Property Rights
Conservatives have worked to outlaw eminent domain for economic development purposes, establish a Landowner Bill of Rights, and created fair standards by which property owners can repurchase condemned property.
Senate Bill 7 (79S2) Prohibiting Eminent Domain for Economic Development
In response to the U.S. Supreme Court’s Kelo decision—which grossly expanded the circumstances under which eminent domain powers could be exercised by government entities—Senate Bill 7 provided necessary protections for property owners in Texas. The bill established four specific instances in which eminent domain may not be exercised by government:
- if the taking confers a private benefit on a particular private party;
- if the taking is a based on an alleged public use that is merely a pretext to confer a private benefit on a particular private party;
- if the taking is for the purposes of economic development, unless the economic development is a secondary purpose arising from clearance of blighted areas; or
- if the taking is to raise revenue for a public project.
The bill did not apply to transportation projects, including railroads, ports, airports, or public roads or highways; the provision of utility services; or a sports and community venue project. The landowner protections provided by SB 7 (79S2) were a vital first step toward securing private property rights in Texas in the light of the Kelo decision.
Key point: Senate Bill 7 protected private property rights by constraining the use of eminent domain by state agencies, higher education institutions, political subdivisions, and corporations created by public entities.
House Bill 1495 (80R) Landowner Bill of Rights
House Bill 1495 required the Attorney General to draft a statement of rights for property owners facing eminent domain condemnation that explains their right to notice, fair negotiation, damages, a hearing on damages, and to appeal a condemnation judgment, including an appeal of the assessment of damages.
The written statement required by HB 1495 must also describe the condemnation process, the condemning entity’s obligations throughout the condemnation process, and the property owner’s options.
House Bill 1495 helped to inform landowners of their rights and options when confronted with a condemnation. While such disclosure may not tip the balance of condemnation proceedings in the landowner’s favor, the bill of rights may work to make the process less intimidating and empower landowners to demand and win adequate compensation as required by the Constitution.
Key point: House Bill 1495 established a Landowner Bill of Rights that will inform property owners of their legal protections when they are faced with eminent domain condemnations.
House Joint Resolution 30 (80R) Repurchase of Condemned Property
HJR 30 offered an important protection for property owners: if the government takes property by eminent domain, but ultimately never uses it, the original owner’s repurchase price is the same as the amount awarded to the owner when the property was condemned. This is important because a property owner in this situation has already had their property rights abridged for an approved public use. When a condemned property is offered back to its original owner, the intended public use for the property was not realized.
Key point: House Joint Resolution 30 amended the Texas Constitution to allow the former owners of condemned property to repurchase that property for the same amount they were awarded in adequate compensation at the time of the taking.
House Joint Resolution 14 (81R) “Just” Compensation for Eminent Domain Takings
House Joint Resolution 14 proposes an amendment to the Texas Constitution to clarify the purposes for which a person’s property may be taken by eminent domain.
Currently, Article I, Section 17 of the Texas Constitution states that no person’s property shall be taken "without adequate compensation being made, unless by the consent of such person." HJR 14 requires that adequate "and just" compensation be made, and stipulates that a taking of private property must be:
Necessary for the possession, occupation, and enjoyment of the property by a common carrier, by an entity providing utility service, by the public at large, by the State, or by a political subdivision of the State.
Key point: HJR 14 is an essential private property rights reform that will protect property owners from spurious eminent domain takings that are not necessary for the provision of vital public services. The proposed amendment also sets a higher standard for compensation to ensure that when private property is taken, private property owners are fairly recompensed.
