79R13056 PAM-F
By: Hughes H.B. No. 2203
Substitute the following for H.B. No. 2203:
By: Gonzalez Toureilles C.S.H.B. No. 2203
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the General Land Office and the
disposition of certain unsurveyed public school land.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter E, Chapter 51, Natural Resources
Code, is amended to read as follows:
SUBCHAPTER E. SALE AND LEASE OF VACANCIES
Sec. 51.171. PURPOSE; APPLICATION OF OTHER LAW. (a) This
subchapter controls the purchase and lease of vacant land and the
authority of the commissioner and the board to:
(1) determine whether a vacancy exists; and
(2) sell and lease vacant land.
(b) To the extent a provision of this subchapter conflicts
with another law relating to vacant land or Chapter 2001,
Government Code, this subchapter controls.
[(c) Chapter 2001, Government Code, does not apply to a
proceeding under this subchapter.]
Sec. 51.172. DEFINITIONS. In this subchapter:
(1) "Administratively complete" means a vacancy
application that complies with Section 51.176 and any rule adopted
by the commissioner regarding the filing of a vacancy application.
(1-a) "Applicant" means any person, including a
good-faith claimant, who files a vacancy [an] application [to
purchase or lease a vacancy].
(1-b) "Application commencement date" means:
(A) the date, as designated in the commissioner's
notice to the applicant required by Section 51.177(b); or
(B) the date, as designated in the commissioner's
notice to the applicant required by Section 51.177(d), indicating
that any deficiency in the vacancy application has been resolved.
(2) "Good-faith claimant" means a person who, on the
application commencement date:
(A) occupies or uses or has previously occupied
or used, or whose predecessors in interest in the land claimed to be
vacant have occupied or used, the land or any interest in the land
[a vacancy] for any purposes, including occupying or using:
(i) the surface or mineral estate for any
purposes, including [other than] exploring for or removing oil,
gas, sulphur, or other minerals and geothermal resources from the
land;
(ii) an easement or right-of-way; or
(iii) a mineral royalty or leasehold
interest; [vacancy; and]
(B) has had, or whose predecessors in interest
have had, the land claimed to be vacant [vacancy] enclosed or within
definite boundaries recognized in the community and in possession
under a chain of title for a period of at least 10 years with a
good-faith belief that the land [vacancy] was included within the
boundaries of a survey or surveys that were previously titled,
awarded, or sold under circumstances that would have vested title
in the land [vacancy] if the land [vacancy] were actually located
within the boundaries of the survey or surveys;
(C) is the owner of land:
(i) that adjoins the land claimed to be
vacant; and
(ii) for which no vacancy application has
been previously filed; or
(D) holds title under a person described by
Paragraph (A), (B), or (C) or is entitled to a distributive share of
a title acquired under an application filed by a person described by
Paragraph (A), (B), or (C).
(3) "Interest" means any right or title in or to real
property, including a surface, subsurface, or mineral estate.
"Interest" includes a right or title described as follows:
(A) a fee simple title;
(B) a determinable fee or other leasehold or
mineral interest created under a conveyance instrument, including a
mineral lease;
(C) a mineral royalty, nonparticipating royalty,
or overriding royalty interest described by Section 51.194(c);
(D) a life estate;
(E) a remainder or reversionary interest; or
(F) a secured interest under a lien ["Interested
person" means a person, excluding a good-faith claimant or an
applicant, who has a present legal interest in the surface or
mineral estate of the land claimed to be vacant].
(4) "Necessary party" means:
(A) an applicant or [, interested person, and]
good-faith claimant whose present legal interest in the surface or
mineral estate of the land claimed to be vacant may be adversely
affected by a vacancy determination;
(B) a person who asserts a right to or who claims
an interest in land claimed to be vacant;
(C) a person who asserts a right to or who claims
an interest in land claimed to be vacant or in land adjoining land
claimed to be vacant as shown in the records of the land office or
the county records, including tax records, of any county in which
all or part of the land claimed to be vacant is located;
(D) a person whose name appears in the records
described by Paragraph (C); or
(E) an attorney ad litem appointed under Section
51.180.
(5) "Survey report" means a written report of a survey
conducted by a licensed state land surveyor or a county surveyor of
the county in which a majority of the land claimed to be vacant is
located.
(6) "Vacancy" means an area of unsurveyed public
school land that:
(A) is not in conflict on the ground with land
previously titled, awarded, or sold;
(B) has not been listed on the records of the land
office as public school land; and
(C) was not, on the application commencement date
[of filing of an application]:
(i) subject to an earlier subsisting
application; [or]
(ii) subject to a vacancy application
denied with prejudice;
(iii) the subject of pending litigation
relating to state ownership or possession of the land; or
(iv) subject to a previous vacancy
application that has been finally adjudicated by the commissioner
or a court of this state or the United States.
(7) "Vacancy application" means a form submitted to
the commissioner by an applicant to:
(A) initiate a determination by the commissioner
whether land claimed to be vacant is vacant;
(B) purchase vacant land; or
(C) lease vacant land.
Sec. 51.173. DISPOSITION OF VACANT LAND. (a) Vacant and
unsurveyed public school land shall be located, sold, and leased
under this subchapter, except:
(1) submerged lands within tidewater limits;
(2) all islands, flats, and emergent lands within
tidewater limits;
(3) natural lakes; and
(4) riverbeds, including channels and islands in
riverbeds, above tidewater limits.
(b) This subchapter does not alter or diminish the public
domain status of the surface estate of riverbeds and channels and
islands in riverbeds that are located above tidewater limits.
Sec. 51.174. GENERAL POWERS AND DUTIES OF COMMISSIONER.
(a) The commissioner may:
(1) delegate responsibility for implementing this
subchapter; [and]
(2) perform any other act necessary to administer and
implement the purposes of this subchapter, including entering into
a contract with a private party to provide the notices required
under this subchapter; and
(3) terminate without prejudice a vacancy application
if an applicant fails to comply with this subchapter or a rule
adopted under this subchapter.
(b) The commissioner may grant an extension of time to
comply with a requirement under this subchapter. For each
application, the commissioner may grant not more than a total of 30
days in extensions of time to comply with one or more requirements
of this subchapter, excluding any extensions of time related to the
survey report under this subchapter. The commissioner may grant
not more than 90 days in extensions of time to comply with a
requirement related to the survey report under this subchapter.
(c) The commissioner shall adopt rules necessary and
convenient to administer this subchapter.
(d) [(c)] The commissioner shall advise the board relating
to the market value of the surface, [and] mineral, and leasehold
estates of vacant land.
Sec. 51.175. GENERAL POWERS AND DUTIES OF BOARD. (a) The
board shall set the terms and conditions for each sale and lease of
a vacancy.
(b) The board shall adopt rules governing the terms and
conditions for the sale and lease of a vacancy. The rules shall be
adopted and amended as necessary to be consistent with real
property law of this state and other applicable law.
(c) The board may adopt rules governing mineral
classification, royalty reservations, and awards of royalty
reservations and preferential rights to an applicant or to a
good-faith claimant in addition to the provisions prescribed by
this subchapter.
Sec. 51.176. VACANCY APPLICATION; FILING. (a) To purchase
or lease land claimed to be vacant, a person must file a vacancy
[an] application on a form prescribed by the commissioner. A
completed application must include:
(1) a description of [describe] the land [that is]
claimed to be vacant that is sufficient to locate the land on the
ground;
(2) a written statement indicating [state] whether the
applicant seeks to purchase the land [that is] claimed to be vacant
or obtain a mineral lease on the land or both purchase the land and
obtain a mineral lease on the land;
(3) a list, in a format prescribed by the
commissioner, containing [state] the name and last known mailing
address of each necessary party whose name appears in the records
described by Section 51.172(4)(C) [person who, from facts known to
the applicant, asserts a present legal interest in the land claimed
to be vacant];
(4) an affidavit executed by the applicant affirming
that the applicant conducted a diligent search of all the records
described by Section 51.172(4)(C) in preparing the list required by
Subdivision (3);
(5) if applicable, a statement of [state] the basis
for and [provide] documentary proof for an assertion of
good-faith-claimant status;
(6) at the applicant's discretion:
(A) a survey report; or
(B) an abstract of title to any land that adjoins
the land claimed to be vacant; and
(7) [(5) provide] any other information required by
the commissioner.
(b) The applicant must file the original and a duplicate
copy of the vacancy application with the county clerk [surveyor] of
each [the] county in which all or part of the land claimed to be
vacant is located. [If the county does not have a county surveyor,
the application must be filed with the county clerk.]
(c) The [county surveyor or] county clerk[, as applicable,]
shall mark the exact date and hour of filing on the original and a
duplicate copy of the vacancy application and shall return a marked
copy to the person filing the application. The original shall be
recorded in a book kept for that purpose separate from the deed or
real property records. The failure to record a vacancy [an]
application as provided by this subsection does not affect the
validity of the application filing.
(d) Not later than the fifth day after the date an applicant
files the vacancy application with the county clerk, the applicant
shall file a duplicate copy of the marked copy received from the
county clerk with the county surveyor of each county in which all or
part of the land claimed to be vacant is located if that county has a
county surveyor.
(e) Priority among vacancy applications covering the same
land claimed to be vacant is determined by the earliest time of
filing indicated by the date and hour marked on the application by
the [county surveyor or] county clerk.
(f) [(e)] The applicant shall submit to [file with] the
commissioner two duplicate copies of the marked copy that has been
file-stamped by the county clerk [the duplicate copy of the
application with the county official's mark indicating the time of
filing] not later than the 30th day after the date the vacancy
application is filed with the county [surveyor or] clerk. The
commissioner shall mark the date the two duplicate copies are
received on each copy, assign a file number to the vacancy
application, and return a marked duplicate copy containing the file
number to the applicant [If the 30th day after the date of filing
falls on a Saturday, Sunday, or state or federal holiday, the
application may be filed on the next regular business day following
the 30th day].
(g) The applicant shall include a filing fee set by the
commissioner in an amount of not less than $100.
Sec. 51.177. PROCESSING VACANCY APPLICATION. (a) Not
later than the 45th day after the date the applicant files the
duplicate copies with the commissioner as provided by Section
51.176(f), the commissioner shall:
(1) determine whether the vacancy application is
administratively complete; and
(2) provide to the applicant the notice required by
this section.
(b) If the commissioner determines that the vacancy
application is administratively complete, the commissioner shall
provide written notice to the applicant that:
(1) informs the applicant that the application is
administratively complete;
(2) states the application commencement date; and
(3) states the amount of any deposit required under
Section 51.178 and the date by which the applicant must pay the
deposit.
(c) If the commissioner determines that the vacancy
application is not administratively complete, the commissioner
shall provide written notice to the applicant that:
(1) informs the applicant that the application is not
administratively complete;
(2) provides a list of any deficiencies the applicant
must resolve; and
(3) states a reasonable period of not more than 30 days
from the date of the notice to resolve any listed deficiencies.
(d) Not later than the 30th day after the date provided
under Subsection (c)(3) to resolve any deficiencies, the
commissioner shall determine whether the vacancy application is
administratively complete. If the commissioner determines that the
vacancy application is administratively complete, the commissioner
shall provide the notice required by Subsection (b). If the
commissioner determines that the vacancy application is not
administratively complete, the commissioner shall:
(1) dismiss the application without prejudice; and
(2) provide written notice to the applicant informing
the applicant that the application is not administratively complete
and is dismissed without prejudice. [The commissioner shall mark
the date of filing on the application and assign a file number to
the application.
[(b) The commissioner shall accept an application filed in
compliance with this subchapter and shall notify the applicant on
acceptance of the application.
[(c) The commissioner may reject an application and shall
notify the applicant of the rejection if the application:
[(1) has material omissions;
[(2) does not describe the land claimed to be vacant
adequately for the land to be located on the ground; or
[(3) describes as vacant land that has been finally
adjudicated in a court of this state or of the United States not to
be vacant.
[(d) A rejected application is terminated. No further
action is taken on the application, and the land office file is
closed.
[Sec. 51.178. APPLICATION FOR AND DETERMINATION OF
GOOD-FAITH-CLAIMANT STATUS. (a) A person may apply for
good-faith-claimant status not later than the 90th day after:
[(1) the date of a final order by the commissioner
finding that a vacancy exists; or
[(2) the date of final judgment by a court that a
vacancy exists, if the commissioner does not find that a vacancy
exists.
[(b) The application must include certified copies of
applicable county records supporting the good-faith claimant's
status.
[(c) The commissioner shall, after expiration of the period
prescribed by Subsection (a)(2), declare whether a person is a
good-faith claimant. The commissioner may consider documents filed
in support of the person's good-faith-claimant status and any other
relevant information. The commissioner may conduct an
investigation under Section 51.185 as necessary to make a
determination on the application. The commissioner has sole
discretion to declare a person a good-faith claimant, and a person
is not otherwise entitled to a declaration of good-faith-claimant
status. A declaration of the commissioner under this subsection is
not a final order and may not be appealed, except as provided by
Section 51.187.
[(d) A declaration of good-faith-claimant status grants a
preferential right to the claimant to purchase or lease the land as
provided by this subchapter. The declaration does not confer any
other rights.
[Sec. 51.179. IDENTIFICATION OF AND NOTICE TO NECESSARY
PARTIES. (a) The applicant shall identify each necessary party by
the name and last known address of each owner or claimant of land or
any interest in land or of a lease on, adjoining, overlapping, or
including the land claimed to be vacant as can be determined from
the records of the land office and the county clerk's office.
[(b) The applicant shall provide each necessary party with
the notice of the commissioner's acceptance of the application, a
copy of the application, and a continuance for future notices form
not later than the 90th day after the date the applicant receives
the notice of the commissioner's acceptance of the application.
[(c) Except as provided by this subsection, a necessary
party is not entitled to subsequent notices required by this
subchapter unless the party requests subsequent notices. The
commissioner shall notify a necessary party of a final order issued
under Section 51.186.
[(d) Not later than the 30th day after the date the notices
are mailed under Subsection (b), the applicant must publish the
notice of the commissioner's acceptance of the application in each
newspaper of general circulation in the county and the general area
in which the land is located for a period determined by the
commissioner. The published notice must contain a description of
the land claimed to be vacant.]
Sec. 51.178 [51.180]. DEPOSIT. (a) The commissioner may
recover from the applicant state funds expended in evaluating and
investigating the application, providing notice, preparing a
survey, appointing an attorney ad litem, [the investigation] and
conducting hearings [conducted] under this subchapter.
(b) The [Not later than the 30th day after the date notice is
published as required by Section 51.179, the] commissioner shall
[may] require the applicant to submit a deposit[. If required, the
applicant must make a deposit] in an amount sufficient to pay the
reasonable costs [of any survey and investigation required] under
Subsection (a) [this subchapter] not later than the 30th day after
the application commencement date [the commissioner notifies the
applicant].
(c) If the amount deposited is insufficient, the
commissioner shall require [may make a written request for] a
reasonably necessary supplemental deposit. If a supplemental
deposit is required, the applicant must make the deposit not later
than the 30th day after the date the commissioner requests the
supplemental deposit.
(d) [The commissioner and applicant may agree to
alternative payment methods to recover state funds expended in the
investigation and hearings conducted under this subchapter.
[(e)] An applicant may not challenge or appeal the amount of
the required deposits, and the applicant's refusal or failure to
make the required deposits in the period prescribed by this section
terminates the application without prejudice.
Sec. 51.179 [51.181]. DISPOSITION OF DEPOSITS. (a) The
commissioner shall deposit all initial and supplemental deposits
received under this subchapter to the credit of a separate trust
account in the state treasury. The comptroller, on the
commissioner's order, shall make disbursements from that account
for purposes authorized by this subchapter.
(b) After proceedings on a vacancy [an] application are
concluded and all expenditures authorized under this subchapter are
paid, the commissioner shall provide to the applicant a complete
statement of all deposits and expenditures and shall remit to the
applicant any balance remaining from the deposit or supplemental
deposits made by the applicant.
Sec. 51.180. ATTORNEY AD LITEM. (a) The applicant must
provide evidence to the commissioner to establish the applicant's
ownership of all interests in the land surrounding the land claimed
to be vacant.
(b) If the applicant fails to provide sufficient evidence,
as determined by the commissioner, the commissioner shall, not
later than the 30th day after the application commencement date,
appoint an attorney ad litem to:
(1) identify all necessary parties; and
(2) represent the interests of any necessary party
identified under Section 51.176(a)(3) that has not been located.
Sec. 51.181. NOTICE TO NECESSARY PARTIES. (a) Not later
than the 30th day after the application commencement date, the
commissioner shall provide to each necessary party a written notice
that:
(1) informs the necessary party that a vacancy
application has been filed;
(2) states the application commencement date; and
(3) includes:
(A) a copy of the vacancy application and any
attachments; and
(B) a form for requesting subsequent notices
regarding the application.
(b) Except as provided by Subsection (c), a necessary party
is not entitled to notices subsequent to the notice provided under
Subsection (a) unless the party requests subsequent notices.
(c) The commissioner shall notify each necessary party of a
final order issued under Section 51.188.
Sec. 51.182. FILING OF EXCEPTIONS TO APPLICATION. (a) Not
later than the 60th day after the date of the commissioner's notice
under Section 51.181(a), a necessary party may file an exception to
the vacancy application, any documentation attached to the
application, or any other documents or public records that may be
used by the commissioner to make a determination.
(b) A necessary party must:
(1) file an exception with the land office; and
(2) provide a copy of the filing to each necessary
party that requested subsequent notice as provided by Section
51.181.
Sec. 51.183. INVESTIGATION. (a) The commissioner shall
conduct an investigation of the vacancy application.
(b) The investigation shall include:
(1) an evaluation of the vacancy application;
(2) a determination that the vacancy application was
filed as provided by Section 51.176; and
(3) a review of public records at the land office
relating to the land claimed to be vacant.
(c) The investigation may include a review of:
(1) any survey conducted by a licensed state land
surveyor or by the county surveyor of a county in which all or part
of the land claimed to be vacant is located; or
(2) any documents or public records necessary to
determine whether a vacancy exists, including a review of public
records relating to the land claimed to be vacant at:
(A) the state archives; or
(B) any county in which all or part of the land
claimed to be vacant is located.
(d) An investigation may include a survey requested by the
commissioner under Section 51.184 or a surveyor's report as
provided by Section 51.185.
(e) The commissioner shall record the names of the persons
consulted, the documents and surveys reviewed, and the relevant law
and other materials used in the investigation.
Sec. 51.184 [51.182]. COMMISSIONER'S SURVEY. (a) To
investigate a vacancy application under Section 51.183, the
commissioner may require a survey. If the commissioner requires a
survey, the [The] commissioner shall [may] appoint a licensed state
land surveyor who is not associated with the vacancy application to
prepare a report as provided by Section 51.185[, or the county
surveyor of the county in which the land claimed to be vacant or
part of that land is located, to investigate the applicant's
claim]. The commissioner may limit the scope of the work performed
by the surveyor.
(b) A necessary party may observe a survey conducted under
this section. A survey will not be delayed to accommodate a
necessary party who provides notice to the commissioner that the
party intends to observe the surveyor conducting the survey.
(c) The commissioner shall mail a notice of intention to
survey to each necessary party not later than the 30th day before
the date the surveyor begins work. The notice must contain:
(1) the proposed starting date of the survey;
(2) [and] the name, address, and telephone number of
the surveyor; and
(3) a statement informing the necessary party that any
necessary party may observe the field work of the surveyor
conducting the survey.
(d) [(c)] The fees and expenses paid for the survey are the
same as those provided by law. If the fees and expenses are not
provided by law, the commissioner shall contract for fees and
expenses reasonably necessary for the scope of the required work.
Contracts under this subsection:
(1) must include hourly rates, categories of
reimbursable expenses, and an estimated completion date; and
(2) may include other expenses the commissioner
considers reasonable.
(e) The commissioner shall adopt rules regarding the
removal of an appointed surveyor on the grounds of bias, prejudice,
or conflict. The rules must permit the commissioner to remove an
appointed surveyor on the commissioner's own motion or on the
motion of a necessary party [(d) The appointment of a surveyor is
not required. The commissioner may rely on:
[(1) any survey conducted by a licensed state land
surveyor or a county surveyor of the county in which the land
claimed to be vacant or a part of that land is located; and
[(2) any documents or public records required to
determine whether a vacancy exists].
Sec. 51.185 [51.183]. SURVEYOR'S REPORT. (a) Not later
than the 120th day after the date a surveyor is appointed under
Section 51.184 [51.182], the surveyor shall file a written report
of the survey, the field notes describing the land and the lines and
corners surveyed, a plat depicting the results of the survey, and
any other information required by the commissioner. The
commissioner may extend the time for filing the report as
reasonably necessary.
(b) The survey report must also contain:
(1) the name and last known mailing [post office]
address of:
(A) each person who has possession of the land
described in the vacancy application; and
(B) [of] each person determined by the surveyor
to have an [a present legal] interest in the land; and
(2) all abstract numbers associated with surveys of
land adjoining the land claimed to be vacant.
Sec. 51.186 [51.184]. COMPLETION OF SURVEY. (a) The
commissioner shall serve a true copy of the survey report filed by
the surveyor on each necessary party, including those named in the
survey report, by certified mail, return receipt requested, not
later than the 30th [10th] business day after the date the survey
report is filed with the land office.
(b) Any necessary party may file exceptions to the
surveyor's report not later than the 30th day after the date the
survey report is mailed to the necessary party by the commissioner
[notice of completion is received. If the commissioner does not
appoint a surveyor, a necessary party may file exceptions to a
survey report filed by the applicant during a period established by
the commissioner]. Any exceptions must be filed with the land
office and a copy must be sent by the party filing the exception to
each necessary party who has requested subsequent notice under
Section 51.181.
Sec. 51.187 [51.185]. HEARING [INVESTIGATION]. (a) If the
commissioner has not issued a final order with a finding of "Not
Vacant Land" on or before the first anniversary of the application
commencement date, the [The] commissioner shall order [conduct an
investigation of the applicant's claim that a vacancy exists. The
commissioner may conduct] a hearing to determine if a vacancy
exists. A hearing under this subchapter:
(1) shall be held not later than the 60th day after the
date the hearing is ordered;
(2) shall be conducted as [is not] a contested case
hearing [and is not] subject to Chapter 2001, Government Code; and
(3) may be waived by written agreement of all
necessary parties and the commissioner. [The commissioner is not
required to grant any hearings under this subchapter.]
(b) Not later than the 30th day after the date a hearing is
ordered under Subsection (a), [The commissioner shall determine the
scope of any hearings to investigate an application for
good-faith-claimant status and an application to purchase or lease
vacant land. If the commissioner grants a hearing,] the
commissioner shall provide [timely] notice of the [time and place
of the] hearing date to [necessary parties and shall provide] each
necessary party [an opportunity to be heard. Any other procedural
rights, including the right to examine or cross-examine witnesses,
may be granted in the sole discretion of the commissioner].
(c) Not later than the 60th day after the date of the
hearing, the commissioner shall enter a final order as provided by
Section 51.188. [The commissioner may consult with any land office
employee, including the chief surveyor, or a relevant expert during
the investigation.
[(d) The commissioner shall record the names of the persons
consulted, the documents and surveys reviewed, and the relevant law
and other materials used in the investigation.]
Sec. 51.188 [51.186]. COMMISSIONER'S FINAL ORDER. (a) At
any time during or after an investigation of or hearing regarding a
vacancy application, the commissioner may determine that land
claimed to be vacant is not vacant and issue a final order with a
finding of "Not Vacant Land."
(b) After a hearing conducted under Section 51.187, the
commissioner shall issue a final order with a finding of "Not Vacant
Land" or issue an order finding [If the commissioner concludes that
the land claimed to be vacant is not in conflict with land
previously titled, awarded, or sold by the state, the commissioner
may determine that] a vacancy exists. Not later than the 15th day
after the date the final order is issued, the [The] commissioner
shall notify each necessary party of the final order by providing
[mailing] each party a copy of the [vacancy determination. The
vacancy determination is a] final order [of the commissioner and
may be appealed as provided by Section 51.187].
(c) [(b)] A final order finding a vacancy exists
[determination order] must contain:
(1) a finding by the commissioner that the land
claimed to be vacant is unsurveyed public school land that is not in
conflict with land previously titled, awarded, or sold by the state
as established by:
(A) clear and convincing proof for an application
to which an exception has been filed as provided by Section 51.182;
or
(B) a preponderance of the evidence for an
application to which no exceptions have been filed as provided by
Section 51.182;
(2) the [a] field note description used to determine
the vacancy, which must be [of the land determined to be vacant that
is] sufficient to locate the land on the ground;
(3) [(2)] an accurate plat of the land that is:
(A) consistent with the field notes; and
(B) prepared by a [county surveyor or] licensed
state land surveyor or a county surveyor of the county in which a
majority of vacant land is located; and
(4) [(3)] any other matters required by law or as the
commissioner considers appropriate.
(d) [(c)] In determining the boundaries and size of a
vacancy, the commissioner is not restricted to a description of the
land claimed to be vacant that is provided by the applicant, the
surveyor, or any other person. The commissioner shall adopt the
description of a vacancy that best describes the land found to be
vacant [vacancy] and that is consistent with the investigation
under this subchapter.
(e) The commissioner shall attach to the commissioner's
final order a document entitled "Notice of Claim of Vacancy." The
commissioner shall prescribe the contents of the notice. The
commissioner shall file the notice with the county clerk and any
county surveyor of each county in which all or part of the vacancy
is located [(d) If the commissioner determines that the land
claimed to be vacant is not vacant, the commissioner shall endorse
the file with the finding "Not Vacant Land" and shall notify each
necessary party of the determination. A finding of "Not Vacant
Land" is conclusive with respect to land described in the
application. A finding of "Not Vacant Land" under this subsection
is a final order of the commissioner and may be appealed as provided
by Section 51.187].
Sec. 51.189 [51.187]. APPEAL. (a) A final order with a
finding of "Not Vacant Land" under Section 51.188 may not be
appealed. The final order is conclusive regarding the land
described in the vacancy application or the land investigated by
the commissioner as a result of the vacancy application.
(b) A final order finding a vacancy exists is subject to
appeal by a necessary party that has standing to appeal under
Section 51.192. The district court in the county in which a
majority of the vacant land is located has jurisdiction of an appeal
under this subchapter. A necessary party [person] must file an
appeal not later than the 30th [90th] day after the date the
commissioner's final order is issued [under Section 51.186]. All
necessary parties must be provided notice of an appeal under this
section by the party filing the appeal.
(c) A person whose predecessor in title was bound by the
outcome of an appeal is bound to the same extent the predecessor in
title would be bound if the predecessor in title continued to hold
title. [(b) The district court, in its discretion, may allow an
interested person who did not receive notice of a proceeding under
this subchapter to file an appeal after the expiration of the 90-day
period prescribed by Subsection (a).
[(c) If the commissioner has not issued a final order under
Section 51.186 on or before the first anniversary of the date the
application was accepted under Section 51.177(b), the applicant may
file an action in district court to determine whether a vacancy
exists. The filing of an action under this subsection terminates
the application with the land office.]
Sec. 51.190 [51.188]. SCOPE OF REVIEW. In an appeal of [The
district court shall conduct a de novo review of] the
commissioner's final order determining that a vacancy exists, the
district court shall conduct a trial de novo [does or does not
exist].
Sec. 51.191 [51.189]. ISSUES REVIEWABLE. The court may
review the commissioner's declaration of good-faith-claimant
status only in conjunction with a review of a final order
determining that a vacancy exists.
Sec. 51.192 [51.190]. STANDING TO APPEAL. A person may
appeal the commissioner's final order determining that a vacancy
exists if the person:
(1) is a necessary party [an applicant];
(2) has a present legal interest in the surface or
mineral estate at the time a vacancy [an] application is filed; or
(3) acquires a legal interest before the date of the
commissioner's final order.
Sec. 51.193. APPLICATION FOR AND DETERMINATION OF
GOOD-FAITH-CLAIMANT STATUS. (a) A necessary party may apply for
good-faith-claimant status not later than the 90th day after the
date the commissioner issues a final order finding that a vacancy
exists.
(b) The application must include certified copies of the
applicable county records supporting the good-faith claimant's
status.
(c) Not later than the 120th day after the date the
commissioner issues a final order finding that a vacancy exists,
the commissioner shall declare whether a necessary party is a
good-faith claimant.
(d) A person who is denied good-faith-claimant status may:
(1) request a hearing by the commissioner; or
(2) appeal the denial as part of any appeal of a final
order finding that a vacancy exists.
(e) If the commissioner grants a hearing, the commissioner
shall:
(1) determine the scope of the hearing;
(2) provide timely notice of the time and place of the
hearing to each necessary party; and
(3) provide each necessary party an opportunity to be
heard.
(f) A declaration of good-faith-claimant status grants a
preferential right to the claimant to purchase or lease the land or
an interest in the land as provided by Section 51.194. The
declaration does not confer any other rights.
Sec. 51.194 [51.191]. PREFERENTIAL RIGHT OF GOOD-FAITH
CLAIMANT. (a) A good-faith claimant who has been notified by the
commissioner that a vacancy exists under this subchapter has a
preferential right to purchase or lease the interest claimed in the
land before the land was declared vacant [vacancy]. The
preferential right may be exercised after a final judicial
determination or after the commissioner's final order and the
period for filing an appeal has expired. If a [the] good-faith
claimant does not apply to purchase or lease the interest [land]
before the later of the 121st day after the date the commissioner's
order becomes final or the 60th day after the date of the final
judicial determination of an appeal under this subchapter [the
preferential right may be exercised], then the good-faith
claimant's preferential right expires.
(b) A [The] good-faith claimant may purchase or lease the
vacancy by submitting a written application to the board.
(c) A [The] good-faith claimant that owns a separate surface
interest, a contractual right to a mineral or leasehold interest, a
leasehold interest, or a royalty interest in the land occupied or
used that is found to be part of or to include a vacancy is entitled
to purchase or lease that same interest in the portion of the land
determined to be [that is] vacant[:
[(1)] at the price and under the conditions set by the
board[;
[(2) subject to the royalty reservations provided by
the board;] and
[(3)] in accordance with the law in effect on the date
the application is filed.
(d) If the interest purchased under Subsection (c) is less
than a permanent interest, then:
(1) the interest purchased is limited to the duration
of a deed, contract, instrument, or lease in existence before the
filing of the vacancy application and subject to a division of the
amount of the royalty between the state and the existing royalty
owners, provided that the state retains at least one-half of the
amount of the royalty interest; and
(2) the interest and any remaining mineral interest,
including all executory rights, vest with the state at the
expiration of the deed, contract, instrument, or lease.
Sec. 51.195 [51.192]. PURCHASE OR LEASE BY APPLICANT. (a)
If no good-faith claimant exists or if no good-faith claimant
exercises a preferential right within the applicable period, the
applicant has a preferential right to purchase or lease the land
determined to be vacant on or before the 60th day [for 30 days]
after the date:
(1) the commissioner determines [a determination]
that no good-faith claimant exists; or
(2) [the expiration of] the period for a good-faith
claimant to exercise [exercising] a preferential right to purchase
or lease the land determined to be vacant expires.
(b) If a good-faith claimant exercises the claimant's
preferential right in the land determined to be vacant, the
applicant has a preferential right to either:
(1) an award by the board of a perpetual 1/32
nonparticipating royalty of the full mineral interest of the
vacancy; or
(2) a preferential right to purchase or lease any
remaining interest in the land determined to be vacant.
(c) If a lease described by Section 51.194(d)(1) exists on
the land determined to be vacant, the applicant's 1/32
nonparticipating royalty interest shall be taken from the state's
royalty interest as reserved under Section 51.194(d)(1) for the
duration of the lease, provided that the applicant's share for the
duration of the lease may never equal more than the interest
retained by the state.
(d) An applicant who exercises a preferential right under
Subsection (a) or (b)(2) may purchase or lease the land or an
interest in the land:
(1) at the price set by the board;
(2) subject to the royalty reservations provided by
the board; and
(3) in accordance with the law in effect on the date
the application is filed. [The board shall award an applicant,
other than a good-faith claimant, a perpetual nonparticipating
royalty of:
[(1) not less than 1/32 or more than 1/16 of the value
of oil, gas, and sulphur; and
[(2) one percent of the value of all geothermal and
other minerals produced.]
SECTION 2. (a) Except as provided by Subsection (b) of this
section, Subchapter E, Chapter 51, Natural Resources Code, as
amended by this Act, applies only to a vacancy application filed on
or after the effective date of this Act. A vacancy application
filed before the effective date of this Act is governed by the law
in effect when the vacancy application was filed, and the former law
continues in effect for that purpose.
(b) Section 51.188, Natural Resources Code, as renumbered
from Section 51.186, Natural Resources Code, and amended by this
Act, applies to a vacancy application filed before the effective
date of this Act and for which no appeal has been filed as of the
effective date of this Act.
SECTION 3. 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.