James Fredrick Miles v. Texas Central Railroad & Infrastructure, Inc. and Integrated Texas Logistics, Inc.

Supreme Court of Texas

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No. 20-0393

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James Fredrick Miles,

Petitioner,

v.

Texas Central Railroad & Infrastructure, Inc. and

Integrated Texas Logistics, Inc.,

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Thirteenth District of Texas

═══════════════════════════════════════

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

1 I refer to these two corporate entities, Texas Central Railroad &

Infrastructure, Inc. and Integrated Texas Logistics, Inc., collectively as “Texas

Central.”

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

2 Infrastructure, TEXAS CENTRAL, https://www.texascentral.com/

infrastructure/ (last visited June 10, 2022).

2

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, 309 S.W.2d 828, 831 (Tex. 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

3

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, 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

4

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 11. 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).

5

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, 139 S. Ct. 532, 539 (2019) (quoting

Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (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

3 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).

4 HILTON & DUE, supra note 3, at 3.

5 Id.

6 Id.

6

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

7 Id. at 7.

8 H. Roger Grant, “Interurbans Are the Wave of the Future”: Electric

Railway Promotion in Texas, 84 SW. HIST. Q. 29, 29–30 (July 1980).

9 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).

7

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.

10

Texas Central’s high-speed rail system is a world apart from

this—in design, scale, and intrusiveness.11 It will feature trainsets 672

feet long capable of carrying 400 passengers at 205 miles per hour. 12 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.13 More than half of the 240-mile track will

10 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/.

11 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.

12 Id. at ES-4.

13 Id.

8

be built on a bridge-like structure called a viaduct.14 Where that’s not

possible, it will be on elevated embankments or at grade surrounded by

fencing.15 The railway will operate on a “closed system” not

interconnected with any other railroad and separated from any existing

infrastructure.16

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.

14

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).

15See FINAL ENVIRONMENTAL IMPACT STATEMENT, at ES-4, App. F (Set

1) at 51, 63.

16 Id. at ES-3 to -4.

9

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 15 (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.

10

Ante at 15 (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 1907.17 See

ante at 16 (conceding high-speed rail system in dispute here “was

unimaginable when the Legislature passed the 1907 statute at issue”).

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

17 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.”).

11

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

12

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 16. To do

so, the Court draws the wrong lesson from Kyllo v. United States, 533

U.S. 27 (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. 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. Put simply, Kyllo instructs that

mere advances in technology cannot justify erosion of our most

fundamental rights. Id. at 35–36.

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

13

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., 55 S.W. 117 (Tex. 1900). Ante

at 16. 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

14

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.18

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

18Other 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 (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.

15

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 6 (Young, J., concurring). Given the

“exacting level of scrutiny” that JUSTICE YOUNG acknowledges must be

applied here, id. at 4, 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

16

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.”19 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.20 All agree that Texas Central is not doing so.

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

19 Railroad, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/

us/dictionary/english/railroad.

20 This reading of the statute’s text, which the concurring opinions

deride as “illogic[al]” and “implausible,” see ante at 2 (Hecht, C.J., concurring);

ante at 8 (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.

17

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 3–4

(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. 21

21For example, the pipeline statute invoked by the concurrence, ante

at 4 (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

18

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.”22 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.”23 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.

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.

to any distributing, refining, or marketing center or reshipping

point within this state . . . .

TEX. NAT. RES. CODE § 111.002(1), (4).

22 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”).

23Act 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).

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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.24

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.

I respectfully dissent.

24Amici 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.

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Rebeca A. Huddle

Justice

OPINION FILED: June 24, 2022

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