SRC-MWN S.B. 1806 77(R)   BILL ANALYSIS


Senate Research Center   S.B. 1806
By: Lucio
Natural Resources
4/23/2001
As Filed


DIGEST AND PURPOSE 

Under the current statutory process the General Land Office (GLO) and
certain applicants endure lengthy and expensive administrative hearings
when determining whether certain lands are vacant. As proposed, S.B. 1806
clarifies and simplifies the procedures for determining whether land is
vacant. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the School Land Board in
SECTION 1 (Section 51.174, Natural Resources Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 51E, Natural Resources Code, as follows:

Deletes existing Sections 51.171-51.201.

Subchapter E. Sale and Lease of Vacancies.

 Sec. 51.170. PURPOSE. Sets forth the purpose of this subchapter.

Sec. 51.171. DEFINITIONS. Defines "applicant," "commissioner," "good-faith
claimant," "interested person," "necessary party," "terminated application"
or "application terminates," and "vacancy." 
  
Sec. 51.172. Disposition of Vacant Land. (a) Requires vacant and unsurveyed
public land to be located, sold, and leased under this subchapter, with the
exception of certain lands. 

(b) Public Domain. Provides that this subchapter does not alter or diminish
the public domain status of the surface estate of riverbeds and channels
and islands in riverbeds that are located above tidewater limits. 

Sec. 51.173. General Powers and Duties of Commissioner. (a) Authorizes the
commissioner of the general land office (commissioner), for good cause
shown, to waive any provision of this subchapter, to delegate
responsibility for implementing the requirements of this subchapter, and to
perform any other act necessary to administer and effectuate the purposes
of this subchapter. 

(b) Authorizes the commissioner to promulgate rules necessary and
convenient to the administration of this subchapter. 

(c) Requires the commissioner to advise the School Land Board regarding the
fair market value of the surface and mineral estates of vacant land. 

Sec. 51.174. General Powers and Duties of the School Land Board. Requires
the School Land Board (board) to set the terms and conditions for the sale
and lease of vacant land. 
 
(b) Requires the board to adopt rules governing such terms and conditions.
Requires the rules to be promulgated and amended as necessary to be
consistent with Texas property law and other applicable prevailing laws. 

(c) Authorizes the board to adopt rules governing certain items regarding
royalty reservations and preferential rights to an applicant or a
good-faith claimant in addition to those provided for in this subchapter. 

Sec. 51.175. Application. (a) Requires an application to purchase or lease
land claimed to be vacant to be on a form prescribed by the commissioner.
Requires a completed  
 application to contain certain information.

(b) Requires the applicant to file the application with the county surveyor
of the county in which all or part of the land claimed to be vacant is
located. Requires the application, if the county does not have a county
surveyor, to be filed with the county clerk. 

(c) Requires the county surveyor or county clerk to mark the exact date and
hour of filing on the original and a duplicate copy of the application and
to return a marked copy to the person filing the application. Requires the
original to be recorded in a book kept for that purpose separate the deed
or real property records. 

(d) Provides that priority among applications covering the same land
claimed to be vacant is determined by the time of filing indicated by the
date and hour marked on the application by the county surveyor or county
clerk. 

(e) Requires the applicant to file with the commissioner the duplicate copy
of the application with the county official's mark indicating the time of
filing not later than the 10th day after the application is filed with the
county surveyor or clerk. Authorizes the application, if the 10th day after
filing falls on a certain day, to be filed on the next regular business day
following the 10th day. Requires the applicant to include a filing fee set
by the commissioner in an amount of not less than $100. 

Sec. 51.176. Processing the Application. (a) Filing the Application.
Requires the commissioner to assign a file number to and mark the date of
filing on the application. 

(b) Acceptance of Application. Requires the commissioner to accept any
application filed in compliance with this subchapter and to notify the
applicant upon acceptance. 

(c) Rejection of Application. Authorizes the commissioner to reject any
application and requires the commissioner to notify the applicant of the
rejection when the application meets certain criteria. 
 
  (d) Termination of Application. Provides that a rejected application is
terminated. 

Sec. 51.177. Application for Determination of Good-Faith Claimant Status.
(a) Time of Application. Authorizes any person to apply for good-faith
claimant status, either at the time of the filing of an application under
Section 51.176 or within 60 days after publication of the notices required
under Section 51.179(d). 

(b) Contents of Application. Requires the application to include certain
information. 

(c) Declaration of Status. Requires the commissioner, after expiration of
the time for application in Subsection (a), to declare whether any person
is a good-faith claimant. Authorizes the commissioner to consider documents
filed in support of good-faith claimant status, any other relevant
information, and to conduct an investigation under  Section 51.184 as
necessary to decide the application. Provides that the declaration of
good-faith claimant status is solely within the discretion of the land
commissioner and no person is entitled to a declaration of good-faith
claimant status. Provides that the declaration of the commissioner under
this subsection is not a final order and cannot be appealed, except as
provided by Section 51.187. 

(d) Effect of Declaration. Provides that the declaration of good-faith
claimant status bestows a preferential right to purchase or lease the land
in accordance with this subchapter, but does not confer any other rights. 

Sec. 51.178 Identification of and notice to necessary parties. (a)
Identification. Requires the applicant to identify necessary parties by the
name and last known address of any owners or claimants of land or any
interest in land or of leases on, adjoining, overlapping, or including the
land claimed to be vacant as far as can be determined from the records of
the land office and the county clerk's office. 

(b) Notice. Requires the applicant to provide each necessary party with the
notice of the commissioner's acceptance of the application, a copy of the
application and a waiver of notice form within 90 days of receipt of notice
of commissioner's acceptance of the application. 

(c) Waiver of Notice. Provides that a necessary party is entitled to
notices required by this subchapter. Authorizes a necessary party, upon
execution of a waiver of right to notice, to decline future notices by
informing the applicant and the general land office. Requires the waiver to
not affect the rights of the party and to not waive any party's right to
notice of a final order under section 51.185. 

(d) Publication of Notice. Requires the applicant, within 30 days after
mailing of the notices under subsection (c), to publish notice of the
commissioner's acceptance of the application in newspapers of general
circulation in the county and the general area where the land is located
for a period determined by the commissioner. Requires the published notice
to contain certain information. 

Sec. 51.179. Deposit. (a) Cost Recovery. Authorizes the commissioner to
recover state funds expanded in the investigations and hearings conducted
under this subchapter. 

(b) Initial Deposit. Authorizes the commissioner, within 30 days after the
publication required by Section 51.178 is complete, to require the
applicant to submit a deposit, within 30 days, in an amount sufficient to
pay the costs of any survey and investigation required under this
subchapter. 

(c) Supplemental Deposit. Authorizes the commissioner, if the amount
deposited becomes insufficient, to make a written request for a reasonably
necessary supplemental deposit, which is required to be tendered within 30
days after the request. 

(d) No Appeal. Prohibits an applicant from challenging or appealing the
amount of the required deposits and provides that the applicant's refusal
or failure to make the required deposits terminates the application. 

Sec. 51.180. Disposition of Deposits. (a) Trust Account. Requires the
commissioner to deposit all initial and supplemental deposits received
under this subchapter to the credit of a separate trust account in the
treasury. Requires the comptroller, on the commissioner's order, to make
disbursements from that account for purposes authorized by this subchapter. 

(b) Accounting. Requires the commissioner, after the proceedings on an
application are  concluded and all expenditures authorized under this
subchapter are paid, to provide the applicant a complete statement of all
deposits and expenditures and to remit to the applicant any balance
remaining from the deposit or supplemental deposits made by the applicant. 

Sec. 51.181. Commissioner's Survey. (a) Appointment. Authorizes the
commissioner to appoint a surveyor, who is required to be a licensed state
land surveyor or the county surveyor of the county in which the alleged
vacancy or part of the alleged vacancy is located, to investigate the
applicant's claim. 

(b) Notice of Appointment. Requires the commissioner, at least 30 days
prior to initiation of the appointed surveyor's on the ground work, to mail
a notice of intention to survey to all necessary parties. Requires the
notice to contain certain information. 

(c) Fees and Expenses. Requires the fees and expenses paid for by the
survey to be the same as provided by law. Requires the commissioner, when
the fees and expenses are not provided by law, to contract for fees and
expenses reasonably necessary for the scope of the required work. 

(d) Reliance on existing surveys and records. Provides that the appointment
of a surveyor is not required. Authorizes the commissioner to rely on any
survey conducted by a licensed state land surveyor or a county surveyor and
any documents or public records required to determine whether a vacancy
exists. 

Sec. 51.182. Surveyor's report. (a) Report required. Requires the surveyor
to file a certain report to the commissioner within a certain date.
Authorizes the commissioner to extend the time for filing the report. 

  (b) Requires the survey report to contain or state certain information.

Sec. 51.183. Completion of Survey. Notice of Completion. Requires the
commissioner to serve a true copy of the survey report to certain persons
at a certain date. 

(b) Exceptions. Authorizes any necessary party to file exceptions to the
appointed surveyor's report within 30 days of receipt of the notice of
completion. Authorizes the necessary parties, if the commissioner does not
appoint a surveyor, to file exceptions to a survey report filed by the
applicant during a time established by the commissioner. Requires any
exceptions to be filed with the land office and a copy sent to each
necessary party. 

Sec. 51.184. Investigation. (a) Nature of investigation. Requires the
commissioner to conduct an investigation into the applicant's claim that a
vacancy exists. Authorizes the commissioner to conduct a hearing. Provides
that a hearing under this subchapter is not a contested case hearing and is
not subject to the Administrative Procedure Act, Government Code 2001, et
seq. Provides that the commissioner is not required to grant any hearings
under this subchapter. 
   
(b) Notice of hearing; scope of hearing. Requires the commissioner to
determine the scope of any hearings to investigate an application for
good-faith claimant status and an application to purchase or lease vacant
land. Requires the commissioner, if granting a hearing, to provide timely
notice of the time and place of the hearing to necessary parties to afford
a necessary party an opportunity to be heard. Authorizes any other
procedural rights, including any right to examine or cross-examine
witnesses, to be granted in the sole discretion of the commissioner. 

(c) Scope of Investigation. Authorizes the commissioner to consult with
certain persons. 
 
(d) Investigation Record. Requires the commissioner to record the names of
the persons consulted, the documents and surveys reviewed, the relevant law
and any other materials used in the investigation. 

Sec. 51.185. Commissioner's Final Order. (a) Authorizes the commissioner,
under a certain situation, to determine that a vacancy exists. Requires the
commissioner to notify all necessary parties by mailing them a copy of the
vacancy determination. Provides that the vacancy determination is a final
order of the commissioner and may be appealed in accordance with Section
51.186. 

(b) Contents of Order. Requires a vacancy determination order to contain
certain information. 

(c) Description of Vacant Land. Provides that in determining the boundaries
and size of a vacancy, the commissioner is not restricted to a description
of the land claimed to be vacant that is provided by certain persons.
Requires the commissioner to adopt the description of a vacancy that best
described the vacancy and is consistent with the investigation under this
subchapter. 

(d) Denial of Application. Requires the commissioner, under a certain
situation, to endorse the file with a certain finding and to notify all
necessary persons of the determination. Provides that a certain finding
terminates the application and is conclusive with respect to land described
in the application. 

Sec. 51.186. Appeal. Requires the district court, in the county where the
majority of the vacant land is located, to have jurisdiction of an appeal
filed within 90 days of the commissioner's final order under Section
51.184. 

Sec. 51.187. Scope of Review. Requires the district court to conduct a de
novo review of the commissioner's final order determining that a vacancy
exists. 

Sec. 51.188. Issues reviewable. Authorizes the court to review the
commissioner's declaration of good-faith claimant status only in
conjunction with review of a final order determining that a vacancy exists. 

Sec. 51.189. Standing to Appeal. Authorizes a person who has a present
legal interest in the surface or mineral estate at the time of the filing
of the application or who acquires such interest prior to the
commissioner's final order to appeal the final order. 

Sec. 51.190. Preferential Right of Good-Faith Claimant. (a) Requires a
good-faith claimant, who has been notified by the commissioner that a
vacancy has been found to exist under this subchapter, to have a
preferential right to purchase or lease the vacancy. Authorizes the
preferential right to purchase or lease to be exercised after the final
judicial determination or after the commissioner's final order when the
period for filing an appeal has expired. Provides that if the good-faith
claimant does not apply for purchase or lease the land within 120 days
after the preferential right can be exercised, then the preferential right
expires. 

(b) Authorizes the good-faith claimant to purchase or lease the vacancy by
submitting a written application to the board. 

(c) Provides that the good-faith claimant is entitled to purchase or lease
the portion of the land that is vacant at the price set by the board and
subject to the royalty reservations provided by the board and in accordance
with the law effective on the date the application is filed. 

 Sec. 51.191. Purchase or Lease by the Applicant. (a) Requires the
applicant, under a certain situation, to have a preferential right for 30
days thereafter to purchase or lease the land determined to be vacant. 

(b) Requires the board to award an applicant, other than a good-faith
claimant, a perpetual nonparticipating royalty of not less than  a certain
portion of the value of oil, gas and sulphur and one percent of the value
of all geothermal and other minerals produced. 

SECTION 2. Effective date: upon passage or September 1, 2001.