By Gene Hall
The long battle to achieve meaningful protection of private property rights in Texas with reform of eminent domain laws seems to be nearing a conclusion. This change in the Texas property code will be important to every property owner in the state.
When Governor Rick Perry designated the issue as an emergency item for the Texas Legislature on Jan. 11, chances for speedy approval of the legislation were greatly enhanced. In the 2009 Legislature, the eminent domain reform bill—Senate Bill 18—had cleared the Senate and was awaiting House action, where near unanimous support was expected. Instead, the controversy over voter ID bogged down the House and eminent domain reform joined other important bills that did not get a vote. Similar issues, like the budget and redistricting, could have the same result this session.
Now, with the emergency designation, positive changes for eminent domain should be resolved early in the session, as it deserves to be. Once again, the bill is labeled Senate Bill 18 by Senators Craig Estes and Robert Duncan.
Farmers, ranchers, small businesses and homeowners all have a stake in this. If you own property, then it might be taken from you for the public good. This is well established in law and no one is advocating repeal of eminent domain. It’s a necessary evil in our society. The taking of a farm, home or business that has been in a family for generations is always sad and sometimes tragic. Reforms have focused on the issue of compensation where current Texas law falls far short of other states.
It might surprise you to learn that a good faith offer to begin eminent domain proceedings is not required by the Texas property code. Though the law mentions “market value,” that value is whatever the taking entity says it is. Only the most stubborn property owners and those with deep pockets can afford to appeal the offer. When they do, they often win, but at great expense. Under Senate Bill 18, if the taking entity loses the appeal, they will be required to pay legal costs.
The issue of “diminished access” is also addressed in Senate Bill 18. Currently, if the taking of a portion of property restricts the access to the remaining property and lessens its value, those who take the property are not required to compensate for that lost value. Again, Senate Bill 18 clarifies that lost access requires fair compensation.
Other issues such as relocation expenses and an accounting of just which legal entities have the right of eminent domain are covered in Senate Bill 18. At present, a list of just who has this authority does not appear to exist. There are thousands of entities, ranging from governments to water districts to pipeline companies and many more.
Those previously victimized by this process have one complaint that is heard repeatedly: “We were told they are taking the land because they can.” Everyone knows they can, but eminent domain should be a last, carefully considered resort and property owners must be fairly compensated when these takings occur. When private property is taken for the public good, the public must assume the true cost.
The farmers and ranchers of Texas appreciate Governor Perry’s designation of eminent domain reform as an emergency item on the legislative agenda. When it is passed and signed into law, Texas will take its rightful place as one of the nation’s leading property rights states.