81R7191 AJA-D

By: Ogden S.B. No. 1023

A BILL TO BE ENTITLED

AN ACT

relating to the exercise of eminent domain authority.

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

SECTION 1. Chapter 2206, Government Code, is amended by adding Section 2206.002 to read as follows:

Sec. 2206.002. USE OF CERTAIN PROPERTY INTERESTS ACQUIRED THROUGH EMINENT DOMAIN: MINIMAL INTRUSION REQUIRED. (a) A public or private entity that obtains through the use of eminent domain a property interest that is less than fee simple title must, with respect to the property owner from whom the interest is obtained, use the least intrusive means for achieving the purpose for which the interest is obtained.

(b) The court in which the property interest was condemned has continuing jurisdiction over the condemning entity's use of the property interest condemned for the purpose of ensuring compliance of the entity with this section.

(c) A property owner from whom a property interest subject to this section was taken may petition the court in which the property interest was condemned at any time for injunctive relief to obtain compliance of the condemning entity with this section.

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

Sec. 21.0122. PROOF OF NECESSITY; MINIMAL INTRUSIVENESS. (a) In addition to the contents prescribed by Section 21.012(b), a condemnation petition must state that the facts to be proven are that:

(1) the petitioner is authorized to condemn property for the purpose for which the property that is the subject of the petition is sought;

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

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

(4) with respect to the property owner from whom a property interest that is less than fee simple title is sought, the petitioner will use the least intrusive means for achieving that public use.

(b) In a condemnation proceeding subject to Subsection (a)(4), a property owner may submit evidence that a less intrusive means of achieving the purpose for which the condemning entity seeks the property interest exists. If the property owner submits evidence under this subsection, the condemning entity has the burden of proving that the means sought through the condemnation is less intrusive than the means proposed by the property owner.

(c) If a condemning entity fails to prove any of the facts under Subsection (a) or meet the entity's burden under Subsection (b), the court shall:

(1) deny the condemnation; and

(2) award to the property owner the owner's court costs and reasonable attorney's fees incurred in relation to the condemnation proceeding.

SECTION 3. Section 21.047(a), Property Code, is amended to read as follows:

(a) Special commissioners may adjudge the costs of an eminent domain proceeding against any party. If the commissioners award greater damages than the condemnor offered to pay before the proceedings began or if the decision of the commissioners is appealed and a court awards greater damages than the commissioners awarded, the condemnor shall pay all costs and the property owner's reasonable attorney's fees and expert witness fees. If the commissioners' award or the court's determination of the damages is less than or equal to the amount the condemnor offered before proceedings began, the property owner shall pay the costs.

SECTION 4. 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 5. 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.