Texas high-speed rail developer doesn't want state money. But the Senate's state budget could still delay the project.

Texas Tribune News

An access gate to power lines is closed near a ranch in Grimes County. The roughly 1,000-acre ranch is in the proposed path of a high-speed rail line that would connect Dallas and Houston.
An access gate to power lines is closed near a ranch in Grimes County. The roughly 1,000-acre ranch is in the proposed path of a high-speed rail line that would connect Dallas and Houston.
Ashley Landis/The Dallas Morning News

Dallas-Houston bullet train developer Texas Central Partners LLC said its project could be delayed by a provision added to the Texas Senate’s proposed 2020-21 budget Wednesday, even though the company is not planning on using state funds to build the high-speed rail line. The company said language added to the upper chamber’s spending plan would encourage lawsuits and “is not beneficial for good coordination and planning.” Meanwhile, project opponents cheered the provision.

The measure, authored by Sen. Brian Birdwell, R-Granbury, continues to bar state funds from subsidizing high-speed passenger rail projects but would go further than current law. It would prevent the Texas Department of Transportation from helping coordinate access to rights-of-way on state highways for the high-speed rail project until there is a final, unappealable court ruling on the project’s eminent domain authority. Debate over whether Texas Central has the right to condemn land and buy it from unwilling owners has fueled opposition to the project and led to court battles across the state. The new language was added in what’s called a rider to the proposed budget.

“This project has many issues, and one could easily see the potential outcome that could befall Texas by looking at the catastrophic failure occurring in the California high-speed rail project,” Birdwell said in a statement Wednesday. “This rider seeks to solely protect state resources, including state right-of-ways, should [the company] begin construction before receiving a definitive answer on their condemnation authority.”

Texas Central is planning to spend more than $15 billion to build and begin operating a high-speed rail line shuttling passengers between Houston and Dallas in under 90 minutes, but not all rural landowners along the train’s planned 240-mile route are on board with selling their land. Texas Central has said it prefers to acquire land through amicable sales but that state law gives it the right to use eminent domain.

“Working with TXDOT is critical to the project,” the company said in a statement late Wednesday. “This rider would impose arbitrary and discriminatory restrictions for a single project and sets a bad precedent.”

Texas law allows railroads to use eminent domain to take land for projects, and Texas Central says it is one. But opponents argue that the company doesn’t count as a railroad because it’s not operating any trains — and a Leon County Court upheld that viewpoint in February.

Texas Central disagreed with the ruling, citing a previous Harris County ruling in its favor, and said it plans to appeal the judge’s decision. But as the decision stands, the company can’t condemn land in the counties under the court’s jurisdiction, according to an attorney who represented the landowner in that case.

Patrick McShan, an attorney for the group Texans Against High-Speed Rail and more than 100 landowners along the train’s route, said there may be a lengthy court battle to settle the disagreement over whether the company can use eminent domain. And that, he said, could stall the project.

“At least two years, could be four years. Whatever it is, it’s several years,” he said. “It would be a significant obstacle to the project being constructed. … I do not envision a scenario where they can obtain these necessary approvals and these necessary court rulings to prove to the state that it is justifiable and necessary for the state to expend its resources on this project.”

Kyle Workman, chairman and president of Texans Against High-Speed Rail, called the rider’s passage “a positive step to protecting Texas from a California-style boondoggle in which high-speed rail gets partially built and state funds are ultimately allocated for it.” Company officials, though, have maintained for years that they do not plan to take any state money to construct the line.

The budget rider didn’t advance smoothly through the Finance Committee.

State Sen. Royce West, D-Dallas, moved to strike down the amendment and remove it from the budget, but his motion failed in an 7-8 vote. The budget plan, which the Senate Finance Committee then approved, next would head to the full upper chamber.

Edgar Walters contributed to this story.

Disclosure: Texas Central has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.