Land ownership in Texas is a source of great pride. As a property owner, you enjoy several rights, and you can decide what you want to do with your land (for the most part). For instance, if you purchase a piece of property, you may decide to build the dream house you have always wanted, or you may install a pool to keep you and your family cool and refreshed during the sweltering summer heat. While Texas landowners can and do enjoy several legal protections, there are circumstances in which a government entity may attempt to invoke its eminent domain authority. Eminent domain is a Constitutional right provided to certain entities that allows them to seize private property to use in projects that benefit the public in some way. The condemning authority must provide the landowner with “just” compensation in exchange for their land. Unfortunately, many Texas property owners do not understand their rights when it comes to eminent domain and condemnation matters, leaving them at the mercy of these larger entities that often attempt to compensate them as little as possible. This post will provide an overview of eminent domain and condemnation laws in Texas and explore times in which a government entity may choose to invoke its eminent domain power. We will also identify some of the strategies that property owners can use to secure a fair and favorable outcome.
Defining Eminent Domain in Texas
Eminent domain, also sometimes referred to as “a taking,” is the “power of the government or a private entity acting upon power granted by the government to take private property for public use.” Both the United States and the Texas Constitutions set forth the power of eminent domain. It’s important to note that the legal definition of eminent domain also “prohibits the taking, damaging, or destruction of property for public use without adequate compensation being made.” Essentially, eminent domain power seeks to limit potential abuses by government entities in taking land from private property owners without giving them sufficient compensation. Texas law considers the following three elements when determining whether eminent domain authority is authorized.
The Condemnor Must Obtain Authorization to Exercise Eminent Domain
First, Texas courts must determine whether an entity actually has the legal authority to exercise eminent domain power. Several governmental entities inherently enjoy eminent domain power, such as federal, state, or city departments of transportation. If an entity wishes to exercise eminent domain power, it may petition the Texas Legislature for this right. As of 2010, the Legislature has the right to grant eminent domain power only if two-thirds of both houses vote to approve the petition. For instance, gas and electric corporations, groundwater conservation districts, and some common carrier pipelines have all sought and obtained eminent domain power.
The Proposed Project Must Be For Public Use
Another criterion for exercising eminent domain authority is that the entity must demonstrate that the proposed project will benefit the public. Projects that generally meet this criterion include transportation projects (i.e., highways, bridges, railroads, airports, etc.), utility projects, oil and gas pipelines, public schools, libraries, and public parks. Texas law clarifies that “public use” does not apply to the taking of property for transfer to a private party for the primary purpose of economic development or enhancement of tax revenues.
The Affected Landowner Must Receive Adequate Compensation
Although a landowner may not be able to stop an eminent domain or condemnation project, the property owner has the right to obtain adequate compensation from the condemning authority. The term “adequate” leaves room for interpretation, so Texas uses a few elements to calculate the amount of compensation that is fair for the property owner: The market value of the property; the highest and best use of the property; moving or relocating expenses; remainder damages; and various other economic considerations related to this process.
When is Eminent Domain Justified in Texas?
Even though eminent domain is a Constitutional right enjoyed by many governmental and other qualifying entities, the application of this principle may not always seem justified. It can be difficult for someone affected by a condemnation action to see this transaction as ethical, as it strips them of their land and provides them a finite amount of compensation in return. Some may even question the entire principle of an individual’s right to own property, thereby questioning the forced sale of land from an individual to a government entity. Additionally, the term “public use” asks us to weigh the benefits of giving up one person’s land for the good of the community. For instance, is it more ethical for a piece of land to support the construction of a public library, which fosters literacy and the pursuit of knowledge within the community, or to remain under the control of a single person? Many Texas property owners do not think of these ethical questions until they find themselves on the receiving end of a condemnation demand letter.
What to Do When Facing Condemnation in Texas
As soon as you learn of a public construction project in your community, you should reach out to a dedicated and knowledgeable condemnation attorney to discuss your options. Condemnation offer letters are nearly always worded in such a way that compels the recipient to assume that they have no rights or say in the matter. However, it’s essential to understand that you have many and substantial legal rights during the condemnation process. Your attorney can work with you to assess the specifics of your situation and help you identify the most strategic path forward. For example, you may hire independent appraisers to negotiate a more fair and equitable settlement offer or even question the condemnor’s authority to exercise their eminent domain power in the first place. Whatever the details of your situation may be, you can trust that your attorney will work hard to help you secure the best possible outcome.
If you are struggling with an eminent domain or condemnation matter, the dedicated and knowledgeable attorneys at Sewell Sewell Beard are here to help. We’ve been doing this for 38 years. Call our Texas office at (972) 777-5390 or our Alabama office at (205) 544-2350 today to learn more.
