By: Jackson S.B. No. 1273
(In the Senate - Filed March 9, 2005; March 21, 2005, read
first time and referred to Subcommittee on Agriculture and Coastal
Resources; April 7, 2005, reported adversely, with favorable
Committee Substitute to Committee on Natural Resources;
April 18, 2005, reported adversely, with favorable Committee
Substitute from Committee on Natural Resources by the following
vote: Yeas 9, Nays 0; April 18, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1273 By: Jackson
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of the Texas Farmland and Ranchland
Conservation Program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Agriculture Code, is amended by adding
Chapter 59A to read as follows:
CHAPTER 59A. TEXAS FARMLAND AND RANCHLAND CONSERVATION PROGRAM
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 59A.001. DEFINITIONS. In this chapter:
(1) "Agricultural conservation easement" means a
conservation easement as that term is defined by Section 183.001,
Natural Resources Code, except that an agricultural conservation
easement established under this chapter for the specific purpose of
conserving qualified land may be in perpetuity or for a term of 30
years.
(2) "Council" means the 13-member Texas Farmland and
Ranchland Conservation Council.
(3) "Fund" means the Texas farmland and ranchland
conservation fund.
(4) "Holder" has the meaning assigned by Section
183.001, Natural Resources Code.
(5) "Program" means the Texas Farmland and Ranchland
Conservation Program.
(6) "Qualified land" means qualified open-space land
as that term is defined by Section 23.51, Tax Code.
(7) "Qualified landowner" means a person that owns
qualified land.
Sec. 59A.002. EASEMENT TERMS; PURPOSES. (a) An
agricultural conservation easement under this chapter must be
voluntarily agreed to by the qualified landowner and may not be
assigned to or enforced by a third party, except the council,
without the express written consent of the qualified landowner.
(b) An agricultural conservation easement under this
chapter must accomplish the purpose of conservation of natural
resources on qualified land and at least one of the following
additional purposes:
(1) the conservation of water quality or quantity;
(2) the conservation of native wildlife species
through the protection of their habitat;
(3) the conservation of rare or sensitive plant
species; or
(4) the conservation of tracts of qualified land that
are threatened with fragmentation or development.
(c) The instrument granting an agricultural conservation
easement purchased with funds provided under this chapter must
include a provision that gives the council the right to enforce the
terms of the easement.
(d) An agricultural conservation easement purchased with
funds provided under this chapter may provide for collateral,
guaranties, insurance, surety bonds, or other enhancements in a
form and amount sufficient to repay all grant funds provided by the
council if the terms of the agricultural conservation easement are
breached. The council shall determine whether the form and amount
of any enhancement provided under this subsection is sufficient.
Sec. 59A.003. VENUE. A suit filed by or on behalf of the
council under this chapter may be brought in Travis County.
[Sections 59A.004-59A.050 reserved for expansion]
SUBCHAPTER B. OPERATION OF COUNCIL
Sec. 59A.051. TEXAS FARMLAND AND RANCHLAND CONSERVATION
COUNCIL. (a) The council is composed of:
(1) three members who are actively engaged in the
production of agriculture in the state;
(2) one landowning member who is the designated
representative of a statewide nonprofit conservation organization
that is exempt from taxation under Section 501(c)(3), Internal
Revenue Code of 1986, and that has been in existence in this state
for at least 10 years;
(3) one member who is the designated representative of
an agricultural banking or lending organization;
(4) one nonvoting member who is the director of the
Real Estate Center of Texas A&M University or the director's
designee;
(5) two members who are the designated representatives
of statewide agricultural organizations that have been in existence
in this state for at least 10 years;
(6) one member who has significant experience with
water policy and water management issues;
(7) one member who is a member in good standing of the
State Bar of Texas and who has significant experience in the
practice of real estate law;
(8) the commissioner or the commissioner's designee;
(9) one nonvoting member who is the state
conservationist of the United States Department of Agriculture's
Natural Resources Conservation Service or that person's designee;
and
(10) the chairman of the Parks and Wildlife Commission
or that person's designee.
(b) Members are appointed by the governor, except for the
commissioner, the state conservationist, the director of the Real
Estate Center of Texas A&M University, and the chairman of the Parks
and Wildlife Commission.
(c) Appointed members of the council serve staggered terms
of six years, with one-third of the appointed members' terms
expiring February 1 of each odd-numbered year.
(d) Appointments to the council shall be made without regard
to the race, color, disability, sex, religion, age, or national
origin of the appointees.
(e) A council member is not entitled to compensation for
serving on the council and is not entitled to reimbursement for
expenses incurred in performing the official duties of office.
Sec. 59A.052. OFFICERS. (a) The governor shall designate
a member of the council as the chair of the council to serve in that
capacity at the pleasure of the governor. The council shall elect a
vice-chairman biennially from its members and shall elect a
secretary, a treasurer, and other officers it considers necessary.
(b) The chair shall preside at meetings of the council and
perform other duties prescribed by the council.
(c) The vice-chair shall perform the duties of the chair
when the chair is not present or is incapacitated or unable to
perform the duties of the chair.
(d) The secretary is the custodian of the minutes, books,
records, and seal of the council and shall perform other duties as
prescribed by the council.
(e) The treasurer shall perform duties as prescribed by the
council. The offices of secretary and treasurer may be held by the
same individual.
(f) The council may appoint one or more individuals who are
not council members to perform any duty of the secretary or the
treasurer.
Sec. 59A.053. MEETINGS; ADMINISTRATIVE PROCEDURE.
(a) The council shall hold regular and special meetings at times
specified by the chair.
(b) A majority of the voting membership of the council
constitutes a quorum. The council shall act by adopting
resolutions. The affirmative vote of a majority of the voting
members present is necessary to adopt a resolution.
(c) The council shall develop and implement policies that
provide the public with a reasonable opportunity to appear before
the council and to speak on any issue under the jurisdiction of the
council.
(d) The council is subject to Chapters 551 and 2001,
Government Code.
Sec. 59A.054. ADMINISTRATION. (a) The commissioner, with
the assistance of the council, shall administer the program. If
funds are available, the council shall reimburse the department for
expenses incurred by the department as required by the business of
the council with approval from the council.
(b) The commissioner may, with the approval of the council,
appoint, employ, contract with, and provide for the compensation of
employees, consultants, and other persons to administer the
program.
Sec. 59A.055. FISCAL ACCOUNTING OF ADMINISTRATION.
(a) Funds acquired under this chapter may be used to pay the
reasonable cost of administering this chapter. This section is not
applicable unless the council receives funds necessary to operate
the program as provided by Section 59A.151(c).
(b) Not later than August 1 of each year, the department
shall file with the council the proposed annual budget for the
program for the succeeding fiscal year. The budget must set forth
the general categories of expected expenditures out of revenues and
income of the funds administered by the council and the amount on
account of each expenditure. Not later than September 1 of each
year, the council shall consider the proposed annual budget and may
approve or amend it. Copies of the annual budget certified by the
chair shall be promptly filed with the governor and the Legislative
Budget Board. The council may adopt an amended annual budget for
the current fiscal year, but the amended annual budget may not
supersede a prior budget until it is filed with the governor and the
Legislative Budget Board.
(c) The council shall have an audit of its books and
accounts for each fiscal year conducted by a certified public
accountant. The cost of the audit is an expense of the council. A
copy of the audit shall be filed with the governor and the
Legislative Budget Board not later than January 1 of each year.
(d) The council members and the department are not liable
for contracts executed by the council and shall be exculpated and
fully indemnified by the council except in the case of fraudulent or
wilful misconduct on the part of the individual seeking exculpation
or indemnification.
Sec. 59A.056. COUNCIL CONFLICT OF INTEREST. (a) In this
section, "Texas trade association" means a cooperative and
voluntarily joined statewide association of business or
professional competitors in this state designed to assist its
members and its industry or profession in dealing with mutual
business or professional problems and in promoting their common
interest.
(b) A person may not be an appointed member of the council
if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association or a land trust; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association or a land trust.
(c) A person may not be an appointed council member or act as
the general counsel to the council if the person is required to
register as a lobbyist under Chapter 305, Government Code, because
of the person's activities for compensation on behalf of an
occupation or profession with an interest in land conservation that
is related to that occupation or profession.
(d) A council member shall recuse himself or herself from
any action taken by the council on an application involving a holder
that employs the council member or for which the council member
serves as an officer, director, or elected official. A holder
remains eligible to use the program if a council member properly
recuses himself or herself in accordance with this section.
Sec. 59A.057. REMOVAL OF COUNCIL MEMBER. (a) It is a
ground for removal from the council that an appointed member:
(1) is ineligible for membership under Section
59A.056(c);
(2) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(3) is absent from more than half of the regularly
scheduled council meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the council.
(b) The validity of an action of the council is not affected
by the fact that it is taken when a ground for removal of a council
member exists.
(c) The presiding officer shall notify the governor and the
attorney general if the presiding officer has knowledge that a
potential ground for removal exists.
Sec. 59A.058. STANDARDS OF CONDUCT. The chair or the
chair's designee shall provide to members of the council, as often
as necessary, information regarding their qualification for office
under this chapter and their responsibilities under applicable laws
relating to standards of conduct for state officers.
Sec. 59A.059. SEPARATION OF RESPONSIBILITIES. The council
shall develop and implement policies that clearly separate the
policymaking responsibilities of the council and the management
responsibilities of the commissioner and the staff of the
department.
Sec. 59A.060. COUNCIL MEMBER TRAINING. (a) A person who
is appointed to and qualifies for office as a member of the council
may not vote, deliberate, or be counted as a member in attendance at
a meeting of the council until the person completes a training
program that complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the council;
(2) the program;
(3) the role and functions of the council;
(4) the rules of the council, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the council;
(6) the results of the most recent formal audit of the
council;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
council or the Texas Ethics Commission.
Sec. 59A.061. COMPLAINTS. (a) The council shall maintain
a file containing each written complaint filed with the council.
The file must also include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the council;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the department closed the file without taking action other than
to investigate the claim.
(b) The council shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the council's policies and procedures relating to complaint
investigation and resolution.
(c) Complaints filed under this section are confidential
and excepted from disclosure under Chapter 552, Government Code.
[Sections 59A.062-59A.100 reserved for expansion]
SUBCHAPTER C. PURPOSES AND POWERS OF THE COUNCIL
Sec. 59A.101. PURPOSES OF COUNCIL. The council shall
design and implement programs to provide financial incentives for
the conservation of natural resources on qualified land through the
use of purchased or donated agricultural conservation easements.
Sec. 59A.102. POWERS OF THE COUNCIL. The council has all
the powers necessary to accomplish the purposes and programs of the
council, including the power:
(1) to adopt and enforce bylaws, rules, and procedures
and to perform all functions necessary to carry out this chapter;
(2) to sue and be sued, complain, and defend in its own
name;
(3) to adopt and use an official seal and alter it when
considered advisable;
(4) to establish, charge, and collect fees, charges,
and penalties in connection with the programs, services, and
activities provided by the council in accordance with this chapter;
(5) to make, enter into, and enforce contracts and
agreements;
(6) to request, accept, and use gifts, loans,
donations, aid, guaranties, appropriations, allocations,
subsidies, grants, or contributions of any item of value for the
furtherance of any of the council's purposes;
(7) to seek ways to coordinate and leverage public and
private sources of funding;
(8) to adopt a policy for the monitoring by holders of
agricultural conservation easements purchased through grants from
the fund that is consistent with the requirements of any entity that
provides funds used to purchase an agricultural conservation
easement;
(9) to monitor holders of the agricultural
conservation easements;
(10) to create an advisory board for the purpose of
reviewing grant applications, if necessary;
(11) to establish a protocol for the purchase of
agricultural conservation easements under the program;
(12) to evaluate selection and eligibility of
applicants based on criteria established by this chapter and
administer grants awarded to successful applicants;
(13) to determine which qualified landowners receive
program funds;
(14) to ensure that agricultural conservation
easements purchased under this chapter are consistent with the
continuation of agricultural activities and the preservation of
open space;
(15) to develop and require disclosure statements to
be signed by the owner of qualified land and the holder before the
sale of an agricultural conservation easement;
(16) to enforce the terms of any agricultural
conservation easement purchased in whole or in part with funds
under this chapter; and
(17) to adopt a standard agreement to be used between a
holder and a qualified landowner for the purpose of creating an
agricultural conservation easement on qualified land.
[Sections 59A.103-59A.150 reserved for expansion]
SUBCHAPTER D. PROGRAM; FUND
Sec. 59A.151. CREATION OF PROGRAM; PUBLIC PURPOSE.
(a) The Texas Farmland and Ranchland Conservation Program is
created within the department.
(b) The purpose of this chapter is to provide financial
incentives for the conservation of natural resources on qualified
land through the use of agricultural conservation easements that
are purchased from a willing qualified landowner or donated by the
qualified landowner.
(c) Administration of the program by the department is
subject to the availability of financial resources.
Sec. 59A.152. PROGRAM RULES. (a) The department shall
adopt rules to establish criteria for determining which eligible
projects receive program funds and to establish an application
process. The rules must provide for the evaluation of project
applications using the following considerations and criteria:
(1) landscape and watershed integrity to conserve
water and natural resources;
(2) productivity of the agricultural lands;
(3) habitats for native species, including habitats
for important, endangered, threatened, rare, or sensitive species;
(4) susceptibility of the subject property to
fragmentation or development;
(5) potential for leveraging state money allocated to
the program with additional public or private money;
(6) proximity of the subject property to other
protected lands;
(7) whether the proposed agricultural conservation
easement is perpetual or for a term of years; and
(8) whether the application includes a resource
management plan agreed to by both parties and approved by the
council.
(b) The department shall adopt rules that provide that the
qualified landowner and the potential purchaser of the agricultural
conservation easement shall consider and negotiate the terms of the
agricultural conservation easement, including:
(1) whether the purchase price of the agricultural
conservation easement will be paid to the qualified landowner in a
lump sum or in annual or monthly payments;
(2) whether the agricultural conservation easement
will be perpetual or for a term of 30 years;
(3) whether a term agricultural conservation easement
is renewable;
(4) whether the qualified landowner retains limited
development rights for personal or family residences on the land;
and
(5) the market value of the agricultural conservation
easement.
(c) The department shall adopt rules to establish a
procedure for the termination and repurchase of any agricultural
conservation easement purchased under this chapter.
(d) Anytime after the date an agricultural conservation
easement is acquired with a grant awarded under this chapter, the
landowner may request that the council terminate the easement on
the ground that the landowner is unable to meet the conservation
goals as described by this chapter on the subject land. The
termination request must contain a statement of impossibility
verified by the landowner, who shall deliver a copy of the request
to the easement holder. On receipt of the termination request, the
council shall conduct an inquiry and not later than the 180th day
after receipt of the request shall notify the parties of its
decision to grant or deny the request for termination. Either party
has 45 days to appeal the council's decision in district court.
Sec. 59A.153. TEXAS FARMLAND AND RANCHLAND CONSERVATION
FUND. (a) The Texas farmland and ranchland conservation fund is
an account in the state treasury dedicated to funding the purchase
of agricultural conservation easements through grants to holders
under this chapter. The account shall consist of:
(1) public or private grants, gifts, donations, or
contributions; or
(2) funds from any other source, including proceeds
from the sale of bonds, state or federal mitigation funds, or funds
from any local, state, or federal program.
(b) The fund may not be used to purchase or acquire any right
to property by eminent domain.
(c) The fund may be used to pay transaction costs related to
the purchase of agricultural conservation easements, which may
include reimbursement of appraisal costs. Program funds may not be
used for the monitoring of agricultural conservation easements by a
holder.
[Sections 59A.154-59A.200 reserved for expansion]
SUBCHAPTER E. PROTECTION OF CONSERVED LAND
Sec. 59A.201. PROTECTED LAND; NOTICE OF TAKING.
(a) Notwithstanding other law, a department or agency of this
state or a county, municipality, or other political subdivision of
this state may not approve a program or project that requires the
use or taking of any private land encumbered by an agricultural
conservation easement purchased under this chapter unless:
(1) the governmental entity has made a bona fide good
faith effort to examine alternatives to the use or taking of the
land and has determined that no feasible alternative exists;
(2) the program or project includes all reasonable
planning to minimize harm to the land resulting from the use or
taking;
(3) the governmental entity has made a bona fide good
faith effort to acquire the land by voluntary purchase or lease; and
(4) the governmental entity requires the land to
provide for the needs of the surrounding landowners.
(b) Notwithstanding other law, a finding required by
Subsection (a) may be made only at a public hearing:
(1) which is conducted in accordance with Chapter 551,
Government Code; and
(2) for which the governmental entity has provided
written notice to:
(A) the council;
(B) the qualified landowner;
(C) all landowners whose property is contiguous
to the qualified landowner's property; and
(D) all landowners within reasonable geographic
proximity to the agricultural conservation easement.
(c) Notwithstanding other law, if land encumbered by an
agricultural conservation easement purchased under this chapter is
condemned, the entity that condemns the land must compensate the
holder for the value of the development rights held by the holder.
The compensation must equal the value of the development rights
owned by the holder on the date of condemnation. Not later than the
30th day after the date the holder receives compensation under this
section, the holder must pay the council an amount equal to the
total compensation received by the holder multiplied by the
percentage of the original purchase price for the agricultural
conservation easement that was paid with program funds.
(d) Any compensation paid to a holder under this section is
held in trust for the benefit of the council until the holder has
remitted all funds owed to the council.
(e) Any compensation paid to a holder under this section is
in addition to compensation that must be paid to the qualified
landowner for the value of the land.
[Sections 59A.202-59A.250 reserved for expansion]
SUBCHAPTER F. EXPIRATION OF COUNCIL
Sec. 59A.251. SUNSET PROVISION. The council is subject to
Chapter 325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the council is abolished
and this chapter expires September 1, 2009.
SECTION 2. The Department of Agriculture shall adopt rules
required by Section 59A.152, Agriculture Code, as added by this
Act, as soon as practicable after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2005.
* * * * *