| (a) Purpose. The purpose of this section is to establish
procedures whereby the department determines if private real property
rights are affected by governmental action taken by the department
or the commissioner of agriculture.
(b) Categorical Determination. Categorical determinations
that no private real property interests are affected by the proposed
governmental action obviates need for further compliance with the
Private Real Property Preservation Act, Government Code, Chapter 2007
(Chapter 2007). The following activities and programs, and policies
or regulations promulgated to implement them, do not affect private
real property interests:
(1) Activities related to personnel management;
(2) Activities related to purchase of goods and services;
(3) Activities related to the general administrative
practice and procedures of the department;
(4) Requirements or activities relating to the implementation
of the department's promotional marketing or financial assistance
programs;
(5) Requirements related to hearings and appeals;
(6) Activities related to the issuance of licenses
as part of the department's farmers market certification program;
(7) Activities related to the department's operation
of its livestock export facilities;
(8) Activities related to the implementation of the
department's grant programs; and
(9) Activities related to the implementation of the
following department regulatory programs:
(A) Agri-Systems Program, including organic certification,
and plant quality programs;
(B) Cooperative Inspection Program conducted jointly
with United States Department of Agriculture for the inspection of
fresh fruits, vegetables, nuts and peanuts;
(C) Commodity Programs including the Agricultural Protective
Act, Cooperative Marketing Association, Commodity Warehouse, Egg Quality,
and Piece Rate programs;
(D) Weights and Measures programs including the Public
Weigher program;
(E) Seed programs including the Seed Quality, Seed
and Plant Certification and Seed Arbitration programs; and
(F) Pesticide programs including the Pesticide Applicator
Licensing and Pesticide Product Registration programs, Worker Protection
program, Certification and Training program, and Risk Assessment,
Toxicology and Endangered Species programs.
(c) Guide for Evaluating Proposed Governmental Actions.
The following governmental actions are covered under Chapter 2007:
(1) actions involving adoption or issuance of an ordinance,
rule, regulatory requirement, resolution, policy, guideline, or similar
measure;
(2) actions imposing a physical invasion or requiring
a dedication or exaction of private real property;
(3) action that involves the enforcement of an action
listed in paragraphs (1) and (2) of this subsection, whether the enforcement
of the action is accomplished through the use of permitting, citations,
orders, judicial, or quasi-judicial proceedings, or other similar
means.
(d) Making a No Private Real Property Impact (No PRPI)
Determination. If it is determined that there are no private real
property interests impacted by a specific governmental action, the
need for any further compliance with Chapter 2007 is obviated.
(1) A No PRPI determination is determined by answering
the following question: Does the covered governmental action result
in a burden on private real property as that term is defined in Chapter
2007?
(2) Whether the governmental action results in a burden
on private real property is determined by the answers to the following
questions.
(A) Will the action involve a physical seizure or occupation
of private real property?
(B) Will the action involve a regulation of private
real property or of activities occurring on private real property?
(C) Will the action deny a fundamental right of ownership?
That is, will it diminish or destroy the right of a private property
owner to exclude others from the property, to possess it, or dispose
of it?
(D) Will the value of private real property that is
the subject of the action be reduced by 25% or more as a result of
the action?
(E) Will the action deprive the owner of all economically
viable uses of the property?
(3) If the answer to each of the questions posed in
subparagraphs (2)(A)-(E) of this subsection is NO, there is a No PRPI
determination, and no further action pursuant to Chapter 2007 is needed
for the action. If the answer to any of the questions posed is YES,
a Taking Impact Assessment is required.
(e) Taking Impact Assessment (TIA).
(1) Prior to Completion of TIA. Before a TIA is completed,
it should be determined by the procedure established by subsections
(b)-(c) of this section that:
(A) the contemplated governmental action does not fall
within the categorical determinations for which no TIA is required;
(B) the contemplated governmental action does not fall
within the exceptions to Chapter 2007; and
(C) there may be an impact on private real property
interests.
(2) Elements of the TIA. The specific elements that
must be evaluated when proposing to undertake a governmental action
that requires a TIA include the following:
(A) the specific purpose of the proposed action and
whether and how the proposed action substantially advances its stated
purpose; and
(B) the burdens imposed on private real property; and
(C) the benefits to society resulting from the proposed
use of private real property; and
(D) reasonable alternative actions that could accomplish
the specified purpose, including a comparison, evaluation, or explanation
of the following:
(i) how an alternative action would further the specified
purpose; and
(ii) whether an alternative action would constitute
a taking; and
(E) whether engaging in the proposed governmental action
will constitute a "taking" as determined by answering the following
questions.
(i) Is there a "taking" under the United States Constitution?
(ii) Is there a "taking" under the Texas Constitution?
(iii) Is there a "taking" under Chapter 2007 (25% diminution
in value or property subject of the governmental action)?
(f) A TIA prepared under this section is public information.
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