Mike Goldman, 10 years ago
Mr. Dyer,
Thanks for this question.
The legal principle of eminent domain allows the state to take private property from its owners for “public use” as long as the owners are “justly compensated.” In its original meaning, “public use” was literal – the government had an option to seize private land, for example, to build roads, schools, or courthouses. In a series of Supreme Court decisions, however, culminating in Kelo v. New London, the U.S. Supreme Court has gradually expanded the definition of private use to give private entities the right to take the land of other private persons, against the will of the person from whom the land is seized, so long as the intended use is “public” and the former landholder is justly compensated. In the case of Kelo, the Court permitted the seizure of privately owned land from to be developed for private commercial use by private developers.
In the immediate aftermath of Kelo, the Texas Legislature started a major reform of the condemnation law to protect landowners in Texas against a Kelo-like taking. Senate Bill 62 was passed in a special session in 2005. It prohibited a taking of property if the taking would confer a benefit to another private party. The Legislature also put before the voters two constitutional amendments to protect property rights. Proposition 7 (HJR 30, 80R) allowed governmental entities that took property to sell the property back to its original owner. That amendment passed overwhelmingly, with over 80% of the vote. Subsequently, the Legislature put before the voters Proposition 11 (HJR 14-1, 81R) to ensure that property could only be taken for a public use. That, too, passed overwhelmingly with over 81% of the vote.
In addition to these protections, a major reform of the eminent domain laws was enacted by the passage of Senate Bill 18 (82R), which amended a number of different statutes. This reform legislation strengthened landowner rights and set out a process whereby landowners would receive more information and more time if any entity attempted to condemn a piece of property. Furthermore, the Landowner Bill of Rights was enacted to make sure that landowners received an explanation of their rights the first time any entity asserted that it had the power of eminent domain (prepared by the Office of the Attorney General as required by House Bill 1495, 80R).
Texas state law prevents some of the worst abuses allowed under Kelo – which is vital in a state where 95 percent of the land is in private hands. As the Attorney General’s office observed in 2008:
“Texas is a place where citizens – not the government – own the land. The distinction matters because private landownership lies at the heart of our democratic, free-market system. Recognizing this important principle, President William Howard Taft once observed, ‘Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution.’”
Do you think these protections are sufficient? What legislative changes, if any, do you believe should be made to existing law?
Mike Goldman
Policy Analyst, Texans for Greg Abbott
