By: Creighton S.B. No. 1663

(In the Senate - Filed March 6, 2019; March 14, 2019, read first time and referred to Committee on Natural Resources & Economic Development; April 26, 2019, reported adversely, with favorable Committee Substitute by the following vote: Yeas 6, Nays 4; April 26, 2019, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR S.B. No. 1663 By: Hancock

A BILL TO BE ENTITLED

AN ACT

relating to the removal, relocation, alteration, or construction of certain monuments, memorials, or designations located on public property; authorizing a civil penalty.

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

SECTION 1. Section 442.015(b), Government Code, is amended to read as follows:

(b) The commission may use distributions from the Texas preservation trust fund account to provide financial assistance to public or private entities for the acquisition, survey, restoration, or preservation, or for planning and educational activities leading to the preservation, of historic property in the state that is listed in the National Register of Historic Places or designated as a State Archeological Landmark or Recorded Texas Historic Landmark, or that the commission determines is eligible for such listing or designation or for the construction of a monument or memorial described by Section 2166.5011(c) or by Section 338.003, Local Government Code. The financial assistance may be in the amount and form and according to the terms that the commission by rule determines. The commission shall give priority to property the commission determines to be endangered by demolition, neglect, underuse, looting, vandalism, or other threat to the property. Gifts and grants deposited to the credit of the account specifically for any eligible projects may be used only for the type of projects specified. If such a specification is not made, the gift or grant shall be unencumbered and accrue to the benefit of the Texas preservation trust fund account. If such a specification is made, the entire amount of the gift or grant may be used during any period for the project or type of project specified.

SECTION 2. Section 2166.5011, Government Code, is amended to read as follows:

Sec. 2166.5011. REMOVAL, RELOCATION, [OR] ALTERATION, OR CONSTRUCTION OF A MONUMENT OR MEMORIAL. (a) In this section, "monument or memorial" means a permanent monument, memorial, or other designation, including a statue, portrait, plaque, seal, symbol, cenotaph, building name, bridge name, park name, area name, or street name, that:

(1) is located on state property; and

(2) honors an event or person of historic significance [a citizen of this state for military or war-related service].

(b) Notwithstanding any other provision of this code and except as provided by Section 2166.5012, a monument or memorial that has been located on state property:

(1) for at least 25 years may be removed, relocated, or altered only by approval of a concurrent resolution authorizing the removal, relocation, or alteration, including alteration to maintain historical accuracy, by a two-thirds vote of the members of each house of the legislature; or

(2) for less than 25 years may be removed, relocated, or altered, including alteration to maintain historical accuracy, only by formal action of the governing body of or the single state officer who governs the state agency that erected the monument or memorial[:

[(1) by the legislature;

[(2) by the Texas Historical Commission;

[(3) by the State Preservation Board; or

[(4) as provided by Subsection (c)].

(c) An additional [A] monument or memorial may be added [removed, relocated, or altered in a manner otherwise provided by this code as necessary to accommodate construction, repair, or improvements] to the [monument or memorial or to the] surrounding state property on which a [the] monument or memorial is located to complement or contrast with the monument or memorial. [Any monument or memorial that is permanently removed under this subsection must be relocated to a prominent location.]

(d) Notwithstanding Section 2166.003, this section applies to a monument or memorial on property of an institution of higher education, as defined by Section 61.003, Education Code.

SECTION 3. Subchapter K, Chapter 2166, Government Code, is amended by adding Sections 2166.5012 and 2166.5015 to read as follows:

Sec. 2166.5012. CERTAIN DESIGNATIONS BY INSTITUTIONS OF HIGHER EDUCATION. (a) In this section:

(1) "Designation" includes a designation of a portrait, plaque, seal, symbol, building name, bridge name, park name, area name, or street name.

(2) "Institution of higher education" has the meaning assigned by Section 61.003, Education Code.

(b) Notwithstanding Section 2166.003, an institution of higher education may rename or alter a designation only if:

(1) the governing board of the institution of higher education has previously adopted rules providing for the naming, renaming, or altering of a designation in recognition of philanthropic gifts to the institution; and

(2) the renaming or alteration is approved by the governing board.

Sec. 2166.5015. COMPLAINT; EQUITABLE RELIEF; CIVIL PENALTY. (a) A resident of this state may file a complaint with the attorney general if the resident asserts facts supporting an allegation that an entity has violated Section 2166.5011(b) or 2166.5012. The resident must include a sworn statement with the complaint stating that to the best of the resident's knowledge all of the facts asserted in the complaint are true and correct.

(b) If the attorney general determines that a complaint filed under Subsection (a) against an entity is valid, the attorney general may file a petition for a writ of mandamus or apply for other appropriate equitable relief in a district court in Travis County to compel the entity that is suspected of violating Section 2166.5011(b) or 2166.5012 to comply with those sections.

(c) An entity that is found by a court as having intentionally violated Section 2166.5011(b) or 2166.5012 is subject to a civil penalty in an amount of:

(1) not less than $1,000 and not more than $1,500 for the first violation; and

(2) not less than $25,000 and not more than $25,500 for each subsequent violation.

(d) Each day of a continuing violation of Section 2166.5011(b) or 2166.5012 constitutes a separate violation for purposes of a civil penalty under this section.

(e) The court that hears an action brought under this section against an entity shall determine the amount of the civil penalty.

(f) A civil penalty collected under this section shall be deposited to the credit of the general revenue fund.

(g) Sovereign immunity of this state to suit is waived and abolished to the extent of liability created by this section.

SECTION 4. Subtitle C, Title 10, Local Government Code, is amended by adding Chapter 338 to read as follows:

CHAPTER 338. MONUMENTS AND MEMORIALS

Sec. 338.001. DEFINITION. In this chapter, "monument or memorial" means a permanent monument, memorial, or other designation, including a statue, portrait, plaque, seal, symbol, cenotaph, building name, bridge name, park name, area name, or street name, that honors an event or person of historic significance.

Sec. 338.002. REMOVAL, RELOCATION, OR ALTERATION. A monument or memorial that has been located on municipal or county property:

(1) for at least 25 years may be removed, relocated, or altered, including alteration to maintain historical accuracy, only by approval of a majority of the voters of the municipality or county, as applicable, voting at an election held for that purpose; or

(2) for less than 25 years may be removed, relocated, or altered, including alteration to maintain historical accuracy, only by the governing body of the municipality or the commissioners court of the county, as applicable.

Sec. 338.003. ADDITIONAL MONUMENT OR MEMORIAL. An additional monument or memorial may be added to the surrounding municipal or county property on which a monument or memorial is located to complement or contrast with the monument or memorial.

Sec. 338.004. COMPLAINT; EQUITABLE RELIEF; CIVIL PENALTY. (a) A resident of a municipality or county, as applicable, may file a complaint with the attorney general if the resident asserts facts supporting an allegation that the municipality or county has violated Section 338.002. The resident must include a sworn statement with the complaint stating that to the best of the resident's knowledge all of the facts asserted in the complaint are true and correct.

(b) If the attorney general determines that a complaint filed under Subsection (a) against a municipality or county is valid, the attorney general may file a petition for a writ of mandamus or apply for other appropriate equitable relief in a district court in Travis County or in the county in which the suspected violation of Section 338.002 is alleged to have occurred to compel the municipality or county to comply with that section.

(c) A municipality or county that is found by a court as having intentionally violated Section 338.002 is subject to a civil penalty in an amount of:

(1) not less than $1,000 and not more than $1,500 for the first violation; and

(2) not less than $25,000 and not more than $25,500 for each subsequent violation.

(d) Each day of a continuing violation of Section 338.002 constitutes a separate violation for purposes of a civil penalty under this section.

(e) The court that hears an action brought under this section against a municipality or county shall determine the amount of the civil penalty.

(f) A civil penalty collected under this section shall be deposited to the credit of the general revenue fund.

(g) Sovereign immunity of this state and governmental immunity of a county or municipality to suit is waived and abolished to the extent of liability created by this section.

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, 2019.

* * * * *