Texas Constitution:Article I, Section 17: Difference between revisions

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Texas Constitution:Article I, Section 17 (view source)

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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.
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, [https://www.baylor.edu/law/review/doc.php/335429.pdf#page=19 684] (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.").
Over the years, the section has been heavily litigated at each level of the Texas 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, [https://www.baylor.edu/law/review/doc.php/335429.pdf#page=19 684] (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.").


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* ''City of College Station v. Turtle Rock Corp.'', 680 S.W.2d 802, [https://scholar.google.com/scholar_case?case=15148787942858674878#p804 804] (Tex. 1984) (citations omitted) ("Recognizing the illusory nature of the problem, we have previously refused to establish a bright line for distinguishing between an exercise of the police power which does constitute a taking [under this section] and one which does not. Instead, the cases demonstrate that a careful analysis of the facts is necessary in each case of this kind. . . . The question of whether a police power regulation is proper or whether it constitutes a compensable taking is a question of law and not of fact.")
* ''City of College Station v. Turtle Rock Corp.'', 680 S.W.2d 802, [https://scholar.google.com/scholar_case?case=15148787942858674878#p804 804] (Tex. 1984) (citations omitted) ("Recognizing the illusory nature of the problem, we have previously refused to establish a bright line for distinguishing between an exercise of the police power which does constitute a taking [under this section] and one which does not. Instead, the cases demonstrate that a careful analysis of the facts is necessary in each case of this kind. . . . The question of whether a police power regulation is proper or whether it constitutes a compensable taking is a question of law and not of fact.")
* ''Steele v. City of Houston'', 603 S.W.2d 786, [https://scholar.google.com/scholar_case?case=6903303875456557455#p789 789] (Tex. 1980) ("The taking, the damaging, or the destruction of property are often treated, more or less, as synonyms, but the terms are different and have different historical origins. . . . But the terms have a scope of operation that is different. Property that is taken is transferred from one owner to another. Recent decisions by this court have broadly applied the underlying rationale to takings by refusing to differentiate between an exercise of police power, which excused compensation, and eminent domain, which required compensation.")


* ''Texas Power & Light Co. v. City of Garland'', 431 S.W.2d 511, [https://scholar.google.com/scholar_case?case=9341782243928193175#p517 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.")
* ''Texas Power & Light Co. v. City of Garland'', 431 S.W.2d 511, [https://scholar.google.com/scholar_case?case=9341782243928193175#p517 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.")
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* ''City of Corpus Christi v. Allen'', 254 S.W.2d 759, [https://scholar.google.com/scholar_case?case=7019846825364912762#p761 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.")
* ''City of Corpus Christi v. Allen'', 254 S.W.2d 759, [https://scholar.google.com/scholar_case?case=7019846825364912762#p761 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, [https://texaslegalguide.com/images/219_SW2_70.pdff#page=3 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.")
* ''Texas Highway Dep't v. Weber'', 219 S.W.2d 70, [https://texaslegalguide.com/images/219_SW2_70.pdf#page=3 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, [https://texaslegalguide.com/images/143_SW2_79.pdf#page=5 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.'")
* ''Housing Authority of Dallas v. Higginbotham'', 143 S.W.2d 79, [https://texaslegalguide.com/images/143_SW2_79.pdf#page=5 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.'")
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|seo_title=Article I, Section 17 of the Texas Constitution ("Taking Property for Public Use; Grant of Special Privileges and Immunities")
|seo_title=Article I, Section 17 of the Texas Constitution ("Taking Property for Public Use; Grant of Special Privileges and Immunities")
|seo_keywords=Article 1 Section 17, Texas Takings Clause, eminent domain
|seo_keywords=eminent domain<!--term is key search term-->, Article 1 Section 17, takings clause
|seo_description=No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.
|seo_description=No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.
|seo_image_alt=Texas Bill of Rights
|seo_image_alt=Texas Bill of Rights
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