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Follow TURFNOTE: This is the second in a three-part series on the transportation & property rights wrap-up to the 84th legislative session of the Texas Legislature.
Success can be measured as much by what didn’t pass as what did pass.
While anti-toll advocates may not be wholly pleased with their lack of progress in getting their bills through the 84th session of the Texas legislature that wrapped-up yesterday, they were successful in stopping many other bills that would have sailed through in prior sessions under former Governor Rick Perry's pro-toll leadership. Incoming Governor Greg Abbott's campaign promise to fix Texas roads without raising taxes, fees, or tolls immediately changed the atmosphere at the Capitol.
Indeed, during one of his debate's with Democrat Wendy Davis he emphasized, “My plan does not involve any toll roads, period. I’m not interested in adding toll roads in my plan.”
However, despite Abbott's pledge and focus on ethics and diminishing lobbying by former legislators, the influence of high-powered lobbyists, many hired by local governments and big business interests seeking special favors, continues to compromise pro-taxpayer and property rights bills despite changes at the top.
The Hall of Shame the taxpayers stopped:
• Several bills to privatize and toll public highways, known as public private partnerships (P3s). Senator Kirk Watson, Rep. Eddie Rodriguez attempted to sell-off I-35 to a private toll operator, and Senator Eddie Lucio and Rep. Mando Martinez attempted to sell-off FM 1925 in Cameron and Hidalgo counties. All bills would have extended the expiration date of the 23 existing authorized P3s until 2019.
• Watson and Rep. Celia Israel’s bill (SB 270, HB 594) to permanently force taxpayers to pay to reduce truck toll rates to the auto toll rate through taxpayer subsidies on the struggling SH 130 tollway.
• SJR 62 authored by Senator Robert Nichols would have gut any attempts at toll cessation and changed the Texas Constitution to permanently authorize system financing, a Robin Hood raid of toll revenues from one road to prop-up another necessitating the toll stay in place in perpetuity.
• Israel’s bill, HB 1324, to impose exclusive bus lanes on the shoulders of highways in Bexar, Travis, and Tarrant counties while autos remain stuck in traffic or are forced to pay tolls for congestion relief. Passed House, went nowhere in Senate.
• HJR 109 by Rep. Joe Pickett to give counties the authority to establish Transportation Reinvestment Zones that use local property tax appraisal increases (and sales taxes within the zone) to pay for state highway projects including toll projects (a double tax).
Property rights a mixed bag
Eminent domain and roads go hand in hand, and eminent domain in the hands of private companies is one of the worst infringements on private property rights imaginable. HB 565 authored by Rep. Cindy Burkett (Senator Bob Hall filed a similar bill in the Senate - SB 444) to strip a grandfathered private toll corporation of its eminent domain authority would have effectively stopped the controversial Blacklands toll road east of Dallas. But this bill was watered down to allow the company, Texas Turnpike Corporation (TTC), to still enter into a hybrid deal like a public private partnership. Toll rates on P3s are in excess of 80 cents per mile, and use public money to subsidize the potential losses of the private toll operator. TTC hired the lobby firm headed by the former Transportation Commission Chairwoman under Perry, Deirdre Delisi, whose mother is also a former legislator.
SB 1812 authored by Senator Lois Kolkhorst requires the creation of a current eminent domain database and that it be made available to the public in a searchable format. SB 18 that passed in 2011, required all entities with eminent domain to report that authority to the Texas Comptroller by December 31, 2012, or lose their authority. Over 5,000 entities registered. However, there has been no requirement for new entities to register since then, and there is no current database of legitimate condemners available to the public. Lawmakers cannot begin to restrain eminent domain authority until it’s fully known what entities have eminent domain power, including how many private entities wield this government condemning authority.
Kolkhorst’s SB 474 was successfully tacked onto HB 3474 (by Rep. Garnet Coleman) to allow landowners to recoup their legal fees from eminent domain proceedings if the initial offer was 20% below the final value of the land as determined by the court. This would force condemning entities to make truly bona fide offers at market values instead of low-balling landowners and making them incur expensive legal fees in order to get the true market value price for their land. However, the bill ultimately died.
SB 709 by Senator Troy Fraser is one of the worst anti-property rights bills to pass this session. It makes it harder for landowners to win a contested case hearing when neighboring developers try to harm them and their use and enjoyment of their property. Special interests like the Texas Association of Business, who want to speed up their railroad job of trampling on property rights (everyone but theirs, of course) lobbied hard for this bill citing that the contested case hearing process is being abused by environmental groups who are outside local communities who use it to stop facilities they don’t like.
But the bill went much further than that. It made the likelihood of affected landowners prevailing in a contested case hearing before a judge much slimmer since it shifts the burden of proof from the developer onto the landowner. Unless a property owner has deep pockets to hire legal counsel and scientific experts to prove their case, they’re unlikely to stop harm being done by neighboring developers.
HB 632 by Rep. David Simpson was narrowly defeated, by a vote of 77-59, which would have blocked any transfer of water from happening without that community’s consent. Many rural Texans are under threat by plans to transfer large amounts of local water to urban areas. Simpson’s bill would have given locals say before their water gets sent elsewhere.
Another threat to rural Texas is the plan by Japanese private developer, Texas Central Railway, to build a high speed rail line between Dallas and Houston. Senate rider #48 was added to the budget by Charles Schwertner to block any state funds from going to subsidize the controversial rail line. However, it failed to stay in the final bill after some of the most powerful lobbyists in the state fought it. This despite the claim by the company in Senate Transportation Committee testimony that it would not seek any state funds for its private project.