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

Supreme Court of Texas
══════════
No. 20-0393
══════════

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 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

1John 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).
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:

2 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))).
3 545 U.S. 469, 473, 475 (2005).

2
(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

4 TEX. CONST. art. I, § 17(a)-(b) (emphasis added).
5 593 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.”).
6 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.’”
7 Ante at 27 n.17.

3
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.”

8 Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J.,
concurring).
9 See TEX. CONST. art. I, § 17(b).

4
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. 10 As Justice Thomas warned in his Kelo
dissent, “If . . . ‘economic development’ takings are for a ‘public use,’ any
taking is[.]” 11 Similarly, Justice O’Connor cautioned:
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. 12

After Kelo, Texas stood as a bastion for private property rights,
with our Constitution purposefully strengthened to protect these

10 Cf. Kelo, 545 U.S. at 473-75.
11 Id. at 506 (Thomas, J., dissenting).
12 Id. at 494 (O’Connor, J., dissenting).

5
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. 13 Texas courts implement these considerations regularly in
actions involving grants of eminent-domain power. 14 Applying Article I,
Section 17’s plain and unambiguous language, Texas Central is not

13 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, 309 S.W.2d
828, 831 (Tex. 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.
14

TransCanada Keystone Pipeline, L.P., 409 S.W.3d 908, 914-15 (Tex. App.—
Texarkana 2013, pet. denied).

6
entitled to exercise eminent-domain power because the requirement of
a “public use” is not met.
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.

John P. Devine
Justice

OPINION FILED: June 24, 2022

7