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October 25, 2006 (512) 463-0300

SENATE COMMITTEE LOOKS AT EMINENT DOMAIN LAW

The Joint Committee to Study the Power of Eminent Domain held a meeting today to consider how legislation passed in the Second Called Session of the 79th Legislature impacts the use of eminent domain to expropriate private property for public use. A 2005 decision by the U.S. Supreme court permitted the use of eminent domain for economic development. This decision prompted several states, including Texas, to pass laws prohibiting such use of eminent domain, except under some circumstances.

Jenifer Zeigler, an attorney with the Institute for Justice, said that Texas made good progress toward a fair eminent domain law with the passage of Senate Bill 7 in 2005, but that additional legislation is needed to better protect the rights of property owners. Because eminent domain expropriation is still permitted in Texas if the land is to be set aside for public use, Zeigler said that what is considered public use should be narrowly defined and enshrined in the state constitution. She said that constitutional definitions of public use, ownership, and occupation would solve a vast majority of all eminent domain issues in Texas courts.

Bill Peacock of the Texas Public Policy Foundation said the state should also forbid the use of eminent domain to transfer ownership from one private owner to another, except in cases where the transfer is clearly in the public interest. In addition, he said that the eminent domain process should be weighted in favor of the original property owner, rather than the condemner, and force the condemner to prove that the contemplative use is both public and necessary.

One problem with eminent domain procedure, said Peacock, is that the courts have been too liberal in interpreting what does and what does not constitute public use. Also, courts have ruled that the Legislature can decide what is public use, which Peacock said that this power has been extended to local governments, but should be outside their purview.

The committee also looked at fair compensation for owners who have lost land to eminent domain. Witnesses in favor of better compensation said that appraisals performed on behalf of governments are unfairly low, and that future revenues earned by the property after it has been converted to public use should factor into the government's offer.

Jay Doegey, city attorney for Arlington, said that the way his city, and most cities, operate eminent domain expropriation is deliberate and careful, and that the city exercises its authority only in cases of clear public use. He said that owners are adequately compensated for their land, and that current definitions for public use in statute are sufficient for ownership protection. Doegey said that Arlington officials were so concerned about the judicious exercise of city power, that they require a two-thirds supermajority to pass eminent domain issues.

The committee conclude its business today and stands adjourned subject to call of the chair.

Session video and all other webcast recordings can be accessed from the Senate website's audio and video archive pages.

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