After Failed Negotiations With Todd Interests, TPWD Looks to Acquire Fairfield Lake State Park Using Eminent Domain

In Texas, if there’s one thing that’s close to sacrosanct in the state legislature, it’s private property rights. Gov. Greg Abbott, Lt. Gov. Dan Patrick, and most of the top executives in the state are thought to have the rights of private property owners at the top of their priorities. However, Todd Interests, the Dallas-based firm that put Fairfield Lake State Park under contract from Vistra Corp. last year, is finding that to be anything but the truth.

On Saturday, June 3, the Texas Parks and Wildlife Commission issued a press release stating that Fairfield Lake State Park is closing, but the commission is considering acquiring the park through eminent domain.

“Texas Parks and Wildlife Commissioners continue to pursue options for saving Fairfield Lake State Park, including through condemnation,” said commission chairman Arch “Beaver” Aplin III, owner of the popular Texas pit stop chain Buc-ee’s, in the press release. “But in the meantime, department staff must focus on decommissioning the property before our lease ends June 13.”

The park, which has been open for day use while the state attempted to negotiate with Todd Interests, was closed over the weekend. TPWD says it extended an offer totaling $25 million to buy out Todd Interest’s contract on the property but was rejected. Reports show that Todd Interests put the 5,000-acre property under contract for around $110 million.

The state began removing equipment and relocating park employees on Monday, June 5. On the same day, Todd Interests had construction equipment and workers on site to get dirt turning on its development plans, which include a gated luxury home development and golf course.

Despite the contract closing and work getting underway, TPWD commissioners are planning a special meeting at 10:30 a.m. June 10 to consider using eminent domain on the property that includes both Fairfield Lake and Fairfield Lake State Park.  That’s after State Rep. Angelia Orr, R-Itasca, filed a bill in February that would have allowed TPWD to seize the parkland using eminent domain. While Orr’s bill failed, commissioners haven’t given up on the lake and park located in Freestone County.

Eminent Domain in Texas?

In a letter sent to commissioners June 6, Todd Interests decried the about-face the state has taken. Signed by Patrick Todd, Shawn Todd, and Philip Todd, the letter says that TPWD had numerous opportunities to purchase the lake and park from Vistra, but didn’t act.

The Todds say that Alpin and the commision refused to work with Todd Interests, intent on the deal’s failure only to then threaten condemnation.

“Chairman Aplin made no secret of his desire for our transaction to fail, and after we refused to simply walk away from our business transaction he made numerous verbal threats, apparently orchestrated multiple failed legislative actions and in our opinion, spoke many untruths,” the letter states. “These, along with many other actions, have been catalogued diligently by our firm and others. While receiving much interference and efforts of sabotage, we did not receive a written proposal to purchase our contractual right until May 12, 2023 — eight months after engaging in conversations with Chairman Aplin.”

Todd Interests says that on June 1, Alpin again made an attempt to interfere with Todd Interests closing on the property, sending a representative to Luminant, a subsidiary of Vistra, to purchase the property at a discount to what Todd Interests had under contract. At the same time, millions in related development contracts were underway as the Todd Interests began work on the property.

While the popularity of the park and the public outcry about its closure has been loud and clear, Todd Interests isn’t backing down on its property rights, even going so far as to point out the hypocrisy in the state’s proposed condemnation of the park.

“A state once considered the vanguard of private property rights would now take from its citizens and diminish the rights of sellers, buyers, and private-property owners of every order,” the letter stated. “This would be in direct conflict to how the lady and gentlemen of the TPWD Commission have built their private businesses.”

We reached out to TPWD for comment but did not receive a reply by deadline.

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Dear Texas Parks and Wildlife Commission Members:

We cannot begin to express our astonishment that officials appointed by Governor Abbott and approved by Lt. Governor Patrick and the Texas Senate are considering the condemnation of private property that TPWD had numerous opportunities to acquire.

Is this how you fulfill Governor Abbott’s promise that “Texas is wide open for business”? As a family-owned, Texas-based business and longtime supporters of our state’s pro-business policies, we sincerely hope not.

In 1968 Texas Power and Light Company, Texas Electric Service Company, and Dallas Power and Light Company (now collectively, “Luminant”) began the construction of a new power plant and an adjacent cooling lake in Freestone County. While the lake was constructed to support the coal-fired power plant, Luminant allowed TPWD to lease a portion of the land at no cost. The plant closed in 2018, taking hundreds of jobs from the county. At that time, Luminant made known to TPWD its intention to sell the lake and the land around it. TPWD told Luminant that it had no interest in acquiring the Property. In 2020, prior to publicly marketing the property for sale, Luminant again asked TPWD if it would like to purchase the lake and surrounding land. TPWD said it had no interest in acquiring all of the land or the lake and did not have the funds to purchase the land TPWD had leased.

Our firm became aware of the opportunity to purchase the property through an October 5, 2021 article in the Dallas Morning News, advertising the Property for sale. We knew that TPWD leased a portion of the Property for 50 years, and that during that half-century span it failed to express any interest in acquiring from the property from Luminant. After Luminant enlisted a real estate firm to market Fairfield Lake in 2021 for $110 million, TPWD still took no action. We had no reason to believe that the State of Texas wanted to acquire Fairfield Lake when we made an offer on the Property. So, on April 21, 2022 — four years after TPWD was given notice of Luminant’s intent to dispose of the Property — Todd Interests, a willing buyer, executed a binding contract of sale with Luminant, a willing seller.

Five months later, after spending hundreds of thousands of dollars in due diligence, Todd Interests met with Chairman Beaver Aplin per his request and Luminant’s encouragement. Since that September 2022 meeting, we engaged in good faith conversations with Chairman Aplin, despite no legal obligation to do so, even sharing the appraised value of the water rights as a means for this to be a profitable venture for TPWD. The State of Texas, however, has spent the last eight months working to derail our transaction and diminish our transactional rights. Chairman Aplin made no secret of his desire for our transaction to fail, and after we refused to simply walk away from our business transaction he made numerous verbal threats, apparently orchestrated multiple failed legislative actions and in our opinion, spoke many untruths. These, along with many other actions, have been catalogued diligently by our firm and others. While receiving much interference and efforts of sabotage, we did not receive a written proposal to purchase our contractual right until May 12, 2023 – eight months after engaging in conversations with Chairman Aplin. We responded in good faith to the proposal on May 23rd. We never heard from Chairman Aplin again. On June 1, 2023 we fulfilled our contractual obligation and purchased the Property from Luminant. Since taking title we have begun executing our development plan and executed millions of dollars in related contracts. Much of our construction equipment arrived onsite yesterday. While Chairman Aplin no longer engaged with us, on June 1st, while we were in the process of closing, he once again tried to scuttle our transaction by sending an offer directly to Luminant to purchase the Property, at a discount to what we paid.

Additionally, the esteemed Attorney General Ken Paxton’s office sent a letter directing us to preserve evidence as if we had been involved in a crime. We assume this was purely an effort of intimidation as it contains nothing of legal substance – simply theatrics for the media in an effort to interfere with our lawful contract. The letter is dated May 25th, the same date that articles of impeachment were filed against the Attorney General.

TPWD, like many other state agencies, has the power of eminent domain. We were, however, surprised to learn of the hearing based on the national precedent condemnation would set. TPWD declined an opportunity to purchase the Property. Twice. It then tried to interfere with the contractual rights of private parties through threats, intimidation and misstatements of facts, trying to purchase the property for less than we were paying. But now it seems to imply it will willingly spend many times that amount to acquire the Property through Condemnation. Interestingly, the only funds presently appropriated, through SB 30, are “to purchase from a willing seller.” Members of the Texas House and the Texas Senate have repeatedly demonstrated their opposition to the use of condemnation to acquire Fairfield Lake. Neither House Bill 2332 nor Senate Bill 1656 made it out of committee, let alone got a floor vote.

Most striking is the activist message Chairman Aplin, Jeff Hildebrand, Blake Rowling, Dick Scott, James Abell, Oliver Bell, Paul Foster, Ana Gallo, Bobby Patton, Lee Bass, and Dan Friedkin would send to the entire nation on behalf of The State of Texas. A state once considered the vanguard of private property rights would now take from its citizens and diminish the rights of sellers, buyers, and private-property owners of every order. This would be in direct conflict to how the lady and gentlemen of the TPWD Commission have built their private businesses.

We have fulfilled our duty as Texans by engaging in good faith efforts with TPWD since the day we first met. We now ask the TPWD Commission to respect our rights as we fulfill our duty to our financial partners and family.

Sincerely,

Patrick Todd 
Shawn Todd 
Philip Todd