Tag Archives: texas eminent domain

New RRC Rules Require Pipeline Companies to Do More than Simply Check a Box

13 Friday Mar 2015

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

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The Texas Railroad Commission’s (RRC) new pipeline permitting rules that require oil companies to verify their common-carrier status went into effect last week, marking a significant move away from the previous rules that simply required companies to check a box to claim common-carrier status.

The RRC has maintained that its T-4 permit only allows a company to operate a pipeline and does not automatically entrust the company with the power of eminent domain. The limit of this power, the RRC says, remains with the court as it always has.

The new rules will require up-front proof of common-carrier status. Pipeline companies previously only offered proof that they carried unaffiliated third-party product if and when its common-carrier status was challenged.

This rule change comes after the landmark 2012 case in which the Texas Supreme Court ruled that a pipeline company must do more than show its T-4 permit as proof of its common-carrier status. (Texas Rice Land Partners, Ltd. v. Denbury Green-Texas, LLC, 363 S.W.3d 192 (Tex. 2012)).

If you have any questions about the new rules or anything related to eminent domain, please feel free to contact Justin Hodge (jhodge@jmehlaw.com).

Coauthored by Justin Hodge and Ayla Syed.

Texas Independence Day

02 Monday Mar 2015

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As Texans, today we pause to honor those who fought for our independence.  Texas Independence Day symbolizes the strength of those who call Texas home – a resolve to fight for what is fair and right.

Five months prior to the day Texas gained its independence, a fearless group of Texans, who referred to themselves as “Texians,” successfully resisted Mexican forces who were ordered to take a small bronze cannon mounted to the blockhouse in Gonzales, Texas.  In a bold act of defiance, the Texians fashioned a flag containing the phrase “Come and Take It” along with a black star and an image of the cannon.

During that October night, the Texians crossed the river at approximately 7 pm. It is reported that a thick fog rolled in at midnight, delaying the Texian army. Just before sunrise, the Texians reached the Mexican army. With the darkness and fog, the Mexican soldiers could not estimate how many men had surrounded them. At dawn, the Texians emerged from the trees and began firing at the Mexican soldiers. After a failed attempt at a “mediated settlement,” the Texians fired their cannon at the Mexican army. The Mexican army retreated realizing it was outnumbered and outgunned.

Today, Texans battle government and private takings of land for pipelines, power lines, and road projects by condemnation.  There is very little difference between the Mexican army taking the cannon and a private company improperly using eminent domain to take property.  See Texas Rice Land Farmers vs. Denbury Green Pipeline, 363 S.W.3d 192 (Tex. 2012).  Let us celebrate our founding “Texians” wisdom in Article I, Section 17 of the Texas Constitution.  It states:

“(a) No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:

(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:

(A) the State, a political subdivision of the State, or the public at large; or

(B) an entity granted the power of eminent domain under law; or

(2) the elimination of urban blight on a particular parcel of property.

(b) In this section, “public use” does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.

(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.

(d) When a person’s property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.”

As Texans, our Constitution guarantees us the right to “adequate compensation” for the taking of property through eminent domain.  Because the “Texians” bravely fought for this right, today we celebrate Texas Independence Day and honor our fallen heroes.

Justin Hodge is a partner with Johns Marrs Ellis & Hodge LLP in Houston, Texas.  He defends against government and private takings throughout the State of Texas.

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.

$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.

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.”

Texas Man Attempts to Take a Personal Stand Against Keystone XL Pipeline

28 Friday Dec 2012

Posted by in Pipelines, Property Rights

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Energy experts like Amy Jaffe from UC Davis see oil and its consumption as a lifestyle that we have adopted. In order to maintain this lifestyle, energy infrastructure is vital for the public good. Landowners facing an eminent domain battle with TransCanada and its Keystone XL pipeline don’t exactly agree, especially when the infrastructure costs them their homes. David Daniel owns a 20-acre plot outside of Winnesboro, Texas whose defense has taken extraordinary heights. Eight stories high, in the trees that surround the condemned land, is Daniel’s platform for a last stand. As a carpenter, Daniel did what he knew best. His “airborne fortress” is a series of seven treehouses connected by cables and ropes spanning 500 feet. TransCanada’s daily aerial surveys caught Daniel in action and sued him, eventually forcing a settlement in favor of the company.

Although Daniel’s action was in some ways like Custard’s Last Stand, Texas property owners are not without some remedy to stop pipelines made solely for private use. The Texas Supreme Court has allowed landowners a “Denbury” challenge, which, if successful, could potentially shut down an entire pipeline. Or, at the very least, allow landowners like Daniel to test the pipeline’s right to be on their property. Texas eminent domain law is unique and it is very important for landowners to consult with attorneys who focus in this area.

To read more about Daniel’s fight, please click 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.

A Split Decision – Two Sides of the Same Pipeline

05 Monday Nov 2012

Posted by in Pipelines, Property Rights

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When it comes to the construction of TransCanada’s Keystone XL Pipeline in East Texas, landowners have a split opinion. While people like Gabe Cordova recognize the dangers in the type of oil proposed to be transferred through the pipeline in his backyard, there are others like Marshall Treadwell who are not bothered by the presence of another pipeline on their land through an existing energy carrier. So is it resignation that allows for this acceptance? As a landowner, you have the right to fight back and attain just compensation in the Texas eminent domain process. TransCanada may offer a few thousand for your land, but is that enough to compensate for the continuous and daily fear of the potential hazards a pipeline transporting oil from tar sands? A 2010 crude oil pipeline leak in Michigan cost over $800 million to clean up, according to the Environmental Protection Agency. In addition, more than 300 people faced health problems because of this same leak. TransCanada may claim its new pipeline is less likely to leak, but even the printer in your office stops working just when you least expect it. There will always be two sides to an issue; it’s whether you’ve asked all of the right questions that will determine on which side you stand.

To read more about Cordova and Treadwell, visit here..