31 TAC §§13.71-13.86
The General Land Office (GLO) proposes new §§13.71-13.86,
relating to applications to purchase or lease vacant and unsurveyed public
school land under the Texas Natural Resource Code, Subchapter E. The proposed
rules, upon adoption, will replace 31 TAC §1.1 (relating to Good-Faith
Claimants), and §1.2 (relating to Applicants). Sections 1.1 and 1.2 will
be proposed for repeal.
Spencer Reid, General Counsel, has determined that for the first five-year
period the rules are in effect, there will be no anticipated fiscal implications
as a result of the administration of these rules.
Mr. Reid also has determined that, for the first five-year period the rules
are in effect, the public benefit anticipated as a result of administration
of these rules streamline the administrative process. There will be no effect
on small businesses. There is no anticipated economic cost to persons who
are required to comply with the rule as proposed other than as required by
law.
Interested parties may submit comments to Carol Milner, General Land Office,
1700 North Congress, Room 626, Austin, Texas 78701-1495. Comments must be
submitted by 5:00 p.m. on Friday, March 13, 1998.
The new subchapter is proposed under Texas Natural Resources
Code, §51.201, which authorizes the commissioner to promulgate rules
relating to applications to purchase or lease vacant and unsurveyed public
school land under the Texas Natural Resource Code, Subchapter E.
The Texas Natural Resources Code , Subchapter E is affected by this proposed
rulemaking.
§13.71.Purpose and Scope.
This subchapter applies to the application to purchase or lease vacant
and unsurveyed public school land as set forth in Texas Natural Resources
Code , Chapter 51, Subchapter E.
§13.72.Definitions.
The following words and terms, when used in this subchapter, have
the same meaning as set forth in Texas Natural Resources Code , Subchapter
E, Chapter 51: Applicant; Application; Good-Faith Claimant; Interest; Interested
Person; and Vacancy. The following terms, when used in this subchapter, mean
the following unless the context clearly indicates otherwise:
Agency
- The General Land Office.
Commissioner
- The Commissioner of the General Land Office.
Eligible Surveyor
- A duly elected surveyor in a county that
has an elected county surveyor or a licensed state land surveyor licensed
by the Texas Board of Professional Land Surveying.
§13.73.General Provisions/Exclusions.
(a)
Delegation of powers and duties. The commissioner may
delegate to one or more employees of the agency the authority to perform any
action of the commissioner or the agency required or permitted by this subchapter,
provided however, only the commissioner may sign final orders in contested
cases (as that term is defined in the Texas Government Code, Administrative
Procedures Act, Chapter 2001). In the event of the death, disability, or absence
of the commissioner, the official designated by law to act in such events
may sign such orders.
(b)
Exceptions to this subchapter. The commissioner may, upon
written motion from an interested person or the agency, and upon notice and
opportunity for hearing grant exceptions to the procedural provisions of this
subchapter if the commissioner determines that such exceptions are in the
interest of justice or the efficient administration of this subchapter.
§13.74.Application.
An applicant may apply to purchase or lease land claimed to be unsurveyed
public school land by filing an application in the form prescribed by the
commissioner.
§13.75.Filing the Application.
(a)
The commissioner shall mark each application accepted
for filing with the date and hour that it is received and shall assign it
a file number. The prefix "MA" (Mineral Application) shall be assigned to
all applications to lease minerals or geothermal resources. The prefix "SF"
(Scrap File) shall be assigned to all applications to purchase the surface
estate.
(b)
The commissioner may refuse to accept for filing an application
that:
(1)
has material omissions or is incomplete;
(2)
does not describe the land claimed to be vacant;
or
(3)
describes as vacant land, land that has been finally
adjudicated in a court of this state or of the United States not to be vacant.
§13.76.Establishing Good-Faith Status.
(a)
An applicant may assert good-faith status as to all or
a portion of the land claimed to be unsurveyed public school land in the application.
(b)
An applicant or interested person may assert status as
a good-faith claimant by filing a claim no later than the 20th day preceding
the first date on which the hearing on the merits begins.
(1)
a claim of good-faith status shall state the grounds for
the claim and describe the land subject to the applicant's or interested person's
good-faith claim.
(2)
a person asserting good-faith status shall serve
a copy of the notice of the claim filed with the commissioner on all interested
persons by certified mail, return receipt requested. A person responsible
for service shall return the original US Postal Service receipts and shall
become their custodian.
(c)
An applicant or interested persons seeking good-faith
status shall submit evidence of good-faith status by affidavit accompanied
by certified copies of documents evidencing title. A good-faith claimant may
amend an affidavit of good-faith status or file additional documents in support
thereof upon the request of the commissioner or otherwise no less than 10
days preceding the date the hearing on the merits begins. Evidence of good-faith
claims may include:
(1)
a certified copy of one or more recorded instruments,
such as deeds, judgments, or other muniments of title;
(2)
a sworn affidavit by two disinterested third parties
containing facts supporting the occupancy and use of the land claimed to be
vacant by the good-faith claimant or the claimant's predecessors in interest;
and
(3)
such other evidence deemed reliable by the commissioner.
§13.77.Priority Among Good-Faith Claimants.
(a)
If more than one interested person files a claim of good-faith
status on land claimed to be vacant or on some portion thereof, and the commissioner
enters a finding that more than one claimant is a good-faith claimant under
Texas Natural Resource Code, §51.172(3), a claimant qualifying as a good-faith
claimant under §51.172(3)(B) shall have priority over an applicant or
good-faith claimant qualifying as a good-faith claimant under §51.172(3)(A),
then a good-faith claimant under §51.172(3)(C) and a good-faith claimant
under §51.172(3)(D) shall have the lowest priority among good-faith claimants.
(b)
In the event the commissioner determines there are multiple
good-faith claimants who desire to purchase all or a portion of property found
to be vacant, unsurveyed public land, the commissioner shall apply the priority
rules set forth in (a) of this section and allocate the preference right to
purchase under Texas Natural Resources Code, §51.197 among the various
good-faith claimants. The preference right to purchase may be exercised as
provided in Texas Natural Resources Code, §51.197.
§13.78.Deposit for Cost of Proceeding on the Application.
(a)
The commissioner shall notify the applicant, including
an applicant who asserts good-faith claimant status, in writing of the requirement
that the applicant make an initial deposit in the amount of the commissioner's
estimated costs of proceeding under the application, including the costs of:
(1)
the surveyor;
(2)
the preparation of copies, working sketches, and
the reports by the surveyor;
(3)
serving notices, including by certified mail and/or
by publication, and making copies, including copies of plats; and
(4)
other costs, excluding salaries and overhead expenses,
expected to be expended by the agency in investigating the existence and boundaries
of unsurveyed public school land, up to, and including, the hearing on the
merits of the application.
(b)
If the amount initially estimated is insufficient to pay
the costs, the commissioner shall notify the applicant in writing to make
a supplemental deposit in an amount estimated by the commissioner.
(c)
The applicant shall, within 30 days of the date that the
commissioner's initial or supplemental estimate of the cost of proceeding
under the application is mailed to the applicant:
(1)
deposit funds in the amount of the estimated cost with
the agency; or
(2)
appeal the amount of an initial or supplemental deposit
determined by the commissioner in the manner provided by Texas Natural Resources
Code, §51.176.
(d)
If the applicant fails to deposit the initial or supplemental
deposit within the prescribed time, the commissioner shall cancel the application.
Cancellation terminates all rights of the applicant under the terminated application.
(e)
The applicant shall deposit funds in cash (including cashier
checks, certified checks, money orders or electronic funds transfer). The
deposit date shall be the date of tender.
§13.79.Appointment of Surveyor.
(a)
No later than the 60th day after the date on which the
required deposit is received by the agency, the commissioner shall appoint
an eligible surveyor to survey the area claimed to be vacant. The commissioner
shall select among the eligible surveyors based on the following factors:
(1)
the prior experience and knowledge of an eligible surveyor
with the land titles in the area of the alleged vacancy; and
(2)
the location of an eligible surveyor in relation
to the location of the alleged vacancy, with preference given to those within
100 miles of the alleged vacancy.
(b)
All fees and expenses, including notices and copies, shall
be paid by the applicant from the initial deposit or any supplementary deposits
made by the applicant in accordance with §13.78 of this title (relating
to Deposit for Cost of Proceeding on the Application).
(c)
The commissioner shall provide a statement of the disposition
of deposited funds at the time and in the manner provided by Texas Natural
Resources Code , §51.117(b).
§13.80.Notice of Intent to Survey.
(a)
No later than the 10th day after the date on which the
commissioner appoints the surveyor, the commissioner shall give notice of
intent to survey by certified mail, return receipt requested, to all interested
persons at the addresses set out in the application, along with a true and
legible copy of the application.
(b)
The notice shall contain:
(1)
the date of the notice;
(2)
a statement that a vacancy application has been made;
(3)
the name, address and telephone number of the surveyor
appointed to make the survey;
(4)
a statement that the survey may begin any time after
the 20th day after the date of the notice but may be delayed by law; and
(5)
a statement that an interested person is entitled
to:
(A)
observe the conduct of the survey;
(B)
receive a copy of the final survey report and other documents
filed by the surveyor; and
(C)
participate in any proceedings related to the vacancy
determination.
(c)
If the location of an interested person is unknown or
if notice is returned as unclaimed or undeliverable, the commissioner shall
publish notice as prescribed by the Texas Rules of Civil Procedure. The foregoing
does not apply if the notice is returned marked refused.
(d)
If notice by publication is made, the survey may not begin
and further proceedings may not be held until the 30th day after publication
is completed, provided however, upon receipt of a written request to proceed
with the survey along with a statement by an interested person or the surveyor
that the delay required by publication may materially affect the accuracy
of the survey because of the possibility of the destruction, alteration, or
removal of natural features, monuments, or witness objects, or for other good
cause, the commissioner may enter a written order that the survey proceed
prior to the 30th day after the date of the last publication of the notice.
Notice of the request to proceed with the survey and of any order issued in
response to the request shall be sent by the commissioner by first class mail
to all interested persons.
(e)
The cost of providing the notices required by this subsection
shall be paid by the applicant out of the initial deposit or any supplementary
deposits made by the applicant in accordance with §13.78 of this title
(relating to Deposit for Cost of Proceeding on the Application).
(f)
A person may waive service of notice as provided in Texas
Natural Resources Code , §51.180. A waiver of notice shall be in the
form prescribed by the commissioner.
§13.81.Disqualification of a Surveyor.
The commissioner may, upon written motion of an interested person and
upon notice and opportunity for hearing, disqualify a surveyor on the grounds
of bias, prejudice or conflict of interest. The burden shall be on the movant
to prove bias, prejudice or conflict of interest.
§13.82.Survey Report.
(a)
The surveyor's report shall meet the requirement of §7.7,
of this title (relating to Surveyors Report, General).
(b)
The surveyor shall file the surveyor's report with the
agency within the time prescribed by law, along with a sufficient number of
copies to provide copies to the applicant and all interested persons. A surveyor's
report may be rejected if the appropriate number of copies does not accompany
the report.
(c)
The commissioner shall serve a true copy of the survey
report, field notes, plat and all other documents filed by the surveyor on
each interested person, including those named in the survey report by certified
mail, return receipt requested, no later than the fifth business day after
the survey report is filed and accepted by the commissioner.
§13.83.Exceptions to Survey.
(a)
An interested person or the agency may file exceptions
or other responses to the survey report, field notes, and plat not later than
the 30th day after the date the survey is accepted by the commissioner . Any
interested person, or the agency, may file a reply to exceptions no later
than the 20th day after the date the exceptions are filed.
(b)
A person filing exceptions or a reply to exceptions shall
include a statement that a copy has been served by US mail, return receipt
requested on each interested person, the surveyor and the agency. A person
shall retain the original US Postal Service receipts and become their custodian.
(c)
Neither failing to file exceptions and/or replies nor
filing exceptions and/or replies to original or additional survey reports,
field notes, plats, or other documents prepared by the surveyor shall in any
way affect or impair the right of an applicant or interested person to make
exceptions to the survey at a hearing on the merits.
§13.84.Additional Surveys.
(a)
The commissioner, after notice is sent by US certified
mail return receipt requested to all interested persons, may direct the surveyor
to make additional surveys, to investigate as the commissioner deems necessary,
and to prepare supplemental reports, plats, and field notes.
(b)
The commissioner shall serve a true copy of any additional
survey reports, field notes, plat and other information on each interested
person, including those named in the survey report by US certified mail, return
receipt requested, not later than the fifth business day after the survey
report has been accepted for filing by the commissioner.
(c)
Any interested person may file exceptions or other responses
to such additional survey reports, no later than the 20th day after the date
the required documents are accepted for filing by the commissioner.
§13.85.Action on Application.
(a)
No later than the 90th day after the date on which the
commissioner accepts the survey report and other documents, but in any event
no later than the 180th day after the initial survey is filed, the commissioner
shall:
(1)
deny the application;
(2)
hold a hearing to determine the existence and boundaries
of the vacancy; or
(3)
enter a decision without a hearing in accordance
with §13.86 of this title (relating to Decision Without a Hearing).
(b)
For good cause, the commissioner may, by written order,
extend the time for entering an order or holding a hearing.
§13.86.Decision Without A Hearing.
(a)
After the commissioner appoints a surveyor and the surveyor
has submitted the surveyor's final report, an applicant asserting good-faith
status may request that the commissioner make a determination on the application
without notice or hearing upon filing of evidence that:
(1)
the good-faith claimant owns all of the land and interest
in land, including all mineral interests, completely surrounding the land
claimed to be vacant;
(2)
there is no subsisting prior application covering
the land described in the good-faith claimant's application;
(3)
no previous application has been made covering the
land described in the good-faith claimant's application;
(4)
the good-faith claimant meets all other requirements
of a good-faith claimant; and
(5)
no interested party has filed a notice to intervene
in the proceeding.
(b)
If the commissioner finds that the evidence presented
is accurate and no interested party has filed a notice to intervene, then
upon the commissioner's acceptance of a final survey report by the surveyor,
the commissioner may enter an order without notice to other persons declaring
the land covered by the application to be vacant unsurveyed public school
land if the commissioner finds that:
(1)
the applicant (or co-applicants) own all of the land and
interests in land, including all mineral interests, completely surrounding
the land claimed to be vacant;
(2)
there is no subsisting prior application covering
the land described in the application under consideration;
(3)
no previous application has been made covering the
land described in the application under consideration that has been denied
on substantive grounds; and
(4)
the applicant meets all other requirements of a good-faith
claimant.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
February 9, 1998.
TRD-9801833
Garry Mauro
Commissioner
General Land Office
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 305-9129