Texas landowners don’t have many options when it comes to condemnation cases at the hands of eminent domain.

I offered that rather grim assessment in an article I wrote four years ago. It would become one of the most reprinted pieces of my career.

The sad truth, particularly for those who depend on the land to earn their living, is that little has changed since.

I recently met with Judon Fambrough, a senior lecturer at Texas A&M’s Real Estate Center and one of the foremost experts on private property law in the state.

“To date, the single most significant change in Texas property laws came six years ago, when the Texas Supreme Court issued its ruling in the Hubenak v. San Jacinto Gas Transmission Company case,” Fambrough said.

Courts rule

Anyone who has ever heard much about eminent domain may be familiar with a case called Kelo. In that case, the courts ruled that entities could claim someone’s property for economic development reasons.

“That case set a precedent on why land could be taken by expanding what the term ‘public use’ could include,” Fambrough said.

Texas lawmakers responded rather quickly. They passed laws in 2005 to limit such takings. Last November, voters approved a constitutional amendment — Proposition 11 — to ban economic development takings outright.

But Kelo dealt only with why, Fambrough said. Hubenak focused on the how.

Traditionally, government entities and utilities were required to offer landowners a “fair market value” for any property claimed by eminent domain.

Hubenak changed that.

It did so by establishing a three-step process:

*  The condemner makes an offer (any offer will do, Fambrough said);

*  If parties can’t agree on price, the case goes before a three-person commission for a ruling; and,

*  If that still doesn’t work, the case goes before a judge and jury.

“This is the only place in the law where the burden of proof lies with the defendant,” Fambrough said.

So you hire an appraiser and get an attorney, both at your own expense.

The bottom line? If you were offered $2,000 an acre on property actually worth $3,000, it will cost you at least the difference to prove them wrong.

“It’s not worth the hassle most of the time,” Fambrough said. “They know it.”

Lawmakers in 2007 approved House Bill 1495, better known as “The Landowner’s Bill of Rights.”

Good faith effort

It requires condemners to make a “bona fide, good faith effort” to acquire the land and inform landowners of their rights to challenge a seizure.

While bona fide may sound good, it means little in court, Fambrough said. The companion legislation, House Bill 2006, provided the legal definition regarding offers — a property’s “fair market value” — as well as allowances for other considerations, such as access issues and compensation of legal fees.

Lawmakers passed both, but only one was signed by Gov. Rick Perry.

“House Bill 2006 was a perfect piece of legislation for landowners,” Fambrough said. “Without it, that Bill of Rights is more like a Bill of Wrongs.”

Until the law changes, landowners must be shrewd negotiators whenever dealing with “public use” issues.

“Negotiate, negotiate, negotiate — first,” Fambrough said. “Then deal with price. Once you move on to price, your negotiation power is finished.”

And always seek the counsel of a trusted advisor, he said.

“Property law can be very complicated, so seek legal advice before signing any agreements that affect the use of your land,” he said.

Fambrough has authored a number of articles dealing with private property rights and land-use issues.

For more information, visit the Web site at www.recenter.tamu.edu.

Bobby Horecka lives in China Spring with his wife and three children. He writes for the Texas Farm Bureau’s print publications, online news service and video projects.