"Texas SB 18 expands the number of entities who can take your land."

Buyer beware: Perry’s eminent domain bill a disaster for landowners



1/12/11

Terri Hall
Examiner.com
Copyright 2010

Stop the presses...Rick Perry declared a state of emergency over eminent domain. Yet, no one, not even the press, believes Perry sincerely wants genuine eminent domain reform to protect property owners from abuses and takings for private gain. Declaring it an “emergency” allows the bill to be on a fast track, which is perhaps by design to avoid needed scrutiny.

Ever since the Ft. Worth Star-Telegram Mike Norman expose’ of Rule 37 abuses by oil and gas companies hit the fan a week ago, is it any wonder that the Perry-inspired eminent domain bill, SB 18, being carried by senators Craig Estes and Robert Duncan is a handout to oil and gas firms and declared an “emergency”?

In another part of the Texas, in case you haven’t heard of it yet, the Keystone tarsands oil pipeline project is creating a Trans Texas Corridor level uprising in East Texas, and many landowners are already at war with both our state and federal government about the safety of the pipeline, the eminent domain abuses by TransCanada, the company perpetrating the project, and the gestapo tactics (threats, trespassing) employed by a private company emboldened by Texas’ weak eminent domain laws for a project that hasn’t even been environmentally cleared yet. They know the tidal wave of opposition is coming and they had better change the eminent domain laws so that the oil and gas industry can continue its land-grabbing abuses of property rights.

Did I mention that another tarsands oil pipeline is part of the Trans Texas Corridor known as Ports to Plains through west-central Texas? In fact, the Alberta government (the northern link for the pipeline) is formulating a monitoring system for the risky oil sands type pipeline in anticipation of potential leaks and hazards (think Deepwater Horizon oil spill), and the expected environmental impacts. So the timing of this bill is strategic and necessary for Perry and the oil and gas industry as well as his friends like Spain-based Cintra, in the toll operating business, whose public private partnership (PPP) projects Perry promised to advance this session.

SB 18 expands the number of entities who can take your land by changing much of the language to include any “entity,” not just governmental entities with eminent domain authority. In fact, it removes the word "governmental" in many sections of the code, thus making it possible for Cintra or any other private toll operator or private developer to take your land for commercial purposes. The urban blight exception is WAY too broad and could be used to take anyone's land when a developer convinces government it can make them more money off a hotel than on an existing older home.

You cannot trust Rick Perry on property rights. The reason we don't have property protection now is because Rick Perry's minions have watered down EVERY eminent domain bill since the Kelo decision to benefit Perry's cronies. Now he wants to rush it through to avoid genuine reform once the public backlash mounts. Start calling your representatives now...we don't want Rick Perry's version of eminent domain "reform"!

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"Is their a property rights crisis in Texas? ... There is for Rick Perry."

Gov. Perry’s property rights emergency

1/12/11

Editorial
San Antonio Express-News
Copyright 2011

Addressing the opening session of the Texas Legislature, Gov. Rick Perry said lawmakers must address two emergency issues: eliminating sanctuary cities and protecting private property rights.

Not that these aren’t inconsequential issues, but Texas is facing a shortfall for the upcoming biennium that – depending on how you measure it – is between $15 billion and $27 billion. At minimum, there will be 17 percent less revenue to spend over the next two-year cycle.

By almost any measure, that’s a legislative emergency. So why would Perry cite two other issues as priorities? Is their a property rights crisis in Texas?

There is for Perry. In 2007, he vetoed legislation that would have affirmed private property rights in response to the U.S. Supreme Court’s Kelo decision on eminent domain.

The governor said the measure would have vastly inflated costs for road construction. Not just any road construction, however. The real problem was that it presented a huge obstacle to the Trans Texas Corridor – Perry’s dream project, since abandoned, that would have necessitated the state’s seizure of as much as 600,000 acres of private property.

Ever since that veto, Perry has been trying to restore his private property credentials. After the 2009 regular session of the Texas Legislature ended, Perry used the backdrop of the Alamo to sign legislation putting a constitutional amendment on the November 2009 ballot that restricted the circumstances under which state and local government could exercise eminent domain.

But as a 2009 editorial in the Express-News pointed out, it was a contrived ceremony to obscure a dubious track record on private property rights:

That legislation, however, was a joint resolution authored by Rep. Frank Corte, R-San Antonio. Joint resolutions proposing amendments to the Texas Constitution require two-thirds support in each chamber for adoption.

As the Texas Legislature Online notes, “Joint resolutions passed by the Legislature are not submitted to the governor for signing but are filed directly with the secretary of state.” Then voters consider the amendment in the next general election. But the governor has no role in the process.

Perry’s office later clarified to the newspaper that the signing was indeed ceremonial, meant to highlight “priority issues.”

Nineteen months later, it’s still a priority – image, that is, not necessarily private property rights.

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"After today’s meeting, the entire Sunset process is rightly called a joke."

Sunset Commission goes soft on TxDOT

1/12/11

Terri Hall
Examiner.com
Copyright 2011

Today the Sunset Advisory Commission, a group of lawmakers tasked with reviewing state agencies for inefficiencies, waste, and abuse of taxpayer money, went decidedly soft on the Texas Department of Transportation under the leadership of Senator Glenn Hegar.

Hegar, once a critic of TxDOT and particularly of the Governor’s choice of installing his former Chief of Staff, Deirdre Delisi, to head the Transportation Commission, whom Hegar’s colleague, John Carona, called a “political hack,” actually chastised fellow lawmaker Rep. Linda Harper-Brown for wanting to extend discussion of how best to implement reforms at TxDOT.

My how things change in just two years! Hegar who in the last round of the Sunset review of TxDOT asked why someone wasn’t fired for its $1.1 billion “accounting error,” is now the Chair of the Commission and is suddenly all love and kisses for the agency who is still planning on building some version of the Trans Texas Corridor TTC-69 through his district.

For the last four years, the Sunset Commission has been inundated with scathing comments from an angry public about TxDOT jamming toll roads and the Trans Texas Corridor down Texans’ throats. The Sunset Staff issued a blistering report stating that transportation cannot move forward in our state until the public’s trust is restored.

One of the public’s clarion calls is for accountability through ELECTED leadership to head TxDOT. Instead of doing what the PEOPLE want, the Commission continues to vote for a single appointed commissioner to replace the current five appointees. A single appointee will be no more accountable to the taxpayers than the current five.

Perry’s extremely unpopular toll road policies are protected by and implemented through his pay-to-play appointees to the Transportation Commission, most of whom have no experience in transportation. It’s been well-documented that Perry’s campaign donors get plumb political appointments to various commissions. The system is broken and costing taxpayers dearly, yet the Republican majority has failed to fight the Governor on transportation, and they seem to lack the spine necessary to implement true reforms that will finally get transportation policy on the right footing.

After today’s meeting, the entire Sunset process is rightly called a joke. Not only did they vote to keep appointees and bureaucrats in charge of TxDOT, they voted against Sen. Robert Nichols’ proposed limitations on design build contracts that will surely come back and bite lawmakers as he predicted.

Design build contracts eliminate low-bid contracting and give this already out of control agency the ability to hand out contracts to whomever they wish, perhaps doling out contracts to the Governor’s pet campaign contributors instead of to the contractor who can do it at the lowest cost to the taxpayer.

So the Sunset process took a highly unimpressive turn for the worse today. So for the taxpayers, there’s lots of work yet to be done in order to get fundamental reform at TxDOT, such as elected leadership or no deal on ANY new funding...and I mean ANY new funding. Both Senator Steve Ogden and Senator Tommy Williams have signaled their willingness to give TxDOT more funding (Ogden through more borrowing, Williams through much higher car registration fees).

But when an agency commits a $1.1 billion dollar “accounting error” with impunity, when its financial statements cannot even be verified, when an audit revealed they have no regard for saving the taxpayers money by more efficiently managing projects, when the audit also shows they never give unfavorable employee reviews even when its warranted, when they have unlicensed personnel that are required to be fully licensed, when they’ve illegally hired registered lobbyists using our taxpayer money to lobby for higher taxes, which are all among the long list of indiscretions at TxDOT, and when lawmakers thumb their noses at the reforms the public asks for, there’s NO WAY the taxpayers will EVER agree to giving TxDOT more of our hard-earned money.

So rather than strike a conciliatory tone with the grassroots, the Sunset Commission and lawmakers in general, have continued “business as usual” attitudes, despite the taxpayer revolt that continues to swirl around them. The more they ignore the will of the people, the more engaged and committed to change the people become. These “representatives” must be taught they rule by the “consent of the governed,” since it’s been a foreign concept to them due to years of apathy and corrupt special interest politics ruling the day. Dig in, it looks to be one rancorous session, but victory can be won!

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"In Texas, what's yours is yours and nobody can take it from you... Unless it's the oil and gas industry."

Texas gas drilling's 'Rule 37' is eminent domain by another name

1/11/11

Mike Norman
Fort Worth Star-Telegram
Copyright 2011

No right-thinking and right-voting Texan would stand by and let somebody take away their private property or somebody else's private property.

Heck no.

Well, it's OK to take away somebody else's property for a school or some other vital public use. But you darn sure can't have your property taken away just so someone or some company can make money. No way.

Eight in 10 Texas voters in 2009 approved a constitutional amendment saying just that. They put shackles on government's use of eminent domain -- legally taking away someone's property -- for commercial purposes.

The worst political mistake governor-for-as-long-as-he-wants Rick Perry ever made was his 2002 plan for the Trans-Texas Corridor. That multi-decade idea for wrapping the state in superhighways died not because Texans don't like roads but because it would take away too much private property.

In Texas, what's yours is yours and nobody can take it from you.

Unless it's the oil and gas industry. They're different. We even have laws that tilt the table in their favor.

Fort Worth city and school officials got a taste of those laws earlier this week. Chesapeake Energy started a process at the Railroad Commission that eventually could allow the company to take Barnett Shale natural gas from under city and school property in east Fort Worth.

Then as quickly as the threat appeared, it went away. On Tuesday, Chesapeake sent a letter to the commission withdrawing its request. Company officials blame the original filing on a clerical error.

Plenty of other Tarrant County residents might wish their problems would go away so easily. They're the targets of similar Railroad Commission "Rule 37" proceedings brought by Barnett Shale natural gas companies.

In the last six months of 2010, Chesapeake started at least 29 such cases, and all are still pending.

Rule 37 has become the eminent domain of the mineral lease world. It started out as a way to protect property owners, and in rural Texas where land and mineral rights ownership is measured in the dozens or hundreds or thousands of acres, it probably works out that way.

What it says is you can't drill within a certain distance of somebody else's land or the minerals below it unless they've signed a lease saying you can. The theory is, they have the right to get somebody else of their choosing to drill on their land.

In Barnett Shale urban drilling, it's different. People who own residential lots in the middle of a sea of other residential lots have to sign leases with the same driller as their neighbor. If they don't, Rule 37 lets the Railroad Commission give its official blessing for drillers to leave the holdouts behind, empty-handed.

The theory behind the rule gets turned on its head: No property owner can stand in the way of other property owners getting what they want.

People who lose their property in eminent domain proceedings at least have the right to a court-determined payment. Not so for Rule 37.

Eight Euless property owners who were the final holdouts in Chesapeake's "BC Associates 4H" set of leases, the subject of a Rule 37 proceeding started in November, this week were sent letters from a Railroad Commission hearing examiner. Chesapeake had ended the process, they were told, by deciding to drill past their property and leaving the wellbore sealed for the required 330-foot distance around them.

That leaves them to choose between leasing to Chesapeake or nothing.

That's property rights, Texas style.

Mike Norman is editorial director of the Star-Telegram / Arlington and Northeast Tarrant County.

817-390-7830

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"Does he think we’re all stupid?...There won’t be enough money left to build a farm-to-market road, much less a world-class transportation system. "

The inaugural addresses

1/11/11

Paul Burka
Texas Monthly
Copyright 2011

DEWHURST’S ADDRESS

I thought Lt. Governor Dewhurst’s speech was all wrong. It was too long, too partisan, too campaign oriented. He had one foot off the platform on the way to Washington.

Sometimes the things he said made no sense at all. Speaking of the early settlers, he said, “Those men and women who made their way to Texas, who settled these unforgiving plains, who sought neither a handout nor a stimulus check — they simply sought freedom.”

Oh, please. Was Stephen F. Austin oppressed in Missouri? Was Davy Crockett in debtors’ prison in Tennessee? Did Jim Bowie face constant harassment in Arkansas? Nobody came to Texas for freedom. They came for cheap land and the chance to make a better life for themselves. Texas is not about noble ideals. It’s about making money.

Unfavorable references to Washington are laced throughout the text:

* In contrast to Washington, we offer limited government to create unlimited opportunities.

* Washington should listen to the people and look to the states–the laboratories of innovation and governing.

* In Texas, we will never concede our freedom to Washington.

(No, we’ll just sue them. And lose.)

* Washington has run roughshod over state sovereignty.

* The only thing as outrageous as the amount of money Washington is borrowing from foreign creditors is the amount of money they withhold from the states unless we comply with their edicts.

(Yes, it’s too bad the Founding Fathers stuck the supremacy clause in the Constitution.)

Dewhurst is following the Perry model: If you rail enough about Washington, you can make people forget about what is — and what is not — happening here. Which is: a humongous shortfall and a leadership that is willing, even eager, to wrap Texas in a fiscal straightjacket and throw it under the bus to benefit their own political ambitions.

His priorities, Dewhurst said, include securing our borders, encouraging
more job creation, passing Voter ID, improve our public schools because a quality education gives every child a chance to realize their dreams, continue building a world class transportation system, make healthcare more accessable and more affordable with better medical outcomes at a lower cost by passing reforms that will lead the nation…

Does he think we’re all stupid? Does he think that anti-Washington rhetoric will make us forget that he is going to whack $25 billion out of the budget? There won’t be enough money left to build a farm-to-market road, much less a world-class transportation system. Quality education with 30 kids in an elementary classroom? A more affordable health care system? More affordable for the state, maybe, after Medicaid has been cut to the bone, but not for you and me.

My reading of Dewhurst through the years hasn’t really changed very much. It comes down to this: He wants to do the right thing, but he can never bring himself to do it. He perpetually runs scared, scared of the tea party, scared of Dan Patrick, scared of Rick Perry, scared of the Republican senators, scared of his own better instincts. And so we get speeches like this one, which doesn’t ring true.

* * * *

Patricia Kilday Hart filed this report on Dewhurst’s speech and its aftermath:

It was windy at the Inaugural today, but if you had looked closely you would have seen steam coming out of the ears of Democratic state senators during Dewhurst’s speech.

I tried getting reactions from members of the Senate and the only on-the-record comment comes from Leticia Van de Putte, who said, “I don’t think that there is any doubt about whether David Dewhurst is running for the U.S. Senate.” From others, I got the complaint — common to D’s and R’s — that it was “too long” and “too disorganized.” To that, Democrats added, “too partisan,” citing lines slamming Obama and this one, which pertained to them:

“The Team Party, Independents, Republicans, and Conservative Dmeocrats should all be proud of Texas as a shining example of limited government, low taxes, and economic
growth.” The carving out of conservative Democrats from the rest of the Democratic party was inappropriate. The timing of such a political speech does not portend for happy bipartisan times in the Senate. As some senators noted, Dewhurst used Inauguration Day to deliver a screed against Washington, instead of talking about Texas, and focusing on the legislative session. Poor choice. It doesn’t help that senators have been conferring in party caucuses all day to work out their differences on Senate rules — in particular, about Republicans once again adopting a “special order” for the Voter ID bill so that it will not require a two-thirds vote. Apparently, Senate Republicans are planning to move ahead with that proposal — which should draw Democratic opposition. Last session, Voter ID set a hostile tone in the Senate for the entire session. Dewhurst’s speech doesn’t rise to that level, but it certainly planted a feeling of unease among Democratic senators that he will be playing to his primary base this session.

PERRY’S ADRESS

Times have changed a lot for Perry since he last took the oath of office. For the first time in his political career, he has a real constituency. You could sense the enthusiasm in the crowd.

His speech was short and rambling, touching on the things he cared about: his parents, Anita’s family, veterans and their sacrifices, the war in Iraq and Afghanistan, and “the catastrophic events in the marketplace that have unleashed an economic recession unlike anything we have seen in 70 years.”

For once, he didn’t brag about Texas. “While Texas has fared better than most states,” he said, “we have not gone untouched by this global recession, and we cannot forget those Texans who are dealing with the fear and uncertainty of joblessness.” That was a sober sentiment far removed from his “what recession?” wisecrack of the primary campaign.

He mentioned a couple of issues in a modulated tone–finding cures for various kinds of cancers, creating a safe and secure border–but you could see that he was working himself up for a big finish. As he so often does, he transformed himself into the Aggie yell leader of old, and here it came, a complete and extemporaneous departure from the printed text:

“I believe Texas will lead the way out of this turmoil.”

“Historians will look back and call this, the Texas Century.”

“This is our time. This is our place in history. THIS IS OUR MOMENT. We must show the world the endless possibilities of freedom and free enterprise.”

“TEXAS! TEXAS! TEXAS!”

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"it's a complete disappointment and a waste of taxpayer money at this point."

Lawmakers suggest slew of changes to state agencies

Sunset commission also urges the merger of youth organizations.

1/12/11

By Jeorge Zarazua
San Antonio Express-News
Copyright 2011

A panel of Texas lawmakers issued final sunset reviews Wednesday for nine state agencies, recommending that the five-member Texas Transportation Commission be abolished and that the Texas Youth Commission and the Texas Juvenile Probation Commission merge, among a slew of other changes.

The 12-member Sunset Advisory Commission also voted to change the name of the Texas Railroad Commission to the Texas Oil and Gas Commission, and said it should be headed by a single elected commissioner instead of the three who now govern it.

The name change would better reflect the agency's duties as regulator of the state's oil and gas industry, Sunset staff concluded.

Early reaction from the industry was favorable. Houston-based oil and gas exploration company Apache Corp. supported the idea of five part-time commissioners, but one elected commissioner “is fine, too,” said Obie O'Brien, Apache's vice president of government and regulatory affairs.

“That takes some of the politics out of it,” he said.

The panel rejected Rep. Rafael Anchia's recommendation that a single elected commissioner replace the three-member appointed board overseeing the Texas Commission on Environmental Quality.

Anchia, D-Dallas, said an elected commissioner would be more responsive to voters, but the sunset panel voted 10-2 against it.

The panel did back changes in enforcement policies at the TCEQ, including higher penalty caps for polluters. The proposed limit would go from $10,000 per violation per day to $25,000 — a move opposed by the Texas Association of Manufacturers and other trade groups.

Environmentalists said the higher penalty caps would help the agency to deter excessive pollution. Still, they said the sunset panel didn't go far enough with the agency, which is seen as too cozy with the industries it regulates.

All of the sunset panel's recommendations will be drafted into legislation for both the House and Senate to consider adopting into law.

Terri Hall, a San Antonio activist and founder of Texans United for Reform and Freedom, said the panel's 7-5 vote to recommend replacing the Transportation Commission with a single appointed commissioner of transportation wouldn't fix the beleaguered agency.

“To us, it's a complete disappointment and a waste of taxpayer money at this point,” said Hall, whose organization called for elected TxDOT leadership. “We're going to fight it all the way to the end to get what we, the people, have been asking for.”

Katherine Cesinger, a spokeswoman for Gov. Rick Perry, said a five-member Transportation Commission has worked for the state, but that the governor welcomes the work of the sunset panel, tasked with eliminating waste, duplication, and inefficiency in government agencies.

“We're facing a number of challenges this session, everybody knows,” Cesinger said, referring to drastic cuts lawmakers must make to meet a projected $27 million state budget deficit.

Public distrust of TxDOT has flared as a result of its handling of toll roads and public-private partnerships, including the failed Trans Texas Corridor.

The Transportation Commission's own TxDOT Restructure Council concluded last week that immediate changes were needed to the agency's top management for it to improve.

“I think the ultimate problem with TxDOT is that there is not a direct point of responsibility,” said Rep. Dennis Bonnen, R-Angleton, the Sunset Advisory Commission's vice-chairman. “When you have three or five commissioners, there is always someone else to say, ‘If they get on board and work with me, I can get this done the way you want.' That's why I greatly support having one appointed by the governor.”

There was no immediate reaction from Transportation Commission members or TxDOT's executive director Amadeo Saenz Jr. on the sunset vote.

The sunset panel did, however, vote unanimously to merge the Texas Youth Commission and the Texas Juvenile Probation Commission into a new agency, which would be called the Texas Juvenile Justice Department.

Combining TYC and the probation commission would save the state nearly $600,000 by eliminating duplicative director-level positions.

“This is an excellent opportunity for this legislature to create a model agency ... (and) also be fiscally responsible,” state Sen. John Whitmire, D-Houston, said. “The timing could not be better.”

Staff Writer Vicki Vaughan and Houston Chronicle Staff Writer Matt Tresaugue contributed to this report.

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