Here's the State of Texas's amicus brief in support of the property owners in the case now pending in the Texas Supreme Court about whether the developer of the proposed Dallas-Houston "bullet train" may exercise the delegated power of eminent domain as a "railroad company" or an "interurban electric railway company" as those terms are defined by Texas statutes.
The brief argues that no, this private entity isn't a railroad company because that definition requires that the rail be presently operating, and this outfit isn't. The AG also argues that the company doesn't qualify as an interurban electric railroad because a bullet train isn't a "small, localized, interurban railway expressly contemplated by statute." Br. at 14.
And in what is to us the most interesting part of the brief, Texas also argues that an exercise of eminent domain power by this private entity would run afoul of the state constitutional requirements set out in Denbury Green Pipeline-Tex., LLC v. Tex. Rice Land Partners, Ltd., 510 S.W.3d 909 (Tex. 2017), and that a private entity cannot employ the power unless there's a reasonable probability that it will actually operate a railroad in the future. Thus, it isn't enough that the company describes itself as a railroad. Here, the brief argues, the evidence shows only that the company eventually operating a railroad is "a possibility, and not a reasonable probability." Br. at 37.
Denbury’s reasonable-probability rule for meeting statutory requirements “safeguards” a core concern of Texas Constitution article I, section 17: there can be no taking of private property by private corporations unless the taking will serve a public purpose. Id. at 194–95; see Tex. Const. art. I, § 17 (stating “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made”). “It is fundamental that a person’s property can-not be taken for the benefit of another without a justifying public purpose.” Coastal States, 309 S.W.2d at 833 (citing Marrs v. R.R. Comm’n, 177 S.W.2d 941, 949 (Tex. 1944)). The public is protected if the private entity seeking to condemn land to build a railroad line first demonstrates that it is reasonably probable the entity will ultimately become an operator of a railroad or interurban that will serve the public after the railroad or electric-railway line is constructed.
Otherwise, a private entity that condemns land for use in constructing a railroad line but that does not ultimately become an operator of a railroad or electric railway after completing the project ill-serves the public interest, in violation of the Texas Constitution. That is because the private entity will escape accountability to the public, not to mention private landowners whose property is condemned, if the private entity is not the operator of the proposed railroad or electric railway.
Br. at 38.
Check out the entire brief. It's not often that we see a government come in on the side of the property owner. Welcome back to the fight, State of Texas.
More here ("In Texas Supreme Court case, state argues that Dallas-Houston bullet train developer can’t use eminent domain") from the Texas Tribune.
Brief for the State of Texas as Amicus Curiae, Miles v. Texas Central RR & Infrastructure, Inc., No. 20-039...
