Eminent domain power explodes locally
Five years ago, when the state of Texas passed new rules governing the use of eminent domain — the power that allows governments and corporations to take private land for public use — it had no idea how many entities had the authority to exercise it. Turns out it’s a lot, and growing fast.
The same legislative overhaul, known as Senate Bill 18, also required any entities that claim that authority to register with the state, or risk losing it. On top of that, a 2015 bill required the whole list to be made public.
Now, the results are in: A database released last month by Comptroller Glenn Hegar shows that just over 5,000 local governments and private companies say they were granted the power to use eminent domain sometime over the last two centuries. And the power is spreading rapidly. Since 2011, 502 entities have been granted eminent domain authority, putting this decade on track to beat the 2000s, which saw an all-time high of 902 entities gaining the power to take land.
That means a greater likelihood that someone could take your land, if it happens to have what the government decides is a higher public use.
The database doesn’t tell us how much that power has been exercised. Only 211 out of the 5,042 entities say they filed an eminent domain petition in 2015, for projects that
could include everything from pipelines to new schools to wider roads.
One clear takeaway from the database: Harris County appears to be the epicenter of eminent domain, both for entities claiming the authority to use it and for law firms that serve such entities.
In total, 1,227 entities claiming eminent domain authority are registered in Harris County — far outstripping the county with the next highest number, Dallas County, which has 239. So why is the Houston area so dominant?
One reason is something the Houston Chronicle has reported on extensively: The use of Municipal Utility Districts, tiny elected governments that have the power to raise taxes, issue bonds and take private land for public infrastructure projects. Statewide, nearly 30 percent of the entities with the power to use eminent domain are Municipal Utility or Water Districts, and two-thirds of those are registered in Harris County.
As the Chronicle’s James Drew and John Harden have shown, the creation of MUDs has been driven in part by the participation of law firms that earn fees by handling the MUDs’ legal work.
As it turns out, not all of the entities with the power to use eminent domain registered in Harris County are physically located in Harris County. Many are MUDs in neighboring counties, registered to the address of the Houston law firms that represent them.
For example, 284 entities are registered at 3200 Southwest Freeway, the offices of Allen Boone Humphries Robinson.
There are other reasons why Harris County seems to have more entities empowered to use eminent domain.
Other cities just have different ways of handling growth, without needing to take land outright, according to eminent domain lawyer Charles McFarland. In Dallas, for example, properties within towns typically carry easements that allow for public utility construction, no eminent domain required.
Of course, as ongoing debates around the use of eminent domain show, that can be a matter of very divided opinion.