By McReynolds H.B. No. 3410
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
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. Chapter 51, Subchapter E, Natural Resources Code,
1-6 is amended to read as follows:
1-7 SUBCHAPTER E. SALE & LEASE OF VACANCIES.
1-8 [Sec. 51.171. SALE AND LEASE OF VACANT LAND. (a) Vacant and
1-9 unsurveyed public school land shall be located, sold, and leased
1-10 under this subchapter, except:]
1-11 [(1) submerged lands within tidewater limits;]
1-12 [(2) all islands, flats, and emergent lands within
1-13 tidewater limits;]
1-14 [(3) natural lakes; and]
1-15 [(4) riverbeds, including channels and islands in
1-16 riverbeds, above tidewater limits.]
1-17 [(b) This subchapter does not alter or diminish the public
1-18 domain status of the surface estate of riverbeds and channels and
1-19 islands in riverbeds that are located above tidewater limits.]
1-20 [Sec. 51.172. ][Definitions][. In this subchapter:]
1-21 [(1) "Applicant" means any person who files an
1-22 application. The term may include a good-faith claimant.]
1-23 [(2) "Application" means an application to purchase or
2-1 lease a vacancy under this subchapter.]
2-2 [(3) "Good-faith claimant" means a person who:]
2-3 [(A) occupies or uses or whose predecessors in
2-4 interest have occupied or used a vacancy for purposes other than
2-5 exploring for or removing or purporting to lease or otherwise
2-6 convey oil, gas, sulphur, other minerals, or geothermal resources
2-7 from the vacancy;]
2-8 [(B) has had, or whose predecessors in interest
2-9 have had, the vacancy enclosed or within definite recognized
2-10 boundaries and in possession for a period of 10 or more years with
2-11 a good-faith belief that the vacancy was included within the
2-12 boundaries of a survey or surveys that were previously titled,
2-13 awarded, or sold under circumstances that would have vested title
2-14 in the vacancy if it were actually located within the boundaries of
2-15 the survey or surveys;]
2-16 [(C) is the owner of land adjoining a vacancy on
2-17 which no application has previously been filed; or]
2-18 [(D) holds under a good-faith claimant or is
2-19 entitled to a distributive share of any title acquired under an
2-20 application made by a good-faith claimant.]
2-21 [(4) "Interest" means any right or title in or to real
2-22 property, whether affecting the surface, subsurface, or mineral
2-23 estate, including:]
2-24 [(A) fee simple title;]
2-25 [(B) a determinable fee created under a mineral
2-26 lease or conveyance or otherwise;]
3-1 [(C) a royalty, nonparticipating royalty, or
3-2 overriding royalty interest;]
3-3 [(D) a remainder or reversionary interest; or]
3-4 [(E) an interest arising under a lien.]
3-5 [(5) "Interested person" means:]
3-6 [(A) a person who may own or who claims any
3-7 interest in land claimed to be vacant or in any land adjoining or
3-8 overlapping that land as determined from the records of the land
3-9 office, the records of the county clerk's office, and the tax
3-10 records of the county or counties in which the land claimed to be
3-11 vacant is located;]
3-12 [(B) any other person who asserts a right to or
3-13 interest in the land claimed to be vacant and who is known to the
3-14 applicant or whose identity could be ascertained by the applicant
3-15 with the exercise of reasonable diligence;]
3-16 [(C) the attorney general; or]
3-17 [(D) the applicant.]
3-18 [(6) "Vacancy" means an area of unsurveyed public
3-19 school land that:]
3-20 [(A) is not in conflict on the ground with land
3-21 previously titled, awarded, or sold;]
3-22 [(B) has not been listed on the records of the
3-23 land office as public school land; and]
3-24 [(C) was not, on the date of filing of an
3-25 application:]
3-26 [(i) subject to an earlier subsisting
4-1 application by an applicant or good-faith claimant; or]
4-2 [(ii) the subject of pending litigation
4-3 brought by the state to recover the land.]
4-4 [Sec. 51.173. ][Application][. (a) To purchase or lease a
4-5 vacancy, a person must file an application. The filing of an
4-6 application commences a proceeding under this subchapter. The
4-7 applicant must file the application with the county surveyor of the
4-8 county in which all or part of the land claimed to be vacant is
4-9 located. If the county does not have a county surveyor, the
4-10 application must be filed with the county clerk.]
4-11 [(b) The application must:]
4-12 [(1) describe the land that is claimed to be vacant;]
4-13 [(2) state whether the applicant is a good-faith
4-14 claimant;]
4-15 [(3) state whether the applicant seeks to purchase the
4-16 vacancy or obtain a mineral lease on the vacancy;]
4-17 [(4) state the name and last known address of all
4-18 interested persons; and]
4-19 [(5) provide any other information that the
4-20 commissioner requires by rule.]
4-21 [(c) The commissioner by rule shall set an application
4-22 filing fee in an amount of not less than $5. The applicant shall
4-23 pay the filing fee to the county surveyor or county clerk at the
4-24 time the application is filed.]
4-25 [(d) The county surveyor or county clerk shall mark the
4-26 exact date and hour of filing on the original and a duplicate copy
5-1 of the application and shall return a marked copy to the person
5-2 filing the application. The original shall be recorded in a book
5-3 kept for that purpose separate from the deed or real property
5-4 records.]
5-5 [(e) Priority among applications covering the same land
5-6 claimed to be vacant is determined by the time of filing indicated
5-7 by the date and hour marked on the application by the county
5-8 surveyor or county clerk.]
5-9 [Sec. 51.174. ][Filing Application With Commissioner][. (a) The
5-10 applicant shall file with the commissioner a copy of the
5-11 application with the county surveyor's or clerk's mark indicating
5-12 the time of filing not later than the 10th day after the
5-13 application is filed with the county surveyor or clerk. The
5-14 applicant shall include a filing fee set by the commissioner in an
5-15 amount of not less than $100. If the 10th day after filing falls on
5-16 a Saturday, Sunday, or state or federal holiday, the application
5-17 may be filed on the next regular business day following the 10th
5-18 day.]
5-19 [(b) The commissioner shall mark the date of filing on the
5-20 application and assign a file number to the application.]
5-21 [(c) An applicant who does not file the application with the
5-22 commissioner in the time provided in this section or pay the filing
5-23 fee waives all rights under the application.]
5-24 [(d) The commissioner may refuse to accept for filing an
5-25 application that:]
5-26 [(1) has material omissions;]
6-1 [(2) does not describe the land claimed to be vacant
6-2 adequately for the land to be located on the ground; or]
6-3 [(3) describes as vacant land that has been finally
6-4 adjudicated in a court of this state or of the United States not to
6-5 be vacant.]
6-6 [Sec. 51.175. ][Deposit][. (a) If an applicant is not a
6-7 good-faith claimant, the commissioner shall estimate the costs of
6-8 proceeding under the application, including the costs of a survey
6-9 made by a licensed state land surveyor or the county surveyor, the
6-10 preparation of copies and working sketches by the land office, the
6-11 mailing or publication of notices and copies, and other similar
6-12 costs, excluding allocable costs of salaries and overhead expended
6-13 by the land office in actually conducting a hearing or preparing
6-14 orders and proposals for decision.]
6-15 [(b) The commissioner shall notify the applicant in writing
6-16 of the estimated costs and the applicant shall make a deposit with
6-17 the commissioner in the amount of the estimated costs.]
6-18 [(c) If at any time the commissioner determines that the
6-19 funds on deposit are insufficient to pay the costs of the
6-20 proceeding, the commissioner shall estimate the additional amount
6-21 required and shall notify the applicant in writing to make a
6-22 supplemental deposit of the estimated amount. The notice must be
6-23 dated.]
6-24 [(d) The applicant shall make an initial deposit or a
6-25 supplemental deposit not later than the 30th day after the date of
6-26 the written notice to make the deposit. The commissioner shall
7-1 cancel the application if the applicant does not make a required
7-2 deposit within the prescribed time. Cancellation terminates all
7-3 rights under that application.]
7-4 [Sec. 51.176. ][Appeal of Amount of Deposit][. (a) An applicant
7-5 may appeal the amount of an initial deposit or supplemental deposit
7-6 determined by the commissioner in the manner provided for the
7-7 appeal of agency decisions under Chapter 2001, Government Code.]
7-8 [(b) If the applicant does not pay the amount determined by
7-9 the district court on or before the 15th day after the judgment of
7-10 the district court becomes final and nonappealable, the
7-11 commissioner shall cancel the application. Cancellation terminates
7-12 all rights under that application.]
7-13 [Sec. 51.177. ][Disposition of Deposits][. (a) The commissioner
7-14 shall deposit all initial and supplemental deposits received under
7-15 this subchapter to the credit of a separate trust account in the
7-16 treasury. The comptroller, on the commissioner's order, shall make
7-17 disbursements from that account for purposes authorized by this
7-18 subchapter.]
7-19 [(b) After proceedings on an application are concluded and
7-20 all expenditures authorized under this subchapter are paid, the
7-21 commissioner shall provide the applicant a complete statement of
7-22 all deposits and expenditures and shall remit to the applicant any
7-23 balance remaining from the deposit or supplemental deposits made by
7-24 the applicant.]
7-25 [Sec. 51.178. ][Appointment of Surveyor][. (a) Not later than
7-26 the 60th day after the date on which the required deposit is paid,
8-1 the commissioner shall appoint a licensed state land surveyor or
8-2 the county surveyor of the county in which all or a part of the
8-3 land claimed to be vacant is located to make a survey of that land.]
8-4 [(b) The fees and expenses paid for the survey are those
8-5 provided by law. If the fees and expenses are not provided by law,
8-6 the commissioner and surveyor shall make an agreement as to the
8-7 fees and expenses reasonable for the work to be performed.]
8-8 [(c) The fees and expenses shall be paid by the applicant
8-9 and may be paid from the initial deposit or any supplementary
8-10 deposits made by the applicant under this subchapter.]
8-11 [(d) The commissioner shall promulgate rules setting out the
8-12 qualifications and method of selection of surveyors appointed
8-13 pursuant to this section. The rules shall provide the greatest
8-14 practicable opportunity for all qualified surveyors to obtain
8-15 appointment and shall provide the opportunity for an interested
8-16 party to move for the removal of an appointed surveyor on the
8-17 grounds of bias, prejudice, or conflict of interest. No surveyor
8-18 appointed shall be removed, however, except upon notice to the
8-19 surveyor and all interested parties and hearing. The fact of
8-20 removal of a surveyor shall not be a basis for any disciplinary
8-21 action against that surveyor under the Professional Land Surveying
8-22 Practices Act (Article 5282c, Vernon's Texas Civil Statutes).]
8-23 [Sec. 51.179. ][Notice to Interested Persons][. (a) Not later
8-24 than the 10th day after the date on which the commissioner appoints
8-25 the surveyor, the commissioner shall give notice by certified mail,
8-26 return receipt requested, to all interested persons at the last
9-1 known address. The notice shall contain:]
9-2 [(1) the date of the notice;]
9-3 [(2) a statement that a vacancy application has been
9-4 made;]
9-5 [(3) the name, address, and telephone number of the
9-6 surveyor appointed to make the survey;]
9-7 [(4) a statement that the survey may begin any time
9-8 after the 20th day after the date of the notice;]
9-9 [(5) a statement that an interested party is entitled
9-10 to:]
9-11 [(A) observe the conduct of the survey;]
9-12 [(B) receive a copy of the final survey report
9-13 and other documents filed by the surveyor; and]
9-14 [(C) participate in the vacancy proceeding;]
9-15 [(6) a true and legible copy of the application; and]
9-16 [(7) other information the commissioner by rule may
9-17 prescribe.]
9-18 [(b) If the location of an interested person is unknown or
9-19 if a notice is returned as unclaimed or undeliverable, the
9-20 commissioner shall publish notice as prescribed by the Texas Rules
9-21 of Civil Procedure. If notice by publication is made, the survey
9-22 may not begin and further proceedings may not be held until the
9-23 30th day after publication is completed.]
9-24 [(c) If the applicant, another interested person, or the
9-25 surveyor shows that the delay required by Subsection (b) of this
9-26 section may materially affect the accuracy of the survey because of
10-1 destruction, alteration, or removal of natural features, monuments,
10-2 or witness objects, or for other good cause, the commissioner may
10-3 order the survey to proceed. Notice of the request to proceed with
10-4 the survey and of any order issued in response to the request shall
10-5 be mailed first class to all interested persons.]
10-6 [(d) The right of an interested person, personally or
10-7 through a representative or representatives, to observe the conduct
10-8 of a survey made under this subchapter does not require a delay in
10-9 the conduct of a survey solely to allow an interested person or
10-10 that person's representative to be present during the survey.]
10-11 [Sec. 51.180. ][Waiver of Notice][. (a) An interested person
10-12 may waive service of the notice required by Section 51.179 of this
10-13 code by filing with the commissioner a sworn affidavit stating the
10-14 person's intent to waive notice. The affidavit shall state that
10-15 the person executing the waiver has been provided with a true copy
10-16 of the application filed with the commissioner.]
10-17 [(b) The affidavit may also state clearly the interested
10-18 person's intent to waive all further notice of the vacancy
10-19 proceedings. If the affidavit states this intent, it must also
10-20 state prominently and clearly that the interested person is aware
10-21 that waiving the right to further notice may result in the loss of
10-22 the opportunity to appear and to contest the application.]
10-23 [(c) The commissioner by rule may prescribe the form and
10-24 specific content of the affidavit described in this section,
10-25 including additional information to be included.]
10-26 [Sec. 51.181. ][Survey][. (a) Except when notice by publication
11-1 is required, at any time after the 20th day after the date of the
11-2 notice required by Section 51.179(a) of this code, the surveyor
11-3 shall begin the survey of the land claimed to be vacant.]
11-4 [(b) The surveyor shall prepare and file in the land office:]
11-5 [(1) a detailed written report of all aspects of the
11-6 survey, including record research conducted, survey corners
11-7 recovered in the course of the field survey, and details of
11-8 boundary construction using recovered corners;]
11-9 [(2) field notes in the form and content prescribed by
11-10 law, describing the land and the lines and corners surveyed;]
11-11 [(3) a complete plat depicting in detail the survey
11-12 results;]
11-13 [(4) the names and addresses of all persons who have
11-14 possession of the land described in the application and a
11-15 description of the lands occupied by those persons; and]
11-16 [(5) the names and addresses of all persons known to
11-17 the surveyor who have or claim any interest in the land.]
11-18 [(c) The surveyor shall file the report required by this
11-19 section not later than the 140th day after the date of the notice
11-20 required by Section 51.179(a) of this code. If notice by
11-21 publication is required and the commissioner has not ordered the
11-22 survey to proceed, the surveyor shall file the report not later
11-23 than the 170th day after the date on which notice by publication is
11-24 completed. If the commissioner has ordered the survey to proceed,
11-25 the surveyor shall file the report not later than the 140th day
11-26 after the date of the commissioner's order.]
12-1 [(d) For good cause shown, the commissioner by written order
12-2 may extend the time for filing the survey. The order shall state
12-3 the cause for the extension and shall be included in the record. A
12-4 single order may not extend the time for filing by more than 60
12-5 days.]
12-6 [(e) An interested person at the person's own expense may
12-7 have any surveying done that the person considers desirable, but a
12-8 survey report, a plat, or field notes based on a survey made by a
12-9 person not qualified by law to survey public lands in this state
12-10 may not be admitted into evidence in a vacancy proceeding or filed
12-11 in the land office.]
12-12 [(f) The commissioner shall serve a true copy of the survey
12-13 report, field notes, plat, and all other documents filed by the
12-14 surveyor on each interested person, including those named in the
12-15 survey report, by certified mail, return receipt requested, not
12-16 later than the fifth business day after the survey report is filed
12-17 in the land office.]
12-18 [Sec. 51.182. ][Additional Interested Persons][. (a) All
12-19 persons named in the survey report as occupying or as having or
12-20 claiming any interest in the land described in the application
12-21 shall be included in the proceeding as interested persons and shall
12-22 be provided notice as prescribed by this subchapter.]
12-23 [(b) An application may not be canceled or a proceeding
12-24 terminated because of the discovery of an additional interested
12-25 person unless the commissioner finds that the person filing the
12-26 application knowingly and intentionally omitted the name of the
13-1 person from the application.]
13-2 [Sec. 51.183. ][Exceptions][. An interested person may file
13-3 exceptions to the survey report, field notes, and plat not later
13-4 than the 30th day after the date the survey report is filed in the
13-5 land office. A person filing exceptions shall serve a true copy on
13-6 all interested persons and on the surveyor by certified mail,
13-7 return receipt requested. The exceptions shall include a
13-8 certificate of the fact of that service.]
13-9 [Sec. 51.184. ][Additional Surveys][. (a) The commissioner or
13-10 the land office staff may consult with the surveyor. The
13-11 commissioner, after notice to the interested persons, may direct
13-12 the surveyor to make additional surveys, to investigate as the
13-13 commissioner considers necessary, and to prepare supplemental
13-14 reports, plats, and field notes the commissioner requires.]
13-15 [(b) The commissioner shall provide copies of all reports,
13-16 plats, field notes, and other information resulting from additional
13-17 surveys and investigation to all interested persons.]
13-18 [(c) An interested person may file exceptions or other
13-19 responses not later than the 20th day after the surveyor files the
13-20 required documents with the land office.]
13-21 [(d) Service of additional documents and exceptions or
13-22 responses to those documents shall be made as provided by Sections
13-23 51.181 and 51.183 of this code.]
13-24 [Sec. 51.185. ][Action on Application][. (a) Not later than the
13-25 90th day after the date on which the surveyor files the survey
13-26 report and other documents required to be filed, the commissioner
14-1 shall either deny the application as provided by Section 51.186 of
14-2 this code or hold a hearing to determine whether a vacancy exists.]
14-3 [(b) Except as provided by Section 51.192 of this code, the
14-4 commissioner may not find that a vacancy exists unless a hearing is
14-5 held.]
14-6 [(c) The commissioner shall decide all issues raised or that
14-7 could be raised by the application and any exceptions or responses
14-8 to the application, including the existence of a vacancy, the
14-9 boundaries of a vacancy, and the status and rights of any
14-10 interested person as a good-faith claimant or prior applicant.]
14-11 [(d) The commissioner may not decide in a proceeding on an
14-12 application any claim of the state or permanent school fund for
14-13 damages arising from trespass, the removal or use of minerals or
14-14 geothermal resources, mispayment of proceeds from the sale or use
14-15 of minerals or geothermal resources, damages to the soil,
14-16 vegetation, or other life or habitat, and similar or related
14-17 claims. Those claims may be asserted by the commissioner in
14-18 administrative proceedings under rules adopted by the commissioner
14-19 or through suit brought by the attorney general at the request of
14-20 the commissioner.]
14-21 [(e) Evidence or testimony regarding the existence or extent
14-22 of mineral development or other economic use of land claimed to be
14-23 vacant may not be introduced or considered, unless that evidence or
14-24 testimony is relevant to determine the existence or boundaries of
14-25 the alleged vacancy or the status of a person as a good-faith
14-26 claimant.]
15-1 [Sec. 51.186. ][Denial of Application][. (a) If, after
15-2 reviewing the survey report, any supplemental reports, any
15-3 exceptions to the reports, all pertinent publicly available records
15-4 of the land office and the state archives, and land office staff
15-5 recommendations, the commissioner decides that the land claimed to
15-6 be vacant is not vacant, the commissioner may enter an order
15-7 denying the application. The order shall contain findings of fact,
15-8 conclusions of law, and other matters the commissioner considers
15-9 appropriate.]
15-10 [(b) The commissioner shall promptly send a true copy of the
15-11 order denying the application to the applicant by certified mail,
15-12 return receipt requested.]
15-13 [(c) The commissioner shall place in the file assigned to
15-14 the application the original order, all materials filed by the
15-15 surveyor, all exceptions and responses to the surveyor's filings,
15-16 all memoranda provided to the commissioner by the land office
15-17 staff, a list of all files and records of the land office and state
15-18 archives examined by the staff or commissioner in connection with
15-19 the application, and all other relevant papers.]
15-20 [(d) An interested person may request a rehearing and appeal
15-21 the commissioner's order as provided by Chapter 2001, Government
15-22 Code and by rules adopted by the commissioner consistent with that
15-23 Act. If a rehearing is not requested, the order becomes final on
15-24 the 30th day after the date it is signed. If a rehearing is
15-25 requested and denied, the order becomes final on the date that time
15-26 for appeal to the district court expires. If appeal is taken, the
16-1 order becomes final on the date that a judgment disposing of the
16-2 order becomes final.]
16-3 [(e) When the commissioner's order denying the vacancy is
16-4 final, all rights under the application are terminated.]
16-5 [Sec. 51.187. ][Effect of Final Order][. (a) A final order of
16-6 the commissioner under this subchapter is conclusive with respect
16-7 to the land described in the application or final order. A final
16-8 order of the commissioner does not have the effect of stare decisis
16-9 with respect to land not described in the application or final
16-10 order, but may be considered with all other evidence.]
16-11 [(b) The cancellation, withdrawal, abandonment, or
16-12 termination of an application, the refusal of the commissioner to
16-13 accept an application for filing, or the order or judgment of any
16-14 court resulting in or affecting such an action has no effect on a
16-15 subsequent determination of whether any land described in the
16-16 application is vacant.]
16-17 [(c) A decision of the commissioner issued before September
16-18 1, 1993, that denies a vacancy application or letter of inquiry is
16-19 not conclusive as to the existence or nonexistence of a vacancy.]
16-20 [Sec. 51.188. ][Rulemaking; Venue of Appeals][. (a) A hearing
16-21 under this subchapter and further proceedings arising from the
16-22 hearing shall be conducted in accordance with Chapter 2001,
16-23 Government Code and rules adopted by the commissioner consistent
16-24 with that Act.]
16-25 [(b) Appeal of a final order of the commissioner is to a
16-26 district court of the county in which the land claimed to be vacant
17-1 or a part of that land is located. The district court shall review
17-2 the commissioner's order under the substantial evidence rule.]
17-3 [Sec. 51.189. ][Commissioner's Order][. (a) If it appears to
17-4 the commissioner that the alleged vacancy is not in conflict with
17-5 land previously titled, awarded, or sold by the state or its
17-6 predecessor sovereigns, the commissioner shall enter an order
17-7 declaring the existence of a vacancy and determining all other
17-8 issues.]
17-9 [(b) If it appears to the commissioner that the land claimed
17-10 to be vacant is not vacant, the commissioner shall enter an order
17-11 denying the application and determining all other issues.]
17-12 [(c) The commissioner shall base the order on the testimony
17-13 and other competent evidence presented at the hearing, the
17-14 surveyor's filings and all supplements to those filings, any
17-15 exceptions or responses to the surveyor's filings and all
17-16 supplements to those filings, and the publicly available records of
17-17 the land office and the state archives. The commissioner and the
17-18 examiner or examiners who conduct hearings on the application may
17-19 consult with the land office staff and the surveyor to the extent
17-20 permitted by Chapter 2001, Government Code. The record shall
17-21 include a list of the names and titles of all staff consulted, a
17-22 list of the files and documents of the land office and state
17-23 archives examined, and a copy of all memoranda provided to the
17-24 examiners or commissioner by the land office staff or by the
17-25 surveyor.]
17-26 [(d) The order shall contain:]
18-1 [(1) findings of fact;]
18-2 [(2) conclusions of law;]
18-3 [(3) a field note description of the land, if any,
18-4 found to be vacant, sufficient to locate it on the ground, and
18-5 other elements required by law;]
18-6 [(4) an accurate plat of the land, if any, found to be
18-7 vacant consistent with the field notes and prepared by the surveyor
18-8 or a licensed state land surveyor on the land office staff; and]
18-9 [(5) other matters the commissioner considers
18-10 appropriate.]
18-11 [(e) The commissioner's order may adopt, without restating,
18-12 the findings of fact and conclusions of law stated in a proposal
18-13 for decision prepared by the examiner or examiners who conducted
18-14 the hearings and any opinion or statement contained in that
18-15 proposal for decision.]
18-16 [Sec. 51.190. ][Determination of Boundaries; Reopening][.
18-17 (a) In determining the boundaries and size of a vacancy, the
18-18 commissioner is not restricted to a description of the land claimed
18-19 to be vacant that is provided by the applicant, the surveyor, or an
18-20 interested party. The commissioner shall adopt the description of
18-21 a vacancy that best describes the vacancy and is consistent with
18-22 the information available under this section.]
18-23 [(b) If in determining the boundaries and size of a vacancy
18-24 it becomes apparent to the commissioner that persons who have not
18-25 been named as interested persons and who have not been served
18-26 notice of the proceeding under the application may be affected by
19-1 the finding that a vacancy exists at the location and with the
19-2 boundaries believed by the commissioner to conform to the record,
19-3 the proceeding shall be reopened and the persons affected shall be
19-4 joined as interested persons and given an opportunity to
19-5 participate adequately in the proceeding. This subsection does not
19-6 require the refiling of an application or the conduct of a new
19-7 survey by the surveyor.]
19-8 [Sec. 51.191. ][Good-Faith Claimant Status][. (a) An applicant
19-9 or interested person who wishes to assert status as a good-faith
19-10 claimant may file notice of claim of good-faith status at any time
19-11 before the 20th day preceding the date on which the first hearing
19-12 begins. The notice of claim of good-faith status shall state the
19-13 grounds for the claim and describe the land claimed to be affected
19-14 by the good-faith status. The notice shall be filed in the land
19-15 office and served on all interested persons by certified mail,
19-16 return receipt requested.]
19-17 [(b) Filing notice of claim of good-faith status is not an
19-18 admission by the person asserting the claim that a vacancy exists.]
19-19 [Sec. 51.192. ][Order Without Notice and Hearing][. (a) An
19-20 applicant who asserts status as a good-faith claimant may present
19-21 evidence to the commissioner that:]
19-22 [(1) the good-faith claimant owns all of the land and
19-23 interests in land completely surrounding the land claimed to be
19-24 vacant;]
19-25 [(2) there is no subsisting prior application covering
19-26 the land described in the good-faith claimant's application;]
20-1 [(3) no previous application has been made covering
20-2 the land described in the good-faith claimant's application; and]
20-3 [(4) the good-faith claimant meets all other
20-4 requirements of a good-faith claimant.]
20-5 [(b) If the commissioner finds that the evidence presented
20-6 is accurate, further notice to other persons is not required and,
20-7 on acceptance for filing by the commissioner of a survey made by a
20-8 licensed state land surveyor or the county surveyor of the county
20-9 in which the land claimed to be vacant or a part of that land is
20-10 located, the commissioner may enter an order declaring the
20-11 existence of the vacancy and determining the good-faith status of
20-12 the applicant.]
20-13 [(c) For purposes of this section, land claimed to be vacant
20-14 and surrounded by lands owned only by the good-faith claimant and
20-15 the state is considered to be surrounded completely by land owned
20-16 by the good-faith claimant.]
20-17 [(d) Two or more persons may jointly apply as good-faith
20-18 claimants under this section if together they meet the requirements
20-19 of Subsection (a) of this section.]
20-20 [(e) A person who would have been an interested person under
20-21 an application made under this subchapter by a person other than a
20-22 good-faith claimant may move to set aside an order entered under
20-23 this section by filing a written motion with the commissioner not
20-24 later than the second anniversary of the date of that order. The
20-25 person shall serve a true copy of the motion by certified mail,
20-26 return receipt requested, on the applicant and all persons holding
21-1 or claiming under the applicant.]
21-2 [(f) The commissioner shall set aside an order issued under
21-3 this section finding that a vacancy exists if, after notice and
21-4 hearing, the commissioner finds that the person asserting rights
21-5 under this section, at the time the order declaring the vacancy was
21-6 entered, did not:]
21-7 [(1) qualify as a good-faith claimant under this
21-8 subchapter;]
21-9 [(2) own all of the land and interests in land
21-10 surrounding the land claimed to be vacant; or]
21-11 [(3) meet another material requirement of this
21-12 section.]
21-13 [(g) The commissioner on the commissioner's own motion may
21-14 set aside an order after notice and hearing as required by
21-15 Subsections (e) and (f) of this section.]
21-16 [(h) If the order is set aside, the commissioner shall
21-17 reopen the proceeding on the application and conduct the reopened
21-18 proceeding in the same manner as proceedings on other applications.]
21-19 [(i) The issues in a reopened proceeding are limited to the
21-20 status of the applicant as a good-faith claimant entitled to rights
21-21 under this section and the rights of any other person as an
21-22 applicant or good-faith claimant.]
21-23 [(j) An application of a good-faith claimant who does not
21-24 own all of the land and interests in land completely surrounding
21-25 the land claimed to be vacant is treated as an application under
21-26 other sections of this subchapter.]
22-1 [Sec. 51.193. ][Sale or Lease of Vacancy][. (a) When a vacancy
22-2 has been established by final order, the school land board may sell
22-3 or lease the vacancy as provided by this subchapter.]
22-4 [(b) The board shall set the sale price and other terms and
22-5 conditions as in all other sales of other lands dedicated to the
22-6 permanent school fund. The sale price may not be less than the
22-7 fair market value as determined by an appraisal conducted by the
22-8 land office.]
22-9 [(c) The fee prescribed in Section 32.110(a) of this code
22-10 applies to all sales and leases made under this subchapter.]
22-11 [(d) The board may allow a credit against the sale price in
22-12 an amount not to exceed the actual cost of the survey paid by an
22-13 applicant or good-faith claimant if:]
22-14 [(1) the purchaser is a person exercising a
22-15 preferential right to purchase under this subchapter;]
22-16 [(2) the board has reserved all mineral and geothermal
22-17 leasing rights; and]
22-18 [(3) the board finds that the fair market value of the
22-19 mineral estate is equal to or exceeds 50 percent of the amount of
22-20 the credit.]
22-21 [Sec. 51.194. ][Market Value; Mediation; Binding Arbitration][.
22-22 (a) A person seeking to purchase a vacancy by exercising a right
22-23 of preferential purchase under this subchapter, by filing a written
22-24 request with the commissioner, may have the issue of market value
22-25 submitted to mediation before a trained mediator acceptable to both
22-26 the board and the person seeking to purchase the vacancy if:]
23-1 [(1) the price set by the board under Section 51.193
23-2 of this code exceeds by 15 percent or more the market value
23-3 estimated in an appraisal made by a real estate appraiser certified
23-4 in Texas for the person seeking to purchase the vacancy; and]
23-5 [(2) the appraisal was made not more than six months
23-6 before the date on which the board set the price.]
23-7 [(b) If agreement on price is not reached through mediation
23-8 on or before the 60th day after the first mediation session, the
23-9 person seeking to purchase the vacancy, by filing a written request
23-10 with the commissioner, may have the issue of market value submitted
23-11 to binding arbitration.]
23-12 [(c) A panel of three real estate appraisers certified in
23-13 Texas shall conduct the arbitration. The person seeking to
23-14 purchase the vacancy shall name one member of the panel, the board
23-15 shall name one member of the panel, and the two panel members shall
23-16 name the third member of the panel, who is the panel's presiding
23-17 officer. The board or the person seeking to purchase the vacancy
23-18 may object to and have disqualified the first person named to the
23-19 panel by the other party. Appraisers employed by or who contract
23-20 with the land office are eligible to serve on the arbitration
23-21 panel.]
23-22 [(d) The arbitration shall be conducted under the rules of
23-23 the American Arbitration Association or under other rules agreed on
23-24 by the parties.]
23-25 [(e) The decision of the arbitration panel is not subject to
23-26 judicial review.]
24-1 [(f) The costs of mediation and arbitration shall be shared
24-2 equally by the land office and the person seeking to purchase the
24-3 vacancy.]
24-4 [Sec. 51.195. ][Conditions of Sale; Mineral Awards][. (a) In
24-5 all sales, the board shall reserve to the permanent school fund all
24-6 oil, gas, sulphur, and other minerals and geothermal resources and
24-7 shall determine the manner in which those minerals and geothermal
24-8 resources are to be leased.]
24-9 [(b) Before the sale of a vacancy, the land office shall
24-10 prepare and present to the board a study of the mineral prospects
24-11 and value of the vacancy, taking into consideration the size and
24-12 configuration of the vacancy, its location with respect to other
24-13 surrounding and nearby tracts, the proximity of mineral production,
24-14 and the likelihood of future mineral leasing and development. The
24-15 study shall include a recommendation as to the method most
24-16 advantageous to the state by which the vacancy could be leased.]
24-17 [(c) The board shall review the study and land office
24-18 recommendations and shall determine whether:]
24-19 [(1) the state shall retain all leasing rights and the
24-20 vacancy shall be leased as provided in Subchapter B, Chapter 52,
24-21 and Subchapters B2 and E, Chapter 53, of this code; or]
24-22 [(2) the owner of the soil shall be designated to
24-23 execute leases as the agent of the state subject to the rights,
24-24 obligations, and liabilities of Subchapter F, Chapter 52, and
24-25 Subchapter C, Chapter 53, of this code.]
24-26 [(d) If the board determines that the owner of the soil
25-1 shall act as agent under Subsection (c)(2) of this section, the
25-2 board shall establish the division of bonus, rental, and royalty
25-3 between the permanent school fund and the owner of the soil. The
25-4 portion to be paid to the owner of the soil may not be less than 20
25-5 percent or more than 50 percent. The board may establish different
25-6 portions to be paid to the owner of the soil for the lease of
25-7 different substances.]
25-8 [(e) If the board provides for lease by the owner of the
25-9 soil under Subsection (c)(2) of this section, the original
25-10 purchaser is a good-faith claimant, and the vacancy was established
25-11 under an application made by a person other than a good-faith
25-12 claimant, the board shall award the applicant a perpetual
25-13 nonparticipating royalty of not less than 1/32 or more than 1/16 of
25-14 the value of all oil, gas, and sulphur produced and a perpetual
25-15 nonparticipating royalty of not less than one percent or more than
25-16 two percent of the value of all geothermal resources and all other
25-17 minerals produced.]
25-18 [(f) If the board determines that the state shall retain all
25-19 leasing rights as provided in Subsection (c)(1) of this section,
25-20 the board shall award:]
25-21 [(1) to an applicant other than a good-faith claimant,
25-22 a perpetual nonparticipating royalty of 1/32 of the value of oil
25-23 and gas and sulphur and one percent of the value of all geothermal
25-24 resources and all other minerals produced; and]
25-25 [(2) to a good-faith claimant purchasing the vacancy,
25-26 a nonparticipating royalty of 1/32 of the value of oil and gas and
26-1 sulphur and one percent of the value of all geothermal resources
26-2 and all other minerals produced.]
26-3 [(g) If a preferential right to obtain the first mineral
26-4 lease on a vacancy is exercised by any person, the state's royalty
26-5 under the lease shall be reduced by 25 percent for a period of five
26-6 years after the date of first production under the first lease if
26-7 sales of production from or attributable to the lease are commenced
26-8 during the primary term of the lease.]
26-9 [Sec. 51.196. ][Preferential Right of Good-Faith Claimant][.
26-10 (a) A good-faith claimant has a preferential right to purchase or
26-11 lease the portion of a vacancy subject to the good-faith claim.]
26-12 [(b) A good-faith claimant may exercise the preferential
26-13 right by filing a notice of intent to purchase or lease, on a form
26-14 prescribed by the board, not later than the 90th day after the date
26-15 the order establishing the vacancy becomes final. The good-faith
26-16 claimant shall describe in the notice the portion of the vacancy
26-17 the good-faith claimant seeks to purchase or lease. The good-faith
26-18 claimant shall mail a copy of the notice to the applicant and to
26-19 all other interested persons who have asserted status as good-faith
26-20 claimants.]
26-21 [(c) All preferential rights held by a good-faith claimant
26-22 expire if the good-faith claimant does not file the notice of
26-23 intent within the time prescribed by Subsection (b) of this section
26-24 or does not complete the purchase or lease within 60 days after the
26-25 board sets the terms of the purchase or lease. For good cause
26-26 shown, the board may extend the time to complete the purchase or
27-1 lease by a period not to exceed 90 days.]
27-2 [(d) A good-faith claimant exercising a preferential right
27-3 shall repay to the applicant the applicant's reasonable expenses
27-4 incurred in determining the existence of a vacancy, excluding
27-5 filing and attorney fees, not later than the date on which the sale
27-6 or purchase by the good-faith claimant is completed. Failure to
27-7 pay the expenses cancels the preferential right of the good-faith
27-8 claimant.]
27-9 [Sec. 51.197. ][Preferential Right of Applicant Other Than
27-10 Good-Faith Claimant][. (a) On the expiration of the preferential
27-11 right of a good-faith claimant to purchase or lease or if there is
27-12 no good-faith claimant, an applicant who is not a good-faith
27-13 claimant has a preferential right to purchase or lease all or any
27-14 portion of the vacancy.]
27-15 [(b) An applicant may exercise the preferential right by
27-16 filing a notice of intent to purchase or lease, on a form
27-17 prescribed by the board, not later than the 90th day after the date
27-18 on which the rights of the good-faith claimant expire. The
27-19 applicant shall describe in the notice the portion of the vacancy
27-20 the applicant seeks to purchase or lease. The applicant shall mail
27-21 a copy of the notice to all other interested persons asserting
27-22 status as good-faith claimants.]
27-23 [(c) All preferential rights held by an applicant expire if
27-24 the applicant does not file the notice of intent within the time
27-25 prescribed by Subsection (b) of this section or does not complete
27-26 the purchase or lease within 60 days after the date on which the
28-1 board sets the terms of the purchase or lease. For good cause
28-2 shown, the board may extend the time to complete the purchase or
28-3 lease by a period not to exceed 90 days.]
28-4 [Sec. 51.198. RIGHTS ASSIGNABLE. An applicant or good-faith
28-5 claimant may assign all rights in a vacancy or land claimed to be
28-6 vacant. The assignment must be in writing. The assignor shall
28-7 record the assignment in the real property records of the county or
28-8 counties in which the vacancy or land claimed to be vacant is
28-9 located and file a certified copy of the recorded assignment in the
28-10 land office.]
28-11 [Sec. 51.199. ][Lease Terms Under Preferential Rights][. The
28-12 board shall prescribe terms for preferential purchases or leases
28-13 consistent with this subchapter. The board may not grant a
28-14 preferential lease with a royalty of less than 1/8 of the value of
28-15 all oil, gas, and sulphur produced or less than five percent of the
28-16 value of all geothermal resources and all other minerals produced.]
28-17 [Sec. 51.200. ][Effect of Prior Conveyances][. (a) A mineral
28-18 lease, surface lease, deed, or any other conveyance of any interest
28-19 in land executed by a good-faith claimant before the date of
28-20 completion of a sale or lease under this subchapter does not give
28-21 the grantee under that conveyance any interest in or to the vacancy
28-22 or its minerals.]
28-23 [(b) A title to land or an interest in land acquired from
28-24 the state under a preferential right does not pass as
28-25 after-acquired title under a covenant of general warranty,
28-26 description, or other provision contained in a conveyance executed
29-1 before the date of completion of a sale or lease under this
29-2 subchapter.]
29-3 [Sec. 51.201. ][Rulemaking Authority][. (a) The commissioner
29-4 may adopt rules consistent with this subchapter relating to
29-5 applications to purchase or lease vacancies and the determination
29-6 of the existence of vacancies.]
29-7 [(b) The board may adopt rules consistent with this
29-8 subchapter relating to the sale and lease of vacancies.]
29-9 [Sec. 51.202. ][Conflict With Other Code Provisions][. To the
29-10 extent that any provision of this subchapter pertaining to
29-11 vacancies or the sale or lease of vacancies conflicts with any
29-12 other provision of this code, this subchapter controls.]
29-13 Sec. 51.170. PURPOSE. This subchapter controls the purchase
29-14 and lease of vacant land and the authority of the commissioner of
29-15 the general land office and the school land board to determine
29-16 whether a vacancy exists and to sell and lease vacant land. To the
29-17 extent any provision of this subchapter conflicts with any other
29-18 laws pertaining to vacant land, this subchapter controls.
29-19 Sec. 51.171. DEFINITIONS. In this subchapter:
29-20 (1) "Applicant" means any person who files an
29-21 application to purchase or lease vacant land.
29-22 (2) "Commissioner" means the commissioner of the
29-23 general land office.
29-24 (3) "Good-faith claimant" means any person:
29-25 (a) who occupies or uses or has previously occupied or used
29-26 or whose predecessors in interest have occupied or used a vacancy
30-1 for purposes other than exploring for or removing oil, gas,
30-2 sulphur, or other minerals and geothermal resources, from the
30-3 vacancy; and
30-4 (b) who has himself or whose predecessors in interest had
30-5 the vacancy enclosed or within definite recognized boundaries and
30-6 in possession for a period of 10 years with a good faith belief
30-7 that the vacancy was included inside the boundaries of the survey
30-8 or surveys that were previously titled, awarded, or sold under
30-9 circumstances that would have vested title in the vacancy if it
30-10 were actually located within the boundaries of the survey or
30-11 surveys whose boundaries are recognized in the community.
30-12 (4) "Interested person" means any person, not a
30-13 good-faith claimant or an applicant, who has a present legal
30-14 interest in the surface or mineral estate of the land claimed to be
30-15 vacant.
30-16 (5) "Necessary Party" means any applicant, interested
30-17 person and good-faith claimant, whose present legal interest in the
30-18 surface or mineral estate of the land alleged to be vacant, may be
30-19 adversely affected by a vacancy determination.
30-20 (6) "Terminated application" or "application
30-21 terminates" means that no further action will be taken on the
30-22 application and the general land office file is closed.
30-23 (7) "Vacancy" means an area of unsurveyed public
30-24 school land that:
30-25 (a) is not in conflict on the ground with land
30-26 previously titled, awarded, or sold;
31-1 (b) has not been listed on the records of the land
31-2 office as public school land; and
31-3 (c) was not, on the date of filing of an application:
31-4 (i) subject to an earlier subsisting
31-5 application; or
31-6 (ii) the subject of pending litigation
31-7 regarding State ownership or possession of the land.
31-8 Sec. 51.172. DISPOSITION OF VACANT LAND. (a) Vacant and
31-9 unsurveyed public school land shall be located, sold, and leased
31-10 under this subchapter, except:
31-11 (1) submerged lands within tidewater limits;
31-12 (2) all islands, flats, and emergent lands within
31-13 tidewater limits;
31-14 (3) natural lakes; and
31-15 (4) riverbeds, including channels and islands in
31-16 riverbeds, above tidewater limits.
31-17 (b) Public Domain. This subchapter does not alter or
31-18 diminish the public domain status of the surface estate of
31-19 riverbeds and channels and islands in riverbeds that are located
31-20 above tidewater limits.
31-21 Sec. 51.173. GENERAL POWERS AND DUTIES OF COMMISSIONER. (a)
31-22 The commissioner may, for good cause shown, waive any provision of
31-23 this subchapter, may delegate responsibility for implementing the
31-24 requirements of this subchapter, and may perform any other act
31-25 necessary to administer and effectuate the purposes of this
31-26 subchapter.
32-1 (b) The commissioner may promulgate rules necessary and
32-2 convenient to the administration of this subchapter.
32-3 (c) The commissioner shall advise the School Land Board
32-4 regarding the fair market value of the surface and mineral estates
32-5 of vacant land.
32-6 Sec. 51.174. GENERAL POWERS AND DUTIES OF THE SCHOOL LAND
32-7 BOARD. (a) The board shall set the terms and conditions for the
32-8 sale and lease of vacant land.
32-9 (b) The board shall adopt rules governing such terms and
32-10 conditions. The rules shall be promulgated and amended as
32-11 necessary to be consistent with Texas property law and other
32-12 applicable prevailing laws.
32-13 (c) The board may adopt rules governing mineral
32-14 classification, royalty reservations, and awards of royalty
32-15 reservations and preferential rights to an applicant or to a
32-16 good-faith claimant in addition to those provided for in this
32-17 subchapter.
32-18 Sec. 51.175. APPLICATION. (a) An application to purchase or
32-19 lease land claimed to be vacant shall be on a form prescribed by
32-20 the Commissioner. A completed application must:
32-21 (1) describe the land that is claimed to be vacant;
32-22 (2) state whether the applicant seeks to purchase the
32-23 vacancy or obtain a mineral lease on the vacancy;
32-24 (3) give the names and addresses of any persons who,
32-25 from facts known to the applicant, assert any present legal
32-26 interest in the alleged vacant land;
33-1 (4) if applicable, state the basis, and provide
33-2 documentary proof, for an assertion of good-faith-claimant status;
33-3 and
33-4 (5) provide any other information required by the
33-5 commissioner.
33-6 (b) The applicant must file the application with the county
33-7 surveyor of the county in which all or part of the land claimed to
33-8 be vacant is located. If the county does not have a county
33-9 surveyor, the application must be filed with the county clerk.
33-10 (c) The county surveyor or county clerk shall mark the exact
33-11 date and hour of filing on the original and a duplicate copy of the
33-12 application and shall return a marked copy to the person filing the
33-13 application. The original shall be recorded in a book kept for
33-14 that purpose separate from the deed or real property records.
33-15 (d) Priority among applications covering the same land
33-16 claimed to be vacant is determined by the time of filing indicated
33-17 by the date and hour marked on the application by the county
33-18 surveyor or county clerk.
33-19 (e) The applicant shall file with the commissioner the
33-20 duplicate copy of the application with the county official's mark
33-21 indicating the time of filing not later than the 10th day after the
33-22 application is filed with the county surveyor or clerk. If the
33-23 10th day after filing falls on a Saturday, Sunday, or state or
33-24 federal holiday, the application may be filed on the next regular
33-25 business day following the 10th day. The applicant shall include a
33-26 filing fee set by the commissioner in an amount of not less than
34-1 $100.
34-2 Sec. 51.176. PROCESSING THE APPLICATION. (a) Filing the
34-3 Application. The commissioner shall assign a file number to and
34-4 mark the date of filing on the application.
34-5 (b) Acceptance of Application. The commissioner shall
34-6 accept any application filed in compliance with this subchapter and
34-7 shall notify the applicant upon acceptance.
34-8 (c) Rejection of Application. The commissioner may reject
34-9 any application and shall notify the applicant of the rejection
34-10 when the application:
34-11 (1) has material omissions;
34-12 (2) does not describe the land claimed to be vacant
34-13 adequately for the land to be located on the ground; or
34-14 (3) describes as vacant land that has been finally
34-15 adjudicated in a court of this state or of the United States not to
34-16 be vacant.
34-17 (d) Termination of Application. A rejected application is
34-18 terminated.
34-19 Sec. 51.177. APPLICATION FOR AND DETERMINATION OF GOOD-FAITH
34-20 CLAIMANT STATUS. (a) Time of Application. Any person may apply
34-21 for good-faith claimant status, either at the time of the filing of
34-22 an application under Sec. 51.176 or within sixty days after
34-23 publication of the notices required under Sec. 51.179(d).
34-24 (b) Contents of Application: The application shall include
34-25 certified copies of applicable county records supporting the
34-26 good-faith claimant status as defined in Sec. 51.171(3).
35-1 (c) Declaration of Status. The Commissioner shall, after
35-2 expiration of the time for application in subsection (a), declare
35-3 whether any person is a good-faith claimant. The Commissioner may
35-4 consider documents filed in support of good-faith-claimant status,
35-5 any other relevant information, and may conduct an investigation
35-6 under Sec. 51.184 as necessary to decide the application. The
35-7 declaration of good-faith claimant status is solely within the
35-8 discretion of the land commissioner and no person is entitled to a
35-9 declaration of good-faith claimant status. The declaration of the
35-10 commissioner under this subsection is not a final order and cannot
35-11 be appealed, except as provided by Sec. 51.187.
35-12 (d) Effect of Declaration. The declaration of
35-13 good-faith-claimant status bestows a preferential right to purchase
35-14 or lease the land in accordance with this subchapter; however, it
35-15 does not confer any other rights.
35-16 Sec. 51.178. IDENTIFICATION OF AND NOTICE TO NECESSARY
35-17 PARTIES. (a) Identification. The applicant shall identify
35-18 necessary parties by the name and last known address of any owners
35-19 or claimants of land or any interest in land or of leases on,
35-20 adjoining, overlapping, or including the land claimed to be vacant
35-21 as far as can be determined from the records of the land office and
35-22 the county clerk's office.
35-23 (b) Notice. The applicant shall provide each necessary
35-24 party with the notice of the commissioner's acceptance of the
35-25 application, a copy of the application and a waiver of notice form
35-26 within 90 days of receipt of notice of commissioner's acceptance of
36-1 the application.
36-2 (c) Waiver of Notice. A necessary party is entitled to
36-3 notices required by this subchapter. A necessary party may, upon
36-4 execution of a waiver of right to notice, decline future notices by
36-5 informing the applicant and the general land office. However the
36-6 waiver shall not affect the rights of the party and shall not waive
36-7 any party's right to notice of a final order under section 51.185.
36-8 (d) Publication of Notice: Within 30 days after mailing of
36-9 the notices under subsection (c), the applicant must publish notice
36-10 of the commissioner's acceptance of the application in newspapers
36-11 of general circulation in the county and the general area where the
36-12 land is located for a period determined by the commissioner. The
36-13 published notice shall contain a description of the land claimed to
36-14 be vacant.
36-15 Sec. 51.179. DEPOSIT. (a) Cost recovery. The Commissioner
36-16 may recover state funds expended in the investigation and hearings
36-17 conducted under this subchapter.
36-18 (b) Initial Deposit. Within 30 days after the publication
36-19 required by Sec. 51.178 is complete, the Commissioner may require
36-20 the applicant to submit a deposit, which must be tendered within 30
36-21 days, in an amount sufficient to pay the costs of any survey and
36-22 investigation required under this subchapter.
36-23 (c) Supplemental Deposit. If the amount deposited becomes
36-24 insufficient, the commissioner may make a written request for a
36-25 reasonably necessary supplemental deposit, which must be tendered
36-26 within 30 days after the request.
37-1 (d) No Appeal. An applicant may not challenge or appeal the
37-2 amount of the required deposits and his refusal or failure to make
37-3 the required deposits terminates the application.
37-4 Sec. 51.180. DISPOSITION OF DEPOSITS. (a) Trust Account.
37-5 The commissioner shall deposit all initial and supplemental
37-6 deposits received under this subchapter to the credit of a separate
37-7 trust account in the treasury. The comptroller, on the
37-8 commissioner's order, shall make disbursements from that account
37-9 for purposes authorized by this subchapter.
37-10 (b) Accounting. After proceedings on an application are
37-11 concluded and all expenditures authorized under this subchapter are
37-12 paid, the commissioner shall provide the applicant a complete
37-13 statement of all deposits and expenditures and shall remit to the
37-14 applicant any balance remaining from the deposit or supplemental
37-15 deposits made by the applicant.
37-16 Sec. 51.181. COMMISSIONER'S SURVEY. (a) Appointment. The
37-17 commissioner may appoint a surveyor, who shall be a Licensed State
37-18 Land Surveyor or the county surveyor of the county in which the
37-19 alleged vacancy or part of the alleged vacancy is located, to
37-20 investigate the applicant's claim.
37-21 (b) Notice of Appointment. The commissioner shall, at least
37-22 30 days prior to initiation of the appointed surveyor's on the
37-23 ground work, mail a notice of intention to survey to all necessary
37-24 parties. The notice shall contain the proposed starting date of
37-25 the survey and the name, address, and telephone number of the
37-26 appointed surveyor.
38-1 (c) Fees and Expenses. The fees and expenses paid for the
38-2 survey shall be the same as provided by law; when the fees and
38-3 expenses are not provided by law, the commissioner shall contract
38-4 for fees and expenses reasonably necessary for the scope of the
38-5 required work.
38-6 (d) Reliance on existing surveys and records. The
38-7 appointment of a surveyor is not required. The commissioner may
38-8 rely on any survey conducted by a licensed state land surveyor or a
38-9 county surveyor and any documents or public records required to
38-10 determine whether a vacancy exists.
38-11 Sec. 51.182. SURVEYOR'S REPORT. (a) Report required. The
38-12 appointed surveyor shall file a written report of the survey,
38-13 together with field notes describing the land and the lines and
38-14 corners surveyed and a plat showing the results of the survey and
38-15 any other matter required by the commissioner, within 120 days
38-16 after the appointment. The commissioner may extend the time for
38-17 filing the report as reasonably necessary.
38-18 (b) The survey report shall also contain the names and
38-19 post-office addresses of all person who have possession of the land
38-20 described in the application and of all persons found by the
38-21 surveyor who have any present legal interest in the land.
38-22 Sec. 51.183. COMPLETION OF THE SURVEY. (a) Notice of
38-23 Completion. The commissioner shall serve a true copy of the survey
38-24 report filed by the appointed surveyor on each necessary party,
38-25 including those named in the survey report, by certified mail,
38-26 return receipt requested, not later than the tenth business day
39-1 after the survey report is filed with the land office.
39-2 (b) Exceptions. Any necessary party may file exceptions to
39-3 the appointed surveyor's report within 30 days of receipt of the
39-4 notice of completion. If the commissioner does not appoint a
39-5 surveyor, the necessary parties may file exceptions to a survey
39-6 report filed by the applicant during a time established by the
39-7 commissioner. Any exceptions shall be filed with the land office
39-8 and a copy sent to each necessary party.
39-9 Sec. 51.184. INVESTIGATION. (a) Nature of investigation.
39-10 The Commissioner shall conduct an investigation into the
39-11 applicant's claim that a vacancy exists. The Commissioner may
39-12 conduct a hearing. A hearing under this subchapter is not a
39-13 contested case hearing and is not subject to the Administrative
39-14 Procedure Act, Gov't. Code 2001, et seq. The Commissioner is not
39-15 required to grant any hearings under this subchapter.
39-16 (b) Notice of hearing; scope of hearing. The Commissioner
39-17 shall determine the scope of any hearings to investigate an
39-18 application for good-faith-claimant status and an application to
39-19 purchase or lease vacant land. If the Commissioner grants a
39-20 hearing, he shall provide timely notice of the time and place of
39-21 the hearing to necessary parties and shall afford a necessary party
39-22 an opportunity to be heard. Any other procedural rights, including
39-23 any right to examine or cross-examine witnesses, may be granted in
39-24 the sole discretion of the Commissioner.
39-25 (c) Scope of Investigation. The commissioner may consult
39-26 with any land office employee, including the chief surveyor,
40-1 relevant expert, or other person during the investigation.
40-2 (d) Investigation Record. The commissioner shall record the
40-3 names of the persons consulted, the documents and surveys reviewed,
40-4 the relevant law and any other materials used in the investigation.
40-5 Sec. 51.185. COMMISSIONER'S FINAL ORDER. (a) If it appears
40-6 to the commissioner that the alleged vacancy is not in conflict
40-7 with land previously titled, awarded, or sold by the state, the
40-8 commissioner may determine that a vacancy exists. The commissioner
40-9 shall notify all necessary parties by mailing them a copy of the
40-10 vacancy determination. The vacancy determination is a final order
40-11 of the commissioner and may be appealed in accordance with Sec.
40-12 51.186.
40-13 (b) Contents of Order. An vacancy determination order shall
40-14 contain:
40-15 (1) field note description of the land found to be
40-16 vacant sufficient to locate it on the ground;
40-17 (2) an accurate plat of the land that is consistent
40-18 with the field notes and prepared by a licensed state land
40-19 surveyor; and
40-20 (3) any other matters the commissioner considers
40-21 appropriate or required by law.
40-22 (c) Description of Vacant Land. In determining the
40-23 boundaries and size of a vacancy, the commissioner is not
40-24 restricted to a description of the land claimed to be vacant that
40-25 is provided by the applicant, the surveyor, or any person. The
40-26 commissioner shall adopt the description of a vacancy that best
41-1 describes the vacancy and is consistent with the investigation
41-2 under this subchapter.
41-3 (d) Denial of Application. If the commissioner determines
41-4 that the area alleged to be vacant is not vacant, he shall endorse
41-5 the file with the finding "Not Vacant Land" and shall notify all
41-6 necessary persons of the determination. A finding of "Not Vacant
41-7 Land" terminates the application and is conclusive with respect to
41-8 land described in the application.
41-9 Sec. 51.186. APPEAL. The district court, in the county where
41-10 the majority of the vacant land is located, shall have jurisdiction
41-11 of an appeal filed within 90 days of the commissioner's final order
41-12 under Sec. 51.184. The district court, in its discretion, may
41-13 allow an appeal after 90 days by an interested person who did not
41-14 receive any notice of a proceeding under this subchapter.
41-15 Sec. 51.187. SCOPE OF REVIEW. The district court shall
41-16 conduct a de novo review of the Commissioner's final order
41-17 determining that a vacancy exists.
41-18 Sec. 51.188. ISSUES REVIEWABLE. The court may review the
41-19 commissioner's declaration of good-faith claimant status only in
41-20 conjunction with review of a final order determining that a vacancy
41-21 exists.
41-22 Sec. 51.189. STANDING TO APPEAL. A person who has a present
41-23 legal interest in the surface or mineral estate at the time of the
41-24 filing of the application or who acquires such interest prior to
41-25 the commissioner's final order may appeal the final order.
41-26 Sec. 51.190. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT. (a)
42-1 A good-faith claimant, who has been notified by the commissioner
42-2 that a vacancy has been found to exist under this subchapter, shall
42-3 have a preferential right to purchase or lease the vacancy. The
42-4 preferential right to purchase or lease may be exercised after
42-5 final judicial determination or after the commissioner's final
42-6 order when the period for filing an appeal has expired. If the
42-7 good-faith claimant does not apply for purchase or lease the land
42-8 within 120 days after the preferential right can be exercised, then
42-9 the preferential right expires.
42-10 (b) The good-faith claimant may purchase or lease the
42-11 vacancy by submitting a written application to the School Land
42-12 Board.
42-13 (c) The good-faith claimant is entitled to purchase or lease
42-14 the portion of the land that is vacant at the price set by the
42-15 board and subject to the royalty reservations provided by the board
42-16 and in accordance with the law effective on the date the
42-17 application is filed.
42-18 Sec. 51.191. PURCHASE OR LEASE BY THE APPLICANT. (a) If
42-19 there is no good-faith claimant or if no good-faith claimant
42-20 exercises his preferential right within the time allowed, the
42-21 applicant shall have a preferential right for thirty days
42-22 thereafter to purchase or lease the land determined to be vacant.
42-23 (b) The board shall award an applicant, other than a
42-24 good-faith claimant, a perpetual nonparticipating royalty of not
42-25 less than 1/32 nor more than 1/16 of the value of oil, gas and
42-26 sulphur and one percent of the value of all geothermal and other
43-1 minerals produced.
43-2 SECTION 2. This Act takes effect immediately if it receives
43-3 a vote of two-thirds of all the members elected to each house, as
43-4 provided by Section 39, Article III, Texas Constitution. If this
43-5 Act does not receive the vote necessary for immediate effect, this
43-6 Act takes effect September 1, 2001.