BILL ANALYSIS
C.S.H.B. 389
By: Turner, Bob
April 11, 1995
Committee Report (Substituted)
BACKGROUND
Chapter 183 of the Natural Resources Code defines a conservation
easement as a nonpossessory interest of a holder in real property
that imposes limitations or affirmative obligations designed to do
any of the following:
(a) retain or protect natural scenic or open space values
of real property or assure its availability for
agricultural, forest, recreational, or open-space use;
(b) protect natural resources;
(c) maintain or enhance air or water quality; or
(d) preserve the historical, architectural, archaeological
or cultural aspects of real property.
Landowners often agree to requests for conservation easements
because doing so entitles them to an income tax deduction. The
duration of the easement must be perpetual in order for the
landowner to qualify for the deduction. Most conservation
easements therefore place a perpetual affirmative obligation on the
property owner for items such as maintenance, property taxes, and
periodic surveys by biologists.
Chapter 183.001(c), Natural Resources Code, defines a "holder" as
either a governmental body or a charitable organization,
association or trust created or empowered to effect the goals
listed in (a) through (d) above. Under current Texas law, these
easements can be enforced by a third party who is not a holder, but
who is eligible to be a holder. Current law also does not require
the consent of the landowner prior to the transfer and assignment
of the easement.
The protection of rare or threatened lands and the species which
depend upon them is a worthy goal. In Texas, the role of the
private landowner in the pursuit of that goal is a major one when
considered in light of the fact that Texas is so overwhelmingly
comprised of private property. The current financial situation of
the governmental entities whose primary responsibility is the
conservation of Texas' wildlife and natural resources precludes the
widespread fee simple acquisition of private property. Most
charitable organizations founded for conservation, with a few
notable exceptions, are also financially strained and unable to
purchase anything more than specific target properties.
These fiscal realities, along with the financial incentive for
landowners to enter into one of these agreements, make the
conservation easement appear to be an attractive choice for the
large-scale future conservation of rare or threatened lands. There
is concern, however, that the current law does not afford enough
protection to the rights of the property owners involved in these
agreements and their heirs or successors in interest.
Particularly troubling to landowners are the provisions allowing
for third party right of enforcement of the agreements and the
absence of a requirement for landowner consent prior to the
transfer of the conservation easement.
PURPOSE
The purpose of this legislation is to strengthen the position of
the private landowner by prohibiting third party right of
enforcement of conservation easements and prohibiting the transfer
of a conservation easement without the written consent of the
property owner unless the instrument creating the conservation
easement provides that it may be transferred.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Sections 183.001(3) and (4), Natural Resources
Code, by striking the definition of "third party right
of enforcement" and renumbering the section accordingly.
SECTION 2. Amends Section 183.002(b), Natural Resources Code, by
striking the language referring to a right in favor of
a person having a third party right of enforcement.
SECTION 3. Amends Chapter 183, Natural Resources Code, by adding
Section 183.0021.
Subsection (a) provides that, except as provided by
Subsection (b), the conveyance, assignment, or transfer
of a conservation easement is prohibited unless the
instrument conveying, assigning, or transferring the
easement includes the written consent of each person
who, at the time of the transfer, is an owner of the
servient estate.
Subsection (b) provides that if the instrument creating
a conservation easement provides that the easement may
be transferred, then that easement may be transferred
without the consent required by Subsection (a).
SECTION 4. Amends Section 183.003(a), Natural Resources Code, by
striking Subsection (3) relating to third party right
of enforcement and renumbering the following section
accordingly.
SECTION 5. This act takes effect September 1, 1995
SECTION 6. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
Section 3 has been amended to consider multiple owners when an
easement is transferred. Also, old Section 183.0021 is now Section
183.0021(a), and a new subsection (b) has been added to allow an
original instrument to provide a provision that makes subsection
(a) not apply. In other words, an easement can be worded to allow
the landowner(s) that enter into the primary agreement to
explicitly forego the consent required by subsection (a).
SUMMARY OF COMMITTEE ACTION
H.B. 389 was considered by the committee in a public hearing on
March 7, 1995.
The following person testified in favor of the bill:
Bill Powers, representing the Texas Farm Bureau.
The following persons testified against the bill:
Janice Bezanson, representing the Natural Area
Preservation Association; and
Sandra Skrei, representing the National Audubon Society.
The bill was referred to a subcommittee to be named later by the
Chair.
On March 14, 1995, the Chair named the following subcommittee: the
Subcommittee on Property Rights consisting of Representatives
Turner, Combs and Hamric.
After being recalled from subcommittee, the bill was considered by
the committee in a formal meeting on April 6, 1995.
The committee considered a complete substitute for the bill. The
substitute was adopted without objection.
The bill was reported favorably as substituted, with the
recommendation that it do pass and be printed, by a record vote of
6 ayes, 0 nays, 0 pnv, 3 absent.