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TX Sens. Whitmire and Janek Face Off on Eminent Domain Bill

By J. Lyn Carl,

Austin, TX –

The fireworks started this morning when Sen. Frank Madla (D-San Antonio), president pro tempore of the Senate and serving in the chair, refused to recognize Senate Dean John Whitmire (D-Houston) for a motion to recess.

Whitmire sought the recess, he said, because there were only 13 members of the Senate on the floor when Sen. Kyle Janek (R-Houston) sought to suspend Senate rules to take up his SB 62, relating to limiting the use of eminent domain to take private property for economic development purposes.

That lit Whitmire's fuse, and things went downhill from there.

The result was a shouting match between Whitmire and Janek, cooled only by a parliamentary inquiry that Janek's motion was not a debatable motion, and by an "energetic" pounding of the gavel by Lt. Gov. David Dewhurst to restore order.

Janek said the recent U.S. Supreme Court ruling that allows entities to take private property for economic development projects did not offer clear definitions of eminent domain for public use. He said current law in Texas is "fairly expansive," and cited that while the U.S. Supreme Court ruling removed some constraints "we thought were protected in the Constitution," his bill would limit such takings through general state statutes. Janek said his legislation still allows for "some give-and-take," while still instituting boundaries. "What is one person's park may be someone's takeaway to another."

"What problem are you trying to fix?" Whitmire asked Janek of his bill.

Janek described an incident in Freeport, where the city owned land next to a local business. The city found a use for its land but needed more, holding a referendum and approving the taking of the business land adjoining the city property to give to a private developer to build a marina.

Whitmire pointed out that the action was taken legally and within the limitations of law, even though it is currently being litigated, which, he said, "points out why we have three branches of government."

He questioned why Janek is "rushing through this in a special session" in response to a court decision of less than a month ago. He said he has received comments from local officials that "they need this vehicle." Noting the legislature is in favor of local control, he asked why Janek would seek to pass legislation that would "violate that very important principle."

"With all principles - they can be abused," responded Janek. "We recognize that from time to time wayward officials will get out there and they need to be restrained." He said elected officials generally do what is within the bounds of the law. "But that's 5,000 people voting to take the homes of 10," he said. "If you can take their homes, what's next?" He said the it could lead to the mentality of, "They have it, I want it and I have the power to take it."

"You're saying what is best for the greater good of the wrong?" asked Whitmire. He also questioned if the legislation has anything to do with possible condemnations by the state that might occur relative to the proposed Tran-Texas Corridor. "Would you not agree there is outrage across this state...about the taking of family farms for condemnation for this proposed Texas Corridor, which allows the state of Texas to condemn people's farms and ranches for gas station, hotels and other facilities?"

Whitmire called it "hypocritical" of the state to prohibit local governments from using eminent domain for the "greater good of the community" while legislation has been passed to allow the state to take farm and ranch land to give to for-profits.

Janek read from the committee substitute, telling Whitmire it applies also to state agencies. "No, it's not hypocritical," he said to Whitmire. "I wish you'd seen that and we wouldn't have had this discussion. This law applies to the state of Texas. I can read it to you, but I can't understand it for you."

Janek was urged by Whitmire to "slow down" on the legislation, and instead have an interim study on the issue. "We are making a huge policy decision today. We all want to protect family residences and family farms. I know your intent and I applaud it." However, he again urged Janek to instead propose an interim study to "air this out."

Citing a case in New London, Connecticut, in which an 87-year-old woman's land was taken by the city for a pharmaceutical research facility, Janek said the city came in and told her it was "time for her to move along," and for them to take the land and give it to the pharmaceutical company.

The two senators then exchanged words over who caused that action. Janek responded that it was the same kind of local officials who made the decision in Houston to instate their "Safe Clear Program" for removal from highways in the city of motor vehicles that were inoperable, sometimes without owner approval. Whitmire locked horns with Houston city officials over the program, and over the city "selling" sections of a state highway inside the city to towing companies that wanted to participate in the program.

"They corrected the problem locally and the Legislature didn't have to get involved," said Whitmire.

The dean also pointed out that Janek's accepting an amendment by Sen. Kim Brimer (R-Fort Worth), relating to sports and community venue projects and eminent domain, would be "making a mistake." He again said there are instances when "local officials making decisions for the greater good need to be accepted."

"I'm trying to do what I can to change this law," responded Janek in saying he would accept the amendment. "Sometimes you do what you can to get the votes."

"I'll be damned if that's the truth," shouted Whitmire. "You either look out for the 87-year-old lady, or you don't."

Sen. Eliot Shapleigh (D-El Paso) said there will be "a whole host of agencies" that come forth with amendments regarding recoupment. "We should adopt and put into your bill the essential test...that says there should be a reasonable connection between condemnation and the use contemplated."

Whitmire reiterated that there are circumstances "where through local control, and deliberative decision-making by people who stand for election," decisions are made regarding eminent domain issues that don't need to be governed by the proposed Janek bill.

A number of amendments were offered to the bill. Whitmire offered an amendment to Sen. Jon Lindsay's (R-Houston) amendment that would provide, if the bill passed, that there be an interim study on the issue as well as a sunset review of the bill. That, he said, would force the legislation "to be ended unless it is so good it needs to be renewed." He said there are unintended consequences of the legislation, and that he is hearing from entities across the state regarding how it might negatively affect some economic plans they are currently contemplating.

Whitmire called the legislation a political issue. "We wouldn't be discussing this but for political climate," he said.

While Janek said he did not have a problem with the Whitmire amendment to Lindsay's amendment, he said the Lindsay amendment would call for sunsetting the bill, if it becomes law, in 2007. "That is not enough time to look at all the consequences," he said, suggesting that a four-year sunset date might be more appropriate.

While a sunset date may be appropriate, a two-year sunset would bring legislators back to the issue in the next legislature, said Sen. Robert Duncan (R-Lubbock). The result would be that entities that want to take private property from individuals so they can benefit their own use either as a governmental body or a developer will have "immense power" to block what might come out of an interim study, to implement any reforms. Thus, he said, a four-year sunset would be better because it would keep pressure on stakeholders on both sides of the issue to "negotiate in good faith."

Shapleigh argued that if the legislature is going to pass something this session, the better approach would be to have an interim study and produce a "well conceived approach" to the issue.

Although Whitmire's amendment to the amendment was adopted, Lindsay's amendment was tabled, thus killing Whitmire's amendment.

Whitmire wouldn't give up, winning the battle but losing the war. His subsequent amendment calling for an interim study on the eminent domain issue was adopted, but Lindsay's subsequent amendment that would sunset the bill in 2009 was tabled. That came after Janek had previously said he would not accept Lindsay's first amendment calling for a 2007 sunset date, but that he would consider a sunset date in four years.

That brought Whitmire to his feet again, questioning why Janek would say one minute he would accept that date, and then move to table the amendment. "Can someone please tell what has transpired in the last 10 minutes?" asked Whitmire.

"I believe we're being used," said Whitmire in his closing statements against the bill. He said but for the "political climate," there would have been an interim study and the legislature would come back in a subsequent session and review the findings.

Whitmire said there are ongoing considerations by entities for economic development where they "critically need" condemnation - and it can be done properly with safeguards. He said the state is not addressing most communities' needs - housing, education, etc. - while those communities are being asked by the state to do more with less.

He said a "no" vote on the bill would be in support of the creation of the state's Enterprise Fund and Emerging Technology Fund. "We've seen the results of encouraging economic development," he said. "I think we're making a huge mistake...and not being sensitive to the unintended consequences."

The bill was passed on second reading by a 23-6 vote.