May 4, 2017 - 1/4. Having trouble viewing this email? Click here .... gaining eminent domain power, but in the case they
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Austin Newsletter
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May 5, 2017 | Regular Session, Issue 17
Fair Attorney Fees for Groundwater Lawsuits
If a landowner believes their constitutionallyprotected groundwater rights are being denied or restricted by their local groundwater conservation district, the only legal recourse the landowner has is to file a takings lawsuit against the district to protect their rights. However, the current law is unfair to landowners who are forced to go to court to protect their rights. Under current law, if a landowner sues a district and loses, they are required to pay the district's attorney fees. However, if the landowner wins the suit, the district does not reimburse the landowner for attorney fees. This unfair, onesided awarding of attorney fees is meant to dissuade landowners from suing the district by making the prospect of having to pay the district's court costs a risk the landowner is not willing to take. Therefore, landowners without substantial financial resources are forced to accept a regulation they may feel is a taking of their property rights. Especially if the landowner is forced to fight the unfair regulations to the Texas Supreme Court, similar to the Day McDaniel or Bragg cases against the Edwards Aquifer Authority (EAA). In both of these cases, the landowners could have had to pay almost a million dollars in the EAA's attorney fees. SB 862 addresses this unfair law by striking the requirement the court award attorney fees to the district. The court would have the discretion to determine if awarding attorney fees is "equitable and just." And, the court could award attorney fees on the behalf of whichever party wins the suitthe district or the landowner. Lastly, the bill caps the attorney fees at $250,000. SB 862 by Senator Charles Perry (RLubbock) passed the Texas Senate by a vote of 20 Yeas to 11 Nays: Yeas: Bettencourt, Birdwell, Buckingham, Burton, Campbell, Creighton, Estes, Hall, Hancock, Huffines, Huffman, Hughes, Kolkhorst, Menendez, Nelson, Nichols, Perry, Schwertner, Taylor of Galveston, Taylor of Collin. Nays: Garcia, Hinojosa, Lucio, Miles, Rodriguez, Seliger, Uresti, Watson, West, Whitmire, Zaffirini
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Texas Farm Bureau supports the right of landowners to protect their private property rights. Texas Farm Bureau supports SB 862. (TFB Policy 2017:"Real Property Rights," page 51, lines 25; "Groundwater," page 60, lines 913, and page 61, lines 5356.)
Brackish Groundwater Update
HB 2377 by Representative Lyle Larson (RSan Antonio) addresses the rules governing permits to produce brackish groundwater from a designated brackish groundwater production zone for the purposes of desalinating the water to drinking water standards. This bill was previously reported in issue 11 of the Austin Newsletter and has since passed third reading in the House and will be heading over to the Senate chamber. TFB supports HB 2377. (TFB Policy 2017: "Groundwater," page 62, lines 5860, and page 64, lines 207209 and 217218; "Water Management," page 70, lines 4143.)
High Speed Rail
Several of the bills regarding high speed rail had a hearing in the House Transportation Committee on May 4. The bills were originally reported on in the March 24, 2017, issue 8, of the Austin Newsletter and will be updated today. The House Transportation Committee heard HB 2172 by Representative Trent Ashby (R Lufkin), which prevents the state from appropriating any funds to go toward the planning, construction, maintenance, operations or security of the high speed rail. This bill's Senate companion, SB 977 by Senator Charles Schwertner (RGeorgetown), has already passed through the Senate chamber and is waiting to be heard in the House. TFB supports HB 2172 and SB 977. (TFB Policy 2017:"Rail Transportation," page 85, line 40.) Along with HB 2171, HB 2167 by Representative Leighton Schubert (RCaldwell) and HB 2104 by Representative Cecil Bell (RMagnolia) were heard in the House Transportation Committee on May 4. HB 2167 will prevent state funds from being used to fund any part of the rail, unless to secure repayment of state money. Further, the state will hold a lien on any property or assets purchased or credited with money to the state. While HB 2104 is a fairly simple bill, it will require the company to put up bond to restore land to its original state if the project fails. TFB supports HB 2167 and HB 2104. (TFB Policy 2017: "Rail Transportation," page 85, line 40 and line 58.) SB 979 by Senator Schwertner (RGeorgetown) prevents high speed rail entities from gaining eminent domain power, but in the case they are granted the power, states that the land acquired can only be used for the purpose of high speed rail. SB 979 also states that if the entity no longer needs the land that they must give the original owner the https://ui.constantcontact.com/visualeditor/visual_editor_preview.jsp?agent.uid=1127873006660&format=html&print=true
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opportunity to buy back the piece of land in question. SB 979 has passed the Senate and has been referred to the House Land and Resource Management Committee. TFB supports SB 979. (TFB Policy 2017:"Rail Transportation," page 85, line 40.)
Ag Lien
CSHB 3063 by Representative Kyle Kacal (RBryan) amends the agricultural lien subchapter of the Property Code to protect agricultural producers who take their crop to licensed and bonded warehouses and producers who have their crop in open storage. Current law allows farmers to obtain a lien only if their crop is under contract with a purchaser, as long as the purchaser is not a licensed and bonded facility. CSHB 3063 clarifies that a farmer's statutory agricultural lien does not have priority over a lien held by a storage facility's lender on grain the facility has paid for (companyowned grain). This will ensure storage facilities can still obtain financing. The bill also clarifies that contract purchasers operating under marketing agreements can continue to pledge the crop to their lender to process and market the crop. Language from current statute is maintained so that banks that lend to farmers remain protected and that a buyer in ordinary course of business takes the crop free of a lien. HB 3063, as substituted, was passed out of the House Wednesday, May 3, and is now headed to the Senate to be debated. TFB supports CSHB 3063. (TFB Policy 2017:"Banking and Credit," page 99, lines 2428.)
Texas Farm Bureau State Legislative Team Jim Reaves, State Legislative Director Issue areas: Labor, Education, Agriculture and Rural Affairs Email:
[email protected] Austin Office Phone: 5124728288 Marissa Patton, Associate Legislative Director Issue Areas: Agriculture, Eminent Domain, Land Use Regulation and Rural Affairs Email:
[email protected] Mike Pacheco, Associate Legislative Director Issue Areas: Criminal Justice, Energy, Elections, Taxes, Transportation, Utility Regulation and Tort Email:
[email protected] Billy Howe, Associate Government Affairs Director Issue Areas: Natural Resources and Environmental Regulations Email:
[email protected] Waco Office Phone: 2547512208
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If you would like immediate updates on the action in Austin, follow the Legislative staff on Twitter. Jim Reaves @jimreaves Billy Howe @TFBGovAff_Billy Marissa Patton @TFBAUS_Marissa Mike Pacheco @TFBAUS_Mike You can also search for our Hashtag #TXFBAustin
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