Chapter 1: Legal Aspects of Eminent Domain

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Section 1: Overview

Provisions of the Texas Constitution

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 based on “market value”, as a general rule. In simple terms, the State shall not acquire private property without paying fair compensation to the landowner.

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 cannot be reached through negotiation, eminent domain (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 “Eminent Domain”.

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Federal Laws and Regulations

Projects receiving federal aid are required to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and its subsequent amendments. The regulations related to these laws are set out on 49 CFR, Part 24.

These laws and regulations set out minimum standards for a basic model of real property acqui-sition, and generally speaking, require the following:

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Every reasonable effort to acquire the real property expeditiously by negotiation;

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Notice to the landowner must be provided in writing of the Agency's interest in acquiring the real property and the basic protections afforded;

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Appraisal of the real property by the acquiring entity and invitation to landowner to attend appraisal inspection;

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Offer to landowner of just compensation not less than an approved appraisal of the fair market value;

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Provision of a summary statement which explains the offer, and describes property to be acquired;

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No coercive action may be taken to induce agreement on price to be paid; and

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No intentional use of the power of inverse condemnation to avoid a formal condemnation proceeding.