Eminent domain is the power given to a public entity to take private property for public use. Both the United States and Texas Constitutions give the government this right (which it can delegate to other entities), so long as adequate compensation is paid to the landowner. The taking must be for a public purpose. Courts and legislatures around the country have been very active in recent years in deciding what is and is not a public purpose. In response to a 2005 U.S. Supreme Court case, Kelo v. City of New London, Connecticut, the Texas Legislature passed a landowner's property rights bill in 2005. It prevents taking private property for the benefit of private interests. That may curb some abuses of the system, but it does not affect the most common reasons for a governmentally-approved entity to take land: street construction, pipelines, electrical lines and substations, schools, post offices, and sports stadiums. In reality, the power of eminent domain to enhance the public good is still broadly exercised.
Many entities have the right of eminent domain, not just the obvious ones of cities, school districts, states, and the federal government. The state legislature conveys the right of eminent domain upon entities such as pipeline companies, electrical co-ops, hospital districts, municipal utility districts (often created by a developer when building a new neighborhood on land located outside town limits), and transportation authorities.
Condemnation is the process by which an entity with the right of eminent domain takes your land. The condemnation process in Texas is very specialized and occurs in distinct phases. Your need for a lawyer is greater in some of these phases than others. In some cases, you may be able to challenge the entity's ability to take your property. In all instances, you will need to fight to get a reasonable amount of money for your property. You may also be able to affect what is taken and how the project impacts your remaining property, if the taking is not a total one.
A condemnation informally begins when information that an entity intends to build a project becomes public. As soon as you learn of the project that may affect your property, you need to begin gathering information and getting involved. Once a project is approved and your land is determined to be needed for the project, the entity must notify you of its intent to take your property and whether it will be a complete taking or a partial taking. Chapter 21 of the Texas Property Code governs this process. The entity must first make a good faith attempt to negotiate with you regarding the value of the property to be taken. It must furnish you with a copy of the appraisal its expert has made of your property. Whether you cooperate in providing information to be used by that appraiser is a point of strategy for which you should consult an expert. You will rarely get full value for your property in this early stage, but you can discover a great deal of information about the project and about the appraisers and other experts whom the entity plans to use against you.
If you and the entity are unable to agree on a price, it files a petition in condemnation in the county where the property is located. It must name all potential owners of interests in the property to be taken as defendants, including the registered deed holder, any entity with an easement (a utility), tenants, holders of judgment liens against the property owner, and any other entity that appears on a title search. This filing is not a true court action, but rather, an administrative proceeding.
The judge of the court will appoint three disinterested local landowners to serve as Special Commissioners, and they will send out notice of a hearing at which the property owner can be present and represented by counsel. It is a very good idea to attend this hearing with a lawyer and an appraiser whom you have hired, but if you do so, you waive the right to argue that the entity has no right to take your land. You need to consult an attorney about whether that argument is a viable option. For things like highways and schools, it is not an argument worth making. For other projects, it may be a valuable argument to prevent the taking.
The Special Commissioners hear testimony from the condemnor about the purpose of the project and why it needs the property. Both sides may present evidence regarding the value of the property. The condemnor's evidence will be testimony by a professional appraiser, and it is good for you to have one, but you may also testify to what you believe the property is worth. The Commissioners may ask questions and examine the witnesses (the traditional rules of evidence do not apply), then they will deliberate and reach an opinion on value and make a monetary award. That award will tell the condemnor how much it must pay, at least in the first phase of the condemnation, to take possession of your land and begin the public project. An attorney can be very helpful at the Special Commissioners' hearing, but is not required.
Either party can appeal the award of the Special Commissioners. There is a short time limit for filing an appeal, so you need an attorney at this stage. If either party appeals, the Commissioners' award is vacated, and it no longer controls the proceeding, except that it provides an amount the entity must deposit into the registry of the court in order to take possession of the land. At that point, the entity does not own your land, but it has the right to enter onto it and begin the project. So long as you are not contesting the right to take your property for the project, you may withdraw the funds deposited and use them to continue the litigation. If the ultimate court judgment is less than the commissioners awarded, which is rare, you will have to pay back the difference.
If either side appeals from the Special Commissioners' award, the case then becomes a regular court case and the parties engage in discovery, pre-trial motions, and a jury or non-jury trial, if a settlement cannot be reached. You definitely need an attorney once an appeal turns the matter into a court case. If you do not settle before going to trial, you may try the case to a jury or just the judge, and the jury or judge will set the value for the taking after hearing both sides' witnesses and arguments. The judge will first determine if the entity has the right to take the land, then the fact-finder will determine a value for the taking. If the amount of the damage award exceeds the amount that was deposited in the registry of the court after the Commissioners' award, the landowner will be paid the excess amount (although either side may also appeal the trial court judgment to a court of appeals).
The public entity will not pay attorney's fees, appraisal costs, and other expenses of court incurred by the landowner. It will pay (at most),the market value for the land under its "highest and best use," as determined by professional real estate appraisers This value need not be based on the current use of the property (for example, raw land can be developed commercially in the future to generate rentals, but it might only be growing crops now). You are entitled to the market value of the property at its highest and best use, so long as that use is reasonable, legal, and feasible. The fact that you cannot get your attorney's fees and expert witness fees repaid means the public entity always comes out ahead of you, except that hiring attorneys and appraisers almost always gets you a significantly higher amount of money than if you simply try to negotiate directly with the public entity yourself and settle early.