 inversecondemnation.com Be sure to check out the opinion of the Texas Court of Appeals (Fourteenth District) in Jones v. Port Freeport, No. 14-23-00948 (Sep. 18, 2025).
This is a challenge to the Port's attempt to take property in an historic African-American community, with the stated purpose of the taking being "expansion of the Port Facilities" and "the development of business industries." Slip op. at 3.
The owners objected, asserting that there's gotta be a plan. Or at least a better plan than that.
We know that the U.S. Supreme Court in Kelo focused on the plan as the key. If there's a comprehensive plan (along the lines of Euclid and zoning), the Court will have the same confidence in the outcome as it does in zoning. This is the basis for the rational basis review the Court applied in Kelo (and in Midkiff and in Berman). Texas statutes and its courts take a similar approach under the Texas Constitution (see slip op. at 6-7).
The Port asserted it has a plan (see the above quotes for the public use and purpose, as it stated). Problem was, this apparently is the extent of the plan. "Expansion" and "business development." That's it.
But the Port argued that's enough. But even when put under oath, the Port's CEO could only suggest some uses it might make:
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. 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.
Slip op. at 8 (footnote omitted).
The court rejected the argument, concluding that "[t]his argument would set up a perverse incentive." Id. You need to be specific, condemnor, and [i]f the Port is unable to name a specific public use, it should dismiss its case." Id. (footnote omitted).
The court rejected the Port's claim that this was specific enough, and it "needed to plead only a 'categorical use' to condemn[.]" Slip op. at 1. No, the court held, "'I'm, from the [Port], and I'm here [for a public use]' would be enough." Id.
Merely parroting the language in the code for the permissible uses of eminent domain is not enough: "the Port is required to plead a public use that is specific to these Landowners' property." Slip op. at 7.
The court remanded the case to the trial court to allow the Port another chance to "replead its case with the specificity required[.]" Slip op. at 10. Anyone know why the court didn't just dismiss without prejudice, which to us appears to be the more correct appellate remedy here? In short, the Port will have another opportunity to concoct a plan--a plan it apparently never had.
The entire opinion is worth a read.
Jones v. Port Freeport, No. 14-23-00948 (Tex. App. Sep. 18, 2025)
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