Montgomery County can take Aggie forest land for highway, appeals court rules

Steve Korris Aug. 7, 2008, 3:42am

Montgomery County can condemn state forest land by eminent domain, take ownership and return the land to the state, Ninth District appeals judges ruled as they marveled at how such a process could lead to a lawsuit.

The state compared the case to Alice in Wonderland, and in response Montgomery County compared the state to the White Rabbit.

In a footnote to a July 31 decision, Chief Justice Steve McKeithen approved the comparisons.

"References from the masterworks of Lewis Carroll, along with those of L. Frank Baum and Mark Twain, are often employed in appellate briefs, seldom for any useful purpose and usually in a place where citation to precedent would be expected and preferred," he wrote.

"For once, however, the literary analogy seems appropriate," he wrote.

He and Justices Charles Kreger and Hollis Horton affirmed Montgomery County District Judge Jerry Winfree, who denied the state's plea to his jurisdiction.

The state wanted Winfree to invalidate a price that compensation commissioners set for forest land in a highway improvement project.

The county and the state Department of Transportation had signed a contract requiring the county to obtain the title to a strip of land and transfer it to the state.

The strip runs through property that Texas A & M University manages as part of the Texas Forest System.

University officials didn't contest the county's power of eminent domain until the award of the condemnation commissioners disappointed them.

Texas A & M then sued, claiming no one can start a condemnation action against the state unless the state has waived its sovereign immunity from litigation.

Texas A & M argued that the Texas education code and transportation code precluded the condemnation.

The university argued that the dispute belonged with the General Land Office, which determines fair compensation when the Department of Transportation and another state agency disagree.

Winfree rejected these arguments, and so did the Ninth District.

McKeithen wrote that under Texas local government code a county's right of eminent domain extends to public or private land.

He wrote that a subsection of Texas transportation code grants blanket permission to use state property for highway projects.

The plain purpose of the subsection is to make it easier for counties to obtain state land, not make it more difficult, he wrote.
Education code permits Texas A & M to divest itself of forest land, he wrote.

The land use can change from forest to highway because the legislature has authorized full use of the land for the highway, he wrote.

The General Land Office can't take jurisdiction, he wrote, because it applies only if the Department of Transportation seeks to obtain the title.

The "pass through" arrangement doesn't turn the state into the buyer, he wrote.

Rance Craft represented Texas A & M. Mark Breeding and Paul Radich represented Montgomery County.

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