Ballot Language:

The constitutional amendment to allow governmental entities to sell property acquired through eminent domain back to the previous owners at the price the entities paid to acquire the property.

HJR-30 History

(Enabling legislation is HB 217 (did not make it out of the House Land & Resource Management Committee) and HB 2006 (vetoed by Gov. Perry for other reasons in a slimy smear of Rep. Beverly Woolley).)

This amendment allows a governmental entity to sell back land taken by force to the person it was taken from at the same price paid, if it meets one of three conditions:

• the public use for which the property was acquired had been canceled;
• no actual progress was made toward the public use during a prescribed period of time; or
• the property was unnecessary for the public use.

Under current law, it would be considered illegal to sell it back below current market value because it could be construed as showing favoritism, graft or a gift. It doesn’t require that government entities sell it back at the original purchase price, it allows it.

If passed, the amendment may or may not mean anything due to the enabling legislation being defeated. See the comments for and against for more information.

BigJolly says: I think that eminent domain is abused and misused too frequently by governmental entities. Cities and counties grab far more land than they need, hold it forever, then sell it at a profit. Landowners are deprived of the use of the land during that time and should be able to purchase it back for the same price paid.

The enabling legislation in the form of HB 217 was presented by a conservative Republican who was deemed a Taxpayer’s Hero of the 80th Legislature by Texans for Fiscal Responsibility, which gives me a fair amount of assurance that it should have been passed.

I’m going to be voting for it, if for no other reason than close my eyes and pretend I’m sticking it to Gov. Perry for allowing (ordering?) his spokesman Robert Black to smear Rep. Beverly Woolley.

Click to read comments for and against.

From the Texas Legislative Council Summary (note: 131 page pdf file):

Comments by Supporters: House Joint Resolution No. 30 allows property to be sold back to property owners whose property was acquired through eminent domain under certain conditions at the price the condemning entity paid for the property. Although selling property acquired through eminent domain to the previous property owner at the price the governmental entity paid, which may not be equivalent to the current market value of the property, might be construed as giving a public benefit to a private individual, it is just a matter of fairness. If the amendment results in giving certain property owners a windfall from any
increase in the value of the property, the amendment is still fair because it would be a disincentive to governmental entities taking property they may not need and may indirectly reduce instances in which property is taken through eminent domain.

Private property rights are some of the most fundamental rights we have as individuals in this country. Thus, if there is going to be an imbalance related to the acquisition of private property for public use, the balance should be in favor of the private property owner, not the state. There is something fundamentally wrong with forcing a private property owner to pay more for the owner’s former property than the government paid for it when the government acquired it, even though the value of the property may have increased. Furthermore, “just compensation” should allow the previous owner of property acquired through eminent domain to be compensated for not being able to market the property during the time the condemning entity owned the property. House Joint Resolution No. 30 will give a governmental entity an incentive to be more specific as to the purpose for which the entity is acquiring private property and prevent the entity from benefiting from the acquisition after it has failed to use the property for the purpose for which the property was acquired.

Additional Comments by Supporters After Veto of H.B. No. 2006: Proponents of House Joint Resolution No. 30 assume that the proposed amendment is self-executing, which means that the amendment would take effect without enabling legislation and that the governor’s veto of House Bill No. 2006 would not prevent the amendment from beginning to operate.
Under the proponents’ assumption, the existing provisions of Chapter 21, Property Code, would likely continue to require a governmental entity to offer to sell back property acquired through eminent domain at the property’s fair market value if the public use for which the property was acquired by the entity is canceled before the 10th anniversary of the acquisition. Reading the new constitutional provision and the preexisting statutes together under the proponents’ assumption, a governmental entity would continue to be required to offer to sell the property back to the previous owner, or the owner’s heirs, successors, or assigns, for fair market value under the circumstances described by the statute, but the entity would also have the authority to offer the property to those persons for the price the entity paid to acquire it. Also, because the constitutional provision does not refer to a time period with respect to cancellation of the public use, the entity might be considered to have the authority to offer the property back to those persons for the entity’s acquisition price if the public use is canceled after the 10th anniversary of acquisition.

Furthermore, in the absence of a prescribed statutory time period during which actual progress toward the public use for which the property was acquired through eminent domain must be made, the constitutional amendment might be read to allow a governmental entity to establish under the rulemaking authority of the entity a time period after which, if no actual progress is made toward the public purpose for which the entity acquired the property through eminent domain, the entity would or could offer the property at the price the entity paid to acquire it. Proponents also assume that if a governmental entity determines property it acquired through eminent domain is unnecessary for the public use for which the property was acquired, the constitutional amendment would authorize, but not require, the entity to offer to sell the property back at the price the entity paid to acquire it.

Comments by Opponents: House Joint Resolution No. 30 gives property owners a fi nancial windfall because selling property to previous property owners at the price the governmental entity paid for that property does not account for: (1) any increased value in the property; (2) property taxes and other maintenance costs for the property that have accrued between
the time the property was acquired and the time a condition was met for repurchase; and (3) the cost, including the cost for bonds and enhancing the property, paid by the governmental entity for the property.

The proposed amendment would have significant unintended consequences and could tie the hands of municipalities. Furthermore, there is not a great need for the amendment because the price at which property can be repurchased is not a significant problem because cancellation, which occurs when the public use for which property acquired through eminent domain is canceled by the 10th anniversary of the date of acquisition,
rarely occurs.

The proposed amendment also creates a disincentive for a property owner to negotiate a deal with a governmental entity because the option of repurchase is only available to a property owner whose property was condemned by eminent domain, not to an owner who negotiated a deal with the governmental entity in a voluntary transaction.

Additional Comments by Opponents After Veto of H.B. No. 2006: Opponents of House Joint Resolution No. 30 assume that the proposed amendment would have no effect because of the veto of House Bill No. 2006, which the opponents consider to be the enabling statute for the amendment. Under the opponents’ assumption, House Joint Resolution No. 30 is not self-executing, which means that the amendment requires enabling legislation to take effect. Opponents argue that if the amendment passes in November 2007, it would have no effect because there is no general law to implement the authorization. Thus, passage of the amendment would only authorize the legislature to adopt a general law in the future to allow a governmental entity to offer to sell real property acquired through eminent domain to the previous owner, or to the owner’s heirs, successors, or assigns, for the price the governmental entity paid for the property at the time the property was acquired. Therefore, opponents
assume that the governmental entity can only continue to offer to sell property back to owners under existing law, which requires the entity to offer to sell the property back to owners at the fair market value of the property if the public use for which the property was acquired is canceled before the 10th anniversary of the acquisition, regardless of the circumstances and price provided by the amendment.