Bill Text: TX HB901 | 2021-2022 | 87th Legislature | Introduced

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Bill Title: Relating to the acquisition of real property by an entity with eminent domain authority.

Sponsorship: Moderate Partisan Bill (Republican 25-4)

Status: (Introduced - Dead) 2021-03-30 - Left pending in committee [HB901 Detail]

Download: Texas-2021-HB901-Introduced.html

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87R1031 BEE-F
By: Burns H.B. No. 901

A BILL TO BE ENTITLED
AN ACT
relating to the acquisition of real property by an entity with
eminent domain authority.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 21.0113, Property Code, is amended by
adding Subsections (c), (d), (e), and (f) to read as follows:
(c) Notwithstanding Subsection (b), a private entity, as
defined by Section 21.0114, with eminent domain authority that
wants to acquire real property for a public use has made a bona fide
offer only if the entity:
(1) satisfies the requirements of Subsection (b);
(2) includes with the initial offer:
(A) an offer of compensation in an amount equal
to or greater than:
(i) the market value of the property rights
sought to be acquired, including an estimate of damages to the
property owner's remaining property, if any, based on an appraisal
of the property prepared by a third party who is a certified general
appraiser licensed under Chapter 1103, Occupations Code; or
(ii) the estimated price or market value of
the property rights sought to be acquired based on data for at least
three comparable arm's-length sales of a fee simple interest in
property, including an estimate of damages to the property owner's
remaining property, if any, based on data then available to the
appraiser, broker, or private entity, as applicable, and based on:
(a) a comparative market analysis
prepared by a third party who is a real estate broker licensed under
Chapter 1101, Occupations Code, or a certified general appraiser
licensed under Chapter 1103, Occupations Code;
(b) a broker price opinion prepared by
a third party who is a real estate broker licensed under Chapter
1101, Occupations Code; or
(c) a market study prepared by a third
party who is a real estate broker licensed under Chapter 1101,
Occupations Code, or a certified general appraiser licensed under
Chapter 1103, Occupations Code;
(B) the complete written report of the appraisal,
the comparative market analysis, the broker price opinion, the
market study, or a summary of the market study, as prepared by the
third party, that forms the basis for the amount of the offer of
compensation under Paragraph (A);
(C) a deed, easement, agreement, or other
instrument of conveyance for the property rights sought that
complies with Section 21.0114;
(D) notice of the terms described by Section
21.0114(d) for which the property owner may negotiate to be
included in a deed, easement, agreement, or other instrument of
conveyance relating to the property; and
(E) the landowner's bill of rights statement
prescribed by Section 21.0112, unless previously provided to the
property owner;
(3) provides notice of the proposed project to the
county judge as required by Section 21.0115; and
(4) includes in the final offer, if made:
(A) a copy of the written appraisal report
required by Subsection (b)(4) unless the entity has previously
provided a copy of the report to the property owner; and
(B) a deed, easement, agreement, or other
instrument of conveyance for the property rights sought that
complies with Section 21.0114.
(d) For purposes of Subsection (c)(2)(A)(ii), a real estate
broker licensed under Chapter 1101, Occupations Code, is authorized
to prepare an estimated price based on a comparative market
analysis, a broker price opinion, a market study, or a summary of
the market study.
(e) A condemnation suit may not be abated, delayed, or
dismissed for noncompliance with this subchapter, except as
provided under Section 21.047(d).
(f) A private entity that provides to a property owner an
easement form that is generally consistent with the language or
provisions required by Section 21.0114(c) and the notice required
by Section 21.0114(d) is considered to have complied with Section
21.0114 for purposes of Subsection (c)(2)(C) of this section,
regardless of whether the private entity subsequently provides to
the property owner a different deed, easement, agreement, or other
instrument of conveyance as authorized under Sections 21.0114(e)
and (f).
SECTION 2. Subchapter B, Chapter 21, Property Code, is
amended by adding Sections 21.0114 and 21.0115 to read as follows:
Sec. 21.0114. REQUIRED TERMS FOR INSTRUMENTS OF CONVEYANCE
OF CERTAIN EASEMENTS. (a) In this section, "private entity":
(1) means:
(A) a for-profit entity, as defined by Section
1.002, Business Organizations Code, however organized, including
an affiliate or subsidiary, authorized to exercise the power of
eminent domain to acquire private property for public use; or
(B) a corporation organized under Chapter 67,
Water Code, that has a for-profit entity, however organized, as the
sole or majority member; and
(2) does not include an entity governed by the Natural
Gas Act (15 U.S.C. Section 717 et seq.) unless the entity seeks to
acquire property under this chapter.
(b) This section applies only to a deed, easement,
agreement, or other instrument of conveyance for a pipeline
right-of-way easement or an electric transmission right-of-way
easement.
(c) Except as provided by Subsections (d), (e), and (f), a
deed, easement, agreement, or other instrument of conveyance
provided to a property owner by a private entity with eminent domain
authority to acquire the property interest to be conveyed must
include the following terms, as applicable:
(1) if the instrument conveys a pipeline right-of-way
easement, the following terms with respect to the easement rights
granted under the instrument:
(A) the maximum number of pipelines that may be
installed in the easement;
(B) the maximum diameter, excluding any
protective coating or wrapping, of each pipeline to be initially
installed in the easement;
(C) the type or category of substances permitted
to be transported through each pipeline to be installed in the
easement;
(D) a general description of any aboveground
equipment or facility the private entity intends to install,
maintain, or operate on the surface of the easement;
(E) a description or illustration of the location
of the easement, including a metes and bounds or centerline
description, plat, or aerial or other map-based depiction of the
location of the easement on the property;
(F) the maximum width of the easement;
(G) the minimum depth at which each pipeline to
be installed in the easement will initially be installed;
(H) a provision identifying whether the private
entity intends to double-ditch areas of the easement that are not
installed by boring or horizontal directional drilling;
(I) a provision requiring the private entity to
provide written notice to the property owner at the last known
address of the person in whose name the property is listed on the
most recent tax roll of any taxing unit authorized to levy property
taxes against the property before assigning the private entity's
interest under the deed, easement, agreement, or other instrument
of conveyance to another entity;
(J) a provision describing whether the easement
rights are exclusive, nonexclusive, or otherwise limited;
(K) a provision limiting the private entity's
right to grant a third party access to the easement area for a
purpose that is not related to the construction, safety, repair,
maintenance, inspection, replacement, operation, or removal of
each pipeline to be installed in the easement;
(L) a provision regarding the property owner's
right to recover actual monetary damages arising from the
construction and installation of each pipeline to be installed in
the easement, or a statement that the consideration for the
easement includes any monetary damages arising from the
construction and installation of each pipeline to be installed in
the easement;
(M) a provision regarding the property owner's
right after initial construction and installation of each pipeline
to be installed in the easement to actual monetary damages arising
from the repair, maintenance, inspection, replacement, operation,
or removal of each pipeline to be installed in the easement;
(N) a provision:
(i) regarding the removal, cutting, use,
repair, and replacement of gates and fences that cross the easement
or that will be used by the private entity; or
(ii) providing for the payment for any
damage that is not restored or paid for as part of the consideration
for the easement;
(O) a provision:
(i) regarding the private entity's
obligation to restore the easement area and the property owner's
remaining property, if any, used by the private entity to as near to
original condition as is reasonably practicable and to maintain the
easement; or
(ii) providing for the private entity to
reimburse the property owner for actual monetary damages incurred
by the property owner that arise from damage to the easement area
and the property owner's remaining property caused by the private
entity and not restored or paid for as part of the consideration for
the easement; and
(P) a provision describing the private entity's
rights of ingress, egress, entry, and access on, to, over, and
across the easement;
(2) if the instrument conveys an electric transmission
right-of-way easement:
(A) a general description of any use of the
surface of the easement the entity intends to acquire;
(B) a description or illustration of the location
of the easement, including a metes and bounds or centerline
description, plat, or aerial or other map-based depiction of the
location of the easement on the property;
(C) the maximum width of the easement;
(D) the manner in which the entity will access
the easement;
(E) a provision limiting access to the easement
area by a third party that has not obtained authorization from the
property owner for a purpose that is not related to the transmission
line's construction, safety, repair, maintenance, inspection,
replacement, operation, or removal;
(F) a provision regarding the property owner's
right to recover actual monetary damages arising from the
construction, repair, maintenance, replacement, or future removal
of lines and support facilities after initial construction in the
easement, or a statement that the consideration for the easement
includes such future damages;
(G) a provision:
(i) regarding the removal, cutting, use,
repair, and replacement of gates and fences that cross the easement
or that will be used by the private entity; or
(ii) providing for the payment for any
damage that is not restored or paid for as part of the consideration
for the easement;
(H) a provision regarding the entity's
obligation to restore the easement area and the property owner's
remaining property to the easement area's and the remaining
property's original contours and grades, to the extent practicable,
and:
(i) a provision regarding the entity's
obligation to restore the easement area and the property owner's
remaining property following any future damages directly
attributed to the use of the easement by the private entity, to the
extent practicable; or
(ii) a provision that the consideration for
the easement includes future damages to the easement area and the
property owner's remaining property;
(I) a provision describing whether the easement
rights are exclusive, nonexclusive, or otherwise limited; and
(J) a prohibition against the assignment of the
entity's interest in the property to an assignee that will not
operate as a utility subject to the jurisdiction of the Public
Utility Commission of Texas or the Federal Energy Regulatory
Commission without written notice to the property owner at the last
known address of the person in whose name the property is listed on
the most recent tax roll of any taxing unit authorized to levy
property taxes against the property;
(3) a prohibition against any use of the property
being conveyed, other than a use stated in the deed, easement,
agreement, or other instrument of conveyance, without the express
written consent of the property owner;
(4) a provision that the terms of the deed, easement,
agreement, or other instrument of conveyance will bind the
successors and assigns of the property owner and private entity;
and
(5) a provision setting forth the applicable insurance
or self-insurance to be provided by the private entity.
(d) A private entity shall notify the property owner that
the property owner may negotiate for the following terms to be
included in a deed, easement, agreement, or other instrument of
conveyance described by Subsection (c):
(1) a provision regarding the property owner's right
to negotiate to recover damages, or a statement that the
consideration for the easement includes damages, for:
(A) damage to vegetation; and
(B) the income loss from disruption of existing
agricultural production or existing leases based on verifiable loss
or lease payments; and
(2) a provision:
(A) requiring the private entity to maintain at
all times while the private entity uses the easement, including
during construction and operations on the easement, liability
insurance:
(i) issued by an insurer authorized to
issue liability insurance in this state; and
(ii) insuring the property owner against
liability for personal injuries and property damage sustained by
any person to the extent caused by the negligence of the private
entity or the private entity's agents or contractors and to the
extent allowed by law; or
(B) if the private entity is subject to the
jurisdiction of the Public Utility Commission of Texas or has a net
worth of at least $25 million, requiring the private entity to
indemnify the property owner against liability for personal
injuries and property damage sustained by any person caused by the
negligence of the private entity or the private entity's agents or
contractors.
(e) A private entity or the property owner may:
(1) negotiate for and agree to terms and conditions
not required by Subsection (c) or provided by Subsection (d),
including terms and conditions that differ from or are not included
in a subsequent condemnation petition; and
(2) agree to a deed, easement, agreement, or other
instrument of conveyance that does not include or includes terms
that differ from the terms required by Subsection (c).
(f) Except as provided by this subsection, this section does
not prohibit a private entity or the property owner from agreeing to
amend, alter, or omit the terms required by Subsection (c) at any
time after the private entity first provides a deed, easement,
agreement, or other instrument containing those terms to the
property owner, whether before or at the same time that the entity
makes an initial offer to the property owner. A private entity that
changes the terms required by Subsection (c) must provide a copy of
the amended deed, easement, agreement, or other instrument of
conveyance to the property owner not later than the seventh day
before the date the private entity files a condemnation petition
relating to the property.
(g) A private entity that amends a deed, easement,
agreement, or other instrument of conveyance after the initial
offer or final offer is not required to satisfy again any
requirement of Section 21.0113 that the private entity has
previously satisfied.
Sec. 21.0115. NOTICE OF INTENT. (a) A private entity as
defined by Section 21.0114 must send a written notice of intent to
the county judge of a county in which the private entity will seek
to acquire property for a project for public use before the first
time the private entity makes an initial offer to acquire real
property for the project in that county.
(b) A notice sent under Subsection (a) must:
(1) state the private entity's intent to acquire real
property for public use;
(2) specify the public use; and
(3) identify the proposed route, including the tracts
of real property, identified by the tract number assigned by the
county assessor-collector, that the private entity intends to
acquire.
SECTION 3. Section 21.012, Property Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) In addition to the contents prescribed by Subsection
(b), a petition filed by a private entity as defined by Section
21.0114 to acquire property for a public use must state the terms to
be included in the instrument of conveyance under Section
21.0114(c).
SECTION 4. Section 21.014(a), Property Code, is amended to
read as follows:
(a) The judge of a court in which a condemnation petition is
filed or to which an eminent domain case is assigned shall, not
later than the 30th day after the date the property owner received
notice that the petition has been filed under Section 21.012,
appoint three disinterested real property owners who reside in the
county as special commissioners to assess the damages of the owner
of the property being condemned and two disinterested real property
owners who reside in the county as alternate special commissioners.
The judge appointing the special commissioners shall give
preference to any persons agreed on by the parties before the court
appoints the special commissioners. Each party shall have 15 days
after the date the property owner received notice of the
appointment of the special commissioners [The judge shall provide
each party a reasonable period] to strike one of the three special
commissioners [appointed by the judge]. If a person fails to serve
as a special commissioner or is struck by a party to the suit in
accordance with this subsection, an alternate special commissioner
shall serve as a replacement for the special commissioner based on
the order that the alternate special commissioners are listed in
the initial order of appointment [, the judge shall appoint a
replacement].
SECTION 5. (a) Except as provided by Subsection (b) of this
section, the changes in law made by this Act apply to the
acquisition of real property in connection with an initial offer
made under Chapter 21, Property Code, on or after the effective date
of this Act. An acquisition of real property in connection with an
initial offer made under Chapter 21, Property Code, before the
effective date of this Act is governed by the law applicable to the
acquisition immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
(b) The changes in law made by this Act do not apply to an
electric transmission project for which the Public Utility
Commission of Texas has issued a final and appealable order that
amends a certificate of convenience and necessity before the
effective date of this Act.
SECTION 6. This Act takes effect January 1, 2022.