By:  Bivins, et al.                                     S.B. No. 14
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to protecting private real property rights from certain
    1-2  actions of this state or a political subdivision of this state.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Subtitle A, Title 10, Government Code, is amended
    1-5  by adding Chapter 2007 to read as follows:
    1-6         CHAPTER 2007.  GOVERNMENTAL ACTION AFFECTING PRIVATE
    1-7                            PROPERTY RIGHTS
    1-8                   SUBCHAPTER A.  GENERAL PROVISIONS
    1-9        Sec. 2007.001.  SHORT TITLE.  This chapter may be cited as
   1-10  the Private Real Property Rights Preservation Act.
   1-11        Sec. 2007.002.  DEFINITIONS.  In this chapter:
   1-12              (1)  "Governmental entity" means:
   1-13                    (A)  a board, commission, council, department, or
   1-14  other agency in the executive branch of state government that is
   1-15  created by constitution or statute, including an institution of
   1-16  higher education as defined by Section 61.003, Education Code; or
   1-17                    (B)  a political subdivision of this state.
   1-18              (2)  "Owner" means a person with legal or equitable
   1-19  title to affected private real property at the time a taking
   1-20  occurs.
   1-21              (3)  "Market value" means the price a willing buyer
   1-22  would pay a willing seller after considering all factors in the
   1-23  marketplace that influence the price of private real property.
   1-24              (4)  "Private real property" means an interest in real
    2-1  property recognized by common law, including a groundwater or
    2-2  surface water right of any kind, that is not owned by the federal
    2-3  government, this state, or a political subdivision of this state.
    2-4              (5)  "Taking" means a governmental action that affects
    2-5  private real property in a manner that requires the governmental
    2-6  entity to compensate the private real property owner as provided by
    2-7  this chapter, the Fifth and Fourteenth Amendments to the United
    2-8  States Constitution, or Section 17 or 19, Article I, Texas
    2-9  Constitution.
   2-10        Sec. 2007.003.  APPLICABILITY.  (a)  This chapter applies
   2-11  only to the following governmental actions:
   2-12              (1)  the adoption or issuance of an ordinance, rule,
   2-13  regulatory requirement, resolution, policy, guideline, or similar
   2-14  measure;
   2-15              (2)  an action that imposes a physical invasion or
   2-16  requires a dedication or exaction of private real property;
   2-17              (3)  an action by a municipality that has effect in the
   2-18  municipality's extraterritorial jurisdiction unless:
   2-19                    (A)  the action imposes identical requirements or
   2-20  restrictions throughout the entire municipality and its entire
   2-21  extraterritorial jurisdiction; or
   2-22                    (B)  the purpose of the action is to prevent the
   2-23  pollution of an aquifer designated as a "sole source" aquifer under
   2-24  the federal Safe Drinking Water Act (42 U.S.C. Section 300h-3(e));
   2-25  and
   2-26              (4)  enforcement of a governmental action listed in
   2-27  Subdivisions (a)(1) through (3), whether the enforcement of the
    3-1  governmental action is accomplished through the use of permitting,
    3-2  citations, orders, judicial or quasi-judicial proceedings, or other
    3-3  similar means.
    3-4        (b)  This chapter does not apply to the following
    3-5  governmental actions:
    3-6              (1)  an action by a municipality except as provided by
    3-7  Subsection (a)(3);
    3-8              (2)  a lawful forfeiture or seizure of contraband as
    3-9  defined by Section 59.01, Code of Criminal Procedure;
   3-10              (3)  a lawful seizure of property as evidence of a
   3-11  crime or violation of law;
   3-12              (4)  an action that is reasonably taken to fulfill an
   3-13  obligation mandated by federal law;
   3-14              (5)  the discontinuance or modification of a program or
   3-15  regulation that provides a unilateral expectation that does not
   3-16  rise to the level of a recognized interest in private real
   3-17  property;
   3-18              (6)  an action taken to prohibit or restrict a
   3-19  condition or use of private real property if the governmental
   3-20  entity proves that the condition or use constitutes a public or
   3-21  private nuisance as defined by background principles of nuisance
   3-22  and property law of this state;
   3-23              (7)  an action taken out of a reasonable good faith
   3-24  belief that the action is necessary to prevent a grave and
   3-25  immediate threat to life or property;
   3-26              (8)  a formal exercise of the power of eminent domain;
   3-27              (9)  an action taken by a governmental entity under the
    4-1  entity's statutory duty to prevent waste of oil and gas or protect
    4-2  correlative rights of owners of interests in oil or gas;
    4-3              (10)  a rule or proclamation adopted by the Parks and
    4-4  Wildlife Commission for purposes of regulating hunting and fishing;
    4-5              (11)  an action taken by a political subdivision under
    4-6  the entity's statutory authority to conserve water or control
    4-7  subsidence;
    4-8              (12)  the appraisal of property for purposes of ad
    4-9  valorem taxation;
   4-10              (13)  an action that:
   4-11                    (A)  is taken in response to a real and
   4-12  substantial threat to public health and safety;
   4-13                    (B)  is designed to significantly advance the
   4-14  health and safety purpose; and
   4-15                    (C)  does not impose a greater burden than is
   4-16  necessary to achieve the health and safety purpose; or
   4-17              (14)  an action or rulemaking undertaken by the Public
   4-18  Utility Commission of Texas to order or require the location or
   4-19  placement of telecommunications equipment owned by another party on
   4-20  the premises of a certificated local exchange company.
   4-21        Sec. 2007.004.  SUITS AGAINST THE STATE.  (a)  A person that
   4-22  has a claim under this chapter may sue the state or a governmental
   4-23  entity as provided by general law and this chapter to:
   4-24              (1)  recover damages allowed by this chapter; or
   4-25              (2)  invalidate a governmental action.
   4-26        (b)  This section does not authorize a person to execute a
   4-27  judgment against property of the state or a governmental entity.
    5-1        Sec. 2007.005.  ALTERNATIVE DISPUTE RESOLUTION.  Chapter 154,
    5-2  Civil Practice and Remedies Code, applies to a suit filed under
    5-3  this chapter.
    5-4        Sec. 2007.006.  CUMULATIVE REMEDIES.  (a)  The provisions of
    5-5  this chapter are not exclusive.  The remedies provided by this
    5-6  chapter are in addition to other procedures or remedies provided by
    5-7  law.
    5-8        (b)  A person may not recover under this chapter and also
    5-9  recover under another law or in an action at common law for the
   5-10  same economic loss.
   5-11        (Sections 2007.007 to 2007.020 reserved for expansion
   5-12            SUBCHAPTER B.  STATUTORY SUIT FOR COMPENSATION
   5-13        Sec. 2007.021.  ENTITLEMENT TO COMPENSATION.  (a)  A
   5-14  governmental entity is liable to a private real property owner for
   5-15  compensation under this subchapter if:
   5-16              (1)  the governmental entity takes a governmental
   5-17  action that affects an owner's private real property in a manner
   5-18  that restricts or limits a right to private real property that
   5-19  would otherwise exist in the absence of the governmental action;
   5-20  and
   5-21              (2)  the action is the producing cause of a reduction
   5-22  in the market value of the affected private real property of 20
   5-23  percent or more.
   5-24        (b)  The state is liable for the compensation owed a private
   5-25  real property owner under this subchapter as the result of a
   5-26  governmental action by a political subdivision that is reasonably
   5-27  taken to fulfill an obligation mandated by state law.
    6-1        Sec. 2007.022.  SUIT FOR COMPENSATION.  (a)  A private real
    6-2  property owner may bring suit to recover compensation under this
    6-3  subchapter.  A suit under this subchapter must be filed in a
    6-4  district court in the county in which the private real property
    6-5  owner's affected property is located.  If the affected private real
    6-6  property is located in more than one county, the private real
    6-7  property owner may file suit in any county in which the affected
    6-8  property is located.
    6-9        (b)  A suit under this subchapter must be filed not later
   6-10  than two years after the date the cause of action accrued.  A cause
   6-11  of action under this subchapter accrues on the date the private
   6-12  real property owner knew or should have known that the governmental
   6-13  action caused a reduction in the market value of the affected real
   6-14  property.
   6-15        Sec. 2007.023.  COMPENSATION AND COSTS.  (a)  Whether a
   6-16  governmental action requires compensation under this subchapter is
   6-17  a question of fact.
   6-18        (b)  The compensation owed to the private real property owner
   6-19  in a suit under this subchapter is determined from the date of the
   6-20  governmental action and is the difference between the market value
   6-21  of the private real property determined as if the governmental
   6-22  action were not in effect and the market value of the private real
   6-23  property determined with the governmental action in effect.
   6-24        (c)  If the trier of fact determines that a governmental
   6-25  action resulted in a reduction in market value, and the
   6-26  governmental action has ceased or has been rescinded, amended,
   6-27  invalidated, or repealed, the private real property owner may
    7-1  recover compensation in an amount equal to the temporary or
    7-2  permanent economic loss sustained while the governmental action was
    7-3  in effect.
    7-4        (d)  The court shall award a private real property owner who
    7-5  prevails in a suit under this subchapter reasonable and necessary
    7-6  attorney's fees, court costs, and prejudgment interest.
    7-7  Prejudgment interest under this subsection is calculated from the
    7-8  date of the reduction in market value.
    7-9        Sec. 2007.024.  JUDGMENT.  (a)  The court's judgment in favor
   7-10  of a private real property owner in a suit under this subchapter
   7-11  shall:
   7-12              (1)  order the governmental entity or attorney general,
   7-13  as appropriate, to certify to the court whether all compensation,
   7-14  fees, costs, and interest owed under this subchapter have been
   7-15  paid; and
   7-16              (2)  enjoin the governmental entity from enforcing or
   7-17  continuing the governmental action as applied to the private real
   7-18  property owner until the date the governmental entity or attorney
   7-19  general, as appropriate, certifies to the court that all
   7-20  compensation, fees, costs, and interest owed under this subchapter
   7-21  have been paid; provided, the governmental action shall be
   7-22  permanently enjoined if all amounts owing under this subchapter
   7-23  have not been paid within three years of the date the judgment is
   7-24  final.
   7-25        (b)  A judgment awarding compensation to a private real
   7-26  property owner who prevails in a suit against the state or a state
   7-27  agency under this subchapter is subject to an appropriation by the
    8-1  legislature.
    8-2        (Sections 2007.025 to 2007.040 reserved for expansion
    8-3         SUBCHAPTER C.  REQUIREMENTS FOR PROPOSED GOVERNMENTAL
    8-4                                ACTION
    8-5        Sec. 2007.041.  GUIDELINES.  (a)  The attorney general shall
    8-6  prepare guidelines to assist governmental entities in identifying
    8-7  and evaluating those governmental actions described in Section
    8-8  2007.003(a)(1) through (3) that may result in a taking.
    8-9        (b)  The attorney general shall file the guidelines with the
   8-10  secretary of state for publication in the Texas Register in the
   8-11  manner prescribed by Chapter 2002.
   8-12        (c)  The attorney general shall review the guidelines at
   8-13  least annually and revise the guidelines as necessary to ensure
   8-14  consistency with the actions of the legislature and the decisions
   8-15  of the United States Supreme Court and the supreme court of this
   8-16  state.
   8-17        (d)  A person may make comments or suggestions or provide
   8-18  information to the attorney general concerning the guidelines.  The
   8-19  attorney general shall consider the comments, suggestions, and
   8-20  information in the annual review process required by this section.
   8-21        (e)  Material provided to the attorney general under
   8-22  Subsection (d) is public information.
   8-23        Sec. 2007.042.  PUBLIC NOTICE.  (a)  A political subdivision
   8-24  that proposes to engage in a governmental action described in
   8-25  Section 2007.003(a)(1) through (3) that may result in a taking
   8-26  shall provide at least 30 days' notice of its intent to engage in
   8-27  the proposed action by providing a reasonably specific description
    9-1  of the proposed action in a notice published in a newspaper of
    9-2  general circulation published in the county in which affected
    9-3  private real property is located.  If a newspaper of general
    9-4  circulation is not published in that county, the political
    9-5  subdivision shall publish a notice in a newspaper of general
    9-6  circulation located in a county adjacent to the county in which
    9-7  affected private real property is located.  The political
    9-8  subdivision shall, at a minimum, include in the notice a reasonably
    9-9  specific summary of the takings impact assessment that was prepared
   9-10  as required by this subchapter and the name of the official of the
   9-11  political subdivision from whom a copy of the full assessment may
   9-12  be obtained.
   9-13        (b)  A state agency that proposes to engage in a governmental
   9-14  action described in Section 2007.003(a)(1) or (2) that may result
   9-15  in a taking shall:
   9-16              (1)  provide notice in the manner prescribed by Section
   9-17  2001.023; and
   9-18              (2)  file with the secretary of state for publication
   9-19  in the Texas Register in the manner prescribed by Chapter 2002 a
   9-20  copy of the takings impact assessment that was prepared by the
   9-21  agency as required by this subchapter.
   9-22        Sec. 2007.043.  TAKINGS IMPACT ASSESSMENT.  (a)  Except as
   9-23  provided by Subsection (b), a governmental entity shall prepare a
   9-24  written takings impact assessment of a proposed governmental action
   9-25  described in Section 2007.003(a)(1) through (3) that complies with
   9-26  the evaluation guidelines developed by the attorney general under
   9-27  Section 2007.041 before the governmental entity provides the public
   10-1  notice required under Section 2007.042.
   10-2        (b)  A political subdivision is not required to prepare a
   10-3  written assessment for an action taken by the political subdivision
   10-4  that is reasonably taken to fulfill an obligation mandated by state
   10-5  law but must prepare instead a statement that describes the state
   10-6  law mandate and cites the statute or rule under which the mandate
   10-7  is imposed.
   10-8        (c)  The takings impact assessment must:
   10-9              (1)  describe the specific purpose of the proposed
  10-10  action and identify:
  10-11                    (A)  whether and how the proposed action
  10-12  substantially advances its stated purpose; and
  10-13                    (B)  the burdens imposed on private real property
  10-14  and the benefits to society resulting from the proposed use of
  10-15  private real property;
  10-16              (2)  determine whether engaging in the proposed
  10-17  governmental action will constitute a taking; and
  10-18              (3)  describe reasonable alternative actions that could
  10-19  accomplish the specified purpose and compare, evaluate, and
  10-20  explain:
  10-21                    (A)  how an alternative action would further the
  10-22  specified purpose; and
  10-23                    (B)  whether an alternative action would
  10-24  constitute a taking.
  10-25        (d)  A takings impact assessment prepared under this section
  10-26  is public information.
  10-27        Sec. 2007.044.  SUIT TO INVALIDATE GOVERNMENTAL ACTION.
   11-1  (a)  A governmental action requiring a takings impact assessment is
   11-2  void if an assessment is not prepared.  A private real property
   11-3  owner affected by a governmental action taken without the
   11-4  preparation of a takings impact assessment as required by this
   11-5  subchapter may bring suit for a declaration of the invalidity of
   11-6  the governmental action.
   11-7        (b)  A suit under this section must be filed in a court
   11-8  described by Section 2007.022(a).
   11-9        (c)  The court shall award a private real property owner who
  11-10  prevails in a suit under this section reasonable and necessary
  11-11  attorney's fees and court costs.
  11-12        Sec. 2007.045.  UPDATING OF CERTAIN ASSESSMENTS REQUIRED.  A
  11-13  state agency that proposes to adopt a governmental action described
  11-14  in Section 2007.003(a)(1) or (2) that may result in a taking as
  11-15  indicated by the takings impact assessment shall update the
  11-16  assessment if the action is not adopted before the 180th day after
  11-17  the date the notice is given as required by Section 2001.023.
  11-18        SECTION 2.  Section 2002.011, Government Code, is amended to
  11-19  read as follows:
  11-20        Sec. 2002.011.  TEXAS REGISTER.  The secretary of state shall
  11-21  compile, index, cross-index to statute, and publish a publication
  11-22  to be known as the Texas Register.  The register shall contain:
  11-23              (1)  notices of proposed rules issued and filed in the
  11-24  office of the secretary of state as provided by Subchapter B of
  11-25  Chapter 2001;
  11-26              (2)  the text of rules adopted and filed in the office
  11-27  of the secretary of state;
   12-1              (3)  notices of open meetings issued and filed in the
   12-2  office of the secretary of state as provided by law;
   12-3              (4)  executive orders issued by the governor;
   12-4              (5)  summaries of requests for opinions of the attorney
   12-5  general and of the State Ethics Advisory Commission;
   12-6              (6)  summaries of opinions of the attorney general and
   12-7  of the State Ethics Advisory Commission; <and>
   12-8              (7)  guidelines prepared by the attorney general under
   12-9  Section 2007.041;
  12-10              (8)  notices relating to the preparation of takings
  12-11  impact assessments as provided by Section 2007.043; and
  12-12              (9)  other information of general interest to the
  12-13  public of this state, including:
  12-14                    (A)  federal legislation or regulations affecting
  12-15  the state or a state agency; and
  12-16                    (B)  state agency organizational and personnel
  12-17  changes.
  12-18        SECTION 3.  Subchapter B, Chapter 23, Tax Code, is amended by
  12-19  adding Section 23.11 to read as follows:
  12-20        Sec. 23.11.  GOVERNMENTAL ACTION THAT CONSTITUTES TAKING.  In
  12-21  appraising private real property, the effect of a governmental
  12-22  action on the market value of private real property as determined
  12-23  in a proceeding under Chapter 2007, Government Code, shall be taken
  12-24  into consideration by the chief appraiser in determining the market
  12-25  value of the property.
  12-26        SECTION 4.  The attorney general shall file the guidelines
  12-27  for publication as required by Section 2007.041, Government Code,
   13-1  as added by this Act, not later than January 1, 1996.
   13-2        SECTION 5.  Before the 75th Legislature convenes, the
   13-3  comptroller of public accounts shall:
   13-4              (1)  report to the governor, lieutenant governor,
   13-5  speaker of the house of representatives, and attorney general
   13-6  regarding state agency compliance with the takings impact
   13-7  assessment procedures prescribed by Section 2007.043, Government
   13-8  Code, as added by this Act; and
   13-9              (2)  make recommendations for improving the takings
  13-10  impact assessment process.
  13-11        SECTION 6.  (a)  Except as provided by Subsections (b) and
  13-12  (c) of this section, this Act takes effect September 1, 1995.
  13-13        (b)  Sections 2007.042 and 2007.043, Government Code, as
  13-14  added by this Act, take effect January 1, 1996, and apply only to a
  13-15  governmental action described in Section 2007.003(a)(1) through
  13-16  (3), Government Code, as added by this Act, that is first proposed
  13-17  to be taken on or after that date.
  13-18        (c)  Section 2007.021, Government Code, as added by this Act,
  13-19  applies to:
  13-20              (1)  a governmental action described in Section
  13-21  2007.003(a)(1) through (3), Government Code, as added by this Act,
  13-22  that is first proposed on or after September 1, 1995.
  13-23              (2)  a governmental action described in Section
  13-24  2007.003(a)(4), Government Code, as added by this Act, if the
  13-25  action is initiated after September 1, 1995.
  13-26        SECTION 7.  The importance of this legislation and the
  13-27  crowded condition of the calendars in both houses create an
   14-1  emergency and an imperative public necessity that the
   14-2  constitutional rule requiring bills to be read on three several
   14-3  days in each house be suspended, and this rule is hereby suspended.