Article I, Section 17 of the Texas Constitution ("Taking Property for Public Use; Grant of Special Privileges and Immunities")

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As amended November 3, 2009:

(a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for: (1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by: (A) the State, a political subdivision of the State, or the public at large; or (B) an entity granted the power of eminent domain under law; or (2) the elimination of urban blight on a particular parcel of property.

(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.

(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.

(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.

Editor Comments

As adopted in 1876, this section read: "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and, when taken, except for the use of the State, such compensation shall be first made, or secured by deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature or created under its authority shall be subject to the control thereof."

It has been amended once. The 2009 amendment established specific limitations on the taking of private property for public use, excluded certain purposes from the definition of public use, and increased the legislative vote needed to delegate eminent domain authority to non-governmental entities.

Over the years, the section has been heavily litigated at each level of the state's judiciary. And, not surprisingly, a significant number of scholarly articles have been written regarding the state's takings jurisprudence. See, e.g., Chloe Stevens, Raising Constitutional Eyebrows on Private Takings and Due Course of Law: Where Do We Go from Here?, 70 Baylor L. Rev. 666, 684 (2018) (footnotes omitted) ("Traditionally, the Texas courts have applied rational basis review of a governmental regulation that results in a taking. These regulatory takings can happen in a variety of different ways: eminent domain, condemnation, inverse condemnation, and zoning ordinances.").

Steve Smith

Recent Decisions

  • KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 186-87 (Tex. 2019) (citation omitted) ("A city may take private property when it determines the property is necessary for a public use so long as it provides just compensation to the property owner. To establish a valid exercise of eminent domain, a municipality must show it intends to put the property to public use and that the condemnation is necessary to advance or achieve that public use. . . . Similarly, the mere fact that a particular individual, group, or enterprise may benefit will not deprive the use of its public character.")
  • Porretto v. Texas Gen. Land Office, 448 S.W.3d 393, 401 (Tex. 2014) ("We are mindful that Article I, Section 17 [] requires compensation for private property 'damaged' as well as 'taken'. And we find troubling the defendants' continued assertion of claims it later abandoned, having been made aware of the Porrettos' contention that those claims were impeding the sale of the Porrettos' property. But as we have said, mere claims do not rise to the level of action requiring compensation under the Constitution. We conclude that the Porrettos are not entitled to prevail on their taking claim.")
  • Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012) ("Hearts Bluff brought an inverse condemnation claim against the State. Inverse condemnation is 'a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain . . . . This dispute raises the question of when the State's actions affecting the regulation of property become a taking, compelling us once again to venture into the 'sophistic Miltonian Serbonian Bog.'")
  • Texas Rice Land Partners v. Denbury Green Pipeline-Texas, 363 S.W.3d 192, 194-95 (Tex. 2012) (footnotes omitted) ("The Texas Constitution safeguards private property by declaring that eminent domain can only be exercised for 'public use.' Even when the Legislature grants certain private entities 'the right and power of eminent domain,' the overarching constitutional rule controls: no taking of property for private use. Accordingly, the Natural Resources Code requires so-called 'common carrier' pipeline companies to transport carbon dioxide 'to or for the public for hire.'")
  • Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004) (footnotes omitted) ("Sheffield makes no claim under the Takings Clause of the Fifth Amendment to the United States Constitution, which is made applicable . . . . As the court of appeals noted, it could be argued that the differences in the wording of the two provisions are significant, but neither Sheffield nor the City makes this argument. Both agree that in applying the Texas constitutional provision in this case, we should look to federal jurisprudence for guidance, as we have in the past, and so we do.")

Historic Decisions

  • Religious of Sacred Heart of Texas v. City of Houston, 836 S.W.2d 606, 617-18 (Tex. 1992) ("The broad concept of market value, combined when necessary with the particularized rules involving partial takings and special purpose properties, has adequately served as the measure of compensation in Texas condemnation cases for over a century. Although presenting unique and sympathetic . . . . In summary, we hold that the substitute facilities doctrine does not apply to the taking of a private school and that the City properly preserved error in regard to the erroneous use of the doctrine.")
  • Texas Power & Light Co. v. City of Garland, 431 S.W.2d 511, 517 (Tex. 1968) ("The foregoing definition of the police power is consonant with the underlying ideas expressed in the City of Houston case. Those fundamental concepts protect the contractual rights of the private enterprise from arbitrary and unreasonable alteration by legislation, unless the statute or ordinance directly promotes the general health, safety, and welfare of the public. We think this is the true meaning arising from the interrelation of Article 1, § 17 and Article 1 § 19 of the Texas Constitution.")
  • City of San Antonio v. Congregation of the Sisters of Charity, 404 S.W.2d 333, 334 (Tex.Civ.App.–Eastland 1966, no writ) ("It is well settled that the power of eminent domain is an inherent attribute of sovereignty and exists independently of the Constitution. It is held that the State in the exercise of its sovereign authority can take, damage or destroy property for public use subject to the right . . . . It is further held, however, that an attempt or threatened attempt to take private property for public use may be restrained by injunction when the proceeding is for any reason void.")
  • DuPuy v. City of Waco, 396 S.W.2d 103, 110 (Tex. 1965) (footnote omitted) ("The initial and primary question is whether DuPuy's access rights have been impaired to an extent which constitutes a damage to property for a public use under Article I, Sec. 17, of the Constitution of Texas. In our view this is a question of law and we hold . . . . We are clear in the view that the construction of the viaduct has deprived DuPuy of reasonable access which entitles him to invoke the provision of the Constitution requiring the payment of compensation when property is damaged for a public use.")
  • Maher v. Lasater, 354 S.W.2d 923, 926 (Tex. 1962) ("The only possible public purpose conceivable which the road in this case can serve is that of putting the products of the soil and the range of Section 331 into the economy . . . . No good purpose would be served by analyzing the many cases cited by the parties. The simple fact is that the Commissioners Court of Brooks County has entered an order which, if given effect, will, on the facts in this case, take petitioners' land for the private benefit of respondent Lasater. The order violates Section 17 of Article 1 of the Constitution and is void.")
  • Davis v. City of Lubbock, 326 S.W.2d 699, 705 (Tex. 1959) ("So the Constitutional Convention of 1875 had before it the language of the previous constitutions and the interpretation of the court in Smith v. Taylor. The reports of the debates in the Constitutional Convention are not full. . . . No reference is made to any discontent over the condemnation of private land for the seat of the government with sale of lots to the highest bidder to private individuals. The provision regarding 'public use' was readopted, as far as this question is concerned, in the present Constitution of 1876.")
  • City of Corpus Christi v. Allen, 254 S.W.2d 759, 761 (Tex. 1953) ("Since the non-conforming uses here sought to be enjoined are not shown to constitute nuisances, and do not appear to be harmful in any way to public health, safety, morals, or welfare, we conclude that to invoke petitioner's [comprehensive zoning] ordinance to compel respondents to cease operating their business or to move them to another district would be an unreasonable exercise of petitioner's police power and would constitute a taking of their property in violation of Art. I, Sec. 17, of the Constitution of Texas.")
  • Texas Highway Dep't v. Weber, 219 S.W.2d 70, 72 (Tex. 1949) ("The constitutional provision of Texas under consideration, and more or less similar provisions are contained in the constitutions of all the states of this nation, without doubt, constitutes a limitation upon the right of eminent domain . . . . Instead, the provision relates only to private property which is taken for public use. Manifestly, it was not intended that where private property has been damaged or destroyed through the tortious conduct of the state's agents in the performance of their official functions the state should be suable.")
  • Housing Authority of Dallas v. Higginbotham, 143 S.W.2d 79, 83-84 (Tex. 1940) ("The question as to whether slum clearance and low rent housing are public uses and purposes is a new question in this jurisdiction. The question has been presented to the courts of last resort in the following jurisdictions and has been determined without exception to be a public use: . . . . Mere fiat, whether pronounced by the Legislature or by a subordinate agency, does not make that a public use which is not such in fact, and the question (always present) as to the true nature of the use is one of law.'")
  • City of Austin v. Nalle, 120 S.W. 996, 996 (Tex. 1909) ("Eminent domain is defined to be: 'The sovereign power vested in the state to take private property for the public use, providing first a just compensation therefor.' 15 Cyc. 557. 'Taxes are defined to be burthens, or charges, imposed by the legislative power of a state upon persons or property, to raise money for public purposes.' Clegg v. State, 42 Tex. 608. The former takes specific property (not money) upon paying compensation therefor. The other takes money, the only compensation being that it will be appropriated according to law.")
  • Storrie v. Houston City St. Ry. Co., 46 S.W. 796, 799 (Tex. 1898) ("This provision of the constitution was in force at the time the street-railway company acquired its right in the streets of Houston and before the mortgage of the trust company was executed. The rights of both the street-railway company and the mortgage company were acquired subject to the control of the legislature upon this question. The legislature had the right to enact the law of 1891, amending the charter of Houston, by which the liability of the street-car company for the cost of paving the street was enlarged.")
  • Travis County v. Trogden, 31 S.W. 358, 359 (Tex. 1895) ("In order to make such guaranty perfect, it was provided in 1876 that 'such compensation shall be first made, or secured by a deposit of money.' The evil, however, did not exist in that class of cases where the right of eminent domain had been exercised in behalf of the state, whether directly, in its own name, or through one of its counties; for the state has control of its own finances and those of its governmental subdivisions . . . and the presumption must have been indulged that the state would deal justly with its citizens.")
  • City of Houston v. Houston City St. Ry. Co., 19 S.W. 127, 131 (Tex. 1892) ("[T]his particular clause of the constitution was intended to prohibit the legislature from granting any 'special privilege or immunity' in such way, or of such character, as that it could not be subsequently annulled or declared forfeited for such causes as might be defined by the law, or condemned in the exercise of eminent domain [] and it was further intended that 'all privileges and franchises' granted by the legislature, or under its authority, should at all times remain subject to legislative control and regulation.")
  • Keller v. City of Corpus Christi, 50 Tex. 614, 627-28 (1879) ("This provision as to the deposit of money in advance, was evidently intended more particularly to provide speedy adequate compensation for property taken in the exercise of the sovereign right of eminent domain, rendered more frequent by the rapidly-increasing demand for railroads and . . . . There is, however, a distinction between the exercise of the right of eminent domain, and that of a police regulation to meet an impending peril, by the destruction of an adjacent building to prevent the spread of fire.")
  • Buffalo Bayou, B. & C.R. Co. v. Ferris, 26 Tex. 588, 598 (1863) ("It cannot be questioned that a railroad for general travel, or the transportation of produce for the country at large, is a 'public use,' for the construction of which private property may be taken or applied upon adequate compensation for it being made. That the road for the construction of which the property when taken is to be applied is a corporation of private individuals to whose benefit the profits of the road, when complete, will alone accrue, furnishes no valid objection to such appropriation of private property.")

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