- Constitutional amendment requires “blight” be determined on a property-by-property basis
- Authorizes the legislature, by a 2/3 vote, to give any private entity the power of eminent domain
In 2009, Texans overwhelmingly approved Proposition 11. The constitutional amendment was an overall improvement, with one major exception.
It made significant improvements in prohibiting condemnations based on bogus claims of blight. Government must declare blight on a property-by-property basis, and can no longer make area-wide blight designations. This will likely stop large-scale redevelopment based on so-called blight removal.
It also improved the definition of public use in Texas, by requiring that takings only occur for the “ownership, use and enjoyment of the property” by the public, while allowing for incidental private uses. Unfortunately, this provision is qualified by “primary purpose” language—if economic development or an increase in tax revenue is the “primary purpose” of a taking, it is prohibited. Government agencies often try to circumvent such language by claiming an alternative primary purpose.
But it made one far less desirable change in authorizing the legislature, by a 2/3 vote, to give any private entity the power of eminent domain. This is the most dangerous provision in the constitutional amendment and could allow eminent domain abuse in the future, so Texans will need to diligently watch the happenings of the Texas legislature (which only meets every other year).
The other changes should have an immediate effect of reducing eminent domain abuse in the state.
In the immediate aftermath of Kelo, the Texas Legislature passed Senate Bill 7 (2005), which has both positive and negative aspects.
On the positive side, the new law says the government or a private entity may not take property if doing so confers a private benefit, is pretextual, or is for economic development (unless economic development is secondary to the main objective of eliminating real “blight”). Additionally, courts are not to give any deference to a condemning authority’s decision that a condemnation will be for a public use. These are important reforms that should go a long way to preventing future abuses in Texas.
On the down side, however, the bill created specific exceptions to those prohibitions so that they do not apply to utilities, port authorities, and other specific agencies and projects, including the new Cowboys stadium. And, as seen in other states, there is a specific exemption for blight removal.
The Texas Legislature was not in session in 2006, but in 2007, it passed a bill that redefined public use. Under House Bill 2006, condemnation only qualifies as a public use when it “allows a state, a political subdivision of the state, or the general public of the state to possess, occupy, and enjoy the property.” The bill would have closed the blight loophole and effectively closed the chapter on eminent domain abuse in Texas—but the governor vetoed it.
House Bill 1495 did become law, requiring the state attorney general to summarize current eminent domain law into a “Landowner’s Bill of Rights.” This document will be available to the general public, and must be provided to any property owner facing condemnation. The new law educates the public on the law of notice, procedure, and compensation rights of a condemned party, but does not protect property owners from continuing eminent domain abuse.