Eminent Domain Report

A quick overview of Eminent Domain and its use in Texas

The power of eminent domain originates in the Fifth Amendment of the United States Constitution (Takings Clause). A State’s eminent domain authority is delegated by specific legislatively enacted statutes to state agencies, political subdivisions (i.e. cities, counties and special districts) and even some private entities, which are bound by relevant constitutional restrictions when exercising the power of eminent domain to condemn private property. Condemnation is the legal process that governmental entities and authorized private entities use when exercising their power of eminent domain to acquire private property for a public use. The power of eminent domain gives the government the ability to acquire private land for public use, such as building schools, highways and utility and water lines. 

FAQs ABOUT THE POWER OF EMINENT DOMAIN

What is the Power of Eminent Domain?

Eminent Domain is the power of Federal, State and local governments to take private property for a public use provided “just compensation” is paid to the property owner. If the property owner refuses to sell his or her property, then the law allows governmental entities to take the property through a condemnation proceeding. In addition to governmental entities, some private entities have condemnation authority but only to the extent that the private property being condemned is for a public use. A public utility company who provides essential services to the public like water, gas, and electric are typical examples of a private entity that may be given the power to exercise eminent domain.

What is the legal foundation for Eminent Domain authority? 

The United States Constitution provides governmental entities with the right to use eminent domain. The Texas Constitution, however, imposes additional limitations on a condemning authorities’ power to condemn private property for a public use. However, pursuant to both federal and state constitutional requirements, a governmental entity may not take private property for a public use without providing “adequate or just compensation” to the landowner. Additionally, no person may be deprived of their property unless they are afforded due process under law.

Fifth Amendment “Takings Clause” | United States Constitution states:

“No person shall… be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Article 1, Section 17 of the Texas Constitution states in pertinent part:

“No person’s property may be taken, damaged, or destroyed for or applied to public use without adequate compensation.”

The above provision in the Texas Constitution gives landowners in Texas more protection than provided in the U.S. Constitution because it includes a reference to “damaged or destroyed” property. Accordingly, since these limitations are rooted in the Texas Constitution, the State of Texas and its political subdivisions are prohibited from taking private property for non-public – or private - purposes. Furthermore, given that the Texas Constitution is the foundation for these restrictions neither the Texas Legislature or local governments have the power to enact legislation, laws or ordinances that violate these constitutionally guaranteed protections.

Texas Laws: 

• Texas Government Code, Chapter 2206
  Discusses eminent domain limitations on purpose and use of property acquired through eminent domain, procedures required to initiate eminent domain proceedings and eminent domain authority reporting.

• Texas Property Code, Chapter 21
  Discusses eminent domain jurisdiction, procedure, damages and costs, judgment and repurchase of real property from a condemning entity.

• Texas Local Government Code, Chapter 251
  Discusses the basic statutory authority that grants cities the power to exercise eminent domain both inside and outside of their city limits and states in pertinent part: “When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public use to acquire public or private property, whether located inside or outside the municipality....

Further, Section 251.001 of the Local Government Code, allows municipalities to condemn private property—but also land owned by other governmental entities. In addition to cities, other local entities, public utilities and common carriers have condemnation authority, but their powers are governed by different statutes than the laws that apply to cities. An exercise of the power of eminent domain granted by this chapter is governed by Chapter 21 of the Property Code.

Who has the Power of Eminent Domain?

Federal, State and local levels of government, including counties and municipalities, have the power of eminent domain to acquire private property for a public use. Moreover, this power can be legislatively delegated to private entities for a public use in infrastructure projects like roads, bridges, utility & water lines and public buildings.

Do Private Entities have the power of Eminent Domain?

If the power of eminent domain is legislatively delegated to a private entity for a public use. Private entities like utility companies, groundwater conservation districts, or common carriers for pipelines may be given the power of eminent domain.

Examples of Governmental Entities that Have the Power of Eminent Domain

• Texas Department of Transportation
• Municipalities
• Counties
• School Districts
• State Universities
• Public Hospitals
• Texas Parks and Wildlife
• Municipal Water Districts
  
  

Examples of Private Entities that Have the Power of Eminent Domain

• Common Carriers and Pipelines (Tex. Natural Resources Code Ann. § 111.019)
• Gas and Electric Corporations (Tex. Util. Code Ann. § 181.004)
• Telephone and Telegraph Corporations (Tex. Util. Code Ann. §181.084(2))
• Utility, Common Carrier, Cable Operator, or Energy Transporter (Tex. Util. Code Ann. §186.054(a))
• Water Corporations (Tex. Loc. Gov’t Code Ann. §552.103(c))
• Water Districts & Water Supply Corporations (Tex. Water Code Ann. §49.222(a))
• Well Wastewater Corporation (Tex. Nat. Res. Code Ann. §111.404(a))
• Municipal Sewer Providers (Tex. Loc. Gov’t Code Ann. §§552.102(a)-(c))
• Spaceport Development Corporations (Tex. Loc. Gov’t Code Ann. §§507.103(a), (b))