How One Texas Agency Restricted Its Eminent Domain Powers

by: Allan Zhang
1 Sep 2023

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Here is some eminent domain news from the Lone Star State. In a rarely seen maneuver (at least something this blogger has never), a new policy adopted by the Texas Parks & Wildlife Commission will restrict the Texas Parks and Wildlife Department’s (TPWD) future use of its eminent domain powers. Parks and Wildlife Code (section 21.103) empowers the TPWD to acquire park sites through condemnation with payment of fair market value compensation to the owner.

On August 24, 2023, per a press release by the TPWD, the new policy expressly limits the TPWD’s use of eminent domain from “taking private property for park sites except under exceptional and unusual circumstances, mainly property previously dedicated to public use as a park.”

Commission Chair Arch Aplin stated “Given its significant potential impact on private landowners, our commissioners chose to limit TPWD’s use of eminent domain to ensure it will be used exceedingly sparingly and only under specified circumstances” and “The policy is clear – TPWD will not use eminent domain to condemn residences, farms or ranches.” He further stated: “Although we absolutely have the authority for eminent domain, we wanted to alleviate any concerns we were going after any ranches or farms.” Instead, “We’re looking at putting restrictions on ourselves that are not required and would raise the standard.” Parks department attorney, James Murphy, reiterated that sentiment: “TPWD will not take residences, farms or ranches to make parks. Period.” Incoming Commission Chair, Jeff Hildebrand added “Very rarely does a state agency reduce its ability to use eminent domain or limit its ability to execute its duty. I couldn’t be more pleased that we’re pulling back. This should signal to people that we rarely use eminent domain.”

TPWD defines “exceptional and unusual circumstances” as situations “when property was previously dedicated to public use as a park or similar outdoor recreation area and the property owner rejects an offer(s) to voluntarily convey the property.” Additional factors to be considered by the TPWD include “the amount of public investment in the property; the level of public support for the acquisition; the number of visitors served by the property whiled dedicated to public use; and the natural and cultural resources of the property.” One caveat is that the TPWD reserves the right to use eminent domain to acquire property if requested by the property owner.

While the TPWD’s eminent domain power is now more limited, time will tell whether this change has any impact and if other Texas agencies or even other states’ agencies (cough – New Jersey), will follow suit and amend their eminent domain policies somehow.