31 TAC §§13.87 - 13.94
The General Land Office (GLO) and the School Land Board (SLB)
propose a new Subchapter G, relating to Vacant Land, §§13.87 - 13.94
in Title 31, Part 1, Chapter 13 of the Texas Administrative Code. The proposed
new subchapter G will contain rules governing the procedures for the purchase
or lease of vacant land. These rules are proposed pursuant to new legislation
that requires the GLO and the SLB to adopt rules governing the administration
of the statute and the terms and conditions for the sale or lease of vacant
land in accordance with Texas Natural Resources Code §51.174 and §51.175.
The GLO and the SLB propose new subchapter G, §13.87, relating to
General Provisions; §13.88, relating to Terms of Sale or Lease; §13.89,
relating to Applications; §13.90, relating to Deposits; §13.91,
relating to Notifications and Publication; §13.92; relating to Determination
of Good-Faith Claimant Status; §13.93, relating to Exceptions; and §13.94,
relating to Investigations. The proposed new sections are pursuant to Texas
Senate Bill 1806, 77th Legislature, Regular Session (2001) which amended Texas
Natural Resources Code, Chapter 51, Subchapter E. The Legislature amended
the vacancy statute to expedite and simplify the vacancy process for landowners,
interested and affected property interest owners, good faith claimants, applicants
and the commissioner. The most significant legal change to the GLO's vacancy
process is the applicant's right to proceed to district court one year after
filing an application. Boundary disputes and clouds on title arising out of
vacancy claims can be resolved more economically and expeditiously in the
courts earlier in the vacancy process. Under the statute applicable to applications
filed prior to September 1, 2001, the process was longer and more complicated.
The amended statute is addressed, in part, at minimizing GLO resources dedicated
to vacancy determinations. The judicial branch is charged with determining
the extent of private property rights. The new statute provides for expedited
judicial decisions for private property owners impacted by claims that land
is vacant.
These rules govern actions of the GLO, the commissioner and the SLB in
processing applications to purchase or lease vacant land and are jointly proposed.
Section 13.87, relating to General Provisions, describes the rules' applicability;
delegations by the commissioner and the commissioners advice to the SLB. Section
13.88, relating to Terms of Sale or Lease, describes the SLB's role in setting
the terms of a sale or lease of vacant land, including mineral reservations
and preferential purchase rights of good-faith claimants and applicants.
Applications to purchase or lease vacant land must strictly conform to
statutory requirements and proposed §13.89, relating to Applications,
explains how to request an application and when an application may be rejected
or terminated. Whether or not a deposit is required for processing the application
is within the discretion of the commissioner as described in proposed §13.90,
relating to Deposits. The applicant is required to notify all necessary parties
when the commissioner accepts the application and also to publish notice of
acceptance of the application in a newspaper of general circulation. These
requirements are detailed in proposed §13.91, relating to Notifications
and Publication.
The new legislation simplified the definition of good-faith claimant and
proposed §13.92, relating to Determination of Good-Faith Claimant Status,
details the criteria to be used in the determination and the information required
to prove good-faith claimant status. Proposed §13.93, relating to Exceptions,
explains the procedures of and form for exceptions to a filed survey report.
Any necessary party may, but is not required to, file exceptions to a surveyor's
report. Finally proposed §13.94, relating to Investigations, reiterates
that the commissioner is not required to hold any hearing on an application
and lists factors that will be considered in deciding whether to conduct a
hearing.
These rules apply to all applications filed after September 1, 2001, the
date when amended Texas Natural Resources Code §§51.171 - 51.192
became effective. The new statute limits the time for review by the commissioner
and explicitly exempts the vacancy determination process from the provisions
of the Administrative Procedure Act. The statute allows the commissioner to
decide whether he should appoint a surveyor. The previous statute required
such an appointment. The statute also changes the legal standard of review
in district court. Finally the statute clarifies and simplifies the preferential
rights of good-faith claimants and of applicants.
Ben Thomson, Chief Surveyor of the General Land Office, has determined
that during the first five-year period the proposed rules will be in effect,
there will be no fiscal implications for state or local governments. These
rules do not have any fiscal impact or affect on state or local governments;
the costs of preparing and filing an application to purchase or lease vacant
land are borne by the applicant and the GLO processing of the applications
are already accounted for in GLO budgeting.
Mr. Thomson has also determined that during the first five year period
the proposed rules will be in effect, there will be a small increase of $50
in the GLO fee charged to applicants. The proposed new fee reflects a minimal
increase that does not cover the full costs of processing the applications.
The public will benefit from this by having the state more accurately reimbursed
for the costs associated with processing the applications. There will be
no effect on small businesses or local economies as the result of this rule.
The General Land Office has prepared a takings impact assessment for this
proposed rule pursuant to Texas Government Code §2007.043 and the Private
Real Property Preservation Act Guidelines, §2.18. The proposed new rules
do not burden private property. To receive a copy of the takings impact assessment
or comment on the proposed rulemaking, please send a written request or comment
to Melinda Tracy, Texas Register Liaison, Texas General Land Office, P.O.
Box 12873, Austin, Texas 78711-2873, facsimile number (512) 463-6311, or e-mail
to melinda.tracy@glo.state.tx.us. Comments must be received by no later than
30 days from the date of publication of this proposal. A public hearing on
the proposed rulemaking will be held upon request in accordance with Texas
Government Code, §2001.029.
These rules are proposed under the authority of Texas Natural
Resources Code §§51.171 - 51.192.
Texas Natural Resources Code, Sales and Lease of Vacancies, §§51.171
- 51.192, are affected by these proposed rules.
§13.87.General Provisions.
(a)
This subchapter applies to applications to purchase or
lease vacant land filed on or after September 1, 2001. These rules implement
Texas Natural Resources Code §§51.171 - 51.192, enacted Texas Senate
Bill 1806, 77th Legislature, Regular Session (2001).
(b)
Previous Texas Natural Resources Code §§51.171
- 51.202 and regulations promulgated thereunder 31 TAC, Part 1, Chapter 13, §§13.71
- 13.86 continue to apply to applications pending before the General Land
Office and actions arising out of vacancy applications pending in the courts
of the State of Texas on or before August 31, 2001.
(c)
The commissioner delegates responsibility for implementing
the provisions of Texas Natural Resources Code Chapter 51, Subchapter E to
the Chief Surveyor of the General Land Office Surveying Division.
(d)
The commissioner will advise the School Land Board of the
fair market value, based on an appraisal by General Land Office or other appraisers,
of the surface and mineral estates of vacant land when the application for
purchase or lease is ripe for action by the School Land Board. An application
is ripe for purchase or lease when an order, issued by the commissioner or
by a court, is final and no longer subject to legal challenge. An application
is no longer subject to legal challenge when the time periods for legal appeals,
pursuant to Texas Natural Resources Code, Chapter 51, Subchapter E, and any
other applicable statutes, have expired.
(e)
The School Land Board shall set the price for purchase
of surface estates and the terms of any lease. The price may not be less than
fair market value, as determined by the appraisal.
§13.88.Terms of Sale or Lease.
(a)
Mineral Reservation. The School Land Board shall reserve
to the State of Texas for the use and benefit of the permanent school fund
all oil, gas, coal, lignite, sulphur, and other mineral substances from which
sulphur may be derived or produced, salt, potash, uranium, thorium, geothermal
resources, and all other minerals in and under the vacant land and by whatever
method recovered, as well as the right to lease such minerals and the right
of ingress and egress to explore for and produce the same.
(b)
Mineral Leasing. When leasing minerals in or under vacant
land, the School Land Board may consider the interests of persons who previously
held mineral interests in adjoining or surrounding lands when determining
the fair distribution of leasing rights in the mineral estate. The School
Land Board is not obligated to lease minerals to satisfy an applicant's right
under Texas Natural Resources Code §51.192(b). Where there is no good
faith claimant, the School Land Board may enter into agreements with persons
holding mineral rights in adjoining or surrounding lands prior to the vacancy
determination in lieu of offering the mineral estate for lease to others.
(1)
The School Land Board shall consider an applicant's right
under Texas Natural Resources Code §51.192(b) when considering terms
of a mineral lease.
(2)
The School Land Board may lease the minerals in the vacant
land under the provisions of Texas Natural Resources Code, Chapter 52, Subchapter
B and under Texas Natural Resources Code, Chapter 53.
(c)
Sale or lease to a Good Faith Claimant. The School Land
Board shall recognize a good-faith claimant's preferential right to purchase
the surface and lease the minerals in vacant land by offering the good-faith
claimant the first opportunity to purchase and lease at a price set by the
School Land Board.
(d)
Sale or lease to an Applicant. An applicant's preferential
right to purchase the surface or to lease minerals in vacant land is secondary
to the preferential right of good-faith claimants. The SLB may sell the surface
estate and lease the minerals to the applicant under the same conditions as
to a good faith claimant. If neither the good faith claimant nor the applicant
exercises the right to purchase or lease, then the file shall be endorsed,
"surveyed, unsold school land" and may be sold and leased in the manner prescribed
by law for sale and lease.
§13.89.Applications.
(a)
A person may request an application to purchase or lease
vacant land:
(1)
by letter addressed to the Texas General Land Office, Surveying
Division, P.O. Box 12873, Austin, Texas 78711-2873; or
(2)
electronically at www.glo.state.tx.us.
(b)
An application must strictly conform to the requirements
of Natural Resources Code §51.176 and must include a non-refundable filing
fee of $150 payable to the General Land Office.
(c)
The commissioner may reject an application when the General
Land Office files contain a previous determination that the land described
in the application is not vacant and no appeal to a state or federal court
arose from that determination. The commissioner may accept an application
where the General Land Office has previously determined that the land is not
vacant and no appeal arose from that determination. The Commissioner will
accept such an application only if the application provides information not
considered in the previous determination.
(d)
Termination of an application means that no substantive
determination was made on the vacancy application. The General Land Office
may terminate an application: where the application is rejected pursuant to
Texas Natural Resources Code §51.177; and, where the applicants refuses
or fails to make a requested deposit; and, where the applicant refuses or
fails to perform any other act required by the General Land Office under Texas
Natural Resources Code, Subchapter E, Chapter 51, or these rules.
(e)
An applicant shall provide an affidavit stating that a
search of the records of the General Land Office, the applicable county clerk's
offices, the tax records and other publicly available records of the county
or counties wherein the allegedly vacant land is located was made and that
the applicant has used due diligence in an effort to identify all interested
parties.
§13.90.Deposits.
(a)
The commissioner shall decide whether a deposit is required
to investigate the application. Any required deposit shall be held and accounted
for pursuant to Texas Natural Resources Code §51.181 and shall be used
only for General Land Office administrative costs, the expenses of a survey
and other investigative and related costs, including the costs of hearings.
(b)
The commissioner has sole discretion to determine whether
an expenditure is necessary and to set the amount of the initial deposit and
any supplemental amounts required to be deposited by the applicant.
§13.91.Notifications and Publications.
(a)
Acceptance of Application. The applicant shall notify all
necessary parties of the commissioner's acceptance not later than 90 days
after the acceptance under Texas Natural Resources Code §51.177(b). The
applicant shall provide the commissioner with proof of notification consisting
of a copy of each notice, without the enclosures, and proof of mailing by
certified mail of same to each necessary party.
(b)
Future Notices. The applicant shall provide each necessary
party with an opportunity to receive all future notices throughout the vacancy
proceeding. The applicant shall provide notice with the initial notice under
subsection (a) of this section or separately that clearly advises the necessary
parties that future notices will not be provided unless specifically requested.
Applicant shall provide such future notices by mail, facsimile or as otherwise
reasonably requested by a necessary party. Applicant may not use or assist
any other person in using the names, addresses, telephone numbers, e-mail
addresses or other information about the necessary parties for personal gain.
(c)
Not later than 30 days after notices are mailed pursuant
subsection (b) of this section the applicant shall publish notice, in a form
prescribed by the General Land Office, in a newspaper of general circulation
in the county and general area where the land claimed to be vacant is located.
The notice shall be published once a week for three consecutive weeks. The
notice shall:
(1)
describe the allegedly vacant land as it is described in
the application and state whether a survey was filed with the application;
if a survey was filed, the notice shall also advise necessary parties of their
right to a copy of the survey and to file exceptions thereto pursuant to §13.93
of these rules;
(2)
advise the public that the General Land Office has accepted
the application;
(3)
include applicant's full name and address;
(4)
advise necessary parties, not otherwise notified, to contact
applicant for copies of the application, survey and other related existing
documents; and
(5)
advise necessary parties that no further notices will be
provided unless a request for same is made to the applicant.
(d)
The applicant shall provide the General Land Office with
a copies of the newspaper notice, proof of publication for the required period
and all additional notices or correspondence received or sent by applicant
arising from the newspaper notice.
(e)
The applicant shall provide the General Land Office with
copies of communications and responses thereto received throughout the time
the application is pending at the General Land Office.
(f)
The commissioner shall notify each necessary party upon
issuance of a final order on an application. The commissioner may require
that the applicant provide necessary parties with particular notices even
where the parties have not notified the applicant of a request for all notices
under subsection (b) of this section.
§13.92.Determination of Good Faith Claimant Status.
(a)
The commissioner shall decide whether a person is entitled
to status as a good-faith claimant to vacant land by considering any facts
he deems relevant to support the claim. The commissioner may require documentation
in addition to the application in support of the claim. The commissioner will
consider whether the person has complied with the requirements of Texas Natural
Resources Code §51.178.
(b)
If a good faith claimant does not have documents or evidence
in support of the items listed in this subsection, then the application shall
so affirmatively state the lack of such evidence or documents. A person alleging
good-faith claimant status under Texas Natural Resources Code shall provide:
(1)
documentary evidence, including, if appropriate, affidavits,
to establish past or present use or occupation of the land claimed to be vacant;
(2)
proof of color of title and any muniment of title;
(3)
a description of the method of enclosure and relevant information
about the definite boundaries recognized in the community, including a physical
description of those boundaries and evidence of their recognition;
(4)
documentary evidence of possession for a period of at least
ten years; and
(5)
a statement of facts supporting a good-faith belief that
the vacant land was within legal boundaries that would have vested title in
the claimant.
(c)
When determining whether a person is a good faith claimant,
the commissioner may take into account whether, under the facts and circumstances
presented, the person should have conducted a title investigation before or
after taking possession of the land. The commissioner will also consider whether
public records delineated or disclosed the existence of the vacant land prior
to the person's use, occupation or possession of the land.
§13.93.Exceptions to Survey Report
(a)
A necessary party may file exceptions to a survey report
filed with the application or to a survey report issued as the result of a
commissioner's investigation under Texas Natural Resources Code §51.184
and §51.185.
(1)
Exceptions to a survey filed with the application shall
be filed with the General Land Office within 45 days of the last notification
published under Texas Natural Resources Code §51.179.
(2)
Exceptions to a survey prepared at the request of the commissioner
under Texas Natural Resources Code §51.182 shall be filed within 30 days
of the date of service of the report under Texas Natural Resources Code §51.184.
(3)
Each necessary party who files exceptions shall serve the
General Land Office and the applicant. The applicant shall then serve every
other necessary party with a copy of the exceptions received under this section.
(b)
Exceptions shall clearly identify the corner, course, distance
or other relevant factor that is being challenged. The exceptions shall also
reference the legal or other expert authorities relied upon to support the
challenges to the survey. Each necessary party may file only one set of exceptions
and no rebuttals or replies are permitted unless specifically requested by
the commissioner.
(c)
Exceptions shall be filed on standard 8 1/2 by 11 inch
pages and shall be typewritten in font no smaller than 12 points. The exceptions
shall be limited to 15 pages and attachments shall not exceed 25 pages, except
for maps. Exceptions that exceed the page limits may be summarily rejected
except that the commissioner may, upon application and for good cause shown,
allow additional pages.
(d)
The failure of a party to file exceptions to a survey will
not be considered as agreement with or acquiescence in any survey purporting
to show the existence of a vacancy. The commissioner will not consider the
failure to file exceptions when deciding whether a vacancy exists.
§13.94.Investigation.
(a)
The commissioner shall maintain in the General Land Office
scrap file the names of all persons consulted, all documents and surveys reviewed
and citations to relevant laws reviewed.
(b)
The commissioner may consult with any General Land Office
employee, including attorneys, the chief surveyor and any other relevant expert
when reviewing applications, conducting investigations and deciding whether
a vacancy exists.
(c)
The commissioner is not required to hold a hearing nor
to allow necessary parties to present information in addition to that specified
in the Texas Natural Resources Code or in these rules. When determining whether
a hearing should be held under Texas Natural Resources Code §51.185 the
commissioner may consider:
(1)
the existence, extent and relevance of disputed facts;
(2)
the status of General Land Office archives files and records
relating to the alleged vacancy; and
(3)
information in public land records.
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 April 5, 2002.
TRD-200202151
Larry Soward
Chief Clerk
General Land Office
Earliest possible date of adoption: May 19, 2002
For further information, please call: (512) 305-9129