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.