H.B. No. 3032
 
 
 
 
AN ACT
  relating to the sale of certain property at Possum Kingdom Lake by
  the Brazos River Authority.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 8502, Special District Local Laws Code,
  is amended by adding Section 8502.0132 to read as follows:
         Sec. 8502.0132.  SALE OF CAPTIVE PROPERTY AT POSSUM KINGDOM
  LAKE. (a) In this section:
               (1)  "Adjacent Land" means the real property owned by
  the applicable Offeree that is adjacent to the applicable Captive
  Property To Be Sold.
               (2)  "Captive Property To Be Sold" means those portions
  of the following tracts of real property owned by the Authority at
  the Lake that are located above the 1000' contour line, but does not
  include any portion of the following tracts that is part of Project
  Land or property that is leased for single-family residential
  purposes as of the effective date of the Act enacting this section:
                     (A)  two tracts of land totaling 2019.86 acres,
  more or less, in Palo Pinto County, Texas, described in Brazos River
  Authority Records as Tracts 8-1-93 and 9-3-9, as such Tracts are
  more particularly described in an Award of Commissioners entered
  June 28, 1940, in the County Court of Palo Pinto County, Texas, in
  Cause No. 2539, styled Brazos River Conservation and Reclamation
  District versus Orland R. Seaman, Et Al., as the same appears on
  file and of record in Volume 5, Pages 414 and 419, et seq., Civil
  Minutes of the County Court of Palo Pinto County, Texas; and
                     (B)  a 2278.3 acre tract of land, more or less, in
  Palo Pinto County, Texas, described in Brazos River Authority
  records as Tract 11-2-46, as such tract is more particularly
  described in deeds recorded at Book 181, Page 325, Book 182, Page
  339, Book 183, Page 12, and Book 183, Page 16, in Palo Pinto County
  Records, Palo Pinto County, Texas.
               (3)  "FERC License" means the order of the Federal
  Energy Regulatory Commission issuing a license to the Authority for
  project number 1490-003-Texas on September 8, 1989, as such license
  has been renewed, extended, or amended and may be further renewed,
  extended, or amended at any time and from time to time, and
  including the Amendment to the original FERC license that was
  issued on May 15, 1980, to the extent incorporated or referenced in
  the FERC License.
               (4)  "Lake" means Possum Kingdom Lake located in Young,
  Palo Pinto, Stephens, and Jack Counties. The boundary of the Lake is
  defined by the 1000' contour line, as that contour may meander and
  change over time with natural forces, including erosion and
  accretion. The "1000' contour line" means the line running along
  the periphery of the Lake if the surface of the Lake is at an
  elevation of 1000 feet above mean sea level, as measured from the
  top of the spillway crest gates of the Morris Sheppard Dam, as such
  line may move and shift from time to time due to natural forces.
               (5)  "Offeree" means any person to whom an offer to sell
  Captive Property To Be Sold is to be made under this section. To
  qualify as an Offeree, a person must own in fee simple the real
  property adjacent to the Captive Property To Be Sold, and be able to
  provide an attorney's opinion or other satisfactory legal
  documentation that such Offeree meets the qualifications of an
  Offeree under this subdivision.
               (6)  "Project Land" means that portion of Authority
  property that is subject to the FERC License, as identified and
  defined in the FERC License, as may be amended at any time, and from
  time to time, and which Project Land may move or change over time
  due to natural forces.
         (b)  Notwithstanding any other provision of this chapter,
  the Authority is directed to sell all Captive Property To Be Sold in
  accordance with the directives of this section, including the
  following:
               (1)  Within 90 days of the effective date of the Act
  enacting this section, the Authority shall publish a list of the
  parcels at the Lake that qualify as Captive Property To Be Sold and
  an "Application Of Intent To Purchase" form for use by the Offerees
  as provided by this section.
               (2)  Each listed parcel of Captive Property To Be Sold
  shall be offered for sale at its fair market value to the Offeree
  who owns any Adjacent Land that is adjacent to that specific parcel
  of Captive Property To Be Sold, and each Adjacent Land owner has the
  right (but not the obligation) to purchase the parcel in equal
  proportion among those wishing to acquire same.
               (3)  Any Offeree who desires to purchase Captive
  Property To Be Sold must, within 180 days of the inclusion of that
  property on the published list of Captive Property To Be Sold under
  Subdivision (1), submit a completed Application Of Intent To
  Purchase form to the Authority.
               (4)  If the Authority does not receive an Application
  Of Intent To Purchase from an Offeree within the required time, the
  Offeree shall be deemed to have waived any right to purchase the
  subject property under this section and the Authority shall have
  the right to retain or sell such property as directed by the board.
               (5)  The Authority shall accept and process all
  Application Of Intent To Purchase forms in the order in which they
  are received.
               (6)  Any sale of property under this section must be
  handled as if it were a private sale for fair market value under
  Section 49.226(a), Water Code.
               (7)  The fair market value of the Captive Property To Be
  Sold must be determined as follows:
                     (A)  Within forty-five (45) days of the
  Authority's receipt of the Offeree's completed Application Of
  Intent To Purchase and an acceptable survey as provided by
  Subsection (d)(1), the Authority shall provide the Offeree with an
  appraisal of the fair market value of the Captive Property To Be
  Sold dated within one year of the date of the Authority's receipt of
  the Application Of Intent To Purchase (the "First Appraisal"). The
  Authority's appraiser must be an appraiser certified under Chapter
  1103, Occupations Code. Within fifteen (15) days of receipt of the
  First Appraisal, the Offeree shall notify the Authority in writing
  as to whether the Offeree agrees with or disputes the fair market
  value set forth in the First Appraisal. If the Offeree does not
  dispute the fair market value as determined by the First Appraisal
  within such 15-day time period, then the First Appraisal shall be
  final and binding on all parties to establish the fair market value
  for the Captive Property To Be Sold.
                     (B)  If the Offeree disputes the fair market value
  determined by the First Appraisal, the Offeree may withdraw its
  application to purchase the Captive Property To Be Sold or employ a
  disinterested appraiser certified under Chapter 1103, Occupations
  Code, to conduct a second appraisal of the fair market value of the
  Captive Property To Be Sold (the "Second Appraisal"). The Second
  Appraisal must be completed and sent to the Authority not later than
  the 45th day after the date the Offeree notifies the Authority that
  the Offeree disputes the First Appraisal. If the Authority does
  not receive the Second Appraisal within such 45-day time period,
  then the Offeree's Application Of Intent To Purchase will be deemed
  withdrawn.
                     (C)  Within fifteen (15) days of receipt of the
  Second Appraisal, the Authority shall notify the Prospective
  Purchaser in writing as to whether the Authority agrees with or
  disputes the fair market value determined by the Second Appraisal.
  If the Authority does not dispute the fair market value as
  determined by the Second Appraisal within this 15-day time period,
  then the Second Appraisal shall be final and binding on all parties
  to establish the purchase price for the Captive Property To Be Sold.
  If the Authority timely disputes the fair market value determined
  by the Second Appraisal, the two appraisers (or their designated
  agents) shall meet and attempt to reach an agreement on the fair
  market value of the Captive Property To Be Sold, such meeting to
  occur not later than the 30th day after the date the Authority
  notifies the Offeree that the Authority disputes the Second
  Appraisal.
                     (D)  If the two appraisers reach agreement on the
  fair market value, within 20 days after their meeting they shall
  issue a report of the agreed fair market value to the Authority and
  to the Offeree, and this agreed fair market value shall be final and
  binding on all parties to establish the purchase price.  If the two
  appraisers fail to reach agreement on or before the 20th day after
  the date of the meeting, then not later than the 30th day after the
  date of the meeting the two appraisers shall appoint a
  disinterested third appraiser certified under Chapter 1103,
  Occupations Code, to reconcile the two previous appraisals (the
  "Third Appraisal").  The Third Appraisal must be completed on or
  before the 30th day after the date of the third appraiser's
  appointment, and the fair market value determined by the Third
  Appraisal is final and binding on all parties to establish the
  purchase price; provided, however, the final purchase price may not
  be more than the fair market value determined by the First Appraisal
  or less than the fair market value determined by the Second
  Appraisal.
                     (E)  The appraisal costs must be paid by the
  person who requests the appraisal, except that the Offeree and the
  Authority shall each pay one-half of the cost of the Third Appraisal
  if a Third Appraisal is necessary. If the Offeree fails to pay its
  share of the Third Appraisal, then the Offeree's Application Of
  Intent To Purchase will be deemed withdrawn.
                     (F)  The timelines established in the appraisal
  process set forth in this subdivision may be extended on joint
  agreement of Authority and Offeree.
         (c)  If the Authority seeks to exempt any Captive Property To
  Be Sold from sale under this section as necessary for the continued
  operation of services at the Lake by the Authority, the Authority
  must designate as exempt each parcel it seeks to have exempted and
  provide actual notice of the exemption to any Offeree who otherwise
  would have been eligible to purchase that property. Any such
  Offeree shall have the right, but not the obligation, to challenge
  the exemption designation by the Authority in accordance with
  Subsection (e).
         (d)  For each parcel that an Offeree elects to purchase
  pursuant to this section, the Offeree shall:
               (1)  provide to the Authority a survey of the property
  that is:
                     (A)  prepared by a licensed state land surveyor or
  a registered professional land surveyor;
                     (B)  dated not earlier than the date one year
  before the effective date of the Act enacting this section; and
                     (C)  acceptable to the Authority and any title
  company providing title insurance for the Offeree; and
               (2)  pay all reasonable, normal, customary, and
  documented closing costs associated with the sale of the property.
         (e)  A person who disputes the Authority's decision to exempt
  a specific parcel from sale under this section may file a
  declaratory judgment action in the district court of Travis County.  
  If a person files such an action:
               (1)  any claim to governmental immunity is hereby
  waived for the determination of the dispute;
               (2)  the court shall determine all issues presented by
  de novo review; and
               (3)  the Authority shall bear the burden to establish
  by a preponderance of the evidence that the parcel it seeks to have
  exempted from sale is necessary for the specifically authorized
  operation of services at the Lake.
         (f)  For any property sold under this section:
               (1)  the Authority shall provide a Special Warranty
  Deed that encompasses and includes all interests in the property
  held by the Authority, subject only to:
                     (A)  those restrictions, covenants, and
  prohibitions contained in the deed of conveyance under which the
  Authority originally acquired title to the property, including
  without limitation any releases of the Authority for the
  inundation, overflowing, or flooding of the Lake;
                     (B)  all encumbrances and other matters filed of
  record in the public records of the county in which the property is
  located; and
                     (C)  any other matters or conditions that are
  apparent on the ground or that would be reasonably disclosed or
  discovered by an inspection of the property; and
               (2)  the Offeree shall release and agree to hold the
  Authority harmless from, and the Authority may not be held liable
  for damages, claims, costs, injuries, or any other harm to any
  Offeree or any other person or the Captive Property To Be Sold or
  any improvements on the property, caused by or arising from any
  temporary flooding of any portion of the Captive Property To Be
  Sold.
         (g)  Any sale of Captive Property To Be Sold pursuant to this
  section must allow the Authority the right to enter on the Captive
  Property To Be Sold and the Lake and other bodies of water, if any,
  located within the Captive Property To Be Sold and to cross the
  Adjacent Land on roads with essential equipment for all purposes
  reasonably necessary for the Authority to fulfill its obligations
  as a river authority and any obligations set forth in the FERC
  License, state water rights, or other governmental regulations, or
  that the Authority considers necessary for public safety, health,
  and welfare purposes. Any exercise of those rights by the Authority
  may be conducted only after written notice is given at least 48
  hours in advance of such entry to the Offeree (except in the event
  of an emergency, in which case advance notice is not required, but
  the Authority shall provide such written notice as soon as
  practicable thereafter). The Authority shall use reasonable
  efforts to avoid interfering with the Offeree's use of the Captive
  Property To Be Sold and Adjacent Land and shall promptly repair any
  damage to the Captive Property To Be Sold and Adjacent Land caused
  by the Authority's entrance. Any claim to governmental immunity on
  behalf of the Authority is hereby waived for the recovery of any
  damage caused by the Authority's breach of this subsection.
         (h)  Any sale of a parcel of Captive Property To Be Sold
  pursuant to this section the total size of which is greater than 100
  acres must include as a condition of sale an agreement that the
  purchaser of such parcel will place a conservation easement that
  complies with state and federal tax requirements on the property
  conveyed within three (3) years of the closing date for the sale of
  the property.
         (i)  Chapters 232 and 272, Local Government Code, do not
  apply to a sale of property under this section.
         (j)  The Authority may use proceeds from the sale of property
  under this section for any Authority purpose.
         (k)  The Authority shall reserve its interest in all oil,
  gas, and other minerals in and under the Captive Property To Be Sold
  (or any portion thereof) to the extent the Authority owns an
  interest in those minerals.
         (l)  To the extent of any conflict with other laws of this
  state, this section prevails.
         SECTION 2.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2009.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3032 was passed by the House on April
  28, 2009, by the following vote:  Yeas 149, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 3032 was passed by the Senate on May
  15, 2009, by the following vote:  Yeas 30, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor