BILL ANALYSIS
C.S.S.B. 14
By: Bivins
State Affairs
4-11-95
Committee Report (Substituted)
BACKGROUND
The "takings clause" of the Fifth Amendment of the U.S.
Constitution prohibits the governmental taking of private property
for public use without just compensation. The Texas Constitution
contains a similar provision in Article 1, Section 17.
A government can take private property in two ways: by exercising
its power of eminent domain through a process known as
condemnation, or by applying laws or regulations that are overly
confiscatory or restrictive of the owner's use of the person's
property.
In addressing the "taking" issue, courts must balance legitimate
public goals with fundamental rights. Courts are limited to
applying broad constitutional language to specific factual
situations.
In Texas, governmental entities are not required to evaluate the
effect of their administrative and regulatory actions on
constitutionally-protected property rights. Additionally, there is
no statutory cause of action for private property owners who
believe governmental actions have resulted in a reduction in the
market value of their property.
To date, 12 states have passed private property rights laws:
Arizona, Delaware, Idaho, Indiana, Mississippi, Missouri, North
Carolina, Tennessee, Utah, Virginia, Washington, and West Virginia.
Recently, the U.S. House of Representatives passed H.R. 9 which
requires the federal government to compensate private property
owners for the effects of certain regulatory restrictions.
PURPOSE
As proposed, C.S.S.B. 14 sets forth regulations regarding state
governmental or political subdivision actions regarding private
real property.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 10A, Government Code, by adding Chapter
2007, as follows:
CHAPTER 2007. GOVERNMENTAL ACTION AFFECTING PRIVATE
PROPERTY RIGHTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2007.001. SHORT TITLE: Private Real Property Rights
Preservation Act.
Sec. 2007.002. DEFINITIONS. Defines "governmental entity,"
"owner," "market value," "private real property," and
"taking."
Sec. 2007.003. APPLICABILITY. (a) Applies this chapter only
to the adoption or issuance of an ordinance, rule, or similar
measure; a governmental action (action) that imposes a
physical invasion, dedication, or exaction of private real
property (property); and an action by a municipality that has
effect in the municipality's extraterritorial jurisdiction
unless the action imposes identical requirements or
restrictions throughout the entire municipality and its
extraterritorial jurisdiction; and enforcement of an action,
whether the enforcement of the action is accomplished through
the use of permitting, citations, orders, judicial or quasi-judicial proceedings or other similar means.
(b) Sets forth actions to which this chapter does not apply.
Sec. 2007.004. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO
SUE. (a) Provides that sovereign immunity to suit and to
liability is waived and abolished to the extent of liability
created by this chapter.
(b) Authorizes a person that has a claim under this chapter
to sue the state or a governmental entity as provided by
this chapter to recover damages or invalidate an action.
(c) Provides that this section does not authorize a person
to execute a judgment against property of the state or a
governmental entity.
Sec. 2007.005. ALTERNATIVE DISPUTE RESOLUTION. Applies
Chapter 154, Civil Practice and Remedies Code, to a suit filed
under this chapter.
Sec. 2007.006. CUMULATIVE REMEDIES. (a) Provides that the
provisions of this chapter are not exclusive, and that the
remedies are in addition to other procedures provided by law.
(b) Prohibits a person from recovering under this chapter
and also under another law or in an action at common law for
the same economic loss.
SUBCHAPTER B. STATUTORY SUIT FOR COMPENSATION
Sec. 2007.021. ENTITLEMENT TO COMPENSATION. (a) Provides
that a governmental entity is liable for compensation if the
governmental entity takes an action that affects an owner's
private real property in a manner that restricts or limits a
right to property that would exist otherwise, and the action
is a producing cause of a reduction in the value of the
affected property of 20 percent or more.
(b) Provides that the state is liable for the compensation
owed a property owner as the result of a governmental action
by a political subdivision that is reasonably taken to
fulfill an obligation mandated by state law.
Sec. 2007.022. SUIT FOR COMPENSATION. (a) Authorizes a
property owner to bring suit to recover compensation.
Requires the suit to be filed in a district court in the
county of the owner's affected property, or any applicable
county if the property is in more than one county.
(b) Requires a suit to be filed within two years after the
cause of action accrued. Provides that a cause of action
accrues on the date the property owner knew or should have
known that the action restricted the owner's right in the
property.
Sec. 2007.023. COMPENSATION AND COSTS. (a) Provides that
whether an action requires compensation is a question of fact.
(b) Provides that the compensation owed to the property
owner is determined from the date of the action and sets
forth the procedure for computing the compensation.
(c) Authorizes the property owner to recover compensation in
an amount equal to the economic loss sustained while the
action was in effect if the action resulted in a taking and
the action has ceased or has been rescinded, amended,
invalidated, or repealed.
(d) Requires the court to award a property owner who
prevails certain trial fees. Provides that prejudgment
interest is calculated from the date of the reduction in
market value.
Sec. 2007.024. JUDGMENT. (a) Requires the court's judgment
in favor of a property owner to meet certain qualifications.
(b) Subjects a judgment awarding compensation to a property
owner who prevails in a suit against the state or a state
agency to an appropriation by the legislature.
SUBCHAPTER C. REQUIREMENTS FOR PROPOSED GOVERNMENTAL ACTION
Sec. 2007.041. GUIDELINES. (a) Requires the attorney general
to prepare guidelines to assist governmental entities in
identifying and evaluating governmental actions that may
result in a taking.
(b) Requires the attorney general to file the guidelines
with the secretary of state for publication in the Texas
Register.
(c) Requires the attorney general to review the guidelines
annually and revise them to ensure consistency with
legislative actions and judicial decisions of the U.S.
Supreme Court and the supreme court of this state.
(d) Authorizes a person to make comments to the attorney
general concerning the guidelines. Requires the attorney
general to consider the comments in the annual review
process.
(e) Provides that material provided to the attorney general
is public information.
Sec. 2007.042. PUBLIC NOTICE. (a) Requires a political
subdivision that proposes to engage in an action that may
result in a taking to provide at least 30 days' notice of its
intent by providing a notice published in a newspaper
published in the county in which the property is located.
Requires the political subdivision to publish a notice in an
adjacent county if a newspaper of general circulation is not
published in that county. Requires a political subdivision to
include in the notice a summary of the takings impact
assessment (assessment) that was prepared as required and the
name of the subdivision official from whom a copy of the
assessment may be made.
(b) Requires a state agency that proposes to engage in an
action that may result in a taking to provide notice in the
manner prescribed by Section 2001.023 and filed with the
secretary of state for publication in the Texas Register a
copy of the assessment that was prepared by the agency.
Sec. 2007.043. TAKINGS IMPACT ASSESSMENT. (a) Requires a
governmental entity to prepare an assessment that complies
with the evaluation guidelines developed by the attorney
general before the governmental entity provides public notice.
(b) Provides that a political subdivision is not required to
prepare an assessment for an action taken that is taken to
fulfill an obligation mandated by state law but must prepare
instead a statement describing the mandate and citing the
statute or rule under which the mandate is imposed.
(c) Sets forth requirements for the assessment.
(d) Provides that an assessment prepared under this section
is public information.
Sec. 2007.044. SUIT TO INVALIDATE GOVERNMENTAL ACTION. (a)
Provides that action requiring an assessment is void if an
assessment is not prepared. Authorizes a property owner
affected by an action taken without the preparation of an
assessment to bring suit for a declaration of the invalidity
of the action.
(b) Requires the suit to be filed in a court described by
Section 2007.022(a).
(c) Requires the court to award a property owner who
prevails certain trial costs.
Sec. 2007.045. UPDATING OF CERTAIN ASSESSMENTS REQUIRED.
Requires a state agency that proposes to adopt a governmental
action that may result in a taking as indicated by the
assessment to update the assessment if the rule is not adopted
within 180 days after the notice is given.
SECTION 2. Amends Section 2002.011, Government Code, to make
conforming changes.
SECTION 3. Amends Chapter 23B, Tax Code, by adding Section 23.11,
as follows:
Sec. 23.11. GOVERNMENTAL ACTION THAT CONSTITUTES TAKING.
Requires the effect of an action on the market value of
property to be taken into consideration by the chief appraiser
in determining the market value of the property.
SECTION 4. Requires the attorney general to file the guidelines for
publication by January 1, 1996.
SECTION 5. Requires the comptroller to report to the governor,
lieutenant governor, speaker of the house, and attorney general
regarding state agency compliance with the assessment procedures
and make recommendations for improvements before the 75th
Legislature convenes.
SECTION 6. (a) Effective date: September 1, 1995.
(b) Effective date of Sections 2007.042 and 2007.043:
January 1, 1996. Applies these sections only to an action
described in Section 2007.003(a)(1) through (3) that is first
proposed to be taken on or after that date.
(c) Applies Section 2007.021 to an action described in Section
2007.003(a)(1) that is first proposed on or after September 1,
1995, and an action described in Section 2007.003(a)(4) if the
action is initiated after September 1, 1995.
SECTION 7. Emergency clause.