AUSTIN, Texas — State and local governments would face new limits to when
they can take private property, under a proposed constitutional amendment passed
Monday by the Texas Senate.
The amendment would ban taking property and giving it to a private group or
developer "for the primary purpose of economic development or enhancement
of tax revenues."
Supporters say the amendment would boost private property rights. But it also
faces critics who say it could hamstring major public improvements, such as new
airport development, and from some private property advocates who say it doesn't
go far enough to protect landowners.
The amendment passed the Senate on a unanimous vote and now goes to the
House, which is considering a separate amendment. If approved there, it would go
before Texas voters in November.
In 2005, the U.S. Supreme Court ruled in Kelo et al v. City of New London
that cities can seize homes under eminent domain for use by private developers.
Texas lawmakers in 2005 passed a law to protect taking private land for economic
development or private purposes, but critics have said it left too many
Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison have both weighed in on
eminent domain, signaling the likelihood that it will be a campaign issue in
their 2010 Republican primary.
Hutchison has said state government is ignoring private property rights in a
quest to cover the state with toll roads. Perry, who vetoed an eminent domain
bill in 2007, has said he wants a state constitutional amendment to protect land
owners from abuses.
Sen. Robert Duncan, R-Lubbock, sponsor of the amendment, said the Kelo case
created a "major uproar in this country over the inappropriate use of
Duncan said his plan would give private property owners protections while
still allowing governments to pursue major projects such as sports stadiums and
"The intent here is to very clearly put a check and balance on
government entities," Duncan said.
The Institute for Justice, which represented the property owner in the Kelo
case before Supreme Court, called the amendment "dangerous" and said
it would still allow governments to take land for economic development. The
group says eminent domain should only be used for public use projects such as a
new courthouse or library, and supports the House version of the amendment which
it says has stronger protections for property owners.
The two sides disagree on how to interpret the word "primary" in
Property rights groups say it allows creative governments plenty of room to
declare economic development as a secondary reason to condemn land.
Sen. Wendy Davis, D-Fort Worth, argued the amendment was too strong and
predicted it would hamstring governments pursuing major public projects that may
include contracts with private companies.
For example, an airport expansion would need large tracts of land but be
prevented from leasing to hotels, restaurants and parking services which would
serve the public airport and boost the local tax base, Davis said.
Duncan disagreed, saying the amendment would not likely block such contracts.
Property rights groups also said it wouldn't stop cities from taking property
in run-down neighborhoods. Duncan said his bill will place some limits, but
cities should still be allowed to use eminent domain to clean up some blighted