1-1 By: Leedom S.B. No. 646
1-2 (In the Senate - Filed March 5, 1993; March 8, 1993, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 26, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; April 26, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Harris of Dallas x
1-10 Rosson x
1-11 Carriker x
1-12 Henderson x
1-13 Leedom x
1-14 Lucio x
1-15 Luna x
1-16 Nelson x
1-17 Patterson x
1-18 Shelley x
1-19 Sibley x
1-20 West x
1-21 Whitmire x
1-22 COMMITTEE SUBSTITUTE FOR S.B. No. 646 By: Leedom
1-23 A BILL TO BE ENTITLED
1-24 AN ACT
1-25 relating to notice requirements for actions affecting permanent
1-26 school fund land and for transfers of real property abutting
1-27 tidally influenced waters of the state, to the sale of state land
1-28 acquired through tax foreclosure, to the sale or lease of and the
1-29 granting of easements across permanent school fund lands, to funds
1-30 associated with permanent school fund lands, to unauthorized
1-31 structures on state-owned land, and to liens for penalty and
1-32 removal costs.
1-33 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-34 SECTION 1. Section 5.115, Water Code, is amended to read as
1-35 follows:
1-36 Sec. 5.115. Notice of Application. (a) At the time an
1-37 application for a permit or license under this code is filed with
1-38 the executive director and is administratively complete, the
1-39 commission shall give notice of the application to any person who
1-40 may be affected by the granting of the permit or license.
1-41 (b) At the time an application for any formal action by the
1-42 commission that will affect lands dedicated to the permanent school
1-43 fund is filed with the executive director or the commission and is
1-44 administratively complete, the commission shall give notice of the
1-45 application to the School Land Board. Notice shall be delivered by
1-46 certified mail, return receipt requested, addressed to the deputy
1-47 commissioner of the asset management division of the General Land
1-48 Office.
1-49 (c) The commission shall adopt rules for the notice required
1-50 by this section.
1-51 (d) <(c)> The notice must state:
1-52 (1) the identifying number given the application by
1-53 the commission;
1-54 (2) the type of permit or license sought under the
1-55 application;
1-56 (3) the name and address of the applicant;
1-57 (4) the date on which the application was submitted;
1-58 and
1-59 (5) a brief summary of the information included in the
1-60 permit application.
1-61 (e) The notice to the School Land Board under this section
1-62 shall additionally:
1-63 (1) state the location of the permanent school fund
1-64 land to be affected; and
1-65 (2) describe any foreseeable impact or effect of the
1-66 commission's action on the permanent school fund land.
1-67 (f) A formal action or ruling by the commission on an
1-68 application affecting permanent school fund land that is made
2-1 without the notice required by this section is voidable by the
2-2 School Land Board as to any permanent school fund lands affected by
2-3 the action or ruling.
2-4 SECTION 2. Subchapter C, Chapter 43, Local Government Code,
2-5 is amended by adding Section 43.0525 to read as follows:
2-6 Sec. 43.0525. NOTICE OF ANNEXATION OF PERMANENT SCHOOL FUND
2-7 LANDS. Notice of the intent of a municipality to annex any state
2-8 land belonging to the permanent school fund shall be given to the
2-9 School Land Board by certified mail, return receipt requested,
2-10 addressed to the deputy commissioner of the asset management
2-11 division of the General Land Office at least 30 days before the
2-12 date of an annexation election or the issuance of an annexation
2-13 ordinance relating to that land. An annexation that is made
2-14 without the notice required by this subsection is not effective as
2-15 to the permanent school fund land sought to be annexed.
2-16 SECTION 3. Subchapter D, Chapter 11, Natural Resources Code,
2-17 is amended by adding Section 11.082 to read as follows:
2-18 Sec. 11.082. Notice to School Land Board. (a) A state
2-19 agency or political subdivision may not formally take any action
2-20 that may affect state land dedicated to the permanent school fund
2-21 without first giving notice of the action to the board. Notice of
2-22 the proposed action shall be delivered by certified mail, return
2-23 receipt requested, addressed to the deputy commissioner of the
2-24 asset management division of the General Land Office on or before
2-25 the state agency's or political subdivision's formal initiation of
2-26 the action.
2-27 (b) The notice must:
2-28 (1) describe the proposed action;
2-29 (2) state the location of the permanent school fund
2-30 land to be affected; and
2-31 (3) describe any foreseeable impact or effect of the
2-32 state agency's or political subdivision's action on the permanent
2-33 school fund land.
2-34 (c) An action taken by a state agency or political
2-35 subdivision without the notice required by Subsection (a) of this
2-36 section that affects state land dedicated to the permanent school
2-37 fund is not effective as to permanent school fund land affected by
2-38 the action.
2-39 (d) In this section:
2-40 (1) "Action" means:
2-41 (A) formal adoption of an agency or political
2-42 subdivision policy;
2-43 (B) final adoption of an administrative rule;
2-44 (C) issuance of findings of fact or law;
2-45 (D) issuance of an administrative order in an
2-46 administrative hearing; or
2-47 (E) adoption of a local ordinance or resolution.
2-48 (2) "Board" means the School Land Board.
2-49 (3) "Initiation" means the commencement of the first
2-50 phase of public consideration of a formal policy, rule, or
2-51 ordinance, or a hearing undertaken by a state agency or political
2-52 subdivision that is intended to result in final adoption of a
2-53 formal policy, rule, or ordinance.
2-54 (4) "Political subdivision" means a county,
2-55 municipality, public school district, or special-purpose district
2-56 or authority.
2-57 (5) "State agency" means:
2-58 (A) a department, commission, board, office,
2-59 bureau, council, or other agency in the executive branch of state
2-60 government other than the Texas Department of Transportation and
2-61 the Railroad Commission of Texas; or
2-62 (B) a university system or an institution of
2-63 higher education as defined in Section 61.003, Education Code.
2-64 SECTION 4. Section 32.112, Natural Resources Code, is
2-65 amended to read as follows:
2-66 Sec. 32.112. SALE OF TAX FORECLOSURE PROPERTY. (a) All
2-67 real property or any interest in real property placed in the name
2-68 of the state as a result of a tax foreclosure sale may be sold or
2-69 leased by the board in the same manner as provided for the sale or
2-70 lease of land under Chapter 51 of this code <The board may sell by
3-1 sealed bid all real property placed in the name of the state as a
3-2 result of any tax foreclosure sale. The sealed bid sales shall be
3-3 conducted in the same manner as sealed bid sales for public school
3-4 land>.
3-5 (b) The board may retain from the proceeds of a sale or
3-6 lease conducted under this section the cost of conducting the
3-7 transaction <sale>, including advertising, appraisal, and
3-8 administrative costs. The balance of the proceeds shall be
3-9 deposited in the State Treasury to the credit of the Texas capital
3-10 trust fund.
3-11 SECTION 5. Section 33.015, Natural Resources Code, is
3-12 amended to read as follows:
3-13 Sec. 33.015. SPECIAL FUND. (a) A special fund is created,
3-14 and money received by the board for the grant of permits under this
3-15 chapter shall be deposited in the State Treasury to the credit of
3-16 this special fund.
3-17 (b) Sections 403.094 and 403.095, Government Code, do not
3-18 apply to the fund created under this section.
3-19 SECTION 6. Section 33.131, Natural Resources Code, is
3-20 amended to read as follows:
3-21 Sec. 33.131. Structures as Property of the State. A
3-22 structure presently existing or to be constructed in the future for
3-23 which a permit is required under Section 33.119 of this code
3-24 <subchapter> is the property of the state. Any construction,
3-25 maintenance, or use of the structure other than as provided in this
3-26 subchapter is declared to be a nuisance per se and is expressly
3-27 prohibited.
3-28 SECTION 7. Subchapter D, Chapter 33, Natural Resources Code,
3-29 is amended by adding Section 33.135 to read as follows:
3-30 Sec. 33.135. NOTICE TO PURCHASER OR GRANTEE OF COASTAL AREA
3-31 PROPERTY. (a) A person who sells, transfers, or conveys an
3-32 interest other than a mineral, leasehold, or security interest in
3-33 real property adjoining and abutting the tidally influenced waters
3-34 of the state must include the following notice as a part of a
3-35 written executory contract for the sale, transfer, or conveyance:
3-36 "NOTICE REGARDING COASTAL AREA PROPERTY
3-37 "(1) The real property described in and subject to
3-38 this contract adjoins and shares a common boundary with the tidally
3-39 influenced submerged lands of the state. The boundary is subject
3-40 to change and can be determined accurately only by a survey on the
3-41 ground made by a licensed state land surveyor in accordance with
3-42 the original grant from the sovereign. The owner of the property
3-43 described in this contract may gain or lose portions of the tract
3-44 because of changes in the boundary.
3-45 "(2) The seller, transferor, or grantor has no
3-46 knowledge of any prior fill as it relates to the property described
3-47 in and subject to this contract.
3-48 "(3) State law prohibits the use, encumbrance,
3-49 construction, or placing of any structure in, on, or over
3-50 state-owned submerged lands below the applicable tide line, without
3-51 proper permission.
3-52 "(4) The purchaser or grantee is hereby advised to
3-53 seek the advice of an attorney or other qualified person as to the
3-54 legal nature and effect of the facts set forth in this notice on
3-55 the property described in and subject to this contract.
3-56 Information regarding the location of the applicable tide line as
3-57 to the property described in and subject to this contract may be
3-58 obtained from the surveying division of the General Land Office in
3-59 Austin."
3-60 (b) If property described under Subsection (a) of this
3-61 section is sold, transferred, or conveyed without an executory
3-62 contract for conveyance, a written statement containing the notice
3-63 prescribed by that subsection must be delivered to the grantee for
3-64 execution and acknowledgement of receipt before the conveyance is
3-65 recorded.
3-66 (c) Failure to include the prescribed notice in the written
3-67 executory contract or to deliver a written statement of the notice
3-68 for execution and acknowledgement by the grantee in the absence of
3-69 a written executory contract:
3-70 (1) constitutes a legal right in the purchaser to
4-1 terminate the contract or to renounce a sale, transfer, or
4-2 conveyance;
4-3 (2) requires that any consideration, down payment, or
4-4 deposit paid by the grantee be returned to the grantee, together
4-5 with a cancellation of any promissory note or security instrument
4-6 given in consideration for the sale, conveyance, or transfer; and
4-7 (3) constitutes a deceptive act under Section 17.46,
4-8 Business & Commerce Code.
4-9 (d) This section or the action of any party subject to this
4-10 section does not diminish or modify the beach access and use rights
4-11 of the public as acquired by statute or under common law.
4-12 SECTION 8. Section 51.052, Natural Resources Code, is
4-13 amended by amending Subsections (e) and (f) and adding Subsection
4-14 (i) to read as follows:
4-15 (e) The owner of land that surrounds land in a tract of 700
4-16 <320> acres or less shall have a preference right to purchase the
4-17 tract before the land is made available for sale to any other
4-18 person, provided the person having the preference right pays not
4-19 less than the market value for the land as determined by the board.
4-20 (f) If the surrounding land is owned by more than one
4-21 person, the owners of land with a common boundary with a tract of
4-22 700 <320> acres or less that is for sale shall have a preference
4-23 right to purchase the tract before it is made available to any
4-24 other person, provided the person with the preference right pays
4-25 not less than the market value of the land as determined by the
4-26 board and the board finds use of the preference to be in the best
4-27 interest of the state. The board shall adopt rules to implement
4-28 this preference right.
4-29 (i) If no bid meeting minimum requirements is received for a
4-30 tract of land offered at a sealed bid sale under Subchapter D of
4-31 Chapter 32 of this code, the asset management division of the land
4-32 office may solicit proposals or negotiate a sale, exchange, or
4-33 lease of the property to any person. The sale price may not be
4-34 less than the appraised value of the land as determined by the
4-35 asset management division of the land office. The board must
4-36 approve any negotiated sale, exchange, or lease of any land under
4-37 this section.
4-38 SECTION 9. Section 51.291, Natural Resources Code, is
4-39 amended to read as follows:
4-40 Sec. 51.291. GRANTS OF EASEMENTS. (a) Except as provided
4-41 by Subsection (b) of this section, the <The> commissioner may
4-42 execute grants of easements for rights-of-way across, through, and
4-43 under unsold public school land, the portion of the Gulf of Mexico
4-44 within the jurisdiction of the state, the state-owned riverbeds and
4-45 beds of navigable streams in the public domain, and all islands,
4-46 saltwater lakes, bays, inlets, marshes, and reefs owned by the
4-47 state within tidewater limits for:
4-48 (1) telephone, telegraph, electric transmission, and
4-49 powerlines;
4-50 (2) oil pipelines, including pipelines connecting the
4-51 onshore storage facilities with the offshore facilities of a
4-52 deepwater port, as defined by the federal Deepwater Port Act of
4-53 1974 (33 U.S.C.A. Section 1501 et seq.), gas pipelines, sulphur
4-54 pipelines, and other electric lines and pipelines of any nature;
4-55 (3) irrigation canals, laterals, and water pipelines;
4-56 (4) roads; and
4-57 (5) any other purpose the commissioner considers to be
4-58 in the best interest of the state.
4-59 (b) Consent to conduct an activity that would disturb or
4-60 remove marl, sand, gravel, shell, or mudshell on or near the
4-61 surface of a state-owned riverbed or the bed of a navigable stream
4-62 in the public domain may be granted only under Chapter 86, Parks
4-63 and Wildlife Code.
4-64 (c) Money received by the land office for the grants of
4-65 easements through and under the state-owned riverbeds and beds of
4-66 navigable streams in the public domain shall be deposited in a
4-67 special fund account in the state treasury to be used for the
4-68 removal or improvement of unauthorized structures on permanent
4-69 school fund land. This fund does not impose a duty or obligation
4-70 on the state to accept ownership of, remove, or improve
5-1 unauthorized structures on permanent school fund land.
5-2 SECTION 10. Section 51.302, Natural Resources Code, is
5-3 amended to read as follows:
5-4 Sec. 51.302. Prohibition and Penalty. (a) No person may
5-5 construct or maintain any facility or structure on land <of the
5-6 facilities listed in Sections 51.291 through 51.293 of this code or
5-7 any other facility on or across any section or part of a section of
5-8 land of the character enumerated in Sections 51.291 through 51.293
5-9 of this code and> owned by the state, nor may any person who has
5-10 not acquired a proper easement, lease, permit, or other instrument
5-11 from the state as required by this chapter or Chapter 33 of this
5-12 code <provided in this subchapter> and who owns or possesses a <any
5-13 of the facilities listed in Sections 51.291 through 51.293 of this
5-14 code or any other> facility or structure that is now located on or
5-15 across <any section or part of a section of land of the character
5-16 enumerated in Sections 51.291 through 51.293 of this code and owned
5-17 by the> state land continue in possession of the land unless he
5-18 obtains from the commissioner, the board, or the board of regents
5-19 an easement, lease, permit, <a grant of a right-of-way easement> or
5-20 other instrument required by this chapter or Chapter 33 of this
5-21 code <easement> for the land on which the facility or structure is
5-22 to be constructed or is located.
5-23 (b) A person who constructs, maintains, owns, or possesses a
5-24 facility or structure on state land without a proper easement or
5-25 lease from the state under this chapter or under Chapter 33 <or 51>
5-26 of this code is liable for a penalty of not less than $50 or more
5-27 than $1,000 a day for each day that a violation occurs. The
5-28 penalty shall be recovered by the commissioner under Section
5-29 51.3021 of this code or in a civil action by the attorney general.
5-30 (c) A person who owns, maintains, or possesses an
5-31 unauthorized <abandoned> facility or structure is, for purposes of
5-32 this section, the person who last owned, maintained, or possessed
5-33 the facility or structure <immediately before abandonment>.
5-34 (d) The commissioner or attorney general may also recover
5-35 from a person who constructs, maintains, owns, or possesses a
5-36 facility or structure on state land without the proper easement the
5-37 costs to the state of removing that facility or structure under
5-38 Section 51.3021 of this code.
5-39 (e) Penalties and costs recovered under this section shall
5-40 be deposited in the special fund established under Sections 52.297
5-41 and 53.155 of this code.
5-42 (f) This section is cumulative of all other applicable
5-43 penalties or enforcement provisions of this code.
5-44 (g) In lieu of seeking administrative penalties or removal
5-45 of a facility or structure under Section 51.3021 of this code, the
5-46 commissioner may elect to accept ownership of the facility or
5-47 structure as a fixture and may exercise the state's rights as owner
5-48 of the facility or structure by filing notice of ownership in the
5-49 real property records of the county in which the facility or
5-50 structure is located. For facilities or structures located on
5-51 coastal public land, notice of ownership shall be filed in the
5-52 county adjacent to the property on which the facility or structure
5-53 is located. A state agency fund or trust fund is not liable for
5-54 the condition of any facility or structure as a result of acquiring
5-55 an interest in the facility or structure under this section.
5-56 SECTION 11. Subsections (b), (g), and (h), Section 51.3021,
5-57 Natural Resources Code, are amended to read as follows:
5-58 (b) Before the commissioner may remove a facility or
5-59 structure under this section or impose a penalty under Section
5-60 51.302 of this code, the commissioner must give written notice to a
5-61 person who is constructing, maintains, owns, or possesses the
5-62 facility or structure. The notice must state:
5-63 (1) the specific facility or structure that is without
5-64 proper easement or lease or that threatens public health, safety,
5-65 or welfare;
5-66 (2) that the person who is constructing, maintains,
5-67 owns, or possesses the facility or structure shall remove the
5-68 facility or structure:
5-69 (A) not later than the 30th day after the date
5-70 on which the notice is served, if the facility or structure is on
6-1 state land without a proper lease or easement; or
6-2 (B) within a reasonable time specified by the
6-3 commissioner if the facility or structure is an imminent and
6-4 unreasonable threat to public health, safety, or welfare;
6-5 (3) that failure to remove the facility or structure
6-6 may result in liability for a penalty under Section 51.302(b) of
6-7 this code in an amount specified, removal by the commissioner and
6-8 liability for the costs of removal, attachment of a lien to the
6-9 adjacent littoral property to secure payment of the penalty and
6-10 costs of removal, or any combination of those remedies <both>; and
6-11 (4) that the person who is constructing, maintains,
6-12 owns, or possesses the facility or structure may submit, not later
6-13 than the 30th day after the date on which the notice is served,
6-14 written request for a hearing.
6-15 (g) The commissioner may contract for the removal and
6-16 disposal of a facility or structure under this section and may pay
6-17 the costs of removal from the special fund established under
6-18 Sections 52.297 and 53.155 of this code or from funds appropriated
6-19 by the legislature.
6-20 (h) If the person who is constructing, maintains, owns, or
6-21 possesses the facility or structure does not pay assessed
6-22 penalties, removal costs, and other assessed fees and expenses not
6-23 later than the 60th day after the entry of the final order
6-24 assessing the penalties, costs, fees, and expenses, the
6-25 commissioner may:
6-26 (1) sell salvageable parts or attachments of the
6-27 facility or structure to offset those costs;
6-28 (2) record a lien, in the total amount of the
6-29 penalties, costs, and other fees and expenses assessed, against the
6-30 adjacent littoral property;
6-31 (3) request the attorney general to institute civil
6-32 proceedings to collect the penalties, costs of removal, and other
6-33 fees and expenses remaining unpaid; or
6-34 (4) use any combination of the remedies prescribed by
6-35 this subsection, or other remedies authorized by law, to collect
6-36 the unpaid penalties, costs of removal, and other fees and expenses
6-37 assessed on account of the unauthorized facility or structure on
6-38 state land and its removal by the commissioner.
6-39 (i) <(h)> The decision to remove a facility or structure
6-40 under this section is discretionary with the commissioner. This
6-41 section does not impose a duty on the state to remove a facility or
6-42 structure or to remedy or warn of a hazardous condition on state
6-43 land.
6-44 SECTION 12. Section 51.401, Natural Resources Code, is
6-45 amended by adding Subsection (e) to read as follows:
6-46 (e) Sections 403.094 and 403.095, Government Code, do not
6-47 apply to a fund account created under this section.
6-48 SECTION 13. (a) The change in law made by Section 5.115,
6-49 Water Code, as amended by this Act, applies only to an application
6-50 filed with the Texas Water Commission or its successor on or after
6-51 the effective date of this Act.
6-52 (b) The change in law made by Section 43.0525, Local
6-53 Government Code, as added by this Act, applies only to an
6-54 annexation the proceedings for which are initiated on or after the
6-55 effective date of this Act.
6-56 (c) The change in law made by Section 11.082, Natural
6-57 Resources Code, as added by this Act, applies to an action, as
6-58 defined by that section, that is pending before a state agency or
6-59 political subdivision, as defined by that section, on the effective
6-60 date of this Act.
6-61 (d) The change in law made by Section 33.135, Natural
6-62 Resources Code, as added by this Act, applies only to a transfer
6-63 that occurs on or after the effective date of this Act.
6-64 SECTION 14. The importance of this legislation and the
6-65 crowded condition of the calendars in both houses create an
6-66 emergency and an imperative public necessity that the
6-67 constitutional rule requiring bills to be read on three several
6-68 days in each house be suspended, and this rule is hereby suspended.
6-69 * * * * *
6-70 Austin,
7-1 Texas
7-2 April 26, 1993
7-3 Hon. Bob Bullock
7-4 President of the Senate
7-5 Sir:
7-6 We, your Committee on State Affairs to which was referred S.B. No.
7-7 646, have had the same under consideration, and I am instructed to
7-8 report it back to the Senate with the recommendation that it do not
7-9 pass, but that the Committee Substitute adopted in lieu thereof do
7-10 pass and be printed.
7-11 Harris of
7-12 Dallas, Chairman
7-13 * * * * *
7-14 WITNESSES
7-15 FOR AGAINST ON
7-16 ___________________________________________________________________
7-17 Name: Spencer Reid x
7-18 Representing: Tx General Land Office
7-19 City: Austin
7-20 -------------------------------------------------------------------