AUSTIN, Texas – Despite the state legislature’s attempt to shore up property rights in wake of the U.S. Supreme Court’s Kelo decision, Texans are still vulnerable, according to an analysis issued by the Texas Public Policy Foundation.

The Kelo decision allows local governments to seize private property using eminent domain authority and transfer it to other private owners for purposes of “economic development.” Immediately following the decision, the Texas Legislature passed Senate Bill 7, which banned the use of eminent domain for the purpose of economic development.

“SB7 is a step in the right direction. However, the bill contained numerous exceptions to that ban, and only amended statutes, doing nothing to improve constitutional protections for private property rights,” writes Bill Peacock, the Foundation’s economic freedom policy analyst in his paper, “Protecting Private Property Rights In Texas After Kelo.” The report is available online at

“It is clear that SB 7 was intended primarily as an interim measure to give legislators more time to study the issue and develop long-lasting solutions to the problem of eminent domain abuse,” notes Peacock. “The prohibitions on takings in SB 7 offer limited new protections against the abuse of eminent domain that is threatening the rights of private property owners.”

Peacock recommends that lawmakers address more comprehensive reform during the next legislative session by amending the state constitution.

“Though putting robust property rights protections in the constitution doesn’t guarantee success in protecting property rights, it is a better solution than putting them into a general law that can be changed by a fifty percent vote of any future legislature or selectively ignored by future courts,” he adds.

Among the recommendations Peacock offers in his paper:

  • A revised definition of public use should be considered for adoption as an amendment to the Texas Constitution.
  • Texas policymakers should consider adopting a general ban on using eminent domain for commercial purposes, and determine what exceptions to the ban are needed to allow legitimate public uses.
  • The possibility of using standards such as “replacement value,” instead of fair market value, in certain eminent domain cases should be considered.