                                                                       ACCEPTED
                                                                   14-15-00745-CV
                                                   FOURTEENTH COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                             10/28/2015 5:19:30 PM
                                                             CHRISTOPHER PRINE
                                                                            CLERK

              NO. 14-15-00745-CV

                ***                    FILED IN
      IN THE COURT OF APPEALS   14th COURT OF APPEALS
                                   HOUSTON, TEXAS
FOURTEENTH COURT OF APPEALS DISTRICT
                                10/28/2015 5:19:30 PM
           HOUSTON, TEXAS       CHRISTOPHER A. PRINE
                                                   Clerk
                       ***
            CITY OF ROSENBERG,
              Appellant/Defendant

                         v.
            THE STATE OF TEXAS
              Appellee/Plaintiff


   On Appeal from the County Court at Law No. 2
            Of Fort Bend County, Texas
      Trial Court Cause No. l 5-CCV-055144
   Honorable Jeffrey A. McMeans, Presiding Judge


    APPELLANT'S OPPOSED MOTION FOR
       EN BANC RECONSIDERATION

DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
2500 W. William Cannon Drive, Suite 609
Austin, Texas 78745
( 512) 279-643 l Phone
(512) 279-6438 Facsimile

George E. Hyde
State Bar No. 45006157
SCOTT M. TSCHIRHART
State Bar No. 24013655

                ATTORNEYS FOR APPELLANT
                CITY OF ROSENBERG
MAY IT PLEASE THE COURT:

       NOW COMES APPELLANT, the CITY OF ROSENBERG, (hereinafter

"Appellant" and/or "the City") and files this Appellant's Opposed Motion for En

Banc Reconsideration in accordance with the Texas Rules of Appellate Procedure

("TRAP").

                               INTRODUCTION

       By this motion for reconsideration en bane filed under Texas Rules of

Appellate Procedure 49.1 and 49. 7, Appellant asks this Court to reconsider its

decision to grant the Motion of the State of Texas to Dismiss Appeal for Want of

Jurisdiction. See Opinion filed October 13, 2015.

       Reconsideration en bane is appropriate in this case because, although the

Court correctly identified this to be an issue of first impression in Texas

Jurisprudence, the Court's ruling mistakenly concludes that the 2011 Legislative

amendments to the Texas Property Code do not make the requirement that the State

make a bona fide offer prior to commencement of condemnation proceedings

jurisdictional.   In fact, the Court incorrectly extended the Hubenak decision

(Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004)) by

applying it to statutory language that did not exist when Hubenak was decided. The

City contends that the Texas Legislature intended to completely overhaul the

condemnation practices in Texas and to make condemning entities follow the


                                         2
prerequisites set forth in the Texas Property Code prior to initiating a condemnation

lawsuit. The Court incorrectly concluded that the abatement remedy set forth in

Texas Property Code section 21.047(d) is the sole remedy for the failure of the State

to follow the mandatory prerequisites of the condemnation procedure. Moreover,

the Court dismissed the City's appeal without giving the parties the opportunity to

brief the issues.   The City's briefing will establish that the Legislature was, in a

string of bills dating back to the Hubenak decision, reacting directly to that decision.

The City should at the very least be afforded the opportunity to brief issues that the

Court correctly indicates are issues of first impression under Texas jurisprudence.

Finally, the granting of Appellee's Motion to Dismiss for Want of Jurisdiction

effectively deprives the City of its procedural due process rights and makes the 2011

amendments of the Texas Legislature a nullity.

      For these reasons, Appellant urges the panel to reconsider its ruling based on

the following arguments.

              STATEMENT OF RECONSIDERATION POINTS

      Appellant requests reconsideration of the Court's ruling based on the

following:

      A.     The Court incorrectly concluded that the mandatory language used by
      the Legislature in the 2011 amendments to Chapter 21 of the Texas Property
      Code were not intended to be jurisdictional and abrogate the Hubenack
      decision.



                                           3
      B.    The Court incorrectly extended Hubenack to apply to statutory
      language that the Legislature adopted to change the legislative scheme for
      condemnation set forth in Hubenack.

      C.     The Court incorrectly concluded that the abatement remedy set forth in
      Texas Property Code section 2 l.047(d) is the sole remedy for the failure of
      the State to follow the mandatory requisites of the condemnation procedure.

      D.    By granting Appellee's Motion to Dismiss for Want of Jurisdiction,
      without allowing briefing on the subject, the Court deprives the City of certain
      procedural due process rights that were intended by the Texas Legislature.

                       ARGUMENTS & AUTHORITIES

      A.    The Court incorrectly concluded that the mandatory language used
      by the Legislature in the 2011 amendments to Chapter 21 of the Texas
      Property Code were not intended to be jurisdictional.

      Page 3-4 of the Court's Opinion contains the conclusion that the 2011

amendments to Chapter 21 of the Texas Property Code were not intended to

undermine the Hubenak analysis. As a result, the Court extended Hubenak to the

Legislature's bona-fide-offer requirement.     However, the plain language of the

statute indicates that the Legislature wanted to change the way condemnations were

conducted in Texas and the legislative history supports the argument that these

amendments came about as a reaction to the Hubenak decision.

      The Legislature used mandatory language to require a condemning entity to

take certain steps prior to condemning property. The 2011 amendments from Senate

Bill 18 included a new Section 21.0113:

   Sec. 21.0113. BONA FIDE OFFER REQUIRED. (a) An entity with eminent
   domain authority that wants to acquire real property for a public use must make
                                          4
   a bona fide offer to acquire the property from the property owner
   voluntarily.
   (b) An entity with eminent domain authority has made a bona fide offer if:
        ( l) an initial offer is made in writing to a property owner;
        (2) a final offer is made in writing to the property owner;
        (3) the final offer is made on or after the 30th day after the date on which
      the entity makes a written initial offer to the property owner;
        (4) before making a final offer, the entity obtains a written appraisal
      from a certified appraiser of the value of the property being acquired and
      the damages, if any, to any of the property owner's remaining property;
        (5) the final offer is equal to or greater than the amount of the written
      appraisal obtained by the entity;
        (6) the following items are included with the final offer or have been
      previously provided to the owner by the entity:
                 (A) a copy of the written appraisal;
                 (B) a copy of the deed, easement, or other instrument conveying
        the property sought to be acquired; and
                 (C) the landowner's bill of rights statement prescribed by Section
      21.0112; and
        (7) the entity provides the property owner with at least 14 days to
      respond to the final offer and the property owner does not agree to the
      terms of the final offer within that period.

        Added by Acts 2011, 82nd Leg., R.S., Ch. 81 (S.B. 18.), Sec. 8, eff.
        September 1, 2011. (emphasis added)

The Court was correct in its conclusion that this is a case of first impression under

Texas jurisprudence as it does not appear that any other court has considered whether

these provisions are jurisdictional. However, when considering the changes to

Section 21.012, it is clear that the Legislature intended these provisions to be

jurisdictional:



                                          5
      Sec. 21.012. CONDEMNATION PETITION. (a) If an entity with
      eminent domain authority wants to acquire real property for
      public use but is unable to agree with the owner of the property on
      the amount of damages, the entity may begin a condemnation
      proceeding by filing a petition in the proper court.
              (b) The petition must:
                     ( 1) describe the property to be condemned;
                     (2) state with specificity the public use for which the
      entity intends to acquire the property;
                     (3) state the name of the owner of the property if the
      owner is known;
                     (4) state that the entity and the property owner are unable
      to agree on the damages;
                     (5) if applicable, state that the entity provided the
      property owner with the landowner's bill of rights statement in
      accordance with Section 21 .0 l l 2; and
                     (6) state that the entity made a bona fide offer to
      acquire the property from the property owner voluntarily as
      provided by Section 21.0113.
              (c) An entity that files a petition under this section must provide
      a copy of the petition to the property owner by certified mail, return
      receipt requested.

      Acts 1983, 68th Leg., p. 3498, Ch. 576, Sec. 1, eff. Jan. l, 1984.
      Amended by: Acts 2007, 80th Leg., R.S ., Ch. 1201 (H.B. 1495), Sec.
      4, eff. February 1, 2008. Acts 2011, 82nd Leg., R.S., Ch. 81 (S.B. 18),
      Sec. 9, eff. September 1, 2011.

The Texas Legislature intended the bona fide offer requirements of Sec. 21.0113 to

provide a clear set of rules that a condemning entity must follow in order to

determine whether the parties are unable to agree and those mandatory provisions

must be complied with prior to filing suit. Otherwise the Legislature's actions in

passing Senate Bill 18 had no effect on the condemnation process.




                                          6
      The requirement in Sec. 21.0 l 2(b )(6), that the condemning entity ''state that

the entity made a bona fide offer to acquire the property from the property owner

voluntarily as provided by Section 21.0113" is also instructive of the clear

Legislative intent that the condemning entity could not bring an action without first

complying with Section 21.0113. For example, it would be a violation of Texas

Rule of Civil Procedure 13 to include a Sec. 21.0 l 2(b )(6) statement in a

condemnation petition without actually having previously made the bona fide offer

as mandated by Sec. 21.0113. See Tex. R. Civ. P. 13 ("Attorneys.. .who shall make

statements in pleadings which they know to be groundless or false ... shall be guilty

of contempt."). Moreover Rule 303 of the Texas Disciplinary Rules of Professional

Conduct states in relevant part "A lawyer shall not knowingly . ..make a false

statement of material fact or law to a tribunal." The Texas Legislature clearly

intended that the Sec. 21.0 l 2(b)(6) be included in the condemnation, but that the

lawyer who signed the pleading would be bound by both the Texas Rules of Civil

Procedure and the Texas Disciplinary Rules of Professional Conduct to make certain

that the bona fide offer was made prior to the institution of condemnation

proceedings. The Texas Legislature would not have intended that attorneys who

sign condemnation petitions would do so in violation of these rules.

      The legislative history relating to Senate Bill 18 indicates that the Texas

Legislature was reacting directly to the Hubenak decision in a series of enactments


                                          7
culminating in Senate Bill 18.     The House Research Organization, Interim News

(May 17, 2010), a true and correct copy of which is attached as Exhibit "A" directly

discusses Hubenak and the Legislature's reaction:

             Concerns about entities exercising the power of eminent domain
      providing fair initial offers for condemned property have led to recent
      attempts to require these entities to make "good-faith offers" at the
      beginning of the condemnation process and to establish meaningful
      sanctions when they do not. Supporters of a good-faith offer
      requirement point to the 2004 Texas Supreme Court decision in
      Hubenak v. San Jacinto Gas Transportation Company, 141S.W.3d172,
      claiming that case diminished the incentive for condemning entities to
      negotiate in good faith. That opinion resulted from a number of cases
      in which property owners claimed that condemning entities did not
      satisfy the requirement, under Property Code 21 .012, that the
      authorities were "unable" to agree with the owners on the amount of
      damages before beginning condemnation proceedings. Property
      owners argued that the requirement could not be met unless the
      condemning authorities established that they had engaged in "good-
      faith" negotiations with the owners before filing suit. The court found
      that the entities in Hubenak each had made a formal offer to purchase
      the properties and that this was sufficient to meet legal requirements to
      make an offer before filing suit.
             Supporters of raising the standards for what constitutes a good-
      faith offer say that the current court interpretation of the law allows
      condemning entities to make low offers knowingly without facing the
      penalty of paying attorney' s fees and having to re-file a case as a
      consequence.....

The article then describes past legislative efforts, which included the bona-fide offer

requirement that resulted in Section 21.0113:

            Past legislative efforts. Two previous bills that failed to be
      enacted would have established requirements for good-faith offers. HB
      2006 in 2007 would have require an entity attempting to take a property
      to make a bona fide offer, defined as an offer that was based on a
      reasonably thorough investigation and an honest assessment of the
                                          8
      amount of just compensation due to the landowner. It would have
      allowed a court that found a condemning entity did not make a bona
      fide offer to dismiss a condemnation suit and require the entity to make
      such an offer. SB 18 in 2009 would have required a condemning entity
      to make a bona fide offer meeting several criteria, including obtaining
      a certified appraisal no higher than the offer made....

See id. These provisions made it into Senate Bill 18 and the Legislature clearly

intended to abrogate the Hubenack decision and put in place a more rigid procedure

the condemnor must comply with before filing suit.

      The City respectfully requests that the Court rehear and reconsider its decision

to grant the State's Motion to Dismiss and allow briefing on these issues of first

impression under Texas jurisprudence.

      B.    The Court's incorrectly extended Hubenack to apply to statutory
      language that the Legislature adopted to change the legislative scheme
      for condemnation set forth in Hubenack.

      On page 4 of the Opinion, the Court correctly noted that the Hubenack court

did not address whether the requirement of a bona fide offer is jurisdictional, and

that the issue appears to be an issue of first impression in Texas jurisprudence. Then

the Court, without additional discussion, concludes that the 2011 amendments to the

Texas Property Code do not appear to have undermined the Hubenak analysis.

      However, the Court reads too much into the Hubenak decision. It's true that

Hubenak stands for the proposition that the requirements under the previous version

of Texas Property Code§ 21.012 are mandatory but not jurisdictional. See Hubenak

v. San Jacinto Gas Transmission Co., 141 S. W.3d 172, 183~84 (Tex. 2004 ).

                                          9
However, it is also clear that under Hubenak, a landowner can waive its right to

challenge whether the condemnor negotiated in good faith prior to filing the

condemnation petition. See id. The Court seemed to indicate that all pre-suit

requirements of condemnation actions could be waived by the landowner's failure

to timely raise a challenge. See id.

      In the present case, the City did timely raise a challenge to the State's failure

to comply with the pre-suit requirements. The City objected in writing to the State

prior to the commencement of the suit and raised the issue in a plea to the jurisdiction

after the suit was filed. A plea to the jurisdiction is the only appropriate procedural

vehicle for the City to use to challenge the State's failure.

      Moreover, as previously demonstrated, the Legislature clearly intended to

address the perceived abuses under the Hubenack decision.

      The City respectfully requests that the Court rehear and reconsider its decision

to grant the State's Motion to Dismiss and allow briefing on these issues in light of

the legislative history and the Hubenack court's indication that a landowner could

waive all pre-suit requirements by failing to raise a timely challenge.

      C.    The Court incorrectly concluded that the abatement remedy set
      forth in Texas Property Code section 21.047(d) is the sole remedy for the
      failure of the State to follow the mandatory requisites of the
      condemnation procedure.

      On Page 4 of the Opinion, the Court concluded that the Legislature provided

an abatement remedy under Property Code Section 2 l .047(d) shows that the defect
                                           10
(the failure of the State to make a bona fide offer prior to commencing suit) is not

jurisdictional. However, nothing in Chapter 21 of the Texas Property Code indicates

that abatement is the sole remedy available to a landowner. The present case is in a

different procedural posture than the Court considered in Hubenack. In Hubenack,

the condemnation petitions were filed, the Special Commissioners had made their

awards and the landowners timely appealed the awards, and there were opposing

motions for summary judgment. See Hubenack, 141 S.W.3d at 176-177. The Court

noted that there was no language in the previous Sec. 21.012 that made the "unable

to agree" requirement jurisdictional. See id. at 180.

       However, the 2011 amendments to Texas Property Code Sec. 21 .0113 and

21 .012 were changed to add specific mandatory requirements that a condemning

entity must follow prior to filing suit. This was a major departure from the previous

version of21.012(b)(4) that simply stated that the condemnation petition must "state

that the entity and the property owner are unable to agree on the damages." When

these prerequisites are not met, the entity cannot maintain an action and a plea to the

jurisdiction is the proper procedural vehicle to challenge the lawsuit.

      The City respectfully requests that the Court rehear and reconsider its decision

to grant the State's Motion to Dismiss and allow briefing on these issues in light of

the specific changes the Legislative made to Texas Property Code Sec. 21 .0113 and

21 .012 which added specific mandatory requirements that a condemning entity must


                                          11
follow prior to filing suit and because the Legislature did not provide any changes

to Chapter 21 of the Texas Property Code that evidence a legislative intent that

abatement is the sole remedy available to a landowner.

      D.    By granting Appellee's Motion to Dismiss for Want of Jurisdiction,
      without allowing briefing on the subject, the Court deprives the City of
      certain procedural due process rights that were intended by the Texas
      Legislature.

        The Texas Legislature clearly intended that the 2011 amendments to

   Sections 21.0113 and 21.012 of the Texas Property Code would provide

   procedural due process rights to landowners.           The Legislature changed the

   requirements under fonner Sec. 21.012(b)(4) that simply required the

   condemnation petition to state that "the entity and the property owner are unable

   to agree on the damages." To specific actions that must be taken before the

   condemnation petition can be filed and a certification under Texas Rule of Civil

   Procedure 13 that the provisions contained in Sec. 21.0113 have been met. When

  the State failed to comply with Sec. 21.0113, a plea to the jurisdiction is the

   appropriate vehicle to test the jurisdiction of the trial court.

      "The fundamental requirement of due process is the opportunity to be heard

  at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424

  U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). "Procedural due process

  considers not the justice of a deprivation, but only the means by which the

  deprivation was effected." Caine v. Hardy, 943 F.2d 1406, 1411 (5 1h Cir. 1991).

                                           12
   The injury that stems from a denial of due process is not the liberty or property

   that was taken from the litigant, but the fact that it was taken without sufficient

   process. See Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d

   890, 894 (61h Cir. 1991 ). A due process injury is complete when process is denied.

   Zinermon v. Burch, 498 U.S. 113, 125, 110 S.Ct. 975, l 08 L.Ed.2d l 00 (1990).

        If a landowner cannot challenge whether the State has complied with the

   mandatory pre-suit provisions of Sect. 21.0113 and 21.012 immediately after suit

   is filed, the landowner is deprived of its ability to effectively challenge the State

   at all. The State will be able to ignore all of the mandatory pre-suit provisions

   contained in Sec. 21.0113 and 21.012 with impunity. The State's lawyers will

   be allowed to sign condemnation petitions in direct violation of Texas Rule of

   Civil Procedure 13 with no meaningful consequences. Moreover, the courts of

   the State of Texas will be able to ignore the directives of the Texas Legislature

   set forth in Senate Bill 18.

      The City respectfully requests that the Court rehear and reconsider its decision

to grant the State's Motion to Dismiss and allow briefing on these issues in order to

give effect to the Texas Legislature's 2011 amendments to the Texas Property Code

and in order to preserve the procedural due process rights of Texas landowners.




                                          13
                                  CONCLUSION

      The City of Rosenberg respectfully requests that the Court rehear and

reconsider its decision to grant the State's Motion to Dismiss and allow the appeal

of the City's Plea to the Jurisdiction to proceed. Accordingly, Appellant asks this

Court to reconsider its decision to grant the Motion ofthe State of Texas to Dismiss

Appealfor Want ofJurisdiction, see Opinion filed October 13, 2015, and reverse the

decision to grant the State's Motion.

                                        PRAYER

      WHEREFORE PREMISES CONSIDERED, Appellant prays that this Court

reconsider en bane its decision to grant the Motion of the State of Texas to Dismiss

Appeal for Want of Jurisdiction and, after filings of briefs and oral arguments, hold

that Appellant is entitled to dismissal of the condemnation lawsuit in the trial court,

and for such other relief to which Appellant may show itself to be entitled.

      SIGNED this 281h day of October, 2015.




                                          t4
            Respectfully submitted,

            DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
            2500 W. William Cannon Drive, Suite 609
            Austin, Texas 78745
            512/279-6431
            512/279-6438 (Facsimile)
            george.hyde@rampage-aus.com
            scott.tschirhait@rampage-aus.com



      By:

            State Bar No. 45006157
            SCOTT M. TSCHIRHART
            State Bar No. 24013655

            ATTORNEYS FOR APPELLANT
            CITY OF ROSENBERG


                      CERTIFICATE OF CONFERENCE

      Pursuant to Rule I 0. I (a)(5) of the Rules of Appellate Procedure, the
undersigned certifies that attempts to confer with counsel for Appellee The State of
Texas was made on Octoz                      pellant is filing this motion as opposed.



            GEORGE E. HYDE
            SCOTT M. TSCHIRHART




                                        15
                      CERTIFICATE OF COMPLIANCE

       In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the
Appellants' Motion for En Banc Reconsideration contains 3,320 words, which does
not include the caption, signature, proof o ) service, certificate of conference, and
certificate of compliance.


             GEORGE .HYDE
             SCOTT M. TSCHIRHART

                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has
been served upon the below named individuals as indicated, and according to the
Texas Rules of Appellant Procedure and/or via electronic notification on this the 281h
day of October, 2015:

Glorieni Azeredo                               via electronic notification
Susan Demaraisa Bonnen
Assistant Attorney General
Office of the Attorney General of Texas
Transportation Division
P.O. Box 12548
Austin, Texas 78711-2548


                          GEORGE E. HYDE
                          SCOTT M. TSCHIRHART




                                          16
HOUSE
RESEARCH
ORGANIZATION
Texas House of Representatives
                                 Interim News
                                 Number81-4                                                          May 17, 2010



Legislature may revisit eminent domain
issues in next regular session
    The Tc:<as Legislature may             Some issues that continue to             curbed eminent domain abuse m
rcvisil iss111.:s imolving eminent      generate debutc 1nch11.k the factors        the stale and tlwt continuing lo
domain l;iw tlunng ils 2011 regular     that may he considcrcJ in :twardinlf        rl!striet 1he cxcrcist: or 1his authority
session. Eminent donmin is thl!         cumpcnsalion for taken land, how            hampc:rs i1s lcgitimLilc mul neccsc;ary
authority of a government or private    to ensure contkmning authorities            use.
entity to take pnvatc property for a    negotiate in good rmth. rdocalinn
public use upon providmg adequate       assistanc\! for property owners. and            Since enacting a law restricting
compensation to the property            the c.'ttcnt to which eminent tlonmin       the laki11g of private properly for
owner. This authority is regulated      authority should be used for slum           cconomk de\ elopmcnl purposes in
by the Tex.as Constitulion and stale    and blight clcnrance. Those who             2005, l:1wmakcrs have conshh:n:ll
statutes. l>rcvious discussions of      oppose furthcr revisions s;1y recent        a rangi: or prnpo~cd re\'isions tu
cmim:nt domain in Texas centered        dmnges in the l;1w have cffc:ctivcly
un whether current luw adequately                                                      (See eminent domain, page 2)
protects property owners from unfair
and unnecessary takings.

       Property Coe.le. ch. 21 govcms
                                        Veterans mental health courts
eminent domain (condemnation)
 proceedings an<l pro,·i1h:s a tlm:c-
                                        open in Texas
 step process for contesting the            Last month, D<tllas County became the third county in Tc;o.;as 10 orl!n a
 t.ik ing of prupcrty undl!r cmincll1   veterans mental hc;ilth court. A hill allowing counties to create these couns,
domain authority. First. an entity      SB 1940 by Van de Puuc. was cnactctl by •he Tc:<as Lcgislalurc during the
 with condcmm1tion authority that       :?009 regular session. I fan·is County opcnctl the lirst veterans court in Texas
 is unable to agree wi1h a property     in December, and Tarrant County opened the second last mornh.
 owner on the amount or damages
 llrnt should he awarJcd for a              Veterans mcntul heallh com1s arc rrograms, usually operated within
properly may file suit in llislrict     an existing trial court, that integrate mental he>tlth and drug treatment for
court or county court-ai~law in the     certain mililary veter.ins with the processing of crnninal cases in whkh the
county where the propcny is lm:atcd.    veterans arc dc!Cn<lants. Veterans mental hc<ilth courts rely on supcr,·isory
 ,\presiding judgt! then appoints       and treatment mm.Ids de\·dopcd by other mental health and dmg courts in
three special commissioners who         Texas :ml.I aroun<l lhc rnunlry. In all such courts. 1f :.i dl.'fontlant successfully
reside in the county to award           completes treatment anJ other condi1ions sci by the judge. lhc court may
damages h&tsc<l on evidence             <lismiss the dmrgcs against the defendant.
submi11ed at a hearing. Finally,
 ir ..:llhcr party appeals the awanl       One or 1hc distini;uishing traits or veterans mental hc.ilth couns in
suggcsh:d by the commissioners, the     Texas and nationwide is the inclusion of mentoring scss1011s with other
case is submillcd to the coun with      veteran~ . These mentors help vc1cr.111s transition to civ1lian Ii fo and navi~.1tc
jurisdiction over 1hc case.
                                                                                        (See veterans courts, page 9)

                                                      Exhibit A
·page 2                                                                                                  Interim News



Eminent domain. from page 1                                     aJctiuatcly dl'linc ·'public nsc" nr sullkk111ly hmtl
                                                                the use ol"cmincnl domain in slum and blighted areas.
the c:xcrcisc of eminent domain in Texas. In '.!007,            Under the Texas Conslitution, eminent domain authonty
the governur vetoed one bill, HB 2000 by Woolley.               may he excn.:1scd only whi:n lanJ is bdng ta~cn for a
that would ha,·c made .1 number of cha11gcs lo 1he              puhlic use. but the definition of ·'public use:"' has hc:cn
use of i:mincnt domain. i11d11di11g                                                    dclined lnrgcly by the co1111s.
narrowint; the uses for which land
may (Jc 1akcn and 1cv1sing 1hc                                                        In Novcmhi:r 2001J, Vlllcrs
prOl:csscs that guvcm the taking of
                                          Two laws <.'mu.:ted rece11t~v
                                          lwi:I! .wught tu re.i;tricl thc         :ippro\'cd Proposition 11 (I IJR 14
privalc properly. Anothl!r bill. SB                                               by Co11c:). amending the: Tcx<1s
18 by Estes. whidt included similar
                                          permissihle uses '?I emi11e11t
                                          dnmai11 a111ltority.                    Constitulion h> rcs1ric1 the use
provisions, was appnn-ctl hy the                                                   ur eminent domain aulhority
Scnmc but died in 1hc I lou:;c lluring                                             lo a l<1king or other dmm.1gc
the rc~ulor session in 2009. Voters                                                tu a property rrimarily for the
approved a constimLional amendment 111 .!009 that          O\\llCl'ship, usc, and enjoyment hy ce11ain entities. Those
m1rrowcll the purposes for wluch propc11y may be taken. cmitics im:ludc the stale. a local government. an entity
                                                                with condcrmmtion authority under slate l:1w. or !he
                                                                public al k1rgc. The amendment disallowed the laking
Restricting uses of eminent domain                              of property for tmnsfor to <i pri\'atc cnlily p1ima1·ily
                                                                for ct:onomk development or to cnlmncc tax revcnuc.
    Two laws cnacicd recently have sought lo restrict           It also required a two-lhirds vole of ;ill the members
1hc ~rmissihh: uses of cmincm domain authority.                 elected to cJch hou:;c for the Legislature lo enact a fow
A law cnacrcd in 1005, SB 7 by fanek. hmi1s the                 gr.111ling the power of eminent domain to an entity.
circumst:rnccs under which a comlemnmg ;iuthority may           effective .lanllat)' I. :?O 10.
take land for crnnom1c dcvdopmcnl. SB 7 prohibits a
taking that:                                                         No formal legal t:hallcn~es to :m eminent dumain
                                                                proceeding based on the recently amended public use
    •   conters a benefit on a pa11icular privmc p<1rty         clause ilrc currently pending. Some say that further
        through the use uf the propeny:                         limiting pennissibk public uses of cmimml domain
    •   is for a puhhc u-ic 1h:ll is a pretext to conli:r a     in statute may be necessary in order to Jcfine key
        pri\'alc bencfi1 l>n a p.1rticular privotc parry: 01·   term~ mu.I n:spoml to putcnti;1I court interpretations of
    •   is for economic development purpoc;cs, unless           language! in the Constitution .
        th.: llc\.clopmcnl is a 'iccoudary purpose
        rcsulling from urban renewal aclivitics lo              Slum and blight
        eliminate ;11lirm.1tivc ham1s from slums or
        hlighlcd areas.                                                The a111hority to acquire property for economic
                                                                dcvclupmcnt, including the removal ur slum mid blight.
     The LcgislJturc cnadc<l SB 7 in response 10 lhc            n:nmins a subject or con1rovc1sy. The Legisklture
U.S. Supreme Court's decision in A.'l'ln '" Ci~1· of'Nc1r       has recently dcbatcu whether to restrict 1hc use of
J.mu/011, 545 U.S. -469 (2005). which held that use of'         emincnl llumain mrthority to acquire pmfh!rty idcntilic<l
eminent domain for economic de\ clnpmcnc purposes               .1s ··,&urns.. ur '"blighted areas." Proposition I l. the
Wils pc1missibk lnu llrnt stale.'> LOllld rcs1rk1 such          constitutional amendment adopted in 2009. :11lows :1
aulhorily.                                                      taking of property 10 eliminate hligh1 on a partkular
                                                                pa1ccl only, rather than a lar~er area tlcsignntcd as
Public use                                                      ·'slum·· or ·'hlightet.I.'"

    AJvocatcs of reigning in eminent Jom:un powl·r                   The Texas Urban Renewal Law, cnach!ll in 1%7.
said SR 7, whik :1 marked imprnvcmenl. did not                  ;illows local authorities lo exercise cmincnl domain 111
May 17, 2010                                                                                                           page 3



acquire pro(lcrty within an urhan renewal plan :1re;1 1ha1        residents and businesses for enterprises th;u gener;11c
a munit:ijlalily d.:signatcs as a shun or hligh11.:d. Propc11y    more tax revenue.
may he condemned 111 a section of a dcsigm11cd urban
rcncwal area when: the municipality has dctcrminctl lhat              Opponents of 1cstric1ing the use of cmine111 domain
al lc;ist 50 pcn:enl of stn11.:l11rcs arc Jilapid;1tcd mul show   for slum and blighl say proposed limit-; woulJ crcah:
other ch:1rac1cristics urhlight.                                  ubstadcs thal cffcclivcly climinall! a municipality's
                                                                  aulhority to <ll!si~nalc a hlightetl area and promote urban
      In W07 ;md 2009. 1hc Legisluturc considered                 n.:ncwal through eminent donmin. Thl!y say this would
revising lhc authorily 10 crnulcmn prnpc11y in so-                diminish thdr ability 10 improve the qunlily or life nf
t.·allcJ blighted or slum arcns, hut none of llu: rropnscd        rcsid!!nL'> who need lhc mos! assistance.
s1a1utu1y revisions hccame l;1w. HB 3057 by C1llcgari
in 2007 :mtl SB 18 by C!sles in 1009 would ha\'c
prohihill:d a municipality li'otn c~ercising powers under         Rights of property owners
the Urbm1 Renewal L:1w unless its govcmini; hndy
dctcnnincd that c;1ch unil or prnperiy in an area met lhe             Artother is.,uc centers on the rights of property
definition of "hligh1:· Both bills would have rcquircJ            owners whose l:mtl is t:1kcn umlcr eminent domain
wrillen notice to pmpc11y owners before :1 blighted area          authority.
was designated and would have allowed a property In
b~ dcsignaccd as hligh1cd only if the owner took no                    MB 2006. which Go\'. P!!ny v..:10..:tl in :!OU?, ant.I SB
reasonable measures to remedy haianlous condit10ns.               1R. which was approved by the Senate but died in the
A municipalily wishing 10 exercise eminent domain                 I louse in 2009, would h:l\'c e~pandcd compcnsa1ion
authority in an urban renewal area nol only would have            for property uwncrs, rcl1uin:d condemning l!ntitics to
had to determine that each property in the area met the           nqmtialc in ··gootl faith," and allowed properly owners
dclini1ion of blighted - also a provision of Prnposition          lu rc:purchasc 1akl!n properly 1ha1 had not been put lo a
 11 . the ronstitutional amendment approved by voters             puhlic U!>C within I0 years.
in 1009 - but also woulJ have had lo n:afiinn the
designation on "" ongoing hasii;.                                 Compensation for access to transportation

    UnJi:.- Prupu~it1011 11, cunJcmnation for u public                 Th!! fa.:tors thal may be cunsidcrcd in awar<ling
use includes a laking intended to eliminate blight on ;1           t:ompcnsalion 10 a property owner fodng eomlcmnation
partkular parcel only. h mokes no allowances for taking ha\'!! ll\!cn a subject of ongoing dcbalc. State law allows
property due lo the conditions of                                                               owners of property subjccl
imrmundmg propc11ics. calling                                                                   to cmincm domain to seek
into question the eonstillllionality       The jaclOr.'i that may he cousidercd in compensation for their propcny
of provision.; of the Urban                mmrdi11g compensaliou lo a property in court. In ddenninmg the
Renc\\'al Law that authorize this          m1•m:1)i1ci11g co11dem11atio11 hal'e                 amount of rompcn.sation, the
practice.                                  bc.•t.w a .'Wl?iect <?{011goi11g debate.             coun may consider cc:rtain
                                                                                                evidence on the v:1luc of the
    Supportel's of restricting                                                                  property being comJemncd :md
the use of eminent domain for                                                                    ncl dam:1gcs tu any remaining
slum and blight say current law nllows munkip;ililics              property nut taken. A Jlarli<:ular focus of debate has
to seize the properties of est:iblishcd rc~idcnl~ and              hccn whether lo allow damages for the impact of
businesspcorlc based on a qucstionahk designation                  diminished access to transpol1ation on the remaining
of their property as .. blighrcd ... This oflcn ;1rbitrary         property when a porlion of Jlropcrty is lat.en.
designation. 1hcy say. undermines ind1,,i<lual properly
rights lhrough an overly b1oad dclini1ion of :wccptabk                 Di1•crsi1111 t~{tm/fic:. In a key Tc.\as Supreme Comt
property maintenance and appcarnnce. This can be a                 case in l'N:l, Stare of u•w\· 1 Schmidt, X67 S.W.2d
ml!ans o I" tlispl:icing working da!ls and middle class            7<19. two propc11y owners in Au!>lin filed for additional
 page4                                                                                                        Interim News


d.1111.1g.cs as J rl!sult of a St.lie Mighw.1y 183 con-.1ruct1on   l11ghway from thc rcmainini:t rrorerty due 10" :-.talc
pruJCCt th:1t lllVOIVCU dcvat111g lane.; Jm) t.1kmg 'il!VCtl       highway rrnicct. lo the extent 1ha1 it alfoth!d chc
li:ct or their pmpe1ty for right or way. The court found           propcny's market 'aluc. The bill abo would have
that the l<tnd 1)\\'llCTS, a pt)rtlOll ofwho'\c pmpcrty            dchncd m:.rkcc \ Jluc as 1hc price a pro1lcr1y would hring
was 1akl.'n for wad cxpansil)n, were not cntitlc<l.                whc.:n sold hy a'' illing sdlcr to a willing buyer. SD
under Property <...oJc :!. I 04'.?(c). lo compensation for          11( considered m 2009. would ha\'c allo\\ed C.:\•1dc11<.:c
diminishcJ propl!rly \'aluc rcsulling fiom a tlivcrshm             on a matcri:1l 1111paim1cnt or direct access onto or off
uf 1mfflc. increasL·<l circuity ot' trn\cl to the propl.!rty,      of the rcm:uning properly to the c.\tcnt that it tiffcctcd
rcduccJ v1s1bility lo passersby, or incom cnkncc from              the pmpcr1y's market \•aluc. It wuuh.1 not h.m: allowcd
cnn-;truction thal wus shJrcd in common with the                   considemtion ol' circuity of tra\•d nr c.Jh er'iion of tral'fk
g~ncr•1l commumty.                                                 that w.is common to other propcnics. upholdinl,! the
                                                                   lc!,:;11 dishnc11on identified in Sdm1it/1.
    Dimini.d1e1/ 11r impuiretl UL't'I!\'.\'. In May ~009, in
Staff! o/'Tl.!.r11.,· 1~ Bri~tvl liotd A.n,t Co. 293 S.W.3tl 170      In vetoing I fB 200(l in ::!007, Gov. Perry sa1J
(.2009). ;i hotel in Sm1 Amonio that lost a portion or its       allow111g consiJcrnt ion of c\'idcncc on JimmishcJ
property for ii rmlll expansion c;ought dmnagcs for loss         access and other dmna!:!CS lo a landowner's remaining
or :1 driveway anJ lcmporary                                                                 prupc11y <luc Lo the exercise of
los'> of parking spaces due Ill                                                             cmincnt domain \\oul<l result
construction O\erruling rhe                fo·o bills reu.!11tfr debated in Texas in unacccplahlc higher cosls lo
<1ppclla1c cmut in S:in J\nhmio,           u·ould hm:e red ~·ed the! /etc/ors that           taxpayer!'. The governor said
lhc Supreme Court found thal the          m<~v b1.~ considered ;,, deter111i11i11g           the change woulJ have .1ddcd
damagcs cited hy the hotel \\ere          tire m/uc• ofproperty tuken 1hror1glt more than SI billion in cxll a
not compl!nsablc under Tc.xas             eminent domai11.                                  costs to ta:\payers by creating a
law hccm1se 1casunablc access                                                                new category ,,f damages .1f!cr
to the rrop1my remained anti the                                                             property uw11c1-s :ilrcady had
rcJuccd access cited by the hold did not rise to the level received fair nrnrkct v:1luc for taken l:in<l. Requiring
of a "material and substantial" impainncnl.                      large payments for properties that continued to have
                                                                 :11:cl!ss to trnusporlation that \\.-;1s only diminished, but
     In 200X. the Tcxas Supreme Cou1t in Swu: <f Tt.•.wrs        not climim1tcd. would have made many key public
1: Dml'l1utr, 'l<,7 S.W.Jd 875 (WO~). haJ found tlrnl            improwments prohinitively expensive, he said.
rcgardlcss nl' whether the loss of access to the.: abutting
major highway ch;111ged th..: remainder prnpcny·s                     C'titics of chc veto of 1113 200{, said the rights or
"highest aml hcsl use" from commercial lo residential            Tcx•ms subject to eminent domain would have been
and 1hcrcby diminished its vuluc. thal did not constitute        cnlrnnccd by allowing foir payment for dcmunstr.iblc
a "material and substantial .. impainncnt hccause access         damages to rrnpcrty. The bill would have clarilictl the
lo other public roatls remained.                                 rnngc of acceptable: damag..:s chat could he considered
                                                                 ;mc.J would have accm111tcd fur 1hc actual impnct of
     /'tut legi.~·lutirc cffom" Two bills recently dcl:lalctl    takings on remaining prorcrty. which woul,t promote
in Tcxas would have rcvisell thc factors that may be             fair ncgotia1ions from the 1)Ulsd. This. cri1ics said,
considered in dctenninin~ thl! v:1luc ur property taken          would h;1vc reduced excessive litigation that nltcu
through eminent domain. The bills woulJ lmve :11lowed            rcsulH when condcmnini; au1horitics make minimal
evidence of Ifie impact un the mcirkcl value of remaining olTers basctl on a narrow range of factors .il'focli11g
prupcny When :JCCl.!SS WilS diminishcd or impaired.              mnrkct v.1luc. Cri1ics of the Vl.!lo said the bill would
                                                                 have rcsl\1re<l balance tu an unfair proct.~s that gives
     HB 2006, cnnsitlcrcd in 2007, would have rcquin:J           advniitagl.'s to condemning authorities. and it would
thal. for the purp11sc or determining cumpcns:1tio11,            have done so witlhlut :my knuwn cost having hccn
evidence he considered on diminished access to ;i                ic.Jcntilicd by lhc Lcgislativ1.: Budget Board.
May 17, 2010                                                                                                          page 5



Right lo repurchase                                             landowner lo rcl·civc any appri:caalion m v.1lm: •u:crucd
                                                                between the time the property was comkmncd and \\hen
    Properly o\\ ncrs ha\'e sought autho1·ity to rcpurcli.1sc   it w:is rcpun.:hascJ by the l;mdowner.
prnpcity .111he unginal piicc lhcy were paiJ by a
condemning uuthority when their funner 1m1pcrty is 1101             Suppol1er.; of allowing propc1 ly owner' In
uscJ ;1flcr a ccnain pcrioJ for the public use for which        rcpurdmse thdr properly m 1he llnginal price s;1id it
it wui. taken. Current law allows a properly owner lo           would crc:1tl! a disincenlivc again~t lhc !>peculativ~
rcpun:has~ land wkcn through eminent domain for a               exercise of eminent domain ;1uthority by condemning
public use thal 1s cancdcJ bdun: the IOth anniversary           entities Comknming cntilks would he strongly
of the dale the rrorcrty \\'JS at:ljlllrcJ. The rosSCS!>ing     discouraged from acquiring land through eminent
governmental cnlily mu:;t oiler 10 sell the prnpcrty lo lhc     <lomain for which they <lit.I not ha\•c immediate plans.
pre\'1ous owner or lhc owner's hdrs for the fair market          fakings carrh~d out on a spccul:1li\·c b:i'>is dcpmc
value of the 1>mpc11y al the lime the public use was            owners of the l'uturc valm: of the prnpcrty. and the
canceled, nut ;U the original price paiu by the cntuy.          option to rcpurch;isc at the original pnce woulJ help
                                                                rcctily this grievance.
    To cst:tbli~h the constitutional authority for the 1ight
of repurclmsc ;11 the original price paiJ. voters approved           Opponents of allowmg property owners to
Prupo.;irion 7 in 2007 (MJR 30 by Jackson), authorizing         n:pun.:hasc !heir property at the original price
govcrnmcnt;il entities lo sell land t:1ken through eminent      said it would allow '·double recovery" for digiblc
domain back to the t<.mncr ll\Vncr, the owncr·s heirs.          rropcrly owners who had undcrgoni: cmincnl dom<1in
or olhcr succL'SS~lrs, m 1hc prit:c the cntuy paid when         proceedings. This would confer a wimlfrill on property
acquiring the property if:                                      owners who were compensatccJ adcquatdy fur lhe
                                                                original taking. lhcy -.a1J. An own..:r wh\l was cliy1blc tu
    •    the public use for which the property was              rcpurdrni;e at the price originally paid could accrue all
         acquired has been canceled:                            lhl! l!lJUity from appreciation of the value of the prop\!11y
    •    no actuul pmgrc~s has h~cn made tow;irJ the            .;mcc the lime of the original laking without having to
         public use during :i prcscrib.:<l period of time; or   pay pmpcrty laxes. maintenance expenses. and other
    •    the propcny is unnecessary for the puhlk use.          rnsls nonnally irn.:urrcJ as part of propcr1y ownership.

    A cons11tu11onal :11ncndmcnt was rc~1uiret.I 10 m·emdc      Good-faith offers
the prohibition ;1g.1ins1 a governmental cnllty granting
anything uf vi\h11: 10 an indh·idual or corporntiun unless          Concerns about cnlitic-; C"<cn:1i.ing the power
otherwise spcdficll m the Cunstitulion.                         or ..:m111cnt tlomatn prm idmg ltlir 111i1i.1l offcp, fur
                                                                conllcnme<l properly Ii.I\ e led to rci.:cnt allcmpls to
     I IB 2006, whkh \Vas vetoed hy the ~n\·cnmr in             require these c11tit1c~ to make ··gooJ-fa1th offers•· m the
2007, and SB IS. which died in the I louse in 2009.                         or
                                                                beginning lhc cuntlemnallon rrnccss aml lo cs1ahlish
included " pw\.'ision th.it would ha\'c implemented the         me:mingli.tl sanctions when they do nol. St1pporte1s of
cou~tiluti1lllal amcn<lmi:nt hy allowing. a 1>mperly owner      a gunJ-faith offer 1cquircmcnt roi111 to the 2004 Tc~as
whose lanJ was acquircll for a public use that has since        Supn.•mc Courl 1lcc1s1on in / lulll'1111k 1 Sa11 .Im i11to Uo.;
been cancelled or failed lo pwgress to rcpun:hasc their         Trmr.wri.\'.\"Ulll Cv111pm11. 141 S W.3d 172. c..la1ming that
property at the original price the conc.kmning entity           cusc d1mmislml the 111ccnti\ c ltw w11Jcm11111g cn111ic~
paid. Only lhc origin:ll owners and their heirs could           lo negotiate 111 good foith. Thal opinion rc,ulh:d from a
have repurchased the property. The right ol repurchase          number ol 1. 1);c-; 111 \\ hil:h property own\!1·s claim~d that
wnulcJ have ~·r1llicd if'lhc rublic u.;c for lhe properly       contlcmnmg entitles did not satisfy the rcquir~menl,
were cancdcd or the governmental entity failed to begin         unJcr Prnpl!t'lY Code 21 012. th.it lhc authorllh!s
operation or ~onslruction t'I' the proJCl.I within IO yc;m;.    were "1111ahk" lo :igr\!c wi1h owner-. on 1h1.· mnounl or
If such legislation \\ere cn11cteJ. 1t would ;1llow the         damage' bcfon.· bcginmng condcrm1;11ion prrn:c1:d111g-.
page 6                                                                                                         Interim News


Prupl!rty owners ;irg.ucd 1he rcquirl!mcnt could no1                       Some h,1, c propo~ed mca~uring the inilial
he met unkss contlcmnmg autlmntcs cswbHshcd that                      olfor ag;unst lhc linal award dctcnnncd by spcd;il
chey had cng;igctl in "good-la1th'. ncgotiationi; wi1h                comnusswncrs ;iftcr court pmcccding'\. They -;ay the
the owners hcfon: tiling q11t. rhc mun ltllllhl lhat the              mere c:dstcncc of an apprnisal docs not ensure a fair
entities 111 I luhcnak i:;1ch h..iJ m.1dc a formal offer to           offer. as apprnisals may \'ary widely bascJ on th<.: factors
purcha~c the propi:11ics and 1h.1t 1h1s was sullicicnl to             includctl in dt:tenmmng market \'alui.: Supporters ol' .1
mct:t lcg:•I ri:t1uirc1m:nb lo make an olfor llt.!fore filing a       provision to measure 1hi: ini1iul oiler against the final
.;uit.                                                                aw;1rd 'ay Che final offer should not \,try hy more than
                                                                      ;1 certain percent from the initial oiler. perha1ls 15 OI' 20
    Suppmicrs of raising 1hi.: ~t.mdards for what                     p!!rccnt. Initial otli:rs murl! than 15 ur 20 rcrccnt lower
coit..;1i1u1cs a )J.lKld-foith offer say that 1he current court       limn a lim1I judgment should be primu /itch: evidence of
in11.·rrm:1a1i0n of tl\c law allow-; comkmmng cnli11cs Lo             ba<l foith. Supportcl'S of such a provbion say ;1 strong,
inakc low olkrs k1wwingly w11hout focmg the penalty                   dcmons1r.1bli: meac;urc such :1s a minimal variance
of paying allorm:y 's foe!> an<l havmg to r~-lile a cJsc              percent is lhl! only tnu: means uf ensuring condemning
as a cunse4ucncc. Suppurlers say much expense ;m<l                    cntiti~s m:1kl! guod-failh ulli:rs upfronl. Jlrm·1s1ons 1hat
hardship coulJ be a\'oide<l if condemning authorities                 cnn he minimally saci.stil!d on paper hy ensuring 1.:ertain
made :1 fair offer for a pmpel'ly upfront. Many property              ad111111islr:11iw requirements arc met do lilllc to ensure a
owuers acccJll inilial offcrs hccausc they tear the                    fair illllial oiler.
towering li:gal l'Cl!s, time, and personal hardship that
attend lighting for a foir award in court. An owner who                   Opponents of a ~ood-faith offer re<1uircme11l ba..;cd
is offered $2.llUO an acre for land that has a market                 on rite "ariancc between inicial Jnd fim1l offers say such
\'aluc of $:\,000 an acre, for instance. may concludc that            a provision 1s too subjective :mJ expects condemning
the diffm:nce is not worth a prntrnde<l lcgal light.                  authorities to prcdicl u co1111's behavior. They say 11 is
                                                                      impossible It) predict how th..: special commissioners
     Pa.w ll:.~i..,./11tfri: cjftn·ts Two prcvmus hill-; 1ha1 foikd   appoin1cJ by a court might dccuJc" partkular case A
 to be cm1~1c<l would have c:;tahl1shc<l rcqum.:111cnts               condemning entity shoulJ not he held ai:count;1ble for
 for gm1d-fo1th oilers. I 113 2006 in 2007 \\ 1H1ld have              not predicting the exact market value of a property in a
rcqull'cd an entuy a111:mpti11i; tu In!...: a propcny lo make         Cllllle.\l of imperfect information.
a huna liJc offer. defined as .111 offer that w11s b.t!-cJ
 on a rca'iun:1bly 1hurough ill\c.;t1gatllln .lJHI an hQnc~I
 assc:;smcnt QI the .imount of 1us1 cum111:11sation due to            Eminent domain process
 the f;m<lown..:r. It would ha\ c .11lowcJ a court 1h.11 found
:1 comlcmnmg cniity tli<l 1101 m:1kc a bona tiuc ullC:r h>                Lawmakcrs lm\'e llcbatcJ several revisions to the
dismi's .1 L'undcmncilton suit and require the entity lo              process for exercising eminent domain aulhorily in
 m:tl-.:c such an offer. SA 18 111 ~OO•> wuul<l havi: required        recent years. including when an entity must disdos\! iL-;
 a o:unucmnin~ enLity to make :1 hnna fide oner meeting               aulhl>ri1y anti intention Co take a properly. wh-:ther to
scvcrnl cri1c1 ia. including obtaining a certified appraisal          require conucmning nu1hori1ics 10 provide relocation
 no higher than the offer m.1dc. A courl finding that                 .1ssist;im:c to Ji~pl:1ceJ property owners, nn<l lltc
such an offer h;1d not been made could have required                  grallling of st::uutory authori1y to use the power of
 a condemning entity 10 pay costs and reasonable                      emincnt domain. Supporters of ch:inging 1hc process
attorney's foes im:urrcd by the property own~r directly               say propc11y owners often an: overwhelmed hy the
 related to the failure to make a bona fide ofter.                    complexity of cmincnl domain proceeding" and unaware
                                                                      of I heir nghls.
   Disti11g11i:;lting .~mul·fnit/1 1>jfe r.f. Recent Jchatc on
good-failh oilers h:ts centered on how 10 discinguish                 Disclosure of intent
good-faith oll\!rs from those aimed :'It coercing property
owners mto settling on :111 unfair r rkc to avoid lcg;il                 Recent lcgisltlliun lws inn>lvcd changes to notice :111J
tees and hassles.                                                     thc Jisdosul'c llf mtcnt re11uircmcnls for toking properly.



  HOUSE RESEARCH ORGANIZATION
                                                                Exhibit A
May 17, 2010                                                                                                             page 7



     r IB 14CJ5 by Callegari. enacted in 2007. rcqu1rcc;           pnwisi(ln tn an offer or agrcemen1 h> possi:ss propclly.
.m cn111y w11h eminent Jom.iin authot ity 10 prO\· Ilk ,1          The.: 1111\:nl wa.; to rrcv-.:nt such entiries from keeping ki:y
landowner's bill of righ1s to a properly ownc:r bc:forc            mformation. such :1s ~m ;ippraisal. from pmpcny owners
initial ncgollallons lo aClfuirc property. ;\c. required           and other mtcrc'itcd part ks. ·nic.:y also woul1I havi.:
by 1hc law. lhc: Allorncy Gcnc:r:1rs Ollicc draftc:tl 1hc          n:<1uircd an i:ntily lhat was not subject lo upc.:n records
l111ulowncr·s lull of rights tu noltly properly owner~             law.; bur w.1s m11hurizctl to c.<tcrcisc cmincnl domain,
or 1he1r rig.hi'\ in eminent <lumain prncccdings under             such as a pri\·alc u11li1y, IO aJhc:rc lo open lcrnrds lav.s
s1,11e law. induJing the right lo" hearing .111J to arpcal         rcl:ucd to i.:onllc.:11111:11 ion proc.:c.:dings if rccon.ls were
1hc offer made lor the prorcrly. The hill of riglus 1s             requi:stcd by an ullc1:ti:c.J propc.:rty owner. The bills
•lW11lable onlme ;1t ht11J.//\•;ww.oag.statc.1x.us ·•!!en!..V/     would have allo\\cd n court to award a pc.:rson who did
la11downcrs.sh1ml. In :?OOl), the Legislature followed             not rccc.:1w rcqucc;lcd documents reasonable attorney's
up with I IB 2685 by Callcg.iri. winch ~pedficd 1ha1 an            foes lo be paid by an entity lhal refused to 1irodm:c the
entity must provide a t:tlflY of the: bill of righls al least      requested mfonn:ttion.
.;c\'en 1foys h..:forc making a flnal o!Ti:r 10 purchase ;a
landowncr·s pmpc11y.                                               Relocation assistance

       HB 2006 m 2007 and SB IX in 2009. which wen:                     Tht: Lcgi,l.tturc ;iJso has considered proposals to
1101   c11;11.:tcd. \\ uulc.J ha\ c pmhibtlcd an entity 'ic:ckmg   rc.:quirc :1s,.1s1ancc for pc.:oplc tlisplaccJ hy a taking of
lo ac4uin: property from including a conlidl!ntmlily               propc.:ny. The li!dcral Uni form Relocation 1\ssistancc




                        Groundwater raises regulatory takings issues
           The Texas Supreme Cuun is now con'iidc.:ring a case that adllrcsscs how regulations affect prnpi:rty
       owners' rights in groundwater beneath their propc11y and what may constiCutc ;1 "regulatory taking" of
       property, meaning a regulation that res1nc1o; use nf pmpc11y to such <1n ex lent that il amounts In a taking of
       value that must be: compcns<itcd.

           f n Edwcmls Aquifer A111lmritv ·~ Dm·, propcny owncri; daim that the Edwt1rds Aquifer A11thori1y
       cffoctivcly abridged their property 1ights without compensation by pcn11itting them 10 pump only 14
       acre-feet of water from the Edwards Aquifor hcncalh their property. The case i;aincd prominence when,
       ovcm11ing a district court, the fourth Cuui l of Appeals in S,m Antonio ruh:d lhal groundwater was a
       vested right that conveys to the rropcrty owner. The Texas Supreme Courl heard oral :1rgu111cnts m the
       case in February.

           The case has gcnc111tcd substantial inlc.:rcst among both .mthontks that n:gulatc groundwater and
       landowner organizations. Dcha1c on &he takings issue in the CilSC has ccnlcrcd on whether owners· intcrcsl
       in groundwater beneath their pmpcrty ii. a 'cs1cd properly right protected under the Texas Consti1u1io11 's
       prohibition against lilkmg propcny for a public use without atkqumc compcns:llion (/\rt. I. sec. 17)

           La11Jowni:r orgnnizations say an interest in y.rmmdwatcr 1s a h:-;tcd. constitu1iunully prntcdcd right
       and that this has been alflrmc.:cl historically by the com1.,, anorncy general orinions. anJ in slaluh:.
       Grnundwatcr conservation distm:ls say 1hat while landowners pos!.css some rights in grou11dwa1cr hcncalh
       their property, it doc:s not amount lo a co11s111utioiwlly prnll!ctcd. \. cstcd right ;rncl is 1hcrcforc subject lo
       regulalOf)' limitalion withou1 compcns.niun
pageB                                                                                                      Interim News


Act {UR1\,\ l h!llUircs support for property ownc1·.'•              Propo-;111011 11, the cons1i1utional amendment
cli.,placcd a'\ p.1rl of projects thal rccl!i\'c l~dl.'ral      adoplctl in :!009, r.1iscd the bar on grant in~ the pO\\Cr
.l'>s1!>l;1ncc, but 1Jus Jocs not C1'1cnJ to takings when: no   of ellllllCl\t UOlll:llll lo new entities hy increasing
such hmds arc invol\'cd. Current law in Texas pcnnlls           chc numbcr of voles m l!ach house of 1he lcg1sln1urc
a gowmmcnlal cntity lo provitlc J rclm:ation '>cn·kc            necessary to ~rant the power of ..:mincnt domain
.md issue rclm:atiou pi!}'mcnts in kci:ping with IC<lcrnl       from a simple m;ijunty to two-third-. of all mcmb~rs.
guidelines for .in individual d1splm:cd by cminc1u              Supporlers of this mcai;urc said that the power of
Jom;1i11.                                                       cmincnl domain should he gr.11\lcd only if neccs!.:1ry and
                                                                mcreasing the support threshold in the lcgs~lutun: wouli.I
    Two b11ls previously consiJcrcJ but not cn;...:h:J          hdp protccl agains1 unnecessary expansions of this
would have rcquircd rdocation ;ic;si~tancc. HB 2006             power.
in 2007 would h;we rcl1ui1cd govcmmcntal entities to
prnvi<lc rdocation assis1:111ce and payments to displaced           Other iniliativcs have auemptcd to calaldguc exactly
propcny owners. SB 18 in 2009 would hnvc required               \\·hat entities have lh1s aulhurity and for what purpo.~c
assi~Wncc paymcnls and allowcd sp..:cial commissioners          SB IX, wh1ch dil!d 111 the I-louse, would lrnvc required
to cimsidcr cvu.lencc on whether" condemnation                  entities created hcfon! 20!0 to submil :1 lcllcr lo the
required the relocation of a homestead or fonn and how          .:omptrollcr acknowledging their authoiity to c'cn:isc
much compensation would he ncccs-;ary lo <1llow thl!            lhc power of eminent llmrn1in in the state anti idcntilyrng
properly owner to ha\'C a c:ompar;1blc slamlard urlivinl-t      the legal source for 1ha1 aulhority. The comptroller
or to bl! able to opc1.itc a comparabk 1:11m.                   would have used lhe responses to gcncrntc :1 report on
                                                                the cntitks and the source of their aulhority. Entities
    Supporters uf requiring rdocatiun assistance say            1ha1 did not submit this inli.mnation to 1hc comptroller
assistance shuulJ not be limited to those pr~jccts              woulc..I have 1hcir power of eminent dom;1in rcvokc<l, 1n
that involve feller-JI fnmling. People displaci:tl hy           ..:Oci:t creating an exclusive list of cnlillcs posscs-.ing !hi:
cmin~nt domain. th.:y Sil}'. :m: s11hjcc1cd 10 hardship         power of eminent Joma in in the slate.
and linandal dam:1gcs - s11d1 as moving a rcsidcnc~
or liusiucss - 1ha1 ;ire not captt11\:<l undi:r currl!nt            In ~006. the Texas Lcgislarive Council released a
law dclcnmning "llcl)llillC compensation. Oppon.:nts            publicalion with a lic;t of the types of entities that ha\c
of rcquiacd rcloc:11ion assislancc s:iy tl'rms such ;lS         the power of eminent domain and listing statulcs thal
•\:omparnblc stcullhm.1 of living·· arc too subjective anll     grant prohibit. or rcstrkt an entity's cxcms..: of this
threaten lo ;ulll unn::isonablc costs to tmcpaycrs.             power. ·1 he publk.1tion is a,·ailahle at h1111:!: www.1lc.
                                                                slate.Ix.us nuhspol EmDumain.[!!.lf.
Who may exercise eminent domain
                                                                                             -   by Andrei Lubomudrov
    Rl!ccnt cffo11s lo rc\'isc eminent domain practice
have indu<le<l increasing rl!quircmcnts th;it must be
met for empowering entities to take property an<l
dorumcnting which l!lllitics ;11·c empowered to use
cmim:nt Jomain m Texas. Tlu.'SI! dTorts stcmmc<l from
a conc..:m that ii was 100 easy for nn ..:n1i1y tu be granted
cmim:m domain authorily and lhal some entities may
possess it unncccssari ly.
May 17, 2010                                                                                                             page 9



Veterans courts, from page 1                                     Color .uh Nc\'itda. Illinois, Califomrn. Okluhoma. •md
                                                                 Aht!>ka ;all h.1vc some kind of prohlcm-s<1l\ mg l.llllll for
hcndils, hcalt h saviccs. mid other hc:lp o lli:n:d by tlu:      dch:mlants who arc \'Clcrans. according to the Na11onal
lc<lcral Veterans Administr;1tion (VA) mul othc1 ~crvicc         ConlCrence of Slate Legislators.
pmviJcrs. fl oftcn takes a partktpilnt bctwc..:n 12 :md IX
months lo g1 ;1dua1c from veter.ms menial hc;1hh i:ourt
pr<lgrams.                                                       Problem-solving courts

    Under SU I ')40, two or more Texas ct•11111ks 1m1y                 The tirst Ycternns court in the United Slates. 1.:rc••1ed
cswhl ish a regional velcrans ment;i) hca II h com t to          in Buffalo, New York in January 200~. was mo<lclc<l
cover ll•Ulicipating counties. Most of 1hcsc courts will         .il'tcr other ''prohkm-solving court~:· -;ud1 .is Jnig
ra1t11cr \\ilh cxii;ting or c.xpamling treatment program-;       courts. 1hn1 diver! <lefonuants with underlying .1ddic11011c;
that arc run ;im.I paid for by lhe VA.                           or mental hen Ith problems away from tnl'an:cr1111011 :md
                                                                 into trc;ilment. Other kinds of problcm-.,ulvmg courb.
    J\cconJing to th1.· Tc'<ns Vctcnrns Commission. in           in lhc Unllcd Stares targcl certain criminal or chmnic
addition to the new programs iu HarTic;. Tamu11, amt             bi:-ha\'ior prulllcms, such as domestic abuse. DWI. or
Dallas counties. 1:1 Puso ;md Travis counties arc in             hnmdci.sness. Few of lhcsc progr:uns ;ire stan<l-.1lonc
the proc~·ss or sell in~ up veter.ms mental hc:thh court         courts. l\.10.;1 are c;cpar;llc progr:un'> w11hin a court nf
progr;uns. while Ue.xar. Dcntun. Fannin. l lidalgo. and          general jurisdictio11 or a criminal coun (For mon rm
Orange countii:s arc activdy planning 1hem. New York,            pmblt•111-:wfri11g cow·r.~ ;,, Tera.,·. sec: hclm1· )

r

                        Other problem-solving courts in Texas
              Texas lws a '';1ridy or prnMcm-snlving couns. the must common bdng drug courts. Drng.
     wm1s arc progrJms, usually opernting within a district court or a county co1111 al law, that divert from
     incilrccr.11ion into treatment cct1ain defon<lants whose substance abuse was a signinc:ml cause ol' the
     allcgl!d criminal hcha\ ior. Dmg cout1s suflcrvisc 1rcu1mc11t for tlclcndant.; and use prngrl!ssivc sanctions
     to \!nforcc compliance with the program. They alsl) may require restitution 10 vicl ims. community service,
     and other counseling. Other examples of prohkm-solving cnu11s in Texas. besides vetcrans mental health
     courts. indmk family drug trc:itmcnt, mental health, domcstk violence, homdcss. teen, lru;im.:y. and
     tohacco courts. l'hcse other problcm-soh·ing courts follow the drug court model of intensive supervision
     and 1rc:itmcnt of the underlying bcha\ ior or addiction that is contnbuting to the criminal behavior lhat
     hmughl lhc Jcfcntlaul In w1111. Most of these pmhlcm-soh ing courts nrc either created explicitly by
     slatute or created by a county with statutory authmization. Creating thc~c couns rc4uircs coordination
     among existing local cum1s, Jistrkt uuorncys. ln!almcnt providers.•md the county commissioners cuuns
     that O\'ersce their hmlgcls.

               In 1001, thc 77th Texas Lq!islaturc enacted HB 12X7 hy Thompson. which required the large
     mh•m t:Ollllti\!S of (k'l(ar, Dallas, rt Paso. I J:ims, Jfalalgo. Tarrant ••md Travis Ill establish <lrng l:lllll IS.
     It also authori7cd county commis'iioncrs courls m smaller cou11t1e'\ lo establish them. According 10
     the OITkc of Court Administration. 91 dmg cuurl programs either have bf.!cn established or arc bci11g
     JevdopeJ in Texas. A :!002 study by thL' SMU Department of Econom1cs fomul that drng court gr.1<l11atcs
     had a lowl!r rcddh:ism rate thJn either drug cuurl dmpouls or lhosl! whu did nut rarticipatc in dn1g cout1s
     at all. Texas dnrg com1s arc fomle<l through grants and p;1nicipant fol!s. l\fany rely on 1;:dcrnl. stale. and
     private grnnls for start-up and opcmtional cn-;ls. The crrmmal .iuslicc 1.Ji\ isio11 of the Governor's Ollicc
     said it expects to award about $6 million in grant fonds to Tl!xas drug courts during lis(al 2010-1 I.
\.
page 10                                                                                                      Interim News



     Veteran-; mental hcahh com Is arc the newest kind              they ~ay. 111 aJJ1tion. under SA 1940. ;1 \'Ch.'r\111s
of prnhh:m suh ing court. They urc intended to alldrcs'i            mc111:tl-hc;11lll court judge may expunge a deJC:n<lant"s
d1runil bcha\'1urnl. <lcrcmlcm:y. or mental henlth issues           criminal record. making it dillicult for courts and law
that lllJY undcllic i.l vderan 's criminal behavior. These          enforcement lo !lack hislorics or criminal behavior.
CtlUTl<; Wllr~ lhrnugh intensl\'C SUper\'iSion 01'.1 \'eler;in 's
treatment. meeting with the veteran anJ treJtmcnt
providers .mJ ..nmctimes ret1t11ring drug testing. In               Veterans mental health courts in Texas
many programs. if a JUJgc is sati-;licd with a <lclcn<lanl's
progrcso; in trc.llmcnt and compliam:c with 01he1                        Three vch!r.ins mental hi.:ahh com ls arc ClllTCntly
concht1011s set by 1hc courl. the judge may expunge. seal,          operating in Ti:x.1s. HmTis Couniy's w:is 1he lirsl In opc.:n
1>r cks1roy all r.:co1ds of the criminal beha\'1or.                 m December ~009 and currently oversees 20 tlcfcndants.
                                                                    The second. in Tarrant County. opened in April of this
      Supporters of pmblcm·'>olring cm111s say they                 yl·;u· ;mu oversees 40 1.kfomla11ts. The 1hird, in Dalhis
reduce lhc n:d<lt\'io;m rate for dclCndants who                     County, .ilso opcnl!d in April mul expects to keep a
pai1ic1palc in them. For example, in .2005. the U.S.                rolling ;wcragc of hctwl!en 50 :md I 00 tlcl\!ndants in its
Gener.ii Aci:uunlalnlity Ollkc.: (GAO) issued a report              program.
condudiny tlmt \\ hilc Jmi: cou11s arc more cxpcnsi\c
to nm th.111 regular c:ourti;, 1hcy result in daamatic cosl         Eligibility
.;:l\'ing-; to go\-crnmcnt-; O\ er lime because lhcy rc<luce
co'its for law cnlim:cmcnl ;md <:JS\! processing and                    Under SB 1940. to he clil!iblc 10 partidpatc in a
reduce the numb.:r of crime \'1ctims. A 200h s1mly m                \Cterans mcnt:il health cmu1 m Tc~os. a dd'cnJant must
Th<· .lo11n1t1l ~{ Ps.i•t hnadiw Dntg.r or nmc Cali fomi.i          hi: a veteran or a member of the U.S. mrncd forces. Th.:
dnig cmu1-; rcpmh!ll lhat the recidivism r.1tc of drug              Jcfon<lanl :1lso must :-ulli!r from :i brain injury. mental
court graduate" was lt!ss than thal of lhc gc:nernl                 illness. or mental disorder, such <1s post-traumatic -;tress
population of dcfc11Jan1s. In that stuJy. the re-arrest             disorder or Jcrm:s!.ion, that rcsult..:d frnm scn•icc in
rate for the same ur similar ollcnscs wa..; 17 percent              a cnmh<11 7.onc or ;i simil:ir hazardous duty area. The
for those who successfully complccc<l the drug cou11's              ;1ffiiclion must have matcnally affct:tcd the defendant 's
rc411ir..:d trc;ilmcnt regimen. 2'> percent for all those           criminal conduct tlwr is al is::.uc.
who participated, :md 41 pcrccnt for comparable tlmg
offi:ndcrs who did not pai1icipa1c. TI1c GAO found                     SB 1940 grants judges in veterans mental health
sirnilur rl·sults iu studies of dmg i:uurts in other states.        courts wide c.JiscrcCion to con~1<lcr c\·iJcncc that would
                                                                    c~tabhsh :t ~crvicc: rcconl. .1dtliction, or illness and how
    Critics or probkm-solving courts say study results              those condi1ions may have aflcct~d 1hc all.:g~d criminal
that show lower recidivism mies for gr<idualcs of thcsi:            cone.Juel. An dig1tilc dcfcn\hlnt may dc.:dc.Jc whcth..:r
co111 ts arc no surprise. These court.c; :ire -;1affcd by           or not to participate in a vclcrans mental hc.ilth court
dcdicah:<l judgcs with the 1ime and llmtling needed h>              program hut may 11artkipatc only if lhc prosccu11on
closely supervise defi:n<lanL'i \\ho arc spcch11ly chosen           consents. If lhc prosecution docs nol cons..:nt. the
to partici1>:ilc. These courts h:l\'e enlmnced .;raff levels,       dd'cndant will be proc.:ss.:d through normal 1.:rimin;1I
inclucling aduitional social workers. highly trained                proc.:cdings.
eourl managers, and ai:i:ess to expcnenccc.J treatment
professionals anti probation officers. Crita:s of probli.:m-        Jurisdiction
solving courls say it would be helter Ill u.:vote such
1esources to all c~isting courts than to i:1·catl! "boutique             SB J940 allows cvunlics lo create \'cti:rans mental
courts'" for ccrt.iin groups . Some victim protccuon                h.:alth courts to hc;1r all fclonic.; and misckml!anors.
groups believe that these courcs may lake altention                 although few granl such wide jurisd1~·1wn . 11.uris
•1w;1y from protecting. \·ktims. Incarceration prutccti;            County"s vcti:r;ms ..:ourt prngrJm. lhc lirsl in Tc·rn~.
!-ucicty from furl her hann. aml diversion progr.ims                1s .1dmimstl!1cd by a .:rimmal dii-1m:1 -.:ourt !"he
mi~ht rc.:lcnsc dangerous indivilluals back inlo society.           jurisdiction of th.: veterans court includes both folonies
May 17, 2010                                                                                                         page 11



an(l 1111stkmeanors .md cnn mcludl! violent ofli:nsco;,                 .'\t the frdctill kvcl. in spring. 2009. bills were
although noc scxuill offenses or most 3(g) aggrav,11cJ              1n1rnducc<l 111 the U.S. House of Representatives and
o flcnc;cc;. 'iuch as murder or aggr•I\ atcd rnhbcry. 1':11 ran I   the U.S. Semite that \\'ould provide li:deral g1411lls lo
,1nd D;11las counties :11low only mi'idcmc:mor property             vctcrnns court p1 ograms for non-violent offenses. Both
olTcnsc' lube heard, ••s will Tr:1\ is .111tl olhcr coumics         wctc rctcrrcJ to commiuce. where they t:urrenlly arc
planning lo l!l\tahlish wh:rans menial health courts.               pending.

    Texas counties cslahli,hin.!,! lhcsc courts .ire expected
It>follow the models for dmg comts, in whu.:h :1 county             Debate on veterans courts in Texas
that plans lo allow holh !\:Ionics and misdemeanors
lo be heard places the prnyram m " Jistnct court '' ilh                  Supporh.•rs of \'ercnin~ courts in Texas argue lhat
gcner.il or criminal jurisdiction. Ir a county plans 10             crc.lling veterans mental hcallh courts allmvs lhCSl'
allow only misdemeanors, it may alsu pl:1cc the program             courts 10 develop c:q1cr1isc in mcn1al health illlcl <lnig
in a stah1to1y county cou11.                                        .1ddiction treatment for vch:rans that m:1ximii..: thdr
                                                                    eh:mcl!s of rccmcnng :md rl!intcgrnting inlo :-.ucii:1y. The
    Other .;talcs have different aprroacltcs to velcrans            juJgcs. allomcys. <md c:isc workers in 11\esc couns also
courls Some stnh!S limit their courts lo properly crimes            bccoml! expert' 111 na\'igating VA bcnclito; <mJ lrl!atmcnt
or exclude serious 'wlcnt offense-;, whik some s1:1les               fnr which a tlclCndanl mighl be eligible. Couns without
explicitly allow lhcsc cour1s lo hear all misdcmeunors              this e;~pcrtisc may not be as :;ucccsst'ul '11 helping
and f don1es.                                                       vctemns rcmtcgrntc and avoitl reoffcndiny.

      Vclcrans ad\ ocatcs and   1rca1111~111   prO\·idcrs. such         Suppot1crs say the Texas law 1a1lors cligibil1ly for
as the VA, say \·ctcrnns court-; shoul<l be :1llowcJ to             \'Ctcrans courts to a narrow group of vch:rans whu ha\ e
adJudic::11c inure i;eriouo; c1 imco;. Th.:)' say e:xisting         c:arnc:d access hl diversion prugr.uns. Umlcr SB I lJ40,
trcatm..:n1 progr:ims can successfully address 1sst11:~             only vc1ernns with an um.li:rlying mental illnl:!"S tlwt
underlying serious crimes, !'lllch t1S DWI ;md some                 was caused by combat duty arc clig.1blc, and they may
domestic violenl.'.c. They also argue that vc&crans who             partidp.11c only with 1he conscn1 of tht! pro-;ci:ution.
commit IClonics <ire those most in need of 1hc duscly               In Tc.'l.as. access lo tht! program is not based soldy on
~upcrvisc<l lrct1lrnc11t 1·cgimcns that a w1crans 1nohlcm·          Wl\!rnn !>talus but l!> Jctcm1incJ on u case-by cao;c has1c;
solving court c;111 provide.                                        No veteran is automatically <idminctl

Funding mechanisms                                                       Sup1>orlcrs say veterans mental health courts arc
                                                                    needed becausl" velcrans make up a s1gmflc:m1 portion
    SB 19.tO allows velcrans mental health courts lo                of county jail rorulations in Te.~ms. Acc:ording 10 a 2007
collect a !Cc of up to S 1,000 from the Jc fondant as               ~tuJy by the fcdaal Bureau of Justice Statistics. 10
wdl as additio11:1l 1Ccs to cover testing. cnu1lscling.             percent of those mcarccr.itcd in slate prison-; :mJ jails in
and trc;umcnt c~pcnscs. The Ices 1m1r;1 be b:1sed on                the United S1:1lcs arc veterans. Even if vctc1;111s c:ourts
the vclcr,111 's ability lo p;iy unJ may be used only for           cannot treat :111 <lcfcmJ:mts with similar underlying
purpose.'> specific lo the veterans mental hciilth court.           problems. they will open up space in cx1~1ing local
                                                                    trcalmcnl program!' by transferring eligible \ ctcrnns
     The crim111:1I juslke division of the Governor's               111 progrJms run by the VA. A maJor hcndit of
Ollicc offers seed grants lo hdp Tc:<as counties csrnblish          wlcran~ menial he,11lh t:ourls 1s thJI the VA will he
\'clcrnnc; menial health courts. These grants :trc limited          1hc lrcatml!nt provider in mllst c.::ise5. which c;houl<l
<o couns lhal hear misdemeanor property crimes. So IJr,             result in sig11ifkanl s.tvings 10 local governments.
the t:riminal justice tfi\'ision has :1wardcd $100,000 in           Lot:~1I govcmmcnl.'> l11s1oric:.lly ha' I! had d11lkully in
gr;ints to Tan ;int County's vct.,;r;ms menial health court         establishing problem-solving courts because ol lhc high
program :m<l is :1sSl'!>Sing, other ;1pplh:ations.                  ~O!>l of 11·c;1tmcn1.
page 12                                                                                                    Interim News



    Opponl'nls of \'l'll•r:ms courts in Tl'x:is •my these             The Amcncan Ch ii Libs:rtic'i Union h.1o; ... poki:n tlllt
courts arc not ncccs'i:iry hccau-;c ex isling courts c.in        .1g.1inst the \ cte1·,rns court progrmns Ill ( olorado and
handk any special needs a \Ctcran might ha\C. Under              Nevada. saying they gr•utt vch:rnn'i cerlnin cnmmnl
the U.S and stale constilutions. Tc~:is prosccutors              defense rights that other t.lcfondants do not ha\c.
already have Wilk lliscrctiun 111 whether ;inJ how to            Veterans courts th:it cover only combat veterans c:\.dutk
prosecute a crime. They consider ;i \'Ctcr.m 's prior            both other veter.ms :iml non-vctcr;ms who h;I\ c -.1milar
scrvic~ and, where appmrriatc. use prt!-trial tf j\ cr'iion      mcnt::tl illnc'iscs, they .-:ay. For cxainpk. a police nllkcr
aml other llrogrnms to get vctc1ans hack on their feet           might al-.o sulli:r from work-rcl<llcd posl-tr.mm:itic
ag.iin.                                                          -.trc'is lli~ordcr. commil a i:rimc. :1110 lo~c rhc nght to
                                                                 carry a lircann .mt.I a lkcno;c: 10 be a pc:acc olliccr. This
                                                                 Jispar.1tc treatment of similt1r dcfom.lants based on -;talus
                                                                 could viol:tlc II~ Equal Prutccllon daur;c ol the U.S.
                                                                 Cons1i1ut1on. opponcnl!i say.

                                                                                                          -by Tom Howe




  HOUSE RESEARCH ORGANIZATION

                                                                 John H. Reagan Building
   Steering Committee:                                           Room 420
                                                                 P.O. Box 2910
           David Farabee, Chairman                               Austin. Texas 78768-2910
           Bill Callegari, Vice Chairman
           Drew Darby                                            (512) 463-0752
           Harold Dutton
           Dan Gattis                                            www.hro.house.state.tx.us
           Yvonne Gonzalez Toureilles
           Carl Isett
           Susan King                                            Staff:
           Jim McReynolds
           Jose Menendez                                         Tom Whalley, Director:
           Geanie Morrison                                       Laura Hendrickson, Editor:
           Elliott Naishtat                                      Rita Barr, Office Manager/Analyst:
           Rob Orr                                               Catherine Dilger, Kellie Dworaczyk.
           Joe Pickett                                           Tom Howe. Andrei Lubomudrov,
           Todd Smith                                            Carisa Magee, Blaire Parker. Research Analysts




 HOUSE RESEARCH ORGANIZATION
                                                              Exhibit A
