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The Texas Senate on Feb. 9 passed a bill its authors said will strengthen protections for property owners by closing a loophole in the state’s eminent domain law.
That loophole, the bill’s proponents said, has enabled entities to seize property at unfair prices because the onus and financial burden of legally challenging use of eminent domain falls on property owners. Critics, however, say the measure still panders to special interests and is not specific enough.
Under current law, thousands of entities have the authority to exercise eminent domain, including certain private companies, such as railroads and utilities.
Senate Bill 18 won unanimous approval in the Senate after being put on the fast track for action by Gov. Rick Perry at the beginning of the 82nd Legislative session. The bill garnered wide support from a coalition of pipeline companies, wildlife conservationists, utility companies, ranch and farm groups, property rights advocates and local governments.
It now goes to the House, where it is expected to pass. Perry is on record as saying he will sign the bill into law.
The bill grants property owners more rights concerning easements through their land, prohibits a governmental agency or private entity from seizing property through eminent domain “if the taking is not for a public use,” and grants property owners the opportunity to buy back property if the project for which it was taken is not started in 10 years.
The outcry to change the state’s eminent domain laws was spurred by a Texas Supreme Court decision in 2004 that removed several key restraints that were favorable to landowners in condemnation procedures. Texas Agriculture Commissioner Todd Staples said the current law allows property to be taken away unfairly from farms and landowners.
“It is imperative that we correct the gross injustice that is currently allowing homeowners and landowners to be taken advantage of,” Staples said. “Don’t mess with Texas, and don’t mess with Texas land. That’s what this bill says. Few issues have brought Texans together like this one.”
Critics of the bill worry its provisions aren’t focused enough to prevent recurrences of past abuse.
Melissa Cubria, a research and policy analyst for the Texas Public Interest Research Group, called SB 18 “a phony attempt to appease landowners, who for years have been outspoken and vocal against profit-driven eminent domain practices that enable private entities to repurchase land for economic development.”
She said the bill will benefit utility companies, the oil and gas industry, real estate developers and even private toll road investors before it ever has the opportunity to work on behalf of Texas landowners.
“There are so many loopholes in SB 18, it is hard to know where the bill begins and ends,” Cubria said. “Officials fast-tracked legislation masked as eminent domain reform without giving the public adequate opportunity to participate in the process.”
The Legislature has tried to close the loopholes in the state’s eminent domain laws in each of the past three sessions and has mostly failed. SB 18 is nearly identical to a bill that passed by a 31-0 vote in the Senate in 2009, only to die in the House during a bureaucratic impasse at the end of the session.
A broad range of interest groups formed a seemingly unlikely alliance to support SB 18 and HB 279. The Texas Farm Bureau is enthusiastically backing the measure, while other interest groups, such as pipeline operators and cities, got behind the bill despite concerns, saying the bill is likely the best they can expect.
The Texas Farm Bureau believes the new law created by SB 18 and HB 279 will force companies that use eminent domain to offer landowners realistic compensation for their property.
“We are not going to get rid of eminent domain. It has been a part of this nation since it was founded,” Hall said. “What Texas has been lagging in is in compensation for the landowner and the ability to recoup legal expenses incurred in protecting our land against companies seeking to attain it through eminent domain.”
Under the current law, critics said, condemning entities have often lowballed landowners, and only those with deep pockets have been able to fight off those attempts to capture their land.
“Now, with SB 18, if a landowner takes an eminent domain case to court and wins — and quite frankly the landowner does win most of the time — the company that tried its lowball tactics has to pay for court costs and legal fees,” Hall said.
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