Eminent Domain

By Terri Hall l June 13, 2011

Since the egregious U.S. Supreme Court Kelo vs. City of New London ruling of 2005, Americans have turned to their state legislatures to remedy the practice of government abuse of private property rights for private gain, especially for economic development purposes. We have no real property rights if the federal, state and local government can take our land using its coercive eminent domain powers and then hand it over to another private party for a private benefit. The question is: what defines eminent domain ‘reform’?

A broad coalition of organizations and landowners from across Texas and the United States formed a group, Property Rights Coalition of Texas (PRCT), including TURF, Americans for Tax Reform, Property Rights Alliance, and Competitive Enterprise Institute, calling on Texas lawmakers to fix a bill some legislators claimed was eminent domain ‘reform.’ PRCT wanted lawmakers to include strong language that would define critical terms and protect landowners from wrongful takings, not merely grant greater compensation on the remedy side. Here’s why it didn’t happen.

The bill’s author, Senator Craig Estes, called it a carefully brokered deal with the special interests, brokered behind closed doors before the legislative session even started, and Texas property owners weren’t invited. The bill did NOTHING to protect landowners from having their land taken and handed over to another private party in the name of a laundry list of alleged ‘public uses’ (including libraries and museums and any related facility which could mean anything: a shopping mall, a restaurant, a condo — anything), leaving Texans unprotected from Kelo-style eminent domain abuses.

In a February 6 article in the Ft. Worth Star-Telegram, Estes went on to say that he wouldn’t accept ANY amendments to the backroom deal, “I don’t care if your amendment turns lead into gold. It’s not going to happen if I can help it.” For the most part, he got his wish. The bill, SB 18, was slightly improved in the House changing ‘public purpose’ to the stronger ‘public use,’ language but rejecting the stricter ‘public necessity’ language.

One of the bill’s gaping loopholes revolved around the so-called buyback provision that would allow the original landowner to buyback the property in ten years time, if the governmental entity hadn’t used it by then. An amendment offered by good guy (in this case gal) Rep. Lois Kolkhorst to tighten up the buyback language to prohibit an entity from taking a person’s land for one purpose and then switching it over to another purpose (effectively gutting the intent of the buyback provision) passed the Texas House, but then got stripped in conference committee.

SB 18 also fails to protect property owners from eminent domain for economic development (Kelo) and blight, and that’s by design based on what the Legislature had in store later, which was a major bill to spread the anti-property rights cancer of “public private partnerships” from just roads to virtually every type of public infrastructure.

“SB 18 would favor utility companies, the oil and gas industry, real estate developers and even private toll road investors before it ever benefits the citizens and landowners of Texas,” said Melissa Cubria, Advocate, Texas Public Interest Research Group and co-founder of PRCT. “It will open the floodgates for corporations to take private property from Texans for their own gain.”

SB 18 does not define essential terms like “bonafide offer” and “private benefit” sufficiently, forcing landowners into lengthy legal battles up against well-financed government entities or other powerful special interests like oil and gas companies, famous for abusing landowners with the threat of eminent domain.

Cubria notes, “Under this law, private companies can take a person’s private property, claim they’re doing so in the name of public use and then build a golf course or swimming pool on the land. Meanwhile property owners will have to hire lawyers and pay thousands of dollars in legal fees to defend their rights — but the legalese of the bill would make that fight nearly impossible to win.”

Texans have been sold-out while the mainstream media, politicians, and the special interests involved in brokering the deal, like the Texas Farm Bureau, touted the bill as a victory for property rights. Far from it!

Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of eight turned citizen activist. Ms. Hall is also a contributor to

SFPPR News & Analysis.