Legislature may limit eminent domain powers: The Daily Texan (Univ of Texas at Austin), 7/6/05

By Marie Delahoussaye
Legislation that would limit government power to seize private property passed through a state House committee Tuesday at the Capitol.

State Rep. Frank Corte, R-San Antonio, proposed the constitutional amendment as a reaction to a U.S. Supreme Court ruling last month that authorized the taking of private land for private development.

Corte's amendment would prohibit use of eminent-domain seizures, if the primary purpose is economic development.

"The protection of private property dates back to the writing of the Magna Carta in 1215," Corte said. "I intend to take up this call to arms."

Under current Texas law, a governmental entity, such as a city or state may use the power of eminent domain to seize private property for public use.

The University is currently considering using eminent domain to seize property now occupied by Player's hamburger restaurant in order to build a 1,000-car parking garage.

Player's co-owner Carlos Oliveira said he's determined not to sell Player's and doesn't think UT has the right to take it from him.

James Wilson, director of the Campus Real Estate Office, said he's no lawyer, but the parking garage would benefit the public good by improving a public university.

"If a parking garage is not part of the public purpose of running the University of Texas, I don't understand it," Wilson said.

In a press conference last week, Corte referenced the Player's controversy as a case in which eminent domain is being abused. At that point, however, he was unclear whether the language in his proposal would apply to public universities.

The version of his proposal the committee passed Tuesday solved the problem by clarifying that the state, and therefore all public institutions of higher education, are included in the law. However, in order to benefit from the new legislation, Player's would still have to show that the primary purpose of the University's project is "economic development."

Corte's proposal raised questions in committee over how to determine the primary purpose of a project and what constitutes public use.

In the recent decision, the Supreme Court gave explicit authority to the states to define public use but ruled that it can include economic development.

"We may need to go the route of defining public purpose," said Rep. Robert Cook, D-Eagle Lake. Cook said the law needs to be specific to prevent governments from invoking key phrases to justify anything as a public purpose.

While many members agreed the issue would likely require further consideration, they agreed to pass the proposal without delay in hopes that it will be addressed by the whole Legislature during the special session ending later this month.

Gov. Rick Perry said that until public school finance reform is solved, he will not expand the call of the special session to address other issues.

If passed, Corte's constitutional amendment will be up for voter referendum in November.

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The Daily Texan: www.dailytexanonline.com