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Apparently, we’re still litigating whether Texas Central is a railroad

I admit, I’m a bit confused by this.

The Texas attorney general’s office has put its weight behind a landowner’s case against the companies developing a controversial Dallas-Houston bullet train, arguing they can’t force people to sell parcels needed for the high-speed rail project.

Weighing in on the matter at the invitation of the Texas Supreme Court, the attorney general’s office offered the latest twist in the nearly decade-long fight over a 240-mile line that would connect Dallas and Houston. While the project has picked up support from leaders of urban areas, it’s encountered hard resistance from residents of the rural counties on its proposed path.

One of those residents, Leon County landowner James Miles, sued Texas Central after the private company sought permission to survey his 600-acre property in 2015 as part of its efforts to examine the land for the project. Miles asked the courts to declare that the company did not have the right to enter his property because it does not have the eminent domain authority granted to railroad companies.

He won at a trial court, but the legal dispute reached the Texas Supreme Court after a state appellate court in Corpus Christi sided with Texas Central and a related company.

In a legal brief filed with the Texas Supreme Court on Friday, deputies for Texas Attorney General Ken Paxton argued the high court should reverse that appellate decision and rule in Miles’ favor because the companies fall short of the Texas Constitution’s definition of a rail company.

“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,” the state wrote in its brief. “In the State’s view, the [companies] are neither.”

That leaves them with “no authority to enter, examine, survey or condemn Miles’ land,” the state wrote.

I am confused because at last report, the Supreme Court had declined to review that 13th Court of Appeals’ verdict. I Am Not A Lawyer, but right there in the story that I blogged about was the clear suggestion that this was the end of the road for that case. However, now that I see this story, a bit of googling shows that the Supreme Court granted a motion for a rehearing, which you can see here. It doesn’t seem to me that any new issues were raised by the Miles plaintiff, but what do I know? In any event, this explains why the AG brief says it is in response to “the Court’s letter of October 15, 2021 inviting the Solicitor General to express the views of the State of Texas”. Oral arguments for this are set for January 11. If any of you lawyers out there want to shed some extra light on this, by all means please be my guest.

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4 Comments

  1. Jules says:

    Apparently it’s rare for SCOTX to agree to hear a case after it’s been turned down, but it happens.

    The State has filed an amicus brief (as requested by SCOTX) supporting the landowner. Here are the opening paragraphs:

    “The State takes no position on the wisdom or utility of building a high-speed train between Dallas and Houston. But private actors who seek to seize private prop-erty using eminent-domain powers must strictly comply with statutory and constitu-tional conditions governing the use of such powers. Respondents have not.

    In the State’s view, Respondents failed to demonstrate that they are either “rail-road company[ies]” or “interurban electric railway compan[ies]” authorized to ex-ercise eminent domain under the Transportation Code. The first category refers to currently operating railroad companies seeking to expand their routes. But Respond-ents are not operating anything resembling a railroad. That they might possibly do so someday is not enough. The second category refers to small, localized, electric rail-ways that are designed to transport passengers between a city and its surrounding areas. Respondents’ proposed multi-billion dollar, cross-state, high-speed train does not fit the bill.

    Respondents also cannot satisfy constitutional constraints requiring private ac-tors to demonstrate a “reasonable probability” that they will complete their 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. This Court should accordingly reverse and render judgment for Miles.”

  2. Sandra G Moore says:

    I’ve wondered…why Dallas? Why not Houston to Austin and Houston to San Antonio and then San Antonio to Austin? Have environmental impact studies taken place? An inquiring mind would like to know

  3. Jules says:

    Sandra, yes, there has been a DEIS and FEIS for the project by the FRA. Both, very shoddily done. The DEIS claimed there would be BILLIONS of sales tax dollars flowing to the state and local governments from ticket sales – except there is no sales tax on transportation.

    The DEIS made bad errors in calculating cars off the road – partially caused because the FRA could not see Texas Central’s secret ridership report and made up numbers that should readily be available in that report. These errors were carried over to the FEIS, which made the emissions calcs wrong. They claim 15,000 cars will be removed from I45 per day if the hsr is built, in reality, the number would be less than 1,000 cars a day.

    Why Dallas? Because the founders of Texas Central mis-read a report on so-called “super-commuters” and said that there were 28 million vehicles commuting between Houston and Dallas yearly. TxDOT numbers show less than 12 million vehicles total on the lowest point of I45 – this includes big trucks, local and through traffic – not just people driving between Dallas and Houston.

  4. voter_worker says:

    With hindsight, ridership and likelihood of getting built might have been improved by proposing an IH 10 route to SA, with a leg heading north from Sequin to Greater Austin along 130. That leg could theoretically then be extended north to both Fort Worth and Dallas. The eminent domain component of the current plan has doomed it, in my opinion.