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A BILL TO BE ENTITLED
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AN ACT
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relating to the sale of certain property at Possum Kingdom Lake by |
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the Brazos River Authority. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 8502, Special District Local Laws Code, |
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is amended by adding Section 8502.0132 to read as follows: |
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Sec. 8502.0132. SALE OF CAPTIVE PROPERTY AT POSSUM KINGDOM |
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LAKE. (a) In this section: |
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(1) "Adjacent Land" means the real property owned by |
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the applicable Offeree that is adjacent to the applicable Captive |
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Property To Be Sold. |
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(2) "Captive Property To Be Sold" means those portions |
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of the following tracts of real property owned by the Authority at |
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the Lake that are located above the 1000' contour line, but does not |
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include any portion of the following tracts that is part of Project |
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Land or property that is leased for single-family residential |
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purposes as of the effective date of the Act enacting this section: |
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(A) two tracts of land totaling 2019.86 acres, |
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more or less, in Palo Pinto County, Texas, described in Brazos River |
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Authority Records as Tracts 8-1-93 and 9-3-9, as such Tracts are |
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more particularly described in an Award of Commissioners entered |
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June 28, 1940, in the County Court of Palo Pinto County, Texas, in |
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Cause No. 2539, styled Brazos River Conservation and Reclamation |
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District versus Orland R. Seaman, Et Al., as the same appears on |
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file and of record in Volume 5, Pages 414 and 419, et seq., Civil |
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Minutes of the County Court of Palo Pinto County, Texas; and |
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(B) a 2278.3 acre tract of land, more or less, in |
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Palo Pinto County, Texas, described in Brazos River Authority |
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records as Tract 11-2-46, as such tract is more particularly |
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described in deeds recorded at Book 181, Page 325, Book 182, Page |
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339, Book 183, Page 12, and Book 183, Page 16, in Palo Pinto County |
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Records, Palo Pinto County, Texas. |
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(3) "FERC License" means the order of the Federal |
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Energy Regulatory Commission issuing a license to the Authority for |
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project number 1490-003-Texas on September 8, 1989, as such license |
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has been renewed, extended, or amended and may be further renewed, |
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extended, or amended at any time and from time to time, and |
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including the Amendment to the original FERC license that was |
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issued on May 15, 1980, to the extent incorporated or referenced in |
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the FERC License. |
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(4) "Lake" means Possum Kingdom Lake located in Young, |
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Palo Pinto, Stephens, and Jack Counties. The boundary of the Lake is |
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defined by the 1000' contour line, as that contour may meander and |
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change over time with natural forces, including erosion and |
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accretion. The "1000' contour line" means the line running along |
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the periphery of the Lake if the surface of the Lake is at an |
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elevation of 1000 feet above mean sea level, as measured from the |
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top of the spillway crest gates of the Morris Sheppard Dam, as such |
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line may move and shift from time to time due to natural forces. |
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(5) "Offeree" means any person to whom an offer to sell |
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Captive Property To Be Sold is to be made under this section. To |
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qualify as an Offeree, a person must own in fee simple the real |
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property adjacent to the Captive Property To Be Sold, and be able to |
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provide an attorney's opinion or other satisfactory legal |
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documentation that such Offeree meets the qualifications of an |
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Offeree under this subdivision. |
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(6) "Project Land" means that portion of Authority |
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property that is subject to the FERC License, as identified and |
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defined in the FERC License, as may be amended at any time, and from |
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time to time, and which Project land may move or change over time |
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due to natural forces. |
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(b) Notwithstanding any other provision of this chapter, |
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the Authority is directed to sell all Captive Property To Be Sold in |
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accordance with the directives of this section, including the |
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following: |
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(1) Within 90 days of the effective date of the Act |
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enacting this section, the Authority shall publish a list of the |
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parcels at the Lake that qualify as Captive Property To Be Sold and |
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an "Application Of Intent To Purchase" form for use by the Offerees |
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as provided by this section. |
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(2) Each listed parcel of Captive Property To Be Sold |
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shall be offered for sale at its fair market value to the Offeree |
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who owns any Adjacent Land that is adjacent to that specific parcel |
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of Captive Property To Be Sold, and each Adjacent Land owner has the |
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right (but not the obligation) to purchase the parcel in equal |
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proportion among those wishing to acquire same. |
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(3) Any Offeree who desires to purchase Captive |
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Property To Be Sold must, within 180 days of the inclusion of that |
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property on the published list of Captive Property To Be Sold under |
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Subdivision (1), submit a completed Application Of Intent To |
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Purchase form to the Authority. |
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(4) If the Authority does not receive an Application |
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Of Intent To Purchase from an Offeree within the required time, the |
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Offeree shall be deemed to have waived any right to purchase the |
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subject property under this section and the Authority shall have |
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the right to retain or sell such property as directed by the board. |
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(5) The Authority shall accept and process all |
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Application Of Intent To Purchase forms in the order in which they |
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are received. |
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(6) Any sale of property under this section must be |
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handled as if it were a private sale for fair market value under |
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Section 49.226(a), Water Code. |
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(7) The fair market value of the Captive Property To Be |
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Sold must be determined as follows: |
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(A) Within forty-five (45) days of the |
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Authority's receipt of the Offeree's completed Application of |
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Intent to Purchase and an acceptable survey as provided by |
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Subsection (d)(1), the Authority shall provide the Offeree with an |
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appraisal of the fair market value of the Captive Property To Be |
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Sold dated within one year of the date of the Authority's receipt of |
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the Application of Intent to Purchase (the "First Appraisal"). The |
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Authority's appraiser must be an appraiser certified under Chapter |
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1103, Occupations Code. Within fifteen (15) days of receipt of the |
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First Appraisal, the Offeree shall notify the Authority in writing |
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as to whether the Offeree agrees with or disputes the fair market |
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value set forth in the First Appraisal. If the Offeree does not |
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dispute the fair market value as determined by the First Appraisal |
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within such 15-day time period, then the First Appraisal shall be |
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final and binding on all parties to establish the fair market value |
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for the Captive Property To Be Sold. |
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(B) If the Offeree disputes the fair market value |
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determined by the First Appraisal, the Offeree may withdraw its |
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application to purchase the Captive Property To Be Sold or employ a |
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disinterested appraiser certified under Chapter 1103, Occupations |
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Code, to conduct a second appraisal of the fair market value of the |
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Captive Property To Be Sold (the "Second Appraisal"). The Second |
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Appraisal must be completed and sent to the Authority not later than |
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the 45th day after the date the Offeree notifies the Authority that |
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the Offeree disputes the First Appraisal. If the Authority does |
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not receive the Second Appraisal within such 45-day time period, |
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then the Offeree's Application of Intent to Purchase will be deemed |
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withdrawn. |
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(C) Within fifteen (15) days of receipt of the |
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Second Appraisal, the Authority shall notify the Prospective |
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Purchaser in writing as to whether the Authority agrees with or |
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disputes the fair market value determined by the Second Appraisal. |
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If the Authority does not dispute the fair market value as |
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determined by the Second Appraisal within this 15-day time period, |
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then the Second Appraisal shall be final and binding on all parties |
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to establish the purchase price for the Captive Property To Be Sold. |
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If the Authority timely disputes the fair market value determined |
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by the Second Appraisal, the two appraisers (or their designated |
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agents) shall meet and attempt to reach an agreement on the fair |
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market value of the Captive Property To Be Sold, such meeting to |
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occur not later than the 30th day after the date the Authority |
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notifies the Offeree that the Authority disputes the Second |
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Appraisal. |
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(D) If the two appraisers reach agreement on the |
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fair market value, within 20 days after their meeting they shall |
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issue a report of the agreed fair market value to the Authority and |
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to the Offeree, and this agreed fair market value shall be final and |
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binding on all parties to establish the purchase price. If the two |
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appraisers fail to reach agreement on or before the 20th day after |
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the date of the meeting, then not later than the 30th day after the |
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date of the meeting the two appraisers shall appoint a |
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disinterested third appraiser certified under Chapter 1103, |
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Occupations Code, to reconcile the two previous appraisals (the |
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"Third Appraisal"). The Third Appraisal must be completed on or |
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before the 30th day after the date of the third appraiser's |
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appointment, and the fair market value determined by the Third |
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Appraisal is final and binding on all parties to establish the |
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purchase price; provided, however, the final purchase price may not |
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be more than the fair market value determined by the First Appraisal |
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or less than the fair market value determined by the Second |
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Appraisal. |
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(E) The appraisal costs must be paid by the |
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person who requests the appraisal, except that the Offeree and the |
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Authority shall each pay one-half of the cost of the Third Appraisal |
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if a Third Appraisal is necessary. If the Offeree fails to pay its |
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share of the Third Appraisal, then the Offeree's Application of |
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Intent to Purchase will be deemed withdrawn. |
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(F) The timelines established in the appraisal |
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process set forth in this subdivision may be extended on joint |
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agreement of Authority and Offeree. |
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(c) If the Authority seeks to exempt any Captive Property To |
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Be Sold from sale under this section as necessary for the continued |
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operation of services at the Lake by the Authority, the Authority |
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must designate as exempt each parcel it seeks to have exempted and |
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provide actual notice of the exemption to any Offeree who otherwise |
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would have been eligible to purchase that property. Any such |
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Offeree shall have the right, but not the obligation, to challenge |
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the exemption designation by the Authority in accordance with |
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Subsection (e). |
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(d) For each parcel that an Offeree elects to purchase |
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pursuant to this section, the Offeree shall: |
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(1) provide to the Authority a survey of the property |
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that is: |
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(A) prepared by a licensed state land surveyor or |
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a registered professional land surveyor; |
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(B) dated not earlier than the date one year |
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before the effective date of the Act enacting this section; and |
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(C) acceptable to the Authority and any title |
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company providing title insurance for the Offeree; and |
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(2) pay all reasonable, normal, customary, and |
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documented closing costs associated with the sale of the property. |
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(e) A person who disputes the Authority's decision to exempt |
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a specific parcel from sale under this section may file a |
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declaratory judgment action in the district court of Travis County. |
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If a person files such an action: |
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(1) any claim to governmental immunity is hereby |
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waived for the determination of the dispute; |
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(2) the court shall determine all issues presented by |
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de novo review; and |
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(3) the Authority shall bear the burden to establish |
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by a preponderance of the evidence that the parcel it seeks to have |
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exempted from sale is necessary for the specifically authorized |
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operation of services at the Lake. |
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(f) For any property sold under this section: |
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(1) the Authority shall provide a Special Warranty |
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Deed that encompasses and includes all interests in the property |
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held by the Authority, subject only to: |
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(A) those restrictions, covenants, and |
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prohibitions contained in the deed of conveyance under which the |
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Authority originally acquired title to the property, including |
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without limitation any releases of the Authority for the |
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inundation, overflowing, or flooding of the Lake; |
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(B) all encumbrances and other matters filed of |
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record in the public records of the county in which the property is |
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located; and |
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(C) any other matters or conditions that are |
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apparent on the ground or that would be reasonably disclosed or |
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discovered by an inspection of the property; and |
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(2) the Offeree shall release and agree to hold the |
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Authority harmless from, and the Authority may not be held liable |
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for damages, claims, costs, injuries, or any other harm to any |
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Offeree or any other person or the Captive Property To Be Sold or |
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any improvements on the property, caused by or arising from any |
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temporary flooding of any portion of the Captive Property To Be |
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Sold. |
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(g) Any sale of Captive Property To Be Sold pursuant to this |
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section must allow the Authority the right to enter on the Captive |
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Property To Be Sold and the Lake and other bodies of water, if any, |
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located within the Captive Property To Be Sold and to cross the |
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Adjacent Land on roads with essential equipment for all purposes |
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reasonably necessary for the Authority to fulfill its obligations |
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as a river authority and any obligations set forth in the FERC |
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License, state water rights, or other governmental regulations, or |
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that the Authority considers necessary for public safety, health, |
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and welfare purposes. Any exercise of those rights by the Authority |
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may be conducted only after written notice is given at least 48 |
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hours in advance of such entry to the Offeree (except in the event |
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of an emergency, in which case advance notice is not required, but |
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the Authority shall provide such written notice as soon as |
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practicable thereafter). The Authority shall use reasonable |
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efforts to avoid interfering with the Offeree's use of the Captive |
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Property To Be Sold and Adjacent Land and shall promptly repair any |
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damage to the Captive Property To Be Sold and Adjacent Land caused |
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by the Authority's entrance. Any claim to governmental immunity on |
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behalf of the Authority is hereby waived for the recovery of any |
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damage caused by the Authority's breach of this subsection. |
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(h) Any sale of a parcel of Captive Property To Be Sold |
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pursuant to this section the total size of which is greater than 100 |
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acres must include as a condition of sale an agreement that the |
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purchaser of such parcel will place a conservation easement that |
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complies with state and federal tax requirements on the property |
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conveyed within three (3) years of the closing date for the sale of |
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the property. |
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(i) Chapters 232 and 272, Local Government Code, do not |
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apply to a sale of property under this section. |
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(j) The Authority may use proceeds from the sale of property |
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under this section for any Authority purpose. |
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(k) To the extent of any conflict with other laws of this |
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state, this section prevails. |
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SECTION 2. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |