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Courtesy of Houston Business Journal.

In response to landowner requests, a handful of Texas politicians are looking for ways to increase the State’s control over Texas Central’s planned Houston to Dallas high-speed rail project (“HSR”). These landowners, who own property in the path of the proposed train, are motivated primarily by their concerns that Texas Central will use the power of eminent domain power to seize their land. They also hope that an increase in government oversight will provide a greater measure of transparency and accountability.

Though landowner response to the project is mixed, the general tilt is negative. Admittedly, there are a few landowners who are happy for the opportunity to sell their land. Because the HSR’s route was designed to parallel existing high voltage utilities, its proposed path closely follows existing electrical power transmission corridors. Several of the properties along the route are therefore already encumbered by multiple electrical towers. These installations dramatically lower the land’s value, making it unattractive to buyers. Owners of these parcels are all too happy to take what little Texas Central will give them. The remaining landowners, however, are not so happy.

So far, Texas Central has reportedly acquired ~30% of the necessary land through voluntary sale. Many of the remaining parcels are owned by hold outs who refuse to part with their land for any price. Most of these holdouts are ranchers and farmers, who make their living off the land, land which has been passed down from generation to generation. The historical and sentimental value of the property, therefore, cannot be measured in currency. Attachments can run deep; several of the landowners even have family burial sites on the land.

Texas Central has publicly expressed a desire to avoid using eminent domain, and so far, it has been successful. Indeed, a question still exists as to whether the eminent domain power is even available to them. One court in Harris county has said yes, but landowners and their attorneys remain unconvinced, and are committed to disputing that finding in other counties.

One semi-recent Texas legislative story is partially responsible for this ambiguity. In 1989, the State legislature established the Texas High-Speed Rail Authority (“Authority”). This agency was responsible for exploring the possibility of bringing a high-speed rail to Texas and finding a contractor to build it. The Authority also had the power to exercise eminent domain if it could show that the use of eminent domain was in the public interest.

After a research period, the Authority granted a contract to the Texas TGV Consortium, which was tasked with building and operating a high-speed rail in Texas. However, the plan fell through for financial reasons and in 1994, the Authority was abolished by the legislature. The termination of the Authority created a regulatory vacuum regarding the issue of eminent domain use for high-speed rail that endures to this day. More recent attempts to effect regulatory change in the legislature have failed. As of 2017, 20 proposed bills regarding the HSR have failed to pass.

Despite the legislature’s somewhat unhelpful history on the issue, landowners who wish to see State involvement materialize have reason to hope. A handful of Texas politicians are of the opinion that a formalized State oversight mechanism could be of great benefit for landowner interests. For example, Representative Ben Leman, a Republican from Anderson, believes that a state agency of some kind will add clarity and equity to the eminent domain process. Representative Cecil Bell, Jr., the vice chair of the House Committee on Land and Resource Management is likewise of the opinion that oversight could benefit landowners, though he has stated that the solution might be to task an existing agency with oversight, rather than establish a new office.

Whatever the legislative outcomes, affected landowners are encouraged to stay current on all developments regarding this project. If eminent domain is used, property owners who find themselves in the crosshairs of Texas Central are reminded that the U.S. Constitution and Texas Constitution both state that compensation must be paid to the property owner if land is forcibly seized via eminent domain. Landowners are further reminded that they can dispute a condemning authority’s offer via the courts, and are encouraged to seek counsel at the appropriate time.