By: West (Senate Sponsor - Seliger) H.B. No. 951
(In the Senate - Received from the House March 31, 2005;
April 5, 2005, read first time and referred to Committee on Natural
Resources; May 6, 2005, reported favorably, as amended, by the
following vote: Yeas 9, Nays 0; May 6, 2005, sent to printer.)COMMITTEE AMENDMENT NO. 1 Seliger
By:
Amend H.B. No. 951 (house engrossment) as follows:
(1) Insert the following appropriately numbered SECTIONS
and renumber SECTIONS of the bill appropriately:
SECTION __. Subsection (a), Section 117.101, Natural
Resources Code, is amended to read as follows:
(a) Except as otherwise provided by this subchapter, this
[This] chapter may not be construed to reduce, limit, or impair the
authority provided by law to any city.
SECTION __. Subchapter D, Chapter 117, Natural Resources
Code, is amended by adding Section 117.102 to read as follows:
Sec. 117.102. AUTHORITY OF CITY TO ASSESS CHARGES.
(a) Except as otherwise provided by this section, a city may not
assess a charge for the placement, construction, maintenance,
repair, replacement, operation, use, relocation, or removal of a
hazardous liquid or carbon dioxide pipeline facility on, along, or
across a public road, highway, street, alley, stream, canal, or
other public way.
(b) A city may:
(1) assess a reasonable annual charge for the
placement, construction, maintenance, repair, replacement,
operation, use, relocation, or removal by an owner or operator of a
hazardous liquid or carbon dioxide pipeline facility on, along, or
across the public roads, highways, streets, alleys, streams,
canals, or other public ways located within the city and maintained
by the city; and
(2) recover the reasonable cost of repairing damage to
a public road, highway, street, alley, stream, canal, or other
public way located within the city and maintained by the city that
is caused by the placement, construction, maintenance, repair,
replacement, operation, use, relocation, or removal of a hazardous
liquid or carbon dioxide pipeline facility if the owner or operator
of the facility does not repair the damage in accordance with
generally applicable paving standards or other applicable
standards in the city.
(c) A charge authorized by Subsection (b)(1) may not exceed
the cost to the city of administering, supervising, inspecting, and
otherwise regulating the location of the pipeline facility,
including maintaining records and maps of the location of the
pipeline facility.
(d) The owner or operator of a pipeline facility may appeal
the assessment of a charge under Subsection (b)(1) to the
commission. The commission shall hear the appeal de novo. Unless
the city that assessed the charge establishes that the charge is
authorized by this section, the commission shall declare the charge
invalid or reduce the charge to an amount authorized by this
section. The commission has exclusive jurisdiction to determine
whether a charge under Subsection (b)(1) is authorized by this
section. The owner or operator of the pipeline facility and the
city shall share equally the costs incurred by the commission in
connection with the appeal.
(e) A city must file suit to collect a charge authorized by
Subsection (b)(1) not later than the fourth anniversary of the date
the charge becomes due. The running of the limitations period under
this subsection is tolled on the filing of an appeal of the charge
under Subsection (d) and begins running again on the date the appeal
is determined.
(f) This section may not be construed to prevent a city
from:
(1) recovering the reasonable cost of repairing damage
to a city facility, other than a public way, caused by acts of the
owner or operator of a pipeline facility; or
(2) requiring the owner or operator of a pipeline
facility to relocate the pipeline facility, at the owner's or
operator's expense, to permit the construction, maintenance,
modification, or alteration of a city facility.
(g) Notwithstanding Subsection (f)(2), the city shall pay
the cost of relocating a pipeline facility if the pipeline facility
is authorized by a property right that has priority over the city's
right to use the public way for the city facility.
SECTION __. Subsection (b), Section 121.202, Utilities
Code, is amended to read as follows:
(b) Except as provided by Subsection (a) and by Section
121.2025, this subchapter does not reduce, limit, or impair:
(1) a power vested by law in:
(A) a county in relation to a county road; or
(B) a municipality; or
(2) the ability of a municipality to:
(A) adopt an ordinance that establishes
conditions for mapping, inventorying, locating [installing], or
relocating pipelines over, under, along, or across a public street
or alley or private residential area in the boundaries of the
municipality; or
(B) establish conditions for mapping or taking an
inventory in an area in a municipality's extraterritorial
jurisdiction.
SECTION __. Subchapter E, Chapter 121, Utilities Code, is
amended by adding Section 121.2025 to read as follows:
Sec. 121.2025. AUTHORITY OF MUNICIPALITY TO ASSESS CHARGES.
(a) Except as otherwise provided by this section or Section
182.025, Tax Code, a municipality may not assess a charge for the
placement, construction, maintenance, repair, replacement,
operation, use, relocation, or removal of a gas pipeline facility
on, along, or across a public road, highway, street, alley, stream,
canal, or other public way.
(b) A municipality may:
(1) assess a reasonable annual charge for the
placement, construction, maintenance, repair, replacement,
operation, use, relocation, or removal by an owner or operator of a
gas pipeline facility on, along, or across the public roads,
highways, streets, alleys, streams, canals, or other public ways
located within the municipality and maintained by the municipality;
and
(2) recover the reasonable cost of repairing damage to
a public road, highway, street, alley, stream, canal, or other
public way located within the municipality and maintained by the
municipality that is caused by the placement, construction,
maintenance, repair, replacement, operation, use, relocation, or
removal of a gas pipeline facility if the owner or operator of the
facility does not repair the damage in accordance with generally
applicable paving standards or other applicable standards in the
municipality.
(c) A charge authorized by Subsection (b)(1) may not exceed
the cost to the municipality of administering, supervising,
inspecting, and otherwise regulating the location of the gas
pipeline facility, including maintaining records and maps of the
location of the pipeline facility.
(d) The owner or operator of a gas pipeline facility may
appeal the assessment of a charge under Subsection (b)(1) to the
railroad commission. The railroad commission shall hear the appeal
de novo. Unless the municipality that assessed the charge
establishes that the charge is authorized by this section, the
railroad commission shall declare the charge invalid or reduce the
charge to an amount authorized by this section. The railroad
commission has exclusive jurisdiction to determine whether a charge
under Subsection (b)(1) is authorized by this section. The owner or
operator of the gas pipeline facility and the municipality shall
share equally the costs incurred by the railroad commission in
connection with the appeal.
(e) A municipality must file suit to collect a charge
authorized by Subsection (b)(1) not later than the fourth
anniversary of the date the charge becomes due. The running of the
limitations period under this subsection is tolled on the filing of
an appeal of the charge under Subsection (d) and begins running
again on the date the appeal is determined.
(f) This section may not be construed to prevent a
municipality from:
(1) recovering the reasonable cost of repairing damage
to a municipal facility, other than a public way, caused by acts of
the owner or operator of a gas pipeline facility; or
(2) requiring the owner or operator of a gas pipeline
facility to relocate the pipeline facility, at the owner's or
operator's expense, to permit the construction, maintenance,
modification, or alteration of a municipal facility.
(g) Notwithstanding Subsection (f)(2), the municipality
shall pay the cost of relocating a gas pipeline facility if the
pipeline facility is authorized by a property right that has
priority over the municipality's right to use the public way for the
municipal facility.
(2) Strike SECTION 5 of the bill (page 5, line 12, through
page 5, line 16) and substitute the following:
SECTION 5. (a) Except as provided by this section, the
change in law made by this Act applies only to conduct that occurs
on or after the effective date of this Act. Conduct that occurs
before the effective date of this Act is governed by the law in
effect immediately before that date, and that law is continued in
effect for that purpose.
(b) Section 117.102, Natural Resources Code, and Section
121.2025, Utilities Code, as added by this Act, do not affect:
(1) the validity or enforceability of a contract
entered into before the effective date of this Act by a municipality
and the owner or operator of a hazardous liquid, carbon dioxide, or
gas pipeline; or
(2) the enforceability of a charge assessed by a
municipality before September 1, 2006, under an ordinance adopted
on or before September 1, 2004.
(c) Section 117.102, Natural Resources Code, and Section
121.2025, Utilities Code, as added by this Act, apply to a charge
assessed by a municipality on or after:
(1) the effective date of this Act under an ordinance
adopted after September 1, 2004; and
(2) September 1, 2006, under an ordinance regardless
of the date of adoption of the ordinance.
A BILL TO BE ENTITLED
AN ACT
relating to construction affecting pipeline easements and
rights-of-way.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter G, Chapter 756, Health and Safety
Code, as added by Chapter 1082, Acts of the 78th Legislature,
Regular Session, 2003, is amended by amending Section 756.103 and
adding Sections 756.104 and 756.105 to read as follows:
Sec. 756.103. PROHIBITION OF CONSTRUCTION WITHOUT NOTICE.
A person may not build, repair, replace, or maintain a construction
on, across, over, or under the easement or right-of-way for a
pipeline facility unless notice of the construction is given the
operator of the pipeline facility and:
(1) the operator of the pipeline facility determines
that the construction will not increase a risk to the public or
increase a risk of a break, leak, rupture, or other damage to the
pipeline facility;
(2) if the operator of the pipeline facility
determines that the construction will increase risk to the public
or the pipeline facility, the constructor pays the reasonable,
necessary, and documented cost of the additional fortifications,
barriers, conduits, or other changes or improvements necessary to
protect the public or pipeline facility from that risk before
proceeding with the construction;
(3) the building, repair, replacement, or maintenance
is conducted under an existing written agreement; or
(4) the building, repair, replacement, or maintenance
is required to be done promptly by a regulated utility company
because of the effects of a natural disaster.
Sec. 756.104. CIVIL LIABILITY. A constructor who violates
this subchapter is liable to the owner or operator of a pipeline
facility for damages to the facility proximately caused by the
violation, including any liability the owner or operator of the
pipeline facility incurs as a result of the violation. This section
does not affect the right of a surface owner to recover for any
damages to the owner's property.
Sec. 756.105. INJUNCTIVE RELIEF. (a) A suit for
injunctive relief to prevent or abate the violation of this
subchapter may be brought by the county attorney for the county in
which the pipeline facility is located, by the attorney general, or
by the owner or operator of the pipeline facility.
(b) The court in which the suit is brought may grant any
prohibitory or mandatory injunction the facts warrant, including a
temporary restraining order, temporary injunction, or permanent
injunction. The court may grant the relief without requiring a bond
or other undertaking.
SECTION 2. Subchapter H, Chapter 756, Health and Safety
Code, is amended by amending Section 756.123 and adding Sections
756.124 and 756.125 to read as follows:
Sec. 756.123. PROHIBITION OF CONSTRUCTION WITHOUT NOTICE.
A person may not build, repair, replace, or maintain a construction
on, across, over, or under the easement or right-of-way for a
pipeline facility unless notice of the construction is given the
operator of the pipeline facility and:
(1) the operator of the pipeline facility determines
that the construction will not increase a risk to the public or
increase a risk of a break, leak, rupture, or other damage to the
pipeline facility;
(2) if the operator of the pipeline facility
determines that the construction will increase risk to the public
or the pipeline facility, the constructor pays the reasonable,
necessary, and documented cost of the additional fortifications,
barriers, conduits, or other changes or improvements necessary to
protect the public or pipeline facility from that risk before
proceeding with the construction;
(3) the building, repair, replacement, or maintenance
is conducted under an existing written agreement; or
(4) the building, repair, replacement, or maintenance
is required to be done promptly by a regulated utility company
because of the effects of a natural disaster.
Sec. 756.124. CIVIL LIABILITY. A constuctor who violates
this subchapter is liable to the owner or operator of a pipeline
facility for damages to the facility proximately caused by the
violation, including any liability the owner or operator of the
pipeline facility incurs as a result of the violation. This section
does not affect the right of a surface owner to recover for any
damages to the owner's property.
Sec. 756.125. INJUNCTIVE RELIEF. (a) A suit for
injunctive relief to prevent or abate the violation of this
subchapter may be brought by the county attorney for the county in
which the pipeline facility is located, by the attorney general, or
by the owner or operator of the pipeline facility.
(b) The court in which the suit is brought may grant any
prohibitory or mandatory injunction the facts warrant, including a
temporary restraining order, temporary injunction, or permanent
injunction. The court may grant the relief without requiring a bond
or other undertaking.
SECTION 3. Section 1 of this Act takes effect only if the
Act of the 79th Legislature, Regular Session, 2005, relating to
nonsubstantive additions to and corrections in enacted codes does
not become law. If the Act of the 79th Legislature, Regular
Session, 2005, relating to nonsubstantive additions to and
corrections in enacted codes becomes law, Section 1 of this Act has
no effect.
SECTION 4. Section 2 of this Act takes effect only if the
Act of the 79th Legislature, Regular Session, 2005, relating to
nonsubstantive additions to and corrections in enacted codes
becomes law. If the Act of the 79th Legislature, Regular Session,
2005, relating to nonsubstantive additions to and corrections in
enacted codes does not become law, Section 2 of this Act has no
effect.
SECTION 5. The change in law made by this Act applies only
to conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is
governed by the law in effect immediately before that date, and that
law is continued in effect for that purpose.
SECTION 6. To the extent of any conflict, this Act prevails
over another Act of the 79th Legislature, Regular Session, 2005,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 7. 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, 2005.
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