Can You Stop Eminent Domain? Challenging the Right to Take in Texas
Explore the possibility, grounds, and process for legally challenging an entity’s authority to condemn your Texas property.
Can Eminent Domain Be Stopped in Texas?
One of the first questions many Texas landowners ask when facing condemnation is: “Can I stop this from happening?” While the most common path in eminent domain involves negotiating fair compensation, there are limited circumstances where it might be possible to challenge the condemning entity’s right to take the property itself.
It’s important to understand that challenging the amount of compensation is a separate issue and generally has a higher likelihood of success than stopping the taking altogether. However, understanding the grounds for challenging the right to take is crucial for evaluating all your options.
Understanding the “Right to Take” Challenge
The power of eminent domain is granted by law (statutes) and limited by constitutions. A challenge to the “right to take” argues that the condemning entity either doesn’t actually possess the legal authority granted by statute, or that their attempt to use that authority in your specific case violates constitutional limits primarily the requirement that the taking must be for “public use.”
Essentially, you are asking a court to determine that the condemning entity does not have the legal right to condemn your specific property for the proposed project.
Potential Grounds for Challenging the Right to Take
Successfully challenging the right to take in Texas typically requires proving specific legal failures by the condemning entity. Potential grounds, while often difficult to establish, may include:
Lack of Proper Authority
The entity attempting the condemnation may not have actually been granted eminent domain power by the Texas Legislature for the type of project proposed. For example, disputes sometimes arise over whether a pipeline company qualifies as a “common carrier” with condemnation authority.
Failure to Meet “Public Use” Requirements
The core constitutional limit. You might argue the proposed project does not actually serve a legitimate public purpose as defined by Texas law, but instead primarily benefits a private entity or interest. Courts often give considerable deference to legislative declarations of public use, making this a high bar.
Fraud, Bad Faith, or Arbitrary/Capricious Action
This involves proving the condemning entity acted improperly — for example, deliberately misrepresenting facts, acting with improper motive solely to harm the landowner, or making decisions with no rational basis related to the project needs. This requires strong evidence and is very difficult to prove.
Failure to Follow Required Pre-Condemnation Procedures
Texas law requires condemning entities to follow specific steps before filing a condemnation lawsuit, such as making a bona fide offer based on an appraisal and providing the Landowner’s Bill of Rights. While failure to strictly comply might sometimes lead to dismissal of the current lawsuit (forcing the entity to restart correctly), it often only delays, rather than permanently stops, the taking if the entity corrects its procedural error.
The Process for Challenging the Taking Itself
Challenges to the right to take are generally decided by the judge early in the condemnation lawsuit, not by the Special Commissioners (who only determine compensation).
These challenges are typically raised through specific legal filings, such as:
Plea to the Jurisdiction
Arguing the court lacks authority because the entity doesn’t have the power to condemn.
Motion to Dismiss
Asking the court to throw out the case based on legal deficiencies (like failure to meet public use or follow procedures).
In some limited situations, a separate lawsuit seeking an injunction (a court order to stop the action) might be considered, but this also involves complex legal standards. The specific procedure depends on the grounds being argued and the case strategy.
Why Challenging the Right to Take is Often Difficult
Landowners should be aware that successfully stopping a condemnation based on a right-to-take challenge is generally uncommon in Texas. Reasons include:
While challenging the right to take is possible in certain circumstances, it requires careful legal analysis and strong evidence.
How Dawson & Sodd Evaluates Potential Challenges
When representing landowners, Dawson & Sodd thoroughly investigates all aspects of the case. While our primary focus is often on securing full compensation, we also carefully evaluate any potential grounds for challenging the condemning entity’s right to take based on our knowledge of Texas eminent domain law. This involves:
Our approach is grounded in providing clear, informed advice based on the specific facts and applicable Texas law.
Frequently Asked Questions About Challenging the Right to Take
Discussing All Your
Options in Condemnation
Whether challenging the right to take is a viable option or the focus needs to be solely on compensation, understanding your position requires careful legal analysis. The attorneys at Dawson & Sodd can help you evaluate all potential avenues.
Contact us today for a free, confidential consultation to discuss the specifics of the condemnation affecting your Texas property and explore your legal options.
