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.