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Proposition 11 limits governments’ right to take private property


Posted by: tdt -

By Robin Scott

    Constitutional amendments on a Texas ballot are nothing new.  This year’s election, scheduled for November 3rd is no exception; however, one proposed amendment has created a great deal of chatter and excitement.  Texas Proposition 11, also known as House Joint Resolution 14-1 (HJR 14-1) deals with eminent domain and the government’s right to take land for non-public use.  

    The amendment will prohibit the government from acquiring land for non-public use and also require the government to first determine if each property in a neighborhood is blighted before deciding if the neighborhood itself is blighted.   The portion of the proposition that is creating the most interest is the limitation a Constitutional Amendment will place on government entitities.

    If passed, the Constitutional Amendment will limit the taking of private property by eminent domain, prohibit the taking of private property to give to another private entity for the purpose of economic development or enhanced tax revenue, limit the use and ownership of property taken by eminent domain to either the state or the public at large, require new entities seeking the power of eminent domain to be approved by a two-thirds vote of the Legislature and require condemnation for urban blight to address each particular property.

    The actual language on the ballot states, “The constitutional amendment to prohibit the taking, damaging, or destroying of private property for public use unless the action is for the ownership, use, and enjoyment of the property by the State, a political subdivision of the State, the public at large, or entities granted the power of eminent domain under law or for the elimination of urban blight on a particular parcel of property, but not for certain economic development or enhancement of tax revenue purposes, and to limit the legislature’s authority to grant the power of eminent domain to an entity.”

    HJR 14-1 would amend the constitution to provide that the taking of private property for public use is authorized only if it is for the ownership, use, and enjoyment of the property by the State, its political subdivisions, the public at large, or by entities granted the power of eminent domain, or for the removal of urban blight.

    The amendment would prohibit the taking of private property for transfer to a private entity for the purpose of economic development or to increase tax revenues. The amendment would also limit the legislature’s authority to grant the power of eminent domain in the future unless it is approved by a two-thirds vote of all the members elected to each house.

    Proponents argue that Proposition 11 adds key protections against abuses of the power of eminent domain by defining in the Constitution the legitimate purposes for which property may be taken. Current language in the Constitution governing eminent domain is very broad, stating that no person’s property should be taken for a public use without adequate compensation. The existing language does not specify what constitutes a legitimate “public use.”

    Opponents argue Proposition 11 could have unintended consequences by introducing language into the Constitution that courts ruling on eminent domain cases could interpret in varying ways. The proposed constitutional amendment could create a gray area around the legitimate uses of eminent domain and be an invitation for future litigation that would be costly for the state and local governments.

    Proposition 11 came about after a U. S. Supreme Court decision that allows units of government to take private property from one person and transfer it to another for economic purposes, which basically means for increased tax revenue to the government entity.  (Kelo v. City of New London)  In Kelo New London, Connecticut officials decided they needed Kelo’s land and the surrounding 90 acres for a multimillion-dollar private development that included residential, hotel, conference, research and development space and a new state park that would complement a new $350 million Pfizer pharmaceutical research facility.  

    Kelo and six other homeowners fought all the way to the U.S. Supreme Court and in 2005 the Justices voted 5-4 against them, giving cities across the country the right to use eminent domain to take property for private development.  Ironically, the land that was taken now sits barren, as the project never got underway.

    Proponents of the proposition want to see government limited in its right to take private property for public use.  Chad Hicks, board member of Farm Bureau Insurance and an agricultural producer from Hartley County stated, “It is very important to vote for Proposition 11 on November 3rd.  Everyone in Texas that owns property could be affected by the Kelo ruling and Proposition 11 is a positive step for the future of Texas.”

    State Senator Kel Seliger, District 31, provides information about all of the propositions on the November ballot in a letter to constituents. He suggests that voters visit http://www.sos.state.tx.us/elections/voter/2009novballotlang, http://www.sos.state.tx.us/elections/voter/2009novballotexp.shtml and

http://www.hro.house.state.tx.us/focus/amend81.pdf.