Thursday, March 31, 2011

SB 18 a Lock to Become a Law, Right?

On Mar. 22 the House Committee on Land and Resource Management unanimously passed Senate Bill 18, better known as the eminent domain bill, 9-0.  The passing comes 22 days after Bill Peacock, Vice President of Research and Planning & Director, of the Texas Public Policy Foundation delivered an eloquent and practical message to the Committee on Land and Resource Management. 

Peacock opened up his speech by giving the root of where the current eminent domain laws stemmed from, the Supreme Court ruling on the Kelo case in 2005.  Kelo essentially stated that private property is not a fundamental civil right, but a privilege granted by the state at its sole discretion.  Peacock then proceeded to give a brief history of where the bill has been over the past 3 Legislative sessions.  Finally, before giving recommendations, Peacock outlined the battle between public purpose and public use, citing that eminent domain was strictly enacted for “public use” in its first 150 years of existence.  Only over the past 50 years has the definition been skewed to include “public purpose,” in essence rewording the Fifth Amendment to fit the Supreme Court’s desire.

“The Court ruled that the removal of blight was a public “purpose,” despite the fact that the word “purpose” appears nowhere in the text of the Fifth Amendment . . . By effectively changing the wording of the Fifth Amendment, the Court opened a Pandora’s box, and now properties are routinely taken pursuant to redevelopment statutes when there’s absolutely nothing wrong with them except that developers covet them and the government hopes to increase its tax revenue,” said Peacock.

Peacock concluded by saying that the Texas Legislature has closely followed the national trend of blurring public use and public purpose.  He acknowledges steps in the right direction over the past three sessions, but calls for a stronger stance to re-root Texas to fix the Kelo problem.  These four additional changes where offered:

· Ban the use of eminent domain if a taking is not necessary for a public use.
· Allow property owners to repurchase their property at the price paid when it was taken if the property taken is not used for the public use for which it is taken within 10 years.
· Replace all references to “public purpose” with “public use” where the law grants the power of eminent domain
· Require condemners to bear the burden of proof that they are taking land for a public use, and that the taking of the land is necessary for that purpose.

With the momentum that SB 18 has gained, the next logical step would be for the bill to be sign into the law by Gov. Rick Perry, one would think.  According to a very credible blog entry, on the, that isn’t necessarily the case. 

The status of SB 18, while seems promising, is still very much up in the air.  Gov. Perry will have the final decision, and supporters are hoping that the last 3 legislative sessions aren’t an indication of his future actions.      


- Michael Levy

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