The Changing Landscape of Eminent Domain in Texas
by Robert F. Brown and Meredith Ladd
On May 23, 2011, Texas Governor Rick Perry ceremonially signed Senate Bill 18 (SB 18). According to the Governor, SB 18 was enacted to provide “stronger eminent domain provisions protecting Texas landowners from local and state government entities that might consider abusing private property rights.” Governor Perry’s press release and videotaped statements at the ceremonial signing of SB 18 can be found at the Governor’s website at http://governor.state.tx.us/news/press-release/16160/.
SB 18 made a number of significant changes to condemnation practice. The new provisions, which became effective September 1, 2011, included the creation of a new subchapter in Texas Government Code chapter 2206, entitled “Truth in Condemnation Procedures Act” (TCPA). Now, before a governmental entity may institute litigation to condemn property, it must satisfy the requirements of the TCPA. Presumably, the failure to do so would result in the dismissal (or at the very least the abatement) of the condemnation action until the TCPA’s prerequisite procedures are satisfied.
The TCPA is intended to promote transparency and accountability. The TCPA requires that a governmental entity provide notice in its posted meeting agendas when it is considering exercising its power of eminent domain to condemn property; that a “record vote” to condemn property be conducted at a public meeting; and that the approval motion to adopt an ordinance, resolution or order authorizing condemnation state the following phrase, or a phrase substantially similar to the following: “I move that the (name of governmental entity) authorize the use of the power of eminent domain to acquire (describe the property) for (describe the public use).” Tex. Gov’t Code § 2206.053(a), (c).
SB 18 also changed the procedures set forth in Texas Property Code chapter 21, which governs condemnation litigation procedures. For example, while case law has always required that a condemning authority make a good faith offer to buy needed property interests before filing a condemnation lawsuit, SB 18 clarifies this obligation by making it a statutory requirement and by defining what constitutes a good faith or bona fide offer. To constitute a bona fide offer, a final offer to purchase land must include and be based upon a written appraisal; must include the deed, easement or other conveyance instruments; and must provide the owner at least 14 days to respond before suit is filed. Tex. Prop. Code § 21.0113.
SB 18 also impacts the scheduling of the special commissioners hearing by requiring that the court give each party “a reasonable period to strike one of the three commissioners appointed by the judge;” that the special commissioners not convene a hearing until at least 20 days after they are appointed (presumably to allow the parties time to exercise their preemptory strikes); and that notice of the hearing be served on the parties not later than the 20th (formerly the 11th) day before the hearing. Tex. Prop. Code §§ 21.014-.016.
Other significant SB 18 changes include the requirement that all levels of government (formerly just the State and State agencies) provide a relocation assistance program for persons or entities displaced by land acquisition, and that condemnation damages now include compensation for “material impairment of direct access,” as compared to the prior law that only considered “material and substantial impairment of access.” Tex. Prop. Code §§ 21.042, 21.046.
While the jury is still out on the long-term effects of SB 18 on condemnation practice for landowners and condemning authorities, there is little doubt that the immediate impact will result in land acquisition for public projects taking more time and costing more money. Practitioners on both sides of the condemnation bar are cautioned to carefully review the changes created by SB 18 in the ever-evolving landscape of eminent domain practice in Texas.
Robert F. Brown is a partner and Meredith Ladd is an associate at Brown & Hofmeister, L.L.P. Both practice in condemnation and related litigation matters. They can be reached at firstname.lastname@example.org and email@example.com, respectively.