2005 Texas Natural Resources Code CHAPTER 183. CONSERVATION EASEMENTS

NATURAL RESOURCES CODE

TITLE 8. ACQUISITION OF RESOURCES

CHAPTER 183. CONSERVATION EASEMENTS

SUBCHAPTER A. CONSERVATION EASEMENTS GENERALLY


	§ 183.001. DEFINITIONS.  In this chapter:                                   
		(1)  "Conservation easement" means a nonpossessory 
interest of a holder in real property that imposes limitations or 
affirmative obligations designed to:
			(A)  retain or protect natural, scenic, or 
open-space values of real property or assure its availability for 
agricultural, forest, recreational, or open-space use;
			(B)  protect natural resources;                                              
			(C)  maintain or enhance air or water quality;  or                           
			(D)  preserve the historical, architectural, 
archeological, or cultural aspects of real property.
		(2)  "Holder" means:                                                          
			(A)  a governmental body empowered to hold an 
interest in real property under the laws of this state or the United 
States;  or
			(B)  a charitable corporation, charitable 
association, or charitable trust created or empowered to:
				(i)  retain or protect the natural, scenic, 
or open-space values of real property;
				(ii)  assure the availability of real 
property for agricultural, forest, recreational, or open-space 
use;
				(iii)  protect natural resources;                                           
				(iv)  maintain or enhance air or water 
quality;  or                       
				(v)  preserve the historical, 
architectural, archeological, or cultural aspects of real 
property.
		(3)  "Third-party right of enforcement" means a right 
provided in a conservation easement to enforce any of its terms 
granted to a governmental body, charitable corporation, charitable 
association, or charitable trust that is eligible to be a holder but 
is not a holder.
		(4)  "Servient estate" means the real property burdened 
by the conservation easement.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, § 1, eff. Sept. 
1, 1983.


	§ 183.002. CREATION, CONVEYANCES, ACCEPTANCES, AND 
DURATION.  (a) Except as otherwise provided in this chapter, a 
conservation easement may be created, conveyed, recorded, 
assigned, released, modified, terminated, or otherwise altered or 
affected in the same manner as other easements.
	(b)  A right or duty in favor of or against a holder and a 
right in favor of a person having a third-party right of enforcement 
does not arise under a conservation easement before its acceptance 
by the holder and the recordation of the acceptance.
	(c)  Except as provided by Section 183.003(b) of this code, a 
conservation easement is unlimited in duration unless the 
instrument creating it makes some other provision.
	(d)  An interest that exists in real property at the time a 
conservation easement is created is not impaired unless the owner 
of the interest is a party to the conservation easement or consents 
to it.
	(e)  A conservation easement must be created in writing, 
acknowledged and recorded in the deed records of the county in which 
the servient estate is located, and must include a legal 
description of the real property which constitutes the servient 
estate.
	(f)  If land that has been subject to a conservation easement 
is no longer subject to such easement, an additional tax is imposed 
on the land equal to the difference, if any, between the taxes 
imposed on the land for each of the five years preceding the year in 
which the easement terminates and the taxes that would have been 
imposed had the land not been subject to a conservation easement in 
each of those years, plus interest at an annual rate of seven 
percent calculated from the dates on which the differences would 
have become due.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, § 1, eff. Sept. 
1, 1983.


	§ 183.003. JUDICIAL ACTIONS.  (a) An action affecting a 
conservation easement may be brought by:
		(1)  an owner of an interest in the real property 
burdened by the easement; 
		(2)  a holder of the easement;                                                
		(3)  a person having a third-party right of 
enforcement;  or                
		(4)  a person authorized by some other law.                                   
	(b)  This chapter does not affect the power of a court to 
modify or terminate a conservation easement in accordance with the 
principles of law and equity.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, § 1, eff. Sept. 
1, 1983.


	§ 183.004. VALIDITY.  A conservation easement is valid 
even though:       
		(1)  it is not appurtenant to an interest in real 
property;                 
		(2)  it can be or has been assigned to another holder;                        
		(3)  it is not of a character that has been recognized 
traditionally at common law;
		(4)  it imposes a negative burden;                                            
		(5)  it imposes affirmative obligations on the owner of 
an interest in the burdened property or on the holder;
		(6)  the benefit does not touch or concern real 
property;  or               
		(7)  there is no privity of estate or of contract.                            

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, § 1, eff. Sept. 
1, 1983.


	§ 183.005. APPLICABILITY.  (a) This chapter applies to 
any interest created on or after September 1, 1983, that complies 
with this chapter, whether designated as a conservation easement or 
as a covenant, equitable servitude, restriction, easement, or 
otherwise.
	(b)  This chapter applies to any interest created before 
September 1, 1983, if it would have been enforceable had it been 
created on or after September 1, 1983, unless retroactive 
application contravenes the constitution or laws of this state or 
the United States.
	(c)  This chapter does not invalidate any interest, whether 
designated as a conservation or preservation easement or as a 
covenant, equitable servitude, restriction, easement, or 
otherwise, that is enforceable under other law of this state.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, § 1, eff. Sept. 
1, 1983.

SUBCHAPTER B. TEXAS FARM AND RANCH LANDS CONSERVATION PROGRAM


	§ 183.051. PURPOSE.  The purpose of the program 
established under this subchapter is to enable and facilitate the 
purchase and donation of agricultural conservation easements.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.052. DEFINITIONS.  In this subchapter:                                
		(1)  "Agricultural conservation easement" means a 
conservation easement in qualified land that is designed to 
accomplish one or more of the following additional purposes:
			(A)  conserving water quality or quantity;                                   
			(B)  conserving native wildlife species through 
protection of their habitat;
			(C)  conserving rare or sensitive plant species;  
or                       
			(D)  conserving large tracts of qualified 
open-space land that are threatened with fragmentation or 
development.
		(2)  "Commissioner" means the commissioner of the 
General Land Office.      
		(3)  "Council" means the Texas Farm and Ranch Lands 
Conservation Council established under Section 183.061.
		(4)  "Fund" means the Texas farm and ranch lands 
conservation fund established under Section 183.058.
		(5)  "Land office" means the General Land Office.                             
		(6)  "Program" means the Texas farm and ranch lands 
conservation program established under this subchapter.
		(7)  "Purchase of agricultural conservation easement" 
means the purchase from a willing seller of an agricultural 
conservation easement.
		(8)  "Qualified easement holder" means a holder that 
is:                    
			(A)  a state agency or a municipality;  or                                   
			(B)  an organization that is exempt from federal 
income taxation under Section 501(a), Internal Revenue Code of 
1986, as an organization described by Section 501(c)(3) of that 
code and that is organized for the purpose of preserving 
agriculture, open space, or natural resources.
		(9)  "Qualified land" means qualified open-space land, 
as that term is defined by Section 23.51, Tax Code.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.053. PROGRAM.  The Texas farm and ranch lands 
conservation program is established as a program of the land office 
for the purpose of administering the assistance to be provided by 
the fund for the purchase of agricultural conservation easements.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.054. TERMS OF AGRICULTURAL CONSERVATION 
EASEMENT.  (a) An agricultural conservation easement under this 
subchapter must be perpetual or for a term of 30 years.
	(b)  The owner of qualified land and a potential purchaser of 
an agricultural conservation easement should consider and 
negotiate easement terms, including the following considerations:
		(1)  whether the landowner will receive a lump sum or 
annual payments;      
		(2)  whether the term of the easement shall be 
perpetual or for a term of 30 years;
		(3)  whether a term easement is renewable;                                    
		(4)  whether the landowner retains limited development 
rights;  and         
		(5)  the purchase price of the easement.                                      
	(c)  An agricultural conservation easement may not be 
assigned to or enforced by a third party without the express written 
consent of the landowner.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.055. TERMINATION OF EASEMENT.  (a) Any time after 
an agricultural conservation easement is acquired with a grant 
awarded under this subchapter, the landowner may request that the 
council terminate the easement as provided by Subsection (b) on the 
ground that the landowner is unable to meet the conservation goals 
as described by Section 183.052(1).  The termination request must 
contain a verifiable statement of impossibility.
	(b)  On receipt of the request for termination, the council 
shall notify the qualified easement holder and conduct an inquiry.  
Not later than the 180th day after the date the council receives the 
request, the council shall notify the parties of the decision to 
grant or deny the request for termination.  Either party may appeal 
the decision in district court not later than the 45th day after the 
date of the notification.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.056. REPURCHASE BY LANDOWNER.  (a) In this section:                   
		(1)  "Agricultural value" means the price as of the 
appraisal date a buyer willing, but not obligated, to buy would pay 
for a farm or ranch unit with land comparable in quality and 
composition to the subject property, but located in the nearest 
location where profitable farming or ranching is feasible.
		(2)  "Fair market value" means the price as of the 
appraisal date that a buyer willing, but not obligated, to buy would 
pay for the land at its best and most beneficial use under any 
obtainable development zoning category.
	(b)  If a request for termination of an agricultural 
conservation easement is granted under Section 183.055, the 
commissioner shall order an appraisal of the fair market value and 
the agricultural value of the property subject to the easement.  The 
landowner shall bear the cost of the appraisal.
	(c)  Not later than the 180th day after the date of the 
appraisal under Subsection (b), the landowner must pay to the 
qualified easement holder an amount equal to the difference between 
the fair market value and the agricultural value.  The qualified 
easement holder shall pay to the fund any amounts received under 
this subsection, not to exceed the amount paid by the fund for 
purchase of the easement.
	(d)  Not later than the 30th day after the date of payment by 
the landowner under Subsection (c), the qualified easement holder 
shall terminate the easement.
	(e)  If the request for termination is denied or if the 
landowner fails to make the payment required by Subsection (c) in 
the time required by that subsection, the landowner may not submit 
another request for termination of the easement before the fifth 
anniversary of the date of the last request.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.057. PROTECTED LAND;  NOTICE OF TAKING.  (a) A 
department or agency of this state, a county, a municipality, 
another political subdivision, or a public utility may not approve 
any program or project that requires the use or taking through 
eminent domain of private land encumbered by an agricultural 
conservation easement purchased under this subchapter unless the 
governmental entity or public utility acting through its governing 
body or officers determines that:
		(1)  there is no feasible and prudent alternative to 
the use or taking of the land;  and
		(2)  the program or project includes all reasonable 
planning to minimize harm to the land resulting from the use or 
taking.
	(b)  A determination required by Subsection (a) may be made 
only at a properly noticed public hearing.
	(c)  The governing body or officers of the governmental 
entity or public utility may consider clearly enunciated local 
preferences, and the provisions of this subchapter do not 
constitute a mandatory prohibition against the use of the area if 
the determinations required by Subsection (a) are made.
	(d)  If, after making the determination required by 
Subsection (a), a department or agency of this state, a county, a 
municipality, another political subdivision, or a public utility 
acquires by eminent domain a fee simple interest in land encumbered 
by an agricultural conservation easement purchased under this 
subchapter:
		(1)  the easement on the condemned property terminates;  
and                
		(2)  the entity exercising the power of eminent domain 
shall:               
			(A)  pay for an appraisal of the fair market 
value, as that term is defined by Section 183.056, of the property 
subject to condemnation;
			(B)  pay to the qualified easement holder an 
amount equal to the amount paid by the holder for the portion of the 
easement affecting the property to be condemned;
			(C)  pay to the landowner an amount equal to the 
fair market value of the condemned property less the amount paid to 
the qualified easement holder under Paragraph (B);  and
			(D)  pay to the landowner and the qualified 
easement holder any additional damages to their interests in the 
remaining property, as determined by the special commissioners 
under Section 21.042, Property Code.
	(e)  If, after making the determination required by 
Subsection (a), a department or agency of this state, a county, a 
municipality, another political subdivision, or a public utility 
acquires by eminent domain an interest other than a fee simple 
interest in land encumbered by an agricultural conservation 
easement purchased under this subchapter:
		(1)  the entity exercising the power of eminent domain 
shall pay for an appraisal of the fair market value, as that term is 
defined by Section 183.056, of the property subject to 
condemnation;  and
		(2)  the special commissioners shall consider the fair 
market value as the value of the property for purposes of assessing 
damages under Section 21.042, Property Code.
	(f)  The qualified easement holder shall pay to the fund any 
amounts received under Subsections (d) and (e), not to exceed the 
amount paid by the fund for the purchase of the easement.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.058. TEXAS FARM AND RANCH LANDS CONSERVATION 
FUND.  (a) The Texas farm and ranch lands conservation fund is an 
account in the general revenue fund that may be appropriated only to 
the land office to be used as provided by Subsection (b).  The fund 
may not be used for grants to purchase or acquire any right or 
interest in property by eminent domain.  The fund consists of:
		(1)  money appropriated by the legislature to the fund;                       
		(2)  public or private grants, gifts, donations, or 
contributions;  and     
		(3)  funds from any other source, including proceeds 
from the sale of bonds, state or federal mitigation funds, or funds 
from any local, state, or federal program.
	(b)  The fund may be used only:                                                
		(1)  to award grants to qualified easement holders for 
the purchase of agricultural conservation easements;
		(2)  to pay transaction costs related to the purchase 
of agricultural conservation easements, which may include 
reimbursement of appraisal costs;  and
		(3)  to pay associated administrative costs of the land 
office, not to exceed five percent of the money in the fund.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.059. ADMINISTRATION OF FUND.  (a) The council may:                    
		(1)  adopt rules necessary to perform program duties 
under this subchapter; 
		(2)  request, accept, and use gifts, loans, donations, 
aid, appropriations, guaranties, subsidies, grants, or 
contributions of any item of value for the furtherance of any 
purposes of this subchapter;
		(3)  establish, charge, and collect fees, charges, and 
penalties in connection with the programs, services, and activities 
provided for by this subchapter;
		(4)  make, enter into, and enforce contracts and 
agreements, and take other actions as may accomplish any of the 
purposes of this subchapter;
		(5)  seek ways to coordinate and leverage public and 
private sources of funding;
		(6)  adopt best practices and enforcement standards for 
the evaluation of easements purchased through grants from the fund;
		(7)  establish a protocol for the purchase of 
agricultural conservation easements and for the distribution of 
funds to approved applicants;
		(8)  administer grants awarded to successful 
applicants;                    
		(9)  ensure that agricultural conservation easements 
purchased under this subchapter are not inconsistent with the 
preservation of open space and the conservation of wildlife habitat 
or water;  and
		(10)  approve the termination of easements and take any 
other action necessary to further the goals of the program.
	(b)  To receive a grant from the fund under this subchapter, 
an applicant who is qualified to be an easement holder under this 
subchapter must submit an application to the council.  The 
application must:
		(1)  set out the parties' clear conservation goals 
consistent with the program;
		(2)  include a site-specific estimate-of-value 
appraisal by a licensed appraiser qualified to determine the market 
value of the easement;
		(3)  demonstrate that the applicant is able to match 50 
percent of the amount of the grant being sought, considering that 
the council may choose to allow a donation of part of the appraised 
value of the easement to be considered as in-kind matching funds;  
and
		(4)  include a memorandum of understanding signed by 
the landowner and the applicant indicating intent to sell an 
agricultural conservation easement and containing the terms of the 
contract for the sale of the easement.
	(c)  For the purposes of determining the amount of a grant 
under this subchapter, the value of an agricultural conservation 
easement shall be determined by a site-specific estimate-of-value 
appraisal performed by a licensed, qualified appraiser.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.060. CRITERIA FOR AWARDING GRANTS.  The council 
shall adopt a scoring process to be used in evaluating applications 
that considers the following:
		(1)  maintenance of landscape and watershed integrity 
to conserve water and natural resources;
		(2)  protection of highly productive agricultural 
lands;                    
		(3)  protection of habitats for native plant and animal 
species, including habitats for endangered, threatened, rare, or 
sensitive species;
		(4)  susceptibility of the subject property to 
subdivision, fragmentation, or other development;
		(5)  potential for leveraging state money allocated to 
the program with additional public or private money;
		(6)  proximity of the subject property to other 
protected lands;            
		(7)  the term of the proposed easement, whether 
perpetual or for a term of 30 years;  and
		(8)  a resource management plan agreed to by both 
parties and approved by the council.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.061. TEXAS FARM AND RANCH LANDS CONSERVATION 
COUNCIL.  (a) The Texas Farm and Ranch Lands Conservation Council 
is established to advise and assist the commissioner with 
administration of the program and to select applicants to receive 
grants under this subchapter using the criteria adopted by the 
council under Section 183.060.  The council consists of:
		(1)  six members appointed by the governor as follows:                        
			(A)  one member who operates a family farm or 
ranch in this state;         
			(B)  one member who is the designated 
representative of an agricultural banking or lending organization 
and who has significant experience lending for farms and ranches or 
lands encumbered by conservation easements;
			(C)  two members who are the designated 
representatives of a statewide agricultural organization in 
existence in this state for not less than 10 years;
			(D)  one member who is a designated representative 
of a statewide nonprofit organization that represents land trusts 
operating in this state;  and
			(E)  one member from a state institution of higher 
education who has significant experience with natural resources 
issues;  and
		(2)  four ex officio members as follows:                                      
			(A)  the commissioner;                                                       
			(B)  the commissioner of agriculture or the 
commissioner's designee;       
			(C)  the presiding officer of the Parks and 
Wildlife Commission or the presiding officer's designee;  and
			(D)  the state conservationist of the Natural 
Resources Conservation Service of the United States Department of 
Agriculture or a designee of that person, who serves as a nonvoting 
member.
	(b)  Appointed members of the council serve staggered terms 
of six years, with two of the members' terms expiring February 1 of 
each odd-numbered year.
	(c)  Appointments to and removal from the council shall be 
made by the governor without regard to the race, color, disability, 
sex, religion, age, or national origin of the appointees.
	(d)  The commissioner or the commissioner's designee shall 
serve as the presiding officer of the council and shall designate 
from among the members of the council an assistant presiding 
officer to serve in that capacity at the will of the commissioner.  
The council may choose from its members other officers as the 
council considers necessary.
	(e)  A member of the council is not entitled to compensation 
for service on the council but is entitled to reimbursement of the 
necessary and reasonable travel expenses incurred by the member 
while conducting the business of the council, as provided for state 
employees by the General Appropriations Act.
	(f)  The council shall meet not less than once each year.                      
	(g)  A person may not be appointed as a council member if the 
person or the person's spouse:
		(1)  is employed by or participates in the management 
of a business entity or other organization receiving money under 
the program;
		(2)  owns or controls, directly or indirectly, more 
than a 10 percent interest in a business entity or other 
organization receiving money under the program;  or
		(3)  uses or receives a substantial amount of tangible 
goods, services, or money under the program other than 
reimbursement authorized by law for travel expenses as described by 
Subsection (e).
	(h)  In this subsection, "Texas trade association" means a 
cooperative and voluntarily joined statewide association of 
business or professional competitors in this state designed to 
assist its members and its industry or profession in dealing with 
mutual business or professional problems and in promoting their 
common interest.  A person may not be an appointed member of the 
council if:
		(1)  the person is an officer, employee, or paid 
consultant of a Texas trade association for an occupation or 
profession with an interest in land conservation that is related to 
the occupation or profession;  or
		(2)  the person's spouse is an officer, manager, or paid 
consultant of a Texas trade association for an occupation or 
profession with an interest in land conservation that is related to 
that occupation or profession.
	(i)  A person may not be an appointed member of the council or 
act as the general counsel to the council if the person is required 
to register as a lobbyist under Chapter 305, Government Code, 
because of the person's activities for compensation on behalf of an 
occupation or profession with an interest in land conservation that 
is related to that occupation or profession.
	(j)  It is a ground for removal from the council if a member:                  
		(1)  is ineligible for membership under this section;                         
		(2)  cannot, because of illness or disability, 
discharge the member's duties for a substantial part of the member's 
term;  or
		(3)  is absent from more than half of the regularly 
scheduled council meetings that the member is eligible to attend 
during a calendar year without an excuse approved by a majority vote 
of the council.
	(k)  The validity of an action of the council is not affected 
by the fact that it is taken when a ground for removal of a 
participating council member exists.
	(l)  If the presiding officer has knowledge that a potential 
ground for removal exists, the presiding officer shall notify the 
commissioner and the governor that a potential ground for removal 
exists.
	(m)  The presiding officer or the presiding officer's 
designee, with the assistance of staff of the land office, shall 
provide to members of the council information regarding a member's 
responsibilities under applicable laws relating to standards of 
conduct for state officers.
	(n)  A person who is appointed to and qualifies for office as 
a member of the council may not vote, deliberate, or be counted as a 
member in attendance at a meeting of the council until the person 
completes a training program that complies with this section.  The 
training program must provide the person with information 
regarding:
		(1)  the legislation that created the council;                                
		(2)  the program to be administered under this 
subchapter;                  
		(3)  the role and functions of the council;                                   
		(4)  the rules of the council, with an emphasis on the 
rules that relate to disciplinary and investigatory authority;
		(5)  the current budget for the council;                                      
		(6)  the results of the most recent formal audit of the 
council;            
		(7)  the requirements of:                                                     
			(A)  the open meetings law, Chapter 551, 
Government Code;                  
			(B)  the public information law, Chapter 552, 
Government Code;             
			(C)  the administrative procedure law, Chapter 
2001, Government Code;  and 
			(D)  other laws relating to public officials, 
including conflict-of-interest laws;  and
		(8)  any applicable policies adopted by the council or 
the Texas Ethics Commission.
	(o)  A person appointed to the council is entitled to 
reimbursement, as provided by the General Appropriations Act, for 
the travel expenses incurred in attending the training program 
regardless of whether the attendance at the training program occurs 
before or after the person qualifies for office.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.062. EFFECT ON TAX APPRAISAL.  An agricultural 
conservation easement under this subchapter does not affect the 
eligibility of the property subject to the easement for appraisal 
for ad valorem tax purposes under Subchapter D, Chapter 23, Tax 
Code.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.          


	§ 183.063. REPORT TO TEXAS DEPARTMENT OF 
TRANSPORTATION.  Not later than the 10th day after the date of a 
closing of a purchase of an easement under this subchapter, the land 
office shall provide the Texas Department of Transportation a legal 
description of the property subject to the easement and shall 
include with the description the date the closing occurred.

Added by Acts 2005, 79th Leg., ch. 1354, § 2, eff. Sept. 1, 2005.