Category Archives: texas eminent domain

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.

$1.74 Billion for New Roads in Texas to Help Meet State’s Growing Demand

30 Friday Jan 2015

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

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The Texas Department of Transportation (TxDOT) announced a list of potential projects last week that would utilize funds from the Texas Transportation Funding Amendment (also known as “Proposition 1”), which passed with 80% of the votes during the November elections.

Proposition 1 is projected to funnel about $1.74 billion to TxDOT projects from oil and gas tax revenues, money that previously went solely to the state’s “Rainy Day Fund.” Half of these revenues will continue going toward the Rainy Day Fund, but the other half will now help finance road projects.

TxDOT has allocated about $150 million of Proposition 1 funds to Austin, most of which will likely go toward expanding I-35, one of the nation’s most congested highways, by two lanes. TxDOT also earmarked $278 million for projects in Houston, and part of those funds could potentially help expand US-59 to a 6-lane highway.

Texas, especially areas in Houston and Austin, has seen some of the highest rates of population growth in the nation in recent years, and this growth comes hand-and-hand with expansion.

While Texan drivers may find some relief from rush-hour congestion in the near future, many of these projects may require the use of eminent domain to acquire property needed for expansion.

TxDOT has not yet finalized its list of projects and will continue to accept comments from the public on the projects proposed last week.

If you would like more information regarding these proposed projects, please feel free to contact Justin Hodge (jhodge@jmehlaw.com).

Coauthored by Justin Hodge and Ayla Syed.

Denbury Tug-of-War Continues

23 Friday Jan 2015

Posted by in Chambers County, Denbury, Fort Bend County, Harris County, Jefferson County, JMEH Law News, Pipelines, Power Lines, Property Rights, texas condemnation, texas condemnation lawyer, texas eminent domain

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Denbury Green Pipeline

The 120-mile “Green” Pipeline, completed in 2010, runs from Donaldsonville, Louisiana to Houston, Texas.

Despite the drop in oil prices, the tug-of-war between landowners and the Denbury Green pipeline company continues to play out in court in the landmark case that defined common-carrier status in Texas.

Texas Rice Partners, Ltd. v. Denbury Green Pipeline, involving Denbury’s right to invoke eminent domain to obtain the properties of Texas Rice Land Partners, Ltd., a consortium of rice farmers, was ruled in the pipeline company’s favor by both the 172nd District Court and the Texas Ninth District Court of Appeals in Beaumont, Texas, in 2011. These courts claimed that Denbury was indeed a common carrier, and, therefore, could use eminent domain to obtain land to build its pipeline.

The Texas Supreme Court, however, reversed those rulings, arguing that Denbury’s classification as a common carrier rested too heavily on a pipeline company simply checking a box on a one-page document for the Texas Railroad Commission (RRC) and that the RRC’s findings could not reliably and conclusively determine a company’s power to use eminent domain.

The Supreme Court remanded the case back to the district court late 2011, and the district court again ruled in favor of Denbury’s common carrier status in 2014. The case continued again to the appellate court in Beaumont, which heard oral arguments for the case last month. Denbury built the pipeline during this legal back-and-forth, but the landowners hope the appellate court will send the case back to the Supreme Court as the case has yet to be heard by a jury and that Denbury’s intent to serve as a common carrier at the time of condemnation has not been established (Read more here).

While the court of appeals has not yet ruled on this matter, the RRC announced new regulations for granting a T-4 permit – required for property condemnation by pipeline companies – effective March 2015 in an effort to better regulate this process. The new regulations will ask for more substantial information and supporting documentation from companies applying for the permit and enforce a new timeline for the application process (Read more about the new regulations here).

As laws and precedent for private companies to invoke eminent domain continue to change, landowners should try to stay up-to-date to better protect their property rights. In fact, we all should. The laws are changing quickly, and the tug-of-war between pipeline companies and landowners will impact us all.

Justin Hodge is a law partner in Houston, Texas. He focuses on eminent domain, condemnation and landowner defense. For more information, please see http://www.jmehlaw.com.  

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.

Why is this man smiling again? Perot family lands a sweetheart deal from TxDOT

15 Tuesday Apr 2014

Posted by in texas condemnation, texas eminent domain, TxDOT

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Texas Department of Transportation (“TxDOT”) officials said right-of-way acquisitions for its Loop 9 Southeast project in Dallas would not begin for another year, but one prominent developing company sold its property for a handsome cost to TxDOT while others in its position have been left in limbo.

Bill Mote, a landowner in the area who has not yet received an offer for his property, reported to the Dallas Morning News that he has not been able to build on his land or sell it for eight years now because of TxDOT’s interest in the area. The landowner, also a commercial real estate owner, found a state land sale document for a deal in 2010 between TxDOT and Ross Perot Jr.’s firm, Hillwood Development Company.

Hillwood received $4.4 million for 34 acres of land in the sale that took place five years before TxDOT stated it would begin right-of-way purchases. This discrepancy raised a few eyebrows among landowners like Mote, especially considering the development firm’s long-term relationship with TxDOT and that this was the only such sale for this project.

This sale was also unique in that it is one of the few open options contracts offered by TxDOT that guarantees the landowner half of the agreed price regardless of whether the project moves forward. The other half will be paid later if the landowner agrees to stop development, the Dallas Morning News reported on Feb. 16th.

TxDOT and Hillwood officials both stated that the land owned by the firm was in a known key area for the highway expansion project and that stopping development by Perot Jr.’s company helped save TxDOT money from having to purchase the land from future homeowners in the subdivision. While this deal may seem to make sense, it still offers Hillwood an unfair advantage not extended to others in the area.

Mote and other landowners like him who may not have the luxury of a cordial and long-term relationship with TxDOT deserve the same treatment as Hillwood, and this situation, brought to light by Watchdog, shows the depth of discretion allowed by eminent-domain laws in Texas. Landowners must protect their rights in condemnation, but TxDOT also has the responsibility of treating each property owner with the respect it gives to high-profile landowners.

Coauthored by Justin Hodge and Ayla Syed.

Shell’s Ho-Ho Pipeline Ruptures in Jefferson County, Texas

11 Tuesday Mar 2014

Posted by in Pipelines, Property Rights, texas condemnation, texas eminent domain

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A construction crew “accidentally pierced” Shell’s pipeline on Thursday afternoon, resulting in a 364 barrel oil spill on a property in Port Neches, Texas near the intersection of Highway 136 and Interstate 366 (about 100 miles east of Houston). Emergency crews were deployed to the scene and are using absorbent booms to contain the oil. The scale of environmental damage to the property is not immediately known.

The Houma-to-Houston line transports 360,000-barrels-per-day from Port Neches and terminates in Houma, Louisiana. Last year, Shell completed a reversal of the pipeline’s flows. It now carries oil from Texas to Houma. Shell discovered another leak near one of the pipeline’s pumping stations in Channelview, Texas, in February.

These types of risks must be considered when property is condemned for a pipeline. As the Texas Supreme Court explained in Zwahr, eminent domain is the property owner’s one-and-only chance to be made “whole.”