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
1-25 vacancy; and
2-1 (B) has had, or whose predecessors in interest
2-2 have had, the vacancy enclosed or within definite boundaries
2-3 recognized in the community and in possession for a period of at
2-4 least 10 years with a good-faith belief that the vacancy was
2-5 included within the boundaries of a survey or surveys that were
2-6 previously titled, awarded, or sold under circumstances that would
2-7 have vested title in the vacancy if the vacancy were actually
2-8 located within the boundaries of the survey or surveys.
2-9 (3) "Interested person" means a person, excluding a
2-10 good-faith claimant or an applicant, who has a present legal
2-11 interest in the surface or mineral estate of the land claimed to be
2-12 vacant.
2-13 (4) "Necessary party" means an applicant, interested
2-14 person, and good-faith claimant whose present legal interest in the
2-15 surface or mineral estate of the land claimed to be vacant may be
2-16 adversely affected by a vacancy determination.
2-17 (5) "Vacancy" means an area of unsurveyed public
2-18 school land that:
2-19 (A) is not in conflict on the ground with land
2-20 previously titled, awarded, or sold;
2-21 (B) has not been listed on the records of the
2-22 land office as public school land; and
2-23 (C) was not, on the date of filing of an
2-24 application:
2-25 (i) subject to an earlier subsisting
2-26 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.
3-16 (a) 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
4-1 board shall set the terms and conditions for each sale and lease of
4-2 a vacancy.
4-3 (b) The board shall adopt rules governing the terms and
4-4 conditions for the sale and lease of a vacancy. The rules shall be
4-5 adopted and amended as necessary to be consistent with property law
4-6 of this state and other applicable law.
4-7 (c) The board may adopt rules governing mineral
4-8 classification, royalty reservations, and awards of royalty
4-9 reservations and preferential rights to an applicant or to a
4-10 good-faith claimant in addition to the provisions prescribed by
4-11 this subchapter.
4-12 Sec. 51.176. APPLICATION. (a) To purchase or lease land
4-13 claimed to be vacant, a person must file an application on a form
4-14 prescribed by the commissioner. A completed application must:
4-15 (1) describe the land that is claimed to be vacant;
4-16 (2) state whether the applicant seeks to purchase the
4-17 land that is claimed to be vacant or obtain a mineral lease on the
4-18 land;
4-19 (3) state the name and address of each person who,
4-20 from facts known to the applicant, asserts a present legal interest
4-21 in the land claimed to be vacant;
4-22 (4) if applicable, state the basis and provide
4-23 documentary proof for an assertion of good-faith-claimant status;
4-24 and
4-25 (5) provide any other information required by the
4-26 commissioner.
5-1 (b) The applicant must file the application with the county
5-2 surveyor of the county in which all or part of the land claimed to
5-3 be vacant is located. If the county does not have a county
5-4 surveyor, the application must be filed with the county clerk.
5-5 (c) The county surveyor or county clerk, as applicable,
5-6 shall mark the exact date and hour of filing on the original and a
5-7 duplicate copy of the application and shall return a marked copy to
5-8 the person filing the application. The original shall be recorded
5-9 in a book kept for that purpose separate from the deed or real
5-10 property records. The failure to record an application as provided
5-11 by this subsection does not affect the validity of the application
5-12 filing.
5-13 (d) Priority among applications covering the same land
5-14 claimed to be vacant is determined by the time of filing indicated
5-15 by the date and hour marked on the application by the county
5-16 surveyor or county clerk.
5-17 (e) The applicant shall file with the commissioner the
5-18 duplicate copy of the application with the county official's mark
5-19 indicating the time of filing not later than the 30th day after the
5-20 date the application is filed with the county surveyor or clerk.
5-21 If the 30th day after the date of filing falls on a Saturday,
5-22 Sunday, or state or federal holiday, the application may be filed
5-23 on the next regular business day following the 30th day. The
5-24 applicant shall include a filing fee set by the commissioner in an
5-25 amount of not less than $100.
5-26 Sec. 51.177. PROCESSING APPLICATION. (a) The commissioner
6-1 shall mark the date of filing on the application and assign a file
6-2 number to the application.
6-3 (b) The commissioner shall accept an application filed in
6-4 compliance with this subchapter and shall notify the applicant on
6-5 acceptance of the application.
6-6 (c) The commissioner may reject an application and shall
6-7 notify the applicant of the rejection if the application:
6-8 (1) has material omissions;
6-9 (2) does not describe the land claimed to be vacant
6-10 adequately for the land to be located on the ground; or
6-11 (3) describes as vacant land that has been finally
6-12 adjudicated in a court of this state or of the United States not to
6-13 be vacant.
6-14 (d) A rejected application is terminated. No further action
6-15 is taken on the application, and the land office file is closed.
6-16 Sec. 51.178. APPLICATION FOR AND DETERMINATION OF
6-17 GOOD-FAITH-CLAIMANT STATUS. (a) A person may apply for
6-18 good-faith-claimant status:
6-19 (1) at the time an application is filed under Section
6-20 51.176; or
6-21 (2) not later than the 60th day after the date notice
6-22 of acceptance is published as required under Section 51.179(d).
6-23 (b) The application must include certified copies of
6-24 applicable county records supporting the good-faith claimant's
6-25 status.
6-26 (c) The commissioner shall, after expiration of the period
7-1 prescribed by Subsection (a)(2), declare whether a person is a
7-2 good-faith claimant. The commissioner may consider documents filed
7-3 in support of the person's good-faith-claimant status and any other
7-4 relevant information. The commissioner may conduct an
7-5 investigation under Section 51.185 as necessary to make a
7-6 determination on the application. The commissioner has sole
7-7 discretion to declare a person a good-faith claimant, and a person
7-8 is not otherwise entitled to a declaration of good-faith-claimant
7-9 status. A declaration of the commissioner under this subsection is
7-10 not a final order and may not be appealed, except as provided by
7-11 Section 51.187.
7-12 (d) A declaration of good-faith-claimant status grants a
7-13 preferential right to the claimant to purchase or lease the land as
7-14 provided by this subchapter. The declaration does not confer any
7-15 other rights.
7-16 Sec. 51.179. IDENTIFICATION OF AND NOTICE TO NECESSARY
7-17 PARTIES. (a) The applicant shall identify each necessary party by
7-18 the name and last known address of each owner or claimant of land
7-19 or any interest in land or of a lease on, adjoining, overlapping,
7-20 or including the land claimed to be vacant as can be determined
7-21 from the records of the land office and the county clerk's office.
7-22 (b) The applicant shall provide each necessary party with
7-23 the notice of the commissioner's acceptance of the application, a
7-24 copy of the application, and a continuance for future notices form
7-25 not later than the 90th day after the date the applicant receives
7-26 the notice of the commissioner's acceptance of the application.
8-1 (c) Except as provided by this subsection, a necessary party
8-2 is not entitled to subsequent notices required by this subchapter
8-3 unless the party requests subsequent notices. The commissioner
8-4 shall notify a necessary party of a final order issued under
8-5 Section 51.186.
8-6 (d) Not later than the 30th day after the date the notices
8-7 are mailed under Subsection (b), the applicant must publish the
8-8 notice of the commissioner's acceptance of the application in each
8-9 newspaper of general circulation in the county and the general area
8-10 in which the land is located for a period determined by the
8-11 commissioner. The published notice must contain a description of
8-12 the land claimed to be vacant.
8-13 Sec. 51.180. DEPOSIT. (a) The commissioner may recover
8-14 state funds expended in the investigation and hearings conducted
8-15 under this subchapter.
8-16 (b) Not later than the 30th day after the date notice is
8-17 published as required by Section 51.179, the commissioner may
8-18 require the applicant to submit a deposit. If required, the
8-19 applicant must make a deposit in an amount sufficient to pay the
8-20 costs of any survey and investigation required under this
8-21 subchapter not later than the 30th day after the date the
8-22 commissioner notifies the applicant.
8-23 (c) If the amount deposited is insufficient, the
8-24 commissioner may make a written request for a reasonably necessary
8-25 supplemental deposit. If a supplemental deposit is required, the
8-26 applicant must make the deposit not later than the 30th day after
9-1 the date the commissioner requests the deposit.
9-2 (d) The commissioner and applicant may agree to alternative
9-3 payment methods to recover state funds expended in the
9-4 investigation and hearings conducted under this subchapter.
9-5 (e) An applicant may not challenge or appeal the amount of
9-6 the required deposits, and the applicant's refusal or failure to
9-7 make the required deposits terminates the application.
9-8 Sec. 51.181. DISPOSITION OF DEPOSITS. (a) The commissioner
9-9 shall deposit all initial and supplemental deposits received under
9-10 this subchapter to the credit of a separate trust account in the
9-11 state treasury. The comptroller, on the commissioner's order,
9-12 shall make disbursements from that account for purposes authorized
9-13 by this subchapter.
9-14 (b) After proceedings on an application are concluded and
9-15 all expenditures authorized under this subchapter are paid, the
9-16 commissioner shall provide the applicant a complete statement of
9-17 all deposits and expenditures and shall remit to the applicant any
9-18 balance remaining from the deposit or supplemental deposits made by
9-19 the applicant.
9-20 Sec. 51.182. COMMISSIONER'S SURVEY. (a) The commissioner
9-21 may appoint a licensed state land surveyor, or the county surveyor
9-22 of the county in which the land claimed to be vacant or part of
9-23 that land is located, to investigate the applicant's claim. The
9-24 commissioner may limit the scope of the work performed by the
9-25 surveyor.
9-26 (b) The commissioner shall mail a notice of intention to
10-1 survey to each necessary party not later than the 30th day before
10-2 the date the surveyor begins work. The notice must contain the
10-3 proposed starting date of the survey and the name, address, and
10-4 telephone number of the surveyor.
10-5 (c) The fees and expenses paid for the survey are the same
10-6 as those provided by law. If the fees and expenses are not
10-7 provided by law, the commissioner shall contract for fees and
10-8 expenses reasonably necessary for the scope of the required work.
10-9 Contracts under this subsection:
10-10 (1) must include hourly rates, categories of
10-11 reimbursable expenses, and an estimated completion date; and
10-12 (2) may include other expenses the commissioner
10-13 considers reasonable.
10-14 (d) The appointment of a surveyor is not required. The
10-15 commissioner may rely on:
10-16 (1) any survey conducted by a licensed state land
10-17 surveyor or a county surveyor of the county in which the land
10-18 claimed to be vacant or a part of that land is located; and
10-19 (2) any documents or public records required to
10-20 determine whether a vacancy exists.
10-21 Sec. 51.183. SURVEYOR'S REPORT. (a) Not later than the
10-22 120th day after the date a surveyor is appointed under Section
10-23 51.182, the surveyor shall file a written report of the survey, the
10-24 field notes describing the land and the lines and corners surveyed,
10-25 a plat depicting the results of the survey, and any other
10-26 information required by the commissioner. The commissioner may
11-1 extend the time for filing the report as reasonably necessary.
11-2 (b) The survey report must also contain the name and post
11-3 office address of each person who has possession of the land
11-4 described in the application and of each person determined by the
11-5 surveyor to have a present legal interest in the land.
11-6 Sec. 51.184. COMPLETION OF SURVEY. (a) The commissioner
11-7 shall serve a true copy of the survey report filed by the surveyor
11-8 on each necessary party, including those named in the survey
11-9 report, by certified mail, return receipt requested, not later than
11-10 the 10th business day after the date the survey report is filed
11-11 with the land office.
11-12 (b) Any necessary party may file exceptions to the
11-13 surveyor's report not later than the 30th day after the date the
11-14 notice of completion is received. If the commissioner does not
11-15 appoint a surveyor, a necessary party may file exceptions to a
11-16 survey report filed by the applicant during a period established by
11-17 the commissioner. Any exceptions must be filed with the land
11-18 office and a copy must be sent to each necessary party.
11-19 Sec. 51.185. INVESTIGATION. (a) The commissioner shall
11-20 conduct an investigation of the applicant's claim that a vacancy
11-21 exists. The commissioner may conduct a hearing. A hearing under
11-22 this subchapter is not a contested case hearing and is not subject
11-23 to Chapter 2001, Government Code. The commissioner is not required
11-24 to grant any hearings under this subchapter.
11-25 (b) The commissioner shall determine the scope of any
11-26 hearings to investigate an application for good-faith-claimant
12-1 status and an application to purchase or lease vacant land. If the
12-2 commissioner grants a hearing, the commissioner shall provide
12-3 timely notice of the time and place of the hearing to necessary
12-4 parties and shall provide each necessary party an opportunity to be
12-5 heard. Any other procedural rights, including the right to examine
12-6 or cross-examine witnesses, may be granted in the sole discretion
12-7 of the commissioner.
12-8 (c) The commissioner may consult with any land office
12-9 employee, including the chief surveyor, or a relevant expert during
12-10 the investigation.
12-11 (d) The commissioner shall record the names of the persons
12-12 consulted, the documents and surveys reviewed, and the relevant law
12-13 and other materials used in the investigation.
12-14 Sec. 51.186. COMMISSIONER'S FINAL ORDER. (a) If the
12-15 commissioner concludes that the land claimed to be vacant is not in
12-16 conflict with land previously titled, awarded, or sold by the
12-17 state, the commissioner may determine that a vacancy exists. The
12-18 commissioner shall notify each necessary party by mailing each
12-19 party a copy of the vacancy determination. The vacancy
12-20 determination is a final order of the commissioner and may be
12-21 appealed as provided by Section 51.187.
12-22 (b) A vacancy determination order must contain:
12-23 (1) a field note description of the land determined to
12-24 be vacant that is sufficient to locate the land on the ground;
12-25 (2) an accurate plat of the land that is:
12-26 (A) consistent with the field notes; and
13-1 (B) prepared by a county surveyor or licensed
13-2 state land surveyor; and
13-3 (3) any other matters required by law or as the
13-4 commissioner considers appropriate.
13-5 (c) In determining the boundaries and size of a vacancy, the
13-6 commissioner is not restricted to a description of the land claimed
13-7 to be vacant that is provided by the applicant, the surveyor, or
13-8 any other person. The commissioner shall adopt the description of
13-9 a vacancy that best describes the vacancy and is consistent with
13-10 the investigation under this subchapter.
13-11 (d) If the commissioner determines that the land claimed to
13-12 be vacant is not vacant, the commissioner shall endorse the file
13-13 with the finding "Not Vacant Land" and shall notify each necessary
13-14 party of the determination. A finding of "Not Vacant Land" is
13-15 conclusive with respect to land described in the application. A
13-16 finding of "Not Vacant Land" under this subsection is a final order
13-17 of the commissioner and may be appealed as provided by Section
13-18 51.187.
13-19 Sec. 51.187. APPEAL. (a) The district court in the county
13-20 in which a majority of the vacant land is located has jurisdiction
13-21 of an appeal under this subchapter. A person must file an appeal
13-22 not later than the 90th day after the date the commissioner's final
13-23 order is issued under Section 51.186.
13-24 (b) The district court, in its discretion, may allow an
13-25 interested person who did not receive notice of a proceeding under
13-26 this subchapter to file an appeal after the expiration of the
14-1 90-day period prescribed by Subsection (a).
14-2 (c) If the commissioner has not issued a final order under
14-3 Section 51.186 on or before the first anniversary of the date the
14-4 application was accepted under Section 51.177(b), the applicant may
14-5 file an action in district court to determine whether a vacancy
14-6 exists. The filing of an action under this subsection terminates
14-7 the application with the land office.
14-8 Sec. 51.188. SCOPE OF REVIEW. The district court shall
14-9 conduct a de novo review of the commissioner's final order
14-10 determining that a vacancy does or does not exist.
14-11 Sec. 51.189. ISSUES REVIEWABLE. The court may review the
14-12 commissioner's declaration of good-faith-claimant status only in
14-13 conjunction with a review of a final order determining that a
14-14 vacancy exists.
14-15 Sec. 51.190. STANDING TO APPEAL. A person may appeal the
14-16 commissioner's final order if the person:
14-17 (1) is an applicant;
14-18 (2) has a present legal interest in the surface or
14-19 mineral estate at the time an application is filed; or
14-20 (3) acquires a legal interest before the date of the
14-21 commissioner's final order.
14-22 Sec. 51.191. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT.
14-23 (a) A good-faith claimant who has been notified by the
14-24 commissioner that a vacancy exists under this subchapter has a
14-25 preferential right to purchase or lease the vacancy. The
14-26 preferential right may be exercised after a final judicial
15-1 determination or after the commissioner's final order and the
15-2 period for filing an appeal has expired. If the good-faith
15-3 claimant does not apply to purchase or lease the land before the
15-4 121st day after the date the preferential right may be exercised,
15-5 the preferential right expires.
15-6 (b) The good-faith claimant may purchase or lease the
15-7 vacancy by submitting a written application to the board.
15-8 (c) The good-faith claimant is entitled to purchase or lease
15-9 the portion of the land that is vacant:
15-10 (1) at the price set by the board;
15-11 (2) subject to the royalty reservations provided by
15-12 the board; and
15-13 (3) in accordance with the law in effect on the date
15-14 the application is filed.
15-15 Sec. 51.192. PURCHASE OR LEASE BY APPLICANT. (a) If no
15-16 good-faith claimant exists or if no good-faith claimant exercises a
15-17 preferential right within the applicable period, the applicant has
15-18 a preferential right to purchase or lease the land determined to be
15-19 vacant for 30 days after:
15-20 (1) a determination that no good-faith claimant
15-21 exists; or
15-22 (2) the expiration of the period for exercising a
15-23 preferential right.
15-24 (b) The board shall award an applicant, other than a
15-25 good-faith claimant, a perpetual nonparticipating royalty of:
15-26 (1) not less than 1/32 or more than 1/16 of the value
16-1 of oil, gas, and sulphur; and
16-2 (2) one percent of the value of all geothermal and
16-3 other minerals produced. [SALE AND LEASE OF VACANT LAND.
16-4 (a) Vacant and unsurveyed public school land shall be located,
16-5 sold, and leased under this subchapter, except:]
16-6 [(1) submerged lands within tidewater limits;]
16-7 [(2) all islands, flats, and emergent lands within
16-8 tidewater limits;]
16-9 [(3) natural lakes; and]
16-10 [(4) riverbeds, including channels and islands in
16-11 riverbeds, above tidewater limits.]
16-12 [(b) This subchapter does not alter or diminish the public
16-13 domain status of the surface estate of riverbeds and channels and
16-14 islands in riverbeds that are located above tidewater limits.]
16-15 [Sec. 51.172. DEFINITIONS. In this subchapter:]
16-16 [(1) "Applicant" means any person who files an
16-17 application. The term may include a good-faith claimant.]
16-18 [(2) "Application" means an application to purchase or
16-19 lease a vacancy under this subchapter.]
16-20 [(3) "Good-faith claimant" means a person who:]
16-21 [(A) occupies or uses or whose predecessors in
16-22 interest have occupied or used a vacancy for purposes other than
16-23 exploring for or removing or purporting to lease or otherwise
16-24 convey oil, gas, sulphur, other minerals, or geothermal resources
16-25 from the vacancy;]
16-26 [(B) has had, or whose predecessors in interest
17-1 have had, the vacancy enclosed or within definite recognized
17-2 boundaries and in possession for a period of 10 or more years with
17-3 a good-faith belief that the vacancy was included within the
17-4 boundaries of a survey or surveys that were previously titled,
17-5 awarded, or sold under circumstances that would have vested title
17-6 in the vacancy if it were actually located within the boundaries of
17-7 the survey or surveys;]
17-8 [(C) is the owner of land adjoining a vacancy on
17-9 which no application has previously been filed; or]
17-10 [(D) holds under a good-faith claimant or is
17-11 entitled to a distributive share of any title acquired under an
17-12 application made by a good-faith claimant.]
17-13 [(4) "Interest" means any right or title in or to real
17-14 property, whether affecting the surface, subsurface, or mineral
17-15 estate, including:]
17-16 [(A) fee simple title;]
17-17 [(B) a determinable fee created under a mineral
17-18 lease or conveyance or otherwise;]
17-19 [(C) a royalty, nonparticipating royalty, or
17-20 overriding royalty interest;]
17-21 [(D) a remainder or reversionary interest; or]
17-22 [(E) an interest arising under a lien.]
17-23 [(5) "Interested person" means:]
17-24 [(A) a person who may own or who claims any
17-25 interest in land claimed to be vacant or in any land adjoining or
17-26 overlapping that land as determined from the records of the land
18-1 office, the records of the county clerk's office, and the tax
18-2 records of the county or counties in which the land claimed to be
18-3 vacant is located;]
18-4 [(B) any other person who asserts a right to or
18-5 interest in the land claimed to be vacant and who is known to the
18-6 applicant or whose identity could be ascertained by the applicant
18-7 with the exercise of reasonable diligence;]
18-8 [(C) the attorney general; or]
18-9 [(D) the applicant.]
18-10 [(6) "Vacancy" means an area of unsurveyed public
18-11 school land that:]
18-12 [(A) is not in conflict on the ground with land
18-13 previously titled, awarded, or sold;]
18-14 [(B) has not been listed on the records of the
18-15 land office as public school land; and]
18-16 [(C) was not, on the date of filing of an
18-17 application:]
18-18 [(i) subject to an earlier subsisting
18-19 application by an applicant or good-faith claimant; or]
18-20 [(ii) the subject of pending litigation
18-21 brought by the state to recover the land.]
18-22 [Sec. 51.173. APPLICATION. (a) To purchase or lease a
18-23 vacancy, a person must file an application. The filing of an
18-24 application commences a proceeding under this subchapter. The
18-25 applicant must file the application with the county surveyor of the
18-26 county in which all or part of the land claimed to be vacant is
19-1 located. If the county does not have a county surveyor, the
19-2 application must be filed with the county clerk.]
19-3 [(b) The application must:]
19-4 [(1) describe the land that is claimed to be vacant;]
19-5 [(2) state whether the applicant is a good-faith
19-6 claimant;]
19-7 [(3) state whether the applicant seeks to purchase the
19-8 vacancy or obtain a mineral lease on the vacancy;]
19-9 [(4) state the name and last known address of all
19-10 interested persons; and]
19-11 [(5) provide any other information that the
19-12 commissioner requires by rule.]
19-13 [(c) The commissioner by rule shall set an application
19-14 filing fee in an amount of not less than $5. The applicant shall
19-15 pay the filing fee to the county surveyor or county clerk at the
19-16 time the application is filed.]
19-17 [(d) The county surveyor or county clerk shall mark the
19-18 exact date and hour of filing on the original and a duplicate copy
19-19 of the application and shall return a marked copy to the person
19-20 filing the application. The original shall be recorded in a book
19-21 kept for that purpose separate from the deed or real property
19-22 records.]
19-23 [(e) Priority among applications covering the same land
19-24 claimed to be vacant is determined by the time of filing indicated
19-25 by the date and hour marked on the application by the county
19-26 surveyor or county clerk.]
20-1 [Sec. 51.174. FILING APPLICATION WITH COMMISSIONER.
20-2 (a) The applicant shall file with the commissioner a copy of the
20-3 application with the county surveyor's or clerk's mark indicating
20-4 the time of filing not later than the 10th day after the
20-5 application is filed with the county surveyor or clerk. The
20-6 applicant shall include a filing fee set by the commissioner in an
20-7 amount of not less than $100. If the 10th day after filing falls
20-8 on a Saturday, Sunday, or state or federal holiday, the application
20-9 may be filed on the next regular business day following the 10th
20-10 day.]
20-11 [(b) The commissioner shall mark the date of filing on the
20-12 application and assign a file number to the application.]
20-13 [(c) An applicant who does not file the application with the
20-14 commissioner in the time provided in this section or pay the filing
20-15 fee waives all rights under the application.]
20-16 [(d) The commissioner may refuse to accept for filing an
20-17 application that:]
20-18 [(1) has material omissions;]
20-19 [(2) does not describe the land claimed to be vacant
20-20 adequately for the land to be located on the ground; or]
20-21 [(3) describes as vacant land that has been finally
20-22 adjudicated in a court of this state or of the United States not to
20-23 be vacant.]
20-24 [Sec. 51.175. DEPOSIT. (a) If an applicant is not a
20-25 good-faith claimant, the commissioner shall estimate the costs of
20-26 proceeding under the application, including the costs of a survey
21-1 made by a licensed state land surveyor or the county surveyor, the
21-2 preparation of copies and working sketches by the land office, the
21-3 mailing or publication of notices and copies, and other similar
21-4 costs, excluding allocable costs of salaries and overhead expended
21-5 by the land office in actually conducting a hearing or preparing
21-6 orders and proposals for decision.]
21-7 [(b) The commissioner shall notify the applicant in writing
21-8 of the estimated costs and the applicant shall make a deposit with
21-9 the commissioner in the amount of the estimated costs.]
21-10 [(c) If at any time the commissioner determines that the
21-11 funds on deposit are insufficient to pay the costs of the
21-12 proceeding, the commissioner shall estimate the additional amount
21-13 required and shall notify the applicant in writing to make a
21-14 supplemental deposit of the estimated amount. The notice must be
21-15 dated.]
21-16 [(d) The applicant shall make an initial deposit or a
21-17 supplemental deposit not later than the 30th day after the date of
21-18 the written notice to make the deposit. The commissioner shall
21-19 cancel the application if the applicant does not make a required
21-20 deposit within the prescribed time. Cancellation terminates all
21-21 rights under that application.]
21-22 [Sec. 51.176. APPEAL OF AMOUNT OF DEPOSIT. (a) An
21-23 applicant may appeal the amount of an initial deposit or
21-24 supplemental deposit determined by the commissioner in the manner
21-25 provided for the appeal of agency decisions under Chapter 2001,
21-26 Government Code.]
22-1 [(b) If the applicant does not pay the amount determined by
22-2 the district court on or before the 15th day after the judgment of
22-3 the district court becomes final and nonappealable, the
22-4 commissioner shall cancel the application. Cancellation terminates
22-5 all rights under that application.]
22-6 [Sec. 51.177. DISPOSITION OF DEPOSITS. (a) The
22-7 commissioner shall deposit all initial and supplemental deposits
22-8 received under this subchapter to the credit of a separate trust
22-9 account in the treasury. The comptroller, on the commissioner's
22-10 order, shall make disbursements from that account for purposes
22-11 authorized by this subchapter.]
22-12 [(b) After proceedings on an application are concluded and
22-13 all expenditures authorized under this subchapter are paid, the
22-14 commissioner shall provide the applicant a complete statement of
22-15 all deposits and expenditures and shall remit to the applicant any
22-16 balance remaining from the deposit or supplemental deposits made by
22-17 the applicant.]
22-18 [Sec. 51.178. APPOINTMENT OF SURVEYOR. (a) Not later than
22-19 the 60th day after the date on which the required deposit is paid,
22-20 the commissioner shall appoint a licensed state land surveyor or
22-21 the county surveyor of the county in which all or a part of the
22-22 land claimed to be vacant is located to make a survey of that land.]
22-23 [(b) The fees and expenses paid for the survey are those
22-24 provided by law. If the fees and expenses are not provided by law,
22-25 the commissioner and surveyor shall make an agreement as to the
22-26 fees and expenses reasonable for the work to be performed.]
23-1 [(c) The fees and expenses shall be paid by the applicant
23-2 and may be paid from the initial deposit or any supplementary
23-3 deposits made by the applicant under this subchapter.]
23-4 [(d) The commissioner shall promulgate rules setting out the
23-5 qualifications and method of selection of surveyors appointed
23-6 pursuant to this section. The rules shall provide the greatest
23-7 practicable opportunity for all qualified surveyors to obtain
23-8 appointment and shall provide the opportunity for an interested
23-9 party to move for the removal of an appointed surveyor on the
23-10 grounds of bias, prejudice, or conflict of interest. No surveyor
23-11 appointed shall be removed, however, except upon notice to the
23-12 surveyor and all interested parties and hearing. The fact of
23-13 removal of a surveyor shall not be a basis for any disciplinary
23-14 action against that surveyor under the Professional Land Surveying
23-15 Practices Act (Article 5282c, Vernon's Texas Civil Statutes).]
23-16 [Sec. 51.179. NOTICE TO INTERESTED PERSONS. (a) Not later
23-17 than the 10th day after the date on which the commissioner appoints
23-18 the surveyor, the commissioner shall give notice by certified mail,
23-19 return receipt requested, to all interested persons at the last
23-20 known address. The notice shall contain:]
23-21 [(1) the date of the notice;]
23-22 [(2) a statement that a vacancy application has been
23-23 made;]
23-24 [(3) the name, address, and telephone number of the
23-25 surveyor appointed to make the survey;]
23-26 [(4) a statement that the survey may begin any time
24-1 after the 20th day after the date of the notice;]
24-2 [(5) a statement that an interested party is entitled
24-3 to:]
24-4 [(A) observe the conduct of the survey;]
24-5 [(B) receive a copy of the final survey report
24-6 and other documents filed by the surveyor; and]
24-7 [(C) participate in the vacancy proceeding;]
24-8 [(6) a true and legible copy of the application; and]
24-9 [(7) other information the commissioner by rule may
24-10 prescribe.]
24-11 [(b) If the location of an interested person is unknown or
24-12 if a notice is returned as unclaimed or undeliverable, the
24-13 commissioner shall publish notice as prescribed by the Texas Rules
24-14 of Civil Procedure. If notice by publication is made, the survey
24-15 may not begin and further proceedings may not be held until the
24-16 30th day after publication is completed.]
24-17 [(c) If the applicant, another interested person, or the
24-18 surveyor shows that the delay required by Subsection (b) of this
24-19 section may materially affect the accuracy of the survey because of
24-20 destruction, alteration, or removal of natural features, monuments,
24-21 or witness objects, or for other good cause, the commissioner may
24-22 order the survey to proceed. Notice of the request to proceed with
24-23 the survey and of any order issued in response to the request shall
24-24 be mailed first class to all interested persons.]
24-25 [(d) The right of an interested person, personally or
24-26 through a representative or representatives, to observe the conduct
25-1 of a survey made under this subchapter does not require a delay in
25-2 the conduct of a survey solely to allow an interested person or
25-3 that person's representative to be present during the survey.]
25-4 [Sec. 51.180. WAIVER OF NOTICE. (a) An interested person
25-5 may waive service of the notice required by Section 51.179 of this
25-6 code by filing with the commissioner a sworn affidavit stating the
25-7 person's intent to waive notice. The affidavit shall state that
25-8 the person executing the waiver has been provided with a true copy
25-9 of the application filed with the commissioner.]
25-10 [(b) The affidavit may also state clearly the interested
25-11 person's intent to waive all further notice of the vacancy
25-12 proceedings. If the affidavit states this intent, it must also
25-13 state prominently and clearly that the interested person is aware
25-14 that waiving the right to further notice may result in the loss of
25-15 the opportunity to appear and to contest the application.]
25-16 [(c) The commissioner by rule may prescribe the form and
25-17 specific content of the affidavit described in this section,
25-18 including additional information to be included.]
25-19 [Sec. 51.181. SURVEY. (a) Except when notice by
25-20 publication is required, at any time after the 20th day after the
25-21 date of the notice required by Section 51.179(a) of this code, the
25-22 surveyor shall begin the survey of the land claimed to be vacant.]
25-23 [(b) The surveyor shall prepare and file in the land office:]
25-24 [(1) a detailed written report of all aspects of the
25-25 survey, including record research conducted, survey corners
25-26 recovered in the course of the field survey, and details of
26-1 boundary construction using recovered corners;]
26-2 [(2) field notes in the form and content prescribed by
26-3 law, describing the land and the lines and corners surveyed;]
26-4 [(3) a complete plat depicting in detail the survey
26-5 results;]
26-6 [(4) the names and addresses of all persons who have
26-7 possession of the land described in the application and a
26-8 description of the lands occupied by those persons; and]
26-9 [(5) the names and addresses of all persons known to
26-10 the surveyor who have or claim any interest in the land.]
26-11 [(c) The surveyor shall file the report required by this
26-12 section not later than the 140th day after the date of the notice
26-13 required by Section 51.179(a) of this code. If notice by
26-14 publication is required and the commissioner has not ordered the
26-15 survey to proceed, the surveyor shall file the report not later
26-16 than the 170th day after the date on which notice by publication is
26-17 completed. If the commissioner has ordered the survey to proceed,
26-18 the surveyor shall file the report not later than the 140th day
26-19 after the date of the commissioner's order.]
26-20 [(d) For good cause shown, the commissioner by written order
26-21 may extend the time for filing the survey. The order shall state
26-22 the cause for the extension and shall be included in the record. A
26-23 single order may not extend the time for filing by more than 60
26-24 days.]
26-25 [(e) An interested person at the person's own expense may
26-26 have any surveying done that the person considers desirable, but a
27-1 survey report, a plat, or field notes based on a survey made by a
27-2 person not qualified by law to survey public lands in this state
27-3 may not be admitted into evidence in a vacancy proceeding or filed
27-4 in the land office.]
27-5 [(f) The commissioner shall serve a true copy of the survey
27-6 report, field notes, plat, and all other documents filed by the
27-7 surveyor on each interested person, including those named in the
27-8 survey report, by certified mail, return receipt requested, not
27-9 later than the fifth business day after the survey report is filed
27-10 in the land office.]
27-11 [Sec. 51.182. ADDITIONAL INTERESTED PERSONS. (a) All
27-12 persons named in the survey report as occupying or as having or
27-13 claiming any interest in the land described in the application
27-14 shall be included in the proceeding as interested persons and shall
27-15 be provided notice as prescribed by this subchapter.]
27-16 [(b) An application may not be canceled or a proceeding
27-17 terminated because of the discovery of an additional interested
27-18 person unless the commissioner finds that the person filing the
27-19 application knowingly and intentionally omitted the name of the
27-20 person from the application.]
27-21 [Sec. 51.183. EXCEPTIONS. An interested person may file
27-22 exceptions to the survey report, field notes, and plat not later
27-23 than the 30th day after the date the survey report is filed in the
27-24 land office. A person filing exceptions shall serve a true copy on
27-25 all interested persons and on the surveyor by certified mail,
27-26 return receipt requested. The exceptions shall include a
28-1 certificate of the fact of that service.]
28-2 [Sec. 51.184. ADDITIONAL SURVEYS. (a) The commissioner or
28-3 the land office staff may consult with the surveyor. The
28-4 commissioner, after notice to the interested persons, may direct
28-5 the surveyor to make additional surveys, to investigate as the
28-6 commissioner considers necessary, and to prepare supplemental
28-7 reports, plats, and field notes the commissioner requires.]
28-8 [(b) The commissioner shall provide copies of all reports,
28-9 plats, field notes, and other information resulting from additional
28-10 surveys and investigation to all interested persons.]
28-11 [(c) An interested person may file exceptions or other
28-12 responses not later than the 20th day after the surveyor files the
28-13 required documents with the land office.]
28-14 [(d) Service of additional documents and exceptions or
28-15 responses to those documents shall be made as provided by Sections
28-16 51.181 and 51.183 of this code.]
28-17 [Sec. 51.185. ACTION ON APPLICATION. (a) Not later than
28-18 the 90th day after the date on which the surveyor files the survey
28-19 report and other documents required to be filed, the commissioner
28-20 shall either deny the application as provided by Section 51.186 of
28-21 this code or hold a hearing to determine whether a vacancy exists.]
28-22 [(b) Except as provided by Section 51.192 of this code, the
28-23 commissioner may not find that a vacancy exists unless a hearing is
28-24 held.]
28-25 [(c) The commissioner shall decide all issues raised or that
28-26 could be raised by the application and any exceptions or responses
29-1 to the application, including the existence of a vacancy, the
29-2 boundaries of a vacancy, and the status and rights of any
29-3 interested person as a good-faith claimant or prior applicant.]
29-4 [(d) The commissioner may not decide in a proceeding on an
29-5 application any claim of the state or permanent school fund for
29-6 damages arising from trespass, the removal or use of minerals or
29-7 geothermal resources, mispayment of proceeds from the sale or use
29-8 of minerals or geothermal resources, damages to the soil,
29-9 vegetation, or other life or habitat, and similar or related
29-10 claims. Those claims may be asserted by the commissioner in
29-11 administrative proceedings under rules adopted by the commissioner
29-12 or through suit brought by the attorney general at the request of
29-13 the commissioner.]
29-14 [(e) Evidence or testimony regarding the existence or extent
29-15 of mineral development or other economic use of land claimed to be
29-16 vacant may not be introduced or considered, unless that evidence or
29-17 testimony is relevant to determine the existence or boundaries of
29-18 the alleged vacancy or the status of a person as a good-faith
29-19 claimant.]
29-20 [Sec. 51.186. DENIAL OF APPLICATION. (a) If, after
29-21 reviewing the survey report, any supplemental reports, any
29-22 exceptions to the reports, all pertinent publicly available records
29-23 of the land office and the state archives, and land office staff
29-24 recommendations, the commissioner decides that the land claimed to
29-25 be vacant is not vacant, the commissioner may enter an order
29-26 denying the application. The order shall contain findings of fact,
30-1 conclusions of law, and other matters the commissioner considers
30-2 appropriate.]
30-3 [(b) The commissioner shall promptly send a true copy of the
30-4 order denying the application to the applicant by certified mail,
30-5 return receipt requested.]
30-6 [(c) The commissioner shall place in the file assigned to
30-7 the application the original order, all materials filed by the
30-8 surveyor, all exceptions and responses to the surveyor's filings,
30-9 all memoranda provided to the commissioner by the land office
30-10 staff, a list of all files and records of the land office and state
30-11 archives examined by the staff or commissioner in connection with
30-12 the application, and all other relevant papers.]
30-13 [(d) An interested person may request a rehearing and appeal
30-14 the commissioner's order as provided by Chapter 2001, Government
30-15 Code and by rules adopted by the commissioner consistent with that
30-16 Act. If a rehearing is not requested, the order becomes final on
30-17 the 30th day after the date it is signed. If a rehearing is
30-18 requested and denied, the order becomes final on the date that time
30-19 for appeal to the district court expires. If appeal is taken, the
30-20 order becomes final on the date that a judgment disposing of the
30-21 order becomes final.]
30-22 [(e) When the commissioner's order denying the vacancy is
30-23 final, all rights under the application are terminated.]
30-24 [Sec. 51.187. EFFECT OF FINAL ORDER. (a) A final order of
30-25 the commissioner under this subchapter is conclusive with respect
30-26 to the land described in the application or final order. A final
31-1 order of the commissioner does not have the effect of stare decisis
31-2 with respect to land not described in the application or final
31-3 order, but may be considered with all other evidence.]
31-4 [(b) The cancellation, withdrawal, abandonment, or
31-5 termination of an application, the refusal of the commissioner to
31-6 accept an application for filing, or the order or judgment of any
31-7 court resulting in or affecting such an action has no effect on a
31-8 subsequent determination of whether any land described in the
31-9 application is vacant.]
31-10 [(c) A decision of the commissioner issued before September
31-11 1, 1993, that denies a vacancy application or letter of inquiry is
31-12 not conclusive as to the existence or nonexistence of a vacancy.]
31-13 [Sec. 51.188. RULEMAKING; VENUE OF APPEALS. (a) A hearing
31-14 under this subchapter and further proceedings arising from the
31-15 hearing shall be conducted in accordance with Chapter 2001,
31-16 Government Code and rules adopted by the commissioner consistent
31-17 with that Act.]
31-18 [(b) Appeal of a final order of the commissioner is to a
31-19 district court of the county in which the land claimed to be vacant
31-20 or a part of that land is located. The district court shall review
31-21 the commissioner's order under the substantial evidence rule.]
31-22 [Sec. 51.189. COMMISSIONER'S ORDER. (a) If it appears to
31-23 the commissioner that the alleged vacancy is not in conflict with
31-24 land previously titled, awarded, or sold by the state or its
31-25 predecessor sovereigns, the commissioner shall enter an order
31-26 declaring the existence of a vacancy and determining all other
32-1 issues.]
32-2 [(b) If it appears to the commissioner that the land claimed
32-3 to be vacant is not vacant, the commissioner shall enter an order
32-4 denying the application and determining all other issues.]
32-5 [(c) The commissioner shall base the order on the testimony
32-6 and other competent evidence presented at the hearing, the
32-7 surveyor's filings and all supplements to those filings, any
32-8 exceptions or responses to the surveyor's filings and all
32-9 supplements to those filings, and the publicly available records of
32-10 the land office and the state archives. The commissioner and the
32-11 examiner or examiners who conduct hearings on the application may
32-12 consult with the land office staff and the surveyor to the extent
32-13 permitted by Chapter 2001, Government Code. The record shall
32-14 include a list of the names and titles of all staff consulted, a
32-15 list of the files and documents of the land office and state
32-16 archives examined, and a copy of all memoranda provided to the
32-17 examiners or commissioner by the land office staff or by the
32-18 surveyor.]
32-19 [(d) The order shall contain:]
32-20 [(1) findings of fact;]
32-21 [(2) conclusions of law;]
32-22 [(3) a field note description of the land, if any,
32-23 found to be vacant, sufficient to locate it on the ground, and
32-24 other elements required by law;]
32-25 [(4) an accurate plat of the land, if any, found to be
32-26 vacant consistent with the field notes and prepared by the surveyor
33-1 or a licensed state land surveyor on the land office staff; and]
33-2 [(5) other matters the commissioner considers
33-3 appropriate.]
33-4 [(e) The commissioner's order may adopt, without restating,
33-5 the findings of fact and conclusions of law stated in a proposal
33-6 for decision prepared by the examiner or examiners who conducted
33-7 the hearings and any opinion or statement contained in that
33-8 proposal for decision.]
33-9 [Sec. 51.190. DETERMINATION OF BOUNDARIES; REOPENING. (a)
33-10 In determining the boundaries and size of a vacancy, the
33-11 commissioner is not restricted to a description of the land claimed
33-12 to be vacant that is provided by the applicant, the surveyor, or an
33-13 interested party. The commissioner shall adopt the description of
33-14 a vacancy that best describes the vacancy and is consistent with
33-15 the information available under this section.]
33-16 [(b) If in determining the boundaries and size of a vacancy
33-17 it becomes apparent to the commissioner that persons who have not
33-18 been named as interested persons and who have not been served
33-19 notice of the proceeding under the application may be affected by
33-20 the finding that a vacancy exists at the location and with the
33-21 boundaries believed by the commissioner to conform to the record,
33-22 the proceeding shall be reopened and the persons affected shall be
33-23 joined as interested persons and given an opportunity to
33-24 participate adequately in the proceeding. This subsection does not
33-25 require the refiling of an application or the conduct of a new
33-26 survey by the surveyor.]
34-1 [Sec. 51.191. GOOD-FAITH CLAIMANT STATUS. (a) An applicant
34-2 or interested person who wishes to assert status as a good-faith
34-3 claimant may file notice of claim of good-faith status at any time
34-4 before the 20th day preceding the date on which the first hearing
34-5 begins. The notice of claim of good-faith status shall state the
34-6 grounds for the claim and describe the land claimed to be affected
34-7 by the good-faith status. The notice shall be filed in the land
34-8 office and served on all interested persons by certified mail,
34-9 return receipt requested.]
34-10 [(b) Filing notice of claim of good-faith status is not an
34-11 admission by the person asserting the claim that a vacancy exists.]
34-12 [Sec. 51.192. ORDER WITHOUT NOTICE AND HEARING. (a) An
34-13 applicant who asserts status as a good-faith claimant may present
34-14 evidence to the commissioner that:]
34-15 [(1) the good-faith claimant owns all of the land and
34-16 interests in land completely surrounding the land claimed to be
34-17 vacant;]
34-18 [(2) there is no subsisting prior application covering
34-19 the land described in the good-faith claimant's application;]
34-20 [(3) no previous application has been made covering
34-21 the land described in the good-faith claimant's application; and]
34-22 [(4) the good-faith claimant meets all other
34-23 requirements of a good-faith claimant.]
34-24 [(b) If the commissioner finds that the evidence presented
34-25 is accurate, further notice to other persons is not required and,
34-26 on acceptance for filing by the commissioner of a survey made by a
35-1 licensed state land surveyor or the county surveyor of the county
35-2 in which the land claimed to be vacant or a part of that land is
35-3 located, the commissioner may enter an order declaring the
35-4 existence of the vacancy and determining the good-faith status of
35-5 the applicant.]
35-6 [(c) For purposes of this section, land claimed to be vacant
35-7 and surrounded by lands owned only by the good-faith claimant and
35-8 the state is considered to be surrounded completely by land owned
35-9 by the good-faith claimant.]
35-10 [(d) Two or more persons may jointly apply as good-faith
35-11 claimants under this section if together they meet the requirements
35-12 of Subsection (a) of this section.]
35-13 [(e) A person who would have been an interested person under
35-14 an application made under this subchapter by a person other than a
35-15 good-faith claimant may move to set aside an order entered under
35-16 this section by filing a written motion with the commissioner not
35-17 later than the second anniversary of the date of that order. The
35-18 person shall serve a true copy of the motion by certified mail,
35-19 return receipt requested, on the applicant and all persons holding
35-20 or claiming under the applicant.]
35-21 [(f) The commissioner shall set aside an order issued under
35-22 this section finding that a vacancy exists if, after notice and
35-23 hearing, the commissioner finds that the person asserting rights
35-24 under this section, at the time the order declaring the vacancy was
35-25 entered, did not:]
35-26 [(1) qualify as a good-faith claimant under this
36-1 subchapter;]
36-2 [(2) own all of the land and interests in land
36-3 surrounding the land claimed to be vacant; or]
36-4 [(3) meet another material requirement of this
36-5 section.]
36-6 [(g) The commissioner on the commissioner's own motion may
36-7 set aside an order after notice and hearing as required by
36-8 Subsections (e) and (f) of this section.]
36-9 [(h) If the order is set aside, the commissioner shall
36-10 reopen the proceeding on the application and conduct the reopened
36-11 proceeding in the same manner as proceedings on other applications.]
36-12 [(i) The issues in a reopened proceeding are limited to the
36-13 status of the applicant as a good-faith claimant entitled to rights
36-14 under this section and the rights of any other person as an
36-15 applicant or good-faith claimant.]
36-16 [(j) An application of a good-faith claimant who does not
36-17 own all of the land and interests in land completely surrounding
36-18 the land claimed to be vacant is treated as an application under
36-19 other sections of this subchapter.]
36-20 [Sec. 51.193. SALE OR LEASE OF VACANCY. (a) When a
36-21 vacancy has been established by final order, the school land board
36-22 may sell or lease the vacancy as provided by this subchapter.]
36-23 [(b) The board shall set the sale price and other terms and
36-24 conditions as in all other sales of other lands dedicated to the
36-25 permanent school fund. The sale price may not be less than the
36-26 fair market value as determined by an appraisal conducted by the
37-1 land office.]
37-2 [(c) The fee prescribed in Section 32.110(a) of this code
37-3 applies to all sales and leases made under this subchapter.]
37-4 [(d) The board may allow a credit against the sale price in
37-5 an amount not to exceed the actual cost of the survey paid by an
37-6 applicant or good-faith claimant if:]
37-7 [(1) the purchaser is a person exercising a
37-8 preferential right to purchase under this subchapter;]
37-9 [(2) the board has reserved all mineral and geothermal
37-10 leasing rights; and]
37-11 [(3) the board finds that the fair market value of the
37-12 mineral estate is equal to or exceeds 50 percent of the amount of
37-13 the credit.]
37-14 [Sec. 51.194. MARKET VALUE; MEDIATION; BINDING ARBITRATION.
37-15 (a) A person seeking to purchase a vacancy by exercising a right
37-16 of preferential purchase under this subchapter, by filing a written
37-17 request with the commissioner, may have the issue of market value
37-18 submitted to mediation before a trained mediator acceptable to both
37-19 the board and the person seeking to purchase the vacancy if:]
37-20 [(1) the price set by the board under Section 51.193
37-21 of this code exceeds by 15 percent or more the market value
37-22 estimated in an appraisal made by a real estate appraiser certified
37-23 in Texas for the person seeking to purchase the vacancy; and]
37-24 [(2) the appraisal was made not more than six months
37-25 before the date on which the board set the price.]
37-26 [(b) If agreement on price is not reached through mediation
38-1 on or before the 60th day after the first mediation session, the
38-2 person seeking to purchase the vacancy, by filing a written request
38-3 with the commissioner, may have the issue of market value submitted
38-4 to binding arbitration.]
38-5 [(c) A panel of three real estate appraisers certified in
38-6 Texas shall conduct the arbitration. The person seeking to
38-7 purchase the vacancy shall name one member of the panel, the board
38-8 shall name one member of the panel, and the two panel members shall
38-9 name the third member of the panel, who is the panel's presiding
38-10 officer. The board or the person seeking to purchase the vacancy
38-11 may object to and have disqualified the first person named to the
38-12 panel by the other party. Appraisers employed by or who contract
38-13 with the land office are eligible to serve on the arbitration
38-14 panel.]
38-15 [(d) The arbitration shall be conducted under the rules of
38-16 the American Arbitration Association or under other rules agreed on
38-17 by the parties.]
38-18 [(e) The decision of the arbitration panel is not subject to
38-19 judicial review.]
38-20 [(f) The costs of mediation and arbitration shall be shared
38-21 equally by the land office and the person seeking to purchase the
38-22 vacancy.]
38-23 [Sec. 51.195. CONDITIONS OF SALE; MINERAL AWARDS. (a) In
38-24 all sales, the board shall reserve to the permanent school fund all
38-25 oil, gas, sulphur, and other minerals and geothermal resources and
38-26 shall determine the manner in which those minerals and geothermal
39-1 resources are to be leased.]
39-2 [(b) Before the sale of a vacancy, the land office shall
39-3 prepare and present to the board a study of the mineral prospects
39-4 and value of the vacancy, taking into consideration the size and
39-5 configuration of the vacancy, its location with respect to other
39-6 surrounding and nearby tracts, the proximity of mineral production,
39-7 and the likelihood of future mineral leasing and development. The
39-8 study shall include a recommendation as to the method most
39-9 advantageous to the state by which the vacancy could be leased.]
39-10 [(c) The board shall review the study and land office
39-11 recommendations and shall determine whether:]
39-12 [(1) the state shall retain all leasing rights and the
39-13 vacancy shall be leased as provided in Subchapter B, Chapter 52,
39-14 and Subchapters B and E, Chapter 53, of this code; or]
39-15 [(2) the owner of the soil shall be designated to
39-16 execute leases as the agent of the state subject to the rights,
39-17 obligations, and liabilities of Subchapter F, Chapter 52, and
39-18 Subchapter C, Chapter 53, of this code.]
39-19 [(d) If the board determines that the owner of the soil
39-20 shall act as agent under Subsection (c)(2) of this section, the
39-21 board shall establish the division of bonus, rental, and royalty
39-22 between the permanent school fund and the owner of the soil. The
39-23 portion to be paid to the owner of the soil may not be less than 20
39-24 percent or more than 50 percent. The board may establish different
39-25 portions to be paid to the owner of the soil for the lease of
39-26 different substances.]
40-1 [(e) If the board provides for lease by the owner of the
40-2 soil under Subsection (c)(2) of this section, the original
40-3 purchaser is a good-faith claimant, and the vacancy was established
40-4 under an application made by a person other than a good-faith
40-5 claimant, the board shall award the applicant a perpetual
40-6 nonparticipating royalty of not less than 1/32 or more than 1/16 of
40-7 the value of all oil, gas, and sulphur produced and a perpetual
40-8 nonparticipating royalty of not less than one percent or more than
40-9 two percent of the value of all geothermal resources and all other
40-10 minerals produced.]
40-11 [(f) If the board determines that the state shall retain all
40-12 leasing rights as provided in Subsection (c)(1) of this section,
40-13 the board shall award:]
40-14 [(1) to an applicant other than a good-faith claimant,
40-15 a perpetual nonparticipating royalty of 1/32 of the value of oil
40-16 and gas and sulphur and one percent of the value of all geothermal
40-17 resources and all other minerals produced; and]
40-18 [(2) to a good-faith claimant purchasing the vacancy,
40-19 a nonparticipating royalty of 1/32 of the value of oil and gas and
40-20 sulphur and one percent of the value of all geothermal resources
40-21 and all other minerals produced.]
40-22 [(g) If a preferential right to obtain the first mineral
40-23 lease on a vacancy is exercised by any person, the state's royalty
40-24 under the lease shall be reduced by 25 percent for a period of five
40-25 years after the date of first production under the first lease if
40-26 sales of production from or attributable to the lease are commenced
41-1 during the primary term of the lease.]
41-2 [Sec. 51.196. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT.
41-3 (a) A good-faith claimant has a preferential right to purchase or
41-4 lease the portion of a vacancy subject to the good-faith claim.]
41-5 [(b) A good-faith claimant may exercise the preferential
41-6 right by filing a notice of intent to purchase or lease, on a form
41-7 prescribed by the board, not later than the 90th day after the date
41-8 the order establishing the vacancy becomes final. The good-faith
41-9 claimant shall describe in the notice the portion of the vacancy
41-10 the good-faith claimant seeks to purchase or lease. The good-faith
41-11 claimant shall mail a copy of the notice to the applicant and to
41-12 all other interested persons who have asserted status as good-faith
41-13 claimants.]
41-14 [(c) All preferential rights held by a good-faith claimant
41-15 expire if the good-faith claimant does not file the notice of
41-16 intent within the time prescribed by Subsection (b) of this section
41-17 or does not complete the purchase or lease within 60 days after the
41-18 board sets the terms of the purchase or lease. For good cause
41-19 shown, the board may extend the time to complete the purchase or
41-20 lease by a period not to exceed 90 days.]
41-21 [(d) A good-faith claimant exercising a preferential right
41-22 shall repay to the applicant the applicant's reasonable expenses
41-23 incurred in determining the existence of a vacancy, excluding
41-24 filing and attorney fees, not later than the date on which the sale
41-25 or purchase by the good-faith claimant is completed. Failure to
41-26 pay the expenses cancels the preferential right of the good-faith
42-1 claimant.]
42-2 [Sec. 51.197. PREFERENTIAL RIGHT OF APPLICANT OTHER THAN
42-3 GOOD-FAITH CLAIMANT. (a) On the expiration of the preferential
42-4 right of a good-faith claimant to purchase or lease or if there is
42-5 no good-faith claimant, an applicant who is not a good-faith
42-6 claimant has a preferential right to purchase or lease all or any
42-7 portion of the vacancy.]
42-8 [(b) An applicant may exercise the preferential right by
42-9 filing a notice of intent to purchase or lease, on a form
42-10 prescribed by the board, not later than the 90th day after the date
42-11 on which the rights of the good-faith claimant expire. The
42-12 applicant shall describe in the notice the portion of the vacancy
42-13 the applicant seeks to purchase or lease. The applicant shall mail
42-14 a copy of the notice to all other interested persons asserting
42-15 status as good-faith claimants.]
42-16 [(c) All preferential rights held by an applicant expire if
42-17 the applicant does not file the notice of intent within the time
42-18 prescribed by Subsection (b) of this section or does not complete
42-19 the purchase or lease within 60 days after the date on which the
42-20 board sets the terms of the purchase or lease. For good cause
42-21 shown, the board may extend the time to complete the purchase or
42-22 lease by a period not to exceed 90 days.]
42-23 [Sec. 51.198. RIGHTS ASSIGNABLE. An applicant or good-faith
42-24 claimant may assign all rights in a vacancy or land claimed to be
42-25 vacant. The assignment must be in writing. The assignor shall
42-26 record the assignment in the real property records of the county or
43-1 counties in which the vacancy or land claimed to be vacant is
43-2 located and file a certified copy of the recorded assignment in the
43-3 land office.]
43-4 [Sec. 51.199. LEASE TERMS UNDER PREFERENTIAL RIGHTS. The
43-5 board shall prescribe terms for preferential purchases or leases
43-6 consistent with this subchapter. The board may not grant a
43-7 preferential lease with a royalty of less than 1/8 of the value of
43-8 all oil, gas, and sulphur produced or less than five percent of the
43-9 value of all geothermal resources and all other minerals produced.]
43-10 [Sec. 51.200. EFFECT OF PRIOR CONVEYANCES. (a) A mineral
43-11 lease, surface lease, deed, or any other conveyance of any interest
43-12 in land executed by a good-faith claimant before the date of
43-13 completion of a sale or lease under this subchapter does not give
43-14 the grantee under that conveyance any interest in or to the vacancy
43-15 or its minerals.]
43-16 [(b) A title to land or an interest in land acquired from
43-17 the state under a preferential right does not pass as
43-18 after-acquired title under a covenant of general warranty,
43-19 description, or other provision contained in a conveyance executed
43-20 before the date of completion of a sale or lease under this
43-21 subchapter.]
43-22 [Sec. 51.201. RULEMAKING AUTHORITY. (a) The commissioner
43-23 may adopt rules consistent with this subchapter relating to
43-24 applications to purchase or lease vacancies and the determination
43-25 of the existence of vacancies.]
43-26 [(b) The board may adopt rules consistent with this
44-1 subchapter relating to the sale and lease of vacancies.]
44-2 [Sec. 51.202. CONFLICT WITH OTHER CODE PROVISIONS. To the
44-3 extent that any provision of this subchapter pertaining to
44-4 vacancies or the sale or lease of vacancies conflicts with any
44-5 other provision of this code, this subchapter controls.]
44-6 SECTION 2. This Act takes effect immediately if it receives
44-7 a vote of two-thirds of all the members elected to each house, as
44-8 provided by Section 39, Article III, Texas Constitution. If this
44-9 Act does not receive the vote necessary for immediate effect, this
44-10 Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1806 passed the Senate on
May 3, 2001, by a viva-voce vote; and that the Senate concurred in
House amendment on May 17, 2001, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1806 passed the House, with
amendment, on May 10, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor