TEXAS PROPERTY CAN ONLY BE OBTAINED THROUGH EMINENT DOMAIN FOR PUBLIC USES

In Texas, property may be taken only for a purpose or use that serves the general public. Texas law prohibits condemnation authorities from taking your property to “enhance tax revenues or foster economic development.”

Some common public use reasons for taking land through condemnation in Texas can include:

  • Transportation projects

  • Port authorities, navigational districts, or conservation or reclamation districts

  • Water supply, wastewater, flood control and drainage projects

  • Public buildings, hospitals and parks

  • Utility services

  • Common carrier pipelines or energy transporters

  • Sports and community venue projects approved by voters after Dec. 1, 2005

  • Underground storage operations

  • Waste disposal projects

  • Library, museum or related facilities and infrastructure

  • Elimination of urban blight

Although the above list contains some public uses, not all of these reasons for taking Texas property are public uses, and each situation is unique. Just because an entity with the power of eminent domain is attempting a project that falls under the list of public uses does not mean that the particular project is, in fact, a public use. Each case is fact specific and depends on the particular circumstances surrounding the project, its reasons for inception and other fact specific issues. These must all be analyzed to determine if a project is actually for a public use.

The federal government also uses eminent domain in the state of Texas to appropriate private property for use in national park or national defense projects, as well as for reasons of public safety, such as land contaminated by toxic substances.

WHAT ISN’T PUBLIC USE IN TEXAS

In 2005, the Texas State Legislature, in reaction to a controversial United States Supreme Court ruling expanding the definition of public use in eminent domain cases, passed a number of statutes that defined what public use isn’t.

These new statutes state that a governmental or private entity may not take private property through the use of eminent domain if the taking:

  • Confers a private benefit on a particular private party through the use of the property;

  • Is for a public use that is merely a pretext to confer a private benefit on a particular private party;

  • Is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society from slum or blighted areas under; or

  • Is not for a public use.

In some cases, defining what is and isn’t public use can be a challenge. Property owners who are unsure if their land is going to be used for a legitimate public use should seek the assistance of an experienced Texas property rights lawyer. If the court determines the condemning entity’s reasons for taking a Texas property do not meet the public use standard, then the condemnation proceeding may be dismissed.

  • In general, the federal, state, county and municipal governments, as well as water districts and school districts, have the authority to take land through eminent domain in Texas. Public utility companies have also been allowed to use eminent domain.

  • Generally, the process starts when an entity with eminent domain authority (the “Condemnor”) plans a public project and determines it need private land. The Condemnor is required to notify all property owners whose land will be taken and orders real estate appraisals. A land acquisition agent uses the appraisal amount to make an offer to purchase the property needed for the project.

    Read more about the condemnation process in Texas.

  • The short answer is — NO! Condemning authorities often use professional agents to obtain land for public projects. They will be looking to reach a low-ball deal with you before they have to file a condemnation case.

    If you do not reach an agreement, they will have to file a condemnation lawsuit to take your property rights. The presiding judge will convene what is called a Special Commissioners’ Hearing to hear evidence from both sides and determine what is fair and just compensation for the landowner’s property.

    Read more about what happens if you don’t accept the condemning authority’s final offer.

MAKE SURE YOUR RIGHTS ARE PROTECTED DURING THE TEXAS CONDEMNATION PROCESS

Texas property owners who find their land targeted for condemnation have many concerns. Are they being offered a fair price for your land? Is the entity seeking to obtain their land authorized to do so? Are the new owners really buying this land for public use?

What Are The Most Common Reasons To Take Texas Property Through Condemnation?

Property owners have many constitutional rights when their land is obtained by a state or federal entity using the power of eminent domain in Texas.

The constitutions of both the United States and the state of Texas give federal and state governments the power of eminent domain. According to Texas law, eminent domain is the legal authority that certain entities are granted which allows those entities to take private property for a public use. In Texas, these entities can include county and municipal governments, water districts and school districts. Public utilities may also be able to use private property to install and replace power lines, pipelines and other equipment.

However, the same constitutions that give the government the power of eminent domain also establish the rights of a property owner when their land is obtained through eminent domain. One of these rights is that the property owner must receive fair compensation for their land. Another is that the land can only be taken by an entity that has been authorized by the government to do so.