Bill Text: TX HB901 | 2021-2022 | 87th Legislature | Introduced
Bill Title: Relating to the acquisition of real property by an entity with eminent domain authority.
Spectrum: Moderate Partisan Bill (Republican 25-4)
Status: (Introduced - Dead) 2021-03-30 - Left pending in committee [HB901 Detail]
Download: Texas-2021-HB901-Introduced.html
87R1031 BEE-F | ||
By: Burns | H.B. No. 901 |
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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 [ |
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commissioners [ |
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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 [ |
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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. |