Perry Vetoes Eminent Domain Bill

Weatherford Democrat

Galen Scott

An omnibus bill that would have changed Texas compensation rules for land seized by eminent domain was among 49 bills Gov. Rick Perry vetoed Friday.

According to a statement released by the Governor’s Office Friday, Perry supported the bill in its original form, but withdrew support after a series of amendments were added during the final days of the legislative session. Perry singled out a pair of provisions he said amounted to “the creation of a new category of damages that are beyond the pale of reason.”

Specifically, Perry was at issue with an amendment expanding landowner damages to include compensation for “diminished” roadway access to property left over after an initial condemnation.

Condemning authorities are already required to provide reasonable access to the remaining land, but House Bill 2006 paved the way for additional compensation by requiring eminent domain commissioners to consider “loss of access” when determining dollar amounts. The bill also provided for the recovery of damages like changes to traffic patterns and visibility of the remaining property from the road.

If House Bill 2006 were to become law, Perry said state and local governments would be overpaying to acquire land through eminent domain in order to enrich a finite number of condemnation lawyers at the expense of Texas taxpayers.

“As someone who grew up in rural Texas, and farmed our family’s piece of land, I am a strong proponent of protecting private property rights,” Perry said in a statement. “But the issue is one of fairness to taxpayers, who will get fleeced in order to benefit condemnation lawyers.”

According to the Governor’s Office, Perry received letters from almost every fast-growth city and county asking him to veto the bill because the cost of constructing state and local projects would increase by more than $1 billion annually.

But up until about 14 years ago, landowners used to get some money for diminished access, according to Ed Small, legal council for the Texas and Southwestern Cattle Raisers Association.

“The state treasury didn’t go bankrupt prior to 1993 because of this and it wouldn’t go bankrupt if this bill were to become law,” Small said in a statement.

When House Bill 2006 made it through the Legislature, Texas Department of Agriculture Commissioner Todd Staples wrote of letter in support of the bill, addressing concerns that diminished access compensation would cost the government too much money.

“It simply restores some of the protections that have been eroded in recent years,” Staples wrote of House Bill 2006.

Perhaps more than any other single group, the The Texas Farm Bureau lobbied for the passage of House Bill 2006. In a statement released Monday the Farm Bureau said the bill amounted to “the most important property rights legislation in more than a decade.”

“With the projected growth of this state, takings will occur much more frequently for roads, reservoirs and other public needs,” the statement reads. “It is imperative that we treat property owners, urban and rural alike, fairly.”

Because the bill was a conglomerate of eminent domain legislation, including contributions from five authors and more than 20 coauthors, a variety of issues were addressed. State Rep. Phil King (R-Weatherford), one of the bill’s coauthors, included a number of items he said are meant to stop eminent domain abuse by pipeline companies in Parker and Wise Counties.

More than 18,000 miles of active oil and gas pipelines already exist in Parker County, and with experts predicting exploration in the Barnett Shale will remain cost effective for decades to come, pipeline eminent domain is expected to stay in the limelight.

King’s legislation would have given landowners the right to a notice of the pipeline company’s intent to condemn, fair notice of the scheduled hearing on the condemnation, the right to a reasonable delay to prepare for the hearing and the ability to object to special commissioner appointments they feel represent a conflict of interest. Texas landowners are not currently entitled to any of those provisions.

A few hours before Perry announced his veto, King said he was on the phone with Perry’s legislative assistant, advocating the bill’s final passage.

“[Perry] is getting just tons of pressure from cities, counties and TxDOT to veto it, because of how it increases the cost of eminent domain for roads and highway construction,” King said. “And, of course, it does. But my perspective is, if you’re going to forcibly take someone’s property away, you better pay them reasonably well — at least fair-market value.”

Personally, King said he believes landowners should be allowed to sue for loss of access, but if including those provisions meant killing the bill, he said they should have been stripped in conference committee. According to King, Perry warned the bill’s authors he was under pressure to veto if the amendments weren’t taken out.

“It’s a big, long bill and that was just an amendment that got put on at the last minute by the Senate,” he said of the diminished access provision.

In the wake of Kelo v. City of New London, a 2005 U.S. Supreme Court case that raised grave concerns about the use of eminent domain to buoy private enterprise, House Bill 2006 would have limited eminent domain use in Texas to “the state, a political subdivision of the state, or the general public.”

The bill also required condemning authorities to hold public meetings and record votes before condemning private property. Water and sewer companies would have been barred from condemning property to gain access to groundwater, an increasingly sought-after resource in North Texas.

Additional requirements were placed on purchase offers made prior to the initiation of condemnation proceedings and landowners would have been allowed to buy back condemned property for the initial purchase price, if the land is no longer in public use after a period of 10 years.

“We’ll just have to do the bill again next session,” King said.