74R11158 PAM-D
By Bivins, et al. S.B. No. 14
Substitute the following for S.B. No. 14:
By Combs C.S.S.B. No. 14
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protecting private real property rights from certain
1-3 actions of this state or a political subdivision of this state.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 10, Government Code, is amended
1-6 by adding Chapter 2007 to read as follows:
1-7 CHAPTER 2007. GOVERNMENTAL ACTION AFFECTING PRIVATE
1-8 PROPERTY RIGHTS
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 2007.001. SHORT TITLE. This chapter may be cited as
1-11 the Private Real Property Rights Preservation Act.
1-12 Sec. 2007.002. DEFINITIONS. In this chapter:
1-13 (1) "Governmental entity" means:
1-14 (A) a board, commission, council, department, or
1-15 other agency in the executive branch of state government that is
1-16 created by constitution or statute, including an institution of
1-17 higher education as defined by Section 61.003, Education Code; or
1-18 (B) a political subdivision of this state.
1-19 (2) "Market value" means the price a willing buyer
1-20 would pay a willing seller after considering all factors in the
1-21 marketplace that influence the price of private real property.
1-22 (3) "Owner" means a person with legal or equitable
1-23 title to affected private real property at the time a taking
1-24 occurs.
2-1 (4) "Private real property" means an interest in real
2-2 property, including a groundwater or surface water right of any
2-3 kind, that is not owned by the federal government, this state, or a
2-4 political subdivision of this state.
2-5 (5) "Taking" means:
2-6 (A) a governmental action that affects private
2-7 real property in a manner that requires the governmental entity to
2-8 compensate the private real property owner as provided by the Fifth
2-9 and Fourteenth Amendments to the United States Constitution or
2-10 Section 17 or 19, Article I, Texas Constitution; and
2-11 (B) a governmental action taken or the
2-12 enforcement of a governmental action taken on or after September 1,
2-13 1995, that:
2-14 (i) affects the owner's private real
2-15 property in a manner that restricts or limits a right to private
2-16 real property that would otherwise exist in the absence of the
2-17 governmental action; and
2-18 (ii) is the cause of a reduction in the
2-19 market value of at least 25 percent of the affected private real
2-20 property.
2-21 Sec. 2007.003. APPLICABILITY. (a) This chapter applies
2-22 only to the following governmental actions:
2-23 (1) the adoption or issuance of an ordinance, order,
2-24 rule, regulatory requirement, resolution, policy, guideline, or
2-25 similar measure;
2-26 (2) an action that imposes a physical invasion or
2-27 requires a dedication or exaction of private real property; or
3-1 (3) an action by a municipality that has effect in the
3-2 extraterritorial jurisdiction of the municipality and that does not
3-3 impose identical requirements or restrictions in the entire
3-4 extraterritorial jurisdiction of the municipality.
3-5 (b) This chapter does not apply to the following
3-6 governmental actions:
3-7 (1) municipal zoning;
3-8 (2) an action by a municipality except as provided by
3-9 Subsection (a)(3);
3-10 (3) a lawful forfeiture or seizure of contraband as
3-11 defined by Section 59.01, Code of Criminal Procedure;
3-12 (4) a lawful seizure of property as evidence of a
3-13 crime or violation of law;
3-14 (5) an action that is reasonably taken to fulfill an
3-15 obligation mandated by federal law;
3-16 (6) the discontinuance or modification of a program or
3-17 regulation that provides a unilateral expectation that does not
3-18 rise to the level of a recognized interest in private real
3-19 property;
3-20 (7) an action taken to prohibit or restrict a
3-21 condition or use of private real property if the governmental
3-22 entity proves that the condition or use constitutes a public or
3-23 private nuisance as defined by background principles of nuisance
3-24 and property law of this state;
3-25 (8) an action taken out of a reasonable good faith
3-26 belief that the action is necessary to prevent a grave and
3-27 immediate threat to life or property;
4-1 (9) an action taken by a joint airport board;
4-2 (10) a formal exercise of the power of eminent domain;
4-3 (11) an action taken by a governmental entity under
4-4 the entity's statutory duty to prevent waste of oil and gas or
4-5 protect correlative rights of owners of interests in oil or gas;
4-6 (12) a rule or proclamation adopted by the Parks and
4-7 Wildlife Commission for purposes of regulating hunting and fishing;
4-8 (13) an action taken by a political subdivision:
4-9 (A) under the political subdivision's statutory
4-10 duty to prevent waste or protect correlative rights of owners of
4-11 interest in groundwater; or
4-12 (B) prevent subsidence;
4-13 (14) the appraisal of property for purposes of ad
4-14 valorem taxation; or
4-15 (15) an action that:
4-16 (A) is taken in response to a real and
4-17 substantial threat to public health and safety;
4-18 (B) is designed to significantly advance the
4-19 health and safety purpose; and
4-20 (C) does not impose a greater burden than is
4-21 necessary to achieve the health and safety purpose.
4-22 Sec. 2007.004. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION
4-23 TO SUE. (a) Sovereign immunity of a political subdivision to suit
4-24 and liability is waived and abolished to the extent of liability
4-25 created by this chapter.
4-26 (b) Sovereign immunity of a state agency to liability is
4-27 waived and abolished to the extent of liability created by this
5-1 chapter, but immunity to suit of a state agency for compensation is
5-2 reserved. Waiver of immunity to suit for compensation must be
5-3 granted by legislative resolution pursuant to Chapter 107, Civil
5-4 Practice and Remedies Code.
5-5 (c) Sovereign immunity to suit is waived and abolished in
5-6 relation to a state agency for:
5-7 (1) the determination of whether a governmental action
5-8 of a state agency is a taking under this chapter in a final
5-9 decision or order, or the appeal of a final decision or order,
5-10 issued in a contested case filed under this chapter;
5-11 (2) the invalidation of a governmental action of a
5-12 state agency in a final decision or order, or the appeal of a final
5-13 decision or order, issued in a contested case filed under this
5-14 chapter; and
5-15 (3) the invalidation of a governmental action of a
5-16 state agency that fails to prepare a takings impact assessment as
5-17 required by this chapter.
5-18 (d) This section does not authorize a person to execute a
5-19 judgment against property of the state or a governmental entity.
5-20 Sec. 2007.005. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154,
5-21 Civil Practice and Remedies Code, applies to a suit filed under
5-22 this chapter.
5-23 Sec. 2007.006. CUMULATIVE REMEDIES. (a) The provisions of
5-24 this chapter are not exclusive. The remedies provided by this
5-25 chapter are in addition to other procedures or remedies provided by
5-26 law.
5-27 (b) A person may not recover under this chapter and also
6-1 recover under another law or in an action at common law for the
6-2 same economic loss.
6-3 (Sections 2007.007-2007.020 reserved for expansion
6-4 SUBCHAPTER B. ACTION TO DETERMINE TAKING
6-5 Sec. 2007.021. SUIT AGAINST POLITICAL SUBDIVISION. (a) A
6-6 private real property owner may bring suit under this subchapter to
6-7 determine whether the governmental action of a political
6-8 subdivision results in a taking under this chapter. A suit under
6-9 this subchapter must be filed in a district court in the county in
6-10 which the private real property owner's affected property is
6-11 located. If the affected private real property is located in more
6-12 than one county, the private real property owner may file suit in
6-13 any county in which the affected property is located.
6-14 (b) A suit under this subchapter must be filed not later
6-15 than two years after the date the private real property owner knew
6-16 or should have known that the governmental action restricted or
6-17 limited the owner's right in the private real property.
6-18 Sec. 2007.022. ENTITLEMENT TO COMPENSATION FROM POLITICAL
6-19 SUBDIVISION. (a) Whether a governmental action of a political
6-20 subdivision results in a taking is a question of fact.
6-21 (b) If the trier of fact finds that the governmental action
6-22 of a political subdivision results in a taking, the private real
6-23 property owner is entitled to, and the political subdivision is
6-24 liable for, compensation for the taking as provided by this
6-25 subchapter.
6-26 Sec. 2007.023. JUDGMENT AGAINST POLITICAL SUBDIVISION. The
6-27 court's judgment in favor of a private real property owner in a
7-1 suit under Section 2007.021 shall:
7-2 (1) establish the amount of compensation, fees, costs,
7-3 and interest owed by the political subdivision under this
7-4 subchapter;
7-5 (2) order the political subdivision to certify to the
7-6 court whether all compensation, fees, costs, and interest owed
7-7 under this subchapter have been paid; and
7-8 (3) enjoin the political subdivision from enforcing or
7-9 continuing the governmental action as applied to the private real
7-10 property owner until the date the political subdivision certifies
7-11 to the court that all compensation, fees, costs, and interest owed
7-12 under this subchapter have been paid.
7-13 Sec. 2007.024. ADMINISTRATIVE PROCEEDING AGAINST STATE
7-14 AGENCY. (a) A private real property owner may file a contested
7-15 case with a state agency to determine whether the governmental
7-16 action of a state agency results in a taking under this chapter.
7-17 (b) A contested case must be filed with the agency not later
7-18 than the 180th day after the date the private real property owner
7-19 knew or should have known that the governmental action restricted
7-20 or limited the owner's right in private real property.
7-21 (c) A contested case filed under this section is subject to
7-22 Chapter 2001 except to the extent of a conflict with this
7-23 subchapter.
7-24 Sec. 2007.025. ENTITLEMENT TO REMEDY AGAINST A STATE AGENCY.
7-25 (a) Whether a governmental action of a state agency results in a
7-26 taking is a question of fact.
7-27 (b) If the trier of fact in a contested case finds that the
8-1 governmental action of a state agency is a taking under this
8-2 chapter, the private real property owner is entitled to, and the
8-3 state agency is liable for:
8-4 (1) invalidation of the governmental action of the
8-5 state agency; or
8-6 (2) compensation for a taking as provided by this
8-7 subchapter.
8-8 Sec. 2007.026. FINAL DECISION OR ORDER AND APPEAL. (a)
8-9 Except as provided by Subsection (c), a final decision or order
8-10 issued under Section 2007.024 shall order the agency to rescind the
8-11 governmental action as applied to the private real property owner
8-12 not later than the 60th day after the date the decision or order is
8-13 issued.
8-14 (b) A private real property owner may recover compensation
8-15 under Section 2007.025(b)(2) only if waiver of immunity to suit for
8-16 compensation is granted by legislative resolution pursuant to
8-17 Chapter 107, Civil Practice and Remedies Code. Compensation may be
8-18 paid only from an appropriation made expressly for that purpose.
8-19 (c) If the legislature has waived sovereign immunity to suit
8-20 for compensation for a taking under this chapter, the final
8-21 decision or order shall:
8-22 (1) establish the amount of compensation, fees, costs,
8-23 and interest owed by the state agency under this subchapter;
8-24 (2) order the state agency to certify whether all
8-25 compensation, fees, costs, and interest owed under this subchapter
8-26 have been paid; and
8-27 (3) enjoin the state agency from enforcing or
9-1 continuing the governmental action as applied to the private real
9-2 property owner until the date the state agency certifies that all
9-3 compensation, fees, costs, and interest owed under this subchapter
9-4 have been paid.
9-5 (d) A person who has exhausted all administrative remedies
9-6 available within the state agency and is aggrieved by a final
9-7 decision or order issued in a contested case under Section 2007.024
9-8 is entitled to judicial review under Chapter 2001.
9-9 Sec. 2007.027. COMPENSATION AND COSTS. (a) The
9-10 compensation owed to the private real property owner in a suit or
9-11 contested case filed under this subchapter is determined from the
9-12 date of the taking and is the difference between the market value
9-13 of the private real property determined as if the governmental
9-14 action is not in effect and the market value of the private real
9-15 property determined as if the governmental action is in effect.
9-16 (b) If the trier of fact determines that a governmental
9-17 action resulted in a taking, and the governmental action has ceased
9-18 or has been rescinded, amended, invalidated, or repealed, the
9-19 private real property owner may recover compensation in an amount
9-20 equal to the temporary or permanent economic loss sustained while
9-21 the governmental action was in effect.
9-22 (c) The court or the state agency shall award a private real
9-23 property owner who prevails in a suit or contested case filed under
9-24 this subchapter reasonable and necessary attorney's fees, court
9-25 costs, and prejudgment interest. Prejudgment interest under this
9-26 subsection is calculated from the date of the taking.
9-27 (Sections 2007.028-2007.040 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 governmental actions that may result in a taking.
10-5 (b) The attorney general shall file the guidelines with the
10-6 secretary of state for publication in the Texas Register in the
10-7 manner prescribed by Chapter 2002.
10-8 (c) The attorney general shall review the guidelines at
10-9 least annually and revise the guidelines as necessary to ensure
10-10 consistency with the actions of the legislature and the decisions
10-11 of the United States Supreme Court and the supreme court of this
10-12 state.
10-13 (d) A person may make comments or suggestions or provide
10-14 information to the attorney general concerning the guidelines. The
10-15 attorney general shall consider the comments, suggestions, and
10-16 information in the annual review process required by this section.
10-17 (e) Material provided to the attorney general under
10-18 Subsection (d) is public information.
10-19 Sec. 2007.042. PUBLIC NOTICE. (a) A political subdivision
10-20 that proposes to engage in a governmental action that may result in
10-21 a taking shall provide at least 30 days' notice of its intent to
10-22 engage in the proposed action by providing a reasonably specific
10-23 description of the proposed action in a notice published in a
10-24 newspaper of general circulation published in the county in which
10-25 affected private real property is located. If a newspaper of
10-26 general circulation is not published in that county, the political
10-27 subdivision shall publish a notice in a newspaper of general
11-1 circulation located in a county adjacent to the county in which
11-2 affected private real property is located. The political
11-3 subdivision shall include in the notice a copy of the takings
11-4 impact assessment that was prepared by the political subdivision as
11-5 required by this subchapter.
11-6 (b) A state agency that proposes to engage in a governmental
11-7 action that may result in a taking shall:
11-8 (1) provide notice of the proposed action in the
11-9 manner prescribed by Section 2001.023; and
11-10 (2) file with the secretary of state for publication
11-11 in the Texas Register in the manner prescribed by Chapter 2002 a
11-12 copy of the takings impact assessment that was prepared by the
11-13 agency as required by this subchapter.
11-14 Sec. 2007.043. TAKINGS IMPACT ASSESSMENT. (a) Except as
11-15 provided by Subsection (b), a governmental entity shall prepare a
11-16 written takings impact assessment that complies with the evaluation
11-17 guidelines developed by the attorney general under Section 2007.041
11-18 before the governmental entity provides the public notice required
11-19 under Section 2007.042.
11-20 (b) A political subdivision is not required to prepare a
11-21 written assessment for an action taken by the political subdivision
11-22 that is reasonably taken to fulfill an obligation mandated by state
11-23 law but must prepare instead a statement that describes the state
11-24 law mandate and cites the statute or rule under which the mandate
11-25 is imposed.
11-26 (c) The assessment must:
11-27 (1) describe the specific purpose of the proposed
12-1 action and identify:
12-2 (A) whether and how the proposed action
12-3 substantially advances its stated purpose; and
12-4 (B) the burdens imposed on private real property
12-5 and the benefits to society resulting from the proposed use of
12-6 private real property;
12-7 (2) determine whether engaging in the governmental
12-8 action will constitute a taking; and
12-9 (3) describe reasonable alternative actions that could
12-10 accomplish the specified purpose and compare, evaluate, and
12-11 explain:
12-12 (A) how an alternative action would further the
12-13 specified purpose; and
12-14 (B) whether an alternative action would
12-15 constitute a taking.
12-16 (d) An assessment prepared under this section is public
12-17 information.
12-18 Sec. 2007.044. SUIT TO INVALIDATE GOVERNMENTAL ACTION. (a)
12-19 A governmental action requiring a takings impact assessment is void
12-20 if an assessment is not prepared. A private real property owner
12-21 affected by a governmental action taken without the preparation of
12-22 a takings impact assessment as required by this subchapter may
12-23 bring suit for a declaration of the invalidity of the governmental
12-24 action.
12-25 (b) A suit under this section must be filed in a court
12-26 described by Section 2007.021(a).
12-27 (c) The court shall award a private real property owner who
13-1 prevails in a suit under this section reasonable and necessary
13-2 attorney's fees and court costs.
13-3 Sec. 2007.045. STATE AGENCY RULEMAKING. A state agency that
13-4 proposes to adopt a rule that may result in a taking as indicated
13-5 by the takings impact assessment shall update the assessment if the
13-6 rule is not adopted before the 180th day after the date the notice
13-7 is given as required by Section 2001.023.
13-8 SECTION 2. Section 2002.011, Government Code, is amended to
13-9 read as follows:
13-10 Sec. 2002.011. Texas Register. The secretary of state shall
13-11 compile, index, cross-index to statute, and publish a publication
13-12 to be known as the Texas Register. The register shall contain:
13-13 (1) notices of proposed rules issued and filed in the
13-14 office of the secretary of state as provided by Subchapter B of
13-15 Chapter 2001;
13-16 (2) the text of rules adopted and filed in the office
13-17 of the secretary of state;
13-18 (3) notices of open meetings issued and filed in the
13-19 office of the secretary of state as provided by law;
13-20 (4) executive orders issued by the governor;
13-21 (5) summaries of requests for opinions of the attorney
13-22 general and of the State Ethics Advisory Commission;
13-23 (6) summaries of opinions of the attorney general and
13-24 of the State Ethics Advisory Commission;
13-25 (7) guidelines prepared by the attorney general under
13-26 Section 2007.041;
13-27 (8) takings impact assessments prepared as provided by
14-1 Section 2007.043; and
14-2 (9) <(7)> other information of general interest to the
14-3 public of this state, including:
14-4 (A) federal legislation or regulations affecting
14-5 the state or a state agency; and
14-6 (B) state agency organizational and personnel
14-7 changes.
14-8 SECTION 3. Subchapter B, Chapter 23, Tax Code, is amended by
14-9 adding Section 23.11 to read as follows:
14-10 Sec. 23.11. GOVERNMENTAL ACTION THAT CONSTITUTES TAKING. In
14-11 appraising private real property, the effect of a governmental
14-12 action on the market value of private real property as determined
14-13 in a proceeding under Chapter 2007, Government Code, shall be taken
14-14 into consideration by the chief appraiser in determining the market
14-15 value of the property.
14-16 SECTION 4. The attorney general shall file the guidelines
14-17 for publication as required by Section 2007.041, Government Code,
14-18 as added by this Act, not later than January 1, 1996.
14-19 SECTION 5. Before the 75th Legislature convenes, the
14-20 comptroller of public accounts shall report to the governor,
14-21 lieutenant governor, speaker of the house of representatives, and
14-22 attorney general regarding state agency compliance with the takings
14-23 impact assessment procedures prescribed by Section 2007.043,
14-24 Government Code, as added by this Act. The comptroller shall limit
14-25 the report to an analysis of state agency compliance with
14-26 procedural requirements, including the filing of public notice with
14-27 the secretary of state and the timely issuance of a takings impact
15-1 assessment. The comptroller may not engage in qualitative reviews
15-2 or evaluations of state agency actions.
15-3 SECTION 6. (a) Except as provided by Subsection (b) of this
15-4 section, this Act takes effect September 1, 1995.
15-5 (b) Sections 2007.042 and 2007.043, Government Code, as
15-6 added by this Act, take effect January 1, 1996.
15-7 SECTION 7. The importance of this legislation and the
15-8 crowded condition of the calendars in both houses create an
15-9 emergency and an imperative public necessity that the
15-10 constitutional rule requiring bills to be read on three several
15-11 days in each house be suspended, and this rule is hereby suspended.