Part 1.
GENERAL LAND OFFICE
Chapter 13.
LAND RESOURCES
The General Land Office (GLO) and the School Land Board (SLB) propose
the repeal of Title 31, Part 1, Chapter 13, Subchapter F, relating to Application
to Purchase or Lease Vacant and Unsurveyed Public School Land, §§13.71
- 13.86 of the Texas Administrative Code and simultaneously proposes a new
Subchapter F, relating to Vacancy Process, §§13.71 - 13.83 of the
Texas Administrative Code. The proposed new Subchapter F, §§13.71
- 13.83 will contain rules governing the administrative procedures for processing
and investigation of vacancy applications submitted to the GLO and the terms
and conditions for the sale or lease of the 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 statutes and the terms and conditions
for the sale or lease of vacant land in accordance with Tex. Nat. Res. Code §51.174(c).
The GLO proposes the repeal of the existing Subchapter F, relating to Application
to Purchase or Lease Vacant and Unsurveyed Public School Land, §§13.71
- 13.86 of the Texas Administrative Code as all applications pending before
the GLO and actions arising out of vacancy applications pending in the courts
of the State of Texas that came within the purview of these rules have been
finalized. The statute with which these rules originally correspond has been
amended twice, most recently by S.B.1103, 79th Leg., R.S. (2005). Therefore
as all applications are finalized and the statue had been amended these rules
no longer have a force or effect and are no longer necessary.
The GLO and the SLB simultaneously propose the new Subchapter F, relating
to Vacancy Process, §§13.71 - 13.83. The proposed new sections are
pursuant to Texas S.B. 1103 79th Leg., R.S. (2005) which amended Texas Natural
Resources Code, Chapter 51, Subchapter E. The Legislature amended the vacancy
statute to create a more expedient and efficient administrative process for
processing vacancy applications for landowners, interested and affected property
interest owners, good faith claimants and applicants. These rules establish
the requirements of the administrative proceedings included in the new statute.
Proposed §13.71, relating to General Provisions describes the rules
applicability, delegations by the commissioner, and incorporates the Administrative
Procedure Act, Chapter 2001, Texas Government Code. Proposed §13.72,
relating to Definitions provides definitions for additional terms used in
the rules but not defined by the statute.
The Legislature's amendment of Texas Natural Resources Code, Chapter 51,
Subchapter E included additional deadlines to the GLO's administrative process
for processing vacancy applications. The new statute allows for extension
of the deadlines under Tex. Nat. Res. Code §51.174(b) and new proposed §13.73,
relating to Extension of Deadlines explains how requests for extensions shall
be submitted and granted. The rule also allows the Commissioner to suspend
such the deadlines in the statute for good cause or extreme circumstances
outlined in the proposed rule.
The new statute significantly amended the application process and proposed §13.74
relating to Application Process explains the GLO's initial processing of the
vacancy application and when a vacancy application may be refused for filing
and dismissed without prejudice. The new statute greatly increased the definition
of property interests under which a person now may be defined as a Necessary
Party to the vacancy application and process. Proposed §13.75, relating
to Exceptions to Application, explains how the Necessary Parties may file
their exceptions to the Vacancy Application pursuant to the new statute.
As with the previous laws governing the Vacancy process, the commissioner
has the statutory authority to recover from the applicant certain costs the
agency expends in processing and investigating the vacancy application. The
commissioner under the new statute shall require the applicant to submit a
deposit to cover the reasonable costs and proposed §13.76, relating to
Deposits describes how the commissioner shall use the deposit, how the applicant
may submit the requested funds to the agency, the time frame for submission
of the deposit or supplemental deposits, and how failure to do so will result
in the termination of that particular vacancy application.
Under the new statute the commissioner has the discretion as to the appointment
of a surveyor for a particular vacancy application. If the commissioner decides
a surveyor is needed, the commissioner shall appoint a licensed state land
surveyor who is not associated with the vacancy application to prepare a report
in accordance with the statutory requirement under Tex. Nat. Res. Code §51.185.
Proposed §13.77, relating to Disqualification and Removal of an Appointed
Surveyor, details the process the GLO will take if a Necessary Party submits
a petition to the commissioner requesting the removal of a surveyor because
of bias, prejudice or conflict of interest. The proposed rule contains the
deadline for filing the exception and the form and content of the petition
the Necessary Party must submit. The proposed rule details procedures for
the hearing the GLO will hold to consider the petition and how the commissioner
will make a determination on the petition. The proposed rule also allows the
commissioner to remove a surveyor for bias, prejudice or conflict of interest
on his own motion but in accordance with the requirements of this proposed
section.
In order to ensure that all possible property interest owners receive notice
of the vacancy application, the Legislature added a new Attorney Ad Litem
requirement. If an applicant cannot provide evidence that the applicant owns
all the property interests in the land surrounding the land claimed to be
vacant, the commissioner must appoint an Attorney Ad Litem to ensure that
all such property interest owners are identified and properly noticed. Proposed §13.78,
relating to Attorney Ad Litem explains that the Ad Litem will search all property
records identified in the statute, as well as any other records related to
the land claimed to be vacant that in the reasonable professional judgment
of the Ad Litem will ensure that all Necessary Parties are identified. The
Ad Litem will present the results of his or her search to the commissioner
in order for those identified parties to receive notice of the pending vacancy
application. The Attorney Ad Litem will represent those parties that have
not been located in accordance with the statute for the duration of the vacancy
proceedings. The addition of the Attorney Ad Litem will ensure that all reasonable
steps have been taken to identify any property owners that may have an interest
in the land claimed to be vacant and that those parties may participate, if
they so choose, in the vacancy application process.
The Legislature amended the vacancy hearing process to bring the hearings
back under the Administrative Procedure Act, Chapter 2001, Texas Government
Code (APA). The GLO will still hold the hearings, the State Office of Administrative
Hearings will not be involved; however the GLO will use the hearing procedures
under the APA to ensure that all property interest owners are accorded due
process in the determination of whether a vacancy exists. Proposed §13.79,
relating to Forms of Pleadings contains the requirements for pleadings that
Necessary Parties may file for the hearing. Proposed §13.80, relating
to Conduct of Vacancy Hearings explains that the vacancy hearings will be
conducted in accordance with the APA and includes the actions that each Necessary
Party may take during the hearing such as calling witnesses and the right
to cross examination. Proposed §13.81, relating to Appearance of Parties
at Vacancy Hearings; Representation discusses how parties may either represent
themselves or have an attorney or other representative represent their interests
in the vacancy hearing. This section also includes the expected conduct and
decorum of all parties attending the hearings and the commissioner's ability
to remove people from such hearings under certain circumstances.
As with the previous legislation governing Vacancies, the commissioner
must issue a final order determining whether a vacancy exists under the pending
vacancy application. Proposed §13.82, relating to Commissioner's Final
Order and Record of Proceedings contains the administrative processes the
commissioner and staff will follow upon the execution of the final order.
All Necessary Parties will receive a copy of the Final Order and attachments.
Each Final Order will contain a staff recommendation, list of documents examined
and staff consulted, and findings of facts and conclusion of law. The GLO
will file a Notice of Claim of Vacancy with the real property records of the
County Clerk and County Surveyor no later than the 121st day of the date of
the commissioner's final order in the event the commissioner determines a
vacancy exists.
The Legislature expanded the definition of persons who may claim to be
Good-Faith Claimants under the vacancy statute to include mineral estate holders,
royalty interest holders, persons holding easements or right-of-ways in the
land claimed to be vacant, and persons who used the alleged vacancy for any
purpose including the exploration of oil, gas, sulphur, other minerals or
geothermal resources, or persons holding title under persons described more
fully in §51.172, Tex. Nat. Res. Code (Vernon Supp. 2005). Proposed §13.83,
relating to Determination of Good-Faith Claimant Status explains the documentary
evidence a person applying for Good-Faith Claimant Status must submit to the
commissioner as well as the Good-Faith Claimant affidavit. Those documents
include among others, documents establishing previous use, proof of color
of title and a statement of fact supporting the good faith belief that the
vacant land was within the boundaries of land to which they claimed title.
If there exist multiple parties claiming Good Faith Status to the same portion
of land, proposed §13.83, relating to Determination of Good-Faith Claimant
Status, provides a priority of claims under which the status will be granted
that accords with the description of Good-Faith Claimants under §51.172(2)(B),
Tex. Nat. Res. Code (Vernon Supp. 2005). If a person is denied their Good-Faith
Claimant status, under §51.193(1), that person may request a hearing
regarding that determination. Proposed §13.83 states that such a hearing
will be held in accordance with 31 TAC, Part 1, Chapter 2, Subchapter B, §§2.31
- 2.36 (relating to Procedures from Non-Contested Case Hearings).
These rules apply to all vacancy applications filed after June 17, 2005,
the date when amended Tex. Nat. Res. Code §§51.171 - 51.195 became
effective. These rules supplement the new statutes by including the necessary
administrative processes the GLO staff needs in order to effectively carry
out the statutory authority granted in the amended statutes.
Mr. Ben Thomson, Chief Surveyor of the General Land Office, has determined
that during the first five-year period the proposed repeal and proposed new
sections are 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 for each year of the first five years
the proposed repeal and proposed new sections are in effect, the public will
benefit from the newly established administrative deadlines resulting in a
more expedient processing of the vacancy applications and the hearing procedures
under the APA. There will be no effect on small businesses or local economies
as the result of proposed repeal and proposed new section.
Comments on the proposed rulemaking may be submitted to Mr. Walter Talley,
Texas Register Liaison, Texas General Land Office, P.O. Box 12873, Austin,
TX 78711-2873, facsimile number (512) 463-6311, or email to walter.talley@glo.state.tx.us.
Comments must be received by no later than thirty (30) days from the date
of publication of this proposal.
Subchapter F. APPLICATION TO PURCHASE OR LEASE VACANT AND UNSURVEYED PUBLIC SCHOOL LAND