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§ 12.001. ADOPTION OF COMPACT. This state enacts the Red River Boundary Compact into law and enters into the compact with the State of Oklahoma if that state legally joins in the compact in substantially the form provided by Section 12.002.
Added by Acts 1999, 76th Leg., ch. 212, § 1, eff. May 24, 1999.
§ 12.002. TEXT OF COMPACT. The Red River Boundary Compact reads as follows:
RED RIVER BOUNDARY COMPACT
ARTICLE I. PURPOSE
(a) The states of Texas and Oklahoma recognize that: (1) there are actual and potential disputes, controversies, criminal proceedings, and litigation arising, or that may arise, out of the location of the boundary line between the states along the Red River;
(2) the south bank of the Red River is the boundary between the states along the Red River;
(3) the boundary between the states changes as a result of the natural action of the river and, because of those changes and the nature of the land, the south bank of the river is often not readily or easily identified;
(4) while the south bank, at any given time, may be located through expensive and time-consuming survey techniques, such surveys can, at best, identify the south bank only as it exists at the time of the survey;
(5) locating the south bank through survey techniques is of minimal aid when agencies of the party states must locate the state boundary line for law enforcement, administrative, and taxation purposes; and
(6) the interests of the party states are better served by establishing the boundary between the states through use of a readily identifiable natural landmark than through use of an artificial survey line.
(b) It is the principal purpose of the party states in entering into this compact to establish an identifiable boundary between the states of Texas and Oklahoma along the Red River as of the effective date of this compact without interfering with or otherwise affecting private property rights or title to property. In addition, this compact serves the compelling purposes of:
(1) creation of a friendly and harmonious interstate relationship; (2) avoidance of multiple exercise of sovereignty and jurisdiction, including matters of taxation, judicial and police powers, and exercise of administrative authority;
(3) avoidance of lack of exercise of sovereignty and jurisdiction over any lands along the boundary;
(4) avoidance of questions of venue in civil and criminal proceedings that may arise as a result of incidents along the boundary and avoidance or minimization of future disputes and litigation;
(5) promotion of economic and political stability; and (6) placement of the boundary at a location that can be visually identified or located without the necessity of a current survey and that is close to the historical boundary location.
ARTICLE II. ESTABLISHMENT OF BOUNDARY
(a) In this article: (1) "Vegetation" means trees, shrubs, grasses, and other plant species that substantially cover the ground. Whether the vegetation substantially covers the ground is determined by reference to the density of the coverage of the ground by trees, shrubs, grasses, and other plant species in the area adjacent to the relevant portion of the riverbed.
(2) "Vegetation line" means the visually identifiable continuous line of vegetation that is adjacent to that portion of the riverbed kept practically bare of vegetation by the natural flow of the river and is continuous with the vegetation beyond the riverbed. Stray vegetation, patches of vegetation, or islands of vegetation within the riverbed that do not form such a line are not considered part of the vegetation line. Where the riverbed is entered by the inflow of another watercourse or is otherwise interrupted or disturbed by a man-made event, the line constituting the boundary is an artificial line formed by extending the vegetation line above and below the other watercourse or interrupted or disturbed area to connect and cross the watercourse or area.
(b) The permanent political boundary line between the states of Texas and Oklahoma along the Red River is the vegetation line along the south bank of the Red River except for the Texoma area, where the boundary does not change. For purposes of this compact:
(1) the Texoma area extends from the east bank of Shawnee Creek (which flows into the Red River from the south approximately one-half mile below the Denison Dam) at its mouth to the upper end of the normal pool elevation of Lake Texoma (which is 617 feet); and
(2) the upper end of the normal pool elevation of Lake Texoma is along the latitude of 33 degrees 54 minutes as it crosses the watercourse at the approximate location of longitude 96 degrees 59 minutes.
(c) The party states agree that the existing boundary within the Texoma area begins at the intersection of the vegetation line on the south bank of the Red River with the east bank of Shawnee Creek. From this point, the boundary extends west along the south bank of the Red River as the bank existed immediately before the commencement of the construction of Lake Texoma. From Shawnee Creek to Denison Dam, this boundary line is within the current channel of the Red River. Within Lake Texoma, this boundary line follows the south bank of the Red River as the bank was located and marked by the United States Army Corps of Engineers before the commencement of the construction of Lake Texoma.
(d) Within one year after the date the United States Congress consents to this compact, the Commissioner of the General Land Office of Texas and a designated member of the Oklahoma Red River Boundary Commission shall:
(1) locate the boundary line within the Texoma area as described by Subsection (c), using the survey that the United States Army Corps of Engineers prepared in connection with the construction of Lake Texoma and any other surveys, historical maps, or other information that may be available;
(2) prepare a map of the boundary line; and (3) file the map in the state library and archives of each party state and with the Oklahoma Secretary of State, after which the map will be a part of this compact.
(e) Within one year after the date the map is filed under Subsection (d)(3), the United States Army Corps of Engineers shall permanently mark the boundary line within the Texoma area as shown on the map. The United States Army Corps of Engineers shall maintain the markers annually, or more frequently if necessary.
(f) The party states may: (1) agree to equally share the cost of monumenting and maintaining the lines demarking both the boundary within the Texoma area and the upper limit of the normal pool elevation in a manner designed to make the boundary readily identifiable to the using public; or
(2) seek funding from other sources for monumenting and maintaining the lines.
(g) Should there be a change in the watercourse of the Red River, the party states recognize the rules of accretion, erosion, and avulsion. The states agree that accretion or erosion may cause a change in the boundary between the states if it causes a change in the vegetation line. With regard to avulsion, the states agree that a change in the course of the Red River caused by an immediately perceivable natural event that changes the vegetation line will change the location of the boundary between the states.
ARTICLE III. SOVEREIGNTY
On the effective date of this compact, the party states agree that the State of Oklahoma possesses sovereignty over all lands north of the boundary line established by this compact and that the State of Texas possesses sovereignty over all lands south of the boundary line established by this compact. This compact does not change or affect in any manner the sovereignty rights of federally recognized Indian tribes over lands on either side of the boundary line established by this compact. Tribal sovereignty rights continue to be established and defined by controlling federal law.
ARTICLE IV. PENDING LITIGATION
This compact does not affect the jurisdiction of any litigation concerning the title to any of the lands bordering the Red River pending in the courts of either of the party states or the United States as of the effective date of this compact. The states intend that such litigation, if any, continue in the trial and appellate courts of the jurisdiction where pending, until the litigation is finally determined.
ARTICLE V. PUBLIC RECORDS
(a) All public records in either party state concerning any lands the sovereignty over which is changed by this compact are accepted as evidence of record title to such lands, to and including the effective date of this compact, by the courts of the other state and the federal courts.
(b) As to lands the sovereignty over which is changed by this compact, the recording officials of the counties of each party state shall accept for filing certified copies of documents of title previously filed in the other state and documents of title using legal descriptions derived from the land descriptions of the other state. The acceptance of a document for filing has no bearing on its legal effect or sufficiency. The legal sufficiency of a document's form, execution, and acknowledgments, and the document's ability to convey or otherwise affect title, are determined by the document itself and the real estate laws of the jurisdiction in which the land was located at the time the document was executed or took effect.
ARTICLE VI. TAXES
(a) Except as provided by Subsections (b) and (c), the lands the sovereignty over which is changed by this compact are, after the effective date of this compact, subject to taxation only by the state gaining sovereignty over the lands by this compact.
(b) Taxes for the year of adoption of this compact for property the jurisdiction over which is changed by this compact may be lawfully imposed only by the state in which the property was located on January 1 of the year of adoption of this compact. The taxes for the year of adoption may be levied and collected by that state or its authorized governmental subdivisions or agencies, and any liens or other rights accrued or accruing, including the right of collection, are fully recognized, except that all liens or other rights arising out of the imposition of those taxes must be claimed or asserted within five years after this compact takes effect or they are barred.
(c) The party states recognize that the boundary between the states will change from time to time as a result of the natural actions of accretion, erosion, and avulsion and agree that for years subsequent to the year of adoption of this compact, the state within which lands adjoining the boundary line are located on January 1 of each year has the right to levy and collect taxes for the entire ensuing year.
(d) All taxes currently assessed by governmental entities in each party state as to lands that border or cross the boundary line established by this compact are presumed to be correct as to acreage within the particular jurisdiction, absent competent proof to the contrary presented in writing by the property owner or owners to the appropriate taxing agencies. All such proof must be presented to the appropriate taxing agencies before May 1 of the year following the year in which this compact takes effect. In subsequent years it is presumed that the acreage taxed in each jurisdiction for the previous year was correct unless evidence of change is furnished to or obtained by the various taxing agencies under rules and regulations adopted by those taxing agencies.
ARTICLE VII. PROPERTY AND WATER RIGHTS
This compact does not change: (1) the title of any person or entity, public or private, to any of the lands adjacent to the Red River;
(2) the rights, including riparian rights, of any person or entity, public or private, that exist as a result of the person's or entity's title to lands adjacent to the Red River; or
(3) the boundaries of those lands.
ARTICLE VIII. EFFECTIVE DATE
This compact takes effect when enacted by the states of Texas and Oklahoma and consented to by the United States Congress.
ARTICLE IX. ENFORCEMENT
(a) This compact does not limit or prevent either party state from instituting or maintaining any action or proceeding, legal or equitable, in any court having jurisdiction, for the protection of any right under this compact or the enforcement of any of its provisions.
(b) This compact is not binding or obligatory on either party state unless and until it has been enacted by both states and consented to by the United States Congress. Notice of enactment of this compact by each state shall be given by the governor of that state to the governor of the other state and to the president of the United States. The president is requested to give notice to the governors of the party states of the consent to this compact by the United States Congress.
ARTICLE X. AMENDMENTS
This compact remains in full force and effect unless amended in the same manner as it was created.
Added by Acts 1999, 76th Leg., ch. 212, § 1, eff. May 24, 1999.
§ 12.003. NEGOTIATIONS TO RESOLVE DIFFERENCES. (a) Until the State of Oklahoma enters into the Red River Boundary Compact in substantially the form provided by Section 12.002, the Commissioner of the General Land Office has the authority to negotiate with the appropriate Oklahoma representative to resolve any differences between the states of Texas and Oklahoma regarding matters covered by the compact. The commissioner shall conduct the negotiations in cooperation with the Red River Boundary Commission created by H.C.R. No. 128, Acts of the 74th Legislature, Regular Session, 1995.
(b) The Commissioner of the General Land Office shall report annually to the governor of this state, or more frequently if necessary, on the status of the negotiations.
Added by Acts 1999, 76th Leg., ch. 212, § 1, eff. May 24, 1999.
§ 12.004. IMPLEMENTATION OF COMPACT. (a) If the State of Oklahoma enters into the Red River Boundary Compact in substantially the form provided by Section 12.002, the Commissioner of the General Land Office has the authority to negotiate with the appropriate Oklahoma representative to establish procedures for implementing the compact's provisions. The commissioner shall conduct the negotiations in cooperation with the Red River Boundary Commission.
(b) The Commissioner of the General Land Office shall report annually to the governor of this state, or more frequently if necessary, on the status of the negotiations.
(c) A procedure for implementing a provision of the compact must be approved by the governor of this state.
Added by Acts 1999, 76th Leg., ch. 212, § 1, eff. May 24, 1999.
§ 12.005. RELATION TO OTHER LAW AND LITIGATION. The Red River Boundary Compact does not affect:
(1) the Red River Compact, the text of which is set out in Section 46.013, Water Code; or
(2) the riparian rights of adjacent landowners to access and use the waters of the Red River as provided by the Treaty of Amity, Settlement and Limits, Feb. 22, 1819, United States-Spain, 8 Stat. 252, T.S. No. 327; or
(3) litigation pending in either state involving title to land or boundaries of rivers or water bodies of that state.
Added by Acts 1999, 76th Leg., ch. 212, § 1, eff. May 24, 1999. § 23.001. DEFINITIONS. In this chapter: (1) "Commissioner" means the Commissioner of the General Land Office. (2) "Land office" means the General Land Office.
Acts 1977, 65th Leg., p. 2367, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
§ 23.011. ELECTION. (a) A county surveyor is elected to a four-year term as provided by Article XVI, Sections 64 and 65, of the Texas Constitution.
(b) To be eligible to serve as a county surveyor, a person must be a registered professional land surveyor.
Acts 1977, 65th Leg., p. 2367, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1989, 71st Leg., ch. 1091, § 29, eff. Sept. 1, 1989.
§ 23.012. RESIDENCE. The county surveyor shall reside in the county.
Acts 1977, 65th Leg., p. 2367, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.013. BOND. The county surveyor shall execute a bond conditioned on the faithful performance of the duties of the office. The amount of the bond shall be fixed by the commissioners court and shall be not less than $500 nor more than $10,000.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.014. DEPUTY SURVEYOR. (a) A county surveyor may appoint a deputy surveyor as he considers necessary.
(b) The county surveyor shall administer the deputy surveyor's official oath and take his bond in the sum of not less than $500 nor more than $10,000, conditioned on the faithful performance of the duties of the office.
(c) The deputy may perform all acts authorized or required by law to be done by the county surveyor.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.015. CHAIN CARRIERS AND MARKERS. (a) A county surveyor may employ persons 16 years of age or older as chain carriers or markers.
(b) The county surveyor shall administer an oath to each of these employees to faithfully perform his duties in accordance with the instructions given him.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.016. OFFICE LOCATION. (a) The county surveyor's office shall be located in the courthouse or in a suitable building at the county seat.
(b) Rent for an office outside the courthouse shall be paid by the commissioners court on showing that:
(1) the rent is reasonable; (2) the office is necessary; and (3) an office is not available at the courthouse.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.017. ABOLITION OF OFFICE IN CERTAIN COUNTIES. In a county in which the office of county surveyor was abolished by Chapter 315, Acts of the 61st Legislature, Regular Session, 1969 (Article 5298a, Vernon's Texas Civil Statutes), the commissioners court may, when the court considers it necessary, employ a qualified person to perform a function formerly performed by the county surveyor.
Added by Acts 1987, 70th Leg., ch. 149, § 25, eff. Sept. 1, 1987.
SUBCHAPTER C. POWERS AND DUTIES
§ 23.051. IN GENERAL. The county surveyor shall perform the duties required of him by law.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.0515. FIELD NOTES, PLATS, AND OTHER DOCUMENTS. (a) In a county in which there is a county surveyor, only the county surveyor may:
(1) file and record field notes and plats of surveys made in the county and other documents required by law to be recorded in the county surveyor's records; and
(2) issue a certificate of fact and certify the correctness of a copy of any document, record, or entry shown by the records of the county surveyor.
(b) If the county surveyor and each authorized deputy of the county surveyor are absent from the county surveyor's office, the county clerk of the county has unrestricted access to the county surveyor's office and public records and may:
(1) record field notes, plats, and other documents required to be recorded in the county surveyor's records; and
(2) issue a certificate of fact and certify the correctness of a copy of any document, record, or entry shown by the official records of the county surveyor.
Added by Acts 2001, 77th Leg., ch. 1421, § 7, eff. June 1, 2003.
§ 23.052. SURVEYS ON WHICH PATENTS ARE TO BE OBTAINED. The county surveyor shall:
(1) receive and examine all field notes of surveys made in the county on which patents are to be obtained;
(2) certify to the same according to law; and (3) record the field notes in a book to be kept by him for that purpose.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.053. RECORD OF FIELD NOTES. (a) The commissioners court shall furnish the county surveyor all necessary books of record.
(b) The county surveyor shall record in a well-bound book all the surveys in his county, with the plats that he may make, whether private or official.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.054. RIGHT OF INSPECTION. At all times, any interested person, agent, or attorney may examine the books, papers, plats, maps, or other archives belonging to the office of the county surveyor on the payment of the fee set by law. In addition to the fees allowed by law for field work, the county surveyor may charge 20 cents per 100 words for the record.
Acts 1977, 65th Leg., p. 2368, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.055. BOUND RECORDS. If the commissioners court considers it necessary, it may order that the county surveyor's record be transcribed in good and substantial books by the county surveyor or special deputies sworn to make true copies of the record. For this service, not more than 15 cents per 100 words shall be allowed to be paid out of the county treasury.
Acts 1977, 65th Leg., p. 2369, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.056. LOST RECORDS. (a) If the maps, field notes, or other records of the county surveyor's office, or any part of them, are lost or destroyed, the county surveyor shall obtain from the commissioner a transcript of the lost records, certified to as required by law.
(b) The certified copy has the same force and effect as the original.
Acts 1977, 65th Leg., p. 2369, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.057. CUSTODY OF RECORDS IN ABSENCE OF COUNTY SURVEYOR; POWERS AND DUTIES OF COUNTY CLERK. If a county does not have a county surveyor, the county clerk of the county:
(1) is the legal custodian of the county surveyor's records; (2) shall take charge of all records, maps, and papers belonging to the county surveyor's office and safely keep them in the county clerk's office; and
(3) may make any certificate and certify any copy that the county surveyor would be authorized to make or certify.
Acts 1977, 65th Leg., p. 2369, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2001, 77th Leg., ch. 1421, § 8, eff. June 1, 2003.
§ 23.058. DELIVERY OF RECORDS TO SUCCESSOR. On removal from office or at the expiration of his term of office, the county surveyor shall deliver to his successor all records, books, papers, maps, and other things pertaining to his office.
Acts 1977, 65th Leg., p. 2369, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.059. FAILURE TO SURVEY. If a county surveyor fails, neglects, or refuses to make a survey or have a survey made, within one month after the amount of lawful surveying fees are tendered to him by a person legally entitled to the survey, he and his sureties shall be liable on his official bond to the injured parties in the amount of damages or injury the parties may sustain by reason of the neglect, refusal, or failure.
Acts 1977, 65th Leg., p. 2369, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 23.060. FEES FOR RECORDING AND ISSUING DOCUMENTS. (a) The fees for recording documents in the county surveyor's records, for issuing certificates, and for making certified copies are the fees provided by law.
(b) The county surveyor is entitled to fees for all documents recorded by the county surveyor or a deputy of the county surveyor and for all certificates and certified copies issued by the county surveyor or a deputy of the county surveyor.
(c) The county clerk of the county is entitled to all fees for documents recorded by the county clerk and for all certificates and certified copies issued by the county clerk under Sections 23.0515(b) and 23.057(3).
Added by Acts 2001, 77th Leg., ch. 1421, § 9, eff. June 1, 2003. § 32.001. DEFINITIONS. In this chapter: (1) "Board" means the School Land Board. (2) "Commissioner" means the Commissioner of the General Land Office. (3) "Land office" means the General Land Office. (4) "Land" means: (A) land dedicated to the permanent school fund and the asylum funds by the constitution and laws of this state;
(B) the mineral estate in areas within tidewater limits, including islands, lakes, bays, and the bed of the sea which belong to the state;
(C) the mineral estate in river beds and channels; and (D) land owned by the state or held in trust for the use and benefit of the state or of a department, board, or agency of the state.
Acts 1977, 65th Leg., p. 2377, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 4, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 642, § 1, eff. Aug. 26, 1991.
§ 32.002. APPLICATION OF CHAPTER. (a) This chapter does not apply to: (1) land dedicated by the constitution or a law of this state to The University of Texas System, land donated by a will or instrument in writing or otherwise to The University of Texas System, as trustee, for a scientific, educational, or other charitable or public purpose, or any other land under the control of the Board of Regents of The University of Texas System;
(2) land whose title is vested in the state for the use and benefit of any part of The Texas A&M University System or land under the control of the Board of Regents of The Texas A&M University System;
(3) minerals subject to lease under Subchapter F, Chapter 52, of this code, commonly known as the Relinquishment Act, and Subchapters B and C, Chapter 53, of this code; (4) oil and gas underlying land owned by the state that was acquired to construct or maintain a highway, road, street, or alley, which is located in a producing area, unless the oil or gas is leased for the specific purpose of drilling a horizontal well;
(5) oil and gas underlying land owned by the state that was acquired to construct or maintain a highway, road, street, or alley if the Texas Transportation Commission has determined that such right-of-way is no longer needed for use by citizens as a road pursuant to Section 202.021, Transportation Code;
(6) land owned by the Texas Parks and Wildlife Department; or (7) land owned by the Texas Board of Criminal Justice. (b) For purposes of Subsection (a)(4) of this section, land is located in a producing area if the closest boundary line of the surface of such land is within 2,500 feet of a well capable of producing oil or gas in paying quantities as of January 1, 1985.
(c) Oil and gas underlying land not located within a producing area or that is leased for the specific purpose of drilling a horizontal well may be leased under the provisions of Section 32.201 of this code.
(d) If title to land subject to Subchapter F, Chapter 52 of this code, commonly known as the Relinquishment Act, is acquired by a department, board, or agency of the state, the land shall be leased as provided by Chapter 52 of this code for the leasing of unsold public school land.
(e) If title to land subject to Subchapter C, Chapter 53, of this code is acquired by a department, board, or agency of the state, the land shall be leased as provided by Chapter 53 of this code for the leasing of unsold surveyed public school lands.
Added by Acts 1985, 69th Leg., ch. 624, § 5, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 6.05(e), eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 642, § 2, eff. Aug. 26, 1991; Acts 1993, 73rd Leg., ch. 897, § 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 165, § 22(50), eff. Sept. 1, 1995.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
§ 32.011. CREATION OF BOARD. There is created a board to be known as the School Land Board.
Acts 1977, 65th Leg., p. 2377, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.012. MEMBERS OF THE BOARD. (a) The board is composed of: (1) the commissioner; (2) a citizen of the state appointed by the governor with the advice and consent of the senate; and
(3) a citizen of the state appointed by the attorney general with the advice and consent of the senate.
(b) The authority of the attorney general to appoint one of the members of the board, including the authority to make appointments during the recess of the senate, is the same as the authority of the governor to fill vacancies in state offices under the Texas Constitution.
(c) Each appointment made by the governor and the attorney general shall be made in accordance with and subject to the provisions of the Texas Constitution authorizing the filling of vacancies in state offices by appointment of the governor.
Acts 1977, 65th Leg., p. 2377, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.0121. APPOINTMENTS WITHOUT DISCRIMINATION. Appointments to the board shall be made without regard to the race, color, handicap, sex, religion, age, or national origin of the appointees.
Added by Acts 1985, 69th Leg., ch. 624, § 7, eff. Sept. 1, 1985.
§ 32.0122. DISQUALIFICATION OF LOBBYISTS. A person who is required to register as a lobbyist under Chapter 305 of the Government Code, by virtue of his activities for compensation in or on behalf of a profession related to the operation of the board, may not serve as a member of the board or act as the general counsel to the board.
Added by Acts 1985, 69th Leg., ch. 624, § 8, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 2.19(20), eff. Sept. 1, 1987.
§ 32.0123. CONFLICTS OF INTEREST PROHIBITED. An officer, employee, or paid consultant of a statewide or national trade association in the oil and gas or mining industry may not be a member or employee of the board, nor may a person who cohabits with or is the spouse of an officer, managerial employee, or paid consultant of a statewide or national trade association in the oil and gas or mining industry be a member of the board or an employee of the board grade 17 and over, including exempt employees, according to the position classification schedule under the General Appropriations Act.
Added by Acts 1985, 69th Leg., ch. 624, § 9, eff. Sept. 1, 1985.
§ 32.013. TERMS OF APPOINTED MEMBERS. The members appointed to the board by the governor and the attorney general serve for terms of two years.
Acts 1977, 65th Leg., p. 2377, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.014. CHAIRMAN OF THE BOARD. The commissioner serves as chairman of the board.
Acts 1977, 65th Leg., p. 2377, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.015. PER DIEM AND REIMBURSEMENT. Each citizen member of the board is entitled to receive a per diem allowance for each day spent in performing his duties and as reimbursement for actual and necessary travel expenses incurred in performing his duties the amount provided in the General Appropriations Act.
Acts 1977, 65th Leg., p. 2377, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.016. BOARD MEETINGS. (a) When necessary, the board shall meet on the first and third Tuesdays of each month in the land office.
(b) Subject to recesses at the discretion of the board, meetings of the board shall continue until the board has completed its docket.
(c) The chairman of the board may call special meetings of the board at any time the chairman thinks necessary by giving the other members notice.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1999, 76th Leg., ch. 139, § 1, eff. Sept. 1, 1999.
§ 32.017. SECRETARY OF THE BOARD. (a) The board shall select a secretary from persons nominated by the commissioner.
(b) The person selected as secretary shall be approved by a majority of the board.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.0171. REMOVAL OF BOARD MEMBER. (a) It is a ground for removal from the board if a member:
(1) does not have at the time of appointment the qualifications required by Subsection (a) of Section 32.012 of this code for appointment to the board;
(2) does not maintain during the service on the board the qualifications required by Subsection (a) of Section 32.012 of this code for appointment to the board;
(3) violates a prohibition established by Section 32.0122 or 32.0123 of this code;
(4) is unable to discharge his duties for a substantial portion of the term for which he was appointed because of illness or disability; or
(5) is absent from more than one-half of the regularly scheduled board meetings which the member is eligible to attend during each calendar year, except when the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it was taken when a ground for removal of a member of the board existed.
(c) If the commissioner has knowledge that a potential ground for removal exists, he shall notify the governor that a potential ground for removal exists.
Added by Acts 1985, 69th Leg., ch. 624, § 10, eff. Sept. 1, 1985.
§ 32.018. EMPLOYMENT OF GEOLOGIST AND MINERALOGIST. The commissioner may employ a geologist and a mineralogist who shall be informed about minerals on land under the board's jurisdiction and activities under pending applications and previous leases and sales. The geologist and mineralogist shall report to the board any information relating to these subjects.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 11, eff. Sept. 1, 1985.
§ 32.019. BOARD EMPLOYEES. (a) The commissioner may employ additional employees necessary for the discharge of the duties of the board.
(b) Employees of the board shall be considered employees of the land office, and civil and criminal laws regulating the conduct and relations of employees of the land office apply to employees of the board.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.020. MINUTES OF BOARD. The board shall keep minutes which shall include a record of its proceedings and a docket on which the secretary shall enter matters to be considered by the board.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.021. RECORDS AND PROCEEDINGS AS ARCHIVES. The records and proceedings of the board shall be records and archives of the land office.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.022. INSPECTION OF MINUTES AND DOCKET. (a) On payment of the fees prescribed by law for examination of other land office records, the minutes and docket shall be subject to inspection by any citizen of the state who desires to make the examination.
(b) An examination made under this section shall be made in the presence of the secretary of the board or a clerk designated by law.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.024. FINANCIAL REPORT REQUIRED. The board shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding year. The commissioner shall include the report as part of the report required by Section 31.060 of this code.
Added by Acts 1985, 69th Leg., ch. 624, § 12, eff. Sept. 1, 1985.
§ 32.025. AUDIT. The financial transactions of the board are subject to audit by the state auditor in accordance with Chapter 321, Government Code.
Added by Acts 1985, 69th Leg., ch. 624, § 13, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 584, § 6, eff. Sept. 1, 1989.
§ 32.026. POLICIES ON PUBLIC HEARINGS. The board shall develop and implement policies that will provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the board.
Added by Acts 1985, 69th Leg., ch. 624, § 14, eff. Sept. 1, 1985.
SUBCHAPTER C. POWERS AND DUTIES
§ 32.061. BOARD'S GENERAL DUTIES. Except as provided by Subchapter G, Chapter 51, of this code, the board shall:
(1) set the dates to open received bids for the sale of surveyed land dedicated to the permanent school fund, for the lease of land for prospecting or exploring for, mining, producing, storing, caring for, transporting, preserving, selling, or disposing of oil, gas, or other minerals leased under this chapter, and for the commitment of land to a contract for development;
(2) determine the prices and set the terms of the contract for which land shall be sold, leased, or committed to a contract for development;
(3) consult with the president, chairman, or other head of the department, board, or agency, as applicable, or with the representative of the head, on each matter before the board that affects land owned or held in trust for the use and benefit of a department, board, or agency of the state; and
(4) perform any other duties which may be required by law.
Acts 1977, 65th Leg., p. 2378, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended Acts 1985, 69th Leg., ch. 624, § 15, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 897, § 2, eff. Sept. 1, 1993.
§ 32.062. ADOPTION OF RULES AND COLLECTION OF FEES. (a) The board shall adopt rules of procedure and rules for the sale, lease, and commitment to a contract for development of land as provided by this chapter.
(b) The board by rule shall adopt and shall collect reasonable fees necessary to carry out this chapter.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 16, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 897, § 3, eff. Sept. 1, 1993.
§ 32.063. DUTY TO ADVISE COMMISSIONER. The board shall advise the commissioner regarding any matters submitted to it for that purpose.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.064. SURVEY OR SUBDIVISION OF LAND. The board may have land surveyed or subdivided into tracts, lots, or blocks based on its determination of which method will be most conducive and convenient to facilitate the advantageous sale of land, the lease of land for oil, gas, or other minerals, or the commitment of land to a contract for development.
Added by Acts 1985, 69th Leg., ch. 624, § 17, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 4, eff. Sept. 1, 1993.
§ 32.065. PERMITS FOR SURVEYS OR INVESTIGATIONS. If land other than public school land is not under a valid lease or committed to a contract for development, the board may issue a permit for a geological, geophysical, or other survey or investigation of that land that will encourage the development of the land for oil, gas, or other minerals. The permit may be issued for the consideration and under the terms and conditions the board considers to be in the best interest of the state.
Added by Acts 1985, 69th Leg., ch. 624, § 18, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 5, eff. Sept. 1, 1993.
§ 32.066. EASEMENTS. (a) The board may grant easements of right-of-way on any land except:
(1) unsold public school land; (2) the portion of the Gulf of Mexico within the jurisdiction of the state; and
(3) islands, saltwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits.
(b) The easements may be granted on terms and conditions the board considers to be in the best interest of the state.
(c) This section shall not apply to land owned by the Texas Department of Transportation.
Added by Acts 1985, 69th Leg., ch. 624, § 19, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 165, § 22(51), eff. Sept. 1, 1995.
§ 32.067. MARGINAL PROPERTY ROYALTY RATES. (a) In this section: (1) "Barrel of oil equivalent" means 6,000 cubic feet of natural gas for each 42-gallon barrel of crude oil or a volume of gas with a minimum heating value of 6,000,000 British thermal units (6,000 Mbtu), whichever is greater.
(2) "Qualifying Gulf of Mexico property" means land described in Section 52.011(2) that is subject to a lease issued under Subchapter B, Chapter 52.
(3) "Qualifying Gulf of Mexico reservoir" means a reservoir that: (A) during a period established by board rule has an average daily per well production equal to or less than 50 barrels of oil or barrels of oil equivalent; and
(B) underlies: (i) a qualifying Gulf of Mexico property; or (ii) a pooled unit that includes a qualifying Gulf of Mexico property. (4) "Qualifying property" means land subject to a lease issued under this chapter, under Subchapter E, Chapter 51, or under Chapter 52.
(5) "Qualifying reservoir" means a reservoir that: (A) during a period established by board rule has an average daily per well production equal to or less than 15 barrels of oil or barrels of oil equivalent; and
(B) underlies: (i) a qualifying property; or (ii) a pooled unit that includes a qualifying property. (6) "Reservoir" has the same meaning as "common reservoir" as that term is defined in Section 86.002.
(b) The board by rule may provide for the reduction of royalty rates as provided by this section.
(c) The royalty rate for oil and gas produced from a qualifying reservoir may be reduced to not less than one-sixteenth (6.25 percent) for a term prescribed by the board. In determining whether to grant a reduction in the royalty rate, the board may consider whether the qualifying property is being operated efficiently, including whether the property is pooled or has reasonable potential for the application of secondary or tertiary recovery techniques.
(d) The royalty rate for the state's share under a lease issued under Subchapter F, Chapter 52, or Sections 51.195(c)(2) and (d) may be reduced under this section to not less than one-thirty-second (3.125 percent) for a term prescribed by the board. The state's royalty rate may be reduced under this subsection only if the royalty rate for the owner of the soil is reduced in the same proportion.
(e) The royalty rate under a lease issued under Subchapter C, Chapter 52, may not be reduced to a rate that is lower than the rate under lease of land that:
(1) adjoins the land leased under Subchapter C; and (2) is held or operated by, or under the significant control of, the state's lessee.
(f) The royalty rate under a lease issued under Subchapter F of this chapter may not be reduced to a rate that is lower than the rate under a lease of land that adjoins the land leased under Subchapter F.
(g) If a qualifying reservoir for which a royalty rate reduction is sought under this section is included in a unit subject to the board's authority, the board may modify the terms and conditions for the unit as a condition of approving the requested reduction in the royalty rate.
(h) This section does not apply to the free royalty reserved by the state under Section 51.054.
Added by Acts 1995, 74th Leg., ch. 1007, § 1, eff. June 17, 1995. Amended by Acts 1999, 76th Leg., ch. 1300, § 1, eff. Sept. 1, 1999.
SUBCHAPTER D. SALE AND LEASE OF LAND
§ 32.101. APPLICABLE LAW. Land shall be offered for sale, lease, or commitment to a contract for development subject to the terms and conditions provided by law. Sales and leases of upland within 2,500 feet of a military base may not be made unless the commissioner or the commissioner's designee, after consultation with appropriate military authorities, determines that the sale or lease will not adversely affect the mission of the military base.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 6, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 149, § 11, eff. May 27, 2003.
§ 32.102. LIST OF LAND. From time to time the commissioner shall furnish the board a list of land areas subject to the provisions of this chapter.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.103. APPRAISED VALUE OF LAND. (a) Except as provided in Subsection (b) of this section, no land may be appraised at less than $2 an acre.
(b) Land located west of the Pecos River may be appraised at not less than $1 an acre.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.104. APPRAISAL FEE. (a) The board shall charge applicants for the purchase of excess acreage and unsurveyed public school land an appraisal fee for appraising the acreage and land to determine the price at which it is to be sold by the state.
(b) The appraisal fee shall be in an amount set by the board, and any part of the fee which in the opinion of the board is unused shall be refunded to the applicant.
(c) The appraisal fee shall be paid to the commissioner who shall deposit all fees that are not refunded in the State Treasury in the fund provided under Section 32.110 of this code.
(d) The money deposited in the fund to the extent necessary is appropriated to the land office to pay salaries, travel expenses, and other expenses of personnel necessary to accomplish the appraisals or other work of the board.
(e) The provisions of this section are cumulative of other laws which are not in conflict, but if a conflict exists, this section is controlling.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.105. DATE FOR OPENING BIDS. The date for opening bids for the sale, lease, or commitment to a contract for development of land shall be the first or third Tuesday of the month.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 7, eff. Sept. 1, 1993.
§ 32.106. DESCRIPTION OF LAND. The description of public school land offered for sale, lease, or commitment to a contract for development shall be in accord with the description which may be found in the School Land Registry in the land office.
Acts 1977, 65th Leg., p. 2379, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 8, eff. Sept. 1, 1993.
§ 32.107. NOTICE OF SALE, LEASE, AND CONTRACT FOR DEVELOPMENT. (a) The board shall publish notice that the board will receive bids for the sale, lease, or commitment to a contract for development of land in at least three issues of at least four daily newspapers.
(b) The notice shall be published at least 30 days before the date the bids are advertised to be opened.
(c) The notice shall state that land is to be offered for sale, lease, or commitment to a contract for development on a certain date and at a certain time and the method of the sale, lease, or commitment to a contract for development and shall give notice that a person may obtain publications from the land office that describe the land offered for sale, lease, or commitment to a contract for development.
(d) The land office may solicit and include advertising in its publications. The commissioner shall deposit fees paid for advertising in land office publications in a separate account in the state treasury.
Acts 1977, 65th Leg., p. 2380, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 20, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 897, § 9, eff. Sept. 1, 1993.
§ 32.1071. LEASE SALES. (a) The sale of oil, gas, or other mineral leases shall be by sealed bid or at public auction or through a combination of public auction and sealed bid, as the board elects.
(b) Sections 52.015 through 52.020 of this code apply to the sale of leases by sealed bid.
(c) The leases shall be made on terms and conditions that may be prescribed by the board.
Added by Acts 1985, 69th Leg., ch. 624, § 21, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 10, eff. Sept. 1, 1993.
§ 32.1072. MINIMUM ROYALTY, BONUS, AND RENTAL. The board may not accept a bid on an oil and gas lease that offers:
(1) a royalty of less than one-eighth of the gross production of oil and gas; or
(2) a cash bonus of less than $10 an acre.
Added by Acts 1985, 69th Leg., ch. 624, § 22, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 11, eff. Sept. 1, 1993.
§ 32.1073. FIXING ROYALTY, BONUS, AND RENTAL. In offering land for lease under this subchapter, the board may:
(1) set the royalty and rental and provide for bidding on a basis of the highest cash bonus offered; or
(2) set the cash bonus and rental and provide for bidding on the basis of the highest royalty offered.
Added by Acts 1985, 69th Leg., ch. 624, § 23, eff. Sept. 1, 1985.
§ 32.109. ACCEPTANCE AND REJECTION OF BIDS. (a) For each tract offered for sale, lease, or commitment to a contract for development, the board must accept the best bid submitted that meets the minimum requirements set by the board or by law or reject all bids.
(b) The minutes of the board shall reflect the acceptance or rejection of a bid.
Acts 1977, 65th Leg., p. 2380, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 12, eff. Sept. 1, 1993.
§ 32.110. SPECIAL SALE FEE. (a) On land sales and mineral leases made by the board, the purchaser or bidder is required to pay by separate check an amount equal to one and one-half percent of the bid payable to the commissioner as a special fee.
(b) If the sale is by bid, only the special fees paid on the bids accepted by the board shall be deposited by the commissioner in the State Treasury as a special fund.
(c) Failure to pay the special fee shall not void a bid, but the commissioner shall demand payment of the fee before a lease is issued to the best bidder. If the best bidder fails or refuses to make the payment within 30 days after demand by the commissioner, the bidder is not entitled to a sale of or a lease on the tract covered by that bid and the cash bonus shall be automatically forfeited to be deposited by the commissioner in the State Treasury to the credit of the permanent school fund or the appropriate special mineral fund. The board, at its option, may offer the tract for sale or lease to the next best bidder under the same terms as submitted by and as would have been granted to the best bidder.
(d) Checks submitted by unsuccessful bidders shall be returned to the bidders.
Acts 1977, 65th Leg., p. 2380, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 405, ch. 81, § 21(n), eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 897, § 13, eff. Sept. 1, 1993.
§ 32.111. ISSUANCE OF AWARD OR LEASE. Each award or lease shall be issued by the commissioner according to the minutes approved by the board.
Acts 1977, 65th Leg., p. 2380, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 32.112. SALE OF TAX FORECLOSURE PROPERTY. (a) All real property or any interest in real property placed in the name of the state as a result of foreclosure of a tax lien, whether the property was sold, bid off, or otherwise transferred to the state, may be sold or leased by the board in the same manner as provided for the sale or lease of land under Chapter 51, free of any lien of a taxing unit that was a party to the judgment in the delinquent tax suit involving the property for taxes imposed on the property, penalties, or interest that are due the taxing unit.
(b) A sale of property by the board under this section vests in the purchaser of the property good and perfect title to the interest in the property owned by the person liable for the delinquent taxes. The purchaser has the right to the use and possession of the property, subject only to the person's right of redemption, a recorded restrictive covenant running with the land, and a valid easement of record as of the date the property was placed in the name of the state, if the covenant or easement was recorded before January 1 of the year in which the tax lien attached to the property.
(c) The board may retain from the proceeds of a sale or lease conducted under this section the cost of conducting the transaction, including advertising, appraisal, and administrative costs. The balance of the proceeds shall be deposited in the State Treasury to the credit of the Texas capital trust fund. The board is not required to pay any portion of the proceeds to a taxing unit that was a party to the judgment in the delinquent tax suit involving the property in satisfaction of any taxes imposed on the property, penalties, or interest that are due the taxing unit.
Added by Acts 1987, 70th Leg., ch. 208, § 10, eff. Aug. 31, 1987. Amended by Acts 1993, 73rd Leg., ch. 991, § 8, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 861, § 1, eff. June 18, 1997.
SUBCHAPTER E. CONDITIONS OF LEASES
§ 32.151. TERM OF LEASE. Each oil and gas lease shall be for a primary term not to exceed 10 years and for as long thereafter as oil or gas is produced in paying quantities.
Added by Acts 1985, 69th Leg., ch. 624, § 24, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 14, eff. Sept. 1, 1993.
§ 32.152. ASSIGNMENT AND TRANSFER. A lessee may transfer or assign his lease at any time in the manner provided by Section 52.026 of this code.
Added by Acts 1985, 69th Leg., ch. 624, § 24, eff. Sept. 1, 1985.
§ 32.153. LEASE RELINQUISHMENT. A lessee may relinquish his lease to the state at any time in the manner provided by Section 52.027 of this code.
Added by Acts 1985, 69th Leg., ch. 624, § 24, eff. Sept. 1, 1985.
§ 32.154. LEASES SUBJECT TO LAWS, ORDERS, AND RULES. Drilling or mining operations for oil, gas, or other minerals and the production of oil, gas, or other minerals under a lease issued under this chapter are subject to:
(1) the laws of this state; (2) valid orders made by the Railroad Commission of Texas or any other regulatory authority controlling the development of leases for the production of oil, gas, or other minerals; and
(3) rules the board adopts.
Added by Acts 1985, 69th Leg., ch. 624, § 24, eff. Sept. 1, 1985.
§ 32.155. RENTAL AND ROYALTY PAYMENTS. (a) Each lessee or his assigns shall pay annual rentals and royalties as specified by the board.
(b) Subchapter D, Chapter 52 of this code applies to a lease issued under this chapter.
Added by Acts 1985, 69th Leg., ch. 624, § 24, eff. Sept. 1, 1985.
§ 32.156. FORFEITURE. Each lease is subject to forfeiture by the commissioner under the conditions and in the manner provided by Section 52.176 of this code.
Added by Acts 1985, 69th Leg., ch. 624, § 24, eff. Sept. 1, 1985.
§ 32.157. SPECIAL ACCOUNTS. (a) Special funds are created in the State Treasury to be known as the Parks and Wildlife Department and the Texas Department of Corrections special mineral funds.
(b) All money collected as bonus, royalty, rental, payments for easements, and permit fees attributable to land covered by this chapter, other than land dedicated to the permanent school fund, shall be deposited in the special mineral fund of the department, board, or agency owning the land.
(c) To offset the costs of leasing and administering mineral leasing, all fees collected relating to leasing lands owned by boards, departments, or agencies, including the sales fee and any penalties collected shall be credited to the same fund account in the treasury as those similar fees collected in the leasing of land dedicated to the permanent school fund.
Added by Acts 1985, 69th Leg., ch. 624, § 50, eff. Sept. 1, 1985.
SUBCHAPTER F. LEASE OF HIGHWAY LANDS
§ 32.201. PREFERENTIAL RIGHT TO LEASE CERTAIN LAND BY ADJOINING MINERAL OWNER. (a) In this section, "mineral owner" means any person who owns the right to explore for, develop, and produce oil and gas from a tract of land adjoining lands owned by the state that were or may be acquired to construct or maintain a highway, road, street, alley, or other right-of-way.
(b) Oil and gas under lands owned by the state that were or may be acquired to construct or maintain a highway, road, street, alley, or other right-of-way may be offered for lease under this chapter only after the oil and gas are first offered for lease to the mineral owner of the land adjoining the length of the land to be leased. The board shall set the terms and conditions of the lease as follows:
(1) In instances where the adjoining land is covered by an existing oil and gas lease currently in effect, the royalty, bonus, and rental shall be identical to those amounts contained in the lease covering the adjoining land or, in the event there is more than one lease covering adjoining land, shall be no less favorable to the state than the most favorable of such leases.
(2) In instances where the adjoining land is not covered by an existing oil and gas lease, the royalty, bonus, and rental for the lease shall be as provided in Sections 32.1072 and 32.1073 of this code.
(c) The preferential right of the mineral owner created by Subsection (b) of this section is subject to the following limitations:
(1) the lease of the oil and gas extends only to the center of the width of the particular highway, road, street, alley, or other right-of-way adjacent to the property in which the lessee is the mineral owner; and
(2) the preferential right to lease must be exercised by the mineral owner within 120 days of actual notice of the intention to lease as provided by Subsection (d) of this section.
(d) Actual notice, describing the land as required by Section 32.204 of this code, has occurred upon mailing of the notice of the intention to lease by registered mail to the last known address of the affected mineral owner or owners, if more than one, as determined from records of the county clerk for the county in which the land to be leased is located. If the identity or address of a mineral owner is not known, and cannot be located after a diligent search of the records of the county clerk and tax assessor-collector for the county in which the land is located, the actual notice required by Subsection (c) of this section shall be provided by publication. The notice shall be published in the manner provided in the Texas Rules of Civil Procedure for citation by publication in actions against unknown owners or claimants of interest in the land. Actual notice has occurred on completion of all procedures required by the Rules of Civil Procedure.
(e) To exercise the preferential right under this section, the mineral owner must tender to the commissioner the bonus set by the board, together with the appropriate statutory sales fee. The tender to the commissioner must be made on or before the end of the 120-day period provided by Subsection (c)(2) of this section.
(f) At any time during the 120-day period a mineral owner may waive his preferential right to lease by providing the General Land Office with a written waiver. Failure by the mineral owner to exercise his preferential right to lease the land within the 120-day period provided by Subsection (c)(2) of this section, or the filing of a written waiver, results in forfeiture of the preferential right to lease the land.
(g) If a mineral owner's preferential right is forfeited under this section, the land may be offered for lease by the board directly to an applicant or by sealed bid as provided by this chapter. The board shall not offer nor accept a price or terms which are less than that offered to the adjoining mineral owner under this section. If not leased at a public offering within 18 months from the date the lease was offered to the adjoining mineral owner, it shall be reoffered to the mineral owner prior to public offering in accordance with the provisions of this section.
(h) An adjoining mineral owner shall have the right to seek a judicial determination of the state's title to minerals beneath the adjoining highway right-of-way, and legislative consent to sue the state is hereby granted. Within 60 days of a final nonappealable judgment finding the state did not have title, or only had partial title, the state shall refund all or the proportionate part of any bonus, rental, royalty, and other consideration to the lessee. The state's lessee shall pay to the lawful mineral owner the value of any oil and gas produced from or allocated to the minerals upon which the state's title failed.
Added by Acts 1985, 69th Leg., ch. 327, § 2, eff. June 8, 1985. Amended by Acts 1987, 70th Leg., ch. 948, § 16, eff. Sept. 1, 1987. Renumbered from § 34.0511 by Acts 1987, 70th Leg., ch. 167, § 6.05(a), eff. Sept. 1, 1987. Amended by Acts 1987, 70th Leg., ch. 167, § 6.05(c), (f)(1), (2), (g), eff. Sept. 1, 1987.
§ 32.202. POOLING. Any oil and gas lease offered under § 32.201 of this code shall provide:
(1) authority for pooling all of the leased area into units of no more than 160 acres for an oil well or 640 acres for a gas well plus a 10 percent tolerance or of a unit size allowed under or prescribed by rules of the Railroad Commission of Texas;
(2) that the production allocable to the state lease shall be based upon the surface acreage of the state lease included in the unit;
(3) that the unit operations, production from any portion of the unit or payment of shut-in gas well royalty on a lease or unit well shall be considered for all purposes to be the conduct of operations and production on the state lease; and
(4) that neither unit production of oil or gas, nor unit operations, nor payment of shut-in royalties from a unit gas well, shall serve to hold the lease in force as to any area outside the unit, regardless of whether the production, maintenance of a shut-in gas well, or operations are actually located on the state tract or not.
Added by Acts 1985, 69th Leg., ch. 327, § 3, eff. June 8, 1985. Renumbered from § 34.0512 by Acts 1987, 70th Leg., ch. 167, § 6.05(a), eff. Sept. 1, 1987. Amended by Acts 1987, 70th Leg., ch. 167, § 6.05(b), eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 642, § 3, eff. Aug. 26, 1991.
§ 32.203. COMPENSATORY ROYALTY. Compensatory royalty shall be paid to the state on any lease offered and granted under Section 32.201 of this code if the lease is not being held by production on the tract, by production from a pooled unit, or by payment of shut-in royalties in accordance with the terms of the lease, and if oil or gas is sold and delivered in paying quantities from a well located within 2,500 feet of the leased premises and completed in a producible reservoir underlying the state lease or in any case in which drainage is occurring. Such compensatory royalty shall be paid at the royalty rate provided in the state lease based on the value of production from the well as provided in the lease on which such well is located. The compensatory royalty shall be paid in the same proportion that the acreage of the state lease has to the acreage of the state lease plus the acreage of the proration unit surrounding the draining well. The compensatory royalty is to be paid monthly to the commissioner on or before the last day of the month next succeeding the month in which the oil or gas is sold and delivered from the well causing the drainage or from the well located within 2,500 feet of the leased premises and completed in a producible reservoir under the state lease. Notwithstanding anything herein to the contrary, compensatory royalty payable under this section shall be no less than an amount equal to double the annual rental payable under the state lease. Payment of compensatory royalty shall maintain the state lease in force and effect for so long as such payments are made as provided in this section.
Added by Acts 1985, 69th Leg., ch. 327, § 3, eff. June 8, 1985. Renumbered from § 34.0513 by Acts 1987, 70th Leg., ch. 167, § 6.05(a), eff. Sept. 1, 1987. Amended by Acts 1987, 70th Leg., ch. 167, § 6.05(b), eff. Sept. 1, 1987.
§ 32.204. LEASE PROVISIONS. Any lease offered under Section 32.201 of this code shall contain a sufficient description of the land to be leased to enable the tract to be located on the ground. All other terms and conditions of the lease shall be identical to those contained in the lease covering such adjacent land, provided the terms and conditions are not inconsistent with any laws of this state. In the event there is more than one lease covering such land, the terms and conditions of the lease shall be no less favorable to the state than the most favorable of such leases. In those instances where the adjoining land is not covered by an existing oil and gas lease, all other terms and conditions of the lease shall be set by the board.
Added by Acts 1985, 69th Leg., ch. 327, § 3, eff. June 8, 1985. Renumbered from § 34.0514 by Acts 1987, 70th Leg., ch. 167, § 6.05(a), eff. Sept. 1, 1987. Amended by Acts 1987, 70th Leg., ch. 167, § 6.05(b), (f)(3), eff. Sept. 1, 1987.
§ 32.205. RULES. The board may adopt rules to carry out the provisions of this chapter.
Added by Acts 1985, 69th Leg., ch. 327, § 3, eff. June 8, 1985. Renumbered from § 34.0515 by Acts 1987, 70th Leg., ch. 167, § 6.05(a), eff. Sept. 1, 1987. Amended by Acts 1987, 70th Leg., ch. 167, § 6.05(f)(4), eff. Sept. 1, 1987.
§ 32.206. RATIFICATIONS AND OTHER AGREEMENTS. (a) The board may approve by rule or order a ratification or other agreement that includes in the benefits of production a mineral or royalty interest in land owned by the state that was acquired to construct or maintain a highway, road, street, or alley.
(b) An agreement approved by the board under this section must be executed by the commissioner to be effective.
(c) This section does not apply to an interest subject to pooling or unitization by a lessee under a lease issued under this subchapter.
Added by Acts 1993, 73rd Leg., ch. 897, § 15, eff. Sept. 1, 1993.
SUBCHAPTER G. TRADE OF LAND
§ 32.251. AUTHORITY OF BOARD, IN CONJUNCTION WITH LAND OFFICE, TO TRADE LAND. The Board, in conjunction with the land office, may trade fee and lesser interests in land dedicated to the permanent school fund for fee and lesser interests in land not dedicated to that fund if the board and the commissioner determine that the trade is in the best public interest of the people of this state.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003.
§ 32.252. AUTHORITY OF STATE AGENCY OR POLITICAL SUBDIVISION TO SELL OR EXCHANGE REAL PROPERTY. (a) A State Agency Or Political subdivision may directly sell or exchange real property belonging to the state agency or political subdivision with the board for land dedicated to the permanent school fund if the exchange is for fair market value.
(b) Section 272.001, Local Government Code, does not apply to an exchange under this section.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003.
§ 32.253. PURPOSE OF TRADE. Land dedicated to the permanent school fund may be traded to:
(1) aggregate sufficient acreage of contiguous land to create a manageable unit;
(2) acquire land having unique biological, geological, cultural, or recreational value; or
(3) create a buffer zone for the enhancement of already existing public land, facilities, or amenities.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003.
§ 32.255. DEED REQUIRED. (a) A trade of land dedicated to the permanent school fund may be made only by a deed signed jointly by the commissioner and the governor.
(b) The governor's failure to sign the deed is a veto of the proposed trade.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003.
§ 32.256. DEDICATION OF ACQUIRED LAND TO FUND. Land acquired by the board by trade under this subchapter is dedicated to the permanent school fund.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003.
§ 32.257. SUBSURFACE MINERAL RIGHTS. (a) If this state retains the subsurface mineral rights to the oil, gas, and other minerals in permanent school fund land traded under this subchapter, an unrestricted right of ingress to and egress from the land by this state and its lessees shall be retained for the purpose of exploration, development, and production of the oil, gas, and other minerals to which the rights are retained by this state.
(b) This state is entitled to lease the subsurface mineral rights retained under this section in the same manner and under the same conditions as subsurface mineral rights are leased in permanent school fund land in which this state owns the surface title and the subsurface mineral rights.
(c) A lessee of the subsurface mineral rights retained under this section is liable to the owner of the land for actual damages to the land that may occur as a result of exploration for and development and production of the oil, gas, and other minerals to which rights are retained under this section.
(d) Notwithstanding anything to the contrary in this subchapter, the board, to complete a trade of equal value, may convey the surface estate and reserve the oil, gas, and other minerals, with the surface owner acting as agent for the state under:
(1) Subchapter F, Chapter 52, in leasing the land for oil and gas and receiving one-half the bonus, rental, and royalty for acting as agent for the state in leasing the land and as compensation for surface damages; or
(2) Subchapter C, Chapter 53, in leasing the land for sulphur, coal, lignite, uranium, or potash and receiving 40 percent of the bonus, rental, and royalty for acting as agent for the state in leasing the land and as compensation for surface damages.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003.
§ 32.258. REPORT TO LEGISLATURE. (a) The board shall report to the legislature a trade of land dedicated to the permanent school fund. The board shall report the trade at:
(1) the first regular session of the legislature occurring after the trade if the legislature is not meeting in regular session at the time the trade is made; or
(2) the regular session of the legislature occurring at the time of the trade if the legislature is meeting in regular session at the time the trade is made.
(b) The report must state the facts that warranted the trade.
Added by Acts 2003, 78th Leg., ch. 1276, § 13.001(a), eff. Sept. 1, 2003. § 33.001. POLICY. (a) The surface estate in the coastal public land of this state constitutes an important and valuable asset dedicated to the permanent school fund and to all the people of Texas, and it is the declared policy of this state that the estate be managed pursuant to the policies stated in the following subsections of this section.
(b) The natural resources of the surface estate in coastal public land shall be preserved. These resources include the natural aesthetic values of those areas and the value of the areas in their natural state for the protection and nurture of all types of marine life and wildlife.
(c) Uses which the public at large may enjoy and in which the public at large may participate shall take priority over those uses which are limited to fewer individuals.
(d) The public interest in navigation in the intracoastal water shall be protected.
(e) Unauthorized use of coastal public land shall be prevented. (f) Utilization and development of the surface estate in the coastal public land shall not be allowed unless the public interest as expressed by this chapter is not significantly impaired by it.
(g) For the purposes of this chapter, the surface estate in coastal public land shall not be alienated except by the granting of leaseholds and lesser interests and by exchanges of coastal public land for littoral property as provided in this chapter.
(h) Vested rights in land shall be protected, subject to the paramount authority of the state in the exercise of police powers to regulate the exercise of these rights, and the orderly use of littoral property in a manner consistent with the public policy of this state shall not be impaired.
Acts 1977, 65th Leg., p. 2382, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.002. PURPOSE. The purpose of this chapter is to implement the policies stated in Section 33.001 of this code by delegating to the board, assisted by the planning division and other staff of the land office, certain responsibilities and duties with respect to the management of the surface estate in coastal public land.
Acts 1977, 65th Leg., p. 2383, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.003. SHORT TITLE. This chapter may be cited as the Coastal Public Lands Management Act of 1973.
Acts 1977, 65th Leg., p. 2383, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.004. DEFINITIONS. In this chapter: (1) "Land office" means the General Land Office. (2) "Commissioner" means the Commissioner of the General Land Office. (3) "Board" means the School Land Board. (4) "Person" means any individual, firm, partnership, association, corporation which is public or private and profit or nonprofit, trust, or political subdivision or agency of the state.
(5) "Coastal area" means the geographic area comprising all the counties in Texas which have any tidewater shoreline, including that portion of the bed and water of the Gulf of Mexico within the jurisdiction of the State of Texas.
(6) "Coastal public land" means all or any portion of state-owned submerged land, the water overlying that land, and all state-owned islands or portions of islands in the coastal area.
(7) "Island" means any body of land surrounded by the water of a saltwater lake, bay, inlet, estuary, or inland body of water within the tidewater limits of this state and shall include man-made islands resulting from dredging or other operations.
(8) "Management program" means the coastal management program provided by this chapter.
(9) "Seaward" means the direction away from the shore and toward the body of water bounded by the shore.
(10) "Structure" means any structure, work, or improvement constructed on, affixed to, or worked on coastal public land, including fixed or floating piers, wharves, docks, jetties, groins, breakwaters, artificial reefs, fences, posts, retaining walls, levees, ramps, cabins, houses, shelters, landfills, excavations, land canals, channels, and roads.
(11) "Submerged land" means any land extending from the boundary between the land of the state and the littoral owners seaward to the low-water mark on any saltwater lake, bay, inlet, estuary, or inland water within the tidewater limits, and any land lying beneath the body of water, but for the purposes of this chapter only, shall exclude beaches bordering on and the water of the open Gulf of Mexico and the land lying beneath this water.
(12) "Littoral owner," in this chapter only, means the owner of any public or private upland bordered by or contiguous to coastal public land.
(13) "Council" means the Coastal Coordination Council. (14) "Coastal zone" means the portion of the coastal area located within the boundaries established by the coastal management program under Section 33.053(a)(1).
(15) "Network" means the Texas Coastal Ocean Observation Network.
Acts 1977, 65th Leg., p. 2383, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 416, § 1, eff. June 8, 1995; Acts 2005, 79th Leg., ch. 719, § 1, eff. June 17, 2005.
§ 33.005. EFFECT OF CHAPTER. (a) This subchapter does not repeal Subchapter B, Chapter 436, Health and Safety Code, or the following provisions of the Parks and Wildlife Code: Chapters 83 and 86, Subchapter A of Chapter 46, Subchapter A of Chapter 76, Subchapter B of Chapter 81, Subchapter G of Chapter 82, Subchapter C of Chapter 216, or Sections 66.101, 66.107, 66.112 through 66.118, 66.205, 76.031 through 76.036, 78.001 through 78.003, 81.002, 136.047, 184.024, 201.015, or 335.025.
(b) None of the provisions of this chapter may be construed to alter, amend, or revoke any existing right granted pursuant to any law.
Acts 1977, 65th Leg., p. 2384, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 14, § 284(100), eff. Sept. 1, 1991.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
§ 33.011. BOARD TO ADMINISTER, IMPLEMENT, AND ENFORCE CHAPTER. The board is the executive agency of the state charged with the administration, implementation, and enforcement of this chapter.
Acts 1977, 65th Leg., p. 2384, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.012. LAND OFFICE TO ASSIST BOARD. The planning division and other staff of the land office shall assist the board in the discharge of its responsibilities and duties under this chapter.
Acts 1977, 65th Leg., p. 2384, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.013. ADDITIONAL PERSONNEL. The commissioner may employ any additional personnel in the land office that may be necessary for the board to perform effectively its functions under this chapter.
Acts 1977, 65th Leg., p. 2384, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.014. DISPOSITION OF MONEY FOR GRANTS OF CERTAIN INTERESTS. Money received by the board for grants of surface interests under this chapter whose initial term equals or exceeds 20 years shall be deposited in the State Treasury to the credit of the permanent school fund.
Acts 1977, 65th Leg., p. 2384, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.015. SPECIAL ACCOUNT. (a) A dedicated account is created, and money received by the board for the grant of permits under this chapter shall be deposited in the State Treasury to the credit of this dedicated account.
(b) Sections 403.094(h) and 403.095(b), Government Code, do not apply to the dedicated account created under this section.
Acts 1977, 65th Leg., p. 2385, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 991, § 9, eff. Sept. 1, 1993.
§ 33.016. DISPOSITION OF OTHER FUNDS. Money received by the board for the grant of any interest not under Section 33.015 of this code shall be deposited in the State Treasury to the credit of the permanent school fund.
Acts 1977, 65th Leg., p. 2385, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 328, § 5, eff. Jan. 1, 2004.
SUBCHAPTER C. POWERS AND DUTIES
§ 33.051. GENERAL DUTY. The board, the council, the land office, and the network shall perform the duties provided in this subchapter.
Acts 1977, 65th Leg., p. 2385, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 33, eff. June 7, 1991; Acts 1995, 74th Leg., ch. 416, § 2, eff. June 8, 1995; Acts 2005, 79th Leg., ch. 719, § 2, eff. June 17, 2005.
§ 33.052. DEVELOPMENT OF COASTAL MANAGEMENT PROGRAM. (a) The commissioner shall develop a continuing comprehensive coastal management program pursuant to the policies stated in Section 33.202 of this code. The program is not effective until approved by a majority of the council under Section 33.204 of this code.
Text of subsec. (b) as amended by Acts 1995, 74th Leg., ch. 165, § 22(52)
(b) In developing the program, the land office shall act as the lead agency to coordinate and develop a long-term plan for the management of uses affecting coastal conservation areas, in cooperation with other state agencies that have duties relating to coastal matters, including the Parks and Wildlife Department, the attorney general's office, the Texas Natural Resource Conservation Commission, the Texas Water Development Board, the Texas Department of Transportation, and the Railroad Commission of Texas. The plan shall implement the policies stated in Section 33.001 of this code and shall include the elements listed in Section 33.053 of this code.
Text of subsec. (b) as amended by Acts 1995, 74th Leg., ch. 416, § 2
(b) In developing the program, the land office shall act as the lead agency to coordinate and develop a long-term plan for the management of uses affecting coastal natural resource areas, in cooperation with other state agencies that have duties relating to coastal matters, including those agencies represented on the council. The program shall implement the policies stated in Section 33.202 of this code and shall include the elements listed in Section 33.053 of this code.
(c) The council may appoint and establish procedures for an advisory committee to advise the council and the land office on coastal management issues. The advisory committee may only include persons with expertise in coastal matters. A member of the advisory committee serves at the pleasure of the council. A member is not entitled to compensation for services performed as a member of the committee but may receive reimbursement from land office funds for actual and necessary expenses incurred in attending meetings of the advisory committee.
(d) For purposes of Subsections (a) and (b) of this section, "coastal natural resource areas" has the meaning assigned by Section 33.203 of this code.
(e) This section does not add to or subtract from the duties and responsibilities of a state agency other than the land office, the council, and the board.
Acts 1977, 65th Leg., p. 2385, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1989, 71st Leg., ch. 1145, § 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 295, § 34, eff. June 7, 1991; Acts 1995, 74th Leg., ch. 76, § 11.263, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 165, § 22(52), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 416, § 2, eff. June 8, 1995; Acts 2001, 77th Leg., ch. 70, § 1, eff. Sept. 1, 2001.
§ 33.053. ELEMENTS OF COASTAL MANAGEMENT PROGRAM. (a) The coastal management program, in compliance with the Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et seq.), shall include the following elements:
(1) an identification of the boundaries of the coastal zone subject to the coastal management program as provided by Section 33.2053(k);
(2) a continuous analysis of the potential uses for the land and water within the coastal zone, including recommendations as to which configurations of uses consonant with the policies of this chapter maximize the benefits conferred on the present and future citizens of Texas;
(3) guidelines on the priority of uses within the coastal zone, including specifically those uses of lowest priority;
(4) a list of the uses of the land and water within the coastal zone that are permissible under state law and under agency or subdivision actions described by Sections 33.2051 and 33.2053 and that would have a direct and significant impact on the coastal waters;
(5) recommendations as to increments of jurisdiction or authority necessary to protect land and water within the coastal zone from direct and significant detrimental consequences flowing from the uses of adjacent land;
(6) an inventory of designated coastal natural resource areas, as defined by Section 33.203, in the coastal zone;
(7) a description of the organizational structure by which the coastal management program is implemented and administered;
(8) a compilation of state constitutional provisions, laws, rules, and judicial decisions under which the state proposes to exercise control over the uses of land and water described by Subdivision (4);
(9) a list of each agency or subdivision action, as described by Sections 33.2051 and 33.2053, that may have a direct and significant detrimental impact on coastal natural resource areas;
(10) a list of each federal agency action or activity and each outer continental shelf plan that may have a direct and significant detrimental impact on coastal natural resource areas;
(11) a procedure, as described under Sections 33.205, 33.2051, 33.2052, 33.2053, 33.206, 33.208, and 33.209, for determining the consistency of an agency or subdivision action or a federal agency action or activity or outer continental shelf plan with the goals and policies of the coastal management program;
(12) a definition of "gulf beach," as defined by Section 33.203, and a description of the statutory planning process or program for protection of and access to public beaches and other public coastal areas of environmental, recreational, historical, aesthetic, ecological, or cultural value;
(13) a description of the statutory planning process or program for energy facilities likely to be located in, or that may directly and significantly affect, the coastal zone;
(14) a description of the statutory planning process or program for: (A) assessing the effects of shoreline erosion; (B) studying and evaluating ways to control or reduce the impact of shoreline erosion; and
(C) restoring areas detrimentally affected by shoreline erosion; (15) a description of the state's statutory program regulating nonpoint source water pollution, as it relates to the coastal zone; and
(16) an explanation of the relationship of specific policies of the coastal management program to:
(A) protection of resources; (B) management of coastal development; and (C) simplification of governmental procedures. (b) For purposes of Subsections (a)(9) and (a)(11), "agency or subdivision action" has the meaning assigned by Section 33.203.
(c) For purposes of Subsections (a)(10) and (a)(11), "federal agency action," "federal agency activity," and "outer continental shelf plan" have the meanings assigned by Section 33.203.
Acts 1977, 65th Leg., p. 2385, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 416, § 2, eff. June 8, 1995.
§ 33.054. REVIEW AND AMENDMENT OF MANAGEMENT PROGRAM. The commissioner may review the management program periodically and may amend the management program as new information or changed conditions may warrant.
Acts 1977, 65th Leg., p. 2385, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 35, eff. June 7, 1991.
§ 33.055. PUBLIC HEARINGS TO CONSIDER COASTAL MANAGEMENT PROGRAM. In developing, reviewing, or amending the coastal management program, after due notice to affected persons and the public generally, the commissioner and the council shall hold or have held public hearings as the commissioner and the council determine to be appropriate.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 36, eff. June 7, 1991; Acts 1995, 74th Leg., ch. 416, § 2, eff. June 8, 1995.
§ 33.056. STRUCTURES ON LAND ADJACENT TO COASTAL PUBLIC LAND. (a) On receipt of appropriate applications, the board shall register existing structures extending on coastal public land from adjacent land not owned by the state.
(b) Insofar as consonant with the policies of this chapter, the board may regulate the placement, length, design, and the manner of construction, maintenance, and the use of all structures which are built so that they extend on coastal public land from adjacent land not owned by the state.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.057. GIFTS OF INTERESTS IN LAND. (a) The board may accept gifts of interests in land, and these interests shall become part of the permanent school fund unless otherwise designated by the grantor.
(b) At the discretion of the board, the land may be managed as if it were coastal public land within the meaning of this chapter.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.058. PURCHASE OF FEE AND LESSER INTERESTS IN LAND. (a) The board may select and purchase fee and lesser interests in land of the coastal area for the creation, maintenance, or protection of wildlife refuges, estuarine preserves, natural scenic reserves, historical or archaeological sites, public recreational areas, and research facilities.
(b) The interests may be purchased by the board with money acquired by gift or grant, but the interests may not be obtained by condemnation.
(c) Interests acquired under this section shall not become a part of the permanent free school fund unless they are so designated by the board.
(d) In the discretion of the board, the interests may be managed as if they were coastal public land within the meaning of this chapter regardless of whether they fall within the meaning of coastal public land.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.059. STUDIES. The board may study various coastal engineering problems, including the protection of the shoreline against erosion, the design and use of piers, groins, seawalls, and jetties, and the effects of various structures, works, and improvements on the physical and biological systems of the coastal public land.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.060. LOCATING AND MARKING BOUNDARIES. The board may locate and have marked on the ground the boundaries separating coastal public land from other land.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.061. COMPLAINTS. (a) The board shall receive and evaluate any complaint or report from any person concerning instances of unauthorized construction, maintenance, use, or assertion of control of any structure on coastal public land.
(b) The board shall refer to the attorney general all cases warranting judicial remedies, and the attorney general shall immediately initiate judicial proceedings for the appropriate relief.
Acts 1977, 65th Leg., p. 2386, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.062. DESIGNATED OFFICIAL REPRESENTATIVE. The board is designated and shall serve as the official representative of the governor of the state to conduct with the federal government any business concerning any matter affecting the coastal public land which arises out of the exercise by the federal government of any authority it may have over navigable water under the Constitution of the United States.
Acts 1977, 65th Leg., p. 2387, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.063. FEES. The board may prescribe reasonable filing fees and fees for granting leases, easements, and permits.
Acts 1977, 65th Leg., p. 2387, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.064. RULES. The board may adopt procedural and substantive rules which it considers necessary to administer, implement, and enforce this chapter.
Acts 1977, 65th Leg., p. 2387, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.065. TEXAS COASTAL OCEAN OBSERVATION NETWORK. (a) The Texas Coastal Ocean Observation Network is a cooperative project of Texas A&M University--Corpus Christi, Lamar University, the Texas Water Development Board, and the land office.
(b) The network shall collect data on natural processes affecting the coast for the purpose of studying, planning for, and managing human uses of the coast as they are affected by those natural processes.
(c) The participating state entities shall coordinate the project with the United States Army Corps of Engineers, the National Oceanic and Atmospheric Administration, and other appropriate entities, including private entities.
(d) The participating state entities may contract and enter into agreements with the United States Army Corps of Engineers, the National Oceanic and Atmospheric Administration, and other appropriate entities, including private entities, as necessary to carry out their duties under this section.
Added by Acts 2005, 79th Leg., ch. 719, § 3, eff. June 17, 2005.
SUBCHAPTER D. RIGHTS IN COASTAL PUBLIC LAND
§ 33.101. APPLICATION TO ACQUIRE RIGHTS IN COASTAL PUBLIC LAND. Any person who desires to acquire rights in the surface estate in any coastal public land shall make application to the board in writing in the form prescribed by the board.
Acts 1977, 65th Leg., p. 2387, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.102. CONTENTS OF APPLICATION. The application to acquire rights in coastal public land shall include:
(1) an adequate legal description of the land in which the rights are sought;
(2) a statement of the rights sought; (3) a statement of the purpose or purposes for which the land is to be used;
(4) a description of the nature and extent of the improvements, if any, which will be made on the land;
(5) an estimate of the time within which any improvements to be made will be completed; and
(6) any additional information the board considers necessary, including, in the case of any application for approval of construction, modification, repair, or removal of a structure, a description of all plans for any filling, dumping, dredging, or excavating to be done.
Acts 1977, 65th Leg., p. 2387, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.103. INTERESTS WHICH MAY BE GRANTED BY THE BOARD. (a) The board may grant the following interests in coastal public land for the indicated purposes:
(1) leases for public purposes; (2) easements for purposes connected with: (A) ownership of littoral property; or (B) the operation of a facility operated by an existing channel and dock corporation that was issued articles of incorporation under Chapters 13 and 14, Title 32, Revised Statutes;
(3) permits authorizing limited continued use of previously unauthorized structures on coastal public land not connected with ownership of littoral property; and
(4) channel easements to the holder of any surface or mineral interest in coastal public land for purposes necessary or appropriate to the use of the interests.
(b) The board may not grant any interest in land within 2,500 feet of a military base unless the commissioner or the commissioner's designee, after consultation with appropriate military authorities, determines that the grant will not adversely affect the mission of the military base.
Acts 1977, 65th Leg., p. 2387, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 1, eff. Aug. 26, 1985; Acts 2003, 78th Leg., ch. 149, § 12, eff. May 27, 2003.
§ 33.104. PROCESSING APPLICATION. (a) On receiving an application, the board may circulate it for review and comment to the member agencies of the Interagency Natural Resources Council or its successor.
(b) The board shall determine whether the proposed application should be granted not less than 30 days nor more than 90 days after the application is received.
(c) If the application is granted, the board shall determine the reasonable term, conditions, and consideration for the grant and may consummate the transaction.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.105. PERSONS TO WHOM LAND MAY BE LEASED. The board may lease coastal public land to:
(1) the Parks and Wildlife Department or to any eligible city or county for public recreational purposes;
(2) the Parks and Wildlife Department for management of estuarine preserves;
(3) any nonprofit, tax-exempt environmental organization approved by the board for the purpose of managing a wildlife refuge; and
(4) any scientific or educational organization or institution for conducting scientific research.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.106. POLICIES, PROVISIONS, AND CONDITIONS OF LEASES. In addition to policies generally applicable under this chapter, leases granted under this subchapter shall be subject to the policies, provisions, and conditions stated in Sections 33.107 through 33.110 of this code.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.107. PROTECTION OF RIGHTS. The littoral rights of the adjacent upland owner shall be protected in a lease.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.108. RIGHTS OF THE PUBLIC. Members of the public may not be excluded from coastal public land leased for public recreational purposes or from an estuarine preserve.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.109. COUNTIES AND CITIES ELIGIBLE TO LEASE COASTAL PUBLIC LAND. (a) A county is eligible to apply for a lease of coastal public land inside the county and outside the boundaries of any incorporated city, town, or village for public recreational purposes.
(b) An incorporated city, town, or village is eligible to lease coastal public land within its corporate boundaries for public recreational purposes.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.110. CONTRACTS AND FRANCHISES. (a) With the approval of the board, a lessee granted a lease for public recreational purposes may enter into contracts and franchise agreements to promote public recreation.
(b) No contract or franchise agreement may authorize any commercial activity within 300 feet of privately owned littoral property without the written consent of the littoral owner of the property.
Acts 1977, 65th Leg., p. 2388, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.111. GRANTING EASEMENTS. (a) The board may grant easement rights to the owner of adjacent littoral property authorizing the placement or location of a structure on coastal public land for purposes connected with the ownership of littoral property.
(b) The board may grant easement rights to construct channels, wharves, docks, and marinas to an existing corporation that was issued articles of incorporation under Chapters 13 and 14, Title 32, Revised Statutes.
(c) Notwithstanding any provision in its charter or articles of incorporation to the contrary, a corporation described in Subsection (b) of this section may only obtain the use of or acquire property from the state as provided by that subsection.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 2, eff. Aug. 26, 1985.
§ 33.112. FAILURE TO OBTAIN AN EASEMENT. (a) Any owner of littoral property or any person acting under the owner of littoral property who for purposes connected with the ownership of the littoral property shall construct or fix or place on coastal public land any structure without first obtaining an easement from the land office is subject to a civil penalty of not more than $200.
(b) Each day the structure remains on or is affixed to coastal public land constitutes a separate offense.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.113. INTERPRETATION OF EASEMENT GRANT. The grant of an easement under Section 33.111 of this code and the waiver under Section 33.115 of this code shall not be construed as recognition of a right existing in the littoral owner incident to the ownership of littoral property.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.114. POLICIES, PROVISIONS, AND CONDITIONS OF EASEMENTS. In addition to the policies, provisions, and conditions generally applicable in this chapter, each grant of an easement is subject to the policies, provisions, and conditions of Sections 33.115 and 33.117 of this code.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.115. PIERS. (a) Without obtaining an easement from the board, the owner of littoral property may construct a pier on adjacent coastal public land if the pier:
(1) is not used for commercial purposes; (2) is 115 feet or less in length and 25 feet or less in width; and (3) requires no filling or dredging. (b) In addition to the provisions of Subsection (a), the board may adopt rules with limitations and requirements that are consistent with the policies stated in Section 33.001 of this code that allow an owner of littoral property to construct a pier with associated appurtenances on adjacent coastal public land without first obtaining an easement from the board.
(c) The location and dimensions of the pier and description of any associated appurtenances must be registered with the board in the manner provided in this chapter.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2001, 77th Leg., ch. 366, § 1, eff. May 26, 2001; Acts 2005, 79th Leg., ch. 58, § 1, eff. May 17, 2005.
§ 33.116. FAILURE TO REGISTER PIER. Any owner of littoral property who fails to register the location and dimensions of the pier which is authorized to be constructed under Section 33.115 of this code is subject to a civil penalty of not more than $200.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.117. PUBLIC POLICY OF STATE TO BE CONSIDERED. In administering Sections 33.111 through 33.115 of this code, the board shall consider the public policy of the state that the orderly use of privately owned littoral property in a manner consistent with the public policy of the state will not be impaired.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.118. SINGLE PERMIT. If the activity for which the easement is sought requires the littoral owner to seek one or more permits from any other agency or department of state government, the board may agree with the agency or department to issue a single document incorporating all rights and privileges of the applicant.
Acts 1977, 65th Leg., p. 2389, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.119. ISSUANCE OF PERMITS. The board may issue permits authorizing limited continued use of previously unauthorized structures on coastal public land if the use is sought by one who is claiming an interest in the structure but is not incident to the ownership of littoral property.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.120. FAILURE TO OBTAIN A PERMIT. A person who maintains, uses, or repairs any structure for which a permit is required under Section 33.119 of this code without first obtaining a permit from the board is subject to a civil penalty of not less than $50 nor more than $1,000.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.121. UNAUTHORIZED STRUCTURES. Any person who constructs, fixes, or places on coastal public land any unauthorized structure for purposes not connected with ownership of littoral property is subject to a civil penalty of not less than $50 nor more than $1,000.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.122. EXCEPTION TO PERMIT REQUIREMENT. No permit may be required for structures, excavations, or other similar structures as long as they are located wholly on the private littoral upland, even though the activities may result in the area being inundated by public water.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.123. POLICIES, PROVISIONS, AND CONDITIONS OF PERMITS. In addition to the policies, provisions, and conditions generally applicable in this chapter, each grant of a permit is subject to the policies, provisions, and conditions of Sections 33.120 through 33.122 and 33.124 through 33.126 of this code.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.124. PERMITS PROHIBITED FOR CERTAIN STRUCTURES. The board may not grant a permit which authorizes the continued use of a structure located within 1,000 feet of privately owned littoral residential property, without written consent of the littoral owner.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2005, 79th Leg., ch. 42, § 1, eff. May 13, 2005.
§ 33.125. AUTOMATIC REVOCATION AND TERMINATION OF A PERMIT. A permit that authorizes the continued use of a previously unauthorized structure on coastal public land is considered automatically revoked and terminated if the coastal public land on which the structure is located is:
(1) subsequently leased for public purposes; (2) exchanged for littoral property under this chapter; or (3) conveyed to a navigation district as provided by law.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.126. TERMINATION OF PERMIT BY BOARD. Each permit shall provide that if the terms of the permit are broken, the permit may be terminated at the option of the board.
Acts 1977, 65th Leg., p. 2390, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.127. TERMS AND RENEWAL OF PERMITS. Permits may be issued for a period of not more than five years and may be renewed at the discretion of the board.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.128. USE OF PREVIOUSLY UNAUTHORIZED STRUCTURES. Previously unauthorized structures for which permits are obtained may be used only for noncommercial, recreational purposes.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.129. PROHIBITIONS ON THE GRANT OF PERMITS. The board may not grant an application for a permit which would violate the public policy of this state as expressed in this chapter and may not grant a permit for any structure not in existence on August 27, 1973.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.130. REPAIRS AND REBUILDING. If a structure for which a permit is issued is severely damaged or destroyed by any means, no major repairs or rebuilding may be undertaken by the permit holder without the approval of the board.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.131. STRUCTURES AS PROPERTY OF THE STATE. A structure presently existing or to be constructed in the future for which a permit is required under Section 33.119 of this code is the property of the state. Any construction, maintenance, or use of the structure other than as provided in this subchapter is declared to be a nuisance per se and is expressly prohibited.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 991, § 10, eff. Sept. 1, 1993.
§ 33.132. REGISTRATION BY BOARD. (a) The registration by the board on or before December 31, 1973, of a structure located in whole or in part on coastal public land on August 27, 1973, and claimed by the person submitting it for registration as an incident of the ownership of littoral property shall not be construed as evidence of the acquiescence of the state in the claim by the owner.
(b) Failure of the owner to register the structure estops the owner from making any further claim of right against the state in the structure and renders the structure a nuisance per se subject to abatement by the state at the expense of the littoral owner.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.133. REMEDIES CUMULATIVE. Remedies provided in this subchapter are cumulative of all other remedies which may be applicable, including those remedies arising from the power of a court to enforce its jurisdiction and its judgments.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.134. USE AND DEVELOPMENT OF LAND BY LITTORAL OWNER. None of the provisions of this chapter shall prevent the littoral owner of property from developing or otherwise using his property in a lawful manner, and this chapter shall not be construed to confer on the board the authority to regulate, control, or restrict the use or development of the property.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.135. NOTICE TO PURCHASER OR GRANTEE OF COASTAL AREA PROPERTY. (a) A person who sells, transfers, or conveys an interest other than a mineral, leasehold, or security interest in real property adjoining and abutting the tidally influenced waters of the state must include the following notice as a part of a written executory contract for the sale, transfer, or conveyance:
"(1) The real property described in and subject to this contract adjoins and shares a common boundary with the tidally influenced submerged lands of the state. The boundary is subject to change and can be determined accurately only by a survey on the ground made by a licensed state land surveyor in accordance with the original grant from the sovereign. The owner of the property described in this contract may gain or lose portions of the tract because of changes in the boundary.
"NOTICE REGARDING COASTAL AREA PROPERTY
"(2) The seller, transferor, or grantor has no knowledge of any prior fill as it relates to the property described in and subject to this contract.
"(3) State law prohibits the use, encumbrance, construction, or placing of any structure in, on, or over state-owned submerged lands below the applicable tide line, without proper permission.
"(4) The purchaser or grantee is hereby advised to seek the advice of an attorney or other qualified person as to the legal nature and effect of the facts set forth in this notice on the property described in and subject to this contract. Information regarding the location of the applicable tide line as to the property described in and subject to this contract may be obtained from the surveying division of the General Land Office in Austin."
(b) If property described under Subsection (a) of this section is sold, transferred, or conveyed without an executory contract for conveyance, a written statement containing the notice prescribed by that subsection must be delivered to the grantee for execution and acknowledgement of receipt before the conveyance is recorded.
(c) Failure to include the statement in an executory contract for conveyance shall be grounds for the purchaser to terminate such contract, and upon termination any earnest money shall be returned to the party making the deposit.
(d) Failure to provide this statement prior to closing, either in the executory contract for conveyance or in a separate written statement, shall constitute a deceptive act under Section 17.46, Business & Commerce Code.
(e) This section or the action of any party subject to this section does not diminish or modify the beach access and use rights of the public as acquired by statute or under common law.
Added by Acts 1993, 73rd Leg., ch. 991, § 11, eff. Sept. 1, 1993.
§ 33.136. PROPERTY RIGHTS: PRESERVATION OF LITTORAL RIGHTS. (a) Notwithstanding any law to the contrary, a person may not undertake an action on or immediately landward of a public beach or submerged land, including state mineral lands, relating to erosion response that will cause or contribute to shoreline alteration before the person has conducted and filed a coastal boundary survey in the same manner as the survey of public land required by Chapter 21 and any applicable rule of the commissioner and has obtained any required lease or other instrument from the commissioner or board, as applicable. A person is not required to obtain a lease or other instrument from the commissioner or board if the action is confined to land owned by a navigation district or municipality. On filing of the survey, the shoreline depicted on the survey is a fixed line for the purpose of locating a shoreline boundary, subject to movement landward of that line. A coastal boundary survey conducted under this section may not be filed until the commissioner gives notice of approval under Subsection (c).
(b) The survey must contain the following statement: "NOTICE: This survey was performed in accordance with Section 33.136, Natural Resources Code, for the purpose of evidencing the location of the shoreline in the area depicted in this survey as that shoreline existed before commencement of erosion response activity, as required by Chapter 33, Natural Resources Code. The line depicted on this survey fixes the shoreline for the purpose of locating a shoreline boundary, subject to movement landward as provided by Section 33.136, Natural Resources Code."
(c) Within 30 days after the date the commissioner approves a coastal boundary survey under this section, the commissioner shall provide notice of that approval by:
(1) publication in the Texas Register; (2) publication for two consecutive weeks in a newspaper of general circulation in the county or counties in which the land depicted in the survey is located; and
(3) filing a copy of the approval in the archives and records division of the land office.
(d) A person who claims title to permanent school fund land as a result of accretion, reliction, or avulsion in the coastal zone on or after September 1, 1999, must, in order to prevail in the claim, prove that:
(1) a change in the shoreline has occurred; (2) the change did not occur as a result of the claimant's actions, the action of any predecessor in title, the action of any grantee, assignee, licensee, or person authorized by the claimant to use the claimant's land, or an erosion response activity; and
(3) the claimant is entitled to benefit from the change. (e) An upland owner who, because of erosion response activity undertaken by the commissioner, ceases to hold title to land that extends to the shoreline as altered by the erosion response activity is entitled to continue to exercise all littoral rights possessed by that owner before the date the erosion response activity commenced, including rights of ingress, egress, boating, bathing, and fishing.
(f) In this section, "erosion response" means an action intended to address coastal erosion, mitigate the effect of coastal erosion, or maintain or enhance beach stability or width. The term includes:
(1) beach nourishment; (2) sediment management; (3) beneficial use of dredged material; (4) construction of breakwaters; (5) dune creation or enhancement; and (6) revegetation.
Added by Acts 1997, 75th Leg., ch. 938, § 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 508, § 3, eff. Sept. 1, 1999.
SUBCHAPTER E. ENFORCEMENT AND APPEAL
§ 33.171. ENFORCEMENT OF RIGHTS OF LITTORAL OWNERS. (a) A littoral owner whose rights may be affected by any action of the board under this chapter may bring suit for a declaratory judgment against the State of Texas in a district court in Travis County to try the issues.
(b) Service of citation may be obtained by serving the commissioner. (c) The state is entitled to receive notice of a claim against the School Land Board under this subchapter not later than the 180th day after the day the action of the board giving rise to the claim occurred. The notice must reasonably describe:
(1) the action of the board that affected the littoral owner's rights; (2) the time and place of the board's action; and (3) the nature of the claim, specifying, as applicable, the manner in which:
(A) the board's action affected the title to or boundary of coastal public land to the detriment of the littoral owner;
(B) the board's action affected an interest in land sought or granted under this chapter; or
(C) the board violated this chapter or a rule adopted by the board under this chapter.
(d) The notice requirement of Subsection (c) is a jurisdictional prerequisite to the institution of suit under this section regardless of actual notice, express or implied, to the board or the state.
Acts 1977, 65th Leg., p. 2391, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 147, § 1, eff. Sept. 1, 2003.
§ 33.172. VENUE. Unless expressly waived in writing by the attorney general, venue lies in Travis County in any proceeding:
(1) arising out of an alleged violation of any provision of this chapter or any rule adopted by the board under this chapter;
(2) touching any interest in land sought or granted under this chapter; and
(3) to determine the boundaries or title to any coastal public land.
Acts 1977, 65th Leg., p. 2392, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.173. RIGHT TO APPEAL. Any interested party who is aggrieved by an action of the board under this chapter may appeal the action by filing a petition in a district court in Travis County.
Acts 1977, 65th Leg., p. 2392, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.174. TIME FOR FILING PETITION. The petition for the appeal must be filed within 30 days after the date of the final action of the board or 30 days after the effective date of the action, whichever is the later date.
Acts 1977, 65th Leg., p. 2392, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.175. SERVICE OF CITATION. Service of citation on the board may be accomplished by serving the commissioner.
Acts 1977, 65th Leg., p. 2392, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 33.176. ISSUE ON APPEAL. In an appeal of a board action, the issue is whether the action is invalid, arbitrary, or unreasonable.
Acts 1977, 65th Leg., p. 2392, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER F. COASTAL COORDINATION
§ 33.201. SHORT TITLE. This subchapter may be cited as the Coastal Coordination Act.
Added by Acts 1979, 66th Leg., p. 1991, ch. 785, § 1, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991.
§ 33.202. POLICY. (a) It is declared to be the policy of this state to make more effective and efficient use of public funds and provide for more effective and efficient management of coastal natural resource areas, and to better serve the people of Texas by:
(1) continually reviewing the principal coastal problems of state concern, coordinating the performance of government programs affecting coastal natural resource areas, and coordinating the measures required to resolve identified coastal problems; and
(2) making all coastal management processes more visible, accessible, coherent, consistent, and accountable to the people of Texas.
(b) It is declared to be the policy of this state that the chief executive officer of the state should represent the State of Texas in discussions and negotiations with the federal government with regard to the effect of federal actions on the coastal programs and policies of the State of Texas.
Added by Acts 1979, 66th Leg., p. 1991, ch. 785, § 1, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991; Acts 1995, 74th Leg., ch. 416, § 3, eff. June 8, 1995.
§ 33.203. DEFINITIONS. In this subchapter: (1) "Coastal natural resource areas" means: (A) coastal barriers; (B) coastal historic areas; (C) coastal preserves; (D) coastal shore areas; (E) coastal wetlands; (F) critical dune areas; (G) critical erosion areas; (H) gulf beaches; (I) hard substrate reefs; (J) oyster reefs; (K) submerged land; (L) special hazard areas; (M) submerged aquatic vegetation; (N) tidal sand or mud flats; (O) water of the open Gulf of Mexico; and (P) water under tidal influence. (2) "Coastal barrier" means an undeveloped area on a barrier island, peninsula, or other protected area, as designated by United States Fish and Wildlife Service maps.
(3) "Coastal historic area" means a site that is specially identified in rules adopted by the Texas Historical Commission or the Antiquities Committee as being coastal in character and that is:
(A) a site on the National Register of Historic Places, designated under 16 U.S.C. Section 470a and 36 CFR Part 63, Chapter 1; or
(B) a state archaeological landmark, as defined by Subchapter D, Chapter 191.
(4) "Coastal preserve" means any land, including a park or wildlife management area, that is owned by the state and that is:
(A) subject to Chapter 26, Parks and Wildlife Code, because it is a park, recreation area, scientific area, wildlife refuge, or historic site; and
(B) designated by the Parks and Wildlife Commission as being coastal in character.
(5) "Coastal shore area" means an area within 100 feet landward of the highwater mark on submerged land.
(6) "Coastal waters" means waters under tidal influence and waters of the open Gulf of Mexico.
(7) "Coastal wetlands" means wetlands, as the term is defined by Section 11.502, Water Code, located:
(A) seaward of the coastal facility designation line established by rules adopted under Chapter 40;
(B) within rivers and streams, to the extent of tidal influence, as shown on the Texas Natural Resource Conservation Commission's stream segment maps, excluding the portion of the Trinity River located in Liberty County;
(C) within one mile of the mean high tide of the portion of river and stream described by Paragraph (B), except as provided by Paragraphs (D) and (E);
(D) in the case of wetlands bordering the portion of the Trinity River to which Paragraph (B) applies:
(i) within the area located between the mean high tide line on the western shoreline of that portion of the river and Farm-to-Market Road 565 and Farm-to-Market Road 1409; or
(ii) within the area located between the mean high tide line on the eastern shoreline of that portion of the river and Farm-to-Market Road 563; or
(E) in the case of wetlands bordering the portion of the Neches River described by Paragraph (B):
(i) within one mile from the mean high tide line of the western shoreline of that portion of the river described by Paragraph (B); or
(ii) within the area located between the mean high tide line on the eastern shoreline of that portion of the river and Farm-to-Market Road 105.
(8) "Critical area" means a coastal wetland, an oyster reef, a hard substrate reef, submerged aquatic vegetation, or a tidal sand or mud flat.
(9) "Critical dune area" means a protected sand dune complex on the Gulf shoreline within 1,000 feet of mean high tide designated by the land commissioner under Section 63.121.
(10) "Critical erosion area" has the meaning assigned to the term "critical coastal erosion area" by Section 33.601(4).
(11) "Gulf beach" means a beach bordering the Gulf of Mexico that is: (A) located inland from the mean low tide line to the natural line of vegetation bordering the seaward shore of the Gulf of Mexico; or
(B) part of a contiguous beach area to which the public has a right of use or easement:
(i) continuously held by the public; or (ii) acquired by the public by prescription, dedication, or estoppel. (12) "Hard substrate reef" means a naturally occurring hard substrate formation, including a rock outcrop or serpulid worm reef, living or dead, in an intertidal or subtidal area.
(13) "Oyster reef" means a natural or artificial formation that is: (A) composed of oyster shell, live oysters, and other living or dead organisms;
(B) discrete, contiguous, and clearly distinguishable from scattered oyster shell or oysters; and
(C) located in an intertidal or subtidal area. (14) "Special hazard area" means an area designated under 42 U.S.C. Section 4001 et seq. as having special flood, mudslide or mudflow, or flood-related erosion hazards and shown on a flood hazard boundary map or flood insurance rate map as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, V, M, or E.
(15) "Submerged land" means land located under waters under tidal influence or under waters of the open Gulf of Mexico, without regard to whether the land is owned by the state or a person other than the state.
(16) "Submerged aquatic vegetation" means rooted aquatic vegetation growing in permanently inundated areas in estuarine and marine systems.
(17) "Tidal sand or mud flat" means a silt, clay, or sand substrate, without regard to whether it is vegetated by algal mats, that occur in intertidal areas and that are regularly or intermittently exposed and flooded by tides, including tides induced by weather.
(18) "Water of the open Gulf of Mexico" means water in this state, as defined by Section 26.001(5), Water Code, that is part of the open water of the Gulf of Mexico and that is within the territorial limits of the state.
(19) "Water under tidal influence" means water in this state, as defined by Section 26.001(5), Water Code, that is subject to tidal influence according to the Texas Natural Resource Conservation Commission's stream segment map. The term includes coastal wetlands.
(20) "Council" means the Coastal Coordination Council. (21) "Agency or subdivision" means any state agency, department, board, or commission or political subdivision of the state.
(22) "Coastal management program " means an ongoing, comprehensive program containing the elements required for approval of a program under the Coastal Zone Management Act of 1972 (16 U.S.C. Section 1451 et seq.) that is designed to coordinate agencies' management of activities that may adversely affect coastal natural resource areas for the purpose of continually making management of those activities more efficient and effective.
(23) "Agency or subdivision action" means an action described by Section 33.2051 or 33.2053.
(24) "Federal agency activity" means a function performed by or for a federal agency in the exercise of its statutory responsibility, including financial assistance, the planning, construction, modification, or removal of a public work, facility, or any other structure, and the acquisition, use, or disposal of land or water resources. The term does not include the issuance of a federal license or permit.
(25) "Federal agency action" means a license or permit that a federal agency may issue that represents the proposed federal authorization, approval, or certification needed by the applicant to begin an activity.
(26) "Proposed action" means an agency or subdivision action under consideration by the agency or subdivision, but with respect to which the agency or subdivision has not made a final decision.
(27) "Outer continental shelf plan" means a plan for the exploration or development of, or production from, an area leased under the Outer Continental Shelf Lands Act (43 U.S.C. Section 1331 et seq.) and the rules adopted under that Act that is submitted to the secretary of the United States Department of the Interior after federal approval of the coastal management program.
Added by Acts 1979, 66th Leg., p. 1991, ch. 785, § 1, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991; Acts 1995, 74th Leg., ch. 76, § 11.264, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995; Acts 1997, 75th Leg., ch. 396, § 1, eff. May 28, 1997; Acts 1999, 76th Leg., ch. 508, § 4, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 70, § 2, eff. Sept. 1, 2001.
§ 33.204. ADMINISTRATION OF COASTAL MANAGEMENT PROGRAM. (a) The council by rule shall adopt goals and policies of the coastal management program. A goal or policy may not require an agency or subdivision to perform an action that would exceed the constitutional or statutory authority of the agency or subdivision to which the goal or policy applies.
(b) The council shall meet once in each calendar quarter and shall set aside time at each meeting for public comment on any issue under the jurisdiction of the council. The commissioner is chair of the council. The chair or any three members of the council may convene special meetings at other times.
(c) Except as provided by Sections 33.205(c)(3) and 33.206(a), the council may act on the agreement of a majority of a quorum of the council.
(d) For each matter to be reviewed by the council under Section 33.205(c) or (d) of this code, the governor shall designate a local elected official from a county or municipality directly affected by the matter under review. The local official shall serve as a nonvoting participant on the council for purposes of reviewing and acting on that matter only.
(e) In conducting reviews under Section 33.205 of this code, the council shall receive and consider the oral or written testimony of any person regarding the coastal management program as the testimony relates to the agency or subdivision action or federal agency action or activity or outer continental shelf plan under review. The council may reasonably limit the length and format of the testimony and the time at which it will be received. Notice of the period during which the testimony will be received shall be published in the Texas Register and in a newspaper of general circulation in each county directly affected by the matter under review before the commencement of that period. The council shall consider only the record before the agency or subdivision involved in the matter under review, the agency's or subdivision's findings, applicable laws and rules, any additional information provided by that agency or subdivision, and public testimony under this subsection, provided that if the agency or subdivision did not hold a hearing, make a record, or make findings, the council may hold a hearing and make findings necessary to a complete and thorough review.
(f) The land office shall assist the council in carrying out its duties. The council members may not receive compensation for services but may receive reimbursement for actual and necessary expenses. The land office, in coordination with other agencies and subdivisions, shall prepare an annual report on the effectiveness of the coastal management program. The land office shall submit the report to the council for approval. On or before January 15 of each odd-numbered year, the land office shall send to the legislature each of the previous two annual reports.
(g) The council may award grants to projects that further the goals and policies of the council. The council shall establish the procedures for making any determination related to awarding a grant.
Added by Acts 1979, 66th Leg., p. 1991, ch. 785, § 1, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991; Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995; Acts 2001, 77th Leg., ch. 70, § 3, eff. Sept. 1, 2001.
§ 33.2041. COMPOSITION OF COUNCIL; TERMS. (a) The council shall consist of:
(1) the following ex officio members: (A) the commissioner; (B) the presiding officer of the Parks and Wildlife Commission or a member of the commission designated by the presiding officer;
(C) the presiding officer of the Texas Natural Resource Conservation Commission or a member of the commission designated by the presiding officer;
(D) a member of the Railroad Commission of Texas appointed by that commission;
(E) the presiding officer of the Texas Water Development Board or a member of the board designated by the presiding officer;
(F) the presiding officer of the Texas Transportation Commission or a member of the commission designated by the presiding officer;
(G) a member of the State Soil and Water Conservation Board appointed by that board; and
(H) the director of the Texas A&M University Sea Grant Program to serve as a nonvoting member; and
(2) the following members to be appointed by the governor with the advice and consent of the senate to serve a two-year term:
(A) a city or county elected official who resides in the coastal area; (B) an owner of a business located in the coastal area who resides in the coastal area;
(C) a resident from the coastal area; and (D) a representative of agriculture. (b) The terms of the positions on the council held by the city or county elected official who resides in the coastal area and the resident from the coastal area expire May 31 of each even-numbered year. The terms of the positions on the council held by the owner of a business located in the coastal area who resides in the coastal area and the representative of agriculture expire May 31 of each odd-numbered year.
(c) Appointments to the council shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
Added by Acts 2001, 77th Leg., ch. 70, § 4, eff. Sept. 1, 2001.
§ 33.2042. ELIGIBILITY OF COUNCIL MEMBERS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.
(b) A person may not be a public member of the council if: (1) the person is an officer, employee, or paid consultant of a Texas trade association in a field directly related to the operations of the council; or
(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in a field directly related to the operations of the council.
(c) A person may not be a member of the council or act as the general counsel to the council if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council.
Added by Acts 2001, 77th Leg., ch. 70, § 4, eff. Sept. 1, 2001.
§ 33.2043. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the council that a member:
(1) does not have at the time of taking office the qualifications required by Section 33.2041;
(2) does not maintain during service on the council the qualifications required by Section 33.2041;
(3) is ineligible for membership under Section 33.2042(b) or (c); (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or
(5) is absent from more than half of the regularly scheduled council meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the council.
(b) The validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a council member exists.
(c) If the council chair has knowledge that a potential ground for removal exists, the council chair shall notify the appointing authority and the attorney general that a potential ground for removal exists.
Added by Acts 2001, 77th Leg., ch. 70, § 4, eff. Sept. 1, 2001.
§ 33.2044. STANDARDS OF CONDUCT. The council chair or the council chair's designee shall provide to members of the council, as often as necessary, information regarding the requirements for office under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers.
Added by Acts 2001, 77th Leg., ch. 70, § 4, eff. Sept. 1, 2001.
§ 33.2045. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the council may not vote, deliberate, or be counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section.
(b) The training program must provide the person with information regarding:
(1) the legislation that created the council; (2) the programs operated by the council; (3) the role and functions of the council; (4) the rules of the council with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the council; (6) the results of the most recent formal audit of the council; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the public information law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; and (D) other laws relating to public officials, including conflict of interest laws; and
(8) any applicable ethics policies adopted by the council or the Texas Ethics Commission.
(c) A person appointed to the council is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.
Added by Acts 2001, 77th Leg., ch. 70, § 4, eff. Sept. 1, 2001.
§ 33.205. CONSISTENCY WITH COASTAL MANAGEMENT PROGRAM; COUNCIL REVIEW. (a) An agency or subdivision that takes an agency or subdivision action described by Section 33.2051 or 33.2053 that may adversely affect a coastal natural resource area shall comply with the goals and policies of the coastal management program.
(b) An agency or subdivision subject to the requirements of Subsection (a) shall affirm that it has taken into account the goals and policies of the coastal management program by issuing a written determination that a proposed action described by Section 33.2051 or 33.2053 is consistent with the program goals and policies.
(c) The council may not review a proposed action subject to the requirements of Subsections (a) and (b) of this section for consistency with the goals and policies of the coastal management program unless:
(1) the consistency determination for the proposed action was contested by:
(A) a council member or an agency that was a party in a formal hearing under Chapter 2001, Government Code, or in an alternative dispute resolution process; or
(B) a council member or other person by the filing of written comments with the agency before the action was proposed if the proposed action is one for which a formal hearing under Chapter 2001, Government Code, is not available;
(2) a person described by Subdivision (1) of this subsection files a request for referral alleging a significant unresolved dispute regarding the proposed action's consistency with the goals and policies of the coastal management program; and
(3) any three members of the council other than the director of the Texas A&M University Sea Grant Program agree that there is a significant unresolved dispute regarding the proposed action's consistency with the goals and policies of the coastal management program and the matter is placed on the agenda for a council meeting.
(d) If consistency review thresholds are in effect under Section 33.2052, the council may not review a proposed action subject to the requirements of Subsections (a) and (b) for consistency with the goals and policies of the coastal management program unless the requirements of Subsection (c) are satisfied and:
(1) if the proposed action is one for which a formal hearing under Chapter 2001, Government Code, is available:
(A) the action exceeds the applicable thresholds and the agency's consistency determination was contested in a formal hearing or in an alternative dispute resolution process; or
(B) the action does not exceed the applicable thresholds but may directly and adversely affect a critical area, critical dune area, coastal park, wildlife management area or preserve, or gulf beach and a state agency contested the agency's consistency determination in a formal hearing; or
(2) if the proposed action is one for which a formal hearing under Chapter 2001, Government Code, is not available to contest the agency's determination, the action exceeds the applicable thresholds.
(e) The council must consider and act on a matter referred under Subsection (c) or (d) before the 26th day after the date the agency or subdivision proposed the action. For purposes of this section, an action subject to the contested case provisions of Chapter 2001, Government Code, is proposed when notice of a decision or order is issued under Section 2001.142, Government Code.
(f) The council by rule shall establish a process by which an applicant for a permit or other proposed action described in Section 33.2053, or an agency or subdivision proposing an action, may request and receive a preliminary consistency review. The rules shall:
(1) create a permitting assistance group composed of representatives of council member agencies and other interested council members to coordinate the preliminary reviews; and
(2) require that the following written information be produced not later than the 45th day after the date of the request for preliminary review:
(A) a statement from each agency or subdivision required to permit or approve the project as to whether the agency or subdivision anticipates approving or denying the application;
(B) if an agency or subdivision intends to deny an application, the agency's or subdivision's explanation of the grounds for denial and recommendations for resolving the grounds in a way that would allow the application to be approved;
(C) if enough information is already available, a preliminary finding as to whether the project is likely to be found consistent with the goals and policies of the coastal management program; and
(D) if the project is likely to be found inconsistent with the goals and policies of the coastal management program, an explanation and recommendation for resolving the inconsistency in a way that would allow the project to be found consistent.
(g) The council by rule shall establish a process by which an individual or small business may request and receive assistance with filing applications for permits or other proposed actions described by Section 33.2053. The rules shall provide for:
(1) the coordination of preapplication assistance through the permitting assistance group; and
(2) the provision of the following, by the permitting assistance group, to an individual or a small business, on request:
(A) a list of the permits or other approvals necessary for the project; (B) a simple, understandable statement of all permit requirements; (C) a coordinated schedule for each agency's or subdivision's decision on the action;
(D) a list of all the information the agencies or subdivisions need to declare the applications for the permits or other approvals administratively complete;
(E) assistance in completing the applications as needed; and (F) if enough information is already available, a preliminary finding as to whether the project is likely to be found consistent with the goals and policies of the coastal management program.
(h) If an agency, subdivision, or applicant has received a preliminary finding of consistency under Subsection (f)(2)(C) or (g)(2)(F) and a request for referral was filed on that action under Subsection (c)(2), the council may accept the request for referral only if the agency or subdivision has substantially changed the permit or proposed action since the preliminary finding was issued.
Added by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991. Amended by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995; Acts 2001, 77th Leg., ch. 70, § 5, eff. Sept. 1, 2001.
§ 33.2051. AGENCY RULEMAKING ACTIONS. (a) The land office shall comply with Sections 33.205(a) and (b) when adopting or amending a rule governing the prevention of, response to, or remediation of a coastal oil spill.
(b) The Texas Natural Resource Conservation Commission shall comply with Sections 33.205(a) and (b) when adopting or amending a rule governing:
(1) air pollutant emissions; (2) on-site sewage disposal systems; or (3) underground storage tanks. (c) The State Soil and Water Conservation Board shall comply with Sections 33.205(a) and (b) when adopting or amending a rule governing agricultural or silvicultural nonpoint source pollution.
(d) An agency shall comply with Sections 33.205(a) and (b) when adopting or amending a rule governing an individual action described by Section 33.2053.
(e) The council may not review a proposed rule of the Texas Department of Agriculture.
Added by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.2052. CERTIFICATION OF AGENCY RULES; AGENCY ACTIONS CONSIDERED CONSISTENT. (a) The council by rule shall establish a process by which an agency may submit rules and rule amendments described by Section 33.2051 to the council for review and certification for consistency with the goals and policies of the coastal management program.
(b) The process must provide that an agency may submit to the council consistency review thresholds for the agency's actions described in Section 33.2053. After the council certifies that an agency's rules are consistent and approves the agency's thresholds, the agency's consistency determination under Section 33.205(b) for an action is final and is not subject to referral and review, except as provided by Section 33.205(d).
(c) The council by rule shall provide that the council may revoke its certification under Subsection (b) if the council finds that an agency has:
(1) implemented certified rules in a manner that conflicts with the goals and policies of the coastal management program; or
(2) amended certified rules in a manner inconsistent with the goals and policies of the coastal management program.
Added by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.2053. INDIVIDUAL AGENCY OR SUBDIVISION ACTIONS. (a) The land office, the School Land Board, or a board for lease of state-owned lands shall comply with Sections 33.205(a) and (b) when issuing or approving:
(1) a mineral lease plan of operations; (2) a geophysical or geochemical permit; (3) a coastal easement; (4) a miscellaneous easement; (5) a coastal lease; (6) a surface lease; (7) a structure registration; (8) a cabin permit; (9) a navigation district lease; (10) certification of a local government beach access or dune protection plan; or
(11) an agency or subdivision wetlands mitigation bank. (b) The Public Utility Commission of Texas shall comply with Sections 33.205(a) and (b) when issuing a certificate of convenience and necessity.
(c) The Railroad Commission of Texas shall comply with Sections 33.205(a) and (b) when issuing:
(1) a wastewater discharge permit; (2) a waste disposal or storage pit permit; or (3) a certification of a federal permit for the discharge of dredge or fill material.
(d) The Texas Transportation Commission shall comply with Sections 33.205(a) and (b) when approving:
(1) an acquisition of a site for the placement or disposal of dredge material from, or the expansion, relocation, or alteration of, the Gulf Intracoastal Waterway; or
(2) a transportation construction project or maintenance program. (e) The Texas Historical Commission and the Antiquities Committee shall comply with Sections 33.205(a) and (b) when issuing:
(1) a permit for destruction, alteration, or taking of a coastal historic area; or
(2) a review of a federal undertaking affecting a coastal historic area. (f) The Texas Natural Resource Conservation Commission shall comply with Sections 33.205(a) and (b) when issuing or approving:
(1) a wastewater discharge permit; (2) a permit for a new concentrated animal feeding operation located one mile or less from a critical area or coastal waters;
(3) a permit for solid or hazardous waste treatment, storage, or disposal; (4) creation of a special purpose district or approval of bonds for the purpose of construction of infrastructure on coastal barriers;
(5) levee improvement or flood control projects; (6) a certification of a federal permit for the discharge of dredge or fill material;
(7) a declaration of an emergency and request for an emergency release of water;
(8) a new permit for an annual appropriation of: (A) 5,000 or more acre-feet of water within the program boundary; or (B) 10,000 or more acre-feet of water outside the program boundary but within 200 stream miles of the coast;
(9) an amendment to a water permit for an increase in an annual appropriation of:
(A) 5,000 or more acre-feet of water within the program boundary; or (B) 10,000 or more acre-feet of water outside the program boundary but within 200 stream miles of the coast; or
(10) a change in the purpose of use of an annual appropriation of water to a more consumptive use of:
(A) 5,000 or more acre-feet of water within the program boundary; or (B) 10,000 or more acre-feet of water outside the program boundary but within 200 stream miles of the coast.
(g) The council may not review an action of the Texas Natural Resource Conservation Commission described by Subsections (f)(8)-(10) taken to implement a part of the Trans-Texas Water Program that the Trans-Texas Water Program Policy Management Committee has found to be consistent with the goals and policies of the coastal management program. To find that the program is consistent with the goals and policies, the Trans-Texas Water Program Policy Management Committee must:
(1) include at least three members of the council, or representatives of those members, as voting members of the committee; and
(2) make the finding by a majority vote of those members or their representatives.
(h) The Parks and Wildlife Department shall comply with Sections 33.205(a) and (b) when issuing or approving:
(1) an oyster lease; (2) a permit for taking, transporting, or possessing threatened or endangered species;
(3) a permit for disturbing marl, sand, shell, or gravel on state-owned land; or
(4) development by a person other than the Parks and Wildlife Department that requires the use or taking of any public land in a state park, wildlife management area, or preserve.
(i) A subdivision shall comply with Sections 33.205(a) and (b) when issuing a dune protection permit or beachfront construction certificate that authorizes:
(1) construction activity that is located 200 feet or less landward of the line of vegetation and that results in the disturbance of more than 7,000 square feet of dunes or dune vegetation;
(2) construction activity that results in the disturbance of more than 7,500 cubic yards of dunes;
(3) a coastal shore protection project undertaken on a gulf beach or 200 feet or less landward of the line of vegetation and that affects more than 500 linear feet of gulf beach; or
(4) a closure, relocation, or reduction in existing public beach access or public beach access designated in an approved local government beach access plan, other than for a short term.
(j) An action to renew, amend, or modify an existing permit, certificate, lease, easement, approval, or other action is not an action under this section if the action is taken under a rule that the council has certified under Section 33.2052 and:
(1) for a wastewater discharge permit, if the action is not a major permit modification that would:
(A) increase pollutant loads to coastal waters; or (B) result in relocation of an outfall to a critical area; (2) for solid, hazardous, or nonhazardous waste permits, if the action is not a Class III modification under rules of the Texas Natural Resource Conservation Commission; or
(3) for any other action, if the action: (A) only extends the period of the existing authorization and does not authorize new or additional work or activity; or
(B) is not directly relevant to Sections 33.205(a) and (b). (k) The council shall establish a program boundary to limit the geographic area in which the requirements of Sections 33.205(a) and (b) apply. The boundary is the coastal facility designation line as defined by Appendix 1 to 31 TAC Section 19.2 as that appendix existed on the effective date of this section, as modified by Section 33.203(7). Except as provided by Subsections (f)(8)-(10), this subchapter does not apply to an agency action authorizing an activity outside the program boundary.
Added by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.206. COUNCIL ACTION. (a) A proposed action is consistent with the goals and policies of the coastal management program and approved by the council unless, on the affirmative vote of at least two-thirds of the members of the council, the council determines the action to be inconsistent with the coastal management program and protests the action.
(b) If the council protests the proposed action, the council shall report its findings on the matter to the agency or subdivision. The report shall specify how the proposed action is inconsistent with the goals and policies of the coastal management program and include specific recommendations of the council regarding how the proposed action may be modified or amended to make it consistent with the program. Before the 21st day after the date the agency or subdivision receives the report, the agency or subdivision shall review the findings and recommendations and determine whether to modify or amend the proposed action to make it consistent with the goals and policies of the coastal management program and shall notify the council of its decision.
(c) If an agency or subdivision does not modify or amend a proposed action to be consistent with the goals and policies of the coastal management program, the council shall request the attorney general to issue an opinion on the consistency of the proposed action with the coastal management program. The agency or subdivision is stayed from taking the proposed action until the attorney general issues the opinion. The attorney general shall issue an opinion before the 26th day after the date the council requests the opinion.
(d) The council shall adopt procedural rules for the review of federal actions, activities, and outer continental shelf plans that incorporate the provisions of federal regulations governing those reviews. The rules shall provide that the chair or any three members may request additional information from a federal agency or additional time for review as provided by the federal regulations.
(e) The council shall review any federal action, activity, or outer continental shelf plan that any three members of the council agree presents a significant unresolved issue regarding consistency with the goals and policies of the coastal management program and place the matter on the agenda of a meeting of the council for review.
(f) If an activity requiring an agency or subdivision action described by Section 33.2053 that falls below thresholds in effect under Section 33.2052 also requires an equivalent federal permit or license, the council may only determine the agency or subdivision action's consistency. If an activity requiring an agency or subdivision action above thresholds requires an equivalent federal permit or license, the council may determine the consistency of the agency or subdivision action or the federal license or permit, but not both. The determination regarding the consistency of an action made by the council under this subsection constitutes the state's determination regarding consistency of the equivalent agency or subdivision action or federal action.
(g) If, after review, the council finds a proposed federal agency action or activity or outer continental shelf plan is inconsistent with the coastal management program, and the federal agency does not modify the action, activity, or outer continental shelf plan to achieve consistency with the program, the governor, with the assistance of the chair of the council, may seek mediation of the matter in accordance with federal law.
(h) The council may not protest a proposed action by an agency or subdivision pertaining to an application filed with that agency or subdivision before the date the coastal management program is adopted.
Added by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991. Amended by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.207. COUNCIL RECOMMENDATIONS. In addition to the report required by Section 33.206, the council:
(1) may periodically submit recommendations to an agency or subdivision designed to encourage the agency or subdivision to carry out its functions in a manner consistent with the coastal management program, including recommendations for methods to simplify governmental procedures and changes in applicable rules or statutes; and
(2) shall report to the legislature on: (A) recommended statutory changes needed to make more effective and efficient use of public funds and provide for more effective and efficient management of coastal natural resource areas, including recommendations on methods to simplify governmental procedures;
(B) agency or subdivision actions that are not consistent with the coastal management program; and
(C) population growth of, infrastructure needs of, and use of resources on the coast.
Added by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995; Acts 2001, 77th Leg., ch. 70, § 6, eff. Sept. 1, 2001.
§ 33.208. ENFORCEMENT. (a) The agency or subdivision with jurisdiction over a proposed action shall enforce the provisions of the coastal management program.
(b) If the attorney general issues an opinion under Section 33.206(c) that a proposed agency or subdivision action is inconsistent with the coastal management program and the agency or subdivision fails to implement the council's recommendation regarding the action, the attorney general shall file suit in a district court of Travis County to enforce this subchapter. The court shall consider the attorney general's opinion in determining whether the proposed action is consistent with the coastal management program.
(c) Notwithstanding the request of an opinion from, or the filing of suit by, the attorney general, the council and the agency or subdivision may enter into a settlement agreement with regard to the proposed action. If the council and the agency or subdivision enter into a settlement agreement, the council may rescind its request for an opinion from the attorney general.
Added by Acts 1991, 72nd Leg., ch. 295, § 37, eff. June 7, 1991. Amended by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.209. PROHIBITION ON SPECIAL AREA MANAGEMENT PLANS. The council may not develop or approve a special area management plan, including a plan for an area designated under the national estuary program.
Added by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.210. PRIVATE PROPERTY. The requirements of this subchapter may not be applied in a manner that would result in the taking, damage, or destruction of property without adequate compensation.
Added by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995.
§ 33.211. SUNSET PROVISION. The Coastal Coordination Council is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the council is abolished and this subchapter expires September 1, 2013.
Added by Acts 1995, 74th Leg., ch. 416, § 4, eff. June 8, 1995. Amended by Acts 1997, 75th Leg., ch. 1169, § 1.01, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 70, § 7, eff. Sept. 1, 2001.
§ 33.212. COMPLAINTS. (a) The council shall maintain a file on each written complaint filed with the council. The file must include:
(1) the name of the person who filed the complaint; (2) the date the complaint is received by the council; (3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and
(6) an explanation of the reason the file was closed, if the council closed the file without taking action other than to investigate the complaint.
(b) The council shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the council's policies and procedures relating to complaint investigation and resolution.
(c) The council, at least quarterly until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation.
Added by Acts 2001, 77th Leg., ch. 70, § 8, eff. Sept. 1, 2001.
SUBCHAPTER G. COASTAL WETLAND ACQUISITION
§ 33.231. SHORT TITLE. This subchapter may be cited as the Coastal Wetland Acquisition Act.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979.
§ 33.232. POLICY. It is the declared policy of the state: (1) to protect the property rights of those who sell interests in land to the state by fairly compensating the sellers;
(2) to protect that coastal wetland which is most essential to the public interest by acquiring fee and lesser interests in the coastal wetland and managing it in a manner that will preserve and protect the productivity and integrity of the land as coastal wetland; and
(3) to assure that the state does not expend funds to acquire any coastal wetland to which it already holds a valid title at the time of the expenditure.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979.
§ 33.233. DEFINITIONS. In this subchapter: (1) "Acquiring agency" means the Parks and Wildlife Department. (2) "Land office " means the General Land Office. (3) "Coastal wetland" means wetlands underlying or adjacent to tidal waters in the coastal area.
(4) "Wetlands" has the meaning assigned under Subchapter J, Chapter 11, Water Code.
(5) "Seawater" means any water containing a concentration of one-twentieth of one percent or more by weight of total dissolved inorganic salts derived from the marine water of the Gulf of Mexico.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 265, § 4, eff. June 5, 1991.
§ 33.234. DUTIES AND AUTHORITY OF ACQUIRING AGENCY. (a) The acquiring agency shall do the following:
(1) accept gifts, grants, or devises of interests in land; (2) acquire, by purchase or condemnation, fee and lesser interests in the surface estate in coastal wetland certified as most essential to protection of the public interest, provided that in each instance in which an interest in land is acquired by the acquiring agency pursuant to this section, a sufficient interest shall be acquired to preserve and protect the productivity and integrity of such land as coastal wetland; and
(3) manage interests in land acquired pursuant to this section in a manner that will preserve and protect the productivity and integrity of the land as coastal wetland.
(b) This subchapter shall not be construed to authorize the condemnation of any interest in the mineral estate in any coastal wetland.
(c) The acquiring agency shall promulgate reasonable rules and regulations necessary to preserve and protect the productivity and integrity of the land as coastal wetland acquired pursuant to this subchapter. The rules and regulations shall include regulations governing activities conducted on the land in conjunction with mineral exploration, development, and production.
(d) If the acquiring agency seeks to condemn an interest less than the fee interest in the surface estate in any coastal wetland, the owner of the coastal wetland may demand that the acquiring agency instead seek condemnation of the fee interest in the surface estate in the coastal wetland. Upon this demand, the acquiring agency shall either:
(1) seek to condemn the fee interest in the surface estate in the coastal wetland; or
(2) cease all condemnation proceedings pursuant to this subchapter against the coastal wetland.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 265, § 5, eff. June 5, 1991.
§ 33.235. AGRICULTURAL EXEMPTION. Coastal wetland used only for farming or ranching activities, including maintenance and repair of buildings, earthworks, and other structures, shall not be subject to any power of condemnation exercised pursuant to this subchapter. However, this exemption from condemnation shall terminate upon the receipt by any state or federal agency of an application for a permit, license, or other authorization to conduct on the wetland, activities other than farming and ranching activities, including irrigation and water well drilling, and activities necessary to exploration, development, or production of the underlying mineral estate.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979.
§ 33.236. DUTIES AND AUTHORITY TO CERTIFY. (a) The land office and the acquiring agency, in coordination, shall do the following:
(1) certify coastal wetlands which are most essential to the public interest in accordance with criteria developed by the land office and the acquiring agency under Chapter 14, Parks and Wildlife Code, and this subchapter, assign priorities for acquisition of interests in the coastal wetland, and revoke certification made pursuant to this section when it is in the public interest to do so; and
(2) publicize the importance to the public interest of coastal wetland in general, and of designated coastal wetland in particular.
(b) A certification, assignment of priority for acquisition, or revocation of certification made pursuant to this subchapter does not constitute a "contested case" within the meaning of Chapter 2001, Government Code.
(c) to (h) Repealed by Acts 1991, 72nd Leg., ch. 265, § 7, eff. June 5, 1991.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 265, § 6, 7, eff. June 5, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 33.237. MOST ESSENTIAL COASTAL WETLAND CERTIFICATION. (a) In selecting and certifying coastal wetland most essential to the public interest, and in assigning priorities of acquisition to coastal wetland, the land office and the acquiring agency shall consider the following criteria:
(1) whether the land is coastal wetland within the definition, intent, and purpose of this subchapter;
(2) whether the state owns the coastal wetland or claims title to it, which title can be validated by bringing an appropriate action in a court of law;
(3) whether the biological, geological, or physical characteristics of the coastal wetland, including the interrelationship of the coastal wetland with other coastal wetland, is essential to the public interest;
(4) the degree to which the coastal wetland is in danger of being altered, damaged, or destroyed, and the imminence of that danger; and
(5) the cost of acquiring the coastal wetland. (b) The legislature declares that certifications, assignments of priority for acquisition, and revocations of certifications made pursuant to Section 33.235 of this code are made only for the purpose of administering the provisions of this subchapter. No certifications, assignments of priority for acquisition, or revocations of certification shall be grounds for an inference, or admissible in a court of law to prove, that any coastal wetland is of greater or lesser value than any other coastal wetland for any purpose other than administering the provisions of this subchapter.
(c) A certification made pursuant to this subchapter shall expire one year from the date of certification.
(d) If on or before the expiration date of such certification the acquiring agency files suit in a court of law to condemn the certified coastal wetland, the certification shall extend until the suit is settled, dismissed, or otherwise terminated.
(e) If a contract of sale between the state and the owner of the certified coastal wetland is entered into on or before the expiration date of the certification, the certification shall extend until title to the coastal wetland is conveyed to the state or the contract is rescinded, invalidated, or otherwise terminated.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979. Amended by Acts 1991, 72nd Leg., ch. 265, § 8, eff. June 5, 1991.
§ 33.238. FUNDING. The acquiring agency may compensate the seller of land acquired pursuant to this subchapter with funds obtained through:
(1) gift, grant, or devise; (2) legislative appropriation; or (3) gift or grant from the United States.
Added by Acts 1979, 66th Leg., p. 1993, ch. 785, § 2, eff. June 13, 1979.
SUBCHAPTER H. COASTAL EROSION
§ 33.601. DEFINITIONS. In this subchapter: (1) "Account" means the coastal erosion response account established under Section 33.604.
(2) "Beach nourishment" means the placement of beach-quality sediment on an eroded beach to restore it as a recreational beach, provide storm protection for upland property, maintain a restored beach by the replacement of sand, or serve other similar beneficial purposes.
(3) "Coastal erosion" means the loss of land, marshes, wetlands, beaches, or other coastal features within the coastal zone because of the actions of wind, waves, tides, storm surges, subsidence, or other forces.
(4) "Critical coastal erosion area" means a coastal area that is experiencing historical erosion, according to the most recently published data of the Bureau of Economic Geology of The University of Texas at Austin, that the commissioner finds to be a threat to:
(A) public health, safety, or welfare; (B) public beach use or access; (C) general recreation; (D) traffic safety; (E) public property or infrastructure; (F) private commercial or residential property; (G) fish or wildlife habitat; or (H) an area of regional or national importance. (5) "Erosion response project" means an action intended to address or mitigate coastal erosion, including beach nourishment, sediment management, beneficial use of dredged material, creation or enhancement of a dune, wetland, or marsh, and construction of a breakwater, bulkhead, groin, jetty, or other structure.
(6) "Hard structure" means an erosion response structure such as a bulkhead, seawall, revetment, jetty, groin, or similar structure that is the functional equivalent of one of those structures.
(7) "Institution of higher education" has the meaning assigned by Section 61.003, Education Code.
(8) "Local government" means a political subdivision of this state. (9) "Project cooperation agreement" means a contract executed by the land office and a qualified project partner that explicitly defines the terms under which a study or project will be conducted.
(10) "Public beach" has the meaning assigned by Section 61.013. (11) "Qualified project partner" means a local government, state or federal agency, institution of higher education, homeowners' association, or other public or private entity that enters into an agreement with the land office to finance, study, design, install, or maintain an erosion response project.
(12) "Shared project cost" means a project cost identified by the commissioner and established in a project cooperation agreement that will be shared with a qualified project partner.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.602. COASTAL EROSION DUTIES AND AUTHORITY. (a) The land office shall implement a program of coastal erosion avoidance, remediation, and planning. The commissioner shall ensure that erosion avoidance, remediation, and planning protect the common law rights of the public in public beaches as affirmed by Subchapter B, Chapter 61.
(b) The commissioner shall publish and periodically update a coastal erosion response plan. The commissioner shall develop the plan in coordination with state and federal agencies and local governments and provide for public input on the plan. The plan must identify critical coastal erosion areas and prioritize coastal erosion response studies and projects so that:
(1) benefits are balanced throughout the coast; (2) federal and local financial participation is maximized; (3) studies and projects are scheduled to achieve efficiencies and economies of scale; and
(4) the severity of erosion effects in each area is taken into account. (c) The commissioner may adopt rules necessary to implement this subchapter.
(d) The commissioner shall adopt rules requiring that beach-quality sand dredged in constructing and maintaining navigation inlets and channels of the state be placed on eroding beaches or to restore eroding wetlands wherever practicable.
Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.601 and amended by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1405, § 1, eff. Sept. 1, 2001.
§ 33.603. COASTAL EROSION STUDIES AND PROJECTS. (a) The land office shall undertake coastal erosion studies, demonstration projects, and response projects if the land office receives legislative appropriations or other funding for that purpose. If reasonable and appropriate, the land office shall work in conjunction with other state agencies, local governments, federal agencies, including the United States Army Corps of Engineers, or other qualified project partners in undertaking those studies and projects.
(b) The studies and projects shall address: (1) assessment of the feasibility, cost, and financing of different methods of avoiding, slowing, or remedying coastal erosion;
(2) beneficial placement of dredged material where appropriate to replenish eroded public beach, bay shore, marsh, and dune areas;
(3) public beach, bay shore, and marsh nourishment or restoration projects using sediments other than material from navigational or other dredging projects;
(4) guidelines on grain size and toxicity level; (5) the economic, natural resource, and other benefits of coastal erosion projects;
(6) the protection, revegetation, and restoration of dunes; (7) the planting of vegetation as a means of inhibiting bay shore erosion and projects developing and cultivating disease-resistant vegetation adapted to local conditions;
(8) the construction or retrofitting of dams, jetties, groins, and other impoundment structures, provided that the structures include sediment bypassing systems;
(9) estimating the quantity and quality of sediment trapped by reservoirs, navigation channels, and placement areas and identification of other sediment sources;
(10) the use of hard or soft structures on bay shorelines as a method of avoiding, slowing, or remedying erosion;
(11) storm damage mitigation, post-storm damage assessment, debris removal, and removal and relocation of structures from public beaches;
(12) structural shoreline protection projects that use innovative technologies designed or engineered to minimize beach scour; and
(13) other studies or projects the commissioner considers necessary or appropriate to implement this subchapter.
(c) An agreement between the commissioner and a qualified project partner to undertake a coastal erosion response study or project:
(1) must require the qualified project partner to pay a specified percentage of the shared project cost that is not less than the minimum amount prescribed by Subsection (e):
(A) before completion of the project; or (B) following completion of the project, in accordance with a schedule provided by the agreement; and
(2) may contain other terms governing the study or project. (d) Except as provided by Subsections (b)(8) and (12), this chapter does not authorize the construction or funding of a hard structure on or landward of a public beach.
(e) A qualified project partner must pay: (1) not less than 25 percent of the shared project cost if the project is a beach nourishment project on a public beach or bay shore; and
(2) not less than 40 percent of the shared project cost if the project is any other coastal erosion response study or project, including:
(A) a marsh restoration project; or (B) a bay shoreline protection project other than a beach nourishment project.
(f) Notwithstanding Subsections (c) and (e), each biennium the commissioner may undertake one large-scale beach nourishment project on a public beach without requiring a qualified project partner to pay a portion of the shared project cost if the cost of the project does not exceed one-third of the total amount appropriated to the land office for coastal erosion planning and response.
(g) Notwithstanding Subsection (d), each biennium the commissioner may undertake or provide funding for one or more erosion response demonstration projects if the state's portion of the shared project cost does not exceed one-tenth of the total amount appropriated to the land office for coastal erosion planning and response.
(h) Notwithstanding Subsection (e), the commissioner may determine the percentage of the shared project cost a qualified project partner must pay for a project undertaken pursuant to Subsection (b)(11) for removal of debris or structures, or relocation of structures from the public beach; provided, however, that no money in the account may be used for a project undertaken pursuant to Subsection (b)(11) to purchase real property or reimburse a property owner for the purchase of real property.
Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.602 and amended by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1404, § 1, eff. June 16, 2001; Acts 2003, 78th Leg., ch. 874, § 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 304, § 1, eff. Sept. 1, 2005.
§ 33.604. COASTAL EROSION RESPONSE ACCOUNT. (a) The coastal erosion response account is an account in the general revenue fund that may be appropriated only to the commissioner and used only for the purpose of implementing this subchapter.
(b) The account consists of: (1) all money appropriated for the purposes of this subchapter; (2) grants to this state from the United States for the purposes of this subchapter; and
(3) all money received by this state from the sale of dredged material.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.605. USES OF ACCOUNT. (a) Money in the account may be used for any action authorized by this subchapter, except for a restoration project authorized by Section 33.613.
(b) The commissioner must approve an expenditure from the account. In determining whether to approve an expenditure for a study or project, the commissioner shall consider:
(1) the amount of money in the account; (2) the feasibility and cost-effectiveness of the study or project; (3) the locations of other existing or proposed erosion response projects; (4) the needs in other critical coastal erosion areas; (5) the effect of the study or project on public or private property; and (6) if the site to be studied or project to be conducted will be located within the jurisdiction of a local government subject to Chapter 61 or 63, whether the local government is adequately administering those chapters.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999. Amended by Acts 2005, 79th Leg., ch. 867, § 2, eff. June 17, 2005.
§ 33.606. GRANTS AND GIFTS. The commissioner may apply for, request, solicit, contract for, receive, and accept gifts, grants, donations, and other assistance from any source to carry out the powers and duties provided by this subchapter.
Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.603 by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.607. COASTAL EROSION PUBLIC AWARENESS AND EDUCATION. (a) The land office shall be responsible for and shall coordinate with other agencies to increase public awareness through public education concerning:
(1) the causes of erosion; (2) the consequences of erosion; (3) the importance of barrier islands, dunes, and bays as a natural defense against storms and hurricanes; and
(4) erosion avoidance techniques. (b) On an ongoing basis, the commissioner, in consultation with the Bureau of Economic Geology of The University of Texas at Austin and coastal county and municipal governments, shall monitor historical erosion rates at each location along the shore of the Gulf of Mexico.
(c) The commissioner shall make historical erosion data accessible, through the Internet and otherwise, to the public and persons receiving the notice required under Section 61.025.
(d) The Bureau of Economic Geology of The University of Texas at Austin shall make historical erosion data relating to a critical coastal erosion area available to each state agency, local government, or other person responsible for, or with jurisdiction over, the area.
(e) A local government subject to Chapter 61 or 63 is encouraged to use historical erosion data to prepare a plan for reducing public expenditures for erosion and storm damage losses to public and private property, including public beaches, by establishing and implementing a building set-back line that will accommodate a shoreline retreat. The local government shall hold a public educational meeting on the plan before proposing to implement it through the plans, orders, or ordinances provided by Chapters 61 and 63.
Added by Acts 1991, 72nd Leg., ch. 295, § 3, eff. June 7, 1991. Renumbered from § 33.604 and amended by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.608. REPORT TO LEGISLATURE. Each biennium, the commissioner shall submit to the legislature a report listing:
(1) each critical erosion area; (2) each proposed erosion response study or project; (3) an estimate of the cost of each proposed study or project described by Subdivision (2);
(4) each coastal erosion response study or project funded under this subchapter during the preceding biennium;
(5) the economic and natural resource benefits from each coastal erosion response study or project described by Subdivision (4);
(6) the financial status of the account; and (7) an estimate of the cost of implementing this subchapter during the succeeding biennium.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.609. LANDOWNER CONSENT. (a) The commissioner may not undertake a coastal erosion response project on:
(1) permanent school fund land without first obtaining the written consent of the school land board; or
(2) private property, other than that encumbered by the common law rights of the public affirmed by Chapter 61, without first obtaining the written consent of the property owner.
(b) If the commissioner cannot determine the identity of or locate a property owner, consent is considered to have been given if:
(1) the commissioner publishes a notice of the project at least once a week for two consecutive weeks in the newspaper having the largest circulation in the county in which the project is located; and
(2) the property owner does not object on or before the 20th day after the last date notice is published under Subdivision (1).
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.610. REMOVAL OF SUBMERGED LAND FROM APPRAISAL AND TAX ROLLS. (a) If the commissioner determines that land has become submerged by erosion or subsidence and as a result is dedicated to the permanent school fund, the commissioner may notify in writing the appraisal district that appraises the land for ad valorem tax purposes and each taxing unit that imposes taxes on the land. The notice must include a legal description of the land.
(b) On receipt of notice under Subsection (a): (1) the appraisal district shall remove the land from the appraisal roll; and
(2) each taxing unit shall remove the land from its tax roll.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.611. IMMUNITY. (a) This state, the commissioner, and land office staff are immune from suit for damages and from liability for an act or omission related to:
(1) the approval, disapproval, funding, or performance of a coastal erosion response activity, including an erosion response study or project or a survey; or
(2) the failure of an erosion response project undertaken by the commissioner under this subchapter to fulfill its intended purpose.
(b) The immunity granted by this section does not apply to an act or omission that is intentional, wilfully or wantonly negligent, or committed with conscious indifference or reckless disregard for the safety of others.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.612. JUDICIAL REVIEW. (a) Judicial review of rights affected by an action of this state, the commissioner, or land office staff under this subchapter is under the substantial evidence rule. In order to prevail, a person seeking review must prove that the action complained of was arbitrary, capricious, or otherwise not in accordance with law.
(b) Venue for an action relating to this subchapter is in Travis County.
Added by Acts 1999, 76th Leg., ch. 508, § 5, eff. Sept. 1, 1999.
§ 33.613. PROPERTY RIGHTS; RESTORATION BY BEACHFRONT OWNER OF PRIVATE PROPERTY AFFECTED BY COASTAL EROSION. (a) This section applies to land that:
(1) on December 31, 1955, was privately owned and not submerged or owned by the School Land Board; and
(2) fronts on a bay and not the Gulf of Mexico. (b) In accordance with land office rules, the owner of property immediately landward of a public beach or submerged land, including state mineral lands, that has been affected by coastal erosion shall restore the affected land to its original boundaries as evidenced in a residential subdivision plat for residential lots of one acre or less filed in the real property records of each county in which the affected land is located. The owner shall use only private resources and money for restoration authorized by this section. After restoration the owner owns the restored land in fee simple, subject to:
(1) the common law rights of the public in public beaches as affirmed by Subchapter B, Chapter 61; and
(2) the rights of a public school land lessee holding a lease on the property on September 1, 2005.
(c) In accordance with land office rules, the owner shall build bulkheads on the restored land to prevent further erosion of the restored land.
(d) The land office shall adopt reasonable rules to govern the restoration of land under this section, including rules that:
(1) prescribe the type and quality of materials that may be used to backfill or build a bulkhead;
(2) require maintenance of backfill and bulkheads; (3) authorize land office maintenance or removal of abandoned or dilapidated structures;
(4) require consideration of any adverse effects on adjacent property owners; and
(5) establish penalties for the violation of this section or rules adopted under this section.
(e) State money may not be used to restore land under this section.
Added by Acts 2005, 79th Leg., ch. 867, § 3, eff. June 17, 2005.
SUBCHAPTER I. COASTAL PROTECTION AND IMPROVEMENT
§ 33.651. DEFINITIONS. In this subchapter: (1) "Bond" means any type of interest-bearing obligation, including a bond, note, bond anticipation note, certificate of participation, lease, contract, or other evidence of indebtedness issued by a coastal county to pay the project costs of a qualified project.
(2) "Coastal county" means a county that borders on the Gulf of Mexico. (3) "Coastal erosion" has the meaning assigned by Section 33.601. (4) "Coastal improvement project" means a project to improve access to a public beach by:
(A) acquiring fee title to property or a right of public access to a public beach;
(B) constructing or maintaining public roads, parking, or other facilities in aid of public access to or use of a public beach; or
(C) requiring a landowner, as prescribed by land office rules, to restore land affected by coastal erosion to its original boundaries.
(5) "Coastal protection project" means a project to address or mitigate coastal erosion.
(6) "Coastal protection and improvement fund" means the coastal protection and improvement fund created under Section 33.653.
(7) "County coastal protection and improvement fund" means a county coastal protection and improvement fund created by a coastal county under Section 33.655.
(8) "Project cost" means a cost or expense incurred in relation to a qualified project, including the cost of:
(A) designing, engineering, acquiring, constructing, maintaining, improving, extending, repairing, replacing, monitoring, removing, or administering a qualified project; or
(B) financing a qualified project, including the cost of issuing bonds and the payment of principal, interest, and redemption price.
(9) "Public beach" has the meaning assigned by Section 61.013. (10) "Qualified agreement" means an agreement between the land office and a coastal county in accordance with Section 33.657.
(11) "Qualified payment" means a payment by the commissioner to a coastal county from the coastal protection and improvement fund, as provided by this subchapter, that has been approved in amount and qualification for payment by the land office and the applicable coastal county.
(12) "Qualified project" means a coastal protection or improvement project that qualifies for funding under Section 33.656.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.652. APPLICABILITY OF SUBCHAPTER TO CERTAIN MUNICIPALITIES. The provisions of this subchapter relating to coastal counties apply to a municipality if all or substantially all of the gulf beach within a coastal county is located within the boundaries of the municipality.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.653. CREATION OF COASTAL PROTECTION AND IMPROVEMENT FUND. (a) The coastal protection and improvement fund is created as a trust fund outside the state treasury to be held by the Texas Treasury Safekeeping Trust Company and administered by the commissioner as trustee on behalf of the coastal counties.
(b) The fund consists of: (1) gifts and grants; and (2) appropriations of money to the fund by the legislature. (c) The commissioner shall allocate five percent of the amount deposited in the fund to the land office to be used only to pay the cost of administering any coastal protection and improvement efforts undertaken under this subchapter and to support a coastal monitoring program by The University of Texas Bureau of Economic Geology and the sea turtle and shore monitoring programs of Texas A&M University at Galveston.
(d) The commissioner shall allocate 95 percent of the amount deposited in the fund for use by the coastal counties as provided by this subchapter.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.654. USE OF COASTAL PROTECTION AND IMPROVEMENT FUND. (a) The coastal protection and improvement fund shall be used only to make a qualified payment to a coastal county sponsoring a qualified project under this subchapter.
(b) The commissioner may make a qualified payment from the fund to a coastal county only if and to the extent that the coastal county is sponsoring a project that qualifies for funding as certified by the coastal county and the land office.
(c) The amount and timing of a qualified payment shall be determined by agreement between the land office and the coastal county sponsoring the project. The amount of a qualified payment may not exceed the estimated project costs.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.655. COUNTY COASTAL PROTECTION AND IMPROVEMENT FUND. (a) Each coastal county shall create a county coastal protection and improvement fund.
(b) Each coastal county shall deposit any qualified payment that it receives into its county coastal protection and improvement fund and shall use the money in the fund only to pay the project costs of a qualified project as provided by this subchapter.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.656. PROJECTS THAT QUALIFY FOR FUNDING. To qualify for funding under this subchapter, a project must:
(1) be sponsored by a coastal county; (2) be located within the sponsoring coastal county along or adjacent to the shore of the Gulf of Mexico, an inland bay, or a connecting channel between the Gulf of Mexico and an inland bay;
(3) be accessible by public roads or a common carrier ferry; (4) be identified and approved for funding by a coastal county and the land office; and
(5) require more than $5 million to complete, as estimated by the land office.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.657. QUALIFIED AGREEMENT. (a) The land office and a coastal county may enter into one or more agreements relating to a qualified project and the payment of the associated project costs. An agreement is governed by this subchapter.
(b) An agreement may provide that the commissioner will pay to the coastal county an agreed amount from the coastal protection and improvement fund over a term of years to be used by the coastal county for a project that qualifies for funding under this subchapter.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.658. QUALIFIED PAYMENT. (a) The commissioner shall make qualified payments to a coastal county based on the land office's estimate of the expected project costs of any qualified projects undertaken by that county in the fiscal year in which the payment is made.
(b) To the extent that the aggregate of qualified payments by the commissioner to a coastal county in a fiscal year exceeds the project costs of qualified projects undertaken by the county during that year, the commissioner shall recover the amount of the overpayment by:
(1) requiring the county to remit the amount of the overpayment to the commissioner for deposit in the coastal protection and improvement fund; or
(2) taking a credit against qualified payments due that county the following year or years.
(c) If a coastal county that received an overpayment is not due additional qualified payments the following year, the county shall promptly remit the amount of the overpayment to the commissioner for deposit in the coastal protection and improvement fund.
(d) Notwithstanding Subsection (b), the commissioner may not take a credit against qualified payments due a coastal county the following year if the county needs the full amount of the qualified payment that year to:
(1) pay the principal or interest on, or the redemption price of, bonds issued to finance a qualified project; or
(2) fund a reserve or other fund required by the documents authorizing the issuance of bonds.
(e) The failure of a coastal county to use the full amount of a qualified payment in the fiscal year in which it is received does not prejudice the right of the county to receive money from the coastal protection and improvement fund in future years as may be provided in the county's qualified agreement.
(f) A coastal county may not use a qualified payment as a local match for funding under a state program.
(g) A coastal county may use a qualified payment as a local match for funding under a federal program.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.659. GENERAL POWERS OF COASTAL COUNTIES. (a) In addition to all other powers that a coastal county has under general law, a coastal county has the rights, powers, privileges, authority, and functions that are necessary or convenient to:
(1) the designing, engineering, acquiring, constructing, improving, maintaining, extending, repairing, replacing, monitoring, removing, administering, and financing of a qualified project located in a coastal county; and
(2) the funding of a reserve or other fund relating to bonds. (b) A coastal county may issue bonds to pay the project costs of a qualified project. For purposes of this subchapter, a coastal county is an issuer and a qualified project is an eligible project within the meaning of Chapter 1371, Government Code, and the provisions of Chapter 1371, Government Code, are applicable to bonds issued by a coastal county.
(c) A coastal county may: (1) enter into agreements with a public or private person for the joint ownership, financing, or operation of a qualified project;
(2) enter into contracts, leases, and agreements with, and accept grants and loans from, any person to perform all acts necessary for the full exercise of the powers vested in the county on terms and for the term the county determines to be advisable;
(3) acquire property under a conditional sales contract, lease, equipment trust certificate, or other form of contract or trust agreement; and
(4) do anything necessary, convenient, or desirable to carry out the powers expressly granted or implied by this subchapter.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.660. AUTHORITY TO CONTRACT. (a) A coastal county may contract with a state agency, municipality, county, or other political subdivision of the state or any agency or instrumentality of the federal government to implement a qualified project under this subchapter. A contract under this section may:
(1) be for a period on which the parties agree; (2) include terms on which the parties agree; and (3) be payable from taxes, qualified payments, or any other source of revenue available for that purpose.
(b) A coastal county may enter into a contract, lease, or agreement with or make or accept grants and loans to or from:
(1) the United States; (2) the State of Texas; (3) a county, municipality, or other political subdivision of the state; (4) a public or private corporation; or (5) any other person.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.661. FUNDS AVAILABLE FOR QUALIFIED PROJECTS. (a) A coastal county may pay the project costs of a qualified project from general or available funds, payments received from the land office, including payments from the coastal protection and improvement fund, contract reserves, ad valorem taxes, sales taxes, the proceeds of bonds, or any combination of those funds.
(b) Payments made by the commissioner under this subchapter are in addition to any other funds to which the coastal county may be entitled under any other state law or program.
(c) This subchapter does not preclude a contribution to a qualified project from any state, federal, private, or other source.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.662. BONDS ELIGIBLE FOR PURCHASE. Bonds issued by a coastal county under this subchapter may be purchased by the Texas Water Development Board for purposes authorized by Chapter 17, Water Code.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005.
§ 33.663. CONSTRUCTION OF SUBCHAPTER. This subchapter shall be liberally construed to accomplish the purposes of mitigation of coastal erosion and improvement of public access to public beaches.
Added by Acts 2005, 79th Leg., ch. 867, § 4, eff. June 17, 2005. § 34.001. DEFINITIONS. In this chapter: (1) "Board" means a board for lease. (2) "Commissioner" means the Commissioner of the General Land Office. (3) "Land office" means the General Land Office.
Acts 1977, 65th Leg., p. 2394, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.002. APPLICATION OF CHAPTER. (a) The provisions of this chapter apply to:
(1) land owned by the Texas Parks and Wildlife Department; (2) land owned by the Texas Department of Corrections. (b) If title to land subject to the provisions of the Relinquishment Act is acquired by the Texas Parks and Wildlife Department or the Texas Department of Corrections, the land is not subject to lease by a board created under the provisions of this chapter but shall be leased in the manner provided for the leasing of unsold public school land.
Acts 1977, 65th Leg., p. 2394, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 2572, ch. 686, § 1, eff. Aug. 31, 1981; Acts 1985, 69th Leg., ch. 327, § 1, eff. June 8, 1985; Acts 1985, 69th Leg., ch. 624, § 25, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 167, § 6.05(d), eff. Sept. 1, 1987.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
§ 34.011. BOARDS FOR LEASE. Boards for lease are created to lease land owned by the Texas Parks and Wildlife Department and the Texas Department of Corrections.
Acts 1977, 65th Leg., p. 2394, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 26, eff. Sept. 1, 1985.
§ 34.012. TITLE OF BOARD. The title of each board shall be selected by each board for lease at its first meeting.
Acts 1977, 65th Leg., p. 2394, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.013. MEMBERS OF BOARD. (a) The membership of each board shall include:
(1) the commissioner; (2) one citizen of the state appointed by the governor with the advice and consent of the senate; and
(3) the president or chairman of the board or agency or head of the department charged with the responsibility of management or control of land owned by or held in trust for the use and benefit of the department, agency, or board.
(b) The appointed member serves for a term of two years.
Acts 1977, 65th Leg., p. 2394, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.0131. APPOINTMENTS WITHOUT DISCRIMINATION. Appointments to the board shall be made without regard to the race, color, handicap, sex, religion, age, or national origin of the appointees.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985.
§ 34.0132. DISQUALIFICATION OF LOBBYISTS. A person who is required to register as a lobbyist under Chapter 305 of the Government Code, by virtue of his activities for compensation in or on behalf of a profession related to the operation of the board, may not serve as a member of the board or act as the general counsel to the board.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 2.19(21), eff. Sept. 1, 1987.
§ 34.0133. CONFLICTS OF INTEREST PROHIBITED. An officer, employee, or paid consultant of a statewide or national trade association in the oil and gas or mining industry may not be a member or employee of the board, nor may a person who cohabits with or is the spouse of an officer, managerial employee, or paid consultant of a statewide or national trade association in the oil and gas or mining industry be a member of the board or an employee of the board grade 17 and over, including exempt employees, according to the position classification schedule under the General Appropriations Act.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985.
§ 34.0134. REMOVAL OF BOARD MEMBER. (a) It is a ground for removal from the board if a member:
(1) does not have at the time of appointment the qualifications required by Subsection (a) of Section 34.013 of this code for appointment to the board;
(2) does not maintain during the service on the board the qualifications required by Subsection (a) of Section 34.013 of this code for appointment to the board;
(3) violates a prohibition established by Section 34.0132 or 34.0133 of this code;
(4) is unable to discharge his duties for a substantial portion of the term for which he was appointed because of illness or disability; or
(5) is absent from more than one-half of the regularly scheduled board meetings which the member is eligible to attend during each calendar year, except when the absence is excused by majority vote of the board.
(b) The validity of an action of the board is not affected by the fact that it was taken when a ground for removal of a member of the board existed.
(c) If the commissioner has knowledge that a potential ground for removal exists, he shall notify the governor that a potential ground for removal exists.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985.
§ 34.0135. POLICIES ON PUBLIC HEARINGS. The board shall develop and implement policies that will provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the jurisdiction of the board.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985.
§ 34.014. OFFICERS OF BOARD. (a) The commissioner is the chairman of the board.
(b) Each board shall select a secretary who shall be nominated by the commissioner and approved by a majority of the board.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.015. QUORUM. A majority of a board constitutes a quorum for the transaction of business.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.016. RECORDS OF BOARD. A board shall keep a complete record of all of its proceedings.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.017. SPECIAL MINERAL FUNDS. Special funds are created in the State Treasury to be known as the "(appropriate department, board, or agency) special mineral fund."
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.018. DEPOSIT OF RECEIPTS. Amounts received under the provisions of this chapter shall be deposited in the State Treasury to the credit of the appropriate special account, with the exception that all money received under the provisions of this chapter enuring to the benefit of the Parks and Wildlife Department from land held by the department for game and fish conservation, protection, and management purposes shall be deposited in the State Treasury to the credit of the game, fish, and water safety account, and all money received under the provisions of this chapter enuring to the benefit of the Parks and Wildlife Department from park, recreation, and historic land shall be deposited in the State Treasury to the credit of the state parks account.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 679, § 62, eff. Sept. 1, 1993.
§ 34.019. EXPENDITURES. (a) The expenses of executing the provisions of this chapter shall be paid by warrants drawn by the comptroller on the State Treasury against the income from the special funds accumulated from leases, rentals, royalties, and other payments.
(b) The amounts received under the provisions of this chapter and deposited to the credit of a special fund shall be used exclusively for the benefit of the appropriate department, board, or agency.
(c) No money may be spent from the special funds except by legislative appropriation and for the purposes and in the amount stated in the Act appropriating it.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.0191. FINANCIAL REPORT REQUIRED. The board shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding year.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985.
§ 34.0192. AUDIT. The financial transactions of the board are subject to audit by the state auditor in accordance with Chapter 321, Government Code.
Added by Acts 1985, 69th Leg., ch. 624, § 27, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 584, § 7, eff. Sept. 1, 1989.
§ 34.020. FILING IN GENERAL LAND OFFICE. All surveys, files, records, abstracts of title, copies of sale and lease contracts, and all other records pertaining to sales and leases authorized under the provisions of this chapter shall be filed in the land office and constitute archives.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER C. POWERS AND DUTIES
§ 34.051. LAND SUBJECT TO LEASE. Land owned by or held in trust for the use and benefit of either agency may be leased by the appropriate board to any person under the provisions of this chapter for the purpose of prospecting or exploring for and mining, producing, storing, caring for, transporting, preserving, selling, and disposing of the oil, gas, or other minerals.
Acts 1977, 65th Leg., p. 2395, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 28, eff. Sept. 1, 1985.
§ 34.052. SUBDIVISION OF LAND. A board may have the land subject to its control surveyed or subdivided into tracts, lots, or blocks which will, in its judgment, be most conducive and convenient to facilitate the advantageous sale of oil, gas, or mineral leases.
Acts 1977, 65th Leg., p. 2396, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.053. MAPS AND PLATS. A board may make maps and plats it considers necessary to carry out the purposes of this chapter.
Acts 1977, 65th Leg., p. 2396, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.054. ABSTRACTS OF TITLE. A board may obtain authentic abstracts of title to the land subject to its control that it considers necessary and may take the necessary steps to perfect a marketable title to the land.
Acts 1977, 65th Leg., p. 2396, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.055. GEOLOGICAL SURVEYS AND INVESTIGATIONS. A board may issue a permit for geological, geophysical, and other surveys and investigations on land subject to lease by the board that is not under valid and existing leases and that will encourage the development of the land for oil, gas, or other minerals. A permit may be issued for a consideration and under terms and conditions which the board considers to be in the best interest of the state.
Acts 1977, 65th Leg., p. 2396, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.056. PLACING LEASE ON MARKET. If a board determines there is a demand for the purchase of oil, gas, or mineral leases on a lot or tract of land subject to the control of the board which will reasonably insure an advantageous sale, the board shall place the oil, gas, or mineral leases on the market in the tract or tracts which the board may designate.
Acts 1977, 65th Leg., p. 2396, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 34.057. LEASE PROVISIONS. (a) Leases shall be advertised and sold in the same manner and shall contain the same terms and conditions as leases issued by the School Land Board under Chapter 32 of this code.
(b) A board may place any other terms and conditions in the lease it determines to be in the best interest of the state.
(c) The special sales fee provided for in Section 32.110 of this code shall be collected on leases issued under this chapter.
(d) The provisions of Chapter 32 of this code relating to payment of royalty, penalties and interest on delinquent payments, assignments, releases, and forfeiture shall apply to leases issued under this chapter.
Acts 1977, 65th Leg., p. 2396, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 29, eff. Sept. 1, 1985.
§ 34.064. EASEMENTS. (a) A board may grant easements of rights-of-way on the land covered by the provisions of this chapter.
(b) The easements may be granted on terms and conditions the board considers to be in the best interest of the state.
(c) The provisions of this section do not apply to land owned by the state as a part of the penitentiary system and do not repeal Chapter 166, General Laws, Acts of the 42nd Legislature, Regular Session, 1931, as amended (Article 6203d, Vernon's Texas Civil Statutes).
Acts 1977, 65th Leg., p. 2397, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 30, eff. Sept. 1, 1985.
§ 34.065. RULES. A board may adopt rules and collect fees necessary for the implementation of this chapter.
Added by Acts 1985, 69th Leg., ch. 624, § 31, eff. Sept. 1, 1985. § 40.001. SHORT TITLE. This chapter may be cited as the Oil Spill Prevention and Response Act of 1991.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.002. POLICY. (a) The legislature finds and declares that the preservation of the Texas coast is a matter of the highest urgency and priority. It is the policy of this state to keep its coastal waters, rivers, lakes, estuaries, marshes, tidal flats, beaches, and public lands as pristine as possible, taking into account multiple use accommodations necessary to provide the broadest possible promotion of public and private interests. Spills, discharges, and escapes of crude oil, petroleum, and other such substances resulting from their handling, storage, and transportation, particularly by vessel, endanger the coastal environment of the state, public and private property on the coast, and the well-being of those deriving their livelihood from marine-related activity in coastal waters. The hazards posed by the handling, storage, and transportation of these substances in the coastal waters are contrary to the paramount interests of the state. These state interests outweigh the economic burdens imposed under this chapter.
(b) The legislature finds and declares that the natural resources of the state and particularly those in the coastal waters of the state offer significant benefits to the citizens of Texas. These natural resources are important for their existence and their recreational, aesthetic, and commercial value. It is the policy of the state to protect these natural resources and to restore, rehabilitate, replace, and/or acquire the equivalent of these natural resources with all deliberate speed when they have been damaged. The legislature finds and declares that it is difficult to assess the value of these natural resources and to quantify injury to natural resources at a reasonable cost. The procedures and protocols utilized by the trustees must therefore consider the unique characteristics of each spill incident and the location of the natural resources affected. It is the intent of the legislature that natural resource damage assessment methodologies be developed for the purpose of reasonably valuing the natural resources of the State of Texas in the event of an oil spill and that the state recover monetary damages or have actions commenced by the spiller as early as possible to expedite the restoration, rehabilitation, and/or replacement of injured natural resources.
(c) The legislature intends by this chapter to exercise the police power of the state to protect its coastal waters and adjacent shorelines by conferring upon the Commissioner of the General Land Office the power to:
(1) prevent spills and discharges of oil by requiring and monitoring preventive measures and response planning;
(2) provide for prompt response to abate and contain spills and discharges of oil and ensure the removal and cleanup of pollution from such spills and discharges; and
(3) administer a fund to provide for funding these activities and to guarantee the prompt payment of certain reasonable claims resulting from spills and discharges of oil.
(d) The legislature declares that it is the intent of this chapter to support and complement the Oil Pollution Act of 1990 (Pub. L. 101-380) and other federal law, specifically those provisions relating to the national contingency plan for cleanup of oil and hazardous substance spills and discharges, including provisions relating to the responsibilities of state agencies designated as natural resources trustees. The legislature intends this chapter to be interpreted and implemented in a manner consistent with federal law.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 11.265, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 1, eff. Sept. 1, 2003.
§ 40.003. DEFINITIONS. In this chapter: (1) "Barrel" means 42 United States gallons at 60 degrees Fahrenheit. (2) "Coastal waters" means the waters and bed of the Gulf of Mexico within the jurisdiction of the State of Texas, including the arms of the Gulf of Mexico subject to tidal influence, and any other waters contiguous thereto that are navigable by vessels with a capacity to carry 10,000 gallons or more of oil as fuel or cargo.
(3) "Commissioner" means the Commissioner of the General Land Office. (4) "Comprehensive assessment method" means a method including sampling, modeling, and other appropriate scientific procedures to make a reasonable and rational determination of injury to natural resources resulting from an unauthorized discharge of oil.
(5) "Comptroller" means the comptroller of public accounts. (6) "Crude oil" means any naturally occurring liquid hydrocarbon at atmospheric temperature and pressure coming from the earth, including condensate.
(7)(A) "Damages" means compensation: (i) to an owner, lessee, or trustee for any direct, documented loss of, injury to, or loss of use of any real or personal property or natural resources injured by an unauthorized discharge of oil;
(ii) to a state or local government for any direct, documented net loss of taxes or net costs of increased entitlements or public services; or
(iii) to persons, including but not limited to holders of an oyster lease or permit; persons owning, operating, or employed on commercial fishing, oystering, crabbing, or shrimping vessels; persons owning, operating, or employed by seafood processing concerns; and others similarly economically reliant on the use or acquisition of natural resources for any direct, documented loss of income, profits, or earning capacity from the inability of the claimant to use or acquire natural resources arising solely from injury to the natural resources from an unauthorized discharge of oil.
(B) With respect to natural resources, "damages" includes the cost to assess, restore, rehabilitate, or replace injured natural resources, or to mitigate further injury, and their diminution in value after such restoration, rehabilitation, replacement, or mitigation.
(8) "Discharge of oil" means an intentional or unintentional act or omission by which harmful quantities of oil are spilled, leaked, pumped, poured, emitted, or dumped into or on coastal waters or at a place adjacent to coastal waters where, unless controlled or removed, an imminent threat of pollution to coastal waters exists.
(9) "Discharge cleanup organization" means any group or cooperative, incorporated or unincorporated, of owners or operators of vessels or terminal facilities and any other persons who may elect to join, organized for the purpose of abating, containing, removing, or cleaning up pollution from discharges of oil or rescuing and rehabilitating wildlife or other natural resources through cooperative efforts and shared equipment, personnel, or facilities. Any third-party cleanup contractor, industry cooperative, volunteer organization, or local government shall be recognized as a discharge cleanup organization, provided the commissioner or the United States properly certifies or classifies the organization.
(10) "Federal fund" means the federal Oil Spill Liability Trust Fund. (11) "Fund" means the coastal protection fund. (12) "Harmful quantity" means that quantity of oil the discharge of which is determined by the commissioner to be harmful to the environment or public health or welfare or may reasonably be anticipated to present an imminent and substantial danger to the public health or welfare.
(13) "Hazardous substance" means any substance, except oil, designated as hazardous by the Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) and designated by the Texas Commission on Environmental Quality.
(14) "Marine terminal" means any terminal facility used for transferring crude oil to or from vessels.
(15) "National contingency plan" means the plan prepared and published, as revised from time to time, under the Federal Water Pollution Control Act (33 U.S.C. § 1321 et seq.) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. § 9601 et seq.).
(16) "Natural resources" means all land, fish, shellfish, fowl, wildlife, biota, vegetation, air, water, and other similar resources owned, managed, held in trust, regulated, or otherwise controlled by the state.
(17) "Oil" means oil of any kind or in any form, including but not limited to crude oil, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil, but does not include petroleum, including crude oil or any fraction thereof, which is specifically listed or designated as a hazardous substance under Subparagraphs (A) through (F) of Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) and which is subject to the provisions of that Act, and which is so designated by the Texas Commission on Environmental Quality.
(18) "Owner" or "operator" means: (A) any person owning, operating, or chartering by demise a vessel; or (B) any person owning a terminal facility or a person operating a terminal facility by lease, contract, or other form of agreement.
(19) "Person in charge" means the person on the scene who is directly responsible for a terminal facility or vessel when a discharge of oil occurs or a particular duty arises under this chapter.
(20) "Person responsible" or "responsible person" means: (A) the owner or operator of a vessel or terminal facility from which an unauthorized discharge of oil emanates or threatens to emanate;
(B) in the case of an abandoned vessel or terminal facility, the person who would have been the responsible person immediately prior to the abandonment; and
(C) any other person who causes, allows, or permits an unauthorized discharge of oil or threatened unauthorized discharge of oil.
(21) "Pollution" means the presence of harmful quantities of oil from an unauthorized discharge in coastal waters or in or on adjacent waters, shorelines, estuaries, tidal flats, beaches, or marshes.
(22) "Response costs" means: (A) with respect to an actual or threatened discharge of oil, all costs incurred in an attempt to prevent, abate, contain, and remove pollution from the discharge, including costs of removing vessels or structures under this chapter, and costs of any reasonable measures to prevent or limit damage to the public health, safety, or welfare, public or private property, or natural resources; or
(B) with respect to an actual or threatened discharge of a hazardous substance, only costs incurred to supplement the response operations of the Texas Commission on Environmental Quality.
(23) "Terminal facility" or "facility" means any waterfront or offshore pipeline, structure, equipment, or device used for the purposes of drilling for, pumping, storing, handling, or transferring oil and operating where a discharge of oil from the facility could threaten coastal waters, including but not limited to any such facility owned or operated by a public utility or a governmental or quasi-governmental body, but does not include any temporary storage facilities used only in connection with the containment and cleanup of unauthorized discharges of oil.
(24) "Trained personnel" means one or more persons who have satisfactorily completed an appropriate course of instruction developed under Section 40.302 of this code or all other training requirements as determined by the commissioner.
(25) "Trustee" means a natural resources trustee of the state as designated by the governor under federal law.
(26) "Unauthorized discharge of oil" means any discharge of oil, or any discharge of oil emanating from a vessel into waters adjoining and accessible from coastal waters, that is not authorized by a federal or state permit.
(27) "Unauthorized discharge of hazardous substances" means a spill or discharge subject to Subchapter G, Chapter 26, Water Code.
(28) "Vessel" includes every description of watercraft or other contrivance used or capable of being used as a means of transportation on water, whether self-propelled or otherwise, including barges.
(29) Repealed by Acts 1995, 74th Leg., ch. 76, art. 11, § 11.334(a), eff. Sept. 1, 1995.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.054, eff. Aug. 12, 1991; Acts 1993, 73rd Leg., ch. 776, § 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 76, § 11.266, 11.334(a), eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 2, eff. Sept. 1, 2003.
§ 40.004. ADMINISTRATION OF OIL SPILL RESPONSE AND CLEANUP. (a) The General Land Office, under the direction and control of the commissioner, is the state's lead agency for response to actual or threatened unauthorized discharges of oil and for cleanup of pollution from unauthorized discharges of oil. The commissioner shall administer this chapter and direct all state discharge response and cleanup operations resulting from unauthorized discharges of oil. (b) All persons and all other officers, agencies, and subdivisions of the state shall carry out response and cleanup operations related to unauthorized discharges of oil subject to the authority granted to the commissioner under this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.005. ADMINISTRATION OF HAZARDOUS SUBSTANCE SPILL RESPONSE AND CLEANUP. The General Land Office, under the direction and control of the commissioner, is the state's lead agency for initiating response to all actual or threatened unauthorized discharges of oil. In the event of an unauthorized discharge of a hazardous substance, nothing in this chapter shall preclude the Texas Commission on Environmental Quality from at the earliest time practicable assuming response and cleanup duties pursuant to Subchapter G, Chapter 26, Water Code.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 11.267, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 3, eff. Sept. 1, 2003.
§ 40.007. GENERAL POWERS AND DUTIES. (a) The commissioner may promulgate rules necessary and convenient to the administration of this chapter. (b) The commissioner shall by rule establish procedures under Chapter 2001, Government Code for all hearings required by this chapter. The commissioner may administer oaths, receive evidence, issue subpoenas to compel attendance of witnesses and production of evidence related to hearings, and make findings of fact and decisions with respect to administering this chapter.
(c) The commissioner may contract with any public agency or private person or other entity, including entering into cooperative agreements with the federal government, acquire and dispose of real or personal property, delegate responsibility for implementing the requirements of this chapter, and perform any other act within or without the boundaries of this state necessary to administer this chapter.
(d) If the commissioner finds it necessary to enter property to conduct a vessel or terminal facility audit, inspection, or drill authorized under this chapter or to respond to an actual or threatened unauthorized discharge of oil, the commissioner may enter the property after making a reasonable effort to obtain consent to enter the property.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 40.008. RAILROAD COMMISSION AUTHORITY. The Railroad Commission of Texas shall continue to exercise its authority pursuant to Section 91.101 of this code and Section 26.131, Water Code, to issue and enforce rules, permits, and orders to prevent pollution of surface and subsurface waters in the state by activities associated with the exploration, development, or production of oil, gas, or geothermal resources, including the transportation of oil or gas by pipeline. Nothing in this chapter preempts the jurisdiction of the Railroad Commission of Texas under Subchapter E, Chapter 121, Utilities Code, and Chapter 117, Natural Resources Code, over pipeline transportation of gas and hazardous liquids and over gas and hazardous liquid pipeline facilities.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1999, 76th Leg., ch. 62, § 18.39, eff. Sept. 1, 1999.
SUBCHAPTER B. DISCHARGE RESPONSE
§ 40.051. NOTIFICATION. On notification of an actual or threatened unauthorized discharge of oil, the commissioner shall act to assess the discharge and prevent, abate, or contain any pollution from the discharge.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.052. HAZARDOUS SUBSTANCES DISCHARGES. If the unauthorized discharge involves predominantly a hazardous substance, the Texas Commission on Environmental Quality shall carry out responsibility for abatement, containment, removal, and cleanup of the hazardous substances discharged, pursuant to Subchapter G, Chapter 26, Water Code.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 11.267, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 4, eff. Sept. 1, 2003.
SUBCHAPTER C. OIL SPILL PREVENTION AND RESPONSE
§ 40.101. NOTIFICATION AND RESPONSE. (a) Any person responsible for an unauthorized discharge of oil or the person in charge of any vessel or a terminal facility from or at which an unauthorized discharge of oil has occurred, as soon as that person has knowledge of the discharge, shall:
(1) immediately notify the commissioner of the discharge; and (2) undertake all reasonable actions to abate, contain, and remove pollution from the discharge.
(b) If the persons responsible or in charge are unknown or appear to the commissioner to be unwilling or unable to abate, contain, and remove pollution from an unauthorized discharge of oil in an adequate manner, the commissioner may abate, contain, and remove pollution from the discharge and may contract with and appoint agents who shall operate under the direction of the commissioner.
(c) In order to prevent duplication of effort among state agencies, the commissioner shall utilize the expertise of the Texas Commission on Environmental Quality on technical and scientific actions, including but not limited to:
(1) taking samples in the spill area; (2) monitoring meteorological conditions that may affect spill response operations; and
(3) regulating disposal of spilled material.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 11.269, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 5, eff. Sept. 1, 2003.
§ 40.102. RESPONSE COORDINATION. (a) In responding to actual or threatened unauthorized discharges of oil, the commissioner may appoint a state-designated on-scene coordinator to act in the commissioner's place. (b) If the unauthorized discharge of oil is subject to the national contingency plan, in responding to the discharge the commissioner or the state-designated on-scene coordinator shall to the greatest extent practicable act in accordance with the national contingency plan and cooperate with the federal on-scene coordinator or other federal agency or official exercising authority under the national contingency plan.
(c) The commissioner or the state-designated on-scene coordinator may act independently to the extent no federal on-scene coordinator or authorized agency or official of the federal government has assumed federal authority to oversee, coordinate, and direct response operations.
(d) The state or federal on-scene coordinator may authorize the decanting of recovered water during containment, cleanup, and response activities resulting from an unauthorized discharge of oil.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 4, eff. Sept. 1, 1993.
§ 40.103. ASSISTANCE AND COMPENSATION. (a) Subject to the commissioner's authority under this chapter, any person or discharge cleanup organization may assist in abating, containing, or removing pollution from any unauthorized discharge of oil. This chapter does not affect any rights not inconsistent with this chapter that any such person or organization may have against any third party whose acts or omissions caused or contributed to the unauthorized discharge. (b) Any person or discharge cleanup organization that renders assistance in abating, containing, or removing pollution from any unauthorized discharge of oil may receive compensation from the fund for response costs, provided the commissioner approves compensation prior to the assistance being rendered. The commissioner, on petition and for good cause shown, may waive the prior approval prerequisite.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2003, 78th Leg., ch. 146, § 6, eff. Sept. 1, 2003.
§ 40.104. QUALIFIED IMMUNITY FOR RESPONSE ACTIONS. (a) No action taken by any person or discharge cleanup organization to abate, contain, or remove pollution from an unauthorized discharge of oil, whether such action is taken voluntarily, or pursuant to the national contingency plan, or pursuant to a discharge response plan required under this chapter, or pursuant to the request of an authorized federal or state official, or pursuant to the request of the responsible person, shall be construed as an admission of responsibility or liability for the discharge.
(b) No person or discharge cleanup organization that voluntarily, or pursuant to the national contingency plan, or pursuant to any discharge response plan required under this chapter, or pursuant to the request of an authorized federal or state official, or pursuant to the request of the responsible person, renders assistance or advice in abating, containing, or removing pollution from an unauthorized discharge of oil is liable for response costs, damages, or civil penalties resulting from acts or omissions committed in rendering such assistance or advice, except for acts or omissions of gross negligence or wilful misconduct.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2003, 78th Leg., ch. 146, § 7, eff. Sept. 1, 2003.
§ 40.105. EQUIPMENT AND PERSONNEL. The commissioner may establish and maintain equipment and trained personnel at places the commissioner determines may be necessary to facilitate response operations.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.106. REFUSAL TO COOPERATE. (a) If a responsible person, or a person or discharge cleanup organization under the control of a responsible person, participating in operations to abate, contain, and remove pollution from any unauthorized discharge of oil, reasonably believes that any directions or orders given by the commissioner or the commissioner's designee under this chapter will unreasonably endanger public safety or natural resources or conflict with directions or orders of the federal on-scene coordinator, the party may refuse to comply with the direction or orders.
(b) The party shall state at the time of refusal the reason or reasons why the party refuses to comply. The party shall give the commissioner written notice of the reason or the reasons for the refusal within 48 hours of the refusal.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.107. NATURAL RESOURCES DAMAGES. (a)(1) In any action to recover natural resources damages, the amount of damages established by the commissioner in conjunction with the trustees shall create a rebuttable presumption of the amount of such damages.
(2) The commissioner shall represent the consensus position of the trustees whenever a collective decision or agreement is required by this section.
(3) Whenever trustees cannot achieve a consensus, the commissioner may invoke mediation to settle any disputed matter related to this section. The mediation shall be immediately commenced and shall be concluded within 10 days of its commencement. The trustees shall abide by the consensus achieved through mediation.
(4) The trustees shall enter into a memorandum of agreement which describes the mediation process of Subdivision (3) of this subsection.
(b) The commissioner may establish the rebuttable presumption by submitting to the court a written report of the amounts computed or expended according to the state plan. The written report shall be admissible in evidence.
(c)(1) The commissioner, in conjunction with the trustees, shall develop an inventory that identifies and catalogs the physical locations, the seasonal variations in location, and the current condition of natural resources; provides for data collection related to coastal processes; and identifies the recreational and commercial use areas that are most likely to suffer injury from an unauthorized discharge of oil. The inventory shall be completed by September 1, 1995.
(2) The physical locations surveyed for the inventory of natural resources shall include, at a minimum, the following priority areas:
(A) the Galveston Bay system and the Houston Ship Channel; (B) the Corpus Christi Bay system; (C) the lower Laguna Madre; (D) Sabine Lake; and (E) federal and state wildlife refuge areas. (3) The current condition of selected natural resources inventoried and cataloged shall be determined by, at a minimum, a baseline sampling and analysis of current levels of constituent substances selected after considering the types of oil most frequently transported through and stored near coastal waters.
(4) The commissioner shall adopt administrative procedures and protocols for the assessment of natural resource damages from an unauthorized discharge of oil. As developed through negotiated rulemaking with the trustees and other interested parties, the procedures and protocols shall require the trustees to assess natural resource damages by considering the unique characteristics of the spill incident and the location of the natural resources affected. These procedures and protocols shall be adopted by rule, by the trustee agencies after negotiation, notice, and public comment, by June 1, 1994.
(5) The administrative procedures and protocols shall include provisions which address:
(A) notification by the commissioner to all trustees in the event of an unauthorized discharge of oil;
(B) coordination with and among trustees, spill response agencies, potentially responsible parties, experts in science and economics, and the public; and
(C) participation in all stages of the assessment process by the potentially responsible party, as consistent with trustee responsibilities.
(6) The administrative procedures and protocols shall also require the trustees to:
(A) assist the on-scene coordinator, during spill response activities and prior to the time that the state on-scene coordinator determines that the cleanup is complete, in predicting the impact of the oil and in devising the most effective methods of protection for the natural resources at risk;
(B) identify appropriate sampling and data collection techniques to efficiently determine the impact on natural resources of the unauthorized discharge of oil;
(C) initiate, within 24 hours after approval for access to the site by the on-scene coordinator, an actual field investigation which may include sampling and data collection; the protocols shall require that the responsible party and the trustees be given, on request, split samples and copies of each other's photographs utilized in assessing the impact of the unauthorized discharge of oil; and
(D) establish plans, including alternatives that are cost-effective and efficient, to satisfy the goal of restoring, rehabilitating, replacing, and/or acquiring the equivalent of the injured natural resources.
(7)(A) The administrative procedures and protocols shall also include the following types of assessment procedures and deadlines for their completion:
(i) an expedited assessment procedure which may be used in situations in which the spill has limited observable mortality and restoration activities can be speedily initiated and/or in which the quantity of oil discharged does not exceed 1,000 gallons; the purpose of utilizing the expedited assessment procedure is to allow prompt initiation of restoration, rehabilitation, replacement, and/or acquisition of an equivalent natural resource without lengthy analysis of the impact on affected natural resources; this procedure shall, at a minimum, require that the trustees consider the following items:
(aa) the quantity and quality of oil discharged; (bb) the time period during which coastal waters are affected by the oil and the physical extent of the impact;
(cc) the condition of the natural resources prior to the unauthorized discharge of oil; and
(dd) the actual costs of restoring, rehabilitating, and/or acquiring the equivalent of the injured natural resources;
(ii) a comprehensive assessment procedure for use in situations in which expedited or negotiated assessment procedures are not appropriate; and
(iii) any other assessment method agreed upon between the responsible person and the trustees, consistent with their public trust duties.
(B) The trustees shall determine, within 60 days of the determination by the on-scene coordinator that the cleanup is complete, whether:
(i) action to restore, rehabilitate, or acquire an equivalent natural resource is required;
(ii) an expedited assessment which may include early commencement of restoration, rehabilitation, replacement, and/or acquisition activities, may be required; and
(iii) a comprehensive assessment is necessary. (C) The trustees may petition the commissioner for a longer period of time to make the above determination by showing that the full impact of the discharge on the affected natural resources cannot be determined in 60 days.
(D) The trustees shall complete the comprehensive assessment procedure within 20 months of the date of the determination by the state on-scene coordinator that the cleanup is complete. The trustees may petition the commissioner for a longer period of time to complete the assessment by showing that the full impact of the discharge on the affected natural resources cannot be determined in 20 months.
(E) Any assessment generated by the trustees shall be reasonable and have a rational connection to the costs of conducting the assessment and of restoring, rehabilitating, replacing, and/or acquiring the equivalent of the injured natural resources. The trustees shall ensure that the cost of any restoration, rehabilitation, replacement, or acquisition project shall not be disproportionate to the value of the natural resource before the injury. The trustees shall utilize the most cost-effective method to achieve restoration, rehabilitation, replacement, or acquisition of an equivalent resource. Furthermore, the trustees shall take into account the quality of the actions undertaken by the responsible party in response to the spill incident, including but not limited to containment and removal actions and protection and preservation of natural resources.
(F) The potentially responsible party shall make full payment within 60 days of the completion of the assessment by the trustees or, if mediation pursuant to this paragraph is conducted, within 60 days of the conclusion of the mediation. To facilitate an expedited recovery of funds for natural resource restoration and to assist the trustees and the responsible party in the settlement of disputed natural resource damage assessments at their discretion and at any time, all disputed natural resource damage assessments shall be referred to mediation as a prerequisite to the jurisdiction of any court. Results of the mediation and any settlement offers tendered during the mediation shall be treated as settlement negotiations for the purposes of admissibility in a court of law. Either the trustees or the potentially responsible person may initiate the mediation process, after an assessment has been issued, by giving written notice to the commissioner, who shall give written notice to all parties. One mediator shall be chosen by the trustees and one mediator shall be chosen by the responsible parties. Within 45 days of the receipt of the assessment from the trustees, the mediators shall be designated. The mediation shall end 135 days after the receipt of the assessment from the trustees.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 5, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 146, § 8, 9, eff. Sept. 1, 2003.
§ 40.108. DERELICT VESSELS AND STRUCTURES. (a) A person may not, without the consent of the commissioner, leave, abandon, or maintain any structure or vessel in or on coastal waters, on public or private lands or at a public or private port or dock if the structure or vessel is in a wrecked, derelict, or substantially dismantled condition and the commissioner finds the structure or vessel to be:
(1) involved in an actual or threatened unauthorized discharge of oil; (2) a threat to public health, safety, or welfare; (3) a threat to the environment; or (4) a navigation hazard. (b) The commissioner may remove and dispose of or contract for the removal and disposal of any vessel or structure described in Subsection (a) and may recover the costs of removal and disposal from the owner or operator of the vessel or structure. The recovered costs shall be deposited to the credit of the coastal protection fund established by Section 40.151.
(c) The commissioner must comply with the requirements of Section 40.254 before removing or disposing of a vessel or structure, except that the commissioner may remove a vessel or structure involved in an actual or threatened unauthorized discharge of oil without a hearing.
(d) The commissioner may dispose of the vessel or structure in any reasonable and environmentally sound manner. The commissioner shall give preference to disposal options that generate a monetary benefit from the vessel or structure. If no value may be generated from the vessel or structure, the commissioner shall select the least costly method. Proceeds from the sale of the vessel or structure shall be used for removal and disposal costs, and any proceeds in excess of the cost of removal and disposal shall be deposited to the credit of the coastal protection fund.
(e) The commissioner by rule may establish a system for prioritizing the removal or disposal of vessels or structures under this section.
(f) This section does not impose a duty on the state to remove or dispose of a vessel or structure or to warn of a hazardous condition on state land.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2005, 79th Leg., ch. 216, § 1, eff. Sept. 1, 2005.
§ 40.109. REGISTRATION OF TERMINAL FACILITIES. (a) A person may not operate or cause to be operated a terminal facility without a discharge prevention and response certificate issued pursuant to rules promulgated under this chapter.
(b)(1) As a condition precedent to the issuance or renewal of a certificate, the commissioner shall require satisfactory evidence that:
(A) the applicant has implemented a discharge prevention and response plan consistent with state and federal plans and regulations for prevention of unauthorized discharges of oil and abatement, containment, and removal of pollution when such discharge occurs; and
(B) the applicant can provide, directly or through membership or contract with a discharge cleanup organization, all required equipment and trained personnel to prevent, abate, contain, and remove pollution from an unauthorized discharge of oil as provided in the plan.
(2) A terminal facility response plan that complies with requirements under federal law and regulations for a terminal facility response plan satisfies the requirements of Subdivision (1)(A) of this subsection.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.110. GENERAL TERMS. (a) Discharge prevention and response certificates are valid for a period of five years. The commissioner by rule shall require each registrant to report annually on the status of its discharge prevention and response plan and response capability. (b) The commissioner may review a certificate at any time there is a material change affecting the terminal facility's discharge prevention and response plan or response capability.
(c) Certificates shall be issued subject to such terms and conditions as the commissioner may determine are reasonably necessary to carry out the purposes of this chapter.
(d) Certificates issued to any terminal facility shall take into account the vessels used to transport oil to or from the facility.
(e) The commissioner by rule shall establish and require payment of a reasonable fee for processing applications for certificates. This fee is in addition to the fee levied under Section 40.154 of this code and must be reasonably related to the administrative costs of verifying data submitted pursuant to obtaining the certificates and reasonable inspections.
(f) Repealed by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1, 2003.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1, 2003.
§ 40.111. INFORMATION. Each applicant for a discharge prevention and response certificate shall submit information, in a form satisfactory to the commissioner, describing the following:
(1) the barrel or other measurement capacity of the terminal facility; (2) the dimensions and barrel capacity of the largest vessel docking at or providing service from the terminal facility;
(3) the storage and transfer capacities and average daily throughput of the terminal facility;
(4) the types of oil stored, handled, or transferred at the terminal facility;
(5) information related to implementation of the applicant's discharge prevention and response plan, including:
(A) all response equipment such as vehicles, vessels, pumps, skimmers, booms, bioremediation supplies and application devices, dispersants, chemicals, and communication devices to which the terminal facility has access, as well as the estimated time required to deploy the equipment after an unauthorized discharge of oil;
(B) the trained personnel that are required and available to deploy and operate the response equipment, as well as the estimated time required to deploy the personnel after an unauthorized discharge of oil;
(C) the measures employed to prevent unauthorized discharges of oil; and (D) the terms of agreement and operation plan of any discharge cleanup organization to which the owner or operator of the terminal facility belongs;
(6) the source, nature of, and conditions of financial responsibility for response costs and damages; and
(7) any other information necessary or appropriate to the review of a registrant's discharge prevention and response capabilities.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.112. ISSUANCE. On compliance with Sections 40.109 through 40.111 of this code and on payment of the certificate application fee, the commissioner shall issue the applicant a discharge prevention and response certificate covering the terminal facility.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.113. SUSPENSION. If the commissioner determines that a registrant does not have a discharge prevention and response plan or that the registrant's preventive measures or containment and cleanup capabilities are inadequate, the commissioner may, after notice and hearing as provided in Section 40.254 of this code, suspend the registrant's certificate until such time as the registrant complies with the requirements of this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.114. CONTINGENCY PLANS FOR VESSELS. (a) Any vessel with a capacity to carry 10,000 gallons or more of oil as fuel or cargo that operates in coastal waters or waters adjoining and accessible from coastal waters shall maintain a written vessel-specific discharge prevention and response plan that satisfies the requirements of rules promulgated under this chapter. This section shall not apply to any dedicated response vessel or to any other vessel for activities within state waters related solely to the containment and cleanup of oil, including response-related training or drills.
(b) The plan must: (1) provide for response actions including notification to the commissioner, verification of the unauthorized discharge, identification of the pollutant, assessment of the discharge, vessel stabilization, and discharge abatement and mitigation;
(2) designate an on-board spill officer who satisfies the definition of trained personnel as provided by Section 40.003 of this code and who shall train the vessel's crew to conduct unauthorized discharge response operations according to the plan and shall coordinate on-board response operations in the event of an unauthorized discharge; and
(3) contain any other provision the commissioner reasonably requires by rule.
(c) A discharge prevention and response plan that complies with requirements under federal laws and regulations for a vessel-specific plan satisfies the requirements of Subsections (a) and (b) of this section.
(d) The owner or operator of a vessel subject to this section must be able to provide, directly or through membership or contract with a discharge cleanup organization, all required equipment and trained personnel to prevent, abate, contain, and remove pollution from an unauthorized discharge of oil as provided in the plan.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 6, eff. Sept. 1, 1993.
§ 40.116. AUDITS, INSPECTIONS, AND DRILLS. The commissioner may subject a vessel subject to Section 40.114 of this code or a terminal facility to an announced or unannounced audit, inspection, or drill to determine the discharge prevention and response capabilities of the terminal facility or vessels. Any vessel drill conducted by the commissioner shall be in cooperation and conjunction with the United States Coast Guard, and the commissioner's participation may not interfere with the schedule of the vessel.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2003, 78th Leg., ch. 146, § 10, eff. Sept. 1, 2003.
§ 40.117. REGULATIONS. (a) The commissioner shall from time to time adopt, amend, repeal, and enforce reasonable regulations, including but not limited to those relating to the following matters regarding the unauthorized discharge of oil:
(1) standards and requirements for discharge prevention and response capabilities of terminal facilities and vessels;
(2) standards, procedures, and methods of designating persons in charge and reporting unauthorized discharges and violations of this chapter;
(3) standards, procedures, methods, means, and equipment to be used in the abatement, containment, and removal of pollution;
(4) development and implementation of criteria and plans of response to unauthorized discharges of various degrees and kinds, including realistic worst-case scenarios;
(5) requirements for complete and thorough inspections of vessels subject to Section 40.114 of this code and of terminal facilities;
(6) certification of discharge cleanup organizations; (7) requirements for the safety and operation of vessels, motor vehicles, motorized equipment, and other equipment involved in the transfer of oil at terminal facilities and the approach and departure from terminal facilities;
(8) requirements that required containment equipment be on hand, maintained, and deployed by trained personnel;
(9) requirements for certification as trained personnel; (10) standards for reporting material changes in discharge prevention and response plans and response capability for purposes of terminal facility certificate reviews; and
(11) such other rules and regulations consistent with this chapter and appropriate or necessary to carry out the intent of this chapter.
(b) Repealed by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1, 2003.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1, 2003.
SUBCHAPTER D. PAYMENT OF COSTS AND DAMAGES
§ 40.151. COASTAL PROTECTION FUND. (a) The purpose of this subchapter is to provide immediately available funds for response to all unauthorized discharges, for cleanup of pollution from unauthorized discharges of oil, for payment of damages from unauthorized discharges of oil, and for erosion response projects.
(b) The coastal protection fund is established in the state treasury to be used by the commissioner as a nonlapsing revolving fund only for carrying out the purposes of this chapter and of Subchapter H, Chapter 33. To this fund shall be credited all fees, penalties, judgments, reimbursements, proceeds from the sale of a vessel or structure removed under Section 40.108, money forfeited under Section 77.119(e), Parks and Wildlife Code, interest or income on the fund, and charges provided for in this chapter and the fee revenues levied, collected, and credited pursuant to this chapter. The fund shall not exceed $50 million.
(c) The commissioner may accept grants, gifts, and donations of property, including real property, on behalf of the fund. The commissioner may sell real or personal property accepted on behalf of the fund and shall deposit the proceeds of the sale in the fund.
(d) Any interest in real or personal property acquired by donation, gift, or grant or by using money in the fund shall be held by the commissioner.
(e) Repealed by Acts 2003, 78th Leg., ch. 146, § 16, eff. Sept. 1, 2003.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.055, eff. Aug. 12, 1991; Acts 1995, 74th Leg., ch. 1058, § 14(a), eff. Aug. 28, 1995; Acts 1999, 76th Leg., ch. 508, § 6, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 146, § 11, 16, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 216, § 2, eff. Sept. 1, 2005.
§ 40.152. USE OF FUND. (a) Money in the fund may be disbursed for the following purposes and no others:
(1) administrative expenses, personnel and training expenses, and equipment maintenance and operating costs related to implementation and enforcement of this chapter;
(2) response costs related to abatement and containment of actual or threatened unauthorized discharges of oil incidental to unauthorized discharges of hazardous substances;
(3) response costs and damages related to actual or threatened unauthorized discharges of oil;
(4) assessment, restoration, rehabilitation, or replacement of or mitigation of damage to natural resources damaged by an unauthorized discharge of oil;
(5) in an amount not to exceed $50,000 annually, the small spill education program;
(6) in an amount not to exceed $1,250,000 annually, interagency contracts under Section 40.302;
(7) the purchase of response equipment under Section 40.105 within two years of the effective date of this chapter, in an amount not to exceed $4 million; thereafter, for the purchase of equipment to replace equipment that is worn or obsolete;
(8) other costs and damages authorized by this chapter; (9) in an amount not to exceed the interest accruing to the fund annually, erosion response projects under Subchapter H, Chapter 33; and
(10) in conjunction with the Railroad Commission of Texas, costs related to the plugging of abandoned or orphaned oil wells located on state-owned submerged lands.
(b) There is hereby appropriated from the fund to the General Land Office, subject to this section, the amounts specified for the purposes of Subdivisions (5) and (6) of Subsection (a) of this section, $2.5 million for administrative costs under this chapter for the two-year period beginning with the effective date of this chapter, and the actual amounts necessary to pay response costs and damages as provided in this chapter.
(c) Notwithstanding Subsection (a)(9) and the other provisions of this subchapter, the legislature may appropriate to the General Land Office for implementation of the coastal management program under Subchapter F, Chapter 33, and for erosion response projects under Subchapter H, Chapter 33, money from the fund in an amount that exceeds the amount of interest accruing to the fund annually. This subsection expires September 1, 2007.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 7, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 508, § 7, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 146, § 12, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 899, § 15.01, eff. Aug. 29, 2005.
§ 40.153. REIMBURSEMENT OF FUND. The commissioner shall recover to the use of the fund, either from persons responsible for the unauthorized discharge or otherwise liable or from the federal fund, jointly and severally, all sums owed to or expended from the fund. This section does not apply to sums expended under Section 40.152(a)(9).
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1999, 76th Leg., ch. 508, § 8, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 728, § 14.006(a), eff. Sept. 1, 2005.
§ 40.154. COASTAL PROTECTION FEE; ADMINISTRATIVE COSTS. (a) There is hereby imposed a fee on every person owning crude oil in a vessel at the time such crude oil is transferred to or from a marine terminal. This fee is in addition to all taxes or other fees levied on crude oil. (b) The operator of the marine terminal shall collect the fee from the owner of the crude oil and remit the fee to the comptroller unless the owner of the crude oil is registered with the comptroller for remittance of the fee. The fee shall be imposed only once on the same crude oil. The fee shall be paid monthly by the last day of the month following the calendar month in which liability for the fee is incurred.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.155. DETERMINATION OF FEE. (a) Except as otherwise provided in this section, the rate of the fee shall be 1-1/3 cents per barrel of crude oil until the commissioner certifies that the unencumbered balance in the fund has reached $20 million. The commissioner shall certify to the comptroller the date on which the unencumbered balance in the fund exceeds $20 million. The fee shall not be collected or required to be paid on or after the first day of the second month following the commissioner's certification to the comptroller that the unencumbered balance in the fund exceeds $20 million.
(b) If the unencumbered balance in the fund falls below $10 million, the commissioner shall certify such fact to the comptroller. On receiving the commissioner's certification, the comptroller shall resume collecting the fee until suspended in the manner provided in Subsection (a) of this section.
(c) Notwithstanding the provisions of Subsection (a) or (b) of this section, the fee shall be levied at the rate of four cents per barrel if the commissioner certifies to the comptroller a written finding of the following facts:
(1) the unencumbered balance in the fund is less than $20 million; (2) an unauthorized discharge of oil in excess of 100,000 gallons has occurred within the previous 30 days; and
(3) expenditures from the fund for response costs and damages are expected to deplete the fund substantially.
(d) In the event of a certification to the comptroller under Subsection (c) of this section, the comptroller shall collect the fee at the rate of four cents per barrel until the unencumbered balance in the fund reaches $20 million or any lesser amount that the commissioner determines is necessary to pay response costs and damages without substantially depleting the fund. The commissioner shall certify to the comptroller the date on which the unencumbered balance in the fund exceeds $20 million or such other lesser amount. The fee shall not be collected or required to be paid on or after the first day of the second month following the commissioner's certification to the comptroller.
(e) For purposes of this section, the unencumbered balance of the fund shall be determined by the unencumbered cash balance of the fund at the end of each month or on the date of a finding under Subsection (c) of this section.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 1058, § 15, eff. Aug. 30, 1995; Acts 2005, 79th Leg., ch. 899, § 15.02, eff. Aug. 29, 2005.
§ 40.156. ADMINISTRATION OF FEE. (a) The comptroller shall administer the provisions of this section as provided in Chapters 101 through 113 of the Tax Code.
(b) In the event the commissioner makes a finding under Section 40.155(c) of this code, the commissioner shall publish the finding in the Texas Register. In the event of any suspension or other reinstatement of the fee, the comptroller shall publish the suspension or reinstatement in the Texas Register at least 30 days prior to the scheduled effective date of the suspension or reinstatement.
(c) In the event of an emergency, the comptroller shall reinstate the fee in accordance with rules promulgated for that purpose.
(d) The fee levied under this section shall be due and collected beginning 60 days after the effective date of this chapter. Contingent upon receipt by the comptroller of such fees, the commissioner may temporarily use general revenue funds, in an amount not to exceed estimated revenues to the coastal protection fund in the fiscal year in which revenues are collected. The general revenue amounts used shall be repaid out of the first fees collected under this chapter, and may be used only for purposes of meeting temporary cash flow needs during the fiscal year. The transfer and repayment of these funds shall be completed by the end of each fiscal year under procedures and standards established by the comptroller.
(e) If refunds are determined to be due, they shall be paid only from the fund.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.157. LIABILITY OF THE FUND. (a) Persons who incur response costs or who are entitled to damages as a result of an unauthorized discharge of oil may receive compensation from the fund.
(b) Any person other than the state seeking compensation from the fund must file a claim with the commissioner. The claimant must provide the commissioner with satisfactory proof of the costs incurred or damages claimed. Each claimant shall make a sworn verification of the claim.
(c) The commissioner shall prescribe appropriate forms and requirements and by rule shall establish procedures for filing claims for compensation from the fund and for response cost reimbursements to other state agencies from the fund.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.158. EXCEPTIONS TO LIABILITY. (a) Except as provided by Subsection (b) of this section, the fund is absolutely liable for:
(1) all proven, reasonable response costs approved by the commissioner under Section 40.103 of this code from an unauthorized discharge of oil;
(2) all natural resources damages from an unauthorized discharge of oil; and
(3) with the exception of those damages proportionately attributable to the negligence or wilful misconduct of the claimant, all other proven damages from the fund from an unauthorized discharge of oil.
(b) A person liable for an unauthorized discharge of a hazardous substance may not file a claim or be reimbursed from the fund for the unauthorized discharge of a hazardous substance. A person responsible for an unauthorized discharge of oil may not file a claim or be reimbursed from the fund except:
(1) if the person responsible is entitled to a defense to liability under Section 40.204 of this code, a claim for response costs and damages may be filed; or
(2) if the person responsible is entitled to a limitation of liability under Section 40.202 of this code, a claim for response costs and damages to the extent that they exceed the applicable limitation may be filed.
(c) No claim may be approved or certified during the pendency of any action by the claimant in court to recover response costs or damages that are the subject of the claim.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.159. CLAIMS FROM DISCHARGES OF OIL. (a)(1) On determining that damage from an unauthorized discharge of oil is likely to occur or has occurred and will result in the filing of claims, the commissioner shall immediately designate the person or persons responsible who, if the designation is not challenged within five days of notice thereof, shall immediately and widely advertise the manner in which the person will accept claims.
(2) If the designation is challenged or the commissioner is otherwise unable to designate a responsible person, the commissioner shall immediately and widely advertise the manner in which the commissioner shall accept claims.
(b)(1) A claimant shall submit any claim exceeding $50,000 to the designated responsible person. If there is no reasonable response from the designated responsible person within 90 days or in the absence of a designated responsible person as provided under Subsection (a)(2) of this section, the claimant shall submit the claim to the federal fund. If there is no reasonable response from the federal fund within 60 days, the claimant may submit the claim to the fund.
(2) A claimant shall submit any claim less than or equal to $50,000 to the designated responsible person. If there is no reasonable response from the designated responsible person within 30 days or in the absence of a designated responsible person as provided under Subsection (a)(2) of this section, the claimant may submit the claim to the fund.
(c) Claims must be submitted to the fund by filing with the commissioner not later than 180 days after the periods prescribed in Subsection (b) of this section. Claims not filed within the time allowed are barred as against the fund.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.160. PAYMENT OF AWARDS. (a) The commissioner shall establish the amount of the award. If the claimant accepts the award, the commissioner shall certify the amount of the award and the name of the claimant to the comptroller, who shall pay the award from the fund, subject to Section 40.162 of this code.
(b) If either the claimant or the person or persons determined by the commissioner to be responsible for the unauthorized discharge of oil disagrees with the amount of the award, such person may request a hearing. The commissioner shall hold a hearing and issue an order setting the amount of the award.
(c) Each person's claims arising from a single discharge must be stated in one application. Costs or damages omitted from any claim at the time a claimant accepts an award are waived. The commissioner may make partial final awards toward a single claim.
(d) If a person accepts an award from the fund, it shall bind both the claimant and the commissioner as to all issues covered by the award and may not be further attacked, collaterally or by separate action. The commissioner shall be subrogated to all rights or causes of action of the claimant arising from the unauthorized discharge and covered by the award. The claimant shall have no further cause of action against the person responsible for the discharge.
(e) Claims proceedings under this chapter are not contested cases under Chapter 2001, Government Code and judicial review of such proceedings is not available under that Act.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 40.161. REIMBURSEMENT OF FUND. (a) The commissioner shall diligently pursue reimbursement to the fund of any sum expended or paid from the fund. (b) In any action to recover such sums, the commissioner shall submit to the court a written report of the amounts paid from or owed by the fund. The amounts paid from or owed by the fund stated in the report shall create a rebuttable presumption of the amount of the fund's damages. The written report shall be admissible in evidence.
(c) This section does not apply to a sum expended under Section 40.152(a)(9).
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1999, 76th Leg., ch. 508, § 9, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 728, § 14.006(b), eff. Sept. 1, 2005.
§ 40.162. AWARDS EXCEEDING FUND. (a) If the total awards against the fund exceed the existing balance of the fund, the claimant or claimants shall be paid from the future income of the fund. Each claimant or claimants shall receive a pro rata share of all money available in the fund until the total amount of awards is paid.
(b) The commissioner by rule may make exceptions to Subsection (a) of this section in cases of hardship. Amounts collected by the fund from the prosecution of actions shall be used to satisfy the claims as to which such prosecutions relate to the extent unsatisfied.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
SUBCHAPTER E. LIABILITY OF PERSONS RESPONSIBLE
§ 40.201. FINANCIAL RESPONSIBILITY. (a) Each owner or operator of a vessel subject to Section 40.114 of this code and operating within coastal waters or waters adjoining and accessible from coastal waters or any terminal facility subject to this code shall establish and maintain evidence of financial responsibility for costs and damages from unauthorized discharges of oil pursuant to federal law or in any other manner provided in this chapter.
(b) If a vessel subject to Section 40.114 of this code or a terminal facility is not required under federal law to establish and maintain evidence of financial responsibility, the owner or operator of that vessel or terminal facility shall establish and maintain evidence in an amount and form prescribed by rules promulgated under this code.
(c) Any owner or operator of a vessel that is a member of any protection and indemnity mutual organization, which is a member of the international group, any other owner or operator that is an assured of the Water Quality Insurance Syndicate, or an insured of any other organization approved by the commissioner, and which is covered for oil pollution risks up to the amounts required by federal law is in compliance with the financial responsibility requirements of this chapter. The commissioner shall specifically designate the organizations and the terms under which owners and operators of vessels shall demonstrate financial responsibility.
(d) After an unauthorized discharge of oil, a vessel shall remain in the jurisdiction of the commissioner until the owner, operator, or person in charge has shown the commissioner evidence of financial responsibility. The commissioner may not detain the vessel longer than 12 hours after the vessel has proven financial responsibility.
(e) In addition to any other remedy or enforcement provision, the commissioner may suspend a registrant's discharge prevention and response certificate or may deny a vessel entry into any port in coastal waters for failure to comply with this section.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 8, eff. Sept. 1, 1993.
§ 40.202. RESPONSE COSTS AND DAMAGES LIABILITY. (a) Subject to Subsection (c) of this section, any person responsible for an actual or threatened unauthorized discharge of oil from a vessel is liable for:
(1) all response costs from the actual or threatened discharge to an amount not to exceed $1 million for vessels of 300 gross tons or less that do not carry oil as cargo, to an amount not to exceed $5 million for vessels of 8,000 gross tons or less or, for vessels greater than 8,000 gross tons, to an amount equal to $600 per gross ton of such vessel, not to exceed the aggregate amount of the fund established under Section 40.151(b) of this code; and
(2) in addition to response costs, all damages other than natural resources damages from the actual or threatened discharge to an amount not to exceed $1 million for vessels of 300 gross tons or less that do not carry oil as cargo, to an amount not to exceed $5 million for vessels of 8,000 gross tons or less or, for vessels greater than 8,000 gross tons, to an amount equal to $600 per gross ton of such vessel, not to exceed the aggregate amount of the fund established under Section 40.151(b) of this code.
(b) Subject to Subsection (c) of this section, any person responsible for an actual or threatened unauthorized discharge of oil from a terminal facility is liable for:
(1) all response costs from the actual or threatened discharge to an amount not to exceed $5 million, except any person responsible for an actual or threatened unauthorized discharge of oil from an offshore drilling or production facility is liable for all response costs from the actual or threatened discharge; and
(2) in addition to response costs, all damages other than natural resources damages from the actual or threatened discharge to an amount not to exceed the aggregate amount of the fund established under Section 40.151(b) of this code, except any person responsible for an actual or threatened unauthorized discharge of oil from an offshore drilling or production facility is liable for all such damages from the actual or threatened discharge.
(c)(1) If any actual or threatened unauthorized discharge of oil was the result of gross negligence or wilful misconduct, the person responsible for such gross negligence or wilful misconduct is liable for the full amount of all response costs and damages.
(2) "Wilful misconduct" under this chapter includes intentional violation of state, federal, or local safety, construction, or operating standards or requirements, including the requirements of this chapter.
(3) If an actual or threatened unauthorized discharge of oil is not eligible for expenditures from the federal fund, the person responsible is liable for the full amount of all response costs and damages incurred by the fund.
(4) If the responsible person unreasonably fails to cooperate with discharge response and cleanup operations as provided in Section 40.106 of this code, the responsible person is liable for the full amount of all response costs and damages.
(d) Liability limits established under this section are exclusive of interest or attorney fees to which the state is entitled to recover under this code.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.203. LIABILITY FOR NATURAL RESOURCES DAMAGES. (a) The commissioner, on behalf of the trustees, shall seek reimbursement from the federal fund for damages to natural resources in excess of the liability limits prescribed in Section 40.202 of this code. If that request is denied or additional money is required following receipt of the federal money, the commissioner has the authority to pay the requested reimbursement from the fund for a period of two years from the date the federal fund grants or denies the request for reimbursement.
(b) In addition to liability under Section 40.202 of this code, persons responsible for actual or threatened unauthorized discharges of oil are liable for natural resources damages attributable to the discharge.
(c) The total liability for all natural resource damages of any person responsible for an actual or threatened unauthorized discharge of oil from a vessel shall not exceed the following:
(1) for a vessel that carries oil in bulk, as cargo, the greater of: (A) $1,200 per gross ton; or (B)(i) in the case of a vessel greater than 3,000 gross tons, $10 million; or
(ii) in the case of a vessel of 3,000 gross tons or less, $2 million; or
(2) for any other vessel, $600 per gross ton or $500,000, whichever is greater.
(d) The total liability for all natural resource damages of any person responsible for an actual or threatened unauthorized discharge of oil from a terminal facility shall not exceed the following:
(1) for each terminal facility with a capacity: (A) above 150,000 barrels, $70 per barrel not to exceed $350,000,000; (B) from 70,001 to 150,000 barrels, $10,000,000; (C) from 30,001 to 70,000 barrels, $5,000,000; (D) from 10,000 to 30,000 barrels, $2,000,000; (2) for any other terminal, $500,000. (e) The commissioner shall ensure that there will be no double recovery of damages or response costs.
(f) If any actual or threatened unauthorized discharge of oil was the result of gross negligence or wilful misconduct or a violation of any applicable federal or state safety, construction, or operating regulation, the person responsible for such gross negligence or wilful misconduct or a violation of any applicable federal or state safety, construction, or operating regulation is liable for the full amount of all damages to natural resources.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 9, eff. Sept. 1, 1993.
§ 40.204. DEFENSES. The only defense of a person responsible for an actual or threatened unauthorized discharge of oil shall be to plead and prove that the discharge resulted solely from any of the following or any combination of the following:
(1) an act of war or terrorism; (2) an act of government, either state, federal, or local; (3) an unforeseeable occurrence exclusively occasioned by the violence of nature without the interference of any human act or omission; or
(4) the wilful misconduct or a negligent act or omission of a third party, other than an employee or agent of the person responsible or a third party whose conduct occurs in connection with a contractual relationship with the responsible person, unless the responsible person failed to exercise due care and take precautions against foreseeable conduct of the third party.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.205. THIRD PARTIES. If a responsible person alleges a defense under Section 40.204(4) of this code, the responsible person shall pay all response costs and damages. The responsible person shall be subrogated to any rights or cause of action belonging to those to whom such payment is made.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
SUBCHAPTER F. ENFORCEMENT
§ 40.251. PENALTIES. (a) A person who intentionally commits any of the following acts in violation of Subchapter C, D, or E shall be guilty of a Class A misdemeanor:
(1) operating a terminal facility or vessel without a discharge prevention and response plan;
(2) operating a terminal facility or vessel without establishing and maintaining financial responsibility;
(3) causing, allowing, or permitting an unauthorized discharge of oil; (4) making a material false statement with a fraudulent intent in an application or report;
(5) with respect to the person in charge of a vessel from which an unauthorized discharge of oil emanates, taking the vessel from the jurisdiction of the commissioner prior to proving financial responsibility; or
(6) leaving, abandoning, or maintaining any structure or vessel in or on coastal waters, on public or private lands, or at a public or private port or dock if the structure or vessel is in a wrecked, derelict, or substantially dismantled condition.
(b) A person responsible for an unauthorized discharge of oil or the person in charge of any vessel or terminal facility from or at which an unauthorized discharge of oil emanates, who knows or has reason to know of the discharge and who fails to give immediate notification of the discharge to the commissioner, shall be:
(1) subject to a civil penalty of not less than $500 nor more than $250,000 for an individual or $500,000 for a corporation, partnership, association, or other entity; and
(2) guilty of a Class A misdemeanor. (c) A person responsible for an unauthorized discharge of oil shall be subject to a civil penalty of not less than $250 nor more than $25,000 for each day of the discharge, or not more than $1,000 per barrel of oil discharged.
(d) A person responsible for an unauthorized discharge of oil who without sufficient cause fails to abate, contain, and remove pollution from the discharge pursuant to applicable federal and state requirements and plans shall be liable for a civil penalty of not more than $25,000 for each day the pollution is not abated, contained, and removed, or not more than three times the costs incurred by the fund as a result of the discharge.
(e) A person who with a fraudulent intent makes or causes to be made any material false statement in filing a claim or reporting any information concerning an actual or threatened unauthorized discharge of oil in response to the requirements of this chapter shall be guilty of a third degree felony.
(f) A person who violates any provision, rule, or order issued under Subchapter C, D, or E of this chapter shall be subject to a civil penalty of not less than $100 nor more than $10,000 per violation for each day of violation, not to exceed a maximum of $125,000.
(g) It is a defense to prosecution for a criminal offense under Subchapter C, D, or E of this chapter that the conduct complained of was committed pursuant to response or cleanup operations and was authorized by the national contingency plan or the state coastal discharge contingency plan, by a discharge response plan required under this chapter, or by an authorized federal or state official.
(h) The defenses to liability under Section 40.204 of this code shall be defenses to the assessment of penalties under this chapter for any unauthorized discharge of oil.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2005, 79th Leg., ch. 216, § 3, eff. Sept. 1, 2005.
§ 40.252. ADMINISTRATIVE PENALTIES. The commissioner may assess administrative penalties for the violations and in the amounts established in Section 40.251 of this code. In determining the amount of penalties, the commissioner shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or damage caused thereby;
(2) the degree of cooperation and quality of response; (3) the degree of culpability and history of previous violations by the person subject to the penalty;
(4) the amount necessary to deter future violations; and (5) any other matter that justice requires.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.253. CUMULATIVE ENFORCEMENT. This subchapter is cumulative of all other applicable penalties, remedies, and enforcement and liability provisions.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.254. ORDERS AND HEARINGS. (a) The commissioner shall assess administrative penalties, pursue suspension of terminal facility discharge prevention and response certificates, and pursue the removal or disposal of derelict structures or vessels in accordance with this section.
(b) The commissioner shall issue a preliminary report if the commissioner, after an investigation, concludes that:
(1) a violation has occurred for which: (A) a penalty should be assessed; or (B) a discharge prevention and response certificate should be suspended; or
(2) there is a need for removal or disposal of a derelict vessel or structure.
(b-1) The preliminary report must: (1) state the facts that support the commissioner's conclusion; (2) recommend: (A) that a penalty be imposed; (B) that a certificate be suspended; (C) that a derelict vessel or structure be removed or disposed of; or (D) any combination of remedies under Paragraphs (A)-(C); and (3) if a penalty under Subdivision (2)(A) is recommended, recommend the amount of the penalty.
(c) The commissioner shall serve written notice of the preliminary report to the person charged with the violation not later than the 10th day after the date on which the report is issued. The notice must include:
(1) a brief summary of the findings; (2) a statement of the commissioner's recommendations; (3) a statement of the right of the person charged with the violation to a hearing; and
(4) a copy of the preliminary report. (c-1) The notice required by Subsection (c) must be given: (1) by service in person or by registered or certified mail, return receipt requested; or
(2) if personal service cannot be obtained or the address of the person is unknown, by posting a copy of the notice on the facility, vessel, or structure and by publishing notice in a newspaper with general circulation in the county in which the facility, vessel, or structure is located at least two times within 10 consecutive days.
(d) Not later than the 20th day after the date on which the notice is served, the person charged with the violation may consent in writing to the report, including the commissioner's recommendations, or make a written request for a hearing.
(e)(1) If the person charged with the violation consents to the commissioner's recommendations or does not timely respond to the notice, the commissioner by order shall take the recommended action or order a hearing to be held on the findings and recommendations in the report.
(2) If the commissioner takes the recommended action, the commissioner shall serve written notice of the decision to the person. The person must comply with the order and pay any penalty assessed.
(f)(1) If the person charged with the violation requests a hearing, the commissioner shall order a hearing and shall give written notice of that hearing.
(2) The hearing shall be held by a hearing examiner designated by the commissioner.
(3) The hearing examiner shall make findings of fact and promptly issue to the commissioner a written decision as to the occurrence of the violation and a recommendation on suspension of the discharge prevention and response certificate, the amount of any proposed penalty, the removal or disposal of the derelict vessel or structure, or any combination of those remedies.
(4) Based on the findings of fact and the recommendations of the hearing examiner, the commissioner by order may:
(A) find that a violation has occurred and assess a penalty; (B) suspend a discharge prevention and response certificate; (C) order the removal or disposal of a derelict vessel or structure; (D) order any combination of those remedies; or (E) find that no violation occurred. (5) The commissioner shall serve notice to the person of the commissioner's decision. If the commissioner finds that a violation has occurred and assesses a penalty, suspends a discharge prevention and response certificate, or orders the removal or disposal of a derelict vessel or structure, the commissioner shall give to the person written notice of:
(A) the commissioner's findings; (B) the amount of the penalty or the terms of the suspension or removal or disposal; and
(C) the person's right to judicial review of the commissioner's order. (g)(1) Not later than the 30th day after the date on which the commissioner's order is final, the person charged with the violation shall comply with the order or file a petition for judicial review.
(2) On failure of the person to comply with the order or file a petition for judicial review, the commissioner may refer the matter to the attorney general for collection and enforcement.
(3) Judicial review of the order or decision of the commissioner shall be under Subchapter G, Chapter 2001, Government Code.
(h)(1) If a penalty is reduced or not assessed, the commissioner shall remit to the person charged with the violation the appropriate amount of any penalty payment plus accrued interest.
(2) Accrued interest on amounts remitted by the commissioner shall be paid for the period beginning on the date the penalty is paid to the commissioner and ending on the date the penalty is remitted at a rate equal to the rate charged on loans to depository institutions by the New York Federal Reserve Bank.
(i) Payment of an administrative penalty under this section shall preclude, in any action brought under this chapter, collection of a civil penalty for the violation specified in the commissioner's order.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(53), eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 146, § 13, 14, 16, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 216, § 4, eff. Sept. 1, 2005.
§ 40.255. ACTIONS. (a) The commissioner may seek injunctive relief to prevent a violation of this chapter from continuing or occurring.
(b) All actions on behalf of the state to enforce this chapter or recover civil penalties, unpaid administrative penalties, claims of the fund, response costs, and damages arising under this chapter shall be brought by the attorney general at the direction of the commissioner. In any such action in which the state prevails, the state shall be entitled to recover reasonable attorney fees.
(c) Repealed by Acts 1993, 73rd Leg., ch. 776, § 10, eff. Sept. 1, 1993. (d) Each owner or operator of a terminal facility or vessel subject to the provisions of this chapter shall designate a person in the state as his legal agent for service of process, and such designation shall be filed with the secretary of state. In the absence of such designation, the secretary of state shall be the designated agent for purposes of service of process under this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, § 10, eff. Sept. 1, 1993.
§ 40.256. INDIVIDUAL CAUSE OF ACTION. The remedies in this chapter are cumulative and not exclusive. This chapter does not require pursuit of any claim against the fund as a condition precedent to any other remedy, nor does this chapter prohibit any person from bringing an action at common law or under any other law not inconsistent with this chapter for response costs or damages resulting from a discharge or other condition of pollution covered by this chapter. No such action shall collaterally estop or bar the commissioner in any action brought by the commissioner under this chapter.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.257. VENUE. (a) Venue for all actions and prosecution of all offenses under this chapter may be brought in Travis County or in any county where the violation of this chapter that is the subject of the action or prosecution occurred.
(b) All appeals from administrative proceedings under this chapter shall be filed in a district court of Travis County, Texas, pursuant to Chapter 2001, Government Code.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 40.258. FEDERAL LAW. (a)(1) The commissioner shall promulgate rules that, to the greatest extent practicable, conform to the national contingency plan and rules promulgated under federal law.
(2) The commissioner may impose requirements under such rules that are in addition to or vary materially from federal requirements if the state interests served by the requirements substantially outweigh the burdens imposed on those subject to the requirements.
(3) Any request for judicial review of any rule must be filed in a district court in Travis County within 90 days of the effective date of the rule or plan challenged.
(4) Any matter subject to judicial review under Subdivisions (1) through (3) of this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or for recovery of response costs or damages.
(b) In implementing this chapter, the commissioner to the greatest extent practicable shall employ federal funds unless federal funds will not be available in an adequate period of time.
(c) All federal funds received by the state relating to response to unauthorized discharges of oil under this chapter shall be deposited in the fund.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991. Amended by Acts 2003, 78th Leg., ch. 146, § 15, eff. Sept. 1, 2003.
SUBCHAPTER G. MISCELLANEOUS PROVISIONS
§ 40.301. INTERSTATE COMPACTS. The commissioner may enter into compacts or agreements with other states consistent with and to further the purposes of this chapter. The commissioner may also participate in initiatives to develop multistate and international standards and cooperation on unauthorized discharge prevention and response.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.302. INSTITUTIONS OF HIGHER EDUCATION. The commissioner by interagency contract shall enter into agreements with state institutions of higher education for research, testing, and development of oil discharge prevention and response technology, oil discharge response training, wildlife and natural resources rescue and rehabilitation, development of computer models to predict the movements and impacts of unauthorized discharges of oil, and other purposes consistent with and in furtherance of the purposes of this chapter. Contracts or agreements relating to wildlife and aquatic resources shall be made in coordination with the Parks and Wildlife Department. To the greatest extent possible, contracts shall be coordinated with studies being done by other state agencies, the federal government, or private industry to minimize duplication of efforts.
Added by Acts 1991, 72nd Leg., ch. 10, § 1, eff. March 28, 1991.
§ 40.304. SMALL SPILL EDUCATION PROGRAM. The commissioner shall develop and conduct a voluntary spill prevention education program that targets small spills from commercial fishing vessels, offshore support vessels, ferries, cruise ships, ports, marinas, and recreational boats. The small spill education program shall illustrate ways to reduce oil contamination of bilge water, accidental spills of motor oil and hydraulic fluid during routine maintenance, and spills during refueling. The program shall illustrate proper disposal of oil and promote strategies to meet shoreside oil handling and disposal needs of targeted groups. The program shall include a series of training materials and workshops and the development of educational materials.
Added by Acts 1993, 73rd Leg., ch. 776, § 11, eff. Sept. 1, 1993. § 52.001. DEFINITIONS. In this chapter: (1) "Commissioner" means the Commissioner of the General Land Office. (2) "Land office" means the General Land Office. (3) "Board" means the school land board.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER B. LEASE OF PUBLIC SCHOOL AND GULF LAND
§ 52.011. AREA SUBJECT TO LEASE. Under the provisions of this subchapter, the board may lease to any person for the production of oil and natural gas:
(1) islands, saltwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits;
(2) the portion of the Gulf of Mexico within the jurisdiction of the state;
(3) all unsold surveyed and unsurveyed public school land; and (4) all land sold with a reservation of minerals to the state under Section 51.054 or 51.086 of this code in which the state has retained leasing rights.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 5245, ch. 965, § 6, eff. June 19, 1983; Acts 2003, 78th Leg., ch. 1276, § 13.002(b), eff. Sept. 1, 2003.
§ 52.012. CONDITIONS FOR LEASE. Oil and gas shall only be leased together and shall be leased separately from other minerals.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.013. DETERMINATION OF LEASE PRICE AND DELAY RENTALS. The board shall determine the price at which areas under this subchapter shall be leased and the amount of delay rentals that shall be charged.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.014. DATE FOR LEASE AND NOTICE. The date for opening bids to lease areas covered by this subchapter shall be set and notice of the date shall be given in the manner provided in Sections 32.105 and 32.107 of this code.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 16, eff. Sept. 1, 1993.
§ 52.015. BID TO LEASE. (a) To apply to lease a tract, a bidder must submit a separate bid for each separate tract to be leased.
(b) A bid must include a completed application to lease form, a payment to the commissioner in the amount of the actual bonus bid or set, and a separate payment to the commissioner in the amount of the special fee provided by Section 52.016 of this code.
(c) A bid must be delivered to the land office on or before the date and time the board advertises that the bids will be opened.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 17, eff. Sept. 1, 1993.
§ 52.016. SPECIAL FEE. Each bidder on a lease under this subchapter shall remit by separate check a special sale fee in the amount and in the manner provided in Section 32.110 of this code.
Acts 1977, 65th Leg., p. 2445, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 41, eff. Sept. 1, 1985.
§ 52.017. KEEPING AND OPENING BIDS. Bids shall be kept secure and unopened by the commissioner or the commissioner's designee until opened on the date and at the time set as provided in Section 52.014 of this code.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 18, eff. Sept. 1, 1993.
§ 52.018. VOID APPLICATION. An application that includes two or more areas or that is for a price that is less than the fixed royalty and price per acre is void.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.019. TIE BIDS. (a) If the highest bid for an area is made by more than one applicant, all applications shall be rejected and the board shall set a date for lease of the area that shall not be later than the 15th day of the following month.
(b) The area will be subject to lease in the same manner as it was originally subject to lease.
(c) No bids for a lease shall be considered if the price is less than the highest bid offered in the original application.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.020. RETURN OF PAYMENTS ON REJECTED APPLICATIONS. The comptroller or commissioner shall return all amounts paid on rejected applications.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 13, eff. Aug. 26, 1985; Acts 1997, 75th Leg., ch. 1423, § 14.11, eff. Sept. 1, 1997.
§ 52.021. TERM OF LEASE. A lease granted under this subchapter shall be for a primary term not to exceed 10 years and for as long after that time as oil or gas is produced from the leased area.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 5247, ch. 965, § 9, eff. June 19, 1983; Acts 1993, 73rd Leg., ch. 897, § 19, eff. Sept. 1, 1993.
§ 52.022. ROYALTY RATE. The board shall set the royalty rate on production of oil and gas from land leased under this subchapter. The royalty rate set must be at least one-eighth of the gross production or the market value of the oil and gas produced.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 20, eff. Sept. 1, 1993.
§ 52.023. LEASE PROVISIONS FOR DRILLING AND REWORKING. Each lease shall provide that:
(1) if the production of oil or gas on premises leased under this subchapter ceases for any reason after the expiration of the primary term, the lease will not terminate if the lessee commences additional drilling or reworking operations within 60 days after the cessation of production;
(2) the lease shall remain in effect as long as drilling or reworking operations continue in good faith and in a workmanlike manner without interruptions totaling more than 60 days;
(3) if the drilling or reworking operations result in the production of oil or gas, the lease shall remain in effect so long as oil or gas is produced from the leased premises in paying quantities or payment of shut-in royalties or payment of compensatory royalties is made as provided by law; and
(4) if the drilling or reworking operations result in the completion of a well as a dry hole, the lease will not terminate if the lessee commences additional drilling or reworking operations within 60 days after the completion of the well as a dry hole, and the lease shall remain in effect so long as the lessee continues drilling or reworking operations in good faith and in a workmanlike manner without interruptions totaling more than 60 days.
Acts 1977, 65th Leg., p. 2446, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 2005, ch. 785, § 6, eff. June 13, 1979; Acts 1993, 73rd Leg., ch. 897, § 21, eff. Sept. 1, 1993.
§ 52.024. LEASE PROVISIONS FOR SHUT-IN OIL OR GAS ROYALTY AND COMPENSATORY ROYALTY. (a) For purposes of this section, "well" means any well that has been assigned a well number by the state agency having jurisdiction over the production of oil and gas.
(b) Each lease shall provide that: (1) if, at any time after the expiration of the primary term of a lease that, until being shut in, was being maintained in force and effect, a well capable of producing oil or gas in paying quantities is located on the leased premises but oil or gas is not being produced for lack of suitable production facilities or lack of a suitable market, then the lessee may pay as a shut-in oil or gas royalty an amount equal to double the annual rental provided in the lease but not less than $1,200 a year for each well capable of producing oil or gas in paying quantities. To be effective, each initial shut-in oil or gas royalty must be paid on or before: (A) the expiration of the primary term, (B) 60 days after the lessee ceases to produce oil or gas from the leased premises, or (C) 60 days after the lessee completes a drilling or reworking operation in accordance with the lease provisions, whichever date is latest;
(2) if the shut-in oil or gas royalty is paid, the lease shall be considered to be a producing lease and the payment shall extend the term of the lease for a period of one year from the end of the primary term or from the first day of the month following the month in which production ceased, and, after that, if no suitable production facilities or suitable market for the oil or gas exists, the lessee may extend the lease for four more successive periods of one year by paying the same amount each year on or before the expiration of each shut-in year;
(3) if, during the period the lease is kept in effect by payment of the shut-in oil or gas royalty, oil or gas is sold and delivered in paying quantities from a well located within 1,000 feet of the leased premises and completed in the same producing reservoir, or in any case in which drainage is occurring, the right to continue to maintain the lease by paying the shut-in oil or gas royalty shall cease, but the lease shall remain effective for the remainder of the year for which the royalty has been paid. The lessee may maintain the lease for four more successive years by the lessee paying compensatory royalty at the royalty rate provided in the lease of the market value of production from the well causing the drainage or which is completed in the same producing reservoir and within 1,000 feet of the leased premises;
(4) the compensatory royalty is to be paid monthly to the commissioner beginning on or before the last day of the month following the month in which the oil or gas is produced from the well causing the drainage or that is completed in the same producing reservoir and located within 1,000 feet of the leased premises;
(5) if the compensatory royalty paid in any 12-month period is in an amount less than the annual shut-in oil or gas royalty, the lessee shall pay an amount equal to the difference within 30 days from the end of the 12-month period; and
(6) none of these provisions will relieve the lessee of the obligation of reasonable development nor the obligation to drill offset wells as provided in Section 52.034 of this code; however, at the determination of the commissioner and with the commissioner's written approval, the payment of compensatory royalties shall satisfy the obligation to drill offset wells.
Acts 1977, 65th Leg., p. 2447, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 1858, ch. 438, § 1, eff. June 11, 1981; Acts 1987, 70th Leg., ch. 948, § 18, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 22, eff. Sept. 1, 1993.
§ 52.025. DISPOSITION OF LEASE PAYMENTS. The comptroller shall credit the permanent school fund with amounts received from unsurveyed school land and with two-thirds of the amount received from other areas and shall credit the General Revenue Fund with the remaining one-third of the payments for the other areas.
Acts 1977, 65th Leg., p. 2448, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1997, 75th Leg., ch. 1423, § 14.12, eff. Sept. 1, 1997.
§ 52.026. LEASE TRANSFER. (a) A lessee of an area under this subchapter may transfer the lease at any time. The liability of the transferor to properly discharge its obligations under the lease, including properly plugging abandoned wells, removing platforms or pipelines, or remediation of contamination at drill sites shall pass to the transferee upon prior written consent of the commissioner. The commissioner may not withhold the consent unreasonably. The commissioner may require the transferee to demonstrate that it has the financial responsibility to properly discharge its obligations under the lease and may require the transferee to post a bond or provide other security to secure those obligations if the transferee is unable to demonstrate such financial responsibility to the satisfaction of the commissioner.
(b) The transfer of the lease shall be recorded in any county in which all or part of the leased area is located.
(c) Within 90 days after the execution of the transfer, the recorded transfer or a certified copy of the recorded transfer accompanied by a filing fee set by the commissioner in an amount not less than $5 shall be filed in the land office.
(d) Every transferee shall succeed to all rights and be subject to all obligations, liabilities, and penalties owed to the state by the original lessee or any prior transferee of the lease, including any liabilities to the state for unpaid royalties.
(e) This section does not relieve a person from the duty to comply with a rule adopted or order issued by the Railroad Commission of Texas under another provision of this code.
Acts 1977, 65th Leg., p. 2448, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 404, ch. 81, § 21(i), eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, § 19, eff. Sept. 1, 1987; Acts 1999, 76th Leg., ch. 1125, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1483, § 2, eff. Aug. 30, 1999.
§ 52.027. LEASE RELINQUISHMENT. (a) A lessee may relinquish his lease to the state at any time by recording the relinquishment in each county in which all or part of the leased area is located.
(b) Within 90 days after the execution of the relinquishment, the recorded relinquishment or a certified copy of the recorded relinquishment together with a filing fee set by the commissioner in an amount not less than $5 shall be filed in the land office.
(c) After the lessee relinquishes the area, he is relieved of any further obligations to the state, but the relinquishment does not release the lessee from any obligations or liabilities previously accrued in favor of the state.
Acts 1977, 65th Leg., p. 2448, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 404, ch. 81, § 21(j), eff. Sept. 1, 1983.
§ 52.028. SUSPENSION OF LEASE BECAUSE OF LITIGATION. (a) If an oil and gas lease that has been issued by the commissioner is involved in litigation relating to the validity of the lease or to the authority of the commissioner to issue the lease, the lease and all of the conditions and covenants contained in the lease shall be suspended during the period of the litigation, except as otherwise provided by this section.
(b) If the litigation is instituted during the primary term of the lease, then, after a final, nonappealable judgment is entered in the litigation, the primary term provided in the lease shall resume and the lease shall continue to run for the remainder of the period specified in the lease, and all conditions and covenants contained in the lease shall be operative.
(c) If the litigation is instituted during the secondary term of the lease, then, after a final, nonappealable judgment is entered in the litigation, the lease and all the conditions and covenants contained in the lease shall be operative, and the lessee shall have 60 days from the date a final, nonappealable judgment is entered in the litigation to produce in paying quantities or to commence drilling or reworking operations on the lease as if production had ceased on that date under Section 52.023 of this code.
(d) The lessee shall pay any royalties that accrue during the period of suspension of the lease in the same manner as they are to be paid under the terms of the lease.
Acts 1977, 65th Leg., p. 2448, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, § 20, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 23, eff. Sept. 1, 1993.
§ 52.029. FORFEITURE OF RIGHTS. The provisions of Subchapter F of this chapter governing the forfeiture and reinstatement of rights apply to forfeiture and reinstatement of leases issued under this subchapter, and on forfeiture of a lease, the area covered by the lease may be leased, after advertisement, by any other person.
Acts 1977, 65th Leg., p. 2448, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.030. REFUND OF LEASE MONEY IN CERTAIN SITUATIONS. (a) If a lessee is prevented from exploring, developing, drilling, or producing oil and gas from the tract leased to him as a result of the action of any agency of the United States or of this state during the entire primary term of the lease, he is entitled to a refund of all money paid for bonus, delay rentals, and other fees under the lease as provided by legislative appropriation.
(b) A refund shall be made only on verification of the claim by the board or on the judgment of a court of competent jurisdiction.
(c) A lessee who has a claim under this section is given permission to bring suit against the state within two years after the expiration of the lease in any court of competent jurisdiction to recover the money paid.
Acts 1977, 65th Leg., p. 2448, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.0301. SUSPENSION OF TERMS OF LEASE IN CERTAIN SITUATIONS. (a) If the lessee of a valid oil and gas lease granted by the state is unable to obtain access to the leased premises, or is unable to obtain in a timely manner a permit to drill on or produce from the leased premises by any duly constituted authority of the United States or of this state after a diligent, good faith attempt has been made by the lessee to obtain access to, or a permit to drill on or produce from, the leased premises, the lessee may file with the board an application describing and giving the date of the action that deprives the lessee of access to or a permit to drill on or produce from the leased premises.
(b) If the board is satisfied that the facts included in the application are true and that the lessee acted diligently and in good faith in an attempt to gain access to or the right to drill on or produce from the leased premises, the board may order the suspension of the lease or any condition or covenant contained in the lease from the date the board determines to be the date the cause for the suspension began, except as otherwise provided by this section.
(c) The board may set as a condition to approving the application for a suspension of the lease any term or requirement that relates to the duration of the suspension, the administration of the property during the suspension, reporting requirements during the suspension, or another administrative matter that the board determines is in the best interest of the state.
(d) If the lease is suspended during its primary term, the lessee shall make payments in the amount of the annual delay rental stipulated in the lease by each anniversary date of the lease during the period of suspension. If the payments in the amount of the annual delay rental are not paid by each anniversary date of the lease, the lease shall not automatically terminate. However, the amount of the annual delay rental stipulated in the lease due by each anniversary date of the lease during the period of suspension continues to be an obligation and debt owed by the lessee. The lessee shall pay all royalties, if any, that accrue during the period of suspension of the lease in the same manner as they are to be paid under the terms of the lease.
(e) If the lease is suspended during its primary term, then, when the suspension ends, the primary term provided in the lease shall resume and continue to run for the remainder of the period specified in the lease, and all conditions and covenants contained in the lease shall be operative .
(f) If the lease is suspended during its secondary term, then, when the suspension ends, the lease and all of the conditions and covenants contained in the lease shall be operative, and the lessee shall have 60 days from the date the suspension ends to produce in paying quantities or to commence drilling or reworking operations on the lease as if production had ceased on that date under Section 52.023 of this code.
(g) This section may not be construed as abridging any rights or privileges conveyed under Chapter 287, Acts of the 47th Legislature, Regular Session, 1941 (Article 5366a, Vernon's Texas Civil Statutes).
Added by Acts 1979, 66th Leg., p. 2006, ch. 785, § 7, eff. June 13, 1979. Amended by Acts 1985, 69th Leg., ch. 923, § 14, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 948, § 21, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 24, eff. Sept. 1, 1993.
§ 52.031. EXTENSION OF LEASE BY COMMISSIONER. (a) At the expiration of the primary term of a lease made under the provisions of this subchapter, if production of oil or gas has not been obtained on the leased premises but drilling operations are being conducted in good faith and in good and workmanlike manner, the lessee may file in the land office on or before the expiration of the primary term a written application to the commissioner for a 30-day extension of the lease accompanied by $3,000 for 640 acres or less or $6,000 for more than 640 acres.
(b) The commissioner shall extend the lease in writing for a 30-day period from the expiration of the primary term and as long after that time as oil or gas is produced in paying quantities.
(c) As long as drilling operations are being conducted, the lessee may submit an application and payment during any 30-day extended period for an additional extension of 30 days. On receiving the application and payment, the commissioner shall again extend the lease in writing so that it will remain effective for an additional 30-day period and as long after that time as oil or gas is produced in paying quantities.
(d) No lease may be extended under this section for more than 390 days after the expiration of the primary term unless production is obtained in paying quantities.
Acts 1977, 65th Leg., p. 2449, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.032. REGULATION OF DEVELOPMENT AND OPERATIONS. (a) Development and operations on areas covered by this subchapter shall be done insofar as practicable in a manner that will prevent the pollution of water, destruction of fish, oysters, and other marine life, and obstruction of navigation.
(b) The commissioner shall adopt and enforce rules that may be necessary for the purposes stated in Subsection (a) of this section.
(c) Any rules and changes of rules adopted under this section shall be submitted to the attorney general for his written approval before the rules or their changes become effective.
Acts 1977, 65th Leg., p. 2449, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.033. ACCESS TO LAND. (a) If it is necessary for the lessee to enter the enclosed land of another person for the purpose of ingress and egress to and from the area leased from the state and if the lessee and the owner cannot agree on the place or the conditions of entry and exit, the lessee or his agent may petition the commissioners court of the county in which all or part of the enclosure is located to open the places of ingress and egress that may be necessary.
(b) On filing the petition, the commissioners court shall delineate the roads necessary for the stated purpose in the manner provided for delineating third-class public roads.
Acts 1977, 65th Leg., p. 2449, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.034. OFFSET WELLS. (a) If oil or gas is produced in commercial quantities from a well located on a privately owned area or areas of state land leased at a lesser royalty and the well is located within 1,000 feet of an area leased under this subchapter, or in any case where such an area is being drained by such a well or wells, the lessee of the state area shall begin in good faith and prosecute diligently the drilling of an offset well or wells on the area leased from the state within 60 days after the initial production from the draining well or the well located within 1,000 feet of the leased state area.
(b) An offset well shall be drilled to a depth and the means shall be employed which may be necessary to prevent undue drainage of oil or gas from beneath the state area.
(c) Within 30 days after an offset well has been completed or abandoned, a log of each well shall be filed in the land office.
(d) At the determination of the commissioner and with his written approval, the payment of a compensatory royalty shall satisfy the obligation to drill an offset well or wells required by Subsection (a) of this section. Such compensatory royalty shall be paid at the royalty rate provided by the state lease issued under this subchapter and shall be paid on the market value at the well of production from the draining well or the well located within 1,000 feet of the leased state area.
Acts 1977, 65th Leg., p. 2450, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, § 22, eff. Sept. 1, 1987.
§ 52.035. AGREEMENTS WITH U.S. GOVERNMENT. (a) The governor may execute agreements on behalf of the state to obtain access to confidential and proprietary information from the secretary of the United States Department of the Interior regarding exploration, development, or production of oil, gas, or other minerals on the outer continental shelf. The governor may agree to waive sovereign immunity and other defenses as prescribed by this section, and may agree to indemnify the United States government from unauthorized disclosure of the information obtained.
(b) The information obtained from the Department of the Interior under an agreement executed under Subsection (a) of this section is confidential and may not be used publicly, opened to public inspection, or disclosed, except that the information may be examined and used by the governor and the commissioner of the General Land Office, or their designees, for the administration of their official duties and to assure a fair and equitable division of federal revenues derived from leasing lands adjacent to the boundaries of this state.
(c) The state waives its right to claim sovereign immunity in any action commenced against the state for unauthorized disclosure of the confidential information obtained from the Department of the Interior under an agreement executed by the governor under Subsection (a) of this section, and waives its right to claim that an employee who revealed privileged information was acting outside the scope of employment by disclosing the information.
(d) The state agrees to hold the United States government harmless from any actions or damages brought as a result of the acts or omissions of the state or its employees in releasing proprietary information obtained under an agreement executed under Subsection (a) of this section.
Added by Acts 1985, 69th Leg., ch. 923, § 15, eff. Aug. 26, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 25, eff. Sept. 1, 1993.
SUBCHAPTER C. DEVELOPMENT OF RIVERBEDS AND CHANNELS
§ 52.071. AUTHORITY OVER RIVERBEDS AND CHANNELS. The riverbeds and channels belonging to the state are subject to development by the state and to lease or contract for recovery of oil and gas.
Acts 1977, 65th Leg., p. 2450, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.072. STATE POLICY. (a) With regard to leases and contracts for the development of riverbeds and channels, it is the policy of the state that activities of the state and all lessees and contracting parties or their heirs, successors, or assigns under a lease or contract shall comply with laws of the state and rules and orders of any state agency that are applicable to development of oil and gas bearing land in the state by persons other than the state.
(b) Each lease and contract issued under the provisions of this subchapter is subject to the provisions of Subsection (a) of this section.
Acts 1977, 65th Leg., p. 2450, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.073. AREA SUBJECT TO LEASE. Riverbeds and channels that belong to the state may be leased to any person by the board under the provisions of this subchapter.
Acts 1977, 65th Leg., p. 2450, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.074. SIZE OF TRACT. Subject to the conditions in this subchapter, riverbeds and channels shall be leased in tracts of the size determined by the board.
Acts 1977, 65th Leg., p. 2450, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.076. DUTY TO ADVERTISE. (a) The board may: (1) advertise for bids to lease riverbeds and channels for oil and gas development;
(2) advertise for bids to contract to develop the oil or gas under riverbeds and channels on consideration involving compensation with oil and gas or money so that the state will receive a portion of the oil and gas as it is produced or advanced royalties paid in money; (3) advertise for bids to purchase oil and gas in place under riverbeds and channels without requiring mineral development; and
(4) pool or bring an action to force pool unleased riverbeds and channels. (b) The board shall advertise that the board will receive bids and award the right to lease, develop, or purchase under this section in the same manner as provided in Subchapter D, Chapter 32, of this code and Subchapter B of this chapter.
Acts 1977, 65th Leg., p. 2450, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 16, eff. Aug. 26, 1985; Acts 1993, 73rd Leg., ch. 897, § 26, eff. Sept. 1, 1993.
§ 52.077. SPECIAL FEE. Each bidder on a lease under this subchapter shall remit with each bid by separate payment a special sale fee in the amount and in the manner provided by Section 32.110 of this code.
Added by Acts 1993, 73rd Leg., ch. 897, § 27, eff. Sept. 1, 1993.
§ 52.080. FORMS FOR LEASE AND CONTRACT. Leases and contracts for the development of riverbeds and channels shall be executed on forms approved by the board.
Acts 1977, 65th Leg., p. 2451, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 17, eff. Aug. 26, 1985.
§ 52.082. TERM OF LEASE. A lease granted under this subchapter shall be for a primary term not to exceed 10 years and for as long after that time as oil or gas is produced from the leased area.
Acts 1977, 65th Leg., p. 2451, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 5248, ch. 965, § 10, eff. June 19, 1983; Acts 1993, 73rd Leg., ch. 897, § 28, eff. Sept. 1, 1993.
§ 52.083. CONDITIONS OF LEASE. Oil and gas shall only be leased together and separately from other minerals.
Acts 1977, 65th Leg., p. 2451, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.084. SPECIAL LEASE PROVISIONS. Each lease shall include the provisions required by Sections 52.023 and 52.024 of this code.
Acts 1977, 65th Leg., p. 2451, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.085. PREVENTION OF POLLUTION. (a) Each lease and contract shall require the lessee or contracting party or his successors or assigns to use the highest degree of care and all proper safeguards to prevent pollution of streams.
(b) If the lessee or contracting party fails to meet the requirements in Subsection (a) of this section, the state is entitled to take charge of the property immediately and to cancel the lease.
Acts 1977, 65th Leg., p. 2451, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.087. DETERMINATION OF LEASE PRICE AND DELAY RENTALS. The board shall determine the price at which riverbeds and channels shall be leased and the amount of delay rentals that shall be charged.
Acts 1977, 65th Leg., p. 2452, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.088. ROYALTY RATE. The board shall set the royalty rate on production of oil and gas from riverbeds and channels leased under this subchapter. The royalty rate set must be at least one-eighth of the gross production or the market value of the oil and gas produced.
Acts 1977, 65th Leg., p. 2452, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 29, eff. Sept. 1, 1993.
§ 52.090. EXTENSION OF LEASE. A lease may be extended in the manner provided in Section 52.031 of this code.
Acts 1977, 65th Leg., p. 2453, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.091. REFUND OF LEASE MONEY IN CERTAIN SITUATIONS. A lessee under this subchapter is entitled to a refund of all money paid for bonus, delay rentals, and other fees for the reasons and in the manner provided in Section 52.030 of this code.
Acts 1977, 65th Leg., p. 2453, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.092. POWER OF EMINENT DOMAIN. The board or any person including a leaseholder or assignee, who has a contract with the board for the development of oil and gas resources in riverbeds and channels may exercise the power of eminent domain to condemn land as provided in the general laws of this state for the purposes stated in Section 52.093 of this code.
Acts 1977, 65th Leg., p. 2453, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.093. EMINENT DOMAIN PURPOSES. The board and any person, including a leaseholder or assignee, who has a contract with the board for the development of oil and gas resources in riverbeds and channels may exercise the power of eminent domain for the following purposes:
(1) to secure additional adjoining land that may be necessary to erect power machinery and to construct storage tanks and slush pits for the operation of the river or channel development and to prevent or lessen the dangers of pollution involved in the drilling of any well in the riverbed or channel; and
(2) to secure a right-of-way to and from any well that is drilled in the riverbed or channel so that the board or any of the leaseholders or contracting parties may go to and from the well and may transport any materials necessary to develop the riverbed or channel and to transport oil and gas away from the well.
Acts 1977, 65th Leg., p. 2453, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.094. DRILLING OFFSET WELL ON CONDEMNED LAND. (a) If the landowner or other interested party and the board or the lessee of the riverbed or channel cannot agree on the amount of damages, if any, and it is necessary to commence condemnation proceedings and if it is necessary for the landowner or other interested party to drill an offset well within the area to be condemned, the mineral rights of the condemned party are superior to the surface rights of the condemning party.
(b) If there is any conflict surrounding the drilling of an offset well under a permit from the Railroad Commission of Texas, the condemning party is required to move any interference or hindrance or to go around any offset well, and if he fails or refuses to immediately move the interference or hindrance on demand, the owner of the mineral rights is entitled to do so immediately without liability.
Acts 1977, 65th Leg., p. 2453, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.095. RIGHTS OF PARTIES TO CONDEMNATION. It is the intent of this subchapter that the mineral rights of the owner are superior to the surface rights of the condemning party.
Acts 1977, 65th Leg., p. 2454, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.096. EXCLUSION FROM DAMAGES IN CONDEMNATION. In determining the damages resulting from condemnation, the commissioners or any other tribunal shall not consider the value of oil or gas located beneath the rights-of-way of the condemned property.
Acts 1977, 65th Leg., p. 2454, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.097. INJUNCTION. (a) No injunction may be granted against the board, its agents, or persons with whom it has contracted, to restrain the board from enforcing its orders or contracts or from carrying out any development that has begun or was contemplated by the board until notice is given to the board and its agents or the contracting parties and a hearing is held.
(b) Before an injunction or restraining order is issued or becomes effective, the court shall require the complaining party to execute a bond payable to the governor with good and sufficient sureties authorized to do business in this state in an amount determined by the court to be sufficient to protect the state from loss from drainage of the riverbed or channel, of lease or bonus or consideration, or from any other reason. In determining the amount of the bond, the court shall consider the probable and possible loss to the state by granting the injunction.
(c) The attorney general shall bring suit on the bond to recover any loss to the state caused by the suit for injunction.
Acts 1977, 65th Leg., p. 2454, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.098. APPEAL. (a) Either party to the suit for an injunction or restraining order is entitled to appeal from the final judgment.
(b) The appeal shall be returnable to the appellate court at once and shall have precedence in that court over all pending cases, proceedings, and causes of a different character.
(c) The court of appeals shall decide the questions involved in the appeal at as early a date as possible.
(d) If any question is certified to the supreme court or if writ of error is requested or granted, the supreme court shall set the cause for hearing immediately, and the cause shall have precedence over all other cases, proceedings, and causes of a different character. The supreme court shall decide the cause at as early a date as possible.
Acts 1977, 65th Leg., p. 2454, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 799, ch. 291, § 90, eff. Sept. 1, 1981.
§ 52.099. VENUE. The venue for any suit arising from this subchapter either by or against the board and regardless of the kind or nature shall be in Travis County.
Acts 1977, 65th Leg., p. 2454, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.100. EFFECT OF SUBCHAPTER. The provisions of this subchapter do not repeal or supersede Chapter 138, Acts of the 41st Legislature, Regular Session, 1929 (Article 5414a, Vernon's Texas Civil Statutes), which validated, relinquished, quitclaimed, and granted to patentees and awardees and their assignees land and minerals that are included in surveys lying across or partly across watercourses and navigable streams in the state and that have been patented or awarded as provided in that chapter.
Acts 1977, 65th Leg., p. 2454, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER D. ROYALTIES
§ 52.131. PAYMENT OF ROYALTY GENERALLY. (a) Royalties due under a lease of state land or minerals that are required to be paid to the land office, including leases on land on which a free royalty is reserved pursuant to Section 51.201 or 51.054 of this title, shall be due and shall be paid as provided in this section.
(b) The commissioner shall by rule set the date for making royalty payments and for filing any reports, documents, or other records required to be filed by the commissioner. However, the commissioner may not set the due date for royalty on oil before the 5th day of the second month succeeding the month of production and may not set the due date for royalty on gas before the 15th day of the second month succeeding the month of production.
(c) Royalty payments shall be accompanied by: (1) an affidavit of the owner, manager, or other authorized agent, completed in the form and manner required by the land office and showing the gross amount and disposition of all oil and gas produced and the market value of the oil and gas;
(2) a copy of all documents, records, or reports required by the land office, confirming the gross production, disposition, and market value, including gas meter readings, pipeline receipts, gas line receipts, and other checks or memoranda of amount produced and put into pipelines, tanks, pools, and gas lines or gas storage;
(3) a check stub, schedule, summary, or other remittance advice showing by the assigned land office lease number the amount of royalty being paid on each lease; and
(4) other reports or records that the land office may require to verify the gross production, disposition, and market value.
(d) The lessee has the responsibility for paying royalties or having royalties paid by the date provided for payment in this section.
(e) If any royalty is not paid when due but is paid before the 31st day after the date on which it is due, a penalty of five percent of the royalty due shall be added to the unpaid amount due. If the royalty is not paid before the 31st day after the date on which it is due, a penalty of an additional five percent of the royalty due shall be imposed. The minimum penalty under this section is $25. The penalty may not be imposed in cases of title dispute as to the state's portion of the royalty or to that portion of the royalty in dispute as to the market value of the production.
(f) The commissioner shall add a penalty of 25 percent to any delinquent royalty if a part of the delinquency is due to fraud or an intent to evade the provisions of this chapter.
(g) The annual interest rate on delinquent royalties is 12 percent. Interest accrues on delinquent royalties beginning 60 days after the date on which the royalty is due.
(h) If any report, affidavit, supporting document, or any other instrument required to be filed under this chapter is not filed when due, the commissioner shall charge a reasonable penalty in an amount established by rule adopted by the commissioner.
(i) Interest charged under Subsection (g) of this section or penalties under Subsection (e), (f), or (h) of this section are in addition to any other right, including forfeiture, that the commissioner may exercise for failure to submit a report or other instrument.
(j) By rule, the board may provide procedures and standards for reduction of interest charged or penalties assessed under this section or any other interest or penalties assessed by the commissioner relating to unpaid or delinquent royalties.
Acts 1977, 65th Leg., p. 2455, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 42, 43, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 948, § 23, 24, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 30, eff. Sept. 1, 1993.
§ 52.132. FORM OF PAYMENT. Except as provided in Section 52.133 of this code, royalty payments shall be made in cash, by bank draft drawn on a state or national bank in Texas, by a post-office or express money order, or in any other form that the law may provide for making payments to the State Treasury and are payable to the commissioner in Austin.
Acts 1977, 65th Leg., p. 2455, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.133. PAYMENT OF ROYALTY IN KIND. (a) Each oil or gas lease covering land leased by the board, by a board for lease, or by the surface owner of land under which the state owns the minerals, commonly referred to as Relinquishment Act land, which shall be subject to approval by the commissioner before it is effective, shall include a provision granting the board authorized to lease the land or the owner of the soil of Relinquishment Act land and the commissioner authority to take their royalty in kind, and the commissioner and the boards for lease may include any other reasonable provisions that are not inconsistent with this section.
(b) The option to take the royalty in kind may be exercised at any time or from time to time on not less than 60 days' notice to the holder of the lease.
(c) The commissioner, the owner of the soil under Subchapter F, or the commissioner acting on the behalf of and at the direction of an owner of the soil under Subchapter F, the board, or a board for lease, or at the direction of the Board for Lease of University Lands, may negotiate and execute contracts or any other instruments or agreements necessary to dispose of or enhance their portion of the royalty taken in kind, including contracts for sale, marketing, purchase, transportation, including purchase and exchange agreements necessary to transport gas, and storage and including insurance contracts or other agreements, to secure or guarantee payment.
(d) The commissioner, the owner of the soil under Subchapter F, or the commissioner acting on behalf of and at the direction of an owner of the soil under Subchapter F, the board, or a board for lease may negotiate and execute contracts or any other instruments or agreements necessary to convert that portion of the royalty taken in kind into other forms of energy, including electricity.
(e) This section shall not be construed to surrender or in any way affect the right of the state or the owner of the soil under existing or future leases to receive royalty from its lessee on the basis of the market value of the production from state public land or land under the provisions of Subchapter F of this chapter.
(f) For the purposes of this section, royalty taken in kind includes oil or gas sold or marketed by the commissioner that has been produced on state mineral lands or from the first three miles of federal waters adjacent to the state boundaries, also known as the 8g zone.
Acts 1977, 65th Leg., p. 2455, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 31, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 427, § 1, eff. Aug. 28, 1995; Acts 1999, 76th Leg., ch. 405, § 49, eff. Sept. 1, 1999.
§ 52.134. FILING CONTRACTS AND AGREEMENTS. Copies of contracts for the sale or processing of gas and subsequent agreements and amendments to those contracts shall be filed in the land office within 30 days after the contracts, agreements, or amendments are made. These contracts and agreements received by the land office shall be held in confidence by the land office unless otherwise authorized by the lessee.
Acts 1977, 65th Leg., p. 2456, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.135. INSPECTIONS AND EXAMINATIONS. (a) The books and accounts, receipts, and discharges of all lines, tanks, pools, and meters and all contracts and other records relating to the production, transportation, sale, and marketing of the oil and gas are subject at any time to inspection and examination by the commissioner and the attorney general and governor or their representatives.
(b) If, after inspection and examination of books, accounts, reports, or other records, the commissioner or his representative determines that additional royalties are due under a lease of state land or minerals, the commissioner shall send to the lessee by certified mail, return receipt requested, an audit billing notice notifying the lessee of such additional royalties, and interest and penalty, due and of the reasons for such determination.
(c) The lessee shall have 30 days from the date of the receipt of such audit billing notice in which to pay such audit deficiency assessment or to request a hearing before the commissioner or his representative for redetermination of such assessment. A statement of grounds setting out in detail the lessee's reasons for disagreement with such assessment and the factual and legal grounds on which the claim is based must be submitted by a lessee with its request for a hearing. Such hearing shall be conducted in accordance with the rules and procedures established by the commissioner.
(d) In order to stop the further accrual of penalty or interest, the lessee may pay the additional royalties assessed at any time after receipt of an audit billing notice.
Acts 1977, 65th Leg., p. 2456, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1986, 69th Leg., 3rd C.S., ch. 5, § 1, eff. Sept. 30, 1986.
§ 52.136. LIEN. (a) The state has a statutory first lien on all oil and gas produced on any lease area to secure payment of unpaid royalty and other amounts due.
(b) By acceptance of a lease, the lessee grants to the state an express contractual lien on and security interest in all oil and gas in and extracted from the area covered by the lease, all proceeds which may accrue to the lessee from the sale of the oil and gas, whether the proceeds are held by the lessee or another person, and all fixtures on and improvements to the area covered by the lease used in connection with the production or processing of the oil and gas, to secure the payment of royalties and other amounts due or to become due under the lease or this subchapter and to secure payment of damages or loss that the state may suffer by reason of the lessee's breach of a covenant or condition of the lease, whether express or implied.
(c) The statutory and contractual liens and security interests described in this section may be foreclosed with or without court proceedings in the manner provided under Chapter 9, Business & Commerce Code. The state may require the lessee to execute and record instruments reasonably necessary to acknowledge, attach, or perfect the liens.
Acts 1977, 65th Leg., p. 2456, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1997, 75th Leg., ch. 1324, § 2, eff. Jan. 1, 1998.
§ 52.137. SUIT AFTER PROTEST PAYMENT. (a) If a lessee, who has received an audit deficiency assessment and has waived the right to request a hearing before the commissioner or who is required by final order of the commissioner following a hearing to pay additional royalties, contends that such audit deficiency assessment is unlawful or that the commissioner may not legally demand or collect such royalties the lessee shall pay to the commissioner the amount claimed by the commissioner, and if the lessee intends to bring suit under this section, the lessee must submit with the payment a protest in writing stating fully and in detail each reason why it contends such royalty is not due. Such payment shall be made to the commissioner within 30 days of the date of receipt of the audit billing notice or of the date of receipt of the final order of the commissioner following a hearing, as the case may be. All such mailings shall be by certified mail, return receipt requested.
(b) The commissioner, upon receipt of such payment made under protest as authorized by this section, shall send to the comptroller the payment and a written statement that the payment was made under protest. Immediately upon receipt, the comptroller shall:
(1) place the payment in state depositories bearing interest in the same manner that other funds are required to be placed in state depositories at interest;
(2) allocate the interest earned on these funds; (3) credit the amount allocated to an account established for this purpose until the status of the protest is finally determined; and
(4) upon final determination that some or all of the protested funds belong to the state, deposit the principal and the allocated interest to the permanent school fund.
(c) A suit may be brought under this section against the commissioner to recover the payment under protest. A suit under this section is barred unless brought in the district courts of Travis County within 90 days after the date of the protest payment or within 90 days after the date of the final order of the commissioner following hearing, whichever is later.
(d) The issues to be determined in a suit under this section are limited to those arising from the reasons stated in the written protest as originally filed.
(e) The trial of the issues in a suit under this section is de novo and the substantial evidence rule will not apply.
Added by Acts 1986, 69th Leg., 3rd C.S., ch. 5, § 2, eff. Sept. 30, 1986. Amended by Acts 1987, 70th Leg., ch. 948, § 25, eff. Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1423, § 14.13, eff. Sept. 1, 1997; Acts 2003, 78th Leg., ch. 328, § 7, eff. Jan. 1, 2004.
§ 52.138. REFUND. If a suit authorized by Section 52.137 of this code results in a final determination that all or part of the payment under protest was not due or was unlawfully demanded by the commissioner and belongs to the lessee, the comptroller shall refund the proper amount, with the pro rata interest earned on that amount, by issuance of a refund warrant drawn against the account established for such purpose. The refund warrant shall be returned to the commissioner and the commissioner shall deliver it to the person entitled to receive it.
Added by Acts 1986, 69th Leg., 3rd C.S., ch. 5, § 2, eff. Sept. 30, 1986. Amended by Acts 1997, 75th Leg., ch. 1423, § 14.14, eff. Sept. 1, 1997.
§ 52.139. LIMITATIONS ON AUDIT ASSESSMENTS. (a) If an audit billing notice has been issued under Section 52.135 and any outstanding audit deficiency assessment has been paid either:
(1) voluntarily; (2) after a hearing was requested and the commissioner has entered a final non-appealable order concerning the assessment; or
(3) after a final non-appealable judgment has been rendered by a court after payment of an audit assessment under protest and filing of a suit for refund under Section 52.137 of this code, then the commissioner may not issue another deficiency assessment which covers the same issues, time periods, and leases as those covered by the previous assessment.
(b) If the commissioner audits a lessee's books and records under Section 52.135 of this code the commissioner shall notify the lessee upon completion of his findings. If the commissioner notifies the lessee that no additional royalties are due, the commissioner may not again audit the books and records covering the same issues, time periods, and leases involved in the first audit.
(c) This section shall not preclude the commissioner from conducting subsequent audits or examinations covering the same issues, time periods, and leases in cases where fraud exists or where the first audit deficiency assessment results only from an examination of documents, records, or reports submitted to the commissioner and not from a complete audit of the books, accounts, reports, or other records of a lessee.
Added by Acts 1987, 70th Leg., ch. 948, § 26, eff. Sept. 1, 1987.
§ 52.140. AUDIT INFORMATION CONFIDENTIAL. (a) All information secured, derived, or obtained during the course of an inspection or examination of books, accounts, reports, or other records, as provided in Section 52.135 of this code, is confidential and may not be used publicly, opened for public inspection, or disclosed, except for information set forth in a lien filed under this chapter and except as permitted under Subsection (d) of this section.
(b) All information made confidential in this section shall not be subject to subpoena directed to the commissioner, the attorney general, or the governor except in a judicial or administrative proceeding in which this state is a party.
(c) The commissioner or the attorney general may use information made confidential by the provisions of this section and contracts made confidential by Section 52.134 of this code to enforce any provisions of this chapter or may authorize their use in judicial or administrative proceedings in which this state is a party.
(d) This section does not prohibit: (1) the delivery of information made confidential by this section to the lessee or its successor, receiver, executor, guarantor, administrator, assignee, or representative;
(2) the publication of statistics classified to prevent the identification of a particular audit or items in a particular audit;
(3) the release of information which is otherwise available to the public; or
(4) the release of information concerning the amount of royalty assessed as a result of an examination conducted under Section 52.135 of this code or the release of other information which would have been properly included in reports required under Section 52.131 of this code.
Added by Acts 1987, 70th Leg., ch. 948, § 27, eff. Sept. 1, 1987.
SUBCHAPTER E. UNITIZATION OF LEASED AREAS
§ 52.151. AUTHORIZATION TO OPERATE AREAS AS UNITS. (a) The commissioner, on behalf of the state or any fund that belongs to the state, may execute agreements that provide for operating areas as a unit for the exploration, development, and production of oil or gas or both and to commit to the agreements:
(1) the royalty interests in oil, gas, or both oil and gas, reserved to the state or any fund of the state by law, in a patent, in a contract of sale, or under the terms of an oil and gas lease legally executed by an official, board, agent, agency, or authority of the state; or
(2) the free royalty interests, whether leased or unleased, reserved to the state pursuant to Section 51.201 or 51.054 of this code.
(b) Before executing an agreement authorized by Subsection (a) of this section, the commissioner must find that the agreement is in the best interest of the state.
Acts 1977, 65th Leg., p. 2456, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, § 28, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 32, eff. Sept. 1, 1993.
§ 52.152. APPROVAL OF AGREEMENTS. (a) An agreement must be approved by the board and executed by the commissioner to be effective if the agreement commits:
(1) a royalty interest in land belonging to the permanent school fund or the asylum funds, in riverbeds, inland lakes, and channels, or in an area within tidewater limits, including islands, lakes, bays, inlets, marshes, reefs, and the bed of the sea; or
(2) the free royalty interests, whether leased or unleased, reserved to the state pursuant to Section 51.201 or 51.054 of this code.
(b) An owner of the soil who is subject to Subchapter F of this chapter may grant to a lessee prior authority to pool or unitize the interest of the owner in a lease executed under that subchapter. For the provisions of an agreement to bind the interest of an owner of the soil who is subject to Subchapter F of this chapter and who has not granted the lessee prior authorization to pool or unitize the owner's interest in an oil and gas lease executed under that subchapter, the agreement must be executed by the owner of the soil.
(c) An agreement that commits any interest in any land not listed in Subsection (a) of this section must be approved by the board, official, agent, agency, or authority of the state which has the authority to lease or to approve the lease of the land for oil and gas and must be executed by the commissioner to be effective.
Acts 1977, 65th Leg., p. 2457, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, § 29, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 33, eff. Sept. 1, 1993.
§ 52.153. PROVISIONS OF AGREEMENT. (a) An agreement executed under this subchapter may include the following provisions:
(1) that operations incident to drilling a well on any portion of a unit shall be considered for all purposes to be conduct of the operations on each tract in the unit;
(2) that production allocated by the agreement to each tract included in the unit when produced shall be considered for all purposes to have been production from the tract;
(3) that the interest reserved to or provided for the state or any of its funds on production from any tract included in the unit shall be paid only on that portion of the production from the unit that is allocated to the tract under the agreement; and
(4) that each lease included in the unit shall remain in effect as long as the agreement remains in effect and that on termination of the agreement each lease shall continue in effect under the terms and conditions of the lease.
(b) The agreement may include any other terms and conditions the commissioner or any board, official, agent, agency, or authority of the state that has the authority to lease or to approve a lease of the land for oil and gas may consider to be in the best interest of the state.
Acts 1977, 65th Leg., p. 2457, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 34, eff. Sept. 1, 1993.
§ 52.154. RATIFICATIONS AND OTHER AGREEMENTS. (a) The board may approve, by rule or order, a ratification or other agreement that includes in the benefits of production a mineral or royalty interest in land belonging to the permanent school fund or the asylum funds.
(b) An agreement approved by the board under this section must be executed by the commissioner to be effective.
(c) A ratification or other agreement that commits any of the interests listed in Subsection (a) of this section in land not belonging to the permanent school fund or the asylum funds must be approved by the board, official, agent, agency, or authority of the state that has the authority to lease or to approve the lease of the land for oil and gas and must be executed by the commissioner to be effective.
Added by Acts 1993, 73rd Leg., ch. 897, § 35, eff. Sept. 1, 1993.
SUBCHAPTER F. RELINQUISHMENT
§ 52.171. SCHOOL AND ASYLUM LANDS. The state hereby constitutes the owner of the soil its agent for the purposes herein named, and in consideration therefor, relinquishes and vests in the owner of the soil an undivided fifteen-sixteenths of all oil and gas which has been undeveloped and the value of the same that may be upon and within the surveyed and unsurveyed public free school land and asylum lands and portions of such surveys sold with a mineral classification or mineral reservation, subject to the terms of this law. The remaining undivided portion of said oil and gas and its value is hereby reserved for the use of and benefit of the public school fund and the several asylum funds.
Acts 1977, 65th Leg., p. 2457, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.172. SALE AND LEASE BY AGENT. The owner of said land is hereby authorized to sell or lease to any person, firm, or corporation the oil and gas that may be thereon or therein upon such terms and conditions as such owner may deem best, subject only to the provisions hereof, and he may have a second lien thereon to secure the payment of any sum due him. All leases and sales so made shall be assignable. No oil or gas rights shall be sold or leased hereunder for a delay rental during the primary term of less than 10 cents per acre per year plus royalty, and in case of production, the lessee or purchaser shall pay the state the undivided one-sixteenth of the value of the oil and gas reserved herein, and like amounts to the owner of the soil.
Acts 1977, 65th Leg., p. 2457, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 624, § 44, eff. Sept. 1, 1985.
§ 52.173. OFFSET WELLS. (a) If oil and/or gas should be produced in commercial quantities within 1,000 feet of land subject to this subchapter,or in any case where land subject to this subchapter is being drained by production of oil or gas the owner, lessee, sublessee, receiver, or other agent in control of land subject to this subchapter shall in good faith begin the drilling of a well or wells upon such state land within 100 days after the draining well or wells or the well or wells completed within 1,000 feet of the state land commence to produce in commercial quantities, and shall prosecute such drilling with diligence to reasonably develop the state land and to protect such state land against drainage.
(b) An offset well shall be drilled to a depth and the means shall be employed which may be necessary to prevent undue drainage of oil or gas from beneath the state land.
(c) Within 30 days after an offset well has been completed or abandoned, a log of each well shall be filed in the land office.
(d) At the determination of the commissioner and with his written approval, the payment of a compensatory royalty shall satisfy the obligation to drill an offset well or wells. Such compensatory royalty shall be paid at a royalty rate established by the commissioner if the land is unleased, or at the royalty rate provided by the state lease, if the land is leased. Such compensatory royalty shall be paid on the market value at the well of production from the draining well or the well located within 1,000 feet of the state land.
Acts 1977, 65th Leg., p. 2458, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, § 30, eff. Sept. 1, 1987.
§ 52.174. FAILURE TO DRILL OFFSET. If such persons fail or refuse to begin the drilling of such well or wells within the time required or to prosecute such drilling as necessary for the purpose intended herein, any lease of such land executed under the provisions of this law shall be subject to forfeiture by the Commissioner of the General Land Office, and he shall forfeit same when he is sufficiently informed of the facts which authorize a forfeiture, and shall, on the wrapper containing the papers relating to such lease, write and sign officially words declaring such forfeiture, and the lease and all rights thereunder shall thereupon be forfeited together with all payments made thereunder. Notice of such action shall forthwith be mailed to the persons shown by the records of the General Land Office to be the owners of the surface and the owners of the forfeited lease at their last known addresses as shown by the records of said office. Upon proper showing by the owner of the forfeited lease within 30 days after the declaration of forfeiture, the lease may, at the discretion of the commissioner and upon the terms of this subchapter and such other terms as he may prescribe, be reinstated. If such lease be not reinstated within such time, or if the commissioner finds that any unleased land included in this law is being drained, the commissioner shall notify the person at his last known address, as shown by records of the General Land Office to be the surface owner, that the oil and gas is subject to sale or lease by the owner of the soil in accordance with this law, and that drilling is required. If such owner shall fail or refuse to obtain the commencement of such a well within 100 days after the date of such notice, the relinquishment herein granted and the rights acquired thereunder shall be subject to forfeiture by the commissioner by endorsing on the file wrapper containing the papers relating to the sale of the land, words indicating such forfeiture, and such rights shall thereupon be forfeited, and notice of such forfeiture shall be forwarded to the county clerk of the county wherein the land is situated. The rights of any owner of the soil which may have ipso facto terminated under prior laws shall be reinstated and are hereby reinstated, together with all rights acquired thereunder except where rights of third parties may have intervened. All rights herein reinstated shall be subject to the terms and provisions of this subchapter.
Acts 1977, 65th Leg., p. 2458, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.175. LEASE OF OIL AND GAS AFTER FORFEITURE. When the relinquishment or agency right herein granted has been forfeited, the land shall be subject to lease for oil and gas under the procedure provided by law for the leasing of unsold surveyed public school lands. The substantive provisions of Subchapter B of this chapter and Subchapters D and E, Chapter 32, of this code shall apply to the oil and gas lease. No oil and gas lease shall be executed which provides for a royalty of less than one-eighth, payable to the state for the benefit of the permanent free school fund. The owner of the soil shall not be entitled to any revenue generated by a lease executed pursuant to this section. Upon the termination or expiration of a lease so executed by the Commissioner of the General Land Office, the rights of the surface owner to act under this law shall be ipso facto reinstated.
Acts 1977, 65th Leg., p. 2459, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 912, § 1, eff. Aug. 31, 1987; Acts 1993, 73rd Leg., ch. 897, § 36, eff. Sept. 1, 1993.
§ 52.176. FORFEITURE OF RIGHTS. If any person, firm, or corporation operating under this law shall fail or refuse to make the payment of any sum within 30 days after it becomes due, or if such one or an authorized agent should knowingly make any false return or false report concerning production or drilling, or if such one should fail to file reports in the manner required by law or fail to comply with General Land Office rules and regulations or refuse the proper authority access to the records pertaining to the operations, or if such one or an authorized agent should knowingly fail or refuse to give correct information to the proper authority, or knowingly fail or refuse to furnish the land office a correct log of any well, or if any lease is assigned and the assignment is not filed in the General Land Office as required by law, the rights acquired under the permit or lease shall be subject to forfeiture by the commissioner, and he shall forfeit same when sufficiently informed of the facts which authorize a forfeiture, and the oil and gas shall be subject to sale in the manner provided for the sale of other forfeited rights hereunder, except that the owner of the soil shall not thereby forfeit his interest in the oil and gas. Such forfeiture may be set aside and all rights theretofore existing shall be reinstated at any time before the rights of another intervene, upon satisfactory evidence of future compliance with the provisions of this subchapter.
Acts 1977, 65th Leg., p. 2459, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.177. RIGHTS OF SUBSEQUENT PURCHASER. If one acquires a valid right by permit or lease to the oil and gas in any unsold public free school or asylum land under any other law, a subsequent purchaser of such land shall not acquire any rights to any of the oil and gas that may be therein, but when the rights under such permit or lease terminate in the manner provided in the law under which they were obtained, then the owner of the soil shall become the owner of that portion of the oil and gas herein relinquished, and shall be thereafter subject to the provisions of this law. A forfeiture of the purchase of any survey or tract for any cause shall operate as a forfeiture of the minerals therein to the state. A relinquishment to the state of a lease producing oil or gas in paying quantities shall not operate to relinquish or convey to the owner of the soil any interest whatever in the oil and gas that may be in the land included in said lease.
Acts 1977, 65th Leg., p. 2459, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.178. OPERATION UNDER PERMIT. The owner of a permit or combination of permits shall have 18 months from the date or average date thereof in which to begin drilling a well for oil and gas on some portion of the land included therein. The drilling on one permit shall be sufficient protection against forfeiture of all the permits included in a combination. Owners of permits or combination of permits included herein shall have three years after the date or average date thereof in which to complete the development of oil and gas thereon, and if oil and gas should not be found in paying quantities and a lease applied for within said time all rights in such permit or combination of permits shall terminate, and the oil and gas in such land shall become subject to the provisions of this law relating to the relinquishment of oil and gas to the owner of the soil.
Acts 1977, 65th Leg., p. 2460, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.179. LEASE UNDER PERMIT. If oil or gas should be produced in paying quantities upon any land included in this law, the owner of the permit shall report the development to the commissioner within 30 days thereafter and apply for a lease upon such whole surveys or tracts in each permit as the owner or owners of a combination of permits may desire to be leased, and accompany the application with a log of the wells, and the correctness of the log shall be sworn to by the owner, manager, or driller, and thereupon a lease shall be issued without the payment of any additional sum of money and for a period not to exceed 10 years, subject to renewal or renewals.
Acts 1977, 65th Leg., p. 2460, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.180. PAYMENTS UNDER PERMIT. The owner of a permit or combination of permits who desires to avail himself of the terms of this law, shall pay the state 10 cents per acre, annually in advance, for the second and third years, and shall likewise pay the owner of the soil 10 cents per acre for the first year of such permit, before availing himself of the privileges hereof, and a like sum thereafter annually in advance. A failure to make either of said payments shall subject the permit or permits to forfeiture by the commissioner, and when sufficiently informed of the facts which subject the permits to forfeiture, said commissioner shall forfeit the same by an endorsement of forfeiture upon the wrapper containing the papers relating to the permits and sign it officially. The payment of 10 cents per acre to the owner of the soil may be made to him or to the county clerk of the county in which the land is situated, and said clerk shall deposit such payment as he receives, in some bank at the county seat to the credit of the record owner of such land. If the owner of the soil refuses to accept such payment, said clerk shall withdraw such deposit and return it to the owner of the permit. The payment, or the tender of payment, shall be evidenced by the receipt of the owner or part owner or county clerk filed among the papers in the land office relating to such permits.
Acts 1977, 65th Leg., p. 2460, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.181. RELINQUISHMENT UNDER PERMIT. The owner of a permit or combination of permits may relinquish to the state a permit or combination of permits or any whole survey or whole tract included in a permit at any time before obtaining a lease therefor by having such relinquishment recorded in the counties in which the land or part thereof is situated, and by filing it in the land office within 60 days after its execution, with a filing fee set by the commissioner in an amount not less than $1.
Acts 1977, 65th Leg., p. 2460, ch. 871, art. I, § 1, eff. Sept. 1, 1977. . Amended by Acts 1983, 68th Leg., p. 405, ch. 81, § 21(k), eff. Sept. 1, 1983.
§ 52.182. DAMAGES TO SOIL. The payment of delay rentals and the obligation to pay the owner of the soil one-sixteenth of the production and the payment of same when produced and the acceptance of same by the owner, shall be in lieu of all damages to the soil.
Acts 1977, 65th Leg., p. 2461, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 18, eff. Aug. 26, 1985.
§ 52.183. EFFECTIVE DATE OF LEASE. No mineral lease executed by the owner of the land or minerals under this subchapter is effective until a certified copy of the lease is filed in the land office.
Acts 1977, 65th Leg., p. 2461, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.184. STATEMENT OF CONSIDERATION. No lease executed under this subchapter after September 17, 1939, is binding on the state unless it recites the actual and true consideration paid or promised.
Acts 1977, 65th Leg., p. 2461, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.185. UNIVERSITY LAND. The provisions of this subchapter relating to a combination of permits and extension of time for beginning development and time for development applies to permits on university land.
Acts 1977, 65th Leg., p. 2461, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 52.186. LEASE OF CERTAIN MINERALS WHEN OWNER OF THE SOIL UNAVAILABLE. (a) If an owner of the soil or of any undivided interest therein of any land subject to the terms of this subchapter or Subchapter C, Chapter 53, of this code is found to be unavailable under Subsection (b) of this section to act as the state's agent for leasing oil and gas or any mineral leased under Subchapter C, Chapter 53, of this code, such land or undivided interest therein shall be subject to lease for the applicable minerals under the procedure provided by Subchapter B of this chapter for the leasing of unsold surveyed public school lands. The substantive provisions of Subchapter B of this chapter and Subchapters D and E, Chapter 32, of this code shall apply to a lease of land subject to lease under this subchapter. The substantive provisions of Subchapter E, Chapter 53, of this code and Subchapters D and E, Chapter 32, of this code shall apply to a lease of land subject to lease under Subchapter C, Chapter 53, of this code. Subject to the provisions of Subsection (b)(4) of this section, the owner of the soil shall not be entitled to any revenue generated by a lease executed pursuant to this section.
(b) An owner of the soil or of an undivided interest therein may be found to be unavailable to act as the state's agent for leasing oil and gas or any mineral leased under Subchapter C, Chapter 53, of this code, if the following conditions have been satisfied:
(1) Any party who has been unable to locate an owner of any interest, including an undivided interest, in the surface of land subject to this subchapter or Subchapter C, Chapter 53, of this code must submit a written affidavit to the commissioner stating that the party (hereafter called affiant) has been unable to locate said owner. This affidavit must specify the legal description of the land which the affiant has been unable to lease and the extent of the interest and type of mineral which the affiant has been unable to lease. In the affidavit, the affiant must also attest to the fact that he diligently searched the county clerk's records and the tax assessor's records to determine the name, identity, and last known place of residence of the owner of the soil who could lease the interest that the affiant has been unable to lease. The affiant must further attest to the results of his search of such records and to any other steps taken to locate the owner of the soil.
(2) The commissioner shall provide notice to any owner of the soil identified by the affiant in Subdivision (1) of this subsection of the consequences of a finding that such owner of the soil is unavailable to act as the state's leasing agent. Such notice shall be in writing to the owner of the soil's last known address and shall also be provided by publication in the manner provided by the Texas Rules of Civil Procedure for citation by publication in actions against unknown owners or claimants of an interest in land.
(3) If the owner of the soil has not contacted the commissioner within 30 days after the completion of all notice procedures provided under Subdivision (2) of this subsection, then the owner of the soil will be deemed unavailable to act as the state's leasing agent and the School Land Board may lease the state's mineral interest under Subsection (a) of this section. However, if prior to the execution of a lease under Subsection (a) the owner of the soil notifies the commissioner in writing that he can and will act as the state's agent, then the owner of the soil's ability to act as a leasing agent under this subchapter or under Subchapter C, Chapter 53, of this code shall be reinstated.
(4) If the owner of the soil or of any undivided interest therein appears within two years after the execution of a lease on his land pursuant to this section, he shall be entitled to one-half of all royalties theretofore paid or thereafter to be paid under such lease, reduced in the proportion which his interest bears to the whole and undivided surface estate, upon showing to the satisfaction of the commissioner that the information submitted under Subsection (b)(1) was inaccurate or that a reasonably diligent search would have resulted in his being located.
(c) Upon the termination or expiration of a lease for oil and gas or any mineral leased under Subchapter C, Chapter 53, of this code executed pursuant to this section, the rights of the owner of the soil to act under this subchapter shall be ipso facto reinstated.
Added by Acts 1979, 66th Leg., p. 860, ch. 384, § 1, eff. June 6, 1979. Amended by Acts 1987, 70th Leg., ch. 912, § 2, eff. Aug. 31, 1987; Acts 1993, 73rd Leg., ch. 897, § 37, eff. Sept. 1, 1993.
§ 52.188. ASSIGNMENTS TO THE OWNER OF THE SOIL. (a) An owner of the soil may acquire by assignment a lease which he executed on land subject to the Relinquishment Act, Subchapter F, Chapter 52 of this code; however, such an assignment is subject to the terms of this section.
(b) When an owner of the soil seeks an assignment under Subsection (a) of this section, both the current lessee and the owner of the soil should notify the General Land Office of the proposed assignment. This notification must include proof of the consideration to be paid for the assignment. The land commissioner may then approve the assignment; if the commissioner does approve it, then both the current lessee and the owner of the soil will receive written notice of this approval. Such written approval shall also become part of the General Land Office's mineral file on this land.
(c) A lease which has been assigned to an owner of the soil without the advance approval of the land commissioner is void as of the time of assignment. In addition, the land commissioner may also forfeit the agency powers of the owner of the soil, and the state will execute a subsequent lease pursuant to Section 52.175 of this code.
(d) Whenever an owner of the soil is assigned a Relinquishment Act lease that he executed, he shall be accountable to the state as follows:
(1) If the lease was assigned to the owner of the soil without the advance approval of the commissioner and the owner of the soil subsequently assigns the lease, the owner of the soil must pay the state two times the entire consideration that he received upon subsequent assignment of the lease. Payment of this money in no way alters the fact that the lease is void under Subsection (c) of this section.
(2) When an assignment to an owner of the soil has the commissioner's advance approval and the owner of the soil subsequently assigns the lease, the owner of the soil must pay the state one-half of his profit on the subsequent assignment. His profit is the difference between what he paid for his assignment and what he received for the subsequent assignment.
(e) Under this section, an assignment will be treated as if it were made to the owner of the soil when:
(1) the assignee is a nominee of the owner of the soil; (2) the assignee is a corporation or subsidiary in which the owner of the soil is a principal stockholder or is an employee of such a corporation or subsidiary;
(3) the assignee is a partnership in which the owner of the soil is a partner or is an employee of such a partnership;
(4) the assignee is a principal stockholder or employee of the corporation which is the owner of the soil;
(5) the assignee is a partner or employee in a partnership which is the owner of the soil;
(6) the assignee is a fiduciary for the owner of the soil, including but not limited to a guardian, trustee, executor, administrator, receiver, or conservator for the owner of the soil; or
(7) the assignee is a family member of the owner of the soil or related to the owner of the soil by marriage, blood, or adoption.
Added by Acts 1985, 69th Leg., ch. 624, § 45, eff. Sept. 1, 1985. Renumbered from § 52.187 and amended by Acts 1987, 70th Leg., ch. 912, § 3, eff. Aug. 31, 1987.
§ 52.189. AUTHORITY AND DUTIES OF AGENT. (a) Prohibition Against Self-Dealing. (1) The owner of the soil may not lease, either directly or indirectly, to himself or to a nominee, to any corporation or subsidiary in which he is a principal stockholder or to an employee of such a corporation or subsidiary, or to a partnership in which he is a partner or to an employee of such a partnership. If the owner of the soil is a corporation or a partnership, then the owner of the soil may not lease, either directly or indirectly, to a principal stockholder of the corporation or to a partner of the partnership, or any employee of the corporation or partnership. The owner of the soil may not lease, either directly or indirectly, to his fiduciary, including but not limited to a guardian, trustee, executor, administrator, receiver, or conservator.
(2) Except as provided by this section, the owner of the soil may not lease, directly or indirectly, to a person related to him within and including the second degree of consanguinity or affinity, including a person related by adoption, or to a corporation or subsidiary in which that person is a principal stockholder, or to a partnership in which that person is a partner, or to an employee of such a corporation or subsidiary or partnership.
(3) An owner of the soil who wishes to lease to a person, corporation, or partnership described in Subdivision (2) may request the approval of the board for authority to execute such a lease before its execution. The owner of the soil requesting approval must also execute and file with the commissioner a sworn affidavit stating that the owner of the soil will not receive any benefit under a lease so approved by the board that will not be shared with the permanent school fund in the proportion prescribed by this subchapter.
(4) If an owner of the soil makes any material misstatement of fact in connection with an application to the board or affidavit made pursuant to Subdivision (3), then any lease executed pursuant to the authority of the board shall be voidable at the election of the commissioner. The election to void such a lease shall be cumulative of and in addition to all other remedies available to the commissioner or the state.
(b) Fiduciary Duty of Agent. An owner of the soil owes the state a fiduciary duty and a duty of utmost good faith. An owner of the soil must fully disclose any facts affecting the state's interest and must act in the best interest of the state. Any conflict of interest must be resolved by putting the interests of the state before the interests of the owner of the soil. In addition to these specific statutory duties, the owner of the soil owes the state all the common-law duties of a holder of executive rights.
(c) When the commissioner determines that an owner of the soil has breached any duty or obligation under this subchapter, the commissioner may request that the attorney general file an action or proceeding either to enforce the duties and obligations of the owner of the soil or to forfeit the then applicable agency rights of the surface owner. Such an action or proceeding shall be filed in a district court in Travis County.
(d) A penalty of 10 percent shall be imposed on any sums due the state because a surface owner breaches a fiduciary duty. This penalty shall be applied only to amounts owed as a result of breaches occurring on and after the effective date of this subsection. The imposition of this penalty will not limit the right of the state to obtain punitive damages, exemplary damages, or interest. Any punitive damages or exemplary damages assessed by a court shall be offset by the 10 percent penalty imposed by this subsection.
Added by Acts 1985, 69th Leg., ch. 652, § 1, eff. June 14, 1985. Amended by Acts 1987, 70th Leg., ch. 912, § 6, eff. Aug. 31, 1987; Acts 1987, 70th Leg., ch. 948, § 31, eff. Sept. 1, 1987. Renumbered from § 52.187 by Acts 1987, 70th Leg., ch. 167, § 5.01(a)(31) eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 937, § 2, eff. Sept. 1, 1995.
§ 52.190. LEASE BY OWNER OF THE SOIL. (a) An owner of the soil of lands covered by this subchapter may lease those lands for the purpose of exploring for and producing oil and gas in the manner provided by this section.
(b) An owner of the soil may apply in writing to the board for an oil and gas lease.
(c) The application shall contain the following: (1) the name and address of the applicant; (2) a complete legal description of the land the applicant seeks to lease; (3) the name and address of every owner of the soil of the land the applicant seeks to lease, if the applicant is not the sole owner of the soil;
(4) a brief letter opinion signed by an attorney licensed in this state setting out the surface ownership of the land sought to be leased;
(5) a statement of the applicant's experience in oil and gas exploration and production, including, without limitation, the applicant's Railroad Commission of Texas operator number and a list of any State of Texas or federal oil and gas leases held or operated by the applicant or other entity in which the applicant has or had a significant interest during the five-year period preceding the date of the application;
(6) a statement that the applicant intends to explore for and, if commercially reasonable, produce oil and gas or if the applicant plans that another person or firm shall conduct exploration and production:
(A) the name and address of the person or firm; (B) a description of the person's or firm's experience in oil and gas exploration and production, including, without limitation, the person's or firm's Railroad Commission of Texas operator number and a list of any State of Texas or federal oil and gas leases held or operated by the person or firm during the five-year period preceding the date of the application; and
(C) a description of the applicant's intended degree and type of participation in the exploration of and production from the property and all consideration or benefits the applicant expects to receive in connection with the exploration of and production from the property; and
(7) the amount of bonus, rental, royalty, and other lease terms that the applicant proposes to pay or offer or pay and offer for the lease.
(d) The applicant shall provide geological, geophysical, geochemical, and other data or copies of the data, including interpretative data, pertinent to mineral exploration on the lands for which the application is made, in the applicant's possession or to which the applicant has reasonable access and which the applicant has the ability to provide to the land office. All such data shall be confidential and not subject to the provisions of the open records law, Chapter 552, Government Code, until one year after the expiration, termination, or forfeiture of a lease granted pursuant to this section. After one year after the expiration, termination, or forfeiture of such a lease, the data shall remain confidential to the extent permitted by Chapter 552, Government Code. If a lease is not issued, the data shall be returned to the applicant.
(e) The board may prescribe the form of the application, specify information required to be submitted in support of an application, and, by rule, otherwise provide for the implementation of this section.
(f) The staff of the land office shall review the information presented in the application, other geological, geophysical, and geochemical data reasonably available to it relevant to the land proposed to be leased, and leasing information reasonably available to it relevant to the land proposed to be leased. The staff shall prepare a report to the board that contains:
(1) a summary of bonus, rental, royalty, and other lease terms then being offered and asked for leases of similar lands in the area of the land proposed to be leased; and
(2) any factual data considered by the staff to be relevant, including, but not limited to, data concerning the land proposed to be leased and its estimated value for oil and gas exploration and production, recommended lease terms, and the applicant, including the applicant's history of leasing State of Texas or federal lands for oil and gas.
(g) The board shall consider the application at a regular meeting. It may, in its sole discretion, grant or deny the application or grant the application subject to specified conditions. Such conditions may include a requirement that if the applicant does not materially participate in the exploration or development of the leased premises, through labor performed, cash or goods contributed, or supplying other enhancement in value, the applicant must share equally with the permanent school fund any benefit derived from the lease.
(h) After the board has approved an application, the commissioner shall issue a lease to the applicant. The lease shall conform, as nearly as is practicable, to the form of lease prescribed by the board under Section 32.1071.
(i) The commissioner may not deliver a lease issued under this section until the applicant has executed and delivered to the commissioner a waiver of the applicant's right and duty to act as agent for the state in leasing the leased premises and to receive any part of the bonus, rental, royalty, and other consideration accruing to the owner of the soil under this subchapter. The waiver and the lease shall be effective as of the date the commissioner executes the lease.
(j) Upon the expiration, termination, or forfeiture of a lease issued under this section, the agency rights and duties of the applicant as owner of the soil are reinstated without the necessity for further action by the owner of the soil, the board, or the commissioner.
(k) If an applicant is not the sole owner of the soil, the applicant may secure leases from the other owners of the soil from which the applicant is not prohibited from leasing under Section 52.189. If the applicant must obtain a lease from an owner of the soil from whom the applicant would otherwise not be permitted to lease in order reasonably to explore for or produce or explore for and produce oil or gas, the commissioner may approve the lease on the condition that the applicant shall not receive any benefit from the lease, and, if the applicant should acquire by any method, including devise or inheritance, the right to receive any rental, royalty, or other benefit accruing to the owner of the soil's interest under the lease, the applicant shall assign the benefit to the commissioner for the benefit of the permanent school fund.
(l) The commissioner shall not approve any lease obtained by an applicant from another owner of the soil if the lease contains terms that are substantially inconsistent with or provide for a lesser bonus, rental, or royalty than the lease approved by the board. If the bonus, rental, or royalty in a lease obtained by an applicant from another owner of the soil for a comparable interest is greater than that approved by the board, then the lease approved by the board shall be amended to provide for the greater bonus, rental, or royalty, and the applicant shall be liable for all greater sums due. In determining whether an interest is comparable, the board shall consider the quantum of the interest, the time at which the lease was taken, and any other aspects of the lease transaction that the board considers to be relevant.
Added by Acts 1995, 74th Leg., ch. 937, § 1, eff. Sept. 1, 1995.
SUBCHAPTER H. LEASE LIMITATIONS
§ 52.291. COVERAGE. The following persons, agencies, and entities are subject to the provisions of Sections 52.292 through 52.293 of this code:
(1) the commissioner; (2) the board; (3) boards for lease of land owned by a department, board, or agency of the state created by Chapter 34 of this code;
(4) the Board for Lease of University Lands; (5) the Board of Regents of Texas A&M University; (6) the Board of Regents of Texas Tech University; (7) the Board of Regents of the Texas State University System; (8) the Board of Regents of the University of Houston; (9) any other board of regents or other governing board of a state-supported institution of higher learning having authority to execute oil and gas leases on land owned by the institution;
(10) an owner of land or minerals in this state whose authority to lease the land or minerals as agent for the state arises in whole or in part from what is commonly known as the Relinquishment Act, codified in Subchapter F of this chapter;
(11) the Board for Lease of State Park Lands; (12) the Board for Lease of the Texas Department of Criminal Justice; and (13) the commissioners court of any county in this state.
Acts 1977, 65th Leg., p. 2466, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 38, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 227, § 6, eff. May 23, 1997.
§ 52.297. COMPENSATION FOR DAMAGES FROM USE OF SURFACE. (a) Leases issued under Subchapter B of this chapter for unsold surveyed or unsurveyed school land, other than land included in islands, saltwater lakes, bays, inlets, marshes, and reefs owned by the state in tidewater limits and other than that portion of the Gulf of Mexico within the jurisdiction of the state, must include a provision requiring the compensation for damages from the use of the surface in prospecting for, exploring, developing, or producing the leased minerals.
(b) The commissioner by rule shall set the procedure for receiving compensation for damages to the surface of land dedicated to the permanent school fund.
(c) Money collected for surface damages shall be deposited in a special fund account in the State Treasury to be used for conservation, reclamation, or construction of permanent improvements on land that belongs to the permanent school fund.
(d) The special fund account must be an interest-bearing account, and the interest received on the account shall be deposited in the State Treasury to the credit of the permanent school fund.
(e) Money collected under this section and designated for the construction of permanent improvements as provided by this section must be used not later than two years after the date on which the money is collected.
(f) Any money that remains in the special fund account for longer than two years shall be deposited in the State Treasury to the credit of the permanent school fund.
(g) The compensation for damages under this section is in addition to any bonus, rental, royalty, or other payment required by the lease.
Added by Acts 1985, 69th Leg., ch. 624, § 46, eff. Sept. 1, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 42, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 328, § 8, eff. Jan. 1, 2004.
SUBCHAPTER I. GEOPHYSICAL AND GEOCHEMICAL EXPLORATION PERMIT
§ 52.321. DEFINITIONS. In this subchapter: (1) "Geophysical exploration" means a survey or investigation conducted to discover or locate oil and gas prospects using magnetic, gravity, seismic, and/or electrical techniques.
(2) "Geochemical exploration" means a survey or investigation conducted to discover or locate oil and gas prospects using techniques involving soil sampling and analysis.
(3) "Public school land" means land dedicated by the constitution or laws of this state to the permanent free school fund, and specifically includes land with a mineral classification under Subchapter F of this chapter in which the state has retained the oil and gas interest and areas within tidewater limits.
(4) "Areas within tidewater limits" means islands, saltwater lakes, bays, inlets, marshes, and reefs within tidewater limits and that portion of the Gulf of Mexico within the jurisdiction of Texas.
(5) "Permit" means a license issued by the commissioner authorizing geophysical and/or geochemical exploration on public school land.
(6) "Permittee" means the holder of a permit.
Added by Acts 1981, 67th Leg., p. 2451, ch. 631, § 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 624, § 47, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 897, § 43, eff. Sept. 1, 1993.
§ 52.322. PERMIT REQUIRED FOR EXPLORATION. (a) Except for a person who has a valid oil and gas lease on public school land authorized by this chapter, a person may not conduct geophysical or geochemical exploration on public school land unless the person obtains a permit from the commissioner.
(b) Every person who is authorized to conduct a geophysical or geochemical exploration on public school land shall comply with the commissioner's rules relating to such exploration. Any person with a valid oil and gas lease on land subject to this chapter must comply with the commissioner's rules concerning exploration.
(c) Nothing in this title shall prohibit the conduct of airborne geophysical exploration.
Added by Acts 1981, 67th Leg., p. 2451, ch. 631, § 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 624, § 47, eff. Sept. 1, 1985.
§ 52.323. APPLICATION FOR PERMIT. (a) The person responsible for conducting a geophysical or geochemical exploration is the person who must apply for a permit.
(b) An application for a permit shall be made on a form prescribed by the commissioner and shall state the name and address of each person for whom the exploration is being conducted as well as any other information required by the commissioner.
Added by Acts 1981, 67th Leg., p. 2451, ch. 631, § 1, eff. Sept. 1, 1981.
§ 52.324. AUTHORITY OF COMMISSIONER. (a) The commissioner: (1) as a condition of issuing a permit, shall collect reasonable fees from the applicant in an amount determined by the commissioner;
(2) may require a permittee to furnish to the commissioner, upon the commissioner's request, copies of maps, plats, reports, data, and any other information in the possession of the permittee that relates to the progress or results of an exploration under a permit; provided however, the commissioner shall not require a permittee to furnish any of its interpretive data;
(3) shall by rule require a permittee to restore land explored under the permit as nearly as is practicable to its condition immediately prior to the exploration;
(4) shall by rule determine the procedure for receiving compensation for damages to the surface of public school land except land with a mineral classification under Subchapter F of this chapter; and
(5) may make any other rules relating to geophysical or geochemical explorations, permits, or permittees the commissioner considers appropriate.
(b) Money collected for surface damages shall be deposited and used in the manner provided by Section 52.297 of this chapter.
(c) In the case of areas within tidewater limits, the commissioner shall follow the recommendations of the Parks and Wildlife Department in making rules to prevent unnecessary pollution of water, destruction of fish, oysters, and other marine life, and obstruction of navigation.
(d) If a permittee violates a rule of the commissioner or a term of a permit, the commissioner may cancel the permit.
(e) If by authority of Subsection (a)(2) of this section the commissioner acquires information concerning a permittee's geophysical or geochemical exploration, the commissioner shall consider the information to be confidential and may not disclose it, except by authority of a court order, to the public or any other agency of this state.
Added by Acts 1981, 67th Leg., p. 2451, ch. 631, § 1, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 624, § 47, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 897, § 44, eff. Sept. 1, 1993.
§ 52.325. PERMITTEE'S FAILURE TO COMPLY. (a) If a permittee fails to restore land in accordance with Section 52.324(a)(3) of this code and the rules of the commissioner, the commissioner and any surface lessee may maintain an action against the permittee for actual damages to the land, or to the improvements, growing crops, or domesticated animals on the land that were caused by the geophysical or geochemical exploration.
(b) If a permittee violates this subchapter, the provisions of a permit issued by authority of this subchapter, or a rule of the commissioner, the permittee commits an offense. An offense under this subsection is a misdemeanor punishable by a fine of not less than $100 nor more than $1,000. Each day that a violation occurs is a separate offense.
Added by Acts 1981, 67th Leg., p. 2451, ch. 631, § 1, eff. Sept. 1, 1981. § 53.001. DEFINITIONS. In this chapter: (1) "Commissioner" means the Commissioner of the General Land Office. (2) "Land office" means the General Land Office. (3) "Board" means the School Land Board. (4) "Surface mining" means the mining of minerals by removing the overburden lying above the natural deposit of minerals and mining directly from the natural deposits that are exposed. The term does not include in situ mining activities.
Acts 1977, 65th Leg., p. 2469, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 45, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1483, § 3, eff. Aug. 30, 1999.
SUBCHAPTER B. PROSPECT AND LEASE ON STATE LAND
§ 53.011. LAND SUBJECT TO PROSPECT. Any tract of land that belongs to the state, including islands, salt and freshwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits, the part of the Gulf of Mexico within the state's jurisdiction, unsold surveyed public school land, rivers and channels that belong to the state, and land sold with a reservation of minerals to the state are subject to prospect by any person for those minerals which are not subject to lease or permit under any other statute. A person may not prospect from a location within 2,500 feet of a military base, but prospectors may, from a location more than 2,500 feet from a base, look for minerals within the 2,500-foot strip.
Acts 1977, 65th Leg., p. 2469, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 912, § 4, eff. Aug. 31, 1987; Acts 1987, 70th Leg., ch. 1061, § 4, eff. Aug. 31, 1987; Acts 2003, 78th Leg., ch. 149, § 14, eff. May 27, 2003.
§ 53.012. APPLICATION FOR RIGHT TO PROSPECT. (a) A person who desires to prospect land covered by this subchapter shall file an application with the commissioner designating the area to be prospected.
(b) Each area covered by an application may not be in excess of 640 acres with a 10 percent tolerance for tracts, sections, and surveys that include more than 640 acres.
(c) The commissioner may determine the contents of an application.
Acts 1977, 65th Leg., p. 2469, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 46, eff. Sept. 1, 1993.
§ 53.013. CONDITIONS OF PERMIT. (a) The commissioner may issue to the first applicant a permit to prospect the area designated in the applicant's application for a period up to one year from the date the application is filed. If the commissioner elects to grant the application for a permit to prospect under the provisions of this subchapter, the permit shall not be issued until after the land office receives the rental payment set by the commissioner.
(b) After receipt of an additional rental payment set by the commissioner, the commissioner may extend the permit for a period of one year.
(c) No permit may be extended for a period of more than five consecutive years from the date of its issuance.
Acts 1977, 65th Leg., p. 2470, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 923, § 19, eff. Aug. 26, 1985; Acts 1993, 73rd Leg., ch. 897, § 47, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 354, § 4, eff. Aug. 28, 1995.
§ 53.015. APPLICATION FOR LEASE. (a) At any time during the term of the permit, the permittee may file an application to lease the area or a designated portion of the area covered by the permit for the purpose of mining or producing the minerals covered by the permit.
(b) An application to lease must designate the specific minerals the permittee is applying to lease. The commissioner may determine any additional information an application must contain.
(c) If the area designated for lease in the application is less than the area covered by the permit, the applicant shall include with the application field notes prepared by the county surveyor or by a licensed state land surveyor describing the land designated.
Acts 1977, 65th Leg., p. 2470, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 48, eff. Sept. 1, 1993.
§ 53.016. ISSUANCE OF LEASE. (a) After receipt of the bonus payment set by the commissioner, the lease shall be issued by the commissioner under the provisions of this subchapter and shall be for a primary term not to exceed 20 years and as long after that time as the minerals are produced in paying quantities.
(b) Any lease covering land adjacent to a military base shall require the lessee to forego the right to use the surface within 2,500 feet of the military base while exploiting the minerals. The commissioner may include in the lease any other provision the commissioner considers necessary for protection of the interests of the state.
Acts 1977, 65th Leg., p. 2470, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 5248, ch. 965, § 11, eff. June 19, 1983; Acts 1993, 73rd Leg., ch. 897, § 49, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 149, § 15, eff. May 27, 2003.
§ 53.018. ROYALTY. The royalty under the lease shall not be less than one-sixteenth of the value of the minerals produced under the lease.
Acts 1977, 65th Leg., p. 2470, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.019. PAYMENTS. Lease payments and royalty shall be paid to the commissioner at Austin, and all payments shall be credited to the account of the permanent school fund.
Acts 1977, 65th Leg., p. 2470, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.020. ASSIGNMENT AND TRANSFER. A lease issued under this subchapter may be transferred or assigned at any time in the manner provided by Section 52.026 of this code.
Acts 1977, 65th Leg., p. 2470, ch. 871, art. I, § 1, eff. Sept. 1, 1977. . Amended by Acts 1983, 68th Leg., p. 405, ch. 81, § 21(l), eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 897, § 50, eff. Sept. 1, 1993.
§ 53.021. FORFEITURE OF LEASE. (a) A lease is subject to forfeiture by act of the commissioner if:
(1) the lessee fails or refuses to pay any amount which is due either as a lease payment or royalty;
(2) the lessee or his authorized agent knowingly makes any false return or false report concerning the lease;
(3) the lessee or his agent refuses the commissioner or his authorized representative access to the records or other data relating to operations under the lease; or
(4) a material term of the lease is violated. (b) Any area forfeited under this section is subject to application for a permit under the same terms as the original application.
Acts 1977, 65th Leg., p. 2471, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.022. EFFECT OF SUBCHAPTER. None of the provisions of this subchapter shall apply to, alter, or affect any rights existing on June 22, 1955, under a valid permit issued by the commissioner under the provisions of Section 12, Chapter 271, General Laws, Acts of the 42nd Legislature, Regular Session, 1931, as amended (Article 5421c, Vernon's Texas Civil Statutes), but if the permittee desires that his lease continue as long as production is obtained in paying quantities, he shall pay lease payments and royalty provided in this subchapter.
Acts 1977, 65th Leg., p. 2471, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.023. IMMEDIATE LEASE. If the commissioner determines that a certain mineral is located on a state tract subject to prospect under this subchapter, a lease for that mineral may be issued immediately on the application for the prospect permit if the applicant identifies the mineral in the application and requests the immediate issuance of the lease.
Added by Acts 1985, 69th Leg., ch. 923, § 20, eff. Aug. 26, 1985.
§ 53.024. PENALTY AND INTEREST. A lease issued under this subchapter shall be subject to Sections 52.131(e) through (j) of this code.
Added by Acts 1985, 69th Leg., ch. 923, § 20, eff. Aug. 26, 1985. Amended by Acts 1993, 73rd Leg., ch. 897, § 51, eff. Sept. 1, 1993.
§ 53.025. LEASE RELINQUISHMENT. A lease issued under this subchapter may be relinquished to the state at any time in the manner provided by Section 52.027 of this code.
Added by Acts 1993, 73rd Leg., ch. 897, § 52, eff. Sept. 1, 1993.
§ 53.026. IN KIND ROYALTY. (a) The commissioner or the commissioner acting on behalf of and at the direction of the board or a board for lease may negotiate and execute a contract or any other instrument or agreement necessary to dispose of or enhance their portion of the royalty taken in kind, including contracts for sale, purchase, transportation, or storage.
(b) The commissioner or the commissioner acting on behalf of and at the direction of the board or a board for lease may negotiate and execute a contract or any other instrument or agreement necessary to convert that portion of the royalty taken in kind to other forms of energy, including electricity.
(c) This section shall not be construed to surrender or in any way affect the right of the state under an existing or future lease to receive monetary royalty from its lessee.
Added by Acts 1993, 73rd Leg., ch. 897, § 52, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 405, § 50, eff. Sept. 1, 1999.
§ 53.027. CONTRACTS AND AGREEMENTS. On the land office's written request, mailed to the lessee's address as shown on its lease or otherwise properly changed in conformity with the terms of the lease, a copy of a contract for the sale or processing of minerals leased under this subchapter and any subsequent agreement or amendment to the contract shall be filed in the land office within 30 days after the date the land office mails the written request. The land office shall treat a contract, agreement, or amendment filed in the land office as confidential unless otherwise authorized by the lessee.
Added by Acts 1993, 73rd Leg., ch. 897, § 52, eff. Sept. 1, 1993.
§ 53.028. AUDIT INFORMATION CONFIDENTIAL. (a) All information secured, derived, or obtained during the course of an inspection or examination of books, accounts, reports, or other records as provided by this code, a rule, or a lease provision is confidential and may not be used publicly, opened for public inspection, or disclosed, except for information in a lien filed under this chapter and except as permitted under Subsection (d) of this section.
(b) All information made confidential in this section is not subject to subpoena directed to the commissioner, the attorney general, or the governor except in a judicial or administrative proceeding to which this state is a party.
(c) The commissioner or the attorney general may use information made confidential by this section and contracts made confidential by Section 53.027 of this code to enforce this chapter or may authorize their use in judicial or administrative proceedings to which this state is a party.
(d) This section does not prohibit: (1) the delivery of information made confidential by this section to the lessee or its successor, receiver, executor, guarantor, administrator, assignee, or representative;
(2) the publication of statistics classified to prevent the identification of a particular audit or items in a particular audit;
(3) the release of information that is otherwise available to the public; or
(4) the release of information concerning the amount of royalty assessed as a result of an examination conducted under this code, a rule, or a lease provision or the release of other information that would have been properly included in reports required under this code, a rule, or a lease provision.
Added by Acts 1993, 73rd Leg., ch. 897, § 52, eff. Sept. 1, 1993.
SUBCHAPTER C. LEASE OF MINERALS BY SURFACE OWNER
§ 53.061. AUTHORITY TO LEASE CERTAIN MINERALS. (a) The state constitutes the owner of the surface its agent to lease to any person any mineral, except oil and gas, which may be within all or part of a survey previously sold with all minerals reserved to the state.
(b) The lease shall be made on terms and conditions that may be prescribed by the school land board.
Acts 1977, 65th Leg., p. 2471, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 1061, § 6, eff. Aug. 31, 1987.
§ 53.062. LEASE OF MINERALS SEPARATELY AND TOGETHER. Minerals covered by the provisions of this subchapter may be leased either separately or together.
Acts 1977, 65th Leg., p. 2471, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.063. FORMS. The owner of the surface may lease to any person the minerals covered by this subchapter on lease forms prepared by the land office.
Acts 1977, 65th Leg., p. 2471, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.064. PREREQUISITES FOR EFFECTIVENESS OF LEASE. (a) No lease executed by the owner of the surface is binding on the state unless it recites the actual consideration paid or promised for the lease. A lease covering land adjacent to a military base shall require the lessee to forego the right to use the surface within 2,500 feet of the military base while exploiting the minerals.
(b) No lease is effective until a certified copy is filed in the land office and the bonus accruing to the state is paid to the commissioner. The commissioner is entitled to reject for filing any lease submitted to him that he feels is not in the best interest of the state.
Acts 1977, 65th Leg., p. 2471, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 149, § 16, eff. May 27, 2003.
§ 53.065. PAYMENTS UNDER LEASE. (a) Under a lease executed under this subchapter before September 1, 1987, the lessee shall pay to the state 60 percent of all bonuses agreed to be paid for the lease and 60 percent of all rentals and royalties that are payable under the lease. The lessee shall pay to the owner of the surface 40 percent of all bonuses agreed to be paid for the lease and 40 percent of all rentals and royalties payable under the lease.
(b) Except as provided by Subsection (c), under a lease executed under this subchapter on or after September 1, 1987, the lessee shall pay:
(1) to the state 80 percent of all bonuses agreed to be paid for the lease and 80 percent of all rentals and royalties that are payable under the lease; and
(2) to the owner of the surface 20 percent of all bonuses agreed to be paid for the lease and 20 percent of all rentals and royalties payable under the lease.
(c) Under a lease executed under this subchapter on or after September 1, 1999, for the exploration and production by surface mining of coal, lignite, potash, sulphur, thorium, or uranium, the lessee shall pay:
(1) to the state 60 percent of all bonuses agreed to be paid for the lease and 60 percent of all rentals and royalties that are payable under the lease; and
(2) to the owner of the surface 40 percent of all bonuses agreed to be paid for the lease and 40 percent of all rentals and royalties payable under the lease.
(d) If production is obtained, the state shall receive not less than one-sixteenth of the value of the minerals produced.
Acts 1977, 65th Leg., p. 2472, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 1061, § 7, eff. Aug. 31, 1987; Acts 1999, 76th Leg., ch. 1483, § 4, eff. Aug. 30, 1999.
§ 53.066. DAMAGES TO SURFACE. Payments made by the lessee to the owner of the surface as provided in this subchapter and acceptance of the payments by the owner of the surface are in place of all damages to the soil.
Acts 1977, 65th Leg., p. 2472, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.067. PAYMENT PROCEDURE. Royalties and other payments accruing to the state under this subchapter shall be paid to the commissioner in Austin and shall be deposited in the fund to which the minerals belong.
Acts 1977, 65th Leg., p. 2472, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.068. PRODUCTION REPORT AND RECORDS. (a) Each payment shall be accompanied by an affidavit of the lessee or his authorized agent indicating:
(1) the amount of minerals produced and marketed during the month; (2) the person to whom the minerals were sold; and (3) the selling price for the minerals as shown by copies of the smelter, mint, mill, refinery, or other returns or documents attached to the affidavit.
(b) Books, accounts, weights, wage contracts, correspondence, and other documents or papers relating to production under this subchapter are open at all times to inspection by the commissioner or his authorized representatives.
Acts 1977, 65th Leg., p. 2472, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.069. FORFEITURE OF LEASE. (a) A lease and all rights under a lease are subject to forfeiture by action of the commissioner if the lessee or his assignee, sublessee, receiver, or other agent in control of the lease:
(1) fails or refuses to pay any royalty within 30 days after it becomes due;
(2) fails or refuses to the proper authorities access to the records relating to the operations; or
(3) knowingly fails or refuses to give correct information to the proper authorities.
(b) The commissioner may declare the forfeiture when he is sufficiently informed of the facts that authorize the forfeiture. He shall write on the wrapper containing the papers relating to the lease words declaring the forfeiture and shall sign it officially. Then the lease and all rights under the lease together with payments made under it are forfeited.
(c) Notice of the forfeiture shall be mailed to the person shown by the records of the land office to be the owner of the surface and the owner of the forfeited lease at their last known addresses as shown in the land office records.
Acts 1977, 65th Leg., p. 2472, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.070. REINSTATEMENT OF LEASE. (a) If the owner of the forfeited lease complies with the provisions of this subchapter within 30 days after the declaration of forfeiture, the commissioner may reinstate the lease under the terms of this subchapter and other terms that he may prescribe.
(b) If the lease is not reinstated within the 30-day period, the owner of the surface, as agent of the state, is entitled to lease the minerals.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.071. LIEN. The state has a first lien on all minerals produced from any lease to secure the payment of unpaid royalty or other amounts that are due under this subchapter.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.072. EFFECT OF CERTAIN LAWS. Any rights acquired under Articles 5388 through 5403, Revised Civil Statutes of Texas, 1925, before March 15, 1967, are not affected by the repeal of those articles, and the rights, powers, duties, and obligations conferred or imposed by those articles are governed by those repealed articles.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.073. CERTAIN MINERALS AND LAWS EXEMPT FROM SUBCHAPTER. The provisions of this subchapter do not apply to or affect oil and gas and do not affect the provisions of Subchapter F, Chapter 52 of this code or Subchapter B of this chapter.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.074. AUTHORITY AND DUTIES OF AGENT. (a) Prohibition Against Self-Dealing. (1) The owner of the soil may not lease, either directly or indirectly, to himself or to a nominee, to any corporation or subsidiary in which he is a principal stockholder or to an employee of such a corporation or subsidiary, or to a partnership in which he is a partner or to an employee of such a partnership. If the owner of the soil is a corporation or a partnership, then the owner of the soil may not lease, either directly or indirectly, to a principal stockholder of the corporation or to a partner of the partnership, or any employee of the corporation or partnership. The owner of the soil may not lease, either directly or indirectly, to his fiduciary, including but not limited to a guardian, trustee, executor, administrator, receiver, or conservator.
(2) Except as provided by this section, the owner of the soil may not lease, directly or indirectly, to a person related to him within and including the second degree of consanguinity or affinity, including a person related by adoption, or to a corporation or subsidiary in which that person is a principal stockholder, or to a partnership in which that person is a partner, or to an employee of such a corporation or subsidiary or partnership.
(3) An owner of the soil who wishes to lease to a person, corporation, or partnership described in Subdivision (2) may request the approval of the board for authority to execute such a lease before its execution. The owner of the soil requesting approval must also execute and file with the commissioner a sworn affidavit stating that the owner of the soil will not receive any benefit under a lease so approved by the board that will not be shared with the permanent school fund in the proportion prescribed by this subchapter.
(4) If an owner of the soil makes any material misstatement of fact in connection with an application to the board or affidavit made pursuant to Subdivision (3), then any lease executed pursuant to the authority of the board shall be voidable at the election of the commissioner. The election to void such a lease shall be cumulative of and in addition to all other remedies available to the commissioner or the state.
(b) Fiduciary Duty of Agent. An owner of the soil owes the state a fiduciary duty and a duty of utmost good faith. An owner of the soil must fully disclose any facts affecting the state's interest and must act in the best interest of the state. Any conflict of interest must be resolved by putting the interests of the state before the interests of the owner of the soil. In addition to these specific statutory duties, the owner of the soil owes the state all the common-law duties of a holder of executive rights.
(c) Consequences of a Breach of the Surface Owner's Fiduciary Duty or a Violation of the Prohibition Against Self-Dealing. When the commissioner determines that an owner of the soil has breached any duty or obligation under this subchapter, the commissioner may request that the attorney general file an action or proceeding either to enforce the duties and obligations of the owner of the soil or to forfeit the then applicable agency rights of the surface owner. Such an action or proceeding shall be filed in a district court in Travis County.
(d) Leasing Procedure When Surface Owner's Agency Rights Have Been Forfeited. When the surface owner's agency rights have been forfeited in accordance with Subsection (c) of this section, the minerals subject to lease under this subchapter can then be leased under the leasing procedure set out for the lease of oil and gas under Section 52.175 of this code. The substantive provisions of Subchapter E of this chapter and Subchapters D and E, Chapter 32, of this code shall apply to the lease.
(e) A penalty of 10 percent shall be imposed on any sums due the state because a surface owner breaches a fiduciary duty. This penalty shall be applied only to amounts owed as a result of breaches occurring on and after the effective date of this section. The imposition of this penalty will not limit the right of the state to obtain punitive damages, exemplary damages, or interest. Any punitive damages or exemplary damages assessed by a court shall be offset by the 10 percent penalty imposed by this subsection.
Added by Acts 1987, 70th Leg., ch. 912, § 5, eff. Aug. 31, 1987. Amended by Acts 1993, 73rd Leg., ch. 897, § 53, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 937, § 4, eff. Sept. 1, 1995.
§ 53.075. ASSIGNMENT AND TRANSFER. A lease issued under this subchapter may be assigned or transferred at any time in the manner provided by Section 52.026 of this code.
Added by Acts 1993, 73rd Leg., ch. 897, § 54, eff. Sept. 1, 1993.
§ 53.076. LEASE RELINQUISHMENT. A lease issued under this subchapter may be relinquished to the state at any time in the manner provided by Section 52.027 of this code.
Added by Acts 1993, 73rd Leg., ch. 897, § 54, eff. Sept. 1, 1993.
§ 53.077. IN KIND ROYALTY. (a) The commissioner, each owner of the soil under this subchapter, or the commissioner acting on the behalf of and at the direction of an owner of the soil under this subchapter may negotiate and execute a contract or any other instrument or agreement necessary to dispose of or enhance their portion of the royalty taken in kind, including a contract for sale, transportation, or storage.
(b) The commissioner, each owner of the soil under this subchapter, or the commissioner acting on behalf of and at the direction of the owner of the soil under this subchapter may negotiate and execute a contract or any other instrument or agreement necessary to convert that portion of the royalty taken in kind to other forms of energy, including electricity.
(c) This section shall not be construed to surrender or in any way affect the right of the state or the owner of the soil under an existing or future lease to receive monetary royalty from its lessee.
Added by Acts 1993, 73rd Leg., ch. 897, § 54, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 405, § 51, eff. Sept. 1, 1999.
§ 53.078. PENALTY AND INTEREST. A lease issued under this subchapter shall be subject to Sections 52.131(e) through (j) of this code.
Added by Acts 1993, 73rd Leg., ch. 897, § 54, eff. Sept. 1, 1993.
§ 53.079. CONTRACTS AND AGREEMENTS. On the land office's written request, mailed to the lessee's address as shown on its lease or otherwise properly changed in conformity with the terms of the lease, a copy of a contract for the sale or processing of minerals leased under this subchapter and any subsequent agreement or amendment to the contract shall be filed in the land office within 30 days after the date the land office mails the written request. The land office shall treat a contract, agreement, or amendment filed in the land office as confidential unless otherwise authorized by the lessee.
Added by Acts 1993, 73rd Leg., ch. 897, § 54, eff. Sept. 1,1993.
§ 53.080. AUDIT INFORMATION CONFIDENTIAL. (a) All information secured, derived, or obtained during the course of an inspection or examination of books, accounts, reports, or other records as provided by Section 53.068 of this code, a rule, or a lease provision is confidential and may not be used publicly, opened for public inspection, or disclosed, except for information in a lien filed under this chapter and except as permitted under Subsection (d) of this section.
(b) All information made confidential by this section is not subject to subpoena directed to the commissioner, the attorney general, or the governor except in a judicial or administrative proceeding to which this state is a party.
(c) The commissioner or the attorney general may use information made confidential by this section and contracts made confidential by Section 53.079 of this code to enforce this chapter or may authorize their use in judicial or administrative proceedings to which this state is a party.
(d) This section does not prohibit: (1) the delivery of information made confidential by this section to the lessee or its successor, receiver, executor, guarantor, administrator, assignee, or representative;
(2) the publication of statistics classified to prevent the identification of a particular audit or items in a particular audit;
(3) the release of information that is otherwise available to the public; or
(4) the release of information concerning the amount of royalty assessed as a result of an examination conducted under Section 53.068 of this code, a rule, or a lease provision or the release of other information that would have been properly included in reports required under Section 53.068 of this code, a rule, or a lease provision.
Added by Acts 1993, 73rd Leg., ch. 897, § 54, eff. Sept. 1, 1993.
§ 53.081. LEASE BY OWNER OF THE SOIL. (a) An owner of the soil of lands covered by this subchapter may lease those lands for the purpose of exploring for and producing minerals other than oil and gas in the manner provided by this section.
(b) An owner of the soil may apply in writing to the board for a lease of a mineral or minerals other than oil and gas.
(c) The application shall contain the following: (1) the name and address of the applicant; (2) a complete legal description of the land the applicant seeks to lease; (3) the name and address of every owner of the soil of the land the applicant seeks to lease, if the applicant is not the sole owner of the soil;
(4) a brief letter opinion signed by an attorney licensed in this state setting out the surface ownership of the land sought to be leased;
(5) a statement of the applicant's experience in the exploration for and production of minerals other than oil and gas, including, without limitation, a list of any State of Texas or federal mineral leases currently or previously held or operated by the applicant or other entity in which the applicant has or had a significant interest during the five-year period preceding the date of the application;
(6) a statement that the applicant intends to explore for and, if commercially reasonable, produce minerals other than oil and gas or if the applicant plans that another person or firm shall conduct exploration and production:
(A) the name and address of the person or firm; (B) a description of such person's or firm's experience in the exploration for and production of minerals other than oil and gas, including, without limitation, a list of any State of Texas or federal minerals other than oil and gas leases currently or previously held or operated by the person or firm during the five-year period preceding the date of the application; and
(C) a description of the applicant's intended degree and type of participation in the exploration of and production from the property and all consideration or benefits the applicant expects to receive in connection with the exploration of and production from the property; and
(7) the amount of bonus, rental, royalty, and other lease terms that the applicant proposes to pay or offer or pay and offer for the lease.
(d) The applicant shall provide geological, geophysical, geochemical, and other data or copies of the data, including interpretative data, pertinent to exploration for minerals other than oil and gas on the lands for which the application is made, in the applicant's possession or to which the applicant has reasonable access and which the applicant has the ability to provide to the land office. All such data shall be confidential and not subject to the provisions of the open records law, Chapter 552, Government Code, until one year after the expiration, termination, or forfeiture of a lease granted pursuant to this section. After one year after the expiration, termination, or forfeiture of such a lease, the data shall remain confidential to the extent permitted by Chapter 552, Government Code. If a lease is not issued, the data shall be returned to the applicant.
(e) The board may prescribe the form of the application, require additional information as it considers appropriate, and, by rule, otherwise provide for the implementation of this section.
(f) The staff of the land office shall review the information presented in the application, such other geological, geophysical, and geochemical data reasonably available to it relevant to the land proposed to be leased, and leasing information reasonably available to it relevant to the land proposed to be leased. The staff shall prepare a report to the board that contains:
(1) a summary of bonus, rental, royalty, and other lease terms then being offered and asked for leases of similar lands in the area of the land proposed to be leased; and
(2) data considered by the staff to be relevant, including, but not limited to, data concerning the land proposed to be leased and its estimated value for minerals other than oil and gas, recommended lease terms, and the applicant, including the applicant's history of leasing State of Texas or federal lands for minerals other than oil and gas.
(g) The board shall consider the application at a regular meeting. It may, in its sole discretion, grant or deny the application or grant the application subject to specified conditions. Such conditions may include a requirement that if the applicant does not materially participate in the exploration or development of the leased premises, through labor performed, cash or goods contributed, or supplying other enhancement in value, the applicant must share equally with the permanent school fund any benefit derived from the lease.
(h) After the board has approved an application, the commissioner shall issue a lease to the applicant. The lease shall conform, as nearly as is practicable, to the form of lease prescribed by the commissioner under this chapter.
(i) The commissioner may not deliver a lease issued under this section until the applicant has executed and delivered to the commissioner a waiver of the applicant's right and duty to act as agent for the state in leasing the leased premises and to receive any part of the bonus, rental, royalty, and other consideration accruing to the owner of the soil under this subchapter. The waiver and the lease shall be effective as of the date the commissioner executes the lease.
(j) Upon the expiration, termination, or forfeiture of a lease issued under this section, the agency rights and duties of the applicant as owner of the soil are reinstated without the necessity for further action by the owner of the soil, the board, or the commissioner.
(k) If an applicant is not the sole owner of the soil, the applicant may secure leases from the other owners of the soil from which the applicant is not prohibited from leasing under Section 53.074. If the applicant must obtain a lease from an owner of the soil from whom the applicant would otherwise not be permitted to lease in order reasonably to explore for or produce or explore for and produce minerals other than oil or gas, the commissioner may approve the lease on the condition that the applicant shall not receive any benefit from the lease, and, if the applicant should acquire by any method, including devise or inheritance, the right to receive any rental, royalty, or other benefit accruing to the owner of the soil's interest under the lease, the applicant shall assign the benefit to the commissioner for the benefit of the permanent school fund.
(l) The commissioner shall not approve any lease obtained by an applicant from another owner of the soil if the lease contains terms that are substantially inconsistent with or provide for a lesser bonus, rental, or royalty than the lease approved by the board. If the bonus, rental, or royalty in a lease obtained by an applicant from another owner of the soil for a comparable interest is greater than that approved by the board, then the lease approved by the board shall be amended to provide for the greater bonus, rental, or royalty, and the applicant shall be liable for all greater sums due. In determining whether an interest is comparable, the board shall consider the quantum of the interest, the time at which the lease was taken, and any other aspects of the lease transaction that the board considers to be relevant.
Added by Acts 1995, 74th Leg., ch. 937, § 3, eff. Sept. 1, 1995.
SUBCHAPTER D. UNITIZATION OF SULPHUR PRODUCTION
§ 53.111. AUTHORITY TO OPERATE AN AREA AS A UNIT FOR PRODUCTION OF SULPHUR. The commissioner on behalf of the state or any fund that belongs to the state may execute agreements that provide for operating areas as a unit for the exploration, development, and production of sulphur and may commit to the agreements:
(1) the royalty interests in sulphur reserved to the state or any fund of the state by law in a patent, award, mining claim, or contract of sale or under the terms of any lease legally executed by an official, board, agent, agency, or authority of the state; or
(2) the free royalty interests, whether leased or unleased, reserved to the state under Section 51.201 or 51.054 of this code.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 55, eff. Sept. 1, 1993.
§ 53.112. APPROVAL OF CERTAIN AGREEMENTS BY SCHOOL LAND BOARD. (a) An agreement must be approved by the board and executed by the commissioner to be effective if the agreement commits:
(1) a royalty interest in land belonging to the permanent school fund or the asylum funds, in riverbeds, inland lakes, channels, or areas within tidewater limits, including islands, lakes, bays, inlets, marshes, reefs, and the bed of the sea; or
(2) the free royalty interests, whether leased or unleased, reserved to the state under Section 51.201 or 51.054 of this code.
(b) An owner of the soil who is subject to Subchapter C of this chapter may grant to a lessee prior authority to pool or unitize the interest of the owner in a lease executed under that subchapter. For the agreement to bind the interest of an owner of the soil who is subject to Subchapter C of this chapter and who has not granted the lessee prior authorization to pool or unitize the interest of the owner in a sulphur lease executed under that subchapter, the agreement must be executed by the owner of the soil.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 56, eff. Sept. 1, 1993.
§ 53.113. APPROVAL OF AGREEMENTS. An agreement that commits the royalty interest in any land not listed in Section 53.112 of this code must be approved by the board, official, agent, agency, or authority of the state which has the authority to lease or to approve the lease of the land for sulphur and must be executed by the commissioner to be effective.
Acts 1977, 65th Leg., p. 2473, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 57, eff. Sept. 1, 1993.
§ 53.114. COMMISSIONER'S APPROVAL. Before executing an agreement authorized by Section 53.111 of this code, the commissioner must find that the agreement is in the best interest of the state.
Acts 1977, 65th Leg., p. 2474, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 58, eff. Sept. 1, 1993.
§ 53.115. PROVISIONS OF AGREEMENT. (a) An agreement executed under this subchapter may include the following provisions:
(1) that operations incident to drilling a well on any portion of a unit shall be considered for all purposes to be conduct of the operations on each tract in the unit;
(2) that production allocated by the agreement to each tract included in the unit shall be considered for all purposes to have been production from the tract;
(3) that the interest reserved to or provided for the state or any of its funds on production from any tract included in the unit shall be paid only on that portion of the production from the unit that is allocated to the tract under the agreement; and
(4) that each lease included in the unit shall remain in effect so long as the agreement remains in effect and that on termination of the agreement each lease shall continue in effect under the terms and conditions of the lease.
(b) The agreement may include any other terms and conditions the commissioner or any board, official, agent, agency, or authority of the state that has the authority to lease or to approve a lease of the land for sulphur may consider to be in the best interest of the state.
Acts 1977, 65th Leg., p. 2474, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1993, 73rd Leg., ch. 897, § 59, eff. Sept. 1, 1993.
§ 53.116. APPLICATION TO UNIVERSITY LAND. None of the provisions of this subchapter apply to any land under the control and management of the Board of Regents of The University of Texas System.
Acts 1977, 65th Leg., p. 2474, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.117. CONSTRUCTION OF SUBCHAPTER. (a) Agreements and operations under this subchapter are necessary to prevent waste and conserve the natural resources of the state and are not a violation of the provisions of Chapter 15, Business & Commerce Code, as amended.
(b) If a court finds a conflict between the provisions of this subchapter and the code cited in the previous subsection, this subchapter is intended as a reasonable exception to those laws which is necessary to prevent waste and conserve the natural resources.
(c) If a court finds that a conflict exists between this subchapter and the laws cited in Subsection (a) of this section and that this subchapter is not a reasonable exception to those laws, it is the intent of the legislature that this subchapter or any conflicting portion of this subchapter be declared invalid and that the previously cited laws remain valid.
Acts 1977, 65th Leg., p. 2474, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 53.118. RATIFICATIONS AND OTHER AGREEMENTS. (a) The board may approve, by rule or order, a ratification or other agreement that includes in the benefits of production a mineral or royalty interest in land belonging to the permanent school fund or the asylum funds.
(b) An agreement approved by the board under this section must be executed by the commissioner to be effective.
(c) A ratification or other agreement that commits any of the interests listed by Subsection (a) of this section in land not belonging to the permanent school fund or the asylum funds must be approved by the board, official, agent, agency, or authority of the state that has the authority to lease or to approve the lease of the land for sulphur and must be executed by the commissioner to be effective.
Added by Acts 1993, 73rd Leg., ch. 897, § 60, eff. Sept. 1, 1993.
SUBCHAPTER E. LEASE OF PUBLIC SCHOOL AND GULF LAND FOR COAL, LIGNITE, SULPHUR, SALT, AND POTASH
§ 53.151. LEASE OF CERTAIN AREAS. (a) Under the provisions of this subchapter, the board may lease to any person for the production of coal, lignite, sulphur, salt, and potash:
(1) islands, saltwater lakes, bays, inlets, marshes, and reefs owned by the state within tidewater limits;
(2) the portion of the Gulf of Mexico within the jurisdiction of the state;
(3) rivers and channels that belong to the state; (4) all unsold surveyed and unsurveyed public school land; and (5) all land sold with a reservation of minerals to the state under Section 51.054 or 51.086 of this code in which the state has retained leasing rights.
(b) The lease may not be granted for any land within 2,500 feet of a military base.
Added by Acts 1979, 66th Leg., p. 49, ch. 29, § 1, eff. April 3, 1979. Amended by Acts 1983, 68th Leg., p. 5245, ch. 965, § 7, eff. June 19, 1983; Acts 2003, 78th Leg., ch. 149, § 17, eff. May 27, 2003; Acts 2003, 78th Leg., ch. 1276, § 13.002(c), eff. Sept. 1, 2003.
§ 53.152. LAWS APPLICABLE TO LEASES. Leases of land described by Section 53.151 of this code shall be made in the same procedural manner as leases of that land for oil and gas under Chapter 52 of this code.
Added by Acts 1979, 66th Leg., p. 49, ch. 29, § 1, eff. April 3, 1979. Amended by Acts 1993, 73rd Leg., ch. 897, § 61, eff. Sept. 1, 1993.
§ 53.153. CONDITIONS OF LEASE. (a) Coal, lignite, sulphur, salt, and potash may be leased together or separately.
(b) A lease granted under this subchapter shall be for a primary term not to exceed 20 years and as long after that time as the minerals are produced in paying quantities.
Added by Acts 1979, 66th Leg., p. 49, ch. 29, § 1, eff. April 3, 1979. Amended by Acts 1993, 73rd Leg., ch. 897, § 62, eff. Sept. 1, 1993.
§ 53.154. ROYALTY RATE. The board shall set the royalty rate on production of sulphur, coal, lignite, salt, and potash from land leased under this subchapter. The royalty rate set must be at least one-eighth of the gross production or the market value of the sulphur produced and at least one-sixteenth of the gross production or the market value of the coal, lignite, salt, and potash produced.
Added by Acts 1979, 66th Leg., p. 49, ch. 29, § 1, eff. April 3, 1979. Amended by Acts 1993, 73rd Leg., ch. 897, § 63, eff. Sept. 1, 1993.
§ 53.155. COMPENSATION FOR DAMAGES FROM USE OF SURFACE. (a) Leases issued under Subchapter B or E of this chapter for unsold surveyed or unsurveyed school land, other than land included in islands, saltwater lakes, bays, inlets, marshes, and reefs owned by the state in tidewater limits and other than that portion of the Gulf of Mexico within the jurisdiction of the state, must include a provision requiring compensation for damages from the use of the surface in prospecting for, exploring, developing, or producing the leased minerals.
(b) The commissioner by rule shall set the procedure for receiving compensation for damages to the surface of land dedicated to the permanent school fund.
(c) Money collected for surface damages shall be deposited in a special fund account in the State Treasury to be used for conservation, reclamation, or constructing permanent improvements on land that belongs to the permanent school fund.
(d) The special fund account must be an interest-bearing account, and the interest received on the account shall be deposited in the State Treasury to the credit of the permanent school fund.
(e) Money collected under this section and designated for the construction of permanent improvements as provided by this section must be used not later than two years after the date on which the money is collected.
(f) Any money that remains in the special fund account for longer than two years shall be deposited in the State Treasury to the credit of the permanent school fund.
(g) Compensation for damages under this section is in addition to any bonus, rental, royalty, or other payment required by the lease.
Added by Acts 1985, 69th Leg., ch. 624, § 48, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 948, § 32, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 897, § 64, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 328, § 9, eff. Jan. 1, 2004.
§ 53.156. CONTRACTS AND AGREEMENTS. On the land office's written request, mailed to the lessee's address as shown on its lease or otherwise properly changed in conformity with the terms of the lease, a copy of a contract for the sale or processing of minerals leased under this subchapter and any subsequent agreement or amendment to the contract shall be filed in the land office within 30 days after the date the land office mails the written request. The land office shall treat a contract, agreement, or amendment filed in the land office as confidential unless otherwise authorized by the lessee.
Added by Acts 1993, 73rd Leg., ch. 897, § 65, eff. Sept. 1, 1993.
SUBCHAPTER F. GEOPHYSICAL AND GEOCHEMICAL EXPLORATION PERMIT
§ 53.161. DEFINITIONS. In this subchapter: (1) "Mineral(s)" means coal, lignite, sulphur, salt, and potash. (2) "Geophysical exploration" means a survey or investigation conducted to discover or locate mineral prospects using magnetic, gravity, seismic, and/or electrical techniques.
(3) "Geochemical exploration" means a survey or investigation conducted to discover or locate mineral prospects using techniques involving soil sampling and analysis.
(4) "Public school land" means land dedicated by the constitution or laws of this state to the permanent free school fund, but does not include land with a mineral classification described in Section 53.061 of this chapter in which the state has retained the minerals, nor does it include areas within tidewater limits.
(5) "Permit" means a license issued by the commissioner authorizing geophysical and/or geochemical exploration on public school land.
(6) "Permittee" means the holder of a permit. (7) "Areas within tidewater limits" means islands, saltwater lakes, bays, inlets, marshes, and reefs within tidewater limits and that portion of the Gulf of Mexico within the jurisdiction of Texas.
Added by Acts 1981, 67th Leg., p. 2453, ch. 631, § 2, eff. Sept. 1, 1981. Amended by Acts 1993, 73rd Leg., ch. 897, § 66, eff. Sept. 1, 1993.
§ 53.162. PERMIT REQUIRED FOR EXPLORATION. (a) Except for a person who has a valid mineral lease on public school land authorized by this chapter, a person may not conduct geophysical or geochemical exploration on public school land unless the person obtains a permit from the commissioner.
(b) Every person who is authorized to conduct a geophysical or geochemical exploration on public school land shall comply with the commissioner's rules relating to such exploration. A person with a valid mineral lease on land subject to this chapter shall comply with the commissioner's rules concerning exploration.
Added by Acts 1981, 67th Leg., p. 2453, ch. 631, § 2, eff. Sept. 1, 1981. Amended by Acts 1993, 73rd Leg., ch. 897, § 67, eff. Sept. 1, 1993.
§ 53.163. LAWS APPLICABLE TO PERMITS. Permits for geophysical and geochemical exploration under this subchapter shall be issued in the same manner and under the same terms and conditions as permits for oil and gas under Subchapter I of Chapter 52 of this code.
Added by Acts 1981, 67th Leg., p. 2453, ch. 631, § 2, eff. Sept. 1, 1981. Amended by Acts 1985, 69th Leg., ch. 624, § 49, eff. Sept. 1, 1985.
§ 53.1631. GROUNDWATER. (a) Unless otherwise expressly provided by statute, deed, patent, or other grant from the State of Texas, groundwater shall not be considered a mineral in any past or future reservation of title or rights to minerals by the State of Texas.
(b) Notwithstanding Subsection (a), the State of Texas shall retain any and all rights to reasonable use of the surface and groundwater for mineral development and production purposes.
Added by Acts 2003, 78th Leg., ch. 1091, § 32, eff. June 20, 2003. § 62.001. APPLICABILITY. (a) The provisions of this chapter apply to counties that are located or border on the Gulf of Mexico and have within their boundaries beaches that are suitable for park purposes. The suitability of a beach for park purposes is established conclusively when the commissioners court of the county makes a finding that the beach located within its boundaries, but not located within the boundaries of an incorporated city, is suitable for park purposes.
(b) As long as an island or peninsula is not accessible by a public road or common carrier ferry facility, the provisions of this chapter do not apply to that island or peninsula.
(c) The provisions of this chapter do not interfere with, preempt, or in any manner restrict or usurp the authority of the land office over state-owned beaches.
(d) The provisions of this chapter do not prohibit the creation of, or limit the lawful actions of, a beach park board of trustees of a home-rule city as provided in Chapter 306, Local Government Code.
(e) The provisions of this chapter do not permit any interference with the right the public has under the provisions of Subchapter B of Chapter 61 of this code to the free and unrestricted use of, and to ingress and egress to, the area bordering on the Gulf of Mexico from mean low tide to the line of vegetation, as that term is defined in Subsection (2), Section 61.001 of this code. A county, county official, or anyone acting under the authority of this chapter may not exercise any authority, contract out a right to exercise authority, or otherwise delegate authority beyond that specifically granted to it in Sections 61.122 through 61.128 of this code over that area notwithstanding any of the specific provisions of this chapter. The rights established in Subchapters B and D of Chapter 61 of this code are paramount over the rights or interests that might otherwise be created by the provisions of this chapter, and nothing in this chapter encroaches on those rights or upon land, or interests in land, that may ultimately be held subject to those rights.
Acts 1977, 65th Leg., p. 2492, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 149, § 39, eff. Sept. 1, 1987.
§ 62.002. DEFINITION. In this chapter, "board" means the Beach Park Board of Trustees.
Acts 1977, 65th Leg., p. 2493, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER B. CREATION OF BOARD
§ 62.011. PURPOSE AND AUTHORITY. A county located or bordering on the Gulf of Mexico with a beach suitable for park purposes may create a board in the manner provided in this subchapter for the purpose of improving, equipping, maintaining, financing, and operating a public park or parks, or any facilities owned by the county, or to be acquired by the county, or to be managed by the county under the terms of a written contract. The board, to be designated Beach Park Board of Trustees, has the powers and duties specified in this chapter.
Acts 1977, 65th Leg., p. 2493, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.012. METHOD OF CREATING BOARD. A board may be created after a favorable majority vote of the qualified voters of the county voting at an election held on the proposition.
Acts 1977, 65th Leg., p. 2493, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.013. ELECTION. (a) The election shall be called by the commissioners court.
(b) Notice of the election shall be given in the manner provided by Chapter 1251, Government Code.
(c) The ballots shall be printed to provide for voting for or against the proposition: "Establishing a beach park board of trustees."
Acts 1977, 65th Leg., p. 2493, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2001, 77th Leg., ch. 1420, § 8.353, eff. Sept. 1, 2001.
SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
§ 62.041. MEMBERS OF BOARD. (a) The board is composed of seven members appointed by the commissioners court.
(b) One board member shall be a member of the commissioners court.
Acts 1977, 65th Leg., p. 2493, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.042. TERM OF OFFICE. (a) With the exception of the trustees first appointed, a trustee serves for a term of two years from the date of appointment.
(b) At the time of the appointment of the first trustees, the commissioners court shall designate three trustees to serve for one year and four trustees to serve for two years.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.043. OATH AND BOND. (a) A trustee shall qualify within 15 days after his appointment by taking the official oath and filing a good and sufficient bond with the county clerk.
(b) The bond shall be approved by the commissioners court, payable to the county, in a sum not to exceed $5,000 as approved by the commissioners court of the county, and conditioned on the faithful performance of the duties of the trustee, including his proper handling of all money which may come into his hands in his capacity as a member of the board.
(c) The cost of the bond shall be paid by the board.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.044. COMPENSATION; EXPENSES. A trustee serves without compensation but shall be reimbursed for travel and other necessary expenses incurred in the performance of his official duties.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.045. VACANCY. A vacancy on the board shall be filled by appointment of the commissioners court.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.046. OFFICERS OF BOARD. (a) On the appointment of the first trustees, the commissioners court shall designate one of the trustees to serve as chairman of the board for a period of one year.
(b) After the first year the board annually shall elect a chairman, a vice-chairman, a secretary, and a treasurer from among its members. The office of secretary and treasurer may be held by the same person.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.047. PARK MANAGER. The board may employ and compensate a manager for any parks or facilities and may give him full authority in the management and operation of the park or parks or facilities subject only to the direction and orders of the board.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.048. LEGAL SERVICES. (a) The board may call on the county attorney of the county for the legal services it requires.
(b) In lieu of or in addition to the county attorney, the board may employ and compensate its own counsel and legal staff.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.049. EMPLOYEES OF BOARD. (a) The board may employ temporary or permanent secretaries, stenographers, bookkeepers, accountants, technical experts, and other agents and employees it requires.
(b) The board shall determine the qualifications, duties, and compensation of its employees.
Acts 1977, 65th Leg., p. 2494, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.050. MEETINGS. (a) The board shall hold regular meetings at times set by the board.
(b) The board may hold special meetings at the times business or necessity requires. Special meetings may be called by the chairman or any three members of the board.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.051. BOARD RECORDS. (a) The board shall keep a true and full record of all its meetings and proceedings and maintain the records of the board in a secure manner.
(b) The board may contract with the commissioners court of the county to have the county keep and maintain its records.
(c) All the records are the property of the board and are subject to inspection by the commissioners court at all reasonable times.
(d) The preservation, microfilming, destruction, or other disposition of the records of the board is subject to the requirements of Subtitle C, Title 6, Local Government Code, and rules adopted under that subtitle.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1989, 71st Leg., ch. 1248, § 65, eff. Sept. 1, 1989.
§ 62.052. MANAGEMENT OF FUNDS. The money belonging to or under control of the board shall be deposited and secured in the same manner prescribed by law for county funds.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.053. AUDIT. Independent auditors selected by the board shall make an annual audit of all financial transactions and records of the board.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.054. COURT ACTIONS. The board may sue and be sued in its own name.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.055. SEAL. The board shall adopt a seal which shall be placed on all leases, deeds, and other instruments usually executed under seal and on other instruments required by the board.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER D. POWERS AND DUTIES
§ 62.091. LAND UNDER JURISDICTION, MANAGEMENT, AND CONTROL. (a) The following land is under the jurisdiction of the board:
(1) public beaches owned in fee by the county; and (2) land used as parks in connection with public beaches not located inside the boundaries of an incorporated city and not inside the area bordering on the Gulf of Mexico from the line of mean low tide to the line of vegetation as that term is defined in Section 61.001(2) of this code.
(b) The Commissioners Court may designate the following land to be under the management and control of the board:
(1) additional parks and facilities owned by the county; or (2) additional parks and facilities to be managed by the county under the terms of a written contract.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.092. PRIORITY OF JURISDICTION. (a) The board has no jurisdiction over a public beach located inside the boundaries of the county that has been designated a national park, national seashore, or state park.
(b) The authority of the board preempts the right of the county board of park commissioners to act with regard to a beach, park, or facility within the jurisdiction of the board.
(c) The provisions of this chapter are cumulative of other laws relating to county parks but take precedence in the event of conflict.
Acts 1977, 65th Leg., p. 2495, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.093. PARK AUTHORITY. The board may manage, operate, maintain, equip, improve, and finance:
(1) an existing public park placed under its jurisdiction by the commissioners court; or
(2) additional parks acquired by gift or otherwise but not acquired by the exercise of the power of eminent domain.
Acts 1977, 65th Leg., p. 2496, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 1276, § 13.003(a), eff. Sept. 1, 2003.
§ 62.094. FEE CHARGED. The board may charge and collect a reasonable fee for access or entrance to or parking on the land under its jurisdiction, other than public beaches owned by the county, or use of a facility located on land under its jurisdiction.
Acts 1977, 65th Leg., p. 2496, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.095. USE OF FUNDS. (a) The board may accept, receive, and spend gifts of money or other things of value from any person for the purpose of performing any function, power, or authority vested in the board and funds from the county that are appropriated by the county from time to time for the purpose of improving, equipping, maintaining, operating, and promoting recreational facilities under the board's supervision and control.
(b) The board may spend money appropriated by the commissioners court for the purpose of cleaning and maintaining public beaches and land within its jurisdiction, including money appropriated to the commissioners court by the state for that purpose.
Acts 1977, 65th Leg., p. 2496, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.096. CONTRACTS, LEASES, AND OTHER AGREEMENTS RELATING TO LAND AND FACILITIES. The board may enter into a contract, lease, or other agreement connected with, incident to, or affecting the financing, construction, equipping, maintenance, or operation of facilities located or to be located on or pertaining to land under its jurisdiction or facilities under its control and may execute and perform its lawful powers and functions on land leased from others.
Acts 1977, 65th Leg., p. 2496, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.097. CONTRACTS, LEASES, AND OTHER AGREEMENTS RELATING TO MANAGEMENT, OPERATION, AND MAINTENANCE OF LAND AND FACILITIES. The board may enter into any contract, lease, or agreement with any person for a period of not more than 40 years relating to the management, operation, and maintenance of a concession, facility, improvement, leasehold, land, or other property over which the board has jurisdiction and control.
Acts 1977, 65th Leg., p. 2496, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.098. CONTRACTS WITH OTHER GOVERNMENTAL AGENCIES. To accomplish any purpose authorized in this chapter, the board may enter into contracts with:
(1) adjacent counties; (2) boards in adjacent counties; and (3) boards in cities of the same county in which the board has jurisdiction.
Acts 1977, 65th Leg., p. 2496, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.099. ADVERTISING. The board may publish brochures and otherwise advertise the county's recreational advantages for the purpose of attracting tourists, residents, and other users of the public facilities operated by the board.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 1276, § 13.003(a), eff. Sept. 1, 2003.
§ 62.100. RULES. The board may adopt and enforce reasonable rules for the use of parks and facilities under the jurisdiction and control of the board by the public or by lessees, concessionaires, and other persons carrying on a business activity inside the area of the public parks and facilities.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.101. LEGISLATIVE INTENT. It is the intent of the legislature in enacting the provisions of this chapter that the rights established or recognized in Subchapters B and D of Chapter 61 of this code are paramount over any rights or interests that might otherwise be considered created by this chapter, and none of the provisions of this chapter may trench on those rights or encroach on land or interests in land that may ultimately be held subject to those rights.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER E. ISSUANCE OF BONDS
§ 62.131. AUTHORITY TO ISSUE REVENUE BONDS. For the purpose of acquiring, developing, improving, and enlarging public recreational areas and facilities, the board may issue revenue bonds payable solely from:
(1) the revenue of all or any designated part of the properties or facilities under the jurisdiction and control of the board; or
(2) any other source of funds the board may wish to dedicate for that purpose.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 1276, § 13.003(a), eff. Sept. 1, 2003.
§ 62.132. FORMAL REQUIREMENTS OF BONDS. (a) The bonds may be issued by resolution adopted by the board without the necessity of an election.
(b) The bonds may be issued in the name of the board in one or more installments or series and shall mature serially or otherwise within 40 years from their date or dates.
(c) The bonds shall be issued on the terms and conditions, with regard to the security, manner, place, and time of payment, pledge of designated revenue, redemption before maturity, and the issuance of additional parity or junior lien bonds, that the board specifies in the resolution or resolutions authorizing the bonds.
(d) The bonds shall be executed by the chairman and secretary of the board and shall be signed by the chairman and secretary or shall bear the facsimile signature of either or both.
(e) The bonds shall display the seal of the board, which may be impressed, printed, or lithographed on the bonds.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.133. SALE OF BONDS. The board shall sell the bonds on the best terms obtainable.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 1276, § 13.003(a), eff. Sept. 1, 2003.
§ 62.134. APPROVAL AND REGISTRATION. The bonds shall not be delivered until a transcript of the proceedings authorizing their issuance has been submitted to the attorney general and approved as to legality by the attorney general and the bonds are registered by the comptroller of public accounts.
Acts 1977, 65th Leg., p. 2497, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.135. AUTHORIZED INVESTMENTS. The bonds issued under the provisions of this subchapter are legal and authorized investments for banks, saving banks, trust companies, building and loan associations, insurance companies, fiduciaries, trustees, guardians, and for the sinking funds of cities, towns, villages, counties, school districts, or other political corporations or subdivisions of the state.
Acts 1977, 65th Leg., p. 2498, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.136. SECURITY FOR DEPOSITS. The bonds are eligible to secure the deposit of public funds of the state and public funds of cities, towns, villages, or other political corporations or subdivisions of the state and are lawful and sufficient security for deposits to the extent of their face value when accompanied by all unmatured interest coupons appurtenant to them.
Acts 1977, 65th Leg., p. 2498, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.137. TAX BONDS. (a) The board shall not issue bonds payable in whole or in part from ad valorem taxes.
(b) The board may receive and spend the proceeds of bonds payable from taxes which are issued by the governing body of the county for park purposes after the bonds are authorized at an election held in the manner required by law.
Acts 1977, 65th Leg., p. 2498, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 62.138. REFUNDING BONDS. (a) The board may issue refunding bonds for the purpose of refunding one or more series or installments of outstanding original or refunding bonds of the board.
(b) The refunding bonds shall be issued, approved as to legality by the attorney general, and registered by the comptroller of public accounts in the manner and on the terms and conditions provided in this subchapter for the issuance of original revenue bonds.
Acts 1977, 65th Leg., p. 2498, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER F. DISSOLUTION OF BOARD
§ 62.161. ORDER CALLING ELECTION TO DISSOLVE; NOTICE OF ELECTION. (a) The commissioners court may order an election to dissolve a board.
(b) The commissioners court shall give notice of the election. The notice must include:
(1) the name of the board; (2) the proposal that the board be dissolved; and (3) the place, date, and time of the election. (c) The notice shall be published in a newspaper of general circulation in the county once a week for two consecutive weeks. The first publication must occur not later than the 21st day before the date on which the election will be held.
Added by Acts 1997, 75th Leg., ch. 1135, § 1, eff. June 19, 1997.
§ 62.162. ELECTION TO DISSOLVE. (a) An election to dissolve a board shall be held on the first authorized uniform election date prescribed by the Election Code that allows sufficient time to comply with the requirements of law and that occurs after the date on which the commissioners court orders the election.
(b) The ballot shall be printed to provide for voting for or against the following: "Dissolving the [name of county] Beach Park Board of Trustees and transferring its parks jurisdiction, assets and liabilities to the [name of county] Commissioners Court."
(c) A copy of the tabulation of results shall be filed with the county clerk of the county in which the board is located.
(d) If a majority of those voting at the election vote to dissolve the board, the board and the commissioners court shall proceed with dissolution. An election to create a new board under this chapter in that county may not be held for at least one year after dissolution.
(e) If a majority of those voting at the election vote against dissolving the board, the commissioners court may not order another election on the issue before the first anniversary of the date of the canvass of the election.
Added by Acts 1997, 75th Leg., ch. 1135, § 1, eff. June 19, 1997.
§ 62.163. ADMINISTRATION OF PROPERTY, DEBTS, AND ASSETS AFTER DISSOLUTION. (a) After a vote to dissolve a board, the board shall continue to control and administer the property, debts, and assets of the board until:
(1) the board executes and files a written assignment of all its property, debts, and assets to the commissioners court; and
(2) the commissioners court executes and files in its minutes an acceptance and assumption of the property, debts, and assets of the board.
(b) The assignment prescribed by Subsection (a) must be filed with the commissioners court not later than the 30th day after the date of the canvass of the election.
(c) After the commissioners court determines that the requirements of this section have been fulfilled, the commissioners court shall enter an order dissolving the board.
(d) Each trustee is discharged from liability under the trustee's bond on entry of the order prescribed by Subsection (c).
(e) An employee or contract of the board becomes an employee or contract of the county, acting by and through its commissioners court, on entry of the order prescribed by Subsection (c).
Added by Acts 1997, 75th Leg., ch. 1135, § 1, eff. June 19, 1997. § 63.001. FINDINGS OF FACT. The legislature finds and declares: (1) that the mainland gulf shoreline, barrier islands, and peninsulas of this state contain a significant portion of the state's human, natural, and recreational resources;
(2) that these areas are and historically have been wholly or in part protected from the action of the water of the Gulf of Mexico and storms on the Gulf by a system of vegetated and unvegetated sand dunes that provide a protective barrier for adjacent land and inland water and land against the action of sand, wind, and water;
(3) that certain persons have from time to time modified or destroyed the effectiveness of the protective barriers and caused environmental damage in the process of developing the shoreline for various purposes;
(4) that the operation of recreational vehicles and other activities over these dunes have destroyed the natural vegetation on them;
(5) that these practices constitute serious threats to the safety of adjacent properties, to public highways, to the taxable basis of adjacent property and constitute a real danger to natural resources and to the health, safety, and welfare of persons living, visiting, or sojourning in the area;
(6) that it is necessary to protect these dunes as provided in this chapter because stabilized, vegetated dunes offer the best natural defense against storms and are areas of significant biological diversity;
(7) that vegetated stabilized dunes help preserve state-owned beaches and shores by protecting against erosion of the shoreline; and
(8) that different areas of the coast are characterized by dunes of various types and values, all of which should be afforded protection.
Acts 1977, 65th Leg., p. 2499, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, § 1, eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, § 18, eff. June 7, 1991.
§ 63.002. DEFINITIONS. In this chapter: (1) "Commissioner" means the Commissioner of the General Land Office. (2) "Barrier island" means an island bordering on the Gulf of Mexico and entirely surrounded by water.
(3) "Peninsula" means an arm of land bordering on the Gulf of Mexico surrounded on three sides by water.
(4) "Recreational vehicle" means a dune buggy, marsh buggy, minibike, trail bike, jeep, or any other mechanized vehicle that is being used for recreational purposes, but does not include any vehicle not being used for recreational purposes.
(5) "Mainland shoreline" means all shoreline fronting on the open Gulf of Mexico that is not located on a barrier island or a peninsula.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, § 2, eff. Aug. 26, 1985.
§ 63.003. EFFECT OF CHAPTER. The provisions of this chapter do not apply to any dune area not accessible by public road or common carrier ferry facility for as long as that condition exists.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, § 3, eff. Aug. 26, 1985.
SUBCHAPTER B. DUNE PROTECTION LINE
§ 63.011. ESTABLISHING DUNE PROTECTION LINE. (a) After notice and hearing, the commissioners court of each county that has within its boundaries mainland shoreline, a barrier island, or a peninsula located on the seaward shore of the Gulf of Mexico shall establish a dune protection line on any such shoreline, island, or peninsula within its boundaries for the purpose of preserving sand dunes.
(b) A county may allow a municipality within the county to administer this chapter within its corporate limits and extraterritorial jurisdiction. On delegation by a county, a municipality may adopt and apply any appropriate ordinances within its extraterritorial jurisdiction to effect the purposes of this chapter.
(c) Municipalities and counties may enter into interlocal cooperation contracts for the administration of dune permit programs under The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes).
(d) The land office may assist and advise counties and municipalities in establishing or altering dune protection lines.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, § 3, eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, § 19, eff. June 7, 1991.
§ 63.012. LOCATION OF DUNE PROTECTION LINE. The dune protection line shall not be located further landward than a line drawn parallel to and 1,000 feet landward of the line of mean high tide of the Gulf of Mexico.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 63.013. NOTICE. (a) Notice of a hearing to consider establishing the dune protection line shall be published at least three times in the newspaper with the largest circulation in the county. The notice shall be published not less than one week nor more than three weeks before the date of the hearing.
(b) Notice shall be given to the commissioner not less than one week nor more than three weeks before the hearing.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 63.014. MAP AND DESCRIPTION OF DUNE PROTECTION LINE. (a) The commissioners court or governing body of each municipality in establishing a dune protection line shall define the line by presenting it on a map or drawing, by making a written description, or by both. Each shall be designated appropriately and filed with the clerk of the county or municipality establishing the line and with the commissioner.
(b) Notice of alterations in the dune protection line shall be filed with the clerk and with the commissioner, and the appropriate changes shall be made on the map, drawing, or description.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 20, eff. June 7, 1991.
§ 63.015. DUNE PROTECTION LINE PROHIBITED. No dune protection line may be established within a state or national park area, wildlife refuge, or other designated state or national natural area; provided, however, any state-owned or other public land not specifically exempted by this section shall be subject to the same requirements as private lands except as provided in Sections 31.161 through 31.167 of this code.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 21, eff. June 7, 1991.
SUBCHAPTER C. PERMITS
§ 63.051. PERMIT REQUIREMENT. An owner of land or a person holding an interest in land under the owner who desires to perform or allow any of the acts prohibited in Section 63.091 of this code must apply for a permit from the appropriate commissioners court or municipal governing body.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 22, eff. June 7, 1991.
§ 63.052. PERMIT NOT REQUIRED. No permit is required for the following activities:
(1) grazing livestock; (2) production of oil and gas; and (3) recreational activity other than the operation of a recreational vehicle.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
§ 63.053. FEES. (a) The commissioners court or governing body of the municipality may require a reasonable fee to accompany the application.
(b) Any commissioners court or governing body of a municipality that has adopted a dune protection line and is administering this chapter and that has a certified beach access plan as provided for in Section 61.015 of this code is hereby authorized, subject to all requirements of Chapter 61 of this code, to charge reasonable fees that do not exceed the cost for the provision and maintenance of public beach related facilities and services necessary to implement such plans, including but not limited to parking, public health and safety, environmental protection and matters contained in the certified beach access plans, and that do not unfairly limit access to and use of such beaches.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 23, eff. June 7, 1991.
§ 63.054. REVIEW. (a) The commissioners court or governing body of the municipality shall evaluate the permit application, and if the commissioners court or governing body of the municipality finds as a fact after full investigation that the particular conduct proposed will not materially weaken the dune or materially damage vegetation on the dune or reduce its effectiveness as a means of protection from the effects of high wind and water, it may grant the permit.
(b) In determining whether or not to grant the permit, the commissioners court or governing body of the municipality shall consider the height, width, and slope of the dune, any significant environmental features of the dune, the feasibility and desirability of restoration of vegetation, and cumulative impacts and shall consider requirements for protection of critical dune areas.
(c) Each county or municipality administering this chapter shall establish procedures and requirements governing the review and approval of dune permits, and these procedures and requirements shall be submitted to the commissioner for comments.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 24, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, § 7, eff. June 18, 2003.
§ 63.055. TERMS AND CONDITIONS OF PERMIT. The commissioners court or governing body of the municipality may include in a permit the terms and conditions it finds necessary to assure the protection of life, natural resources, and property.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 25, eff. June 7, 1991.
§ 63.056. NOTICE TO AND COMMENTS OF COMMISSIONER ON PERMITS. (a) After receiving an application for a permit to perform any of the acts prohibited in Section 63.091 of this code, the commissioners court or the governing body of the municipality shall notify the commissioner by sending, not less than 10 working days before the public hearing on the application, notice of the hearing and a copy of the application.
(b) The commissioner may submit any written or oral comments regarding the effect of the proposed activity on the dunes that protect state-owned land, shores, and submerged land.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 26, eff. June 7, 1991.
§ 63.057. PERMIT FOR CERTAIN ACTIVITY PROHIBITED. (a) No permit may be issued that allows the operation of a recreational vehicle on a sand dune seaward of the dune protection line.
(b) No permit may be issued that allows any activity in a critical dune area inconsistent with rules promulgated by the commissioner for protection of critical dune areas.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 27, eff. June 7, 1991.
SUBCHAPTER D. PROHIBITIONS
§ 63.091. CONDUCT PROHIBITED. Unless a permit is properly issued authorizing the conduct, no person may damage, destroy, or remove a sand dune or portion of a sand dune seaward of a dune protection line or within a critical dune area or kill, destroy, or remove in any manner any vegetation growing on a sand dune seaward of a dune protection line or within a critical dune area.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, § 3, eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, § 28, eff. June 7, 1991.
§ 63.093. PROHIBITED OPERATION OF RECREATIONAL VEHICLES. No person may operate a recreational vehicle on a sand dune seaward of the dune protection line in any county in which a dune protection line has been established.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, § 1, eff. Sept. 1, 1977.
SUBCHAPTER E. CRITICAL DUNE AREAS
§ 63.121. IDENTIFICATION OF CRITICAL DUNE AREAS. The commissioner, in his role as trustee of the public land of this state, shall identify the critical dune areas within 1,000 feet of mean high tide that are essential to the protection of state-owned land, public beaches, and submerged land. The commissioner shall promulgate rules for the identification and protection of critical dune areas.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 30, eff. June 7, 1991.
§ 63.122. NOTICE TO COUNTIES. After the commissioner has identified the critical dune areas, notice of the critical dune areas and the rules for their protection shall be given to the commissioners court of each county and the governing body of each municipality in which one or more of these areas is located.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 30, eff. June 7, 1991.
SUBCHAPTER F. APPEALS
§ 63.151. APPEAL BY LITTORAL OWNER. A littoral owner aggrieved by a decision of the commissioners court or governing body of the municipality under this chapter may appeal to a district court in that county.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 31, eff. June 7, 1991.
§ 63.152. APPEAL BY COMMISSIONER. The commissioner may appeal to a district court of that county any decision of the commissioners court or governing body of the municipality that the commissioner determines to be a violation of this chapter.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 31, eff. June 7, 1991.
SUBCHAPTER G. PENALTIES
§ 63.181. ENFORCEMENT. (a) Any county attorney, district attorney, or criminal district attorney, or the attorney general at the request of the commissioner, shall file in a district court of Travis County or in the county in which the violation occurred a suit to obtain either a temporary or permanent court order or injunction to prohibit and remedy any violation of this chapter or any rule, permit, or order under this chapter and to collect damages to natural resources injured by the violation and to recover civil penalties.
(b) A person who violates this chapter or any rule, permit, or order under this chapter is liable for a civil penalty of not less than $50 nor more than $1,000. Each day that a violation occurs or continues constitutes a separate offense.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 32, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, § 8, eff. June 18, 2003.
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