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.