CHAPTER 203. MODERNIZATION OF STATE HIGHWAYS; CONTROLLED ACCESS HIGHWAYS

State Codes and Statutes

Statutes > Texas > Transportation-code > Title-6-roadways > 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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

(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).

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.

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.

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;

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.

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.

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.

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;

(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.

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.

Section 203.064.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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