Roads, Reading, Writing & Arithmetic

The Texas Department of Transportation (TxDOT) was sued this week by seven outdoor advertising companies for failing to do an impact study (an assessment of the environmental and capital costs associated with certain government projects) of public construction projects outside Dallas.  TxDOT was required to do one to protect the property interests of the owners under the Private Real Property Rights Preservation Act (PRPRPA).  The businesses argue there has been a “taking” of their property interests because the highway improvements and repairs block the visibility of their billboards and impair their ability to reap profits.  A “taking” occurs whenever government takes ownership of real property through its actions which reduce the property’s access or value, and it must to give just compensation for the value of the property.  Both our federal and the state of Texas constitutions prohibit the taking of property without compensating the owner, and along with statutory laws like PRPRPA, these laws are designed to limit government encroachment on property rights.  Texas general counsel (the attorney for the state) argued in response to the plaintiffs’ complaint (the list of allegations by the businesses are suing) that the government cannot be sued, but we will see what a district court judge says. Even so, the construction project continues while the litigation moves forward.

And speaking of moving forward, the Texas Senate Education Committee met this week in advance of the legislative session that begins in January 2013. Texas, because of its biennial session only meets for 140 day in odd numbered years, and that means that it is difficult to address complex policy decisions like education reform.  So even though the legislature is not technically in session, the policy committee responsible for legislative oversight (the review of laws and implementation of those laws by legislators) continues to address concerns about Texas education, including budget deficits and concerns about overall educational quality.   Texas currently ranks 32^nd in the country for education, but the committee is considering adding on longer school hours and additional days to the calendar.

Geography Demography

The rugged individualistic subculture of Texas and our beliefs in personal liberty, property rights, self-reliance, and free competition means that sometimes those values clash.   Texas’ population growth also means more legal battles pitting landowner property rights against business growth as the state’s population expands and development brings competing values into conflict.

Witness the most recent tug-of-war between a northeast Texas farmer, Julia Trigg Crawford, and a Canadian pipeline company (TransCanda) seeking to run a pipeline run through Crawford’s property.  The dispute illustrates the tension between economic development and eminent domain-the legal principle that federal, state, county, or local government authorities have the power to take private property for public use after paying just compensation (the fair market value decided by legal proceedings) to the property owner.   Air, water, and land rights are subject to eminent domain.

Crawford’s case is just one of several in recent months where corporations and public entities are laying claim to private property because of expanding economic capacity or natural resource rights.  The boom in hydraulic-fracturing and wind-power which both require pipelines or transmission lines across rural regions has also contributed to more disputes.

Hydraulic-fracturing or “fracking” is the process of injecting a mixture of sand and water into underground cracks to force more oil and gas to flow into a reservoir where it can be extracted.  Increasingly there are concerns about the environmental impact and safety of such procedures, but fracking has increased both oil and gas production and revenues.   The Eagle Ford Shale area (San Antonio) boasts revenue of $25 billion last year alone, and the creation of 50,000 jobs, while the Barnett Shale (Ft. Worth) brought in $65 billion in 2011 and has created over 100,000 jobs.

While recent eminent domain cases have tended to favor the government, not all cases have been adverse to property owners—an East Texas farmer successfully contested a company’s right to build a carbon-dioxide pipeline across his land.

And not all the disputes are about pipelines.  Recent cases include a wide array of issues.

1) The City of Austin taking over a downtown attorney’s property for use as a parking garage and chilling station

2) A Houston conflict about stopping a 21-story luxury tower from being built in a residential neighborhood

3) The City of Beaumont’s right to demolish a neglected building

4) A property owner trying to keep the public off her beachfront property that had eroded all the way up to the front of her house

5) Questions about whether landowners own the groundwater beneath their land

Where does it go from here?

For Crawford and TransCanda that’s up to a pending court decision out of the Sixth Court of Appeals for the state of Texas. No matter what, an appeal is most likely to ensue.

For us, that depends on the geography and demography of Texas.  After all, land use issues ultimately are the result of competition over natural resources and the changing nature and needs of the people who need those resources. Last legislative session, Senate Bill 18 strengthened requirements for businesses wanting to use eminent domain powers.   Guess that means it’s all up to we the people.