1-1 By: Lucio S.B. No. 1806
1-2 (In the Senate - Filed April 11, 2001; April 17, 2001, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 1, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 4, Nays 0; May 1, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1806 By: Lucio
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the sale and lease of vacant and unsurveyed public
1-11 school land.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter E, Chapter 51, Natural Resources Code,
1-14 is amended to read as follows:
1-15 SUBCHAPTER E. SALE AND LEASE OF VACANCIES
1-16 Sec. 51.171. PURPOSE; APPLICATION OF OTHER LAW. (a) This
1-17 subchapter controls the purchase and lease of vacant land and the
1-18 authority of the commissioner and the board to:
1-19 (1) determine whether a vacancy exists; and
1-20 (2) sell and lease vacant land.
1-21 (b) To the extent a provision of this subchapter conflicts
1-22 with another law relating to vacant land, this subchapter controls.
1-23 (c) Chapter 2001, Government Code, does not apply to a
1-24 proceeding under this subchapter.
1-25 Sec. 51.172. DEFINITIONS. In this subchapter:
1-26 (1) "Applicant" means any person who files an
1-27 application to purchase or lease a vacancy.
1-28 (2) "Good-faith claimant" means a person who:
1-29 (A) occupies or uses or has previously occupied
1-30 or used, or whose predecessors in interest have occupied or used, a
1-31 vacancy for purposes other than exploring for or removing oil, gas,
1-32 sulphur, or other minerals and geothermal resources from the
1-33 vacancy; and
1-34 (B) has had, or whose predecessors in interest
1-35 have had, the vacancy enclosed or within definite boundaries
1-36 recognized in the community and in possession for a period of at
1-37 least 10 years with a good-faith belief that the vacancy was
1-38 included within the boundaries of a survey or surveys that were
1-39 previously titled, awarded, or sold under circumstances that would
1-40 have vested title in the vacancy if the vacancy were actually
1-41 located within the boundaries of the survey or surveys.
1-42 (3) "Interested person" means a person, excluding a
1-43 good-faith claimant or an applicant, who has a present legal
1-44 interest in the surface or mineral estate of the land claimed to be
1-45 vacant.
1-46 (4) "Necessary party" means an applicant, interested
1-47 person, and good-faith claimant whose present legal interest in the
1-48 surface or mineral estate of the land claimed to be vacant may be
1-49 adversely affected by a vacancy determination.
1-50 (5) "Vacancy" means an area of unsurveyed public
1-51 school land that:
1-52 (A) is not in conflict on the ground with land
1-53 previously titled, awarded, or sold;
1-54 (B) has not been listed on the records of the
1-55 land office as public school land; and
1-56 (C) was not, on the date of filing of an
1-57 application:
1-58 (i) subject to an earlier subsisting
1-59 application; or
1-60 (ii) the subject of pending litigation
1-61 relating to state ownership or possession of the land.
1-62 Sec. 51.173. DISPOSITION OF VACANT LAND. (a) Vacant and
1-63 unsurveyed public school land shall be located, sold, and leased
1-64 under this subchapter, except:
2-1 (1) submerged lands within tidewater limits;
2-2 (2) all islands, flats, and emergent lands within
2-3 tidewater limits;
2-4 (3) natural lakes; and
2-5 (4) riverbeds, including channels and islands in
2-6 riverbeds, above tidewater limits.
2-7 (b) This subchapter does not alter or diminish the public
2-8 domain status of the surface estate of riverbeds and channels and
2-9 islands in riverbeds that are located above tidewater limits.
2-10 Sec. 51.174. GENERAL POWERS AND DUTIES OF COMMISSIONER.
2-11 (a) The commissioner may:
2-12 (1) delegate responsibility for implementing this
2-13 subchapter; and
2-14 (2) perform any other act necessary to administer and
2-15 implement the purposes of this subchapter.
2-16 (b) The commissioner shall adopt rules necessary and
2-17 convenient to administer this subchapter.
2-18 (c) The commissioner shall advise the board relating to the
2-19 fair market value of the surface and mineral estates of vacant
2-20 land.
2-21 Sec. 51.175. GENERAL POWERS AND DUTIES OF BOARD. (a) The
2-22 board shall set the terms and conditions for each sale and lease of
2-23 a vacancy.
2-24 (b) The board shall adopt rules governing the terms and
2-25 conditions for the sale and lease of a vacancy. The rules shall be
2-26 adopted and amended as necessary to be consistent with property law
2-27 of this state and other applicable law.
2-28 (c) The board may adopt rules governing mineral
2-29 classification, royalty reservations, and awards of royalty
2-30 reservations and preferential rights to an applicant or to a
2-31 good-faith claimant in addition to the provisions prescribed by
2-32 this subchapter.
2-33 Sec. 51.176. APPLICATION. (a) To purchase or lease land
2-34 claimed to be vacant, a person must file an application on a form
2-35 prescribed by the commissioner. A completed application must:
2-36 (1) describe the land that is claimed to be vacant;
2-37 (2) state whether the applicant seeks to purchase the
2-38 land that is claimed to be vacant or obtain a mineral lease on the
2-39 land;
2-40 (3) state the name and address of each person who,
2-41 from facts known to the applicant, asserts a present legal interest
2-42 in the land claimed to be vacant;
2-43 (4) if applicable, state the basis and provide
2-44 documentary proof for an assertion of good-faith-claimant status;
2-45 and
2-46 (5) provide any other information required by the
2-47 commissioner.
2-48 (b) The applicant must file the application with the county
2-49 surveyor of the county in which all or part of the land claimed to
2-50 be vacant is located. If the county does not have a county
2-51 surveyor, the application must be filed with the county clerk.
2-52 (c) The county surveyor or county clerk, as applicable,
2-53 shall mark the exact date and hour of filing on the original and a
2-54 duplicate copy of the application and shall return a marked copy to
2-55 the person filing the application. The original shall be recorded
2-56 in a book kept for that purpose separate from the deed or real
2-57 property records. The failure to record an application as provided
2-58 by this subsection does not affect the validity of the application
2-59 filing.
2-60 (d) Priority among applications covering the same land
2-61 claimed to be vacant is determined by the time of filing indicated
2-62 by the date and hour marked on the application by the county
2-63 surveyor or county clerk.
2-64 (e) The applicant shall file with the commissioner the
2-65 duplicate copy of the application with the county official's mark
2-66 indicating the time of filing not later than the 30th day after the
2-67 date the application is filed with the county surveyor or clerk.
2-68 If the 30th day after the date of filing falls on a Saturday,
2-69 Sunday, or state or federal holiday, the application may be filed
3-1 on the next regular business day following the 30th day. The
3-2 applicant shall include a filing fee set by the commissioner in an
3-3 amount of not less than $100.
3-4 Sec. 51.177. PROCESSING APPLICATION. (a) The commissioner
3-5 shall mark the date of filing on the application and assign a file
3-6 number to the application.
3-7 (b) The commissioner shall accept an application filed in
3-8 compliance with this subchapter and shall notify the applicant on
3-9 acceptance of the application.
3-10 (c) The commissioner may reject an application and shall
3-11 notify the applicant of the rejection if the application:
3-12 (1) has material omissions;
3-13 (2) does not describe the land claimed to be vacant
3-14 adequately for the land to be located on the ground; or
3-15 (3) describes as vacant land that has been finally
3-16 adjudicated in a court of this state or of the United States not to
3-17 be vacant.
3-18 (d) A rejected application is terminated. No further action
3-19 is taken on the application, and the land office file is closed.
3-20 Sec. 51.178. APPLICATION FOR AND DETERMINATION OF
3-21 GOOD-FAITH-CLAIMANT STATUS. (a) A person may apply for
3-22 good-faith-claimant status:
3-23 (1) at the time an application is filed under Section
3-24 51.176; or
3-25 (2) not later than the 60th day after the date notice
3-26 of acceptance is published as required under Section 51.179(d).
3-27 (b) The application must include certified copies of
3-28 applicable county records supporting the good-faith claimant's
3-29 status.
3-30 (c) The commissioner shall, after expiration of the period
3-31 prescribed by Subsection (a)(2), declare whether a person is a
3-32 good-faith claimant. The commissioner may consider documents filed
3-33 in support of the person's good-faith-claimant status and any other
3-34 relevant information. The commissioner may conduct an
3-35 investigation under Section 51.185 as necessary to make a
3-36 determination on the application. The commissioner has sole
3-37 discretion to declare a person a good-faith claimant, and a person
3-38 is not otherwise entitled to a declaration of good-faith-claimant
3-39 status. A declaration of the commissioner under this subsection is
3-40 not a final order and may not be appealed, except as provided by
3-41 Section 51.187.
3-42 (d) A declaration of good-faith-claimant status grants a
3-43 preferential right to the claimant to purchase or lease the land as
3-44 provided by this subchapter. The declaration does not confer any
3-45 other rights.
3-46 Sec. 51.179. IDENTIFICATION OF AND NOTICE TO NECESSARY
3-47 PARTIES. (a) The applicant shall identify each necessary party by
3-48 the name and last known address of each owner or claimant of land
3-49 or any interest in land or of a lease on, adjoining, overlapping,
3-50 or including the land claimed to be vacant as can be determined
3-51 from the records of the land office and the county clerk's office.
3-52 (b) The applicant shall provide each necessary party with
3-53 the notice of the commissioner's acceptance of the application, a
3-54 copy of the application, and a continuance for future notices form
3-55 not later than the 90th day after the date the applicant receives
3-56 the notice of the commissioner's acceptance of the application.
3-57 (c) Except as provided by this subsection, a necessary party
3-58 is not entitled to subsequent notices required by this subchapter
3-59 unless the party requests subsequent notices. The commissioner
3-60 shall notify a necessary party of a final order issued under
3-61 Section 51.186.
3-62 (d) Not later than the 30th day after the date the notices
3-63 are mailed under Subsection (b), the applicant must publish the
3-64 notice of the commissioner's acceptance of the application in each
3-65 newspaper of general circulation in the county and the general area
3-66 in which the land is located for a period determined by the
3-67 commissioner. The published notice must contain a description of
3-68 the land claimed to be vacant.
3-69 Sec. 51.180. DEPOSIT. (a) The commissioner may recover
4-1 state funds expended in the investigation and hearings conducted
4-2 under this subchapter.
4-3 (b) Not later than the 30th day after the date notice is
4-4 published as required by Section 51.179, the commissioner may
4-5 require the applicant to submit a deposit. If required, the
4-6 applicant must make a deposit in an amount sufficient to pay the
4-7 costs of any survey and investigation required under this
4-8 subchapter not later than the 30th day after the date the
4-9 commissioner notifies the applicant.
4-10 (c) If the amount deposited is insufficient, the
4-11 commissioner may make a written request for a reasonably necessary
4-12 supplemental deposit. If a supplemental deposit is required, the
4-13 applicant must make the deposit not later than the 30th day after
4-14 the date the commissioner requests the deposit.
4-15 (d) The commissioner and applicant may agree to alternative
4-16 payment methods to recover state funds expended in the
4-17 investigation and hearings conducted under this subchapter.
4-18 (e) An applicant may not challenge or appeal the amount of
4-19 the required deposits, and the applicant's refusal or failure to
4-20 make the required deposits terminates the application.
4-21 Sec. 51.181. DISPOSITION OF DEPOSITS. (a) The commissioner
4-22 shall deposit all initial and supplemental deposits received under
4-23 this subchapter to the credit of a separate trust account in the
4-24 state treasury. The comptroller, on the commissioner's order,
4-25 shall make disbursements from that account for purposes authorized
4-26 by this subchapter.
4-27 (b) After proceedings on an application are concluded and
4-28 all expenditures authorized under this subchapter are paid, the
4-29 commissioner shall provide the applicant a complete statement of
4-30 all deposits and expenditures and shall remit to the applicant any
4-31 balance remaining from the deposit or supplemental deposits made by
4-32 the applicant.
4-33 Sec. 51.182. COMMISSIONER'S SURVEY. (a) The commissioner
4-34 may appoint a licensed state land surveyor, or the county surveyor
4-35 of the county in which the land claimed to be vacant or part of
4-36 that land is located, to investigate the applicant's claim. The
4-37 commissioner may limit the scope of the work performed by the
4-38 surveyor.
4-39 (b) The commissioner shall mail a notice of intention to
4-40 survey to each necessary party not later than the 30th day before
4-41 the date the surveyor begins work. The notice must contain the
4-42 proposed starting date of the survey and the name, address, and
4-43 telephone number of the surveyor.
4-44 (c) The fees and expenses paid for the survey are the same
4-45 as those provided by law. If the fees and expenses are not
4-46 provided by law, the commissioner shall contract for fees and
4-47 expenses reasonably necessary for the scope of the required work.
4-48 Contracts under this subsection:
4-49 (1) must include hourly rates, categories of
4-50 reimbursable expenses, and an estimated completion date; and
4-51 (2) may include other expenses the commissioner
4-52 considers reasonable.
4-53 (d) The appointment of a surveyor is not required. The
4-54 commissioner may rely on:
4-55 (1) any survey conducted by a licensed state land
4-56 surveyor or a county surveyor of the county in which the land
4-57 claimed to be vacant or a part of that land is located; and
4-58 (2) any documents or public records required to
4-59 determine whether a vacancy exists.
4-60 Sec. 51.183. SURVEYOR'S REPORT. (a) Not later than the
4-61 120th day after the date a surveyor is appointed under Section
4-62 51.182, the surveyor shall file a written report of the survey, the
4-63 field notes describing the land and the lines and corners surveyed,
4-64 a plat depicting the results of the survey, and any other
4-65 information required by the commissioner. The commissioner may
4-66 extend the time for filing the report as reasonably necessary.
4-67 (b) The survey report must also contain the name and post
4-68 office address of each person who has possession of the land
4-69 described in the application and of each person determined by the
5-1 surveyor to have a present legal interest in the land.
5-2 Sec. 51.184. COMPLETION OF SURVEY. (a) The commissioner
5-3 shall serve a true copy of the survey report filed by the surveyor
5-4 on each necessary party, including those named in the survey
5-5 report, by certified mail, return receipt requested, not later than
5-6 the 10th business day after the date the survey report is filed
5-7 with the land office.
5-8 (b) Any necessary party may file exceptions to the
5-9 surveyor's report not later than the 30th day after the date the
5-10 notice of completion is received. If the commissioner does not
5-11 appoint a surveyor, a necessary party may file exceptions to a
5-12 survey report filed by the applicant during a period established by
5-13 the commissioner. Any exceptions must be filed with the land
5-14 office and a copy must be sent to each necessary party.
5-15 Sec. 51.185. INVESTIGATION. (a) The commissioner shall
5-16 conduct an investigation of the applicant's claim that a vacancy
5-17 exists. The commissioner may conduct a hearing. A hearing under
5-18 this subchapter is not a contested case hearing and is not subject
5-19 to Chapter 2001, Government Code. The commissioner is not required
5-20 to grant any hearings under this subchapter.
5-21 (b) The commissioner shall determine the scope of any
5-22 hearings to investigate an application for good-faith-claimant
5-23 status and an application to purchase or lease vacant land. If the
5-24 commissioner grants a hearing, the commissioner shall provide
5-25 timely notice of the time and place of the hearing to necessary
5-26 parties and shall provide each necessary party an opportunity to be
5-27 heard. Any other procedural rights, including the right to examine
5-28 or cross-examine witnesses, may be granted in the sole discretion
5-29 of the commissioner.
5-30 (c) The commissioner may consult with any land office
5-31 employee, including the chief surveyor, or a relevant expert during
5-32 the investigation.
5-33 (d) The commissioner shall record the names of the persons
5-34 consulted, the documents and surveys reviewed, and the relevant law
5-35 and other materials used in the investigation.
5-36 Sec. 51.186. COMMISSIONER'S FINAL ORDER. (a) If the
5-37 commissioner concludes that the land claimed to be vacant is not in
5-38 conflict with land previously titled, awarded, or sold by the
5-39 state, the commissioner may determine that a vacancy exists. The
5-40 commissioner shall notify each necessary party by mailing each
5-41 party a copy of the vacancy determination. The vacancy
5-42 determination is a final order of the commissioner and may be
5-43 appealed as provided by Section 51.187.
5-44 (b) A vacancy determination order must contain:
5-45 (1) a field note description of the land determined to
5-46 be vacant that is sufficient to locate the land on the ground;
5-47 (2) an accurate plat of the land that is:
5-48 (A) consistent with the field notes; and
5-49 (B) prepared by a licensed state land surveyor;
5-50 and
5-51 (3) any other matters required by law or as the
5-52 commissioner considers appropriate.
5-53 (c) In determining the boundaries and size of a vacancy, the
5-54 commissioner is not restricted to a description of the land claimed
5-55 to be vacant that is provided by the applicant, the surveyor, or
5-56 any other person. The commissioner shall adopt the description of
5-57 a vacancy that best describes the vacancy and is consistent with
5-58 the investigation under this subchapter.
5-59 (d) If the commissioner determines that the land claimed to
5-60 be vacant is not vacant, the commissioner shall endorse the file
5-61 with the finding "Not Vacant Land" and shall notify each necessary
5-62 party of the determination. A finding of "Not Vacant Land" is
5-63 conclusive with respect to land described in the application. A
5-64 finding of "Not Vacant Land" under this subsection is a final order
5-65 of the commissioner and may be appealed as provided by Section
5-66 51.187.
5-67 Sec. 51.187. APPEAL. (a) The district court in the county
5-68 in which a majority of the vacant land is located has jurisdiction
5-69 of an appeal under this subchapter. A person must file an appeal
6-1 not later than the 90th day after the date the commissioner's final
6-2 order is issued under Section 51.186.
6-3 (b) The district court, in its discretion, may allow an
6-4 interested person who did not receive notice of a proceeding under
6-5 this subchapter to file an appeal after the expiration of the
6-6 90-day period prescribed by Subsection (a).
6-7 (c) If the commissioner has not issued a final order under
6-8 Section 51.186 on or before the first anniversary of the date the
6-9 application was accepted under Section 51.177(b), the applicant may
6-10 file an action in district court to determine whether a vacancy
6-11 exists. The filing of an action under this subsection terminates
6-12 the application with the land office.
6-13 Sec. 51.188. SCOPE OF REVIEW. The district court shall
6-14 conduct a de novo review of the commissioner's final order
6-15 determining that a vacancy exists.
6-16 Sec. 51.189. ISSUES REVIEWABLE. The court may review the
6-17 commissioner's declaration of good-faith-claimant status only in
6-18 conjunction with a review of a final order determining that a
6-19 vacancy exists.
6-20 Sec. 51.190. STANDING TO APPEAL. A person who has a present
6-21 legal interest in the surface or mineral estate at the time an
6-22 application is filed or who acquires an interest before the date of
6-23 the commissioner's final order may appeal the final order.
6-24 Sec. 51.191. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT.
6-25 (a) A good-faith claimant who has been notified by the
6-26 commissioner that a vacancy exists under this subchapter has a
6-27 preferential right to purchase or lease the vacancy. The
6-28 preferential right may be exercised after a final judicial
6-29 determination or after the commissioner's final order and the
6-30 period for filing an appeal has expired. If the good-faith
6-31 claimant does not apply to purchase or lease the land before the
6-32 121st day after the date the preferential right may be exercised,
6-33 the preferential right expires.
6-34 (b) The good-faith claimant may purchase or lease the
6-35 vacancy by submitting a written application to the board.
6-36 (c) The good-faith claimant is entitled to purchase or lease
6-37 the portion of the land that is vacant:
6-38 (1) at the price set by the board;
6-39 (2) subject to the royalty reservations provided by
6-40 the board; and
6-41 (3) in accordance with the law in effect on the date
6-42 the application is filed.
6-43 Sec. 51.192. PURCHASE OR LEASE BY APPLICANT. (a) If no
6-44 good-faith claimant exists or if no good-faith claimant exercises a
6-45 preferential right within the applicable period, the applicant has
6-46 a preferential right to purchase or lease the land determined to be
6-47 vacant for 30 days after:
6-48 (1) a determination that no good-faith claimant
6-49 exists; or
6-50 (2) the expiration of the period for exercising a
6-51 preferential right.
6-52 (b) The board shall award an applicant, other than a
6-53 good-faith claimant, a perpetual nonparticipating royalty of:
6-54 (1) not less than 1/32 or more than 1/16 of the value
6-55 of oil, gas, and sulphur; and
6-56 (2) one percent of the value of all geothermal and
6-57 other minerals produced. [SALE AND LEASE OF VACANT LAND.
6-58 (a) Vacant and unsurveyed public school land shall be located,
6-59 sold, and leased under this subchapter, except:]
6-60 [(1) submerged lands within tidewater limits;]
6-61 [(2) all islands, flats, and emergent lands within
6-62 tidewater limits;]
6-63 [(3) natural lakes; and]
6-64 [(4) riverbeds, including channels and islands in
6-65 riverbeds, above tidewater limits.]
6-66 [(b) This subchapter does not alter or diminish the public
6-67 domain status of the surface estate of riverbeds and channels and
6-68 islands in riverbeds that are located above tidewater limits.]
6-69 [Sec. 51.172. DEFINITIONS. In this subchapter:]
7-1 [(1) "Applicant" means any person who files an
7-2 application. The term may include a good-faith claimant.]
7-3 [(2) "Application" means an application to purchase or
7-4 lease a vacancy under this subchapter.]
7-5 [(3) "Good-faith claimant" means a person who:]
7-6 [(A) occupies or uses or whose predecessors in
7-7 interest have occupied or used a vacancy for purposes other than
7-8 exploring for or removing or purporting to lease or otherwise
7-9 convey oil, gas, sulphur, other minerals, or geothermal resources
7-10 from the vacancy;]
7-11 [(B) has had, or whose predecessors in interest
7-12 have had, the vacancy enclosed or within definite recognized
7-13 boundaries and in possession for a period of 10 or more years with
7-14 a good-faith belief that the vacancy was included within the
7-15 boundaries of a survey or surveys that were previously titled,
7-16 awarded, or sold under circumstances that would have vested title
7-17 in the vacancy if it were actually located within the boundaries of
7-18 the survey or surveys;]
7-19 [(C) is the owner of land adjoining a vacancy on
7-20 which no application has previously been filed; or]
7-21 [(D) holds under a good-faith claimant or is
7-22 entitled to a distributive share of any title acquired under an
7-23 application made by a good-faith claimant.]
7-24 [(4) "Interest" means any right or title in or to real
7-25 property, whether affecting the surface, subsurface, or mineral
7-26 estate, including:]
7-27 [(A) fee simple title;]
7-28 [(B) a determinable fee created under a mineral
7-29 lease or conveyance or otherwise;]
7-30 [(C) a royalty, nonparticipating royalty, or
7-31 overriding royalty interest;]
7-32 [(D) a remainder or reversionary interest; or]
7-33 [(E) an interest arising under a lien.]
7-34 [(5) "Interested person" means:]
7-35 [(A) a person who may own or who claims any
7-36 interest in land claimed to be vacant or in any land adjoining or
7-37 overlapping that land as determined from the records of the land
7-38 office, the records of the county clerk's office, and the tax
7-39 records of the county or counties in which the land claimed to be
7-40 vacant is located;]
7-41 [(B) any other person who asserts a right to or
7-42 interest in the land claimed to be vacant and who is known to the
7-43 applicant or whose identity could be ascertained by the applicant
7-44 with the exercise of reasonable diligence;]
7-45 [(C) the attorney general; or]
7-46 [(D) the applicant.]
7-47 [(6) "Vacancy" means an area of unsurveyed public
7-48 school land that:]
7-49 [(A) is not in conflict on the ground with land
7-50 previously titled, awarded, or sold;]
7-51 [(B) has not been listed on the records of the
7-52 land office as public school land; and]
7-53 [(C) was not, on the date of filing of an
7-54 application:]
7-55 [(i) subject to an earlier subsisting
7-56 application by an applicant or good-faith claimant; or]
7-57 [(ii) the subject of pending litigation
7-58 brought by the state to recover the land.]
7-59 [Sec. 51.173. APPLICATION. (a) To purchase or lease a
7-60 vacancy, a person must file an application. The filing of an
7-61 application commences a proceeding under this subchapter. The
7-62 applicant must file the application with the county surveyor of the
7-63 county in which all or part of the land claimed to be vacant is
7-64 located. If the county does not have a county surveyor, the
7-65 application must be filed with the county clerk.]
7-66 [(b) The application must:]
7-67 [(1) describe the land that is claimed to be vacant;]
7-68 [(2) state whether the applicant is a good-faith
7-69 claimant;]
8-1 [(3) state whether the applicant seeks to purchase the
8-2 vacancy or obtain a mineral lease on the vacancy;]
8-3 [(4) state the name and last known address of all
8-4 interested persons; and]
8-5 [(5) provide any other information that the
8-6 commissioner requires by rule.]
8-7 [(c) The commissioner by rule shall set an application
8-8 filing fee in an amount of not less than $5. The applicant shall
8-9 pay the filing fee to the county surveyor or county clerk at the
8-10 time the application is filed.]
8-11 [(d) The county surveyor or county clerk shall mark the
8-12 exact date and hour of filing on the original and a duplicate copy
8-13 of the application and shall return a marked copy to the person
8-14 filing the application. The original shall be recorded in a book
8-15 kept for that purpose separate from the deed or real property
8-16 records.]
8-17 [(e) Priority among applications covering the same land
8-18 claimed to be vacant is determined by the time of filing indicated
8-19 by the date and hour marked on the application by the county
8-20 surveyor or county clerk.]
8-21 [Sec. 51.174. FILING APPLICATION WITH COMMISSIONER.
8-22 (a) The applicant shall file with the commissioner a copy of the
8-23 application with the county surveyor's or clerk's mark indicating
8-24 the time of filing not later than the 10th day after the
8-25 application is filed with the county surveyor or clerk. The
8-26 applicant shall include a filing fee set by the commissioner in an
8-27 amount of not less than $100. If the 10th day after filing falls
8-28 on a Saturday, Sunday, or state or federal holiday, the application
8-29 may be filed on the next regular business day following the 10th
8-30 day.]
8-31 [(b) The commissioner shall mark the date of filing on the
8-32 application and assign a file number to the application.]
8-33 [(c) An applicant who does not file the application with the
8-34 commissioner in the time provided in this section or pay the filing
8-35 fee waives all rights under the application.]
8-36 [(d) The commissioner may refuse to accept for filing an
8-37 application that:]
8-38 [(1) has material omissions;]
8-39 [(2) does not describe the land claimed to be vacant
8-40 adequately for the land to be located on the ground; or]
8-41 [(3) describes as vacant land that has been finally
8-42 adjudicated in a court of this state or of the United States not to
8-43 be vacant.]
8-44 [Sec. 51.175. DEPOSIT. (a) If an applicant is not a
8-45 good-faith claimant, the commissioner shall estimate the costs of
8-46 proceeding under the application, including the costs of a survey
8-47 made by a licensed state land surveyor or the county surveyor, the
8-48 preparation of copies and working sketches by the land office, the
8-49 mailing or publication of notices and copies, and other similar
8-50 costs, excluding allocable costs of salaries and overhead expended
8-51 by the land office in actually conducting a hearing or preparing
8-52 orders and proposals for decision.]
8-53 [(b) The commissioner shall notify the applicant in writing
8-54 of the estimated costs and the applicant shall make a deposit with
8-55 the commissioner in the amount of the estimated costs.]
8-56 [(c) If at any time the commissioner determines that the
8-57 funds on deposit are insufficient to pay the costs of the
8-58 proceeding, the commissioner shall estimate the additional amount
8-59 required and shall notify the applicant in writing to make a
8-60 supplemental deposit of the estimated amount. The notice must be
8-61 dated.]
8-62 [(d) The applicant shall make an initial deposit or a
8-63 supplemental deposit not later than the 30th day after the date of
8-64 the written notice to make the deposit. The commissioner shall
8-65 cancel the application if the applicant does not make a required
8-66 deposit within the prescribed time. Cancellation terminates all
8-67 rights under that application.]
8-68 [Sec. 51.176. APPEAL OF AMOUNT OF DEPOSIT. (a) An
8-69 applicant may appeal the amount of an initial deposit or
9-1 supplemental deposit determined by the commissioner in the manner
9-2 provided for the appeal of agency decisions under Chapter 2001,
9-3 Government Code.]
9-4 [(b) If the applicant does not pay the amount determined by
9-5 the district court on or before the 15th day after the judgment of
9-6 the district court becomes final and nonappealable, the
9-7 commissioner shall cancel the application. Cancellation terminates
9-8 all rights under that application.]
9-9 [Sec. 51.177. DISPOSITION OF DEPOSITS. (a) The
9-10 commissioner shall deposit all initial and supplemental deposits
9-11 received under this subchapter to the credit of a separate trust
9-12 account in the treasury. The comptroller, on the commissioner's
9-13 order, shall make disbursements from that account for purposes
9-14 authorized by this subchapter.]
9-15 [(b) After proceedings on an application are concluded and
9-16 all expenditures authorized under this subchapter are paid, the
9-17 commissioner shall provide the applicant a complete statement of
9-18 all deposits and expenditures and shall remit to the applicant any
9-19 balance remaining from the deposit or supplemental deposits made by
9-20 the applicant.]
9-21 [Sec. 51.178. APPOINTMENT OF SURVEYOR. (a) Not later than
9-22 the 60th day after the date on which the required deposit is paid,
9-23 the commissioner shall appoint a licensed state land surveyor or
9-24 the county surveyor of the county in which all or a part of the
9-25 land claimed to be vacant is located to make a survey of that land.]
9-26 [(b) The fees and expenses paid for the survey are those
9-27 provided by law. If the fees and expenses are not provided by law,
9-28 the commissioner and surveyor shall make an agreement as to the
9-29 fees and expenses reasonable for the work to be performed.]
9-30 [(c) The fees and expenses shall be paid by the applicant
9-31 and may be paid from the initial deposit or any supplementary
9-32 deposits made by the applicant under this subchapter.]
9-33 [(d) The commissioner shall promulgate rules setting out the
9-34 qualifications and method of selection of surveyors appointed
9-35 pursuant to this section. The rules shall provide the greatest
9-36 practicable opportunity for all qualified surveyors to obtain
9-37 appointment and shall provide the opportunity for an interested
9-38 party to move for the removal of an appointed surveyor on the
9-39 grounds of bias, prejudice, or conflict of interest. No surveyor
9-40 appointed shall be removed, however, except upon notice to the
9-41 surveyor and all interested parties and hearing. The fact of
9-42 removal of a surveyor shall not be a basis for any disciplinary
9-43 action against that surveyor under the Professional Land Surveying
9-44 Practices Act (Article 5282c, Vernon's Texas Civil Statutes).]
9-45 [Sec. 51.179. NOTICE TO INTERESTED PERSONS. (a) Not later
9-46 than the 10th day after the date on which the commissioner appoints
9-47 the surveyor, the commissioner shall give notice by certified mail,
9-48 return receipt requested, to all interested persons at the last
9-49 known address. The notice shall contain:]
9-50 [(1) the date of the notice;]
9-51 [(2) a statement that a vacancy application has been
9-52 made;]
9-53 [(3) the name, address, and telephone number of the
9-54 surveyor appointed to make the survey;]
9-55 [(4) a statement that the survey may begin any time
9-56 after the 20th day after the date of the notice;]
9-57 [(5) a statement that an interested party is entitled
9-58 to:]
9-59 [(A) observe the conduct of the survey;]
9-60 [(B) receive a copy of the final survey report
9-61 and other documents filed by the surveyor; and]
9-62 [(C) participate in the vacancy proceeding;]
9-63 [(6) a true and legible copy of the application; and]
9-64 [(7) other information the commissioner by rule may
9-65 prescribe.]
9-66 [(b) If the location of an interested person is unknown or
9-67 if a notice is returned as unclaimed or undeliverable, the
9-68 commissioner shall publish notice as prescribed by the Texas Rules
9-69 of Civil Procedure. If notice by publication is made, the survey
10-1 may not begin and further proceedings may not be held until the
10-2 30th day after publication is completed.]
10-3 [(c) If the applicant, another interested person, or the
10-4 surveyor shows that the delay required by Subsection (b) of this
10-5 section may materially affect the accuracy of the survey because of
10-6 destruction, alteration, or removal of natural features, monuments,
10-7 or witness objects, or for other good cause, the commissioner may
10-8 order the survey to proceed. Notice of the request to proceed with
10-9 the survey and of any order issued in response to the request shall
10-10 be mailed first class to all interested persons.]
10-11 [(d) The right of an interested person, personally or
10-12 through a representative or representatives, to observe the conduct
10-13 of a survey made under this subchapter does not require a delay in
10-14 the conduct of a survey solely to allow an interested person or
10-15 that person's representative to be present during the survey.]
10-16 [Sec. 51.180. WAIVER OF NOTICE. (a) An interested person
10-17 may waive service of the notice required by Section 51.179 of this
10-18 code by filing with the commissioner a sworn affidavit stating the
10-19 person's intent to waive notice. The affidavit shall state that
10-20 the person executing the waiver has been provided with a true copy
10-21 of the application filed with the commissioner.]
10-22 [(b) The affidavit may also state clearly the interested
10-23 person's intent to waive all further notice of the vacancy
10-24 proceedings. If the affidavit states this intent, it must also
10-25 state prominently and clearly that the interested person is aware
10-26 that waiving the right to further notice may result in the loss of
10-27 the opportunity to appear and to contest the application.]
10-28 [(c) The commissioner by rule may prescribe the form and
10-29 specific content of the affidavit described in this section,
10-30 including additional information to be included.]
10-31 [Sec. 51.181. SURVEY. (a) Except when notice by
10-32 publication is required, at any time after the 20th day after the
10-33 date of the notice required by Section 51.179(a) of this code, the
10-34 surveyor shall begin the survey of the land claimed to be vacant.]
10-35 [(b) The surveyor shall prepare and file in the land office:]
10-36 [(1) a detailed written report of all aspects of the
10-37 survey, including record research conducted, survey corners
10-38 recovered in the course of the field survey, and details of
10-39 boundary construction using recovered corners;]
10-40 [(2) field notes in the form and content prescribed by
10-41 law, describing the land and the lines and corners surveyed;]
10-42 [(3) a complete plat depicting in detail the survey
10-43 results;]
10-44 [(4) the names and addresses of all persons who have
10-45 possession of the land described in the application and a
10-46 description of the lands occupied by those persons; and]
10-47 [(5) the names and addresses of all persons known to
10-48 the surveyor who have or claim any interest in the land.]
10-49 [(c) The surveyor shall file the report required by this
10-50 section not later than the 140th day after the date of the notice
10-51 required by Section 51.179(a) of this code. If notice by
10-52 publication is required and the commissioner has not ordered the
10-53 survey to proceed, the surveyor shall file the report not later
10-54 than the 170th day after the date on which notice by publication is
10-55 completed. If the commissioner has ordered the survey to proceed,
10-56 the surveyor shall file the report not later than the 140th day
10-57 after the date of the commissioner's order.]
10-58 [(d) For good cause shown, the commissioner by written order
10-59 may extend the time for filing the survey. The order shall state
10-60 the cause for the extension and shall be included in the record. A
10-61 single order may not extend the time for filing by more than 60
10-62 days.]
10-63 [(e) An interested person at the person's own expense may
10-64 have any surveying done that the person considers desirable, but a
10-65 survey report, a plat, or field notes based on a survey made by a
10-66 person not qualified by law to survey public lands in this state
10-67 may not be admitted into evidence in a vacancy proceeding or filed
10-68 in the land office.]
10-69 [(f) The commissioner shall serve a true copy of the survey
11-1 report, field notes, plat, and all other documents filed by the
11-2 surveyor on each interested person, including those named in the
11-3 survey report, by certified mail, return receipt requested, not
11-4 later than the fifth business day after the survey report is filed
11-5 in the land office.]
11-6 [Sec. 51.182. ADDITIONAL INTERESTED PERSONS. (a) All
11-7 persons named in the survey report as occupying or as having or
11-8 claiming any interest in the land described in the application
11-9 shall be included in the proceeding as interested persons and shall
11-10 be provided notice as prescribed by this subchapter.]
11-11 [(b) An application may not be canceled or a proceeding
11-12 terminated because of the discovery of an additional interested
11-13 person unless the commissioner finds that the person filing the
11-14 application knowingly and intentionally omitted the name of the
11-15 person from the application.]
11-16 [Sec. 51.183. EXCEPTIONS. An interested person may file
11-17 exceptions to the survey report, field notes, and plat not later
11-18 than the 30th day after the date the survey report is filed in the
11-19 land office. A person filing exceptions shall serve a true copy on
11-20 all interested persons and on the surveyor by certified mail,
11-21 return receipt requested. The exceptions shall include a
11-22 certificate of the fact of that service.]
11-23 [Sec. 51.184. ADDITIONAL SURVEYS. (a) The commissioner or
11-24 the land office staff may consult with the surveyor. The
11-25 commissioner, after notice to the interested persons, may direct
11-26 the surveyor to make additional surveys, to investigate as the
11-27 commissioner considers necessary, and to prepare supplemental
11-28 reports, plats, and field notes the commissioner requires.]
11-29 [(b) The commissioner shall provide copies of all reports,
11-30 plats, field notes, and other information resulting from additional
11-31 surveys and investigation to all interested persons.]
11-32 [(c) An interested person may file exceptions or other
11-33 responses not later than the 20th day after the surveyor files the
11-34 required documents with the land office.]
11-35 [(d) Service of additional documents and exceptions or
11-36 responses to those documents shall be made as provided by Sections
11-37 51.181 and 51.183 of this code.]
11-38 [Sec. 51.185. ACTION ON APPLICATION. (a) Not later than
11-39 the 90th day after the date on which the surveyor files the survey
11-40 report and other documents required to be filed, the commissioner
11-41 shall either deny the application as provided by Section 51.186 of
11-42 this code or hold a hearing to determine whether a vacancy exists.]
11-43 [(b) Except as provided by Section 51.192 of this code, the
11-44 commissioner may not find that a vacancy exists unless a hearing is
11-45 held.]
11-46 [(c) The commissioner shall decide all issues raised or that
11-47 could be raised by the application and any exceptions or responses
11-48 to the application, including the existence of a vacancy, the
11-49 boundaries of a vacancy, and the status and rights of any
11-50 interested person as a good-faith claimant or prior applicant.]
11-51 [(d) The commissioner may not decide in a proceeding on an
11-52 application any claim of the state or permanent school fund for
11-53 damages arising from trespass, the removal or use of minerals or
11-54 geothermal resources, mispayment of proceeds from the sale or use
11-55 of minerals or geothermal resources, damages to the soil,
11-56 vegetation, or other life or habitat, and similar or related
11-57 claims. Those claims may be asserted by the commissioner in
11-58 administrative proceedings under rules adopted by the commissioner
11-59 or through suit brought by the attorney general at the request of
11-60 the commissioner.]
11-61 [(e) Evidence or testimony regarding the existence or extent
11-62 of mineral development or other economic use of land claimed to be
11-63 vacant may not be introduced or considered, unless that evidence or
11-64 testimony is relevant to determine the existence or boundaries of
11-65 the alleged vacancy or the status of a person as a good-faith
11-66 claimant.]
11-67 [Sec. 51.186. DENIAL OF APPLICATION. (a) If, after
11-68 reviewing the survey report, any supplemental reports, any
11-69 exceptions to the reports, all pertinent publicly available records
12-1 of the land office and the state archives, and land office staff
12-2 recommendations, the commissioner decides that the land claimed to
12-3 be vacant is not vacant, the commissioner may enter an order
12-4 denying the application. The order shall contain findings of fact,
12-5 conclusions of law, and other matters the commissioner considers
12-6 appropriate.]
12-7 [(b) The commissioner shall promptly send a true copy of the
12-8 order denying the application to the applicant by certified mail,
12-9 return receipt requested.]
12-10 [(c) The commissioner shall place in the file assigned to
12-11 the application the original order, all materials filed by the
12-12 surveyor, all exceptions and responses to the surveyor's filings,
12-13 all memoranda provided to the commissioner by the land office
12-14 staff, a list of all files and records of the land office and state
12-15 archives examined by the staff or commissioner in connection with
12-16 the application, and all other relevant papers.]
12-17 [(d) An interested person may request a rehearing and appeal
12-18 the commissioner's order as provided by Chapter 2001, Government
12-19 Code and by rules adopted by the commissioner consistent with that
12-20 Act. If a rehearing is not requested, the order becomes final on
12-21 the 30th day after the date it is signed. If a rehearing is
12-22 requested and denied, the order becomes final on the date that time
12-23 for appeal to the district court expires. If appeal is taken, the
12-24 order becomes final on the date that a judgment disposing of the
12-25 order becomes final.]
12-26 [(e) When the commissioner's order denying the vacancy is
12-27 final, all rights under the application are terminated.]
12-28 [Sec. 51.187. EFFECT OF FINAL ORDER. (a) A final order of
12-29 the commissioner under this subchapter is conclusive with respect
12-30 to the land described in the application or final order. A final
12-31 order of the commissioner does not have the effect of stare decisis
12-32 with respect to land not described in the application or final
12-33 order, but may be considered with all other evidence.]
12-34 [(b) The cancellation, withdrawal, abandonment, or
12-35 termination of an application, the refusal of the commissioner to
12-36 accept an application for filing, or the order or judgment of any
12-37 court resulting in or affecting such an action has no effect on a
12-38 subsequent determination of whether any land described in the
12-39 application is vacant.]
12-40 [(c) A decision of the commissioner issued before September
12-41 1, 1993, that denies a vacancy application or letter of inquiry is
12-42 not conclusive as to the existence or nonexistence of a vacancy.]
12-43 [Sec. 51.188. RULEMAKING; VENUE OF APPEALS. (a) A hearing
12-44 under this subchapter and further proceedings arising from the
12-45 hearing shall be conducted in accordance with Chapter 2001,
12-46 Government Code and rules adopted by the commissioner consistent
12-47 with that Act.]
12-48 [(b) Appeal of a final order of the commissioner is to a
12-49 district court of the county in which the land claimed to be vacant
12-50 or a part of that land is located. The district court shall review
12-51 the commissioner's order under the substantial evidence rule.]
12-52 [Sec. 51.189. COMMISSIONER'S ORDER. (a) If it appears to
12-53 the commissioner that the alleged vacancy is not in conflict with
12-54 land previously titled, awarded, or sold by the state or its
12-55 predecessor sovereigns, the commissioner shall enter an order
12-56 declaring the existence of a vacancy and determining all other
12-57 issues.]
12-58 [(b) If it appears to the commissioner that the land claimed
12-59 to be vacant is not vacant, the commissioner shall enter an order
12-60 denying the application and determining all other issues.]
12-61 [(c) The commissioner shall base the order on the testimony
12-62 and other competent evidence presented at the hearing, the
12-63 surveyor's filings and all supplements to those filings, any
12-64 exceptions or responses to the surveyor's filings and all
12-65 supplements to those filings, and the publicly available records of
12-66 the land office and the state archives. The commissioner and the
12-67 examiner or examiners who conduct hearings on the application may
12-68 consult with the land office staff and the surveyor to the extent
12-69 permitted by Chapter 2001, Government Code. The record shall
13-1 include a list of the names and titles of all staff consulted, a
13-2 list of the files and documents of the land office and state
13-3 archives examined, and a copy of all memoranda provided to the
13-4 examiners or commissioner by the land office staff or by the
13-5 surveyor.]
13-6 [(d) The order shall contain:]
13-7 [(1) findings of fact;]
13-8 [(2) conclusions of law;]
13-9 [(3) a field note description of the land, if any,
13-10 found to be vacant, sufficient to locate it on the ground, and
13-11 other elements required by law;]
13-12 [(4) an accurate plat of the land, if any, found to be
13-13 vacant consistent with the field notes and prepared by the surveyor
13-14 or a licensed state land surveyor on the land office staff; and]
13-15 [(5) other matters the commissioner considers
13-16 appropriate.]
13-17 [(e) The commissioner's order may adopt, without restating,
13-18 the findings of fact and conclusions of law stated in a proposal
13-19 for decision prepared by the examiner or examiners who conducted
13-20 the hearings and any opinion or statement contained in that
13-21 proposal for decision.]
13-22 [Sec. 51.190. DETERMINATION OF BOUNDARIES; REOPENING. (a)
13-23 In determining the boundaries and size of a vacancy, the
13-24 commissioner is not restricted to a description of the land claimed
13-25 to be vacant that is provided by the applicant, the surveyor, or an
13-26 interested party. The commissioner shall adopt the description of
13-27 a vacancy that best describes the vacancy and is consistent with
13-28 the information available under this section.]
13-29 [(b) If in determining the boundaries and size of a vacancy
13-30 it becomes apparent to the commissioner that persons who have not
13-31 been named as interested persons and who have not been served
13-32 notice of the proceeding under the application may be affected by
13-33 the finding that a vacancy exists at the location and with the
13-34 boundaries believed by the commissioner to conform to the record,
13-35 the proceeding shall be reopened and the persons affected shall be
13-36 joined as interested persons and given an opportunity to
13-37 participate adequately in the proceeding. This subsection does not
13-38 require the refiling of an application or the conduct of a new
13-39 survey by the surveyor.]
13-40 [Sec. 51.191. GOOD-FAITH CLAIMANT STATUS. (a) An applicant
13-41 or interested person who wishes to assert status as a good-faith
13-42 claimant may file notice of claim of good-faith status at any time
13-43 before the 20th day preceding the date on which the first hearing
13-44 begins. The notice of claim of good-faith status shall state the
13-45 grounds for the claim and describe the land claimed to be affected
13-46 by the good-faith status. The notice shall be filed in the land
13-47 office and served on all interested persons by certified mail,
13-48 return receipt requested.]
13-49 [(b) Filing notice of claim of good-faith status is not an
13-50 admission by the person asserting the claim that a vacancy exists.]
13-51 [Sec. 51.192. ORDER WITHOUT NOTICE AND HEARING. (a) An
13-52 applicant who asserts status as a good-faith claimant may present
13-53 evidence to the commissioner that:]
13-54 [(1) the good-faith claimant owns all of the land and
13-55 interests in land completely surrounding the land claimed to be
13-56 vacant;]
13-57 [(2) there is no subsisting prior application covering
13-58 the land described in the good-faith claimant's application;]
13-59 [(3) no previous application has been made covering
13-60 the land described in the good-faith claimant's application; and]
13-61 [(4) the good-faith claimant meets all other
13-62 requirements of a good-faith claimant.]
13-63 [(b) If the commissioner finds that the evidence presented
13-64 is accurate, further notice to other persons is not required and,
13-65 on acceptance for filing by the commissioner of a survey made by a
13-66 licensed state land surveyor or the county surveyor of the county
13-67 in which the land claimed to be vacant or a part of that land is
13-68 located, the commissioner may enter an order declaring the
13-69 existence of the vacancy and determining the good-faith status of
14-1 the applicant.]
14-2 [(c) For purposes of this section, land claimed to be vacant
14-3 and surrounded by lands owned only by the good-faith claimant and
14-4 the state is considered to be surrounded completely by land owned
14-5 by the good-faith claimant.]
14-6 [(d) Two or more persons may jointly apply as good-faith
14-7 claimants under this section if together they meet the requirements
14-8 of Subsection (a) of this section.]
14-9 [(e) A person who would have been an interested person under
14-10 an application made under this subchapter by a person other than a
14-11 good-faith claimant may move to set aside an order entered under
14-12 this section by filing a written motion with the commissioner not
14-13 later than the second anniversary of the date of that order. The
14-14 person shall serve a true copy of the motion by certified mail,
14-15 return receipt requested, on the applicant and all persons holding
14-16 or claiming under the applicant.]
14-17 [(f) The commissioner shall set aside an order issued under
14-18 this section finding that a vacancy exists if, after notice and
14-19 hearing, the commissioner finds that the person asserting rights
14-20 under this section, at the time the order declaring the vacancy was
14-21 entered, did not:]
14-22 [(1) qualify as a good-faith claimant under this
14-23 subchapter;]
14-24 [(2) own all of the land and interests in land
14-25 surrounding the land claimed to be vacant; or]
14-26 [(3) meet another material requirement of this
14-27 section.]
14-28 [(g) The commissioner on the commissioner's own motion may
14-29 set aside an order after notice and hearing as required by
14-30 Subsections (e) and (f) of this section.]
14-31 [(h) If the order is set aside, the commissioner shall
14-32 reopen the proceeding on the application and conduct the reopened
14-33 proceeding in the same manner as proceedings on other applications.]
14-34 [(i) The issues in a reopened proceeding are limited to the
14-35 status of the applicant as a good-faith claimant entitled to rights
14-36 under this section and the rights of any other person as an
14-37 applicant or good-faith claimant.]
14-38 [(j) An application of a good-faith claimant who does not
14-39 own all of the land and interests in land completely surrounding
14-40 the land claimed to be vacant is treated as an application under
14-41 other sections of this subchapter.]
14-42 [Sec. 51.193. SALE OR LEASE OF VACANCY. (a) When a
14-43 vacancy has been established by final order, the school land board
14-44 may sell or lease the vacancy as provided by this subchapter.]
14-45 [(b) The board shall set the sale price and other terms and
14-46 conditions as in all other sales of other lands dedicated to the
14-47 permanent school fund. The sale price may not be less than the
14-48 fair market value as determined by an appraisal conducted by the
14-49 land office.]
14-50 [(c) The fee prescribed in Section 32.110(a) of this code
14-51 applies to all sales and leases made under this subchapter.]
14-52 [(d) The board may allow a credit against the sale price in
14-53 an amount not to exceed the actual cost of the survey paid by an
14-54 applicant or good-faith claimant if:]
14-55 [(1) the purchaser is a person exercising a
14-56 preferential right to purchase under this subchapter;]
14-57 [(2) the board has reserved all mineral and geothermal
14-58 leasing rights; and]
14-59 [(3) the board finds that the fair market value of the
14-60 mineral estate is equal to or exceeds 50 percent of the amount of
14-61 the credit.]
14-62 [Sec. 51.194. MARKET VALUE; MEDIATION; BINDING ARBITRATION.
14-63 (a) A person seeking to purchase a vacancy by exercising a right
14-64 of preferential purchase under this subchapter, by filing a written
14-65 request with the commissioner, may have the issue of market value
14-66 submitted to mediation before a trained mediator acceptable to both
14-67 the board and the person seeking to purchase the vacancy if:]
14-68 [(1) the price set by the board under Section 51.193
14-69 of this code exceeds by 15 percent or more the market value
15-1 estimated in an appraisal made by a real estate appraiser certified
15-2 in Texas for the person seeking to purchase the vacancy; and]
15-3 [(2) the appraisal was made not more than six months
15-4 before the date on which the board set the price.]
15-5 [(b) If agreement on price is not reached through mediation
15-6 on or before the 60th day after the first mediation session, the
15-7 person seeking to purchase the vacancy, by filing a written request
15-8 with the commissioner, may have the issue of market value submitted
15-9 to binding arbitration.]
15-10 [(c) A panel of three real estate appraisers certified in
15-11 Texas shall conduct the arbitration. The person seeking to
15-12 purchase the vacancy shall name one member of the panel, the board
15-13 shall name one member of the panel, and the two panel members shall
15-14 name the third member of the panel, who is the panel's presiding
15-15 officer. The board or the person seeking to purchase the vacancy
15-16 may object to and have disqualified the first person named to the
15-17 panel by the other party. Appraisers employed by or who contract
15-18 with the land office are eligible to serve on the arbitration
15-19 panel.]
15-20 [(d) The arbitration shall be conducted under the rules of
15-21 the American Arbitration Association or under other rules agreed on
15-22 by the parties.]
15-23 [(e) The decision of the arbitration panel is not subject to
15-24 judicial review.]
15-25 [(f) The costs of mediation and arbitration shall be shared
15-26 equally by the land office and the person seeking to purchase the
15-27 vacancy.]
15-28 [Sec. 51.195. CONDITIONS OF SALE; MINERAL AWARDS. (a) In
15-29 all sales, the board shall reserve to the permanent school fund all
15-30 oil, gas, sulphur, and other minerals and geothermal resources and
15-31 shall determine the manner in which those minerals and geothermal
15-32 resources are to be leased.]
15-33 [(b) Before the sale of a vacancy, the land office shall
15-34 prepare and present to the board a study of the mineral prospects
15-35 and value of the vacancy, taking into consideration the size and
15-36 configuration of the vacancy, its location with respect to other
15-37 surrounding and nearby tracts, the proximity of mineral production,
15-38 and the likelihood of future mineral leasing and development. The
15-39 study shall include a recommendation as to the method most
15-40 advantageous to the state by which the vacancy could be leased.]
15-41 [(c) The board shall review the study and land office
15-42 recommendations and shall determine whether:]
15-43 [(1) the state shall retain all leasing rights and the
15-44 vacancy shall be leased as provided in Subchapter B, Chapter 52,
15-45 and Subchapters B and E, Chapter 53, of this code; or]
15-46 [(2) the owner of the soil shall be designated to
15-47 execute leases as the agent of the state subject to the rights,
15-48 obligations, and liabilities of Subchapter F, Chapter 52, and
15-49 Subchapter C, Chapter 53, of this code.]
15-50 [(d) If the board determines that the owner of the soil
15-51 shall act as agent under Subsection (c)(2) of this section, the
15-52 board shall establish the division of bonus, rental, and royalty
15-53 between the permanent school fund and the owner of the soil. The
15-54 portion to be paid to the owner of the soil may not be less than 20
15-55 percent or more than 50 percent. The board may establish different
15-56 portions to be paid to the owner of the soil for the lease of
15-57 different substances.]
15-58 [(e) If the board provides for lease by the owner of the
15-59 soil under Subsection (c)(2) of this section, the original
15-60 purchaser is a good-faith claimant, and the vacancy was established
15-61 under an application made by a person other than a good-faith
15-62 claimant, the board shall award the applicant a perpetual
15-63 nonparticipating royalty of not less than 1/32 or more than 1/16 of
15-64 the value of all oil, gas, and sulphur produced and a perpetual
15-65 nonparticipating royalty of not less than one percent or more than
15-66 two percent of the value of all geothermal resources and all other
15-67 minerals produced.]
15-68 [(f) If the board determines that the state shall retain all
15-69 leasing rights as provided in Subsection (c)(1) of this section,
16-1 the board shall award:]
16-2 [(1) to an applicant other than a good-faith claimant,
16-3 a perpetual nonparticipating royalty of 1/32 of the value of oil
16-4 and gas and sulphur and one percent of the value of all geothermal
16-5 resources and all other minerals produced; and]
16-6 [(2) to a good-faith claimant purchasing the vacancy,
16-7 a nonparticipating royalty of 1/32 of the value of oil and gas and
16-8 sulphur and one percent of the value of all geothermal resources
16-9 and all other minerals produced.]
16-10 [(g) If a preferential right to obtain the first mineral
16-11 lease on a vacancy is exercised by any person, the state's royalty
16-12 under the lease shall be reduced by 25 percent for a period of five
16-13 years after the date of first production under the first lease if
16-14 sales of production from or attributable to the lease are commenced
16-15 during the primary term of the lease.]
16-16 [Sec. 51.196. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT.
16-17 (a) A good-faith claimant has a preferential right to purchase or
16-18 lease the portion of a vacancy subject to the good-faith claim.]
16-19 [(b) A good-faith claimant may exercise the preferential
16-20 right by filing a notice of intent to purchase or lease, on a form
16-21 prescribed by the board, not later than the 90th day after the date
16-22 the order establishing the vacancy becomes final. The good-faith
16-23 claimant shall describe in the notice the portion of the vacancy
16-24 the good-faith claimant seeks to purchase or lease. The good-faith
16-25 claimant shall mail a copy of the notice to the applicant and to
16-26 all other interested persons who have asserted status as good-faith
16-27 claimants.]
16-28 [(c) All preferential rights held by a good-faith claimant
16-29 expire if the good-faith claimant does not file the notice of
16-30 intent within the time prescribed by Subsection (b) of this section
16-31 or does not complete the purchase or lease within 60 days after the
16-32 board sets the terms of the purchase or lease. For good cause
16-33 shown, the board may extend the time to complete the purchase or
16-34 lease by a period not to exceed 90 days.]
16-35 [(d) A good-faith claimant exercising a preferential right
16-36 shall repay to the applicant the applicant's reasonable expenses
16-37 incurred in determining the existence of a vacancy, excluding
16-38 filing and attorney fees, not later than the date on which the sale
16-39 or purchase by the good-faith claimant is completed. Failure to
16-40 pay the expenses cancels the preferential right of the good-faith
16-41 claimant.]
16-42 [Sec. 51.197. PREFERENTIAL RIGHT OF APPLICANT OTHER THAN
16-43 GOOD-FAITH CLAIMANT. (a) On the expiration of the preferential
16-44 right of a good-faith claimant to purchase or lease or if there is
16-45 no good-faith claimant, an applicant who is not a good-faith
16-46 claimant has a preferential right to purchase or lease all or any
16-47 portion of the vacancy.]
16-48 [(b) An applicant may exercise the preferential right by
16-49 filing a notice of intent to purchase or lease, on a form
16-50 prescribed by the board, not later than the 90th day after the date
16-51 on which the rights of the good-faith claimant expire. The
16-52 applicant shall describe in the notice the portion of the vacancy
16-53 the applicant seeks to purchase or lease. The applicant shall mail
16-54 a copy of the notice to all other interested persons asserting
16-55 status as good-faith claimants.]
16-56 [(c) All preferential rights held by an applicant expire if
16-57 the applicant does not file the notice of intent within the time
16-58 prescribed by Subsection (b) of this section or does not complete
16-59 the purchase or lease within 60 days after the date on which the
16-60 board sets the terms of the purchase or lease. For good cause
16-61 shown, the board may extend the time to complete the purchase or
16-62 lease by a period not to exceed 90 days.]
16-63 [Sec. 51.198. RIGHTS ASSIGNABLE. An applicant or good-faith
16-64 claimant may assign all rights in a vacancy or land claimed to be
16-65 vacant. The assignment must be in writing. The assignor shall
16-66 record the assignment in the real property records of the county or
16-67 counties in which the vacancy or land claimed to be vacant is
16-68 located and file a certified copy of the recorded assignment in the
16-69 land office.]
17-1 [Sec. 51.199. LEASE TERMS UNDER PREFERENTIAL RIGHTS. The
17-2 board shall prescribe terms for preferential purchases or leases
17-3 consistent with this subchapter. The board may not grant a
17-4 preferential lease with a royalty of less than 1/8 of the value of
17-5 all oil, gas, and sulphur produced or less than five percent of the
17-6 value of all geothermal resources and all other minerals produced.]
17-7 [Sec. 51.200. EFFECT OF PRIOR CONVEYANCES. (a) A mineral
17-8 lease, surface lease, deed, or any other conveyance of any interest
17-9 in land executed by a good-faith claimant before the date of
17-10 completion of a sale or lease under this subchapter does not give
17-11 the grantee under that conveyance any interest in or to the vacancy
17-12 or its minerals.]
17-13 [(b) A title to land or an interest in land acquired from
17-14 the state under a preferential right does not pass as
17-15 after-acquired title under a covenant of general warranty,
17-16 description, or other provision contained in a conveyance executed
17-17 before the date of completion of a sale or lease under this
17-18 subchapter.]
17-19 [Sec. 51.201. RULEMAKING AUTHORITY. (a) The commissioner
17-20 may adopt rules consistent with this subchapter relating to
17-21 applications to purchase or lease vacancies and the determination
17-22 of the existence of vacancies.]
17-23 [(b) The board may adopt rules consistent with this
17-24 subchapter relating to the sale and lease of vacancies.]
17-25 [Sec. 51.202. CONFLICT WITH OTHER CODE PROVISIONS. To the
17-26 extent that any provision of this subchapter pertaining to
17-27 vacancies or the sale or lease of vacancies conflicts with any
17-28 other provision of this code, this subchapter controls.]
17-29 SECTION 2. This Act takes effect immediately if it receives
17-30 a vote of two-thirds of all the members elected to each house, as
17-31 provided by Section 39, Article III, Texas Constitution. If this
17-32 Act does not receive the vote necessary for immediate effect, this
17-33 Act takes effect September 1, 2001.
17-34 * * * * *