San Antonio Express News 7/27/14 By Jennifer Hiller

La Salle County has hit a dead end in its quest to sue the state over how it doled out $225 million for road damage caused by the energy industry’s heavy trucks.

The county had argued that many other communities weren’t following the complex rules set out by the state, but got funding anyway.

Of the state’s 254 counties, the Texas Department of Transportation awarded the grants to 191, including 15 without oil and gas production.

But an attorney working on La Salle County’s behalf said by email that Judge Stephen Yelenowsky in Austin granted TxDOT’s plea to the jurisdiction, essentially saying that La Salle County couldn’t get past the agency’s sovereign immunity defense. The state’s doctrine of sovereign immunity means it cannot be sued in its own courts without the Legislature’s consent.

While La Salle and other counties in the Eagle Ford Shale region have become some of the state’s top producers of crude oil, they’re contending with a litany of road problems. Chunks of shoulders have broken off, potholes pepper the roadways and so-called “alligator” cracks have become common.

TxDOT has said the grant money was divvied up by formula, as governed by Senate Bill 1747, the legislation that created the grant program.

“TxDOT is pleased with the outcome,” agency spokeswoman Becky Ozuna said by email. “We have been administering the program as directed by the Legislature for a few months, and expect activity to pick up as the summer progresses.”

La Salle received about $6.5 million from the state grant. The county estimates its road needs at around $400 million.

To qualify for a share of the $225 million in grants, counties were told to follow a lengthy application process as part of the creation of TxDOT’s County Transportation Infrastructure Fund.

Officials were required to produce road condition reports, create special taxing districts and provide a 20 percent funding match so TxDOT could determine how to divvy up the money.

La Salle County Judge Joel Rodriguez Jr. said he wanted the state to clarify how it chose to distribute the funds.

“It doesn’t mean it comes to La Salle. It means it goes on a fair equitable distribution. I don’t want to take money from counties. I want direction and we want our fair share.”

He said the state has not been able to adequately address the problems that communities face in West and South Texas, which have the lion’s share of the drilling and production activity. And he said that’s made long-range infrastructure planning nearly impossible.

“You’ve got a bunch of chickens. You throw some crumbs and the chickens will run for them. That’s all that’s happened. We’re all fighting for crumbs. It’s not enough to address the issues,” Rodriguez said. “Counties need to seriously look at these shale plays. They don’t last forever.”

La Salle County ranks third in the state in oil and gas production volume. The county has about 2,031 active wells, which could result in 20 billion vehicle trips per year to drill, produce and operate those wells, according to its lawsuit against TxDOT.

The issue of how to pay for road damage has been a touchy topic in both South and West Texas, which in addition to road damage have been contending with an increase in accidents and fatalities.

While county tax hauls have gone up, it hasn’t been nearly in proportion to the amount of road repair that’s needed. Oil and gas severance taxes, paid when minerals are “severed” from the property, go into the state’s Rainy Day Fund instead.

TxDOT in 2013 asked the Legislature for $1.6 billion for energy-sector roadwork but got $225 million. Of that, about $157 million is going to Eagle Ford counties.

The Legislature had also designated the $225 million grant program for county-maintained roads in areas with high oil and gas production.

Now South and West Texas counties are hoping that the state’s voters will approve a potential new source of funding that could help address some of the rural road needs.

Texas voters in November will consider a constitutional amendment that would divert $1.2 billion a year in oil and gas taxes paid by drilling companies from the state’s Rainy Day Fund and use it for transportation.