Tuesday, November 4, 2014



My press release for the Austin news media in the event the TRO issues is nearly complete.  I have written a simple story supported by documents and some videos.  I have not had time to do a video of Lincoln park.  The news media will want that.

Please, if anyone can go today and do a video and then send it to me, I will up load it to my Youtube account so no one knows it was you.


Key Status

First and foremost, I want to make clear the BV speaks for no one.  I represent no one but my own desire to be one of the many voices seeking to save Lincoln Park.  I am grateful so many people are putting aside their differences to make this happen.  The BV has become a conduit between various sources to make this happen.

One well known organization appears to have found the perfect plaintiff.  The problem is by the rules of ethics the lawyer cannot contact the prospective plaintiff.  This is why a third party organization used their resources to find the plaintiff.  Last night the lawyer willing to seek the TRO authorized me to tell the organization to tell the prospective plaintiff to call his office so a meeting can be arraigned and the lawsuit can move forward as soon as tomorrow - HOORAY for Parque del Milagro - If we win maybe we should have its name changed or at least use Parque del Milagro as a nickname given it has brought together so many diverse voices.

Good news Bad News,

First the good news - an AG opinion says U.T. must pay a fair market value based on an appraisal.  The COB has not sought an appraisal and therefor a TRO is needed until such time as the COB obtains an appraisal of the fair market value

"Subsection (b), however, also makes clear that such land and interests "may not be conveyed, sold, or exchanged for less than the fair market value of the land or interest." Id. § 272.001(b). It further provides that "[t]he fair market value is determined by an appraisal obtained by the political subdivision that owns the land or interest, and the appraisal is conclusive of the fair market value of the land or interest." Id. § 272.001(b). Accordingly, we conclude that the city is prohibited from conveying the property to the hospital district for less than fair market value."

Click for AG Opinion

The below appraisal of similar land in the area shows a range of about $370,000 to $408,000 per square acre.  If we use the $370,000 per acre and round up just a bit the land is worth $18 million, without amenities.  Now I have no way of knowing the value of the amenities, but U.T. and the COB seem to be saying, $6.5 million. This would bring the true market value of el Parque Del Milagro to $24.5 million.

There is no doubt in my mind if the attorney moves forward tomorrow a TRO will issue and U.T. will balk.


Here is the COB resolution for the deal.  You will note on page 2, item C it says sale.  They have not done an appraisal and the entire thing violates the law.  I am certain every judge in this town will agree to sign a TRO.  The case may end up in the hands of visiting judges Justice Hinojosa or Justice Chow - but either way they are both very studious jurists and will see the law is followed.


They are just that, opinions.  They are not binding law, and quite frequently ignored by the courts, once both sides get to fully brief the issue.  The inherit flaw in all AG opinions is, the review is one sided favoring the side seeking the opinion.  Whereas in court both sides get a full say and analysis of the law.
The AG opinion also says no vote is necessary because the COB can agree that U.T. would win an eminent domain suit and simply choose to settle.  This being the case, no vote by the people would be necessary.  I do not believe the Texas Supreme Court would agree with this analysis - here is why.
There are PR consequences to such a move by U.T. which are avoided by an agreement.  Further, judges can and quite often do reject settlement agreements.  I believe the Texas Supreme Court would find a friendly suit must be filed subject to the review of the terms by the court.  In the area of class action lawsuits, federal judges reject the settlements more often than you might think.
Judges in criminal cases do not have to accept plea bargains - they must affirmatively find that the plea bargain is in the interest of justice and the evidence justifies a finding of guilt.  A judge simply cannot just go along.
In the case of a friendly eminent domain I believe the Texas Supreme Court would find an ad litem must be appointed to represent the true owners of the land - the people - so as to insure everything is on the up and up.  If a TRO is sought, I am confident a judge will find a friendly suit is required for judicial review and review by the people.  A judge will have to agree that fair market value is being paid, just as in any other eminent domain case.
But it is this negative part of the AG opinion which results in the positive part - meaning U.T. must pay fair market value.  How do we know this is happening without judicial review.  This is a major reason I believe the TRO will issue and U.T. will back out rather than pay $24 million dollar and face an onslaught of bad PR for its role in trying to pay $6.5 million for land worth upwards of $24 million

We also have the issue of the TOMA violation for insufficient notice.  We also have the issue of does this violate the agreement previously made with TxDot or any of the federal grants which paid for Lincoln Park.  It should take a good year to sort this out. I do not believe U.T. has the fight to last a year of bad PR.

1 comment:

Anonymous said...

You're teasing me!