The Supreme Court recently missed an opportunity to protect constitutionally given private property rights. Texas should not make the same mistake.
The State of New York recently seized private property, including a self-storage facility and a gas station, and transferred it to Columbia University – a private institution. The case wound its way up the Supreme Court steps, but will go no further. The Supreme Court has denied review of the Appellate decision.
The Supreme Court’s decision not to hear the case reinforces the Kelo precedent – that the government can take property from one private owner and transfer it to another private owner when there is only a marginal public gain, i.e., public purpose involved. According the United States and Texas constitutions, eminent domain can only be used for a public use, not for a public purpose.
With no Federal clarification, Texas should continue to distance itself from the Kelo decision. As we pointed out in our study, Eminent Domain: Balancing the Scales of Justice, Texas began the journey of restoring the property rights of its citizens in 2005, shortly after the Kelo decision. However, more work needs to be done.
The constitutional ban on takings not necessary for a public use is nowhere to be found in Texas statutes. The Texas legislature can fix that by amending Sec. 2206.001(b) of the Government Code by adding a new subsection 4 that bans takings that are “not necessary for a public use.”
The Supreme Court’s decision only heightens the need for statutory revision in Texas regarding public use.
-Ryan Brannan