What is the legal basis for the power of eminent domain?

The government's power to exercise eminent domain authority is not limitless. For example, the government cannot take a landowner’s private property unless it is doing so for a public purpose – and therefore for the public’s use. Both the United States Constitution and the Texas Constitution limit the government's power to take private property. Additionally, constitutional provisions further require that landowners be paid just compensation when their private property is condemned.

a. The Fifth Amendment to the United States Constitution states:

“...nor shall private property be taken for public use, without just compensation.”

b. The Texas Constitution states:

“No person's property may be taken, damaged, or destroyed for or applied to public use without adequate compensation.”

The Texas Constitution provides broader protection than the U.S. Constitution because it includes a reference to “damaged or destroyed” property. This requires that landowners be paid for harm to their remaining property in addition to compensation for the land actually taken by the State. This also allows landowners, through a process called "inverse condemnation", to force the government to buy property that has been effectively taken, damaged or rendered unusable by the State.

The State of Texas and its political subdivisions are prohibited from taking private property for private (or non-public) purposes. Neither the Texas Legislature nor local governments are authorized to pass laws or ordinances that run contrary to these constitutionally guaranteed protections.

The government may not take private property for a public use without providing "adequate" or "just" compensation to the landowner. Additionally, no person may be deprived of their property unless they are afforded due process under law. In other words, the government must follow the proper procedure when taking private land for public use.

c. Texas Local Government Code, Section 251.001, grants cities the power to exercise eminent domain both inside and outside of their city limits. It states:

“When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public use to acquire public or private property, whether located inside or outside the municipality...”

This general statute grants all municipalities (home rule, general-law and special-law) the power of eminent domain, allowing them to condemn private land both inside and outside their municipal limits. Further, Section 251.001 of the Local Government Code allows municipalities to condemn both private property as well as land owned by other governmental entities. In addition to cities, other local entities, public utilities, and common carriers have condemnation authority, but their powers are governed by different statutes than the laws that apply to cities.