2009S0001-1 09/22/08
 
  By: Estes S.B. No. 18
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the use of eminent domain authority.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 2206, Government Code, is amended to
  read as follows:
  CHAPTER 2206.  [LIMITATIONS ON USE OF] EMINENT DOMAIN
  SUBCHAPTER A.  GENERAL PROVISIONS
         Sec. 2206.001.  DEFINITION OF PUBLIC USE.  Except as
  otherwise provided by this chapter, "public use," with respect to
  the use of eminent domain authority, means a use of property,
  including a use described by Section 2206.051(c), that allows the
  state, a political subdivision of the state, or the general public
  of the state to possess, occupy, and enjoy the property.
  SUBCHAPTER B.  LIMITATIONS ON PURPOSE AND USE OF PROPERTY
  ACQUIRED THROUGH EMINENT DOMAIN
         Sec. 2206.051.  LIMITATION ON EMINENT DOMAIN FOR PRIVATE
  PARTIES OR ECONOMIC DEVELOPMENT PURPOSES.  (a)  This section
  applies to the use of eminent domain under the laws of this state,
  including a local or special law, by any governmental or private
  entity, including:
               (1)  a state agency, including an institution of higher
  education as defined by Section 61.003, Education Code;
               (2)  a political subdivision of this state; or
               (3)  a corporation created by a governmental entity to
  act on behalf of the entity.
         (b)  A governmental or private entity may not take private
  property through the use of eminent domain if the taking:
               (1)  confers a private benefit on a particular private
  party through the use of the property;
               (2)  is for a public use that is merely a pretext to
  confer a private benefit on a particular private party; [or]
               (3)  is for economic development purposes, unless the
  economic development is a secondary purpose resulting from
  municipal community development or municipal urban renewal
  activities to eliminate an existing affirmative harm on society
  from slum or blighted areas under:
                     (A)  Chapter 373 or 374, Local Government Code,
  other than an activity described by Section 373.002(b)(5), Local
  Government Code; or
                     (B)  Section 311.005(a)(1)(I), Tax Code; or
               (4)  is not for a public use.
         (c)  This section does not affect the authority of an entity
  authorized by law to take private property through the use of
  eminent domain for:
               (1)  transportation projects, including, but not
  limited to, railroads, airports, or public roads or highways;
               (2)  entities authorized under Section 59, Article XVI,
  Texas Constitution, including:
                     (A)  port authorities;
                     (B)  navigation districts; and
                     (C)  any other conservation or reclamation
  districts that act as ports;
               (3)  water supply, wastewater, flood control, and
  drainage projects;
               (4)  public buildings, hospitals, and parks;
               (5)  the provision of utility services;
               (6)  a sports and community venue project approved by
  voters at an election held on or before December 1, 2005, under
  Chapter 334 or 335, Local Government Code;
               (7)  the operations of:
                     (A)  a common carrier pipeline [subject to Chapter
  111, Natural Resources Code, and Section B(3)(b), Article 2.01,
  Texas Business Corporation Act]; or
                     (B)  an energy transporter, as that term is
  defined by Section 186.051, Utilities Code;
               (8)  a purpose authorized by Chapter 181, Utilities
  Code;
               (9)  underground storage operations subject to Chapter
  91, Natural Resources Code;
               (10)  a waste disposal project; or
               (11)  a library, museum, or related facility and any
  infrastructure related to the facility.
         (d)  This section does not affect the authority of a
  governmental entity to condemn a leasehold estate on property owned
  by the governmental entity.
         (e)  The determination by the governmental or private entity
  proposing to take the property that the taking does not involve an
  act or circumstance prohibited by Subsection (b) does not create a
  presumption with respect to whether the taking involves that act or
  circumstance.
         Sec. 2206.052.  LIMITATIONS ON EASEMENTS. (a)  A property
  owner whose property is acquired through the use of eminent domain
  under Chapter 21, Property Code, for the purpose of creating an
  easement through that owner's property may construct streets or
  roads, including a gravel, asphalt, or concrete road, at any
  locations above the easement that the property owner chooses.
         (b)  The portion of a road constructed under this section
  that is over the easement may not exceed 40 feet in width.
  SUBCHAPTER C.  PROCEDURES REQUIRED TO INITIATE
  EMINENT DOMAIN PROCEEDINGS
         Sec. 2206.101.  SHORT TITLE. This subchapter may be cited as
  the Truth in Condemnation Procedures Act.
         Sec. 2206.102.  APPLICABILITY. The procedures in this
  subchapter apply only to the use of eminent domain under the laws of
  this state by a governmental entity.
         Sec. 2206.103.  VOTE ON USE OF EMINENT DOMAIN. (a)  Before a
  governmental entity initiates a condemnation proceeding by filing a
  petition under Section 21.012, Property Code, the governmental
  entity must authorize the initiation of the condemnation
  proceedings at a public meeting by a record vote.  If the motion
  required by Subsection (c) indicates that the first record vote
  applies to all units of property to be condemned, and the minutes of
  the entity reflect that the first vote applies to all of those
  units, a single ordinance, resolution, or order may be adopted for
  all of those units of property. If more than one member of the
  governing body objects to adopting a single ordinance, resolution,
  or order by a record vote for all units of property for which
  condemnation proceedings are to be initiated, a separate record
  vote must be taken for each unit of property.
         (b)  For the purposes of Subsection (a), if two or more units
  of real property are owned by the same person, the governmental
  entity may treat those units of property as one unit of property.
         (c)  The motion to adopt an ordinance, resolution, or order
  authorizing the initiation of condemnation proceedings under
  Chapter 21, Property Code, must be made in a form substantially
  similar to the following: "I move that the (name of governmental
  entity) authorize the use of the power of eminent domain to acquire
  (describe the property) for (describe the public use)."  The
  description of the property required by this subsection is
  sufficient if the description of the location of and interest in the
  property that the governmental entity seeks to acquire is
  substantially similar to the description that is or could properly
  be used in a petition to condemn the property under Section 21.012,
  Property Code.
         (d)  If a project for a public use described by Section
  2206.051(c)(3) will require a governmental entity to acquire
  multiple tracts or units of property to construct facilities
  connecting one location to another location, the governing body of
  the entity may adopt a single ordinance, resolution, or order by a
  record vote that delegates the authority to initiate condemnation
  proceedings to the chief administrative official of the
  governmental entity.
         (e)  An ordinance, resolution, or order adopted under
  Subsection (d) is not required to identify specific properties that
  the governmental entity will acquire. The ordinance, resolution,
  or order must identify the general area to be covered by the project
  or the general route that will be used by the governmental entity
  for the project in a way that provides property owners in and around
  the area or along the route reasonable notice that the owners'
  properties may be subject to condemnation proceedings during the
  planning or construction of the project.
         SECTION 2.  Subchapter B, Chapter 21, Property Code, is
  amended by adding Section 21.0113 to read as follows:
         Sec. 21.0113.  BONA FIDE OFFER REQUIRED. An entity with
  eminent domain authority that wants to acquire real property for a
  public use must make a bona fide offer to acquire the property from
  the property owner voluntarily.  A bona fide offer is an offer that
  is not arbitrary or capricious and is based on a reasonably thorough
  investigation and honest assessment of the amount of the just
  compensation due to the landowner as a result of the taking.
         SECTION 3.  Subsection (b), Section 21.012, Property Code,
  is amended to read as follows:
         (b)  The petition must:
               (1)  describe the property to be condemned;
               (2)  state the purpose for which the entity intends to
  use the property;
               (3)  state the name of the owner of the property if the
  owner is known;
               (4)  state that the entity and the property owner are
  unable to agree on the damages; [and]
               (5)  if applicable, state that the entity provided the
  property owner with the landowner's bill of rights statement in
  accordance with Section 21.0112; and
               (6)  state that the entity made a bona fide offer to
  acquire the property from the property owner voluntarily.
         SECTION 4.  Section 21.023, Property Code, is amended to
  read as follows:
         Sec. 21.023.  DISCLOSURE OF INFORMATION REQUIRED AT TIME OF
  ACQUISITION. A governmental entity shall disclose in writing to
  the property owner, at the time of acquisition of the property
  through eminent domain, that:
               (1)  the owner or the owner's heirs, successors, or
  assigns are entitled to repurchase the property if the public use
  for which the property was acquired through eminent domain is
  canceled before the 10th anniversary of the date of acquisition;
  and
               (2)  the repurchase price is the price paid to the owner
  by the governmental entity at the time the governmental entity
  acquired the property through eminent domain [fair market value of
  the property at the time the public use was canceled].
         SECTION 5.  Subchapter B, Chapter 21, Property Code, is
  amended by adding Section 21.025 to read as follows:
         Sec. 21.025.  PRODUCTION OF INFORMATION BY CERTAIN ENTITIES.  
  (a)  Notwithstanding any other law, an entity that is not subject
  to Chapter 552, Government Code, and is authorized by law to acquire
  private property through the use of eminent domain is required to
  produce information as provided by this section if the information
  is:
               (1)  requested by a person who owns property that is the
  subject of a proposed or existing eminent domain proceeding; and
               (2)  related to the taking of the person's private
  property by the entity through the use of eminent domain.
         (b)  An entity described by Subsection (a) is required under
  this section only to produce information relating to the
  condemnation of the specific property owned by the requestor as
  described in the request. A request under this section must contain
  sufficient details to allow the entity to identify the specific
  tract of land in relation to which the information is sought.
         (c)  The entity shall respond to a request in accordance with
  the Texas Rules of Civil Procedure as if the request was made in a
  matter pending before a state district court.
         (d)  Exceptions to disclosure provided by this chapter and
  the Texas Rules of Civil Procedure apply to the disclosure of
  information under this section.
         (e)  Jurisdiction to enforce the provisions of this section
  resides in:
               (1)  the court in which the condemnation was initiated;
  or
               (2)  if the condemnation proceeding has not been
  initiated:
                     (A)  a court that would have jurisdiction over a
  proceeding to condemn the requestor's property; or
                     (B)  a court with eminent domain jurisdiction in
  the county in which the entity has its principal place of business.
         (f)  If the entity refuses to produce information requested
  in accordance with this section and the court determines that the
  refusal violates this section, the court may award the requestor's
  reasonable attorney's fees incurred to compel the production of the
  information.
         (g)  If an entity that received a request in accordance with
  this section does not produce the requested information on or
  before the 30th day after the request is made, the attorney general
  may file an action in a court described by Subsection (e) to enforce
  this section on the request of the person who made the request for
  the information. If the court determines that the failure to
  produce the information is a violation of this section, the court
  may award the attorney general's reasonable expenses incurred to
  compel the production of the information.
         (h)  If the attorney general files an action under Subsection
  (g), the person who requested that the attorney general file the
  action may not file a private action to enforce this section with
  respect to the same request for information.
         SECTION 6.  Section 21.041, Property Code, is amended to
  read as follows:
         Sec. 21.041.  EVIDENCE. (a)  For the purposes of this
  section, market value is the price a property will bring when
  offered for sale by a person who desires to sell the property, but
  is not obliged to sell the property, and is bought by a person who
  desires to buy the property, but is not under a necessity to buy the
  property.
         (b)  As the basis for assessing actual damages to a property
  owner from a condemnation, the special commissioners shall, subject
  to the Texas Rules of Evidence, admit evidence on:
               (1)  the market value, before the condemnation, of the
  property being condemned;
               (2)  subject to Section 21.042, the net change to the
  market value of [the injury to the property owner;
               [(3)  the benefit to] the property owner's remaining
  property, considering both injury and benefit to the property
  owner; and
               (3) [(4)]  the use of the property for the purpose of
  the condemnation.
         SECTION 7.  Subsection (e), Section 21.042, Property Code,
  is amended to read as follows:
         (e)  If a portion of a tract or parcel of real property is
  condemned for the use, construction, operation, or maintenance of
  the state highway system or of a county toll project described by
  Chapter 284, Transportation Code, that is eligible for designation
  as part of the state highway system, the special commissioners
  shall consider any diminished access to the highway and to or from
  the remaining property to the extent that it affects the present
  market value of the real property, including any factors considered
  when determining actual fair market value of property for ad
  valorem tax purposes [or for the use, construction, development,
  operation, or maintenance of an improvement or project by a
  metropolitan rapid transit authority created before January 1,
  1980, with a principal municipality having a population of less
  than 1.9 million and established under Chapter 451, Transportation
  Code, the special commissioners shall determine the damage to the
  property owner regardless of whether the property owner makes a
  claim for damages to the remaining property. In awarding
  compensation or assessing the damages, the special commissioners
  shall consider any special and direct benefits that arise from the
  highway improvement or the transit authority improvement or project
  that are peculiar to the property owner and that relate to the
  property owner's ownership, use, or enjoyment of the particular
  parcel of remaining real property].
         SECTION 8.  Subsections (a) and (b), Section 21.046,
  Property Code, are amended to read as follows:
         (a)  A department, agency, instrumentality, or political
  subdivision of this state shall [may] provide a relocation advisory
  service for an individual, a family, a business concern, a farming
  or ranching operation, or a nonprofit organization that [if the
  service] is compatible with the Federal Uniform Relocation
  Assistance Advisory Program, 23 U.S.C.A. 501, et seq.
         (b)  This state or a political subdivision of this state
  shall [may], as a cost of acquiring real property, pay moving
  expenses and rental supplements, make relocation payments, provide
  financial assistance to acquire replacement housing, and
  compensate for expenses incidental to the transfer of the property
  if an individual, a family, the personal property of a business, a
  farming or ranching operation, or a nonprofit organization is
  displaced in connection with the acquisition.
         SECTION 9.  The heading to Section 21.047, Property Code, is
  amended to read as follows:
         Sec. 21.047.  ASSESSMENT OF COSTS AND FEES.
         SECTION 10.  Section 21.047, Property Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  If a court hearing a suit under this chapter determines
  that a condemning entity did not make a bona fide offer to acquire
  the property from the property owner voluntarily as required by
  Section 21.0113, the court shall abate the suit and order the
  condemnor to make a bona fide offer. If the court finds that by
  filing a petition under Section 21.012 or by filing any other motion
  or pleading in the proceeding initiated by the filing of that
  petition the condemnor violated Chapter 10, Civil Practice and
  Remedies Code, the court shall order the condemnor to pay:
               (1)  all costs as provided by Subsection (a); and
               (2)  any reasonable attorney's fees incurred by the
  owner that are directly related to the violation.
         SECTION 11.  Subsection (a), Section 21.101, Property Code,
  is amended to read as follows:
         (a)  Except as provided in Subsection (b), this subchapter
  applies only to a real property interest acquired by a governmental
  entity other than a port that is acquiring property for deep water
  navigation through eminent domain for a public use.  A person from
  whom the property interest is acquired or that person's heirs,
  successors, or assigns are entitled to repurchase the property as
  provided by this subchapter if that public use was canceled before
  the 10th anniversary of the date of acquisition or the governmental
  entity fails to begin the operation or construction of the project
  for which the property was acquired before the 10th anniversary of
  that date.
         SECTION 12.  Section 21.102, Property Code, is amended to
  read as follows:
         Sec. 21.102.  NOTICE TO PREVIOUS PROPERTY OWNER AT TIME OF
  CANCELLATION OF PUBLIC USE OR ON FAILURE TO BEGIN OPERATION OR
  CONSTRUCTION OF PROJECT.  Not later than the 180th day after the
  date of the cancellation of the public use for which real property
  was acquired through eminent domain from a property owner under
  Subchapter B or the 180th day after the 10th anniversary of the date
  on which the property was acquired if the governmental entity fails
  to begin the operation or construction of the project for which the
  property was acquired before the 10th anniversary of that date, the
  governmental entity shall send by certified mail, return receipt
  requested, to the property owner or the owner's heirs, successors,
  or assigns a notice containing:
               (1)  an identification, which is not required to be a
  legal description, of the property that was acquired;
               (2)  an identification of the public use for which the
  property had been acquired and a statement that the public use has
  been canceled or the governmental entity has failed to begin the
  operation or construction of the project for which the property was
  acquired; and
               (3)  a description of the person's right under this
  subchapter to repurchase the property.
         SECTION 13.  Subsection (b), Section 21.103, Property Code,
  is amended to read as follows:
         (b)  As soon as practicable after receipt of a [the]
  notification under Subsection (a), the governmental entity shall
  offer to sell the property interest to the person for the price paid
  to the owner by the governmental entity at the time the governmental
  entity acquired the property through eminent domain [fair market
  value of the property at the time the public use was canceled]. The
  person's right to repurchase the property expires on the 90th day
  after the date on which the governmental entity makes the offer.
         SECTION 14.  Subchapter B, Chapter 111, Natural Resources
  Code, is amended by adding Section 111.0195 to read as follows:
         Sec. 111.0195.  RIGHT OF EMINENT DOMAIN: ADDITIONAL
  PROCEDURES. (a)  This section applies only to a condemnation
  proceeding initiated by a common carrier, as that term is defined by
  Section 111.002.
         (b)  A common carrier that intends to exercise the power of
  eminent domain must serve the owner of the property to be acquired
  with notice that the common carrier intends to initiate
  condemnation proceedings on or before the date the common carrier
  files a condemnation petition.
         (c)  The special commissioners in an eminent domain
  proceeding to which this section applies:
               (1)  may not schedule a hearing to assess damages
  before the 30th day after the date of the special commissioners'
  appointment; and
               (2)  must serve a property owner with notice informing
  the property owner of the time and place of the hearing not later
  than the 21st day before the date set for the hearing.
         (d)  A court that has jurisdiction over a condemnation
  proceeding may appoint a replacement special commissioner if:
               (1)  the property owner or the common carrier objects
  to the appointment of a special commissioner by filing a written
  statement of the person's objections on the grounds of:
                     (A)  a conflict of interest; or
                     (B)  other good cause; and
               (2)  the court determines in a hearing that good cause
  is shown.
         (e)  The special commissioners may delay scheduling a
  hearing for a reasonable period if, by motion to the court that has
  jurisdiction over the condemnation proceeding, the property owner
  requests and is granted a delay by the court for good cause shown.
         (f)  A notice required under this section must be served by:
               (1)  regular mail; and
               (2)  certified mail, return receipt requested, to the
  property owner.
         (g)  A common carrier has the burden of proof to establish
  that notice was provided as required by Subsection (b).
         SECTION 15.  Subchapter G, Chapter 13, Water Code, is
  amended by adding Section 13.258 to read as follows:
         Sec. 13.258.  EMINENT DOMAIN. (a)  A water and sewer
  utility that is operating in accordance with its certificate of
  convenience and necessity may acquire by condemnation only
  easements or lesser property interests reasonably necessary to
  comply with federal and state regulations relating to sanitation.
         (b)  The water and sewer utility shall exercise the power of
  eminent domain in the manner provided by Chapter 21, Property Code.
         (c)  The water and sewer utility may not exercise the power
  of eminent domain to condemn land to acquire rights to underground
  water or for water or water rights.
         (d)  A water and sewer utility may not exercise the power of
  eminent domain in a municipality with a population of more than 1.7
  million or in the municipality's extraterritorial jurisdiction to
  condemn land in which the municipality owns a fee, easement, or
  lesser property interest.
         SECTION 16.  Subchapter D, Chapter 101, Government Code, is
  amended by adding Section 101.06151 to read as follows:
         Sec. 101.06151.  DISTRICT COURT FEES AND COSTS: PROPERTY
  CODE. The clerk of a district court shall collect fees and costs
  under the Property Code as follows:
               (1)  court costs for each special commissioner in an
  eminent domain proceeding (Sec. 21.047, Property Code) . . . as
  taxed by the court, $10 or more; and
               (2)  court costs, other than costs collected under
  Subdivision (1), and attorney's fees in an eminent domain
  proceeding (Sec. 21.047, Property Code) . . . as taxed by the court
  and as reasonable, respectively.
         SECTION 17.  Section 101.0816, Government Code, is amended
  to read as follows:
         Sec. 101.0816.  STATUTORY COUNTY COURT FEES AND COSTS:
  PROPERTY CODE. The clerk of a statutory county court shall collect
  fees and costs under the Property Code as follows:
               (1)  [a] court costs [cost in the amount of $10 or more,
  as taxed by the court under Section 21.047, Property Code,] for each
  special commissioner in an eminent domain proceeding (Sec. 21.047,
  Property Code) . . . as taxed by the court, $10 or more; and
               (2)  court costs, other than costs collected under
  Subdivision (1), and attorney's fees in an eminent domain
  proceeding (Sec. 21.047, Property Code) . . . as taxed by the court
  and as reasonable, respectively.
         SECTION 18.  The following laws are repealed:
               (1)  Section 552.0037, Government Code; and
               (2)  Subsection (i), Section 21.024, Property Code.
         SECTION 19.  Not later than January 1, 2011, the comptroller
  of public accounts shall:
               (1)  identify all public and private entities with
  eminent domain authority; and
               (2)  make recommendations to the legislature and the
  governor regarding:
                     (A)  which entities have, need, or should have
  eminent domain authority;
                     (B)  whether that eminent domain authority of
  those entities should be continued, expanded, or limited; and
                     (C)  the cause and effect of continuing,
  eliminating, expanding, or limiting the eminent domain authority of
  those entities.
         SECTION 20.  The changes in law made by Chapter 2206,
  Government Code, and Chapter 21, Property Code, as amended by this
  Act, apply only to a condemnation proceeding in which the petition
  is filed on or after the effective date of this Act and to any
  property condemned through the proceeding. A condemnation
  proceeding in which the petition is filed before the effective date
  of this Act and any property condemned through the proceeding is
  governed by the law in effect immediately before that date, and that
  law is continued in effect for that purpose.
         SECTION 21.  Section 111.0195, Natural Resources Code, as
  added by this Act, applies only to a condemnation proceeding in
  which the petition is filed on or after the effective date of this
  Act and to any property condemned through the proceeding. A
  condemnation proceeding in which the petition is filed before the
  effective date of this Act and any property condemned through the
  proceeding is governed by the law in effect immediately before that
  date, and that law is continued in effect for that purpose.
         SECTION 22.  This Act takes effect September 1, 2009.