By:  Corte                                                        H.B. No. 12 





A BILL TO BE ENTITLED
AN ACT
relating to limiting the use of eminent domain to take private property for private parties or economic development purposes and to certain eminent domain procedures. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle E, Title 10, Government Code, is amended by adding Chapter 2206 to read as follows:
CHAPTER 2206. LIMITATION ON USE OF EMINENT DOMAIN FOR PRIVATE PARTIES OR ECONOMIC DEVELOPMENT PURPOSES
Sec. 2206.001. LIMITATION ON EMINENT DOMAIN FOR PRIVATE PARTIES OR ECONOMIC DEVELOPMENT PURPOSES. (a) This section applies to the use of eminent domain under the laws of this state, including a local or special law, by any governmental or private entity, including: (1) a state agency, including an institution of higher education as defined by Section 61.003, Education Code; (2) a political subdivision of this state; or (3) a corporation created by a governmental entity to act on behalf of the entity. (b) A governmental or private entity may not take private property through the use of eminent domain if the taking is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society from slum or blighted areas under: (1) Chapter 374, Local Government Code, or (2) Section 311.005(a)(1)(I), Tax Code. (c) This section does not affect the authority of an entity authorized by law to take private property through the use of eminent domain for: (1) transportation projects, including railroads acting as common carriers, ports, airports, or public roads or highways; (2) water supply, wastewater, flood control, and drainage projects; (3) the operations of a common carrier subject to the provision of Chapter 111 of the Natural Resources Code and Art. 2.01 B(3)(b) of the Business Corporations Act, underground storage operations subject to the provisions of Chapter 91 of the Natural Resources Code, entities having the power or eminent domain under Chapter 181 of the Utilities Code or regulated energy transporter as defined in Sec. 186.051 of the Utilities Code; (4) the provision of utility services; (5) a sports stadium project approved by voters at an election held on or before December 1, 2005, under Chapter 334 or 335, Local Government Code; (6) the operation and industrial development of ports and waterways, including the following entities authorized under Section 59, Article XVI, Texas Constitution; (A) port authorities; and (B) navigation districts and conservation and reclamation districts that act as ports; or (7) waste disposal projects. (d) This section does not affect the authority of a governmental entity to condemn leasehold estates on property owned by the governmental entity. (e) The question of whether a taking of private property through the use of eminent domain violates Subsection (b) is a question of fact. The determination by the governmental or private entity proposing to take the property that the taking does not involve an act or circumstances prohibited by Subsection (b) does not create a presumption with respect to whether the taking involves that act or circumstance. Sec. 2206.002. AMOUNT OF DAMAGES FOR TAKING OF PROPERTY. (a) If property is taken under the power of eminent domain and if the purpose of the taking is economic development, the owner of the property is entitled to compensation in an amount equal to the greater of: (1) the actual damages resulting resulting from the taking of the property; or (2) the value necessary to replace the property with other comparable property. SECTION 2. Subchapter A, Chapter 552, Government Code, is amended by adding Section 552.0037 to read as follows: Sec. 552.0037. CERTAIN ENTITIES AUTHORIZED TO TAKE PROPERTY THROUGH EMINENT DOMAIN. Not withstanding any other law, information collected, assembled, or maintained by an entity that is not a governmental body but is authorized by law to take private property through the use of eminent domain is subject to this chapter in the same manner as information collected, assembled, or maintained by a governmental body, but only if the information is related to the taking of private property by the entity through the use of eminent domain. SECTION 3. Section 65.33, Education Code, is amended by adding Subsection (a-1) to read as follows: (a-1) Notwithstanding Subsection (a), the board may not use the power of eminent domain to acquire land to be used for a lodging facility or for parking or a parking structure intended to be used in connection with the use of the lodging facility if the land has been used for the same commercial purpose for at least 20 years. In this subsection, the term "lodging facility" does not include a dormitory or other student housing facility. SECTION 4. Section 203.052, Transportation Code, as amended by H.B. No. 2702, Acts of the 79th Legislature, Regular Session, 2005, is amended by amending Subsection (b) and adding Subsection (c) to read as follows: (b) Property necessary or convenient to a state highway for purposes of Subsection (a) includes an interest in real property, a property right, or a material that the commission determines is necessary or convenient to: (1) protect a state highway; (2) drain a state highway; (3) divert a stream, river, or other watercourse from the right-of-way of a state highway; (4) store materials or equipment for use or used in the construction or maintenance of a state highway; (5) construct or operate a warehouse or other facility used in connection with construction, maintenance, or operation of a state highway; (6) lay out, construct, or maintain a roadside park; (7) lay out, construct, or maintain a parking lot that will contribute to maximum use of a state highway with the least possible congestion; (8) mitigate an adverse environmental effect that directly results from construction or maintenance of a state highway; (9) subject to Subsection (c), provide a location for an ancillary facility that is anticipated to generate revenue for use in the design, development, financing, construction, station, garage, store, hotel, restaurant, or other commercial facility; (10) construct or operate a toll booth, toll plaza, service center, or other facility used in connection with the construction, maintenance, or operation of a toll project; or (11) accomplish any other purpose related to the location, construction, improvement, maintenance, beautification, preservation, or operation of a state highway. (c) The commission may not acquire property for an ancillary facility through the exercise of eminent domain, unless the acquisition of the property is for one of multiple ancillary facilities included in a comprehensive development plan approved by the county commissioners court of each county in which the property is located. SECTION 5. Section 227.041(b), Transportation Code, as amended by H.B. No. 2702, Acts of the 79th Legislature, Regular Session, 2005, is amended to read as follows: (b) An interest in real property or a property right is necessary or convenient for the construction or operation of a facility if it is located in or contiguous to an existing or planned segment of the Trans-Texas Corridor or is needed for mitigation of adverse environmental effects, and if its acquisition will further the primary purposes of the Trans-Texas Corridor. Primary purposes include: (1) providing right-of-way or a location for a facility; (2) providing land for mitigation of adverse environmental effects; (3) providing buffer zones for scenic or safety purposes; (4) allowing for possible future expansion of any facility; and (5) subject to Section 203.052(c), providing a location for a gas station, convenience store, or similar ancillary facility. SECTION 6. Section 227.041(e), Transportation Code, as added by H.B. No. 2702, Acts of the 79th Legislature, Regular Session, 2005, is repealed. SECTION 7. (a) An interim committee is created to study the use of the power of eminent domain. (b) The interim committee consists of: (1) five members of the senate appointed by the lieutenant governor; (2) five members of the house of representatives appointed by the speaker of the house of representatives; and (3) five members appointed by the governor. (c) The speaker of the house of representatives shall designate one member of the house of representatives appointed to the committee to act as co-chair. The lieutenant governor shall designate one senator appointed to the interim committee to act as co-chair. (d) The interim committee shall: (1) study the use of the power of eminent domain, including the use of the power of eminent domain for economic development purposes; and (2) prepare a report of the committee's study for the 80th Legislature. (e) The report required by Subsection (d)(2) of this section must be filed with the lieutenant governor and speaker of the house of representatives not later than November 1, 2006. SECTION 8. Chapter 2206, Government Code, as added by this Act, applies to the taking of private property by eminent domain pending on the effective date of this Act. For purposes of this section, a taking is pending if a condemnation petition is filed under Section 21.012, Property Code, and a judgment awarding possession of the property to the condemning entity has not become final. 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 November 1, 2005.