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Texas Statutes (Last Updated: January 4, 2014) |
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NATURAL RESOURCES CODE |
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Title 2. PUBLIC DOMAIN |
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Subtitle D. DISPOSITION OF THE PUBLIC DOMAIN |
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Chapter 51. LAND, TIMBER, AND SURFACE RESOURCES |
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Subchapter G. EASEMENTS |
Sec. 51.3021. REMOVAL OF FACILITY OR STRUCTURE BY COMMISSIONER
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(a) The commissioner may remove and dispose of a facility or structure on land owned by the state if the commissioner finds the facility or structure to be:
(1) without the proper easement or lease from the state under Chapter 33 or 51 of this code; or
(2) an imminent and unreasonable threat to public health, safety, or welfare.
(b) Before the commissioner may remove a facility or structure under this section or impose a penalty under Section 51.302 of this code, the commissioner must give written notice to a person who is constructing, maintains, owns, or possesses the facility or structure. The notice must state:
(1) the specific facility or structure that is without proper easement or lease or that threatens public health, safety, or welfare;
(2) that the person who is constructing, maintains, owns, or possesses the facility or structure shall remove the facility or structure:
(A) not later than the 30th day after the date on which the notice is served, if the facility or structure is on state land without a proper lease or easement; or
(B) within a reasonable time specified by the commissioner if the facility or structure is an imminent and unreasonable threat to public health, safety, or welfare;
(3) that failure to remove the facility or structure may result in liability for a penalty under Section 51.302(b) of this code in an amount specified, removal by the commissioner and liability for the costs of removal, attachment of a lien to the adjacent littoral property to secure payment of the penalty and costs of removal, or any combination of such remedies; and
(4) that the person who is constructing, maintains, owns, or possesses the facility or structure may submit, not later than the 30th day after the date on which the notice is served, written request for a hearing.
(c) The notice required by Subsection (b) of this section must be given:
(1) by service in person or by registered or certified mail, return receipt requested; or
(2) if personal service cannot be obtained or the address of the person responsible is unknown, by posting a copy of the notice on the facility or structure and by publishing notice in a newspaper with general circulation in the county in which the facility or structure is located two times within 10 consecutive days.
(d) The commissioner by rule shall adopt procedures for a hearing under this section.
(e) The commissioner must grant a hearing if a hearing is requested. A person who does not timely request a hearing waives all rights to judicial review of the commissioner's findings or orders and shall immediately remove the facility or structure and pay any penalty assessed. If a hearing is held, the commissioner shall issue a final order concerning removal of the facility or structure and payment of a penalty.
(f) The trial courts of this state shall give preference to an appeal from a final order of the commissioner under this section as provided by Section 23.101(a), Government Code.
(g) The commissioner may contract for the removal and disposal of a facility or structure under this section and may pay the costs of removal from the special fund established under Sections 52.297 and 53.155 of this code or from funds appropriated by the legislature.
(h) If the person who is constructing, maintains, owns, or possesses the facility or structure does not pay assessed penalties, removal costs, and other assessed fees and expenses not later than the 60th day after the entry of a final order assessing the penalties, costs, and expenses, the commissioner may:
(1) sell salvageable parts or attachments of the facility or structure to offset those costs;
(2) record a lien, in the total amount of the penalties, costs, and other fees and expenses assessed, against the adjacent littoral property;
(3) request the attorney general to institute civil proceedings to collect the penalties, costs of removal, and other fees and expenses remaining unpaid; or
(4) use any combination of the remedies prescribed by this subsection, or other remedies authorized by law, to collect the unpaid penalties, costs of removal, and other fees and expenses assessed on account of the unauthorized facility or structure on state land and its removal by the commissioner.
(i) The lien authorized by this section arises and attaches at the time a notice of lien is recorded and indexed in the real property records in the county where the adjacent littoral property is located. The notice of lien must contain a legal description of the adjacent littoral property, the name of the owner of the adjacent littoral property, if known, and the total amount of the penalties, costs, and other fees. The lien is subordinate to the rights of prior bona fide purchasers or lienholders on the adjacent littoral property.
(j) The decision to remove a facility or structure under this section is discretionary with the commissioner. This section does not impose a duty on the state to remove a facility or structure or to remedy or warn of a hazardous condition on state land.
(k) A wrecked, derelict, or substantially dismantled vessel that is moored or left in place for at least 21 days without the consent of the commissioner is considered a structure for purposes of this section.