Understanding the Condemnation Process in Texas

1 Understanding the Condemnation Process in Texas Judon Fambrough Senior Lecturer and Attorney at Law Revised July 2015. 2015 Real Estate Center. All rights reserved. Contents Legal Restraints on Public Constitutional Public Special Assessment Rules for Possible Water Use from Condemned The 80th Legislative The 82nd Legislative The 84th Legislative Due Post Condemnation Right to Deed Restrictions and When Confronted with Statutory Procedure for Condemning Water Statutory Procedure for Selecting Special Provisions of Easement Jurisdiction of Texas Steps in the Condemnation Summary The right of the federal government to exer- cise eminent domain within any state is not The

2 Appropriation of private property by the subject to control by the state legislature. It is government against the will of the owner subject only to the federal constitution and the sounds contrary to the policy of property rights statutes emanating from it. This report does not adopted in this country. However, it can happen include any discussion of the federal govern- legally through a Process known as condemna- ment, its agents or other entities delegated the tion. Many property owners are not aware of power to condemn land in Texas under federal their rights when faced with Condemnation and law.

3 Thus fail to act in their own best interests. The right of any entity, be it governmental This publication explains where the power to or nongovernmental, to exercise the power of condemn comes from, which entities have this eminent domain must be authorized by stat- power, what the Condemnation procedure is in ute. There can be no taking of private property Texas and how property rights are best protected. against the will of the owner without a legisla- It should be noted that the taking of property tive directive.

4 The myriad statutes on both the by way of Condemnation can sometimes be federal and Texas level delegating this power is averted or delayed. One way is to discover a pro- beyond the scope of this report. Regardless of cedural error; another is to enter an out-of-court the entity having the power to condemn, the settlement. Both alternatives, and more, will be prescribed procedure is somewhat similar. This discussed. report focuses on the Condemnation of pipeline The terms eminent domain and Condemnation and utility easements because of the quantity of often are used interchangeably, but they are not Texas land that will be exposed to this Process .

5 Synonymous. There is an important legal distinc- tion. Eminent domain is defined as the power of the sovereign (or government) to take private Legal Restraints property for a public use. Condemnation is the on Condemnation procedure by which the taking or appropriation occurs. Thus, the former is the power, the latter Condemnation is subject to four restraints: (1). is the Process . Only those entities on whom the public use, (2) public necessity, (3) just or ad- power has been conferred properly may put in equate compensations and (4) due Process .

6 Motion the procedure for condemning. The power of eminent domain in this country Public Use is a bit unusual in that it is inherent or implied. Public use is difficult to define. No hard and fast Neither the federal nor Texas Constitutions rule has been drafted for determining public use explicitly grant this power. Instead, the law in every instance. Instead, each case must be de- assumes or implies that the power exists in cided on its own merits and in light of the sur- the government whenever a public use will be rounding circumstances.

7 It is sufficient to say derived. that if there results to the public some definite By the same token, the exact procedure for right or use in business or undertaking to which Condemnation is not addressed by either consti- the condemned property is devoted, public use tution. Only certain limitations on the Process has been achieved. are enumerated. For instance, the federal con- After 2005, two new statutes provide that, A. stitution states that due Process must be governmental or private entity may not take pri- ensured and just compensation must be paid vate property through the use of eminent domain to the owner.

8 The Texas Constitution provides if the taking: . that only adequate compensation must be confers a private benefit on a particular pri- rendered. Due Process , as pronounced in the vate party through the use of the property, federal constitution, applies to all states under is for a public use that is merely a pretext the 14th Amendment of the Constitution. to confer a private benefit on a particular However, this constitutional guarantee does not private party, ensure the citizens of every state a particular form or method of Condemnation only that is for economic development purposes reasonable notice and reasonable opportunity to unless the economic development is a be heard and to present a claim or defense must secondary purpose resulting from munici- be provided.

9 The general Condemnation proce- pal community development or municipal dure followed in Texas is found in the Texas urban renewal activities to eliminate slums Property Code (TPC), Chapter 21, Subchapter B. or blighted areas or is not for a public use. 1. The 2005 statute does not affect the authority condemnor's determination of the necessary of the following entities to take private property amount of property is conclusive in the absence through eminent domain for: of fraud, bad faith or gross abuse of discretion.

10 Transportation projects; By the same token, without some constitutional or statutory restraint, the location chosen by port authorities, navigational districts, or the condemnor is final without the showing of conservation or reclamation districts;. bad faith, fraud or an arbitrary or capricious act. water supply, wastewater, flood control and Consequently, the condemnor has much lati- drainage projects; tude in determining the public necessity. public buildings, hospitals and parks; Significantly, a Texas statute limits the type utility services; of estate that can be condemned.