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A BILL TO BE ENTITLED
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AN ACT
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relating to regulatory takings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2007.002, Government Code, is amended by |
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amending Subdivision (5) and adding Subdivision (6) to read as |
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follows: |
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(5) "Taking" means: |
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(A) a governmental action or series of actions |
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that affects private real property, in whole or in part or |
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temporarily or permanently, in a manner that requires the |
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governmental entity to compensate the private real property owner |
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as provided by the Fifth and Fourteenth Amendments to the United |
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States Constitution or Section 17 or 19, Article I, Texas |
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Constitution; [or] |
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(B) a governmental action or series of actions |
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that: |
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(i) affects an owner's private real |
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property that is the subject of the governmental action, in whole or |
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in part or temporarily or permanently, in a manner that restricts or |
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limits the owner's right to the property that would otherwise exist |
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in the absence of the governmental action; and |
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(ii) is the producing cause of a reduction |
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of at least 25 percent in the market value of the affected private |
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real property, determined by comparing the market value of the |
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property as if the governmental action is not in effect and the |
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market value of the property determined as if the governmental |
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action is in effect; or |
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(C) a governmental action or series of actions |
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that has the effect of limiting the overall impervious cover of any |
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development or use of an owner's private real property to less than |
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35 percent of the surface area of the property, excluding any |
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portion of the property that is within the 100-year floodplain as |
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determined by the most recent maps published by the Federal |
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Emergency Management Agency or that slopes more than 35 percent. |
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(6) "Impervious cover" means impermeable surfaces, |
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including pavement and rooftops, that prevent the infiltration of |
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water into the soil. The term does not include a rainwater |
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collection system for a domestic water supply. |
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SECTION 2. Sections 2007.003(a), (b), and (d), Government |
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Code, are amended to read as follows: |
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(a) This chapter applies only to the following governmental |
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actions: |
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(1) the adoption or issuance of an ordinance, rule, |
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regulatory requirement, resolution, policy, guideline, or similar |
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measure; |
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(2) an action that imposes a physical invasion or |
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requires a dedication or exaction of private real property; and |
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(3) [an action by a municipality that has effect in the
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extraterritorial jurisdiction of the municipality, excluding
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annexation, and that enacts or enforces an ordinance, rule,
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regulation, or plan that does not impose identical requirements or
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restrictions in the entire extraterritorial jurisdiction of the
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municipality; and
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[(4)] enforcement of a governmental action listed in |
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Subdivisions (1) and (2) [through (3)], whether the enforcement of |
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the governmental action is accomplished through the use of |
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permitting, citations, orders, judicial or quasi-judicial |
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proceedings, or other similar means. |
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(b) This chapter does not apply to the following |
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governmental actions: |
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(1) [an action by a municipality except as provided by
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Subsection (a)(3);
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[(2)] a lawful forfeiture or seizure of contraband as |
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defined by Article 59.01, Code of Criminal Procedure; |
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(2) [(3)] a lawful seizure of property as evidence of |
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a crime or violation of law; |
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(3) [(4)
an action, including an action of a political
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subdivision, that is reasonably taken to fulfill an obligation
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mandated by federal law or an action of a political subdivision that
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is reasonably taken to fulfill an obligation mandated by state law;
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[(5)] the discontinuance or modification of a program |
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or regulation that provides a unilateral expectation that does not |
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rise to the level of a recognized interest in private real property; |
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(4) [(6)] an action taken to prohibit or restrict a |
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condition or use of private real property if the governmental |
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entity proves that the condition or use constitutes a public or |
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private nuisance as defined by background principles of nuisance |
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and property law of this state; |
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(5) [(7)] an action taken out of a reasonable good |
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faith belief that the action is necessary to prevent a grave and |
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immediate threat to life or property; |
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(6) [(8)] a formal exercise of the power of eminent |
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domain; |
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(7) [(9)] an action taken under a state mandate to |
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prevent waste of oil and gas, protect correlative rights of owners |
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of interests in oil or gas, or prevent pollution related to oil and |
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gas activities; |
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(8) [(10)] a rule or proclamation adopted for the |
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purpose of regulating water safety, hunting, fishing, or control of |
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nonindigenous or exotic aquatic resources; |
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(9) [(11)] an action taken by a political subdivision |
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[:
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[(A)
to regulate construction in an area
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designated under law as a floodplain;
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[(B) to regulate on-site sewage facilities;
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[(C)
under the political subdivisions's
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statutory authority to prevent waste or protect rights of owners of
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interest in groundwater; or
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[(D)] to prevent subsidence; |
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(10) [(12)] the appraisal of property for purposes of |
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ad valorem taxation; |
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(11) [(13)] an action that[:
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[(A)
is taken in response to a real and
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substantial threat to public health and safety;
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[(B)] is designed to significantly advance a |
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[the] health and safety purpose; [and
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[(C)
does not impose a greater burden than is
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necessary to achieve the health and safety purpose;] or |
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(12) [(14)] an action or rulemaking undertaken by the |
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Public Utility Commission of Texas to order or require the location |
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or placement of telecommunications equipment owned by another party |
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on the premises of a certificated local exchange company. |
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(d) This chapter does not apply to an action taken by a |
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political subdivision to ensure compliance with on-site sewage |
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facility regulations promulgated by the Texas Commission on |
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Environmental Quality [applies to a governmental action taken by a
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county only if the action is taken on or after September 1, 1997]. |
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SECTION 3. Section 2007.021(b), Government Code, is amended |
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to read as follows: |
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(b) A suit under this subchapter must be filed not later |
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than the second anniversary of the later of: |
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(1) the earliest date on which the ordinance, rule, |
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regulatory requirement, resolution, policy, guideline, or similar |
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measure on which the suit is based is enforced with respect to the |
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owner's private real property; or |
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(2) the earliest date on which the ordinance, rule, |
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regulatory requirement, resolution, policy, guideline, or similar |
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measure on which the suit is based is applied to the owner's private |
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real property with respect to any permit application affecting the |
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real property [180th day after the date the private real property
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owner knew or should have known that the governmental action
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restricted or limited the owner's right in the private real
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property]. |
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SECTION 4. Section 2007.022(b), Government Code, is amended |
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to read as follows: |
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(b) A contested case must be filed with the agency not later |
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than the second anniversary of the later of: |
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(1) the earliest date on which the ordinance, rule, |
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regulatory requirement, resolution, policy, guideline, or similar |
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measure on which the case is based is enforced with respect to the |
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owner's private real property; or |
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(2) the earliest date on which the ordinance, rule, |
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regulatory requirement, resolution, policy, guideline, or similar |
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measure on which the case is based is applied to the owner's private |
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real property with respect to any permit application affecting the |
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real property [the 180th day after the date the private real
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property owner knew or should have known that the governmental
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action restricted or limited the owner's right in the private real
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property]. |
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SECTION 5. Section 2007.023(b), Government Code, is amended |
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to read as follows: |
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(b) If the trier of fact in a suit or contested case filed |
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under this subchapter finds that the governmental action is a |
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taking under this chapter, the private real property owner is only |
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entitled to, and the governmental entity is only liable for: |
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(1) [,] invalidation of the governmental action or the |
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part of the governmental action resulting in the taking; and |
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(2) damages determined under Section 2007.024(b). |
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SECTION 6. Section 2007.024, Government Code, is amended by |
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amending Subsection (b) and adding Subsection (b-1) to read as |
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follows: |
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(b) The judgment or final decision or order shall include a |
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fact finding that determines the monetary damages suffered by the |
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private real property owner as a result of the taking, including, if |
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the governmental action has ceased or has been rescinded, amended, |
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invalidated, or repealed, the temporary or permanent economic loss |
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sustained by the private real property owner while the governmental |
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action was in effect. |
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(b-1) The amount of damages under Subsection (b) is |
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determined from the date of the taking. |
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SECTION 7. Section 2007.026(b), Government Code, is amended |
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to read as follows: |
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(b) The court or the state agency shall award a governmental |
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entity that prevails in a suit or contested case filed under this |
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subchapter reasonable and necessary attorney's fees and court costs |
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only if the court determines that the private real property owner |
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knew that the suit or contested case had no merit at the time the |
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owner filed the suit or contested case. |
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SECTION 8. Section 2007.041(a), Government Code, is amended |
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to read as follows: |
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(a) The attorney general shall prepare guidelines to assist |
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governmental entities in identifying and evaluating those |
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governmental actions described in Sections [Section] |
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2007.003(a)(1) and (2) [through (3)] that may result in a taking. |
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SECTION 9. Section 2007.042(a), Government Code, is amended |
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to read as follows: |
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(a) A political subdivision that proposes to engage in a |
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governmental action described in Section 2007.003(a)(1) or (2) |
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[through (3)] that may result in a taking shall provide at least 30 |
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days' notice of its intent to engage in the proposed action by |
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providing a reasonably specific description of the proposed action |
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in a notice published in a newspaper of general circulation |
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published in the county in which affected private real property is |
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located. If a newspaper of general circulation is not published in |
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that county, the political subdivision shall publish a notice in a |
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newspaper of general circulation located in a county adjacent to |
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the county in which affected private real property is located. The |
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political subdivision shall, at a minimum, include in the notice a |
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reasonably specific summary of the takings impact assessment that |
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was prepared as required by this subchapter and the name of the |
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official of the political subdivision from whom a copy of the full |
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assessment may be obtained. |
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SECTION 10. Section 2007.044, Government Code, is amended |
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by amending Subsection (a) and adding Subsection (d) to read as |
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follows: |
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(a) A governmental action requiring a takings impact |
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assessment is void if an assessment is not prepared in compliance |
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with the evaluation guidelines developed by the attorney general |
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under Section 2007.041. A private real property owner affected by a |
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governmental action taken without the preparation of a takings |
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impact assessment as required by this subchapter may bring suit for |
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a declaration of the invalidity of the governmental action. |
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(d) A proposed governmental action described by Section |
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2007.003(a)(1) or (2) that requires a takings impact assessment may |
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be stayed if an assessment is not prepared or if the assessment is |
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not in compliance with the evaluation guidelines developed by the |
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attorney general under Section 2007.041. A private real property |
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owner affected by the proposed governmental action may bring suit |
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to enforce the preparation of a takings impact assessment in |
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compliance with those guidelines. If the trier of fact in a suit |
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filed under this subchapter finds that the takings impact |
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assessment is not prepared or is not in compliance with the |
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evaluation guidelines, the court shall stay the proposed |
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governmental action. |
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SECTION 11. The change in law made by this Act applies only |
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to a governmental action or series of actions that commences on or |
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after the effective date of this Act. A governmental action or |
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series of actions that commences before the effective date of this |
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Act is governed by the law in effect immediately before that date, |
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and that law is continued in effect for that purpose. |
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SECTION 12. 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 |
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effect, this Act takes effect September 1, 2011. |