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A BILL TO BE ENTITLED
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AN ACT
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relating to eminent domain, including certain limitations, |
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procedures, and standards relating to the use of eminent domain. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 2206, Government Code, is amended to |
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read as follows: |
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CHAPTER 2206. [LIMITATIONS ON USE OF] EMINENT DOMAIN |
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SUBCHAPTER A. LIMITATION ON PURPOSE AND USE OF PROPERTY ACQUIRED |
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THROUGH EMINENT DOMAIN |
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Sec. 2206.001. LIMITATION ON EMINENT DOMAIN FOR PRIVATE |
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PARTIES OR ECONOMIC DEVELOPMENT PURPOSES. (a) This section |
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applies to the use of eminent domain under the laws of this state, |
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including a local or special law, by any governmental or private |
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entity, including: |
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(1) a state agency, including an institution of higher |
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education as defined by Section 61.003, Education Code; |
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(2) a political subdivision of this state; or |
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(3) a corporation created by a governmental entity to |
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act on behalf of the entity. |
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(b) A governmental or private entity may not take private |
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property through the use of eminent domain if the taking: |
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(1) confers a private benefit on a particular private |
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party through the use of the property; |
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(2) is for a public use that is merely a pretext to |
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confer a private benefit on a particular private party; or |
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(3) is for economic development purposes, unless the |
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economic development is a secondary purpose resulting from |
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municipal community development or municipal urban renewal |
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activities to eliminate an existing affirmative harm on society |
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from slum or blighted areas under: |
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(A) Chapter 373 or 374, Local Government Code, |
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other than an activity described by Section 373.002(b)(5), Local |
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Government Code; or |
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(B) Section 311.005(a)(1)(I), Tax Code. |
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(c) This section does not affect the authority of an entity |
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authorized by law to take private property through the use of |
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eminent domain for: |
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(1) transportation projects, including, but not |
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limited to, railroads, airports, or public roads or highways; |
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(2) entities authorized under Section 59, Article XVI, |
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Texas Constitution, including: |
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(A) port authorities; |
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(B) navigation districts; and |
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(C) any other conservation or reclamation |
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districts that act as ports; |
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(3) water supply, wastewater, flood control, and |
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drainage projects; |
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(4) public buildings, hospitals, and parks; |
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(5) the provision of utility services; |
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(6) a sports and community venue project approved by |
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voters at an election held on or before December 1, 2005, under |
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Chapter 334 or 335, Local Government Code; |
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(7) the operations of: |
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(A) a common carrier pipeline [subject to Chapter
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111, Natural Resources Code, and Section B(3)(b), Article 2.01,
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Texas Business Corporation Act]; or |
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(B) an energy transporter, as that term is |
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defined by Section 186.051, Utilities Code; |
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(8) a purpose authorized by Chapter 181, Utilities |
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Code; |
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(9) underground storage operations subject to Chapter |
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91, Natural Resources Code; |
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(10) a waste disposal project; or |
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(11) a library, museum, or related facility and any |
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infrastructure related to the facility. |
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(d) This section does not affect the authority of a |
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governmental entity to condemn a leasehold estate on property owned |
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by the governmental entity. |
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(e) The determination by the governmental or private entity |
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proposing to take the property that the taking does not involve an |
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act or circumstance prohibited by Subsection (b) does not create a |
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presumption with respect to whether the taking involves that act or |
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circumstance. |
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SUBCHAPTER B. AUTHORIZATION TO INITIATE EMINENT DOMAIN PROCEEDING |
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Sec. 2206.051. APPLICABILITY OF SUBCHAPTER. This |
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subchapter applies only to the use of eminent domain under the laws |
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of this state by a governmental entity. |
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Sec. 2206.052. VOTE ON USE OF EMINENT DOMAIN. (a) Before a |
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governmental entity initiates a condemnation proceeding by filing a |
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petition under Chapter 21, Property Code, the entity must authorize |
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the initiation of the condemnation proceedings at an open public |
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meeting by a record vote. Except as provided by Subsection (b), a |
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separate record vote must be taken for each unit of property for |
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which condemnation proceedings are to be initiated. |
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(b) For the purposes of Subsection (a), if two or more units |
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of real property are owned by the same person, the governmental |
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entity may treat those units of property as one unit of property. |
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(c) The motion to adopt an ordinance, resolution, or order |
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authorizing the initiation of condemnation proceedings under |
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Chapter 21, Property Code, must be made in a form substantially |
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similar to the following: "I move that the (name of governmental |
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entity) authorize the use of the power of eminent domain to acquire |
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(describe the property) for (describe the public use)." |
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SUBCHAPTER C. EXPIRATION OF CERTAIN EMINENT DOMAIN AUTHORITY |
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Sec. 2206.101. REPORT OF EMINENT DOMAIN AUTHORITY; |
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EXPIRATION OF AUTHORITY. (a) Not later than December 31, 2010, an |
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entity, including a private entity, authorized by the state by a |
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general or special law to exercise the power of eminent domain shall |
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submit to the comptroller of public accounts a letter stating that |
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the entity is authorized by the state to exercise the power of |
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eminent domain and identifying the provision or provisions of law |
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that grant the entity that authority. The entity must send the |
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letter by certified mail, return receipt requested. |
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(b) The authority of an entity to exercise the power of |
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eminent domain expires on September 1, 2011, unless the entity |
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submits a letter in accordance with Subsection (a). |
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(c) Not later than March 1, 2011, the comptroller shall |
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submit to the governor, the lieutenant governor, the speaker of the |
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house of representatives, the appropriate standing committees of |
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the senate and the house of representatives, and the Texas |
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Legislative Council a report that contains: |
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(1) the name of each entity that submitted a letter in |
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accordance with this section; and |
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(2) a corresponding list of the provisions granting |
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eminent domain authority as identified by each entity that |
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submitted a letter. |
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(d) The Texas Legislative Council shall prepare for |
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consideration by the 83rd Legislature, Regular Session, a |
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nonsubstantive revision of the statutes of this state as necessary |
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to reflect the state of the law after the expiration of an entity's |
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eminent domain authority effective under Subsection (b). |
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SECTION 2. Section 21.0111, Property Code, is amended to |
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read as follows: |
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Sec. 21.0111. DISCLOSURE OF CERTAIN INFORMATION REQUIRED; |
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INITIAL OFFER. (a) An [A governmental] entity with eminent domain |
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authority that wants to acquire real property for a public use |
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shall, by certified mail, return receipt requested, disclose to the |
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property owner at the time an offer to purchase or lease the |
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property is made any and all [existing] appraisal reports produced |
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or acquired by the [governmental] entity relating specifically to |
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the owner's property and used in determining the final valuation |
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offer. |
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(b) A property owner shall disclose to the [acquiring
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governmental] entity seeking to acquire the property any and all |
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current [existing] appraisal reports produced or acquired by the |
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property owner relating specifically to the owner's property and |
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used in determining the owner's opinion of value. Such disclosure |
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shall take place not later than the earlier of: |
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(1) the 10th day after the date of [within 10 days of] |
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receipt of an appraisal report; or |
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(2) the day before the date of a special commissioners |
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hearing if an existing appraisal report is to be used at the |
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hearing. |
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(c) The property owner's failure to obtain or disclose an |
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appraisal report as required by Subsection (b) does not affect the |
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authority of the special commissioners to admit other evidence |
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relating specifically to the owner's property [reports but no later
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than 10 days prior to the special commissioner's hearing]. |
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(d) The initial offer to purchase made by the entity must |
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also include: |
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(1) a copy of this section and Section 21.0114; |
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(2) a written estimate of: |
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(A) the fair market value of the property the |
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entity is offering to acquire; and |
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(B) the amount of damages to the property owner's |
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remaining property, if any, that will result from the acquisition; |
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and |
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(3) a statement that the property owner has a right to |
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make a written request to the entity for: |
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(A) an appraisal of the property, at the entity's |
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expense, in accordance with Section 21.0114; and |
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(B) certain information regarding transactions |
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involving the entity for nearby property the entity intends to use |
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for a similar purpose. |
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(e) A property owner may submit a written request to the |
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entity for each appraisal report completed, offer to purchase made, |
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and negotiated purchase price paid by the entity for property that |
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is wanted for a purpose that relates to the purpose for which the |
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entity seeks to acquire the property owner's property and: |
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(1) that is adjacent to the property owner's property; |
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(2) that is adjacent to property adjacent to the |
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property owner's property; or |
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(3) any point on the boundary of which is located one |
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mile or less from any point on the boundary of the property owner's |
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property. |
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(f) If, at the time the request under Subsection (e) is |
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made, a special commissioners hearing has been set regarding the |
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condemnation of the property, the request must be made not later |
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than the 15th day before the date set for the hearing. |
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(g) The entity shall make the disclosures required by |
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Subsection (e) in writing by certified mail, return receipt |
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requested, or by hand delivery to the property owner not later than |
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the earlier of: |
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(1) the 10th day after the date of the receipt of the |
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request; or |
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(2) the 10th day before the date of any scheduled |
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special commissioners hearing. |
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(h) The condemning entity shall supplement a disclosure |
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made under this section with any new information received by the |
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condemning entity that is required to be disclosed under this |
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section not later than the 10th day after the date the entity |
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receives the information. |
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(i) A subsequent bona fide purchaser for value from the |
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acquiring [governmental] entity may conclusively presume that the |
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requirement of this section has been met. This section does not |
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apply to acquisitions of real property for which an [a
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governmental] entity does not have eminent domain authority. |
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SECTION 3. Subchapter B, Chapter 21, Property Code, is |
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amended by adding Sections 21.0113, 21.0114, and 21.0115 to read as |
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follows: |
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Sec. 21.0113. FINAL OFFER. (a) An entity with eminent |
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domain authority that wants to acquire real property for a public |
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use shall provide to the property owner at least two written offers |
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proposing a purchase or lease of the property, as the entity |
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determines in good faith is appropriate in accordance with Section |
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21.0115. The last offer the entity intends to make to the property |
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owner shall be in writing and be designated on its face as the |
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entity's final offer. |
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(b) This section does not require the entity's initial offer |
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and final offer to differ in substance. |
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Sec. 21.0114. APPRAISAL REQUEST. (a) Subject to |
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Subsection (b), after a property owner receives an offer from an |
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entity with eminent domain authority proposing to acquire the |
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owner's property for a public use, but not later than the 20th day |
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after the date the property owner receives an offer designated as a |
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final offer under Section 21.0113, the property owner may, by |
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certified mail, return receipt requested, request that the entity |
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procure an appraisal report of the property produced and certified |
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by an independent and certified appraiser chosen by the property |
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owner. The entity shall pay the reasonable cost of the appraisal |
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report and provide the report to the property owner not later than |
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the 30th day after the date the entity receives a request under this |
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subsection. |
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(b) An entity is not required to provide more than one |
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appraisal report under this section. |
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Sec. 21.0115. GOOD FAITH NEGOTIATION REQUIRED. (a) Before |
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an entity with eminent domain authority may file a condemnation |
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petition under this chapter, the entity shall negotiate in good |
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faith to acquire the property through a voluntary purchase or lease |
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agreement. |
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(b) In determining whether an entity has negotiated in good |
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faith to acquire a property through a voluntary purchase or lease |
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agreement, the court shall consider: |
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(1) whether the entity has complied with applicable |
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disclosure provisions and procedural requirements, including |
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Sections 21.0111-21.0114; |
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(2) whether the entity has provided the property owner |
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with a written initial offer and a written final offer to acquire |
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the property; and |
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(3) whether an offer provided by the entity to the |
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property owner is a good faith offer that is not arbitrary or |
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capricious and is based on a reasonably thorough investigation and |
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honest assessment of the fair and reasonable compensation for |
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acquisition of the property. |
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(c) For purposes of this section, evidence that an entity |
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with eminent domain authority failed to disclose or provide |
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information required to be disclosed under Section 21.0111, |
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21.0112, or 21.0114 is prima facie evidence that the entity failed |
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to negotiate in good faith to acquire the property through a |
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voluntary purchase or lease agreement. |
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SECTION 4. Section 21.012, Property Code, is amended to |
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read as follows: |
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Sec. 21.012. CONDEMNATION PETITION. (a) If an entity [the
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United States, this state, a political subdivision of this state, a
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corporation] with eminent domain authority[, or an irrigation,
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water improvement, or water power control district created by law] |
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wants to acquire real property for public use but is unable to agree |
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with the owner of the property on the amount of damages, the |
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[condemning] entity may begin a condemnation proceeding by filing a |
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petition in the proper court. |
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(b) The petition must: |
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(1) describe the property to be condemned; |
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(2) state with specificity the public purpose for |
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which the entity intends to use the property; |
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(3) state the name of the owner of the property if the |
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owner is known; |
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(4) state that the entity and the property owner are |
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unable to agree on the damages after negotiating in good faith; and |
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(5) if applicable, state that the entity provided the |
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property owner with the landowner's bill of rights statement in |
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accordance with Section 21.0112. |
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SECTION 5. Section 21.014(a), Property Code, is amended to |
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read as follows: |
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(a) The judge of a court in which a condemnation petition is |
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filed or to which an eminent domain case is assigned shall appoint |
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three disinterested real property owners [freeholders] who reside |
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in the county as special commissioners to assess the damages of the |
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owner of the property being condemned. The judge appointing the |
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special commissioners shall give preference to persons agreed on by |
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the parties. The judge shall provide each party a reasonable period |
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to strike one of the three commissioners appointed by the judge. If |
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a person fails to serve as a commissioner or is struck by a party to |
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the suit, the judge shall [may] appoint a replacement. |
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SECTION 6. Section 21.015(a), Property Code, is amended to |
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read as follows: |
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(a) The special commissioners in an eminent domain |
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proceeding shall promptly schedule a hearing for the parties at the |
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earliest practical time but may not schedule a hearing to assess |
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damages before the 20th day after the date the special |
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commissioners were appointed. The special commissioners shall |
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schedule a hearing for the parties [and] at a place that is as near |
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as practical to the property being condemned or at the county seat |
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of the county in which the proceeding is being held. |
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SECTION 7. Section 21.016(b), Property Code, is amended to |
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read as follows: |
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(b) Notice of the hearing must be served on a party not later |
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than the 20th [11th] day before the day set for the hearing. A |
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person competent to testify may serve the notice. |
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SECTION 8. Section 21.023, Property Code, is amended to |
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read as follows: |
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Sec. 21.023. DISCLOSURE OF INFORMATION REQUIRED AT TIME OF |
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ACQUISITION. An [A governmental] entity with eminent domain |
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authority shall disclose in writing to the property owner, at the |
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time of acquisition of the property through eminent domain, that: |
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(1) the owner or the owner's heirs, successors, or |
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assigns may be [are] entitled to: |
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(A) repurchase the property under Subchapter E |
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[if the public use for which the property was acquired through
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eminent domain is canceled before the 10th anniversary of the date
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of acquisition]; or |
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(B) request from the entity certain information |
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relating to the use of the property and any actual progress made |
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toward that use; and |
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(2) the repurchase price is the price paid to the owner |
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by the entity at the time the entity acquired the property through |
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eminent domain [fair market value of the property at the time the
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public use was canceled]. |
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SECTION 9. The heading to Section 21.047, Property Code, is |
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amended to read as follows: |
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Sec. 21.047. ASSESSMENT OF COSTS AND FEES. |
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SECTION 10. Section 21.047, Property Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) If a court hearing a suit under this chapter finds that |
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the condemnor did not negotiate in good faith to acquire the |
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property in accordance with Section 21.0115, the court shall order |
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the condemnor to pay: |
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(1) all costs as provided by Subsection (a); and |
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(2) all reasonable attorney's fees and other |
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professional fees incurred by the owner. |
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SECTION 11. Subchapter E, Chapter 21, Property Code, is |
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amended to read as follows: |
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SUBCHAPTER E. REPURCHASE OF REAL PROPERTY FROM CONDEMNING |
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[GOVERNMENTAL] ENTITY |
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Sec. 21.101. RIGHT OF REPURCHASE [APPLICABILITY]. (a) A |
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person from whom [Except as provided in Subsection (b), this
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subchapter applies only to] a real property interest is acquired by |
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an [a governmental] entity through eminent domain for a public use, |
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or that person's heirs, successors, or assigns, is entitled to |
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repurchase the property as provided by this subchapter if: |
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(1) the public use for which the property was acquired |
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through eminent domain is [that was] canceled; |
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(2) no actual progress is made toward the public use |
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for which the property was acquired between the date of acquisition |
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and the 10th anniversary of that date; or |
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(3) the property becomes unnecessary for the public |
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use for which the property was acquired [before the 10th
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anniversary of the date of acquisition]. |
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(b) In this section, "actual progress" means the completion |
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of two or more of the following actions: |
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(1) the performance of a significant amount of labor |
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to develop the property or other property acquired for the same |
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public use project for which the property owner's property was |
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acquired; |
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(2) the furnishing of a significant amount of |
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materials to develop the property or other property acquired for |
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the same public use project for which the property owner's property |
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was acquired; |
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(3) the hiring of and performance of a significant |
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amount of work by an architect, engineer, or surveyor to prepare a |
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plan or plat that includes the property or other property acquired |
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for the same public use project for which the property owner's |
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property was acquired; |
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(4) application for state or federal funds to develop |
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the property or other property acquired for the same public use |
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project for which the property owner's property was acquired; or |
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(5) the acquisition of a tract or parcel of real |
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property adjacent to the property for the same public use project |
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for which the owner's property was acquired [This subchapter does
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not apply to a right-of-way under the jurisdiction of:
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[(1) a county;
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[(2) a municipality; or
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[(3) the Texas Department of Transportation]. |
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(c) A district court may determine all issues in any suit |
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regarding the repurchase of a real property interest acquired |
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through eminent domain by the former property owner or the owner's |
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heirs, successors, or assigns. |
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Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER REQUIRED [AT
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TIME OF CANCELLATION OF PUBLIC USE]. Not later than the 180th day |
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after the date an entity that acquired a real property interest |
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through eminent domain determines that the former property owner is |
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entitled to repurchase the property under Section 21.101 [of the
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cancellation of the public use for which real property was acquired
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through eminent domain from a property owner under Subchapter B], |
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the [governmental] entity shall send by certified mail, return |
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receipt requested, to the property owner or the owner's heirs, |
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successors, or assigns a notice containing: |
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(1) an identification, which is not required to be a |
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legal description, of the property that was acquired; |
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(2) an identification of the public use for which the |
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property had been acquired and a statement that: |
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(A) the public use has been canceled; |
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(B) no actual progress was made toward the public |
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use; or |
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(C) the property has become unnecessary for the |
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public use; and |
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(3) a description of the person's right under this |
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subchapter to repurchase the property. |
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Sec. 21.1021. REQUESTS FOR INFORMATION REGARDING CONDEMNED |
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PROPERTY. (a) On or after the 10th anniversary of the date on which |
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real property was acquired by an entity through eminent domain, a |
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property owner or the owner's heirs, successors, or assigns may |
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request that the condemning entity make a determination and provide |
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a statement and other relevant information regarding: |
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(1) whether the public use for which the property was |
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acquired has been canceled; |
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(2) whether any actual progress was made toward the |
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public use between the date of acquisition and the 10th anniversary |
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of that date, including an itemized description of the progress |
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made, if applicable; and |
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(3) whether the property has become unnecessary for |
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the public use of the property. |
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(b) A request under this section must contain sufficient |
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detail to allow the entity to identify the specific tract of land in |
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relation to which the information is sought. |
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(c) Not later than the 90th day following the receipt of the |
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request for information, the entity shall send a written response |
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by certified mail, return receipt requested, to the requestor. |
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Sec. 21.103. RESALE OF PROPERTY; PRICE. (a) Not later than |
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the 180th day after the date of the postmark on a [the] notice sent |
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under Section 21.102 or a response to a request made under Section |
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21.1021 that indicates that the property owner or the owner's |
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heirs, successors, or assigns is entitled to repurchase the |
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property interest in accordance with Section 21.101, the property |
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owner or the owner's heirs, successors, or assigns must notify the |
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[governmental] entity of the person's intent to repurchase the |
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property interest under this subchapter. |
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(b) As soon as practicable after receipt of a notice of |
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intent to repurchase [the notification] under Subsection (a), the |
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[governmental] entity shall offer to sell the property interest to |
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the person for the price paid to the owner by the entity at the time |
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the entity acquired the property through eminent domain [fair
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market value of the property at the time the public use was
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canceled]. The person's right to repurchase the property expires |
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on the 90th day after the date on which the [governmental] entity |
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makes the offer. |
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SECTION 12. The changes in law made by Chapter 2206, |
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Government Code, and Chapter 21, Property Code, as amended by this |
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Act, apply only to a condemnation proceeding in which the petition |
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is filed on or after the effective date of this Act and to any |
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property condemned through the proceeding. A condemnation |
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proceeding in which the petition is filed before the effective date |
|
of this Act and any property condemned through the proceeding is |
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governed by the law in effect immediately before that date, and that |
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law is continued in effect for that purpose. |
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SECTION 13. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2009. |