Northeast Texas Eminent Domain Lawyers: What Constitutes a “Public Use”?

Guest and Gray, P.C. is the advocate of choice for landowners from Kaufman county, Rockwall county and Hunt county. We service all areas of Northeast Texas, from Forney to Farmersville, Greenville to Terrell, and all outlying areas of East and Northeast Texas.  We have a 100% success rate in obtaining additional compensation for our clients who face condemnation by a condemning authority. Our goal is to fight for the rights of landowners against the unfair process of eminent domain.

In all condemnation proceedings, there are two things that the government, or their authorized entity, such as a water district or electricity provider, must demonstrate: that the taking is for a “public use”, and they must pay the landowner “just compensation”.

These are hard and fast rules, but what exactly constitutes a “public use” and “just compensation” can be a bit of a mystery.

The Whittington Court on “What Constitutes a Public Use?”

In Whittington v. City of Austin, the Supreme Court of Texas presented a good outline of a condemning authorities responsibilities in attempting to condemn property. The Court first outlined that the requirement derives from Article I, section 17 of the Texas Constitution:

“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money….”

Tex. Const. art. I, § 17. This provision is not a grant of powers to the State, but a limitation on the inherent sovereign power of eminent domain by imposing the requirements that the State take property only for “public use” and pay “adequate compensation” whenever doing so. McInnis v. Brown Co. Water Improvement Dist. No. 1, 41 S.W.2d 741, 744 (Tex.App.-Austin 1931, writ ref’d). Consistent with these limitations, the State, when delegating general eminent domain power to home-rule municipalities like the City of Austin, qualified the grant of power to the “exercise [of] the right of eminent domain for a public purpose to acquire public or private property” for various listed purposes or “any other municipal purpose the governing body considers advisable.” Tex. Loc. Gov’t Code Ann. § 251.001(a) (West 1999) (emphasis added). By requiring takings to be solely for public purposes, these limitations impliedly prohibit takings for private purposes or benefit. Maher v. Lasater, 163 Tex. 356, 354 S.W.2d 923, 924 (1962).

There are two aspects to the “public use” requirement. First, the the condemnor must intend a use for the property that constitutes a “public use” under Texas law. Second, the condemnation must actually be necessary to advance or achieve the ostensible public use. A related concept is that a mere legislative declaration that a given use is a public use or is necessary does not control if the true intended use is a private use. This second aspect of public use is commonly termed the “necessity” or “public necessity” requirement. See, e.g., Bevley v. Tenngasco Gas Gathering Co., 638 S.W.2d 118, 120 (Tex.App.-Corpus Christi 1982, writ ref’d n.r.e.); see also City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 88 (1940); City of Arlington, Tex. v. Golddust Twins Realty Corp., 41 F.3d 960, 964-65 (5th Cir.1994); 1 Judge Madison Rayburn, Rayburn on Condemnation §§ 8.03 (21st ed.1998) (distinguishing from the public use issue the issue “where there is no doubt or uncertainty as to the public character of the use to which the Legislature has designated a specific project, and where the only question involved is the purpose, or necessity, of the extent of the use.”); 8.05 (“The true nature of the use … whether or not it is in fact one of public or private character, is one of law ultimately, and sometimes is so mixed with questions of law and fact as to have to be determined by the courts or juries on contested fact issues.”). How each aspect is proven differs.

Assuming there is proof of the condemnor’s professed intended use of property, the question of whether that use constitutes a public use is one of law. Maher, 354 S.W.2d at 925 (“the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts.”) Texas courts traditionally afford great weight to legislative declarations that a given use of property is a public use, whether in the form of statutes generally authorizing condemnation for that purpose, see, e.g., Higginbotham, 143 S.W.2d at 83-85, or in a governmental body’s condemnation resolution regarding the particular property. See Golddust, 41 F.3d at 964 (“A municipality’s exercise of eminent domain power is a legislative act.”); see also Daniel B. Benbow, Public Use as a Limitation on the Power of Eminent Domain in Texas, 44 Tex. L.Rev. 1499, 1502 (1966) (“The issue is not … whether the use is public, but rather whether the legislature could have reasonably considered it to be public.”). Nonetheless, despite such deference, the Texas Supreme Court has been resolute that public use ultimately remains a judicial question. Maher, 354 S.W.2d at 925; Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 704 (1959); Higginbotham, 143 S.W.2d at 83; see Golddust, 41 F.3d at 963. As the supreme court put it, “a mere declaration by the Legislature cannot change a private use or private purpose into a public use or public purpose.” Maher, 354 S.W.2d at 925.

As for necessity, unless a statute requires affirmative pleading and proof of that element, necessity is presumed from “a determination by the condemnor of the necessity for acquiring certain property.” Higginbotham, 143 S.W.2d at 88. “[W]here the use for which property is sought to be taken … is public, the necessity and expediency of exercising the power, and the extent to which the property thereunder is to be taken, are political or legislative, and not judicial, questions.” West v. Whitehead, 238 S.W. 976, 978 (Tex.Civ.App.-San Antonio 1922, writ ref’d); see also Higginbotham, 143 S.W.2d at 88 (explaining that the question of necessity is “essentially political in its nature and not judicial”) (internal citation omitted); Bevley, 638 S.W.2d at 121. Once the presumption of necessity arises, the defendant can contest the fact of necessity only by establishing affirmative defenses such as fraud (that, contrary to the ostensible public use, the taking would actually confer only a private benefit), bad faith, or arbitrariness.4

However, to gain this presumption of necessity, the condemnor must first establish that its governing board actually made a determination that the particular taking was necessary to advance the ostensible public use. Exactly what is required to make this showing is at the center of this appeal, and we address that issue below.

The Whittington Court Discusses “What Constitutes a Public Necessity”:

Regarding necessity, the Whittingtons principally contend that the City’s failure to expressly state in Resolution 010809-11 that condemning their property was “necessary” is alone fatal. They point to the language of local government code section 251.001, the statutory basis for the City’s assertion of eminent domain powers. Section 251.001 provides, “When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public purpose.” Tex. Loc. Gov’t Code Ann. § 251.001(a) (emphasis added). Because the City can act only through its governing body and cannot delegate its eminent domain power, Burch, 518 S.W.2d at 543-45, and must manifest its official actions through orders, resolutions, and minutes, Horton, 468 S.W.2d at 878, the Whittingtons extrapolate that section 251.001 requires proof that the Austin City Council adopted an explicit resolution that it “considered it necessary” to condemn their property. As further support, the Whittingtons rely on authorities appearing to require (or at least contemplating) proof that a condemnor’s governing body made an explicit determination of necessity by resolution or other enactment. See, e.g., Burch v. City of San Antonio, 508 S.W.2d 653, 655 (Tex.Civ.App.-San Antonio 1974) (predecessor statute to local government code section 251.001 contemplated “a finding by the `governing authorities’ that the taking of private property is necessary”), rev’d on other grounds, 518 S.W.2d 540 (Tex.1975).

The City disputes that section 251.001 requires proof of an explicit council resolution stating that the condemnation was “necessary.” It observes that section 251.002 of the local government code provides that chapter 21 of the property code governs procedure in eminent domain cases brought by municipalities. See Tex. Loc. Gov’t Code Ann. § 251.002 (West 1999). In the City’s view, any requirement that it prove that its governing body made a necessity determination by formal resolution would be purely a “procedural” requirement governed by chapter 21. As the City emphasizes, chapter 21 does not state any such requirement. See generally Tex. Prop.Code Ann. §§ 21.012-.018. Alternatively, the City asserts that it has met its burden of establishing that the Austin City Council made other “affirmative acts” equivalent to a finding of necessity. See Maberry v. Pedernales Elec. Coop., Inc., 493 S.W.2d 268, 270-71 (Tex.Civ.App.-Austin 1973, writ ref’d n.r.e.); see also Horton, 468 S.W.2d at 877-78.

The Whittingtons’ interpretation of the phrase “considers it necessary” in section 251.001 is somewhat misdirected. Section 251.001 is a nonsubstantive recodification of former article 1109b of the revised civil statutes, which had authorized cities to “appropriate private property for public purposes… whenever the governing authorities shall deem it necessary.” Act of May 15, 1987, 70th Leg., R.S., ch. 149, §§ 1-49, 1987 Tex. Gen. Laws 707-1308; Tex.Rev.Civ. Stat. Ann. art. 1109b (West 1963); see Coastal Marine Serv. v. City of Port Neches, 11 S.W.3d 509, 512 (Tex.App.-Beaumont 2000, no pet.); Tex. Loc. Gov’t Code Ann. § 1.001 (West 1999). The statutory predecessor to article 1109b had required affirmative pleading and proof of necessity. See Stone v. City of Wylie, 34 S.W.2d 842, 844 (Tex. Comm.App.1931, no writ). These types of pleading and proof requirements were omitted from Article 1109b. Instead, as the Stone court observed, the necessity of a particular taking under article 1109b was to be presumed from the determination of the city’s governing body that the taking was necessary and could not be reviewed by the court except where the officials acted arbitrarily or capriciously. Id. This is the same general concept appearing in Higginbotham and Horton, among other cases — necessity can be presumed from a determination by a condemnor’s governing body that a taking is necessary to advance a public purpose, subject to affirmative defenses. Higginbotham, 143 S.W.2d at 88-89; Horton, 468 S.W.2d at 877-78. Moreover, the phrase “deem … necessary,” employed in former article 1109b, tracks language used in case law to distinguish the presumed necessity concept from statutory requirements of affirmative pleading and proof of necessity. Higginbotham, 143 S.W.2d at 88-89; Crary v. Port Arthur Channel & Dock Co., 92 Tex. 275, 47 S.W. 967, 971 (1898). In short, contrary to the Whittingtons’ suggestions, we conclude that section 251.001 does not impose an independent requirement that a condemnor enact an explicit resolution that a taking is “necessary.” Instead, it merely reflects the general concepts regarding presumed necessity that are reflected in cases such as Higginbotham and Horton. Higginbotham, 143 S.W.2d at 88-89; Horton, 468 S.W.2d at 877-78.

Under these general concepts, the City had the summary judgment burden to conclusively establish that its governing body had made “a determination … of the necessity for acquiring certain property.” Higginbotham, 143 S.W.2d at 88. The City errs in attempting to dismiss this requirement as merely one of “procedure” that should be, but is not, addressed in chapter 21 of the property code. Proof that a condemnor’s governing body made a necessity determination is what gives rise to the presumption that the taking was, in fact, necessary. Coastal Indus. Water Auth., 592 S.W.2d at 600; Higginbotham, 143 S.W.2d at 88; Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex.App.-San Antonio 1998, pet. denied); Bevley, 638 S.W.2d at 121. Absent such proof, the City cannot meet its summary judgment burden on the substantive element that the taking actually advanced its intended public use. Moreover, a number of Texas courts, including this Court, have appeared to imply proof of a necessity determination into the requirements now found in chapter 21 of the property code. Horton, 468 S.W.2d at 877-78 (former article 3264 of the revised civil statutes required proof of “a determination by the condemning authority of … necessity and the public purpose of the project”). Thus, if the City has failed to meet its summary judgment burden to conclusively demonstrate that the Austin City Council made a determination of necessity, we are compelled to reverse. We accordingly consider the showing required to establish “a determination… of the necessity for acquiring certain property.” Higginbotham, 143 S.W.2d at 88. Although differing from the approach this Court has followed, we acknowledge that many Texas courts have appeared to require condemnors to demonstrate an explicit resolution from their governing body that a particular taking is “necessary” or “needed” to advance a specified public purpose. Mercier v. MidTexas Pipeline Co., 28 S.W.3d 712, 720 (Tex.App.-Corpus Christi 2000), overruled on other grounds by Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex.2004) (resolution of governing board stated that company “needed to build and operate the pipeline to serve a public purpose” and made findings regarding the best route); Teco Pipeline, 985 S.W.2d at 565 (proof of both unanimous consent of shareholders and unanimous consent of board of directors stating that pipeline was needed to serve a public purpose, and describing route); Saunders v. Titus County Fresh Water Supply Dist. No. 1, 847 S.W.2d 424, 425 (Tex.App.-Texarkana 1993, no writ) (express finding by water supply corporation board that taking was necessary to settle lawsuit); Anderson v. Clajon Gas Co., 677 S.W.2d 702, 704 (Tex.App.-Houston [1st Dist.] 1984, no writ) (“Normally, a resolution of the board of directors … is the proper method of determining and declaring public necessity.”); Burch, 508 S.W.2d at 655-56 (board “has determined the necessity for taking plaintiffs’ land”); see also Stirman v. City of Tyler, 443 S.W.2d 354, 357-58 (Tex.Civ.App.-Tyler 1969, writ ref’d n.r.e.) (construing two resolutions together to constitute required determination of necessity). Under such a standard, Resolution 010809-11 would clearly be deficient: it contains no determination by the Austin City Council that condemning the Whittingtons’ property was necessary to advance a public use, or even what its intended public use is. Nor did the City establish through other means that the Austin City Council made an express determination of necessity. There was no evidence of orders, resolutions, or minutes that might have elaborated on the proceedings underlying Resolution 010809-11. Horton, 468 S.W.2d at 878.

However, we will follow our own precedents permitting condemnors to establish that they made a necessity determination through evidence of other “affirmative acts.” See Maberry, 493 S.W.2d at 270-71; Horton, 468 S.W.2d at 877-78; see also Board of Regents of the Univ. of Houston Sys. v. FKM P’ship, Ltd., No. 14-03-00392-CV, ___ S.W.2d ___, ___, 2005 WL 851178, **6-7 2005 Tex.App. LEXIS 2865, at *19-20 (Tex.App.-Houston [14th Dist.] April 14, 2005, no pet. h.); Bevley, 638 S.W.2d at 121-22. Applying them, we conclude that the City has still failed to meet its summary judgment burden to conclusively demonstrate affirmative acts manifesting a necessity determination by the Austin City Council. In suggesting otherwise, the City misconstrues the nature of the proof required under this line of cases.

As proof of “affirmative acts,” the City relies on its condemnation petition and other instruments it filed in the proceedings. As previously stated, pleadings are not competent summary judgment evidence. Laidlaw Waste Sys., 904 S.W.2d at 660. In any event, the “affirmative acts” requirement is not satisfied by mere evidence that the City’s agents went forward with condemning the Whittingtons’ property. Rather, the “affirmative acts” must manifest a determination by the City’s governing body that the taking was necessary to advance its intended public use. Compare Houston Lighting & Power Co. v. Fisher, 559 S.W.2d 682, 685-86 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref’d n.r.e.) (electric utility’s board of directors approved by resolution budget for condemning right-of-ways for transmission lines based on studies showing route; budget further stated that acquisitions were “required” and “advisable”); Bolin v. Brazoria County, 381 S.W.2d 206, 209 (Tex.Civ.App.-Houston [1st Dist.] 1964, no writ) (proof that Highway Commission members issued order directing State Engineer to prepare engineering surveys and right-of-way deeds for proposed highway construction and that Commission subsequently contracted to build the road supported conclusion that Commission made required determination of necessity and suitability); Boucher v. Texas Turnpike Auth., 317 S.W.2d 594, 601-02 (Tex.Civ.App.-Texarkana 1958, no writ) (evidence that board of directors of Texas Turnpike Authority issued resolutions stating approval of survey and appraisal of tracts required and that board directed agency personnel to acquire the tracts by purchase or condemnation met requirements); with Bevley, 638 S.W.2d at 121-22; Maberry, 493 S.W.2d at 271 (no proof that “the governing body, the board of directors, or other authority having power to speak and act for the condemnor” had made determination of necessity); Horton, 468 S.W.2d at 877-78 (while recognizing that “[p]roof of such necessity and the public purpose of the project may be made by introducing additional proceedings such as orders, resolutions, and minutes of the county commissioners declaring the public convenience and necessity for the improvement,” finding no such evidence). As the Texas Supreme Court held in Burch, a city governing body cannot delegate its eminent domain power to subordinate agencies and employees: “the city council is the authority to exercise the power of eminent domain and must itself officially express the intention and necessity to condemn.” 518 S.W.2d at 545; see also Bevley, 638 S.W.2d at 121-22 (proof of surveys, landowner negotiations and other right-of-way work was not proof that board of pipeline company had determined the necessity of condemning property for pipeline, in absence of showing that such work had been authorized by the board or could only be performed with such authorization).

We do not perceive these authorities to categorically require the use of magic words such as “necessary” or “needed” within a resolution or other instrument manifesting the governing body’s actions, though prudence would perhaps make such language advisable.14 To the contrary, it would appear sufficient to prove that the condemnor’s governing body made a determination (manifested in some form) that, in substance, condemning a particular property would be necessary to advance a specific, identified public use. Whittington v. City of Austin, 174 S.W.3d 889 (Tex., 2005).

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Guest and Gray is committed to landowners rights, including in fighting against abuse of powers by state and local authorities taking landowners property without ensuring that the taking is for a “public use”. If you have received a notice from a state or local condemning authority that your property is subject to condemnation, you need to call the trial tested attorneys at Guest and Gray Law Firm, P.C., we will help to guide you through the entire process of fighting for your land. Don’t wait to speak with an attorney, call Guest and Gray today and let us get started fighting for your property.