1-1 By: Bivins, et al. S.B. No. 14
1-2 (In the Senate - Filed March 13, 1995; March 15, 1995, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 7, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 1; April 7, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 14 By: Galloway
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to protecting private real property rights from certain
1-11 actions of this state or a political subdivision of this state.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subtitle A, Title 10, Government Code, is amended
1-14 by adding Chapter 2007 to read as follows:
1-15 CHAPTER 2007. GOVERNMENTAL ACTION AFFECTING PRIVATE
1-16 PROPERTY RIGHTS
1-17 SUBCHAPTER A. GENERAL PROVISIONS
1-18 Sec. 2007.001. SHORT TITLE. This chapter may be cited as
1-19 the Private Real Property Rights Preservation Act.
1-20 Sec. 2007.002. DEFINITIONS. In this chapter:
1-21 (1) "Governmental entity" means:
1-22 (A) a board, commission, council, department, or
1-23 other agency in the executive branch of state government that is
1-24 created by constitution or statute, including an institution of
1-25 higher education as defined by Section 61.003, Education Code; or
1-26 (B) a political subdivision of this state.
1-27 (2) "Owner" means a person with legal or equitable
1-28 title to affected private real property at the time a taking
1-29 occurs.
1-30 (3) "Market value" means the price a willing buyer
1-31 would pay a willing seller after considering all factors in the
1-32 marketplace that influence the price of private real property.
1-33 (4) "Private real property" means an interest in real
1-34 property recognized by common law, including a groundwater or
1-35 surface water right of any kind, that is not owned by the federal
1-36 government, this state, or a political subdivision of this state.
1-37 (5) "Taking" means a governmental action that affects
1-38 private real property in a manner that requires the governmental
1-39 entity to compensate the private real property owner as provided by
1-40 this chapter, the Fifth and Fourteenth Amendments to the United
1-41 States Constitution, or Section 17 or 19, Article I, Texas
1-42 Constitution.
1-43 Sec. 2007.003. APPLICABILITY. (a) This chapter applies
1-44 only to the following governmental actions:
1-45 (1) the adoption or issuance of an ordinance, rule,
1-46 regulatory requirement, resolution, policy, guideline, or similar
1-47 measure;
1-48 (2) an action that imposes a physical invasion or
1-49 requires a dedication or exaction of private real property;
1-50 (3) an action by a municipality that has effect in the
1-51 municipality's extraterritorial jurisdiction unless the action
1-52 imposes identical requirements or restrictions throughout the
1-53 entire municipality and its entire extraterritorial jurisdiction;
1-54 and
1-55 (4) enforcement of a governmental action listed in
1-56 Subdivisions (a)(1) through (3), whether the enforcement of the
1-57 governmental action is accomplished through the use of permitting,
1-58 citations, orders, judicial or quasi-judicial proceedings, or other
1-59 similar means.
1-60 (b) This chapter does not apply to the following
1-61 governmental actions:
1-62 (1) an action by a municipality except as provided by
1-63 Subsection (a)(3);
1-64 (2) a lawful forfeiture or seizure of contraband as
1-65 defined by Section 59.01, Code of Criminal Procedure;
1-66 (3) a lawful seizure of property as evidence of a
1-67 crime or violation of law;
1-68 (4) an action that is reasonably taken to fulfill an
2-1 obligation mandated by federal law;
2-2 (5) the discontinuance or modification of a program or
2-3 regulation that provides a unilateral expectation that does not
2-4 rise to the level of a recognized interest in private real
2-5 property;
2-6 (6) an action taken to prohibit or restrict a
2-7 condition or use of private real property if the governmental
2-8 entity proves that the condition or use constitutes a public or
2-9 private nuisance as defined by background principles of nuisance
2-10 and property law of this state;
2-11 (7) an action taken out of a reasonable good faith
2-12 belief that the action is necessary to prevent a grave and
2-13 immediate threat to life or property;
2-14 (8) a formal exercise of the power of eminent domain;
2-15 (9) an action taken by a governmental entity under the
2-16 entity's statutory duty to prevent waste of oil and gas or protect
2-17 correlative rights of owners of interests in oil or gas;
2-18 (10) a rule or proclamation adopted by the Parks and
2-19 Wildlife Commission for purposes of regulating hunting and fishing;
2-20 (11) an action taken by a political subdivision under
2-21 the entity's statutory authority to conserve water or control
2-22 subsidence;
2-23 (12) the appraisal of property for purposes of ad
2-24 valorem taxation; or
2-25 (13) an action that:
2-26 (A) is taken in response to a real and
2-27 substantial threat to public health and safety;
2-28 (B) is designed to significantly advance the
2-29 health and safety purpose; and
2-30 (C) does not impose a greater burden than is
2-31 necessary to achieve the health and safety purpose.
2-32 Sec. 2007.004. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION
2-33 TO SUE. (a) Sovereign immunity to suit and to liability is waived
2-34 and abolished to the extent of liability created by this chapter.
2-35 (b) A person that has a claim under this chapter may sue the
2-36 state or a governmental entity as provided by this chapter to:
2-37 (1) recover damages allowed by this chapter; or
2-38 (2) invalidate a governmental action.
2-39 (c) This section does not authorize a person to execute a
2-40 judgment against property of the state or a governmental entity.
2-41 Sec. 2007.005. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154,
2-42 Civil Practice and Remedies Code, applies to a suit filed under
2-43 this chapter.
2-44 Sec. 2007.006. CUMULATIVE REMEDIES. (a) The provisions of
2-45 this chapter are not exclusive. The remedies provided by this
2-46 chapter are in addition to other procedures or remedies provided by
2-47 law.
2-48 (b) A person may not recover under this chapter and also
2-49 recover under another law or in an action at common law for the
2-50 same economic loss.
2-51 (Sections 2007.007 to 2007.020 reserved for expansion
2-52 SUBCHAPTER B. STATUTORY SUIT FOR COMPENSATION
2-53 Sec. 2007.021. ENTITLEMENT TO COMPENSATION. (a) A
2-54 governmental entity is liable to a private real property owner for
2-55 compensation under this subchapter if:
2-56 (1) the governmental entity takes a governmental
2-57 action that affects an owner's private real property in a manner
2-58 that restricts or limits a right to private real property that
2-59 would otherwise exist in the absence of the governmental action;
2-60 and
2-61 (2) the action is the producing cause of a reduction
2-62 in the market value of the affected private real property of 20
2-63 percent or more.
2-64 (b) The state is liable for the compensation owed a private
2-65 real property owner under this subchapter as the result of a
2-66 governmental action by a political subdivision that is reasonably
2-67 taken to fulfill an obligation mandated by state law.
2-68 Sec. 2007.022. SUIT FOR COMPENSATION. (a) A private real
2-69 property owner may bring suit to recover compensation under this
2-70 subchapter. A suit under this subchapter must be filed in a
3-1 district court in the county in which the private real property
3-2 owner's affected property is located. If the affected private real
3-3 property is located in more than one county, the private real
3-4 property owner may file suit in any county in which the affected
3-5 property is located.
3-6 (b) A suit under this subchapter must be filed not later
3-7 than two years after the date the cause of action accrued. A cause
3-8 of action under this subchapter accrues on the date the private
3-9 real property owner knew or should have known that the governmental
3-10 action caused a reduction in the market value of the affected real
3-11 property.
3-12 Sec. 2007.023. COMPENSATION AND COSTS. (a) Whether a
3-13 governmental action requires compensation under this subchapter is
3-14 a question of fact.
3-15 (b) The compensation owed to the private real property owner
3-16 in a suit under this subchapter is determined from the date of the
3-17 governmental action and is the difference between the market value
3-18 of the private real property determined as if the governmental
3-19 action were not in effect and the market value of the private real
3-20 property determined with the governmental action in effect.
3-21 (c) If the trier of fact determines that a governmental
3-22 action resulted in a reduction in market value, and the
3-23 governmental action has ceased or has been rescinded, amended,
3-24 invalidated, or repealed, the private real property owner may
3-25 recover compensation in an amount equal to the temporary or
3-26 permanent economic loss sustained while the governmental action was
3-27 in effect.
3-28 (d) The court shall award a private real property owner who
3-29 prevails in a suit under this subchapter reasonable and necessary
3-30 attorney's fees, court costs, and prejudgment interest.
3-31 Prejudgment interest under this subsection is calculated from the
3-32 date of the reduction in market value.
3-33 Sec. 2007.024. JUDGMENT. (a) The court's judgment in favor
3-34 of a private real property owner in a suit under this subchapter
3-35 shall:
3-36 (1) order the governmental entity or attorney general,
3-37 as appropriate, to certify to the court whether all compensation,
3-38 fees, costs, and interest owed under this subchapter have been
3-39 paid; and
3-40 (2) enjoin the governmental entity from enforcing or
3-41 continuing the governmental action as applied to the private real
3-42 property owner until the date the governmental entity or attorney
3-43 general, as appropriate, certifies to the court that all
3-44 compensation, fees, costs, and interest owed under this subchapter
3-45 have been paid; provided, the governmental action shall be
3-46 permanently enjoined if all amounts owing under this subchapter
3-47 have not been paid within three years of the date the judgment is
3-48 final.
3-49 (b) A judgment awarding compensation to a private real
3-50 property owner who prevails in a suit against the state or a state
3-51 agency under this subchapter is subject to an appropriation by the
3-52 legislature.
3-53 (Sections 2007.025 to 2007.040 reserved for expansion
3-54 SUBCHAPTER C. REQUIREMENTS FOR PROPOSED GOVERNMENTAL
3-55 ACTION
3-56 Sec. 2007.041. GUIDELINES. (a) The attorney general shall
3-57 prepare guidelines to assist governmental entities in identifying
3-58 and evaluating those governmental actions described in Section
3-59 2007.003(a)(1) through (3) that may result in a taking.
3-60 (b) The attorney general shall file the guidelines with the
3-61 secretary of state for publication in the Texas Register in the
3-62 manner prescribed by Chapter 2002.
3-63 (c) The attorney general shall review the guidelines at
3-64 least annually and revise the guidelines as necessary to ensure
3-65 consistency with the actions of the legislature and the decisions
3-66 of the United States Supreme Court and the supreme court of this
3-67 state.
3-68 (d) A person may make comments or suggestions or provide
3-69 information to the attorney general concerning the guidelines. The
3-70 attorney general shall consider the comments, suggestions, and
4-1 information in the annual review process required by this section.
4-2 (e) Material provided to the attorney general under
4-3 Subsection (d) is public information.
4-4 Sec. 2007.042. PUBLIC NOTICE. (a) A political subdivision
4-5 that proposes to engage in a governmental action described in
4-6 Section 2007.003(a)(1) through (3) that may result in a taking
4-7 shall provide at least 30 days' notice of its intent to engage in
4-8 the proposed action by providing a reasonably specific description
4-9 of the proposed action in a notice published in a newspaper of
4-10 general circulation published in the county in which affected
4-11 private real property is located. If a newspaper of general
4-12 circulation is not published in that county, the political
4-13 subdivision shall publish a notice in a newspaper of general
4-14 circulation located in a county adjacent to the county in which
4-15 affected private real property is located. The political
4-16 subdivision shall, at a minimum, include in the notice a reasonably
4-17 specific summary of the takings impact assessment that was prepared
4-18 as required by this subchapter and the name of the official of the
4-19 political subdivision from whom a copy of the full assessment may
4-20 be obtained.
4-21 (b) A state agency that proposes to engage in a governmental
4-22 action described in Section 2007.003(a)(1) or (2) that may result
4-23 in a taking shall:
4-24 (1) provide notice in the manner prescribed by Section
4-25 2001.023; and
4-26 (2) file with the secretary of state for publication
4-27 in the Texas Register in the manner prescribed by Chapter 2002 a
4-28 copy of the takings impact assessment that was prepared by the
4-29 agency as required by this subchapter.
4-30 Sec. 2007.043. TAKINGS IMPACT ASSESSMENT. (a) Except as
4-31 provided by Subsection (b), a governmental entity shall prepare a
4-32 written takings impact assessment of a proposed governmental action
4-33 described in Section 2007.003(a)(1) through (3) that complies with
4-34 the evaluation guidelines developed by the attorney general under
4-35 Section 2007.041 before the governmental entity provides the public
4-36 notice required under Section 2007.042.
4-37 (b) A political subdivision is not required to prepare a
4-38 written assessment for an action taken by the political subdivision
4-39 that is reasonably taken to fulfill an obligation mandated by state
4-40 law but must prepare instead a statement that describes the state
4-41 law mandate and cites the statute or rule under which the mandate
4-42 is imposed.
4-43 (c) The takings impact assessment must:
4-44 (1) describe the specific purpose of the proposed
4-45 action and identify:
4-46 (A) whether and how the proposed action
4-47 substantially advances its stated purpose; and
4-48 (B) the burdens imposed on private real property
4-49 and the benefits to society resulting from the proposed use of
4-50 private real property;
4-51 (2) determine whether engaging in the proposed
4-52 governmental action will constitute a taking; and
4-53 (3) describe reasonable alternative actions that could
4-54 accomplish the specified purpose and compare, evaluate, and
4-55 explain:
4-56 (A) how an alternative action would further the
4-57 specified purpose; and
4-58 (B) whether an alternative action would
4-59 constitute a taking.
4-60 (d) A takings impact assessment prepared under this section
4-61 is public information.
4-62 Sec. 2007.044. SUIT TO INVALIDATE GOVERNMENTAL ACTION.
4-63 (a) A governmental action requiring a takings impact assessment is
4-64 void if an assessment is not prepared. A private real property
4-65 owner affected by a governmental action taken without the
4-66 preparation of a takings impact assessment as required by this
4-67 subchapter may bring suit for a declaration of the invalidity of
4-68 the governmental action.
4-69 (b) A suit under this section must be filed in a court
4-70 described by Section 2007.022(a).
5-1 (c) The court shall award a private real property owner who
5-2 prevails in a suit under this section reasonable and necessary
5-3 attorney's fees and court costs.
5-4 Sec. 2007.045. UPDATING OF CERTAIN ASSESSMENTS REQUIRED. A
5-5 state agency that proposes to adopt a governmental action described
5-6 in Section 2007.003(a)(1) or (2) that may result in a taking as
5-7 indicated by the takings impact assessment shall update the
5-8 assessment if the action is not adopted before the 180th day after
5-9 the date the notice is given as required by Section 2001.023.
5-10 SECTION 2. Section 2002.011, Government Code, is amended to
5-11 read as follows:
5-12 Sec. 2002.011. TEXAS REGISTER. The secretary of state shall
5-13 compile, index, cross-index to statute, and publish a publication
5-14 to be known as the Texas Register. The register shall contain:
5-15 (1) notices of proposed rules issued and filed in the
5-16 office of the secretary of state as provided by Subchapter B of
5-17 Chapter 2001;
5-18 (2) the text of rules adopted and filed in the office
5-19 of the secretary of state;
5-20 (3) notices of open meetings issued and filed in the
5-21 office of the secretary of state as provided by law;
5-22 (4) executive orders issued by the governor;
5-23 (5) summaries of requests for opinions of the attorney
5-24 general and of the State Ethics Advisory Commission;
5-25 (6) summaries of opinions of the attorney general and
5-26 of the State Ethics Advisory Commission; <and>
5-27 (7) guidelines prepared by the attorney general under
5-28 Section 2007.041;
5-29 (8) notices relating to the preparation of takings
5-30 impact assessments as provided by Section 2007.043; and
5-31 (9) other information of general interest to the
5-32 public of this state, including:
5-33 (A) federal legislation or regulations affecting
5-34 the state or a state agency; and
5-35 (B) state agency organizational and personnel
5-36 changes.
5-37 SECTION 3. Subchapter B, Chapter 23, Tax Code, is amended by
5-38 adding Section 23.11 to read as follows:
5-39 Sec. 23.11. GOVERNMENTAL ACTION THAT CONSTITUTES TAKING. In
5-40 appraising private real property, the effect of a governmental
5-41 action on the market value of private real property as determined
5-42 in a proceeding under Chapter 2007, Government Code, shall be taken
5-43 into consideration by the chief appraiser in determining the market
5-44 value of the property.
5-45 SECTION 4. The attorney general shall file the guidelines
5-46 for publication as required by Section 2007.041, Government Code,
5-47 as added by this Act, not later than January 1, 1996.
5-48 SECTION 5. Before the 75th Legislature convenes, the
5-49 comptroller of public accounts shall:
5-50 (1) report to the governor, lieutenant governor,
5-51 speaker of the house of representatives, and attorney general
5-52 regarding state agency compliance with the takings impact
5-53 assessment procedures prescribed by Section 2007.043, Government
5-54 Code, as added by this Act; and
5-55 (2) make recommendations for improving the takings
5-56 impact assessment process.
5-57 SECTION 6. (a) Except as provided by Subsections (b) and
5-58 (c) of this section, this Act takes effect September 1, 1995.
5-59 (b) Sections 2007.042 and 2007.043, Government Code, as
5-60 added by this Act, take effect January 1, 1996, and apply only to a
5-61 governmental action described in Section 2007.003(a)(1) through
5-62 (3), Government Code, as added by this Act, that is first proposed
5-63 to be taken on or after that date.
5-64 (c) Section 2007.021, Government Code, as added by this Act,
5-65 applies to:
5-66 (1) a governmental action described in Section
5-67 2007.003(a)(1) through (3), Government Code, as added by this Act,
5-68 that is first proposed on or after September 1, 1995.
5-69 (2) a governmental action described in Section
5-70 2007.003(a)(4), Government Code, as added by this Act, if the
6-1 action is initiated after September 1, 1995.
6-2 SECTION 7. The importance of this legislation and the
6-3 crowded condition of the calendars in both houses create an
6-4 emergency and an imperative public necessity that the
6-5 constitutional rule requiring bills to be read on three several
6-6 days in each house be suspended, and this rule is hereby suspended.
6-7 * * * * *