S.B. No. 14
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:
2-5 (A) a governmental action that affects private
2-6 real property, in whole or in part or temporarily or permanently,
2-7 in a manner that requires the governmental entity to compensate the
2-8 private real property owner as provided by the Fifth and Fourteenth
2-9 Amendments to the United States Constitution or Section 17 or 19,
2-10 Article I, Texas Constitution; or
2-11 (B) a governmental action that:
2-12 (i) affects an owner's private real
2-13 property that is the subject of the governmental action, in whole
2-14 or in part or temporarily or permanently, in a manner that
2-15 restricts or limits the owner's right to the property that would
2-16 otherwise exist in the absence of the governmental action; and
2-17 (ii) is the producing cause of a reduction
2-18 of at least 25 percent in the market value of the affected private
2-19 real property, determined by comparing the market value of the
2-20 property as if the governmental action is not in effect and the
2-21 market value of the property determined as if the governmental
2-22 action is in effect.
2-23 Sec. 2007.003. APPLICABILITY. (a) This chapter applies
2-24 only to the following governmental actions:
2-25 (1) the adoption or issuance of an ordinance, rule,
2-26 regulatory requirement, resolution, policy, guideline, or similar
2-27 measure;
3-1 (2) an action that imposes a physical invasion or
3-2 requires a dedication or exaction of private real property;
3-3 (3) an action by a municipality that has effect in the
3-4 extraterritorial jurisdiction of the municipality, excluding
3-5 annexation, and that enacts or enforces an ordinance, rule,
3-6 regulation, or plan that does not impose identical requirements or
3-7 restrictions in the entire extraterritorial jurisdiction of the
3-8 municipality; and
3-9 (4) enforcement of a governmental action listed in
3-10 Subdivisions (1) through (3), whether the enforcement of the
3-11 governmental action is accomplished through the use of permitting,
3-12 citations, orders, judicial or quasi-judicial proceedings, or other
3-13 similar means.
3-14 (b) This chapter does not apply to the following
3-15 governmental actions:
3-16 (1) an action by a municipality except as provided by
3-17 Subsection (a)(3);
3-18 (2) a lawful forfeiture or seizure of contraband as
3-19 defined by Article 59.01, Code of Criminal Procedure;
3-20 (3) a lawful seizure of property as evidence of a
3-21 crime or violation of law;
3-22 (4) an action, including an action of a political
3-23 subdivision, that is reasonably taken to fulfill an obligation
3-24 mandated by federal law or an action of a political subdivision
3-25 that is reasonably taken to fulfill an obligation mandated by state
3-26 law;
3-27 (5) the discontinuance or modification of a program or
4-1 regulation that provides a unilateral expectation that does not
4-2 rise to the level of a recognized interest in private real
4-3 property;
4-4 (6) an action taken to prohibit or restrict a
4-5 condition or use of private real property if the governmental
4-6 entity proves that the condition or use constitutes a public or
4-7 private nuisance as defined by background principles of nuisance
4-8 and property law of this state;
4-9 (7) an action taken out of a reasonable good faith
4-10 belief that the action is necessary to prevent a grave and
4-11 immediate threat to life or property;
4-12 (8) a formal exercise of the power of eminent domain;
4-13 (9) an action taken under a state mandate to prevent
4-14 waste of oil and gas, protect correlative rights of owners of
4-15 interests in oil or gas, or prevent pollution related to oil and
4-16 gas activities;
4-17 (10) a rule or proclamation adopted for the purpose of
4-18 regulating water safety, hunting, fishing, or control of
4-19 nonindigenous or exotic aquatic resources;
4-20 (11) an action taken by a political subdivision:
4-21 (A) to regulate construction in an area
4-22 designated under law as a floodplain;
4-23 (B) to regulate on-site sewage facilities;
4-24 (C) under the political subdivisions's statutory
4-25 authority to prevent waste or protect rights of owners of interest
4-26 in groundwater; or
4-27 (D) to prevent subsidence;
5-1 (12) the appraisal of property for purposes of ad
5-2 valorem taxation;
5-3 (13) an action that:
5-4 (A) is taken in response to a real and
5-5 substantial threat to public health and safety;
5-6 (B) is designed to significantly advance the
5-7 health and safety purpose; and
5-8 (C) does not impose a greater burden than is
5-9 necessary to achieve the health and safety purpose; or
5-10 (14) an action or rulemaking undertaken by the Public
5-11 Utility Commission of Texas to order or require the location or
5-12 placement of telecommunications equipment owned by another party on
5-13 the premises of a certificated local exchange company.
5-14 (c) Sections 2007.021 and 2007.022 do not apply to the
5-15 enforcement or implementation of a statute, ordinance, order, rule,
5-16 regulation, requirement, resolution, policy, guideline, or similar
5-17 measure that was in effect September 1, 1995, and that prevents the
5-18 pollution of a reservoir or an aquifer designated as a sole source
5-19 aquifer under the federal Safe Drinking Water Act (42 U.S.C.
5-20 Section 300h-3(e)).
5-21 (d) This chapter applies to a governmental action taken by a
5-22 county only if the action is taken on or after September 1, 1997.
5-23 (e) This chapter does not apply to the enforcement or
5-24 implementation of Subchapter B, Chapter 61, Natural Resources Code,
5-25 as it existed on September 1, 1995, or to the enforcement or
5-26 implementation of any rule or similar measure that was adopted
5-27 under that subchapter and was in existence on September 1, 1995.
6-1 Sec. 2007.004. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION
6-2 TO SUE. (a) Sovereign immunity to suit and liability is waived
6-3 and abolished to the extent of liability created by this chapter.
6-4 (b) This section does not authorize a person to execute a
6-5 judgment against property of the state or a governmental entity.
6-6 Sec. 2007.005. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154,
6-7 Civil Practice and Remedies Code, applies to a suit filed under
6-8 this chapter.
6-9 Sec. 2007.006. CUMULATIVE REMEDIES. (a) The provisions of
6-10 this chapter are not exclusive. The remedies provided by this
6-11 chapter are in addition to other procedures or remedies provided by
6-12 law.
6-13 (b) A person may not recover under this chapter and also
6-14 recover under another law or in an action at common law for the
6-15 same economic loss.
6-16 (Sections 2007.007 to 2007.020 reserved for expansion
6-17 SUBCHAPTER B. ACTION TO DETERMINE TAKING
6-18 Sec. 2007.021. SUIT AGAINST POLITICAL SUBDIVISION. (a) A
6-19 private real property owner may bring suit under this subchapter to
6-20 determine whether the governmental action of a political
6-21 subdivision results in a taking under this chapter. A suit under
6-22 this subchapter must be filed in a district court in the county in
6-23 which the private real property owner's affected property is
6-24 located. If the affected private real property is located in more
6-25 than one county, the private real property owner may file suit in
6-26 any county in which the affected property is located.
6-27 (b) A suit under this subchapter must be filed not later
7-1 than the 180th day after the date the private real property owner
7-2 knew or should have known that the governmental action restricted
7-3 or limited the owner's right in the private real property.
7-4 Sec. 2007.022. ADMINISTRATIVE PROCEEDING AGAINST STATE
7-5 AGENCY. (a) A private real property owner may file a contested
7-6 case with a state agency to determine whether a governmental action
7-7 of the state agency results in a taking under this chapter.
7-8 (b) A contested case must be filed with the agency not later
7-9 than the 180th day after the date the private real property owner
7-10 knew or should have known that the governmental action restricted
7-11 or limited the owner's right in the private real property.
7-12 (c) A contested case filed under this section is subject to
7-13 Chapter 2001 except to the extent of a conflict with this
7-14 subchapter.
7-15 Sec. 2007.023. ENTITLEMENT TO INVALIDATION OF GOVERNMENTAL
7-16 ACTION. (a) Whether a governmental action results in a taking is
7-17 a question of fact.
7-18 (b) If the trier of fact in a suit or contested case filed
7-19 under this subchapter finds that the governmental action is a
7-20 taking under this chapter, the private real property owner is only
7-21 entitled to, and the governmental entity is only liable for,
7-22 invalidation of the governmental action or the part of the
7-23 governmental action resulting in the taking.
7-24 Sec. 2007.024. JUDGMENT OR FINAL DECISION OR ORDER.
7-25 (a) The court's judgment in favor of a private real property owner
7-26 under Section 2007.021 or a final decision or order issued under
7-27 Section 2007.022 that determines that a taking has occurred shall
8-1 order the governmental entity to rescind the governmental action,
8-2 or the part of the governmental action resulting in the taking, as
8-3 applied to the private real property owner not later than the 30th
8-4 day after the date the judgment is rendered or the decision or
8-5 order is issued.
8-6 (b) The judgment or final decision or order shall include a
8-7 fact finding that determines the monetary damages suffered by the
8-8 private real property owner as a result of the taking. The amount
8-9 of damages is determined from the date of the taking.
8-10 (c) A governmental entity may elect to pay the damages as
8-11 compensation to the private real property owner who prevails in a
8-12 suit or contested case filed under this subchapter. Sovereign
8-13 immunity to liability is waived to the extent the governmental
8-14 entity elects to pay compensation under this subsection.
8-15 (d) If a governmental entity elects to pay compensation to
8-16 the private real property owner:
8-17 (1) the court that rendered the judgment in the suit
8-18 or the state agency that issued the final order or decision in the
8-19 case shall withdraw the part of the judgment or final decision or
8-20 order rescinding the governmental action; and
8-21 (2) the governmental entity shall pay to the owner the
8-22 damages as determined in the judgment or final order not later than
8-23 the 30th day after the date the judgment is rendered or the final
8-24 decision or order is issued.
8-25 (e) If the governmental entity does not pay compensation to
8-26 the private real property owner as provided by Subsection (d), the
8-27 court or the state agency shall reinstate the part of the judgment
9-1 or final decision or order previously withdrawn.
9-2 (f) A state agency that elects to pay compensation to the
9-3 private real property owner shall pay the compensation from funds
9-4 appropriated to the agency.
9-5 Sec. 2007.025. APPEAL. (a) A person aggrieved by a
9-6 judgment rendered in a suit filed under Section 2007.021 may appeal
9-7 as provided by law.
9-8 (b) A person who has exhausted all administrative remedies
9-9 available within the state agency and is aggrieved by a final
9-10 decision or order in a contested case filed under Section 2007.022
9-11 is entitled to judicial review under Chapter 2001. Review by a
9-12 court under this subsection is by trial de novo.
9-13 (c) If a private real property owner prevails in a suit or
9-14 contested case filed under this subchapter and the governmental
9-15 entity appeals, the court or the state agency shall enjoin the
9-16 governmental entity from invoking the governmental action or the
9-17 part of the governmental action resulting in the taking, pending
9-18 the appeal of the suit or contested case.
9-19 Sec. 2007.026. FEES AND COSTS. (a) The court or the state
9-20 agency shall award a private real property owner who prevails in a
9-21 suit or contested case filed under this subchapter reasonable and
9-22 necessary attorney's fees and court costs.
9-23 (b) The court or the state agency shall award a governmental
9-24 entity that prevails in a suit or contested case filed under this
9-25 subchapter reasonable and necessary attorney's fees and court
9-26 costs.
9-27 (Sections 2007.027 to 2007.040 reserved for expansion
10-1 SUBCHAPTER C. REQUIREMENTS FOR PROPOSED GOVERNMENTAL ACTION
10-2 Sec. 2007.041. GUIDELINES. (a) The attorney general shall
10-3 prepare guidelines to assist governmental entities in identifying
10-4 and evaluating those governmental actions described in Section
10-5 2007.003(a)(1) through (3) that may result in a taking.
10-6 (b) The attorney general shall file the guidelines with the
10-7 secretary of state for publication in the Texas Register in the
10-8 manner prescribed by Chapter 2002.
10-9 (c) The attorney general shall review the guidelines at
10-10 least annually and revise the guidelines as necessary to ensure
10-11 consistency with the actions of the legislature and the decisions
10-12 of the United States Supreme Court and the supreme court of this
10-13 state.
10-14 (d) A person may make comments or suggestions or provide
10-15 information to the attorney general concerning the guidelines. The
10-16 attorney general shall consider the comments, suggestions, and
10-17 information in the annual review process required by this
10-18 section.
10-19 (e) Material provided to the attorney general under
10-20 Subsection (d) is public information.
10-21 Sec. 2007.042. PUBLIC NOTICE. (a) A political subdivision
10-22 that proposes to engage in a governmental action described in
10-23 Section 2007.003(a)(1) through (3) that may result in a taking
10-24 shall provide at least 30 days' notice of its intent to engage in
10-25 the proposed action by providing a reasonably specific description
10-26 of the proposed action in a notice published in a newspaper of
10-27 general circulation published in the county in which affected
11-1 private real property is located. If a newspaper of general
11-2 circulation is not published in that county, the political
11-3 subdivision shall publish a notice in a newspaper of general
11-4 circulation located in a county adjacent to the county in which
11-5 affected private real property is located. The political
11-6 subdivision shall, at a minimum, include in the notice a reasonably
11-7 specific summary of the takings impact assessment that was prepared
11-8 as required by this subchapter and the name of the official of the
11-9 political subdivision from whom a copy of the full assessment may
11-10 be obtained.
11-11 (b) A state agency that proposes to engage in a governmental
11-12 action described in Section 2007.003(a)(1) or (2) that may result
11-13 in a taking shall:
11-14 (1) provide notice in the manner prescribed by Section
11-15 2001.023; and
11-16 (2) file with the secretary of state for publication
11-17 in the Texas Register in the manner prescribed by Chapter 2002 a
11-18 reasonably specific summary of the takings impact assessment that
11-19 was prepared by the agency as required by this subchapter.
11-20 Sec. 2007.043. TAKINGS IMPACT ASSESSMENT. (a) A
11-21 governmental entity shall prepare a written takings impact
11-22 assessment of a proposed governmental action described in Section
11-23 2007.003(a)(1) through (3) that complies with the evaluation
11-24 guidelines developed by the attorney general under Section 2007.041
11-25 before the governmental entity provides the public notice required
11-26 under Section 2007.042.
11-27 (b) The takings impact assessment must:
12-1 (1) describe the specific purpose of the proposed
12-2 action and identify:
12-3 (A) whether and how the proposed action
12-4 substantially advances its stated purpose; and
12-5 (B) the burdens imposed on private real property
12-6 and the benefits to society resulting from the proposed use of
12-7 private real property;
12-8 (2) determine whether engaging in the proposed
12-9 governmental action will constitute a taking; and
12-10 (3) describe reasonable alternative actions that could
12-11 accomplish the specified purpose and compare, evaluate, and
12-12 explain:
12-13 (A) how an alternative action would further the
12-14 specified purpose; and
12-15 (B) whether an alternative action would
12-16 constitute a taking.
12-17 (c) A takings impact assessment prepared under this section
12-18 is public information.
12-19 Sec. 2007.044. SUIT TO INVALIDATE GOVERNMENTAL ACTION.
12-20 (a) A governmental action requiring a takings impact assessment is
12-21 void if an assessment is not prepared. A private real property
12-22 owner affected by a governmental action taken without the
12-23 preparation of a takings impact assessment as required by this
12-24 subchapter may bring suit for a declaration of the invalidity of
12-25 the governmental action.
12-26 (b) A suit under this section must be filed in a district
12-27 court in the county in which the private real property owner's
13-1 affected property is located. If the affected property is located
13-2 in more than one county, the private real property owner may file
13-3 suit in any county in which the affected property is located.
13-4 (c) The court shall award a private real property owner who
13-5 prevails in a suit under this section reasonable and necessary
13-6 attorney's fees and court costs.
13-7 Sec. 2007.045. UPDATING OF CERTAIN ASSESSMENTS REQUIRED. A
13-8 state agency that proposes to adopt a governmental action described
13-9 in Section 2007.003(a)(1) or (2) that may result in a taking as
13-10 indicated by the takings impact assessment shall update the
13-11 assessment if the action is not adopted before the 180th day after
13-12 the date the notice is given as required by Section 2001.023.
13-13 SECTION 2. Section 2002.011, Government Code, is amended to
13-14 read as follows:
13-15 Sec. 2002.011. TEXAS REGISTER. The secretary of state shall
13-16 compile, index, cross-index to statute, and publish a publication
13-17 to be known as the Texas Register. The register shall contain:
13-18 (1) notices of proposed rules issued and filed in the
13-19 office of the secretary of state as provided by Subchapter B of
13-20 Chapter 2001;
13-21 (2) the text of rules adopted and filed in the office
13-22 of the secretary of state;
13-23 (3) notices of open meetings issued and filed in the
13-24 office of the secretary of state as provided by law;
13-25 (4) executive orders issued by the governor;
13-26 (5) summaries of requests for opinions of the attorney
13-27 general and of the State Ethics Advisory Commission;
14-1 (6) summaries of opinions of the attorney general and
14-2 of the State Ethics Advisory Commission; <and>
14-3 (7) guidelines prepared by the attorney general under
14-4 Section 2007.041;
14-5 (8) notices relating to the preparation of takings
14-6 impact assessments as provided by Section 2007.043; and
14-7 (9) other information of general interest to the
14-8 public of this state, including:
14-9 (A) federal legislation or regulations affecting
14-10 the state or a state agency; and
14-11 (B) state agency organizational and personnel
14-12 changes.
14-13 SECTION 3. Subchapter B, Chapter 23, Tax Code, is amended by
14-14 adding Section 23.11 to read as follows:
14-15 Sec. 23.11. GOVERNMENTAL ACTION THAT CONSTITUTES TAKING. In
14-16 appraising private real property, the effect of a governmental
14-17 action on the market value of private real property as determined
14-18 in a suit or contested case filed under Chapter 2007, Government
14-19 Code, shall be taken into consideration by the chief appraiser in
14-20 determining the market value of the property.
14-21 SECTION 4. The attorney general shall file the guidelines
14-22 for publication as required by Section 2007.041, Government Code,
14-23 as added by this Act, not later than January 1, 1996.
14-24 SECTION 5. Before the 75th Legislature convenes, the
14-25 comptroller of public accounts shall:
14-26 (1) report to the governor, lieutenant governor,
14-27 speaker of the house of representatives, and attorney general
15-1 regarding state agency compliance with the takings impact
15-2 assessment procedures prescribed by Section 2007.043, Government
15-3 Code, as added by this Act, and the costs to governmental entities
15-4 associated with implementation of this Act; and
15-5 (2) make recommendations for improving the takings
15-6 impact assessment process.
15-7 SECTION 6. (a) Except as provided by Subsections (b) and
15-8 (c) of this section, this Act takes effect September 1, 1995.
15-9 (b) Sections 2007.042 and 2007.043, Government Code, as
15-10 added by this Act, take effect January 1, 1996, and apply only to a
15-11 governmental action described in Subdivisions (1) through (3),
15-12 Subsection (a), Section 2007.003, Government Code, as added by this
15-13 Act, that is first proposed to be taken on or after that date.
15-14 (c) Sections 2007.021 and 2007.022, Government Code, as
15-15 added by this Act, apply to:
15-16 (1) a governmental action described in Subdivisions
15-17 (1) through (3), Subsection (a), Section 2007.003, Government Code,
15-18 as added by this Act, that is first proposed on or after
15-19 September 1, 1995; and
15-20 (2) a governmental action described in Subdivision
15-21 (4), Subsection (a), Section 2007.003, Government Code, as added by
15-22 this Act, if the action is initiated after September 1, 1995.
15-23 SECTION 7. The importance of this legislation and the
15-24 crowded condition of the calendars in both houses create an
15-25 emergency and an imperative public necessity that the
15-26 constitutional rule requiring bills to be read on three several
15-27 days in each house be suspended, and this rule is hereby suspended.