By Bivins, Sims, Armbrister S.B. No. 14
74R7740 PAM-F
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) "Owner" means a person with legal or equitable
1-20 title to affected private real property at the time a taking
1-21 occurs.
1-22 (3) "Market value" means the price a willing buyer
1-23 would pay a willing seller after considering all factors in the
1-24 marketplace that influence the price of private real property.
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 a governmental action that affects
2-6 private real property in a manner that requires the governmental
2-7 entity to compensate the private real property owner as provided by
2-8 this chapter, the Fifth or Fourteenth Amendment to the United
2-9 States Constitution, or Section 17 or 19, Article I, Texas
2-10 Constitution.
2-11 Sec. 2007.003. APPLICABILITY. (a) This chapter applies
2-12 only to the following governmental actions:
2-13 (1) the adoption or issuance of an ordinance, order,
2-14 rule, regulatory requirement, resolution, policy, guideline, or
2-15 similar measure;
2-16 (2) an action that requires a physical invasion,
2-17 dedication, or exaction of private real property; and
2-18 (3) an action by a municipality that applies in the
2-19 municipality's extraterritorial jurisdiction if:
2-20 (A) the action, on its face, restricts, limits,
2-21 or otherwise infringes an owner's right in private real property
2-22 without advancing a legitimate governmental interest;
2-23 (B) the action fails to apply equally to the
2-24 entirety of the municipality and the extraterritorial jurisdiction
2-25 of the municipality; or
2-26 (C) the action does not provide a method for
2-27 variance from the requirements of the action.
3-1 (b) This chapter does not apply to the following
3-2 governmental actions:
3-3 (1) municipal zoning;
3-4 (2) an action by a municipality except as provided by
3-5 Subsection (a)(3);
3-6 (3) a lawful forfeiture or seizure of contraband as
3-7 defined by Section 59.01, Code of Criminal Procedure;
3-8 (4) a lawful seizure of property as evidence of a
3-9 crime or violation of law;
3-10 (5) an action that is specifically mandated by federal
3-11 law;
3-12 (6) the discontinuance of a program or regulation that
3-13 provides a unilateral expectation that does not rise to the level
3-14 of a vested, recognized interest in private real property;
3-15 (7) an action taken to prohibit or restrict a
3-16 condition or use of private real property if the governmental
3-17 entity proves that the condition or use constitutes a public or
3-18 private nuisance as defined by background principles of nuisance
3-19 and property law of this state;
3-20 (8) an action taken out of actual necessity to prevent
3-21 a grave and immediate threat to life or property;
3-22 (9) a formal exercise of the power of eminent domain;
3-23 or
3-24 (10) an action taken by a governmental entity under
3-25 the entity's statutory duty to prevent waste of oil and gas or
3-26 protect correlative rights of owners of interests in oil or gas.
3-27 Sec. 2007.004. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION
4-1 TO SUE. (a) Sovereign immunity to suit and to liability is waived
4-2 and abolished to the extent of liability created by this chapter.
4-3 (b) A person that has a claim under this chapter may sue the
4-4 state or a governmental entity as provided by this chapter to:
4-5 (1) recover damages allowed by this chapter; or
4-6 (2) invalidate a governmental action.
4-7 Sec. 2007.005. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154,
4-8 Civil Practice and Remedies Code, applies to a suit filed under
4-9 this chapter.
4-10 Sec. 2007.006. CUMULATIVE REMEDIES. (a) The provisions of
4-11 this chapter are not exclusive. The remedies provided by this
4-12 chapter are in addition to other procedures or remedies provided by
4-13 law.
4-14 (b) A person may not recover under this chapter and also
4-15 recover under another law or in an action at common law for the
4-16 same economic loss.
4-17 (Sections 2007.007-2007.020 reserved for expansion
4-18 SUBCHAPTER B. STATUTORY SUIT FOR COMPENSATION
4-19 Sec. 2007.021. ENTITLEMENT TO COMPENSATION. (a) A private
4-20 real property owner is entitled to, and a governmental entity is
4-21 liable for, compensation under this subchapter if the governmental
4-22 entity takes a governmental action on or after September 1, 1995,
4-23 or enforces a governmental action regardless of the date taken,
4-24 that restricts, limits, or otherwise infringes a right to private
4-25 real property that would otherwise exist in the absence of the
4-26 governmental action, and the action is a producing cause of an
4-27 appreciable reduction in the market value of the affected private
5-1 real property.
5-2 (b) The state is liable under this subchapter for the
5-3 compensation owed a private real property owner as the result of a
5-4 taking by a political subdivision that is specifically mandated by
5-5 state law.
5-6 Sec. 2007.022. SUIT FOR COMPENSATION. (a) A private real
5-7 property owner may bring suit to recover compensation under this
5-8 subchapter. A suit under this subchapter must be filed in a court
5-9 that has jurisdiction of statutory eminent domain actions in the
5-10 county in which the private real property owner's affected property
5-11 is located. If the affected private real property is located in
5-12 more than one county, the private real property owner may file suit
5-13 in any county in which the affected property is located.
5-14 (b) A suit under this subchapter must be filed not later
5-15 than two years after the date the private real property owner knew
5-16 or should have known that the governmental action restricted,
5-17 limited, or otherwise infringed the owner's right in the private
5-18 real property.
5-19 Sec. 2007.023. COMPENSATION AND COSTS. (a) Whether a
5-20 governmental action results in a taking is a question of fact.
5-21 (b) The compensation owed to the private real property owner
5-22 in a suit under this subchapter is determined from the date of the
5-23 taking and is the difference between the market value of the
5-24 private real property determined as if the governmental action is
5-25 not in effect and the market value of the private real property
5-26 determined as if the governmental action is in effect.
5-27 (c) The trier of fact, in determining the diminution in
6-1 market value, may not consider an injury or benefit that is
6-2 sustained or enjoyed in similar degree by private real property
6-3 owners in the general community unless the governmental action
6-4 imposes a direct physical or legal restriction on the property's
6-5 use.
6-6 (d) If the trier of fact determines that a governmental
6-7 action resulted in a taking, and the governmental action has ceased
6-8 or has been rescinded, amended, invalidated, or repealed, the
6-9 private real property owner may recover compensation in an amount
6-10 equal to the temporary or permanent economic loss sustained while
6-11 the governmental action was in effect.
6-12 (e) The court shall award a private real property owner who
6-13 prevails in a suit under this subchapter reasonable and necessary
6-14 attorney's fees, expert witness fees, court costs, and prejudgment
6-15 interest. Prejudgment interest under this subsection is calculated
6-16 from the date of the taking.
6-17 Sec. 2007.024. JUDGMENT. (a) The court's judgment in favor
6-18 of a private real property owner in a suit under this subchapter
6-19 shall:
6-20 (1) order the governmental entity or attorney general,
6-21 as appropriate, to certify to the court whether all compensation,
6-22 fees, costs, and interest owed under this subchapter have been
6-23 paid; and
6-24 (2) enjoin the governmental entity from enforcing or
6-25 continuing the governmental action as applied to the private real
6-26 property owner until the date the governmental entity or attorney
6-27 general, as appropriate, certifies to the court that all
7-1 compensation, fees, costs, and interest owed under this subchapter
7-2 have been paid.
7-3 (b) A judgment awarding compensation to a private real
7-4 property owner who prevails in a suit against the state or a state
7-5 agency under this subchapter is subject to an appropriation by the
7-6 legislature.
7-7 (Sections 2007.025-2007.040 reserved for expansion
7-8 SUBCHAPTER C. REQUIREMENTS FOR PROPOSED GOVERNMENTAL ACTION
7-9 Sec. 2007.041. GUIDELINES. (a) The attorney general shall
7-10 prepare guidelines to assist governmental entities in identifying
7-11 and evaluating governmental actions that may result in a taking.
7-12 (b) The attorney general shall file the guidelines with the
7-13 secretary of state for publication in the Texas Register in the
7-14 manner prescribed by Chapter 2002.
7-15 (c) The attorney general shall review the guidelines at
7-16 least annually and revise the guidelines as necessary to ensure
7-17 consistency with the actions of the legislature and the decisions
7-18 of the United States Supreme Court and the supreme court of this
7-19 state.
7-20 (d) A person may make comments or suggestions or provide
7-21 information to the attorney general concerning the guidelines. The
7-22 attorney general shall consider the comments, suggestions, and
7-23 information in the annual review process required by this section.
7-24 (e) Material provided to the attorney general under
7-25 Subsection (d) is public information.
7-26 Sec. 2007.042. PUBLIC NOTICE. (a) A governmental entity
7-27 that proposes to engage in a governmental action that may result in
8-1 a taking shall provide at least 30 days' notice of its intent to
8-2 engage in the proposed action by providing a reasonably specific
8-3 description of the proposed action in a notice published in a
8-4 newspaper of general circulation published in the county in which
8-5 affected private real property is located. If a newspaper of
8-6 general circulation is not published in that county, the
8-7 governmental entity shall publish a notice in a newspaper of
8-8 general circulation located in a county adjacent to the county in
8-9 which affected private real property is located.
8-10 (b) In addition to the notice required by Subsection (a), a
8-11 state agency shall provide notice in the manner prescribed by
8-12 Section 2001.023.
8-13 Sec. 2007.043. TAKINGS IMPACT ASSESSMENT. (a) Except as
8-14 provided by Subsection (b), a governmental entity shall prepare a
8-15 written takings impact assessment that complies with the evaluation
8-16 guidelines developed by the attorney general under Section 2007.041
8-17 before the governmental entity provides the public notice required
8-18 under Section 2007.042.
8-19 (b) A political subdivision is not required to prepare a
8-20 written assessment for an action taken by the political subdivision
8-21 that is specifically mandated by state law but must prepare instead
8-22 a statement that describes the state law mandate and cites the
8-23 statute or rule under which the mandate is imposed.
8-24 (c) The assessment must:
8-25 (1) describe the specific purpose of the proposed
8-26 action, and identify:
8-27 (A) whether and how the proposed action
9-1 substantially advances its stated purpose; and
9-2 (B) the ratio of the burdens imposed on private
9-3 real property as to the benefits to society resulting from the
9-4 proposed use of private real property;
9-5 (2) determine whether engaging in the governmental
9-6 action will constitute a taking;
9-7 (3) estimate the amount of compensation a governmental
9-8 entity may be required to pay if the proposed action is adopted;
9-9 and
9-10 (4) describe reasonable alternative actions that could
9-11 accomplish the specified purpose and compare, evaluate, and
9-12 explain:
9-13 (A) how an alternative action would further the
9-14 specified purpose;
9-15 (B) whether an alternative action would
9-16 constitute a taking; and
9-17 (C) the amount of compensation, if any, a
9-18 governmental entity would be required to pay if an alternative
9-19 action were adopted.
9-20 (d) An assessment prepared under this section is public
9-21 information.
9-22 (e) On or before the date notice must be published under
9-23 Section 2007.042, the governmental entity shall file notice that
9-24 the takings impact assessment was prepared as required by this
9-25 subchapter with the secretary of state for publication in the Texas
9-26 Register in the manner prescribed by Chapter 2002.
9-27 Sec. 2007.044. SUIT TO INVALIDATE GOVERNMENTAL ACTION. (a)
10-1 A governmental action requiring a takings impact assessment is void
10-2 if an assessment is not prepared. A private real property owner
10-3 affected by a governmental action taken without the preparation of
10-4 a takings impact assessment as required by this subchapter may
10-5 bring suit for a declaration of the invalidity of the governmental
10-6 action.
10-7 (b) A suit under this section must be filed in a court
10-8 described by Section 2007.022(a).
10-9 (c) The court shall award a private real property owner who
10-10 prevails in a suit under this section reasonable and necessary
10-11 attorney's fees, expert witness fees, and court costs.
10-12 Sec. 2007.045. STATE AGENCY RULEMAKING. A state agency that
10-13 proposes to adopt a rule that may result in a taking as indicated
10-14 by the takings impact assessment shall update the assessment if the
10-15 rule is not adopted before the 180th day after the date the notice
10-16 is given as required by Section 2001.023.
10-17 SECTION 2. Section 2002.011, Government Code, is amended to
10-18 read as follows:
10-19 Sec. 2002.011. Texas Register. The secretary of state shall
10-20 compile, index, cross-index to statute, and publish a publication
10-21 to be known as the Texas Register. The register shall contain:
10-22 (1) notices of proposed rules issued and filed in the
10-23 office of the secretary of state as provided by Subchapter B of
10-24 Chapter 2001;
10-25 (2) the text of rules adopted and filed in the office
10-26 of the secretary of state;
10-27 (3) notices of open meetings issued and filed in the
11-1 office of the secretary of state as provided by law;
11-2 (4) executive orders issued by the governor;
11-3 (5) summaries of requests for opinions of the attorney
11-4 general and of the State Ethics Advisory Commission;
11-5 (6) summaries of opinions of the attorney general and
11-6 of the State Ethics Advisory Commission;
11-7 (7) guidelines prepared by the attorney general under
11-8 Section 2007.041;
11-9 (8) notices relating to the preparation of takings
11-10 impact assessments as provided by Section 2007.043; and
11-11 (9) <(7)> other information of general interest to the
11-12 public of this state, including:
11-13 (A) federal legislation or regulations affecting
11-14 the state or a state agency; and
11-15 (B) state agency organizational and personnel
11-16 changes.
11-17 SECTION 3. Subchapter B, Chapter 23, Tax Code, is amended by
11-18 adding Section 23.11 to read as follows:
11-19 Sec. 23.11. GOVERNMENTAL ACTION THAT CONSTITUTES TAKING. In
11-20 appraising private real property, the effect of a governmental
11-21 action on the market value of private real property as determined
11-22 in a proceeding under Chapter 2007, Government Code, shall be taken
11-23 into consideration by the chief appraiser in determining the market
11-24 value of the property.
11-25 SECTION 4. The attorney general shall file the guidelines
11-26 for publication as required by Section 2007.041, Government Code,
11-27 as added by this Act, not later than January 1, 1996.
12-1 SECTION 5. Before the 75th Legislature convenes, the
12-2 comptroller of public accounts shall:
12-3 (1) report to the governor, lieutenant governor,
12-4 speaker of the house of representatives, and attorney general
12-5 regarding state agency compliance with the takings impact
12-6 assessment procedures prescribed by Section 2007.043, Government
12-7 Code, as added by this Act; and
12-8 (2) make recommendations for improving the takings
12-9 impact assessment process.
12-10 SECTION 6. (a) Except as provided by Subsection (b) of this
12-11 section, this Act takes effect September 1, 1995.
12-12 (b) Sections 2007.042 and 2007.043, Government Code, as
12-13 added by this Act, take effect January 1, 1996.
12-14 SECTION 7. The importance of this legislation and the
12-15 crowded condition of the calendars in both houses create an
12-16 emergency and an imperative public necessity that the
12-17 constitutional rule requiring bills to be read on three several
12-18 days in each house be suspended, and this rule is hereby suspended.