By:  Hardcastle                                                   H.B. No. 3419


A BILL TO BE ENTITLED
AN ACT
relating to the Trans-Texas Corridor and other transportation projects. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 91.034, Transportation Code, is amended by adding subsection (d) to read as follows: Section 91.034. ENVIRONMENTAL MITIGATION. (a) The department may acquire, maintain, hold, restore, enhance, develop, or redevelop property for the purpose of mitigating a past, present, or future adverse environmental effect arising from the construction, maintenance, or operation of a rail facility without regard to whether the need for mitigation has already been established for a particular project. (b) The department may contract with a governmental or private entity to maintain, control, hold, restore, enhance, develop, or redevelop property for the mitigation of a past, present, or future adverse environmental effect arising from the construction, maintenance, or operation of a rail facility without regard to whether the need for mitigation has already been established for a particular project. (c) If authorized by the applicable regulatory authority, the department may pay an amount of money to an appropriate governmental or private entity instead of acquiring or managing property for the mitigation of a past, present, or future adverse environmental effect arising from construction, maintenance, or operation of a rail facility without regard to whether the need for mitigation has already been established for a particular project. (d) If authorized by the applicable regulatory authority, the department shall purchase a conservation easement from an owner of real property instead of acquiring or condemning the property for the mitigation of past, present, or future adverse environmental effect arising from the construction, maintenance, or operation of a rail facility without regard to whether the need for mitigation has already been established for a particular project. SECTION 2. Section 91.095, Transportation Code, is amended to read as follows: Section 91.095. DISPOSAL OF PROPERTY. Subject to the requirements of Section 202.034, the [The] department may sell, convey, or otherwise dispose of any rights or other interests in real property acquired under this subchapter that the commission determines are no longer needed for department purposes. SECTION 3. Subchapter B, Chapter 202, Transportation Code, is amended by adding Section 202.034 to read as follows: Sec. 202.034. RECONVEYANCE OF PROPERTY ACQUIRED FOR TRANS-TEXAS CORRIDOR. (a) Property acquired under Chapters 91, 227, 361, or 370 Transportation Code that has not been utilized for transportation purposes five years after the date the property is acquired, may be reconveyed to the grantor or the grantor's heirs or assigns. (b) The sale price for the property must be the same as the purchase price paid by or for the state. (c) The commission, within 60 days after the five year anniversary of the acquisition of the property, shall send notice of the option to repurchase to grantor's last known address. (d) Not later than the first anniversary of the date the notice is mailed, the grantor, or the grantor's heirs or assigns may request in writing that the state reconvey the property to them. (e) If the commission does not receive a request to reconvey the property before the expiration of the stated period, the commission may dispose of the property in the manner provided by Section 202.021. SECTION 4. Section 202.113, Transportation Code, is amended to read as follows: Section 202.113. EXPIRATION OF OPTION TO PURCHASE. An option to acquire property purchased under Section 202.112 shall expire upon the fifth anniversary of the purchase date and may be renewed for subsequent five year periods by agreement of the commission and the grantor of the property or the grantor's heirs or assigns [DISPOSAL OF SURPLUS PROPERTY. The commission shall dispose of property acquired by advance acquisition that is not needed for a transportation facility in the manner provided by Subchapter B]. SECTION 5. Section 203.004, Transportation Code, is amended by adding subsection (d) to read as follows: Sec. 203.004. CONTRACTS FOR MANAGEMENT OF PROPERTY USED FOR MITIGATION OF ADVERSE ENVIRONMENTAL IMPACTS. (a) The department may contract with any public or private entity for the management of property used for the mitigation of an adverse environmental impact directly resulting from the construction or maintenance of a state highway. (b) A contract under this section is not subject to Chapter 771, Government Code. (c) In this section, "management," in connection with property, means administration, control, or maintenance that is required by an agency of the United States. (d) If authorized by the applicable regulatory authority, the department shall purchase a conservation easement from an owner of real property instead of acquiring or condemning the property for the mitigation of past, present, or future adverse environmental effect arising from construction or operation of a state highway. SECTION 6. Subchapter C, Chapter 203, Transportation Code is amended by adding Section 203.035 to read as follows: Sec. 203.035. SEVERANCE OF REAL PROPERTY. (a) If a transportation project severs an owner's real property, the department shall pay: (1) the value of the property acquired; and (2) the damages to the remainder of the owner's property caused by the severance, including damages caused by the inaccessibility of one tract from the other. (b) The department may negotiate for and purchase the severed real property or either part of the severed real property if the department and the owner agree on terms for the purchase. Instead of a single fixed payment for the real property, the department may agree to a payment to the owner in the form of: (1) an intangible legal right to receive a percentage of identified revenue attributable to the applicable segment of the project; or (2) an exclusive or nonexclusive right to use or operate a segment or part of the project. (c) A right to a payment under Subsection (b)(1) is senior to any pledge of the revenue under the term of a trust agreement securing bonds issued for the project. SECTION 7. Section 203.051, Transportation Code, is amended to read as follows: Section 203.051. ACQUISITION OF PROPERTY AUTHORIZED. (a) The commission may acquire by purchase, on terms and conditions the commission considers proper or by the exercise of eminent domain, in the name of the state: (1) an interest in real property; (2) any property rights, including: (A) a right of ingress or egress; and (B) a reservation right in real property that restricts or prohibits for not more than seven years the: (i) addition of a new improvement on the real property; (ii) addition to or modification of an existing improvement on the real property; or (iii) subdivision of the real property; and (3) timber, earth, stone, gravel, or other material. (b) Chapter 21, Property Code, applies to an acquisition by eminent domain. (c) The department may condemn the fee or a lesser interest in the property. (d) The department shall, in a statement or petition in condemnation, exclude from the interest to be condemned all the water, oil, gas, and sulphur that can be removed from beneath the real property. This exclusion shall be made without providing the owner of the water, oil, gas, or sulphur any right of ingress or egress to or from the surface of the land to explore, develop, drill, or mine the real property. (e) Subsection (a) does not authorize the commission to condemn property that is used and dedicated for cemetery purposes under Subtitle C, Title 8, Health and Safety Code. SECTION 8. Section 227.022, Transportation Code, is amended to read as follows: Sec. 227.022. PARTICIPATION BY OTHER ENTITIES. (a) A toll or non-toll highway on the Trans-Texas Corridor that is constructed or operated by another entity shall be part of the state highway system. This subsection applies even if the entity constructing or operating the highway is not independently authorized to construct or operate a highway that is part of the state highway system. (b) If the department authorizes another governmental entity to construct or operate a facility on the Trans-Texas Corridor, that entity has each power of the department under this chapter with respect to that facility, including the right to collect fees, except that: (1) any property acquired by the entity shall be held in the name of the state; and (2) the entity may not file a declaration of taking and obtain early possession of real property, unless the entity is a regional mobility authority under Chapter 370. (c) If the department authorizes another governmental entity to construct or operate a facility on the Trans-Texas Corridor, that entity is liable for a claim relating to the Trans-Texas Corridor only to the extent that the department would be liable if it were constructing or operating the facility. (d) A governmental entity or political subdivision may not drill or operate a groundwater well, or lease the right to drill or operate a groundwater well, on the Trans-Texas Corridor. SECTION 9. Section 227.023, Transportation Code is amended to read as follows: Sec. 227.023. PARTICIPATION BY PRIVATE ENTITIES. (a) To the maximum extent practical and economical, the department shall encourage the participation of private entities in the planning, design, construction, and operation of facilities. (b) The department shall contract with a private entity to operate a railroad using rail facilities owned by the department and may not use department employees to operate a railroad. The department may maintain a rail facility directly or through a private entity. (c) To the extent and in the manner that the department may enter into comprehensive development agreements under Chapter 361 with regard to turnpikes, the department may enter into comprehensive development agreements under this chapter with regard to facilities on the Trans-Texas Corridor. All provisions of Chapter 361 relating to comprehensive development agreements for turnpikes apply to comprehensive development agreements for facilities under this chapter, including provisions relating to the confidentiality of information. Claims arising under a comprehensive development agreement are subject to Section 201.112. (d) A private entity may not drill or operate a groundwater well, or lease to right to drill or operate a groundwater well on the Trans-Texas Corridor. SECTION 10. Section 227.028, Transportation Code, is amended to read as follows: Sec. 227.028. ENVIRONMENTAL MITIGATION. (a) The department may acquire, maintain, hold, restore, enhance, develop, or redevelop property for the purpose of mitigating a past, present, or future adverse environmental effect arising from the construction or operation of any part of the Trans-Texas Corridor without regard to whether the need for mitigation is established for a particular project. (b) The department may contract with a governmental or private entity, to maintain, control, hold, restore, enhance, develop, or redevelop property for the mitigation of a past, present, or future adverse environmental effect arising from the construction or operation of any part of the Trans-Texas Corridor without regard to whether the need for mitigation has already been established for a particular project. (c) If authorized by the applicable regulatory authority, the department may pay a sum of money to an appropriate governmental or private entity instead of acquiring or managing property for the mitigation of a past, present, or future adverse environmental effect arising from construction or operation of any part of the Trans-Texas Corridor without regard to whether the need for mitigation has already been established for a particular project. (d) If authorized by the applicable regulatory authority, the department shall purchase a conservation easement from an owner of real property instead of acquiring or condemning the property for the mitigation of past, present, or future adverse environmental effect arising from construction or operation of any part of the Trans-Texas Corridor without regard to whether the need for mitigation has already been established for a particular project. SECTION 11. Section 227.042, Transportation Code is amended to read as follows: Sec. 227.042. CORRIDOR PARTICIPATION PAYMENT FOR REAL PROPERTY. (a) The department, when acquiring real property under this chapter, shall offer the owner of the real property the option to receive as compensation: (1) a single fixed payment, (2) a corridor participation payment, or (3) a combination of (a)(1) and (a)(2) [As an alternative to paying for an interest in real property or a real property right with a single fixed payment, the department may, with the owner's consent, pay the owner by means of a corridor participation payment]. (b) A right to receive a corridor participation payment under this section is senior [subordinate] to any right to receive a fee as payment on the principal of or interest on a bond that is issued for the construction of the applicable segment of the Trans-Texas Corridor. (c) In this section, "corridor participation payment" means an intangible legal right to receive a percentage of one or more identified fees related to a segment of the Trans-Texas Corridor for a fixed or indefinite term. SECTION 12. Subchapter D, Chapter 227, Transportation Code is amended by adding Section 227.0421 to read as follows: Sec. 227.0421. COMPENSATION OR DAMAGES FOR ANCILLARY FACILITIES. (a) If an ancillary facility is located on real property acquired for the corridor, the entity acquiring the real property under this chapter shall offer the owner of the real property the following options for compensation: (1) a single fixed payment; or (2) an intangible legal right to receive a percentage of identified lease revenue attributable to the ancillary facility for a fixed or indefinite term; or (3) a combination of (a)(1) and (a)(2). (b) if an ancillary facility is located on real property condemned for the corridor, the special commissioners shall offer the owner of the real property the option of being compensated for damages under Subsection (a)(1), (a)(2), or (a)(3). (c) Notwithstanding Section 370.114, a right to receive a payment under subsection (a)(2) is senior to any right to receive a fee as payment on the principal of or interest on a bond that is issued for the construction of the applicable segment of the Trans-Texas Corridor. SECTION 13. Subchapter D, Chapter 227, Transportation Code, is amended by adding Sections 227.047 to read as follows: Sec. 227.047. SEVERANCE OF REAL PROPERTY. (a) If a Corridor project severs an owner's real property, the department shall pay: (1) the value of the property acquired; and (2) the damages to the remainder of the owner's property caused by the severance, including damages caused by the inaccessibility of one tract from the other. (b) The department may negotiate for and purchase the severed real property or either part of the severed real property if the department and the owner agree on terms for the purchase. Instead of a single fixed payment for the real property, the department may agree to a payment to the owner in the form of: (1) an intangible legal right to receive a percentage of identified revenue attributable to the applicable segment of the Corridor; or (2) an exclusive or nonexclusive right to use or operate a segment or part of the Corridor project. (c) A right to a payment under Subsection (b)(1) is senior to any pledge of the revenue under the term of a trust agreement securing bonds issued for the project. SECTION 14. Section 361.132, Transportation Code, is amended by adding Subsections (g) and (h) to read as follows: Sec. 361.132. ACQUISITION OF PROPERTY. (a) The department may acquire, in the name of the state, public or private real property it determines necessary or convenient for the construction, expansion, enlargement, extension, improvement, or operation of a turnpike project or for otherwise carrying out this chapter. (b) The real property the department may acquire under this subchapter includes: (1) public parks, playgrounds, or reservations; (2) parts of or rights in public parks, playgrounds, or reservations; (3) rights-of-way; (4) property rights, including: (A) a right of ingress or egress; and (B) a reservation right in real property that restricts or prohibits for not more than seven years the: (i) addition of a new improvement on the real property; (ii) addition to or modification of an existing improvement on the real property; or (iii) subdivision of the real property; (5) franchises; (6) easements; and (7) other interests in real property. (c) The department may acquire the real property by any method, including purchase and condemnation. The department may purchase public or private real property on the terms and at the price the department and the owner consider reasonable. (d) Property necessary or convenient for the construction or operation of a turnpike project under Subsection (a) includes an interest in real property, a property right, or materials that the department determines are necessary or convenient to: (1) protect a turnpike project; (2) drain a turnpike project; (3) divert a stream, river, or other watercourse from the right-of-way of a turnpike project; (4) store materials or equipment used in the construction or maintenance of a turnpike project; (5) provide a location for an ancillary facility that generates revenue for use in the construction, maintenance, or operation of a turnpike project, including a gas station, garage, store, hotel, or restaurant; (6) construct or operate a warehouse, toll house, toll plaza, service station, or other facility used in connection with the construction, maintenance, or operation of a turnpike project; (7) lay out, construct, or maintain a roadside park; (8) lay out, construct, or maintain a parking lot that will contribute to the maximum use of a turnpike project with the least possible congestion; (9) mitigate an adverse environmental effect that directly results from the construction or maintenance of a turnpike project; or (10) accomplish any other purpose related to the location, construction, improvement, maintenance, beautification, preservation, or operation of a turnpike project. (e) The department shall comply with all relocation assistance procedures applicable to the department in connection with any displacement of owners or tenants as a consequence of the department's acquisition of real property under this chapter. (f) The department may acquire timber, earth, stone, gravel, or other materials as necessary to carry out a purpose under this chapter. (g) The department may not drill or operate a groundwater well, or lease the right to drill or operate a groundwater well on a turnpike project. (h) If authorized by the applicable regulatory authority, the department shall purchase a conservation easement from an owner of real property instead of acquiring or condemning the property to mitigate an adverse environmental effect that directly results from the construction or maintenance of a turnpike project. SECTION 15. Section 361.136, Transportation Code, is amended to read as follows: Section 361.136. SEVERANCE OF REAL PROPERTY. (a) If a turnpike project severs an owner's real property, the department shall pay: (1) the value of the property acquired; and (2) the damages to the remainder of the owner's property caused by the severance, including damages caused by the inaccessibility of one tract from the other. (b) The department may negotiate for and purchase the severed real property or either part of the severed real property if the department and the owner agree on terms for the purchase. Instead of a single fixed payment for the real property, the department may agree to a payment to the owner in the form of: (1) an intangible legal right to receive a percentage of identified revenue attributable to the applicable segment of the turnpike project; or (2) an exclusive or nonexclusive right to use or operate a segment or part of the turnpike project. (c) Notwithstanding Section 361.1752, a [A] right to a payment under Subsection (b)(1) is senior [subject] to any pledge of the revenue under the term of a trust agreement securing bonds issued for the project. SECTION 16. Section 361.137, Transportation Code, is amended to read as follows: Sec. 361.137. DECLARATION OF TAKING. (a) The department may file a declaration of taking with the clerk of the court: (1) in which the department files a condemnation petition under Chapter 21, Property Code; or (2) to which the case is assigned. (b) The department may file the declaration of taking concurrently with or subsequent to the petition but may not file the declaration after the special commissioners have made an award in the condemnation proceeding. (c) The department may not file a declaration of taking before the completion of: (1) all environmental documentation, including a final environmental impact statement or a record of decision, that is required by federal or state law; (2) all public hearings and meetings, including those held in connection with the environmental process and under Sections 201.604 and 203.021, that are required by federal or state law; and (3) all notifications required by Section 203.022. (d) The declaration of taking must include: (1) a specific reference to the legislative authority for the condemnation; (2) a description and plot plan of the real property to be condemned, including the following information if applicable: (A) the municipality in which the property is located; (B) the street address of the property; and (C) the lot and block number of the property; (3) a statement of the property interest to be condemned; (4) the name and address of each property owner that the department can obtain after reasonable investigation and a description of the owner's interest in the property; and (5) a statement that immediate possession of all or part of the property to be condemned is necessary for the timely construction of a turnpike project, and the need resulted from circumstances beyond the control of the authority. (d-1) A deposit to the registry of the court of an amount equal to the appraised value, as determined by the department, of the property to be condemned must accompany the declaration of taking. (e) The date on which the declaration is filed is the date of taking for the purpose of assessing damages to which a property owner is entitled. (f) After a declaration of taking is filed, the case shall proceed as any other case in eminent domain under Chapter 21, Property Code. (g) A taking under this section shall give rise to compensable damages for early possession, which shall be assessed by the special commissioners impaneled under Chapter 21, Property Code. SECTION 17. Chapter 361, Transportation Code, is amended by adding Sections 361.143 and 361.144 to read as follows: Sec. 361.143. PARTICIPATION PAYMENT FOR REAL PROPERTY (a) The department, when acquiring real property under this chapter, shall offer the owner of the real property the option to receive as compensation: (1) a single fixed payment, (2) a participation payment, or (3) a combination of (a)(1) and (a)(2). (b) Notwithstanding Section 361.1752, a right to receive a participation payment under this section is senior to any pledge of the revenue under the terms of a trust agreement securing bonds issued for the project. (c) In this section, "participation payment" means an intangible legal right to receive a percentage of one or more identified fees related to a segment of the turnpike project for a fixed or indefinite term. Sec. 361.144. COMPENSATION OR DAMAGES FOR ANCILLARY FACILITIES. (a) If an ancillary facility is located on real property acquired for the corridor, the entity acquiring the real property under this chapter shall offer the owner of the real property the following options for compensation: (1) a single fixed payment; or (2) an intangible legal right to receive a percentage of identified lease revenue attributable to the ancillary facility for a fixed or indefinite term; or (3) a combination of (a)(1) and (a)(2). (b) If an ancillary facility is located on real property condemned for the corridor, the special commissioners shall offer the owner of the real property the option of being compensated for damages under Subsection (a)(1), (a)(2), or (a)(3). (c) Notwithstanding section 361.1752, a right to receive a payment under this section is senior to any pledge of the revenue under the terms of a trust agreement securing bonds issued for the project. SECTION 18. Subchapter E, Chapter 370, Transportation Code is amended by adding Section 370.1631 to read as follows: Sec. 370.1631. COMPENSATION OR DAMAGES FOR ANCILLARY FACILITIES. (a) If an ancillary facility is located on real property acquired for the corridor, the entity acquiring the real property under this chapter shall offer the owner of the real property the following options for compensation: (1) a single fixed payment; or (2) an intangible legal right to receive a percentage of identified lease revenue attributable to the ancillary facility for a fixed or indefinite term; or (3) a combination of (a)(1) and (a)(2). (b) If an ancillary facility is located on real property condemned for the corridor, the special commissioners shall offer the owner of the real property the option of being compensated for damages under Subsection (a)(1), (a)(2), or (a)(3). (c) Notwithstanding section 370.114, a right to receive a payment under this section is senior to any pledge of the revenue under the terms of a trust agreement securing bonds issued for the project. SECTION 19. Section 370.164, Transportation Code, is amended to read as follows: Section 370.164. DECLARATION OF TAKING. (a) An authority may file a declaration of taking with the clerk of the court: (1) in which the authority files a condemnation petition under Chapter 21, Property Code; or (2) to which the case is assigned. (b) An authority may file the declaration of taking concurrently with or subsequent to the filing of the condemnation petition but may not file the declaration after the special commissioners have made an award in the condemnation proceeding. (c) An authority may not file a declaration of taking before the completion of all: (1) environmental documentation, including a final environmental impact statement or a record of decision, that is required by federal or state law; (2) public hearings and meetings, including those held in connection with the environmental rules adopted by the authority under Section 370.188, that are required by federal or state law; and (3) notifications required by the rules adopted by the authority under Section 370.188. (d) The declaration of taking must include: (1) a specific reference to the legislative authority for the condemnation; (2) a description and plot plan of the real property to be condemned, including the following information if applicable: (A) the municipality in which the property is located; (B) the street address of the property; and (C) the lot and block number of the property; (3) a statement of the property interest to be condemned; (4) the name and address of each property owner that the authority can obtain after reasonable investigation and a description of the owner's interest in the property; and (5) a statement that immediate possession of all or part of the property to be condemned is necessary for the timely construction of a transportation project, and the need resulted from circumstances beyond the control of the authority. (e) A deposit to the registry of the court of an amount equal to the appraised value as determined by the authority of the property to be condemned must accompany the declaration of taking. (f) The date on which the declaration is filed is the date of taking for the purpose of assessing damages under Chapter 21, Property Code. (g) After a declaration of taking is filed, the case shall proceed as any other case in eminent domain under Chapter 21, Property Code. (h) A taking under this section shall give rise to compensable damages for early possession, which shall be assessed by the special commissioners impaneled under Chapter 21, Property Code. SECTION 20. Section 370.166, Transportation Code, is amended to read as follows: Section 370.166. PARTICIPATION PAYMENT FOR REAL PROPERTY. (a) The authority, when acquiring real property under this chapter, shall offer the owner of the real property the option to receive as compensation: (1) a single fixed payment, (2) a participation payment, or (3) a combination of (a)(1) and (a)(2) [As an alternative to paying for an interest in real property or a real property right with a single fixed payment, the authority may, with the owner's consent, pay the owner by means of a participation payment]. (b) Notwithstanding Section 370.114, a [A] right to receive a participation payment under this section is senior [subordinate] to any right to receive a fee as payment on the principal of or interest on a bond that is issued for the construction of the applicable segment. (c) In this section, "participation payment" means an intangible legal right to receive a percentage of one or more identified fees related to a segment constructed by the authority for a fixed or indefinite period. SECTION 21. Section 370.167, Transportation Code, is amended to read as follows: Section 370.167. SEVERANCE OF REAL PROPERTY. (a) If a transportation project of an authority severs a property owner's real property, the authority shall pay: (1) the value of the property acquired; and (2) the damages, if any, to the remainder of the owner's property caused by the severance, including damages caused by the inaccessibility of one tract from the other. (b) At its option, an authority may negotiate for and purchase the severed real property or any part of the severed real property if the authority and the property owner agree on terms for the purchase. Instead of a single fixed payment for the real property, the authority may agree to a payment to the owner in the form of: (1) an intangible legal right to receive a percentage of identified revenue attributable to the applicable segment of the project of an authority; or (2) an exclusive or nonexclusive right to use or operate a segment or part of the transportation project. (c) Notwithstanding Section 370.114, a right to a payment under this section is senior to any pledge of the revenue under the terms of a trust agreement securing bonds issued for the project. (d) An authority may sell and dispose of severed real property that it determines is not necessary or useful to the authority. Severed property must be appraised before being offered for sale by the authority. SECTION 22. This Act takes effect September 1, 2005.