Lawmakers must strengthen rights

Published on Thursday, 31 July 2014 21:41 - Written by

Austin may seem quiet just now —with most state-level candidates out on the campaign trail. But much of the real work in the state Legislature is being done now, as policies are analyzed and proposals are crafted for lawmakers to consider come January.

One such proposal comes from the excellent Texas Public Policy Foundation, a free-market think tank.

Policy analyst Kathleen Hunker says Texas lawmakers should strengthen the state’s laws regarding the protection of private property.

“Since before our nation’s founding, private property has been recognized as an indispensable pillar in supporting a free and prosperous society,” she writes. “It is what enables individuals to attain self-sufficiency and independence, and it is what prevents the government from misusing its police power to seize the wealth and labor of political minorities.”

That’s particularly true in Texas, she adds. Despite the state’s pioneer spirit and respect for property, Ms. Hunker contends, “Texas law does not defend all property owners from government regulations that encumber, without compensation, their right to use, develop, and dispose of their property; encumbrances that usually reduce their property’s value.”

There are two kinds of “taking,” she explains. The first is taking outright — seizure of property by a public entity for its own purposes. The U.S. Supreme Court has consistently ruled that if government takes property, it must fairly compensate the owner.

“The court has not been so reliable when faced with the second type of government takings,” she adds. “This type, known as a regulatory taking, occurs when government regulations interfere with a landowner’s right to use, develop, and dispose of his or her property. The landowner is left with physical possession but the accompanying rights have been unilaterally terminated, often at great expense to the landowner.”

Environmental regulations are but one example of ways the government can “take” property in this way. In fact, the court has set out guidelines for local and state governments, which are only bound by ensuring that a regulation “pursues a legitimate public interest, such as health, safety, morals, and general welfare.”

There’s a balance to be struck, of course. Zoning laws can be seen as regulations that affect a property’s potential use or value; and one person’s free use of his property can affect the value of his neighbor’s property.

But what the Supreme Court has done is take a complicated topic and make it even more muddy.

At the state level, the Texas Constitution is more clear about property rights: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person.”

But the Texas Supreme Court has followed the lead of the U.S. Supreme Court.

What can lawmakers do? For one thing, they can close some loopholes in state law that strip property owners of protections.

“The Texas Legislature can improve the protection of property rights by passing legislation that applies the Private Real Property Preservation Act to cities,” Ms. Hunker says.

That’s an excellent start.

For Texas to remain Texas, we have to respect property rights.