Friday, January 23, 2009

Gov. Rick Perry's proposed constitutional amendment would not address the key tenets of eminent-domain legislation he vetoed in 2007

Perry moves to restake his ground on eminent domain

Governor proposes constitutional amendment after having vetoed 2007 legislation.


By Jason Embry
Austin American-Statesman
Copyright 2009

Gov. Rick Perry moved Thursday to quiet grumblings that he isn't protecting private property rights, suggesting that the state constitution forbid the acquisition of land for nonpublic uses through condemnation proceedings.

His support of the amendment lets Perry play offense on the issue of eminent domain, but for some, it doesn't go far enough. The constitutional amendment would not address key tenets of 2007 eminent-domain legislation that Perry vetoed over the objections of the Texas Farm Bureau and some others who have previously supported him.

Property rights were already a touchy issue for Perry because many rural Texans see his ambitious transportation plan — once dubbed the Trans-Texas Corridor — as a threat to their land. The 2007 veto widened an opening for U.S. Sen. Kay Bailey Hutchison, who is likely to challenge Perry in the 2010 Republican primary, to criticize him. "Our state government ignores private property rights," she said in a recent fundraising appeal.

The constitutional amendment would seek to strengthen a bill that lawmakers passed overwhelmingly in 2005 to bar the acquisition of land for private use. The legislation was a response to a U.S. Supreme Court ruling that year that a government can transfer land from one private owner to another for economic development purposes.

"Unless we take action on these protections, private property rights in Texas will begin to erode and undermine the very character of our state," Perry said.

But the 2007 bill that he vetoed — House Bill 2006 — dealt with other issues related to condemnation proceedings, including the question of "diminished access," which has been a point of disagreement between Perry and some of his historic allies.

State law says that a property owner can be compensated for diminished access if condemnation proceedings substantially decrease the owner's access to roadways. The legislation that Perry vetoed would have made compensation possible for "any diminished access," and Perry said it could result in taxpayers paying large sums to landowners who still had most of their access intact.

For the Farm Bureau, diminished access is crucial. Though Kenneth Dierschke, the group's president, cheered Perry for supporting a constitutional amendment, he said, "any eminent domain reform must also address fair compensation and consider all factors between a willing buyer and seller — especially diminished access."

The Farm Bureau, which represents 422,000 Texas agricultural families, could provide a critical endorsement in the 2010 primary.

Perry spokeswoman Katherine Cesinger said Perry does not think lawmakers should revisit the issue of diminished access. "He thinks that many elements of the original HB 2006 should be addressed again this session and looks forward to working with legislators on getting those passed," Cesinger said.

Lt. Gov. David Dewhurst said Thursday that he'll work for an eminent domain bill that is similar to the one that Perry vetoed.

"I do know that the governor would like to reach a consensus on the bill, and I for one stand ready to play shuttle diplomacy," Dewhurst said.

As for the constitutional amendment, it would provide a clear definition of public use and balance out the Legislature's historic tendency to freely grant eminent-domain authority, said Sen. Robert Duncan, a Lubbock Republican who is working on it.

"The purpose of a constitutional amendment is to require the Legislature to provide more scrutiny in its grants of eminent domain authority and also allow property owners the ability to defend their property," Duncan said.

Duncan said he expects a robust debate about the definition of public use.

Part of that debate could center on how highway construction is defined when private companies are heavily involved in the roads' financing — a key pillar of Perry's transportation plans.

"In Texas we understand the concept of having as a last resort the process of eminent domain to build our schools, to build our roads, to make sure we have electrical power to drive our economy," Perry said.; 445-3572

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