Category Archives: Politics

Texas Landowner Wins $445,000 Judgment Against Power Company for Lost Property Value

24 Tuesday Feb 2015

Posted by in JMEH Law News, Politics, Power Lines, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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“Case may signal future litigation over power line easements.”

WICHITA FALLS, Texas – A North Texas landowner has won a $445,365 judgment against an electric power delivery company after his land lost value when an easement was taken for a high-voltage electric transmission line.

The judgment signals a win for other Texas landowners whose properties are being targeted as power line companies flood the Public Utility Commission (PUC) with applications seeking approval for similar transmission lines.

The recent dispute represents a fundamental debate: How much does a high-voltage power line easement, with its tall towers and unsightly appearance, reduce the value of property it crosses? A Wichita County jury agreed that an entire parcel was worth less, not just the land taken for the easement.

“This judgment sends a clear message. Texas landowners should understand that they have a constitutional right to collect fair damages when power lines lower the value of their land. Landowners only get one opportunity to recover, but the easements remain forever,” says Austin-based eminent domain attorney Luke Ellis of Johns Marrs Ellis & Hodge LLP, lead trial counsel for the property owner.

The dispute began in 2011 when Oncor Electric Delivery Co. LLC sued Edward Clack to gain 33.6 acres of easement on his Burkburnett property for a 345,000-volt power line, the highest-voltage lines built in Texas. The Oncor easement, 160 feet by 1.7 miles, bisected Mr. Clack’s property. Oncor initially offered him less than $55,000 before raising the offer to nearly $140,000.

After a three-day trial in Wichita County Court at Law No. 1, jurors awarded Mr. Clack $393,165, the full amount he requested. On Feb. 12, Judge Gary Butler entered a judgment of $445,365, which includes interest and court costs. Oncor may appeal.

The case is Oncor Electric Delivery Company, LLC v. Edward Clack, No. C-330-E.

Over the past year, the PUC has received new power line applications affecting Dallas-Fort Worth, Houston, South Texas, San Antonio and the Texas Hill Country.

Johns Marrs Ellis & Hodge LLP, a trial and appellate boutique with offices in Austin and Houston, focuses on representing landowners in eminent domain proceedings, commercial litigation, probate and appeals. Visit the firm online at http://jmehlaw.com/the-firm/.

For information on the power line judgment, please contact Kit Frieden at 800-559-4534 or kit@androvett.com.”

Abbott Boosts Road Budget by $4 Billion

21 Saturday Feb 2015

Posted by in Bryan, Houston, Navasota, Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, TxDOT

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Governor Greg Abbott made public roads a focal point during his first State of the State Address earlier this week and included it as the third of five emergency items Texas will tackle this year.

The new governor’s budget includes an additional $4 billion for Texas roads. The governor attributed this increase in budget to funding from Proposition 1 (read more here), the current State Highway Fund, and the reallocation of half of the state’s new and used vehicle sales taxes outlined in Senate Bill 5 (read more here).

As evident from the governor’s State of the State Address, transportation will remain at the forefront of politics this year. The Texas Department of Transportation (TxDOT) has a number of projects already in motion already and announced a list of potential projects earlier this year (read more here).

One of the projects picking up speed right now is the Aggie Expressway, expected to be completed within the next few years. This project will extend State Highway 249 from Houston to Navasota, where it will connect to Highway 6 in Grimes County. The expressway could also require up to nearly 600 acres of right-of-way acquisitions.

While a less congested path to Aggieland, or College Station, will certainly help fans commuting on game days, this path will come at a cost to many local land owners.

If you have any questions regarding this or any other road projects, please feel free to contact Justin Hodge (jhodge@jmehlaw.com). To read Abbott’s full Address, click here.

Coauthored by Justin Hodge and Ayla Syed.

Is ‘Actual Progress’ Being Made?

14 Saturday Feb 2015

Posted by in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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I believe governments should only use their eminent domain authority as a last resort, but the truth is, it’s a power rampant with abuse and misuse…Texas has a storied history of defending private property rights, and this legislation will preserve that proud tradition by holding government more accountable.” – Senator Charles Schwertner

Eminent domain laws in Texas may receive a slight tweak if recently-filed Senate Bill 479 passes into legislation. Senator Charles Schwertner, R – Georgetown, authored the bill that could more narrowly define “actual progress,” a broad phrase that currently requires those who invoke the power of eminent domain to make “actual progress” toward the intended use of the condemned land within 10 years.

After the 10-year period, the landowner can repurchase the land at the original price paid by the condemning entity. This may prove more difficult than necessary for the landowner as the law currently does not clearly define “actual progress,” and Schwertner hopes his bill will help remedy that ambiguity in an effort to better protect landowners in eminent domain cases.

“I believe governments should only use their eminent domain authority as a last resort, but the truth is, it’s a power rampant with abuse and misuse,” Schwertner said in an announcement of SB 479, according to the Austin Business Journal. “Texas has a storied history of defending private property rights, and this legislation will preserve that proud tradition by holding government more accountable.”

The proposed amendment to 21.101 of the Texas Property Code would define actual progress as including three of the following:

  1. The “performance of [a] significant” amount of labor on the property or other properties related to the development of the intended project;
  2. The purchase or obtainment of a “significant” amount of material for the property or other properties required for the public use project;
  3. The hiring of and/or “significant” work by an architect, engineer, or surveyor for the purpose of developing the property or other properties for the public use project;
  4. Application of state and/or federal funds for the project for which the property was purchased; or
  5. Application of a state and/or federal permit to develop the property or other properties related to the public use project.

(Read the proposed bill here). If you have any questions about SB 479 and its potential impact on eminent domain cases in Texas, please feel free to contact Justin Hodge at jhodge@jmehlaw.com

Coauthored by Justin Hodge and Ayla Syed.

Big Funds Keep on Turning, Texas Highways Keep on Stirring

07 Saturday Feb 2015

Posted by in Politics, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain, TxDOT

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A big move by Texas legislators could potentially funnel $25 billion over the span of a decade to the State Highway Fund – the second headline-making highway funding plan proposed this year.

Texas Senator Robert Nichols, R – Jacksonville, filed two pieces of legislation, Senate Bill 5 and its complementary constitutional amendment, Wednesday that could potentially move a portion of funds raised from new and used vehicle sales tax to the State Highway Fund.

Nichols serves as the chairman of the Senate Transportation Committee, and the bills were co-authored by Senator Jane Nelson, R – Flower Mound, the chairwoman of the Senate Finance Committee.

If approved by the State Legislature, the legislation would appear on the November ballot for voter approval and follow a path to implementation similar to Proposition 1 (Read our post on Proposition 1 here).

Additional highway funding would give TxDOT more leeway to expand and build upon current infrastructure and also allow it to finance new roadway projects. These projects often include condemnation proceedings to acquire land needed for expansion from current landowners. As Texas’ transportation infrastructure continues to expand, eminent domain will stay at the forefront of legal battles produced by new projects.

*Post title modified from “Proud Mary,” a song made popular by Tina Turner.

Coauthored by Justin Hodge and Ayla Syed.

The Texas Supreme Court reverses $5 million award to historical, family-owned beach in Galveston, Texas.

13 Wednesday Aug 2014

Posted by in Politics, Property Rights, texas condemnation, texas eminent domain, Uncategorized

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Although Porretto Beach survived the Great 1900 Storm, Hurricane Carla, Hurricane Camille, Hurricane Alicia, and Hurricane Ike, it was unable to endure the Texas Supreme Court’s recent hurricane-season battering.  The Court’s opinion shows just how hard it is for a landowner to win an “inverse condemnation case” in Texas.

There are two types of cases when the government takes property through eminent domain. First, there are physical takings cases like highway, power lines, and pipelines where landowners are absolutely entitled to just and adequate compensation under the Texas constitution.  Second, there are inverse cases, like Porretto, where the State does not physically occupy the property, but its actions have a real-world, negative impact on the ability to use the property.

In Porretto, the Texas Supreme Court goes to great length to avoid having the State “take” property.  The evidence showed that the State: (1) claimed ownership of the property through the General Land Office, (2) transferred ownership under the tax records to the State, and (3) leased a portion of the property to the City of Galveston.  If these steps do not constitute a “taking,” then a landowner is left with the question of what actually does.  The takeaway is that mere threats (and even some steps) are likely not going to be enough to establish an inverse condemnation taking in Texas.

In light of this ruling, Texas landowners must be very careful when negotiating and reaching agreements with the State.  Porretto is a perfect example of where the State may go back on its word!

You can read the full opinion here.

Tesoro Logistics Responsible for Recent Oil Spill, Landowner to Receive Compensation for Damages

24 Thursday Oct 2013

Posted by in JMEH Law News, Pipelines, Politics, Property Rights, Uncategorized

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A Texas-based oil company discovered a leak in one of its pipelines in North Dakota after a local farmer reported it to ND officials on Sept. 29, but the oil company did not spill this news until 11 days after discovering the pipeline rupture that released an estimated more-than 20,000 barrels of crude oil.

State officials initially reported a 750-barrel spill that the company in question, Tesoro Logistics LP, did not publicize because of the smaller initial estimate and what it considered to be a lack of environmental damage.

Kris Roberts, an environmental geologist with the North Dakota Health Department, was quoted in a New York Times article stating that Tesoro officials reported the spill to the state within 24 hours of first discovery and that the state does not have to release information of all oil spills publicly.

While Tesoro responded to the spill promptly, the cleanup process could take a couple of years and will cost an estimated $4 million. The local wheat farmer, Steve Jensen, who notified the State Department of Health of the oil spill after seeing crude oil coating the wheels of his combine, will also receive compensation for damages to his field that could keep his wheat crops out for a couple of years.  He and Tesoro are negotiating a settlement in regards to this matter.

The spill seems to have originated from a hole — about a quarter-inch in diameter — in a segment of the 20-year-old pipeline originally built by BP in 1993 but purchased by Tesoro in 2001, according to Reuters. The pipeline runs 35 miles within the state.

Many people have criticized Tesoro for not detecting the spill of about 20,600 gallons over 7.3 acres, or the equivalent of seven football fields according to the NYT, and the spill comes during an oil boom for the state following its 1951 discovery of oil. This spill surely will not help mitigate those concerned about the much larger Keystone XL pipeline expansion that will cross international borders and include 1,700 new miles of pipeline if approved. The Keystone Pipeline did not see its day in Congress during the debt-ceiling debates, and a decision on its expansion will likely not come until 2014.

TransCanada, the company heading the Keystone project, Tesoro Corp. and other pipeline owners cannot afford to slack on detecting leaks under the current political climate. These companies must employ vigilance and preemptive measures to mitigate environmental concerns and to protect landowners like Jensen whose income depends on the land surrounding oil pipelines.

Coauthored by Justin Hodge and Ayla Syed.

Note: Tesoro Logistics LP is a partnership formed by Tesoro Corp. 

To read more about the spill, please click here.

With the Keystone decision looming, will the President propose a quid pro quo?

03 Monday Jun 2013

Posted by in Pipelines, Politics

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To many, the ultimate approval of the Keystone XL pipeline project is inevitable. Environmentalists and oil and gas advocates have long been engaged in a heated debate that has narrowed its focus to TransCanada’s Keystone XL pipeline.

Here are a few of President Obama’s options: a) approve the pipeline and offer an energy-efficient tax incentive or alternative energy goal proposal for the future; b) approve the pipeline and disregard the cries of environmentalists; c) strike the pipeline and disregard upset oil and gas investors that are likely to pursue the pipeline’s construction anyways; d) strike the pipeline and offer some kind of proposal to alleviate what to advocates of traditional energy forms would seem like an utter crisis; e) indefinitely postpone the decision entirely. The problem with creating an additional proposal to his decision to strike or approve the pipeline is that it would require approval from Congress, which we all know has been facing much difficulty seeing eye to eye. Regardless of the path President Obama chooses, someone is bound to be upset; such is the nature of dramatic once-in-a-term decisions like this. Because of the opportunity’s rarity, the decision to keep or remove the contentious pipeline will leave a lasting impact on how the Obama legacy will be perceived. What is left undeciphered now is through which lens the President’s term will be remembered – will he be envisioned as the environmental advocate or the oil and gas subjugate?

To read about additional possible outcomes of this contentious debate, please click here.

City of Austin may pay Whittington $14.1 million for downtown block

06 Monday May 2013

Posted by in Politics, Property Rights

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After a grueling 14-year battle between Whittington and the State of Texas, the Texas Supreme Court deemed the 1999 condemnation of Whittington’s downtown block to, in fact, be lawful. A series of appeals from both parties prolonged this settlement, ending with the State paying a bargain price for the block that existed in Whittington’s family for a decade prior to condemnation. The $14.1 million is a steal for the State according to Whittington, who points out the court’s failure to take into consideration the amount of profit he could have made through his own development of the block. However, because the ultimate usage of the space by the State consisted of a parking garage and cooling facility for daily public use, the project was seen as maintaining the public good. The Court ruled that because the State did not resort to fraudulent or deceptive means to condemn the property, the process was fair and just. In the end, the State still has to pay an exorbitant $14.1 million for a single downtown block even though they won the case. Of course, to Whittington, the price is far below that true value of the land.

To read more about Whittington and the $14.1 million case, please click here.

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Court rules EPA can withdraw mining permits

25 Thursday Apr 2013

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The U.S. Court of Appeals for the D.C. Circuit in Mingo Logan Coal Company v. EPA handed the Environmental Protection Agency a big win Tuesday, overturning a lower court decision in a ruling that said the agency has the power to retroactively veto coal mining pollution permits.

You can read more about this story here.

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How the 2012 Presidential Election Can Affect You, the Landowner

09 Friday Nov 2012

Posted by in Politics, Property Rights

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With America’s new president decided, both sides of the energy argument speculate victories. Some oil and gas enthusiasts think President Obama is likely to pass TransCanada’s Keystone XL Pipeline in his second term now that the company has assured that the pipeline will not pass through a sensitive aquifer in Nebraska. At the same time, environmentalists are looking forward to the President’s motions towards clean energy, absent the use of fossil fuels. Whether President Obama will favor one side over the other is left to be revealed when Congress convenes in early January, but in the meantime, we do know the President plans on employing an “all of the above” strategy to solve the energy issue. This means no energy source is likely to be abandoned completely. This also means landowners will need to be far more wary when it comes to their property rights. Whether it is a wind farm or a pipeline, or anything in between, you have the right to just compensation for your land if a private company or the government decides to condemn it. Eminent domain laws were not set in place to favor one side over the other. Know your rights and how to fight back.

To read more about how the 2012 election will affect eminent domain, visit here.