Attorney Trey Wilson - RL Wilson Law

08 June 2009

Farm and ranch groups want special session to toughen eminent domain law

Measure passed by lawmakers calls for election to decide whether to restrict land seizure for economic development
LUBBOCK — Texas farm and ranch groups are glad lawmakers have taken steps to revisit eminent domain law but say it's "nowhere near" what's needed in a state where most land is privately held.

Texas Farm Bureau spokesman Gene Hall said that if voters approve a constitutional amendment in November, it would bring "improved but still bad eminent domain law" to the state.

"It's less than half a loaf," he said, describing the bill that emerged from the recently completed session. "The fight goes on."

A measure approved by lawmakers — House Joint Resolution 18 — puts a constitutional amendment on November's ballot that would prohibit the government from taking private property exclusively for economic development.

The move, negotiated by House and Senate lawmakers, addresses a 2005 Supreme Court decision that gave New Haven, Conn., the right to take private property and turn it over to private developers for retail development.

The Institute for Justice, which represented the property owner in the Connecticut case, Kelo et al v. City of New London, has called the amendment "dangerous" and said it still would allow governments to take land for economic development. The group says eminent domain should only be allowed for public-use projects such as a new courthouse or library, and it supports the House version of the amendment, which it says has stronger protections for property owners.

The proposed amendment would specify what qualifies for eminent domain projects, but allow exceptions with the support of two-thirds of each legislative chamber.

Together with Texas cattle industry groups, the Farm Bureau is hoping that Gov. Rick Perry will call a special session and that eminent domain will be on the list of items to be discussed.

Perry has not said whether he intends to call a special session.

If he does, the additional protections for private property owners that were part of SB18 — a bill that died in the Legislature — should be taken up, said officials with the Farm Bureau, Texas Cattle Feeders Association and the Texas and Southwestern Cattle Raisers Association. Those provisions include offers that represent fair market value, compensation to landowners for diminished access to their property and the right to repurchase the land at the same price for which it was sold if nothing is done with it after 10 years.

Texas leads the nation in private property ownership, having three times more than any other state.

Perry and U.S. Sen. Kay Bailey Hutchison have both indicated that eminent domain probably will be a campaign issue in their 2010 Republican primary.

A spokesman for Sen. Craig Estes, R-Wichita Falls, the author of SB18, said the lawmaker was "very disappointed" that the bill did not survive. But the issue is far from gone, spokesman Jody Withers said.

"I think there's a general agreement that the provisions ... are still needed," he said.

A spokesman for a group outside the agriculture industry that is pushing eminent domain reform came away from the legislative session less distressed than those tied directly to the industry.

"Property rights are very important and always need to be addressed, but I think we've made great progress here, and I don't see an urgency to deal with the issue now that HRJ18 passed," said Bill Peacock, director of the Center for Economic Freedom at the Austin-based Texas Public Policy Foundation.

If Perry doesn't call a special session, projects will go forward quickly while eminent domain restrictions remain the same, said Kirby Brown, executive vice president of the Texas Wildlife Association, a nonprofit that works to conserve, manage and enhance wildlife and its habitat on private land.

"We do expect them to do that," he said. "I think it would be naive of anyone not to fast track projects and use the current eminent domain process to avoid what SB18 would have protected landowners from. I'm not optimistic."


Trey Wilson --Named By Scene in SA Magazine As One of San Antonio's Best Real Estate Litigation Attorneys -- September 2008 -- As voted on by peers