81R6821 AJA-D

By: Carona S.B. No. 728

A BILL TO BE ENTITLED

AN ACT

relating to the exercise of eminent domain authority by private entities.

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

SECTION 1. Section 21.0111, Property Code, is amended to read as follows:

Sec. 21.0111. DISCLOSURE OF INFORMATION REQUIRED. (a) A governmental or private entity with eminent domain authority that wants to acquire real property for a public use shall disclose to the property owner at the time an offer to purchase is made any and all existing appraisal reports produced or acquired by the [governmental] entity relating specifically to the owner's property and used in determining the final valuation offer.

(b) A property owner shall disclose to the acquiring governmental or private entity any and all existing appraisal reports produced or acquired by the property owner relating specifically to the owner's property and used in determining the owner's opinion of value. Such disclosure shall take place within 10 days of receipt of appraisal reports but no later than 10 days prior to the special commissioner's hearing. A subsequent bona fide purchaser for value from the acquiring [governmental] entity may conclusively presume that the requirement of this section has been met. This section does not apply to acquisitions of real property for which a governmental or private entity does not have eminent domain authority.

SECTION 2. Subchapter B, Chapter 21, Property Code, is amended by adding Section 21.0122 to read as follows:

Sec. 21.0122. CONDEMNATION BY PRIVATE ENTITY: PROOF OF PUBLIC USE AND NECESSITY; EASEMENTS. (a) In addition to the contents prescribed by Section 21.012(b), a condemnation petition filed by a private entity must state that the facts to be proven are that:

(1) the use for which the property is sought is a public use that is not prohibited by Section 2206.001, Government Code;

(2) the property sought is necessary to accomplish that public use; and

(3) if the entity is seeking an easement, the entity has complied with the requirements of Section 2206.002(a), Government Code.

(b) A court shall deny the right to condemn unless the entity makes the proof required by Subsection (a).

SECTION 3. Subchapter C, Chapter 21, Property Code, is amended by adding Section 21.0422 to read as follows:

Sec. 21.0422. ALTERNATIVE DAMAGES: CONDEMNATION OF EASEMENT BY PRIVATE ENTITY. With the property owner's consent, a private entity that condemns an easement may, as an alternative to paying damages awarded under this subchapter, agree to pay the owner an intangible legal right to receive a percentage of the entity's profits associated with the use of the easement.

SECTION 4. Chapter 2206, Government Code, is amended by adding Section 2206.002 to read as follows:

Sec. 2206.002. CONDEMNATION BY PRIVATE ENTITY: EASEMENTS. (a) A private entity that seeks an easement through the use of eminent domain must seek a route for the easement that is the least burdensome to the land:

(1) generally, regardless of the number of tracts that are burdened by the easement; and

(2) with respect to each tract of land on which an easement is sought.

(b) Use of an existing easement that is suitable for the purpose for which the easement is sought is presumed to be the least burdensome route for the purposes of this section.

SECTION 5. (a) Section 21.0111(a), Property Code, as amended by this Act, applies only to an offer to purchase property made on or after the effective date of this Act. An offer to purchase property made before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

(b) Except as provided by Subsection (a) of this section, the change in law made by this Act applies only to a condemnation in which a condemnation petition is filed on or after the effective date of this Act. A condemnation in which the condemnation petition is filed before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.