State database will identify eminent domain authorities
San Antonio Express-News
By Glenn Hegar
Eminent domain. It’s a bland term for one of the oldest and most controversial powers that governments have — the power to seize or use private property for a so-called “public good.”
It’s not outright theft, though landowners often feel otherwise. In part it’s because it’s not the landowner who names the price, although the Texas and federal constitutions both stipulate that those whose land is affected must be compensated.
Naturally, eminent domain has never been popular with landowners, especially in Texas. With 94 percent of Texas lands held privately, our citizens naturally feel a deep connection with the land they own. I’m one of them, farming land that’s been in my family since the mid-19th century.
Even so, I realize that some minimal use of eminent domain is inevitable and without access to private land, we wouldn’t have roads, sewers, electric power grids and pipelines.
But in recent years, our faith in those who decide the “public good” has suffered, to put it mildly.
America’s skepticism about eminent domain really caught fire after the U.S. Supreme Court’s disastrous 2005 decision in Kelo vs. City of New London, which stated that homes can be taken for the benefit of private developers if the project promises to enhance a community’s economic development. The case involved homeowners uprooted to make way for a planned development in New London, Connecticut. You may remember that the development plan fell through, leaving overgrown fields where a neighborhood once had been.
Here in Texas, we’re dealing with a current and flagrant example of eminent domain overreach. The U.S. Bureau of Land Management has told owners in an area of about 90,000 acres along the Red River — deeded land that Texans have lived, worked and paid taxes on for generations — that their property actually belongs to the federal government due to a decades-old change in the course of the river. Texas landowners and the state are fighting that one right now.
The number of entities with potential eminent domain power has skyrocketed over the years. My office’s best guess is that at least 6,300 public and private entities in Texas claim some form of eminent domain powers, including state agencies, local governments, special districts, pipeline companies and utilities. Unfortunately, no one really knows how many there are.
And it’s hard to get a handle on the dimensions of a problem when you can’t even identify all the players.
Thankfully, I can report that Texas is taking an important first step. The 2015 session of the Texas Legislature charged my office with assembling the first-ever online database of entities claiming eminent domain powers in Texas. We recently opened the online reporting form for these entities and expect to have the completed database ready later this year.
With this database, Texans will be able to see contact information for each entity, the legal provisions granting it eminent domain authority and the focus or scope of that authority, and whether it has used this authority in the preceding year by filing a condemnation petition, among other data.
This is clearly an area in which transparency is absolutely essential. Knowing who can use eminent domain is the first step to ensuring that this potentially oppressive power is used wisely.
The database is a good start, but it’s only a start. Right now, the law only calls for up to a $2,000 civil penalty against entities that don’t provide us with their information — which is not likely to intimidate entities willing to abuse their power.
If you’re interested in this issue, I urge you to contact your state and local leaders and let them know where you stand. Our right to own and use private property as we see fit is the most basic freedom our nation provides — and it’s up to us to make sure we keep it.
Entities with eminent domain authority should supply the information requested in SB 1812 at comptroller.texas.gov/webfile/eminent-domain/.
Glenn Hegar is Texas comptroller of public accounts.