Chapter 1: Legal Aspects of Eminent Domain

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Section 1: Provisions of Texas Constitution

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Section 17, Article I, Texas Constitution, provides that "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money...." Judicial decisions have defined "adequate compensation" to be "market value."

The property owner, however, may not accept the appraiser's opinion of market value as just compensation. If agreement between the acquiring agency and the property owner can not be reached through negotiation, ED proceedings must be initiated to acquire the property interest.

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State Statutory Provisions

The authority for the State to enter into ED proceedings to acquire a property interest is described in the Transportation Code. This authority is granted to the State whether the property interest is located inside or outside the limits of an incorporated city, town or village; and whether the city, town or village are incorporated under general or special laws, including Home Rule Cities. The appropriate procedure for these proceedings is in Property Code, Chapter 21.

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