PROPERTY RIGHTS LAWS:
TEXAS PROPERTY RIGHTS LAW GUIDE
This guide is intended to familiarize landowners with laws of Texas that affect property rights. It is not represented to be complete. This guide is not intended to serve as a legal representation, nor as legal advice or council. Consult an attorney concerning any legal question.
Note: All laws referred to below can be found on the internet at:
http://tlo2.tlc.state.tx.us/statutes/statutes.html
Select from the list of codes such as "Local Government Code", "Water Code", etc.
CONTENTS:
ANNEXATION, RIGHT TO CONTINUE EXISTING LAND USE
ANNEXATION, RIGHT TO COMPLETE PROJECTS STARTED BEFORE ANNEXATION
ANNEXATION, RIGHT TO UTILITY SERVICE
CITY EXEMPTION TO PLATTING INCLUDING ETJ
CITY EXTRATERRITORIAL JURISDICTION
CITY LAND USE REGULATION POWER
CITY POWER TO POLICE STREAMS IN ETJ
CITY SUBDIVISION REGULATIONS
COUNTY LAND USE REGULATION
COUNTY POWER TO TAKE ROADWAYS WITHOUT PAYMENT
COUNTY SUBDIVISION REGULATION AUTHORITY
COUNTY EXEMPTION TO PLATTING
DEVELOPMENT: VESTED RIGHTS LAW
EASEMENTS, PIPELINE, BLANKET EASEMENTS
EMINENT DOMAIN POWER
HUNTING INSIDE CITY LIMITS
LIABILITY OF LAND OWNERS
NOTICE OF ELECTRIC SERVICE CONNECTIONS REQUIRED
PUBLIC ACCESS TO STREAMS
SEPTIC SYSTEMS EXEMPT ON TRACTS LARGER THAN 10 ACRES
TAKINGS - TEXAS PROPERTY RIGHTS ACT OF 1995
TAX, PROPERTY
TAX, PROPERTY AGRICULTURAL OPEN SPACE APPRAISAL
TRESSPASS LAW
WATER, LANDOWNERS RIGHT TO REMOVE LAND FROM A CCN AREA
WATER REGULATION, EXEMPT DAMS AND RESERVOIRS
WATER REGULATION, COUNTY, WATER WELLS
WATER REGULATION, GROUNDWATER DISTRICTS
All Codes referenced are Texas statutes such as Texas Local Government Code, or Texas Water Code.
ANNEXATION, RIGHT TO CONTINUE EXISTING LAND USE [top]
Local government Code Chapter 43, Section 43.002 (1)
There is some protection in the law, but we do not believe it is sufficient in order to prevent a city from eventually imposing zoning that could terminate an existing land use. For example, extensive repair or new construction is often considered a new land use by cities, over which a city could claim to have power of approval.
ANNEXATION, RIGHT TO COMPLETE PROJECTS STARTED BEFORE ANNEXATION [top]
Local Government Code Chapter 43, Section 43.002 (2)
Generally, if permit applications for a project have been submitted at least 90 days before annexation, that project may be completed without being subject to city zoning authority.
ANNEXATION, RIGHT TO UTILITY SERVICE [top]
Local Government Code Chapter 43, Section 43.056
Annexed areas are generally entitled to full municipal services. Subsection (m) appears to be an exception, (m)"This section does not require that a uniform level of full municipal services be provided to each area of the municipality if different characteristics of topography, land use, and population density constitute a sufficient basis for providing different levels of service."
CITY EXEMPTION TO PLATTING INCLUDING ETJ [top]
Local Government Code Chapter 212 Subchapter 212.004.
http://tlo2.tlc.state.tx.us/statutes/docs/LG/content/htm/lg.007.00.000212.00.htm
The last sentence of 212.004 reads: "A division of land under this subsection does not include a division of land into parts greater than five acres, where each part has access and no public improvement
is being dedicated." NOTE: This appears to exempt tracts larger than fiver acres under certain conditions.
CITY EXTRATERRITORIAL JURISDICTION (ETJ) [top]
Local Government Code Chapter 42
Powers that cities have outside the city limits for a specified distance from the city limit. Includes authority over subdivision of land and the power to "police" a stream that provides drinking water to the city. The primary abuse of this power is limiting impervious cover. Austin has limited impervious cover to 15%, San Antonio to 15%; Dripping Springs and other cities have similar ordinances that apply in their ETJ.
ETJ is 1/2 mile for cities of 5000, 5 miles for cities over 100,000
The subdividing of land done under certain conditions is not required to be approved by the city or county. Generally speaking this applies to a tract of more than 10 acres, which has frontage on a public road. There are some differences in exemptions between cities and counties.
CITY LAND USE REGULATION POWER [top]
Local Government Code Chapter 11
Zoning power: Practically unlimited power to prohibit or dictate use of land. This power is within the boundaries of a city only. The only use a city cannot deny is a single-family residence, but they can dictate the density of single-family development.
CITY SUBDIVISION REGULATIONS [top]
Local government Code, Chapter 212, Section 212.002
A municipality may adopt rules governing plats and subdivisions of land within the municipality's jurisdiction to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality.
CITY POWER TO POLICE STREAMS IN ETJ [top]
Local Government Code, Chapter 401, Section 401.002
A home-rule municipality may prohibit the pollution of and provide for the protection of watersheds inside the municipality's boundaries or inside the municipality's extraterritorial jurisdiction. Under this statute the cities of San Antonio and Austin limit impervious cover.
COUNTY LAND USE REGULATION [top]
Local Government Code Chapter 231
As of 2005 only Cameron, Valverde and a few other counties have zoning power.
COUNTY POWER TO TAKE ROADWAYS WITHOUT PAYMENT [top]
Transportation Code Chapter 281
http://tlo2.tlc.state.tx.us/statutes/docs/TN/content/htm/tn.006.00.000281.00.htm
County Power to take roadways without payment
Allows a county to gain title to a roadway without payment to the owner by a court's final judgment of adverse possession.
Transportation Code Chapter 258
http://tlo2.tlc.state.tx.us/statutes/docs/TN/content/htm/tn.006.00.000258.00.htm
Allows a county to gain title to a roadway by drawing and adopting a road map, without giving notice of the intention to take title of the land.
COUNTY SUBDIVISION REGULATION AUTHORITY [top]
Local Government Code Chapter 232
Counties have the authority to approve the subdivision of land, and may specify minimum standards for road construction and drainage facilities.
COUNTY SUBDIVISION AUTHORITY OVER WELLS [top]
Water Code Chapter 35, Section 35.019
Counties in priority groundwater management areas have the authority to require water availability studies for subdivisions dependent upon water wells, and require any well serving a lot in a subdivision to comply with all regulations applying to a public water system.
COUNTY EXEMPTION TO PLATTING
Local Government Code, Chapter 232, Section 232.0015 [top]
The subdividing of land done under certain conditions is not required to be approved by the city or county. Generally speaking, this applies to a tract of more than 10 acres, which has frontage on a public road. There are also exemptions related to agricultural land owned by family members.
EMINENT DOMAIN POWER [top]
Property Code, Chapter 21
State Law over the power of government to condemn private property.
DEVELOPMENT - VESTED RIGHTS LAW: [top]
http://tlo2.tlc.state.tx.us/statutes/docs/LG/content/htm/lg.007.00.000245.00.htm
Local Government Code Chapter 245
Generally, a project in progress may not be subjected to regulation enacted by a city or county after the project has commenced.
EASEMENTS, PIPELINE, BLANKET EASEMENTS LIMITED TO 50 FEET [top]
Natural Resources Code Subtitle D. Chapter 111, Subchapter 111.0194 (a)
http://tlo2.tlc.state.tx.us/statutes/docs/NR/content/htm/nr.003.00.000111.00.htm Local Government Code Chapter 245
Appears to limit the width of a pipeline easement to 50 feet of installed pipes, and apply to easements that originally covered entire tracts.
HUNTING INSIDE CITY LIMITS [top]
Agriculture Code Section 251.002,and 251.005, Local Government Code, Section 229.002
A rifle or pistol may be used on 50 acres or more if discharged more than 300 feet from a residence. A shotgun, air rifle, or bow may be used on 10 acres if more than 150 feet from a residence. (SB 734 passed in 2005, but is not yet posted in statutes on Texas Legislature On Line. It is on that site in bill form.)
LIABILITY OF LAND OWNERS [top]
Civil Practice Code, Chapter 75, Section 75.002
Owners of agricultural land are not liable for injury to trespassers. Liability for injury is also limited concerning guests.
NOTICE OF ELECTRIC SERVICE CONNECTIONS REQUIRED [top]
Health and Safety Code, 366.005
Notice of Utility Service Connections
This is a tattle tail law, which forces electric companies and co-ops to notify counties of new electric service connections. It alerts them to any building being constructed without county
subdivision approval or septic system permits. The law states in part: "An electric utility shall compile a list weekly...of the addresses...at which the electric utility has made new
electric service connections. ...The authorized agent may use the list for the purpose of implementing and enforcing rules under this chapter."
PUBLIC ACCESS TO STREAMS [top]
http://www.tpwd.state.tx.us/texaswater/rivers/navlawarticle.phtml
No one statute defines access to streams. The article below list relevant laws and cases.
Generally, only public streams are accessible to the public. The public has access only to the streambed of a public stream, and not the adjacent private property.
Boyd Kennedy, Staff Attorney, Texas Parks and Wildlife wrote an article on this subject stating in one paragraph there is no master list of public streams in Texas. The article has an extensive list of case law on this subject.
Streams that are crossed by original land grant survey lines are most likely not public.
SEPTIC SYSTEMS EXEMPT [top]
Health Code Chapter 366, Section 366.052
http://tlo2.tlc.state.tx.us/statutes/docs/HS/content/htm/hs.005.00.000366.00.htm
Permit Not Required for On-Site Sewage Disposal on Certain Single Residences.
(a) Sections 366.051, 366.053, 366.054, and 366.057 do not apply to an on-site sewage disposal
system of a single residence that is located on a land tract that is 10 acres or larger in
which the field line or sewage disposal line is not closer than 100 feet of the property line.
(b) Effluent from the on-site sewage disposal system on a single residence:
(1) must be retained in the specified limits
(2) may not create a nuisance
(3) may not pollute groundwater
TRESPASS LAW [top]
Penal Code Chapter 30, Section 30.05
Penal Code was amended in 1993 to broaden the definition of criminal trespassing, (in summary) a person commits an offense when they enter or remains on agricultural land of another without express consent; is on the agricultural land and within one hundred feet of the boundary of the land when apprehended; and had notice that the entry was forbidden or received notice to depart but failed to do so.
UTILITY SERVICE, IMPACT FEES [top]
Local Government Code Chapter 395
This law was written to prevent cities from over charging property owners for providing water and wastewater service. Prior to Chapter 395 cities used impact fees to force individual property owners to pay for non-related public expenses. SB 880 by Barrientos in 1993 provided that a "development process surcharge" would not be subject to chapter 395 and would be used to pay for preserve land for endangered species. TLC played a major role in killing SB 880 to protect chapter 395.
WATER - LANDOWNERS RIGHT TO REMOVE LAND FROM A CCN AREA [top]
HB 2876 - Amends Chapter 13 Water Code
Certificates of Convenience and Necessity (CCN) CCNs are issued by TCEQ and create service areas for companies providing water service. Serious problems for landowners can result from being in these area concerning groundwater and other issues. HB 2876 gives landowners the ability to take land out of these areas under certain conditions. (HB 2876 passed in 2005, but is not yet posted in statutes on Texas Legislature On Line. It is on that site in bill form.)
WATER REGULATION, PRIVATE DAMS AND RESERVOIRS [top]
Water Code Chapter 11, Section 11.142
Generally, a dam impounding not more than 200 acre-feet of water used only for domestic and livestock purposes is exempt. Use of the water for irrigation and/or commercial purposes is not exempt. TLC believes the law must be amended to protect the right of any property owner to have a reservoir for such uses as a common recreational lake on private property or in a subdivision, or an aesthetically pleasing waterscape.
WATER REGULATION, COUNTY, WATER WELLS [top]
Water Code Chapter 35, Section 35.019
In priority groundwater management areas, counties can require availability studies for subdivisions dependent on wells.
WATER REGULATION, GROUNDWATER DISTRICTS [top]
Water Code Chapter 36
Many Texas counties now have groundwater districts, which have the authority to tax, limit pumping, dictate well drilling and installation standards. Water Code Chapter 36.117 (b) (1) provides that a well on a tract larger than 10 acres used solely for domestic and livestock water is exempt.Chapter 36.123 authorizes district employees and agents to enter private property without prior notice. Taxes and regulations differ in different districts. For example, the Hays Trinity District exempts domestic wells serving single residences regardless of tract size, and requires owner permission for entry to private property to inspect an exempt well. After Senate Bill 2 passed in 2001, more than 12 counties created new districts, and their rules of are found in SB 2. There is no protection of groundwater rights per acre of land owned, and TLC believes this is a major problem.
TEXAS PROPERTY RIGHTS ACT OF 1995 [top]
Government Code Chapter 2007
This statute is the framework that will provide compensation to landowners for inverse condemnation, but it is of little effect because cities are exempt.
TAX, PROPERTY [top]
Tax Code Title 1
Generally authorizes and governs all property taxes in Texas.
TAX, PROPERTY AGRICULTURAL OPEN SPACE APPRAISAL [top]
Tax Code Chapter 23,
Texas Constitution Article 8 Section 1 (d) and 1 (d) (1)
NOTE: There are two separate statutes that allow land to be taxed on an agricultural production basis. One requires the ownerÕs primary occupation to be agriculture subchapter C Sec. 23.42), the other one does not, and is based solely on the use of the land (Subchapter D Sec. 23.51).
ROLL BACK: Any land appraised as agricultural is subject to paying full market value taxes for prior years if the use is changed. Land appraised under Subchapter C is subject to a 3-year roll back, and land appraised under Subchapter D is subject to a 5-year roll back. See Sections 23 .46 (c) and 23.55 (a).