80R13641 JTS-F

By: Hilderbran H.B. No. 1697

Substitute the following for H.B. No. 1697:

By: Hilderbran C.S.H.B. No. 1697

A BILL TO BE ENTITLED

AN ACT

relating to the protection of real property used as open space or for another similar purpose.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter A, Chapter 183, Natural Resources Code, is amended by adding Section 183.006 to read as follows:

Sec. 183.006. PROTECTION OF CERTAIN OPEN SPACE PROPERTY. (a) In this section, "municipality" means only a home-rule municipality that owns both a water utility and an electric utility, each of which is governed by a board of trustees that is not composed exclusively of members of the municipality's governing body, and includes a department or agency of the municipality.

(b) This section applies only to:

(1) real property subject to a conservation easement evidenced by an instrument dated on or after January 1, 1996, if the easement was acquired by or transferred to a municipality or to a nonprofit entity acting for the municipality for the purpose of establishing or preserving:

(A) a park;

(B) an open space;

(C) a natural area;

(D) a wildlife conservation area;

(E) a public recreation area; or

(F) a nature preserve; and

(2) real property acquired by a municipality with money collected from the imposition of a tax approved at an election under Chapter 334, Local Government Code, for the purpose of acquiring:

(A) open space;

(B) park property; or

(C) an area related to the protection of a natural resource.

(c) Except as provided by Subsection (d) or (k), a municipality or a nonprofit organization acting for the municipality may not use, or authorize the use of, real property for the construction, erection, or operation of a building, facility, utility project, or other item of infrastructure unless that building, facility, utility project, or other item of infrastructure is to be used only for a purpose directly related to the operation of the real property as a park, open space, natural area, wildlife conservation area, public recreation area, or nature preserve.

(d) If the terms of an original conservation easement expressly authorize the construction or operation of a building, facility, utility project, or other item of infrastructure, this section does not prohibit the construction or operation of the building, facility, utility project, or other item of infrastructure.

(e) An action to enforce this section may be brought by:

(1) a person described by Section 183.003(a); or

(2) a taxpayer of the municipality.

(f) Sovereign immunity to suit and to liability is waived for a suit to enforce this section or the terms of a conservation easement subject to this section.

(g) A suit to enforce this section may be brought for:

(1) injunctive relief, mandamus, declaratory judgment, or specific performance; and

(2) damages caused by an action in violation of this section.

(h) A plaintiff who prevails in an action brought to enforce this section is entitled to reasonable attorney's fees, costs of court, and expenses directly related to the litigation required for the enforcement of this section.

(i) A plaintiff described by Section 183.003(a)(1) who prevails in an action under this section is entitled to:

(1) damages in an amount equal to the cost of restoring the real property to its condition before the violation; or

(2) an injunction requiring the municipality to restore the real property to its condition before the violation at the municipality's expense.

(j) To the extent that this section is in conflict with any other provision of state law or a municipal ordinance, this section controls.

(k) This section does not prohibit the use of real property:

(1) under the terms of a mineral lease applicable to the property; or

(2) by a gas utility, common carrier, or energy transporter, as those terms are defined by Section 186.051, Utilities Code, other than a municipally owned utility.

SECTION 2. 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, 2007.