We Must Meet the Needs of a Growing State While Protecting the Rights of Property Owners
As someone born and raised on a cotton farm, protecting private property rights is part of my political DNA. That’s why two years ago I joined a large majority of legislators in responding to the onerous Kelo decision by the U.S. Supreme Court that stated the U.S. Constitution does not prevent government from taking private property and giving it to another private party for economic development. In 2005 we passed a law that guaranteed Texans’ land would never be taken and given to the highest bidder for private economic development purposes. In other words, the family farm should not be seized simply because private developers have a vision for bigger profits from a mall, or some other private venture.
Critics of my recent veto of House Bill 2006, which addressed eminent domain, have wrongly stated that I set back efforts to address the Kelo decision. The fact is, the bill had nothing to do with Kelo, and they are simply using Kelo as a false, but convenient, whipping post to stir up property owners. Discussion about whether government should be allowed to take land for certain types of projects is an important debate. However, HB 2006 was not about protecting private property from being taken by eminent domain. Rather, it was about how much taxpayers must pay when private land is going to be taken.
I strongly supported HB 2006 right up until the final days of the legislative session before last minute amendments were added that would have cost taxpayers more than $1 billion annually and provided condemnation lawyers a new cottage industry to get rich based on changes in the law that would have allowed them to make profits based on frivolous claims.
As passed, HB 2006 would have allowed condemnation lawyers to sue cities, counties and the state for any reason and any amount imaginable when the state acquires land through eminent domain. No government entity likes to use the power of eminent domain. But it is a necessary power if we are to build the roads, schools and health care facilities needed to keep up with our huge population growth. A reality often forgotten, or brushed to the side, is that every new road, school office building, park, hospital and home built in Texas has been or will be built on private property. That property, whether acquired through a private business deal or through authority vested in the government to impose eminent domain rights, is appropriately purchased – and paid for – at or above market price. The law already protects Texans when it comes to the price offered for purchase.
HB 2006 would have gone beyond fair market value by creating a new category of subjective damages that would have been rife for exploitation by condemnation lawyers. Think of it like the trial lawyer who could sue for a million dollars over spilled coffee. Too much road construction dust could trigger a lawsuit by a business owner claiming it impacts access to their business. The addition of a new stoplight to make a road safer could trigger a lawsuit. The placement of a new school could be reason enough to sue. For a condemnation lawyer the sky was the limit with HB 2006 in its final form and taxpayers would be left to pick up the check.
This is why virtually every major high-growth city and county in the state asked me to veto this bill. These leaders recognized, as I did, that this bill would have greatly hindered a local community’s ability to manage population growth.
The most common misunderstanding I hear about HB 2006 is that it somehow would have protected property owners from having their land taken. HB 2006 was strictly about how much the taxpayers would pay the landowner, not about whether the land could be taken. The bill would not have prevented even a single case involving eminent domain. It dealt only with a paycheck.
I have also heard from rural Texans the misconception that HB 2006 would protect rural landowners. In reality, this bill would have affected predominantly high-growth urban properties. Rural landowners simply aren’t faced with the issues of high traffic and decreased access to customer traffic that this bill targeted. In fact, if this bill had been allowed to pass, rural taxpayers like all Texans would have been forced to pay more taxes to fund land purchases in urban areas because of the increases in litigation.
While I am firmly committed to ensuring increased fairness for Texas landowners, amendments added to an otherwise good bill very late in the process were done to benefit condemnation lawyers and place a disproportionate burden on Texas taxpayers. I encourage the legislature to continue to work on striking a balance that allows Texas landowners to be treated with fairness and respect for their property rights while simultaneously asking their neighbors to pay a reasonable amount for their land.
Texas can find a middle ground, and it shouldn’t cost billions of dollars to do so.
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