By: Jones of Bexar, McReynolds H.B. No. 2006
A BILL TO BE ENTITLED
AN ACT
relating to the construction and maintenance of utility, common
carrier, and energy transporter facilities along, over, under, or
across a railroad right-of-way.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The purpose of this Act is to:
(1) create uniform laws relating to the construction
and maintenance of utility, common carrier, and energy transporter
facilities along, over, under, or across a railroad right-of-way;
(2) grant utilities, common carriers, and energy
transporters certain rights, privileges, and responsibilities and
provide a uniform process for those entities to obtain easements or
other rights to construct and maintain their facilities in railroad
rights-of-way in this state; and
(3) grant energy transporters limited eminent domain
authority to obtain easements under, over, or across a railroad
right-of-way because transporters provide essential energy
supplies to the public.
SECTION 2. Chapter 186, Utilities Code, is amended by
adding Subchapter E to read as follows:
SUBCHAPTER E. CONSTRUCTION AND MAINTENANCE OF FACILITIES
ALONG, OVER, UNDER, OR ACROSS RAILROAD RIGHT-OF-WAY
Sec. 186.051. DEFINITIONS. In this subchapter:
(1) "Common carrier" means a common carrier as
described by Section 111.002, Natural Resources Code, or a person
who submits to regulation by the state as a common carrier under
Article 2.01, Texas Business Corporation Act.
(2) "Energy transporter" means a person who gathers or
transports oil, gas, or oil and gas products by pipeline.
(3) "Railroad" means an entity that owns, operates, or
controls a railroad or property or assets owned or previously owned
by a railroad in this state, including agents, assignees, or
parties that by contract own, control, or manage railroad
rights-of-way, easements, or other real property rights belonging
to a railroad. The term includes interurban and street railroads
and excludes a terminal railroad and a railroad related to a
navigation district, port authority, or wharf.
(4) "Railroad right-of-way" means the real property
rights owned or controlled by a railroad, including fee and
easement interests used or previously used as a railroad operating
corridor.
(5) "Utility" means:
(A) a gas, water, electric, or
telecommunications entity that is defined as a utility under the
laws of this state;
(B) an electric cooperative; or
(C) a municipally owned utility.
Sec. 186.052. EXEMPTIONS. (a) The inclusion of an energy
transporter in this subchapter does not subject the transporter to
regulation as a utility or common carrier.
(b) The inclusion of a common carrier in this subchapter
does not subject the carrier to regulation as a utility.
Sec. 186.053. CONSTRUCTION AND MAINTENANCE OF UTILITY,
COMMON CARRIER, AND ENERGY TRANSPORTER FACILITIES. (a) A utility,
common carrier, or energy transporter has the right to construct
and maintain its facilities over, under, or across a railroad or
railroad right-of-way as provided by this subchapter if the
facilities:
(1) as they pass over, under, or across a railroad or
railroad right-of-way are not parallel to the railroad or railroad
right-of-way; or
(2) before they pass along a railroad or railroad
right-of-way are parallel to the railroad or railroad right-of-way
for a distance of not more than 500 feet within any one-mile segment
of the railroad or railroad right-of-way.
(b) A utility, common carrier, or energy transporter:
(1) shall:
(A) provide notice to the railroad within a
reasonable period of any proposed activity relating to the
construction, maintenance, or operation of the facilities; and
(B) comply with state and federal safety
regulations applicable to construction over, under, or across a
railroad or railroad right-of-way; and
(2) may not unreasonably interfere with railroad
operations.
(c) A railroad may require a utility, common carrier, or
energy transporter to relocate any portion of the facility that is
located in the railroad right-of-way that is not in the public
right-of-way if:
(1) a reasonable alternate route is available;
(2) a reasonable amount of time is provided;
(3) substantial interference with the railroad
operations is established; and
(4) the railroad reimburses the utility, common
carrier, or energy transporter for the cost of relocation.
Sec. 186.054. DOCUMENTATION OF RIGHTS ACQUIRED. If a
railroad requires a utility, common carrier, or energy transporter
to obtain from the railroad a right to use a railroad right-of-way,
the railroad shall produce, if requested, the documentation from
the railroad's records indicating the extent of the railroad's
right, title, or interest in the property sought to be used by the
utility, common carrier, or energy transporter. The utility,
common carrier, or energy transporter shall reimburse the railroad
for the reasonable cost of producing the documentation as required
by this section. The cost, including internal costs, may not exceed
$250. If the railroad has no demonstrable real property interest in
the property sought to be used or no right to grant an easement
along, over, under, or across the railroad right-of-way, the
utility, common carrier, or energy transporter does not owe the
railroad compensation for the use of the property.
Sec. 186.055. VALUATION OF RIGHTS ACQUIRED. (a) In the
absence of an agreement for the right to use a railroad
right-of-way, a utility, common carrier, or energy transporter may
obtain the right to use the right-of-way through the exercise of
eminent domain under the procedures provided by Chapter 21,
Property Code.
(b) The award of damages due the railroad under an eminent
domain proceeding as provided by Subsection (a) is the market value
of the real property interest to be used. Market value is
determined by measuring the value of the property interest
immediately before and immediately after the taking.
(c) The property interest may not be valued at more than the
valuation of the real property adjacent to the right-of-way.
(d) The railroad may also recover:
(1) costs and expenses for interference with railroad
operations, including internal costs for providing flagging
services; and
(2) the cost to repair any damage to its facilities
caused by the construction or maintenance of the utility, common
carrier, or energy transporter facilities.
(e) The payment by the utility, common carrier, or energy
transporter determined under this section is the only compensation
due to the railroad for the perpetual use of the interest obtained.
Sec. 186.056. RIGHT TO MAINTAIN FACILITIES. During the
pendency of the condemnation proceedings or good faith negotiations
for the purchase of the right to use a railroad right-of-way, the
utility, common carrier, or energy transporter may not be required
to remove any existing facilities if the facilities were located on
the railroad right-of-way under the consent of the railroad.
Sec. 186.057. LICENSE AND RENEWAL. (a) A utility, common
carrier, or energy transporter may obtain an original license or
renew a license for the right to use a railroad right-of-way for a
one-time fee paid based on:
(1) the agreement of the railroad and the utility,
common carrier, or energy transporter; or
(2) a mutually acceptable third-party determination
of market value.
(b) A fee paid under this section is the only fee payment
required. The license remains in effect without the requirement of
additional fee payments for renewal of the license.
Sec. 186.058. PROHIBITED ACTS. A railroad may not:
(1) interfere with the right of a utility to cross a
railroad right-of-way using a public right-of-way that is not
restricted; or
(2) require a utility to pay a fee to cross a railroad
right-of-way on a public right-of-way.
Sec. 186.059. PROHIBITED PROVISIONS IN AGREEMENTS. An
agreement between a railroad and a utility, common carrier, or
energy transporter relating to the sale, lease, license, or other
use of a railroad right-of-way, including a purchase agreement,
deed, bill of sale, lease, or license, is void to the extent the
agreement requires the utility, common carrier, or energy
transporter to purchase insurance providing coverage for the
railroad or an employee, agent, or independent contractor of the
railroad against any loss, liability, or other damage.
Sec. 186.060. CUMULATIVE RIGHTS AND RESPONSIBILITIES. The
rights, privileges, and responsibilities provided by this
subchapter are in addition to and not in substitution for those
rights granted by any other state or federal law.
SECTION 3. This Act takes effect September 1, 2003.