By: Bivins, Armbrister S.B. No. 1226
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the impact of governmental acts on the value of
1-2 property.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 4, Property Code, is amended by adding
1-5 Chapter 28 to read as follows:
1-6 CHAPTER 28. LIABILITY OF GOVERNMENTAL
1-7 ENTITY FOR DIMINUTION IN VALUE
1-8 Sec. 28.001. DEFINITIONS. In this chapter:
1-9 (1) "Diminution in value" means a reduction in the
1-10 fair market value of property.
1-11 (2) "Governmental entity" means:
1-12 (A) the legislature or a board, authority,
1-13 commission, council, committee, department, office, or agency in
1-14 the executive branch of state government;
1-15 (B) a political subdivision of the state; and
1-16 (C) a special purpose district.
1-17 (3) "Owner" means the owner of private property at the
1-18 time an applicable statute, ordinance, regulation, rule,
1-19 guideline, or policy was passed or the owner at the time a permit,
1-20 license, authorization, or governmental permission was denied
1-21 without reasonable cause.
1-22 (4) "Private property" means real or personal property
1-23 that is not owned by the state or by a governmental entity as
2-1 defined by this section.
2-2 Sec. 28.002. LIMITING ACTION BY GOVERNMENTAL ENTITIES
2-3 AFFECTING PRIVATE PROPERTY RIGHTS. To minimize governmental action
2-4 affecting private property rights, a governmental entity shall:
2-5 (1) avoid imposing an undue burden on the resources of
2-6 that entity or another governmental entity caused by actions that
2-7 require compensation of private property owners under the United
2-8 States Constitution or the Texas Constitution;
2-9 (2) limit or restrict the use of private property only
2-10 to the extent necessary to accomplish a legitimate governmental
2-11 goal that benefits persons served by the entity; and
2-12 (3) expedite a decision by the entity in cases in
2-13 which a delay of the decision may interfere with the use or value
2-14 of private property.
2-15 Sec. 28.003. ATTORNEY GENERAL TO ISSUE GUIDELINES. (a) Not
2-16 later than January 1, 1994, the attorney general shall issue
2-17 guidelines to governmental entities to assist them in identifying
2-18 governmental actions that affect private property to the extent
2-19 that compensation may be required under the United States
2-20 Constitution or the Texas Constitution.
2-21 (b) The attorney general shall update the guidelines
2-22 required by this section annually.
2-23 Sec. 28.004. ASSESSMENT OF GOVERNMENTAL ACTION. (a) A
2-24 governmental entity shall, in a manner consistent with guidelines
2-25 established by Section 28.003, assess a proposed governmental
3-1 action under this chapter. An assessment under this subsection
3-2 must include an analysis of:
3-3 (1) the effect of the proposed action on the use or
3-4 value of private property, including an evaluation of whether the
3-5 action requires compensation of private property owners under the
3-6 law;
3-7 (2) alternatives to the proposed action that would
3-8 lessen the effect on private property; and
3-9 (3) an estimate of the cost to the governmental entity
3-10 if the entity is required to compensate a private property owner.
3-11 Sec. 28.005. ACTIONS SUBJECT TO CHAPTER. (a) The following
3-12 actions of a governmental entity are subject to this chapter to the
3-13 extent that they limit or restrict the use of private property:
3-14 (1) a rule or emergency rule;
3-15 (2) a statute;
3-16 (3) an ordinance;
3-17 (4) a dedication; or
3-18 (5) the denial of a permit, license, authorization, or
3-19 other governmental permission if such denial is without cause.
3-20 (b) The following actions are not subject to this chapter:
3-21 (1) a formal exercise of the power of eminent domain;
3-22 (2) the repeal or amendment of a statute, rule,
3-23 ordinance, requirement, or other action if the repeal or amendment
3-24 lessens or reverses a limitation or restriction on the use of
3-25 private property;
4-1 (3) a governmental action mandated by a higher
4-2 governmental authority;
4-3 (4) law enforcement activity involving the seizure or
4-4 forfeiture of private property for a violation of law or as
4-5 evidence in a criminal proceeding; or
4-6 (5) an order issued as the result of a violation of
4-7 law.
4-8 Sec. 28.006. SUIT FOR DIMINUTION IN VALUE. (a) The owner
4-9 of any private property may bring suit against a governmental
4-10 entity whenever the application of a statute, ordinance,
4-11 regulation, rule, guideline, or policy of that governmental entity
4-12 or the denial without cause of any permit, license, authorization,
4-13 or other governmental permission by that governmental entity
4-14 relating to a parcel of property causes a diminution in value of
4-15 the parcel of property.
4-16 (b) A suit under this section may be filed in the district
4-17 court that has jurisdiction over the property. If a property owner
4-18 prevails in a suit under this section, the owner may:
4-19 (1) recover a sum equal to the diminution in value of
4-20 the property and retain title thereto;
4-21 (2) recover the entire fair market value of the
4-22 property prior to the diminution in value and transfer title to the
4-23 property to the governmental entity on payment of fair market value
4-24 by the governmental entity; or
4-25 (3) If the governmental entity fails to make payment,
5-1 obtain a judgement to invalidate the ordinance, regulation, rule,
5-2 guideline, or policy or invalidate any provision or condition of
5-3 any permit, license, or authorization and recover reasonable and
5-4 necessary attorney fees and other costs of the suit.
5-5 (c) If a statute, ordinance, regulation, rule, guideline, or
5-6 policy whose application caused a diminution in value is rescinded,
5-7 amended, or repealed or if the permit, license, authorization, or
5-8 other governmental permission is granted prior to final judgment,
5-9 then the owner shall be entitled to recover in the pending action
5-10 reasonable and necessary attorney fees and other costs of the suit
5-11 incurred to date, together with any economic losses sustained by
5-12 reason of the governmental acts that caused the diminution in
5-13 value.
5-14 (d) No compensation shall be required under this section if
5-15 the owner's use or proposed use of private property amounts to a
5-16 public nuisance. The governmental entity bears the burden of proof
5-17 with respect to this affirmative defense.
5-18 Sec. 28.007. CONSTITUTIONAL OR STATUTORY RIGHTS NOT
5-19 RESTRICTED. Nothing in this chapter shall restrict any other
5-20 remedy or right that any person or class of persons may have under
5-21 any provision of the United States Constitution or the Texas
5-22 Constitution or the statutes or laws of this state or of the United
5-23 States.
5-24 SECTION 2. (a) The change in law made by this Act applies
5-25 only to an action taken by a governmental entity on or after the
6-1 effective date of this Act. For purposes of this section, an
6-2 action is taken before the effective date of this Act if any
6-3 element of the action occurs before that date.
6-4 (b) An action taken before the effective date of this Act is
6-5 covered by the law in effect when the action was taken, and the
6-6 former law is continued in effect for that purpose.
6-7 SECTION 3. The importance of this legislation and the
6-8 crowded condition of the calendars in both houses create an
6-9 emergency and an imperative public necessity that the
6-10 constitutional rule requiring bills to be read on three several
6-11 days in each house be suspended, and this rule is hereby suspended,
6-12 and that this Act take effect and be in force from and after its
6-13 passage, and it is so enacted.