Blake A. Hawthorne Clerk of the Court The Supreme Court of Texas Supreme Court Building 201 W 14 th, Room 104 Austin, Texas 78701

FILED 16-0710 11/4/2016 3:09:59 PM tex-13634971 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK JAMESD.BRADBURY,PLLC 4807SPICEWOODSPRINGSROAD BUILDING2,SUITE400 AUSTIN,TEXAS78759 ALSOADMITTEDINARKANSAS OFFICE:512K953K5801 JIM@BRADBURYCOUNSEL.COM November 4, 2016 Blake A. Hawthorne Clerk of the Court The Supreme Court of Texas Supreme Court Building 201 W 14 th, Room 104 Austin, Texas 78701 Re: No. 16-0710; In the Supreme Court of Texas; John Herbert Matthews, Petitioner v. Colorado County, Respondent; On Appeal from the First Court of Appeals and the 25 th District Court of Colorado County, Texas LETTER BRIEF OF AMICI CURIAE TEXAS FARM BUREAU, TEXAS AND SOUTHWESTERN CATTLE RAISERS ASSOCIATION, TEXAS WILDLIFE ASSOCIATION, EXOTIC WILDLIFE ASSOCIATION, TEXAS FORESTRY ASSOCIATION, AND SOUTH TEXANS PROPERTY RIGHTS ASSOCIATION IN SUPPORT OF PETITION FOR REVIEW Dear Mr. Hawthorne: To the Honorable Justices of the Supreme Court of the State of Texas: Texas Farm Bureau, Texas and Southwestern Cattle Raisers Association, Texas Wildlife Association, Exotic Wildlife Association, Texas Forestry Association, and South Texans Property Rights Association and their collective members jointly submit this letter brief in support of the Petition for Review filed by John Herbert Matthews. We ask that copies of this letter be circulated to the chambers of the Justices of the Supreme Court as they consider the pending Petition FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 2 of 12 for Review. In accordance with Rule 11 of the Texas Rules of Appellate Procedure, I certify that copies of this Amici Letter have been served on all parties. I. Statement of Interest Texas Farm Bureau (TFB) is a Texas non-profit membership corporation committed to the advancement of agriculture and prosperity for rural Texas. Founded in 1933, TFB has over 500,000 member families and is associated with 206 organized county Farm Bureau organizations across the state. TFB and its members who are farmers, growers, and producers believe the preservation of private property rights in the State of Texas is of critical importance to the strength of the agricultural economy in Texas. The Texas and Southwestern Cattle Raisers Association (TSCRA) is a 139- year-old trade association and is the largest and oldest livestock organization based in Texas. TSCRA has more than 17,000 beef cattle operations, ranching families and businesses as members. These members represent approximately 50,000 individuals directly involved in ranching and beef production who manage 4 million head of cattle on 76 million acres of range and pasture land primarily in Texas and Oklahoma, but throughout the Southwest. The Texas Wildlife Association (TWA) serves Texas wildlife and its habitat, including the protection of property rights, hunting heritage, and conservation efforts of stewards of wildlife resources. With a membership of over 10,000, TWA focuses its mission on private landowners and their commitment to wildlife habitat. Protection of property rights is a key aspect of their mission. The Exotic Wildlife Association (EWA) is a non-profit organization whose mission is to encourage and expand the conservation of both native and non-native hoofstock, and to help members develop and strengthen the markets for their animals. Founded in 1967, the motto of EWA is to promote conservation through commerce. The EWA represents game breeders and sportsmen all across the U.S. and four foreign countries. Its members own more numbers of rare and endangered species than any other association in the world. Texas is home to more than 125 different species with a total of 750,000 non-indigenous animals. The EWA has 2,378 members, with the majority of them living in Texas. EWA believes that private property rights and their constant application are vital for landowners and the prosperity of the state. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 3 of 12 The Texas Forestry Association (TFA) was founded in 1914 to enhance and perpetuate Texas forest resources through tree planting, education, training, and political action. TFA has approximately 2,855 members which include private landowners, professional loggers, consulting foresters, and processing mills. In East Texas alone forest lands are 94 privately owned and cover more than 12 million acres. The South Texans Property Rights Association (STPRA) works with both government and the general public to protect the rights of property owners in South Texas. Representing over five million acres of farm and ranch land near the Texas- Mexico border, STPRA strives to promote the growth, prosperity, and security of South Texas property owners by addressing issues of critical importance to property owners, including eminent domain and the protection of private property rights. Collectively, the membership of the Amici comprises more than a half million landowners in the State of Texas who are concerned with the protection of private property rights and the related agricultural economy in Texas, which has grown to more than $21 billion annually. The Amici are not parties to the case and will collectively pay all attorneys fees incurred in the preparation of this amicus letter brief. Well beyond the important legal issues between the parties below, the Court has before it critical questions of private property rights and due process considerations. The Amici respectfully request the opportunity to present these constitutional concerns affecting agriculture and private property interests. II. Introduction The right to private ownership of property remains one of the most recognized and highest principles in Texas. It is a keystone to the history, strength and politics of Texas, even more so to agricultural and ranching interests that rely almost entirely on the land they own. The constitutional application of state laws requires that statutes that eliminate or take private property must receive the highest scrutiny. This Court is the ultimate guardian of the constitutional protections to which all statutes enabling the taking of private property must be held. Expedience in the affairs of governmental function cannot supplant constitutional protections and limits. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 4 of 12 III. Factual Background This case centers on a dispute over a county road in Colorado County, Texas. Using Chapter 258 of the Texas Transportation Code, Colorado County claimed a public interest in a portion of County Road 79 that traverses the Matthews property and had been held as private property by the Matthews family since 1939. Petition for Review, p. 6, 1; p. 9, 8. According to Mr. Matthews, the county did not properly follow the requirements of the applicable statute. Specifically, the county did not consider the Matthews protest in a public meeting (the decision was made in closed session), and the ad valorem tax notices were not made in accordance with Chapter 258. Petition for Review, p. 9, 9; pp. 10-12. Further, Mr. Matthews alleges that there were no records of maintenance on the road. Petition for Review, p. 7, 3. Mr. Matthews filed suit in district court alleging multiple claims against the county including inverse condemnation. Petition for Review, p. 12, 5. The county filed a Plea to the Jurisdiction alleging that Chapter 258 operates as an absolute statute of repose and that Mr. Matthews suit is barred because he did not bring suit within two years after the county road map was adopted. Petition for Review, p. 12, 6. The Court of Appeals agreed with Colorado County and affirmed the dismissal of Mr. Matthews entire suit. Petition for Review, p. 13, 10. This appeal followed. IV. Argument in Support of Petition for Review Texas has long-protected the right of its citizens to hold and own private property. Chief among these protections is the prohibition against the taking of private property without adequate compensation. U.S. CONST., amend. V; TEX. CONST. art. 1, 17. Equally significant is the constitutional guarantee of due process of law, which covers all manner of actions from notice to a fair and impartial process. See U.S. CONST., amend. V; TEX. CONST., art. 1, 19. To underscore these basic constitutional protections, the state and federal constitutions circumscribe the actions of the Legislature ensuring that the representatives of the people do not become superior to the people themselves. See The Federalist Paper No. 78 (Alexander Hamilton)( There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves. ). FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 5 of 12 In recent years, this Court has reaffirmed the importance of private property rights and the constitutional protections sheltering those rights. Just this year, this Court discussed the critical importance of these rights: This Court has repeatedly, recently, and unanimously recognized that strong judicial protection for individual property rights is essential to freedom itself. Locke deemed the preservation of property rights [t]he great and chief end of government, a view we echoed almost 300 years later, calling it one of the most important purposes of government. Individual property rights are a foundational liberty, not a contingent privilege. They are, we affirm today, fundamental, natural, inherent, inalienable, [and] not derived from the legislature, and preexist[] even constitutions. Harris County Flood Control District v. Kerr, -- S.W.3d --, 2016 WL 3418246, *7 (Tex. June 17, 2016)(quoting Justice Willett)(internal citations omitted). See also Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192, 205 (Tex. 2012). The courts protection of these rights has strengthened in recent years, not waned. In 2003, the Texas Legislature was invited by certain interests to repeal Chapter 281 of the Texas Transportation Code, which established limits and procedural safeguards on the taking of private property for rural county roads. Citing the need for expedience, these interests sought passage of Chapter 258, which removed these protections in favor of a streamlined method, with limited notice and a shift of the burden on landowners. Various interests voiced significant concerns about the lack of constitutional protections in the statute and the risks posed to the private landowners. Those warnings have now proven prescient. 1 On its face, Chapter 258 seems innocuous. The language enables Texas counties to clarify their interests in certain private roads based on a history of public maintenance by including the roads in a county map and holding a public meeting on the proposed map. Prior legislation limited a county s ability to claim private land to: 1) purchase, 2) condemnation, 3) dedication, or 4) a court s final judgment of adverse possession. 281.002. Those limits were eliminated with Chapter 258. Chapter 258 allows a Texas county to claim an interest in a private 1 The Committee Hearing on HB 1117 (Chapter 258) at http://tlchouse.granicus.com/ mediaplayer.php?view_id-22&clip_id=1861. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 6 of 12 road that it alleges it has continuously maintained by including the road in a county road map. 2 No individual notice is required to be sent to the landowner whose private property is being claimed by the county as a public road; rather, only general notices through publication and as part of ad valorem tax statements are required. See 258.002. The county is merely required to hold a public meeting that it notices in a public newspaper over four weeks. Id. After the public meeting, the county road map may be adopted and it becomes conclusive evidence of the public s right to access to the road and the county s authority to spend money to maintain the road. See 258.002-258.003. Provided landowners receive notice, they are given three limited opportunities to contest the taking of their property. First, they may attend the public meeting and protest the inclusion of the road in the map. 258.002(b). Second, a landowner may file a contest with the county judge, which will be heard by a jury of view of five individuals appointed by the commissioners court (the same entity who proposed the county road map initially). Id. A third opportunity for protest provides that a landowner may file a lawsuit in district court to contest the inclusion of his property in the county road map but this must be done within two years from the date the map is proposed. 258.004. The burden of proof rests with the county in such a contest, but the county need only prove that it continuously maintained the road from before September 1981 to the time of the protest. 258.004(b), 258.002(h). The statutory change eliminated key constitutional protections. Chapter 258 permits counties to take property without compensation and without proper due process considerations and it should be found unconstitutional. See Terrell v. Middleton, 187 S.W. 367, 370 (Tex.Civ.App. San Antonio 1916, writ denied) (reasoning If an act of the Legislature is not sanctioned by the Constitution, no legislative approval can make it valid, or render it immune from attack in the courts of the country ). Prior to Chapter 258, counties had to utilize precise methods subject to procedural safeguards protective of landowners and private property rights. Chapter 258 eliminated those safeguards in the name of expediency and cost savings for the counties, pegging all due process on the hopes of a generalized notice and a shallow and deeply circumscribed ability to challenge the counties actions. If 2 Although Chapter 258 only provides a window of time (through 2011) for counties to clarify their roads, the potential impact and precedent of the statute and decisions arising from it is lasting and significant. Further, it appears that genuine questions exist in this proceeding over whether Colorado County impermissibly extended the use of Chapter 258 beyond the legislative deadline. See Petition for Review, pp. 13-16. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 7 of 12 allowed to stand, Chapter 258 and the Court of Appeals opinion create a significant and dangerous precedent for Texas landowners, opening the door to eroding these important constitutional protections of private land ownership in Texas. The Amici Curiae respectfully ask this Court to grant the Petition for Review. A. Chapter 258 is Unconstitutional Because It Allows a Taking of Property Without Compensation Chapter 258 allows a taking of property without compensation. Contrary to other Texas statutes and recent caselaw that tighten requirements on entities seeking private property through eminent domain, Chapter 258 circumvents the constitutional requirement that no private property may be taken without adequate compensation. U.S. CONST., amend. V; TEX. CONST. art. 1, 17. As this Court stated in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC when it reaffirmed the importance of protecting private property rights in Texas, [n]othing in Texas law leaves landowners so vulnerable to unconstitutional private takings. 363 S.W.3d at 194. Chief among these protections is the guarantee of just compensation before government claims an interest in private property. This Court reaffirmed earlier this year the protections for private land ownership concerning government takings in Houston Flood Control District v. Kerr. Although factually distinguishable from the case now before the Court, the reasoning throughout Kerr is instructive to demonstrate that Colorado County s action in claiming a public interest in the Matthews property is a taking. In Kerr, the Court pointed to four elements of a taking: intent, affirmative acts, specificity, and public use. --S.W.3d--, 2016 WL 3418246, *4. In the Matthews case, all four of these elements are present. First, Colorado County intended to include the portion of County Road 79 belonging to the Matthews in the county road map. It intended to claim a public interest in that private piece of land. Second, Colorado County took affirmative acts to take the property. It included the Matthews road in the county road map and later adopted this road map and defended this claimed public interest against Mr. Matthews multiple protests. Third, Colorado County specifically chose this portion of road for the county road map. It knew that claiming that portion of County Road 79 as public would deny Mr. Matthews any private claim to the land. Finally, the County took the road to enable public access to the road and to facilitate the use of public funds to maintain the road. Colorado County s action under Chapter 258 is without question a taking. See Kerr, --S.W.3d--, 2016 WL 3418246, *4-7. As FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 8 of 12 such, compensation must be paid. See U.S. CONST., amend. V; TEX. CONST. art. 1, 17. Texas has multiple statutes concerning eminent domain authority, even devoting an entire chapter of the Texas Property Code to setting forth specific mandatory requirements for the condemnation process. Although Chapter 258 appears to create a process to streamline county road maps, the effect of the law is counter to these other statutes concerning eminent domain and certain counties interests in private roads. See Tex. Gov t Code Ch., 2007 and 2206 (providing limitations on eminent domain authority); Tex. Transp. Code, Ch. 281 (clarifying process for certain counties to obtain interest in private roads); see also Acts 2011, 82nd Leg., R.S., Ch. 81 (S.B. 18), eff. Sept. 1, 2011 (tightening restrictions on eminent domain authority, creating new protections for landowner rights). In each of these statutes, the right to adequate compensation is protected and the burden of the process rests with the county or governmental entity seeking to acquire the interest in the property. Further and most importantly, Chapter 21 of the Texas Property Code contains very specific procedural and due process protections in favor of the landowner. Notably, in the eminent domain context a governmental entity must compensate a landowner even if the landowner fails to respond to the suit or is delayed in responding. See Tex. Prop. Code 21.042. Chapter 258 departs from this long tradition of protecting private landowners and instead places the power with the County at the expense of private landowners. Counties are not required to provide direct, individual notice to a landowner that his property is being taken. Landowners are not notified of the effect of allowing public maintenance of their private roads or given the opportunity to decline such maintenance to avoid losing their property without compensation. Counties do not have to pay anything to claim a public interest in private land no requirement to pay compensation, no requirement to negotiate with a landowner, no requirement to file a condemnation action. The county merely publishes a map, gives a general notice thereof, and the burden rests with the landowner to file suit to protect his interest. Chapter 258 and the Court of Appeals decision should not stand. The Court should grant the Petition for Review to consider the constitutionality of this statute. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 9 of 12 B. Chapter 258 is Unconstitutional Because It Violates Certain Due Process Requirements Chapter 258 runs afoul of basic due process requirements including adequate notice and a fair hearing. Further, Chapter 258 shifts the burden that traditionally rests with a condemnor to the landowner by requiring that a landowner file a protest and later a lawsuit in district court to protect his interest rather than requiring the county to file a condemnation action and pay a just and adequate compensation for the property. And unlike traditional takings by eminent domain, the county escapes any constitutional obligation to provide compensation if the landowner fails to observe notice or file suit within a defined period. Moreover, the burden of proof defined by Chapter 258 is ambiguous and minimal, raising additional constitutional concerns. 1.! Chapter 258 Fails to Provide for Adequate Notice Chapter 258 s notice requirements are not sufficient to notify landowners of a possible taking of their property by the county. See Bastrop Cty. v. Samples, 286 S.W.3d 102, 105 (Tex. App. Austin 2009, no pet.) (reasoning that Chapter 258 of the transportation code, on the other hand, which implicates constitutionally protected property interests, does not ensure that an individual who stands to be adversely affected by an assertion of a public interest in a road will receive notice commensurate with the property interest at stake before the time to register a protest expires ). Chapter 258 merely requires that a county propose a county road map identifying the public roads, publish a notice of public meeting in a local newspaper over four weeks and provide a list of the proposed roads in the ad valorem tax statements prior to the proposal of the map. See 258.002, 258.005. The requirement is only for general notice. There is no requirement that the county provide direct and personal notice to the landowner whose land is being claimed by the county. The burden once again is shifted to the landowner to comb through the general notices and discover that their land is impacted by the proposed map. The landowner must divine that his property interest is at risk from a handful of general notices that the county has proposed a new map. This risk is underscored by the reality that most agricultural and wildlife acreage in Texas is remote and does not serve as the residence of the owner. In virtually any other context involving the taking of private property, the condemning authority is required to deal with the landowner directly following FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 10 of 12 specific requirements and timelines. Chapter 281 of the Texas Transportation Code (concerning certain counties acquiring an interest in private roads) requires written notice to be given to the landowner in person or by registered mail. Tex. Transp. Code 281.006. Chapter 21 of the Texas Property Code requires notice to and negotiation with the landowner. Tex. Prop. Code 21.0113, 21.016. Chapter 258 s inadequate notice provisions are wholly inadequate and place landowners at a significant disadvantage to the landowners who are traditionally condemned. There is no justifiable basis to avoid these protections applicable to other takings and Chapter 258 presents important issues of constitutional protections. 2.! Chapter 258 Improperly Shifts the Burden and Expense to Landowners with No Hope of Reimbursement or Compensation Chapter 258 also shifts the burden and expense of litigation to the landowner. Even within the statutorily defined options for protest, the process is rife with due process deficiencies. Chapter 258 provides an opportunity for a landowner to protest a county s claim to private property but the protest will be considered and decided by a jury of view. 258.002(b). This jury of view consists of five individuals appointed by the commissioners court the very individuals who approved the county map claiming an interest in the road at issue in the protest. Id. In other words, the landowner s opponent and de facto condemnor selects the jury. A landowner who is not happy with the outcome before the jury of view may file a lawsuit in district court to challenge the county s claim to the property within two years of the map s publication. 258.004. Although the statute places the burden of proof on the county at trial, the landowner must nonetheless go to the expense of filing a lawsuit to defend his property. See id. The landowner is charged with making the investment to protect his property without hope for reimbursement since the statute provides no means nor right to compensation of any kind for the county s claim to his property. No recouping of expenses, no compensation for the property, no nothing. And yet, the burden to the county remains minimal; a county need only adopt a map claiming the road, produce records showing maintenance of the road over a proscribed time period, and the property belongs to the public. 3 Further, if Chapter 258 is treated as a statute of repose as urged by Colorado County, there are 3 In the case of Colorado County, however, it appears the county did not even have to put forth records of maintenance of County Road 79. See Petition for Review, p. 7, 3. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 11 of 12 genuine risks that a county may designate a road generally and simply wait two years to preclude any claims. 4 The process is heavily skewed in favor of the counties. V. Conclusion Why should this Court consider this case if the statute is not effective past 2011? The answer is precedent. The precedential impact of this case and this statute is significant. See Pearson v. Callahan, 555 U.S. 223, 233 (2009) ( [c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights ); Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000) ( [s]tare decisis has its greatest force in statutory construction cases ). In an era where private entities are constantly vying for ways to gain eminent domain authority and to take private property for private projects, any erosion of protections for Texas landowners is dangerous. Landowners and citizens have become increasingly concerned about the reach of eminent domain. The Texas Legislature has increased protections in favor of landowners. This Court has applied consistent scrutiny to statutes enabling the taking of private property. But Chapter 258 is an outlier. Chapter 258 must not be allowed to stand given its constitutional deficiencies. Allowing takings of private property without just compensation departs from the long-running protection of private property in Texas. Every governmental taking must comply with the protections of Article 1, Section 17 of the Texas Constitution. Efficiency of governmental functions cannot replace constitutional protections. The Amici Curiae respectfully ask this Court to continue this long tradition and grant the Petition for Review. 4 At the time Chapter 258 was passed, advocates assured the Legislature and opponents that the two-year period was not a statute of repose or absolute deadline for claims. FortWorth Austin

Mr.BlakeA.Hawthorne November4,2016 Page 12 of 12 Respectfully submitted, /s/ James D. Bradbury James D. Bradbury State Bar No. 02814500 Courtney Cox Smith State Bar No. 24045711 James D. Bradbury, PLLC 4807 Spicewood Springs Road Building 2, Suite 400 Austin, Texas 78759 Telephone: 512-953-5801 jim@bradburycounsel.com ccox@bradburycounsel.com Attorneys for Amici Curiae CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i) This is to certify that the foregoing Letter Brief of Amici Curiae consists of 4,156 words, in accordance with Texas Rule of Appellate Procedure 9.4(i)(2). /s/ James D. Bradbury James D. Bradbury CERTIFICATE OF SERVICE On this 4th day of November, 2016, a true and correct copy of the forgoing document was served on all parties in accordance with the Texas Rules of Appellate Procedure. /s/ James D. Bradbury James D. Bradbury FortWorth Austin