Your property and the government: Breaking down eminent domain in Texas

Thursday, February 08, 2018 12:53PM
What are the eminent domain rules you need to know if you're a landowner in Texas?


The phrase 'Eminent Domain' continues to come up in ongoing discussions in Texas about issues such as the border wall President Trump wants to build along the U.S.-Mexico border and the Texas Bullet Train, where some residents are worried about how the proposed route might affect their property.

So, what rights does a resident have? Here's a little more on how eminent domain works in Texas.

What's the law?

Eminent domain allows the government to take private land for public use. However, the Fifth Amendment limits that power by requiring the government to give that property owner just compensation.

The American Bar Association says that "just compensation" is determined by the fair market value of the property at the date of the taking.

The Texas Constitution says property can't be taken, damaged or destroyed without adequate compensation being made.

Texas uses a Broad Instruction Approach to determine valuation. This approach doesn't provide a lot of guidance on what compensation should be based on.

Eminent domain applies to local, state and federal governments.

What does public use mean?

Public use includes projects such as highways, bridges, railroads, commercial structures, schools, and more.

In Texas, increasing tax revenue and economic development cannot be the primary reasons the land is taken. There's an exception to the economic development rule; land can be taken for this purpose if it means alleviating harm to society that would otherwise exist because of the unsafe property. The land also can't benefit a private party.

What happens if the government deems a private property necessary for public use?

This is where a process called condemnation begins. Under Texas law, only a governmental or private entity is authorized to condemn and all or part of the property may be taken.

According to the Texas A&M University School of Law, there are three phases of the condemnation procedure.

1) Negotiation between condemnor and the property owner - "bona fide" offer must be made to the landowner along with a certified appraisal, both in writing

2) Special Commissioners' hearing - if an agreement isn't made on the property value, the condemnor can file a petition. Three commissioners are selected to determine the property value and damages.

3) Appeal through a civil condemnation suit - this is the next step if either party disagrees with the commissioners' decision. Each party is responsible for their own attorneys' fees.

What if the landowner isn't compensated?

Texas requires condemnors who withdraw from or abandon the condemnation process to pay the landowner's attorney, appraisal and engineering fees.

If a condemnor purchases the land but it's never used for a public purpose, Texas landowners can buy the land again after a 10-year waiting period.

You can find which entities have applied for or currently have eminent domain authority on the Texas Comptroller website.

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