CHAPTER 2007. GOVERNMENTAL ACTION AFFECTING PRIVATE PROPERTY RIGHTS
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE A. ADMINISTRATIVE PROCEDURE AND PRACTICE
CHAPTER 2007. GOVERNMENTAL ACTION AFFECTING PRIVATE PROPERTY
RIGHTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2007.001. SHORT TITLE. This chapter may be cited as the
Private Real Property Rights Preservation Act.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.002. DEFINITIONS. In this chapter:
(1) "Governmental entity" means:
(A) a board, commission, council, department, or other agency in
the executive branch of state government that is created by
constitution or statute, including an institution of higher
education as defined by Section 61.003, Education Code; or
(B) a political subdivision of this state.
(2) "Owner" means a person with legal or equitable title to
affected private real property at the time a taking occurs.
(3) "Market value" means the price a willing buyer would pay a
willing seller after considering all factors in the marketplace
that influence the price of private real property.
(4) "Private real property" means an interest in real property
recognized by common law, including a groundwater or surface
water right of any kind, that is not owned by the federal
government, this state, or a political subdivision of this state.
(5) "Taking" means:
(A) a governmental action that affects private real property, in
whole or in part or temporarily or permanently, in a manner that
requires the governmental entity to compensate the private real
property owner as provided by the Fifth and Fourteenth Amendments
to the United States Constitution or Section 17 or 19, Article I,
Texas Constitution; or
(B) a governmental action that:
(i) affects an owner's private real property that is the subject
of the governmental action, in whole or in part or temporarily or
permanently, in a manner that restricts or limits the owner's
right to the property that would otherwise exist in the absence
of the governmental action; and
(ii) is the producing cause of a reduction of at least 25
percent in the market value of the affected private real
property, determined by comparing the market value of the
property as if the governmental action is not in effect and the
market value of the property determined as if the governmental
action is in effect.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.003. APPLICABILITY. (a) This chapter applies only to
the following governmental actions:
(1) the adoption or issuance of an ordinance, rule, regulatory
requirement, resolution, policy, guideline, or similar measure;
(2) an action that imposes a physical invasion or requires a
dedication or exaction of private real property;
(3) an action by a municipality that has effect in the
extraterritorial jurisdiction of the municipality, excluding
annexation, and that enacts or enforces an ordinance, rule,
regulation, or plan that does not impose identical requirements
or restrictions in the entire extraterritorial jurisdiction of
the municipality; and
(4) enforcement of a governmental action listed in Subdivisions
(1) through (3), whether the enforcement of the governmental
action is accomplished through the use of permitting, citations,
orders, judicial or quasi-judicial proceedings, or other similar
means.
(b) This chapter does not apply to the following governmental
actions:
(1) an action by a municipality except as provided by Subsection
(a)(3);
(2) a lawful forfeiture or seizure of contraband as defined by
Article 59.01, Code of Criminal Procedure;
(3) a lawful seizure of property as evidence of a crime or
violation of law;
(4) an action, including an action of a political subdivision,
that is reasonably taken to fulfill an obligation mandated by
federal law or an action of a political subdivision that is
reasonably taken to fulfill an obligation mandated by state law;
(5) the discontinuance or modification of a program or
regulation that provides a unilateral expectation that does not
rise to the level of a recognized interest in private real
property;
(6) an action taken to prohibit or restrict a condition or use
of private real property if the governmental entity proves that
the condition or use constitutes a public or private nuisance as
defined by background principles of nuisance and property law of
this state;
(7) an action taken out of a reasonable good faith belief that
the action is necessary to prevent a grave and immediate threat
to life or property;
(8) a formal exercise of the power of eminent domain;
(9) an action taken under a state mandate to prevent waste of
oil and gas, protect correlative rights of owners of interests in
oil or gas, or prevent pollution related to oil and gas
activities;
(10) a rule or proclamation adopted for the purpose of
regulating water safety, hunting, fishing, or control of
nonindigenous or exotic aquatic resources;
(11) an action taken by a political subdivision:
(A) to regulate construction in an area designated under law as
a floodplain;
(B) to regulate on-site sewage facilities;
(C) under the political subdivisions's statutory authority to
prevent waste or protect rights of owners of interest in
groundwater; or
(D) to prevent subsidence;
(12) the appraisal of property for purposes of ad valorem
taxation;
(13) an action that:
(A) is taken in response to a real and substantial threat to
public health and safety;
(B) is designed to significantly advance the health and safety
purpose; and
(C) does not impose a greater burden than is necessary to
achieve the health and safety purpose; or
(14) an action or rulemaking undertaken by the Public Utility
Commission of Texas to order or require the location or placement
of telecommunications equipment owned by another party on the
premises of a certificated local exchange company.
(c) Sections 2007.021 and 2007.022 do not apply to the
enforcement or implementation of a statute, ordinance, order,
rule, regulation, requirement, resolution, policy, guideline, or
similar measure that was in effect September 1, 1995, and that
prevents the pollution of a reservoir or an aquifer designated as
a sole source aquifer under the federal Safe Drinking Water Act
(42 U.S.C. Section 300h-3(e)).
(d) This chapter applies to a governmental action taken by a
county only if the action is taken on or after September 1, 1997.
(e) This chapter does not apply to the enforcement or
implementation of Subchapter B, Chapter 61, Natural Resources
Code, as it existed on September 1, 1995, or to the enforcement
or implementation of any rule or similar measure that was adopted
under that subchapter and was in existence on September 1, 1995.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.004. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO
SUE. (a) Sovereign immunity to suit and liability is waived and
abolished to the extent of liability created by this chapter.
(b) This section does not authorize a person to execute a
judgment against property of the state or a governmental entity.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.005. ALTERNATIVE DISPUTE RESOLUTION. Chapter 154,
Civil Practice and Remedies Code, applies to a suit filed under
this chapter.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.006. CUMULATIVE REMEDIES. (a) The provisions of this
chapter are not exclusive. The remedies provided by this chapter
are in addition to other procedures or remedies provided by law.
(b) A person may not recover under this chapter and also recover
under another law or in an action at common law for the same
economic loss.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
SUBCHAPTER B. ACTION TO DETERMINE TAKING
Sec. 2007.021. SUIT AGAINST POLITICAL SUBDIVISION. (a) A
private real property owner may bring suit under this subchapter
to determine whether the governmental action of a political
subdivision results in a taking under this chapter. A suit under
this subchapter must be filed in a district court in the county
in which the private real property owner's affected property is
located. If the affected private real property is located in more
than one county, the private real property owner may file suit in
any county in which the affected property is located.
(b) A suit under this subchapter must be filed not later than
the 180th day after the date the private real property owner knew
or should have known that the governmental action restricted or
limited the owner's right in the private real property.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.022. ADMINISTRATIVE PROCEEDING AGAINST STATE AGENCY.
(a) A private real property owner may file a contested case with
a state agency to determine whether a governmental action of the
state agency results in a taking under this chapter.
(b) A contested case must be filed with the agency not later
than the 180th day after the date the private real property owner
knew or should have known that the governmental action restricted
or limited the owner's right in the private real property.
(c) A contested case filed under this section is subject to
Chapter 2001 except to the extent of a conflict with this
subchapter.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.023. ENTITLEMENT TO INVALIDATION OF GOVERNMENTAL
ACTION. (a) Whether a governmental action results in a taking
is a question of fact.
(b) If the trier of fact in a suit or contested case filed under
this subchapter finds that the governmental action is a taking
under this chapter, the private real property owner is only
entitled to, and the governmental entity is only liable for,
invalidation of the governmental action or the part of the
governmental action resulting in the taking.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.024. JUDGMENT OR FINAL DECISION OR ORDER. (a) The
court's judgment in favor of a private real property owner under
Section 2007.021 or a final decision or order issued under
Section 2007.022 that determines that a taking has occurred shall
order the governmental entity to rescind the governmental action,
or the part of the governmental action resulting in the taking,
as applied to the private real property owner not later than the
30th day after the date the judgment is rendered or the decision
or order is issued.
(b) The judgment or final decision or order shall include a fact
finding that determines the monetary damages suffered by the
private real property owner as a result of the taking. The amount
of damages is determined from the date of the taking.
(c) A governmental entity may elect to pay the damages as
compensation to the private real property owner who prevails in a
suit or contested case filed under this subchapter. Sovereign
immunity to liability is waived to the extent the governmental
entity elects to pay compensation under this subsection.
(d) If a governmental entity elects to pay compensation to the
private real property owner:
(1) the court that rendered the judgment in the suit or the
state agency that issued the final order or decision in the case
shall withdraw the part of the judgment or final decision or
order rescinding the governmental action; and
(2) the governmental entity shall pay to the owner the damages
as determined in the judgment or final order not later than the
30th day after the date the judgment is rendered or the final
decision or order is issued.
(e) If the governmental entity does not pay compensation to the
private real property owner as provided by Subsection (d), the
court or the state agency shall reinstate the part of the
judgment or final decision or order previously withdrawn.
(f) A state agency that elects to pay compensation to the
private real property owner shall pay the compensation from funds
appropriated to the agency.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.025. APPEAL. (a) A person aggrieved by a judgment
rendered in a suit filed under Section 2007.021 may appeal as
provided by law.
(b) A person who has exhausted all administrative remedies
available within the state agency and is aggrieved by a final
decision or order in a contested case filed under Section
2007.022 is entitled to judicial review under Chapter 2001.
Review by a court under this subsection is by trial de novo.
(c) If a private real property owner prevails in a suit or
contested case filed under this subchapter and the governmental
entity appeals, the court or the state agency shall enjoin the
governmental entity from invoking the governmental action or the
part of the governmental action resulting in the taking, pending
the appeal of the suit or contested case.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.026. FEES AND COSTS. (a) The court or the state
agency shall award a private real property owner who prevails in
a suit or contested case filed under this subchapter reasonable
and necessary attorney's fees and court costs.
(b) The court or the state agency shall award a governmental
entity that prevails in a suit or contested case filed under this
subchapter reasonable and necessary attorney's fees and court
costs.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
SUBCHAPTER C. REQUIREMENTS FOR PROPOSED GOVERNMENTAL ACTION
Sec. 2007.041. GUIDELINES. (a) The attorney general shall
prepare guidelines to assist governmental entities in identifying
and evaluating those governmental actions described in Section
2007.003(a)(1) through (3) that may result in a taking.
(b) The attorney general shall file the guidelines with the
secretary of state for publication in the Texas Register in the
manner prescribed by Chapter 2002.
(c) The attorney general shall review the guidelines at least
annually and revise the guidelines as necessary to ensure
consistency with the actions of the legislature and the decisions
of the United States Supreme Court and the supreme court of this
state.
(d) A person may make comments or suggestions or provide
information to the attorney general concerning the guidelines.
The attorney general shall consider the comments, suggestions,
and information in the annual review process required by this
section.
(e) Material provided to the attorney general under Subsection
(d) is public information.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.042. PUBLIC NOTICE. (a) A political subdivision that
proposes to engage in a governmental action described in Section
2007.003(a)(1) through (3) that may result in a taking shall
provide at least 30 days' notice of its intent to engage in the
proposed action by providing a reasonably specific description of
the proposed action in a notice published in a newspaper of
general circulation published in the county in which affected
private real property is located. If a newspaper of general
circulation is not published in that county, the political
subdivision shall publish a notice in a newspaper of general
circulation located in a county adjacent to the county in which
affected private real property is located. The political
subdivision shall, at a minimum, include in the notice a
reasonably specific summary of the takings impact assessment that
was prepared as required by this subchapter and the name of the
official of the political subdivision from whom a copy of the
full assessment may be obtained.
(b) A state agency that proposes to engage in a governmental
action described in Section 2007.003(a)(1) or (2) that may result
in a taking shall:
(1) provide notice in the manner prescribed by Section 2001.023;
and
(2) file with the secretary of state for publication in the
Texas Register in the manner prescribed by Chapter 2002 a
reasonably specific summary of the takings impact assessment that
was prepared by the agency as required by this subchapter.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.043. TAKINGS IMPACT ASSESSMENT. (a) A governmental
entity shall prepare a written takings impact assessment of a
proposed governmental action described in Section 2007.003(a)(1)
through (3) that complies with the evaluation guidelines
developed by the attorney general under Section 2007.041 before
the governmental entity provides the public notice required under
Section 2007.042.
(b) The takings impact assessment must:
(1) describe the specific purpose of the proposed action and
identify:
(A) whether and how the proposed action substantially advances
its stated purpose; and
(B) the burdens imposed on private real property and the
benefits to society resulting from the proposed use of private
real property;
(2) determine whether engaging in the proposed governmental
action will constitute a taking; and
(3) describe reasonable alternative actions that could
accomplish the specified purpose and compare, evaluate, and
explain:
(A) how an alternative action would further the specified
purpose; and
(B) whether an alternative action would constitute a taking.
(c) A takings impact assessment prepared under this section is
public information.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.044. SUIT TO INVALIDATE GOVERNMENTAL ACTION. (a) A
governmental action requiring a takings impact assessment is void
if an assessment is not prepared. A private real property owner
affected by a governmental action taken without the preparation
of a takings impact assessment as required by this subchapter may
bring suit for a declaration of the invalidity of the
governmental action.
(b) A suit under this section must be filed in a district court
in the county in which the private real property owner's affected
property is located. If the affected property is located in more
than one county, the private real property owner may file suit in
any county in which the affected property is located.
(c) The court shall award a private real property owner who
prevails in a suit under this section reasonable and necessary
attorney's fees and court costs.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.
Sec. 2007.045. UPDATING OF CERTAIN ASSESSMENTS REQUIRED. A
state agency that proposes to adopt a governmental action
described in Section 2007.003(a)(1) or (2) that may result in a
taking as indicated by the takings impact assessment shall update
the assessment if the action is not adopted before the 180th day
after the date the notice is given as required by Section
2001.023.
Added by Acts 1995, 74th Leg., ch. 517, Sec. 1, eff. Sept. 1,
1995.