By Leedom S.B. No. 646
Substitute the following for S.B. No. 646:
By Earley C.S.S.B. No. 646
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, to funds
1-7 associated with permanent school fund lands, to unauthorized
1-8 structures on state-owned land, and to liens for penalty and
1-9 removal costs.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 5.115, Water Code, is amended to read as
1-12 follows:
1-13 Sec. 5.115. Notice of Application. (a) At the time an
1-14 application for a permit or license under this code is filed with
1-15 the executive director and is administratively complete, the
1-16 commission shall give notice of the application to any person who
1-17 may be affected by the granting of the permit or license.
1-18 (b) At the time an application for any formal action by the
1-19 commission that will affect lands dedicated to the permanent
1-20 school fund is filed with the executive director or the commission
1-21 and is administratively complete, the commission shall give notice
1-22 of the application to the School Land Board. Notice shall be
1-23 delivered by certified mail, return receipt requested, addressed
1-24 to the deputy commissioner of the asset management division of the
2-1 General Land 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 by the
2-24 action or ruling.
2-25 SECTION 2. Subchapter D, Chapter 11, Natural Resources Code,
2-26 is amended by adding Section 11.082 to read as follows:
2-27 Sec. 11.082. NOTICE TO SCHOOL LAND BOARD. (a) A state
3-1 agency or political subdivision may not formally take any action
3-2 that may affect state land dedicated to the permanent school fund
3-3 without first giving notice of the action to the board. Notice of
3-4 the proposed action shall be delivered by certified mail, return
3-5 receipt requested, addressed to the deputy commissioner of the
3-6 asset management division of the General Land Office on or before
3-7 the state agency's or political subdivision's formal initiation of
3-8 the action.
3-9 (b) The notice must:
3-10 (1) describe the proposed action;
3-11 (2) state the location of the permanent school fund
3-12 land to be affected; and
3-13 (3) describe any foreseeable impact or effect of the
3-14 state agency's or political subdivision's action on the permanent
3-15 school fund land.
3-16 (c) An action taken by a state agency or political
3-17 subdivision without the notice required by Subsection (a) of this
3-18 section that affects state land dedicated to the permanent school
3-19 fund is not effective as to permanent school fund land affected by
3-20 the action.
3-21 (d) In this section:
3-22 (1) "Action" means:
3-23 (A) formal adoption of an agency or political
3-24 subdivision policy;
3-25 (B) final adoption of an administrative rule;
3-26 (C) issuance of findings of fact or law;
3-27 (D) issuance of an administrative order in an
4-1 administrative hearing; or
4-2 (E) adoption of a local ordinance or resolution.
4-3 (2) "Board" means the School Land Board.
4-4 (3) "Initiation" means the commencement of the first
4-5 phase of public consideration of a formal policy, rule, or
4-6 ordinance, or a hearing undertaken by a state agency or political
4-7 subdivision that is intended to result in final adoption of a
4-8 formal policy, rule, or ordinance.
4-9 (4) "Political subdivision" means a county, public
4-10 school district, or special-purpose district or authority.
4-11 (5) "State agency" means:
4-12 (A) a department, commission, board, office,
4-13 bureau, council, or other agency in the executive branch of state
4-14 government other than the Texas Department of Transportation and
4-15 the Railroad Commission of Texas; or
4-16 (B) a university system or an institution of
4-17 higher education as defined in Section 61.003, Education Code.
4-18 SECTION 3. Section 32.112, Natural Resources Code, is
4-19 amended to read as follows:
4-20 Sec. 32.112. SALE OF TAX FORECLOSURE PROPERTY. (a) All
4-21 real property or any interest in real property placed in the name
4-22 of the state as a result of a tax foreclosure sale may be sold or
4-23 leased by the board in the same manner as provided for the sale or
4-24 lease of land under Chapter 51 of this code <The board may sell by
4-25 sealed bid all real property placed in the name of the state as a
4-26 result of any tax foreclosure sale. The sealed bid sales shall be
4-27 conducted in the same manner as sealed bid sales for public school
5-1 land>.
5-2 (b) The board may retain from the proceeds of a sale or
5-3 lease conducted under this section the cost of conducting the
5-4 transaction <sale>, including advertising, appraisal, and
5-5 administrative costs. The balance of the proceeds shall be
5-6 deposited in the State Treasury to the credit of the Texas capital
5-7 trust fund.
5-8 SECTION 4. Section 33.015, Natural Resources Code, is
5-9 amended to read as follows:
5-10 Sec. 33.015. SPECIAL ACCOUNT <FUND>. (a) A dedicated
5-11 account <special fund> is created, and money received by the board
5-12 for the grant of permits under this chapter shall be deposited in
5-13 the State Treasury to the credit of this dedicated account <special
5-14 fund>.
5-15 (b) Sections 403.094(h) and 403.095(b), Government Code, do
5-16 not apply to the dedicated account created under this section.
5-17 SECTION 5. Section 33.131, Natural Resources Code, is
5-18 amended to read as follows:
5-19 Sec. 33.131. STRUCTURES AS PROPERTY OF THE STATE. A
5-20 structure presently existing or to be constructed in the future for
5-21 which a permit is required under Section 33.119 of this code
5-22 <subchapter> is the property of the state. Any construction,
5-23 maintenance, or use of the structure other than as provided in this
5-24 subchapter is declared to be a nuisance per se and is expressly
5-25 prohibited.
5-26 SECTION 6. Subchapter D, Chapter 33, Natural Resources Code,
5-27 is amended by adding Section 33.135 to read as follows:
6-1 Sec. 33.135. NOTICE TO PURCHASER OR GRANTEE OF COASTAL AREA
6-2 PROPERTY. (a) A person who sells, transfers, or conveys an
6-3 interest other than a mineral, leasehold, or security interest in
6-4 real property adjoining and abutting the tidily influenced waters
6-5 of the state must include the following notice as a part of a
6-6 written executory contract for the sale, transfer, or conveyance:
6-7 "NOTICE REGARDING COASTAL AREA PROPERTY
6-8 "(1) The real property described in and subject to
6-9 this contract adjoins and shares a common boundary with the tidily
6-10 influenced submerged lands of the state. The boundary is subject
6-11 to change and can be determined accurately only by a survey on the
6-12 ground made by a licensed state land surveyor in accordance with
6-13 the original grant from the sovereign. The owner of the property
6-14 described in this contract may gain or lose portions of the tract
6-15 because of changes in the boundary.
6-16 "(2) The seller, transferor, or grantor has no
6-17 knowledge of any prior fill as it relates to the property described
6-18 in and subject to this contract.
6-19 "(3) State law prohibits the use, encumbrance,
6-20 construction, or placing of any structure in, on, or over
6-21 state-owned submerged lands below the applicable tide line, without
6-22 proper permission.
6-23 "(4) The purchaser or grantee is hereby advised to
6-24 seek the advice of an attorney or other qualified person as to the
6-25 legal nature and effect of the facts set forth in this notice on
6-26 the property described in and subject to this contract.
6-27 Information regarding the location of the applicable tide line as
7-1 to the property described in and subject to this contract may be
7-2 obtained from the surveying division of the General Land Office in
7-3 Austin."
7-4 (b) If property described under Subsection (a) of this
7-5 section is sold, transferred, or conveyed without an executory
7-6 contract for conveyance, a written statement containing the notice
7-7 prescribed by that subsection must be delivered to the grantee for
7-8 execution and acknowledgment of receipt before the conveyance is
7-9 recorded.
7-10 (c) Failure to include the prescribed notice in the written
7-11 executory contract or to deliver a written statement of the notice
7-12 for execution and acknowledgement by the grantee in the absence of
7-13 a written executory contract:
7-14 (1) constitutes a legal right in the purchaser to
7-15 terminate the contract or to renounce a sale, transfer, or
7-16 conveyance;
7-17 (2) requires that any consideration, down payment, or
7-18 deposit paid by the grantee be returned to the grantee, together
7-19 with a cancellation of any promissory note or security instrument
7-20 given in consideration for the sale, conveyance, or transfer; and
7-21 (3) constitutes a deceptive act under Section 17.46,
7-22 Business & Commerce Code.
7-23 (d) This section or the action of any party subject to this
7-24 section does not diminish or modify the beach access and use rights
7-25 of the public as acquired by statute or under common law.
7-26 SECTION 7. Section 42.903, Local Government Code, is amended
7-27 by adding subsection (f) to read as follows:
8-1 (f) If a majority of a tract of land is located in the
8-2 extraterritorial jurisdiction of a municipality that has adopted an
8-3 ordinance or resolution under subsection (b) the property owner may
8-4 petition the municipality to include the entire tract within its
8-5 extraterritorial jurisdiction. Upon presentation of the petition,
8-6 the governing body may adopt an ordinance or resolution to include
8-7 the tract within its extraterritorial jurisdiction. The property
8-8 owner shall give notice of the petition to the School Land Board if
8-9 any portion of the tract is dedicated to the permanent school fund.
8-10 SECTION 8. Section 51.052, Natural Resources Code, is
8-11 amended by amending Subsections (e) and (f) and adding Subsection
8-12 (i) to read as follows:
8-13 (e) The owner of land that surrounds land in a tract of 700
8-14 <320> acres or less shall have a preference right to purchase the
8-15 tract before the land is made available for sale to any other
8-16 person, provided the person having the preference right pays not
8-17 less than the market value for the land as determined by the board.
8-18 (f) If the surrounding land is owned by more than one
8-19 person, the owners of land with a common boundary with a tract of
8-20 700 <320> acres or less that is for sale shall have a preference
8-21 right to purchase the tract before it is made available to any
8-22 other person, provided the person with the preference right pays
8-23 not less than the market value of the land as determined by the
8-24 board and the board finds use of the preference to be in the best
8-25 interest of the state. The board shall adopt rules to implement
8-26 this preference right.
8-27 (i) If no bid meeting minimum requirements is received for a
9-1 tract of land offered at a sealed bid sale under Subchapter D of
9-2 Chapter 32 of this code, the asset management division of the land
9-3 office may solicit proposals or negotiate a sale, exchange, or
9-4 lease of the property to any person. The sale price may not be
9-5 less than the appraised value of the land as determined by the
9-6 asset management division of the land office. The board must
9-7 approve any negotiated sale, exchange, or lease of any land under
9-8 this section.
9-9 SECTION 9. Section 51.291, Natural Resources Code, is
9-10 amended to read as follows:
9-11 Sec. 51.291. GRANTS OF EASEMENTS. (a) Except as provided by
9-12 Subsection (b) of this section, the <The> commissioner may execute
9-13 grants of easements for rights-of-way across, through, and under
9-14 unsold public school land, the portion of the Gulf of Mexico within
9-15 the jurisdiction of the state, the state-owned riverbeds and beds
9-16 of navigable streams in the public domain, and all islands,
9-17 saltwater lakes, bays, inlets, marshes, and reefs owned by the
9-18 state within tidewater limits for:
9-19 (1) telephone, telegraph, electric transmission, and
9-20 powerlines;
9-21 (2) oil pipelines, including pipelines connecting the
9-22 onshore storage facilities with the offshore facilities of a
9-23 deepwater port, as defined by the federal Deepwater Port Act of
9-24 1974 (33 U.S.C.A. Section 1501 et seq.), gas pipelines, sulphur
9-25 pipelines, and other electric lines and pipelines of any nature;
9-26 (3) irrigation canals, laterals, and water pipelines;
9-27 (4) roads; and
10-1 (5) any other purpose the commissioner considers to be
10-2 in the best interest of the state.
10-3 (b) Consent to conduct an activity that would disturb or
10-4 remove marl, sand, gravel, shell, or mudshell on or near the
10-5 surface of a state-owned riverbed or the bed of a navigable stream
10-6 in the public domain may be granted only under Chapter 86, Parks
10-7 and Wildlife Code.
10-8 (c) Money received by the land office for the grants of
10-9 easements through and under the state-owned riverbeds and beds of
10-10 navigable streams in the public domain shall be deposited in a
10-11 special fund account in the state treasury to be used for the
10-12 removal or improvement of unauthorized structures on permanent
10-13 school fund land. This fund does not impose a duty or obligation
10-14 on the state to accept ownership of, remove, or improve
10-15 unauthorized structures on permanent school fund land.
10-16 SECTION 10. Section 51.302, Natural Resources Code, is
10-17 amended to read as follows:
10-18 Sec. 51.302. PROHIBITION AND PENALTY. (a) No person may
10-19 construct or maintain any facility or structure on land <of the
10-20 facilities listed in Sections 51.291 through 51.293 of this code or
10-21 any other facility on or across any section or part of section of
10-22 land of the character enumerated in Sections 51.291 through 51.293
10-23 of this code and> owned by the state, nor may any person who has
10-24 not acquired a proper easement, lease, permit, or other instrument
10-25 from the state as required by this chapter or Chapter 33 of this
10-26 code <provided in this subchapter> and who owns or possesses a <any
10-27 of the facilities listed in Sections 51.291 through 51.293 of this
11-1 code or any other> facility or structure that is now located on or
11-2 across <any section or part of a section of plan of the character
11-3 enumerated in Sections 51.291 through 51.293 of this code and owned
11-4 by the> state land continue in possession of the land unless he
11-5 obtains from the commissioner, the board, or the board of regents
11-6 an easement, lease, permit, <a grant of a right of way easement> or
11-7 other instrument required by this chapter or Chapter 33 of this
11-8 code <easement> for the land on which the facility or structure is
11-9 to be constructed or is located.
11-10 (b) A person who constructs, maintains, owns, or possesses a
11-11 facility or structure on state land without a proper easement or
11-12 lease from the state under this chapter or under Chapter 33 <or 51>
11-13 of this code is liable for a penalty of not less than $50 or more
11-14 than $1,000 a day for each day that a violation occurs. The
11-15 penalty shall be recovered by the commissioner under Section
11-16 51.3021 of this code or in a civil action by the attorney general.
11-17 (c) A person who owns, maintains, or possesses an
11-18 unauthorized <abandoned> facility or structure is, for purposes of
11-19 this section, the person who last owned, maintained, or possessed
11-20 the facility or structure <immediately before abandonment>.
11-21 (d) The commissioner or attorney general may also recover
11-22 from a person who constructs, maintains, owns, or possesses a
11-23 facility or structure on state land without the proper easement the
11-24 costs to the state of removing that facility or structure under
11-25 Section 51.3021 of this code.
11-26 (e) Penalties and costs recovered under this section shall
11-27 be deposited in the special fund established under Sections 52.297
12-1 and 53.155 of this code.
12-2 (f) This section is cumulative of all other applicable
12-3 penalties or enforcement provisions of this code.
12-4 (g) In lieu of seeking administrative penalties or removal
12-5 of a facility or structure under Section 51.3021 of this code, the
12-6 commissioner may elect to accept ownership of the facility or
12-7 structure as a fixture and may exercise the state's rights as owner
12-8 of the facility or structure by filing notice of ownership in the
12-9 real property records of the county in which the facility or
12-10 structure is located. For facilities or structures located on
12-11 coastal public land, notice of ownership shall be filed in the
12-12 county adjacent to the property on which the facility or structure
12-13 is located. A state agency fund or trust fund is not liable for
12-14 the condition of any facility or structure as a result of acquiring
12-15 an interest in the facility or structure under this section.
12-16 SECTION 11. Subsections (b), (g), and (h), Section 51.3021,
12-17 Natural Resources Code, are amended to read as follows:
12-18 (b) Before the commissioner may remove a facility or
12-19 structure under this section or impose a penalty under Section
12-20 51.302 of this code, the commissioner must give written notice to a
12-21 person who is constructing, maintains, owns, or possesses the
12-22 facility or structure. The notice must state:
12-23 (1) the specific facility or structure that is without
12-24 proper easement or lease or that threatens public health, safety,
12-25 or welfare;
12-26 (2) that the person who is constructing, maintains,
12-27 owns, or possesses the facility or structure shall remove the
13-1 facility or structure:
13-2 (A) not later than the 30th day after the date
13-3 on which the notice is served, if the facility or structure is on
13-4 state land without a proper lease or easement; or
13-5 (B) within a reasonable time specified by the
13-6 commissioner if the facility or structure is an imminent and
13-7 unreasonable threat to public health, safety, or welfare;
13-8 (3) that failure to remove the facility or structure
13-9 may result in liability for a penalty under Section 351.302(b) of
13-10 this code in an amount specified, removal by the commissioner and
13-11 liability for the costs of removal, attachment of a lien to the
13-12 adjacent littoral property to secure payment of the penalty and
13-13 costs of removal, or any combination of those remedies <both>; and
13-14 (4) that the person who is constructing, maintains,
13-15 owns, or possesses the facility or structure may submit, not later
13-16 than the 30th day after the date on which the notice is served,
13-17 written request for a hearing.
13-18 (g) The commissioner may contract for the removal and
13-19 disposal of a facility or structure under this section and may pay
13-20 the costs of removal from the special fund established under
13-21 Sections 52.297 and 53.155 of this code or from funds appropriated
13-22 by the legislature.
13-23 (h) If the person who is constructing, maintains, owns, or
13-24 possesses the facility or structure does not pay assessed
13-25 penalties, removal costs, and other assessed fees and expenses not
13-26 later than the 60th day after the entry of the final order
13-27 assessing the penalties, costs, fees, and expenses, the
14-1 commissioner may:
14-2 (1) sell salvageable parts or attachments of the
14-3 facility or structure to offset those costs;
14-4 (2) record a lien, in the total amount of the
14-5 penalties, costs, and other fees and expenses assessed, against the
14-6 adjacent littoral property;
14-7 (3) request the attorney general to institute civil
14-8 proceedings to collect the penalties, costs of removal, and other
14-9 fees and expenses remaining unpaid; or
14-10 (4) use any combination of the remedies prescribed by
14-11 this subsection, or other remedies authorized by law, to collect
14-12 the unpaid penalties, costs of removal, and other fees and expenses
14-13 assessed on account of the unauthorized facility or structure on
14-14 state land and its removal by the commissioner.
14-15 (i) <(h)> The decision to remove a facility or structure
14-16 under this section is discretionary with the commissioner. This
14-17 section does not impose a duty on the state to remove a facility or
14-18 structure or to remedy or warn of a hazardous condition on state
14-19 land.
14-20 SECTION 12. Section 51.401, Natural Resources Code, is
14-21 amended by adding Subsection (e) to read as follows:
14-22 (e) Sections 403.094 and 903.095, Government Code, do not
14-23 apply to a fund account created under this section.
14-24 SECTION 13. (a) The change in law made by Section 5.115,
14-25 Water Code, as amended by this Act, applies only to an application
14-26 filed with the Texas Water Commission or its successor on or after
14-27 the effective date of this Act.
15-1 (b) The change in law made by Section 43.0525, Local
15-2 Government Code, as added by this Act, applies only to an
15-3 annexation the proceedings for which are initiated on or after the
15-4 effective date of this Act. The owner of a tract of land in which
15-5 part but not a majority of the tract is located in the
15-6 extraterritorial jurisdiction of a municipality that has adopted an
15-7 ordinance or resolution under subsection (i) of 42.903(b) of the
15-8 Local Government Code, may petition the municipality to be included
15-9 in its extraterritorial jurisdiction if the tract is landlocked and
15-10 borders on property owned by the permanent school fund. Upon
15-11 presentation of the petition, the governing body may adopt an
15-12 ordinance or resolution to include the tract within its
15-13 extraterritorial jurisdiction. This subsection expires December
15-14 31, 1993.
15-15 (c) The change in law made by Section 11.082, Natural
15-16 Resources Code, as added by this Act, applies to an action, as
15-17 defined by that section, that is pending before a state agency or
15-18 political subdivision, as defined by that section, on the effective
15-19 date of this Act.
15-20 (d) The change in law made by Section 33.135, Natural
15-21 Resources Code, as added by this Act, applies only to a transfer
15-22 that occurs on or after the effective date of this Act.
15-23 SECTION 14. The importance of this legislation and the
15-24 crowded condition of the calendars in both houses create an
15-25 emergency and an imperative public necessity that the
15-26 constitutional rule requiring bills to be read on three several
15-27 days in each house be suspended, and this rule is hereby suspended.