Who Has Eminent Domain Authority in Texas?

Governmental entities

The state, counties, cities, school districts and similar bodies hold the power directly. A municipality acquiring land for a street widening or a drainage channel is exercising authority the Legislature has granted it, and the procedure in Chapter 21 of the Property Code applies.

Public agencies and districts

TxDOT acquires right of way for the state highway system. River authorities, water supply districts, municipal utility districts and port authorities each hold the power for their statutory purposes. These are the entities behind reservoirs, levees, pipelines for water and public rail.

Authorised private entities

This is where Texas differs. The Legislature has extended the power to certain private companies, including common carrier pipelines and electric utilities. A private company with a permit can, in the right circumstances, condemn an easement across a family ranch.

Testing a private claim

Authority claimed is not authority proved. In Texas Rice Land Partners v Denbury Green Pipeline (2012) the Texas Supreme Court held that a pipeline company does not acquire common carrier status simply by checking a box on a permit application to the Railroad Commission. There must be a reasonable probability that the line will at some point after construction serve the public by transporting product for one or more customers who will retain ownership of it.

That standard has been litigated repeatedly since. Where the line serves only the affiliate that owns it, the claim is weaker.

Public use and necessity

Article I Section 17 of the Texas Constitution allows a taking for public use on adequate compensation. Whether a given project qualifies, and whether the particular land is necessary for it, are separate questions from how much the land is worth, and they are raised at a different stage.