Friday, June 22, 2007

"HB 2006 would not have enriched eminent domain attorneys."

Texas Farm Bureau Responds, Clarifies HB 2006 Veto


Comments: Billy Howe,Texas Farm Bureau State Legislative Director

Eye on Williamson County
Copyright 2007

To an outside observer, it would seem that the Hegar amendment was the cause of Governor Perry’s veto. However, it was not. The Texas Farm Bureau legislative team worked closely with Representative Woolley and Senator Janek throughout the session. Therefore, we were privy to the “blow by blow” events.

When HB 2006 passed the House to the Senate, it included language that “any factor” a willing buyer and seller would consider could be used in determining compensation. One of those factors could have been compensation for diminished access to your property.

Of course, diminished access is the reason given for the veto. The condemning authorities went to Senator Janek and convinced him to change the language. The changes basically put everything in HB 2006 back to current law, so then, what would have been the point to passing a bill that did nothing to help property owners?

Texas Farm Bureau and others went to Senator Janek and explained the impact of the changes. Senator Janek asked us to work on new language to fix the problem. He then took the new language, which is know now as the “Janek amendment” to TXDOT and the Governor’s staff. TXDOT immediately objected claiming it would cost $100 million more a year because they would have pay for diminshed access.

Which by the way is the same issue the Hegar Amendment addressed.

So, even though the governor and TXDOT want to focus everyone on the Hegar amendment, they were making the same claims on the Janek amendement a week before anyone ever saw the Hegar amendment. If you go back and read the veto proclamation you will notice that it speaks of two amendments, the other amendment was the Janek Amendment.

Senator Janek and Duncan met with stakeholders from both sides Saturday and Sunday before HB 2006 came to the Senate floor for a vote. During those meetings, they requested numbers to substantiate the $100 million cost claims. Of course, now that cost claim has risen to a $1 billion. Those numbers were never produced, which is why Senator Janek moved forward with his amendment.

Fast forward to Representative Woolley and the House.

Obviously, TXDOT and the Governor’s office was not pleased the Janek and Hegar amendments were added to HB 2006. It was at this point the first threat of veto was made.

Representative Woolley told them to provide her language to fix their concerns, but she was not interested in any language that did not compensate the landowner for the devaluation of their property. She felt strongly that the landowner should be paid for the “injuries” suffered from the condemnation.

One of the oldest tricks in the book to kill a bill is to “slow play.” You negotiate it to death by dragging it out until there is no time left. Therefore, Representative Woolley gave TXDOT and the Governor’s office a deadline, and they did not meet it. Representative Woolley refused to let them kill her bill by running out the clock.

The bottomline is that had Representative Woolley agreed to strike the Hegar Amendment, there still would not have been a deal because they also opposed the Janek Amendment.

And, let’s not forget that they tried to get Senator Janek to strike the original compensation language in the bill as well. Without those amendments, property owners would not have received one more dime in compensation than what they can get today under current law. And, that is exactly what the opposition wanted. Howevever, Represenative Woolley had been clear from day one when she filed HB 2006 that the bill must provide fair compensation to property owners. She did not intend to pass legislation leaving the status quo. In our opinion, her unwillingness to bow to political pressure and gut her bill showed great leadership.

The part of the veto proclamation addressing the Janek amendment was the
first amendment mentioned. The excerpt below addresses the Hegar Amendment, but let me reiterate that these two amendments have the same effect. The Hegar amendment was just more specific.

With regards to the rural issue with diminished access, it has a huge impact. As the TTC and other toll roads are envisioned, they are limited access roads. They will not have access roads, and they “dead-end” existing state highways, FM roads, and county roads unless the entity building the road finds that the road is “significant” enough to build an overpass. So, rural landowners may find themselves on an FM that stops at the TTC or toll road.

As far as being left with the “status quo” perhaps I need to clarify a little. HB 2006 had some good provisions on bona fide offers and public use. However, a landowner can rectify that situation under current law by hiring an attorney.

I know that no one really wants to hire an attorney, but even had HB 2006 passed, condemning entities would have still bet on this aversion to hiring an attorney. It is their standard operating procedure. They know that a small percentage of landowners will fight. As a result, the bad actors would still have made low offers and taken property for questionable purposes. Even if HB 2006 had passed the landowner’s only true recourse to ensure the law is applied is to take the condemning entity to court. Sad, but true.

With regards to public use, we already have a strong conservative definition due to a Texas Supreme Court case in 1905. The problem is that the condemning entity buys off the property owner before the case gets far enough along in the court system to strike down the condemnation. So, its not that condemning entities can take property illegally, they just make the landowner an offer they can’t refuse to keep the case from the Appeals or Supreme Court.

So, even if HB 2006 would have passed with the definition of public use, you don’t stop the
condemnation unless you are willing to fight it to the Texas Supreme Court. We would love to find a landowner willing to make such a fight. Believe me.

So, had HB 2006 passed without the new compensation language, landowners would still be under the status quo. The bill would not have really changed how condemning entities operate.

We completely agree that next session the strategy is to pass the bill early. Representative Woolley has indicated to us this week that she is committed to doing just that next session. Since all the negotiations that took so long on the House side are now done, hopefully the bill canmove very quickly next session.

Oh, one last thing that should be cleared up. HB 2006 would not have enriched eminent domain attorneys. They work on a contingency basis. They typically receive 30% of what they get the property owner above the offer made by the condemning entity.

Had HB 2006 worked as we hoped, fewer cases would have gone to court, and there would have been less of
a difference between the offer and the condemnation award. The result would have been that eminent domain attorneys would have received less income, not more.

It is the condemning entities that force condemnations to court that are enriching eminent domain attorneys. It
is interesting that they vilify attorneys who are trying to help property owners protect their property right to fair and just compensation.

Shouldn’t the entities taking private property without making the property owner whole be the ones vilified?

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