BILL ANALYSIS
C.S.H.B. 396
By: Turner, Bob
April 30, 1995
Committee Report (Substituted)
BACKGROUND
During the interim of the 73rd Legislature, the House Natural
Resources Committee had a series of hearings throughout the state
in the course of pursuing information for the committee's interim
report. A subcommittee of the Natural Resources Committee, the
Subcommittee on Mitigation of Property Rights, received testimony
regarding ways to mitigate conflicts between landowners' property
rights and federal and state policies for the protection of
threatened and endangered species and habitats. Testimony was
received from diverse interests such as private landowners,
environmentalists, and state agencies regarding the effects of
state and federal regulations on the taxpayers of Texas.
A landowner from Live Oak County testified that the Texas
Department of Transportation was in the process of condemning his
family's land to provide habitat for the endangered ocelot. TxDOT
was in the process of widening Highway 281, and was being required
by the U.S. Fish and Wildlife Service to provide this four acre
area as replacement habitat for the ocelot. This action was being
pursued despite the fact that the ranch had been in this
individual's family for over 100 years, and to his knowledge there
had never been an ocelot sighted on the property. TxDOT personnel
also testified at the same hearing that, at the date of the
hearing, the agency had not yet used its condemnation powers to
satisfy mitigation requirements.
The subcommittee concluded that "The process of mitigation arose as
a central issue during the hearings. It has become a source of
contention with state agencies and private individuals alike." The
subcommittee also recommended that the legislature examine setting
guidelines for state agencies that are required to mitigate.
Considering that recommendation, there is some question as to
whether or not the compensatory stage of the mitigation process
actually qualifies under the urgent public need necessary to
justify the use of the power of eminent domain.
Stated another way, does the mitigation of adverse impacts to
"potential" habitat justify the use of the power of condemnation by
the state the same way as building a highway or constructing a
pipeline to carry petroleum products to heat homes? Many taxpayers
would argue that it does not. Legislation is necessary to ensure
that the power of eminent domain is not abused by state agencies in
the future, and that condemnation will only be used for those
projects that result in the actual construction, maintenance, or
modification of a structure that is desperately needed to ensure
the health and safety of the citizens of Texas.
PURPOSE
The purpose of this legislation is to prohibit the use of
condemnation for the purposes of mitigation by the state or a
subdivision of the state with eminent domain authority.
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 the heading of Subchapter A, Chapter 21, Property
Code by striking "Jurisdiction" and adding in its place
"General Provisions".
SECTION 2 Amends Chapter 21, Property Code, by adding Section
21.004, which would prohibit the use of condemnation for
the purposes of mitigation by the state or a political
subdivision of the state with eminent domain authority.
Also clarifies that this section controls over any other
statutory grant of condemnation authority for mitigation
purposes. Mitigation is defined in this section as the
offsetting of the adverse effect of land use in
environmentally sensitive areas as required by the
federal government.
SECTION 3 Statement of applicability.
SECTION 4 Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute deletes the language in SECTION 2 of the original
bill that made the bill apply to corporations with eminent domain
authority. Thus, the prohibition on the use of eminent domain for
mitigation purposes applies only to the state or a political
subdivision of the state. Also, the substitute adds language
providing that the provisions in Section 21.004 will control over
any other grant of condemnation authority for mitigation purposes.
SUMMARY OF COMMITTEE ACTION
H.B. 396 was considered by the committee in a public hearing on
April 25, 1995.
The committee considered a complete substitute for the bill. The
substitute was adopted without objection.
The following person testified against the bill:
Scott Royder, representing the Lone Star Chapter of the
Sierra Club.
The following persons testified neutrally on the bill:
Bill Burnett, representing the Texas Department of
Transportation;
Robert Cuellar, representing the Texas Department of
Transportation;
R. H. Cory, representing the Central and Southwest
Corporation; and
Patrick Nugent, representing the Texas Pipe Association.
An amendment was offered to the substitute. The amendment 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.
The chair directed the staff to incorporate the amendment into the
substitute.
In a formal meeting on April 26, 1995, the vote by which H.B. 396
was reported favorably as substituted was reconsidered by the
committee without objection.
The vote by which Committee Amendment No. 1 was adopted was
reconsidered without objection. The amendment was withdrawn
without objection.
The vote by which the substitute for H.B. 396 was adopted was
reconsidered without objection.
An amendment was offered to the substitute. The amendment was
adopted without objection.
The substitute as amended was adopted without objection. The chair
directed the staff to incorporate the amendment into the
substitute.
The bill was reported favorably as substituted, with the
recommendation that it do pass and be printed, by a record vote of
7 ayes, 0 nays, 0 pnv, 2 absent.