In the eminent domain case before the Texas Supreme Court, the Texas solicitor general has weighed in on the side of the landowner.

The Texas Supreme Court in October requested that Judd Stone, the solicitor general, submit a brief in the case of Miles v. Texas Central, and he said that while “The State takes no position on the wisdom or utility of building a high-speed train between Dallas and Houston…private actors who seek to seize private property using eminent-domain powers must strictly comply with statutory and constitutional conditions governing the use of such powers. Respondents [Texas Central] have not.”

The office of the solicitor general is within the attorney general’s office and is responsible for handling appellate litigation for the state.

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 his brief, Stone argues that Texas Central does not qualify as a railroad with the right to exercise eminent domain authority under the Texas Transportation Code. 

He disagreed with the Court of Appeals analysis that “even though the Respondents do not currently own any trains, do not operate any trains, and have not constructed any fixed railroad tracks, the court still concluded that they are railroad companies because they proved that they will ‘be able to create and operate a railroad in the future.’”

Furthermore, the state also believes “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.”

The brief goes on to argue that the law requires an entity to show a reasonable probability that it will operate a railway in the future. “The whole point of the reasonable-probability test is that, before the awesome power of eminent domain can be exercised in the railroad context, there must be a reasonable probability that the private entity, and would-be condemnor, is a railroad or interurban serving the public interest.”

In this case, the solicitor general argues that Texas Central has not done so.

“Jim and Barbara Miles are but one family of thousands between Dallas and Houston that have been threatened by Texas Central’s self-proclaimed eminent domain authority for the past seven years,” Kyle Workman, chairman of the board for Texans Against High-Speed Rail, said.  

“The amicus brief submitted by Solicitor General Stone and [Attorney General] Paxton in the Miles case is a very strong validation that the State of Texas is standing on the side of Texas landowners and private property rights, a major development that we know the Texas Supreme Court will carefully and thoroughly consider in this matter,” he added.

“Texas Central respects the right of the Solicitor General to disagree with the Court of Appeals ruling concluding that Texas Central is a railroad company under Texas law,” a spokesperson for Texas Central said in an email. 

“We are confident that the Texas Supreme Court will agree with the Court of Appeals that Texas Central is a railroad company under Texas law, with the rights and authority that come with being a railroad company.” 

In June 2021, the Texas Supreme Court denied the landowner’s appeal, but granted a motion for rehearing in October.

Oral arguments in the case are set for January 11, 2022. The case has been ongoing since the trial court ruling in 2018.

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