suspended.