Is the Texas Anti-Blocking statute preempted by federal law?

Milam County currently has about 11 cases pending against the railroads for blocking crossings in violation of Texas Law (sec 471.007 TRC). The railroad has moved to quash per Friberg v. Kansas City Southern Railway Company (2001 WL 1104406 (5th Cir., Tex, October 5, 2001).

Is anyone else faced with this problem? Currently Williamson Co. and City of Thrall are working on a request for an AG opinion. Any help would be appreciated. Comments?

I once had a Chief of Police write the train conductor/engineer a ticket for blocking the main drag in town. The fellow refused to sign the ticket so they Chief, in a moment of cerebral flatulence, instantered the recalcitrant train engineer. THEN he called me and ask ......"What do we do with the train?" Law School did not prepare me for such situations.

Well, what did they do with the train?

And if it is impounded and not claimed when will the auction be? I don't want to bid, but I would like to see who would buy a train.

I recently looked into this issue. The cases support the view that the State may not regulate railroad activities including the use of tracks. Several courts including the Fifth Circuit have ruled that anti-blocking statutes are preempted but......one court (Fifth Circuit if I remember correctly) sort of left the door open for regulation affecting safety when it dropped a footnote stating that it might be different if a state statute was based on ensuring access of emergency vehicles such as fire and ambulance vehicles.

I convinced the Chief to release the train engineer but explain to him that a class C warrant would be issued for his arrest and that there would be a strong likelihood that a police officer would be waiting for him in Houston when he arrived. The thought of having an outstanding warrant over his head convinced the engineer to sign the ticket. He then moved his train. The City subsequently reached an agreement with the railroad to avoid this type of problem in the future. Sorry....No trains for sale.

We had a similar problem in Nolan County a couple of years back. The conductor indicated that he was required to stop immediately after working a specified number of hours and sleep. The train would be left blocking a road until a relief crew arrived.

The Sheriff finally had enough, and had a deputy ticket the conductor - who griped, grumbled, cussed and swore to the point that disorderly conduct probably would have been appropriate. The Deputy had great fun with it, and was looking forward to more such entertainment in the future. In discussions with the attorneys for the railway, I agreed to drop the ticket, and they agreed to have conductors use a little more common sense. The only loser was the Deputy, who saw himself as the enforcer of the rails....(I think he is still watching for trains to violate the agreement.....)

Had a former judge call me one day and demand that I move the GD!#!!# train which was blocking his access to his ranch. Never did figure out how I was supposed to do that but I'm sure the judge didn't know about this law or he would have had the driver arrested.

Well, did Williamson County or Thrall ever request an AG opinion or did they answer the question themselves?

The back ground and purpose of H.B. 2922 seems to indicate that emergency vehicle access is or was a concern when the legislature amended 471.007 in 1999. Does that change anyone's position?