"Lacking such action, we are no better off than many third-world countries."
Lawmakers join forces on measures to prevent abuse of high court ruling
July 5, 2005
By POLLY ROSS HUGHES
Copyright 2005 Houston Chronicle
AUSTIN - Saying the U.S. Supreme Court erred when it ruled recently that local governments can seize land for private development, Texas lawmakers are rallying around proposed constitutional amendments and other legislation to help prevent such seizures.
Both conservative Republicans and liberal Democrats in Austin said last week that they support the proposals to allow Texans to vote on the issue this November, saying the high court's ruling undermines the fundamental right to own private property.
And in Washington, Sen. John Cornyn, R-Texas, introduced legislation last week prohibiting the use of eminent domain authority for economic development purposes if federal funds are used.
"The protection of homes, small business and other private property rights against government seizure and other unreasonable government interference is a fundamental principle and core commitment of our nation's founding fathers," Cornyn said on the floor of the U.S. Senate.
The high court, in a 5-4 decision last month involving an economic development project in New London, Conn., held that promoting economic development is a "traditional and long-accepted government function" and therefore falls under local governments' authority to use eminent domain to take property from an unwilling seller.
However, the court emphasized that nothing in its ruling prevents states from placing new restrictions on the power of governmental bodies to take private property for economic development purposes.
In Texas, with its strong tradition of private property rights, the decision has struck a populist and bipartisan chord.
Liberals want more restrictions on eminent domain because the poor are most vulnerable to property seizures for private economic interests capable of creating a higher tax base.
Conservatives say they want to protect individuals and businesses alike from overly intrusive governmental powers.
"The right to own and use property is inherent in a free society. When a government decides they know how to use the private property better than the individual, private property rights cease to exist," said state Rep. Frank Corte, R-San Antonio, the leading author of House Joint Resolution 19, which seeks to amend the state Constitution to prevent land seizures for primarily economic development purposes.
Corte, who noted that his office has been flooded with calls from worried property owners, has already garnered 100 co-sponsors for the measure. Sen. Robert Deuell, R-Greenville, filed an identical companion resolution in the Texas Senate, while Sen. Kyle Janek, R-Houston, has filed a separate resolution on the issue.
Democratic Reps. Garnet Coleman, Al Edwards and Melissa Noriega of Houston are among the co-sponsors of Corte's resolution.
"Maybe this is a place where I'm just more conservative," said Coleman, who some consider one of the most liberal lawmakers in the House. "I have seen abuses in neighborhoods of color that have been run over or older neighborhoods that are now valuable. With eminent domain, you could take that neighborhood for its value."
Not just for development
Corte's constitutional amendment would prevent local county or city governments from taking private property if the purpose is primarily for economic development. Coleman said he signed on but would like to see the state government included and the debate opened to abuses of eminent domain in general.
Rep. Dwayne Bohac, R-Houston, said he thinks the Supreme Court erred in its ruling, and it's up to the Texas Legislature to fix it.
"Municipalities should not be able to take private property for or on behalf of another private property owner," he said. "It could actually screw up the real estate market. It's just terrible."
'Too much wiggle room'
Janek's proposed constitutional amendment would place tougher restrictions than Corte proposes on the government's power to take land.
"His says 'primarily for economic development.' For me, that's just too much wiggle room," Janek said.
Janek explained that under the House proposal, a local government could take 15 acres, say it is using 10 of those for a park, and still use the other five for an economic development.
Senate Joint Resolution 9 would not allow governmental units, including the state, to use eminent domain for any economic development purposes.
Janek said measures in both the House and Senate need further work to prevent governments from finding loopholes.
For instance, he wants to add a time provision of perhaps 10 years to prevent a government from seizing land for a public park and then flipping the property to a private developer six months later.
Gov. Rick Perry has not added the issue to his call for a special session, telling lawmakers he won't expand the session to other items until they pass public school funding reforms and a tax plan to pay for them and lower property taxes.
"At first blush, it (the court's ruling) does cause the governor a great deal of concern. Without seeing what might finally pass, it's impossible to say," said Perry's spokeswoman, Kathy Walt.
Both Corte and Janek are asking Perry to consider the issue an emergency. The governor has received at least 113 letters and 148 calls from constituents also urging him to help protect property owners from the Supreme Court's ruling.
"Lacking such action, we are no better off than many third-world countries," wrote Jerry and Sharon Allen of Brenham.
Melanie and Van Johnson of Burleson urged Perry to take up the issue during the current special session. If he doesn't, they warned, "we will be forced to think long and hard before casting our vote" in the next gubernatorial race.
Countering the proposals
The Texas Municipal League opposes the proposed amendments, saying the Supreme Court merely affirmed a right local governments already have.
Frank Sturzl, the league's executive director, said Corte's and Janek's proposals are flawed because a landowner could argue any attempt to seize their land is for economic development purposes and take the matter to court.
Freeport Mayor Jim Phillips said the proposed constitutional amendments will not affect the city's ongoing efforts to seize three tracts of land along the Old Brazos River from two seafood companies to be used for an $8 million private marina.
"You can't make an ex post facto law," Phillips said. "There's nothing that says that you can void a contract. We already have a contract in place (on the marina). The Supreme Court decision stands."
The city signed the contract with the marina developer in September 2003 and filed eminent domain papers in the summer of 2004.
Chronicle correspondent Thayer Evans contributed to this report.