Bill Text: TX SB740 | 2017-2018 | 85th Legislature | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the acquisition of property by an entity with eminent domain authority.

Spectrum: Partisan Bill (Republican 4-0)

Status: (Engrossed - Dead) 2017-05-09 - Referred to Land & Resource Management [SB740 Detail]

Download: Texas-2017-SB740-Comm_Sub.html
 
 
  By: Kolkhorst, et al.  S.B. No. 740
         (In the Senate - Filed February 3, 2017; February 21, 2017,
  read first time and referred to Committee on State Affairs;
  April 27, 2017, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 8, Nays 1; April 27, 2017,
  sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 740 By:  Hughes
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the acquisition of property by an entity with eminent
  domain authority.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 402.031(b), Government Code, is amended
  to read as follows:
         (b)  The landowner's bill of rights must notify each property
  owner that the property owner has the right to:
               (1)  receive notice of the proposed acquisition of the
  owner's property;
               (2)  contact and speak directly with an employee of the
  entity proposing to acquire the property who is qualified to
  discuss the acquisition of the property;
               (3)  receive a bona fide offer from, make a
  counteroffer to, and seek to negotiate terms and conditions with
  [good faith effort to negotiate by] the entity proposing to acquire
  the property;
               (4)  consult with a licensed real estate broker or
  sales agent, an attorney, an appraiser, or any other person
  regarding the proposed acquisition, offer of compensation, or other
  related matters at any time;
               (5)  have [(3)] an assessment made of damages to the
  owner that will result from the taking of the property;
               (6)  be provided [(4)] a hearing under Chapter 21,
  Property Code, including a hearing on the assessment of damages;
  [and]
               (7) [(5)  an] appeal [of] a judgment in a condemnation
  proceeding, including to [an] appeal [of] an assessment of damages;
  and
               (8)  contact the office of the attorney general for
  more information regarding a property owner's rights with respect
  to the condemnation process.
         SECTION 2.  Section 1101.501, Occupations Code, is amended
  to read as follows:
         Sec. 1101.501.  CERTIFICATE REQUIRED. (a)  Except as
  provided by Subsection (b), a [A] person may not sell, buy, lease,
  or transfer an easement or right-of-way [for another], for
  compensation or with the expectation of receiving compensation, on
  behalf of an entity with eminent domain authority [for use in
  connection with telecommunication, utility, railroad, or pipeline
  service] unless the person:
               (1)  holds a license issued under this chapter; and
  [or]
               (2)  holds a certificate of registration issued under
  this subchapter.
         (b)  Subsection (a) does not apply to:
               (1)  an entity with eminent domain authority or the
  entity's employee; or
               (2)  an attorney licensed in this state.
         SECTION 3.  Section 1101.502(a), Occupations Code, is
  amended to read as follows:
         (a)  To be eligible to receive a certificate of registration
  [or a renewal certificate] under this subchapter, a person must:
               (1)  hold a license issued under this chapter [be:  
  (1)     at least 18 years of age]; and
               (2)  complete a right-of-way agent responsibility
  course approved by the commission under Section 1101.5021 [a
  citizen of the United States or a lawfully admitted alien].
         SECTION 4.  Subchapter K, Chapter 1101, Occupations Code, is
  amended by adding Sections 1101.5021, 1101.5042, and 1101.5043 to
  read as follows:
         Sec. 1101.5021.  RIGHT-OF-WAY AGENT RESPONSIBILITY COURSE.
  (a)  The commission by rule shall approve a right-of-way agent
  responsibility course.
         (b)  A course approved by the commission under this section
  must include at least 15 hours of classroom instruction related to:
               (1)  the law of eminent domain, including the rights of
  property owners;
               (2)  appropriate standards of professionalism in
  contacting and conducting negotiations with property owners; and
               (3)  ethical considerations in the performance of
  easement and right-of-way acquisition services.
         Sec. 1101.5042.  ELIGIBILITY REQUIREMENTS FOR RENEWAL
  CERTIFICATE. To be eligible to receive a renewal certificate under
  this subchapter, a person must:
               (1)  hold a license issued under this chapter; and
               (2)  satisfy the continuing education requirements
  under Section 1101.5043.
         Sec. 1101.5043.  CONTINUING EDUCATION. (a)  The commission
  by rule shall approve a continuing education course for certificate
  holders.
         (b)  A continuing education course approved under Subsection
  (a) by the commission must include at least six hours of classroom
  instruction related to the acquisition of easements and
  rights-of-way under eminent domain authority.
         SECTION 5.  Section 21.0111, Property Code, is amended by
  adding Subsections (a-1) and (a-2) to read as follows:
         (a-1)  After an offer to which Subsection (a) applies is
  made, the entity or the property owner shall disclose to the other
  party any new, amended, or updated appraisal report that is
  produced or acquired by or on behalf of the entity or property owner
  after the offer is made and that is used in determining the entity's
  or the property owner's opinion of value.  A disclosure required by
  this subsection must be made not later than the earlier of:
               (1)  the 10th day after the date the entity or property
  owner receives the appraisal report; or
               (2)  the third business day before the date of a special
  commissioner's hearing if the appraisal report is to be used at the
  hearing.
         (a-2)  A new, amended, or updated appraisal report that is
  not disclosed as required by Subsection (a-1), and any testimony or
  other evidence based on the report, may not be presented in a
  hearing under Section 21.015.
         SECTION 6.  Section 21.0113(b), Property Code, is amended to
  read as follows:
         (b)  An entity with eminent domain authority has made a bona
  fide offer if:
               (1)  an initial offer is made in writing to a property
  owner that includes:
                     (A)  a monetary offer in an amount:
                           (i)  equal to or greater than 150 percent of
  the market value of the property sought to be acquired, as
  determined on a per acre or per square foot proportionate valuation
  of raw land as reflected in the appraisal of the county taxing
  authority as of the date of the initial offer; or
                           (ii)  if an appraisal of the property sought
  to be acquired and any damages to any remaining property has been
  completed by a certified appraiser, equal to or greater than the
  amount provided by the appraisal report;
                     (B)  a statement that the entity will not contact
  the property owner sooner than the fourth business day after the
  date of the first personal contact made by the entity after the
  entity sends the initial offer, except to respond to an inquiry from
  the property owner;
                     (C)  the name and telephone number of an employee
  of the entity that the property owner may contact with questions
  regarding the initial offer; and
                     (D)  a copy of the appraisal report on which the
  offer is based, if applicable;
               (2)  a final offer is made in writing to the property
  owner;
               (3)  the final offer is made on or after the 30th day
  after the date on which the entity makes a written initial offer to
  the property owner;
               (4)  before making a final offer, the entity obtains an
  [a written] appraisal report from a certified appraiser of the
  value of the property being acquired and the damages, if any, to any
  of the property owner's remaining property;
               (5)  the final offer is equal to or greater than the
  amount provided by [of] the [written] appraisal report [obtained by
  the entity];
               (6)  the following items are included with the final
  offer or have been previously provided to the owner by the entity:
                     (A)  a copy of the [written] appraisal report;
                     (B)  a copy of the deed, easement, or other
  instrument conveying the property sought to be acquired; [and]
                     (C)  the landowner's bill of rights statement
  prescribed by Section 21.0112; and
                     (D)  a notice, as appropriate, as described by
  Section 21.0114; and
               (7)  the entity provides the property owner with at
  least 14 days to respond to the final offer and the property owner
  does not agree to the terms of the final offer within that period.
         SECTION 7.  Subchapter B, Chapter 21, Property Code, is
  amended by adding Sections 21.0114 and 21.0115 to read as follows:
         Sec. 21.0114.  NOTICE REGARDING PIPELINE AND ELECTRIC
  TRANSMISSION RIGHTS-OF-WAY. (a)  Unless otherwise addressed by
  the easement, the condemning entity shall provide a list of items
  that the landowner may consider when reviewing the offer of the
  condemning entity.
         (b)  If the property is to be acquired for purposes of a
  pipeline right-of-way, the notice must include:
               (1)  the approximate number of pipelines that may be
  installed in the right-of-way;
               (2)  the type or category of each product to be
  transported through the pipelines to be installed in the
  right-of-way;
               (3)  the depth of the pipeline and the amount of cover;
               (4)  a reasonable description of any use the entity
  intends to make of the surface of the right-of-way;
               (5)  a metes and bounds or center line description of
  the location of the right-of-way;
               (6)  the width of the right-of-way;
               (7)  whether the proposed easement is exclusive,
  nonexclusive, or otherwise limited and the terms and conditions of
  any proposed limitation on the property owner's right to use or
  grant additional easements to other parties;
               (8)  the manner in which the entity will access the
  right-of-way, other than in case of an emergency;
               (9)  a statement:
                     (A)  regarding the property owner's right to
  recover actual damages arising from the construction, maintenance,
  repair, replacement, or future removal of a pipeline in the
  right-of-way, including any actual damages to growing crops or
  livestock; or
                     (B)  if applicable, that the initial offer
  includes damages described by Paragraph (A);
               (10)  a statement that the entity will agree to
  coordinate with the property owner regarding the treatment of all
  gates and fences; and
               (11)  a statement that the entity will agree to:
                     (A)  restore to original or better condition any
  areas outside the right-of-way that are used or damaged by the
  entity, to the extent reasonably practicable; or 
                     (B)  pay actual damages for any of those areas the
  entity does not restore.
         (c)  If the property is to be acquired for purposes of an
  electric transmission right-of-way, the notice must include:
               (1)  a copy of any Public Utility Commission of Texas
  order or other regulatory order relevant with respect to initial
  construction;
               (2)  a reasonable description of any use the entity
  intends to make of the surface of the right-of-way;
               (3)  a metes and bounds or center line description of
  the location of the right-of-way;
               (4)  the width of the right-of-way;
               (5)  the type, spacing, and maximum number of poles,
  towers, or other support apparatus that will be used to carry
  electrical lines over the easement;
               (6)  whether the proposed easement is exclusive,
  nonexclusive, or otherwise limited and the terms and conditions of
  any proposed limitation on the property owner's right to use or
  grant additional easements to other parties;
               (7)  the manner in which the entity will access the
  right-of-way, other than in the case of emergency;
               (8)  a statement:
                     (A)  regarding the property owner's right to
  recover actual damages arising from the construction, maintenance,
  repair, replacement, or future removal of lines and support
  apparatus in the right-of-way, including any actual damages to
  growing crops or livestock; or
                     (B)  if applicable, that the initial offer
  includes damages described by Paragraph (A);
               (9)  a statement that the entity will agree to
  coordinate with the property owner regarding the treatment of all
  gates and fences; and
               (10)  a statement that the entity will agree to:
                     (A)  restore to original or better condition any
  areas outside the right-of-way that are used or damaged by the
  entity, to the extent reasonably practicable; or
                     (B)  pay actual damages for any of those areas the
  entity does not restore.
         (d)  A property owner and the entity may agree to terms other
  than those required to be included in the notice required under this
  section.
         (e)  If an entity does not have sufficient information to
  include in a notice required under this section an item listed in
  Subsection (c) or (d), as applicable, the entity shall:
               (1)  in the notice:
                     (A)  indicate the item that is not included; and
                     (B)  state that information regarding the item
  will be provided to the property owner in an amended notice when
  known; and
               (2)  as soon as practicable after the entity obtains
  the information, provide the information to the property owner in
  an amended notice.
         Sec. 21.0115.  LIMITATION OF PROPERTY OWNER LIABILITY. A
  property owner is not liable to a condemning entity, the entity's
  agents, employees, or contractors, including the contractor's
  subcontractors of any tier, or a third party for personal injury,
  death, or property damage:
               (1)  arising from the use by a person other than the
  property owner of property, including for a right-of-way, acquired
  from the property owner by condemnation; and
               (2)  not caused by the property owner's negligence or
  intentional conduct.
         SECTION 8.  Section 21.041, Property Code, is amended to
  read as follows:
         Sec. 21.041.  EVIDENCE. (a)  As the basis for assessing
  actual damages to a property owner from a condemnation, the special
  commissioners shall admit evidence on:
               (1)  the value of the property being condemned;
               (2)  the injury to the property owner;
               (3)  the benefit to the property owner's remaining
  property; and
               (4)  the use of the property for the purpose of the
  condemnation.
         (b)  The special commissioners may admit evidence on the
  price paid for pipeline or electrical line rights-of-way in
  privately negotiated transactions made in the absence of a
  potential, actual, or threatened condemnation.
         SECTION 9.  Section 21.063, Property Code, is amended by
  adding Subsections (c) and (d) to read as follows:
         (c)  As a condition of appealing the final judgment of a
  trial court in a condemnation proceeding, a nongovernmental
  condemnor shall:
               (1)  deposit with the trial court the amount of the
  final judgment, less the amount of any monetary deposit made and any
  bonds posted by the condemnor under Sections 21.021(a)(2) and (3),
  subject to the order of the court of appeals; or
               (2)  post a surety bond, issued by a surety company
  authorized to engage in business in this state and conditioned to
  secure the payment of the final judgment, in the amount of the final
  judgment, less the amount of any monetary deposit made and any bonds
  posted by the condemnor under Sections 21.021(a)(2) and (3).
         (d)  If the property owner moves to enforce Subsection (c)
  and the nongovernmental condemnor fails to comply with that
  subsection before the 30th day after the date the trial court grants
  the motion:
               (1)  the court of appeals shall dismiss the appeal with
  prejudice and order enforcement of the final judgment; and
               (2)  the property owner is entitled to all reasonable
  and necessary fees for attorneys hired in relation to the
  condemnation.
         SECTION 10.  Section 26.11(a), Tax Code, is amended to read
  as follows:
         (a)  If the federal government, the state, or a political
  subdivision of the state acquires the right to possession of
  taxable property under a court order issued in condemnation
  proceedings, assumes possession of taxable property under a
  possession and use agreement, or a similar agreement, that is
  entered into under threat of condemnation, or acquires title to
  taxable property, the amount of the tax due on the property is
  calculated by multiplying the amount of taxes imposed on the
  property for the entire year as determined as provided by Section
  26.09 of this code by a fraction, the denominator of which is 365
  and the numerator of which is the number of days that elapsed prior
  to the date of the conveyance, the effective date of the agreement,
  or the date of the order granting the right of possession, as
  applicable.
         SECTION 11.  The office of the attorney general shall make
  the landowner's bill of rights statement required by Section
  402.031, Government Code, as amended by this Act, available on the
  attorney general's Internet website not later than January 1, 2018.
         SECTION 12.  Not later than January 1, 2018, the Texas Real
  Estate Commission shall adopt rules to implement Subchapter K,
  Chapter 1101, Occupations Code, as amended by this Act.
         SECTION 13.  (a)  Sections 21.0111 and 21.0113, Property
  Code, as amended by this Act, and Sections 21.0114 and 21.0115,
  Property Code, as added by this Act, apply only to the acquisition
  of real property in connection with an initial offer made under
  Section 21.0113, Property Code, on or after the effective date of
  this Act. An acquisition of real property in connection with an
  initial offer made under Section 21.0113, 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)  Section 21.041, Property Code, as amended by this Act,
  applies only to an eminent domain proceeding commenced on or after
  the effective date of this Act. An eminent domain proceeding
  commenced before the effective date of this Act is governed by the
  law applicable to the proceeding immediately before the effective
  date of this Act, and that law is continued in effect for that
  purpose.
         (c)  Section 21.063, Property Code, as amended by this Act,
  applies only to an appeal commenced on or after the effective date
  of this Act. An appeal commenced before the effective date of this
  Act is governed by the law applicable to the appeal immediately
  before the effective date of this Act, and that law is continued in
  effect for that purpose.
         (d)  Section 26.11, Tax Code, as amended by this Act, applies
  only to an agreement entered into on or after the effective date of
  this Act. An agreement entered into before the effective date of
  this Act is governed by the law applicable to the agreement
  immediately before the effective date of this Act, and that law is
  continued in effect for that purpose.
         SECTION 14.  (a)  Except as provided by Subsection (b) of
  this section, this Act takes effect September 1, 2017.
         (b)  Sections 1101.501 and 1101.502, Occupations Code, as
  amended by this Act, and Section 1101.5042, Occupations Code, as
  added by this Act, take effect March 1, 2018.
 
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