Friday, June 01, 2007

TxDOT, Rep. Krusee, Gov. Perry move to quash eminent domain bill


Eminent domain bill jeopardized by TxDOT, House crossfire


by Christine DeLoma
Volume 11, Issue 40
The Lone Star Report
Copyright 2007

With the flurry of bills passed in the final days of the 80th legislative session, there’s one you might’ve missed, and here’s why it’s important. It’s HB 2006, the eminent domain bill by Rep. Beverly Woolley (R-Houston).

The legislation just reached Gov. Rick Perry’s desk. And there’s some controversy over whether he will sign.

Before the House voted May 26 on HB 2006, Rep. Mike Krusee (R-Round Rock) argued vociferously against a provision in the bill that could require eminent domain entities to compensate property owners for diminished access to their property.

“This could potentially cost up to $1 billion a year,” Krusee said. “This amendment changes the way right of way is compensated for. It says that any change in access in your property now is compensable.”

The provision was added in the Senate by Sen. Glenn Hegar (R-Katy). It was heavily supported by the Texas Farm Bureau, whose members are concerned over the prospect of the Trans Texas Corridor cutting across their farmlands, making access harder.

In some cases, farmers would have to drive up to 20 miles to the nearest overpass to get to the other side of the highway to access their property. It’s an inconvenience many farmers believe they should be compensated for.

When Rep. Rob Orr (R-Burleson) asked how Krusee came up with the $1 billion figure, Krusee fingered the Texas Department of Transportation (TxDOT).

Agency spokesman Mark Cross confirmed TxDOT had provided Krusee the estimate but could not elaborate on how the figure came about.

“It’s very complicated. It’s not that simple, but it is an estimate,” Cross said. “If you look at the legislative [fiscal note]…from the LBB part it says something about ‘unable to be determined at this point,’ and that’s kind of the case. That’s why it’s just an estimate at this point.”

While TxDOT’s numbers are not specifically being challenged, many are wondering how the calculations were made. “Nobody’s quite sure where these numbers are coming from,” said Bill Peacock of the Texas Public Policy Foundation.

Peacock noted this isn’t the first time TxDOT’s estimates have come under question, pointing to the April 2007 State Audit report that criticized the agency for mathematical errors and poor methodology in calculating the state’s estimated transportation funding gap.

Despite the questionable price tag, Orr was unconvinced. “If you’re taking somebody’s property, and all of a sudden they can no longer get to their business, why shouldn’t the private property owner have the right to get compensated for that access?”

Krusee further argued that, if passed, HB 2006 would halt all transportation projects, making the bill a fit object for the governor’s veto pen. “If this [amendment] goes on, the governor may have to veto it, and we lose all of your good work…,” Krusee said.

Katherine Cesinger , spokeswoman for the governor’s office, said Krusee does not speak on the governor’s behalf.

Perry, Cesinger said, believes a proper balance between eminent domain and property rights is important. He has yet to make a decision on the fate of HB 2006, she said.

Woolley defended her bill against Krusee, saying, “I’m trying to protect property owners. We have over the years let our property rights be eroded, totally eroded. It started back early in the ’50s, and we weren’t paying attention. No person should suffer economic damage even if it is for the good of the whole. They should be compensated for their property.”

Non-controversial provisions include:

  • HB 2006 closes a few of the loopholes many believe currently exist in Texas law with regard to eminent domain. Since the Kelo v New London U.S. Supreme Court ruling solidified governments’ power to use eminent domain for economic development purposes, 31 states, including Texas, have moved to limit eminent domain powers in some form or another.
  • Public use only. In 2005, Texas passed SB 7 prohibiting the public taking of private property for economic development under certain circumstances. Yet lawmakers failed to provide a definition of “public use.” HB 2006 closes this loophole by providing a clear definition that “allows the state, a political subdivision of the state, or the general public of the state to possess, occupy, and enjoy the property.”
  • Best offer required. Sen. Kyle Janek (R-Houston), co-sponsor of the legislation, said that one of the biggest complaints among landowners was that condemning authorities did not have to make a legitimate good faith offer to purchase their land before proceeding with eminent domain. “Texas farmers and ranchers have been concerned for some time about the eminent domain process,” said Kenneth Dierschke, president of the Texas Farm Bureau. “It’s far too easy to take property in this state, sometimes without even a good faith offer. Landowners can’t match the deep pockets of the taking entities in legal proceedings.” HB 2006 requires entities with eminent domain authority to first make a “bona fide” offer to acquire property from a property owner voluntarily.
  • Repurchase taken property. The bill requires entities to offer to sell back property to its previous owner if it was not used for the intended public use after 10 years. The legislation also stipulates that the entity must sell the land at the price paid to the previous owner at the time the entity acquired the property. (Current law allows repurchase at fair market value at the time the public use was canceled.)
  • Record vote. HB 2006 requires that government entities hold public votes to condemn parcels of land.
  • Moving expenses. HB 2006 specifies that in calculating costs to owners whose real property is acquired authorities will include moving expenses, relocation payments, and replacement housing.
© 2007 The Lone Star Report:

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