Farm and ranch groups want special session to toughen eminent domain law

Measure passed by lawmakers calls for election to decide whether to restrict land seizure for economic development
LUBBOCK — Texas farm and ranch groups are glad lawmakers have taken steps to revisit eminent domain law but say it's "nowhere near" what's needed in a state where most land is privately held.

Texas Farm Bureau spokesman Gene Hall said that if voters approve a constitutional amendment in November, it would bring "improved but still bad eminent domain law" to the state.

"It's less than half a loaf," he said, describing the bill that emerged from the recently completed session. "The fight goes on."

A measure approved by lawmakers — House Joint Resolution 18 — puts a constitutional amendment on November's ballot that would prohibit the government from taking private property exclusively for economic development.

The move, negotiated by House and Senate lawmakers, addresses a 2005 Supreme Court decision that gave New Haven, Conn., the right to take private property and turn it over to private developers for retail development.

The Institute for Justice, which represented the property owner in the Connecticut case, Kelo et al v. City of New London, has called the amendment "dangerous" and said it still would allow governments to take land for economic development. The group says eminent domain should only be allowed for public-use projects such as a new courthouse or library, and it supports the House version of the amendment, which it says has stronger protections for property owners.

The proposed amendment would specify what qualifies for eminent domain projects, but allow exceptions with the support of two-thirds of each legislative chamber.

Together with Texas cattle industry groups, the Farm Bureau is hoping that Gov. Rick Perry will call a special session and that eminent domain will be on the list of items to be discussed.

Perry has not said whether he intends to call a special session.

If he does, the additional protections for private property owners that were part of SB18 — a bill that died in the Legislature — should be taken up, said officials with the Farm Bureau, Texas Cattle Feeders Association and the Texas and Southwestern Cattle Raisers Association. Those provisions include offers that represent fair market value, compensation to landowners for diminished access to their property and the right to repurchase the land at the same price for which it was sold if nothing is done with it after 10 years.

Texas leads the nation in private property ownership, having three times more than any other state.

Perry and U.S. Sen. Kay Bailey Hutchison have both indicated that eminent domain probably will be a campaign issue in their 2010 Republican primary.

A spokesman for Sen. Craig Estes, R-Wichita Falls, the author of SB18, said the lawmaker was "very disappointed" that the bill did not survive. But the issue is far from gone, spokesman Jody Withers said.

"I think there's a general agreement that the provisions ... are still needed," he said.

A spokesman for a group outside the agriculture industry that is pushing eminent domain reform came away from the legislative session less distressed than those tied directly to the industry.

"Property rights are very important and always need to be addressed, but I think we've made great progress here, and I don't see an urgency to deal with the issue now that HRJ18 passed," said Bill Peacock, director of the Center for Economic Freedom at the Austin-based Texas Public Policy Foundation.

If Perry doesn't call a special session, projects will go forward quickly while eminent domain restrictions remain the same, said Kirby Brown, executive vice president of the Texas Wildlife Association, a nonprofit that works to conserve, manage and enhance wildlife and its habitat on private land.

"We do expect them to do that," he said. "I think it would be naive of anyone not to fast track projects and use the current eminent domain process to avoid what SB18 would have protected landowners from. I'm not optimistic."

By Betsy Blaney, ASSOCIATED PRESS

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Record Keeping and the Standard Property Management Agreement

Are you an Investor with rental properties in Texas currently under management by a broker or other property manager? Or perhaps you are a manager charged with overseeing and manager rental or investment properties owned by another. Chances are, if you own or manage rental properties in San Antonio, you will be confronted with a property manager's record keeping obligations under the standard Texas Association of Realtors ("TAR") Residential Leasing and Property Management Agreement (TAR Form 2201).

This form requires that the property manager remit to the property owner EACH MONTH a statement of receipts, disbursements, and charges. This means that an Owner should be receiving MONTHLY communications from the manager reflecting rental and other income, as well as a statement of disbursements (such as repair/maintenance costs incurred, utilities paid, management fees collected, and general costs of marketing or opertaing the property). Failure to remit these statements could be considered a breach of the Management Agreement, and could invalidate the manager's right to future management fees.

While there is no particular form prescribed for the statement, its required contents (including actual receipts) are fairly straight-forward. The prudent property manager will use the MONTHLY STATEMENT requirement as an effective tool to communicate with the owner/client, and as a tool to analyze whether the property is receiving its maximum return.

Part 4: Public Works Contracts & Subcontractors: Prime Contracts Over $25,000.00 & Retainage

Like in private construction projects, in public works projects, general contractors hold back part of the contract price until the subcontractor fulfills the contract as “retainage.” The amount withheld is a percentage of the total contract price, often around 10%. The retained money is supposed to be paid to the subcontractor after the public works contract (the contract between the governmental entity and the general contractor) is completed. If the general contractor does not pay the retained money, the subcontractor can file a lawsuit to collect on the payment bond; however, the subcontractor must first meet the notice requirements.



The subcontractor must give notice to the general contractor and surety on or before 90 days after final completion of the public works contract. The notice must include the amount of the contract, any amount paid, and the outstanding balance. Tex. Gov’t Code § 2253.046. The notices must be mailed by the proper method and to the proper addresses.



Once again, sending the notices timely, to the correct people, and with the correct content is crucial to perfect a claim retainage.



Texas law governing public projects can be found in Texas Government Code Chapter 2253 (formerly known as the McGregor Act) and Texas Property Code Chapter 53.



Please visit our blog again in a few days for Part 5: Public Works Construction Projects & Subcontractors: Prime Contracts Over $25,000.00 & Rights to Information.



Posted by Sarah F. Berry.

DA Watch: Former Jim Wells County DA Joe Frank Garza Spent Millions in Drug Money on Vegas Trips and 3 Secretaries

Down in Alice, Texas, where US Highway 281 runs through on its way from the US -Mexico border through the heart of Texas up to Dallas and beyond, there's lots of drug busts. Law enforcement in Jim Wells County stops all sorts of vehicles on its patch of US 281, confiscating all kinds of drugs -- as well as cash.

Apparently, lots and lots of cash. We're talking millions.

Over Four Million Dollars in Drug Forfeiture Money Was Spent by Former DA Garza on Trips to Vegas and Other Interesting Stuff

Joe Frank Garza was the District Attorney for Jim Wells County for a number of years, until his opponent campaigned in Alic, and elsewhere on issues regarding Garza's spending habits, and beat him in the last election.

Now, new DA Armando Barrera is beginning to report his findings on what was happening with the drug forfeiture money. First, Barrera is reporting that there was no checks and balances here: Garza spent the cash without anyone double-checking what he was doing with it.

And what was Joe Frank Garza doing with all that cash?

Barrera's reporting that Garza spent lots of money on travel to Vegas.

Garza's response is that there were lots of seminars in Vegas. He and
his employees went on lots of seminars ... legal seminars, to educate
themselves.

Barrera's reporting that Garza spent lots of money on three particular secretaries.

Garza's response is that the cash was for extra pay to lots of folk within his jurisdiction.

The Numbers So Far

The media is reporting these tallies (the audit/investigation is ongoing, this information comes from data provided by Garza to the Attorney General's office) from 2000 - 2007 (excluding 2002) where Garza spent $4.2 million:

1. $2.1 million was spent on "salary supplements", and while Garza had a staff of 15 who did get bonus pay, Barrera (and the county commissioner heading up the investigation) are reporting that most of this total went to just three people, three secretaries who worked for Garza.
2. $267,449 on travel.
3. $581,000 in operating expenses.
4. $19,987 on equipment.
5. $154,213 on supplies.

Has a Law Been Violated by Garza?

Garza is adamant that he has done nothing wrong. It was totally within his power to spend this drug money as he saw fit. Right now, state and county laws are being reviewed to see if this is true, or if Garza has violated either civil or criminal laws by his actions.

Stay tuned.

Sources:

Corpus Christi Caller Times
http://www.caller.com/news/2009/may/27/jim_wells_forfeiture/

Texas Eminent Domain Bill Progressing Through Legislature

The highly anticipated eminent domain bill (SB 18) could be voted out of the Texas House and be on its way to Governor Perry as early as this Saturday. The bill is scheduled for second reading today, which means it will be read on third reading Saturday while the House is in session. The Bill passed out of the Texas Senate on May 7, 2009.

Earlier this week, the House Land and Resource Management Committee voted the bill out of committee with a few amendments (also called Committee Substitutes). All provisions critical to property owners were left intact.

Both the United State and Texas constitutions require that the taking of private property must be for a "public use," and that when an authorized entity takes private property for a "public use" that it must compensate the owner for the property taken. The exercise of the power of eminent domain is generally recognized as a necessary tool of government; however, many have argued that over the years this power has been expanded and used in ways that are improper.

C.S.S.B. 18 makes changes, additions, and deletions, to various provisions in Texas law in an attempt to reform the power, limitations, process, and various other aspects of the power of eminent domain and condemnation in this state.

To see the Legislature's Analysis of the Bill and its specific provisions, click here.

Ranch is Nation's Largest Piece of Property For Sale

They say everything's bigger in Texas, and ranches are usually not the exception to that Rule. We enjoy many of the nations largest ranches, with such legends as the King Ranch, XIT, and Waggoner, Texas is legendary for its wide open spaces.

But the largest piece of property for sale in the United States today is New Mexico's Bell Ranch. At 290,100 contiguous deeded acres, the ranch comprises 453 square miles. By comparison, the entire City of San Antonio had a total area of 412.07 square miles (source: 2007 U.S. Census).

The Bell Ranch was assembled 40 years ago by the heirs of William Lane. It features Bell Mountain, a dramatic butte punctuating the landscape of San Miguel County just east of Santa Fe. The Canadian River flows through the property for over 13 miles and the Hacienda is 10,832-square feet with swimming pool and tennis courts. The headquarters includes a general manager residence, lake house, ranch offices, stables, barns, garage, and storage facilities. Cowboy camps are located throughout the property, as well as thousands of untouched acres and an airfield with storage for 100LL avgas and a large hangar.

The Bell Ranch supports blue quail, mule, whitetail deer, dove and Barbary sheep. The adjacent 9,600-acre Conchas Lake provides a warm-water fishery for bass, walleye, bluegill and crappie, in addition to canoeing, sailing and water skiing.

For those of you interested in putting in a bid ...the current asking price is $103 million ($103,000,000.00) - $99 million for the land and $4 million for the livestock and equipment. This comes out to $341 per acre.

Also, our law firm represents ranches throughout Texas, but if you buy the Bell, give me a call, and I'll get licensed in New Mexico too!