JONES v. PORT FREEPORT (2025)

OPINION

The government may take private property only for public use. Tex. Const. art. I, § 17. No matter what, “the overarching constitutional rule controls: no taking of property for private use.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 194-95 (Tex. 2012).

To hold the government accountable to that constitutional rule, all condemnation petitions must “state with specificity the public use for which the entity intends to acquire the property.” Tex. Prop. Code § 21.012(b)(2) (emphasis added). Appellee Port Freeport argues, however, that it needed to plead only a “categorical use” to condemn the Appellants Landowners’ property—“I'm from the [Port], and I'm here [for a public use]” would be enough. Its condemnation petition said little more than that. But the legislature doesn't use the word “specific” when it means general or categorical; specific means “ ‘explicit’ or ‘relating to a particular named thing.’ ” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding). There is good reason for this specificity requirement in condemnation cases: “The protection of property rights, central to the functioning of our society, should not—indeed, cannot—be charged to the same people who seek to take those rights away.” City of Dallas v. Stewart, 361 S.W.3d 562, 580 (Tex. 2012). The Constitution requires more than the Port's say so.

Even when this case proceeded to discovery, the Port never could identify a specific public use. It admitted that it did not have “any specific plans for what will be developed” because the land would be developed by third party businesses—in fact, said the Port, it would be impossible to plead with any more specificity because the Port doesn't know what will happen to the property until it is condemned. The Constitution does not condone this take now, plan later approach. The government must tell the court what it plans to do with property so the court can exercise its constitutional duty to assess public use. See City of Austin v. Whittington, 384 S.W.3d 766, 777 (Tex. 2012).

Because the Port failed to do so, we reverse and remand.

Background

Port Freeport is a 7,600-acre port in Freeport, Texas; 2,800 of those acres are undeveloped. The Landowners are co-owners of property close to the Port's existing terminal.

The Port and other navigation districts are authorized by Chapter 62 of the Water Code to take property for “the operation and industrial and business development of ports and waterways.” Tex. Water Code § 62.107(c). When the Port desired to expand, therefore, its governing body adopted a resolution authorizing it to take property immediately adjacent to its existing terminal for “expansion of the Port Facilities” and “the development of business and industries.” The next year, the Port filed a petition to condemn the Landowners’ property, making the same allegation—that it was seeking to acquire it for “expansion of [Port] facilities” and “the development of business and industries”:

Pursuant to existing law, Plaintiff seeks to acquire fee simple title to a tract of land (the “Property”) for the expansion of Plaintiff's facilities (the “Facilities”) for the development of business and industries upon the land, including appurtenances determined to be reasonable and necessary for the construction, installation, operation, and maintenance of such Facilities

The Port did not identify any specific plans for the Landowners’ property.

Discovery revealed that the Landowners’ property was a small portion of a larger expansion project planned by the Port. The larger project would support operations of Customs and Border Protection and the Department of Agriculture and allow trucks to travel efficiently from the Port to state roadways. But the part of the project that is at issue here—the Landowners’ property—would be “marketed to potential users for lease as industry and business sites” that would encourage more investment, economic activity, and jobs in the area. The Port's CEO confirmed in her affidavit and at her deposition that the Port “does not have any specific plans for what will be developed on any particular property within the area of the project.”

The county court at law appointed special commissioners to assess the damages caused by the Port's condemnation of the property. The Landowners submitted two affidavits estimating the property's market value before the Port's project at $320,000 based on recent sales of similar properties in Freeport. One of the Landowners, who had been a co-owner of the property for 14 years, testified that the property had two duplexes and a primary house on it that had previously been rented for income. After a hearing, the special commissioners determined that the Port must pay the Landowners $28,000 total for their property.

The parties then filed competing motions for partial summary judgment on public use.¹ The trial court granted the Port's motion, holding that the Port had the power of eminent domain pursuant to Texas Water Code section 62.107 and had a plan for the public purpose and public necessity of expanding the Port's current operations into the East End of Freeport. The parties stipulated that the amount of compensation owed to the Landowners was $100,000, and the trial court signed a final judgment, which the Landowners now appeal.

Analysis

The Landowners present two issues on appeal—first, that this taking was unconstitutional as a matter of law because economic development takings do not satisfy the Constitution's public use requirement, and second, that the Port failed to plead a public use with specificity. Because the Port's failure to plead a public use with specificity (the second issue) prevents us from determining whether this taking is constitutional (the first issue), we reverse and remand.

The Texas Constitution has long prevented the government from taking private property for any reason other than a public use. See Tex. Const. art. I, § 17. But in 2009, Texans amended the Constitution to place more restrictions on the government's exercise of eminent domain. First, property can be taken only if it will be owned, used, and enjoyed by the government or the public at large:

(a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:

(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:

(A) the State, a political subdivision of the State, or the public at large; or

(B) an entity granted the power of eminent domain under law; or

(2) the elimination of urban blight on a particular parcel of property.

Second, a taking that is primarily for economic development or enhancement of tax revenues is not one for public use—and, by extension, is unconstitutional:

(b) In this section, “public use” does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.

See Tex. Const. art. I, § 17 (amended 2009). Thus, the government may not condemn property for transfer to a private entity for the primary purpose of economic development. See id.

Two years later, in 2011, the legislature amended the Property Code to increase the pleading requirements when an entity with eminent domain authority, like the Port, wants to acquire real property. Tex. Prop. Code § 21.012(b)(2); see Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 182-84 (Tex. 2004) (“[S]ection 21.012's requirements are mandatory.”). The statute has always required the government's petition to state the public use; beginning in 2011, it was required to do so with specificity. See Acts 2011, 82nd Leg., ch. 81 (S.B. 18), § 9, eff. Sept. 1, 2011. This heightened pleading requirement operates hand in glove with the heightened public use requirement passed by the voters just two years before: if courts must evaluate whether a use is sufficiently public to justify a condemnation, they must know what the proposed use is.

We construe this pleading requirement strictly. See Tex. Rice Land Partners, Ltd., 363 S.W.3d at 198 (“[S]trict compliance with all statutory requirements is required.”) (citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 640 (Tex. 2001) (“Proceedings to condemn land are special in character, and the party attempting to establish its right to condemn must show strict compliance with the law authorizing private property to be taken for public use.”)).

The Port cites cases from before 2011 to argue that “the ‘specificity’ standard Landowners assert is invented.” See Hous. Auth. of City of Dallas v. Higginbotham, 135 Tex. 158, 174, 143 S.W.2d 79, 88 (1940); Circle X Land & Cattle Co. v. Mumford Indep. Sch. Dist., 325 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); Lin v. Houston Cmty. Coll. Sys., 948 S.W.2d 328, 333-34 (Tex. App.—Amarillo 1997, writ denied). But the legislature's 2011 changes, including the specificity requirement, were made to “increase the rights of property owners facing condemnation proceedings.” Tex. Rice Land Partners, Ltd., 363 S.W.3d at 197 n.13. And the Texas Supreme Court has told us what the legislature means when it uses the word “specific”: “ ‘explicit’ or ‘relating to a particular named thing.’ ” In re Lipsky, 460 S.W.3d at 590.

The Port's pleading that it was taking the Landowners’ property for “expansion of [Port] facilities” and “the development of business and industries” was not explicit or related to a particular named thing. The Port parrots much of that language from the Water Code section 62.107(c). But that is the general statute that gives ports their condemning authority; any port attempting to take property could plead exactly that language. But the Port is required to plead a public use that is specific to these Landowners’ property.

Indeed, the Supreme Court of Texas has required specific public use assertions even when section 21.012 did not apply. In Texas Rice Land Partners, Denbury Green had been approved by the Railroad Commission as a common carrier, meaning an entity that transports carbon dioxide “to or for the public for hire” and has eminent domain authority. 363 S.W.3d at 194-95 (citing Tex. Nat. Res. Code § 111.002(6)); Tex. Nat. Res. Code § 111.019(a).² Denbury Green therefore argued, much like the Port here, that its eminent domain power was conclusive; being a common carrier was enough. Tex. Rice Land Partners, Ltd., 363 S.W.3d at 201. Not so, held the supreme court: “Unadorned assertions of public use are constitutionally insufficient.” Id. at 195.³

Nor did the Port cure its failure through discovery. The Port's CEO threw out many possible uses for the Landowners’ property, once it belonged to the Port: it could be used for offices, warehouses, roads, storage, inspections, staging for trucks, or refrigerated facilities.⁴ The facilities could be built by the Port, or by partnerships, or by businesses that sell food to Kroger or HEB, or by some other private entity. “Private property cannot be imperiled with such nonchalance.” See id. at 199. Some of those uses might satisfy the Constitution's public use mandate, but some might not; we cannot determine where this taking falls unless we know what use is intended.

The Port argues that it couldn't have done any better; it can't specify how the property will be used until it has contracted with the private party who will use the property, and it can't contract with a private party until it owns the property. This argument would set up a perverse incentive. Texas law views any condemnation that confers a benefit on a private party with skepticism. See, e.g., Tex. Const. art. I, § 17; Tex. Gov't Code § 2206.001(c). The Port's argument would excuse the government from being specific in the very cases where it should be held to task. In any event, section 21.012(b)(2) was amended to prevent this take now, plan later approach. If the Port is unable to name a specific public use, it should dismiss its case.⁵

The Port also points to two statutes that, it says, exempt it from specifically naming a public use for the property. First, it points out that ports are exempt from Government Code section 2206.001, which forbids eminent domain for economic development purposes or for any reason that is not a public use. See Tex. Gov't Code § 2206.001(c). But the Constitution controls, regardless of what a statute says, and the Constitution does not exempt ports. In fact, the Texas Supreme Court has twice held that the Constitution cabins the government's eminent domain authority even for entities that are exempt under section 2206.001(c). See KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 184 (Tex. 2019) (holding that transportation projects must still comply with the Constitution); Tex. Rice Land Partners, Ltd., 363 S.W.3d at 197 n.13 (same, as to pipelines). So too here.

Second, the Port directs us to section 62.107(c) of the Water Code, which states that acquisition of land for ports’ business activities is “a public purpose and a matter of public necessity.” See Tex. Water Code § 62.107(c). Critically, however, that statute does not dictate that everything a port does is a public use—the language first used in the Constitution in 1876 and then redoubled when a definition of public use was added through the 2009 amendments. See KMS Retail Rowlett, LP, 593 S.W.3d at 198 (Blacklock, J., dissenting) (“The new constitutional language clarifies that ‘public use,’ not ‘public purpose,’ is the touchstone.”); see also id. at 193 (approving the dissenting opinion's characterization of the new constitutional language). We are required to assume that different words mean different things, DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995), especially because another eminent domain statute uses both “public use” and “purpose,” see Tex. Gov't Code § 2206.001.

We need not decide here what public use, public purpose, and public necessity mean, however. We hold only that section 62.107 does not exempt the Port entirely from the Constitution's public use requirement, thereby allowing the Port to take property for any reason or no reason at all. Cf. Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 350-51 (Tex. 2019) (holding that navigation district did not have authority to enter into an oyster lease, despite chapter 62's grant of authority to enter into leases). The Port can only take private property for a public use, and it has not pleaded one.⁶

Conclusion

We reverse the trial court's judgment and remand the cause to the trial court to (1) give the Port an opportunity to replead its case with the specificity required by Texas Property Code section 21.012(b)(2); and (2) if the Port cannot do so, dismiss the case and consider awarding the Landowners reasonable and necessary attorney's fees pursuant to Texas Property Code section 21.019.

FOOTNOTES

1.   The Landowners complained about the Port's failure to state a public use at several stages in the trial court: in response to the Port's motion for partial summary judgment, in their motion for partial summary judgment, in their reply in support, and at the hearing on the parties’ competing summary judgment motions.

2.   The Port argues that Texas Rice Land Partners doesn't apply here because there is no question the Port has condemning authority, unlike Denbury Green, who was a private company. We find this argument unpersuasive. The question there, as here, was whether the condemning authority would actually use the pipeline for the benefit of the public. Tex. Rice Land Partners, Ltd., 363 S.W.3d at 200-202. It does not matter that the public use requirement for pipelines is built into the first step of the analysis—whether a pipeline has condemning authority because it transports carbon dioxide “to or for the public for hire.”

3.   See also City of Cincinnati v. Vester, 281 U.S. 439, 449, 50 S.Ct. 360, 74 L.Ed. 950 (1930) (holding that the constitutional validity of condemnation “should not be determined upon conjecture as to the contemplated purpose”).

4.   It was unclear which of those potential uses were for the larger expansion project and which were for the Landowners’ particular property.

5.   The Port also emphasizes that the legislature provided the Landowners a remedy if the Port doesn't end up using their property for a public use—they can buy it back after ten years for the same price the Port paid them. See Tex. Prop. Code § 21.101(a). That is cold comfort that doesn't compensate the Landowners for the loss of the property in the ensuing ten years. In any event, this buyback provision just proves the need for the Port to plead and prove a specific public use. The Landowners can only buy their property back after ten years if it was not used for “the public use for which it was acquired,” no progress has been made toward “the public use for which it was acquired,” or the property is no longer necessary for “the public use” or “a substantially similar public use.” Id. That is an unworkable standard if the Port can take the property without ever naming a specific public use.

6.   The Port also argues that the Landowners’ real challenge is to the constitutionality of section 62.107, which, it says, the Landowners did not properly assert below. The Port cites no authority for this argument. The Landowners’ challenge is that the Port's taking of their property does not itself satisfy the Constitution's public use requirement, not that section 62.107 is unconstitutional.

Katy Boatman, Justice