TX Eminent Domain Explained
Few issues evoke such strong opposition as the taking of private land through eminent domain for a public use. When it comes to eminent domain, the government is playing in their arena; they do this every day. They know what the rules are, they know how the rules affect them and they know how the rules affect you. Make sure that you become informed so that you know what you can and cannot do.
Is the government taking your land? Your initial question might be- can I stop them from taking my property? In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain and what you’re entitled to receive, or continue browsing to learn about the eminent domain process and laws that are specific to Texas.
We are a nationwide eminent domain law firm that only represents property owners, never the government or condemning authority. We have several of-counsel attorneys located in Austin and Dallas who assist us on cases throughout the state. We have experience representing land owners against the Texas Department of Transportation, and we have assisted landowners where pipeline easements were acquired. Learn more about your rights in a pipeline easement case.
Our attorneys have the experience necessary to identify damages that lead to a higher amount of compensation, and we can effectively interface with the condemning authority and work the legal system to help you obtain just compensation. Also, we’re trial lawyers, so we won’t hesitate to take your case to trial if negotiations cannot be reached. Continue reading to learn more about the eminent domain process in Texas, your rights as a property owner and hiring an attorney.
Texas Eminent Domain Process
In the state of Texas, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Texas eminent domain process.
Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.
The majority of eminent domain cases in Texas meet the requirements for public use and necessity. Examples of cases that meet this criteria are the acquisition of private property for a road expansion project; the acquisition of property for a school expansion project or installation of new sewer lines.
If the taking of your property meets the requirements for public use and necessity, then continue reading to learn more about the eminent domain process in Texas. Please note there are extended explanations for all of the numbered sections in the flowchart. We will be adding additional information on each item in the flow chart in the near future. Please be aware that the flow chart is simply an overview of the process and should not be used as a tool to take matters into your own hands.
1. Government Announces Project and Properties Affected
Typically during project development, the condemning authority (whether that agency is the Department of Transportation, or a City/County Planning Division, etc.) will hold public meetings to inform the public of the upcoming project and how this project will affect private property.
2. Property Owner Hires an Attorney
Depending upon the complexity of the case and the amount of additional damages done to the property, it may be necessary to allow condemnation to occur in order for the property owner to receive just compensation. If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim.
3. Government Inspects and Values Property
Before the condemning authority makes an offer, they must determine the value of the property being taken, and all damages associated with the taking. This valuation is determined by an appraiser, and is then reviewed by the condemning authority before an offer is made. These appraisers often have long-standing relationships with the government, and their appraisals may contain errors such as using incorrect comparables, or they may not value your property at its “highest and best use”. Frequently, they ignore severance issues or dramatically understate their significance and impact.
4. Government Makes Offer to Property Owner
The condemning authority must provide in writing to the property owner no later than seven days before making a final offer, the landowner’s bill of rights statement. Read more about the Texas landowner’s bill of rights.The condemning authority must disclose at the time an offer is made, any and all existing appraisal reports produced or acquired by the governmental entity relating to the owner’s property and used in determining the final valuation offer.(Texas Stat. §21.0111(a))
5. Attorney Evaluates Offer
After the condemning authority makes an offer, the property owner’s attorney will evaluate the appraisal and offer to determine if it represents just compensation. If the attorney finds errors in the condemning authority’s valuation, then they will determine how best to proceed.
6. Determine Negotiation Strategy
The attorney will need to assess all damages that were not included in the condemning authority’s valuation and determine the full amount of compensation owed to the property owner. The attorney will then determine how best to present this information to the condemning authority during the negotiation phase.
7. Select Appraiser to Determine True Property Value
In many eminent domain cases, a second appraisal must be conducted on the property in order to show the full compliment of damages, including those missed by the condemning authority’s appraiser. This appraisal is submitted as evidence supporting the property owner’s claim for additional compensation.A property owner must disclose to the condemning authority any and all appraisal reports produced or acquired by the property owner relating specifically to the owner’s property and used in determining the owner’s opinion of value. This must take place within 10 days of receipt of appraisal reports but no later than 10 days prior to the special commissioner’s hearing. (Texas Stat. §21.0111(b)It is highly recommended to consult with an eminent domain attorney prior to obtaining a second appraisal. Any and all appraisals done on the property to determine the owner’s opinion of the value must be submitted to the condemning authority. If you hire an appraiser on your own who is not experienced in valuing property in eminent domain cases, you may end up with an appraisal that contains errors that will be used against you in court. Hiring a wrong appraiser can seriously jeopardize a good claim. An eminent domain attorney will thoroughly review the initial appraisal and determine its strengths and weaknesses. Based on this information, the attorney will indicate a selection for the most qualified appraiser to value the property in question and determine the damages to any remaining parcel.
Visit our Resources page, under Why Act Now to read an example of how hiring the wrong appraiser can hurt your claim. Make sure you consult with an eminent domain attorney before hiring an appraiser on your own.
8. Property Owner Settles with Government
If the property owner is satisfied with the offer, they can sign the final settlement papers, therefore waiving their right to pursue additional damages. At this point in time, the case is complete.
9. Deed is Transferred
Once the final settlement papers are executed by the property owner, the deed is transferred to the condemning authority. It is at this time that ownership is transferred from the property owner to the condemning authority.
10. Owner’s Case is Done
The owner is paid in full, the condemning authority owns the property, and the owner’s case is completely done. The property owner can no longer file a claim to challenge the taking or to receive additional compensation.
11. Property Owner Does Not Settle With the Government
If, after negotiations, the property owner is not satisfied with the amount offered by the condemning authority, they can refuse the offer and allow condemnation to occur.
12. Government Initiates Eminent Domain Proceeding
If the condemning authority can not reach a settlement agreement with the property owner, they may begin the condemnation proceedings by filing a petition in the proper court. (Texas Stat. §21.012(a)) District courts and county courts at law have concurrent jurisdiction in eminent domain cases. A county court has no jurisdiction in eminent domain cases (Texas Stat. §21.001)
13. Commissioners Appointed
The judge in the court where the condemnation petition was filed or to which an eminent domain case is assigned will appoint three disinterested landowners who reside in the county as special commissioners to assess the damages of the owner’s property that is being condemned. (Texas Stat. §21.014)
14. Commissioners Hearing
The special commissioners will schedule a hearing where each party can present their evidence supporting their opinion on the amount of damages and just compensation. (Texas Stat. §21.015)As the basis for assessing actual damages to a property owner from a condemnation, the special commissioners will admit evidence on: 1. the value of the property begin condemned, 2. the injury to the property owner, 3. the benefit to the property owner’s remaining property; and 4. the use of the property for the purpose of the condemnation. (Texas Stat. §21.041). The special commissioners will assess damages in the proceeding according to the evidence presented at the hearing. (Texas Stat. §21.042)
15. Government Pays or Deposits Award, Takes Possession
After the special commissioners have made an award in the eminent domain proceeding, the condemning authority can usually take possession of the property, provided the condemning authority pays the property owner the amount of damages and costs awarded by the special commissioners or deposits that amount of money with the court.(Texas Stat. §21.021(a)(1)) If the money is deposited with the court, the property owner can petition the court to withdrawal the money. Prior to withdrawing the money, they must file a tax certificate by the tax collector for each taxable parcel on the condemned property showing that there are no delinquent taxes, penalties, interest, or costs owing on the condemned property or on any larger tract of which the condemned property forms a part.(Texas Stat. §21.0211)At the time of acquisition through eminent domain, the governmental entity will provide to the property owner in writing that the owner and the owner’s heirs are entitled to repurchase the property if the public use for which the property was acquired through eminent domain is canceled before the 10th anniversary of the date of acquisition. The repurchase price is the fair market value of the property at the time the public use was canceled. (Texas Stat. §21.0123).
16. Owner Accepts Commissioners Award as Final
If the owner is satisfied with the amount of just compensation determined by the special commissioners, they may sign off on the award, therefore waiving their right to pursue additional just compensation and their case is done.
17. Owner Appeals Commissioners Award
If the property owner is not satisfied with the amount of just compensation as determined by the special commissioners, they can appeal this award by filing a written statement of the objections and their grounds with the court that has jurisdiction of the proceeding. The statement must be filed on or before the first Monday following the 20th day after the commissioners file their finding with the court. (Texas Stat. §21.018(a))
18. Trial on Compensation
If the objection is filed, a trial will be conducted in the same manner as other civil cases to determine the amount of damages and just compensation. (Texas Stat. §21.018(b))
The eminent domain process in the state of Texas is complicated, and if you are undergoing eminent domain and want to make sure you are justly compensated, you should speak to an eminent domain attorney. Speaking to an eminent domain attorney regarding your case will keep you informed of your rights, the eminent domain process, and whether or not your attorney’s fees will be paid for by the state of Texas.
Texas Property Rights
The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.
Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership. The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity. While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.
The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws. The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. The Castle Coalition gave a letter grade of a “B-” to the state of Texas for property rights.
In 2007 Senate Bill 7 was passed in the state of Texas, which stated that the government or private entity cannot take private property through eminent domain if the taking is for a private benefit, or if the taking is for a public use that is pretext to a private benefit. It also prevents the use of eminent domain if the taking is for economic development, unless the development is for the remediation of blight.
While these changes certainly help curb eminent domain abuse and strengthen property rights, this bill provides exceptions to certain agencies and projects such as port authorities, utility companies, public buildings, transportation projects, ect. This bill failed to prevent the use of eminent domain for the construction of the new Dallas Cowboy’s stadium. In fact, the bill includes exceptions for “a sports and community venue project approved by voters at an election held on or before December 1, 2005.” Additionally, the bill includes exceptions for ‘blight removal’, which is consistent with many states around the country and is seen as a legal way for municipalities to skirt around eminent domain restrictions for economic development.
Then again in 2007, House Bill 1495 was passed, which requires the state attorney general to summarize current eminent domain law into a “Landowner’s Bill of Rights”. The bill of rights in turn provides detailed information on homeowner’s rights and also includes information meant to educate the public on the procedure, compensation packages and laws of notice concerning eminent domain. The downfall to the bill of rights is that it serves as an important educational tool, however it does not provide protection for property owners.
In 2009, the state legislature passed Proposition 11 (also known as House Joint Resolution 14-1) which states that the taking of private property for public use under eminent domain may only be authorized if it is for the ownership, use and enjoyment of the public at large. The bill also assists property owners by prohibiting private property transfers if the main purpose is for economic development or to increase tax revenues, and also limits the legislature’s authority to grant the power of eminent domain in the future unless it is approved by a 2/3 vote of all members elected to each house. It also provides greater protection to property owners by forcing municipalities to evaluate each parcel and property individually before designating it as ‘blighted’. This will prevent large scale redevelopment/economic development projects from occurring in areas where only a portion of the property is blighted.
Proposition 11 was approved as a constitutional amendment by voters on November 3, 2009.
Several bills related to limiting eminent domain authority have been filed since the commencement of the 2011 legislative session. Rep. Charlie Geren recently filed House Bill 279, and Rep. Ralph Sheffield filed House Bill 188 directed at amending Section 2206.001(b) of the government code, to include language restricting the use of eminent domain if the taking is not necessary for a public use. Currently, the constitutional ban on takings not necessary to serve a public use is absent from Texas statute.
Hiring an Eminent Domain Attorney in Texas
As you are likely aware, taking matters into your own hands when it comes to eminent domain is highly discouraged. You could ruin a good claim by attempting to negotiate with the condemning authority without knowing the full extent of your damages. Or, you could settle for much less than what you are entitled to receive. Don’t be surprised if you’re unable to assess the damages in your case; no one expects you to be an expert on land valuation in eminent domain cases. In fact, the government is counting on this.
Most eminent domain attorneys work on a contingent fee basis. With this fee structure, the attorney assumes the risk for earning a fee. Property owners are generally only responsible for paying costs, with the primary cost being the appraiser who values the property. Because of the contingent fee structure, most eminent domain attorneys will conduct a free case evaluation for property owners prior to recommending representation.
You are entitled to recover reasonable attorney fees and costs in eminent domain cases if the condemning authority abandons the proceeding, or if the court rules that the property cannot be acquired through eminent domain (Tex. Prop. 21.019(c) and 21.0195(c)).
If you’re affected by eminent domain, you should obtain a consultation so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation.
Very few attorneys can claim expertise in the area of eminent domain law. To determine if you have a case, make sure you consult with an eminent domain trial attorney who can effectively identify damages and select the necessary experts. Your attorney should also be able to interface with the condemning authority and be willing to take your case to trial if negotiations can not be reached. Contact us for a free case evaluation.
Proposition 11 will significantly help homeowners and will provide a concrete procedure in which a governing authority must go through in order to pursue eminent domain. The current rating for the state of Texas stands because of the exclusions of certain condemning authorities in Senate Bill 7, and because House Bill 1495 merely provides an educational resource (not protection) for property owners.
Questions about Texas Eminent Domain Law or if you’re interested in a free consultation, contact us today! If you want to call us, our main number is 866-339-7242. We look forward to hearing from you.