In May 2020, the 13th Texas Court of Appeals ruled that the high-speed rail project from Dallas to Houston can exercise the power of eminent domain because it qualifies as a railroad under Texas law.
In June 2021, the Supreme Court declined to hear the case, but it granted a motion for rehearing in October and set the oral argument for this week. At this week’s hearing, Justices John Devine and Debra Lehrmann were not present, and Justice Jane Bland recused herself.
After the hearing, landowners Jim and Barbara Miles said in a statement to The Texan, “[W]e were encouraged by the scrutiny the justices gave to each argument. We appreciate the thorough nature of the discussion and the time the Court dedicated to hearing our case. Protecting private property rights deserves such time and attention, and we look forward to prevailing in this matter.”
“Our presentation to the Justices of the Supreme Court of Texas went well. We appreciate and respect the time they have dedicated to this matter that is important to both Texas Central High-Speed Rail and the State of Texas. We feel strongly that we are on the right side of this argument and we are looking forward to the Court’s opinion,” Texas Central told The Texan.
Many of the arguments centered on how the court should interpret the language of statutes enacted by the Texas legislature, including the definitions of a railroad and an interurban electric railroad.
The landowners’ attorney, Jeff Levinger, argued that Texas Central does not meet the definition of a railroad nor an interurban electric railroad and therefore, should not have eminent domain authority. He contended that Texas Central needs to be actually operating trains on tracks to be considered a railroad, but added that they could be operating those trains in other states in order to qualify.
He pointed out that Texas Central is not operating trains and is lacking money to finish the project. It has yet to apply to the federal Surface Transportation Board for a permit, he said, because that would require Texas Central to reveal information about its finances, which Levinger suggests are inadequate to complete the project estimated to cost $30 billion.
Levinger also emphasized that if there is any question or confusion about the law of eminent domain, the statute ought to be construed in favor of the landowner.
Texas Solicitor General Judd Stone, who was asked by the court to submit a brief in the case on behalf of the state, argued that operating a railroad does not require the company to own the tracks or even the trains. He also told the court that before a taking is allowed, there needs to be a public use involved. When a private party has been granted eminent domain authority, he said, there is an even heightened level of scrutiny about the likelihood of public use.
Texas Central’s attorney, Marie Yeatts, said that the petitioners are misinterpreting the Texas Transportation Code’s definition of a railroad and that the statute is referring to a railroad enterprise. She said that Texas Central has done “everything reasonable that they can be expected to do up to this point” and is not a sham operation.
She also asserted that Texas Central has hired experienced companies, including the Japanese Rail Company, to help with the railroad design, building, and operation.
When asked by the justices about concerns that they’d be establishing a low threshold to become a railroad and thus have eminent domain authority, Texas Central replied that they are operating an enterprise, have spent hundreds of millions of dollars, and that any concerns about the company’s finances will be vetted by the federal Surface Transportation Board before Texas Central is granted a certificate for construction.
She disagreed with Stone about needing funding upfront to prove operation of a railroad, adding that the continuing litigation over whether Texas Central has eminent domain authority has slowed private investment.
Texas Central believes that the state legislature has built-in protections for the landowners in the eminent domain laws, allowing them to buy back land at the original price if a project doesn’t come to fruition.
“We tried very hard to deal with landowners along the route…but the question is whether we’ll allow those who will not [agree to contracts] to prevent Texas from getting the benefits from this train,” Yeatts said.
Update: The piece has been updated with a statement from Texas Central.
Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.
Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.