SB 18 sails through Texas Senate
Does NOT protect landowners from eminent domain for private gain
(Austin, TX - February 9, 2011) Today, the Texas Senate passed Governor Rick Perry's fast-tracked 'emergency' eminent domain bill, SB 18. The grassroots don't think the bill goes far enough because it still fails to protect landowners from Kelo abuses (ie - blight, economic development, foreign-owned toll roads). It looks great in parts of subsection "b" only to undo it with all the exceptions under subsection "c." The bill continues the authority of private entities to benefit from eminent domain in the name of a laundry list of various "public uses." (See the bill's loophole-laden language below)
Sen. Leticia Van De Putte questioned some of the vague language in the bill and asked, "Doesn't this open it up to lawsuits?" to which she got no assurances that it wouldn't.
Many lawmakers are telling Texans that SB 18 takes care of Kelo and addresses their concerns when the plain reading of this bill says otherwise. Eminent domain for private gain became the centerpiece of the public blowback to Rick Perry's Trans Texas Corridor and push for foreign-owned toll roads across Texas.
"After four previous attempts to protect Texas landowners from eminent domain for private gain, lawmakers either can't get it right or won't get it right. Either way, it's unacceptable. Texans deserve to be told the truth and to be given true protection from eminent domain for private gain, not have their lawmakers tell them they have it when they don't," noted TURF Founder Terri Hall. "Texans know they can't trust Rick Perry on eminent domain, this bill proves the leopard hasn't changed his spots. With quotes like this one from the bill's author, Senator Craig Estes, in the Star-Telegram February 6, lawmakers may just encounter a Trans Texas Corridor-style uprising:
'Every word in there has been carefully crafted,' said Estes, whose district includes Parker, Wise, and parts of Denton and Collin counties. 'Nobody is 100 percent happy, which means it's a pretty good bill.'
Accordingly, Estes said he will fight any amendment to ward off even the slightest change that could unravel the compromise.
'I don't care if your amendment turns lead into gold. It's not going to happen if I can help it,' Estes said. 'Any bill can be made better, but when you have all the major interest groups on board, let's don't let perfection get in the way of something that's good for Texas.'"
In committee, Estes quipped that SB 18 was a special interests bill, then tried to back-track and say all Texans are a "special interest." An eminent domain attorney who represents landowners in eminent domain cases said this bill was a "lobbyist's dream."
The grassroots want language in the bill that would prevent ANY eminent domain for private gain, no exceptions. Melissa Cubria of Texas Public Interest Research Group (TexPIRG) concurs: “Officials fast tracked legislation masked as eminent domain reform through the Senate today without giving the public adequate opportunity to participate in the process. Cloaked in the guise of eminent domain reform, Texas State Senators rammed through legislation that will benefit utility companies, the oil and gas industry, real estate developers and even private toll road investors before it ever has the opportunity to work on behalf of the citizens and landowners of Texas.
“There are so many loopholes in SB 18, it is hard to know where the bill begins and ends,” Cubria continues. “Critical terms that will protect landowners are defined so weakly it’s hard to read their text on the page."
“Unless members in the House close loopholes, strengthen the language in the bill and include meaningful public that protect landowners from cronyism and conflicts of interest, SB18 is like the Trans Texas Corridor on steroids—minus the private toll roads—but we can expect to see a bill to reauthorize those coming down the pipeline any day now.”
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By: Estes, Duncan
S.B. No. 18
A BILL TO BE ENTITLED
AN ACT
relating to the use of eminent domain authority.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2206, Government Code, is amended to
read as follows:
CHAPTER 2206. [LIMITATIONS ON USE OF] EMINENT DOMAIN
SUBCHAPTER A. LIMITATIONS ON PURPOSE AND USE OF PROPERTY ACQUIRED
THROUGH EMINENT DOMAIN
Sec. 2206.001. LIMITATION ON EMINENT DOMAIN FOR PRIVATE
PARTIES OR ECONOMIC DEVELOPMENT PURPOSES. (a) This section
applies to the use of eminent domain under the laws of this state,
including a local or special law, by any governmental or private
entity, including:
(1) a state agency, including an institution of higher
education as defined by Section 61.003, Education Code;
(2) a political subdivision of this state; or
(3) a corporation created by a governmental entity to
act on behalf of the entity.
(b) A governmental or private entity may not take private
property through the use of eminent domain if the taking:
(1) confers a private benefit on a particular private
party through the use of the property;
(2) is for a public use that is merely a pretext to
confer a private benefit on a particular private party; [or]
(3) is for economic development purposes, unless the
economic development is a secondary purpose resulting from
municipal community development or municipal urban renewal
activities to eliminate an existing affirmative harm on society
from slum or blighted areas under:
(A) Chapter 373 or 374, Local Government Code,
other than an activity described by Section 373.002(b)(5), Local
Government Code; or
(B) Section 311.005(a)(1)(I), Tax Code; or
(4) is not for a public use.
(c) This section does not affect the authority of an entity
authorized by law to take private property through the use of
eminent domain for:
(1) transportation projects, including, but not
limited to, railroads, airports, or public roads or highways;
(2) entities authorized under Section 59, Article XVI,
Texas Constitution, including:
(A) port authorities;
(B) navigation districts; and
(C) any other conservation or reclamation
districts that act as ports;
(3) water supply, wastewater, flood control, and
drainage projects;
(4) public buildings, hospitals, and parks;
(5) the provision of utility services;
(6) a sports and community venue project approved by
voters at an election held on or before December 1, 2005, under
Chapter 334 or 335, Local Government Code;
(7) the operations of:
(A) a common carrier pipeline [subject to Chapter
111, Natural Resources Code, and Section B(3)(b), Article 2.01,
Texas Business Corporation Act]; or
(B) an energy transporter, as that term is
defined by Section 186.051, Utilities Code;
(8) a purpose authorized by Chapter 181, Utilities
Code;
(9) underground storage operations subject to Chapter
91, Natural Resources Code;
(10) a waste disposal project; or
(11) a library, museum, or related facility and any
infrastructure related to the facility.
(d) This section does not affect the authority of a
governmental entity to condemn a leasehold estate on property owned
by the governmental entity.
(e) The determination by the governmental or private entity
proposing to take the property that the taking does not involve an
act or circumstance prohibited by Subsection (b) does not create a
presumption with respect to whether the taking involves that act or
circumstance.
To view the rest of the bill, go here.