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Thursday, April 22, 2021

Legislative Success: Texas A&M Law School professor helps push through fair property rights reforms

Battles over a bathroom bill and other legislation as well as a public brawl in the state Capitol dominated the 85th session of the Texas Legislature but a Texas A&M University School of Law professor walked away celebrating an important legislative victory.

A piece of legislation that Thomas W. Mitchell has championed for years was unanimously passed in the Legislature and signed into law by Gov. Greg Abbott.

Texas was the 10th state to adopt the legislation that Mitchell hopes will eventually become law across the nation.

The legislation adds protections for low- and middle-income people who inherit property and have too often become unwitting victims of greed or complexities in the legal system that they don’t have the resources to navigate.

“This is a very prevalent problem,” Mitchell said. “Many families have lost their property in forced sales where they were bought at 50 to 60 percent – or even less – of market value.”

The legislation, Senate Bill 499 and House Bill 1358, known as the Uniform Partition of Heirs Property Act, has been winding through state legislatures since 2011. With Texas being the largest and most populous state to adopt the act, Mitchell said it now has the momentum to be enacted by other states, perhaps even more quickly.

“It helps families stabilize their ownership so they don’t have to keep looking over their shoulder wondering what random person is going to try and undercut their ownership,” he said.

Mitchell, a new faculty member at Texas A&M law school in Fort Worth, worked closely with bill sponsors state Sen. Royce West, D-Dallas, and state Rep. John Wray, R-Waxahachie, to win passage.

“Professor Mitchell’s work since arriving at Texas A&M less than a year ago shows that when scholarship is put into action, there is no limit to the positive indelible impact one can have on the state and nation,” Texas A&M President Michael K. Young said in a statement.

“Professor Mitchell’s work is precisely what makes a having a land grant law school important for Texas,” said Texas A&M law school Dean Andrew Morriss.

Mitchell’s career has spanned the professional spectrum in law, having served as a legislative aide on Capitol Hill, a legislative director for a congressman, an associate in a large Washington, D.C., law firm, a judicial clerk for a federal judge and finally an academic with appointments as leading institutions. He joined the faculty at Texas A&M’s law school after working for many years at the University of Wisconsin Law School.

His experience in college with the challenges of diversity led him to law school, where he felt he could have a positive impact on helping people. When he choose to switch from practicing to teaching law, he sharpened his focus on property law, land use and community development law and their impact on poor and minority communities while writing his thesis as a Hastie Fellow at the University of Wisconsin Law School.

During this time, he also worked the University of Wisconsin’s Land Tenure Center to develop a program that placed law students in rural communities without legal services to help them keep their property.

After the Associated Press published a series in 2001 about land loss among African-Americans in the South that exposed the problem as “legalized stealing,” Mitchell’s research and publication in this area earned him an appointment to a new American Bar Association task force tasked with examining heirs’ property and recommending solutions.

Despite long odds because the target was property rights and the disadvantaged, Mitchell said, the task force submitted a proposal to the National Conference on Commissioners on Uniform State Laws in 2006 to reform a law that allowed forced sales of common-owned ancestral property because no will or ownership agreement existed to outline options for heirs to keep, sell, transfer or lease the property. This situation was identified as a chief source of land loss in poor and minority communities, Mitchell said.

In 2007, the task force’s report was accepted and Mitchell was selected as the primary drafter of the uniform legislation. After three years of work on drafting language, it was adopted by the Uniform Law Commission in 2010 and named the Uniform Partition of Heirs Property Act. The American Bar Association adopted it in 2011, setting the stage for its state-by-state adoption.

Besides Texas, the act has been adopted by f Nevada, Montana, Arkansas, Alabama, Georgia, South Carolina, Connecticut, Hawaii and New Mexico.

The law targets exploitive practices that increasingly had become common as a way to settle disputes within families without a legal decree.

Oftentimes, a land developer or speculator seeking ownership of the property would identify a vulnerable family member and buy out the person’s partial ownership. The developer or speculator would become an owner and petition a court for a forced sale of the property.

In many states, including Texas, a single fractional owner could petition to sell the property, which judges often agreed to as the most expedient way to settle the matter, Mitchell said.

“The property would be auctioned with limited notice and other family members didn’t have the time or resources to make a bid,” Mitchell said.

Reforms included in the act require that other parties be given the opportunity to buy out the property and that courts consider the historical and intrinsic value – instead of just the economic value – of the property if a buyout does not resolve the issue. Also, if a sale is deemed the appropriate remedy, it occurs through the commercial process to provide heirs with standard market compensation.

Mitchell said he is pleased that five of the states that have already adopted the act are in the South, where a history of exploitive practices against minorities and low-income people are more prevalent.

“It’s hugely surprising but I’m happy to see it going this way,” he said.

For his part, Mitchell intends to continue his involvement with this cause. He said he opted to leave the University of Wisconsin, a large, top-ranked law school to be part of “essentially a startup” because of Texas A&M’s willingness to “support what I do with vision and resources.”

“I have no doubt that down the road, Texas A&M is going to be a Top 40 law school,” he said.

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