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A flurry of activity arose in the special session of the Texas Legislature in response to the controversial U.S. Supreme Court ruling in the Kelo et al v. City of New London case. The High Court's June 2005 decision essentially condoned governmental entities' use of eminent domain powers for economic development purposes. Within days, Texas Sen. Robert Deuell (R-Greenville) filed S.J.R. 10; Sen. Kyle Janek (R-Houston) filed S.B. 62 and S.J.R. 9; and State Rep. Frank Corte (R-San Antonio) filed H.J.R. 19, the companion. S.B. 7, sponsored by Janek, was the final bill, which passed both Houses Aug. 9.
Sen. Janek felt something had to be done because the U.S. Supreme Court ruling in the Kelo case left it up to individual states to define what is a "public use" when condemning private property.
"Texas has a long history of taking pride in landownership and the rights of landowners," said Janek. "The ruling by the court, combined with current state law, puts some homeowners at risk for having their property taken."
In S.B. 7, the legislature specifically prohibits condemning private property for the following purposes: 1) conferring a private benefit to a private party; 2) public use when it is merely a pretext to confer a private benefit to a private party; and 3) economic development, except if it a project to eliminate a slum or blighted area.
State Reps. Lois Kolkhorst and Glenn Hegar tacked on language (similar to that applicable to the Trans-Texas Corridor) to S.B. 7 on the House Floor that prohibits the Texas Department of Transportation from condemning property for gas stations and convenience stores, unless it is part of the development plan adopted by the local county commissioners court. S.B. 7 also included a provision for an interim study to review the condemnation process in Texas and how property owners are compensated. The Texas House showed strong support for the concept of replacement value to property owners when that topic came up. As a compromise with the Texas Senate, they agreed to include the issue in the interim study.
Texas Farm Bureau President Kenneth Dierschke applauded the Legislature's efforts, stating that recent action by the U.S. Supreme Court in the Kelo vs. New London case had placed property rights in "serious jeopardy."
"Without private property rights, agricultural producers cannot function," Dierschke said. "We view the right to own property and use it as a fundamental right, no less important than the other rights specified in the U.S. constitution."
The farm leader said the Legisla-ture's action does not interfere with the traditional use of eminent domain, the taking of land for public use, like roads, bridges and parks.
The House bill originally called for an amendment to the Texas Constitution to provide that a "public use" for which condemnation may be used does not include "economic development." But that didn't fly. In fact, it failed twice in the Texas Senate.
Although the interim study provided for in the bill will review landowner compensation, its primary focus will be language suitable for a constitutional amendment as a permanent fix.
"We would like to see a constitutional amendment to address this threat, but the adoption of a statute is an important step," Dierschke said, adding that Texas Farm Bureau would be involved in official efforts during the legislative interim to address the need for a constitutional amendment. "Make no mistake, we'll be pushing for protection in the Texas constitution during the next regular session in 2007."
The legislature has sent S.B. 7 to the desk of Governor Perry. The governor is expected to sign it.
