By: Leedom S.B. No. 646
A BILL TO BE ENTITLED
AN ACT
1-1 relating to notice requirements for actions affecting permanent
1-2 school fund land and for transfers of real property abutting
1-3 tidally influenced waters of the state, to the sale of state land
1-4 acquired through tax foreclosure, to the sale or lease of and the
1-5 granting of easements across permanent school fund lands, to funds
1-6 associated with permanent school fund lands, to unauthorized
1-7 structures on state-owned land, and to liens for penalty and
1-8 removal costs.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 5.115, Water Code, is amended to read as
1-11 follows:
1-12 Sec. 5.115. Notice of Application. (a) At the time an
1-13 application for a permit or license under this code is filed with
1-14 the executive director and is administratively complete, the
1-15 commission shall give notice of the application to any person who
1-16 may be affected by the granting of the permit or license.
1-17 (b) At the time an application for any formal action by the
1-18 commission that will affect lands dedicated to the permanent school
1-19 fund is filed with the executive director or the commission and is
1-20 administratively complete, the commission shall give notice of the
1-21 application to the School Land Board. Notice shall be delivered by
1-22 certified mail, return receipt requested, addressed to the deputy
1-23 commissioner of the asset management division of the General Land
2-1 Office.
2-2 (c) The commission shall adopt rules for the notice required
2-3 by this section.
2-4 (d) <(c)> The notice must state:
2-5 (1) the identifying number given the application by
2-6 the commission;
2-7 (2) the type of permit or license sought under the
2-8 application;
2-9 (3) the name and address of the applicant;
2-10 (4) the date on which the application was submitted;
2-11 and
2-12 (5) a brief summary of the information included in the
2-13 permit application.
2-14 (e) The notice to the School Land Board under this section
2-15 shall additionally:
2-16 (1) state the location of the permanent school fund
2-17 land to be affected; and
2-18 (2) describe any foreseeable impact or effect of the
2-19 commission's action on the permanent school fund land.
2-20 (f) A formal action or ruling by the commission on an
2-21 application affecting permanent school fund land that is made
2-22 without the notice required by this section is voidable by the
2-23 School Land Board as to any permanent school fund lands affected by
2-24 the action or ruling.
2-25 SECTION 2. Subchapter D, Chapter 11, Natural Resources Code,
3-1 is amended by adding Section 11.082 to read as follows:
3-2 Sec. 11.082. Notice to School Land Board. (a) A state
3-3 agency or political subdivision may not formally take any action
3-4 that may affect state land dedicated to the permanent school fund
3-5 without first giving notice of the action to the board. Notice of
3-6 the proposed action shall be delivered by certified mail, return
3-7 receipt requested, addressed to the deputy commissioner of the
3-8 asset management division of the General Land Office on or before
3-9 the state agency's or political subdivision's formal initiation of
3-10 the action.
3-11 (b) The notice must:
3-12 (1) describe the proposed action;
3-13 (2) state the location of the permanent school fund
3-14 land to be affected; and
3-15 (3) describe any foreseeable impact or effect of the
3-16 state agency's or political subdivision's action on the permanent
3-17 school fund land.
3-18 (c) An action taken by a state agency or political
3-19 subdivision without the notice required by Subsection (a) of this
3-20 section that affects state land dedicated to the permanent school
3-21 fund is not effective as to permanent school fund land affected by
3-22 the action.
3-23 (d) In this section:
3-24 (1) "Action" means:
3-25 (A) formal adoption of an agency or political
4-1 subdivision policy;
4-2 (B) final adoption of an administrative rule;
4-3 (C) issuance of findings of fact or law;
4-4 (D) issuance of an administrative order in an
4-5 administrative hearing; or
4-6 (E) adoption of a local ordinance or resolution.
4-7 (2) "Board" means the School Land Board.
4-8 (3) "Initiation" means the commencement of the first
4-9 phase of public consideration of a formal policy, rule, or
4-10 ordinance, or a hearing undertaken by a state agency or political
4-11 subdivision that is intended to result in final adoption of a
4-12 formal policy, rule, or ordinance.
4-13 (4) "Political subdivision" means a county, public
4-14 school district, or special-purpose district or authority.
4-15 (5) "State agency" means:
4-16 (A) a department, commission, board, office,
4-17 bureau, council, or other agency in the executive branch of state
4-18 government other than the Texas Department of Transportation and
4-19 the Railroad Commission of Texas; or
4-20 (B) a university system or an institution of
4-21 higher education as defined in Section 61.003, Education Code.
4-22 SECTION 3. Section 32.112, Natural Resources Code, is
4-23 amended to read as follows:
4-24 Sec. 32.112. SALE OF TAX FORECLOSURE PROPERTY. (a) All
4-25 real property or any interest in real property placed in the name
5-1 of the state as a result of a tax foreclosure sale may be sold or
5-2 leased by the board in the same manner as provided for the sale or
5-3 lease of land under Chapter 51 of this code <The board may sell by
5-4 sealed bid all real property placed in the name of the state as a
5-5 result of any tax foreclosure sale. The sealed bid sales shall be
5-6 conducted in the same manner as sealed bid sales for public school
5-7 land>.
5-8 (b) The board may retain from the proceeds of a sale or
5-9 lease conducted under this section the cost of conducting the
5-10 transaction <sale>, including advertising, appraisal, and
5-11 administrative costs. The balance of the proceeds shall be
5-12 deposited in the State Treasury to the credit of the Texas capital
5-13 trust fund.
5-14 SECTION 4. Section 33.015, Natural Resources Code, is
5-15 amended to read as follows:
5-16 Sec. 33.015. SPECIAL ACCOUNT <FUND>. (a) A dedicated
5-17 account <special fund> is created, and money received by the board
5-18 for the grant of permits under this chapter shall be deposited in
5-19 the State Treasury to the credit of this dedicated account <special
5-20 fund>.
5-21 (b) Sections 403.094(h) and 403.095(b), Government Code, do
5-22 not apply to the dedicated account created under this section.
5-23 SECTION 5. Section 33.131, Natural Resources Code, is
5-24 amended to read as follows:
5-25 Sec. 33.131. Structures as Property of the State. A
6-1 structure presently existing or to be constructed in the future for
6-2 which a permit is required under Section 33.119 of this code
6-3 <subchapter> is the property of the state. Any construction,
6-4 maintenance, or use of the structure other than as provided in this
6-5 subchapter is declared to be a nuisance per se and is expressly
6-6 prohibited.
6-7 SECTION 6. Subchapter D, Chapter 33, Natural Resources Code,
6-8 is amended by adding Section 33.135 to read as follows:
6-9 Sec. 33.135. NOTICE TO PURCHASER OR GRANTEE OF COASTAL AREA
6-10 PROPERTY. (a) A person who sells, transfers, or conveys an
6-11 interest other than a mineral, leasehold, or security interest in
6-12 real property adjoining and abutting the tidally influenced waters
6-13 of the state must include the following notice as a part of a
6-14 written executory contract for the sale, transfer, or conveyance:
6-15 "NOTICE REGARDING COASTAL AREA PROPERTY
6-16 "(1) The real property described in and subject to
6-17 this contract adjoins and shares a common boundary with the tidally
6-18 influenced submerged lands of the state. The boundary is subject
6-19 to change and can be determined accurately only by a survey on the
6-20 ground made by a licensed state land surveyor in accordance with
6-21 the original grant from the sovereign. The owner of the property
6-22 described in this contract may gain or lose portions of the tract
6-23 because of changes in the boundary.
6-24 "(2) The seller, transferor, or grantor has no
6-25 knowledge of any prior fill as it relates to the property described
7-1 in and subject to this contract.
7-2 "(3) State law prohibits the use, encumbrance,
7-3 construction, or placing of any structure in, on, or over
7-4 state-owned submerged lands below the applicable tide line, without
7-5 proper permission.
7-6 "(4) The purchaser or grantee is hereby advised to
7-7 seek the advice of an attorney or other qualified person as to the
7-8 legal nature and effect of the facts set forth in this notice on
7-9 the property described in and subject to this contract.
7-10 Information regarding the location of the applicable tide line as
7-11 to the property described in and subject to this contract may be
7-12 obtained from the surveying division of the General Land Office in
7-13 Austin."
7-14 (b) If property described under Subsection (a) of this
7-15 section is sold, transferred, or conveyed without an executory
7-16 contract for conveyance, a written statement containing the notice
7-17 prescribed by that subsection must be delivered to the grantee for
7-18 execution and acknowledgement of receipt before the conveyance is
7-19 recorded.
7-20 (c) Failure to include the prescribed notice in the written
7-21 executory contract or to deliver a written statement of the notice
7-22 for execution and acknowledgement by the grantee in the absence of
7-23 a written executory contract:
7-24 (1) constitutes a legal right in the purchaser to
7-25 terminate the contract or to renounce a sale, transfer, or
8-1 conveyance;
8-2 (2) requires that any consideration, down payment, or
8-3 deposit paid by the grantee be returned to the grantee, together
8-4 with a cancellation of any promissory note or security instrument
8-5 given in consideration for the sale, conveyance, or transfer; and
8-6 (3) constitutes a deceptive act under Section 17.46,
8-7 Business & Commerce Code.
8-8 (d) This section or the action of any party subject to this
8-9 section does not diminish or modify the beach access and use rights
8-10 of the public as acquired by statute or under common law.
8-11 SECTION 7. Section 51.052, Natural Resources Code, is
8-12 amended by amending Subsections (e) and (f) and adding Subsection
8-13 (i) to read as follows:
8-14 (e) The owner of land that surrounds land in a tract of 700
8-15 <320> acres or less shall have a preference right to purchase the
8-16 tract before the land is made available for sale to any other
8-17 person, provided the person having the preference right pays not
8-18 less than the market value for the land as determined by the board.
8-19 (f) If the surrounding land is owned by more than one
8-20 person, the owners of land with a common boundary with a tract of
8-21 700 <320> acres or less that is for sale shall have a preference
8-22 right to purchase the tract before it is made available to any
8-23 other person, provided the person with the preference right pays
8-24 not less than the market value of the land as determined by the
8-25 board and the board finds use of the preference to be in the best
9-1 interest of the state. The board shall adopt rules to implement
9-2 this preference right.
9-3 (i) If no bid meeting minimum requirements is received for a
9-4 tract of land offered at a sealed bid sale under Subchapter D of
9-5 Chapter 32 of this code, the asset management division of the land
9-6 office may solicit proposals or negotiate a sale, exchange, or
9-7 lease of the property to any person. The sale price may not be
9-8 less than the appraised value of the land as determined by the
9-9 asset management division of the land office. The board must
9-10 approve any negotiated sale, exchange, or lease of any land under
9-11 this section.
9-12 SECTION 8. Section 51.291, Natural Resources Code, is
9-13 amended to read as follows:
9-14 Sec. 51.291. GRANTS OF EASEMENTS. (a) Except as provided
9-15 by Subsection (b) of this section, the <The> commissioner may
9-16 execute grants of easements for rights-of-way across, through, and
9-17 under unsold public school land, the portion of the Gulf of Mexico
9-18 within the jurisdiction of the state, the state-owned riverbeds and
9-19 beds of navigable streams in the public domain, and all islands,
9-20 saltwater lakes, bays, inlets, marshes, and reefs owned by the
9-21 state within tidewater limits for:
9-22 (1) telephone, telegraph, electric transmission, and
9-23 powerlines;
9-24 (2) oil pipelines, including pipelines connecting the
9-25 onshore storage facilities with the offshore facilities of a
10-1 deepwater port, as defined by the federal Deepwater Port Act of
10-2 1974 (33 U.S.C.A. Section 1501 et seq.), gas pipelines, sulphur
10-3 pipelines, and other electric lines and pipelines of any nature;
10-4 (3) irrigation canals, laterals, and water pipelines;
10-5 (4) roads; and
10-6 (5) any other purpose the commissioner considers to be
10-7 in the best interest of the state.
10-8 (b) Consent to conduct an activity that would disturb or
10-9 remove marl, sand, gravel, shell, or mudshell on or near the
10-10 surface of a state-owned riverbed or the bed of a navigable stream
10-11 in the public domain may be granted only under Chapter 86, Parks
10-12 and Wildlife Code.
10-13 (c) Money received by the land office for the grants of
10-14 easements through and under the state-owned riverbeds and beds of
10-15 navigable streams in the public domain shall be deposited in a
10-16 special fund account in the state treasury to be used for the
10-17 removal or improvement of unauthorized structures on permanent
10-18 school fund land. This fund does not impose a duty or obligation
10-19 on the state to accept ownership of, remove, or improve
10-20 unauthorized structures on permanent school fund land.
10-21 SECTION 9. Section 51.302, Natural Resources Code, is
10-22 amended to read as follows:
10-23 Sec. 51.302. Prohibition and Penalty. (a) No person may
10-24 construct or maintain any facility or structure on land <of the
10-25 facilities listed in Sections 51.291 through 51.293 of this code or
11-1 any other facility on or across any section or part of a section of
11-2 land of the character enumerated in Sections 51.291 through 51.293
11-3 of this code and> owned by the state, nor may any person who has
11-4 not acquired a proper easement, lease, permit, or other instrument
11-5 from the state as required by this chapter or Chapter 33 of this
11-6 code <provided in this subchapter> and who owns or possesses a <any
11-7 of the facilities listed in Sections 51.291 through 51.293 of this
11-8 code or any other> facility or structure that is now located on or
11-9 across <any section or part of a section of land of the character
11-10 enumerated in Sections 51.291 through 51.293 of this code and owned
11-11 by the> state land continue in possession of the land unless he
11-12 obtains from the commissioner, the board, or the board of regents
11-13 an easement, lease, permit, <a grant of a right-of-way easement> or
11-14 other instrument required by this chapter or Chapter 33 of this
11-15 code <easement> for the land on which the facility or structure is
11-16 to be constructed or is located.
11-17 (b) A person who constructs, maintains, owns, or possesses a
11-18 facility or structure on state land without a proper easement or
11-19 lease from the state under this chapter or under Chapter 33 <or 51>
11-20 of this code is liable for a penalty of not less than $50 or more
11-21 than $1,000 a day for each day that a violation occurs. The
11-22 penalty shall be recovered by the commissioner under Section
11-23 51.3021 of this code or in a civil action by the attorney general.
11-24 (c) A person who owns, maintains, or possesses an
11-25 unauthorized <abandoned> facility or structure is, for purposes of
12-1 this section, the person who last owned, maintained, or possessed
12-2 the facility or structure <immediately before abandonment>.
12-3 (d) The commissioner or attorney general may also recover
12-4 from a person who constructs, maintains, owns, or possesses a
12-5 facility or structure on state land without the proper easement the
12-6 costs to the state of removing that facility or structure under
12-7 Section 51.3021 of this code.
12-8 (e) Penalties and costs recovered under this section shall
12-9 be deposited in the special fund established under Sections 52.297
12-10 and 53.155 of this code.
12-11 (f) This section is cumulative of all other applicable
12-12 penalties or enforcement provisions of this code.
12-13 (g) In lieu of seeking administrative penalties or removal
12-14 of a facility or structure under Section 51.3021 of this code, the
12-15 commissioner may elect to accept ownership of the facility or
12-16 structure as a fixture and may exercise the state's rights as owner
12-17 of the facility or structure by filing notice of ownership in the
12-18 real property records of the county in which the facility or
12-19 structure is located. For facilities or structures located on
12-20 coastal public land, notice of ownership shall be filed in the
12-21 county adjacent to the property on which the facility or structure
12-22 is located. A state agency fund or trust fund is not liable for
12-23 the condition of any facility or structure as a result of acquiring
12-24 an interest in the facility or structure under this section.
12-25 SECTION 10. Subsections (b), (g), and (h), Section 51.3021,
13-1 Natural Resources Code, are amended to read as follows:
13-2 (b) Before the commissioner may remove a facility or
13-3 structure under this section or impose a penalty under Section
13-4 51.302 of this code, the commissioner must give written notice to a
13-5 person who is constructing, maintains, owns, or possesses the
13-6 facility or structure. The notice must state:
13-7 (1) the specific facility or structure that is without
13-8 proper easement or lease or that threatens public health, safety,
13-9 or welfare;
13-10 (2) that the person who is constructing, maintains,
13-11 owns, or possesses the facility or structure shall remove the
13-12 facility or structure:
13-13 (A) not later than the 30th day after the date
13-14 on which the notice is served, if the facility or structure is on
13-15 state land without a proper lease or easement; or
13-16 (B) within a reasonable time specified by the
13-17 commissioner if the facility or structure is an imminent and
13-18 unreasonable threat to public health, safety, or welfare;
13-19 (3) that failure to remove the facility or structure
13-20 may result in liability for a penalty under Section 51.302(b) of
13-21 this code in an amount specified, removal by the commissioner and
13-22 liability for the costs of removal, attachment of a lien to the
13-23 adjacent littoral property to secure payment of the penalty and
13-24 costs of removal, or any combination of those remedies <both>; and
13-25 (4) that the person who is constructing, maintains,
14-1 owns, or possesses the facility or structure may submit, not later
14-2 than the 30th day after the date on which the notice is served,
14-3 written request for a hearing.
14-4 (g) The commissioner may contract for the removal and
14-5 disposal of a facility or structure under this section and may pay
14-6 the costs of removal from the special fund established under
14-7 Sections 52.297 and 53.155 of this code or from funds appropriated
14-8 by the legislature.
14-9 (h) If the person who is constructing, maintains, owns, or
14-10 possesses the facility or structure does not pay assessed
14-11 penalties, removal costs, and other assessed fees and expenses not
14-12 later than the 60th day after the entry of the final order
14-13 assessing the penalties, costs, fees, and expenses, the
14-14 commissioner may:
14-15 (1) sell salvageable parts or attachments of the
14-16 facility or structure to offset those costs;
14-17 (2) record a lien, in the total amount of the
14-18 penalties, costs, and other fees and expenses assessed, against the
14-19 adjacent littoral property;
14-20 (3) request the attorney general to institute civil
14-21 proceedings to collect the penalties, costs of removal, and other
14-22 fees and expenses remaining unpaid; or
14-23 (4) use any combination of the remedies prescribed by
14-24 this subsection, or other remedies authorized by law, to collect
14-25 the unpaid penalties, costs of removal, and other fees and expenses
15-1 assessed on account of the unauthorized facility or structure on
15-2 state land and its removal by the commissioner.
15-3 (i) <(h)> The decision to remove a facility or structure
15-4 under this section is discretionary with the commissioner. This
15-5 section does not impose a duty on the state to remove a facility or
15-6 structure or to remedy or warn of a hazardous condition on state
15-7 land.
15-8 SECTION 11. Section 51.401, Natural Resources Code, is
15-9 amended by adding Subsection (e) to read as follows:
15-10 (e) Sections 403.094 and 403.095, Government Code, do not
15-11 apply to a fund account created under this section.
15-12 SECTION 12. (a) The change in law made by Section 5.115,
15-13 Water Code, as amended by this Act, applies only to an application
15-14 filed with the Texas Water Commission or its successor on or after
15-15 the effective date of this Act.
15-16 (b) The change in law made by Section 43.0525, Local
15-17 Government Code, as added by this Act, applies only to an
15-18 annexation the proceedings for which are initiated on or after the
15-19 effective date of this Act.
15-20 (c) The change in law made by Section 11.082, Natural
15-21 Resources Code, as added by this Act, applies to an action, as
15-22 defined by that section, that is pending before a state agency or
15-23 political subdivision, as defined by that section, on the effective
15-24 date of this Act.
15-25 (d) The change in law made by Section 33.135, Natural
16-1 Resources Code, as added by this Act, applies only to a transfer
16-2 that occurs on or after the effective date of this Act.
16-3 SECTION 13. The importance of this legislation and the
16-4 crowded condition of the calendars in both houses create an
16-5 emergency and an imperative public necessity that the
16-6 constitutional rule requiring bills to be read on three several
16-7 days in each house be suspended, and this rule is hereby suspended.