Texas Eminent Domain Reform Weakened Minutes Before Passage

J. Justin Wilson
J. Justin Wilson · June 1, 2009

Austin, Tx.—An amendment to the Texas Bill of Rights that was supposed to stop governments from using eminent domain for private redevelopment was dramatically weakened minutes before it passed out of its conference committee last night, according to the Institute for Justice Texas Chapter, which has worked on eminent domain reform efforts at the Legislature all session.  House Joint Resolution 14, which emerged as the only remaining vehicle for reform this session, was heavily revised by the joint House and Senate committee, which crafted the final language.

HJR 14 began its life as the strongest constitutional amendment proposed this session, but the final version presents a troubling proposition to voters in November.  HJR 14 originally passed the House 144-0 on May 11.  The Senate substituted its own version, which passed the Senate unanimously on May 26.  Differences between the two bills set up a conference committee showdown that raged all weekend.

A last-minute change allows the state to give any entity—including private entities—the power of eminent domain.  “This was a very radical move,” said Matt Miller, executive director of IJ-TX.  “It’s one thing to allow a power company or railroad to use eminent domain.  Utilities and common carriers have long had this power because the things they build are public necessities.  If this amendment passes, anyone can come to the legislature and ask for the power to take their neighbor’s land.  As the last-minute maneuvering on HJR 14 itself shows, lots of mischief can occur before anyone realizes what has happened.

“HJR 14 provides absolutely no guarantees when it comes to addressing the problem of government taking property through eminent domain for private redevelopment projects,” said Miller.  “In addition to the problem of giving eminent domain authority to private parties, the final language is far too vague.  If it passes in November, we hope courts will interpret it in a way that is consistent with the legislature’s intent—to make sure that no home or business owner ever loses their property for a shopping mall, condominium or other private development project.  But it is going to take years of litigation before we can be confident that this language actually protects property owners.”

One positive aspect of HJR 14 is that is closes a loophole that had allowed governments to take vast areas of well-maintained land based on “blight” by using the bogus argument that the taking is necessary because surrounding parcels are blighted.  HJR 14 only allows a government to condemn for blight if the actual parcel being condemned is itself blighted.  This prevents the use of blight as a carte blanche excuse to take entire areas for redevelopment.

Eminent domain reform has proven very popular with voters.  In an August 2008 Associated Press/National Constitution Center poll, 87 percent of respondents said government should not have the power of eminent domain for redevelopment and 60 percent said they were opposed to the use of eminent domain for redevelopment even with fair market price for the property seized.  Seventy-five percent of those surveyed opposed government taking private property and handing it over to a developer, and 88 percent of respondents said property rights are just as important as freedom of speech and religion.

Texas has seen its share of Kelo-style takings.  An entire neighborhood in Hurst (a suburb of Fort Worth) was wiped out in the late 1990s to make way for the expansion of North East Mall.  In Freeport, condemnation proceedings were instituted against a family owned shrimping business so that a Dallas developer could build a luxury marina.  And in Arlington, homes were condemned in 2003 so that the new Dallas Cowboys Stadium could be built.

“We’ll have to wait and see whether this amendment stops the next North East Mall, Freeport Marina or Jerry Jones Stadium,” said Miller.  “It was certainly a lot stronger in the way it passed the House on May 11.  The new language allowing any private entity to be given the power of eminent domain will unquestionably be used to harm home and business owners in this state.  That massive loophole, coupled with vagueness problems elsewhere in the bill, should give any voter pause on November 3.”

Wesley Hottot, a staff attorney at IJ-TX, said, “Texans have been demanding real eminent domain reform for years.  This is just not good enough.  It would be better to go back to the drawing board and start over.”