By Jennifer Whitlock
Field Editor
In the latest development in an ongoing eminent domain dispute, Texas Attorney General Ken Paxton has sided with private property owners.
At issue is whether Texas Central Railroad, a private company and developer of a proposed high-speed rail project connecting Dallas and Houston, qualifies under the Texas Constitution’s definition of a rail company and therefore is eligible to exercise eminent domain authority to build the 240-mile rail line.
Landowner James Miles sued Texas Central after the company attempted in 2015 to secure permission to survey the 600 acre-tract he owns in Leon County. If Texas Central’s proposed route is constructed, it would bisect Miles’ property with a 100-foot right-of-way.
His suit is now being reviewed by the Texas Supreme Court after opposing lower court and appellate court decisions. Miles claimed Texas Central cannot use eminent domain since the company is not currently operating a railroad. That means the company doesn’t meet the definition of a railroad company or an interurban electric railway company as described under the State of Texas Transportation Code.
For its part, Texas Central believes it qualifies as a railroad company because it’s engaging in railroad activities with a “reasonable probability” the project will eventually result in trains running on tracks.
The Thirteenth Court of Appeals in Corpus Christi’s verdict hinged on the definitions of “railroad company” and “interurban electric railway company” offered in the Texas Transportation Code.
In a legal brief filed at the invitation of the Texas Supreme Court, Paxton argued the court should overturn the appellate court’s decision siding with Texas Central.
This would effectively ban Texas Central from exercising eminent domain authority as it seeks to secure land to construct rail lines.
“The Legislature has delegated to ‘railroad companies’ the power of eminent domain, which includes the power to enter, examine and survey a person’s land that may be used for the company’s proposed railway. The [companies] may only make preliminary examinations and surveys of private landowners’ properties for the purpose of constructing and operating a bullet train if they are either railroad companies or interurban electric railway companies,” he wrote in the brief. “In the State’s view, [Texas Central Railroad and associated company Integrated Texas Logistics] are neither.”
Over the course of the 46-page brief, Paxton laid out arguments as to why Texas Central and its associated company do not qualify for railroad status in the state of Texas.
The first definition of “railroad company” refers to currently operating railroad companies seeking to expand routes, according to the attorney general’s argument.
“But Respondents are not operating anything resembling a railroad. That they might possibly do so someday is not enough,” Paxton said.
The second definition of “interurban electric railway” refers to what Paxton’s team categorized as small, local, electric railways designed to transport passengers between a city and its surrounding areas, like operations commonly called commuter rails. The cross-state high-speed train does not fit the definition, according to the state.
“They are not railroad companies because they do not operate a railroad. And they are not interurban electric railway companies because the high-speed train they intend to operate is not the small, localized, interurban railway expressly contemplated by statute,” the attorney general’s office wrote. “The respondents also cannot satisfy constitutional constraints upon private actors seeking to employ eminent-domain powers because they cannot show a likelihood that they will procure financing to complete the project.”
The state ended its argument by saying Texas Central also cannot satisfy constitutional constraints requiring private companies to demonstrate a “reasonable probability” they will complete the public-use project.
“Simply put, the respondents failed to establish a likelihood that they will ever succeed in raising the substantial capital required to complete their high-speed train, let alone that such a train will one day actually operate and serve the public interest,” Paxton concluded.
The legal brief is available in its entirety here.
Resources for landowners facing eminent domain proceedings are accessible from Texas Farm Bureau’s at texasfarmbureau.org/eminentdomain. A landowner’s guide to eminent domain, the state of Texas landowner bill of rights, checklists and more are available.