Strasburger Governmental Newsletter Online
PREPARED BY

Carlos Garcia
Carlos Garcia

901 Main Street
Suite 4400
Dallas, Texas 75202
214.651.4821 Direct
carlos.garcia@
strasburger.com






Use it or Lose it - Mandatory Requirements for Governmental Entities to Maintain the Power of Eminent Domain (under Senate Bill 18 of the 82nd Legislature Regular Session)

For the past decade, landowners and the Texas Legislature have struggled to find any common ground in the realm of eminent domain.  Both sides agreed that change was needed but had been unable to agree on any meaningful compromise.  Senate Bill 18 is the final result of six years of failed attempts by the Texas Legislature to pass an eminent domain reform bill.

While the language of Senate Bill 18 and its practical implications upon Texas Eminent Domain law may be debated, it is clear that the Bill requires the immediate attention of condemning authorities in order to maintain their power of eminent domain.  Condemning authorities may lose their power of eminent domain if they do not strictly follow the new requirements of the Texas Government Code!!!

Reactions to SB 18 Vary Greatly

While Senate Bill 18 is formally entitled “an Act relating to the use of eminent domain authority,” reaction to this Bill has varied wildly throughout the State.  Texas Governor Rick Perry characterized Senate Bill 18 as providing “stronger eminent domain provisions protecting Texas landowners from local and state government entities that might consider abusing private property rights.”1  Many agree with the governor that this legislation provides Texans with landmark private property protections.  The Texas and Southwestern Cattle Raisers Association call Senate Bill 18 “…something Texas ranchers have been working toward for a very long time….a new eminent domain law that will protect the private property rights of Texans….”2  Rosalee Coleman, President of the Independent Cattleman’s Association of Texas has stated “SB 18 ensures that all Texas landowners will have a level playing field when facing eminent domain proceedings in the future.”3  Others such as the Texas Farm Bureau have celebrated Senate Bill 18 as “a landmark event in our state’s continued efforts to secure property rights for all Texas.”4  However, many grass roots organizations believe that Senate Bill 18 is not bona fide eminent domain law and that is merely an attempt to placate Texas landowners calling for more protections for property rights without affecting any real change to Texas’ current laws.5   As Billy Mitchell, a rancher and activist, put it “The bill is totally useless.  It’s doing what the creator designed it to do – make the voters think he’s doing something.”6

Required Report to Maintain Eminent Domain Authority

Senate Bill 18 took effect on September 1, 2011, and adds Subchapter C to Chapter 2206 of the Texas Government Code.  This Subchapter is entitled “Expiration of Certain Eminent Domain Authority.”  Section 2206.101 (b) of this subchapter requires as follows:

“Not later than December 31, 2012, an entity, including a private entity, authorized by the state by a general or special law to exercise the power of eminent domain shall submit to the comptroller a letter stating that the entity is authorized by the state to exercise the power of eminent domain and identifying each provision of law that grants the entity that grants that authority.”7
 

The goal of this section is to permit the comptroller to draft a report with the name of each entity with the power of eminent domain.8  If the entity does not send this required report to the comptroller by certified mail on or before the stated deadline, its power of eminent domain will expire on September 1, 2013.9

Future Legislation

It is unclear if or how an entity may regain the power of eminent domain if it fails to comply with these requirements.  The language of the Bill calls for a future legislative session to make a non-substantive amendment describing the state of the law after the expiration of an entity’s eminent domain authority.  Section 2206.101(e) of this new subchapter states as follows: “The Texas Legislative Council shall prepare for consideration by the 84th Legislature, Regular Session, a nonsubstantive revision of the statutes of the state as necessary to reflect the state of the law after the expiration of an entity’s eminent domain authority effective under Subsection (c).”10  This may provide these entities with an avenue for reacquiring their power of eminent domain.  However, despite this possibility, these entities are clearly best served by complying fully with these requirements of Senate Bill 18.




1 Press Release, Office of the Governor Rick Perry, Gov. Perry: The Dream of Property Ownership is Secure in Texas (May 23, 2011) (available online at http://governor.state.tx.us/news/press-release/16160/). 2 Press Release, Office of the Governor Rick Perry, What Others Are Saying About Eminent Domain (May 23, 2011) (available online at http://governor.state.tx.us/news/press-release/16161/).

3 Id.

4 Id.

5 Posting of Jeff Prince of the Fort Worth Weekly to TTC News Archives, Too Imminent,
http://corridornews.blogspot.com/2011/02/senate-bill-18-is-not-bona-fide-eminent.html (Feb. 16, 2011)

6 Id.

7 TEX. GOV. CODE § 2206.101(b)

8 Tex. S.B. 18, 82nd Leg. R.S. (2011).

9 TEX. GOV. CODE § 2206.101(c)

10 Id. at 2206.101(e).


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