The government condemns land to acquire property for projects such as highways, reservoirs and schools. The process is known as eminent domain, and it’s a legal procedure that allows the government to take private property from a person or business for public use.
What Is Eminent Domain?
Eminent domain is a power granted in the U.S. and Texas Constitutions that allows governments to seize private property if the government deems taking that property is a public necessity. Governments condemn land to acquire property when the owner either doesn’t want to sell his or her property or the government and the landowner cannot agree on an amount for just compensation.
In the United States, this power is granted in the Fifth Amendment of the Constitution: “nor shall private property be taken for public use without just compensation.” In other words, governments can legally take private property from citizens as long as they pay just compensation for it.
According to Texas law, certain entities are granted the power of eminent domain. These entities can include:
- County governments
- Municipal governments
- Water districts
- School districts
Public utilities may also be able to use private property to install and replace power lines, pipelines and other equipment.
However, the same constitutions that give the government the power of eminent domain also establish the rights of a property owner when their land is obtained through eminent domain. One of these rights is that the property owner must receive fair compensation for their land. Another is that the land can only be taken by an entity that has been authorized by the government to do so.
Eminent Domain Should Be Used by Necessity, Not Convenience
Just because the government can seize property through eminent domain proceedings doesn’t mean they have to do so. Governments should only condemn land to acquire property when doing so is necessary and in the public’s best interest.
Any landowner has the right to decline to sell their property for a government project and proceed to condemnation proceedings in order to ensure that the property being taken is for a public use, as well as to ensure they receive just compensation.
How Does Eminent Domain Work?
Eminent domain proceedings are complicated and time-consuming. Here’s a quick overview of the legal process:
- A government entity plans a project that will require the use of privately owned land.
- The government offers compensation to the property owner.
- The government and the property owner negotiate an agreement.
- If no agreement is reached, the government goes to court for condemnation proceedings.
Condemnation proceedings involve hearings where evidence by both sides can be presented and can involve a trial, during which both sides must present their case.
After all of this, if it’s ruled that taking private property is necessary for public use, the government must compensate the property owner. However, the government authority will often still try to lowball the compensation they must pay the landowner.
Texas Property Can Only Be Obtained Through Eminent Domain for Public Uses
In Texas, property may be taken only for a purpose or use that serves the general public. Texas law prohibits condemnation authorities from taking your property to “enhance tax revenues or foster economic development.”
Some common public use reasons for taking land through condemnation in Texas can include:
- Transportation projects
- Port authorities, navigational districts, or conservation or reclamation districts
- Water supply, wastewater, flood control and drainage projects
- Public buildings, hospitals and parks
- Utility services
- Common carrier pipelines or energy transporters
- Sports and community venue projects approved by voters after Dec. 1, 2005
- Underground storage operations
- Waste disposal projects
- Library, museum or related facilities and infrastructure
- Elimination of urban blight
Although the above list contains some public uses, not all of these reasons for taking Texas property are public uses, and each situation is unique. Just because an entity with the power of eminent domain is attempting a project that falls under the list of public uses does not mean that the particular project is, in fact, a public use. Each case is fact specific and depends on the particular circumstances surrounding the project, its reasons for inception and other fact specific issues. These must all be analyzed to determine if a project is actually for a public use.
The federal government also uses eminent domain in the state of Texas to appropriate private property for use in national park or national defense projects, as well as for reasons of public safety, such as land contaminated by toxic substances.
What Isn’t Public Use in Texas
In 2005, the Texas State Legislature, in reaction to a controversial United States Supreme Court ruling expanding the definition of public use in eminent domain cases, passed a number of statutes that defined what public use isn’t.
These new statutes state that a governmental or private entity may not take private property through the use of eminent domain if the taking:
- Confers a private benefit on a particular private party through the use of the property;
- Is for a public use that is merely a pretext to confer a private benefit on a particular private party;
- Is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society from slum or blighted areas under; or
- Is not for a public use.
In some cases, defining what is and isn’t public use can be a challenge. Property owners who are unsure if their land is going to be used for a legitimate public use should seek the assistance of an experienced Texas property rights lawyer. If the court determines the condemning entity’s reasons for taking a Texas property do not meet the public use standard, then the condemnation proceeding may be dismissed.
Frequently Asked Questions about Eminent Domain
Who Can Take Land Through Eminent Domain in Texas?
In general, the federal, state, county and municipal governments, as well as water districts and school districts, have the authority to take land through eminent domain in Texas. Public utility companies have also been allowed to use eminent domain.
Find out more about who has eminent domain authority in Texas.
How Does the Texas Condemnation Process Begin?
Generally, the process starts when an entity with eminent domain authority (the “Condemnor”) plans a public project and determines it need private land. The Condemnor is required to notify all property owners whose land will be taken and orders real estate appraisals. A land acquisition agent uses the appraisal amount to make an offer to purchase the property needed for the project.
Read more about the condemnation process in Texas.
Do I Have to Accept the Final Offer When My Land Is Being Taken Through Eminent Domain?
The short answer is — NO! Condemning authorities often use professional agents to obtain land for public projects. They will be looking to reach a low-ball deal with you before they have to file a condemnation case.
If you do not reach an agreement, they will have to file a condemnation lawsuit to take your property rights. The presiding judge will convene what is called a Special Commissioners’ Hearing to hear evidence from both sides and determine what is fair and just compensation for the landowner’s property.
Read more about what happens if you don’t accept the condemning authority’s final offer.
Condemnation Case Results
No matter what the condemning entity’s reasons for taking a Texas landowner’s property, the eminent domain attorneys at Dawson & Sodd can help. We have fought or Texas landowners against all types of condemning entities, including several major sports venues. For landowners in the location of the proposed Ballpark at Arlington (home of the Texas Rangers), we were able to increase their collective received net compensation to $5 million, from the collective offer of only $600,000. For a homeowner whose home was taken for the Dallas Cowboys Stadium in Arlington, we negotiated a final settlement that netted the homeowner $1.9 million after an initial offer of only $351,000.
Make Sure Your Rights are protected during the Texas Condemnation Process
Texas property owners who find their land targeted for condemnation have many concerns. Are they being offered a fair price for your land? Is the entity seeking to obtain their land authorized to do so? Are the new owners really buying this land for public use?
If you’re concerned about your home or property being subjected to condemnation proceedings, we urge you to speak with a Texas eminent domain attorney at Dawson & Sodd immediately. No matter why the government seeks to condemn your land, our experienced land rights lawyers can review the circumstances of your property and build a strong case to fight to make sure you receive maximum compensation possible for your property.
Dawson & Sodd has offices in Dallas and Corsicana, and we help landowners through the Lone Star State to protect their landowner rights. For more information about eminent domain proceedings and what you can do, contact us today for a consultation.
