77R12252 PAM-F
By McReynolds H.B. No. 3410
Substitute the following for H.B. No. 3410:
By Walker C.S.H.B. No. 3410
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the sale and lease of vacant and unsurveyed public
1-3 school land.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter E, Chapter 51, Natural Resources Code,
1-6 is amended to read as follows:
1-7 SUBCHAPTER E. SALE AND LEASE OF VACANCIES
1-8 Sec. 51.171. PURPOSE; APPLICATION OF OTHER LAW. (a) This
1-9 subchapter controls the purchase and lease of vacant land and the
1-10 authority of the commissioner and the board to:
1-11 (1) determine whether a vacancy exists; and
1-12 (2) sell and lease vacant land.
1-13 (b) To the extent a provision of this subchapter conflicts
1-14 with another law relating to vacant land, this subchapter controls.
1-15 (c) Chapter 2001, Government Code, does not apply to a
1-16 proceeding under this subchapter.
1-17 Sec. 51.172. DEFINITIONS. In this subchapter:
1-18 (1) "Applicant" means any person who files an
1-19 application to purchase or lease a vacancy.
1-20 (2) "Good-faith claimant" means a person who:
1-21 (A) occupies or uses or has previously occupied
1-22 or used, or whose predecessors in interest have occupied or used, a
1-23 vacancy for purposes other than exploring for or removing oil, gas,
1-24 sulphur, or other minerals and geothermal resources from the
2-1 vacancy; and
2-2 (B) has had, or whose predecessors in interest
2-3 have had, the vacancy enclosed or within definite boundaries
2-4 recognized in the community and in possession for a period of at
2-5 least 10 years with a good-faith belief that the vacancy was
2-6 included within the boundaries of a survey or surveys that were
2-7 previously titled, awarded, or sold under circumstances that would
2-8 have vested title in the vacancy if the vacancy were actually
2-9 located within the boundaries of the survey or surveys.
2-10 (3) "Interested person" means a person, excluding a
2-11 good-faith claimant or an applicant, who has a present legal
2-12 interest in the surface or mineral estate of the land claimed to be
2-13 vacant.
2-14 (4) "Necessary party" means an applicant, interested
2-15 person, and good-faith claimant whose present legal interest in the
2-16 surface or mineral estate of the land claimed to be vacant may be
2-17 adversely affected by a vacancy determination.
2-18 (5) "Vacancy" means an area of unsurveyed public
2-19 school land that:
2-20 (A) is not in conflict on the ground with land
2-21 previously titled, awarded, or sold;
2-22 (B) has not been listed on the records of the
2-23 land office as public school land; and
2-24 (C) was not, on the date of filing of an
2-25 application:
2-26 (i) subject to an earlier subsisting
2-27 application; or
3-1 (ii) the subject of pending litigation
3-2 relating to state ownership or possession of the land.
3-3 Sec. 51.173. DISPOSITION OF VACANT LAND. (a) Vacant and
3-4 unsurveyed public school land shall be located, sold, and leased
3-5 under this subchapter, except:
3-6 (1) submerged lands within tidewater limits;
3-7 (2) all islands, flats, and emergent lands within
3-8 tidewater limits;
3-9 (3) natural lakes; and
3-10 (4) riverbeds, including channels and islands in
3-11 riverbeds, above tidewater limits.
3-12 (b) This subchapter does not alter or diminish the public
3-13 domain status of the surface estate of riverbeds and channels and
3-14 islands in riverbeds that are located above tidewater limits.
3-15 Sec. 51.174. GENERAL POWERS AND DUTIES OF COMMISSIONER. (a)
3-16 The commissioner may:
3-17 (1) delegate responsibility for implementing this
3-18 subchapter; and
3-19 (2) perform any other act necessary to administer and
3-20 implement the purposes of this subchapter.
3-21 (b) The commissioner shall adopt rules necessary and
3-22 convenient to administer this subchapter.
3-23 (c) The commissioner shall advise the board relating to the
3-24 fair market value of the surface and mineral estates of vacant
3-25 land.
3-26 Sec. 51.175. GENERAL POWERS AND DUTIES OF BOARD. (a) The
3-27 board shall set the terms and conditions for each sale and lease of
4-1 a vacancy.
4-2 (b) The board shall adopt rules governing the terms and
4-3 conditions for the sale and lease of a vacancy. The rules shall be
4-4 adopted and amended as necessary to be consistent with property law
4-5 of this state and other applicable law.
4-6 (c) The board may adopt rules governing mineral
4-7 classification, royalty reservations, and awards of royalty
4-8 reservations and preferential rights to an applicant or to a
4-9 good-faith claimant in addition to the provisions prescribed by
4-10 this subchapter.
4-11 Sec. 51.176. APPLICATION. (a) To purchase or lease land
4-12 claimed to be vacant, a person must file an application on a form
4-13 prescribed by the commissioner. A completed application must:
4-14 (1) describe the land that is claimed to be vacant;
4-15 (2) state whether the applicant seeks to purchase the
4-16 land that is claimed to be vacant or obtain a mineral lease on the
4-17 land;
4-18 (3) state the name and address of each person who,
4-19 from facts known to the applicant, asserts a present legal interest
4-20 in the land claimed to be vacant;
4-21 (4) if applicable, state the basis and provide
4-22 documentary proof for an assertion of good-faith-claimant status;
4-23 and
4-24 (5) provide any other information required by the
4-25 commissioner.
4-26 (b) The applicant must file the application with the county
4-27 surveyor of the county in which all or part of the land claimed to
5-1 be vacant is located. If the county does not have a county
5-2 surveyor, the application must be filed with the county clerk.
5-3 (c) The county surveyor or county clerk, as applicable,
5-4 shall mark the exact date and hour of filing on the original and a
5-5 duplicate copy of the application and shall return a marked copy to
5-6 the person filing the application. The original shall be recorded
5-7 in a book kept for that purpose separate from the deed or real
5-8 property records. The failure to record an application as provided
5-9 by this subsection does not affect the validity of the application
5-10 filing.
5-11 (d) Priority among applications covering the same land
5-12 claimed to be vacant is determined by the time of filing indicated
5-13 by the date and hour marked on the application by the county
5-14 surveyor or county clerk.
5-15 (e) The applicant shall file with the commissioner the
5-16 duplicate copy of the application with the county official's mark
5-17 indicating the time of filing not later than the 30th day after the
5-18 date the application is filed with the county surveyor or clerk.
5-19 If the 30th day after the date of filing falls on a Saturday,
5-20 Sunday, or state or federal holiday, the application may be filed
5-21 on the next regular business day following the 30th day. The
5-22 applicant shall include a filing fee set by the commissioner in an
5-23 amount of not less than $100.
5-24 Sec. 51.177. PROCESSING APPLICATION. (a) The commissioner
5-25 shall mark the date of filing on the application and assign a file
5-26 number to the application.
5-27 (b) The commissioner shall accept an application filed in
6-1 compliance with this subchapter and shall notify the applicant on
6-2 acceptance of the application.
6-3 (c) The commissioner may reject an application and shall
6-4 notify the applicant of the rejection if the application:
6-5 (1) has material omissions;
6-6 (2) does not describe the land claimed to be vacant
6-7 adequately for the land to be located on the ground; or
6-8 (3) describes as vacant land that has been finally
6-9 adjudicated in a court of this state or of the United States not to
6-10 be vacant.
6-11 (d) A rejected application is terminated. No further action
6-12 is taken on the application, and the land office file is closed.
6-13 Sec. 51.178. APPLICATION FOR AND DETERMINATION OF
6-14 GOOD-FAITH-CLAIMANT STATUS. (a) A person may apply for
6-15 good-faith-claimant status:
6-16 (1) at the time an application is filed under Section
6-17 51.176; or
6-18 (2) not later than the 60th day after the date notice
6-19 of acceptance is published as required under Section 51.179(d).
6-20 (b) The application must include certified copies of
6-21 applicable county records supporting the good-faith claimant's
6-22 status.
6-23 (c) The commissioner shall, after expiration of the period
6-24 prescribed by Subsection (a)(2), declare whether a person is a
6-25 good-faith claimant. The commissioner may consider documents filed
6-26 in support of the person's good-faith-claimant status and any other
6-27 relevant information. The commissioner may conduct an
7-1 investigation under Section 51.185 as necessary to make a
7-2 determination on the application. The commissioner has sole
7-3 discretion to declare a person a good-faith claimant, and a person
7-4 is not otherwise entitled to a declaration of good-faith-claimant
7-5 status. A declaration of the commissioner under this subsection is
7-6 not a final order and may not be appealed, except as provided by
7-7 Section 51.187.
7-8 (d) A declaration of good-faith-claimant status grants a
7-9 preferential right to the claimant to purchase or lease the land as
7-10 provided by this subchapter. The declaration does not confer any
7-11 other rights.
7-12 Sec. 51.179. IDENTIFICATION OF AND NOTICE TO NECESSARY
7-13 PARTIES. (a) The applicant shall identify each necessary party by
7-14 the name and last known address of each owner or claimant of land
7-15 or any interest in land or of a lease on, adjoining, overlapping,
7-16 or including the land claimed to be vacant as can be determined
7-17 from the records of the land office and the county clerk's office.
7-18 (b) The applicant shall provide each necessary party with
7-19 the notice of the commissioner's acceptance of the application, a
7-20 copy of the application, and a continuance for future notices form
7-21 not later than the 90th day after the date the applicant receives
7-22 the notice of the commissioner's acceptance of the application.
7-23 (c) Except as provided by this subsection, a necessary party
7-24 is not entitled to subsequent notices required by this subchapter
7-25 unless the party requests subsequent notices. The commissioner
7-26 shall notify a necessary party of a final order issued under
7-27 Section 51.186.
8-1 (d) Not later than the 30th day after the date the notices
8-2 are mailed under Subsection (b), the applicant must publish the
8-3 notice of the commissioner's acceptance of the application in each
8-4 newspaper of general circulation in the county and the general area
8-5 in which the land is located for a period determined by the
8-6 commissioner. The published notice must contain a description of
8-7 the land claimed to be vacant.
8-8 Sec. 51.180. DEPOSIT. (a) The commissioner may recover
8-9 state funds expended in the investigation and hearings conducted
8-10 under this subchapter.
8-11 (b) Not later than the 30th day after the date notice is
8-12 published as required by Section 51.179, the commissioner may
8-13 require the applicant to submit a deposit. If required, the
8-14 applicant must make a deposit in an amount sufficient to pay the
8-15 costs of any survey and investigation required under this
8-16 subchapter not later than the 30th day after the date the
8-17 commissioner notifies the applicant.
8-18 (c) If the amount deposited is insufficient, the
8-19 commissioner may make a written request for a reasonably necessary
8-20 supplemental deposit. If a supplemental deposit is required, the
8-21 applicant must make the deposit not later than the 30th day after
8-22 the date the commissioner requests the deposit.
8-23 (d) The commissioner and applicant may agree to alternative
8-24 payment methods to recover state funds expended in the
8-25 investigation and hearings conducted under this subchapter.
8-26 (e) An applicant may not challenge or appeal the amount of
8-27 the required deposits, and the applicant's refusal or failure to
9-1 make the required deposits terminates the application.
9-2 Sec. 51.181. DISPOSITION OF DEPOSITS. (a) The commissioner
9-3 shall deposit all initial and supplemental deposits received under
9-4 this subchapter to the credit of a separate trust account in the
9-5 state treasury. The comptroller, on the commissioner's order,
9-6 shall make disbursements from that account for purposes authorized
9-7 by this subchapter.
9-8 (b) After proceedings on an application are concluded and
9-9 all expenditures authorized under this subchapter are paid, the
9-10 commissioner shall provide the applicant a complete statement of
9-11 all deposits and expenditures and shall remit to the applicant any
9-12 balance remaining from the deposit or supplemental deposits made by
9-13 the applicant.
9-14 Sec. 51.182. COMMISSIONER'S SURVEY. (a) The commissioner
9-15 may appoint a licensed state land surveyor, or the county surveyor
9-16 of the county in which the land claimed to be vacant or part of
9-17 that land is located, to investigate the applicant's claim. The
9-18 commissioner may limit the scope of the work performed by the
9-19 surveyor.
9-20 (b) The commissioner shall mail a notice of intention to
9-21 survey to each necessary party not later than the 30th day before
9-22 the date the surveyor begins work. The notice must contain the
9-23 proposed starting date of the survey and the name, address, and
9-24 telephone number of the surveyor.
9-25 (c) The fees and expenses paid for the survey are the same
9-26 as those provided by law. If the fees and expenses are not
9-27 provided by law, the commissioner shall contract for fees and
10-1 expenses reasonably necessary for the scope of the required work.
10-2 Contracts under this subsection:
10-3 (1) must include hourly rates, categories of
10-4 reimbursable expenses, and an estimated completion date; and
10-5 (2) may include other expenses the commissioner
10-6 considers reasonable.
10-7 (d) The appointment of a surveyor is not required. The
10-8 commissioner may rely on:
10-9 (1) any survey conducted by a licensed state land
10-10 surveyor or a county surveyor of the county in which the land
10-11 claimed to be vacant or a part of that land is located; and
10-12 (2) any documents or public records required to
10-13 determine whether a vacancy exists.
10-14 Sec. 51.183. SURVEYOR'S REPORT. (a) Not later than the
10-15 120th day after the date a surveyor is appointed under Section
10-16 51.182, the surveyor shall file a written report of the survey, the
10-17 field notes describing the land and the lines and corners surveyed,
10-18 a plat depicting the results of the survey, and any other
10-19 information required by the commissioner. The commissioner may
10-20 extend the time for filing the report as reasonably necessary.
10-21 (b) The survey report must also contain the name and post
10-22 office address of each person who has possession of the land
10-23 described in the application and of each person determined by the
10-24 surveyor to have a present legal interest in the land.
10-25 Sec. 51.184. COMPLETION OF SURVEY. (a) The commissioner
10-26 shall serve a true copy of the survey report filed by the surveyor
10-27 on each necessary party, including those named in the survey
11-1 report, by certified mail, return receipt requested, not later than
11-2 the 10th business day after the date the survey report is filed
11-3 with the land office.
11-4 (b) Any necessary party may file exceptions to the
11-5 surveyor's report not later than the 30th day after the date the
11-6 notice of completion is received. If the commissioner does not
11-7 appoint a surveyor, a necessary party may file exceptions to a
11-8 survey report filed by the applicant during a period established by
11-9 the commissioner. Any exceptions must be filed with the land
11-10 office and a copy must be sent to each necessary party.
11-11 Sec. 51.185. INVESTIGATION. (a) The commissioner shall
11-12 conduct an investigation of the applicant's claim that a vacancy
11-13 exists. The commissioner may conduct a hearing. A hearing under
11-14 this subchapter is not a contested case hearing and is not subject
11-15 to Chapter 2001, Government Code. The commissioner is not required
11-16 to grant any hearings under this subchapter.
11-17 (b) The commissioner shall determine the scope of any
11-18 hearings to investigate an application for good-faith-claimant
11-19 status and an application to purchase or lease vacant land. If the
11-20 commissioner grants a hearing, the commissioner shall provide
11-21 timely notice of the time and place of the hearing to necessary
11-22 parties and shall provide each necessary party an opportunity to be
11-23 heard. Any other procedural rights, including the right to examine
11-24 or cross-examine witnesses, may be granted in the sole discretion
11-25 of the commissioner.
11-26 (c) The commissioner may consult with any land office
11-27 employee, including the chief surveyor, or a relevant expert during
12-1 the investigation.
12-2 (d) The commissioner shall record the names of the persons
12-3 consulted, the documents and surveys reviewed, and the relevant law
12-4 and other materials used in the investigation.
12-5 Sec. 51.186. COMMISSIONER'S FINAL ORDER. (a) If the
12-6 commissioner concludes that the land claimed to be vacant is not in
12-7 conflict with land previously titled, awarded, or sold by the
12-8 state, the commissioner may determine that a vacancy exists. The
12-9 commissioner shall notify each necessary party by mailing each
12-10 party a copy of the vacancy determination. The vacancy
12-11 determination is a final order of the commissioner and may be
12-12 appealed as provided by Section 51.187.
12-13 (b) A vacancy determination order must contain:
12-14 (1) a field note description of the land determined to
12-15 be vacant that is sufficient to locate the land on the ground;
12-16 (2) an accurate plat of the land that is:
12-17 (A) consistent with the field notes; and
12-18 (B) prepared by a licensed state land surveyor;
12-19 and
12-20 (3) any other matters required by law or as the
12-21 commissioner considers appropriate.
12-22 (c) In determining the boundaries and size of a vacancy, the
12-23 commissioner is not restricted to a description of the land claimed
12-24 to be vacant that is provided by the applicant, the surveyor, or
12-25 any other person. The commissioner shall adopt the description of
12-26 a vacancy that best describes the vacancy and is consistent with
12-27 the investigation under this subchapter.
13-1 (d) If the commissioner determines that the land claimed to
13-2 be vacant is not vacant, the commissioner shall endorse the file
13-3 with the finding "Not Vacant Land" and shall notify each necessary
13-4 party of the determination. A finding of "Not Vacant Land" is
13-5 conclusive with respect to land described in the application. A
13-6 finding of "Not Vacant Land" under this subsection is a final order
13-7 of the commissioner and may be appealed as provided by Section
13-8 51.187.
13-9 Sec. 51.187. APPEAL. (a) The district court in the county
13-10 in which a majority of the vacant land is located has jurisdiction
13-11 of an appeal under this subchapter. A person must file an appeal
13-12 not later than the 90th day after the date the commissioner's final
13-13 order is issued under Section 51.186.
13-14 (b) The district court, in its discretion, may allow an
13-15 interested person who did not receive notice of a proceeding under
13-16 this subchapter to file an appeal after the expiration of the
13-17 90-day period prescribed by Subsection (a).
13-18 (c) If the commissioner has not issued a final order under
13-19 Section 51.186 on or before the first anniversary of the date the
13-20 application was accepted under Section 51.177(b), the applicant may
13-21 file an action in district court to determine whether a vacancy
13-22 exists. The filing of an action under this subsection terminates
13-23 the application with the land office.
13-24 Sec. 51.188. SCOPE OF REVIEW. The district court shall
13-25 conduct a de novo review of the commissioner's final order
13-26 determining that a vacancy exists.
13-27 Sec. 51.189. ISSUES REVIEWABLE. The court may review the
14-1 commissioner's declaration of good-faith-claimant status only in
14-2 conjunction with a review of a final order determining that a
14-3 vacancy exists.
14-4 Sec. 51.190. STANDING TO APPEAL. A person who has a present
14-5 legal interest in the surface or mineral estate at the time an
14-6 application is filed or who acquires an interest before the date of
14-7 the commissioner's final order may appeal the final order.
14-8 Sec. 51.191. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT. (a)
14-9 A good-faith claimant who has been notified by the commissioner
14-10 that a vacancy exists under this subchapter has a preferential
14-11 right to purchase or lease the vacancy. The preferential right may
14-12 be exercised after a final judicial determination or after the
14-13 commissioner's final order and the period for filing an appeal has
14-14 expired. If the good-faith claimant does not apply to purchase or
14-15 lease the land before the 121st day after the date the preferential
14-16 right may be exercised, the preferential right expires.
14-17 (b) The good-faith claimant may purchase or lease the
14-18 vacancy by submitting a written application to the board.
14-19 (c) The good-faith claimant is entitled to purchase or lease
14-20 the portion of the land that is vacant:
14-21 (1) at the price set by the board;
14-22 (2) subject to the royalty reservations provided by
14-23 the board; and
14-24 (3) in accordance with the law in effect on the date
14-25 the application is filed.
14-26 Sec. 51.192. PURCHASE OR LEASE BY APPLICANT. (a) If no
14-27 good-faith claimant exists or if no good-faith claimant exercises a
15-1 preferential right within the applicable period, the applicant has
15-2 a preferential right to purchase or lease the land determined to be
15-3 vacant for 30 days after:
15-4 (1) a determination that no good-faith claimant
15-5 exists; or
15-6 (2) the expiration of the period for exercising a
15-7 preferential right.
15-8 (b) The board shall award an applicant, other than a
15-9 good-faith claimant, a perpetual nonparticipating royalty of:
15-10 (1) not less than 1/32 or more than 1/16 of the value
15-11 of oil, gas, and sulphur; and
15-12 (2) one percent of the value of all geothermal and
15-13 other minerals produced. [SALE AND LEASE OF VACANT LAND. (a)
15-14 Vacant and unsurveyed public school land shall be located, sold,
15-15 and leased under this subchapter, except:]
15-16 [(1) submerged lands within tidewater limits;]
15-17 [(2) all islands, flats, and emergent lands within
15-18 tidewater limits;]
15-19 [(3) natural lakes; and]
15-20 [(4) riverbeds, including channels and islands in
15-21 riverbeds, above tidewater limits.]
15-22 [(b) This subchapter does not alter or diminish the public
15-23 domain status of the surface estate of riverbeds and channels and
15-24 islands in riverbeds that are located above tidewater limits.]
15-25 [Sec. 51.172. DEFINITIONS. In this subchapter:]
15-26 [(1) "Applicant" means any person who files an
15-27 application. The term may include a good-faith claimant.]
16-1 [(2) "Application" means an application to purchase or
16-2 lease a vacancy under this subchapter.]
16-3 [(3) "Good-faith claimant" means a person who:]
16-4 [(A) occupies or uses or whose predecessors in
16-5 interest have occupied or used a vacancy for purposes other than
16-6 exploring for or removing or purporting to lease or otherwise
16-7 convey oil, gas, sulphur, other minerals, or geothermal resources
16-8 from the vacancy;]
16-9 [(B) has had, or whose predecessors in interest
16-10 have had, the vacancy enclosed or within definite recognized
16-11 boundaries and in possession for a period of 10 or more years with
16-12 a good-faith belief that the vacancy was included within the
16-13 boundaries of a survey or surveys that were previously titled,
16-14 awarded, or sold under circumstances that would have vested title
16-15 in the vacancy if it were actually located within the boundaries of
16-16 the survey or surveys;]
16-17 [(C) is the owner of land adjoining a vacancy on
16-18 which no application has previously been filed; or]
16-19 [(D) holds under a good-faith claimant or is
16-20 entitled to a distributive share of any title acquired under an
16-21 application made by a good-faith claimant.]
16-22 [(4) "Interest" means any right or title in or to real
16-23 property, whether affecting the surface, subsurface, or mineral
16-24 estate, including:]
16-25 [(A) fee simple title;]
16-26 [(B) a determinable fee created under a mineral
16-27 lease or conveyance or otherwise;]
17-1 [(C) a royalty, nonparticipating royalty, or
17-2 overriding royalty interest;]
17-3 [(D) a remainder or reversionary interest; or]
17-4 [(E) an interest arising under a lien.]
17-5 [(5) "Interested person" means:]
17-6 [(A) a person who may own or who claims any
17-7 interest in land claimed to be vacant or in any land adjoining or
17-8 overlapping that land as determined from the records of the land
17-9 office, the records of the county clerk's office, and the tax
17-10 records of the county or counties in which the land claimed to be
17-11 vacant is located;]
17-12 [(B) any other person who asserts a right to or
17-13 interest in the land claimed to be vacant and who is known to the
17-14 applicant or whose identity could be ascertained by the applicant
17-15 with the exercise of reasonable diligence;]
17-16 [(C) the attorney general; or]
17-17 [(D) the applicant.]
17-18 [(6) "Vacancy" means an area of unsurveyed public
17-19 school land that:]
17-20 [(A) is not in conflict on the ground with land
17-21 previously titled, awarded, or sold;]
17-22 [(B) has not been listed on the records of the
17-23 land office as public school land; and]
17-24 [(C) was not, on the date of filing of an
17-25 application:]
17-26 [(i) subject to an earlier subsisting
17-27 application by an applicant or good-faith claimant; or]
18-1 [(ii) the subject of pending litigation
18-2 brought by the state to recover the land.]
18-3 [Sec. 51.173. APPLICATION. (a) To purchase or lease a
18-4 vacancy, a person must file an application. The filing of an
18-5 application commences a proceeding under this subchapter. The
18-6 applicant must file the application with the county surveyor of the
18-7 county in which all or part of the land claimed to be vacant is
18-8 located. If the county does not have a county surveyor, the
18-9 application must be filed with the county clerk.]
18-10 [(b) The application must:]
18-11 [(1) describe the land that is claimed to be vacant;]
18-12 [(2) state whether the applicant is a good-faith
18-13 claimant;]
18-14 [(3) state whether the applicant seeks to purchase the
18-15 vacancy or obtain a mineral lease on the vacancy;]
18-16 [(4) state the name and last known address of all
18-17 interested persons; and]
18-18 [(5) provide any other information that the
18-19 commissioner requires by rule.]
18-20 [(c) The commissioner by rule shall set an application
18-21 filing fee in an amount of not less than $5. The applicant shall
18-22 pay the filing fee to the county surveyor or county clerk at the
18-23 time the application is filed.]
18-24 [(d) The county surveyor or county clerk shall mark the
18-25 exact date and hour of filing on the original and a duplicate copy
18-26 of the application and shall return a marked copy to the person
18-27 filing the application. The original shall be recorded in a book
19-1 kept for that purpose separate from the deed or real property
19-2 records.]
19-3 [(e) Priority among applications covering the same land
19-4 claimed to be vacant is determined by the time of filing indicated
19-5 by the date and hour marked on the application by the county
19-6 surveyor or county clerk.]
19-7 [Sec. 51.174. FILING APPLICATION WITH COMMISSIONER. (a) The
19-8 applicant shall file with the commissioner a copy of the
19-9 application with the county surveyor's or clerk's mark indicating
19-10 the time of filing not later than the 10th day after the
19-11 application is filed with the county surveyor or clerk. The
19-12 applicant shall include a filing fee set by the commissioner in an
19-13 amount of not less than $100. If the 10th day after filing falls on
19-14 a Saturday, Sunday, or state or federal holiday, the application
19-15 may be filed on the next regular business day following the 10th
19-16 day.]
19-17 [(b) The commissioner shall mark the date of filing on the
19-18 application and assign a file number to the application.]
19-19 [(c) An applicant who does not file the application with the
19-20 commissioner in the time provided in this section or pay the filing
19-21 fee waives all rights under the application.]
19-22 [(d) The commissioner may refuse to accept for filing an
19-23 application that:]
19-24 [(1) has material omissions;]
19-25 [(2) does not describe the land claimed to be vacant
19-26 adequately for the land to be located on the ground; or]
19-27 [(3) describes as vacant land that has been finally
20-1 adjudicated in a court of this state or of the United States not to
20-2 be vacant.]
20-3 [Sec. 51.175. DEPOSIT. (a) If an applicant is not a
20-4 good-faith claimant, the commissioner shall estimate the costs of
20-5 proceeding under the application, including the costs of a survey
20-6 made by a licensed state land surveyor or the county surveyor, the
20-7 preparation of copies and working sketches by the land office, the
20-8 mailing or publication of notices and copies, and other similar
20-9 costs, excluding allocable costs of salaries and overhead expended
20-10 by the land office in actually conducting a hearing or preparing
20-11 orders and proposals for decision.]
20-12 [(b) The commissioner shall notify the applicant in writing
20-13 of the estimated costs and the applicant shall make a deposit with
20-14 the commissioner in the amount of the estimated costs.]
20-15 [(c) If at any time the commissioner determines that the
20-16 funds on deposit are insufficient to pay the costs of the
20-17 proceeding, the commissioner shall estimate the additional amount
20-18 required and shall notify the applicant in writing to make a
20-19 supplemental deposit of the estimated amount. The notice must be
20-20 dated.]
20-21 [(d) The applicant shall make an initial deposit or a
20-22 supplemental deposit not later than the 30th day after the date of
20-23 the written notice to make the deposit. The commissioner shall
20-24 cancel the application if the applicant does not make a required
20-25 deposit within the prescribed time. Cancellation terminates all
20-26 rights under that application.]
20-27 [Sec. 51.176. APPEAL OF AMOUNT OF DEPOSIT. (a) An
21-1 applicant may appeal the amount of an initial deposit or
21-2 supplemental deposit determined by the commissioner in the manner
21-3 provided for the appeal of agency decisions under Chapter 2001,
21-4 Government Code.]
21-5 [(b) If the applicant does not pay the amount determined by
21-6 the district court on or before the 15th day after the judgment of
21-7 the district court becomes final and nonappealable, the
21-8 commissioner shall cancel the application. Cancellation terminates
21-9 all rights under that application.]
21-10 [Sec. 51.177. DISPOSITION OF DEPOSITS. (a) The commissioner
21-11 shall deposit all initial and supplemental deposits received under
21-12 this subchapter to the credit of a separate trust account in the
21-13 treasury. The comptroller, on the commissioner's order, shall make
21-14 disbursements from that account for purposes authorized by this
21-15 subchapter.]
21-16 [(b) After proceedings on an application are concluded and
21-17 all expenditures authorized under this subchapter are paid, the
21-18 commissioner shall provide the applicant a complete statement of
21-19 all deposits and expenditures and shall remit to the applicant any
21-20 balance remaining from the deposit or supplemental deposits made by
21-21 the applicant.]
21-22 [Sec. 51.178. APPOINTMENT OF SURVEYOR. (a) Not later than
21-23 the 60th day after the date on which the required deposit is paid,
21-24 the commissioner shall appoint a licensed state land surveyor or
21-25 the county surveyor of the county in which all or a part of the
21-26 land claimed to be vacant is located to make a survey of that land.]
21-27 [(b) The fees and expenses paid for the survey are those
22-1 provided by law. If the fees and expenses are not provided by law,
22-2 the commissioner and surveyor shall make an agreement as to the
22-3 fees and expenses reasonable for the work to be performed.]
22-4 [(c) The fees and expenses shall be paid by the applicant
22-5 and may be paid from the initial deposit or any supplementary
22-6 deposits made by the applicant under this subchapter.]
22-7 [(d) The commissioner shall promulgate rules setting out the
22-8 qualifications and method of selection of surveyors appointed
22-9 pursuant to this section. The rules shall provide the greatest
22-10 practicable opportunity for all qualified surveyors to obtain
22-11 appointment and shall provide the opportunity for an interested
22-12 party to move for the removal of an appointed surveyor on the
22-13 grounds of bias, prejudice, or conflict of interest. No surveyor
22-14 appointed shall be removed, however, except upon notice to the
22-15 surveyor and all interested parties and hearing. The fact of
22-16 removal of a surveyor shall not be a basis for any disciplinary
22-17 action against that surveyor under the Professional Land Surveying
22-18 Practices Act (Article 5282c, Vernon's Texas Civil Statutes).]
22-19 [Sec. 51.179. NOTICE TO INTERESTED PERSONS. (a) Not later
22-20 than the 10th day after the date on which the commissioner appoints
22-21 the surveyor, the commissioner shall give notice by certified mail,
22-22 return receipt requested, to all interested persons at the last
22-23 known address. The notice shall contain:]
22-24 [(1) the date of the notice;]
22-25 [(2) a statement that a vacancy application has been
22-26 made;]
22-27 [(3) the name, address, and telephone number of the
23-1 surveyor appointed to make the survey;]
23-2 [(4) a statement that the survey may begin any time
23-3 after the 20th day after the date of the notice;]
23-4 [(5) a statement that an interested party is entitled
23-5 to:]
23-6 [(A) observe the conduct of the survey;]
23-7 [(B) receive a copy of the final survey report
23-8 and other documents filed by the surveyor; and]
23-9 [(C) participate in the vacancy proceeding;]
23-10 [(6) a true and legible copy of the application; and]
23-11 [(7) other information the commissioner by rule may
23-12 prescribe.]
23-13 [(b) If the location of an interested person is unknown or
23-14 if a notice is returned as unclaimed or undeliverable, the
23-15 commissioner shall publish notice as prescribed by the Texas Rules
23-16 of Civil Procedure. If notice by publication is made, the survey
23-17 may not begin and further proceedings may not be held until the
23-18 30th day after publication is completed.]
23-19 [(c) If the applicant, another interested person, or the
23-20 surveyor shows that the delay required by Subsection (b) of this
23-21 section may materially affect the accuracy of the survey because of
23-22 destruction, alteration, or removal of natural features, monuments,
23-23 or witness objects, or for other good cause, the commissioner may
23-24 order the survey to proceed. Notice of the request to proceed with
23-25 the survey and of any order issued in response to the request shall
23-26 be mailed first class to all interested persons.]
23-27 [(d) The right of an interested person, personally or
24-1 through a representative or representatives, to observe the conduct
24-2 of a survey made under this subchapter does not require a delay in
24-3 the conduct of a survey solely to allow an interested person or
24-4 that person's representative to be present during the survey.]
24-5 [Sec. 51.180. WAIVER OF NOTICE. (a) An interested person
24-6 may waive service of the notice required by Section 51.179 of this
24-7 code by filing with the commissioner a sworn affidavit stating the
24-8 person's intent to waive notice. The affidavit shall state that
24-9 the person executing the waiver has been provided with a true copy
24-10 of the application filed with the commissioner.]
24-11 [(b) The affidavit may also state clearly the interested
24-12 person's intent to waive all further notice of the vacancy
24-13 proceedings. If the affidavit states this intent, it must also
24-14 state prominently and clearly that the interested person is aware
24-15 that waiving the right to further notice may result in the loss of
24-16 the opportunity to appear and to contest the application.]
24-17 [(c) The commissioner by rule may prescribe the form and
24-18 specific content of the affidavit described in this section,
24-19 including additional information to be included.]
24-20 [Sec. 51.181. SURVEY. (a) Except when notice by publication
24-21 is required, at any time after the 20th day after the date of the
24-22 notice required by Section 51.179(a) of this code, the surveyor
24-23 shall begin the survey of the land claimed to be vacant.]
24-24 [(b) The surveyor shall prepare and file in the land office:]
24-25 [(1) a detailed written report of all aspects of the
24-26 survey, including record research conducted, survey corners
24-27 recovered in the course of the field survey, and details of
25-1 boundary construction using recovered corners;]
25-2 [(2) field notes in the form and content prescribed by
25-3 law, describing the land and the lines and corners surveyed;]
25-4 [(3) a complete plat depicting in detail the survey
25-5 results;]
25-6 [(4) the names and addresses of all persons who have
25-7 possession of the land described in the application and a
25-8 description of the lands occupied by those persons; and]
25-9 [(5) the names and addresses of all persons known to
25-10 the surveyor who have or claim any interest in the land.]
25-11 [(c) The surveyor shall file the report required by this
25-12 section not later than the 140th day after the date of the notice
25-13 required by Section 51.179(a) of this code. If notice by
25-14 publication is required and the commissioner has not ordered the
25-15 survey to proceed, the surveyor shall file the report not later
25-16 than the 170th day after the date on which notice by publication is
25-17 completed. If the commissioner has ordered the survey to proceed,
25-18 the surveyor shall file the report not later than the 140th day
25-19 after the date of the commissioner's order.]
25-20 [(d) For good cause shown, the commissioner by written order
25-21 may extend the time for filing the survey. The order shall state
25-22 the cause for the extension and shall be included in the record. A
25-23 single order may not extend the time for filing by more than 60
25-24 days.]
25-25 [(e) An interested person at the person's own expense may
25-26 have any surveying done that the person considers desirable, but a
25-27 survey report, a plat, or field notes based on a survey made by a
26-1 person not qualified by law to survey public lands in this state
26-2 may not be admitted into evidence in a vacancy proceeding or filed
26-3 in the land office.]
26-4 [(f) The commissioner shall serve a true copy of the survey
26-5 report, field notes, plat, and all other documents filed by the
26-6 surveyor on each interested person, including those named in the
26-7 survey report, by certified mail, return receipt requested, not
26-8 later than the fifth business day after the survey report is filed
26-9 in the land office.]
26-10 [Sec. 51.182. ADDITIONAL INTERESTED PERSONS. (a) All
26-11 persons named in the survey report as occupying or as having or
26-12 claiming any interest in the land described in the application
26-13 shall be included in the proceeding as interested persons and shall
26-14 be provided notice as prescribed by this subchapter.]
26-15 [(b) An application may not be canceled or a proceeding
26-16 terminated because of the discovery of an additional interested
26-17 person unless the commissioner finds that the person filing the
26-18 application knowingly and intentionally omitted the name of the
26-19 person from the application.]
26-20 [Sec. 51.183. EXCEPTIONS. An interested person may file
26-21 exceptions to the survey report, field notes, and plat not later
26-22 than the 30th day after the date the survey report is filed in the
26-23 land office. A person filing exceptions shall serve a true copy on
26-24 all interested persons and on the surveyor by certified mail,
26-25 return receipt requested. The exceptions shall include a
26-26 certificate of the fact of that service.]
26-27 [Sec. 51.184. ADDITIONAL SURVEYS. (a) The commissioner or
27-1 the land office staff may consult with the surveyor. The
27-2 commissioner, after notice to the interested persons, may direct
27-3 the surveyor to make additional surveys, to investigate as the
27-4 commissioner considers necessary, and to prepare supplemental
27-5 reports, plats, and field notes the commissioner requires.]
27-6 [(b) The commissioner shall provide copies of all reports,
27-7 plats, field notes, and other information resulting from additional
27-8 surveys and investigation to all interested persons.]
27-9 [(c) An interested person may file exceptions or other
27-10 responses not later than the 20th day after the surveyor files the
27-11 required documents with the land office.]
27-12 [(d) Service of additional documents and exceptions or
27-13 responses to those documents shall be made as provided by Sections
27-14 51.181 and 51.183 of this code.]
27-15 [Sec. 51.185. ACTION ON APPLICATION. (a) Not later than the
27-16 90th day after the date on which the surveyor files the survey
27-17 report and other documents required to be filed, the commissioner
27-18 shall either deny the application as provided by Section 51.186 of
27-19 this code or hold a hearing to determine whether a vacancy exists.]
27-20 [(b) Except as provided by Section 51.192 of this code, the
27-21 commissioner may not find that a vacancy exists unless a hearing is
27-22 held.]
27-23 [(c) The commissioner shall decide all issues raised or that
27-24 could be raised by the application and any exceptions or responses
27-25 to the application, including the existence of a vacancy, the
27-26 boundaries of a vacancy, and the status and rights of any
27-27 interested person as a good-faith claimant or prior applicant.]
28-1 [(d) The commissioner may not decide in a proceeding on an
28-2 application any claim of the state or permanent school fund for
28-3 damages arising from trespass, the removal or use of minerals or
28-4 geothermal resources, mispayment of proceeds from the sale or use
28-5 of minerals or geothermal resources, damages to the soil,
28-6 vegetation, or other life or habitat, and similar or related
28-7 claims. Those claims may be asserted by the commissioner in
28-8 administrative proceedings under rules adopted by the commissioner
28-9 or through suit brought by the attorney general at the request of
28-10 the commissioner.]
28-11 [(e) Evidence or testimony regarding the existence or extent
28-12 of mineral development or other economic use of land claimed to be
28-13 vacant may not be introduced or considered, unless that evidence or
28-14 testimony is relevant to determine the existence or boundaries of
28-15 the alleged vacancy or the status of a person as a good-faith
28-16 claimant.]
28-17 [Sec. 51.186. DENIAL OF APPLICATION. (a) If, after
28-18 reviewing the survey report, any supplemental reports, any
28-19 exceptions to the reports, all pertinent publicly available records
28-20 of the land office and the state archives, and land office staff
28-21 recommendations, the commissioner decides that the land claimed to
28-22 be vacant is not vacant, the commissioner may enter an order
28-23 denying the application. The order shall contain findings of fact,
28-24 conclusions of law, and other matters the commissioner considers
28-25 appropriate.]
28-26 [(b) The commissioner shall promptly send a true copy of the
28-27 order denying the application to the applicant by certified mail,
29-1 return receipt requested.]
29-2 [(c) The commissioner shall place in the file assigned to
29-3 the application the original order, all materials filed by the
29-4 surveyor, all exceptions and responses to the surveyor's filings,
29-5 all memoranda provided to the commissioner by the land office
29-6 staff, a list of all files and records of the land office and state
29-7 archives examined by the staff or commissioner in connection with
29-8 the application, and all other relevant papers.]
29-9 [(d) An interested person may request a rehearing and appeal
29-10 the commissioner's order as provided by Chapter 2001, Government
29-11 Code and by rules adopted by the commissioner consistent with that
29-12 Act. If a rehearing is not requested, the order becomes final on
29-13 the 30th day after the date it is signed. If a rehearing is
29-14 requested and denied, the order becomes final on the date that time
29-15 for appeal to the district court expires. If appeal is taken, the
29-16 order becomes final on the date that a judgment disposing of the
29-17 order becomes final.]
29-18 [(e) When the commissioner's order denying the vacancy is
29-19 final, all rights under the application are terminated.]
29-20 [Sec. 51.187. EFFECT OF FINAL ORDER. (a) A final order of
29-21 the commissioner under this subchapter is conclusive with respect
29-22 to the land described in the application or final order. A final
29-23 order of the commissioner does not have the effect of stare decisis
29-24 with respect to land not described in the application or final
29-25 order, but may be considered with all other evidence.]
29-26 [(b) The cancellation, withdrawal, abandonment, or
29-27 termination of an application, the refusal of the commissioner to
30-1 accept an application for filing, or the order or judgment of any
30-2 court resulting in or affecting such an action has no effect on a
30-3 subsequent determination of whether any land described in the
30-4 application is vacant.]
30-5 [(c) A decision of the commissioner issued before September
30-6 1, 1993, that denies a vacancy application or letter of inquiry is
30-7 not conclusive as to the existence or nonexistence of a vacancy.]
30-8 [Sec. 51.188. RULEMAKING; VENUE OF APPEALS. (a) A hearing
30-9 under this subchapter and further proceedings arising from the
30-10 hearing shall be conducted in accordance with Chapter 2001,
30-11 Government Code and rules adopted by the commissioner consistent
30-12 with that Act.]
30-13 [(b) Appeal of a final order of the commissioner is to a
30-14 district court of the county in which the land claimed to be vacant
30-15 or a part of that land is located. The district court shall review
30-16 the commissioner's order under the substantial evidence rule.]
30-17 [Sec. 51.189. COMMISSIONER'S ORDER. (a) If it appears to
30-18 the commissioner that the alleged vacancy is not in conflict with
30-19 land previously titled, awarded, or sold by the state or its
30-20 predecessor sovereigns, the commissioner shall enter an order
30-21 declaring the existence of a vacancy and determining all other
30-22 issues.]
30-23 [(b) If it appears to the commissioner that the land claimed
30-24 to be vacant is not vacant, the commissioner shall enter an order
30-25 denying the application and determining all other issues.]
30-26 [(c) The commissioner shall base the order on the testimony
30-27 and other competent evidence presented at the hearing, the
31-1 surveyor's filings and all supplements to those filings, any
31-2 exceptions or responses to the surveyor's filings and all
31-3 supplements to those filings, and the publicly available records of
31-4 the land office and the state archives. The commissioner and the
31-5 examiner or examiners who conduct hearings on the application may
31-6 consult with the land office staff and the surveyor to the extent
31-7 permitted by Chapter 2001, Government Code. The record shall
31-8 include a list of the names and titles of all staff consulted, a
31-9 list of the files and documents of the land office and state
31-10 archives examined, and a copy of all memoranda provided to the
31-11 examiners or commissioner by the land office staff or by the
31-12 surveyor.]
31-13 [(d) The order shall contain:]
31-14 [(1) findings of fact;]
31-15 [(2) conclusions of law;]
31-16 [(3) a field note description of the land, if any,
31-17 found to be vacant, sufficient to locate it on the ground, and
31-18 other elements required by law;]
31-19 [(4) an accurate plat of the land, if any, found to be
31-20 vacant consistent with the field notes and prepared by the surveyor
31-21 or a licensed state land surveyor on the land office staff; and]
31-22 [(5) other matters the commissioner considers
31-23 appropriate.]
31-24 [(e) The commissioner's order may adopt, without restating,
31-25 the findings of fact and conclusions of law stated in a proposal
31-26 for decision prepared by the examiner or examiners who conducted
31-27 the hearings and any opinion or statement contained in that
32-1 proposal for decision.]
32-2 [Sec. 51.190. DETERMINATION OF BOUNDARIES; REOPENING. (a) In
32-3 determining the boundaries and size of a vacancy, the commissioner
32-4 is not restricted to a description of the land claimed to be vacant
32-5 that is provided by the applicant, the surveyor, or an interested
32-6 party. The commissioner shall adopt the description of a vacancy
32-7 that best describes the vacancy and is consistent with the
32-8 information available under this section.]
32-9 [(b) If in determining the boundaries and size of a vacancy
32-10 it becomes apparent to the commissioner that persons who have not
32-11 been named as interested persons and who have not been served
32-12 notice of the proceeding under the application may be affected by
32-13 the finding that a vacancy exists at the location and with the
32-14 boundaries believed by the commissioner to conform to the record,
32-15 the proceeding shall be reopened and the persons affected shall be
32-16 joined as interested persons and given an opportunity to
32-17 participate adequately in the proceeding. This subsection does not
32-18 require the refiling of an application or the conduct of a new
32-19 survey by the surveyor.]
32-20 [Sec. 51.191. GOOD-FAITH CLAIMANT STATUS. (a) An applicant
32-21 or interested person who wishes to assert status as a good-faith
32-22 claimant may file notice of claim of good-faith status at any time
32-23 before the 20th day preceding the date on which the first hearing
32-24 begins. The notice of claim of good-faith status shall state the
32-25 grounds for the claim and describe the land claimed to be affected
32-26 by the good-faith status. The notice shall be filed in the land
32-27 office and served on all interested persons by certified mail,
33-1 return receipt requested.]
33-2 [(b) Filing notice of claim of good-faith status is not an
33-3 admission by the person asserting the claim that a vacancy exists.]
33-4 [Sec. 51.192. ORDER WITHOUT NOTICE AND HEARING. (a) An
33-5 applicant who asserts status as a good-faith claimant may present
33-6 evidence to the commissioner that:]
33-7 [(1) the good-faith claimant owns all of the land and
33-8 interests in land completely surrounding the land claimed to be
33-9 vacant;]
33-10 [(2) there is no subsisting prior application covering
33-11 the land described in the good-faith claimant's application;]
33-12 [(3) no previous application has been made covering
33-13 the land described in the good-faith claimant's application; and]
33-14 [(4) the good-faith claimant meets all other
33-15 requirements of a good-faith claimant.]
33-16 [(b) If the commissioner finds that the evidence presented
33-17 is accurate, further notice to other persons is not required and,
33-18 on acceptance for filing by the commissioner of a survey made by a
33-19 licensed state land surveyor or the county surveyor of the county
33-20 in which the land claimed to be vacant or a part of that land is
33-21 located, the commissioner may enter an order declaring the
33-22 existence of the vacancy and determining the good-faith status of
33-23 the applicant.]
33-24 [(c) For purposes of this section, land claimed to be vacant
33-25 and surrounded by lands owned only by the good-faith claimant and
33-26 the state is considered to be surrounded completely by land owned
33-27 by the good-faith claimant.]
34-1 [(d) Two or more persons may jointly apply as good-faith
34-2 claimants under this section if together they meet the requirements
34-3 of Subsection (a) of this section.]
34-4 [(e) A person who would have been an interested person under
34-5 an application made under this subchapter by a person other than a
34-6 good-faith claimant may move to set aside an order entered under
34-7 this section by filing a written motion with the commissioner not
34-8 later than the second anniversary of the date of that order. The
34-9 person shall serve a true copy of the motion by certified mail,
34-10 return receipt requested, on the applicant and all persons holding
34-11 or claiming under the applicant.]
34-12 [(f) The commissioner shall set aside an order issued under
34-13 this section finding that a vacancy exists if, after notice and
34-14 hearing, the commissioner finds that the person asserting rights
34-15 under this section, at the time the order declaring the vacancy was
34-16 entered, did not:]
34-17 [(1) qualify as a good-faith claimant under this
34-18 subchapter;]
34-19 [(2) own all of the land and interests in land
34-20 surrounding the land claimed to be vacant; or]
34-21 [(3) meet another material requirement of this
34-22 section.]
34-23 [(g) The commissioner on the commissioner's own motion may
34-24 set aside an order after notice and hearing as required by
34-25 Subsections (e) and (f) of this section.]
34-26 [(h) If the order is set aside, the commissioner shall
34-27 reopen the proceeding on the application and conduct the reopened
35-1 proceeding in the same manner as proceedings on other applications.]
35-2 [(i) The issues in a reopened proceeding are limited to the
35-3 status of the applicant as a good-faith claimant entitled to rights
35-4 under this section and the rights of any other person as an
35-5 applicant or good-faith claimant.]
35-6 [(j) An application of a good-faith claimant who does not
35-7 own all of the land and interests in land completely surrounding
35-8 the land claimed to be vacant is treated as an application under
35-9 other sections of this subchapter.]
35-10 [Sec. 51.193. SALE OR LEASE OF VACANCY. (a) When a
35-11 vacancy has been established by final order, the school land board
35-12 may sell or lease the vacancy as provided by this subchapter.]
35-13 [(b) The board shall set the sale price and other terms and
35-14 conditions as in all other sales of other lands dedicated to the
35-15 permanent school fund. The sale price may not be less than the
35-16 fair market value as determined by an appraisal conducted by the
35-17 land office.]
35-18 [(c) The fee prescribed in Section 32.110(a) of this code
35-19 applies to all sales and leases made under this subchapter.]
35-20 [(d) The board may allow a credit against the sale price in
35-21 an amount not to exceed the actual cost of the survey paid by an
35-22 applicant or good-faith claimant if:]
35-23 [(1) the purchaser is a person exercising a
35-24 preferential right to purchase under this subchapter;]
35-25 [(2) the board has reserved all mineral and geothermal
35-26 leasing rights; and]
35-27 [(3) the board finds that the fair market value of the
36-1 mineral estate is equal to or exceeds 50 percent of the amount of
36-2 the credit.]
36-3 [Sec. 51.194. MARKET VALUE; MEDIATION; BINDING ARBITRATION.
36-4 (a) A person seeking to purchase a vacancy by exercising a right
36-5 of preferential purchase under this subchapter, by filing a written
36-6 request with the commissioner, may have the issue of market value
36-7 submitted to mediation before a trained mediator acceptable to both
36-8 the board and the person seeking to purchase the vacancy if:]
36-9 [(1) the price set by the board under Section 51.193
36-10 of this code exceeds by 15 percent or more the market value
36-11 estimated in an appraisal made by a real estate appraiser certified
36-12 in Texas for the person seeking to purchase the vacancy; and]
36-13 [(2) the appraisal was made not more than six months
36-14 before the date on which the board set the price.]
36-15 [(b) If agreement on price is not reached through mediation
36-16 on or before the 60th day after the first mediation session, the
36-17 person seeking to purchase the vacancy, by filing a written request
36-18 with the commissioner, may have the issue of market value submitted
36-19 to binding arbitration.]
36-20 [(c) A panel of three real estate appraisers certified in
36-21 Texas shall conduct the arbitration. The person seeking to
36-22 purchase the vacancy shall name one member of the panel, the board
36-23 shall name one member of the panel, and the two panel members shall
36-24 name the third member of the panel, who is the panel's presiding
36-25 officer. The board or the person seeking to purchase the vacancy
36-26 may object to and have disqualified the first person named to the
36-27 panel by the other party. Appraisers employed by or who contract
37-1 with the land office are eligible to serve on the arbitration
37-2 panel.]
37-3 [(d) The arbitration shall be conducted under the rules of
37-4 the American Arbitration Association or under other rules agreed on
37-5 by the parties.]
37-6 [(e) The decision of the arbitration panel is not subject to
37-7 judicial review.]
37-8 [(f) The costs of mediation and arbitration shall be shared
37-9 equally by the land office and the person seeking to purchase the
37-10 vacancy.]
37-11 [Sec. 51.195. CONDITIONS OF SALE; MINERAL AWARDS. (a) In
37-12 all sales, the board shall reserve to the permanent school fund all
37-13 oil, gas, sulphur, and other minerals and geothermal resources and
37-14 shall determine the manner in which those minerals and geothermal
37-15 resources are to be leased.]
37-16 [(b) Before the sale of a vacancy, the land office shall
37-17 prepare and present to the board a study of the mineral prospects
37-18 and value of the vacancy, taking into consideration the size and
37-19 configuration of the vacancy, its location with respect to other
37-20 surrounding and nearby tracts, the proximity of mineral production,
37-21 and the likelihood of future mineral leasing and development. The
37-22 study shall include a recommendation as to the method most
37-23 advantageous to the state by which the vacancy could be leased.]
37-24 [(c) The board shall review the study and land office
37-25 recommendations and shall determine whether:]
37-26 [(1) the state shall retain all leasing rights and the
37-27 vacancy shall be leased as provided in Subchapter B, Chapter 52,
38-1 and Subchapters B and E, Chapter 53, of this code; or]
38-2 [(2) the owner of the soil shall be designated to
38-3 execute leases as the agent of the state subject to the rights,
38-4 obligations, and liabilities of Subchapter F, Chapter 52, and
38-5 Subchapter C, Chapter 53, of this code.]
38-6 [(d) If the board determines that the owner of the soil
38-7 shall act as agent under Subsection (c)(2) of this section, the
38-8 board shall establish the division of bonus, rental, and royalty
38-9 between the permanent school fund and the owner of the soil. The
38-10 portion to be paid to the owner of the soil may not be less than 20
38-11 percent or more than 50 percent. The board may establish different
38-12 portions to be paid to the owner of the soil for the lease of
38-13 different substances.]
38-14 [(e) If the board provides for lease by the owner of the
38-15 soil under Subsection (c)(2) of this section, the original
38-16 purchaser is a good-faith claimant, and the vacancy was established
38-17 under an application made by a person other than a good-faith
38-18 claimant, the board shall award the applicant a perpetual
38-19 nonparticipating royalty of not less than 1/32 or more than 1/16 of
38-20 the value of all oil, gas, and sulphur produced and a perpetual
38-21 nonparticipating royalty of not less than one percent or more than
38-22 two percent of the value of all geothermal resources and all other
38-23 minerals produced.]
38-24 [(f) If the board determines that the state shall retain all
38-25 leasing rights as provided in Subsection (c)(1) of this section,
38-26 the board shall award:]
38-27 [(1) to an applicant other than a good-faith claimant,
39-1 a perpetual nonparticipating royalty of 1/32 of the value of oil
39-2 and gas and sulphur and one percent of the value of all geothermal
39-3 resources and all other minerals produced; and]
39-4 [(2) to a good-faith claimant purchasing the vacancy,
39-5 a nonparticipating royalty of 1/32 of the value of oil and gas and
39-6 sulphur and one percent of the value of all geothermal resources
39-7 and all other minerals produced.]
39-8 [(g) If a preferential right to obtain the first mineral
39-9 lease on a vacancy is exercised by any person, the state's royalty
39-10 under the lease shall be reduced by 25 percent for a period of five
39-11 years after the date of first production under the first lease if
39-12 sales of production from or attributable to the lease are commenced
39-13 during the primary term of the lease.]
39-14 [Sec. 51.196. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT.
39-15 (a) A good-faith claimant has a preferential right to purchase or
39-16 lease the portion of a vacancy subject to the good-faith claim.]
39-17 [(b) A good-faith claimant may exercise the preferential
39-18 right by filing a notice of intent to purchase or lease, on a form
39-19 prescribed by the board, not later than the 90th day after the date
39-20 the order establishing the vacancy becomes final. The good-faith
39-21 claimant shall describe in the notice the portion of the vacancy
39-22 the good-faith claimant seeks to purchase or lease. The good-faith
39-23 claimant shall mail a copy of the notice to the applicant and to
39-24 all other interested persons who have asserted status as good-faith
39-25 claimants.]
39-26 [(c) All preferential rights held by a good-faith claimant
39-27 expire if the good-faith claimant does not file the notice of
40-1 intent within the time prescribed by Subsection (b) of this section
40-2 or does not complete the purchase or lease within 60 days after the
40-3 board sets the terms of the purchase or lease. For good cause
40-4 shown, the board may extend the time to complete the purchase or
40-5 lease by a period not to exceed 90 days.]
40-6 [(d) A good-faith claimant exercising a preferential right
40-7 shall repay to the applicant the applicant's reasonable expenses
40-8 incurred in determining the existence of a vacancy, excluding
40-9 filing and attorney fees, not later than the date on which the sale
40-10 or purchase by the good-faith claimant is completed. Failure to
40-11 pay the expenses cancels the preferential right of the good-faith
40-12 claimant.]
40-13 [Sec. 51.197. PREFERENTIAL RIGHT OF APPLICANT OTHER THAN
40-14 GOOD-FAITH CLAIMANT. (a) On the expiration of the preferential
40-15 right of a good-faith claimant to purchase or lease or if there is
40-16 no good-faith claimant, an applicant who is not a good-faith
40-17 claimant has a preferential right to purchase or lease all or any
40-18 portion of the vacancy.]
40-19 [(b) An applicant may exercise the preferential right by
40-20 filing a notice of intent to purchase or lease, on a form
40-21 prescribed by the board, not later than the 90th day after the date
40-22 on which the rights of the good-faith claimant expire. The
40-23 applicant shall describe in the notice the portion of the vacancy
40-24 the applicant seeks to purchase or lease. The applicant shall mail
40-25 a copy of the notice to all other interested persons asserting
40-26 status as good-faith claimants.]
40-27 [(c) All preferential rights held by an applicant expire if
41-1 the applicant does not file the notice of intent within the time
41-2 prescribed by Subsection (b) of this section or does not complete
41-3 the purchase or lease within 60 days after the date on which the
41-4 board sets the terms of the purchase or lease. For good cause
41-5 shown, the board may extend the time to complete the purchase or
41-6 lease by a period not to exceed 90 days.]
41-7 [Sec. 51.198. RIGHTS ASSIGNABLE. An applicant or good-faith
41-8 claimant may assign all rights in a vacancy or land claimed to be
41-9 vacant. The assignment must be in writing. The assignor shall
41-10 record the assignment in the real property records of the county or
41-11 counties in which the vacancy or land claimed to be vacant is
41-12 located and file a certified copy of the recorded assignment in the
41-13 land office.]
41-14 [Sec. 51.199. LEASE TERMS UNDER PREFERENTIAL RIGHTS. The
41-15 board shall prescribe terms for preferential purchases or leases
41-16 consistent with this subchapter. The board may not grant a
41-17 preferential lease with a royalty of less than 1/8 of the value of
41-18 all oil, gas, and sulphur produced or less than five percent of the
41-19 value of all geothermal resources and all other minerals produced.]
41-20 [Sec. 51.200. EFFECT OF PRIOR CONVEYANCES. (a) A mineral
41-21 lease, surface lease, deed, or any other conveyance of any interest
41-22 in land executed by a good-faith claimant before the date of
41-23 completion of a sale or lease under this subchapter does not give
41-24 the grantee under that conveyance any interest in or to the vacancy
41-25 or its minerals.]
41-26 [(b) A title to land or an interest in land acquired from
41-27 the state under a preferential right does not pass as
42-1 after-acquired title under a covenant of general warranty,
42-2 description, or other provision contained in a conveyance executed
42-3 before the date of completion of a sale or lease under this
42-4 subchapter.]
42-5 [Sec. 51.201. RULEMAKING AUTHORITY. (a) The commissioner
42-6 may adopt rules consistent with this subchapter relating to
42-7 applications to purchase or lease vacancies and the determination
42-8 of the existence of vacancies.]
42-9 [(b) The board may adopt rules consistent with this
42-10 subchapter relating to the sale and lease of vacancies.]
42-11 [Sec. 51.202. CONFLICT WITH OTHER CODE PROVISIONS. To the
42-12 extent that any provision of this subchapter pertaining to
42-13 vacancies or the sale or lease of vacancies conflicts with any
42-14 other provision of this code, this subchapter controls.]
42-15 SECTION 2. This Act takes effect immediately if it receives
42-16 a vote of two-thirds of all the members elected to each house, as
42-17 provided by Section 39, Article III, Texas Constitution. If this
42-18 Act does not receive the vote necessary for immediate effect, this
42-19 Act takes effect September 1, 2001.