What is Eminent Domain? Texas Eminent Domain is the right of the government to take or acquire private property for a public use. Some non-governmental or quasi-governmental entities that provide public services, such as electricity, natural gas and water, also have the power of eminent domain.

The Process. Condemnation is the legal process through which a governmental unit, such as TX-DOT, takes or acquires private property under its power of eminent domain. The process begins by TX-DOT sending out letters to owners of property that it wants to buy, such as may happen for the I-35E corridor in Denton County or the I-635 expansion. TX-DOT offers a buy-out price. If negotiations with the property owner are unsuccessful, the government or entity exercising the power of eminent domain will file a civil lawsuit to acquire the property through a condemnation proceeding and trial, if necessary.

In Denton County, condemnation actions are filed in the Denton County Probate Court. The Judge appoints three people to act as Special Commissioners, and the case is first tried before them. The Commissioners make a finding. If the parties agree, the case ends there. If they do not agree, then the commissioner’s finding is appealed and goes to a new trial before the judge or jury. case goes before a judge (or jury)

The Government’s Burden. The government must prove that the taking is for a public use and that it is be necessary. Both the federal and state constitutions require that the government or entity exercising the power of eminent domain offer the property owner just compensation for the taking. Just compensation is determined by the fair market value of the property being acquired and the damages, if any, to the remainder property. The valuation must include the “highest and best use” of the property, even if it is not the current use.