What is the Right to Eminent Domain in Texas?
Eminent domain is a power the government has to seize private land for public use. The Fifth Amendment to the U.S. Constitution, specifically the “Taking Clause,” defines the power and its limitations. It prohibits the taking of private land “without just compensation.” Furthermore, the Fourteenth Amendment applies this power to state and local governments, including Texas. The Arlington eminent domain lawyers at The Queenan Law Firm explain how eminent domain works and what your rights are if the government tries to take part of your property.
Taking Private Property Under Eminent Domain in Texas
The Taking Clause does not grant the United States government or the State of Texas an absolute right to take private land. The amendment instead limits the government’s power by requiring that seizure of any private property must be for “public use” and that the landowner must be adequately compensated.
When Texas exercises the power of eminent domain, it is known as “condemnation.” Additionally, when private land is acquired through the authority of eminent domain, it is known as a “taking.” There are three types of takings in Texas:
- A complete taking occurs when your entire property is purchased by the state.
- Partial taking is when only a part of your land is taken.
- Temporary taking is the taking of your property for a defined period of time.
Taking can include more than just seizing private property. When Texas’ actions affect the value or enjoyment of your land in some way by rezoning the property or impacting the way the property can be used, the State is exercising its eminent domain authority and must compensate the landowner appropriately.
How Eminent Domain Works in Texas
Chapter 21 of the Texas Property Code outlines the condemnation process where private land is taken through eminent domain. If Texas or a local city or municipal government wants to acquire private property, it must follow specific steps.
First, before beginning the official legal condemnation proceedings, Texas must make a good faith offer to purchase the property. This offer must include an appraisal of the land’s value by a certified appraiser. A Texas landowner is entitled to legal representation during this negotiation and has the authority to hire their own appraiser. If the parties can agree to purchase price, the property is transferred like in any other real estate transaction.
If the property owner does not agree with the state’s offer, then the formal condemnation process will begin. Once the legal complaint is filed, the court will appoint three local landowners as special commissioners to review evidence and hear arguments regarding the fair market value of the land. At this time, private property owners should retain the services of our experienced eminent domain attorneys.
During this hearing, both sides will usually present expert testimony to establish the fair market value of the property or the devaluation of the property caused by the government’s actions. It is important to note that the special commissioners will only determine the value of the property and do not have the authority to make a judgment on the legality of the taking itself.
If either party is unsatisfied with the special commissioners’ findings, they can appeal the decision and request a trial. At trial, the landowner is also entitled to challenge the legality of the eminent domain taking. There are a few grounds under which you can challenge the taking of private property in Texas:
- The condemning entity is not the government or a private company working with government authorization.
- The purpose of the taking is not for “public use.”
- The taking is unnecessary or excessive for the intended purpose.
Eminent Domain “Public Use” Restrictions in Texas
To take private property through eminent domain, the state will need to show that the taken land will be used for “public use.” This means that the seized land must benefit the general public. This can include a wide variety of purposes, including the following:
- Infrastructure projects to build highways, roads, bridges, and railroads
- Building municipal or government buildings, such as courts, hospitals, or post offices
- Running utility lines, including water or gas lines or electrical cables
- The creation or expansion of national and public parks
In 2005, the U.S. Supreme Court expanded the government’s power of eminent domain in their Kelo v. New London decision. This controversial ruling recognized the government’s authority to take private land for economic development. Under this decision, local and state governments have been allowed to take private property for large commercial projects, including sports stadiums and shopping centers. In response to the advocacy of private property rights groups, the Texas Legislature passed laws limiting the use of eminent domain for private commercial projects. In Texas, if the primary purpose of seizing private property is the economic benefit of a private company or individual, the condemnation will be prohibited.
Call Our Arlington, Texas Eminent Domain Attorney for a Free Consultation
The statutes, regulations, and rules related to eminent domain and condemnation are complicated. If your property is in the process of being taken or if you have questions concerning eminent domain, contact our experienced Arlington, TX business litigation attorneys. Call The Queenan Law Firm, P.C. to learn more about our services and how we can help you at (817) 476-1797 to schedule a free consultation.