It is Time to Get Property Rights in Texas Right

SB 18-the primary eminent domain reform bill this session-will hit the House floor this Wednesday, April 13. The bill is the product of six years of work by many parties and is an improvement over current law. However, SB 18 can still be improved. Below are descriptions of three of the pre-filed amendments that would add more substantial property rights protections to SB 18:

The “Buyback” amendment by Rep. Kolkhorst (p. 46): A major flaw with Texas eminent domain law is that once a property has been condemned, it can be used for just about any purpose-the condemnor is not required to use it for the purpose it was taken. SB 18 currently contains a buyback provision that attempts to address this problem by letting a property owner repurchase her property under certain circumstances. However, in most cases a condemnor can get around the buyback provision even if it does not use the property for the use specified in the condemnation proceedings. This amendment adds a new trigger to the buyback provision that would grant property owners the right to repurchase their property if the initial use of the taken property is not the public use for which the property was taken. It applies in all situations and is not tied to the 10 year time frame currently in SB 18, so avoids the concerns that both property rights advocates and condemnors have with the current provision.

The “Public Necessity” amendment by Rep. Sheffield (p. 35): Reflecting the U.S. and Texas constitutions provisions, SB 18 prohibits taking of private property unless the taking is for a public use. While this is a good provision, it falls short of accurately reflecting current takings law on public use. A 2005 3rd Court of Appeals decision in Whittington v. Cityof Austin clearly explains the current requirement in law: “There are two aspects to the ‘public use’ requirement. First, the condemnor must intend a use for the property that constitutes a ‘public use’ under Texas law. Second, the condemnation must actually be necessary to advance or achieve the ostensible public use. …. This second aspect of public use is commonly termed the ‘necessity’ or ‘public necessity’ requirement.” This is also seen in the inclusion of the term “necessary” in many sections of statute, such as Section 251.001(a), Local Government Code: “When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent.” This amendment simply inserts the word “necessary” into SB 18 so that a taking is prohibited unless it is necessary for a public use.

The “Public Use” amendment by Rep. Phil King (p. 58): According to the United States and Texas constitutions, eminentdomain can only be used for a public use. However, the Texas Legislature and Texas courts have closely followed the national trend of blurring the distinction between public use and public purpose. For instance, Sec. 251.001 of the Texas Local Government Code states: “When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public purpose to acquire public or private property, whether located inside or outside the municipality, for any of the following purposes.” This confusion between public use and public purpose is what led the Supreme Court in its Kelo decision to allow takings for the purposes of increasing tax revenue and economic development, rather than limiting takings to public uses like building public schools and roads. This amendment simply inserts the constitutional term “public use” in place of “public purpose” in the provisions in statute that authorize the use of eminent domain for cities, counties and school districts. This is the next step-after banning takings for economic development purposes-to ensure that takings conform with the original vision of public use as contained in the Texas and U.S. constitutions.

The Texas Public Policy Foundation has provided extensive research and commentary on this issue to help Texans understand what is wrong with eminent domain law in Texas and what can be done to fix it.

Here is a brief listing of the resources that are available: