Sunday, December 8, 2013

Eminent Domain Reform in Texas

While serving as mayor of DISH, many of my citizens had to deal with natural gas pipeline companies, and the threat of eminent domain.  Maybe I was na├»ve, but it was shocking for me to realize that private, for profit companies could acquire land through eminent domain, especially in a state like Texas that is supposed to support private property rights.  It seemed un-American to me to see private property transferred from one private entity to another to merely benefit shareholders, not the public in general.  It also answered the question as to why there were so many pipelines in the area.  Each company put in a pipeline in speculating that it would be needed someday, using the threat of eminent domain to secure the easement.  These lines were not truly a public need, and most of them are not at capacity, so why would they steal private property from hardworking, taxpaying Texans?  Because the state of Texas said they could, and there is not much that a common person can do about it.  

There is a case where a Texas farmer is fighting Trans-Canada and the southern leg of the Keystone XL, and the world has supported her, check out

In Texas “common carrier” pipeline companies have the power of eminent domain as per Chapter 111 of the Texas Natural Resource Code.  A common carrier must provide services to the public for hire.  So in laymen’s terms they must make their services available to the general public, and not just transport the product (oil, natural gas, etc.) for themselves.  However, there is no checks and balances to ensure that these companies are actually doing that.  All they have to do is to check a box on a T-4 form, which is the application to operate a pipeline in Texas.  The only way to challenge the common carrier status is through the court system, which is way too expensive for the average Texan.  Once the company takes your land through eminent domain, they do not have to inform you of what is being transported through your property, and you may be held liable if there is a leak (read the fine print).  So much for Texas being a private property rights state.  The Texas legislate had an opportunity to correct this problem last legislative session, but they failed to take any action.  

Many of the Texas politicians, such as current Commissioner of the Texas Railroad Commission and candidate for Texas Attorney General Barry Smitherman, believes that as long as you are paid a “fair price”, then it is acceptable for a private company to steal your property.  Unfortunately, most Texas politicians agree with Commissioner Smitherman.  Under that theory, you can own and peacefully enjoy property in Texas, as long as someone with more money doesn’t want it.  It does not matter if you have made good decisions, paid your property off early, have a plan to develop the property into something meaningful with the land, it doesn’t even matter if it has been in your family for generations, if they want, then they will get it.  

Once I began doing research, it seemed like everyone that could afford a lobbyist, had managed to get the power of eminent domain.  If they couldn’t get it outright, then a government entity would take the land through eminent domain and then just give it the private entity that wanted it.  There are several examples of this here in Texas and you don’t have to leave the Dallas – Fort Worth area to find it.  Several years ago Hurst, TX took 127 homes to expand a shopping mall, and Arlington, TX just used the power a few years ago for Cowboys Stadium.  Not that I am not a Cowboy’s fan, but I can’t condone Jerry Jones stealing a senior citizen’s property to make his profits, that is un-American and un-constitutional, or is it?

In 2005, there was a monumental ruling by the United States Supreme Court that stated that economic development was a legitimate public use; the case was Kelo vs. the City of New London, CT.  Ms. Kelo’s property was being taken in support of a Pfizer research facility.  There is a book called Little Pink House that tells the story of this monumental case.  Unfortunately, after spending hundreds of millions of tax payer dollars on the project, Pfizer pulled out and now the land where the little pink house once stood is a vacant lot, most recently used as a dump for debris from hurricane Sandy.  So what our Supreme Court basically said, was that no matter how good a citizen you are, no matter what good decisions you have made in your life, you can own peacefully enjoy property in America, as long as someone with more money doesn’t want it.  Hopefully, you are seeing the trend by now.  

There was significant backlash on the Supreme Court Justices for this decision.  One of the justices had an attempt to take their childhood home through eminent domain, and there was congressional hearings on the subject.  There was so much backlash, that it is doubtful that the Supreme Court will ever take on an eminent domain case again.  Although, I am not a constitutional scholar, it is my understanding, that the constitution was drafted to prevent blatant abuses of our personal rights such as this, but currently the document is only used when it is convenient, and certainly does not seem apply to us peasants.  

Neither the US Constitution nor the Texas Constitution gives the power of eminent domain to specific entities, but rather infer that this power can be used only for public use.  However, the definition of public use has been perverted by the state legislature and the courts, to mean whatever their donors say is a public use.  Most people do not like the idea of having the land that they worked hard for taken for any purpose, but most people are understanding when it is for a true public use, and there is not better options available.  However, when their land is taken for a shopping mall, pipeline, or football stadium that benefits private entities, most do not agree that this is a public use. 

Since the Kelo vs. New London, CT decision, most states have taken some sort of action, however; only a few states did anything meaningful.  Texas had a dog and pony show that resulted in a constitutional amendment.  This amendment, did inhibit the ability of government to take property and transfer to private entities in most cases, but did nothing to deter the many private entities that have the power of eminent domain in Texas from abusing it.  

Texas has done away with some provisions for using eminent domain, and it is in the Texas Constitution that this power is not to be used, except to remove “urban blight”.  Unfortunately, that one statement undoes everything else in the document.  Susette Kelo’s house was taken under the premise that it was “blighted”.  So you may think that “blighted” is some horrible eyesore, which everyone would agree needs to be demolished.  However, the definition of blighted is: “something that impairs growth, withers hopes and ambitions, or impedes progress and prosperity.  So I hate to break it to you, but everyone’s property is “blighted” to someone.  And if you think a good eminent domain lawyer couldn’t make an argument that your property is “blighted”, then frankly you are a fool.  

The Castle Coalition, was the group that helped defend Sussette Kelo, and they have ranked each state by property rights, and Texas is a disappointing 27th.  It is amazing that a state that touts itself as a “private property rights” state ranks in the lower half of all states.  Florida ranks number one in this ranking. Florida requires the condemning authority to pay the legal fees of the person having their land condemned.  They also do not allow property to be taken for being “blighted”.  

So why not follow the lead of the states that protect private property rights?  That real solution is that we need to demand that there be meaningful eminent domain reform in Texas.  I have put together a list of ordinances and resolutions that a municipality can adopt at the local level.  These range from resolutions that simply declare that a municipal government does not agree with the taking of private property for economic development, to an ordinance that prevents the municipal government from taking property and turning it over to a private entity for economic development.  If you have municipal government that truly supports the protection of private property, this language could be put into the city charter, to let everyone know that they can move to this community and know that their property rights will be protected.  Links to these documents are below:

At the state level, there needs to be real, meaningful eminent domain reform.  Not the eyewash and dog and pony show that we see every legislative session.  If you ask any Texas politician if they support private property rights, they will tell you “yes”.  Every one of them will point to some meaningless legislation that they supported to protect private property rights.  Unfortunately, most of them are either too dumb to know what real private property protections are, or they think that you are.  Every legislative session the Texas Legislature makes a public statement that protecting private property rights is their highest priority, then they pass legislation that erodes private property.  Again, they are either too dumb to know what property rights protections are, or they think you are.  

The solution at the state level is to follow the lead of states that truly support private property rights.  There is no reason why Texans should accept being in the bottom half of property rights protection in the US.  We need to demand reform, and there should be no state that has stronger property rights protections than Texas.  We need adopt the Florida statute at a minimum, and require condemning authorities to pay legal fees.  I know people who spent so much money on attorneys that they did not get any meaningful benefit of trying to fight eminent domain.  Therefore we need to give some balance of power to the property owners.  If we are going to ignore the constitution, at least give someone the opportunity to have a fair fight.  Also, if the condemning authority had to pay legal fees, they would not want a protracted court battle.  Therefore, they would no longer treat property owners like criminals on their own land, but rather would be forced to truly negotiate.  They are currently supposed to participate in fair negotiations, but there is no such thing when an entity has the power of eminent domain to hold over your head.  However, this change would certainly motivate the condemning authority to negotiate.

Below is a link to the Florida Statute that deals with eminent domain:

If you agree that you should be able to own and peacefully enjoy your property, I would encourage you to look at some of the ideas that I have shared, and take these to your local and state officials whatever state you live in and demand eminent domain reform.  If you live in Texas and your officials claim that they have been fighting for your private property rights, they are likely lying to you, and think you are too dumb to realize it, so vote their ass out and get a new one.  I know that we have a special affection for “our” elected officials, and think that “our” officials are not the problem, but if they’re not part of the solution, they are part of the problem and it’s time for change.  And don’t give me any of that crap about democrats vs. republicans, they are both pissing all over our rights, and if they are not working for you, then they are working against you, and it’s time throw their ass out; make em get a real job like the rest of us.  

You can contact me anytime for more information.