SRC-MWN H.B. 2033 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 2033
By: Pitts (Lucio)
Natural Resources
5/9/2001
Engrossed


DIGEST AND PURPOSE 

Under current law, water and sewer utilities provide service to customers
upon prepayment of certain costs, including the cost of capital projects
such as extension of distribution and collection lines, the expansion of
well production capability, the construction of additional overhead
storage, or the adjustment of a wholesale water or sewer contract to
accommodate additional service demand. In some cases, individuals purchase
lots for residential or commercial purposes without realizing that the
extension of water or sewer services may require additional expense on the
individual's part, and that there might be a delay in the utility's ability
to provide the services. This is problematic in areas served by private
utilities, nonprofit water supply and sewer service corporations, and
special utility districts, which typically service areas outside a
municipality's jurisdiction. Current law does not require that the
purchasers of property receive notice about possible additional
expenditures or delay in services. H.B. 2033 requires the notice to be
provided to a purchaser of unimproved real property and gives the purchaser
the option to recover certain damages if the notice is not provided by the
seller.  

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 13G, Water Code, by adding Section 13.257, to
read as follows: 

Sec. 13.257.  NOTICE TO PURCHASERS. (a)  Provides that in this section,
"utility service provider" means a utility, a water supply or sewer service
corporation, or a special utility district organized and operating under
Chapter 65. 

(b)  Requires a person, if the person proposes to sell or convey unimproved
real property located in a certificated service area of a utility service
provider, to give to the purchaser written notice as prescribed by this
section.  Provides that an executory contract for the purchase and sale of
real property that has a performance period of more than six months is
considered a sale of real property under this section. 

  (c)  Provides that this section does not apply to certain transfers of
title or interest. 

(d) Requires the notice to be executed by the seller and requires the
statement to read in a certain manner. 

(e)  Requires the notice to be given to the prospective purchaser before
the execution of a binding contract of purchase and sale. Authorizes the
notice to be given separately or as an addendum to or paragraph of the
contract.  Authorizes the purchaser, if the seller fails to provide the
notice required by this section, to terminate the contract. Provides that
if the seller provides the notice at or before the closing of the purchase
and sale contract and the purchaser elects to close even though the notice
was not  timely provided before the execution of the contract, it is
conclusively presumed that the purchaser has waived all rights to terminate
the contract and recover damages or pursue other remedies or rights under
this section.  Provides that notwithstanding any provision of this section
to the contrary, a seller, title insurance company, real estate broker, or
examining attorney, or an agent, representative, or person acting on behalf
of the seller, company, broker, or attorney, is not liable for damages
under Subsection (m) or (n) or liable for any other damages to any person
for certain conditions. 

(f)  Requires the purchaser to sign the notice or the purchase and sale
contract that includes the notice to evidence the purchaser's receipt of
the notice. 

(g)  Requires that at the closing of the purchase and sale contract, a
separate copy of the notice with current information to be executed by the
seller and purchaser, acknowledged, and subsequently recorded in the real
property records of the county in which the property is located.  Provides
that in completing the notice to be executed by the seller and purchaser at
the closing of the purchase and sale contract, any seller, title insurance
company, real estate broker, or examining attorney, or any agent,
representative, or person acting on behalf of the seller, company, broker,
or attorney, may rely on the accuracy of the information required by this
chapter that is last filed in the real property records by the utility
service provider and the accuracy of the map of the certificated service
area of the utility service provider.  Provides that any information taken
from the map is, for purposes of this section, conclusively presumed to be
correct as a matter of law.  Authorizes any subsequent seller, purchaser,
title insurance company, real estate broker, examining attorney, or
lienholder to rely on the map of the certificated service area filed in the
real property records by the utility service provider. 

(h)  Provides that in completing the notice required to be given to a
prospective purchaser before the execution of a binding contract of
purchase and sale, any seller, and any person completing the notice on
behalf of the seller, is authorized to rely on the information contained in
the map of the certificated service area filed in the real property records
by the utility service provider. Authorizes any subsequent seller,
purchaser, title insurance company, real estate broker, examining attorney,
or lienholder to rely on the map of the certificated service area filed in
the real property records by the utility service provider. 

(i) Prohibits a purchaser, or the purchaser's heirs, successors, or
assigns, if the notice is given at closing as provided by Subsection (g),
from maintaining an action for damages or maintaining an action against a
seller, title insurance company, real estate broker, or lienholder, or any
agent, representative, or person acting on behalf of the seller, company,
broker, or lienholder, by reason of the seller's use of the information
filed with the Texas Natural Resource Conservation Commission (commission)
by the utility service provider or the seller's use of the map of the
certificated service area of the utility service provider filed in the real
property records to determine whether the property to be purchased is
within the certificated service area of the utility service provider.
Prohibits an action from being maintained against a title insurance company
for the failure to disclose that the described real property is included
within the certificated service area of a utility service provider if the
utility service provider did not file in the real property records or with
the commission the map of the certificated service area. 

(j)  Provides that any purchaser who purchases real property in a
certificated service area of a utility service provider and who
subsequently sells or conveys the property is conclusively considered on
the closing of the subsequent sale to have waived any previous right to
damages under this section. 
 
 (k)  Provides that it is the express intent of this section that any
seller, title insurance company, examining attorney, vendor of property and
tax information, real estate broker, or lienholder, or any agent,
representative, or person acting on behalf of the seller, company,
attorney, vendor, broker, or lienholder, may for the purpose of completing
the notice required by this section on the accuracy of the map of the
certificated service area of the utility service provider filed in the real
property records by the utility service provider. 

(l)  Authorizes the purchaser, except as otherwise provided by Subsection
(e), if any sale or conveyance of real property within the certificated
service area of a utility service provider fails to comply with this
section, to file a suit for damages under Subsection (m) or (n). 
 
(m)  Provides that if the sale or conveyance of real property fails to
comply with this section, the purchaser may file a suit for damages in the
amount of all costs related to the purchase of the property plus interest
and reasonable attorney's fees.  Authorizes the suit for damages to be
filed jointly or severally against the individual or entity that sold or
conveyed the property to the purchaser.  Requires the amount of the
damages, following the recovery of damages under this subsection, to be
paid first to satisfy all unpaid obligations on each outstanding lien on
the property and the remainder of the damage amount to be paid to the
purchaser.  Requires the purchaser, on payment of all damages respectively
to each lienholder and the purchaser, to reconvey the property to the
seller. 

(n)  Authorizes the purchaser, if the sale or conveyance of the property
fails to comply with this section, to file a suit for damages in an amount
not to exceed $5,000, plus reasonable attorney's fees. 

(o)  Prohibits a purchaser from recovering damages under both Subsections
(m) and (n).  Provides that an entry of a final decision awarding damages
to the purchaser under either Subsection (m) or (n) precludes the purchaser
from recovering damages under the other subsection. Provides that
notwithstanding general or special law or the common law of this state to
the contrary, the relief provided under Subsections (m) and (n) provides
the exclusive remedy for a purchaser aggrieved by the seller's failure to
comply with this section.  Provides that any action for damages under this
section does not apply to, affect, alter, or impair the validity of any
existing vendor's lien, mechanic's lien, or deed of trust lien on the
property. 
 
(p)  Requires a suit for damages under this section to be filed by the
earlier of certain dates. 
  
(q)  Prohibits certain purchasers, notwithstanding any other provision of
this section to the contrary, from recovering damages under this section. 

SECTION 2. (a)  Effective date:  September 1, 2001.

(b)  Provides that the change in law made by this Act applies only to a
transfer of property that occurs on or after the effective date of this
Act.  Provides that for purposes of this section, a transfer of property
occurs before the effective date of this Act if the contract of purchase
and sale binding the purchaser to purchase the property was executed before
that date. 

 (c) Makes application of this Act prospective.