Opinion
No. 20-0393
06-24-2022
James Fredrick MILES, Petitioner, v. TEXAS CENTRAL RAILROAD & INFRASTRUCTURE, INC. and Integrated Texas Logistics, Inc., Respondents
David B. Hurst, for Amicus Curiae KSA Industries, Inc. Royce B. West, Dallas, for Amicus Curiae West, Royce B. Robert H. Leilich, Pro Se. Christopher Pepper, for Amicus Curiae Texas Aggregates and Concrete Association. Collyn A. Peddie, Sylvester Turner, Houston, for Amicus Curiae City of Houston. Dylan O. Drummond, Dallas, Michael Patrick McShan, Blake L. Beckham, Dallas, Joseph Cecere, Jeffrey S. Levinger, for Petitioner. Lauren Jaynes Olivarez, Angus Earl McSwain, Waco, for Amicus Curiae Texas Farm Bureau. Scott Keller, Matthew H. Frederick, Austin, for Amici Curiae Texas Rail Advocates, Dallas Regional Chamber, Dallas Citizens Council. Sarah Lacy, Austin, for Amicus Curiae Greater Houston Partnership. Robert B. Neblett III, Danica Lynn Milios, Michael Heidler, Austin, Christopher C. Franz, Adam W. Aston, Austin, Marie R. Yeates, Houston, Gil P. Peralez, McAllen, Monte F. James, Austin, Catherine ‘Cathy’ B. Smith, Jennifer Caughey, Benjamin Moss, Houston, for Respondents. Jon Christopher Fultz, Navasota, for Amicus Curiae Grimes County. Courtney Cox Smith, James D. Bradbury, for Amicus Curiae Texas and Southwestern Cattle Raisers Association (TSCRA). Rodney Ellis, Houston, Pro Se. W. Roy Defriend, for Amicus Curiae Limestone County. Cydonii Fairfax, for Amicus Curiae Metropolitan Transit Authority of Harris County, Texas. Keith Cook, for Amicus Curiae Leon County. Derek Dryden Rollins, Dallas, for Amicus Curiae James Darren Eagle. Christopher Mohr Odell, Houston, for Amicus Curiae SNCF America, Inc. Martha Montgomery, for Amicus Curiae Ellis County. Wallace B. Jefferson, Austin, William J. Boyce, for Amici Curiae North Texas Commission, Greater Houston Partnership. Lance Thomas, for Amicus Curiae The Thomas Family. Judd E. Stone II, Evan S. Greene, Austin, Kyle Hawkins, Houston, Bill Davis, Austin, for Amicus Curiae Soilcitor General. Christian Menefee, Pro Se. Michael Evans, Houston, for Amicus Curiae Freestone County. Brian Lee Risinger, for Amicus Curiae Madison County. Daniel J. Sheehan Jr., Dallas, for Amici Curiae The House Family, House, Calvin. Clay Jenkins, for Amicus Curiae Dallas County. Mattie Parker, for Amicus Curiae City of Fort Worth. Scott A. Brister, Austin, Kathryn E. Boatman, J. Mark Breeding, Houston, for Amicus Curiae Delta Troy Interests, Ltd. Ronald E. Bunch, Waxahachie, for Amicus Curiae Getzendaner, Junior, William H. Eric Johnson, for Amicus Curiae City of Dallas. Terry L. Jacobson, William Thompson, for Amicus Curiae Navarro County. Thomas A. Zabel, Houston, for Amicus Curiae Texas Pipeline Association. Elton Raymond Mathis Jr., for Amicus Curiae Waller County. David G. Cabrales, Dallas, for Amicus Curiae Texas Association of Business. Laura A.W. Pratt, Zachary S. Brady, Lubbock, for Amicus Curiae South Texans’ Property Rights Association (STPRA). Charles Adren Caldwell II, Dallas, for Amicus Curiae Regional Black Contractors Association. Simrita Chamdal, Courtney Carlson, Jonathan G.C. Fombonne, Christian Menefee, Tiffany Sue Bingham, for Amicus Curiae Harris County Commissioners Rodney Ellis and Adrian Garcia. Peyton McKnight, for Amicus Curiae American Council of Engineering Companies of Texas (ACEC Texas). Jennifer Oshea Rodriguez, Irving, for Amicus Curiae North Texas Commission. Christian Menefee, Rodney Ellis, Houston, for Amicus Curiae Garcia, Adrian. Angus Earl McSwain, Waco, for Amicus Curiae Texas Farm Bureau.
David B. Hurst, for Amicus Curiae KSA Industries, Inc.
Royce B. West, Dallas, for Amicus Curiae West, Royce B.
Robert H. Leilich, Pro Se.
Christopher Pepper, for Amicus Curiae Texas Aggregates and Concrete Association.
Collyn A. Peddie, Sylvester Turner, Houston, for Amicus Curiae City of Houston.
Dylan O. Drummond, Dallas, Michael Patrick McShan, Blake L. Beckham, Dallas, Joseph Cecere, Jeffrey S. Levinger, for Petitioner.
Lauren Jaynes Olivarez, Angus Earl McSwain, Waco, for Amicus Curiae Texas Farm Bureau.
Scott Keller, Matthew H. Frederick, Austin, for Amici Curiae Texas Rail Advocates, Dallas Regional Chamber, Dallas Citizens Council.
Sarah Lacy, Austin, for Amicus Curiae Greater Houston Partnership.
Robert B. Neblett III, Danica Lynn Milios, Michael Heidler, Austin, Christopher C. Franz, Adam W. Aston, Austin, Marie R. Yeates, Houston, Gil P. Peralez, McAllen, Monte F. James, Austin, Catherine ‘Cathy’ B. Smith, Jennifer Caughey, Benjamin Moss, Houston, for Respondents.
Jon Christopher Fultz, Navasota, for Amicus Curiae Grimes County.
Courtney Cox Smith, James D. Bradbury, for Amicus Curiae Texas and Southwestern Cattle Raisers Association (TSCRA).
Rodney Ellis, Houston, Pro Se.
W. Roy Defriend, for Amicus Curiae Limestone County.
Cydonii Fairfax, for Amicus Curiae Metropolitan Transit Authority of Harris County, Texas.
Keith Cook, for Amicus Curiae Leon County.
Derek Dryden Rollins, Dallas, for Amicus Curiae James Darren Eagle.
Christopher Mohr Odell, Houston, for Amicus Curiae SNCF America, Inc.
Martha Montgomery, for Amicus Curiae Ellis County.
Wallace B. Jefferson, Austin, William J. Boyce, for Amici Curiae North Texas Commission, Greater Houston Partnership.
Lance Thomas, for Amicus Curiae The Thomas Family.
Judd E. Stone II, Evan S. Greene, Austin, Kyle Hawkins, Houston, Bill Davis, Austin, for Amicus Curiae Soilcitor General.
Christian Menefee, Pro Se.
Michael Evans, Houston, for Amicus Curiae Freestone County.
Brian Lee Risinger, for Amicus Curiae Madison County.
Daniel J. Sheehan Jr., Dallas, for Amici Curiae The House Family, House, Calvin.
Clay Jenkins, for Amicus Curiae Dallas County.
Mattie Parker, for Amicus Curiae City of Fort Worth.
Scott A. Brister, Austin, Kathryn E. Boatman, J. Mark Breeding, Houston, for Amicus Curiae Delta Troy Interests, Ltd.
Ronald E. Bunch, Waxahachie, for Amicus Curiae Getzendaner, Junior, William H.
Eric Johnson, for Amicus Curiae City of Dallas.
Terry L. Jacobson, William Thompson, for Amicus Curiae Navarro County.
Thomas A. Zabel, Houston, for Amicus Curiae Texas Pipeline Association.
Elton Raymond Mathis Jr., for Amicus Curiae Waller County.
David G. Cabrales, Dallas, for Amicus Curiae Texas Association of Business.
Laura A.W. Pratt, Zachary S. Brady, Lubbock, for Amicus Curiae South Texans’ Property Rights Association (STPRA).
Charles Adren Caldwell II, Dallas, for Amicus Curiae Regional Black Contractors Association.
Simrita Chamdal, Courtney Carlson, Jonathan G.C. Fombonne, Christian Menefee, Tiffany Sue Bingham, for Amicus Curiae Harris County Commissioners Rodney Ellis and Adrian Garcia.
Peyton McKnight, for Amicus Curiae American Council of Engineering Companies of Texas (ACEC Texas).
Jennifer Oshea Rodriguez, Irving, for Amicus Curiae North Texas Commission.
Christian Menefee, Rodney Ellis, Houston, for Amicus Curiae Garcia, Adrian.
Angus Earl McSwain, Waco, for Amicus Curiae Texas Farm Bureau.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Boyd, Justice Busby, and Justice Young joined. At the outset, it is important to recognize what this case is about and what it is not about. The case involves the interpretation of statutes relating to eminent domain; it does not ask us to opine about whether high-speed rail between Houston and Dallas is a good idea or whether the benefits of the proposed rail service outweigh its detriments. The narrow issue presented is whether the two private entities behind the project have been statutorily granted the power of eminent domain, a power otherwise reserved to the State and its political subdivisions because of the extraordinary intrusion on private-property rights that the exercise of such authority entails.
The owner of real property located along the proposed railway route sued both entities, seeking a declaratory judgment that they lack eminent-domain authority. The entities rely on the Texas Transportation Code's grant of eminent-domain authority to "legal entit[ies] operating a railroad" (railroad companies) and to "corporation[s] chartered under the laws of this state to conduct and operate an electric railway between two municipalities in this state" (interurban electric railway companies) for that authority. TEX. TRANSP. CODE §§ 81.002(2), 112.002(5), 131.011 –.012. The trial court held that the entities do not qualify as either railroad companies or interurban electric railway companies and granted summary judgment to the landowner. The court of appeals reversed, holding that the entities qualify as both. We agree with the court of appeals that the entities have eminent-domain power as interurban electric railway companies and need not address whether they also qualify as railroad companies. We therefore affirm the court of appeals’ judgment.
I. Background
Texas Central Railroad & Infrastructure, Inc. (Texas Central Railroad) was formed in December 2012 as TXHS Railroad, Inc. In January 2015, Texas Central Railroad amended its articles of incorporation to change its name and to state that it was organized "to plan, build, maintain and operate an interurban electric railroad." In September 2017, Integrated Texas Logistics, Inc. (Texas Logistics) was formed "[t]o construct, acquire, maintain, or operate lines of electric railway between municipalities in this state for the transportation of freight, passengers, or both" and "[t]o operate and transact business as a railroad company." Texas Central Railroad and Texas Logistics (collectively, the Texas Central Entities) share office space, officers, employees, and contact information. As noted, the entities are jointly endeavoring to build a railway for a high-speed train between Houston and Dallas.
According to the Texas Central Entities’ summary-judgment evidence, Texas Central Railroad "is primarily responsible for pre-construction activities related to design and right-of-way acquisition," has "overall construction responsibility," and is "responsible for the construction activities related to the tracks, stations, platforms, power systems, communication systems, and other infrastructures along the route." Texas Logistics, in turn, "will support and assist [Texas Central Railroad] and contractors in the procurement, storage, and timely delivery of the rolling stock [trains] and [construction] component parts," "procure, own, and operate any [necessary] short line railroads," and ultimately "maintain the rail infrastructure and rolling stock."
In January 2016, Texas Central Railroad began conducting "on-the-ground surveys and examinations" of land in connection with evaluating proposed routes for the project. Two months earlier, in November 2015, Texas Central Railroad had contacted petitioner James Miles about surveying his property. Miles owns approximately 600 acres of property in Leon County along the project's "preferred" route, as determined by the Federal Railroad Administration, and the planned railway will essentially bisect Miles's property with a 100-foot right-of-way. Miles refused to consent to a survey of his property and sued Texas Central Railroad for a declaratory judgment that, among other things, Texas Central Railroad lacked eminent-domain authority. Texas Central Railroad counterclaimed for a declaratory judgment that it is a "railroad company" and an "electric railway" with eminent-domain power under Chapters 112 and 131 of the Transportation Code. Texas Central Railroad also sought to enjoin Miles from interfering with its access to the property for survey purposes. Texas Logistics intervened in the suit and sought similar relief.
The parties filed cross-motions for summary judgment, taking diametrically opposing views on both the proper interpretation of the statutes at issue and the status and wisdom of the project. The Texas Central Entities focused on the following accomplishments as of the date of the summary-judgment hearing in August 2018:
• Texas Central Railroad had spent over $125 million on the project.
• Nearly 100 technical experts were engaged on the project, along with 200 employees and contractors.
• Over 2,000 surveys had been completed, and hundreds of option contracts to purchase land needed for the railway had been executed.
• Texas Central Railroad signed an agreement with Amtrak to connect the railway with Amtrak's interstate rail system.
• The Texas Central Entities retained, as a consultant, Central Japan Railway Company, the company that built and successfully operates the high-speed train in Japan.
• Texas Logistics retained Bechtel, an engineering company that has completed more than 300 major train and subway projects, to manage the project.
• The Texas Central Entities had been engaged for several years with various state and federal regulators to obtain the necessary permits and safety rules. Specifically, the Federal Railroad Administration issued a Draft Environmental Impact Statement and was considering Texas Central Railroad's petition for rules to govern the high-speed train's system and operations; Texas Central Railroad was working with the Army Corps of Engineers to secure necessary permits; and Texas Central Railroad had petitioned the Surface Transportation Board to assert jurisdiction over the project.
The FRA has since issued a Final Environmental Impact Statement in cooperation with several other federal agencies. It has also granted Texas Central Railroad's petition for rulemaking and published safety standards for the train's operation.
The Board initially declined jurisdiction but granted Texas Central Railroad's petition to reopen and granted jurisdiction over the project after Texas Central Railroad agreed with Amtrak to connect its high-speed rail to Amtrak's lines.
The Texas Central Entities contended that they satisfy the plain language of the statutory provision granting eminent-domain authority to interurban electric railway companies: they are both "corporation[s] chartered under the laws of this state to conduct and operate an electric railway between two municipalities [Houston and Dallas] in this state." TEX. TRANSP. CODE § 131.011. They also contended that they qualify as railroad companies—legal entities "operating a railroad"—because the ordinary meaning of "operating" includes the Texas Central Entities’ work of constructing, conducting, and maintaining a railroad between Houston and Dallas. Id. § 81.002(2).
By contrast, Miles emphasized that:
• Texas Central Railroad did not own any railroad tracks;
• Texas Central Railroad did not own any rolling stock (trains);
• Texas Central Railroad had not constructed any train stations;
• Texas Central Railroad had secured only a small fraction of the necessary financing for the project; and
• Texas Logistics had no employees, officers, or office space independent of Texas Central Railroad.
Miles contended that Texas Central Railroad (1) could not acquire eminent-domain authority merely by performing the equivalent of "checking a box"; (2) did not qualify as a railroad company because it was not presently "operating a railroad, i.e. , a physical train on a set of physical tracks"; and (3) did not qualify as an interurban electric railway company because the interurban electric railways the statute references have been obsolete for over seventy years, the statute was not intended to apply to high-speed rail, and any authority Texas Central Railroad otherwise had as an "interurban" expired.
The trial court granted Miles's summary-judgment motion, declaring that neither Texas Central Railroad nor Texas Logistics qualifies as a railroad company or an interurban electric railway company and dismissing the claims against Miles with prejudice. The trial court also awarded Miles attorney's fees. The Texas Central Entities appealed. The court of appeals reversed, holding that the Texas Central Entities have eminent-domain power as both railroad companies and interurban electric railway companies. 635 S.W.3d 684, 697 (Tex. App.—Corpus Christi–Edinburg 2020). We granted Miles's petition for review and have received a substantial number of amicus briefs and letters in support of both Miles and the Texas Central Entities.
II. Standard of Review
"On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law." City of Garland v. Dall. Morning News , 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, as is the case here, we "determine all questions presented" and "render the judgment that the trial court should have rendered." Id.
Evaluating the propriety of summary judgment in this case requires us to engage in statutory interpretation, a legal question governed by well-settled principles:
In interpreting statutes, we must look to the plain language, construing the text in light of the statute as a whole. A statute's plain language is the most reliable guide to the Legislature's intent. The statutory terms bear their common, ordinary meaning, unless the text provides a different meaning or the common meaning leads to an absurd result. This Court may not impose its own judicial meaning on a statute by adding words not contained in the statute's language. If the statute's plain language is unambiguous, we interpret its plain meaning, presuming that the Legislature intended for each of the statute's words to have a purpose and that the Legislature purposefully omitted words it did not include. The statutory words must be determined considering the context in which they are used, not in isolation.
Silguero v. CSL Plasma, Inc. , 579 S.W.3d 53, 59 (Tex. 2019) (internal citations omitted).
Because statutes conferring eminent-domain authority intrude on fundamental property rights, "in instances of doubt as to the scope of the power," such statutes are "strictly construed in favor of the landowner." Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline–Tex., LLC , 363 S.W.3d 192, 198 (Tex. 2012) ( Denbury I ) (citing Coastal States Gas Producing Co. v. Pate , 158 Tex. 171, 309 S.W.2d 828, 831 (Tex. 1958) ). In Coastal States , we elaborated on the meaning of strict construction when its use is appropriate, explaining that it "does not require that the words of a statute be given the narrowest meaning of which they are susceptible." 309 S.W.2d at 831. Rather, we accord the language used by the Legislature "a full meaning that will carry out its manifest purpose and intention in enacting the statute" but "confine[ ] [the operation of the law] to cases which plainly fall within its terms as well as its spirit and purpose." Id.
III. Discussion
A. Constitutional and Statutory Framework
The Texas Constitution circumscribes the exercise of the extraordinary power of eminent domain, providing in pertinent part:
(a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:
(1) the ownership, use, and enjoyment of the property ... by:
(A) the State, a political subdivision of the State, or the public at large; or
(B) an entity granted the power of eminent domain under law ....
TEX. CONST. art. I, § 17 (a)(1). "[T]he power of eminent domain must be conferred by the Legislature, either expressly or by necessary implication, and will not be gathered from doubtful inferences." Coastal States , 309 S.W.2d at 831. Even when so granted, the authority remains subject to the constitutional prohibition against the taking of property for private use. Denbury I , 363 S.W.3d at 194–95 (explaining that to exercise the Natural Resources Code's grant of eminent-domain authority to " ‘common carrier’ pipeline companies," the company must be building a pipeline to transport gas " ‘to or for the public for hire,’ " not one for only its own use (quoting TEX. NAT. RES. CODE § 111.002(6) )).
Two legislative grants of eminent-domain authority are at issue here. First, the Transportation Code authorizes a "railroad company" to, among other things, "exercise the power of eminent domain for the purposes prescribed by this subtitle [C] or Subtitle D" and enter a person's land for the purpose of "mak[ing] an examination and survey for the company's proposed railway ... as necessary to select the most advantageous route." TEX. TRANSP. CODE §§ 112.002(b)(5), .051(a). A "railroad company" is defined to include:
(1) a railroad incorporated before September 1, 2007, under former Title 112, Revised Statutes; or
(2) any other legal entity operating a railroad, including an entity organized under the Texas Business Corporation Act or the Texas Corporation Law provisions of the Business Organizations Code.
Id. § 81.002. As they incorporated after September 1, 2007, the Texas Central Entities rely on Subsection (2) and contend that each of them qualifies as a "legal entity operating a railroad."
Second, the Transportation Code confers eminent-domain authority—"with all the rights and powers granted by law to a railroad company"—on "[a] corporation chartered for the purpose of constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of freight, passengers, or both." Id. § 131.012. Chapter 131 designates such a corporation an "interurban electric railway company." Id. § 131.011 (defining "interurban electric railway company" as "a corporation chartered under the laws of this state to conduct and operate an electric railway between two municipalities in this state").
Section 131.012 provides in full:
A corporation chartered for the purpose of constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of freight, passengers, or both freight and passengers may:
(1) exercise the power of eminent domain with all the rights and powers granted by law to a railroad company; and
(2) enter, condemn, and appropriate land, right-of-way, easements, or other property of any person or corporation to acquire:
(A) right-of-way on which to construct and operate lines of railway for the acquiring corporation; or
(B) sites for depots or power plants.
Tex. Transp. Code § 131.012.
The Texas Central Entities thus have eminent-domain authority if they qualify as either railroad companies or interurban electric railway companies.
B. Interurban Electric Railway Company
1. Plain Language
We first address the Texas Central Entities’ asserted eminent-domain authority under Transportation Code Chapter 131 as "corporation[s] chartered for the purpose of constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of ... passengers." Id. § 131.012. This language could not be more plain insofar as its application to the rail project at issue, which is an "electric railway between municipalities in this state"—Houston and Dallas—"for the transportation of ... passengers." Indeed, Miles does not contend otherwise.
Rather, Miles asserts that modern high-speed rail cannot be "shoehorned" into the concept of the interurban electric railway the Legislature envisioned in originally enacting Chapter 131's predecessor in 1907. He asserts that the "concept of an ‘interurban electric railway’ is a technical term" that describes "a specific kind of train: the single-car interurban electric railways that were an ‘outgrowth of the urban trolley’ car and that ran throughout Texas in the later nineteenth and early twentieth centuries." The dissent agrees, opining that Chapter 131, read in its historical context, applies only to a kind of train with the ability "to operate in a manner like a single-car trolley lumbering down Main Street." Post at 641 (Huddle, J., dissenting).
See Act effective Mar. 9, 1907, 30th Leg., R.S., ch. 15, 1907 Tex. Gen. Laws 23.
Viewed as a whole, Chapter 131 is simply not limited in the way that Miles and the dissent contend. First, no provisions in Chapter 131 (or its statutory predecessor) place any limitations on the speed a train may reach in traveling along the anticipated railway, the size of the train, or the distance between the "municipalities in this state" that the railway connects. And in addition to the broad grant of authority in Section 131.012, the statutory scheme contemplates much more than a "lumbering" trolley car. For example, Chapter 131 authorizes "[a] corporation described by Section 131.012" to "lay out right-of-way not to exceed 200 feet in width for its railways," to "construct its railways and appurtenances on that right-of-way," and to "take [with appropriate compensation] for the purpose of cuttings and embankments additional land necessary for the proper construction and security of its railways." TEX. TRANSP. CODE § 131.013(a). These provisions are wholly compatible with the scale of the project at issue, which will require forty-foot embankments and rights-of-way of up to 100 feet.
Chapter 131 further authorizes a qualifying corporation to "construct its railway along, across, or over any stream, water course, bay, navigable water, arm of the sea, street, highway, steam railway, turnpike, or canal located in the route of its electric railway," id. § 131.014(a), and to "erect and operate a bridge, tram, trestle, or causeway" over or across any such waterway or infrastructure, id. § 131.014(b). Such a bridge or structure "may not be erected so as to unnecessarily or unreasonably prevent the navigation of the [waterway]." Id. § 131.014(c). Chapter 131 thus anticipates that the railway could cross major bodies of water and could require extensive infrastructure to do so.
It is true that some of Chapter 131's provisions also contemplate the possibility that an interurban could operate "on or across a street, alley, square, or property of a municipality." Id. § 131.014(d). For example, a railway company is authorized to condemn "easements and right-of-way to operate interurban cars ... on the track of an electric street railway company ... on any public street or alley in a municipality," subject to the municipality's consent, in order to "secure an entrance into and an outlet from [the] municipality." Id. § 131.015(a)–(b). And when it obtains such easements by condemnation, the company must complete construction of the "road" between municipalities within twelve months from the date of the final judgment awarding the easement. Id. § 131.016; see also id. §§ 131.101, .103 (requiring "a person or corporation owning or operating a street railway in or on the public streets of a municipality with a population of 40,000 or more" to sell reduced-fare tickets to children and students). While these particular provisions do not apply to the kind of high-speed rail project at issue, which undisputedly will not operate on streets within a municipality, they are not an indication that Chapter 131 as a whole encompasses only those projects involving trains that will do so. We do not read Chapter 131 to implicitly place the above-described limitations on the statute's scope—regarding speed, size, and distance—that the Legislature easily could have placed expressly but chose not to. See BankDirect Cap. Fin., LLC v. Plasma Fab, LLC , 519 S.W.3d 76, 87 (Tex. 2017) ("We must rely on the words of the statute, rather than rewrite those words to achieve an unstated purpose." (citation omitted)).
Miles also appears to contend that the fact that the Texas Central Entities’ proposed railway will connect to the interstate rail system, and thus be subject to the Surface Transportation Board's jurisdiction, means it cannot be an "interurban" railway. We disagree. The Board "has jurisdiction over transportation by rail carrier," 49 U.S.C. § 10501(a)(1), including "transportation in the United States between a place in ... a State and a place in the same or another State as part of the interstate rail network," id. § 10501(a)(2)(A). "[R]ail carrier" is defined to exclude "interurban electric railways not operated as part of the general system of rail transportation." Id. § 10102(5). The only reasonable reading of these provisions is that interurban electric railways that are operated as part of the general system of rail transportation are subject to the Board's jurisdiction. They certainly do not indicate that any railway connected to the interstate rail network cannot qualify as an "interurban" railway. See Spokane & Inland Empire R.R. Co. v. United States , 241 U.S. 344, 346, 36 S.Ct. 668, 60 L.Ed. 1037 (1916) (considering the application of federal railway-safety laws to a company that operated "several interurban electric lines, one of which extended from Spokane[, Washington] to Coeur d'Alene, Idaho").
Of course, when the statutes governing interurban electric railways were originally enacted in 1907, the modern version of high-speed rail had not yet been developed. To support his argument that Chapter 131 thus cannot apply to high-speed rail, Miles relies on the interpretive principle that when a statute contains undefined terms, we consider the terms’ ordinary, common meaning when the statute was enacted. VIA Metro. Transit v. Meck , 620 S.W.3d 356, 369 (Tex. 2020) (citing Taylor v. Firemen's & Policemen's Civ. Serv. Comm'n , 616 S.W.2d 187, 189 (Tex. 1981) ). That principle is of limited usefulness here for several reasons. First, we are not attempting to discern the ordinary meaning of an undefined term, as Chapter 131 specifically defines the term "interurban electric railway company" as a "corporation chartered ... to conduct and operate an electric railway between two municipalities in this state." TEX. TRANSP. CODE § 131.011. Second, even if the term were undefined, Chapter 131 is not written to grant eminent-domain authority to an "interurban electric railway company." Rather, after defining that term in Section 131.011, the statute goes on in Section 131.012 to confer such authority even more broadly on "[a] corporation chartered for the purpose of constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of freight, passengers, or both freight and passengers." Id. § 131.012. There is no dispute about the ordinary meaning of any of those words, either individually or in context. To construe Chapter 131 as inapplicable to the Texas Central Entities requires placing extratextual, and thus improper, limitations on the statute's reach.
Third, we have long interpreted statutes, including eminent-domain statutes, to embrace later-developed technologies when the statutory text allows. Over a century ago, in examining the statutes governing telegraph companies’ exercise of the right of eminent domain, we explained that "if the [statutory] language used is broad enough to embrace a subsequently developed method, the later invention might be controlled by the pre-existing law, as if it had been in existence at the time the law was made." San Antonio & A.P. Ry. Co. v. Sw. Tel. & Tel. Co. , 93 Tex. 313, 55 S.W. 117, 117 (Tex. 1900). We thus held that those statutes applied to telephone companies even though "it cannot be supposed that the legislature had telephones in mind when it used the word ‘telegraph.’ " Id. ; see also Kaufman v. Islamic Soc'y of Arlington , 291 S.W.3d 130, 140–41 (Tex. App.—Fort Worth 2009, pet. denied) (citing San Antonio & A.P. Ry. Co. in holding that the statutory provision authorizing interlocutory appeal of an order denying a motion for summary judgment based on a claim against "a member of the electronic or print media," which was enacted in 1993, applied to a claim against a journalist involving an article published in an online magazine). By the same token, high-speed rail was unimaginable when the Legislature passed the 1907 statute at issue here. But if technology had accelerated such that high-speed rail became available in 1908, no one would have thought that the Legislature would need to pass another statute to accommodate it. We agree with the dissent that courts must give a statutory provision the ordinary meaning that it had at the time it was enacted. Post at 640–41 (Huddle, J., dissenting). The 1907 statute's text may have been capacious, but it was not unclear.
Additionally, the dissent misapplies the interpretive principle involving the effect of a statutorily defined term's common usage, arguing that such common usage is "the most significant element of the definition's context." Id. at –––– (quoting ANTONIN SCALIA & BRYAN A. GARNER , READING LAW: THE INTERPRETATION OF LEGAL TEXTS 232 (2012)). Ironically, in emphasizing the importance of context, the dissent ignores the context of the principle it espouses. That principle is simply a presumption against "counterintuitive definitions," such that "[t]he normal sense of [the defined term] and its associations bear significantly on the meaning of ambiguous words or phrases in the [statutory] definition." SCALIA & GARNER , supra , at 232. Neither Miles nor the dissent contends that any of the words or phrases in the statutory definition of "interurban electric railway company" is ambiguous. Nor is the definition "counterintuitive"—the Legislature did not enact the equivalent of a statute defining the word dog to include all horses. See id. at 232 n.29 (citing Garner's Dictionary of Legal Usage 258 (3d ed. 2011)). The dissent uses the common meaning of "interurban" not to clarify ambiguous terms in a statutory definition, but to change the meaning of unambiguous terms.
Of course, we may not rewrite statutes to broaden their applicability beyond what the plain language encompasses. The United States Supreme Court recently opined as much in analyzing the Telephone Consumer Protection Act of 1991, which made it unlawful to make certain calls using an "autodialer." Facebook, Inc. v. Duguid , ––– U.S. ––––, 141 S. Ct. 1163, 1167, 209 L.Ed.2d 272 (2021). The Act defines an autodialer as equipment with the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator" and "to dial such numbers." 47 U.S.C. § 227(a)(1). Rejecting the argument that the Act applies to newer technology with "the ‘capacity to dial numbers without human intervention,’ " the Court held that Congress "did not define an autodialer as malleably as [the respondent] would have liked" and instead focused specifically on "random or sequential number generator technology." Duguid , 141 S. Ct. at 1172–73. That reasoning is instructive here. We could not interpret Chapter 131 of the Transportation Code to apply to a corporation constructing a railway for the operation of a steam-powered locomotive, which would require us to ignore the statute's focus on an "electric railway." But nothing in Chapter 131's language limits its applicability to only the "small, single-train, streetcar-based operations" Miles describes. The Texas Central Entities’ proposed railway is an "electric railway between municipalities in this state for the transportation of ... passengers," as Section 131.012 requires. Cf. Kyllo v. United States , 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (construing the Fourth Amendment "in the light of what was deemed an unreasonable search and seizure when it was adopted" and holding that the use of thermal imaging from outside the target residence constituted a "search" that was "presumptively unreasonable without a warrant" (citation omitted)). The Legislature used broad language that, again, contains no limitation on the speed of the trains that would transport passengers along those electric railways.
Moreover, Miles necessarily uses inconsistent interpretive lenses to argue that the Texas Central Entities are neither railroad companies (legal entities "operating a railroad") nor interurban electric railway companies. As to the latter, he relies on the state of affairs when Chapter 131 was enacted in its original form. As to the former, he argues that a railroad company cannot include entities that have not yet laid any track, which wholly ignores the historical context in which railroads were granted eminent-domain authority. While we need not decide whether the Texas Central Entities are railroad companies, the manner in which "historical context" is considered should not be massaged to effectuate a desired outcome. It should be consistently applied across the board.
We also note that, according to Miles, Chapter 131 applies to a kind of train "that has ‘been extinct in Texas since 1948.’ " The dissent agrees, opining that Chapter 131 extends only to a mode of transportation that was "virtually annihilated" by the mid-1930s. Post at 640–41 (Huddle, J., dissenting). But nothing in the statute limits its application in this way. Moreover, under that view, Chapter 131 has remained on the books yet served no purpose for the last seventy-four years. And notably, the statute was recodified in 2009 "as a part of the state's continuing [nonsubstantive] statutory revision program," the purpose of which was "to make the law ... more accessible and understandable by," among other things, "eliminating repealed, duplicative, expired, and executed provisions." Act of May 11, 2009, 81st Leg., R.S., ch. 85, § 1.01, 2009 Tex. Gen. Laws 153, 153. In light of this recent recodification, the dissent's assertion that we have "resurrect[ed]" the statute rings hollow. Post at 639 (Huddle, J., dissenting). Indeed, leaving Chapter 131 on the books as part of this statutory revision program makes little sense if it is as outdated and useless as Miles and the dissent claim.
Next, Miles cites various Transportation Code provisions that specifically apply to high-speed rail but are not contained in Chapter 131. Specifically, Section 111.103 authorizes the Texas Department of Transportation to adopt safety standards for high-speed rail systems, defined as "passenger rail service capable of operating at speeds greater than 185 miles per hour," TEX. TRANSP. CODE § 111.103(a) – (b) ; Section 112.204 requires a high-speed rail operator to implement security standards, id. § 112.204; and Section 199.003 prohibits the Legislature from appropriating money to pay costs associated with "high-speed rail"—defined in that section as "intercity passenger rail service that is reasonably expected to reach speeds of at least 110 miles per hour"—"operated by a private entity," id. § 199.003(a)–(b). We fail to see how the existence of statutory provisions applicable to high-speed rail, a term that is defined differently depending on the provision, somehow indicates that it does not fall within the scope of the "electric railway" that is the subject of Section 131.012 ’s grant of eminent-domain authority, particularly when nothing in those provisions is incompatible with Chapter 131.
Finally, Miles asserts that the Legislature's 1989 enactment, and 1995 repeal, of the High-Speed Rail Act demonstrates that Chapter 131 cannot encompass the Texas Central Entities and their proposed railway. We disagree. That Act established a state agency to award a franchise to a private entity to construct, operate, and maintain a high-speed rail facility, and it gave the agency the authority to exercise the power of eminent domain. See Act of May 29, 1989, 71st Leg., R.S., ch. 1104, § 1, 1989 Tex. Gen. Laws 4564, 4564–65 (repealed 1995). As the Texas Central Entities argue, the Legislature essentially created a public–private partnership with the Act's enactment and then dissolved that partnership with the Act's repeal. It did not purport to restrict eminent-domain authority granted by other statutes. And it is telling that, in arguing that the Texas Central Entities do not qualify as "railroad companies"—which also have eminent-domain authority under the Transportation Code—Miles does not rely on the High-Speed Rail Act or contend that the grant of eminent-domain authority to a railroad company does not encompass high-speed rail. But we see no principled basis to conclude that a "railroad company" includes a high-speed rail operator while an "interurban electric railway company" does not.
Arguing that "[o]ther intervening changes in the law further cut against [our] conclusion," the dissent erroneously relies on a 2009 constitutional amendment requiring "a two-thirds vote of each house of the legislature to grant the power of eminent domain to an entity (public or private)." Post at 645 n.18 (Huddle, J., dissenting); Tex. Const. art. I, § 17 (c). The amendment erects barriers against conferring eminent-domain authority going forward, but it places no restrictions on existing authority at the time of its adoption. And the amendment easily could have done so; for example, it could have required the Legislature to ratify existing delegations of authority or added restrictions on the future exercise of that authority. It did not. Far from supporting the dissent's subversion of Chapter 131's plain language, the amendment reflects a conscious choice to leave existing eminent-domain authority intact and unaltered.
By the same token, the dissent's assertion that the High-Speed Rail Act "would have been unnecessary if any private entity could simply charter as an interurban" and invoke eminent-domain authority is simply incorrect. Post at 645 (Huddle, J., dissenting). The Act created a public–private partnership for funding the high-speed rail project that was contemplated at that time and eventually abandoned. But as noted, the Act had no effect on other eminent-domain statutes. For example, if Amtrak were seeking to exercise eminent-domain authority as a railroad company to operate high-speed rail, one could not plausibly argue that the enactment and repeal of the High-Speed Rail Act forecloses that authority. In other words, the repeal of the High-Speed Rail Act surely does not prevent "railroad companies" from operating high-speed rail.
In sum, we hold that Section 131.012 ’s plain, unambiguous language confers eminent-domain authority on the Texas Central Entities. While we resolve doubts about the scope of eminent-domain power in favor of the landowner, none are presented here.
2. Denbury and "Reasonable Probability of Completion"
Miles argues that, even if a high-speed rail operator could be an interurban electric railway company with eminent-domain authority under Chapter 131, neither of the Texas Central Entities may qualify as such a company merely by filing a charter purporting to be one. See Denbury I , 363 S.W.3d at 204 ("A private enterprise cannot acquire unchallengeable condemnation power [as a common carrier] merely by checking boxes on a one-page form and self-declaring its common-carrier status."). Citing Denbury I and Denbury Green Pipeline–Texas, LLC v. Texas Rice Land Partners, Ltd. , 510 S.W.3d 909 (Tex. 2017) ( Denbury II ), Miles contends that a private entity asserting eminent-domain authority "must demonstrate a ‘reasonable probability,’ through objective evidence, that ... it will produce the public good for which such authority is sought." He argues that the Texas Central Entities have failed to satisfy this "reasonable probability" test because they cannot raise a fact issue, let alone conclusively establish, that the project "has even a ‘reasonable probability’ of success." While both the Texas Constitution and our precedent preclude an entity from obtaining condemnation authority by checking a box, they do not support the reasonable-probability-of-completion test Miles proposes, which would constitute an unwarranted sea change in eminent-domain law with far-reaching consequences.
In Denbury I , we examined the Natural Resources Code's grant of eminent-domain authority to a common carrier, defined in pertinent part as a person who "owns, operates, or manages ... pipelines for the transportation of carbon dioxide ... to or for the public for hire." 363 S.W.3d at 197 (quoting TEX. NAT. RES. CODE § 111.002(6) ). We explained that a person's common-carrier status under that provision hinges on the anticipated pipeline's serving the public, a result mandated not only by the statute's language but also by the Texas Constitution's prohibition against the taking of private property for private use. Id. at 200. And for a pipeline to "serve the public[,] it cannot be built only for the builder's exclusive use." Id. We thus held that "for a person intending to build a CO2 pipeline to qualify as a common carrier under Section 111.002(6), a reasonable probability must exist that the pipeline will at some point after construction serve the public by transporting gas for one or more customers who will either retain ownership of their gas or sell it to parties other than the carrier." Id. at 202 (internal footnotes omitted). Relatedly, we held that the pipeline owner's "mere assertions of the possibility of public use" were insufficient to meet that standard, particularly in the face of record evidence suggesting the owner "would transport gas only for its own tertiary recovery operations." Denbury II , 510 S.W.3d at 914–15. On remand, the owner adduced the objective evidence required to establish a reasonable probability that the pipeline would, at some point after construction, serve at least one unaffiliated customer. Id. at 917.
We agree with Miles that, under Denbury I , the Texas Central Entities do not qualify as interurban electric railway companies with associated eminent-domain authority merely by claiming as much in their charters, the equivalent of "checking a box." However, there is no dispute that the Texas Central Entities (1) were actually chartered for the statutorily authorized purpose of "constructing, acquiring, maintaining, or operating lines of electric railway between municipalities in this state for the transportation of freight, passengers, or both freight and passengers," TEX. TRANSP. CODE § 131.012 ; and (2) are engaged in activities in furtherance of that purpose. Nor is there any question that the proposed railway is for "public use." See TEX. CONST. art. X, § 2 ("Railroads heretofore constructed or which may hereafter be constructed in this state are hereby declared public highways, and railroad companies, common carriers."); see also West v. Whitehead , 238 S.W. 976, 978 (Tex. Civ. App.—San Antonio 1922, writ ref'd) ("If a railroad invoking the power of eminent domain is to be a highway, or a common carrier, and open to the promiscuous and uniform use of the public, such facts conclusively make it a public use ...."). Miles's argument that the Texas Central Entities must further show a reasonable probability that the railway will be successfully completed finds no support in Denbury or the Constitution.
Unlike Miles and his supporting amici, Justice Devine ’s dissent opines that the proposed railway cannot be for public use because one of its purposes is to benefit the economy. Post at 637–38 (Devine, J., dissenting); see Tex. Const. art. I, § 17 (b) ("In this section, ‘public use’ does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues."). Miles has not challenged the Texas Central Entities’ eminent-domain authority for failure to comply with Article I, Section 17 ’s requirement that the taking be for a public use; more specifically, he has not claimed at any stage of this litigation that the proposed taking falls within Article I, Section 17(b) ’s express limitation on what qualifies as "public use" notwithstanding the Texas Constitution's designation of existing or future railroads as "public highways" and railroad companies as "common carriers." Tex. Const. art. X, § 2. Nor have the parties addressed whether this case involves a potential "taking of property ... for transfer to a private entity." Id. art. I, § 17(b). We decline to raise and decide an issue that Miles has not presented or argued. Powell v. City of Houston , 628 S.W.3d 838, 843 (Tex. 2021) ("Our adversary system of justice ‘depends on the parties to frame the issues for decision and assign[s] to courts the role of neutral arbiter of matters the parties present.’ " (quoting Pike v. Tex. EMC Mgmt., LLC , 610 S.W.3d 763, 782 (Tex. 2020) )).
Miles's attempt to contort Denbury in this way is rooted in legitimate policy justifications: the "result is vital," he contends, "to protect Texas landowners from ill-equipped entities ... who seek to seize land for speculative projects only to inevitably abandon it when their funding runs dry or regulatory hurdles cannot be cleared." The extent to which the Texas Central Entities are in fact "equipped" to finance and complete the project is hotly disputed, but regardless of who is correct on that front, Texas law envisions and addresses just that concern and others, providing numerous protections to property owners who are the subject of condemnation proceedings. Among other protections:
• The property may not be taken, damaged, or destroyed for or applied to private use. TEX. CONST. art. I, § 17 (a); Denbury I , 363 S.W.3d at 194–95.
• The property may not be taken without "adequate compensation being made." TEX. CONST. art. I, § 17 (a); TEX. PROP. CODE § 21.042(c) ("If a portion of a tract or parcel of real property is condemned, the special commissioners shall determine the damage to the property owner after estimating the extent of the injury and benefit to the property owner, including the effect of the condemnation on the value of the property owner's remaining property.").
• Railroad companies and interurban electric railway companies are responsible for all damages that may be caused by examining and surveying a person's property pursuant to their eminent-domain authority. TEX. TRANSP. CODE §§ 112.051(b), 131.013(b)(2).
• Judicial review is available to challenge a taking when the condemnor's actions are fraudulent, in bad faith, or arbitrary and capricious. City of Austin v. Whittington , 384 S.W.3d 766, 777 (Tex. 2012).
• A property owner is entitled to recover reasonable and necessary attorney's fees and expenses incurred in a condemnation proceeding dismissed by the condemnor. TEX. PROP. CODE § 21.019(b).
• If "the public use for which the property was acquired through eminent domain is canceled before the property is used for that public use" or "no actual progress is made toward the public use for which the property was acquired between the date of acquisition and the 10th anniversary of that date," the owner is entitled to repurchase the property "for the price paid to the owner by the entity at the time the entity acquired the property through eminent domain." Id. §§ 21.101, .103(b).
The constitutional and statutory provisions governing eminent domain, as a whole, reflect a balance between the rights of property owners and the benefits served by projects for which eminent domain is authorized. It is not our place to second-guess the product of that balance. See McIntyre v. Ramirez , 109 S.W.3d 741, 748 (Tex. 2003).
Miles asserts that a property owner's right to repurchase the property under Texas Property Code Section 21.103 in the event the project is ultimately canceled or indefinitely stalled "will not compensate the landowner for the damage done to it or the stigma associated with encumbrances like railway easements," nor will it compensate for any "vacant buildings, useless tracks, and 40-foot-high embankments" left behind "if the project is abandoned after some of the rail line is actually built." Perhaps not, and perhaps the policy reasons in favor of amending the statutory framework to provide additional landowner protections outweigh the reasons against it. But that is not for us to decide. "We must respect policy-laden statutes as written and give wide leeway to the innumerable trade-offs reflected therein." Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 462 (Tex. 2009) ; see also Lippincott v. Whisenhunt , 462 S.W.3d 507, 508 (Tex. 2015) (noting that courts may not "judicially amend a statute").
The reasonable-probability-of-completion test Miles proposes—or, as he frames it, the requirement that an entity seeking to exercise eminent-domain authority establish a reasonable probability at the outset of a project that it "will produce the public good" for which such authority is sought —would constitute an unprecedented and improper judicial intrusion into the legislative sphere. Further, Miles has no reasoned response to the Texas Central Entities’ argument that such a test would necessarily apply to both private and public entities exercising condemnation authority and would potentially imperil any number of large public infrastructure projects. It is within the Legislature's province to limit condemnation authority in this way, but it simply has not done so.
Framing the test yet another way, the State as amicus asserts that the Texas Central Entities lack eminent-domain authority "because they cannot show a likelihood that they will procure financing to complete the project."
3. Expiration of Authority
Texas Government Code Section 2206.101, applicable to entities that were created and "acquired the power of eminent domain" before December 31, 2012, required such entities to "submit to the comptroller [no later than December 31, 2012,] a letter stating that the entity is authorized by the state to exercise the power of eminent domain and identifying each provision of law that grants ... that authority." TEX. GOV'T CODE § 2206.101(a) – (b). Failure to "submit[ ] a letter in accordance with Subsection (b)" resulted in the expiration of the entity's eminent-domain authority on September 1, 2013. Id. § 2206.101(c).
Texas Central Railroad, which was formed in December 2012 but amended its charter in 2015 to state the company's purpose of operating an interurban electric railway company, submitted a letter to the comptroller on December 26, 2012, identifying Transportation Code provisions that grant eminent-domain authority to railroad companies. The letter did not identify Texas Central Railroad as an interurban electric railway company or reference Chapter 131. Relying on this letter, Miles argues that any eminent-domain authority Texas Central Railroad otherwise had as an interurban electric railway company expired on September 1, 2013. Miles does not contend that Texas Logistics’ authority expired, as that entity was not formed until 2017 and thus is not subject to Section 2206.101 of the Government Code.
The court of appeals held that, because Texas Central Railroad did not amend its charter until January 21, 2015, to state its purpose as being to build and operate an interurban electric railroad, it did not acquire eminent-domain authority under Chapter 131 before that date and thus "could not have been expected to file a letter with the comptroller purporting to have eminent domain powers that it had not yet acquired." 635 S.W.3d at 694. We agree. As the court of appeals noted, " Section 131.011 requires a corporation to be chartered for a specific purpose: ‘to conduct and operate an electric railway between two municipalities in this state.’ " Id. at 692 (quoting TEX. TRANSP. CODE § 131.011 ). That stated purpose is a necessary component of acquiring eminent-domain authority under Chapter 131. Accordingly, Texas Central Railroad's eminent-domain authority under that chapter did not expire in 2013.
C. Railroad Company
The CHIEF JUSTICE'S concurrence would hold that the Texas Central Entities also obtain eminent-domain authority as "railroad companies." Post at –––– (Hecht, C.J., concurring). We do not address that ground for affirmance of the court of appeals’ judgment, not because we disagree with the concurrence, but because we need not reach the issue in light of our holding that the entities have eminent-domain authority as interurban electric railway companies.
IV. Conclusion
On the narrow issue presented, we hold that the Texas Central Entities have eminent-domain authority under Chapter 131 of the Texas Transportation Code. The court of appeals thus correctly (1) reversed the trial court's judgment, (2) rendered judgment granting the Texas Central Entities’ motion for partial summary judgment and denying Miles's summary-judgment motion, and (3) remanded for reconsideration of the issue of attorney's fees and costs. We affirm the court of appeals’ judgment.
Chief Justice Hecht filed a concurring opinion, in which Justice Young joined.
Justice Young filed a concurring opinion.
Justice Devine filed a dissenting opinion.
Justice Huddle filed a dissenting opinion, in which Justice Devine and Justice Blacklock joined.
Justice Bland did not participate in the decision.
Chief Justice Hecht, joined by Justice Young, concurring.
The Texas Central Entities argue that they are an "interurban electric railway company" with the power of eminent domain under Chapter 131 of the Texas Transportation Code to acquire property for a high-speed railway between Dallas and Houston. The Court agrees and thus does not need to reach the Texas Central Entities’ additional argument that they are a "railroad company" with the same power under Section 81.002 of the Code. I join the Court's opinion in full but write briefly to explain why I agree with the Texas Central Entities’ Section 81.002 argument.
I adopt the Court's short-form reference for respondents Texas Central Railroad & Infrastructure, Inc. and Integrated Texas Logistics, Inc.
See, e.g., State by Comm'r of Transp. v. Elbert , 942 N.W.2d 182, 188 (Minn. 2020) ; Township of West Orange v. 769 Assocs., LLC , 198 N.J. 529, 969 A.2d 1080, 1085 (2009).
John Adams, Marchmont Nedham: The Right Constitution of a Commonwealth, Examined , A Defence of the Constitutions of Government of the United States of America (1790), in 6 The Works of John Adams 9 (Boston, Bolles & Houghton 1851).
I refer to these two corporate entities, Texas Central Railroad & Infrastructure, Inc. and Integrated Texas Logistics, Inc., collectively as "Texas Central."
As Justice Devine's eloquent dissent puts it—and I agree—"[t]his Court has long recognized that strong judicial protection of individual property rights is essential to freedom itself." Post at 636 (Devine, J., dissenting); accord post at 640 (Huddle, J., dissenting).
See Severance v. Patterson , 370 S.W.3d 705, 709 (Tex. 2012) (stating that private property rights are "fundamental, natural, inherent, inalienable, not derived from the legislature" (quoting Eggemeyer v. Eggemeyer , 544 S.W.2d 137, 140 (Tex. 1977))).
Infrastructure , Texas Central , https://www.texascentral.com/infrastructure/ (last visited June 10, 2022).
Section 81.002 defines a railroad company to include, in subsection (1), "a railroad incorporated before September 1, 2007," and, in subsection (2), "any other legal entity operating a railroad". Miles argues that "operating a railroad" means running trains on tracks. Consequently, Section 112.053's authorization to a railroad company to "acquire property by condemnation" extends only to entities with trains and tracks. The chicken-and-egg illogic is obvious: an entity cannot obtain a right-of-way on which to run trains on tracks without first running trains on tracks.
Id.
Chapter 21 of the Property Code is devoted to the complexities of eminent-domain practice. The condemnation process may take years, and a Texas property owner generally has no right to seek attorney's fees or compensation for her time. Just one example of the various intricacies that can entrap an unwary property owner is how Texas law resolves disagreements about the property's value. If the condemnor and the property owner cannot reach an agreement, the condemnor sues the property owner. Id. § 21.012. The property owner must affirmatively defend her right to compensation. She waives her right to have a judge (or jury) determine the amount of compensation if she does not quickly file specific objections to the results of an administrative process. Id. § 21.018; see also, e.g., John v. State , 826 S.W.2d 138, 141 n.5 (Tex. 1992) (noting that, unless objections are timely filed, the court may only perform the ministerial function of rendering judgment on the administrative process's property valuation).
George W. Hilton & John F. Due , The Electric Interurban Railways in America vii (1960); see Robert A. Rieder, Electric Interurban Railways , Handbook of Texas Online , https://www.tshaonline.org/handbook/entries/electric-interurban-railways (last visited June 10, 2022).
Id. § 112.053(a).
For example, in June 2020, the U.S. Supreme Court decided a permit dispute for a pipeline project in favor of a pipeline company delegated eminent-domain power by Congress. U.S. Forest Serv. v. Cowpasture River Pres. Ass'n , ––– U.S. ––––, 140 S. Ct. 1837, 1841, 207 L.Ed.2d 186 (2020). A few weeks later, the pipeline company canceled its project. Niskanen Ctr. v. FERC , 20 F.4th 787, 793 (D.C. Cir. 2021) (Randolph, J., concurring). But the pipeline company had already taken easements across some properties and had begun clearing land for its pipeline. See Atl. Coast Pipeline, LLC v. 5.63 Acres, More or Less, in Buckingham County, Va. , No. 3:18-CV-6, 2018 WL 1097051, at *11, *17 (W.D. Va. Feb. 28, 2018) (granting the pipeline company immediate possession so it could begin cutting trees).
Tex. Const. art. I, § 17 (a)-(b) (emphasis added).
Hilton & Due , supra note 3, at 3.
The answer, Miles argues, is that an aspiring railroad company can simply partner with an existing railway. In other words, Section 81.002 banned all new railways in Texas incorporated after September 1, 2007. Miles points to nothing in Texas’ history of railway regulation suggesting that the Legislature had so draconian an intent in enacting Section 81.002. But we need not speculate whether that somehow could have been the Legislature's purpose, however unlikely. The illogic of Miles’ argument is firmly rebutted by Section 112.053's full text, which states:
(a) A railroad company may acquire property by condemnation if the company cannot agree with the owner for the purchase of the property and the property is required for any of the following purposes:
(1) the incorporation of the railroad;
(2) the transaction of company business;
(3) depots, station buildings, and machine and repair shops;
(4) the construction of reservoirs for the water supply;
(5) the right-of-way, or new or additional right-of-way;
(6) a change or relocation;
(7) a roadbed;
(8) the shortening of a line;
(9) the reduction of grades;
(10) the double tracking of the railroad or the construction and operation of tracks; or
(11) any other purpose connected with or necessary to the building, operating, or running of the railroad.
Id.
593 S.W.3d 175, 194 (Tex. 2019) ("And we readily agree that constitutional text—especially when it has been amended since this Court developed its public-use jurisprudence—should rule over judge-invented interpretive rules."); see ETC Mktg., Ltd. v. Harris Cnty. Appraisal Dist. , 528 S.W.3d 70, 89 (Tex. 2017) (Brown, J., concurring) ("The text of the [Texas] Constitution, interpreted in light of its original meaning, should prevail over slavish devotion to judge-made, form-over-substance, multi-factor tests.").
Id.
A railroad company may condemn property for "the right-of-way" and "roadbed"—that is, before tracks are laid. It may condemn property before incorporating—that is, before doing any business at all. And it may condemn property for "any other purpose connected with or necessary to the building ... of the railroad", as well as for operating and running it.
Id. § 112.053(a)(5), (a)(7).
As Miles explains, "That is why the citizens of Texas have enshrined in their Constitution the requirement that ‘private entit[ies]’ can exert eminent domain authority only for ‘public use,’ and under conditions authorized ‘under law.’ "
Id.
Id. § 112.053(a)(1).
Ante at –––– n.17.
Id. at 7.
Id. § 112.053(a)(11) (emphasis added).
Davis v. United States , 512 U.S. 452, 464, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (Scalia, J., concurring).
H. Roger Grant, "Interurbans Are the Wave of the Future": Electric Railway Promotion in Texas , 84 Sw. Hist. Q. 29, 29–30 (July 1980).
Clearly from these provisions, the meaning of "operating a railroad" cannot be restricted to running trains on tracks. Rather, it must extend to the operation of the railroad business from its inception, including the acquisition of tracks, trains, and other facilities. This is consistent with the statutory extension of the power of eminent domain to common carriers, including one that "owns, operates, or manages a pipeline". By Miles’ logic, any would-be pipeline operators could never own, operate, or manage a new pipeline because the pipeline must already be in use to acquire a right-of-way. Miles’ argument would not only shut down new railways, but new pipelines as well.
Tex. Nat. Res. Code § 111.019(a) ("Common carriers have the right and power of eminent domain.").
See Tex. Const. art. I, § 17 (b).
Clarence A. Beutel, The Interurban Electric Railway as a Modern Development of the Use of the Streets and Highways or as an Additional Burden , 2 Va. L. Reg. 17, 17–18 (1916).
Id. § 111.002.
Thus, while I join fully in the Court's opinion that the Texas Central Entities may condemn property for a high-speed railway as an "interurban electric railway company" under Chapter 131, I would also hold that they may do so as a "railroad company" under Section 81.002.
Justice Young, concurring.
Eminent-domain power has repeatedly been called one of the most "awesome" powers of government.1 "Scary" is another fitting term. The very words eminent domain and condemnation sound foreboding, and they should. They represent the sovereign's power to unilaterally strip individuals of property rights—rights that may have been gained at great cost. Condemnation is an extraordinary intrusion that often destroys homes, scars farmland that generations have cultivated, disrupts thriving businesses, and far more. It is an act of force by the government that uneasily coexists with the strong protection of individual property rights that Texas law guarantees. We have described "the fundamental right of property" as being "among the most important [rights] in Texas law." S.C. v. M.B. , --- S.W.3d ––––, 2022 WL 2192167, at *15 (Tex. June 17, 2022).2
On occasion, to serve a public purpose, a citizen's private property must be taken without his consent. We tolerate such intrusions because society cannot function without roads, schools, military facilities, and other vital infrastructure. Eminent domain also requires "just" or "adequate" compensation, to be sure. U.S. Const. amend. V ; Tex. Const. art. I, § 17 (a). But the condemnation process is complicated, time-consuming, and sometimes confusing.3 And no compensation can accurately value the sweat, tears, pride, love, beauty, and history that, for some property at least, is its chief value. A given exercise of eminent domain may turn out to be all for nothing, too. Grand plans can fail. Property may therefore be permanently damaged without purpose.4
These circumstances help explain why our law directs Texas courts to carefully scrutinize any exercise of eminent-domain authority. Condemnation is one area in which the government must turn sharp corners. It is a fit role for the judiciary to ensure that the government stays in its lane.
How much harder it is, then, when a private entity is the one wielding the power of eminent domain—without direct governmental oversight or the backing of the public fisc. Such a situation can only heighten the need for judicial vigilance. On these points I readily agree with my dissenting colleagues. See, e.g., post at 639–40, 643–44 (Huddle, J., dissenting); post at 638 & n.13 (Devine, J., dissenting). I see nothing in the Court's opinion that disagrees, either. The law remains the same: If there is any "doubt as to the scope of the power, the statute granting such power is strictly construed in favor of the landowner and against those corporations ... vested therewith." Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline–Tex., LLC , 363 S.W.3d 192, 198 (Tex. 2012) (quotation omitted).
Consequently, the courts should cast a jaundiced eye on any exercise of eminent-domain authority, especially when a private entity wants to seize another citizen's property. The charge that "the Court today abandons these longstanding principles," post at 639 (Huddle, J., dissenting), gets it entirely backward. This case has received the exacting level of scrutiny that our cases demand. Both the lower courts and this Court have invested untold hours to this litigation. Today's decision does not dispense with heightened scrutiny or strict compliance with the law. Today's decision is an implementation of those principles.
Not only has the Court remained true to those principles, it has applied them correctly. The methodological question here is of great importance. Every member of this Court agrees that doubts must be construed in the landowner's favor. But the kind of "doubt" that counts is the kind that arises from legal text, not from gut instincts or guesses.
In other words, it is not remotely enough for us to "doubt" that the legislature, if starting from scratch, would authorize a particular taking. It is not enough to speculate about "what the Legislature actually envisioned," post at 642 (Huddle, J., dissenting), and assume that the real statute maps on to some "envisioned" use of it rather than what its text clearly says. Reverse-engineering a statute to figure out what was "envisioned," id. , or what might have been the "intention of the statute," id. at 640, would lead only to the bad old days, when courts proclaimed what the legislative purpose was and then made the text obey. Rarely has a judge using such a methodology reached a result that the judge dislikes.
Likewise, I wholeheartedly share the view that "the meaning of a statute that governs is the ordinary meaning commonly understood at the time of enactment." Id. at 643 (quotation omitted). Indeed, that is the only thing that an enactment can mean—its meaning cannot change merely with the passage of time. Take this case, for example. If high-speed rail had existed and was well known when the legislature passed the statutes that grant eminent-domain authority here, and if it was clear that reasonable speakers of English at the time thought that those statutes did not cover high-speed rail, we would certainly conclude that those statutes do not cover high-speed rail today, either. But when a statute defines its scope by using clear words that prescribe specific conditions, such a law reaches new developments that satisfy the specified statutory criteria. See ante at 624. An important part of the promise of the rule of law itself extends to those who arrange their affairs in compliance with what the law requires or authorizes. If the legislature wants to cabin its statutes to existing conditions or to exclude anything that has not yet been invented, it has many tools to do so. Definition sections, sunset provisions, and other textual limitations can bound a statute's scope. The legislature can repeal or amend the statute. But when it deploys none of those tools, as with these statutes, courts cannot enter the legislative arena and do so themselves. I say all this to emphasize the fundamental point before us: that we can judicially invalidate an exercise of condemnation only upon the kind of "doubt" about the scope or meaning of statutory or constitutional provisions that is textually demonstrable. Even when we would much rather the result be different, and even when we persuade ourselves that the legislature must have intended otherwise, "we are bound" by "the words of the statute" and cannot "rewrite those words to achieve an unstated purpose." See BankDirect Cap. Fin., LLC v. Plasma Fab, LLC , 519 S.W.3d 76, 86–87 (Tex. 2017) (quotation omitted). Cf. Hegar v. Health Care Serv. Corp. , ––– S.W.3d ––––, 2022 WL 2183069 (Tex. June 17, 2022) (Blacklock, J., dissenting) (emphasizing that when the words of a statute deprive us of "confidence one way or the other" about the statute's meaning, clear-statement rules may supply a tie-breaker).
Given what can qualify as a judicially cognizable "doubt" in the first place, there is no reasonable doubt about any relevant text before us today. It is one thing to agree, as I do and we all do, that textual doubt about the authorization of eminent domain must be resolved against the exercise of that power. It is quite another thing to expand the terrain from the reasonable scope of statutory language all the way to the edge of what is barely conceivable. That sort of hunt for doubt will never miss its prey. We can always create some doubt about whether the legislature, if asked today about a particular use of eminent domain, would approve it.
One basis for supposed doubt today is that the intrusion into private-property interests that is required to build the project at issue here is massive. It certainly is. But while that feature may focus our attention or lead us to exercise special care (which we have done), the size of the intrusion cannot affect the legal analysis itself. The judiciary cannot green-light a tiny violation of a Texan's rights, but neither can it impede a huge intrusion if it is one that the law permits. For the courts, at least, the question truly does reduce to determining what the words of the Texas Constitution and statutes actually mean.
On that score, I cannot regard this case as particularly close. The Texas Constitution expressly authorizes the use of eminent domain by private entities. Tex. Const. art. I, § 17 (a)(1). Many Texas statutes expressly extend that power to private entities, and two such statutes apply to the Texas Central Entities. Tex. Transp. Code §§ 81.002(2), 112.002(5), 131.011 – 131.012. To use the power of the judiciary to thwart the use of this authority, we must conclude that neither statute applies. But both of them do.
First, as the Court's well-written opinion articulates, the delegation of eminent-domain power to "corporation[s] chartered under the laws of this state to conduct and operate an electric railway between two municipalities in this state" includes the delegation of power to the Texas Central Entities. Tex. Transp. Code § 131.012. Those two entities, chartered under Texas law, were formed for the very purpose of operating an electric railway between two Texas municipalities. If the legislature wishes to withdraw the power that it delegated—that the Constitution allows it to delegate—it does not need this Court's help. Nothing about the current delegation turns on the fact that technology has evolved so that an electric railway is faster, has a greater capacity, and can travel longer distances. None of those features is relevant to the text or context of a statute that has long been part of our law. We would rewrite the statute, not resolve "doubt" about the statute, if we allowed technological improvements to displace the text.
Second, the Texas Central Entities are also "operating a railroad" under Transportation Code § 81.002, as the Chief Justice's concurrence explains. Any doubt that the legislature intended to restrict eminent-domain power to only entities currently operating a railroad is wiped away because the legislature elsewhere clarified that a railroad company "may acquire property by condemnation" for "the incorporation of the railroad," to obtain "the right of way, or new or additional right-of-way," or for "any other purpose connected with or necessary to the building, operating, or running of the railroad." Tex. Transp. Code § 112.053 (emphasis added). This language reveals that the legislature intended to grant nascent railroad entities, including those not yet operating trains on tracks, the power to condemn property so they might acquire "the right of way" and "build [ ] ... the railroad." Id. (emphases added). I respect my dissenting colleagues’ understanding of the text and fully credit that what divides us is only our different good-faith efforts to read it. But I find it implausible and countertextual that the Texas Legislature would gladly welcome an existing railroad company chartered in China or Chile to come and seize the property of Texas citizens to build a new railroad but would forbid a new Texas company from doing so. I cannot see the logic or textual command to support that result and I thus cannot join my dissenting colleagues. The legislature, I suppose, could limit eminent-domain delegations to entities that are expanding existing railroad operations in Texas or expanding from some other locale to Texas, but it has not done so.
* * *
As a result, the Court today keeps the promise that every judicial system must make if it wants to remain judicial : "to have neither FORCE nor WILL, but merely judgment ...." The Federalist No. 78 , at 490 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961). That thought likely is cold comfort to those who have fought to protect their property. I acknowledge that reaction; I respect it; I share in the frustration that must accompany it. But without devaluing the affected property interests in the slightest, I am convinced that today's decision reflects something of great value even to those who face great loss: the judiciary's commitment to the rule of law and to the self-government of the People of Texas.
The People have authorized the eminent-domain authority at issue here both through the Constitution itself and through the statutes enacted by their elected representatives. If that authority should be further restricted—and maybe it should—that choice is up to the People, too. As judges, we have no authority to go beyond clearly saying what the law is. Statutes that satisfy the Constitution—and no constitutional challenge was even brought here—are not for us to "fix." Judicially circumscribing eminent-domain authority of the sort at issue here would be a well-intended but ultimately dangerous intrusion into the system of self-government that we value so highly.
It is when the stakes are high that the lines of separation between the branches matter most. The stakes here clearly are high. The parties’ briefs, and the briefs and letters from amici that we have received, all agree on that point. Many speak with eloquence and urgency to the serious and even fearsome risks of eminent domain. But even more alarming is the prospect of the judiciary exceeding its role, even when—perhaps especially when—the issue presented is of great importance. I wholly agree that we must view with suspicion any claim of authority to wield eminent-domain power, and I will always subject such a claim to exacting scrutiny. Reversing the judgment below, however, would require something more: a textual basis to doubt the scope of the statutes at issue here. I see no good basis for disregarding the plain text. I therefore join both the Court's opinion and the Chief Justice's concurrence.
Justice Devine, dissenting.
The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.1
– John Adams
This Court has long recognized that strong judicial protection of individual property rights is essential to freedom itself.2 Texas has traditionally followed the lead of federal courts regarding eminent-domain authority. In Kelo v. City of New London , the United States Supreme Court upheld a city's taking of private property through eminent domain only to turn it over to private parties for economic development.3 But Kelo sparked a revolution in Texas exemplified by judicial and legislative decisions that strove to ensure that constitutionally granted property rights are protected.
One such change came in 2009 when, in response to Kelo , Texans amended the Texas Constitution to rein in the activist judiciary's expansion of eminent-domain powers. Today, the Court ignores Article I, Section 17 of the Texas Constitution and hammers another nail in the coffin of private property rights. Texas's Takings Clause could not be clearer regarding limits on the concept of "public use." It provides, in pertinent part:
(a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:
(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:
(A) the State, a political subdivision of the State, or the public at large; or
(B) an entity granted the power of eminent domain under law; or
(2) the elimination of urban blight on a particular parcel of property.
(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues. 4
This Court has not addressed Section 17 (b) since its amendment in 2019. However, in KMS Retail Rowlett, LP v. City of Rowlett , the Court responded to the dissent by acknowledging that it would welcome the opportunity to explore Section 17 (b)’s impact on public-use jurisprudence.5 Although this case presents such an opportunity, the Court squanders it.6
The Court "decline[s] to raise and decide an issue that Miles has not presented or argued."7 "[T]he refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary."8 This is such a time. There are few things of more importance than Texans’ private property rights. The Court fails to consider that Texas Central itself recognizes that the primary purpose of building the proposed high-speed train is for economic development or enhancement of tax revenues in direct violation of the Texas Constitution's Takings Clause.9 In fact, Texas Central's very first argument in opposition to Miles's motion for rehearing is titled: "The high-speed train will bring great economic benefits to Texas." In that subsection, Texas Central highlights the constitutional violation in arguing that:
• "Construction and long-term operation of the high-speed train will create thousands of jobs for Texas" and will "add 317,207 ‘job years’ to Texas's economy."
• "The [Federal Railroad Administration] also found that the high-speed train will ‘create [ ] employment opportunities [for] minority and/or low-income populations.’ "
• "Rural communities will enjoy economic benefits .... Over 10% of the permanent jobs created by the high-speed train will be located between Dallas and Houston."
• "[T]he high-speed train will bring additional tax revenue to Texas. Such revenue will benefit schools, libraries, parks, hospitals, etc."
Texas Central repeats the above arguments in its brief. Additionally, a subsection of its Statement of Facts is titled: "The high-speed train will bring great economic benefits to Texas." In that subsection, Texas Central states: "Increasing public mobility will expand job opportunities by allowing easy commutes, e.g. , between Dallas and Houston, Grimes County and Dallas etc. .... And every permanent job created by the high-speed train is projected to ‘indirectly spur two to four jobs in supporting industries.’ "
Texas Central's description of the project demonstrates that the proposed use will bring about the evils Section 17(b) is designed to avoid—a repetition of Kelo. As Justice Thomas warned in his Kelo dissent, "If ... ‘economic development’ takings are for a ‘public use,’ any taking is[.]" Similarly, Justice O'Connor cautioned:
Cf. Kelo , 545 U.S. at 473-75, 125 S.Ct. 2655.
Rieder, supra note 3 (depicting Sherman–Dallas Interurban Railway); Michael Barnes, The rise and fall of Austin streetcars , Austin American-Statesman (Feb. 4, 2019) (depicting Austin's electric street-rail system), https://www.statesman.com/story/news/history/2019/02/04/history-center-exhibit-tracks-rise-and-fall-of-austin-streetcars/6111911007/.
Id. at 506, 125 S.Ct. 2655 (Thomas, J., dissenting).
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e. , given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property.
Id. at 494, 125 S.Ct. 2655 (O'Connor, J., dissenting).
After Kelo , Texas stood as a bastion for private property rights, with our Constitution purposefully strengthened to protect these essential rights. The Court's holding today flies in the face of that history and proud legacy of safeguarding the sacred right of land ownership. Here, according to the Court, property ownership is now determined not by actual legal ownership but by which person or business is more likely to use the property in economically beneficial ways. The Court incentivizes private businesses—even foreign ones—to exercise eminent-domain authority over Texas landowners. But giving such power directly to a private entity is not what our forefathers intended in drafting the Texas Constitution. Nor is it what Texans intended in amending the Constitution in 2009.
On this occasion, the Court fails to give due weight to crucial considerations that guide our interpretation and application of the Texas Constitution: (1) Texas voters amended our Takings Clause for the purpose of protecting Texas property owners from seizures such as this; (2) a statute cannot change the Texas Constitution's meaning; and (3) our Constitution requires strict construction in favor of the landowner. Texas courts implement these considerations regularly in actions involving grants of eminent-domain power. Applying Article I, Section 17 ’s plain and unambiguous language, Texas Central is not entitled to exercise eminent-domain power because the requirement of a "public use" is not met.
See Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC , 363 S.W.3d 192, 198 (Tex. 2012) (stating that "[t]he legislative grant of eminent-domain power is strictly construed" and in "strict compliance" with the Texas Constitution); Coastal States Gas Producing Co. v. Pate , 158 Tex. 171, 309 S.W.2d 828, 831 (1958) (explaining that the scope of power is to be "strictly construed in favor of the landowner and against those corporations and arms of the State vested therewith").
See Tex. Rice , 363 S.W.3d at 198 ; Crawford Fam. Farm P'ship v. TransCanada Keystone Pipeline, L.P. , 409 S.W.3d 908, 914-15 (Tex. App.—Texarkana 2013, pet. denied).
This Court is a judicial body whose function is to interpret, defend, and apply the laws of Texas, not to create laws by judicial fiat nor to uphold legislative enactments that operate contrary to our charter. For this reason, and because the Court's opinion advances a devastating erosion of Texas landowners’ property rights, I respectfully dissent.
Justice Huddle, joined by Justice Devine and Justice Blacklock, dissenting.
Today the Court holds that two for-profit corporations wield the power of eminent domain, allowing them to forcibly take thousands of parcels of privately owned Texas land located along the proposed route of a high-speed train they hope—someday—to build and operate.1 To justify this mass-scale exercise of an extraordinary sovereign power by private parties, the Court resurrects a 115-year-old statute governing "interurban electric railways"—sisters to the trolley car—that were popular in the late nineteenth century but largely disappeared in the 1930s with the rise of the private automobile.
No one questions that the statute, Transportation Code Section 131.012, granted eminent-domain authority to facilitate construction of small electric railways for ferrying Texans short distances between adjacent towns and up and down Main Streets alongside horse-drawn carriages. But it blinks reality to conclude, as the Court does, that the same trolley-car statute confers eminent-domain power on private entities aspiring to build—in 2022—a massive $30 billion infrastructure project capable of supporting an elevated, 672-foot-long high-speed train as it traverses hundreds of miles and thousands of privately owned parcels between Houston and Dallas.
There are countless differences between the two modes of transportation. The most important, which merits little mention by the Court, is their radically different land-use requirements. The scale of infrastructure required and amount of property imperiled by the proposed high-speed train project are orders of magnitude larger—Texas Central itself boasts the project will require nearly three times the amount of concrete used to build Hoover Dam.2 And the extent of impairment to land in and surrounding the path of the proposed train dwarfs the harm early-1900s electric rail posed. These differences matter, of course, because fundamental property rights of many hundreds of Texans in and near the train's planned path hang in the balance.
Since time immemorial, the law has ascribed to property rights a unique status. This Court has described them as "fundamental, natural, inherent, inalienable, not derived from the legislature and as preexisting even constitutions." Eggemeyer v. Eggemeyer , 554 S.W.2d 137, 140 (Tex. 1977). And we have thus accorded property rights the utmost protection. It follows that our precedents demand rigorous judicial scrutiny when construing eminent-domain statutes, particularly those vesting the power in private actors. Strict compliance with all statutory requirements is required. Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline–Tex., LLC , 363 S.W.3d 192, 198 (Tex. 2012). And in instances of doubt as to the scope of the power, the statute granting such power is "strictly construed in favor of the landowner" and against the would-be condemnor. Id. (quoting Coastal States Gas Producing Co. v. Pate , 158 Tex. 171, 309 S.W.2d 828, 831 (1958) ).
The Court today abandons these longstanding principles. By reading statutory terms in isolation and ignoring context, the Court concludes that the proposed high-speed rail system plainly falls within Section 131.012 ’s scope. Unlike the Court, I harbor serious doubt that it does. I would resolve that doubt in the landowner's favor, as our precedents require. Because the Court does otherwise, I respectfully dissent.
I. Eminent-domain statutes are strictly construed to protect fundamental property rights.
"Private property ownership pre-existed the Republic of Texas and the constitutions of both the United States and Texas." Severance v. Patterson , 370 S.W.3d 705, 709 (Tex. 2012). "Both constitutions protect these rights in private property as essential and fundamental rights of the individual in a free society." Id. Indeed, preservation of property rights is "one of the most important purposes of government." Denbury , 363 S.W.3d at 204 (quoting Eggemeyer , 554 S.W.2d at 140 ); see also Harris Cnty. Flood Control Dist. v. Kerr , 499 S.W.3d 793, 804 (Tex. 2016) ("This Court has repeatedly, recently, and unanimously recognized that strong judicial protection for individual property rights is essential to ‘freedom itself.’ " (quoting Denbury , 363 S.W.3d at 204 )).
Eminent domain—the power to take private property for public use without the owner's consent—cuts against our deep veneration for individual property rights. And it is an inherently sovereign power. Tex. Highway Dep't v. Weber , 147 Tex. 628, 219 S.W.2d 70, 72 (Tex. 1949) (describing the power of eminent domain as "an inherent attribute of sovereignty" that "exists independent of constitutional provision" and is "inherent in organized society itself"). Because those who possess it wield the power of the State, the delegation of eminent-domain authority to private parties upsets our ordinary structure of government and has the potential to create a host of "troubling constitutional issues." FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 874 (Tex. 2000). This is because private actors who wield the power of eminent domain may have incentives to act contrary to the public interest and are not bound by the systems of accountability to which public officials are subjected. Id.
Given the weighty interests at play, this Court has rightly imposed special standards in this context. "In construing statutes that delegate the power of eminent domain, the language used by the legislature may be accorded a full meaning so as to carry out the manifest purpose and intention of the statute, however, the application of the law will be restricted to only those cases clearly falling within its terms. " Burch v. City of San Antonio , 518 S.W.2d 540, 545 (Tex. 1975) (emphasis added). In short, because the exercise of eminent-domain authority—particularly by a private party—is in derogation of the rights of the citizen, "statutes conferring such power are strictly construed in favor of the landowner and against those corporations ... vested therewith." Id.
II. Texas Central does not "clearly fall within" Section 131.012 ’s scope.
The Court reasons that Texas Central is a corporation vested with eminent-domain authority under Section 131.012 because its proposed project is an "electric railway" and will travel between Dallas and Houston. Ante at 621. To be sure, Texas Central will literally employ "electric railway" and will do so "between municipalities." But our analysis cannot end there. Our well-established rules of construction forbid plucking terms out of a statute for examination in a vacuum; they favor—indeed, require—analysis of the statute as a whole and in context. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n , 518 S.W.3d 318, 326 (Tex. 2017) ("[O]ur objective is not to take definitions and mechanically tack them together[;] ... rather, we consider the context and framework of the entire statute and meld its words into a cohesive reflection of legislative intent."); see also TGS–NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011) ; Meritor Auto., Inc. v. Ruan Leasing Co. , 44 S.W.3d 86, 90 (Tex. 2001).
The Court ignores the historical context in which the Legislature used its chosen words and the surrounding statutory provisions that undercut the Court's conclusion. I would instead apply the "fundamental canon of statutory construction" that words should be interpreted according to their ordinary meaning when the statute was enacted. New Prime Inc. v. Oliveira , ––– U.S. ––––, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) (quoting Wis. Cent. Ltd. v. United States , ––– U.S. ––––, 138 S. Ct. 2067, 2074, 201 L.Ed.2d 490 (2018) ). This analysis requires evaluation of both "evidence of the term's meaning at the time of the [law's] adoption" and "neighboring" statutory text. Id. at 539–40.
The electric interurban railway played a major but short-lived role in the development of intercity passenger transport.3 This mode of transportation achieved broad success in the first decade of the 1900s.4 But the eventual adoption of the automobile led to the technology's demise.5 By the mid-1930s, the interurban rail industry was "virtually annihilated," and within three decades, "no trace of it remained in its original form."6
"Interurbans" (as they were colloquially called) were an evolution of the electric streetcar or trolley that expanded from urban service into short-route rural and intercity operation.7 Much less expensive to build and operate than ordinary railroads, interurbans could "penetrate an area with inadequate or no rail service" and stop "virtually anywhere."8 Interurbans possessed "many of the characteristics of the street railway when operated within a municipality": they traveled entirely "upon the streets, stop[ped] at the street corners for the accommodation of passengers and its road-bed [was] constructed so as to conform to the grade of the street and the rails laid so as not to materially interfere with the traffic thereon."9
The ability of interurbans to operate in a manner like a single-car trolley lumbering down Main Street is expressly contemplated by the statutory scheme originally enacted in 1907. Act effective Mar. 9, 1907, 30th Leg., R.S., ch. 15, 1907 Tex. Gen. Laws 23, 23–26 (current version at TEX. TRANSP. CODE §§ 131.011 –.017). It envisions the construction of a railway "on or across" a municipality's "street, alley, [or] square." TEX. TRANSP. CODE § 131.014(d). Moreover, an interurban electric railway company may condemn easements and rights-of-way "along and on the track of an electric street railway ... on any public street or alley." Id. § 131.015(a). If the company exercises its right to condemn street rail, however, it must complete construction of the road "from one municipality to another within 12 months." Id. § 131.016. In short, the Legislature undoubtedly contemplated transportation systems like these smaller electric railways able to traverse streets and alleys alongside their streetcar siblings when it crafted this law. [Editor's Note: The preceding image contains the reference for footnote10 ].
Texas Central's high-speed rail system is a world apart from this—in design, scale, and intrusiveness. It will feature trainsets 672 feet long capable of carrying 400 passengers at 205 miles per hour. It requires rights-of-way of 328 feet (on average) and 100 feet (at minimum) to accommodate the track, overhead catenary system, access road, and security fencing. More than half of the 240-mile track will be built on a bridge-like structure called a viaduct. Where that's not possible, it will be on elevated embankments or at grade surrounded by fencing. The railway will operate on a "closed system" not interconnected with any other railroad and separated from any existing infrastructure.
See U.S. Dep't of Transp. , Fed. R.R. Admin. , Dallas to Houston High-Speed Rail: Final Environmental Impact Statement (May 2020) ES-1 to -2.
Id. at ES-4.
Id.
Id. This is a conceptual rendering of Texas Central's high-speed train travelling on a viaduct. Low Impact Design , Texas Central , https://www.texascentral.com/low-impact-design/ (last visited June 10, 2022).
See Final Environmental Impact Statement , at ES-4, App. F (Set 1) at 51, 63.
Id. at ES-3 to -4.
Against this context, and examining the statute as a whole, I cannot conclude that Texas Central's proposed use of eminent-domain authority "clearly fall[s] within [ Section 131.012 ’s] terms." See Burch , 518 S.W.2d at 545. Recognizing the chasm between Texas Central's project and what the Legislature actually envisioned when it enacted the statute in 1907, the Court makes several analytical leaps—all of which are in tension with ordinary principles of statutory interpretation.
First , the Court dismisses the ordinary, common meaning of "interurban electric railway company," relying solely on Chapter 131's definition as a corporation chartered "to conduct and operate an electric railway between two municipalities in this state." Ante at 623 (quoting TEX. TRANSP. CODE § 131.011 ). But we have instructed that "[s]tatutory definitions must be interpreted in light of the ordinary meaning of the word being defined." In re Ford Motor Co. , 442 S.W.3d 265, 271 (Tex. 2014) ; see Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 135 (Tex. 2019) ("Even when a statute provides its own definition or explanation of a term ... in applying that definition, we should not ignore altogether the common meaning of the words being defined, unless the statutory text compels otherwise.").
By divorcing the defined term from its common usage at the time of the statute's adoption, the Court misses "the most significant element of the definition's context." ANTONIN SCALIA & BRYAN A. GARNER , READING LAW: THE INTERPRETATION OF LEGAL TEXTS 232 (2012). And in doing so, the Court fails to recognize the implausibility of its reading of Chapter 131—which bestows eminent-domain authority on Texas Central as an "interurban electric railway company" even though Texas Central is nothing like what the drafting Legislature would have understood an "interurban electric railway company" to mean (i.e., a company operating the distinct but extinct trolley-like technology discussed above).
Second , the Court emphasizes that the statute appears to vest eminent-domain power in a broader category of corporations operating "lines of electric railway" and makes no mention of interurbans at all. Ante at 623 (quoting TEX. TRANSP. CODE § 131.012 ). But myopic focus on the phrase "electric railway" is improper. For one, a later provision in the same subchapter includes the reference to interurbans the Court claims is absent from the statute. In particular, Section 131.015 refers to an "interurban electric railway company's power of eminent domain under this subchapter," reflecting the link between interurbans and eminent-domain authority that the Court ignores. TEX. TRANSP. CODE § 131.015(a).
In addition, the Court's keen focus on just two of the words in the statute—"electric" and "railway"—improperly expands the statute's scope. By focusing on these two words and evaluating them out of context, it morphs the phrase to mean "any rail technology powered by electricity." That is one literal, grammatically permissible reading of this text, but it certainly was not what the Legislature understood "electric railway" to mean when it enacted the statute in 1907. See ante at 623 (conceding high-speed rail system in dispute here "was unimaginable when the Legislature passed the 1907 statute at issue").
See, e.g. , Delos F. Wilcox , Analysis of the Electric Railway Problem 4 (1921) ("While it is true that the electric railways have overflowed municipal boundaries and now include a network of interurban lines in many portions of the country, it still remains a fact that the electric railway as thus far developed is primarily an urban street railway with its principal function the transportation of passengers within the limits of municipalities.").
I would not construe the phrase "electric railway" broadly to apply to contexts unimaginable to the statute's drafters. After all, the meaning of a statute that governs is the ordinary meaning "commonly understood at the time of enactment." Thompson v. Tex. Dep't of Licensing & Regul. , 455 S.W.3d 569, 570 (Tex. 2014) ; see New Prime , 139 S. Ct. at 539. While the statutory-interpretation exercise might be a closer call in a case in which our ordinary statutory-interpretation principles govern, this is not such a case. As our precedents make clear, special statutory-interpretation principles govern eminent-domain statutes. Burch , 518 S.W.2d at 545 (noting statutes conferring eminent-domain power are "strictly construed in favor of the landowner" and restricting application of eminent-domain statute to "only those cases clearly falling within its terms"); see Pate , 309 S.W.2d at 831 (limiting operation of statute conferring eminent-domain authority to "cases which plainly fall within its terms as well as its spirit and purpose"). Those standards plainly are not met by applying Section 131.012 to contexts far beyond what the Legislature could possibly have contemplated.
What's more, the electric railway at issue here—a massive and modern high-speed rail system—is incompatible with several neighboring statutory provisions. Texas Central's project could not navigate municipal streets or alleys, as the statute envisions. See TEX. TRANSP. CODE § 131.014(d). Its immense speed and specialized infrastructure prevent it from sharing tracks with an "electric street railway." Id. § 131.015(a). Even if it could share on-street tracks, the project's sheer scale would prevent its completion within twelve months. See id. § 131.016. Of course, not all a statute's provisions are invoked in every one of its applications. Yet considering the whole of Chapter 131 together makes plain that the statute contemplates smaller, localized electric railways, like the "interurbans" in vogue at the time of its adoption, and not a vastly larger high-speed railway that the statute simply does not accommodate. At a minimum, considering these conflicting provisions, I cannot conclude that the statute "clearly" applies or that the Legislature's "manifest purpose" in enacting it was to provide eminent-domain power to major high-speed rail systems. Burch , 518 S.W.2d at 545.
Third , recognizing some incompatibility between high-speed rail and the interurban contemplated by the statute, the Court asserts that the law can "embrace later-developed technologies." Ante at 623. To do so, the Court draws the wrong lesson from Kyllo v. United States , 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The Supreme Court held in that case that a police officer's use of a thermal imager to surveil a home constituted an unlawful search. Id. at 40, 121 S.Ct. 2038. That decision stands for the proposition that the fixed nature of the Constitution "assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." Id. at 34, 121 S.Ct. 2038. Put simply, Kyllo instructs that mere advances in technology cannot justify erosion of our most fundamental rights. Id. at 35–36, 121 S.Ct. 2038.
The Court's conclusion here has the effect Kyllo sought to guard against. It allows expansion of a private delegation of eminent-domain authority (and attendant usurpation of private property rights) based merely on technological advancement. The massive project Texas Central proposes positively dwarfs the technology contemplated by the statute. And it entails a level of intrusion on private property that was not foreseen, and certainly not endorsed, by the Legislature in 1907. The Court wrongly endorses the notion that technology, merely through incremental advancement, chips away at Texans’ fundamental property rights.
The Court relies heavily on San Antonio & A. P. Ry. Co. v. Southwestern Telegraph & Telephone Co. , 93 Tex. 313, 55 S.W. 117 (Tex. 1900). Ante at 623. There, we held that a statute granting condemnation power to "telegraph" companies applied equally to "telephone" companies. Sw. Tel. , 55 S.W. at 119. But the case should not be read to support the notion that eminent-domain power expands as technology advances, absent legislative action. As we later explained, crucial to that decision were "later statutory enactments that reflected the Legislature's intent to treat both [telegraph and telephone companies] the same." Marcus Cable Assocs., L.P. v. Krohn , 90 S.W.3d 697, 705 (Tex. 2002). The case-turning inquiry was not "the intent of the legislature when [the relevant provisions] were first enacted" but "legislative intent" at the time of later amendments to the broader statutory scheme, which treated telephone and telegraph companies interchangeably. Sw. Tel. , 55 S.W. at 118. Conferring the same eminent-domain powers to telephone companies thus "harmonize[d] every provision of the law," whereas denying such authority would have led to "absurd" results. Id. at 119. Furthermore, our conclusion was bolstered by numerous cases holding that "[t]he term ‘telegraph’ ... include[s] telephones." Id. at 117 (collecting cases).
Nothing of the sort supports the Court's expansion of eminent-domain power today. There is no longstanding caselaw equating high-speed rail with interurbans. And no amendments to Chapter 131 reflect legislative intent that Section 131.012 embrace high-speed rail projects, which are addressed in entirely different chapters of the Transportation Code. See, e.g. , TEX. TRANSP. CODE §§ 111.103(a), 112.201 –.205, 199.003(a). Indeed, the last time the Legislature considered high-speed rail in Texas, it created a new state agency to award a franchise to a private entity and then exercise eminent-domain power on behalf of the private entity. Texas High-Speed Rail Act, 71st Leg., R.S., ch. 1104, § 1, secs. 2(b), 6(b)(3), (9), 12, 1989 Tex. Gen. Laws 4564, 4564–75 (repealed 1995). That now-repealed statute's grant of eminent-domain authority would have been unnecessary if any private entity could simply charter as an interurban and enjoy the same powers.
Other intervening changes in the law further cut against the Court's conclusion. In the wake of Kelo v. City of New London , 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005), Texas, like many other states, enacted eminent-domain reforms. Marc Mihaly & Turner Smith, Kelo’s Trail: A Survey of State and Federal Legislative and Judicial Activity Five Years Later , 38 Ecology L.Q. 703, 717–19 (2011). In 2009, Texans adopted a constitutional amendment requiring "a two-thirds vote of each house of the legislature to grant the power of eminent domain to an entity (public or private)." Id. at 718 (citing H.R.J. Res. 14, 81st Leg., R.S., 2009 Tex. Gen. Laws 5655); see Tex. Const. art. I, § 17 (c). This provision ensures that any new delegation of the State's eminent-domain power occurs only after careful deliberation and widespread consensus. And if the huge number of amicus briefs is any indication—the Court has received more than 40 briefs and letters from amici in this case—Texas Central's bullet train is the sort of controversial project where this provision's protections and requirements should have significant purchase. But today, the Court permits an end-run around the democratic deliberation our Constitution now requires.
For these reasons, I cannot join the Court's opinion and likewise am at odds with the concurrence of JUSTICE YOUNG . There is a great deal of common ground between my dissent and his concurrence, which rightly pays heed to the judiciary's role in protecting property rights and the special scrutiny required when interpreting delegations of eminent-domain power. And I remain hopeful that we, along with the rest of the Court, will be in agreement in future cases involving different statutes. But the concurrence's correct recitation of legal principles and my optimism for future agreement mean nothing for the hundreds upon hundreds of landowners who will be subjected to the "massive" "intrusion into private-property interests that is required to build the project at issue here." Ante at 634 (Young, J., concurring). Given the "exacting level of scrutiny" that JUSTICE YOUNG acknowledges must be applied here, id. at 633, I am unable to endorse the stretching of this delegation of authority to reach a meaningfully more intrusive infrastructure project that nobody had in mind when they enacted that text and that is wholly incompatible with multiple provisions of the statutory scheme.
III. Texas Central also does not qualify as a "railroad company."
The court of appeals also held that Texas Central enjoys eminent-domain powers granted to "railroad companies." 635 S.W.3d 684, 692 (Tex. App.—Corpus Christi–Edinburg 2020) (citing TEX. TRANSP. CODE § 81.002 ). The Court barely addresses this alternative ground for affirmance. Given our repeated mandate that delegations of eminent-domain authority should be strictly construed and must clearly apply, Denbury , 363 S.W.3d at 198 ; Burch , 518 S.W.2d at 545, I would reverse the court of appeals’ holding on this point.
Texas Central argues that it wields eminent-domain authority because it qualifies as a "legal entity operating a railroad." See TEX. TRANSP. CODE § 81.002(2). "Operating" is the present participle of "operate" and "indicates the then-existing state of the action." See Lyon v. State , 766 S.W.2d 879, 885 (Tex. App.—Austin 1989, pet. ref'd). And a "railroad" is "a system of transportation using special vehicles whose wheels turn on metal bars fixed to the ground, or a particular company using such a system." Taking these terms together, the statutory text indicates that the Legislature delegated eminent-domain powers to entities presently causing passenger or freight trains to run on fixed tracks. All agree that Texas Central is not doing so.
Railroad , Cambridge Dictionary , https://dictionary.cambridge.org/us/dictionary/english/railroad.
This reading of the statute's text, which the concurring opinions deride as "illogic[al]" and "implausible," see ante at 630–31 (Hecht, C.J., concurring); ante at 635 (Young, J., concurring), is the same reading advanced by the State of Texas as amicus curiae. See Brief of the State of Texas as Amicus Curiae 20–22.
The court of appeals, however, construed Section 81.002 more broadly. It reasoned that "operating a railroad" can extend to entities taking actions to "begin to operate a railroad." 635 S.W.3d at 691–92. To do so, the court of appeals relied on the Code Construction Act's proposition that "words in the present tense include the future tense." Id. at 690 (quoting TEX. GOV'T CODE § 311.012(a) ).
I would not invoke the Code Construction Act here because, by its own terms, the rules it provides "are not exclusive but are meant to describe and clarify common situations." TEX. GOV'T CODE § 311.003. Exercises of eminent-domain authority are anything but common. See State v. Bristol Hotel Asset Co. , 65 S.W.3d 638, 640 (Tex. 2001) ("Proceedings to condemn land are special in character ...."). Reliance on a general tool is improper when it conflicts with our specific rules that govern in this context: "The legislative grant of eminent-domain power is strictly construed ...." Denbury , 363 S.W.3d at 198. Texas Central has never owned or operated a railroad, and it will take years and billions of dollars before it can ever do so. In no sense does it "plainly fall within" the terms of Section 81.002. Pate , 309 S.W.2d at 831.
For similar reasons, I also respectfully disagree with the CHIEF JUSTICE ’s concurring opinion, which would allow a "railroad business" to exercise eminent-domain power "from its inception" and "before doing any business at all"—indeed even "before incorporating." Ante at 631 (Hecht, C.J., concurring). That interpretation would be a nearly unbounded delegation of sovereign power—potentially even to a nonexistent entity—and likewise does not plainly fall within the phrase "operating a railroad." Nor is it required by unrelated statutes governing common-carrier pipelines, which involve materially different and meaningfully broader language.
For example, the pipeline statute invoked by the concurrence, ante at 631 (Hecht, C.J., concurring), broadly vests common-carrier powers in any person who (among other things):
(1) owns, operates, or manages a pipeline or any part of a pipeline in the State of Texas for the transportation of crude petroleum to or for the public for hire, or engages in the business of transporting crude petroleum by pipeline; [or]
...
(4) under lease, contract of purchase, agreement to buy or sell, or other agreement or arrangement of any kind, owns, operates, manages, or participates in ownership, operation, or management of a pipeline or part of a pipeline in the State of Texas for the transportation of crude petroleum, bought of others, from an oil field or place of production within this state to any distributing, refining, or marketing center or reshipping point within this state ....
Tex. Nat. Res. Code § 111.002(1), (4).
To be sure, the Transportation Code allows a "railroad company" to condemn property needed for certain early-stage activities, like acquiring an initial right-of-way. See TEX. TRANSP. CODE § 112.053(a)(5). But that condemnation authority for certain pre-operation activities is better explained by the statute's other (but now unavailable) avenue for becoming a "railroad company." Specifically, until September 2007, persons subscribed to the stock of a "contemplated railroad" could "be formed into a corporation for the purpose of constructing , owning, maintaining and operating such railroad." The eminent-domain provisions invoked by the concurrence make better sense with this sort of "railroad company" in mind. Indeed, the Legislature's choice to use the much narrower phrase "operating a railroad" in Section 81.002(2) only further suggests that this provision does not apply to the pre-operation activities of a merely contemplated railroad.
See Tex. Transp. Code § 81.002(1) (stating that references to a "railroad company" include "a railroad incorporated before September 1, 2007, under former Title 112, Revised Statutes").
Act of May 26, 1989, 71st Leg., R.S., ch. 971, § 1, 1989 Tex. Gen. Laws 4048, 4048 (emphases added) (amending Tex. Rev. Civ. Stat. art. 6259(a)) (repealed 2007).
I would adhere to our precedents, which I believe require that we not permit the exercise of the sovereign power of eminent domain unless the Legislature "clearly" authorized it. See Burch , 518 S.W.2d at 545. Because the Legislature has not done so, I would hold that Texas Central does not qualify as a "railroad company."
* * *
Whether Texas Central's project will succeed is anyone's guess. What is certain is that today's decision places Miles and hundreds of other Texas landowners at Texas Central's mercy. Texas Central may take their land and, if the project succeeds, bisect each parcel with an enormous infrastructure project on which a train blazes past at 200 miles per hour every thirty minutes. Or it could begin construction and abandon the project, unfinished, leaving behind half-built viaducts leading nowhere. Or it may take their land and do nothing for a decade, triggering a feeble repurchase "remedy" for landowners. See TEX. PROP. CODE §§ 21.101 –.103. I agree with the Court's view that it is the Legislature's province to address the propriety of the remedies available to landowners who find themselves in Texas Central's path. But legislative action is needed only because the Court wrongly grants eminent-domain authority to private actors, unaccountable to the public, for a project that the Legislature could not possibly have contemplated.
Amici point out that high-speed rail projects are notoriously difficult to complete, and most that get built are unprofitable. E.g. , Brief of Grimes County et al. as Amici Curiae 8–10. They submit that Texas Central's estimated costs have tripled since the project's inception and that Texas Central has raised only a minute fraction of the needed capital and has been delinquent in paying property tax in eight Texas counties along the proposed route. Id. at 16–17; Supp. Brief of Grimes County et al. as Amici Curiae 3–4.
I respectfully dissent.