Texas lawmakers worked quickly last week under the banner of private property rights to advance a bill to restrict local governments from seizing private land for the promotion of economic development.
Gov. Rick Perry added the eminent domain issue Wednesday to the agenda for the Texas Legislature's second special session, which ends Friday.
“The Supreme Court in its ruling opened a new door that the governor believes should be closed,” Perry spokesman Robert Black said. “The good news is that within its ruling, the Supreme Court allows state legislators to act to close that door.”
In the case of Kelo v. the city of New London, Conn. – the case that prompted the proposed law – the Supreme Court ruled that a city was justified in seizing property from homeowners and transferring the land to developers if it would result in higher tax revenues for the government.
On Wednesday night, the state Senate voted 25-4 on a bill written by Sen. Kyle Janek, R-Houston, that would ban governmental entities from using eminent domain to enable a private party to profit.
On Thursday, the House passed a similar amended version of the bill on a 140-1 vote.
The measure still allows eminent domain for more conventional uses, such as acquiring land for flood control, railroads, ports, airports and public roads. It also allows the use of eminent domain for sports and community venue projects approved by voters at an election held before Dec. 1 this year, thereby protecting the city of Arlington's condemnation of homes for a new Dallas Cowboys stadium.
The House version of the bill does not specifically address the Trans-Texas Corridor, but an amendment added by Rep. Lois Kolkhorst, R-Brenham, prohibits the Texas Department of Transportation from using eminent domain to acquire land for highway “ancillary facilities,” such as gas stations or convenience stores.
“The goal of the amendment was to say you can't use eminent domain,” Kolkhorst said Friday. “(The highway department) can still negotiate with landowners (to buy land for ancillary facilities) if they still choose.”
But that is a function that has traditionally been left to free enterprise, she said, like the private development of businesses lining Texas interstates.
The amended bill now heads back to the state Senate, which is scheduled to take up the issue today. State senators have the option of approving the House measure wholesale, but if they choose to modify the House version in any way, the bill would move into a conference committee made up of senators and representatives to hash out the differences.
“From a practical standpoint, it's late enough in the session that it's highly likely we will be concurring, because there's not enough time for a conference committee,” said Casey Haney, a legislative aide to Janek.
McLennan County legislators Sen. Kip Averitt, R-McGregor, and Reps. Jim Dunnam, D-Waco, and Doc Anderson, R-Waco, each voted for the bills.
Pointing to the example of Arlington's pursuit of private property to make way for a football stadium, Dunnam said he thinks the eminent domain law is necessary.
“I think we had to do something to address the situation that happened in New England, and I think that we had been and would be headed down the path they were – taking people's property to build a Wal-Mart,” Dunnam said.
Pending Senate approval, the bill then would head to Perry's desk for his approval or veto. Black said it was premature to say whether Perry would approve the bill.
“I think we need to see what the Senate is going to do,” Black said.