By: Jones of Bexar H.B. No. 2006
Substitute the following for H.B. No. 2006:
By: Keffer of Dallas C.S.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;
and
(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;
(3) declare that energy transporters as defined herein
have a public use because such entities transport essential energy
supplies to the public and should be granted limited eminent domain
authority to obtain easements along, over or across a railroad
right-of-way.
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 pipeline used for
gathering or transporting oil, gas, or oil and gas products.
(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.
(4) "Railroad right-of-way" means the real property
rights owned or controlled by a railroad, including fee and
easement interests.
(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 along, over, under, or across a
railroad or railroad right-of-way pursuant to the provisions of
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 right-of-way;
(3) a utility or common carrier shall provide
reasonable notice to the railroad of any proposed activity relating
to the construction, maintenance, or operation of the facilities,
shall comply with all state and federal safety regulations
applicable to construction along, over, under or across a railroad
right-of-way and shall not unreasonably interfere with railroad
operations.
(b) A railroad may require a utility, common carrier, or
energy transporter to:
(1) provide notice to the railroad within a reasonable
period if any activity relating to the construction, maintenance,
or operation of the facility will substantially interfere with the
operation of the railroad; and
(2) 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:
(A) a reasonable alternate route is available;
(B) a reasonable amount of time is provided;
(C) substantial interference with the railroad
operations is established; and
(D) the railroad reimburses the utility, common
carrier, or energy transporter for the cost of relocation unless
provided otherwise in existing agreement.
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 on 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 or common carrier shall reimburse the
railroad for the reasonable cost of producing such documentation
from the railroad's records, not to exceed $250, including internal
costs. 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 pursuant to Chapter 21 of the Texas Property Code.
(b) The damages due the railroad under Texas Property Code,
or its successor, 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 costs and expenses
including internal costs for providing flagging services, for
interference with railroad operations and 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 provided such facilities were
initially located on the railroad right-of-way with agreement of
the railroad.
Sec. 186.057. LICENSE AND RENEWAL. (a) A utility, common
carrier, or energy transporter may obtain an original license or
subsequent 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. INDEMNITY AGREEMENTS VOID. 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:
(1) claims to indemnify or require the defense of the
railroad or an employee, agent, or independent contractor of the
railroad against any loss, liability, or other damage that results
from the gross negligence of the railroad or an employee, agent, or
independent contractor of the railroad; or
(2) requires the utility, common carrier, or energy
transporter to purchase insurance providing coverage or other
indemnity protection for the railroad or an employee, agent, or
independent contractor of the railroad against any loss, liability,
or other damage that results from the gross negligence of the
railroad or an employee, agent, or independent contractor of the
railroad.
(3) the change in law made by Section 186.059,
Utilities Code, as added by this Act, applies only to an indemnity
agreement entered into on or after the effective date of this Act.
An agreement entered into before the effective date of this Act is
governed by the law in effect on the date the contract was entered
into, and the former law is continued in effect for that purpose.
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. If any provisions of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provision of this Act are declared to be severable.
SECTION 4. (a) This Act takes effect September 1, 2003.