Texas voters will decide in November whether Article I, Section 17, of the Texas Constitution — the “takings clause” that sets forth government’s power of eminent domain – will be amended. Proposition 11 tightens the reins on government’s ability to acquire private property for public use upon payment of just compensation.

The origins of Proposition 11 date to 2005, when the U.S. Supreme Court ruled in Kelo v. City of New London, Conn., that condemning property for purely economic development purposes was constitutional. More surprisingly, the court ruled government could rightly delegate its eminent domain power to private entities. Justice Sandra Day O’Connor’s succinctly summed up public opinion, stating, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.”

Texas legislators countered the ruling by adding the Limitations on Use of Eminent Domain statute to the Texas Government Code. The statute holds, in part, that a governmental or private entity may not take private property through the use of eminent domain if the taking: (i) confers a private benefit on a particular private party; (ii) is for a public use that is merely a pretext to confer a private benefit on a particular private party; or (iii) is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society. Voter approval of Proposition 11 would put these concepts in the Texas Constitution.

While most takings legitimately benefit the public — widening congested roadways, developing mass-transit rail facilities, building schools for expanding populations, improving detention to reduce flooding — a sporadic wrangling over what constitutes a public use may still remain if Proposition 11 is approved. For example, government will continue to have eminent domain power over blighted areas, but the definition of blighted remains ambiguous. Also not addressed by Proposition 11 are important elements of eminent domain actions, including the manner in which government acquires property and the debate concerning those elements of market value loss that constitute just compensation.

Senate Bill 18, which was not voted on by the House of Representatives, sets forth numerous landowner-leaning provisions dealing with the manner in which government acquires private property. Among other provisions are more strict guidelines concerning good faith negotiations criteria; the creation of a “Truth in Condemnation Procedures Act” that stiffens procedures relating to bona fide offers; and a tightly defined buyback provision. No doubt these issues will be the subject of spirited future debates.