TRANSPORTATION CODE
CHAPTER 202. CONTROL OF TRANSPORTATION ASSETS
SUBCHAPTER A. GENERAL PROVISIONS
§ 202.001. ADMINISTRATION. (a) The commission may
maintain state highways.
(b) A county is:
(1) not liable for expenses associated with the
maintenance of a state highway; and
(2) not responsible for the supervision of a state
highway.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.002. FUNDS. (a) The commission shall use
automobile registration fees in the state highway fund to maintain
state highways and may not divert funds from automobile
registration fees for another use.
(b) Notwithstanding Subsection (a), if the commission is
without sufficient funds from other sources to match the federal
aid for roads in the state, the commission may by resolution
transfer a sufficient amount from the state highway fund to match
the federal aid.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
SUBCHAPTER B. SALE, EXCHANGE, OR RETURN OF HIGHWAY PROPERTY
§ 202.021. REAL PROPERTY NO LONGER NEEDED. (a) The
commission may recommend to the governor the sale or transfer of any
interest in real property, including a highway right-of-way, that:
(1) was acquired for a highway purpose; and
(2) as determined by the commission, is no longer
needed for a state highway purpose.
(b) Except as provided by Subsection (c), real property
shall be transferred or sold with the following priorities:
(1) to a governmental entity with the authority to
condemn the property; or
(2) to the general public.
(c) A highway right-of-way shall be transferred or sold with
the following priorities:
(1) to a governmental entity with the authority to
condemn the property;
(2) to abutting or adjoining landowners; or
(3) to the general public.
(d) The commission shall:
(1) determine the fair value of the state's interest in
the real property; and
(2) if the value is $10,000 or more, advise the
governor of the value.
(e) The commission may waive payment for real property
transferred to a governmental entity under this section if the
estimated cost of future maintenance on the property equals or
exceeds the fair value of the property.
(f) Any revenue from the sale of property under this
subchapter shall be deposited to the credit of the state highway
fund.
(g) The governor may execute a deed conveying the state's
interest in the property.
(h) If the commission determines that the value of the real
property is less than $10,000, it may authorize the executive
director to execute a deed conveying the state's interest in the
property without a recommendation to the governor.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 2003, 78th Leg., ch. 668, § 2, eff. June 20, 2003.
§ 202.022. NOTICE OF SALE. Notice of a sale to the
general public must be published in the English language:
(1) once a week for three consecutive weeks, with the
final publication occurring not later than the 20th day before the
date of the sale; and
(2) in a newspaper in the county where the property is
located.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.023. SALE OF REAL PROPERTY BY BID. (a) A sale to
the general public of an interest in real property under this
subchapter is by sealed bid and may not be for less than the value
determined by the commission under Section 202.021.
(b) The commission may require that each bidder pay to the
commission a bid deposit in an amount and form determined by the
commission.
(c) The commission shall apply the bid deposit to the
purchase price of the property for the bid accepted by the
commission.
(d) If for any reason the bidder fails to complete the
purchase before the 61st day after the date on which the bidder
receives written notice that the state is ready to complete the
sale, the bid deposit is forfeited.
(e) The state shall refund the bid deposit if the state is
unable to complete the sale.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.024. EXCHANGE OF REAL PROPERTY. The governor, on
the recommendation of the commission, may execute a deed exchanging
an interest in real property acquired but not needed for a highway
purpose as whole or partial consideration for another interest in
real property needed for a state highway purpose.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.025. EXECUTION OF DEED: METHOD. The governor, on
the recommendation of the commission, may execute a deed
relinquishing and conveying under this subchapter the state's
interest in real property as follows:
(1) if the state's title was acquired by donation,
convey to the grantor or the grantor's heirs or assigns;
(2) if the state's title was acquired by purchase by a
county or municipality, convey to the county or municipality, or to
the grantor or the grantor's heirs or assigns at the request of the
county or municipality;
(3) if the interest conveyed to the state is only the
right to use the property, convey to the owner of the fee in the
property;
(4) if the interest in the property was acquired and
held by a county or municipality in its own name for use by the
state, quitclaim to the county or municipality any interest that
might have accrued to the state by use of the property;
(5) if there is no record title to the property,
quitclaim any interest that might have accrued to the state by use
of the property to the county or municipality where the property is
located or to abutting property owners at the request of the county
or municipality; or
(6) if necessary to comply with a reversionary clause
contained in the instrument that originally conveyed the interest
to the state, quitclaim the state's interest.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.026. RECONVEYANCE OF PROPERTY ACQUIRED FOR
FREEWAY. (a) The governor, on recommendation of the commission,
may execute a deed reconveying the property to the grantor or the
grantor's heirs or assigns, if, not later than 12 months after the
date the property is acquired for use as an approach-way to an urban
freeway, the commission determines that the property is not needed
for a highway purpose because of relocation of the approach-way.
(b) The sale price for the property must be the same as the
purchase price paid by or for the state plus six percent annual
interest from the date the original purchase price was paid.
(c) When the commission determines that the property is not
needed for a highway purpose, it shall send written notice to the
grantor, at the grantor's address at the time of acquisition.
(d) Not later than the second anniversary of the date the
notice is mailed, the grantor or the grantor's heirs or assigns may
request in writing that the state reconvey the property to them.
(e) If the commission does not receive a request to reconvey
the property before the expiration of the period, the commission
may dispose of the property at a public sale.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.027. REIMBURSEMENT TO COUNTY OR
MUNICIPALITY. (a) If real property owned by the state and sold
under this subchapter was acquired by a county or municipality and
if a part of that acquisition cost was reimbursed to the county or
municipality by the state, the department may pay the county or
municipality a percentage of the proceeds of the sale that is equal
to the percentage of the value or cost not reimbursed to the county
or municipality at the time of the initial acquisition.
(b) Reimbursement under this section applies only to real
property that the commission determines was never used for the
purpose for which it was acquired.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.028. CORRECTION OF ERROR OR AMBIGUITY IN
INSTRUMENT. (a) The governor, on the recommendation of the
commission, shall execute and deliver a quitclaim deed, correction
deed, or other conveyance necessary to resolve an ambiguity or
error in an instrument that conveyed an interest in real property to
the state for a highway right-of-way.
(b) The ambiguity or error may be for any reason, including
a metes and bounds description that is incomplete or incorrect.
(c) The ambiguity or error must be of sufficient consequence
to raise doubt as to the location or extent of the interest
conveyed, or must have resulted in the acquisition of real property
or an interest in real property not intended to be included and not
needed for a highway purpose.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.029. RIGHTS OF PUBLIC UTILITY OR COMMON
CARRIER. Under this subchapter, if the state sells, conveys, or
surrenders possession of real property that is being used by a
public utility or common carrier having a right of eminent domain
for right-of-way and easement purposes, the sale, conveyance, or
surrender of possession of the real property is subject to the right
and continued use of the public utility or common carrier.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.030. APPROVAL OF TRANSFERS. (a) The attorney
general must approve a transfer or conveyance that is made under
this subchapter if the value of the real property transferred or
conveyed is $10,000 or more.
(b) The state's right to full and exclusive right of
possession of all retained rights-of-way may not be infringed or
lessened in any way by a transfer or conveyance made under this
subchapter.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 2003, 78th Leg., ch. 668, § 3, eff. June 20, 2003.
§ 202.031. EXPENSES. (a) The person requesting the
sale of an interest in property or the grantee in a deed issued
under this subchapter shall pay expenses incurred by the
department, including handling, appraising, or advertising the
sale.
(b) The department may not process a request or deliver a
deed until the expenses under Subsection (a) are paid.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.032. RULES. The commission may adopt rules to
implement this subchapter and to provide requestor refunds.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.033. TRANSFER OF HISTORIC BRIDGE. (a) In this
section, " historic bridge" means a bridge that is included on or
eligible to be included on the National Register of Historic
Places.
(b) The department may transfer ownership of a historic
bridge scheduled for replacement to a governmental entity or a
responsible private entity. The entity that accepts ownership of
the bridge:
(1) assumes all legal and financial responsibility for
the bridge; and
(2) must maintain and preserve the bridge and its
historic features.
(c) The department may not transfer a bridge under this
section unless it first reviews the proposed recipient's intended
use of the bridge and determines that the bridge can be safely used
for that purpose.
(d) The following laws do not apply to a transfer under this
section:
(1) Chapter 2175, Government Code;
(2) Section 202.030(a); and
(3) Section 202.031.
Added by Acts 2003, 78th Leg., ch. 668, § 4, eff. June 20, 2003.
SUBCHAPTER C. LEASES, EASEMENTS, AND AGREEMENTS CONCERNING HIGHWAY
PROPERTY
§ 202.051. DEFINITIONS. In this subchapter:
(1) "Highway asset" means an interest in real property
that is held or controlled by the department for a highway or
department purpose.
(2) "Rest area" means an area of public land
designated by the department as a rest area, comfort station,
picnic area, or roadside park.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.052. LEASE AUTHORITY. (a) The department may
lease a highway asset, part of a right-of-way, or airspace above or
underground space below a highway that is a part of the state
highway system if the department determines that the interest to be
leased will not be needed for a highway purpose during the term of
the lease.
(b) The lease may be for any purpose that is not
inconsistent with applicable highway use.
(c) The department shall charge not less than fair market
value for the highway asset, payable in cash, services, tangible or
intangible property, or any combination of cash, services, or
property.
(d) The department may authorize exceptions to the charges
under Subsection (c) for:
(1) the lease of a highway asset to a public utility
provider;
(2) a lease for a social, environmental, or economic
mitigation purpose; or
(3) a lease to an institution of higher education for a
purpose of the institution.
(e) In this section, "institution of higher education" has
the meaning assigned by Section 61.003, Education Code.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.10(a), eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1171, § 1.19, eff. Sept. 1, 1997.
§ 202.053. LEASE OF HIGHWAY ASSETS: TERMS. (a) The
department may determine all terms of the lease except:
(1) a tenant may not be required to post a bond or
security for a lease in an amount in excess of six months' rental
under the lease; and
(2) the lease must allow the tenant to mortgage or
otherwise pledge or grant a security interest in the leasehold to
secure financing for the acquisition of the leasehold and for the
construction and operation of an improvement permitted under the
lease.
(b) The department may not convey title to, or sever from
the real property, any permanent improvement constructed on the
area leased under this subchapter.
(c) The lease may:
(1) contain a provision for early termination, at the
option of either party, with or without cause; and
(2) provide that the right of one party to terminate
without cause before the stated termination date may be conditioned
on the payment of an amount negotiated by the parties and specified
in the lease.
(d) In evaluating the consideration proposed by a tenant,
the department may consider the value of any real property the
tenant proposes to donate or convey for a highway purpose.
(e) Subject to rules of the commission to preserve safety
and scenic beauty, a tenant may erect and maintain signs and other
advertising displays relating to a business conducted on the
leasehold.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.054. REVENUE FROM LEASES. The department shall
deposit payments received under a lease under this subchapter to
the credit of the state highway fund.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.055. LEASE OF REST AREAS. (a) The department may
lease a rest area to a person engaging in sales, services, or other
commercial activities that serve the needs of the traveling public.
(b) The department shall require the person to maintain the
rest area in a proper manner and repair promptly any damage to the
rest area caused by the person or a customer of the person, or pay to
the state all expenses incurred by the department in repairing the
damage.
(c) The department shall adopt rules to implement this
section.
(d) Section 94.002, Human Resources Code, does not apply to
a lease authorized under this section.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.056. CERTAIN OIL AND GAS LEASES PROHIBITED. The
commission may not enter into an oil and gas lease for real property
owned by the state that was acquired to construct or maintain a
highway, road, street, or alley.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.057. CONVEYANCE OF EASEMENT OR INTEREST FOR FLOOD
CONTROL. (a) The commission may, on request of an officer of the
United States or the county judge of an affected county, convey
without monetary consideration to the United States, or to a county
that has agreed to convey real property or an interest in real
property to the United States under an Act of Congress, an easement
or interest in that property if:
(1) the state acquired the property for use as a
right-of-way for a state highway in a county that borders on the
United Mexican States, or in a county adjacent to such a county;
and
(2) the property is used or is proposed to be used by
that county or the United States for the construction, operation,
and maintenance of a system to control flood waters of a navigable
stream of the state.
(b) If the state does not own fee simple title to the
property, the commission may join and consent to an easement to be
used for a flood control purpose if the owner of the fee has
executed an easement.
(c) The commission may execute a necessary deed,
conveyance, or agreement, to be signed by the chair of the
commission as provided by commission order, for flood control
purposes under this section.
(d) In lieu of the monetary consideration waived by
Subsection (a), the commission may make a reservation or agreement
for the construction, reconstruction, alteration, operation, or
maintenance of a structure or facility used or projected to be used
for a highway purpose on real property that is needed for a flood
control purpose.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 2003, 78th Leg., ch. 140, § 8, eff. Sept. 1, 2003.
§ 202.058. AGREEMENT TO USE OR CULTIVATE
RIGHT-OF-WAY. (a) The department may agree with the owner of real
property abutting or adjoining property acquired by the department
for the right-of-way of a road in the state highway system, allowing
the owner to use or cultivate a portion of the right-of-way not
required for immediate use by the department.
(b) An agreement must be in writing and may provide for:
(1) use or cultivation of the property;
(2) construction of improvements on the property;
(3) placement of fences on the property; and
(4) other matters.
(c) The director or the director's authorized
representative and the owner of the property shall execute the
agreement.
(d) The department may not execute an agreement that would
impair or relinquish the state's right to use the property for a
right-of-way purpose when the property is needed to construct or
reconstruct the road for which it was acquired.
(e) Use by the owner of adjoining or abutting property under
this section is not abandonment of the property by the department.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.059. MOWING, BALING, SHREDDING, AND HOEING
MATERIAL ON RIGHT-OF-WAY. (a) A department district engineer, on
request of a person, may, but is not required to, permit the person
to mow, bale, shred, or hoe material on the right-of-way of a
portion of a state highway that is in the district supervised by
that engineer.
(b) If the person requesting permission under Subsection
(a) is not the owner of the real property adjacent to the
right-of-way that is the subject of the request, the district
engineer must first provide the owner of the property the option of
mowing, baling, shredding, or hoeing material on the right-of-way
before granting permission to another person.
(c) A person permitted to mow, bale, shred, or hoe the
right-of-way may not receive compensation for the mowing, baling,
shredding, or hoeing but is entitled to use or dispose of the hay or
other material produced.
(d) The state, the department, and the district engineer are
not liable for any property damage, personal injury, or death
resulting from the performance of a service or agreement under this
section.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.060. LIVING LOGOS; PILOT PROJECT. (a) The
commission may adopt rules implementing a pilot project for the
leasing of state highway right-of-way, subject to any applicable
federal regulation of outdoor advertising, as a location or
locations for commercial advertising by means of a floral mosaic
living logo.
(b) Rules adopted under this section shall:
(1) provide for the award of a lease in a manner that
maximizes revenue to the state;
(2) regulate the content, composition, placement,
installation, and maintenance of a floral mosaic living logo;
(3) set a bond for faithful performance of the lessee;
(4) provide for the public safety;
(5) ensure that installation and maintenance of a
floral mosaic living logo will not interfere with access to, or be
inconsistent with the use of, abutting property; and
(6) include such other matters as may be necessary to
protect the integrity of the involved highway.
(c) A floral mosaic living logo installed or placed under
this section may not contain a message, symbol, or trademark that
resembles an official traffic-control device.
(d) This section applies to state highway right-of-way in a
county with a population of 500,000 or more.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.16, eff. Sept. 1,
1997.
SUBCHAPTER D. RECLAIMED ASPHALT PAVEMENT
§ 202.081. DEFINITION. In this subchapter "reclaimed
asphalt pavement" means hot mix asphalt pavement and any
accompanying tack coat, seal coat, or chip seal removed as millings
or broken pavement pieces from a road during construction,
reconstruction, or repavement under the authority of the
department.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.
§ 202.082. DISPOSAL OF ASPHALT. (a) The department
shall dispose of all reclaimed asphalt pavement from a road in the
state highway system in the most cost-effective and environmentally
sensitive manner the department considers appropriate, giving
priority to political subdivisions of this state for the
maintenance, development, and construction of public works
projects.
(b) Disposal of reclaimed asphalt pavement under this
section is not subject to:
(1) Chapter 2175, Government Code; or
(2) the statutory or regulatory authority of the
General Services Commission.
Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 165, § 30.11(a), eff. Sept. 1, 1997.
SUBCHAPTER E. TELECOMMUNICATIONS FACILITIES
§ 202.091. DEFINITION. In this subchapter,
"telecommunications" means any transmission, emission, or
reception of signs, signals, writings, images, or sounds of
intelligence of any nature by wire, radio, optical, or other
electromagnetic systems.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
§ 202.092. USE OF DEPARTMENT
FACILITIES. Notwithstanding any other law, a telecommunications
provider may not place or maintain its facilities or otherwise use
improvements, including structures, medians, conduits, or
telecommunications equipment or lines, constructed or installed by
the state as components of the state highway system except by a
lease under Section 202.052 or an agreement under Section 202.093.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
§ 202.093. AGREEMENT. (a) Notwithstanding any other
law, the department may enter into an agreement with a
telecommunications provider allowing the provider, for the
provider's commercial purposes, to:
(1) place the provider's telecommunications
facilities within the median of a divided state highway; or
(2) place lines within or otherwise use
telecommunications facilities owned or installed by the state in or
on the improved portion of a state highway, including a median,
structures, equipment, conduits, or any other component of the
highway facilities constructed or owned by the department.
(b) An agreement entered into under Subsection (a) may
provide for compensation between the department and the
telecommunications provider in the form of cash or the shared use of
facilities.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
§ 202.094. COMPETITIVE SEALED PROPOSAL. (a) Before
entering into an agreement with a telecommunications provider under
this subchapter, the department shall follow a procedure using
competitive sealed proposals.
(b) The department shall solicit proposals by a request for
proposals and shall publish notice of the request in at least two
newspapers of general circulation and in the Texas Register.
(c) The proposals shall be opened so as to avoid disclosure
of contents to competing offerors during the process of
negotiation. After a contract is awarded, all proposals that have
been submitted shall be open for public inspection subject to
Subchapter C, Chapter 552, Government Code.
(d) The department may discuss an acceptable or potentially
acceptable proposal with an offeror to assess the offeror's ability
to meet the solicitation requirements. After the submission of a
proposal but before making an award, the department may permit the
offeror to revise the proposal in order to obtain the best final
offer. The department may not disclose any information derived
from proposals submitted from competing offerors in conducting
discussions under this section. The department shall provide each
offeror with an equal opportunity for discussion and revision of
proposals.
(e) The department shall make a written award of a contract
to the offeror whose proposal is the most advantageous to the state,
considering price and the evaluation factors in the request for
proposals, except that if the department finds that none of the
offers is acceptable, it shall refuse all offers. The contract file
must state in writing the basis on which the award is made.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
§ 202.095. APPLICABILITY. (a) Subtitle D, Title 10,
Government Code, does not apply to a procurement under this
subchapter.
(b) This subchapter does not limit a telecommunications
provider from placing lines or facilities in the unimproved portion
of state highway right-of-way to the extent authorized by
applicable law.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
§ 202.096. REVENUE. The department shall deposit in the
state highway fund any revenue received under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
§ 202.097. RULEMAKING. The commission shall adopt
rules for the implementation of this subchapter.
Added by Acts 1997, 75th Leg., ch. 1171, § 1.20, eff. Sept. 1,
1997.
SUBCHAPTER F. ADVANCE ACQUISITION OF PROPERTY
§ 202.111. DEFINITION. In this subchapter, "advance
acquisition" means an acquisition by the commission under Section
202.112.
Added by Acts 2003, 78th Leg., ch. 1325, § 3.02, eff. Sept. 1,
2003.
§ 202.112. ADVANCE ACQUISITIONS. (a) The commission
may purchase an option to acquire property for possible use in or in
connection with a transportation facility, including a facility as
defined by Section 227.001, before a final decision has been made as
to whether the transportation facility will be located on that
property.
(b) An advance acquisition shall be made by the commission
using the procedures authorized under Subchapter D of Chapter 203
or other law authorizing the commission or the department to
acquire real property or an interest in real property for a
transportation facility. If the commission acquires real property
or an interest in real property under Subchapter D of Chapter 203 or
other law, the commission may make an advance acquisition in the
manner provided by this subchapter.
(c) The commission may not make an advance acquisition by
condemnation.
Added by Acts 2003, 78th Leg., ch. 1325, § 3.02, eff. Sept. 1,
2003.
§ 202.113. DISPOSAL OF SURPLUS PROPERTY. The
commission shall dispose of property acquired by advance
acquisition that is not needed for a transportation facility in the
manner provided by Subchapter B.
Added by Acts 2003, 78th Leg., ch. 1325, § 3.02, eff. Sept. 1,
2003.
§ 202.114. MANAGEMENT. If requested by the department,
property acquired by advance acquisition may be managed by the
General Land Office on behalf of the department as the department
and the General Land Office may agree. Subchapter E, Chapter 31,
Natural Resources Code, does not apply to property acquired under
this subchapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 3.02, eff. Sept. 1,
2003.
