Texas Insider

By Peggy Venable

We Texans value our property and private property rights are at the very core of a free society.

That explains why the controversial Kelo decision of 2005 rocked the nation as property rights activists rolled up their sleeves to get greater protections written into state constitutions, as the U.S. Supreme Court suggested. 

The Texas legislature has passed a bill which, if passed on the November ballot, will improve private property rights in the State of Texas. By declaring that Prop.11 is “counterfeit eminent domain reform,” some opponents are suggesting the legislation doesn’t go far enough.

Rather than focusing on what is in the proposition, some naysayers are busy telling you what is not in the proposition. It is true that good faith negotiations, diminished access to property, relocation of displaced landowners, and voter approval of eminent domain are not covered in the proposal.

However, those are not issues which arose from the Kelo case that this legislation was designed to remedy. Those are issues that came up in property owners’ opposition to the Trans Texas Corridor. Should the issues be addressed? Sure, but they can just as easily be addressed in statute as the constitution.

You may recall that the Kelo decision allowed local entities to take property – even homesteads – if the local government could get more in tax revenues were the property converted to another use – like a shopping center. 

This isn’t the legislature’s first try to stop that opportunity.  Legislation passed in the 2007 Legislative Session didn’t make it to the ballot.  With the support of the bill sponsor, Rep. Frank Corte, Gov. Rick Perry vetoed the bill. 

Some would have you believe that Gov. Perry’s 2007 veto of HB 2006 should result in the defeat of this measure because it does not propose that everything that was in that bill be added to the Texas Constitution. Even the Farm Bureau isn’t buying that logic. That veto may have cost the governor the Farm Bureau’s endorsement this campaign cycle, but the Farm Bureau is strongly in support of this constitutional measure. They recognize that this does not give them everything they would like, but it certainly moves us forward in the process of private property rights protection.

Here is how Proposition 11 would amend the Constitution in four primary ways:

1.      It would define the term “public use,” rather than leaving the definition of that term up to court interpretation;

2.      It would specify that the taking of property for the purpose of economic development or enhancement of tax revenue purposes is not a public use;

3.      It would provide that property taken to eliminate urban blight must be done on a parcel by parcel basis; and

4.      It would require that any future power of eminent domain granted requires a 2/3 vote of the Texas Legislature.

So, why a constitutional amendment instead of statutory reform?  The U.S. Supreme Court in rendering the Kelo case overturned years of precedent and changed the definition of public use that is found in both the Texas and U.S. Constitution. To prevent further erosion of property rights in Texas, there had to be a constitutional fix to the definition of “public use.”

The definition used in Proposition 11 defines both what public use is, and reiterates what it is not. Public use does not include the taking of property for the primary purpose of economic development or enhancement of tax revenue purposes. That’s protection we don’t have if the proposal fails. But, Prop 11 goes even further to prevent the taking of property to eliminate urban blight except on a parcel by parcel basis. This will stop local governments from declaring a few pieces of property as blighted and then taking all the property in an area for a development project. 

Passage of private property protection has been a long time coming in Texas. Passage of Prop. 11 will send a clear message to legislators that the issue is of utmost concern to the voters. Failure to pass the measure will let them know there is no need to continue to work on the issue because the people making the most noise will not even be content with a victory.

Peggy Venable is the State Director for Americans for Prosperity- Texas, www.afptx.org.