St. Mary's Law Journal


B. Tyler Milton


In Texas, the state constitution requires adequate compensation as a predicate to a taking of private property for a public use. Though an eminent domain cause of action has both a constitutional and statutory basis, the requirement of adequate or just compensation is premised on principles of natural equity and justice. Texas statutorily mandates that a condemner of land must, prior to the institution of a condemnation proceeding, plead and prove the two parties were “unable to agree” on the corresponding compensation due to the landowner. Texas courts interpreted this requirement in the condemnation statute to compel “good faith negotiations” or a “bona fide” effort between parties. Nevertheless, in Hubenak v. San Jacinto Gas Transmission Co., the Texas Supreme Court failed to find this directive within the statute and concluded the terms “good faith negotiations” and “unable to agree” were dissimilar. Further, the Court determined the evidentiary standard of the “unable to agree” requirement was unworkable within the “good faith” framework. The Hubenak decision restores an imbalance of power in the Texas condemnation process by removing the “good faith” element from the equation in favor of a more general, condemner-friendly standard. This standard requires only a single offer for the same general property and same general uses. While this standard seems simple, it is rife with problems. First, the statutory purpose of encouraging negotiations and preventing gratuitous litigation will be noticeably frustrated. Second, the imbalance of power will be amplified, leaving property owners at the mercy of condemning entities. In order to remedy these inequities, the playing field must be leveled. By requiring a single pre-suit good faith offer, this will reduce needless and confusing inquiries into the adequacy of negotiations between the two parties. Most importantly, it would reduce litigation and appeals.


St. Mary's University School of Law