78R4151 SGA-F
By: Hilderbran H.B. No. 1760
A BILL TO BE ENTITLED
AN ACT
relating to the exercise of eminent domain power by a municipality
or supplier of water for a municipality to acquire a municipal water
supply.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 251.001(a), Local Government Code, is
amended to read as follows:
(a) Except as provided by Sections 11.033 and 36.003, Water
Code, when [When] the governing body of a municipality considers it
necessary, the municipality may exercise the right of eminent
domain for a public purpose to acquire public or private property,
whether located inside or outside the municipality, for any of the
following purposes:
(1) the providing, enlarging, or improving of a city
hall; police station; jail or other law enforcement detention
facility; fire station; library; school or other educational
facility; academy; auditorium; hospital; sanatorium; market
house; slaughterhouse; warehouse; elevator; railroad terminal;
airport; ferry; ferry landing; pier; wharf; dock or other
shipping facility; loading or unloading facility; alley, street,
or other roadway; park, playground, or other recreational
facility; square; water works system, including reservoirs, other
water supply sources, watersheds, and water storage, drainage,
treatment, distribution, transmission, and emptying facilities;
sewage system including sewage collection, drainage, treatment,
disposal, and emptying facilities; electric or gas power system;
cemetery; and crematory;
(2) the determining of riparian rights relative to the
municipal water works;
(3) the straightening or improving of the channel of
any stream, branch, or drain;
(4) the straightening, widening, or extending of any
alley, street, or other roadway; and
(5) [for] any other municipal purpose the governing
body considers advisable.
SECTION 2. Section 402.012(c), Local Government Code, is
amended to read as follows:
(c) Except as provided by Sections 11.033 and 36.003, Water
Code, the [The] municipality, acting alone or with one or more other
municipalities to which this section applies, may:
(1) receive or acquire by gift, dedication, purchase,
or condemnation any property in this state, located inside or
outside the municipal boundaries, to build or acquire:
(A) water purification and treatment facilities;
(B) reservoirs; or
(C) pipelines and any type of water
transportation facilities considered necessary to provide the
municipality or municipalities with fresh water for municipal,
domestic, and industrial purposes; and
(2) construct or otherwise acquire any facility
described by Subdivision (1).
SECTION 3. Section 402.013(c), Local Government Code, is
amended to read as follows:
(c) Except as provided by Sections 11.033 and 36.003, Water
Code, to [To] furnish an adequate and wholesome supply of water for
the residents, the municipality may exercise the power of eminent
domain to acquire and condemn public or private property to extend,
improve, or enlarge its water system, including water supply
reservoirs, riparian rights, standpipes, and watersheds, to
construct water supply reservoirs, wells or artesian wells, or
dams, and to construct or establish necessary facilities or
appurtenances.
SECTION 4. Section 402.019(d), Local Government Code, is
amended to read as follows:
(d) Except as provided by Sections 11.033 and 36.003, Water
Code, as [As] is necessary or convenient to supply water under a
contract made under this section, a district may:
(1) construct or otherwise acquire and equip canals,
reservoirs, basins, pipelines, conduits, filtration and aeration
plants, and other equipment and supplies; and
(2) acquire property by purchase, eminent domain, or
other means.
SECTION 5. Section 11.033, Water Code, is amended to read as
follows:
Sec. 11.033. EMINENT DOMAIN. (a) In this section:
(1) "Municipal water supplier" means any legal entity
other than a municipality that:
(A) supplies water to a municipality for
municipal use; and
(B) has the right under other law to exercise the
power of eminent domain.
(2) "Municipality" has the meaning assigned by Section
1.005, Local Government Code.
(b) The right to take water necessary for domestic and
municipal supply purposes is primary and fundamental, and the right
to recover from other uses water which is essential to domestic and
municipal supply purposes is paramount and unquestioned in the
policy of the state. A municipality or municipal water supplier,
however, may exercise the power of eminent domain to acquire a water
supply for municipal use only to the extent that the water supply is
essential for maintaining public health or safety by providing
water for drinking, bathing, sewage disposal, fire protection, or
other basic domestic needs. An acquisition of water by a
municipality or municipal water supplier for other purposes,
including for industry or recreation, may be made only through a
voluntary purchase from a willing seller.
(c) A municipality or municipal water supplier acquiring
water by the exercise of the power of eminent domain has the burden
of proving that it cannot meet essential domestic needs through
conserving its existing supplies or through diverting water from
nonessential use in the municipality to essential domestic use.
(d) Except as provided by Subsection (b), all [All]
political subdivisions of the state and constitutional
governmental agencies exercising delegated legislative powers have
the power of eminent domain to be exercised as provided by law for
domestic, municipal, and manufacturing uses and for other purposes
authorized by this code, including the irrigation of land for all
requirements of agricultural employment.
SECTION 6. Subchapter A, Chapter 36, Water Code, is amended
by adding Section 36.003 to read as follows:
Sec. 36.003. LIMITATION ON EXERCISE OF EMINENT DOMAIN POWER
BY OR FOR MUNICIPALITIES. (a) In this section:
(1) "Municipal water supplier" means any legal entity
other than a municipality that:
(A) supplies water to a municipality for
municipal use; and
(B) has the right under other law to exercise the
power of eminent domain.
(2) "Municipality" has the meaning assigned by Section
1.005, Local Government Code.
(b) A municipality or municipal water supplier may not
exercise the power of eminent domain within the boundaries of a
district for the purpose of acquiring a supply of groundwater for
municipal use except as provided by Subsection (d) and to the extent
that the supply is necessary for maintaining public health or
safety by providing water for drinking, bathing, sewage disposal,
fire protection, or other basic and essential domestic needs.
(c) A municipality or municipal water supplier acquiring
water by the exercise of the power of eminent domain has the burden
of proving that it cannot meet essential domestic needs through
conserving its existing supplies or through diverting water from
nonessential use in the municipality to essential domestic use.
(d) A municipality or municipal water supplier may not
exercise the power of eminent domain to condemn land within the
boundaries of a district for the purpose of acquiring groundwater
supplies. The power of eminent domain is limited to condemnation of
the right to:
(1) capture a quantified number of acre-feet of water
annually; and
(2) acquire only as much land as is necessary for well
sites, pipelines, and other water conveyance infrastructure.
(e) The amount of water condemned under Subsection (d) may
not exceed the production limits set by district rules.
(f) A landowner whose groundwater is acquired under
Subsection (d) is entitled, at the landowner's option, to an annual
payment for the production that is condemned instead of a lump-sum
compensation.
(g) If a municipality or municipal water supplier that
obtains a production permit from a district for groundwater rights
acquired under Subsection (d) does not produce groundwater under
the permit before the 10th anniversary of the date of issuance of
the permit:
(1) the right of capture acquired under Subsection (d)
reverts to the landowner;
(2) any land acquired under Subsection (d) reverts to
the landowner; and
(3) any annual payments being made under Subsection
(f) cease.
(h) If the amount of groundwater produced from an
acquisition under Subsection (d) keeps the affected landowner from
having a sufficient supply of water to meet the landowner's
domestic and livestock needs, the municipality or municipal water
supplier shall furnish the landowner with water to meet those
needs.
SECTION 7. Section 67.011, Water Code, is amended to read as
follows:
Sec. 67.011. POWERS OF CORPORATION IN CERTAIN COUNTIES. In
a county with a population of less than 3.3 million, a corporation
may:
(1) except as provided by Sections 11.033 and 36.003,
own, hold, lease, or otherwise acquire water wells, springs, or
other sources of water supply;
(2) build, operate, and maintain pipelines to
transport water or wastewater;
(3) build and operate plants and equipment necessary
to distribute water or to treat and dispose of wastewater; and
(4) sell water or provide wastewater services to a
political subdivision, a private corporation, or an individual.
SECTION 8. The change in law made by this Act applies only
to a petition to initiate condemnation proceedings to acquire a
municipal water supply filed by a municipality or municipal water
supplier, as defined by Sections 11.033(a) and 36.003(a), Water
Code, as added by this Act, on or after the effective date of this
Act.
SECTION 9. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2003.