IJ Texas Chapter Cautions Voters: Prop 11 Eminent Domain Constitutional Amendment Contains Major Problems

WEB RELEASE: October 22, 2009
Media Contact: Matt Miller
(512) 480-5936

Austin, Texas—The Institute for Justice Texas Chapter, which has been fighting for true eminent domain reform in the Lone Star State, warned today that the eminent domain constitutional amendment on the November 3 ballot might not do everything voters have been led to believe it does.

“Our goal is to see that Texans enjoy real protection for their private property but, unfortunately, some last-minute changes to Prop 11 mean that it doesn’t do everything voters might think it does,” said Matt Miller, executive director of the Institute for Justice Texas Chapter.  “One provision that was added at the eleventh hour allows the Legislature to grant the power of eminent domain to any entity—public or private.  That means a future Legislature could give a stadium developer or shopping mall developer the power to condemn private homes and businesses.  Prop 11 would enshrine that power in our state’s constitution.”

Miller said, “The Texas Bill of Rights, which Prop 11 is amending, is meant to protect individual rights like the right to be secure in your home or business.  Under this amendment, government could soon be transferring its power to the very people it should be protecting you from.  Those who have come out in favor of the amendment never mention the fact that it gives the Legislature the ability to grant the awesome power of eminent domain to a private party.  Usually that will mean a utility or airport or other entity that has traditionally enjoyed the benefits of eminent domain.  But there is nothing in this amendment to stop a future Legislature from giving the eminent domain power to the next politically connected private developer who dazzles them with designs about how to better use land where your home or small business now stands.”

Miller said, “Any assurances that giving private parties the power of eminent domain will be limited because of a two-thirds vote requirement are laughable to anyone who understands how politics works.  If eminent domain for private use is wrong with a simple majority of votes, it is equally wrong with a super majority of votes.”

“When are politicians going to learn that real eminent domain reform isn’t just wildly popular with voters, but it is the right thing to do?” asked Susette Kelo, whose legal case against eminent domain abuse became a national sensation when the U.S. Supreme Court ruled her land could be handed over for private development.  “People should not face the loss of their homes or small businesses just so some other private party who has more political influence can try to make more money off that land, or promise to create more jobs.  If homeownership means anything in Texas or elsewhere, it means you—and not the government—get to decide if and when you sell your home.”

“We have repeatedly shown legislators that homes and small businesses in Houston, San Antonio and El Paso are in danger of being wiped out by agreements between developers and local officials, but the Legislature has yet to put a stop to it,” said Matt Miller.  “Prop 11, as introduced, was a sterling piece of legislation.  But the conference committee between the House and Senate introduced some significant flaws—and those flaws have made their way to the ballot.  Voters need to understand the complete package before they say yes to this.”

“The one good thing about Prop 11 is that under it, blight designations, which trigger the use of eminent domain, must be done on a parcel-by-parcel basis, rather than on an area basis as they’re done now,” Miller said.  “Whole neighborhoods won’t be able to be taken because of blight on a single piece of land.”