IN ADDITION The Texas Register is required by statute to publish certain documents, including applications to purchase control of state banks, notices of rate ceilings, changes in interest rate and applications to install remote service units, and consultant proposal requests and awards. To aid agencies in communicating information quickly and effectively, other information of general interest to the public is published as space allows. Office of the Attorney General Private Real Property Rights Preservation Act Guidelines PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT GUIDELINES sec.1.0 GENERAL DESCRIPTION OF THE LEGISLATION; DEFINITION OF "TAKING." sec.1.1. PURPOSE OF GUIDELINES. sec.1.11. The Private Real Property Rights Preservation Act (Act) represents a basic charter for the protection of private real rights in Texas. The Act represents the Texas legislature's acknowledgment of the importance of protecting private real property The Act, furthermore, is also purposed at ensuring that governmental entities covered by the Act point=5.02p set=5.02p "hard look" at the private real property implications of the actions they undertake and that they act according to the letter and spirit of the Act. It is, in short, another instrument to ensure open and responsible government. sec.1.12. These guidelines (Guidelines) implement the Act, sec.2007. 041. They provide a tool to assist governmental entities covered by the Act in appropriately complying with the Act. The Act, sec.2007.041 provides: (a) The attorney general shall prepare guidelines to assist governmental entities in identifying and evaluating those governmental actions described in sec.2007.003(a)(1)-(3) [of the Act] that may result in a taking. (b) The attorney general shall file the guidelines with the secretary of state for publication in the Texas Register in the manner prescribed by Chapter 2002 [of the Government Code]. (c) The attorney general shall review the guidelines at least annually and revise the guidelines as necessary to ensure consistency with the actions of the legislature and the decisions of the United States Supreme Court and the supreme court of this state. sec.1.13. Governmental actions undertaken pursuant to these Guidelines that compel the need to promulgate "Takings Impact Assessments" (TIAs) must ensure that information regarding the private real property implications of governmental actions are considered before decisions are made and actions taken by a governmental This information and analysis must be of high quality and must be accurate, as well as concise. TIAs must concentrate on the truly significant real property issues. There is no need to amass needless detail and meaningless data. The public is entitled to governmental entity conformance with legislative will, not a mass of unnecessary paperwork. But by the same token, it is also clear that the public is entitled to more than mere pro forma analyses by the governmental entities covered by the Act. TIAs shall serve as the means of assessing the impact on private real property, rather than justifying decisions already made. sec.1.14. The Office of the Attorney General (OAG) has carefully considered public and governmental entity input. On November 2, 1995, a public hearing was held in Belton, Texas, to receive comment from interested persons. In addition, in response to requests from the OAG, the OAG received 124 governmental entity responses from governmental agencies. Thirty-seven of these responses contained substantive comments. Nonetheless, given the complexity and difficulty of establishing a meaningful, efficient, and effective TIA promulgation system, the OAG will revisit and, if need be, initiate revision of these Guidelines within 120 days after they are first published in order to ensure that the Act's provisions and legislative intent are being fulfilled. sec.1.15. The failure of a governmental entity to promulgate a TIA when one is required will subject the governmental entity to a lawsuit to invalidate the governmental action. point=5.02p set=5.02p is, the risk for nonconformance with the Act by a governmental entity is the invalidation of the governmental action undertaken without a TIA. sec.1.16. Each governmental entity shall interpret the provisions of the Act as a supplement to its existing authority and as a mandate to view its traditional policies and missions in the light of the Act's private real property protection objectives. Governmental entities covered by the Act shall evaluate their actions in light of the purposes of the Act and the intent of the legislature in order to ensure full compliance with the Act. sec.1.17. CAVEAT. These Guidelines do not represent a formal Attorney General's opinion and should not be construed as an opinion of the Attorney General as to whether a specific governmental action constitutes a "taking." The Act raises complex and difficult issues in emerging areas of law, public policy, and government. These Guidelines are intended to provide guidance as governmental entities seek to conform their activities with the provisions of the Act, as well as legislative will and intent. Legal counsel should be consulted for advice as to any particular governmental action covered by the Act which may involve a constitutional or statutory "taking," or which implicates constitutional due process rights. sec.1.2 DEFINITION OF "TAKING." sec.1.21. The Act is directed at ensuring that governmental entities undertaking governmental actions covered by the Act do not do so without expressly considering or assessing whether "takings" of private real property may result. The duty to promulgate a TIA represents a critical mechanism in ensuring that requisite attention is paid to the impact of a covered governmental action on real property interests. Governmental entities need to be fully aware of three sets of criteria set forth in the Act defining the scope of what actions may constitute a "taking." sec.1.22. The Act, sec.2007.002(5) defines "taking" as follows (emphasis added): (a) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or (b) a governmental action that: (1) affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and ] of a reduction of at least 25% in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. sec.1.23(a). The Act, sec.2007.002 thus sets forth a definition of "taking" that (i) incorporates current jurisprudence on "takings" under the United States and Texas Constitutions, and (ii) sets forth a new statutory definition of "taking." (b). The Fifth Amendment to the United States Constitution (the "Takings Clause") provides: "[N]or shall private property be taken for public use, without just compensation." The Takings Clause applies to the states by virtue of the Fourteenth Amendment. (c). Article I, sec.17 of the Texas State Constitution provides as follows: No person's property shall be taken, damaged or destroyed without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money . . . (d). The Act, sec.2007.002(5)(B) sets forth a new statutory definition of "taking." Essentially, if a governmental entity takes some "action" covered by the Act and that action results in a devaluation of a person's private real property of 25% or more, then the affected party may seek appropriate relief under the Act. Such an action for relief would be predicated on the assumption that the affected real property was the subject of the governmental action. sec.1.3. "REGULATORY TAKINGS" OR "INVERSE CONDEMNATION": GENERAL PRINCIPLES. sec.1.31. While there is usually little question that there is a "taking" when the government physically seizes or occupies private real property, point=5.02p set=5.02p may be uncertainty as to whether a "taking" occurs when the government regulates private real property or activities occurring on private real property, or when the government undertakes some physically non-intrusive action which may have an impact on real property rights. These Guidelines pertain, for the most part, to the non-physical invasion and non-occupancy situations. sec.1.32. A physically non-intrusive governmental regulation or action that affects the value, use, or transfer of real property may constitute a "taking" if it "goes too far." point=5.02p set=5.02p or governmental actions are sometimes difficult to evaluate for "takings" because government may properly regulate or limit the use of private real property, relying on its "police power" authority and responsibility to protect the public health, safety, and welfare of its citizens. Accordingly, government may abate public nuisances, terminate illegal activity, and establish building codes, safety standards, or sanitary requirements generally without creating a compensatory "taking." Government may also limit the use of real property through land use planning, zoning ordinances, setback requirements, and environmental regulations. sec.1.33. Governmental actions taken specifically for the purposes of protecting public health and safety may be given broader latitude by courts before they are found to be "takings." However, the mere assertion of a public health and safety purpose should be viewed as insufficient to avoid a taking determination. point=5.02p set=5.02p Actions which are asserted to be for the protection of public health and safety should be undertaken only in response to real and substantial threats to public health and safety, be designed to advance significantly the health and safety purpose, and should impose no greater burden than is necessary to achieve the health and safety purpose. Otherwise, the exemptions or exceptions for may swallow the rule set forth by the Act to protect private real property. sec.1.34. If a governmental action diminishes or destroys a fundamental real property right-such as the right to possess, exclude others from, or dispose of real property-it could constitute a "taking." Similarly, if a governmental action imposes substantial and significant limitations on real property use, there could be a "taking." sec.1.4. CONSTITUTIONAL REGULATORY "TAKINGS" ANALYSES: TWO SEPARATE FORMULATIONS. sec.1.41. A governmental action may result in the "taking" of private real property if it (i) "does not substantially advance legitimate state interests . . . or (ii) denies an owner economically viable use of his land." point=5.02p set=5.02p 11 sec.1.42. With respect to the first formulation of the regulatory taking analyses, assuming a negative impact on a real property owner caused by a proposed governmental action, it must be considered whether there is a "nexus" between the proposed governmental action and the legitimate public interest purportedly furthered by the governmental action. point=5.02p set=5.02p It must also be considered whether there is "rough proportionality" between the governmental action and the supposed interest furthered by the governmental action. point=5.02p set=5.02p 13 sec.1.43(a). With respect to the second formulation of the regulatory taking analyses, it must be considered whether the proposed governmental action interferes with a real property owner's reasonable investment-backed development expectations. point=5.02p set=5.02p instance, in determining whether a "taking" has occurred, a court might, among other things, weigh the governmental action's impact on vested development rights against the government's interest in taking the governmental action. Defining reasonable investment-backed expectations is a complex, fact-intensive undertaking. In Reahard v. Lee County, the Eleventh Circuit of the United States Court of Appeals set forth the following set of eight essentially factual issues to be considered in determining whether a private real property owner's "investment-backed development expectations" have been negatively impacted and thus a regulatory taking effected: 1. History of the property. (when purchased? how much land purchased? where was the land located? nature of title? composition of the land? how was the land initially used?); 2. History of the development. (what was built on the land? by whom? how subdivided? to whom sold? what plats filed? what roads dedicated?); 3. History of zoning and regulation. (how and when was the land classified? how was use proscribed? changes in zoning classification?); 4. How did development change when title passed; 5. Present nature and extent of the property; 6. Owner's reasonable expectations under state common law; 7. Neighboring landowners' reasonable expectations under state common law; and 8. Diminution of owner's investment-backed expectations, if any, after passage of the regulation or the undertaking of a governmental action. sec.1.43(b). If a governmental action prohibits all economically viable or beneficial uses of real property, there may a "taking" unless the governmental entity can demonstrate that laws of nuisance or other pre-existing limitations on the use of the real property prohibit the proposed uses, or unless the governmental entity can show that there is no interest at stake protected or defined by common law. The United States Supreme Court has acknowledged that it has never clarified the "property interest against which the loss of value is to be measured, but has suggested that a real property owner's "investment-backed development expectations" as shaped by state property law may provide the answer. point=5.02p set=5.02p 16 sec.1.44(a). The governmental entity must consider whether there is a taking under state constitutional law (commonly referred to as inverse condemnation). In the non-physical intrusion cases, Texas courts, on a case by case basis, have employed several general tests to determine whether a compensable governmental taking has occurred under the provisions of the Texas Constitution, such as: 1) whether the governmental entity has imposed a burden on private real property which creates a disproportionate diminution in economic value or renders the property wholly useless, 2) whether the governmental action against the owner's real property interest is for its own advantage, point=5.02p set=5.02p or 3) whether the governmental action constitutes an unreasonable and direct physical or legal restriction or interference with the owner's right to use and enjoy the 18 sec.1.44(b). In City of College Station v. Turtle Rock Corporation, 680 S.W.2d 802 (Texas 1984), the Texas Supreme Court held that there must be a reasonable connection between an exaction and the need for the property by the government. City of College Station v. Turtle Rock Corporation, 680 S.W.2d 802 (Texas The court recognized that in order to be a compensable taking, the ordinance must render the entire property "wholly useless" or otherwise cause "total destruction" of the entire tract's economic value. 680 S.W.2d 802 at 806. Furthermore, the landowner must show that the ordinance is unreasonable or arbitrary in that particular application. 680 S.W.2d 802 at 806. sec.1.5. REGULATORY TAKINGS ANALYSIS: NEW STATUTORY FORMULATION. sec.1.51. In addition to judicially-determined takings law, there is now a definition of "taking" that has been established by the State of Texas legislature. The Act, sec.2007.002(5) provides that a "taking" occurs when a governmental action covered by the Act is a producing cause of a 25% or more reduction in the value of private real property affected by the governmental action. Critically, the real property affected by the governmental action must be the real property which is the subject of the governmental action. sec.2.0. APPLICABILITY OF THE ACT. sec.2.1. GOVERNMENTAL ACTIONS COVERED. sec.2.11.(a) Section 2007.003(a) provides that the Act applies only to the following governmental actions: point=5.02p set=5.02p 20 (1) the adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure; (2) an action that imposes a physical invasion or requires a dedication or exaction of private real property; (3) an action by a municipality that has effect in the extraterritorial jurisdiction of the municipality,[ point=5.02p set=5.02p annexation, and that enacts or enforces an ordinance, rule, regulation, or plan that does not impose identical requirements or restrictions in the entire extraterritorial jurisdiction of the municipality; and (4) enforcement of a governmental action listed in Subdivisions (1)-(3), whether the enforcement of the governmental action is accomplished through the use of permitting, citations, orders, judicial or quasi-judicial proceedings, or other similar means. (b). The requirement to do a TIA only applies to sec.2007.003(a)(1) 22 sec.2.12. The following actions, furthermore, are exempted from coverage of the Act under sec.2007.003(b) (emphasis added): (a) an action by a municipality except as provided by subsection (a)(3); (b) a lawful forfeiture or seizure of contraband as defined by Article 59. 01, Code of Criminal Procedure; (c) a lawful seizure of property as evidence of a crime or violation of law; (d) an action, including an action of a political subdivision, that is reasonably taken to fulfill an obligation mandated by federal law or an action of a political subdivision that is reasonably taken to fulfill an obligation mandated by state law; (e) the discontinuance or modification of a program or regulation that provides a unilateral expectation that does not rise to the level of a recognized interest in private real property; (f) an action taken to prohibit or restrict a condition or use of private real property if the governmental entity proves that the condition or use constitutes a public or private nuisance as defined by background principles of nuisance and property law of this state; (g) an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat to life or property; (h) a formal exercise of the power of eminent domain; (i) an action taken under a state mandate to prevent waste of oil and gas, protect correlative rights of owners of interests in oil or gas, or prevent pollution related to oil and gas activities; (j) a rule or proclamation adopted for the purpose of regulating water safety, hunting, fishing, or control of nonindigenous or exotic aquatic resources; (k) an action taken by a political subdivision: (1) to regulate construction in an area designated under law as a floodplain; (2) to regulate on-site sewage facilities; (3) under the political subdivision's statutory authority to prevent waste or protect rights of owners of interest in groundwater; or (4) to prevent subsidence; (l) the appraisal of property for purposes of ad valorem taxation; (m) an action that: (1) is taken in response to a real and substantial threat to public health and safety ; (2) is designed to significantly advance the health and safety purpose; and (3) does not impose a greater burden than is necessary to achieve the health and safety purpose; or (n) an action or rulemaking undertaken by the Public Utility Commission of Texas to order or require the location or placement of telecommunications equipment owned by another party on the premises of a certificated local exchange company. sec.2.13. According to sec.2007.003(c) of the Act, sec.2007.021 ("Suit Against Political Subdivision") and sec.2007.022 ("Administrative Proceeding Against State Agency") (collectively, "Action To Determine Taking") do not apply to the enforcement or implementation of a statute, ordinance, order, rule, regulation, requirement, resolution, policy, guideline, or similar measure that was in effect September 1, 1995, 23>and that prevents the pollution of a reservoir or an aquifer designated as a sole source aquifer under the federal Safe Drinking Water Act (42 United States Code, sec.300h-3(e)). sec.2.14. Nor does the Act apply to a governmental action taken by a county unless the action is taken after September 1, 1997, or to the enforcement or implementation of Subchapter B, Chapter 61, Natural Resources Code, as it existed on September 1, 1995, or to the enforcement or implementation of any rule or similar measure that was adopted under that subchapter and was in existence on September 1, 1995. sec.2.15. In order to effectuate the will of the legislature and to ensure that the Act is not read either too broadly or too narrowly, each governmental entity covered by the Act should promulgate a set of procedures ("Governmental Entity- Specific TIA Procedures") specific to the governmental entity that defines which of its activities, programs, or policy, rule, or regulation promulgation activities trigger the need for a TIA. Such promulgation of the Governmental Entity-Specific TIA Procedures should be completed as soon as possible after the publication of these Guidelines. However, the promulgation of these TIA procedures must not delay conformance with the Act or these Guidelines. sec.2.16. In promulgating the Governmental Entity-Specific TIA Procedures, the governmental entity should establish (1) "Categorical Determination" categories that indicate that there are no private real property rights affected by certain types of proposed governmental actions, as well as (2) a quick, efficient, and effective mechanism or approach to making "No Private Real Property Impacts Determinations" ("NoPRPI Determinations") associated with the proposed governmental action. sec.2.17. Categorical Determinations that no private real property interests are affected by the proposed governmental action would obviate the need for any further compliance with the Act. Without limitations the following are examples of the types of activities that might fall into such a Categorical Determination category: (i) student policies established by state institutions of higher education and (ii) professional qualification requirements for licensed or permitted professionals. sec.2.18. NoPRPI Determinations would also obviate the need for any further compliance with the Act once it is determined that there are no private real property interests impacted by a specific governmental action. In such a case, there would be no established Categorical Determination category in which the proposed governmental action fits, but after consideration and preliminary analysis of a specific proposed governmental action, the governmental entity is satisfied that there would be no impacts on private real property interests. sec.2.19. Until and unless a covered governmental entity develops Governmental Entity-Specific TIA Procedures, it will have to determine on an ad hoc basis whether any private real property interests are impacted (including to what extent) by its proposed actions. Furthermore, because the TIA necessarily depends on the type of governmental action being proposed and the specific nature of the impacts on specific private real property, the governmental entity promulgating a TIA has discretion (within the parameters of the Act, sec.2007.043(b)) to determine the precise extent and form of the assessment, on a case-by-case basis. sec.3.0. GUIDE TO PROMULGATING TIAS. sec.3.1. Requirements for Promulgating TIAs. sec.3.11. The Act, sec.2007.043(b) requires that the TIA: (a) describe the specific purpose of the proposed action and identify: (1) whether and how the proposed action substantially advances its stated purpose; and (2) the burdens imposed on private real property and the benefits to society resulting from the proposed use of private real property; (b) determine whether engaging in the proposed governmental action will constitute a taking; and (c) describe reasonable alternative actions that could accomplish the specified purpose and compare, evaluate, and explain: (1) how an alternative action would further the specified purpose; and (2) whether an alternative action would constitute a taking. (d) A takings impact assessment prepared under this section is public information. sec.3.2. Guide for Evaluating Proposed Governmental Actions. sec.3.21. Governmental entities covered by the Act should use the following guide in reviewing the potential impact of a proposed governmental action covered by the Act. While this guide may provide a framework for evaluating the impact on private real property a proposed governmental action may have generally, "takings" questions normally arise in the context of specific affected real property. This guide for evaluating governmental actions covered by the Act is another tool that a governmental entity should aggressively use to safeguard private real property owners. sec.3.22(a). Question 1: Is the Governmental Entity undertaking the proposed action a Governmental Entity covered by the Act, 23>i.e. , is it a "Covered Governmental Entity"? 23>See the Act, sec.2007.002(1). (1) If the answer to Question 1 is "No": No further compliance with the Act is necessary. (2) If the answer to Question 1 is "Yes": Go to Question 2. sec.3.22(b). Question 2. Is the proposed action to be undertaken by the Covered Governmental Entity an action covered by the Act, 23>i.e., a "Covered Governmental Action"? 23>See sec.2 of these Guidelines; and Governmental Entity-Specific TIA Procedures for "Categorical Determinations" as developed by the respective Covered Governmental Entities. (1) If the answer to Question 2 is "No": No further compliance with the Act is necessary. (2) If the answer to Question 2 is "Yes": Go to Question 3. sec.3.22(c). Question 3. Does the Covered Governmental Action result in a burden on "Private Real Property" as that term is defined in the Act? (1) If the answer to Question 3 is "No": A "No Private Real Property Impact" or NoPRPI Determination should be made. No further compliance with the Act is necessary if a NoPRPI Determinations is made. Logically, the initial critical issue regarding any proposed governmental action is whether there is any burden on private real property. If a governmental entity has not resolved this issue by reference to its preexisting list of Categorical Determinations, it can do so by quickly and concisely making a NoPRPI Determinations. (2) If the answer to Question 3 is "Yes": A TIA is required and the governmental entity must undertake evaluation of the proposed governmental action on private real property rights. sec.3.3 Elements of the TIA. sec.3.31. As set forth in sec.3.11 supra, the Act sets forth explicit elements that must be evaluated by the governmental entity proposing to undertake a governmental action covered by the Act. sec.3.31(a). Question 4. What is the Specific Purpose of the Proposed Covered Governmental Action? The TIA must clearly show how the proposed governmental action furthers its stated purpose. Thus, it is important that a governmental entity clearly state the purpose of its proposed action in the first place, and whether and how the proposed action substantially advances its stated purpose. sec.3.31(b). Question 5. How Does the Proposed Covered Governmental Action Burden Private Real Property? See discussion of relevant issues under sec.3.31(d), infra. sec.3.31(c). Question 6. How Does the Proposed Covered Governmental Action Benefit Society? sec.3.31(d). Question 7. Does the Proposed Covered Governmental Action result in a "taking"? Whether a Proposed Covered Governmental Action "burdens," in the first analysis, and ultimately results in a "taking" must be measured against all three prongs of the "takings" analysis outlined in sec.sec.1.2-1.5 of these Guidelines. The Covered Governmental Entity proposing to engage in a Covered Governmental Action should consider the following subquestions: (1). Does the Proposed Covered Governmental Action Result Indirectly or Directly in a Permanent or Temporary Physical Occupation of Private Real Property? Regulation or action resulting in a permanent or temporary physical occupation of all or a portion of private real property will generally constitute a "taking." For example, a regulation that required landlords to allow the installation of cable television boxes in their apartments was found to constitute a "taking." See Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419 (1982). (2). Does the Proposed Covered Governmental Action Require a Property Owner to Dedicate a Portion of Private Real Property or to Grant an Easement? Carefully review all governmental actions requiring the dedication of property or grant of an easement. The dedication of real property must be reasonably and specifically designed to prevent or compensate for adverse impacts of the proposed development. Likewise, the magnitude of the burden placed on the proposed development should be reasonably related to the adverse impacts created by the development. A court will also consider whether the action in question substantially advances a legitimate state interest. For example, the United States Supreme Court determined in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), that compelling an owner of waterfront property to grant a public easement across his property that does not substantially advance the public's interest in beach access, constitutes a "taking." Likewise, the United States Supreme Court held that compelling a property owner to leave a public green way, as opposed to a private one, did not substantially advance protection of a floodplain, and was a "taking." Dolan v. City of Tigard, 114 S.Ct. 2309 (1994). (3). Does the Proposed Covered Governmental Action Deprive the Owner of all Economically Viable uses of the Property? If a governmental action prohibits or somehow denies all economically viable or beneficial uses of the land, it will likely constitute a "taking." In this situation, however, the governmental entity should consider whether it can demonstrate that the proposed uses are prohibited by the laws of nuisance or other preexisting limitations on the use of the property. See Lucas v. South Carolina Coastal Coun., 112 S.Ct. 2886 (1992). It may be important to analyze the action's impact on the property as a whole, and not just the impact on a portion of the property. It is also important to assess whether there is any profitable use of the remaining property available. See Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994). The remaining use does not necessarily have to be the owner's planned use, a prior use, or the highest and best use of the property. One factor in this assessment is the degree to which the governmental action interferes with a property owner's reasonable investment-backed development expectations. Carefully review governmental actions requiring that all of a particular parcel of land be left substantially in its natural state. A prohibition of all economically viable uses of the property is vulnerable to a "takings" challenge. In some situations, however, there may be pre-existing limitations on the use of property that could insulate the government from takings liability. (4). Does the Proposed Covered Governmental Action have a Significant Impact on the Landowner's Economic Interest? Carefully review governmental actions that have a significant impact on the owner's economic interest. Courts will often compare the value of property before and after the impact of the challenged action. Although a reduction in property value alone may not be a "taking," a severe reduction in property value often indicates a reduction or elimination of reasonably profitable uses. Another economic factor courts will consider is the degree to which the challenged action impacts any development rights of the owner. (5). Does the Covered Governmental Action Decrease the Market Value of the Affected Private Real Property by 25% or More? Is the Affected Private Real Property the subject of the Covered Governmental Action? See the Act, sec.2007.002(5)(B). (6). Does the Proposed Covered Governmental Action Deny a Fundamental Attribute of Ownership? Governmental actions that deny the landowner a fundamental attribute of ownership-including the right to possess, exclude others and dispose of all or a portion of the property-are potential takings. The United States Supreme Court recently held that requiring a public easement for recreational purposes where the harm to be prevented was to the flood plain was a "taking." In finding this to be a "taking," the Court stated: The city never demonstrated why a public green way, as opposed to a private one, was required in the interest of flood control. The difference to the petitioner, of course, is the loss of her ability to exclude others. . . [T] his right to exclude others is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Dolan v. City of Tigard, 114 S.Ct. 2309 (1994). The United States Supreme Court has also held that barring the inheritance (an essential attribute of ownership) of certain interests in land held by individual members of an Indian tribe constituted a "taking." Hodel v. Irving, 481 U.S. 704 (1987). (7). Does the Governmental Action Serve the Same Purpose that Would be Served by Directly Prohibiting the Use or Action; and Does the Condition Imposed Substantially Advance that Purpose? A governmental action may go too far and may result in a takings claim when it does not substantially advance a legitimate governmental purpose. Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 114 S.Ct. 2309 (1994). In Nollan, the United States Supreme Court held that it was an unconstitutional "taking" to condition the issuance of a permit to land owners on the grant of an easement to the public to use their beach. The Court found that since there was no indication that the Nollans' house plans interfered in any way with the public's ability to walk up and down the beach, there was no "nexus" between any public interest that might be harmed by the construction of the house, and the permit condition. Lacking this connection, the required easement was just as unconstitutional as it would be if imposed outside the permit context. Likewise, regulatory actions that closely resemble, or have the effects of a physical invasion or occupation of real property, are more likely to be found to be takings. The greater the deprivation of use, the greater the likelihood that a "taking" will be found. sec.3.31(e). Question 8. What are the Alternatives to the Proposed Covered Governmental Action? Lastly, the governmental entity must describe reasonable alternative actions to the proposed governmental action that could accomplish the specified purpose and compare and evaluate the alternatives. The governmental agency must also evaluate the "takings" implication of each reasonable alternative to the proposed action pursuant to the applicable provisions of these Guidelines. ENDNOTES Private real property is defined in the Act, sec.2007.002(4) to mean an interest in property recognized by 23>common law: "Private real property" means an interest in real property recognized by common law, including a groundwater or surface water right of any kind, that is not owned by the federal government, this state, or a political subdivision of this state. Furthermore, the Act may reflect a developing, broader appreciation of the importance of private property rights. See Dolan v. City of Tigard, 114 S.Ct. 2309 (1994): We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances. The Act, sec.2007.002 (1) defines "governmental entity" as: (A) a board, commission, council, department, or other agency in the executive branch of state government that is created by constitution or statute, including an institution of higher education as defined by Education Code, sec.61.003; or (B) a political subdivision of this state. The Act, 2007.043(a) provides: A governmental entity shall prepare a written takings impact assessment of a proposed governmental action described in sec.2007.003(a)(1)-(3) that complies with the evaluation guidelines developed by the attorney general under sec.2007.041 before the governmental entity provides the public notice required under sec.2007.042. Section 2007.042 provides: (a) A political subdivision that proposes to engage in a governmental action described in sec.2007.003(a)(1)-(3) that may result in a taking shall provide at least 30 days' notice of its intent to engage in the proposed action by providing a reasonably specific description of the proposed action in a notice published in a newspaper of general circulation published in the county in which affected private real property is located. If a newspaper of general circulation is not published in that county, the political subdivision shall publish a notice in a newspaper of general circulation located in a county adjacent to the county in which affected private real property is located. The political subdivision shall, at a minimum, include in the notice a reasonably specific summary of the takings impact assessment that was prepared as required by this subchapter and the name of the official of the political subdivision from whom a copy of the full assessment may be obtained. (b) A state agency that proposes to engage in a governmental action described in sec.2007.003(a)(1) or (2) that may result in a taking shall: (1) provide notice in the manner prescribed by sec.2001.023; and (2) file with the secretary of state for publication in the Texas Register in the manner prescribed by Chapter 2002 a reasonably specific summary of the takings impact assessment that was prepared by the agency as required by this subchapter. The Act, sec.2007.044 provides: (a) A governmental action requiring a takings impact assessment is void if an assessment is not prepared. A private real property owner affected by a governmental action taken without the preparation of a takings impact assessment as required by this subchapter may bring suit for a declaration of the invalidity of the governmental action. (b) A suit under this section must be filed in a district court in the county in which the private real property owner's affected property is located. If the affected property is located in more than one county, the private real property owner may file suit in any county in which the affected property is located. (c) The court shall award a private real property owner who prevails in a suit under this section reasonable and necessary attorney's fees and court costs. [Office of the Attorney General endnote.] A "producing cause" is an "efficient, exciting, or contributing cause, which in the natural sequence, produced injuries of damages complained of, if any." Union Pump Company v. Allbriton, 898 S.W.2d 773, 775 (Texas 1995) (citing Haynes and Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Texas 1995)). An element of "producing cause" is causation in fact. Id. Causation-in-fact requires that the defendant's conduct be a substantial factor in bringing about the plaintiff's injuries, and that the injuries would not have occurred without defendant's conduct. Id. (citations omitted) ; C. J. Doe v. Boys Club of Greater Dallas, 907 S.W.2d 472, 481 (Texas 1995). A "producing cause" need not be foreseeable. The most easily recognized type of "taking" occurs when government physically occupies private property. Clearly, when the government seeks to use private property for a public building, a highway, a utility easement, or some other public purpose, it must compensate the property owner. Physical invasions of property, as distinguished from physical occupancies, may also give rise to a "taking" where the invasions are of a recurring or substantial nature. Examples of physical invasions include, among others, flooding and water related intrusions and overflight or aviation easement intrusions. "The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it wil be recognized as a taking." Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 415 (1922). v. South Carolina Coastal Council, 112 S.Ct. 2886, 2898, n.12 (1992). See exemptions (6), (7), and (13) of sec.2007.003(b) of the Act (set forth infra in sec.2.2 of these Guidelines). v. City of Tiburon, 447 U. S. 255, 260 (1980). Accord Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886, 2894 (1992); Dolan v. City of Tigard, 114 S. Ct. 2309, 2316 (1994). v. City of Tigard, 114 S. Ct. 2309, 2317 (1994) . id., at 2317. id. , at 2318. 968 F.2d 1131 (11th Cir.), vacated, 978 F.2d 1212 (11th Cir.), rev'd., 30 F.3d 1412 (1992). Lucas, 112 S.Ct. at 2894, n.7. of Austin v. Teague, 570 S.W2d 389, 393 (Texas 1978). The Texas Supreme Court has held that in order for there to be an inverse condemnation there must be a "direct restriction" on the landowner's use of his property. As used, "direct restriction" is the "actual physical or legal restriction on the property's use such as blocking of access or denial of a permit for development." Westgate Ltd. v. State,, 843 S.W.2d 448 (1992). Since the court found that the condemnor's unreasonable delay of condemnation proceedings did not rise to the level of a "direct restriction" on the landowner's use of his property, the landowner therefore could not recover damages in a suit for inverse condemnation. 843 S.W.2d at 452. The court supported its findings with the decisions of two Texas appellate courts. A landowner may not recover in a suit for inverse condemnation even if there is the construction of improvements which would have the ultimate effect of increasing the property's chances of flooding and thus reducing the property's value. 843 S.W.2d at 452 (citing, Allen v. City of Texas City, 775 S.W.2d 863, 865 (Tex. App.-Houston [1st. Dist.] 1989, writ denied); Hubler v. City of Corpus Christi, 564 S.W.2d 816 (Tex. Civ. App. -Corpus Christi 1978, writ ref'd n.r.e.). Moreover, the Westgate court reserved the question of whether a cause of action might exist where there is bad faith on the part of the condemnor. 843 S.W.2d at 454. The Turtle Rock holding was cited by the United States Supreme Court in Nollan v. California Coastal Comm'n., 107 S. Ct. 3141, 3150, and is consistent with the holding of that opinion. There are limitations to coverage of the Act included in the definition of "taking" in sec.2007.002(5)(B): a. private real property must be affected; b. the private real property must be the subject of the governmental action; and c. the governmental action must restrict or limit the owner's right to the property that would otherwise exist in the absence of the governmental action. [Office of the Attorney General endnote.] "Extraterritorial jurisdiction" means the unincorporated area, not part of any other city, that is contiguous to the corporate limits of a city. 52 Tex. Jur. 3d Municipalities sec.85 (1989). The extent of an extraterritorial jurisdiction depends on the population of the city. See id.; see also Texas Local Government Code, sec.42.021. The Act, sec.2007. 041(a). Governmental entities are reminded that sec.2007.003 provides that the Act applies to the following governmental actions: (1) the adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure. Issued in Austin, Texas, on January 4, 1996. TRD-9600077 Suzanne Marshall Special Assistant Attorney General Office of the Attorney General Filed: January 4, 1996 State Auditor's Office Notice of Contract Award The State Auditor's Office, on behalf of the Legislative Audit Committee, has contracted with Bear Stearns Fiduciary Services, Inc., 805 15th Street NW, Suite 1120, Washington, D.C. 20005, to perform a comprehensive investment performance review of the Teacher Retirement System of Texas. The consultant proposal request was published in the September 12, 1995, issue of the Texas Register (20 TexReg 7219). This review is intended to provide an independent and comprehensive evaluation of all aspects of the Systems investment functions. The contract was executed effective January 2, 1996, in an amount not to exceed $255,000 and will terminate July 1, 1996. A final report is due no later than July 1, 1996. Issued in Austin, Texas, on January 8, 1996. TRD-9600180 Lawrence F. Alwin, CPA State Auditor State Auditor's Office Filed: January 8, 1996 Comptroller of Public Accounts Correction of Error The Comptroller of Public Accounts proposed new sec.3.1101, concerning due date for assessment report and payment. The rule appeared in the November 21, 1995, issue of the Texas Register (20 TexReg 9673). Subsection (a) contained a graphic figure as submitted. This graphic was incorrectly published in running text as a renumbered subsection (b) and remaining subsections were published as renumbered. The graphic was also published in the Graphics Section. The rule should have read as follows: 3.1101. Due Date for Assessment Report and Payment. (a) The annual assessment imposed by Texas Civil Statutes, Article 1446c, sec.3.606, is due and payable in four payments. The quarterly assessment report and payment for each of the fiscal years in which the annual assessment is imposed is due and payable as follows: Figure: 34 TAC 3.1101(a) (b) The due date for the report due October 31, 1995, is extended to January 31, 1996. The initial report will cover the period of September 1, 1995-December 31, 1995. Office of Consumer Credit Commissioner Notice of Rate Ceilings The Consumer Credit Commissioner of Texas has ascertained the following rate ceilings by use of the formulas and methods described in Title 79, Texas Civil Statutes, Article 1.04, as amended (Texas Civil Statutes, Article 5069-1. 04). [graphic] Issued in Austin, Texas, on January 3, 1996. TRD-9600089 Leslie L. Pettijohn Commissioner Office of Consumer Credit Commissioner Filed: January 4, 1996 Texas Education Agency Correction of Error The Texas Education Agency submitted an Open Meeting Notice, the notice appeared in the December 22, 1995, issue of the Texas Register (20 TexReg 11044). On line ten of the agenda for the Board of Directors of the Texas Permanent School Fund Management Company, Inc., the following phrase should be deleted: "Actions to be considered: Approval of pending recommendations and approval of the State Board of Education." The Texas Education Agency submitted an Open Meeting Notice, the notice appeared in the December 22, 1995, issue of the Texas Register (20 TexReg 11045). On line 31 of the agenda for the State Board of Education, the phrase "19 TAC Chapter 95" should read "19 TAC Chapter 65." Request for Applications Concerning Projects for Educational Technology- Demonstration Programs, 1995-1996 Filing Authority. The availability of grant funds under Request for Applications (RFA) #701-96-002 is authorized by the Texas Education Code, sec.32.035. Eligible Applicants. The Texas Education Agency (TEA) is requesting applications from school districts or cooperatives of school districts in Texas. Districts are encouraged to apply with participation by, and collaboration among, school campuses, school districts, regional education service centers (ESCs), the private sector, state and federal agencies, nonprofit organizations, and/or institutions of higher education. A public school district must be the applicant and the fiscal agent. Description. The objectives of the demonstration programs, as stated in the Texas Education Code, sec.32.035, are to: investigate the uses, effectiveness, and feasibility of technologies for education; and provide models for effective education using technology. In this RFA, applicants may apply for either a technology planning grant or an implementation grant. School districts may apply for both options using separate applications. In all applications, districts shall describe how the proposed project will align with their overall goals and/or district improvement plans. The planning option for the RFA is designed to provide districts/campuses with resources to conduct proper and efficient planning for the innovative and creative uses of technology. The implementation option has four categories that have been designated so demonstration programs may have a variety of focuses. These categories are: staff development; integration of technology into the curriculum; library media services; and other. Implementation applications may address one or more of these categories. Districts should design or focus on approaches and technologies that meet the needs of their students and of their communities. Dates of Project. The demonstration programs will be implemented during the fiscal years (FY) 1996 and 1997. Applicants should plan for a starting date of no earlier than May 1, 1996, and an ending date of no later than August 31, 1997. Project Amount. Approximately $1.5 million is available for grants. Awards will be based on district needs, project potential, and model design for projects in other similar environments. It is anticipated that the technology planning grants will not exceed $25,000 per grant and that the implementation grants will not exceed $250,000 per grant. Applications for demonstration programs are competitive. The technology planning and implementation grants will be evaluated independently. The TEA intends to award multiple grants in these two areas. Funding is contingent on approval by the commissioner of education. Selection Criteria. Each application will be reviewed to determine the capability of the applicant to implement its proposed program. Applicants that have previously received grants from TEA to conduct special projects must have a positive record in successfully managing the programs to be considered for funding. All required components of this RFA must be addressed. The TEA is not obligated to approve an application, provide funds, or endorse any application submitted in response to this RFA. This RFA does not commit TEA to pay any costs before an application is approved. The issuance of this RFA does not obligate TEA to award a grant or pay any costs incurred in preparing a response. Requesting the Application. A complete copy of RFA #701-96-002 may be obtained by writing the: Document Control Center, Room 6-108, Texas Education Agency, William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701- 1494, or by calling (512) 463-9304. Please refer to the RFA number in your request. Further Information. For clarifying information about the RFA, contact Karen Kahan, Instructional Technology Division, Texas Education Agency, (512) 463- 9401. Deadline for Receipt of Applications. Applications must be received in the Document Control Center of the Texas Education Agency by 5:00 p.m. (Central Standard Time), Friday, March 15, 1996, to be considered. Issued in Austin, Texas, on January 8, 1995. TRD-9600176 Criss Cloudt Associate Commissioner for Policy Planning and Research Texas Education Agency Filed: January 8, 1996 Texas Ethics Commission List of Late Filers Listed below are the names of filers from the Texas Ethics Commission who did not file reports, filed late reports, or failed to pay penalty fines for late reports in reference to the listed filing deadline. If you have any questions, you may contact Kristin Newkirk at (512) 463-5800 or (800) 325-8506. Deadline: Candidate/Officeholder Semi-Annual Report, due July 17, 1995 Honorable Donald Fogo, P.O. Box 36346, Houston, Texas 77236 Honorable Stella M. Morrison, 4231 Lakeshore Drive, Port Arthur, Texas 77642 Deadline: Monthly PAC Report, due September 5, 1995 Octavino Rodriguez, Webb County Deputy Sheriffs PAC, P.O. Box 2903, Laredo, Texas 78044 Rhonda Piatkowski, 3DI, Inc. PAC, 1900 West Loop South, Suite 600, Houston, Texas 77027 Honorable G. David Mena, El Paso County Democratic Party (CEC), 400 East Overland, El Paso, Texas 79901 Deadline: Lobby Activities Report, due September 10, 1995 Tol S. Higginbotham IV, P.O. Box 13052, Austin, Texas 78711 Mario A. Martinez, 1300 Guadalupe, Suite 210, Austin, Texas 78701 Deadline: General Purpose PAC Semi-Annual Report of Contributions and Expenditures, due January 17, 1995 and July 17, 1995 Jennifer "Jenny" Navarro, Texas Abortion Rights Action League PAC, 905 D Oltorf, Austin, Texas 78704 Deadline: Monthly PAC Report, due August 7, 1995 Octavino Rodriguez, Webb County Deputy Sheriffs PAC, P.O. Box 2903, Laredo, Texas 78044 Rhonda Piatkowski, 3DI, Inc. PAC, 1900 West Loop South, Suite 600, Houston, Texas 77027 Honorable G. David Mena, El Paso County Democratic Party (CEC), 400 East Overland, El Paso, Texas 79901 Issued in Austin, Texas, on January 5, 1996 TRD-9600162 Tom Harrison Executive Director Texas Ethics Commission Filed: January 5, 1996 Health and Human Services Commission Public Notice The Health and Human Services Commission State Medical Office has received approval from the Health Care Financing Administration to amend the Title XIX Medical Assistance Plan by Transmittal Number 95-30, Amendment Number 495. The amendment expands the provider base for certain rehabilitative services for the mentally ill by establishing qualifications for sub-contractors. The amendment is effective July 1, 1995. If additional information is needed, please contact Ron Gernsbacher, Texas Department of Mental Health-Mental Retardation, at (512) 323-3866. Issued in Austin, Texas on January 2, 1996. TRD-9600053 Michael D. McKinney, M.D. Commissioner Health and Human Services Commission Filed: January 4, 1996 Texas Department of Human Services Correction of Error The Texas Department of Human Services (DHS) adopted the repeal of sec.sec.76. 101-76.108 and new sec.sec.76.102-76.106. The rules appeared in the December 19, 1995, issue of the Texas Register (20 TexReg 10905). DHS submitted a preamble for adoption of new sections that contained an error as published. On page 10905, the preamble should read: "The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.76.101-76.108, and new sec.sec.76.102-76. 106 without changes. DHS adopts new sec.76.101 with a change to the proposed text as published in the October 31, 1995, issue of the Texas Register (20 TexReg 8995)." Section 76.101 should be printed as a result of the correction of the section number. sec.76.101. Introduction. (a) Purpose. The purpose of this chapter is to implement the provisions of the Health and Safety Code, Chapter 250, concerning criminal history checks of certain employees and applicants for employment in certain facilities serving the elderly or persons with disabilities. (b) Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise: (1) Board-The Board of the Texas Department of Human Services. (2) Department-The Texas Department of Human Services (DHS). (3) Direct contact with a consumer-Any contact with a resident or client in a facility covered by this chapter. (4) Emergency requiring immediate employment-The urgent need to temporarily hire an individual pending the results of a criminal history check. An emergency may occur as a result of a survey deficiency on staffing and/or the potential of the facility to fall below their desired staffing. (5) Facilities-The following facilities and applicants, included in the requirement of criminal history checks: (A) Nursing homes, custodial care homes, or other institutions licensed under the Health and Safety Code, Chapter 242. (B) Personal care facilities licensed under the Health and Safety Code, Chapter 247. (C) Adult day care facilities or adult day health care facilities licensed under Human Resources Code, Chapter 103. (D) Facilities for persons with mental retardation licensed or certified by DHS. (E) Intermediate care facilities for persons with mental retardation certified for participation in the Medicaid program under the Social Security Act, Title XIX. (F) Adult foster care provides contracting with DHS. (6) Private agency-An organization engaged in the business of obtaining criminal history checks on behalf of a facility. The Texas Department of Human Services (DHS) proposed amendments to sec.sec.19. 2308, 19.2312, 19.2314, and 19.2322. The rules appeared in the December 22, 1995, issue of the Texas Register (20 TexReg 10986). DHS submitted an amendment that contained an error as published. On page 10987, sec.19.2314(b) should have only the (b) in boldface and should read: "(b) Upon receipt of an audit exception, the facility must provide additional documentation, reach a final agreement, make restitution within 60 days, or request a hearing within 15 days. Requests for an informal hearing are to be directed to DHS, Provider Enrollment. Requests for a formal hearing are to be directed to DHS's Hearings Department, P.O. Box 149030 (W-613), Austin, Texas 78714-9030." Texas Department of Insurance Insurers Services The following applications have been filed with the Texas Department of Insurance and are under consideration. Application for a name change in Texas for Financial Security Assurance of Oklahoma, Inc., a foreign fire and casualty company. The proposed new name is MGIC Assurance Corporation. The home office is in Oklahoma City, Oklahoma. Application for a name reservation in Texas for ECCA Managed Vision Care, Inc., a domestic health maintenance organization. The home office is in San Antonio, Texas. Any objections must be filed within 20 days after this notice was filed with the Texas Department of Insurance, addressed to the attention of Cindy Thurman, 333 Guadalupe Street, M/C 305-2C, Austin, Texas 78701. Issued in Austin, Texas, on January 5, 1996. TRD-9600147 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Filed: January 5, 1996 The following applications have been filed with the Texas Department of Insurance and are under consideration. Application for admission in Texas for All Nation Insurance Company, a foreign fire and casualty company. The home office is in St. Paul, Minnesota. Application for a name change, and conversion to a fire and casualty company in Texas for Windsor Lloyds, a domestic Lloyds company. The proposed new name is Young America Insurance Company. The home office is in Dallas, Texas. Application for a name reservation in Texas for Block Vision of Texas, Inc., a domestic health maintenance organization. The home office is in Austin, Texas. Application for a name reservation in Texas for Healthsource Texas, Inc., a domestic health maintenance organization. The home office is in Austin, Texas. Any objections must be filed within 20 days after this notice was filed with the Texas Department of Insurance, addressed to the attention of Cindy Thurman, 333 Guadalupe Street, M/C 305-2C, Austin, Texas 78701. Issued in Austin, Texas, on January 5, 1996. TRD-9600148 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Filed: January 5, 1996 Notice of Application by FHP of New Mexico, Inc. doing business as FHP of El Paso, Albuquerque, New Mexico for Issuance of a Certificate of Authority to Establish and Operate an HMO in the State of Texas Notice is given to the public of the application of FHP of New Mexico, Inc. , doing business as FHP of El Paso, Albuquerque, New Mexico, for the issuance of a certificate of authority to establish and operate a health maintenance organization (HMO) offering basic health care services in the State of Texas in compliance with the Texas HMO Act and rules and regulations for HMOs. The application is subject to public inspection at the offices of the Texas Department of Insurance, HMO Unit, 333 Guadalupe, Hobby Tower I, Sixth Floor, Austin, Texas. Upon consideration of the application, if the Commissioner is satisfied that all requirements of law have been met, the Commissioner or his designee may take action to issue a certificate of authority to FHP OF NEW MEXICO, doing business as FHP OF EL PASO, Albuquerque, New Mexico, without a public hearing. Issued in Austin, Texas, on January 5, 1996. TRD-9600145 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Filed: January 5, 1996 Third Party Administrator Application The following third party administrator (TPA) application has been filed with the Texas Department of Insurance and is under consideration. Application for incorporation in Texas of Inovahealth TPA, Inc., a domestic third party administrator. The home office is Dallas, Texas. Any objections must be filed within 20 days after this notice was filed with the Secretary of State, addressed to the attention of Charles M. Waits, MC 107- 5A, 333 Guadalupe, Austin, Texas 78714-9104. Issued in Austin, Texas, on January 5, 1996. TRD-9600146 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Filed: January 5, 1996 Texas Low-Level Radioactive Waste Disposal Authority Correction of Error The Texas Low-Level Radioactive Waste Disposal Authority proposed new sec.449.71, concerning belowground and aboveground disposal of low-level radioactive waste by the authority. The rule appeared in the January 2, 1996, issue of the Texas Register (21 TexReg 22). In sec.449.71(b)(1), the word "and" should be in the definition between "... surface which..." to read as follows: "(1) aboveground disposal" means the emplacement of low-level radioactive waste in engineered containment structures which are located above natural grade of the land surface and which are not covered with earthen material; and" The Texas Low-Level Radioactive Waste Disposal Authority proposed new sec.sec.449.81-449.87, concerning the use of historically underutilized businesses (HUBs) by the authority. The rules appeared in the Texas Register (21 Texreg 23). In sec.449.82(B)(i), the term "Black Americans" should be added at the beginning of the definition. To read as follows: "(i) Black Americans-which includes persons having origins in any of the Black racial groups of Africa;" In sec.449.84(a) (last line of the paragraph), the word "non" should be inserted between "...a HUB..." To read as follows: "(a)...if a HUB contractor performs less than 25% of the cumulative total contract with its employees, then for the next quarter, the contractor shall report its subcontractors as required by a non-HUB contractor." Texas Natural Resource Conservation Commission Notice of Application for Amendment to Certificate of Adjudication Requiring Notice to Interjacent Appropriators Notice of application for amendment to Certificate of Adjudication requiring notice to interjacent appropriators issued January 5, 1996. JAY D. DICKENS; Application Number 14-1264A to amend Certificate of Adjudication Number 14-1264, pursuant to Texas Water Code, sec.11.122 and Title 30 Texas Administrative Code sec.295.158. On Dove Creek, tributary of the Concho River, tributary of the Colorado River, Colorado River Basin in Tom Green County, Texas. Certificate of Adjudication Number 14-1264 was issued March 12, 1980 to B. A. Duncan. Commission records show ownership of part of the Certificate was transferred to Jay Dickens on July 17, 1995. Jay Dickens' portion of the certificate is as follows: diversion and use of 59.3 acre-feet of water for irrigation of 29.65 acres of land, at a diversion rate of 2.67 cfs (1,200 gpm). Applicant seeks to amend his portion of this Certificate by: 1. Adding a diversion point approximately two miles upstream. 2. Irrigating an additional 150 acres of land in Tom Green County, Texas, located approximately 17 miles southwest of San Angelo. The combined maximum diversion rate of the original diversion point and the additional diversion point would remain the same as the originally authorized amount of 2.67 cfs (1,200 gpm) and the total diversions authorized would remain at 59.3 acre-feet of water per annum. The Executive Director will issue an amendment to the Certificate of Adjudication on or after February 2, 1996, unless a written hearing request is filed in the Chief Clerk's Office of the TNRCC on or before January 26, 1996. To request a hearing, you must submit the following: your name (or for a group or association, an official representative), mailing address, daytime phone number, and fax number, if any; the name of the applicant and the permit number; the statement "I/we request a public hearing"; a brief description of how you would be adversely affected by the granting of the application in a way not common to the general public; the location of your property relative to the applicant's operations; and your proposed adjustments to the application/amendment which would satisfy your concerns and cause you to withdraw your request for hearing. If a hearing request is filed, the Executive Director will not issue the amendment and will forward the application and hearing request to the TNRCC Commissioners for their consideration at a scheduled Commission meeting. If a hearing is held, it will be a legal proceeding similar to civil trials in state district court. If you wish to appeal a certificate of adjudication amendment issued by the Executive Director, you may do so by filing a written Motion for Reconsideration with the Chief Clerk of the Commission no later than 20 days after the date the Executive Director signs the amendment. Requests for a public hearing or questions concerning procedures should be submitted in writing to the Chief Clerk's Office, Park 35 TNRCC Complex, Building F, Room 4301, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711, (512) 239-3300. Issued in Austin, Texas, on January 5, 1996. TRD-9600134 Gloria A. Vasquez Chief Clerk Texas Natural Resource Conservation Commission Filed: January 5, 1996 Notice of Application for Waste Disposal Permits Notices of applications for waste disposal permits issued during the period of January 2-5, 1996 These applications are subject to a Commission resolution adopted August 18, 1993, which directs the Commission's Executive Director to act on behalf of the Commission and issue final approval of certain permit matters. The Executive Director will issue these permits unless one or more persons file written protests and/or a request for a hearing within 30 days after publication of this notice. If you wish to request a public hearing, you must submit your request in writing. You must state your name, mailing address, and daytime phone number; the permit number or other recognizable reference to this application; the statement "I/we request a public hearing"; a brief description of how you, or the persons you represent, would be adversely affected by the granting of the application; a description of the location of your property relative to the applicant's operations; and your proposed adjustment to the application/permit which would satisfy your concerns and cause you to withdraw your request for hearing. If one or more protests and/or requests for hearing are filed, the Executive Director will not issue the permit and will forward the application to the Office of Hearings Examiners where a hearing may be held. In the event a hearing is held, the Office of Hearings Examiners will submit a recommendation to the Commission for final decision. If no protests or requests for hearing are filed, the Executive Director will sign the permit 30 days after publication of this notice or thereafter. If you wish to appeal a permit issued by the Executive Director, you may do so by filing a written Motion for Reconsideration with the Chief Clerk of the Commission no later than 20 days after the date the Executive Director signs the permit. Information concerning any aspect of these applications may be obtained by contacting the Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711, (512) 239-3300. Listed are the name of the applicant and the city in which the facility is located, type of facility, location of the facility, permit number and type of application-new permit, amendment, or renewal. FORT BEND PROPERTIES, INC., the wastewater treatment facilities are at 1518 Spring Cypress Road, approximately 550 feet northwest of the intersection of FM Road 2920 and Bell Road, and approximately 700 feet west of the intersection of Interstate Highway 45 and FM Road 2920 in Harris County, Texas, renewal, 12812- 01. LAMAR CONSOLIDATED INDEOPENDENT SCHOOL DISTRICT, the wastewater treatment facilities are at 5111 FM Road 762, approximately 4.5 miles east-southeast of the City of Rosenberg in Fort Bend County, Texas, renewal, 13007-01. ACME BRICK COMPANY, the wastewater treatment facilities are approximately 3. 8 miles east of the intersection of FM Road 331 and State Highway 36 in Austin County, Texas, renewal, 13192-01. CITY OF LAREDO, the wastewater treatment facility and irrigation site are approximately nine miles north of the intersection of Interstate Highway 35 and FM Road 1472, approximately 3,000 feet east of Interstate Highway 35 and 1, 000 feet north of the entrance to the Uniroyal Proving Grounds in Webb County, Texas, renewal, 10681-05. Issued in Austin, Texas, on January 5, 1996. TRD-9600135 Gloria A. Vasquez Chief Clerk Texas Natural Resource Conservation Commission Filed: January 5, 1996 Notice of Opportunity to Comment on Permitting Actions-For the Week Ending January 5, 1996 The following applications will be signed by the Executive Director in accordance with 30 TAC sec.263.2, which directs the Commission's Executive Director to act on behalf of the Commission and issue final approval of certain uncontested permit matters. The Executive Director will issue the permits unless one or more persons file written protests and/or requests for hearing within ten days of the date notice concerning the application(s) is published in the Texas Register. If you wish to request a public hearing, you must submit your request in writing. You must state your name, mailing address, and daytime phone number; the permit number or other recognizable reference to this application; the statement "I/we request a public hearing"; a brief description of how you, or the persons you represent, would be adversely affected by the granting of the application; a description of the location of your property relative to the applicant's operations; and your proposed adjustment to the application/permit which would satisfy your concerns and cause you to withdraw your request for hearing. If one or more protests and/or requests for hearing are filed, the Executive Director will not issue the permit and will forward the application to the Office of Hearings Examiners where a hearing may be held. If no protests or requests for hearing are filed, the Executive Director will sign the permit ten days after publication of this notice or thereafter. If you wish to appeal a permit issued by the Executive Director, you may do so by filing a written Motion for Reconsideration with the Chief Clerk of the Commission no later than 20 days after the date the Executive Director signs the permit. Requests for a public hearing on this application should be submitted in writing to the Chief Clerk's Office (Mail Code 105), Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711, (512) 239-3300. Consideration of the application of Harold Ogden doing business as Lakeside Water Supply for a Water CCN in Tyler Conty, Texas (Application Number 30945-C, Guillermo Zevallos). Consideration of the application of Military Highway Water Supply Corporation to Amend Sewer Certificate of Convenience and Necessity Number 20571 in Cameron and Hidalgo Counties, Texas (Application Number 30954-C, Darrell Nichols). Consideration of the application of Melton R. Ballard doing business as Longacre Water System for a Water CCN in Hale County, Texas (Application Number 30981-C, Albert Holck). APPLICATION BY THE CITY OF BROWNFIELD, CITY OF CLARKSVILLE CITY, AND THE COUNTY OF HARTLEY TO REGULATE ON-SITE SEWAGE FACILITIES WITHIN THEIR JURISDICTION. APPLICATION NUMBER 23-520D BY TONYA DUMAS FOR AN AMENDMENT TO CERTIFICATE OF ADJUDICATION NUMBER 23-520, AS AMENDED PURSUANT TO TEXAS WATER CODE, sec.11. 122. Applicant seeks authorization to divert and use her 120 acre-feet of mining water per annum from any point on the Rio Grande in Hidalgo, Starr and Zapata counties, and to change the place of use to these three counties. Tonya Dumas owns 120 acre-feet of Class "B" priority mining water for use in Zapata and Webb counties (RENEE' TUGGLE). Application Number 08-2462D by the City of Dallas for a Texas Water Code, sec.11.122, Water Use Permit Amendment. Applicant seeks to amend Certificate Number 08-2462, as amended by adding irrigation use for 2,000 acre-feet of their authorized 78,700 acre-feet of municipal use water. East Fork Trinity River, tributary of the Trinity River, Trinity River Basin, Collin, Dallas, Kaufman and Rockwall Counties, Texas (Kellye Rila). Consideration of Proposed Order Approving the Application by First Colony Municipal Utility District Number 2 of Fort Bend County for Approval of a Fire Protection Plan. For Commission Action. Applicant requests approval of the fire protection plan and approval of contract providing fire protection services (TNRCC Internal Control Number 092095-D02, Robert Ferguson). Issued in Austin, Texas, on January 5, 1996. TRD-9600133 Gloria A. Vasquez Chief Clerk Texas Natural Resource Conservation Commission Filed: January 5, 1996 Texas Natural Resource Conservation Commission Notice of Public Hearing (Standard Exemption List) Notice is hereby given that pursuant to the requirements of the Texas Health and Safety Code, sec.382.017; Texas Government Code, Subchapter B, Chapter 2001; and 40 Code of Federal Regulations, sec.51.102 of the United States Environmental Protection Agency regulations concerning State Implementation Plans (SIP), the Texas Natural Resource Conservation Commission (TNRCC or commission) will conduct a public hearing to receive testimony concerning revisions to Chapter 116 and the SIP. The TNRCC proposes amendments to sec.116.12, concerning Nonattainment Review Definitions, and sec.116.211, concerning Standard Exemption List. The amendments to sec.116.12 and sec.116.211(a)(2) would reconcile the limitations on the use of standard exemptions. The proposed amendment to sec.116.211 also includes minor revisions to subsections (a) and (d) which clarify the existing rules and change the date of the Standard Exemption List to identify the date of the current revisions. The proposed changes to the Standard Exemption List, under subsection (f), add, clarify, and update 15 exemptions on the list. The following Standard Exemptions (SE) are proposed for amendment: SE 13, SE 71, SE 73, SE 74, SE 75, SE 89, SE 90, SE 93, SE 113, SE 115, SE 116, and SE 117. The proposal also adds new SE 72, SE 125, and SE 126. A public hearing on the proposal will be held February 15, 1996, at 10:00 a. m. in Room 254S of TNRCC Building E, located at 12100 North IH-35, Park 35 Technology Center, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion within the audience will not occur during the hearing; however, a TNRCC staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. Written comments not presented at the hearing may be submitted to the TNRCC Office of Policy and Regulatory Development in Austin through February 20, 1996. Material received by the TNRCC Office of Policy and Regulatory Development by 4:00 p.m. on that date will be considered by the commission prior to any final action on the proposal. Please mail comments to Lisa Martin, Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, and reference Rules Tracking Log #95157-116-AI. Please fax comments to (512) 239-4808. Copies of the proposal are available from the Air Policy and Regulations Division, located at 12100 North IH-35, Park 35 Technology Center, Building F, Austin, and at all TNRCC regional offices. For further information, contact Phil Harwell at (512) 239-1517 or Jim Dodds at (512) 239-1119. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. Issued in Austin, Texas, on December 20, 1995. TRD-9600047 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Filed: January 3, 1996 Public Utility Commission of Texas Correction of Error The Public Utility Commission of Texas adopted an amendment to sec.23.49, concerning telephone extended area service (EAS) and expanded local calling service (ELC). The rule appeared in December 19, 1995, Texas Register (20 TexReg 10887). An error was made in the publishing of Substantive Rule 23.49. Under subsection (c)(11), language was left in with brackets that should have been deleted. It should have read as follows: "(11) Petitions filed prior to April 15, 1995. Any petition that was filed with the Commission prior to April 15, 1995 will continue to be processed under the requirements of Senate Bill 632, (73rd Legislature, 1993) and the provisions of this rule that were in effect on April 15, 1995. The prior version of this rule is continued in effect for only this limited purpose." Notice of Application for Approval of a Special Amortization Notice is given to the public of filing with the Public Utility Commission of Texas an application on December 22, 1995, for approval of a special amortization pursuant to the Public Utility Regulatory Act of 1995 (PURA), Texas Revised Civil Statutes Annotated, Article 1446c-0, sec.2.151(a) and sec.3. 151(b) (Vernon Supplement 1995). The following is a summary of the nature of the application. Docket Title and Number. APPLICATION OF BIG BEND TELEPHONE COMPANY, INC. FOR APPROVAL OF A SPECIAL AMORTIZATION, Docket Number 15167, before the Public Utility Commission of Texas. The Application. Big Bend Telephone Company, Inc. requests approval to amortize a projected reserve deficiency in its aerial cable and aerial wire accounts over a two-year period. Persons who wish to intervene in the proceeding or comment upon action sought, should contact the Public Utility Commission of Texas, 7800 Shoal Creek Boulevard, Suite 400N, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Division at (512) 458-0256, or (512) 458-0221 for teletypewriter for the deaf on or before January 22, 1996. Issued in Austin, Texas, on January 8, 1996. TRD-9600184 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 8, 1996 Notice of Application in Compliance with Public Utility Regulatory Act of 1995, sec.3.311 Notice is given to the public of the filing with the Public Utility Commission of Texas, an application by Century Telephone of Lake Dallas, Inc. on December 12, 1995, in compliance with the Public Utility Regulatory Act of 1995, Texas Civil Statutes, Article 1446c-0, sec.3.311, Hunting Service. A summary of the application follows. Tariff Title and Number: Application of Century Telephone of Lake Dallas, Inc. for Approval of Hunting Service for Optional Extended Calling Service Pursuant to the Public Utility Regulatory Act of 1995, sec.3.311. Tariff Control Number 15127. The Application: Century Telephone of Lake Dallas, Inc. seeks approval to revise its General Exchange Tariff to comply with the Public Utility Regulatory Act of 1995, sec.3.311, Hunting Service to be handled in accordance with Public Utility Regulatory Act, sec.3.212, Changes by Local Exchange Companies; Hearings; Suspension of Proposed Changes. Century Telephone of Lake Dallas, Inc.'s application affects regulation only; charges and/or rates are not affected. Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Section at (512) 458-0223, or (512) 458-0221 for teletypewriter for the deaf. Issued in Austin, Texas, on January 5, 1996. TRD-9600124 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 5, 1996 Notices of Intent to File Pursuant to Public Utility Commission Substantive Rule 23.27 Notice is given to the public of the intent to file with the Public Utility Commission of Texas an application pursuant to Public Utility Commission Substantive Rule 23.27 for approval of customer-specific PLEXAR-Custom Service for Lubbock County in Lubbock, Texas. Tariff Title and Number. Application of Southwestern Bell Telephone Company for PLEXAR-Custom Service for Lubbock County in Lubbock, Texas. Pursuant to Public Utility Commission Substantive Rule 23.27. Tariff Control Number 15157. The Application. Southwestern Bell Telephone Company is requesting approval of a an optional feature addition to the existing PLEXAR-Custom service for Lubbock County. The geographic service market for this specific service is the Lubbock, Texas area. Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Division at (512) 458- 0256, or (512) 458-0221 for teletypewriter for the deaf. Issued in Austin, Texas, on January 4, 1996. TRD-9600054 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 4, 1996 Notice is given to the public of the intent to file with the Public Utility Commission of Texas an application pursuant to Public Utility Commission Substantive Rule 23.27 for approval of customer-specific PLEXAR-Custom Service for Texas Tech University in Lubbock, Texas. Tariff Title and Number. Application of Southwestern Bell Telephone Company for PLEXAR-Custom Service for Texas Tech University in Lubbock, Texas. Pursuant to Public Utility Commission Substantive Rule 23.27. Tariff Control Number 15191. The Application. Southwestern Bell Telephone Company is requesting approval of a an optional feature addition to the existing PLEXAR-Custom service for Texas Tech University. The geographic service market for this specific service is the Lubbock, Texas area. Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Division at (512) 458- 0256, or (512) 458-0221 for teletypewriter for the deaf. Issued in Austin, Texas, on January 4, 1996. TRD-9600055 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 4, 1996 Notice is given to the public of the intent to file with the Public Utility Commission of Texas an application pursuant to Public Utility Commission Substantive Rule 23.27 for approval of customer-specific PLEXAR-Custom Service for Big Spring Independent School District in Big Spring, Texas. Tariff Title and Number. Application of Southwestern Bell Telephone Company for PLEXAR-Custom Service for Big Spring Independent School District in Big Spring, Texas. Pursuant to Public Utility Commission Substantive Rule 23.27. Tariff Control Number 15192. The Application. Southwestern Bell Telephone Company is requesting approval of a an optional feature addition to the existing PLEXAR-Custom service for Big Spring Independent School District. The geographic service market for this specific service is the Big Spring, Texas area. Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Division at (512) 458- 0256, or (512) 458-0221 for teletypewriter for the deaf. Issued in Austin, Texas, on January 4, 1996. TRD-9600056 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 4, 1996 Notice is given to the public of the intent to file with the Public Utility Commission of Texas an application pursuant to Public Utility Commission Substantive Rule 23.27 for approval of customer-specific PLEXAR-Custom Service for Texas Tech RAHC in Lubbock, Texas. Tariff Title and Number. Application of Southwestern Bell Telephone Company for PLEXAR-Custom Service for Texas Tech RAHC in Lubbock, Texas. Pursuant to Public Utility Commission Substantive Rule 23.27. Tariff Control Number 15193. The Application. Southwestern Bell Telephone Company is requesting approval of a an optional feature addition to the existing PLEXAR-Custom service for Texas Tech RAHC. The geographic service market for this specific service is the Lubbock, Texas area. Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Division at (512) 458- 0256, or (512) 458-0221 for teletypewriter for the deaf. Issued in Austin, Texas, on January 4, 1996. TRD-9600057 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 4, 1996 Notice is given to the public of the intent to file with the Public Utility Commission of Texas an application pursuant to Public Utility Commission Substantive Rule 23.27 for approval of customer-specific PLEXAR-Custom Service for Galena Park Independent School District in Houston, Texas. Tariff Title and Number. Application of Southwestern Bell Telephone Company for PLEXAR-Custom Service for Galena Park Independent School District in Houston, Texas. Pursuant to Public Utility Commission Substantive Rule 23.27. Tariff Control Number 15194. The Application. Southwestern Bell Telephone Company is requesting approval of a an optional feature addition to the existing PLEXAR-Custom service for Galena Park Independent School District. The geographic service market for this specific service is the Houston, Texas area. Persons who wish to comment upon the action sought should contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call the Public Utility Commission Consumer Affairs Division at (512) 458- 0256, or (512) 458-0221 for teletypewriter for the deaf. Issued in Austin, Texas, on January 4, 1996. TRD-9600058 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Filed: January 4, 1996 San Antonio-Bexar County Metropolitan Planning Organization Change of Address The San Antonio-Bexar County Metropolitan Planning Organization announces their relocation. The following information is effective January 12, 1996: San Antonio-Bexar County Metropolitan Planning Organization South Texas Building 603 Navarro, Suite 904 San Antonio, Texas 78205 Phone: (210) 227-8651 Fax: (210) 227-9321 Issued in Austin, Texas on January 4, 1996. TRD-9600097 Charlotte A. Roszelle Office Manager/Grants Coordinator San Antonio-Bexar County Metropolitan Planning Organization Filed: January 4, 1996