Eminent Domain and Condemnation Law

Learn about eminent domain & condemnation, and find out what your rights are under Texas law.

What is Eminent Domain?

Texas Eminent Domain is the right of the government to take or acquire private property for a public use. Some non-governmental or quasi-governmental entities that provide public services, such as electricity, natural gas and water, also have the power of eminent domain.

Eminent domain is the right or authority of government to take private property for public use. The takings process itself is called condemnation.   The attorneys at Hammerle Finley Law Firm have represented parties on all sides of the table - landowners, condemning public authorities and condemning private companies, as well as serving as court-appointed commissioners.

The Landowner’s Bill of Rights

Texas property cannot be taken unless the condemning authority first gives the Landowner’s Bill of Rights* to the affected Texas property’s owners.

If negotiations with the Texas property owner are unsuccessful, the government or entity exercising the power of Texas eminent domain will file a civil lawsuit to acquire the property through a condemnation proceeding and trial, if necessary.

The Process

Condemnation is the legal process through which a governmental unit, such as TX-DOT, takes or acquires private property under its power of eminent domain. The process begins by TX-DOT sending out letters to owners of property that it wants to buy, such as may happen for the I-35E corridor in Denton County or the I-635 expansion. TX-DOT offers a buy-out price. If negotiations with the property owner are unsuccessful, the government or entity exercising the power of eminent domain will file a civil lawsuit to acquire the property through a condemnation proceeding and trial, if necessary.

In Denton County, condemnation actions are filed in the Denton County Probate Court. The Judge appoints three people to act as Special Commissioners, and the case is first tried before them. The Commissioners make a finding. If the parties agree, the case ends there. If they do not agree, then the commissioner's finding is appealed and goes to a new trial before the judge or jury. case goes before a judge (or jury)

Fair Compensation

The condemning authority must prove the property taking is for a public use and is necessary. The U.S. Constitution and Texas Constitution require the government or entity exercising the power of eminent domain to offer the property owner just compensation for the taking. Just compensation is defined as fair market value of the property being acquired and the damages, if any, to the remainder property.

Fair market value is what a willing seller, not obligated to sell, would accept for the property and what a willing buyer, not obligated to buy, would pay for the property. Your current use of the property may not be the appropriate measure for fair market value. As a Texas property owner, you are entitled to a valuation that includes the “highest and best use” of your property.

A property owner is entitled to contest the government’s offer of just compensation through negotiations, special commissioners’ hearings and jury trial.

We offer a free consultation to landowners facing an eminent domain claim. Our attorneys handle Texas condemnation matters on either a contingency or on hourly fees.

The Texas Landowner’s Bill of Rights consists of 10 basic principles:

1. You are entitled to receive adequate compensation if your property is taken for a public use.
2. Your property can only be taken for a public use.
3. Your property can only be taken by a governmental entity or private entity authorized by law to do so.
4. The entity that wants to take your property must notify you about its interest in taking your property.
5. The entity proposing to take your property must provide you with an assessment of the adequate compensation for your property.
6. The entity proposing to take your property must make a good faith offer to buy the property before filing a lawsuit to condemn the property.
7. You may hire an appraiser or other professional to determine the value of your property or to assist you in any condemnation proceeding.
8. You may hire an attorney to negotiate with the condemning entity and to represent you in any legal proceedings involving the condemnation.
9. Before your property is condemned, you are entitled to a hearing before a court-appointed panel that includes three special commissioners.
10. If you are unsatisfied with the compensation awarded by the special commissioners, or if you question whether the taking of your property was proper, you have the right to a trial by jury.

Texas' Inverse Condemnation Law in Action

At the heart of Texas’ inverse condemnation law is the idea that no person’s property should be taken for public use without adequate payment.

Sometimes a government taking is obvious – such as a condemnation of land to build a public highway. Other times, however, it is more insidious.

In 1990, the Tarrant Regional Water District began releasing water from a reservoir located on the Trinity River. Shortly after the release, the Gragg family ranch, located 8 miles away, suffered intense flooding. This was not a one-time problem – the release of reservoir water led to flooding several other times. The land was no longer suitable for cattle-ranching.

The Gragg family sued the Tarrant County Water District under Texas’ Private Real Property Rights Preservation Act. The case eventually ended up in the Texas Supreme Court.

After finding that there was sufficient evidence to support a link between the water release and the flooding on the Gragg’s ranch, the Court turned to applying the law. The Court said the law was based on the premise that the government should not force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

The Court decided that a taking may be physical or regulatory. A physical taking occurs when the government physically appropriates or invades private property, or unreasonably interferes with the landowner’s right to use and enjoy it. There is, however, a huge loophole in the law that works in favor of the government. There has been no “taking” if mere negligence contributed to the property damage.

Because the flooding had occurred on several occasions, the Court decided that the District’s actions altered the property’s characteristics. The Court found that the District had inversely condemned the property by its actions. It gave the District a permanent flowage easement over the property, but awarded the Gragg family $4 million in damages. Other landowners have not fared so well under the law.

Protecting Your Land Ownership Rights

If you're feeling threatened by the prospect of the government utilizing Texas' Eminent Domain laws on your family's property, don't hesitate to give the experienced legal team at Hammerle Finley Law Firm a call. We'll advise you on your rights and help you retain your property or collect every last penny's worth of its value. Call Us Today at 972-436-9300