CHAPTER 2007. GOVERNMENTAL ACTION AFFECTING PRIVATE PROPERTY RIGHTS

State Codes and Statutes

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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;

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

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.

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.

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.

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.

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.

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.

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.

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.

State Codes and Statutes

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