By: Turner S.B. No. 842
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the preservation of property rights in condemnation
1-2 proceedings and uniformity in assessment of market value.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 6, Chapter 106, Acts of the 40th
1-5 Legislature, 1st Called Session, 1927 (Article 1105b, Vernon's
1-6 Texas Civil Statutes), is amended by adding Subsection (e) to read
1-7 as follows:
1-8 (e) An assessment shall be made where equitable for the
1-9 special benefit, if any, conferred on an adjoining property by the
1-10 new construction or improvement of any street. The determination
1-11 of special benefit shall be measured by the increase, if any, of
1-12 the market value of the adjoining property caused by the new
1-13 construction or improvement and offset by any special damage caused
1-14 by the new construction or improvement. The market value
1-15 estimation shall be made only after considering every factor that
1-16 affects the adjoining property's market value that would be
1-17 considered in the marketplace including, but not limited to, any
1-18 effect the new construction or improvement may have on the access
1-19 to and from and visibility of the adjoining property and the use
1-20 and enjoyment of the property during the construction and after its
1-21 completion.
1-22 SECTION 2. Article 1209, Revised Statutes, is amended to
1-23 read as follows:
2-1 Art. 1209. Assessments. (a) Whenever the governing body
2-2 shall order the making of any improvement herein referred to, it
2-3 may then or thereafter at any time provide by resolution that all
2-4 or part of the costs thereof, as defined in the third article of
2-5 this chapter, shall be assessed against said property abutting said
2-6 proposed improvement, or in the vicinity thereof, and the owners
2-7 thereof specially benefited thereby, together with reasonable
2-8 attorney's fees and all costs incurred in the collection of said
2-9 assessments, and shall have power to apportion the same among the
2-10 owners of said property, and may designate the property proposed to
2-11 be assessed, or the district within which property will be
2-12 benefited and within which assessments may be made, provided no
2-13 assessment shall be made against any property, or its owner, in
2-14 excess of the special benefits thereto in the enhanced value
2-15 thereof from said improvement. No assessments shall be made
2-16 against any property exempt from execution, but the owner shall be
2-17 personally liable and assessed therefor.
2-18 (b) An assessment shall be made where equitable for the
2-19 special benefit, if any, conferred on an adjoining property by the
2-20 new construction or improvement of any street. The determination
2-21 of special benefit shall be measured by the increase, if any, of
2-22 the market value of the adjoining property caused by the new
2-23 construction or improvement and offset by any special damage caused
2-24 by the new construction or improvement. The market value
2-25 estimation shall be made only after considering every factor that
3-1 affects the adjoining property's market value that would be
3-2 considered in the marketplace including, but not limited to, any
3-3 effect the new construction or improvement may have on the access
3-4 to and from the adjoining property, the visibility of the property,
3-5 and the use and enjoyment of the property during the construction
3-6 and after its completion.
3-7 SECTION 3. Section 21.041, Property Code, is amended to read
3-8 as follows:
3-9 Sec. 21.041. Evidence. As the basis for assessing actual
3-10 damages to a property owner from a condemnation, the special
3-11 commissioners shall admit evidence on:
3-12 (1) the market value of the property being condemned;
3-13 (2) the damages <injury> to the property owner's
3-14 remaining property <owner>;
3-15 (3) the benefit to the property owner's remaining
3-16 property; and
3-17 (4) the effect, if any, of the entire project for
3-18 which, in part, the condemnation was instituted on the use,
3-19 enjoyment, and market value of the property owner's remaining
3-20 property <for the purpose of the condemnation>.
3-21 SECTION 4. Subsections (a), (c), and (d), Section 21.042,
3-22 Property Code, are amended to read as follows:
3-23 (a) The special commissioners shall assess damages in a
3-24 condemnation proceeding according to the evidence presented at the
3-25 hearing and shall consider all characteristics that affect a
4-1 property's market value as set forth in Section 23.01, Tax Code,
4-2 and Chapter 106, Acts of the 40th Legislature, 1st Called Session,
4-3 1927 (Article 1105b, Vernon's Texas Civil Statutes), and Article
4-4 1209, Revised Statutes.
4-5 (c) If a portion of a tract or parcel of real property is
4-6 condemned, the special commissioners shall determine the damage to
4-7 the property owner after estimating the extent of the injury and
4-8 benefit to the property owner, including the effect of the
4-9 condemnation and the construction and operation of the entire
4-10 project for which, in part, the condemnation was instituted, on the
4-11 market value of the property owner's remaining property.
4-12 (d) In estimating injury or benefit under Subsection (c),
4-13 the special commissioners shall consider an injury or benefit that
4-14 is peculiar to the property owner and that relates to the property
4-15 owner's ownership, use, or enjoyment of the particular parcel of
4-16 real property, and <but> they shall <may> not consider those
4-17 injuries <an injury> or benefits that are sustained or enjoyed
4-18 <benefit that the property owner experiences> in similar degree by
4-19 all private property in <common with> the general community.
4-20 SECTION 5. Section 21.019, Property Code, is amended by
4-21 amending Subsections (b) and (c) and by adding Subsection (d) to
4-22 read as follows:
4-23 (b) A court that hears and grants a motion to dismiss a
4-24 condemnation proceeding made by a condemnor under Subsection (a)
4-25 shall make an allowance to the property owner for reasonable and
5-1 necessary litigation fees as set forth in Section 21.047(d) <for
5-2 attorneys, appraisers, and photographers> and for the other
5-3 expenses incurred by the property owner to the date of the judgment
5-4 <hearing>.
5-5 (c) A court that hears and grants a motion to dismiss a
5-6 condemnation proceeding made by a property owner seeking a judicial
5-7 denial of the right to condemn or that otherwise renders a judgment
5-8 denying the right to condemn shall <may> make an allowance to the
5-9 property owner for reasonable and necessary litigation fees as set
5-10 forth in Section 21.047(d) <for attorneys, appraisers, and
5-11 photographers> and for the other expenses incurred by the property
5-12 owner to the date of the <hearing or> judgment.
5-13 (d) If a special commissioners' award is appealed by the
5-14 condemnor and the finder-of-fact at the trial returns an award
5-15 greater than the award returned by the special commissioners, the
5-16 court shall make an allowance to the property owner for reasonable
5-17 and necessary litigation fees as set forth in Section 21.047(d).
5-18 SECTION 6. Section 21.047, Property Code, is amended by
5-19 amending Subsection (a) and by adding Subsection (d) to read as
5-20 follows:
5-21 (a) Special commissioners may adjudge the cost <costs> of an
5-22 eminent domain proceeding against any party, but if the
5-23 commissioners award greater damages than the condemnor offered to
5-24 pay before the proceedings began or if the decision of the
5-25 commissioners is appealed and a court awards greater damages than
6-1 the condemnor offered to pay before the proceedings began, the
6-2 condemnor shall be required to pay the condemnee's litigation
6-3 expenses under Subsection (d). <If the commissioners award greater
6-4 damages than the condemnor offered to pay before the proceedings
6-5 began or if the decision of the commissioners is appealed and a
6-6 court awards greater damages than the commissioners awarded, the
6-7 condemnor shall pay all costs. If the commissioners' award or the
6-8 court's determination of the damages is less than or equal to the
6-9 amount the condemnor offered before proceedings began, the property
6-10 owner shall pay the costs.>
6-11 (d) The condemnor shall pay the property owner's litigation
6-12 expenses when required by Section 21.019 and in those cases in
6-13 which the special commissioners, or the court on appeal from a
6-14 special commissioners' award, determined that the compensation due
6-15 the property owner is in excess of 115 percent of the condemnor's
6-16 final written offer to the property owner before the condemnation
6-17 proceedings began. Litigation expenses include:
6-18 (1) all expenses reasonably and necessarily incurred
6-19 in the condemnation proceeding in preparing for the commissioners'
6-20 hearing, preparing for trial, during trial, and preparing for or at
6-21 any subsequent judicial proceeding; and
6-22 (2) reasonable attorney's fees, appraisal fees, and
6-23 fees for the services of other experts when such fees were
6-24 reasonably and necessarily incurred to protect the property owner's
6-25 interest prior to, in preparing for, or during the hearing of
7-1 special commissioners, the trial, or any subsequent judicial
7-2 proceeding, whether such fees were incurred for services rendered
7-3 before or after the filing of the petition in condemnation.
7-4 SECTION 7. This Act takes effect September 1, 1995.
7-5 SECTION 8. The importance of this legislation and the
7-6 crowded condition of the calendars in both houses create an
7-7 emergency and an imperative public necessity that the
7-8 constitutional rule requiring bills to be read on three several
7-9 days in each house be suspended, and this rule is hereby suspended.