Landowners in Texas may have heard the term “eminent domain” at some point, but many people are uncertain about what this actually means. The terms “eminent domain” and “condemnation” may appear to refer to the same concept—a governmental body lawfully seizing private property to convert it for public use—but there is a subtle distinction between these two terms. Eminent domain refers to a government’s power to seize private property in exchange for “just and fair” compensation, as long as the purpose of doing so benefits the public in some way. Condemnation refers to the process by which an entity assesses the property’s value, makes an offer to the landowner, and exercises its eminent domain rights. So, how does the government define “public use” when moving forward with the condemnation process in Texas? This post will explore the general process of condemnation, the circumstances in which a government may exercise eminent domain, and what property owners can do when faced with condemnation.
Understanding Eminent Domain in Texas
The United States and Texas Constitutions both recognize the power of eminent domain. Article I, Section 17 of the Texas Constitution states, “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made.” The text continues to specify that the taking, damage, or destruction of private property is lawful only if the future “use and enjoyment” of the property benefits the public. Essentially, Texas law recognizes three vital elements of eminent domain: (1) The actor must be a state or local entity authorized by Texas law to condemn private property; (2) The property must be taken for public use; and (3) The landowner must receive adequate compensation in exchange for the condemned property.
Entities With the Authority to Condemn Private Property
The power of eminent domain is an inherent power of the federal and state governments. But, that inherent power is limited by both the federal and state constitutions. All other entities must be granted the power of eminent domain by statute. That means either the US Congress or Texas Legislature must enact legislation expressly authorizing the entity to condemn real property. For example, the Texas Legislature has enacted laws expressly granting the power of eminent domain to certain private entities such as gas or electric utilities,, groundwater conservation districts, and carrier pipelines. Any entity wishing to initiate condemnation proceedings must be able to demonstrate its legal right to exercise eminent domain power. An entity that has not been granted the power of eminent domain has no right to condemn property in Texas. When faced with the threat of condemnation, the first thing to verify is whether the entity has been granted the power of eminent domain and, if so, what limitations exist on the exercise of that power.
Types of Property Subject to Condemnation
An entity exercising its eminent domain power may seize an amount of private property that is “reasonably necessary for public use.” This means that the condemning party may take some or all of a parcel of real property. These acquisitions are described as total takings or partial takings. Any and all legal interests in real property may be taken. Sometimes only an easement is taken from a landowner. That leaves the owner of the parcel with the obligation to pay property tax on land he or she can no longer use and enjoy. Other times an owner’s entire legal interest in a parcel is taken. That is referred to as a fee taking because the fee interest in the parcel is acquired by the condemning entity. . Properties that can be taken in exchange for payment of adequate compensation include land, surface or subsurface easements over or under land, improvements (i.e., barns, homes, crops, ponds,) and water rights. In general, the condemning authority may determine the location and amount of the property needed for its proposed public project. But the authority to do so is not unlimited and may be challenged by the owner in a condemnation proceeding.
What Constitutes Public Use in Texas?
Defining the term “public use” can be challenging, as the broad legal definition leaves room for judicial interpretation. Texas statutes allow an entity endowed with the power of eminent to take private property only for the use or enjoyment by the State for the public. In Texas, that includes some projects for the purpose of eliminating urban blight. A public use includes::
- Transportation projects — highways, railroads, airports
- Utility projects — oil and gas pipelines, water and sewer lines, electric lines
- Public structures — stadiums, jails, courthouses,
- Public welfare — schools, hospitals, parks, recreation areas, wastewater treatment facilities
- Water supply projects — drainage projects, water reservoirs
If you are concerned that a condemning entity is moving forward with a project that does not qualify as public use, or if you simply want to understand your rights as a Texas land owner, contact an experienced Texas condemnation attorney to discuss your situation.
Trusted Legal Guidance When You Need it Most
Receiving a letter notifying you of an authority’s intention to take your property in exchange for adequate compensation is stressful, to say the least. As soon as you think your property might be taken, contact an experienced condemnation attorney to discuss the situation. Your attorney will help you understand your legal rights during this process and can often obtain a significantly greater award of compensation. Often times parties exercising eminent domain power make lowball initial offers based on improper or incomplete appraisals of your property . It is essential to recognize your right to have your property appraised by an appraiser experienced in Texas condemnation law. That is the only way you will know the true amount of compensation to which you are entitled. Your attorney will help you locate such an appraiser. That’s why it’s important to contact an experienced condemnation attorney at the first hint of a condemnation of your land.
If you need help navigating a condemnation issue, the dedicated legal team at Sewell Sewell Beard LLC is here to assist you. Call our Texas office (972) 777-5390 or our Alabama office (205) 544-2350 today to learn more.
