The ag law news continues to keep us busy during the month of September!

Corn harvest / Photo by Hannah Shedrow on Unsplash 

* State of Texas takes action on data center projects.  Over the past couple of weeks, there have been a couple of major developments regarding the State of Texas and data centers.

• In August, Governor Abbott ordered the Electric Reliability Council of Texas (ERCOT) and the Public Utility Commission (PUC) to audit all data centers undergoing ERCOT’s interconnection process to ensure that the data center development does not jeopardize the reliability of Texas’ electric grid or put natural resources at risk.
• On September 14, Governor Abbott ordered the Texas Water Development Board (TWDB) to compel data centers to comply with water-use reporting requirements, to impose penalties for failure to do so, and to partner with ERCOT to obtain additional water-use information.
• Last week, Governor Abbott ordered the Texas Commission on Environmental Quality (TCEQ) to halt all data center permits until ERCOT completes its ongoing audit of data centers.
• This week, Attorney General, Ken Paxton, said he was launching an investigation into data centers that have failed to respond to the TWDV’s water use survey.

  Data centers are under initial investigation in counties across Texas, including Harris, Montgomery, Travis, Dallas, Tarrant, Smith, Bexar, Tom Green, Potter, Randall, Lubbock, Midland, Ector, Wichita, Victoria, Brazos, Nueces, and El Paso.  

*WOTUS strikes…again.  The Environmental Protection Agency and US Army Corps of Engineers recently announced a supplemental proposed rule to define “waters of the United States” pursuant to the Clean Water Act.   The agencies say that supplemental rule will further their “commitment to radical transparency” to develop a “durable, final definition of WOTUS that adheres to the Supreme Court’s decision in Sackett v. EPA, cuts bureaucratic red tape, and protects water quality while recognizing that States and Tribes know their water resources best.”  Specifically, the rule will seek comment on definitions for “relatively permanent” waters and “continuous surface connection.” [Read FAQ document here.]

*Senate Ag Committee votes to advance Farm Bill.  The Senate Ag Committee voted 12-11 to advance the Senate version of the Farm Bill out of committee.  The bill will now make its way to a vote of the full Senate.  If passed, it will be reconciled with the Farm Bill language previously passed by the US House of Representatives.

*President signs executive order regarding livestock producers.  On September 4, President Trump signed Executive Orders 14424 and 14425 directing the USDA to strengthen its enforcement of the Packers and Stockyards Act, to expand interstate market access for meat producers, and to support small and regional meat processors.  [Read Orders here and here.]  To read a great article summarizing these actions, click here.

* FinCEN permanently ends beneficial ownership reporting requirements for US persons and businesses; will delete previously provided data.  This marks the end for one of the more controversial federal rules we have written about over the past few years.  The U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) will issue a rule permanently removing the Corporate Transparency Act requirement that U.S. companies and U.S. individuals have to report beneficial ownership information.  The final rule will be effective upon publication in the Federal Register. If someone already reported their information, FinCEN has stated that it will delete previously reported information from United States citizens.  [Read press release here.]

*Lawsuits challenge amendments to the Endangered Species Act.  We have previously mentioned major changes to the Endangered Species Act (ESA) by the Trump administration.  Now, two of these changes are being challenged in federal court.  A number of states filed suits in the United States District Court for the Northern District of California challenging the recission of the definition of “take” under the ESA and the decision to eliminate a rule that has been used in the past to automatically extend full ESA protections to species categorized as “threatened.”  [See Complaints here and here.]

*Article on options for distressed agricultural borrowers.  The National Agricultural Law Center published an article discussing options for distressed agricultural borrowers.

*New Mexico adds a state-inspected meat program.  New Mexico has joined the list of states with approved state meat and poultry inspection program.  Meat inspected under this program will be allowed to be sold intrastate–within New Mexico–only. [Read press release here.]

*Nebraska ranchers file lawsuit for fire damage.  A Nebraska ranch family has filed suit against the Nebraska Game and Parks Commission and a neighboring rancher after a prescribed burn escaped containment killing 46 cows, burning over 3,500 acres, and causing over $270,000 in damages.  The State of Nebraska has filed counterclaims against the neighboring rancher, claiming he served as the burn boss on the day of the fire, and that he took responsibility to decide whether it was safe to burn. [Read article here.]

*Article on farm succession conversations.  Farm Progress recently published an article on farm and ranch estate planning.  They focused on the importance of getting the conversation going between generations.  [Read article here.]

* Tri-State Fair report.  I know (and appreciate!) many of you follow along with my kids and their 4-H project journey.  This week, we are busy at the Tri-State Fair in Amarillo.  My son was crowned the Grand Champion Junior Public Speaker earlier this week.  Both kids won breed champion and reserve breed champion honors in the sheep show last weekend.  Today, we will continue the fun in the livestock judging contest, and they will show steers tomorrow.

Upcoming Programs

October has us hitting the ground running! On October 1, I will be in Plainview for a Texas Farm Bureau Young Farmers event.  Then, I will be headed to the Hill Country for the Bennett Trust Women’s Land Stewardship Conference in Fredericksburg October 5-6.  On October 14, apparently everyone needed a guest lecturer, as I’ll be teaching water law at West Virginia University School of Law, Texas laws for cattle producers at Texas A&M University, and Key Laws for Texas Landowners at Ranch Management University in College Station.  To see my complete schedule, click here.

The post September Monthly Round Up appeared first on Texas Agriculture Law.

The Eastland Court of Appeals recently ruled in Surrento v. Cactus Growers, Inc., a vehicle-versus-cow case involving a number of defendants.  This case illustrates a number of important considerations when it comes to Texas fence law.

Cow walking on paved roadway / Photo by Karin Kim on Unsplash

Background

Brianna Surrento was killed when her vehicle hit a cow on the highway near the Doss Ranch.

The Doss Ranch is owned by the Doss Foundation.  At the time of the accident, the ranch was leased to Jackie Warren.  Warren had entered into a grazing lease agreement with Jeffrey Carlisle, who kept about 250 head of cattle on the land pursuant to an agreement with Cactus Growers, who owned the cattle herd.

Relevant here are two pastures, the West and East Pastures, which are divided by County Road 135.  South of the two pastures is State  Highway 180.  Jeffrey Carlisle testified that cattle were kept only in the West Pasture.

Between 4:00 and 6:00 pm on the day of the accident, the Gaines County Sheriff’s Office was dispatched to a location near the Doss ranch for a cow outside the fence.  She had a green ear tag.  The Sergeant on scene called Jeffrey Carlisle to ask about the cow.  Jeffrey said his cattle had yellow and blue tags but admitted there may be a few with green tags.  The Sergeant herded the cow to a gate leading to the East pasture, let her in, and secured the gate.  After receiving the call from the Sheriff’s deputy, Jeffrey Carlisle sent one of his ranch hands to investigate the property, fences, and cattle.  The hand said the fences showed no breaches, gates were closed, and he did not see cattle outside of the fenced area.

At 8:19 pm, dispatch received another call that two black cows were spotted on Highway 180 just west of County Road 135.  The dispatcher called the ranch hand to let him know.  Shortly after that, the accident that killed Brianna occurred.

Jeffrey Carlisle said he could not identify the cow involved in the accident.  However, a Texas Department of Public Safety Trooper testified that while at the scene, Carlisle told her the cow was owned by Cactus Feeders and was part of the herd he was taking care of for Cactus.

Litigation

Brianna’s father, Michael, brought suit against Cactus Growers, the Doss Foundation, Jeffrey Carlisle, and Jackie Warren claiming gross negligence and statutory liability under the Texas Agriculture Code Section 143.102.

The Defendants moved for summary judgment, and the trial court granted those motions and dismissed the case.

Brianna’s father appealed.

Eastland Court of Appeals Opinion

The Eastland Court of Appeals affirmed.  [Read order here.]

The court addressed a number of issues on appeal.

Procedural Issues

Michael raised several procedural issues.

Expert report exclusion:  The court excluded two expert reports that Michael offered as summary judgment evidence, finding that he failed to properly disclose these experts, and the reports were not provided in discovery. Michael provided the expert names and reports after the deadline and offered no effort to demonstrate good cause for the late designation.   The appellate court held the trial court did not err in excluding these reports.

Excluded exhibits: The court also excluded a number of additional exhibits Michael sought to offer such as depositions, the lease agreement between the Doss Foundation and Warren, and a DPS crash investigation report.  The court took each of these exhibits into consideration during their review of the appeal, and held that even if they were properly admitted, they would not have changed the result of the trial court’s rulings, so any error in the court’s striking them was harmless.

Adequate discovery time: Michael argued that the trial court granted summary judgment before allowing adequate time for discovery on whether Cactus “knowingly permitted” the cow to run at large.  Michael, however, did not file a verified motion for continuance or an affidavit seeking more time for discovery on the issue of “knowingly permitted” as required by Texas law to extend discovery time.  Additionally, the appellate court found that Michael did not exercise due diligence in obtaining the requested discovery. He delayed the deposition of Cactus Growers for 17 months after the filing of the lawsuit and only sought to take it 15 days before the discovery deadline.   The trial court did not abuse its discretion in denying Michael’s motion for further discovery.

Merits

The court turned next to Michael’s merits arguments.

Texas fence law:  The court set forth a detailed description of recent Texas case law regarding animals hit on a state highway. Pursuant to Texas Agriculture Code 143.102, a state and US highways are closed range, and a livestock owner may not “knowingly permit” animals from running at large. Texas courts have explained that it is not enough that a livestock owner should have known but does not actually know their livestock have been permitted to roam at large on the highway. Likewise, courts have held “the mere fact an animal escapes and makes its way onto a highway does not support a finding of culpability.” To satisfy the “knowingly permit” standard, there must be evidence that a livestock owner was reasonably certain a cow could escape and roam at large.  The most probative evidence is the actual knowledge of the livestock owner in the current situation.  Additional circumstantial evidence can include the condition of the fences and the history of the owner’s animals escaping. This requires more than a “temporary escape,” but instead must show the animal was allowed as a matter of course to graze and move freely in an unconfined area.

Jeffrey Carlisle:  Carlisle filed a summary judgment motion claiming there was no evidence that he permitted a cow to roam at large on Highway 180. Michael argued a combination of inadequate fencing and prior escapes was sufficient evidence to create an issue of fact on this question.  The appellate court disagreed, finding that he failed to offer sufficient evidence that the West Pasture fences (where the cattle were kept) were inadequate, focusing instead only on the East Pasture fencing. Additionally, the fencing evidence was offered by the expert that the court property excluded from trial.  Thus, it could not be considered. Additionally, the court found insufficient evidence to show that there were cattle allowed to be in the East Pasture. When there was the earlier report of cattle out, Carlisle sent his ranch hand to inspect the fences, gates, and cows.  He did not see any breach in the fencing. The court did not err in holding there was no evidence to show that Carlisle knowingly permitted the cow to run at large.

Cactus Growers:  Michael claimed that Cactus was liable as the owner of the cow.  Cactus argued that even if it was the owner, it did not have control of the cow because the responsibility for care and control was delegated to Carlisle. Importantly, the court refused to answer the question of whether an owner who delegates control of an animal to another can remain liable under Section 143.102, because regardless, there was no evidence that Cactus Growers knowingly permitted the cow to run at large. For the same reason that Michael’s circumstantial evidence regarding knowledge failed against Carlisle, it fails against Cactus Growers. There was simply no evidence of inadequate fencing or subsequent patterns of escapes. In light of this, summary judgment was properly granted.

Warren and the Doss Foundation: Both Warren and the Doss Foundation moved for summary judgement arguing there was no evidence that they had any ownership or responsibility for the cow and that there was no evidence they knowingly permitted the cow to run at large. Looking at the statutory language, the court notes the distinction of those who may be liable under the statute–those who own or have responsibility for the livestock animal–versus those who own the property. The applicability of Section 143.102 is to the person who owns or is responsible for the animals, not the land.  Further, there was nothing in the lease agreements between the parties that gave Warren or the Doss Foundation control over the cattle.  A clause stating that Warren would prorate the cost of fence repairs against the lease price did not create the necessary type of responsibility for the cattle.   Regardless, the court noted, there was no evidence that Warren or the Doss Foundation acted knowingly to permit the cow to run at large.  Summary judgment was proper against these defendants.

Gross Negligence:  Because the court found no evidence to support Michael’s claims under Section 143.102, they needed not reach the question of gross negligence.

Amended Petitions

The court rejected an argument that the trial court improperly struck Michaels’ fifth amended petition.  The appellate court held that this was harmless error because the summary judgement motion was sufficiently broad to respond to any differences between the fourth and fifth amended complaints.

Conclusion

The trial court ruling granting summary judgment in favor of the defendants was affirmed.  (Do note that the deadline for filing a Petition for Review at the Texas Supreme Court has not yet passed.)

Key Takeaways

This case highlights many key points regarding fence law.

• For collisions on State and US highways, it is the “knowingly  permit” standard that applies.  This standard required more than just that the livestock owner should have known–but evidence that they were “reasonably certain” that the livestock would be out.  Actual knowledge of the current situation is the best evidence, though evidence of poor fence quality or past escapes is also relevant.
• Any time a livestock owner receives information that they have livestock out, they should act as quickly as possible to contain the animals to avoid potential liability.
• In lease situations, the court has drawn a distinction between the person who owns and is responsible for the livestock (who may be held liable under the fence law statute) and the person who owns and is responsible for the land (who generally is not liable.)  This can be changed, however, if there is a lease provision imposing such responsibility on the landowner.
• It is interesting to note that the court did not answer the question of whether a person caring for animals owned by another person could be liable for livestock on the roadway.  The safe approach for anyone caring for livestock would be to behave as though there could be liability and to act accordingly.

The post Texas Appellate Court Rules on Vehicle-Versus-Cow Collision appeared first on Texas Agriculture Law.

Understanding current cash rental rates is important for both landowners and agricultural producers. One of the most widely used sources of rental rate information is the annual USDA National Agricultural Statistics Service (NASS) cash rent survey, which compiles data from respondents across the country. The rates reported in this survey reflect average cash rents and are shown on a per-acre, per-year basis. 

Thomas Ranch on August 18, 2026 in Anderson, Texas. (Anna Haley/Texas A&M Agrilife)

To view the database with the data for each state, click here.  To view the database with data for each county in the US, click here.

Pastureland

• The statewide average for pastureland was $8.60/acre, which is up $1.10 from last year.

• The highest pastureland rental rates were reported in Wharton County at $30.50/acre. Falls County reported $24.50/acre, and Titus County reported $24.00/acre.

• Conversely, the lowest reported pastureland lease average was in the Southern High Plains with Midland County at $1.10, and Trans-Pecos District with Terrell at $1.70/acre.

Irrigated Cropland

• The Texas average lease rate for irrigated cropland was $125/acre, up $11 from 2025.

• For 2026, the highest average reported lease rates were in Hartley County ($205/acre) and Gaines County ($190/acre).

• The lowest reported rates for irrigated cropland came from Childress County at $26.

Non-Irrigated Cropland

• Statewide non-irrigated cropland lease rates averaged $35.50/acre, which is a $1/acre decrease from the prior year.

• The highest reported rental for non-irrigated cropland was found in San Patricio County at $83.50/acre and in Nueces County at $70/acre.

• On the other hand, the lowest rates came from Kendall County ($9.50), and Llano County ($9.90).

District Summary

Dr. Greg Kaase pulled together the following table showing the average cash lease rates for 2025 and 2026 for each of Texas’ regions.

County-level estimates are accessible online at the following web address:
https://quickstats.nass.usda.gov/results/E0F5EB36-3313-3D7B-9E7F-E56A3365CF2B#9A9F55D7-E267-38C6-ACB9-DF106291B5A7

More Information

For those looking to learn more about agricultural leases, we offer a number of helpful resources. Chapter 11 of the Owning Your Piece of Texas Handbook provides an overview of key agricultural leasing concepts, while the Ranchers Agricultural Leasing Handbook takes a deeper look at issues commonly faced by landowners and tenants. Both publications offer practical guidance on topics ranging from lease terms and liability concerns to termination and dispute resolution.

In addition, our podcast library includes episodes focused on grazing, farming, and hunting leases, featuring discussions on common legal issues, best practices, and real-world considerations for lease agreements.

For those interested in a more hands-on learning experience, our Ranchers Leasing Workshop covers important topics related to grazing and hunting leases, including drafting provisions, liability protection, and risk management. The workshop is offered both in person and online. Our next live course will be held in Bryan, Texas, on December 8, and the online version is available on demand for participants who prefer to learn at their own pace.

The post 2026 USDA NASS Cash Rent Rates Published  appeared first on Texas Agriculture Law.

John Deere recently settled a lawsuit brought by farmers who argued that John Deere improperly withheld certain repair tools needed to fix their large agricultural equipment like tractors and combines.  This “right to repair” settlement has important implications for farmers around the country who own Deere equipment and may provide compensation for certain repair costs incurred over the last several years.

John Deere Tractor / Photo by Chris Robert on Unsplash

Background

Farmers sued John Deere in Illinois federal court claiming the company restricted access to the software and digital tools required to diagnose and repair newer John Deere equipment.  Without those tools, farmers were forced to rely exclusively on Deere-authorized dealers and repair shops, often resulting in higher repair costs and delays.

Settlement Agreement

Although Deere did not admit wrongdoing, the company agreed to:

• Pay $99 million into a settlement fund for class members who used Deere dealer repair services between January 10, 2018, and May 18, 2026.
• Provide repair tools and digital diagnostic information to farmers and independent repair shops for at least the next 10 years.

Separately, Deere also recently settled a related case with the Federal Trade Commission (FTC) that included the same requirement regarding providing tools and diagnostic information for the next 10 years.  This will solve one of the central concerns raised by farmers in the right to repair debate: access to the tools and information necessary to diagnose and repair their own equipment.  The FTC will oversee Deere’s compliance with the tool and information-access requirements over the next decade.

Next Steps and Decisions for Farmers

Farmers who fall within the definition of a class member have several important decisions to make–and critical deadlines approaching before the end of the year.

Are you a member of the class?

A farmer is included in the class if they meet each of the following requirements:

• Purchased repair services for John Deere large agricultural equipment;
• Obtained those services from John Deere or an authorized dealer; and
• Received the services in the United States between January 10, 2018, and May 18, 2026.

The following people are not part of the class:

• Deere or any of its parents, subsidiaries, or affiliates
• Deere officers, directors, employees and/or their immediate family members
• Any judicial officer presiding over the lawsuit, their immediate family members and their staff
• Governmental entities.

What are options for class members?

Class members must choose one of four options:

1. Submit a claim form.  Class members can decide to complete a claim form to remain part of the class and to qualify for payment from the settlement funds.  The claim form is being mailed to all class members for whom Deere has the appropriate information and also may be found online.  The form asks for basic contact information, information about all equipment and the qualifying repairs (this will be pre-filled based on John Deere records but may be supplemented to include additional repairs for which farmers have records), and warranty information, if any.  Payments will be based on the number of labor hours billed during the class time period. Critically, all claim forms must be submitted by December 31, 2026.
2. Opt out of the class.  Class members can decide to opt out of the class.  This essentially means that they do not want to be a part of the settlement.  They will give up their right to the settlement proceeds and will not be bound by the settlement terms.  Oftentimes, when people make this decision in the class action context, it is because they want to preserve their individual claims with an intent to individually sue.  Importantly, the opt out deadline is December 4, 2026.
3. Object to the settlement.  Class members may object to the settlement.  This allows an objector to tell the court that they disagree with the settlement terms.  Importantly, the objector remains a member of the class and may still receive payment.
4. Do nothing.  Class members could choose to do nothing.  People choosing this option will not receive any settlement funds and will forfeit their right to individually file suit against Deere for these claims in the future.

What happens next?

Notices are being mailed to all identifiable class members based on John Deere’s repair records.  Farmers who believe they qualify should watch their mailbox for the claim form.  Once the notice arrives, farmers can make one of the four choices listed above.

Those who do plan to submit a claim must do so no later than December 31, 2026.  Any farmer who does not receive a notice but believes they should be included as a class member can find additional information, including a claim form here.

This settlement is not final at this point.  The court will hold a fairness hearing scheduled on January 19, 2027.

More Information

For more information on this settlement and to see the claim form, click here.

We also have podcast episodes available on the Right to Repair and on class action litigation generally.

The post Deere Right to Repair Settlement Approved – What Does that Mean for You? appeared first on Texas Agriculture Law.

In July, the USDA released its annual Land Values Summary for 2026, providing a snapshot of how agricultural real estate values have changed across the country over the past year. View the full report here. 

The 2026 report continues to show strong growth in agricultural land values nationwide, with the value of farm real estate, cropland, and pastureland all increasing over the past year. The average U.S. farm real estate value, which includes the value of all land and buildings on farms, reached $4,500 per acre, an increase of 3.4% from 2025. The average value of cropland also increased, rising 3.3% to $6,020 per acre. Meanwhile, pastureland saw the largest increase, with the nationwide average value reaching $2,000 per acre, up 4.2% from last year. 

The report also looks at various regional measurements. 

Farm Real Estate Averages 

• Farm real estate average value is the highest in the Corn Belt region (IL, IN, IA, MO, OH) at $8,540/acre.  

• The highest state value is found in Rhode Island at $23,600/acre.  

• The lowest regional average was $1,710 for the Mountain region (AZ, CO, ID, MT, NV, NM, UT, WY).  

• The lowest state value is New Mexico at $735. By comparison, Texas and Oklahoma make up the Southern Plains region, which has an average of $3,000. 

Cropland Averages 

• For cropland values, Rhode Island reports the highest at $34,300/acre, while regionally the Pacific region shows the highest values at an average of $10,080/acre.  

• The Southern Plains region (OK, TX) reported the lowest cropland average value at $2,730/acre, a 3.4% increase from the prior year.  

• The state with the lowest cropland value is Montana at $1,350/acre. 

Pasture Averages 

• Pasture average value per acre was highest in Rhode Island at $17,500 and lowest in New Mexico at $650/acre.  

• Regionally, values were the highest in the Southeast (AL, FL, GA, SC) at $5,920 and the lowest in the Mountain region at $973.  

• For the Southern Plains region, pastureland value came in at an average of $2,380. 

Looking specifically at Texas: 

• Farm real estate average value: $3,100/acre, a 4.4% increase from 2025. 

• Cropland average value: $2,790/acre. This is up 3% from a year ago.  This includes an irrigated average of $3,500 and non-irrigated average of $2,700. 

• Pastureland average value: $2,420/acre, up 5.2%. 

To view the entire report and see complete information for each state and region,  

click here. 

For additional information regarding land values in Texas, be sure you check out the Texas Chapter of the American Society of Farm Managers and Rural Appraisers report titled Texas Rural Land Value Trends here. 

The post USDA Land Values 2026 Summary Published appeared first on Texas Agriculture Law.

As the summer draws to a close and students head back to school, the ag law developments continue around the country!

Photo by Erin Minuskin on Unsplash 

* Hearing date set for John Deere right to repair settlement; claims due December 31, 2026.  The $99 million settlement between John Deere and class members impacted by its right-to-repair practices has been set for a fairness hearing in January 2027.  Notifications will be sent to class members starting August 28, 2026.  Class members, who are expected to number over 200,000, include anyone who purchased repair services from John Deere or its authorized dealers between January 10, 2018 and May 18, 2006. [Read article here.]

*Key considerations for communities when data centers propose to come to town.  Yesterday, I listened to a webinar about data centers and rural America hosted by Agri-Pulse.  One of the speakers, Mike Turner, offered a great list of 15 considerations communities need to think about if data centers are looking to build nearby.  [Read list here.]  On a similar note, the Texas Tribune recently published an article discussing how many data centers keep their plans secret from local landowners.  [Read article here.]  Meanwhile, earlier this month, Governor Abbott instructed the Public Utilities Commission and the Electric Reliability Council of Texas to pause new data center approvals and grid interconnection until regulators complete a comprehensive audit of each proposed facility’s energy demand, water use, tax incentives, ownership structure, and community impacts. [Read article here.]

*California court dismisses Due Process claim challenging Proposition 12, allows Commerce Clause claim to go forward.  The U.S. District Court for the Central District of California the plaintiff’s Due Process claim in Triumph Foods, LLC v. Banta.  It did, however, allow the plaintiffs’ Commerce Clause challenge to go forward.  The Plaintiff’s Commerce Clause claim differs from that decided by the United States Supreme Court in National Pork Producers v. Ross in that it focuses on the significant burden of one provision–the slaughterhouse exception–imposed a significant burden on interstate commerce. [Read Opinion here.]

*Why “standard” agreements are rarely the best for land-based business owners.  Stephen Ringquist with Braun & Gresham recently wrote a great article about why land-based businesses should avoid “standard” or form agreements such as lease forms, easements, development contracts, or construction contracts.  He goes on to describe a number of issues with these types of agreements–including one that I think is particularly important–the “standard agreement” they give you was often written by their lawyer with their interests in mind! [Read article here.]

*Court upholds PFAS designation as a hazardous substance under CERCLA. The United States Court of Appeals for the D.C. Circuit recently upheld the EPA’s 2024 regulation that designated PFOS and PFOA as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  This designation matters because parties responsible for the release of more than one pound substances designated as hazardous under CERCLA must report the releases to authorities and may be required to fund cleanup of contaminated sites.  The court found that in passing this rule, the EPA acted within its statutory authority and made a “reasonable decision” in listing the substances as hazardous. [Read Opinion here.]

* Iowa Supreme Court holds that animal activities act bars $182 million injury claim.  The Iowa Supreme Court sided with horse owners in Shafer v. Santana, finding that the Iowa Domesticated Animal Activities Act was a viable defense and reversing a $182 million verdict for the plaintiffs who were injured in an accident involving a team of horses pulling an antique sickle mower.   As a result of the accident, the plaintiff was paralyzed from the waist down.  The Supreme Court held that operating a horse-drawn sickle mower is a “domesticated animal activity” of driving, even though at the time of the injury, the driver had exited the mower and the horses were standing still.  It also found there was not a question of fact as to whether the defendant acted recklessly.  [Read article here.]

* Nebraska ranchers file suit against neighbors and Nebraska Game & Parks Commission after controlled burn escaped, burned land and killed cows.   Plaintiffs have filed suit in  Nebraska against the State Game and Parks Commission and a neighboring landowner alleging $272,000 in damages caused by an escaped controlled burn.  The State has filed a counterclaim against the neighbor, upon whose land the burn was conducted, claiming that the landowner was the “burn boss” and accepted liability for the fire.  The State claims its employees wanted to shut down the burn, but the landowners objected to doing so.  [Read article here.]

* Multi-million pesticide drift lawsuit filed by cannabis producer against berry farming neighbor.  Joel Cape wrote about a case filed in New Hampshire that pitted a cannabis farm against a  neighboring landowner who sprayed pesticides on his berry crop.  The cannabis farm claimed that the pesticide drifted and caused $17 million in damage to their crop.  [Read article here.]

*California Court of Appeals rejects necessity defense in animal rights trespassing case.   Earlier this year, the California Court of Appeals rejected the defense of necessity, which was raised by animal rights activists and a defense to trespassing claims in People v. Hsiung. [Read Opinion here.] Specifically, the court found there was insufficient evidence that there was an emergency such that there was no choice for the defendant but to commit trespass to prevent imminent harm.  The facts of the case, instead, showed that this action was well-thought out, planned in advance, and organized before the trespass ever occurred.  This, the court ruled, was not necessity.

 *More than a Handshake Deal.  You know that I never advise to make any deals solely on a handshake.  My kids recently did just that…and the results turned out to be pretty adorable. [Read article here.]

Upcoming Presentations

Today, I’m headed to Oklahoma to speak at the 580 Beef Conference in Woodward.  I’ve got a couple of programs on the book for September, and then things really kick off for the fall with a full schedule for the last quarter of 2026.

To see my complete list of presentations, click here.

The post August Monthly Round Up appeared first on Texas Agriculture Law.

It has been a minute since we have done an Ag Law in the Field Podcast recap. For our new readers on the Texas Agriculture Law Blog, we also have a podcast called Ag Law in the Field. Once a month, we release a new episode featuring experts from across the industry to discuss agricultural law issues and topics affecting landowners and agricultural producers. 

https://aglaw.libsyn.com/

Here is a recap of our episodes from the past year or so. 

Episode #201: Hannes Zetzsche (Agrivoltaics)
In this episode, Hannes Zetzsche joins the podcast to discuss agrivoltaics and how solar energy and agriculture can coexist on the same land. The conversation explores innovative approaches to sustainable land use, renewable energy, and agricultural production. 

Episode #202: Jason Hill (PFAS Contamination and Agriculture)
Jason Hill joins the podcast to discuss PFAS contamination and its impact on agriculture. The episode covers what PFAS are, how they affect farmers and ranchers, and the legal and regulatory issues agricultural producers and rural landowners should understand. 

Episode #203: Cahil Murchison (Vineyard & Wine Law Overview)
Cahil Murchison joins the podcast for a discussion on the legal issues surrounding vineyards and wineries. The episode covers key legal considerations for vineyard and winery operations and offers practical guidance for those involved in the industry. 

Episode #204: Robert Frommer and Joshua Windham (Fourth Amendment Open Fields Doctrine)
Robert Frommer and Joshua Windham of the Institute for Justice discuss the Open Fields Doctrine and its impact on private property rights. The conversation explains how the doctrine allows government officials to enter certain private rural land without a warrant and what that means for landowners. 

Episode #205: Jim Bradbury (Texas Supreme Court Decision Updates in Myers-Woodward & Cactus Water Services Cases)
Jim Bradbury returns to the podcast to discuss two significant Texas Supreme Court decisions: Myers-Woodward and Cactus Water Services. The episode examines the implications of these cases for landowners, water rights, and regulatory authorities in Texas. 

Episode #206: Dr. Justin Benavidez (What the Big Beautiful Bill Means for Agriculture)
Dr. Justin Benavidez, Chief Economist for the House Committee on Agriculture, joins the podcast to discuss the “Big Beautiful Bill” and its potential impacts on agriculture, agricultural policy, and rural communities. 

Episode #207: J Pete Laney (2025 Texas Legislature Impact on Agriculture)
J Pete Laney returns to the podcast to recap the 2025 Texas Legislative Session and discuss several key bills affecting Texas agriculture. 

Note: This episode was recorded on August 25, 2025. Because the Texas Legislature was in special session, subsequent legislative action may have affected some of the topics discussed, including HB 27 related to groundwater in the Trinity Valley Groundwater Conservation District. 

Episode #208: Audra Rod Smith (Due Diligence in Land Transactions)
Audra Rod Smith joins the podcast to discuss the importance of due diligence in land transactions. The episode covers practical considerations for buyers and sellers and highlights key legal issues to evaluate before closing a transaction. 

Episode #209: Lynn Sherman and Jim Bradbury (Texas Groundwater Law Update)
Jim Bradbury and Lynn Sherman discuss recent developments in Texas groundwater law, including court decisions, groundwater conservation districts, and legal issues affecting landowners, agricultural producers, and rural communities. 

Episode #210: Garrett Couts (Rights of First Refusal and Options)
Garrett Couts returns to the podcast to explain the rights of first refusal and option agreements in agricultural land transactions. The discussion covers how these legal tools work and important considerations for buyers, sellers, and landowners. 

Episode #211: Misty Wilson Borkowski (Immigration Enforcement on Farms, Ranches, and Agribusinesses)
Misty Wilson Borkowski joins the podcast to discuss how farms, ranches, and agribusinesses can prepare for immigration enforcement. The conversation addresses legal considerations and practical steps agricultural employers should understand. 

Episode #212: Paul Goeringer (2025 Ag Law Year in Review)
Paul Goeringer joins the podcast for the annual Ag Law Year in Review. The episode highlights the top ten agricultural law issues from 2025 and discusses their significance for the agricultural industry. 

Episode #213: Chris Nichols (Data Centers)
Chris Nichols discusses the legal issues surrounding data centers on rural land. The episode explores common questions from landowners, legal considerations in negotiating these projects, and what the future may hold for data center development. 

Episode #214: Chip English (Ag Law Legends)
Chip English shares the story of his career as a dairy industry attorney, discusses his path into agricultural law, and offers advice for younger attorneys entering the profession. 

Episode #215: Brigit Rollins (Dicamba Update)
Brigit Rollins, Staff Attorney at the National Agricultural Law Center, returns to provide an update on dicamba. The episode reviews the history of dicamba registrations and litigation, discusses the EPA’s approval of three over-the-top dicamba products for cotton and soybeans, explains the new label restrictions, and covers the litigation challenging those registrations. 

Episode #216: Ross Pifer (Right to Repair)
Ross Pifer of Penn State Dickinson Law joins the podcast to discuss the right-to-repair movement and its implications for agriculture. The conversation explores why the issue is controversial, its significance for agricultural producers, and the John Deere settlement. 

Episode #217: Ty Koonce (Mental Health Awareness – Under the Hat)
Ty Koonce discusses the launch of Under the Hat, a nonprofit organization focused on mental health in agriculture. He shares his experiences working in agricultural lending, tells the story of losing his father to suicide, and discusses efforts to improve mental health resources in rural communities. 

Episode #218: Luke Ellis (Transmission Lines & Eminent Domain)
Luke Ellis joins the podcast to discuss transmission line projects in Texas. The episode covers the Public Utility Commission routing process, eminent domain, and the legal issues landowners should understand when these projects affect their property. 

Episode #219: Jennie Zwagerman (Monsanto v. Durnell Decision)
It is not that common to have an agricultural law case at the United States Supreme Court, but this term, Monsanto v. Durnell was argued, and in June, the Justices issued their decision on the important questions of whether FIFRA’s labeling requirements preempts state law failure-to-warn claims.  Jennie Zwagerman joined me to talk through the case, the Opinion, and what this means going forward. 

Episode #220: Mallory Lindsay (Texas Hunting Laws for Landowners & Hunters)
Mallory Lindsay, Texas Game Warden, joins the podcast to discuss Texas hunting laws and the legal considerations landowners and hunters should understand. The episode covers hunting regulations, landowner responsibilities, and important information for navigating hunting activities on Texas properties. 

The post Ag Law in the Field Podcast: Episodes 201-220  appeared first on Texas Agriculture Law.

How does Texas law treat a surviving spouse with regard to the homestead?  The Corpus Christi Court of Appeals addressed this issue in Murray v. Robinson.

Rural House surrounded by fields and trees / Photo by Reed Geiger on Unsplash

Background

Christopher Murray and his wife, Florentina, owned 78 acres of land in Travis County, which they designated as their homestead.  Florentina died intestate (without a will) in 1997.  Christopher continued to live on the property and claimed it as his homestead.  The next year, Florentina’s only child from a prior marriage, Veronica Robinson, filed an affidavit of heirship asserting an interest in the land pursuant to Texas’ laws on intestate succession.  The parties agreed that, through the intestate succession laws, Veronica inherited a 50% interest in the property.

A year after that, Christopher sued Veronica for contribution and reimbursement, foreclosure of equitable lien, and declaratory judgment.  He claimed that, as a joint owner, Veronica was responsible for 50% of the taxes, insurance, and repairs for the property that Christopher paid for.  He also claimed she was responsible for 50% of the principal and interest paid for a mortgage he took out on the property after Florentina’s death. Additionally, he argued Veronica was responsible for 50% of the cost of improvements to the property and reimbursement for the resulting increase in value.

At trial, Christopher testified that Florentina owed $300,000 in debts at the death, although the property was not encumbered by them. After her death, he took out two loans secured by liens on the property, one for $238,477 and $410,000. He claimed the majority of the money was to pay her debts and the rest for his own private investment, though he had no documentary evidence showing how the money was spent.  He agreed none of the money went to Veronica, she did not sign the notes, and she was not personally liable on the loans.

Trial Court Verdict

The trial court sided with Veronica.  The court held:

(1) The property was the marital homestead of Christopher and Florentina;

(2) Veronica was not responsible for any property taxes on the property. Christopher was occupying the property under his surviving spouse rights, meaning he was responsible for all property taxes;

(3) Veronica was not responsible for any payments (principal or interest) on the property because the proceeds of the notes were not used to purchase the property and Veronica did not receive any proceeds from the notes;

(4) Veronica was not responsible for any of the maintenance, repairs, or improvements made to the property by Christopher. Christopher was occupying the property under his surviving spouse rights, meaning he is responsible for all maintenance, repairs, and improvements made to the property; and

(5) Veronica was responsible for one-half of the insurance premiums on the structures and shall reimburse Christopher $27,510.62 for the paid premiums.

Christopher appealed.

Appellate Court Opinion

The Corpus Christi Court of Appeals affirmed.

Surviving Spouse Homestead Rights

Christopher claimed that the court erred in ruling that Veronica did not have to share in paying the property taxes, loan payments, maintenance, repairs, or improvements pertaining to the property.

When a person dies without a will and leaves behind a spouse and a child who is not also a child of the surviving spouse, Texas law provides that the deceased’s undivided one-half interest in the community estate passes to the deceased’s children. Under the Texas Constitution, a surviving spouse has the right to occupy the homestead for the remainder of his or her life.  This is true whether the homestead was community property or separate property of the deceased spouse.  Courts have held that this surviving spouse right of occupancy of the homestead is similar to a life tenancy, with the holder retaining rights similar to a life tenant so long as the property retains its homestead character. Given this, co-tenancy does not really exist among the life tenant and the inheriting child; instead, it is more like a life estate and a remainder interest.

Property Taxes, Improvements, Note Payments

The surviving spouse is entitled to all “fruits, rents, and revenues” obtained from the property during his life.  The surviving spouse is only entitled to reimbursement from the remainderman (the children) for paying down the principal of an encumbrance on the property that existed at the time the remainderman inherited  the property. The surviving spouse is responsible for paying interest on any existing encumbrances.  The surviving spouse is not entitled to reimbursement for improvements or property taxes.

Christopher argued he was entitled to reimbursement because Veronica was his co-tenant.  The court held that no co-tenancy exists during the spouse’s lifetime in situations where a child inherits property for which the surviving spouse maintains a homestead interest.  Instead, Veronica holds only a remainder interest in the property. Thus, the laws involving contribution and tenants in common simply do not apply.

Christopher claimed he was due reimbursement for the lien principal he paid.  The court disagreed, however, because none of the encumbrances existed at the time Veronica inherited the property. Veronica was not responsible to pay for encumbrances created after Florentina’s death and for which she received no proceeds.

Insurance Premiums 

At trial, Veronica agreed that she was responsible for half of the insurance premiums for the structures on the property.  Christopher claimed she was responsible for all insurance payments.  The appellate court disagreed.  There is no legal requirement that a life  tenant is required to maintain insurance on the property for the benefit of the remaindermen. There was no legal authority to justify requiring reimbursement if a life tenant voluntarily insures the property.

The trial court’s verdict on all issues was affirmed.

Key Takeaways

First, this case highlights the importance of having a will at death.  If Florentina had a will, it would have been her wishes–rather than Texas statutes–that dictated who would have owned at least her half the property and how.  For example, had Florentina written a will leaving the property to Christopher, he would have owned 100% of the property.  Relying on the intestate statutes to write one’s estate plan is a plan that forfeits control, costs additional money, and often leads to significant disputes.  Take the time to have a valid will drafted to ensure your wishes are both known and carried out.

Second, understanding the Texas surviving spouse homestead right is important.  When someone passes away leaving a surviving spouse, the spouse has a Constitutional right to occupy and use the homestead for the rest of their life.  This is true whether the property is community or separate and is true regardless of what is written in the will.  The right vested in the surviving spouse is similar to a life tenant, with the remainderman (often children either by will or intestate succession) holding a remainder interest to the property after the surviving spouse passes away.

Importantly, the surviving spouse must pay the mortgage, property taxes, and improvement/maintenance costs on the property during his or her life.

The Constitutional right ceases upon the death of the surviving spouse or when the surviving spouse ceases to voluntarily relinquish the homestead protection.

Do note the surviving minor children have the same right.

The post Texas Surviving Spouse Rights in Homestead Property appeared first on Texas Agriculture Law.

In Hollis v. Hollis, the Texarkana Court of Appeals considered the question of who owned a ranch when mother and son disagreed.

Cattle in pasture / (Hannah Harrison/Texas A&M AgriLife)

Background 

This lawsuit involves an ownership dispute over a 304-acre ranch (“the Ranch”) in Titus County.  The Ranch was purchased in 1978 by Wayford and Reba Hollis, husband and wife. 

According to their son, Robert, there was an oral agreement between Wayford and Robert that Wayford would purchase the Ranch, and Robert would stock it with his cattle, manage the operations, and repay Wayford with all proceeds from the cattle sales. Robert claimed their agreement was that once the property lien note was paid off, Robert would own 1/2 interest in the Ranch, and he would inherit the other 1/2 interest at Wayford’s death. Robert’s wife, Sherry, testified that he told her of this oral agreement at the time it was made, and paperwork with the USDA signed by both parties indicated Robert and Wayford were 50/50 partners in the operation. 

Reba testified she and Wayford were close and discussed major decisions. She denied there was ever an oral agreement between Robert and Wayford and testified she had never heard anything about it.  Instead, she testified that she and Wayford purchased the Ranch because they did not have a retirement program. She says Wayford found the Ranch, and Robert was not involved in the conversation or decision to purchase. 

Robert said he brought his cattle to the Ranch and moved into the old house on the Ranch in 1980.  Reba said that Wayford purchased the cattle to put on the Ranch and denies that Robert brought his own cattle with him. She also denied that money from the cattle sales paid the note on the Ranch. 

Later, Robert and Sherry moved a trailer onto the Ranch.  When the herd grew to over 100 head, Robert leased additional land.  Cattle were sold primarily at the Hollis Family Production Sale, and the proceeds from the larger cattle sales went to Wayford.  Some smaller cattle sale income went to the Ranch’s business account to pay expenses.  Financial records show that Robert paid Wayford $823,785 in cattle income from 1978-2000. Wayford paid Robert a small salary from 1981-1999, totaling $185,785. 

The property lien was released in 1993.  Shortly after this, Robert and Sherry built a new $450,000 house on the property. Reba knew they were building a house before they broke ground, and she never objected, told them to stop, or claimed they were building on her property. Reba did, however, help hang wallpaper in the house.  After the house was built, Reba told Robert to survey off an area for the house and they would deed it to him. 

Their Ranch partnership was dissolved in 2000, and Robert said Wayford received the cattle located in Louisiana and Robert received the cattle on the Ranch and assumed $180,000 in notes related to the Ranch operation.  Reba denied this, claiming that Wayford intended to sell the Ranch prior to his death, and that he had a will prepared but did not say anything to her about an agreement with Robert about the Ranch. 

Wayford died in 2005.  His will left “all of the farm property and all improvements thereon situated and belonging, located in Titus County, TX” to Robert.  Robert said this language was his father keeping his word under their oral agreement.  Robert said when the will was read, he told Reba and his sisters that he already owned 1/2 the Ranch, and after the will, owned the full 100%.  Robert replaced the fence around the Ranch twice since Wayford’s death. 

Robert’s sister, Lisa, testified that Robert never mentioned an agreement when they met with the attorney after Wayford’s death.  She also testified she talked to Robert about Reba needing to sell some of the Ranch.  Robert said he did not want her to do that because it was how he made his living, and he wanted to leave it to his children.  He did not say anything about an agreement with their father to buy it. 

After Wayford’s death, Reba tried to sell the Ranch twice.  She executed a listing agreement in 2013, and said she did not really intend to sell it, but wanted to ascertain the value.  In 2015, she called Robert to tell him she would give him something for the house, but she intended to sell the Ranch because she needed money.  At that point, Robert and Sherry filed suit. 

Litigation 

Robert and Sherry filed a trespass to try title suit. 

The jury sided with Robert and Sherry finding: 

(1) Wayford and Robert entered into an oral agreement that Robert would manage the Ranch and pay Wayford all proceeds from sale cattle.  When the note was paid, Robert would own 1/2 of the Ranch and at Wayford’s death, he would get the other 1/2. 

(2) Robert and Sherry completed performance of the oral agreement by paying consideration, taking possession, and making permanent and valuable improvements on the Ranch. 

(3) Reba was bound by the oral agreement because her name was on the deed, she was aware of the agreement being performed, and she was aware of the improvements at the time they were made. 

(4) Reba received and accepted payment from the cattle sales with full knowledge or notice of the facts of the oral agreement. 

(5) Wayford fully complied with the oral agreement. 

(6) Robert and Sherry held peaceable and adverse possession and made use of the Ranch for 10 years after January 1, 1980. 

(7) Robert and Sherry committed acts after 1993 that unmistakably asserted a claim of ownership. 

(8) Robert and Sherry completed performance of the oral agreement in 1993. 

The jury awarded Reba $9,000 on her counterclaim of payment of taxes on the Ranch but dismissed Reba’s remaining claims. The court entered judgment for Robert and Sherry and ordered title be granted to them. 

Reba appealed. 

Court of Appeals Opinion 

The Texarkana Court of Appeals affirmed. 

Disjunctive Instruction

First, Reba argued that the jury should have had the two claims–ownership by oral agreement and ownership by adverse possession–submitted disjunctively.  She claimed these were mutually exclusive theories, and if the jury found an oral agreement, the jury could not also find adverse possession.  The court disagreed. 

The court explained that where an oral agreement is alleged, that does not automatically preclude a finding of adverse possession.  The fact that the initial entry may have been permissive does not preclude a claimant’s possession from becoming adverse at a later date.  Because of this, it was not factually consistent for Robert and Sherry to advance both the oral agreement and adverse possession causes of action. 

Adverse Possession Findings 

Next, Reba argued several insufficiencies related to the jury instructions on adverse possession.  However, because she failed to challenge that adverse possession findings, the errors of which she complained were harmless. In other words, the court rejected these claims on a technicality based on Reba’s appellate arguments. 

Limitation on Voir Dire 

Reba claimed that the court improperly limited her voir dire questions related to Sherry’s brother, a prominent businessman in the community. Robert and Sherry filed a motion to exclude mention or reference to Sherry’s brother.  The trial court granted that motion after it confirmed the brother would not be a witness in the case but allowed general questioning about whether jurors knew Sherry’s family members.  Reba claimed that her inability to question jurors about their knowledge of or relationship to the brother, she was unable to obtain an impartial jury.  The appellate court disagreed, finding that the court struck an appropriate balance between allowing Reba to ask questions while not informing the entire jury panel that Sherry was the sister of a prominent and influential person in the community.  Also, Reba did not propose a different method of inquiry to avoid the issues of which she now complained. 

Conclusion 

Thus, the trial court decision was affirmed, and title to the Ranch was ordered to be granted to Robert and Sherry.  Reba sought review at the Texas Supreme Court, but her petition was denied. 

Key Takeaways 

Although the appellate court opinion was based primarily on pleading issues and technicalities, the facts here illustrate several important takeaways. 

First, all agreements should be in writing.  A lot of argument, time, and money could likely have been avoided in this case had Wayford and Robert entered into a written agreement when the land was purchased.  This type of agreement would protect both sides from this type of litigation.  This is particularly important when agreements involve large sums of money or assets with high values, such as the land and cattle in this case.  

Second, it is important for landowners to remember if anyone is using your land who does not have an ownership interest in the land, legal action should be considered quickly.  Adverse possession law can result in loss of ownership of land if a landowner fails to act while a person uses their land without permission for a certain period of time (and other factors are met).  To the extent anyone is on your property without permission, take action to avoid this type of issue. 

Third, oral agreements about who will inherit at a person’s death are invalid.  Texas law does not recognize oral wills.  The fact that Wayford told Robert he would inherit the other half of the land at death would not, alone, have been enforceable.  Here, Wayford had a will that provided the same, which resulted in ownership being granted to Robert.  Without that will, however, that oral promise regarding the inheritance would have most likely been unenforceable. 

Fourth, family members certainly can end up in legal disputes with each other.  At presentations, people are often shocked when friends or family members sue each other.  It happens more often than most people realize.  Even if you are entering into an agreement or contract with a family member, put it in writing to protect your legal rights and the relationship should things go wrong. 

The post Court Considers Ranch Ownership Dispute Between Family Members appeared first on Texas Agriculture Law.

The Texas Supreme Court recently issued an important decision in State of Texas v. JRJ Pusok Holdings, LLC, answering the question of whether a landowner may sue the State to repurchase property when a portion of the condemned property is no longer necessary for public use. 

Rural Highway / Photo via Evelyn Okay via Unsplash

Background 

Three landowners owned property in Tomball, Texas.  In October 2013, the State notified the landowners that it intended to acquire their property for a highway project.  As required by law, the State provided the landowners with a monetary offer of $496,120, the Landowner Bill of Rights, and a copy of the Texas Property Code Chapter 21, which governs eminent domain proceedings.  The Landowner Bill of Rights provides that if property is condemned and then the public use for which it was acquired is canceled, or no actual progress is made towards the project or the project becomes unnecessary within 10 years, the landowners may have the right to repurchase the property for the price paid to the owner by the condemner at the time the land was taken through eminent domain.  The landowners subsequently received a final offer from the State, which they did not accept.  In April 2014, the State petitioned for condemnation by initiating suit in Harris County.  Three weeks later, the State and the landowners settled on a value of $681,705 for the condemned land.  A special warranty deed conveyed the property to the State and provided that the landowners agreed not to “seek any additional compensation, damages, attorney’s fees, or expenses from the State of Texas.”  The State moved to nonsuit its condemnation petition, and the case was dismissed. 

Later, government officials decided to reroute the highway project, leaving part of the landowners’ condemned land unused.  When asked if the State planned to use the remaining portion of the property, the landowners were told that the land was surplus, and the State refused to sell it back to the landowners.  The landowners then assigned their rights to JRJ Pusok Holdings (“JRJ”) to pursue a repurchase claim. 

Litigation 

JRJ sued the State of Texas and the Department of Transportation Director, claiming violations of its repurchase rights under Property Code Chapter 21.  The State claimed sovereign immunity and lack of justiciability, and the trial court granted the State’s motion to dismiss. The Fourteenth District Court of Appeals in Houston reversed the dismissal of the repurchase claim, holding that Chapter 21 demonstrates the State’s waiver of immunity for repurchase claims.  The Court of Appeals also held that the property was acquired “through eminent domain” because the State filed a condemnation action.  The State petitioned the Texas Supreme Court for review, which was granted. 

Texas Supreme Court Opinion 

The Texas Supreme Court sided with JRJ on all issues in its majority opinion. 

Sovereign Immunity 

Sovereign immunity provides that a state cannot be sued in its own courts without consent, and even then, only by the manner indicated by that consent.  Generally, to waive immunity, consent must be found in a constitutional provision or a legislative enactment.  A statutory waiver must be effected by clear and unambiguous language. 

History of Repurchase Right 

The Texas Constitution recognizes two limits on the State’s eminent domain power: adequate compensation and public use.  The Legislature provides the process for adjudicating the adequate compensation the State must pay. 

In 1980, there was a significant shift on the issue of condemnation and sovereign immunity when the Texas Supreme Court recognized inverse condemnation claims in Steele v. City of Houston.  The Court held that the State had no immunity against condemnation claims when it takes property via eminent domain without paying just compensation. The Court based that decision on the idea that the Constitution authorizes compensation for the destruction of property and is a waiver of immunity for the taking, damage, or destruction of property for public use.  Since that time, the Court has understood the Takings Clause to authorize suit, regardless of any statutory provision. 

Next, in 2003, the Legislature created the statutory repurchase right in the Property Code.  This right was strengthened in 2007 when Texans passed a constitutional amendment expressly permitting the repurchase of property at the price of acquisition. Two years later, the Constitution was amended again, further limiting the meaning of public use. In 2011, the Texas Legislature amended Property Code Chapter 21 to set the repurchase right and price at the amount paid by the government at the time of the taking, not the current market value. 

Arguments 

The State argued that the statutes confer jurisdiction to courts over repurchase claims but do not grant immunity to pursue them against the State. The State argued that the right to repurchase is a statutory right not found in the Constitution. 

JRJ disagreed and argued that the statute authorizes relief associated with a waiver of sovereign immunity, including damages, for “all issues” in which the State occupied property under the authority of eminent domain. This, JRJ argued, is consistent with the Constitution’s authorization that the State offers a repurchase price valued as of the time of acquisition. 

Holding 

“We conclude that the State is not immune from repurchase claims.”  First, the legislature placed the repurchase statute within the law governing eminent domain, proceedings from which the State does not enjoy immunity.  Chapter 21 permits district courts to “determine all issues…in any suit…in which the State…is a party” and that involves a claim for property occupied by the State under eminent domain authority.  As the Court previously held, “the government is not immune from claims on the ‘back end’ after it takes property without compensation.”  The statute cannot be read consistently with the Constitution without the waiver of sovereign immunity.  The statutory language is more than merely jurisdictional. 

The Court then made an interesting point regarding profit from eminent domain.  “What the State loses is any appreciation in the property’s value between the time it was condemned and the repurchase.  But under the constitutional and statutory framework, the State was never entitled to profit from its eminent domain authority.  The People amended the Constitution to permit the landowner to recover the loss of that profit, with supporters aiming to minimize the speculative overuse of condemnation authority.  Any liability the repurchase right creates for the government is both limited and purposeful.” 

Finally, the Court reasoned that the repurchase right serves “virtually no purpose absent the waiver of immunity.”  The State and dissent contend that the repurchase statute is effective even without sovereign immunity because some private actors have the authority to condemn.  Initially, however, the repurchase right applied only to property acquired by a governmental entity, not that taken by private actors.  Where landowners cede their property to the State’s eminent domain power, which is limited by the public use requirement, that same requirement carries forward in subsequent claims. 

Repurchase Criteria 

Next, the Court considered whether JRJ’s repurchase claim met the Chapter 21 criteria. 

“Through Eminent Domain” 

The State contended it did not acquire the property “through eminent domain” as required by the repurchase statute because it settled upon the condemned value with the landowners.  Without a final judgment adjudicating the property’s value, the State claimed the property was not taken “through eminent domain.” 

The State turned to the dictionary for the definition of “through,” which means “by way of”; “passage into and out of a treatment, handling, or process” or “a function word to indicate means, agency, or intermediacy.”  The court reasoned, then, that the definition of “eminent domain” is the “inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.” 

Thus, the Court wrote, the logical reading of “through eminent domain” is “by means of the State’s power to take private property for public use.”  The State’s reading would require the Court to swap the term “eminent domain” with “condemnation judgment.”  Eminent domain is not the process the State goes through; it is the State’s power.  A settlement as to the property’s value does not alter the acquisition of it “through eminent domain.”  The deed in this case indicated that the landowners conveyed the land because of the pending eminent domain proceedings.  The landowners did not sell the property on the open market to an arms-length buyer; rather, they surrendered their property in concession to the State’s power. 

“Once the state invokes its eminent domain power, landowners need not proceed to a judgment as to adequate compensation to preserve their repurchase right.  The State’s forced transfer via a condemnation suit is an exercise of its power to obtain the property “through eminent domain.” 

Portion of the Property 

The State claimed that Chapter 21 was inapplicable when only a portion of the property–not the entire property–is no longer necessary for public use.  The State pointed to the repurchase right referring to “the property,” pointing out it does not permit repurchase of a portion of the property.  But, as the Court noted, neither does it refer to repurchase of “the entire property.” A portion of the property is accurately described as “property.” 

Here, the State used 97% of the condemned property for the highway.  The remaining 3% became surplus within 10 years of its acquisition.  Once the State determines that property is no longer required for public use, as it did here, it must notify the landowner of the repurchase right. 

The State then argued it was difficult to determine a price for a partial repurchase.  “We are not persuaded,” wrote the Court.  The State offered to sell the 3% for fair market value, which indicates it is possible to value the land. The State can use the statutory directive setting the repurchase price as the price paid to the owner at time it was acquired. 

Jurisdiction 

Lastly, the Court held that Chapter 21 gives district courts and county courts of law concurrent jurisdiction in eminent domain cases, and a repurchase claim is, in fact, an eminent domain case. 

Conclusion 

Thus, the Texas Supreme Court affirmed the court of appeals’ judgment and remanded the case to the trial court for further proceedings. 

Concurring Opinion 

Justice Young filed a concurring opinion.  He agreed with the Court’s determination that sovereign immunity is waived as to repurchase claims.  He wrote separately because he believes that determining whether a statute waives sovereign immunity can and should be simpler than prior decisions suggest. 

First, he noted that the legislature’s intent to waive sovereign immunity must be clearly stated. “If sovereign immunity is waived, it is because the legislature clearly waived it–not because a court has read a waiver into a statute in a way that the legislature can later plausibly disclaim.” 

Second, it is the Court’s job to interpret the statute based on the text, context, and legislative history, to determine if the required clarity is present.  While an express waiver is the easiest way, it is not the only way the legislature can meet the clear indication of waiver. “Requiring clarity is not the same as requiring formulaic or magic words.” 

Third, applying this standard here, he found it is clear the legislature’s waiver of sovereign immunity in repurchase cases was “manifest, albeit not ‘express,’ from the start.” 

Fourth, he did not find it necessary to address other considerations included in the majority opinion. 

Dissenting Opinion 

Justice Hawkins authored a dissenting opinion which was joined by Justice Sullivan and Chief Justice Blacklock and was actually lengthier than the majority opinion.  For the sake of space and time, we are including only a high-level summary below.  

The dissent said that the majority finds waiver of immunity for repurchase claims despite “containing none of the statutory indicia that traditionally signal the waiver of immunity.”  It does not mention “waiver,” and it does not require the State’s participation in a case.  The majority admits the statutory scheme would still have some effect–in cases where property was taken by private actors–without the waiver of immunity.  Instead, the majority turns to the constitutional backdrop, the broader statutory context, and practical concerns to hold that immunity is waived.   The good news, the dissent wrote, is that today’s decision is limited to this particular statutory provision and its unique considerations, including the constitutional backdrop that makes it differ from every other statutory right.  This decision has no impact on any other statutes.  Regardless, the dissenting justices believed it was wrongly decided and would have issued judgment for the State dismissing the claim.  From a policy perspective, the dissent warned, courts have no business letting claims proceed against a state absent unmistakably clear immunity waivers because taxpayer dollars and separation-of-powers principles are on the line. 

Additionally, the dissent would find that even were sovereign immunity waived, the property was not acquired “through eminent domain,” a necessary requirement for the statutory repurchase right to apply.  Instead, the dissent wrote, this property “was acquired through a privately negotiated and mutually agreed upon sale, not eminent domain.”  The dissent pointed to language in the special warranty deed that says the property is conveyed “in order to avoid eminent domain proceedings…” as showing the acquisition was in order to avoid, not complete, eminent domain.  

Lastly, the dissent believed the case should be dismissed because it was improperly filed in the county court at law, not the district court. 

What Happens Next? 

The case will be remanded back to the trial court.  Because sovereign immunity is waived and the property was taken through eminent domain, the trial court will proceed with JRJ’s lawsuit against the State. 

Key Takeaways 

This decision is significant for Texas landowners for several reasons: 

1. Landowners may file suit against the State to repurchase property taken through eminent domain and not used for that purpose. 

1. This right to repurchase is available not only to landowners whose case resulted in a condemnation award by the court, but also to landowners against whom condemnation proceedings were filed and then settled.  I do think the question of whether this right is available to landowners who received and accepted an offer under the threat of eminent domain prior to a court action being filed remains unclear in this opinion. 

1. If land is taken by eminent domain and only a portion of the land is used for the designated public use, the landowner has the right to repurchase the unused portion of the land.  

1. County courts at law have concurrent jurisdiction with district courts to hear repurchase claims.  This means landowners can file suit in either court.  

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