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As has been widely reported, Texas Central Partners (“TCP”), a privately owned, Dallas based company, has announced ambitious plans to build a 240-mile high-speed rail line (“HSR”) between Houston and Dallas. The project is estimated to cost $15 billion dollars and will use imported Japanese bullet trains to transport passengers between the two cities at airline-competitive speeds of around 300 km/hour. TCP estimates that the project will cut down on congestion and provide $36 billion in economic benefits to the State of Texas, including a $2.5 billion direct tax contribution. However, before any of these purported benefits are to materialize, TCP must acquire the land necessary to build the train, which is where the project has hit a snag.

In order to figure out which pieces of land it must acquire for the project, TCP needs to conduct surveys of various parcels to analyze them for suitability. To do this, it must enter private property along the train’s theoretical route. Landowners understandably, are less than enthusiastic about the prospect of a private company entering their land to size it up for purchase. Their unhappiness only deepens when they realize that if they are unwilling to sell, TCP may be able to use eminent domain to forcibly take the land against their will.

The issue came to a head recently in a Leon County courtroom, when Judge Deborah Evan of the 87th Judicial District Court ruled that TCP and its co-litigant, Integrated Texas Logistics Inc., couldn’t legally be considered a railway company, and therefore, didn’t have the power to survey private property. The ruling was a victory for the landowner-plaintiffs, Jim and Barbara Miles, who sued TCP to stop it from entering their land. Texans Against High-Speed Rail (“TAHSR”), an anti-HSR landowner organization believes the decision is a material setback for TCP. On the other hand, the company, which plans to appeal the decision, maintains that the judgment will not impede the progress of its plans.

Public pronouncements aside, the solution to the problem may not be as clear as each side is making it out to be. The fundamental problem is that two different judges have reached opposite conclusions about the TCP’s right to survey. Even as Leon County rules in favor of landowners, denying TCP the right to conduct surveys on private land, the 334th Judicial District Court in Harris County granted TCP the right to survey private land. The Harris County decision, handed down in 2017, came in the form of a default judgment signed by Judge Steven Kirkland. In it, the court held that TCP was a railroad company and therefore could enter private land for the purpose of conducting surveys.

It’s clear that the ability of TCP to survey land for acquisition, a critical link in its project development, has encountered tangible legal resistance. What this means for the HSR’s construction timeframes, or the fate of the project itself, remains to be seen.  With competing rulings from judges in two parts of the State, this survey issue will likely need to be resolved by the courts of appeal, and potentially, the Texas Supreme Court.

For those interested in more details concerning the use of eminent domain in Texas, the annual Houston-based eminent domain conference will be held July 18-19, 2019. For more information concerning location and registration, please see the following link: http://www.cvent.com/d/y6qlr8.

Written by Christopher Chan