By: Jones of Bexar, McReynolds H.B. No. 2006
(Senate Sponsor - Fraser)
(In the Senate - Received from the House May 6, 2003;
May 8, 2003, read first time and referred to Committee on
Infrastructure Development and Security; May 24, 2003, reported
adversely, with favorable Committee Substitute by the following
vote: Yeas 5, Nays 0; May 24, 2003, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2006 By: Shapleigh
A BILL TO BE ENTITLED
AN ACT
relating to the construction and maintenance of utility, common
carrier, cable operator, 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 maintenance,
operation, and upgrade of preexisting utility, common carrier,
cable operator, and energy transporter facilities along, over,
under, or across a railroad right-of-way consistent with
preexisting licenses or agreements;
(2) grant utilities, common carriers, cable
operators, and energy transporters certain rights, privileges, and
responsibilities and provide a uniform process for those entities
to obtain easements or other rights to maintain, operate, and
upgrade their preexisting facilities in railroad rights-of-way in
this state consistent with preexisting licenses or agreements; and
(3) facilitate the transition from contractual rights
under agreements by granting energy transporters limited eminent
domain authority to obtain easements for preexisting facilities
along, over, under, 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) "Cable operator" means an entity that owns or
operates a cable system, as that term is defined by 47 U.S.C.
Section 522, as amended.
(2) "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.
(3) "Energy transporter" means a person who gathers or
transports oil, gas, or oil and gas products by pipeline.
(4) "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
owned by a private entity but excludes a terminal railroad and a
railroad or interurban and street railroad owned by a governmental
entity, including a navigation district or port authority, or a
wharf.
(5) "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.
(6) "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 or cable operator in this subchapter does not subject
the transporter or operator 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. APPLICABILITY. (a) Except as provided by
Section 186.058, this subchapter applies only to facilities along,
over, under, or across a railroad or railroad right-of-way in place
under a license, agreement, or nonperpetual easement.
(b) In relation to cable operators, this subchapter applies
only to those lines over which the cable operator is offering or
transporting high-speed Internet or broadband information
services.
Sec. 186.054. CONSTRUCTION AND MAINTENANCE OF UTILITY,
COMMON CARRIER, CABLE OPERATOR, AND ENERGY TRANSPORTER FACILITIES.
(a) A utility, common carrier, cable operator, or energy
transporter may acquire an easement by eminent domain along, over,
under, or across a railroad or railroad right-of-way as provided by
this subchapter to maintain, operate, or upgrade its facilities
consistent with preexisting licenses or agreements.
(b) A utility, common carrier, cable operator, or energy
transporter:
(1) shall provide notice to the railroad within a
reasonable period of any proposed activity relating to the
construction, maintenance, or operation of the facilities; and
(2) may not unreasonably interfere with railroad
operations.
(c) Absent terms to the contrary in an easement acquired by
condemnation under this subchapter, existing license, or
agreement, a railroad may require a utility, common carrier, cable
operator, or energy transporter to relocate any portion of a
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, cable operator, or energy transporter for the reasonable
cost of relocation.
Sec. 186.055. DOCUMENTATION OF RIGHTS ACQUIRED. If a
railroad requires a utility, common carrier, cable operator, or
energy transporter to obtain from the railroad a right to use a
railroad right-of-way, the railroad shall produce, if requested in
writing, the readily available 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, cable operator, or energy transporter. The utility,
common carrier, cable operator, or energy transporter shall
reimburse the railroad for the reasonable cost of producing the
documentation as required by this section. The reimbursable cost,
including internal costs, may not exceed $500, unless the parties
agree otherwise. A railroad that produces documentation as
provided by this section is not limited or prevented from asserting
a right, title, or interest in real property based on documentation
that has not been produced under this section.
Sec. 186.056. VALUATION OF RIGHTS ACQUIRED. (a) In the
absence of an agreement to convey a permanent easement for the
continued right to use a preexisting facility located in a railroad
right-of-way, a utility, common carrier, cable operator, or energy
transporter may obtain the right to continuously use the
right-of-way through the exercise of eminent domain under Chapter
21, Property Code.
(b) The award of damages due the railroad under an eminent
domain proceeding as provided by Subsection (a) is:
(1) the market value of the real property interest to
be used; and
(2) if a portion of the railroad's right-of-way is
taken, damages, if any, to the railroad's remaining property.
(c) The railroad may also recover:
(1) reasonable costs and expenses for interference
with railroad operations, including internal costs for providing
flagging services; and
(2) reasonable costs and expenses to repair any damage
to its facilities caused by the maintenance, operation, or upgrade
of the preexisting utility, common carrier, cable operator, or
energy transporter facilities.
(d) The payment by the utility, common carrier, cable
operator, or energy transporter determined under this section is
the only compensation due to the railroad for the perpetual use of
the interest obtained.
Sec. 186.057. RIGHT TO MAINTAIN FACILITIES. (a) A utility,
common carrier, cable operator, or energy transporter may not be
required to remove an existing facility for 180 days after the date
the utility, common carrier, cable operator, or energy transporter
receives a written notice from the railroad that an existing
facility must be removed from the railroad's right-of-way if:
(1) the facility was located along, under, over, or
across the railroad right-of-way with the written consent of the
railroad; and
(2) the utility, common carrier, cable operator, or
energy transporter is not in default under an agreement with the
railroad.
(b) If a utility, common carrier, cable operator, or energy
transporter requests documentation under Section 186.055, the
180-day period provided by Subsection (a) is tolled until the
utility, common carrier, cable operator, or energy transporter
receives a written response to its request from the railroad.
(c) If a utility, common carrier, cable operator, or energy
transporter does not condemn or enter into an agreement regarding
the disputed area involving the railroad's right-of-way within the
180-day period provided by Subsection (a) or any extended period
provided by Subsection (b), the license or agreement between the
utility, common carrier, cable operator, or energy transporter and
the railroad is terminated.
(d) The possessory right provided by this section is in
addition to any possessory right provided by Chapter 21, Property
Code.
Sec. 186.058. LICENSE AND RENEWAL. (a) A utility, common
carrier, cable operator, 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, cable operator, 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.
(c) The terms of the license or license renewal may provide
that the railroad is not later subject to this subchapter, except
the railroad continues to be subject to eminent domain authority
granted by other law.
Sec. 186.059. RESTRICTIONS ON PAYMENT OF COSTS AWARDED
AGAINST RAILROAD IN CONDEMNATION. If the special commissioners or
a court awards costs against a railroad under Section 21.047,
Property Code, because the award of damages to the railroad is equal
to or less than the amount the utility, common carrier, cable
operator, or energy transporter exercising the right of eminent
domain under this subchapter offered to pay, the costs awarded
against the railroad must be paid by the railroad without
reimbursement by or contribution from any agent or representative,
including an agent or representative that handled or assisted in
the condemnation proceedings.
Sec. 186.060. CUMULATIVE RIGHTS AND RESPONSIBILITIES. The
rights, privileges, and responsibilities provided by this
subchapter are in addition to and not in diminution of or
substitution for those rights granted by any other state or federal
law.
Sec. 186.061. EFFECT ON OTHER LAW. This subchapter does not
affect the elements a condemnor must establish by law to acquire
real property.
SECTION 3. This Act takes effect September 1, 2003.
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