06.22.07

Texas Farm Bureau Responds, Clarifies HB 2006 Veto

Posted in Privatization, Road Issues, Around The State at 4:43 pm by wcnews

(Promoted from the comments. Below is a response from the Texas Farm Bureau to this EOW post regarding Gov. Perry’s veto of HB 2006, a bill regarding eminent domain. In the extended post also is an email back-and-forth between myself and the TFB’s State Legislative Director Billy Howe. I would like to thank Mr. Howe for his participation in the discussion and agreeing to have it all posted. Blogs have created the space where a conversation like this can take place.)

Texas Farm Bureau appreciates your support for HB 2006, but some of your take on what happened with the legislation at the end of session is incorrect. Granted, 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.

My response:

Mr. Howe,
I appreciate your comment at EOW very much, and thank for clarifying
the amendments. If you are OK with it I would like to post your comment
as a separate post, and can add your name to it if you like. I won’t
post you name without your permission. While, as I said, I do
appreciate your clarification I don’t think it changes the premise of my
post. This is still a R v. R battle, whether it was the Janek or Hegar
amendment that ultimately killed the bill, with the people paying the
price.Is it this part that of Gov. Perry’s statement that’s the Janek
amendment?

The second problematic provision would greatly increase the cost
taxpayers would pay to compensate an owner for the land which is left
after some of the property is acquired through eminent domain. It would
allow the recovery of damages for factors such as changes in traffic
patterns and visibility of the property from the road. Texas courts have
long disallowed this practice because it would make public projects that
benefit the greater population prohibitively expensive to build.

While I understand the Farm Bureau’s need for this legislation these
two amendments seem to deal with urban areas as opposed to rural areas,
and please correct me if I’m wrong.

I understand the “slow play” argument because that’s what happened with
the “moratorium” as well. When legislators don’t do the work soon
enough to get their bills through the process, so a veto can be
overridden, they are left with no choice but to allow what the governor
wants, or have their bill vetoed. (Unless we get a veto override
session’s passed). Either way we are left with what Rep. Woolley’s
leadership brought, and are stuck with the status quo. Which is, of
course, what the governor and TxDOT wanted.

The SAEN article was able to bring enough cover to the governor in a PR
sense, by showing Rep. Woolley’s self-interest in this bill, that he can
use that and the evil attorney’s mantra to bring enough of his GOP
constituents along. True leadership would have been getting this
through the Lege in time for a veto to be overridden and then overriding
it. She knew this bill would get vetoed. She dared the governor to
veto her bill and he did. Her unwillingness to bow to political
pressure didn’t get the job done, and that’s the bottom line. It ends
up looking like Republicans fighting over who gets the taxpayers money,
themselves or the corporations.

I look forward to continuing the conversation. Thanks.

Mr. Howe’s response:

Thanks for your quick response. Yes, you are welcome to post my
comments under my name.

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 can
move 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?

My response:

Thanks for educating me on this issue and espeically about how limited access applies to the rural areas and the TTC, that is huge.
The way your describe how condemning entities work the courts reminds me very much of how insurance companies work with denying claims. They just assume a certain amount will accept the denial and move on. Except in this case it’s a low bid on their family farm, homestead, or ancestral property. Most Texans, myself included, have a rural ancestry and take these issues very serious.
So then basically without the Janek amendment in HB 2006 it had no purpose? And to clarify, this is the Janek Amendment?

Specifically, I find extremely problematic the provision that would expand damages a landowner can recover to include any diminished access to the roadway from remaining property when a portion of a landowner’s property is condemned. Currently, a landowner is appropriately entitled to have reasonable access to their property maintained when a portion of their property is condemned. However, the provision contained in this bill would require large payments of taxpayer dollars for properties that continue to have reasonable access to the road but where that access has been only altered in some fashion. This is an unreasonable burden to place on taxpayers.

Your last paragraph is gold.

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