CHAPTER 203. MODERNIZATION OF STATE HIGHWAYS; CONTROLLED ACCESS HIGHWAYS
TRANSPORTATION CODE
TITLE 6. ROADWAYS
SUBTITLE A. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 203. MODERNIZATION OF STATE HIGHWAYS; CONTROLLED ACCESS
HIGHWAYS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 203.001. DEFINITIONS. In this chapter:
(1) "Controlled access highway" means a designated state highway
to or from which access is denied or controlled, in whole or in
part, from or to adjoining real property or an intersecting
public or private way, without regard to whether the designated
state highway is located in or outside a municipality.
(2) "Person" includes an individual, corporation, association,
or firm.
(3) "Public or private way" includes a street, road, highway, or
alley.
(4) "State agency" includes a department or agency of this
state.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.002. MODERN STATE HIGHWAY SYSTEM. To promote public
safety, facilitate the movement of traffic, preserve the public's
financial investment in highways, promote the national defense,
and accomplish the purposes of this chapter, the commission may:
(1) lay out, construct, maintain, and operate a modern state
highway system, with emphasis on the construction of controlled
access highways;
(2) plan for future highways; and
(3) convert where necessary an existing street, road, or highway
into a controlled access highway in accordance with modern
standards of speed and safety.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
87, Sec. 23.001, eff. September 1, 2009.
Sec. 203.003. JURISDICTION. (a) Subject to Section 203.021,
the commission may lay out, construct, maintain, and operate a
designated state highway, with control of access as necessary to
facilitate the flow of traffic and promote the public safety and
welfare, in any area of this state, whether in or outside a
municipality, including a home-rule municipality.
(b) Subject to Section 203.021, the department and the
commission may exercise any power granted by this chapter in a
county or municipality without the consent of the county or
municipality.
(c) The department's or the commission's exercise of a power
under this chapter in a county or municipality removes the
county's or municipality's exclusive jurisdiction over the
specific public way affected by the exercise of power, to the
extent the exercise of power affects the public way and its use.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
SUBCHAPTER B. PUBLIC HEARINGS AND COMMENT
Sec. 203.021. PUBLIC HEARINGS. (a) For a highway project that
bypasses or goes through a county or municipality, including a
home-rule municipality, the commission shall hold at least one
public hearing in the locality before an authorized
representative of the commission.
(b) Notice of the hearing shall be by publication in the
locality. The hearing shall be held not less than three or more
than 10 days after the date of publication.
(c) At least seven days before the date of the public hearing,
the department shall file with the governing body of the county
or municipality the design and schematic layout of the project.
(d) A person interested in the development of the project is
entitled to attend the hearing and discuss and inspect the design
and schematic layout filed with the governing body.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.022. RULES GOVERNING NOTICE AND COMMENT. (a) The
department shall by rule provide owners of adjoining property and
affected local governments and public officials with notice and
an opportunity for comment on a state highway project that
involves:
(1) the addition of one or more vehicular lanes to an existing
highway; or
(2) the construction of a highway at a new location.
(b) The department shall by rule provide additional notice and
opportunity for comment on a project described by Subsection (a)
if conditions relating to land use, traffic volumes, and traffic
patterns have changed significantly since the project was
originally subject to public review and comment.
(c) The department shall by rule provide procedures for
informing adjoining property owners and affected local
governments and public officials of impending construction.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
SUBCHAPTER C. CONTROL OF ACCESS
Sec. 203.031. CONTROL OF ACCESS. (a) The commission, by order
entered in its minutes, may:
(1) designate a state highway of the designated state highway
system as a controlled access highway;
(2) deny access to or from a controlled access highway from or
to adjoining public or private real property and from or to a
public or private way intersecting the highway, except at
specific locations designated by the commission;
(3) close a public or private way at or near its intersection
with a controlled access highway;
(4) designate locations on a controlled access highway at which
access to or from the highway is permitted and determine the type
and extent of access permitted at each location;
(5) erect protective devices to preserve the integrity, utility,
and use of the controlled access highway; and
(6) repeal an order entered under this section.
(a-1) In the exercise of its authority to manage access to or
from a controlled access highway under Subsection (a)(2) or (4),
the commission by rule shall:
(1) require that a decision by a department district office
denying a request for access to a specific location on a
controlled access highway be in writing and include the reasons
for the denial;
(2) provide procedures for appealing a denial under Subdivision
(1), including procedures that:
(A) allow the applicant to appeal the denial to the department's
design division before the 31st day after the date written notice
of the denial is given to the applicant;
(B) provide that if an appeal under Paragraph (A) is not decided
before the 91st day after the date the appeal was filed, the
access applied for must be granted; and
(C) allow the applicant to appeal the decision of the design
division to the director and, if the decision is affirmed, to a
board of variance appointed by the director and composed of at
least three persons who may not be below the level of department
division director, office director, or district engineer and who
were not involved in the original decision to deny access;
(3) provide that properly platted access points to or from a
controlled access highway that are located on undeveloped
property are subject to the access management standards in effect
at the time the points were platted regardless of when the
initial request for access was submitted to the department, but
only if:
(A) development of the property begins and the request for
access at the platted locations is submitted to the department
before the fifth anniversary of the date the plat was recorded;
and
(B) the design of the highway facility in the vicinity of the
platted access points did not materially change after the date
the plat was recorded so as to significantly impact traffic
patterns to the extent that the platted access points present a
threat to public safety;
(4) require that:
(A) owners of land adjacent to a proposed highway construction
project be provided written notice of the project at least 60
days before the date construction begins if the project will
permanently alter permitted access to or from a controlled access
highway at the owners' existing locations; and
(B) the access described by Paragraph (A) be reinstated to the
most practicable extent possible after due consideration of the
impact on highway safety, mobility, and efficient operation of
any changed traffic patterns resulting from the construction;
(5) adopt criteria for determining when a variance to access
management standards may be granted, including criteria that, in
addition to highway safety, mobility, and efficient operation
concerns, takes into consideration any of the following
consequences resulting from denial of the owner's request for
access to a specific location on a controlled access highway that
may impact a property owner:
(A) denial of reasonable access to the property; and
(B) undue hardship on a business located on the property; and
(6) clarify that the remodeling or demolition and rebuilding of
a business does not cause new access management standards to
apply unless the department makes an affirmative finding in
writing that the remodeled or rebuilt business will significantly
impact traffic patterns to the extent that the current access
location presents a threat to public safety.
(b) This section does not alter the rights of a person under
another law of this state to compensation for damages caused by
the exercise of the commission's powers.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
817, Sec. 1, eff. June 19, 2009.
Sec. 203.032. PRECEDENCE OF COMMISSION ORDER. (a) Except as
provided by Subsection (b), an order of the commission under
Section 203.031 supersedes a conflicting rule or ordinance of a
state agency or subdivision of this state or any county or
municipality, including a home-rule municipality.
(b) An order of the commission under Section 203.031(a)(2) or
(4) does not supersede a conflicting rule or ordinance of a
municipality, including a home-rule municipality, or a
conflicting ordinance, resolution, or order of a county with a
population of 3.3 million or more or a county adjacent to a
county with a population of 3.3 million or more, unless the
United States Department of Transportation Federal Highway
Administration notifies the department that enforcement of the
rule, ordinance, resolution, or order would impair the ability of
the state or the department to receive funds for highway
construction or maintenance from the federal government.
(c) Subsection (b) does not apply when the department owns the
access rights.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 1174, Sec. 1, eff. June 20,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
318, Sec. 1, eff. June 17, 2005.
Sec. 203.033. INJUNCTION AGAINST DENIAL OF ACCESS. A court may
not grant an injunction to prevent or stay a commission order of
denial of previously existing access to a state highway unless an
owner or lessee of real property that adjoins the part of the
highway to which access is denied under the commission's order:
(1) brings the suit at which the injunction is sought; and
(2) has not released any claim for damages resulting from the
denial of access or a condemnation suit has not been commenced to
ascertain the damages.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.034. RIGHT TO ACCESS; DAMAGES FOR DENIAL OF ACCESS.
(a) An owner of real property adjoining a new controlled access
highway location is not entitled to access to the new highway
location as a matter of right.
(b) Denial of access to or from a new controlled access highway
location is not a ground for special or exemplary damages unless:
(1) in connection with the purchase or condemnation of the real
property adjoining the new controlled access highway location and
to be used in the new highway location, the commission
specifically authorizes access to or from particular real
property adjoining the new highway location; and
(2) the commission denies highway access to or from the
particular land where the real property adjoins the new highway.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
SUBCHAPTER D. ACQUISITION OF PROPERTY
Sec. 203.051. ACQUISITION OF PROPERTY AUTHORIZED. (a) The
commission may acquire by purchase, on terms and conditions the
commission considers proper or by the exercise of eminent domain,
in the name of the state:
(1) an interest in real property;
(2) any property rights, including:
(A) a right of ingress or egress; and
(B) a reservation right in real property that restricts or
prohibits for not more than seven years the:
(i) addition of a new improvement on the real property;
(ii) addition to or modification of an existing improvement on
the real property; or
(iii) subdivision of the real property; and
(3) timber, earth, stone, gravel, or other material.
(b) Chapter 21, Property Code, applies to an acquisition by
eminent domain.
(c) The department may condemn the fee or a lesser interest in
the property.
(d) The department shall, in a statement or petition in
condemnation, exclude from the interest to be condemned all the
oil, gas, and sulphur that can be removed from beneath the real
property. This exclusion shall be made without providing the
owner of the oil, gas, or sulphur any right of ingress or egress
to or from the surface of the land to explore, develop, drill, or
mine the real property.
(e) Subsection (a) does not authorize the commission to condemn
property that is used and dedicated for cemetery purposes under
Subtitle C, Title 8, Health and Safety Code.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.052. COMMISSION DETERMINATION REQUIRED. (a) The
commission may acquire an interest in real property, a property
right, or a material under Section 203.051 only if the commission
determines that the acquisition is necessary or convenient to a
state highway to be constructed, reconstructed, maintained,
widened, straightened, or extended.
(b) Property necessary or convenient to a state highway for
purposes of Subsection (a) includes an interest in real property,
a property right, or a material that the commission determines is
necessary or convenient to:
(1) protect a state highway;
(2) drain a state highway;
(3) divert a stream, river, or other watercourse from the
right-of-way of a state highway;
(4) store materials or equipment for use or used in the
construction or maintenance of a state highway;
(5) construct or operate a warehouse or other facility used in
connection with the construction, maintenance, or operation of a
state highway;
(6) lay out, construct, or maintain a roadside park;
(7) lay out, construct, or maintain a parking lot that will
contribute to maximum use of a state highway with the least
possible congestion;
(8) mitigate an adverse environmental effect that directly
results from construction or maintenance of a state highway;
(9) subject to Subsection (c), provide a location for an
ancillary facility that is anticipated to generate revenue for
use in the design, development, financing, construction,
maintenance, or operation of a toll project, including a gas
station, garage, store, hotel, restaurant, or other commercial
facility;
(10) construct or operate a toll booth, toll plaza, service
center, or other facility used in connection with the
construction, maintenance, or operation of a toll project; or
(11) accomplish any other purpose related to the location,
construction, improvement, maintenance, beautification,
preservation, or operation of a state highway.
(c) The commission may not acquire property for an ancillary
facility through the exercise of eminent domain, unless the
acquisition of the property is for one of multiple ancillary
facilities included in a comprehensive development plan approved
by the county commissioners court of each county in which the
property is located.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch.
281, Sec. 2.10, eff. June 14, 2005.
Acts 2005, 79th Leg., 2nd C.S., Ch.
1, Sec. 3, eff. November 18, 2005.
Sec. 203.0521. ACQUISITION OF REMAINDER. (a) If a proposed
acquisition of a tract of real property under Section 203.052
would leave the owner of the property a remainder of the tract,
the department may negotiate for and purchase the remainder or
any part of a severed real property if the department and the
owner agree on terms for the purchase. The department shall
offer, except as provided by Subsection (f), to purchase a
remainder if the department determines that:
(1) the remainder has little or no value or utility to the
owner; or
(2) the entire tract could be acquired for substantially the
same compensation as the partial tract.
(b) In acquiring real property under Section 203.051, if the
acquisition severs an owner's real property, the department shall
pay:
(1) the value of the property acquired; and
(2) the damages to the remainder of the owner's property caused
by the severance, including damages caused by the inaccessibility
of one tract from the other.
(b-1) If a portion of a tract or parcel of real property that,
for the then current tax year was appraised for ad valorem tax
purposes under a law enacted under Section 1-d or 1-d-1, Article
VIII, Texas Constitution, and that is outside the municipal
limits or the extraterritorial jurisdiction of a municipality
with a population of 25,000 or more is condemned for state
highway purposes, the special commissioners shall consider the
loss of reasonable access to or from the remaining property in
determining the damage to the property owner.
(c) Instead of a single fixed payment for real property
purchased under Subsection (a) for a toll project, the department
may agree to a payment to the owner in the form of:
(1) an intangible legal right to receive a percentage of
identified revenue attributable to the applicable segment of the
toll project; or
(2) a right to use, without charge, a segment or part of the
toll project.
(d) A right to receive revenue under Subsection (c)(1) is
subject to any pledge of the revenue under the terms of a trust
agreement securing bonds issued for the applicable segment of the
toll project.
(e) The department and its designated agents may enter the real
property to conduct an appraisal, survey, or environmental
investigation to determine whether the department will offer to
acquire the real property.
(f) The department is not required under Subsection (a) to make
an offer on a remainder if an appraisal or environmental
investigation indicates the presence of hazardous materials or
substances.
Added by Acts 1997, 75th Leg., ch. 224, Sec. 1, eff. May 23,
1997.
Amended by:
Acts 2005, 79th Leg., Ch.
281, Sec. 2.11, eff. June 14, 2005.
Sec. 203.053. LOCATION OF PROPERTY ACQUIRED; PUBLIC PROPERTY.
(a) The authorization under this subchapter to purchase or
exercise the power of eminent domain is not affected by the
location of the real property, the location of the real property
right, or the location of the material. This subsection applies
without regard to whether the location is in or outside a
municipality.
(b) Under this subchapter, the commission may purchase or
condemn real property, property rights, and materials that belong
to the public, whether under the jurisdiction of the state, a
state agency, a county, a municipality, including a home-rule
municipality, or an entity or subdivision of a county or
municipality.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.054. ATTORNEY GENERAL SHALL BRING SUIT. (a) Except as
provided by Subsection (b), the attorney general, at the request
of the commission, shall bring and prosecute a condemnation suit
of the commission under this subchapter.
(b) At the request of the attorney general, the appropriate
county or district attorney or criminal district attorney shall
prosecute the suit.
(c) The suit shall be brought in the name of this state.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.055. ACQUISITION OF RIGHTS IN PUBLIC REAL PROPERTY.
(a) The governing body of a political subdivision or public
agency that owns or is in charge of public real property may
consent to the use of the property for highway purposes.
(b) The governing body of a political subdivision or public
agency may, without advertisement, convey the title to or rights
or easements in real property that the department needs for
highway purposes.
(c) Notwithstanding any law to the contrary, at the request of
the department, a political subdivision or a state agency may
lease, lend, grant, or convey to the department real property,
including a highway or real property currently devoted to public
use, that may be necessary or appropriate to accomplish the
department's purposes. The political subdivision or state agency
may lease, lend, grant, or convey the property:
(1) on terms the subdivision or agency determines reasonable and
fair; and
(2) without advertisement, court order, or other action or
formality other than the regular and formal action of the
subdivision or agency concerned.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch.
281, Sec. 2.12, eff. June 14, 2005.
Sec. 203.056. CONSENT TO USE OF STATE PROPERTY. (a) The
commission may use real property owned by the state, including
submerged real property, that the commission could acquire under
this subchapter for highway purposes.
(b) This section does not deprive the School Land Board of
authority to execute a lease authorized by law for the
development of oil, gas, or another mineral on state-owned real
property adjoining a state highway or in a tidewater limit and
for that purpose a lease executed by the School Land Board may
provide for directional drilling from real property adjoining a
state highway or from a tidewater area.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.057. COOPERATION OF STATE AGENCY. (a) The commission
shall advise and make arrangements with the state agency that has
jurisdiction over the state-owned real property to accomplish the
purpose of Section 203.056.
(b) The state agency shall cooperate with the department in
connection with the use of real property under Section 203.056.
If the agency is not expressly authorized to act through a
designated representative, the agency may do whatever act is
necessary under Section 203.056 by and through the presiding
officer of its board, or its department head or executive
director, as appropriate.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.058. COMPENSATION FOR STATE AGENCY. (a) If the
acquisition of real property, property rights, or material by the
department from a state agency under this subchapter will deprive
the agency of a thing of value to the agency in the exercise of
its functions, adequate compensation for the real property,
property rights, or material shall be made.
(b) The compensation shall be paid on vouchers drawn for this
purpose payable to the state agency providing the real property,
property rights, or material.
(c) A payment made to an agency furnishing real property,
property rights, or material shall be credited to the
appropriation item or account for that agency from which
expenditures of that character were originally made.
(d) If an appropriation item or account as described by
Subsection (c) does not exist, the payment shall be credited to
the appropriate account of the state agency, as determined by the
comptroller.
(e) If the department and the state agency are unable to agree
on adequate compensation, the General Land Office shall determine
the fair, equitable, and realistic compensation to be paid.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.059. PURCHASE OF LEASE RIGHTS. (a) Before acquiring
property under this subchapter, the department may purchase the
right to lease the property to a third party.
(b) The department may make a purchase under Subsection (a) only
if the department first determines that the owner is unable to
lease or rent the property because of the impending acquisition
by the department.
(c) The consideration for the purchase of a lease right under
this section may not exceed the fair market rental value of the
property as determined by the department and shall be credited
against the total compensation due the owner when the department
acquires the property.
(d) Payment under this section may be made in periodic
increments until the property is acquired by the department. The
aggregate total of payments before acquisition may not exceed the
department's approved appraised value of the property.
(e) The department shall adopt rules to implement this section.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.060. PAYMENT PROCEDURE. The comptroller may issue a
warrant on the appropriate account to pay for real property or an
interest in real property when presented with a properly executed
deed for the real property or interest.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.061. PAYMENT PROCEDURE IF OWNER FAILS TO DELIVER
EXECUTED DEED; ESCROW. (a) If the owner of property acquired by
the department under this subchapter fails to deliver an executed
deed before payment of consideration, the comptroller may issue a
warrant on the appropriate account in payment of the
consideration. The consideration shall be placed in escrow with a
national or state bank that is:
(1) authorized to do business in this state; and
(2) located in the county of the residence of the owner or the
county in which the real property is located.
(b) If there is not a bank that satisfies the requirements of
Subsection (a)(2), the consideration shall be placed in a
national or state bank authorized to do business in this state in
an adjoining county or the nearest available banking facility.
(c) Consideration placed in escrow under this section shall be
delivered to the owner on receipt of the properly executed deed.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.062. PAYMENT FOR REAL PROPERTY ACQUIRED BY EMINENT
DOMAIN. (a) If the department acquires real property through
the exercise of the power of eminent domain, the comptroller may
issue a warrant as required by the judgment of the court.
(b) The comptroller may also issue a warrant to be deposited
into the court as required by law to entitle the department to
take possession of the property.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.063. PAYMENT PROCEDURES IN ADDITION TO OTHER PROCEDURES
AUTHORIZED BY LAW. The payment procedures specified by Sections
203.060, 203.061, and 203.062 are in addition to any other
procedure or method authorized for the issuance of a warrant by
the comptroller on request of the department.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.064. ACQUISITION OF FREEWAY BY GIFT OR DEVISE. (a)
The commission may acquire by gift or devise a property necessary
to lay out, construct, maintain, or operate a section of a state
highway as a freeway.
(b) In this section, "freeway" means a state highway for which
the right of access to or from adjoining real property has been
acquired in whole or in part from the owners of the adjoining
property by the commission.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.065. ACQUISITION OF FREEWAY BY COUNTY COMMISSIONERS
COURT. (a) A county commissioners court may acquire by gift,
devise, purchase, or condemnation a property necessary to lay
out, construct, maintain, or operate a section of a state highway
as a freeway.
(b) In this section, "freeway" has the meaning assigned by
Section 203.064(b).
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.066. DECLARATION OF TAKING FOR TOLL PROJECT. (a) This
section and Section 203.067 apply only to a taking for a toll
project.
(b) The department may file a declaration of taking with the
clerk of the court:
(1) in which the department files a condemnation petition under
Chapter 21, Property Code; or
(2) to which the case is assigned.
(c) The department may file the declaration of taking
concurrently with or subsequent to the petition but may not file
the declaration after the special commissioners have made an
award in the condemnation proceeding.
(d) The department may not file a declaration of taking before
the completion of:
(1) all environmental documentation, including a final
environmental impact statement or a record of decision, that is
required by federal or state law;
(2) all public hearings and meetings, including those held in
connection with the environmental process and under Sections
201.604 and 203.021, that are required by federal or state law;
(3) all notifications required by Section 203.022; and
(4) if the property contains a business, farm, or ranch, a
written notification to the property owner that the occupants:
(A) will not be required to move before the 90th day after the
date of the notice; and
(B) will receive, not later than the 30th day before the date by
which the property must be vacated, a written notice specifying
the date by which the property must be vacated.
(e) The declaration of taking must include:
(1) a specific reference to the legislative authority for the
condemnation;
(2) a description and plot plan of the real property to be
condemned, including the following information if applicable:
(A) the municipality in which the property is located;
(B) the street address of the property; and
(C) the lot and block number of the property;
(3) a statement of the property interest to be condemned;
(4) the name and address of each property owner that the
department can obtain after reasonable investigation and a
description of the owner's interest in the property; and
(5) a statement that immediate possession of all or part of the
property to be condemned is necessary for the timely construction
of a toll project.
(f) A deposit to the registry of the court of an amount equal to
the appraised value, as determined by the department, of the
property to be condemned must accompany the declaration of
taking.
(g) The date on which the declaration is filed is the date of
taking for the purpose of assessing damages to which a property
owner is entitled.
(h) The filing of a declaration of taking does not affect the
special commissioners' hearing or any other proceeding under
Chapter 21, Property Code.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 2001, 77th Leg., ch. 920, Sec. 9, eff. June 14,
2001; Acts 2003, 78th Leg., ch. 312, Sec. 18, eff. June 18, 2003;
Acts 2003, 78th Leg., ch. 1325, Sec. 15.18, eff. June 21, 2003;
Acts 2003, 78th Leg., 3rd C.S., ch. 8, Sec. 1.02, eff. Jan. 11,
2004.
Transferred from Transportation Code, Section 361.137 and amended
by Acts 2005, 79th Leg., Ch.
281, Sec. 2.13, eff. June 14, 2005.
Sec. 203.067. POSSESSION OF PROPERTY FOR TOLL PROJECT. (a)
Immediately on the filing of a declaration of taking under
Section 203.066, the department shall serve a copy of the
declaration on each person possessing an interest in the
condemned property by a method prescribed by Section 21.016(d),
Property Code. The department shall file evidence of the service
with the clerk of the court. On filing of that evidence, the
department may take possession of the property pending the
litigation.
(b) If the condemned property is a homestead or a portion of a
homestead as defined by Section 41.002, Property Code, the
department may not take possession sooner than the 91st day after
the date of service under Subsection (a).
(c) A property owner or tenant who refuses to vacate the
property or yield possession is subject to forcible entry and
detainer under Chapter 24, Property Code.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 312, Sec. 19, eff. June 18,
2003; Acts 2003, 78th Leg., ch. 1325, Sec. 15.19, eff. June 21,
2003; Acts 2003, 78th Leg., 3rd C.S., ch. 8, Sec. 1.03, eff. Jan.
11, 2004.
Transferred from Transportation Code, Section 361.138 and amended
by Acts 2005, 79th Leg., Ch.
281, Sec. 2.13, eff. June 14, 2005.
Sec. 203.068. RIGHT OF ENTRY FOR TOLL PROJECT. (a) The
department and its authorized agents may enter any real property,
water, or premises in this state to make a survey, sounding,
drilling, or examination it determines necessary or appropriate
for the purposes of the development of a toll project.
(b) An entry under this section is not:
(1) a trespass; or
(2) an entry under a pending condemnation proceeding.
(c) The department shall make reimbursement for any actual
damages to real property, water, or premises that result from an
activity described by Subsection (a).
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 2003, 78th Leg., ch. 312, Sec. 43, eff. June 18,
2003; Acts 2003, 78th Leg., ch. 1325, Sec. 15.41, eff. June 21,
2003.
Transferred from Transportation Code, Section 361.233 and amended
by Acts 2005, 79th Leg., Ch.
281, Sec. 2.13, eff. June 14, 2005.
Sec. 203.069. COVENANTS, CONDITIONS, RESTRICTIONS, OR
LIMITATIONS. Covenants, conditions, restrictions, or limitations
affecting property acquired in any manner by the department are
not binding against the department and do not impair the
department's ability to use the property for a purpose authorized
by this chapter. The beneficiaries of the covenants, conditions,
restrictions, or limitations are not entitled to enjoin the
department from using the property for a purpose authorized under
this chapter, but this section does not affect the right of a
person to seek damages to the person's property under Section 17,
Article I, Texas Constitution.
Added by Acts 1997, 75th Leg., ch. 1171, Sec. 7.13, eff. Sept. 1,
1997. Amended by Acts 2003, 78th Leg., ch. 312, Sec. 21, eff.
June 18, 2003; Acts 2003, 78th Leg., ch. 1325, Sec. 15.21, eff.
June 21, 2003.
Transferred from Transportation Code, Section 361.142 and amended
by Acts 2005, 79th Leg., Ch.
281, Sec. 2.13, eff. June 14, 2005.
SUBCHAPTER E. RELOCATION OF UTILITY FACILITIES
Sec. 203.091. DEFINITION. In this subchapter, "utility"
includes a publicly, privately, or cooperatively owned utility
that provides telephone, telegraph, communications, electric,
gas, heating, water, railroad, storm sewer, sanitary sewer, or
pipeline service.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.092. REIMBURSEMENT FOR RELOCATION OF UTILITY
FACILITIES. (a) A utility shall make a relocation of a utility
facility at the expense of this state if relocation of the
utility facility is required by improvement of:
(1) a highway in this state established by appropriate authority
as part of the National System of Interstate and Defense Highways
and the relocation is eligible for federal participation;
(2) any segment of the state highway system and the utility has
a compensable property interest in the land occupied by the
facility to be relocated; or
(3) a segment of the state highway system that was designated by
the commission as a turnpike project or toll project before
September 1, 2005.
(a-1) Notwithstanding Subsection (a)(3), the department and the
utility shall share equally the cost of the relocation of a
utility facility that is made before September 1, 2013, and
required by the improvement of a nontolled highway to add one or
more tolled lanes. This subsection expires September 1, 2013.
(a-2) Notwithstanding Subsection (a)(3), the department and the
utility shall share equally the cost of the relocation of a
utility facility that is made before September 1, 2013, and
required by the improvement of a nontolled highway that has been
converted to a turnpike project or toll project. This subsection
expires September 1, 2013.
(a-3) Notwithstanding Subsection (a)(3), the department and the
utility shall share equally the cost of the relocation of a
utility facility that is made before September 1, 2013, and
required by the construction on a new location of a turnpike
project or toll project or the expansion of such a turnpike
project or toll project. This subsection expires September 1,
2013.
(b) By agreement with the utility the department may relocate
the utility facility in accordance with this section.
(c) Subsection (a) includes a relocation for an extension of a
highway in an urban area.
(d) The cost of relocation includes the entire amount paid by
the utility properly attributable to the relocation less:
(1) any increase in the value of the new facility;
(2) the salvage value derived from the old facility; and
(3) any other deduction established by regulations for federal
cost participation.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 876, Sec. 1, eff. Sept. 1,
1997.
Amended by:
Acts 2005, 79th Leg., Ch.
281, Sec. 2.14, eff. June 14, 2005.
Acts 2007, 80th Leg., R.S., Ch.
121, Sec. 1, eff. May 17, 2007.
Sec. 203.0921. DEPARTMENT RELOCATION OF UTILITY FACILITIES FOR
ESSENTIAL HIGHWAY IMPROVEMENT. (a) At the discretion of the
department, the department may cause a utility to relocate a
utility facility, or make a relocation of a utility facility, not
eligible for reimbursement under Section 203.092 at the expense
of the state upon a finding of the commission that:
(1) relocation of the utility facility is essential to the
timely completion of a state highway improvement project;
(2) continuous service to utility customers is essential to the
public well-being or the local economy;
(3) a short-term financial condition would prevent a utility
from being able to pay the cost of relocation in full or in part
at the time of relocation or, if paid at that time, would
adversely affect the utility's ability to operate or provide
essential services to its customers; and
(4) the affected utility has been contacted by the department
and such utility and the department have reached an agreement
that:
(A) appropriate safeguards are in place to ensure that
relocation work activities are conducted safely in full
compliance with applicable law and utility construction
standards;
(B) relocation work can be coordinated between the department
and the utility in a manner that will ensure that any disruption
of utility service is minimized;
(C) the contractor, and any subcontractors, selected for
relocation work activities are qualified to perform such work
activities; and
(D) there exists a factual basis for the commission findings
required under Subdivision (3).
(b) A utility whose facilities are relocated under Subsection
(a) shall reimburse the department for any amount expended or
advanced by the department for the relocation. The utility shall
enter into an agreement with the department providing for
reimbursement. The agreement shall:
(1) require reimbursement of the amount expended plus interest
to the department within five years from the date of completion
of the work;
(2) provide for reimbursement by a lump-sum payment or by
installments;
(3) require payment of interest at a rate of six percent per
annum from the date of completion through the date of final
payment; and
(4) contain other terms and conditions as may be mutually agreed
upon by the department and the utility.
(c) In the absence of an agreement required by Subsection (b), a
utility shall reimburse the department the full cost of
relocation within 30 days of the date of completion of the work.
(d) All funds received by the department under this section
shall be deposited in the state treasury to the credit of the
state highway fund.
Added by Acts 1997, 75th Leg., ch. 876, Sec. 2, eff. Sept. 1,
1997.
For expiration of this section, see Subsection (k).
Sec. 203.0922. PREPAYMENT FUNDING AGREEMENT FOR RELOCATION OF
UTILITY FACILITIES. (a) On the request of a utility, the
commission shall by rule authorize the department to enter into a
prepayment funding agreement with the utility to reimburse the
utility for the direct and related indirect costs of the
relocation of a utility facility that is required by the
improvement of a segment of the state highway system, including a
turnpike project or toll project, for which the utility is not
eligible for reimbursement under Section 203.092. The agreement
must:
(1) require the utility to prepay to the department an annual
amount as provided by Subsection (b) or (c);
(2) be for a term:
(A) that is a multiple of three years; and
(B) of at least six years;
(3) set forth a methodology for the utility to submit, document,
and substantiate reimbursable costs under the agreement; and
(4) set forth a methodology for the department to reimburse the
utility its reimbursable costs under the agreement in a timely
manner.
(b) The annual prepayment amount for each year of the initial
three-year period of a prepayment funding agreement is equal to
75 percent of the annual average of the direct and related
indirect costs incurred for relocation of the utility's
facilities on applicable segments of the state highway system
during the preceding three years for which the utility is not
otherwise eligible for reimbursement under Section 203.092.
(c) The annual prepayment amount for each year of a subsequent
three-year period of a prepayment funding agreement is equal to
75 percent of the annual average of the direct and related
indirect costs paid by the department or reimbursed to the
utility under the agreement for relocation of the utility's
facilities on applicable segments of the state highway system
during the preceding three years for which the utility is not
otherwise eligible for reimbursement under Section 203.092.
(d) The department may not establish a prepayment amount that
unreasonably discriminates among utilities.
(e) If a change in law causes all or a part of the cost of the
relocation of a utility facility that was eligible for
reimbursement under Section 203.092(a)(1) at the time a
prepayment funding agreement was entered into under this section
to cease to be eligible for reimbursement, that amount, beginning
on the effective date of the applicable change in law, is
considered to be a cost that is not otherwise eligible for
reimbursement under Section 203.092 for purposes of the
prepayment funding agreement.
(f) Notwithstanding any law to the contrary, an obligation of
the commission or the department to make a payment to a utility
under a prepayment funding agreement entered into under this
section may be enforced by mandamus against the commission, the
department, and the comptroller in a district court of Travis
County, and the sovereign immunity of the state is waived for
that purpose. The district courts of Travis County have
exclusive jurisdiction and venue over any action brought under
this subsection. The remedy provided by this subsection is in
addition to any legal and equitable remedies that may be
available to a party to a prepayment funding agreement.
(g) This section or a contractual right obtained under an
agreement under this section does not:
(1) make the department or a utility subject to new or
additional licensing, certification, or regulatory jurisdiction
of the Public Utility Commission of Texas, Texas Department of
Insurance, or Railroad Commission of Texas; or
(2) supersede or otherwise affect a provision of another law
applicable to the department or a utility regarding licensing,
certification, or regulatory jurisdiction of an agency listed in
Subdivision (1).
(h) A payment received by the department under this section must
be deposited to the credit of the state highway fund and is
exempt from the application of Subchapter D, Chapter 316,
Government Code, and Section 403.095, Government Code.
(i) The commission shall appoint a rules advisory committee to
advise the department and the commission on development of the
commission's rules, including initial rules and additions or
changes to the rules, required by this section. The committee
shall consist solely of members representing interested
utilities. Chapter 2110, Government Code, does not apply to the
committee.
(j) An agreement entered into by the department and a utility
under this section remains in force until its termination or
expiration.
(k) This section expires September 1, 2013.
Added by Acts 2007, 80th Leg., R.S., Ch.
121, Sec. 2, eff. May 17, 2007.
Sec. 203.093. REIMBURSEMENT FROM STATE HIGHWAY FUND. (a)
Reimbursement of the cost of relocation of the utility facility,
as required by Section 203.092, may be made from the state
highway fund to the utility owning the facility.
(b) This section applies notwithstanding anything to the
contrary contained in another law or in a permit, agreement, or
franchise issued or entered into by a department, commission, or
political subdivision of this state.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 876, Sec. 3, eff. Sept. 1,
1997.
Sec. 203.0935. TIMELY AGREEMENT. (a) If the department
determines that a facility of a utility must be relocated to
accommodate an improvement to the state highway system, the
utility and the department shall negotiate in good faith to
establish reasonable terms and conditions concerning the
responsibilities of the parties with regard to sharing of
information about the highway improvement project and the
planning and implementation of any necessary relocation of
utility facilities.
(b) The department shall use its best efforts to provide an
affected utility with plans and drawings of the highway
improvement project that are sufficient to enable the utility to
develop plans for, and determine the cost of, the necessary
relocation of the facility of the utility. If the department and
the affected utility enter into an agreement after negotiations
under Subsection (a), the terms and conditions of the agreement
shall govern the relocation of the utility's facility covered by
the agreement.
(c) If the department and an affected utility do not enter into
an agreement under Subsection (a), the department shall provide
to the affected utility:
(1) written notice of the department's determination that the
utility facility must be removed;
(2) a final plan for relocation of the facility; and
(3) reasonable terms and conditions for an agreement with the
utility for the relocation of the facility.
(d) Not later than the 90th day after the date that a utility
receives the notice from the department, including the plan and
agreement terms and conditions under Subsection (c), the utility
shall enter into an agreement with the department that provides
for the relocation.
(e) If the utility fails to enter into an agreement within the
90-day period under Subsection (d), the department may relocate
the facility at the sole cost and expense of the utility less any
reimbursement of costs that would have been payable to the
utility under Section 203.092. A relocation by the department
under this subsection shall be conducted in full compliance with
applicable law, using standard equipment and construction
practices compatible with the utility's existing facilities, and
in a manner that minimizes disruption of utility service.
(f) The 90-day period under Subsection (d) may be extended:
(1) by mutual agreement between the department and the utility;
or
(2) for any period of time during which the utility is
negotiating in good faith with the department to relocate its
facility.
Added by Acts 2003, 78th Leg., ch. 845, Sec. 1, eff. June 20,
2003.
Sec. 203.094. TIMELY RELOCATION. (a) A utility that is
eligible for reimbursement under Section 203.092 or that is
eligible for reimbursement under applicable law and the policies
of the department for the cost of relocating facilities required
by improvement of a segment of the state highway system not
subject to Section 203.092 shall accomplish the relocation of the
facility in a timely manner as specified in its relocation
agreement with the department.
(b) The department may reduce the reimbursement to the utility
by 10 percent for each 30-day period or portion of a 30-day
period by which the relocation exceeds the limit specified in the
relocation agreement. If the department determines that a delay
in relocation is the result of circumstances beyond the control
of the utility, full reimbursement shall be paid.
(c) The time limit specified in the relocation agreement may not
be less than 90 days.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
Sec. 203.0941. UTILITY RELOCATION ELIGIBLE FOR FINANCIAL
ASSISTANCE FROM WATER DEVELOPMENT BOARD. (a) The relocation of
a utility facility required by improvement of any segment of the
state highway system, for which a political subdivision receives
financial assistance made available from either Subchapter D, F,
G, or K, Chapter 17, Water Code, is not subject to the
requirements of Sections 17.183(1)-(6), Water Code, if the
political subdivision has agreed to allow the department to
contract for the construction of the utility facility relocation.
(b) The department and the Texas Water Development Board may
enter into a memorandum of understanding to facilitate
administration of utility facility relocation that is required by
state highway system improvement and that receives financial
assistance from the Texas Water Development Board.
Added by Acts 1997, 75th Leg., ch. 876, Sec. 4, eff. Sept. 1,
1997.
Sec. 203.095. RULES. The department shall adopt rules to
implement this subchapter.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.
SUBCHAPTER F. LEASE OF CERTAIN PROPERTY
Sec. 203.111. LEASE FOR PARKING PURPOSES. (a) The commission
may lease for parking purposes real property beneath an elevated
section of a freeway located on real property for which the
commission holds the title and property rights.
(b) Revenue from a lease under this section shall be used for
general governmental purposes.
(c) In this section, "freeway" has the meaning assigned by
Section 203.064.
Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.