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Texas Property Rights

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.  Stated below is the letter grade, as given by the Castle Coalition, along with a description of the changes that have occurred since Kelo v. City of New London.

Texas Castle Coalition letter grade of

Texas 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.

Summary

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.

Recent Updates

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.

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