Thinking Economically: Texas Supreme Court Leading the Way in Property Rights Protections

Musings on Economic Freedom from the Texas Public Policy Foundation's Center for Economic Freedom

Texas has traditionally been a strong property rights state. Most Texas cities and counties have far less restrictive land-use controls than are found on the West Coast and the Pacific Northwest. And it has had few of the infamous urban redevelopment projects that have been typical of the Northeast and Midwest.

Yet at times Texas courts have strayed from our heritage and followed the lead of the federal courts, granting broad latitude to the legislative and executive branches when they promulgate regulations, exercise eminent domain authority, and engage in other activities that negatively affect property rights. The Texas Legislature and local governments have often taken advantage of this leeway.

However, several recent Texas Supreme Court decisions along with legislative action over the last few years are beginning to reign in these excesses and help ensure that constitutionally-granted property rights will continue to maintain their proper place in Texas law.

The Center recently released a new paper covering this issue, Property Rights in Texas: Heading in the Right Direction. The paper examines both the strengths and weaknesses of Texas property rights law. The Foundation also posted a Texas PolicyCast covering these issues.

As noted above, the Texas Supreme Court has issued several recent decisions that have strengthened property rights in Texas. Here are excerpts from each of those decisions:

• "Though the State has a right to define the property being taken, it does not have the power to constrain the owners' evidence of competing conceptions of the best economic unit by which the taken property should be valued." – Laws v. State of Texas, unanimous opinion.
• "The protection of property rights, central to the functioning of our society, should not-indeed, cannot-be charged to the same people who seek to take those rights away. … [W]e believe that unelected municipal agencies cannot be effective bulwarks against constitutional violations …" – City of Dallas v. Heather Stewart, majority opinion in a 5-4 decision.
• "Merely registering as a common carrier does not conclusively convey the extraordinary power of eminent domain or bar landowners from contesting in court whether a planned pipeline meets statutory common-carrier requirements. Nothing in Texas law leaves landowners so vulnerable to unconstitutional private takings." – Texas Rice Land Partners and Mike Latta v. Denbury Green Pipeline-Texas, LLC, unanimous opinion.
• "Judges are properly deferential to legislative judgments in most matters, but at some epochal point, when police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction. The Legislature's policymaking power may be vast, but absent a convincing public-welfare showing, its police power cannot be allowed to uproot liberties enshrined in our Constitution." – Barbara Robinson, v. Crown Cork & Seal Company, Inc., concurring opinion.

The most important aspect of all of these rulings is that they emphasize that citizens should have their day in court if they believe they are being harmed by the legislative or executive branches of government. This is particularly true in the case of property owners, since the "protection of property rights, central to the functioning of our society, should not-indeed, cannot-be charged to the same people who seek to take those rights away."

Property rights are not often included in the current national discussion of how to get our economy growing again-but they should be. For nothing is more harmful to an economy than attacks on private property through taxation, regulation, and eminent domain.

Property Rights in Texas: Heading in the Right Direction makes several recommendations that would further strengthen property rights in Texas. They include:

• The Private Real Property Rights Preservation Act should apply to municipalities.
• Counties should not be given additional general authority to regulate land use.
• Property owners should be given the right to repurchase their property if the initial use of the taken property is not the public use for which the property was taken.
• The courts and the Legislature should continue the recent trend of ensuring that the rights of Texas property owners-not condemnors-are protected under Texas law.

If we want to keep Texas standing atop of the economic heap in the U.S., we should push for the adoption of these and other measures that will make Texas the country's number one private property rights state.