By Averitt                                            H.B. No. 2054
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the preservation of property rights in condemnation
    1-3  proceedings and uniformity in assessment of market value.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 6, Chapter 106, Acts of the 40th
    1-6  Legislature, 1st Called Session, 1927 (Article 1105b, Vernon's
    1-7  Texas Civil Statutes), is amended by adding Subsection (e) to read
    1-8  as follows:
    1-9        (e)  An assessment shall be made where equitable for the
   1-10  special benefit, if any, conferred on an adjoining property by the
   1-11  new construction or improvement of any street.  The determination
   1-12  of special benefit shall be measured by the increase, if any, of
   1-13  the market value of the adjoining property caused by the new
   1-14  construction or improvement and offset by any special damage caused
   1-15  by the new construction or improvement.  The market value
   1-16  estimation shall be made only after considering every factor that
   1-17  affects the adjoining property's market value that would be
   1-18  considered in the marketplace including, but not limited to, any
   1-19  effect the new construction or improvement may have on the access
   1-20  to and from and visibility of the adjoining property and the use
   1-21  and enjoyment of the property during the construction and after its
   1-22  completion.
   1-23        SECTION 2.  Article 1209, Revised Statutes, is amended to
    2-1  read as follows:
    2-2        Art. 1209.  Assessments.  (a)  Whenever the governing body
    2-3  shall order the making of any improvement herein referred to, it
    2-4  may then or thereafter at any time provide by resolution that all
    2-5  or part of the costs thereof, as defined in the third article of
    2-6  this chapter, shall be assessed against said property abutting said
    2-7  proposed improvement, or in the vicinity thereof, and the owners
    2-8  thereof specially benefited thereby, together with reasonable
    2-9  attorney's fees and all costs incurred in the collection of said
   2-10  assessments, and shall have power to apportion the same among the
   2-11  owners of said property, and may designate the property proposed to
   2-12  be assessed, or the district within which property will be
   2-13  benefited and within which assessments may be made, provided no
   2-14  assessment shall be made against any property, or its owner, in
   2-15  excess of the special benefits thereto in the enhanced value
   2-16  thereof from said improvement.  No assessments shall be made
   2-17  against any property exempt from execution, but the owner shall be
   2-18  personally liable and assessed therefor.
   2-19        (b)  An assessment shall be made where equitable for the
   2-20  special benefit, if any, conferred on an adjoining property by the
   2-21  new construction or improvement of any street.  The determination
   2-22  of special benefit shall be measured by the increase, if any, of
   2-23  the market value of the adjoining  property caused by the new
   2-24  construction or improvement and offset by any special damage caused
   2-25  by the new construction or improvement.  The market value
    3-1  estimation shall be made only after considering every factor that
    3-2  affects the adjoining property's market value that would be
    3-3  considered in the marketplace including, but not limited to, any
    3-4  effect the new construction or improvement may have on the access
    3-5  to and from the adjoining property, the visibility of the property,
    3-6  and the use and enjoyment of the property during the construction
    3-7  and after its completion.
    3-8        SECTION 3.  Section 21.041, Property Code, is amended to read
    3-9  as follows:
   3-10        Sec. 21.041.  Evidence.  As the basis for assessing actual
   3-11  damages to a property owner from a condemnation, the special
   3-12  commissioners shall admit evidence on:
   3-13              (1)  the market value of the property being condemned;
   3-14              (2)  the damages <injury> to the property owner's
   3-15  remaining property <owner>;
   3-16              (3)  the benefit to the property owner's remaining
   3-17  property; and
   3-18              (4)  the effect, if any, of the entire project for
   3-19  which, in part, the condemnation was instituted on the use,
   3-20  enjoyment, and market value of the property owner's remaining
   3-21  property <for the purpose of the condemnation>.
   3-22        SECTION 4.  Subsections (a), (c), and (d), Section 21.042,
   3-23  Property Code, are amended to read as follows:
   3-24        (a)  The special commissioners shall assess damages in a
   3-25  condemnation proceeding according to the evidence presented at the
    4-1  hearing and shall consider all characteristics that affect a
    4-2  property's market value as set forth in Section 23.01, Tax Code,
    4-3  and Chapter 106, Acts of the 40th Legislature, 1st Called Session,
    4-4  1927 (Article 1105b, Vernon's Texas Civil Statutes), and Article
    4-5  1209, Revised Statutes.
    4-6        (c)  If a portion of a tract or parcel of real property is
    4-7  condemned, the special commissioners shall determine the damage to
    4-8  the property owner after estimating the extent of the injury and
    4-9  benefit to the property owner, including the effect of the
   4-10  condemnation and the construction and operation of the entire
   4-11  project for which, in part, the condemnation was instituted, on the
   4-12  market value of the property owner's remaining property.
   4-13        (d)  In estimating injury or benefit under Subsection (c),
   4-14  the special commissioners shall consider an injury or benefit that
   4-15  is peculiar to the property owner and that relates to the property
   4-16  owner's ownership, use, or enjoyment of the particular parcel of
   4-17  real property, and <but> they shall <may> not consider those
   4-18  injuries <an injury> or benefits that are sustained or enjoyed
   4-19  <benefit that the property owner experiences> in similar degree by
   4-20  all private property in <common with> the general community.
   4-21        SECTION 5.  Section 21.019, Property Code, is amended by
   4-22  amending Subsections (b) and (c) and by adding Subsection (d) to
   4-23  read as follows:
   4-24        (b)  A court that hears and grants a motion to dismiss a
   4-25  condemnation proceeding made by a condemnor under Subsection (a)
    5-1  shall make an allowance to the property owner for reasonable and
    5-2  necessary litigation fees as set forth in Section 21.047(d) <for
    5-3  attorneys, appraisers, and photographers> and for the other
    5-4  expenses incurred by the property owner to the date of the judgment
    5-5  <hearing>.
    5-6        (c)  A court that hears and grants a motion to dismiss a
    5-7  condemnation proceeding made by a property owner seeking a judicial
    5-8  denial of the right to condemn or that otherwise renders a judgment
    5-9  denying the right to condemn shall <may> make an allowance to the
   5-10  property owner for reasonable and necessary litigation fees as set
   5-11  forth in Section 21.047(d) <for attorneys, appraisers, and
   5-12  photographers> and for the other expenses incurred by the property
   5-13  owner to the date of the <hearing or> judgment.
   5-14        (d)  If a special commissioners' award is appealed by the
   5-15  condemnor and the finder-of-fact at the trial returns an award
   5-16  greater than the award returned by the special commissioners, the
   5-17  court shall make an allowance to the property owner for reasonable
   5-18  and necessary litigation fees as set forth in Section 21.047(d).
   5-19        SECTION 6.  Section 21.047, Property Code, is amended by
   5-20  amending Subsection (a) and by adding Subsection (d) to read as
   5-21  follows:
   5-22        (a)  Special commissioners may adjudge the cost <costs> of an
   5-23  eminent domain proceeding against any party, but if the
   5-24  commissioners award greater damages than the condemnor offered to
   5-25  pay before the proceedings began or if the decision of the
    6-1  commissioners is appealed and a court awards greater damages than
    6-2  the condemnor offered to pay before the proceedings began, the
    6-3  condemnor shall be required to pay the condemnee's litigation
    6-4  expenses under Subsection (d).  <If the commissioners award greater
    6-5  damages than the condemnor offered to pay before the proceedings
    6-6  began or if the decision of the commissioners is appealed and a
    6-7  court awards greater damages than the commissioners awarded, the
    6-8  condemnor shall pay all costs.  If the commissioners' award or the
    6-9  court's determination of the damages is less than or equal to the
   6-10  amount the condemnor offered before proceedings began, the property
   6-11  owner shall pay the costs.>
   6-12        (d)  The condemnor shall pay the property owner's litigation
   6-13  expenses when required by Section 21.019 and in those cases in
   6-14  which the special commissioners, or the court on appeal from a
   6-15  special commissioners' award, determined that the compensation due
   6-16  the property owner is in excess of 115 percent of the condemnor's
   6-17  final written offer to the property owner before the condemnation
   6-18  proceedings began.  Litigation expenses include:
   6-19              (1)  all expenses reasonably and necessarily incurred
   6-20  in the condemnation proceeding in preparing for the commissioners'
   6-21  hearing, preparing for trial, during trial, and preparing for or at
   6-22  any subsequent judicial proceeding; and
   6-23              (2)  reasonable attorney's fees, appraisal fees, and
   6-24  fees for the services of other experts when such fees were
   6-25  reasonably and necessarily incurred to protect the property owner's
    7-1  interest prior to, in preparing for, or during the hearing of
    7-2  special commissioners, the trial, or any subsequent judicial
    7-3  proceeding, whether such fees were incurred for services rendered
    7-4  before or after the filing of the petition in condemnation.
    7-5        SECTION 7.  This Act takes effect September 1, 1995.
    7-6        SECTION 8.  The importance of this legislation and the
    7-7  crowded condition of the calendars in both houses create an
    7-8  emergency and an imperative public necessity that the
    7-9  constitutional rule requiring bills to be read on three several
   7-10  days in each house be suspended, and this rule is hereby suspended.