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As Texans, today we pause to honor those who fought for our independence.  Texas Independence Day symbolizes the strength of those who call Texas home – a resolve to fight for what is fair and right.

Five months prior to the day Texas gained its independence, a fearless group of Texans, who referred to themselves as “Texians,” successfully resisted Mexican forces who were ordered to take a small bronze cannon mounted to the blockhouse in Gonzales, Texas.  In a bold act of defiance, the Texians fashioned a flag containing the phrase “Come and Take It” along with a black star and an image of the cannon.

Come and Take ItDuring that October night, the Texians crossed the river at approximately 7 pm. It is reported that a thick fog rolled in at midnight, delaying the Texian army. Just before sunrise, the Texians reached the Mexican army. With the darkness and fog, the Mexican soldiers could not estimate how many men had surrounded them. At dawn, the Texians emerged from the trees and began firing at the Mexican soldiers. After a failed attempt at a “mediated settlement,” the Texians fired their cannon at the Mexican army. The Mexican army retreated realizing it was outnumbered and outgunned.

Today, Texans battle government and private takings of land for pipelines, power lines, and road projects by condemnation.  There is very little difference between the Mexican army taking the cannon and a private company improperly using eminent domain to take property.  See Texas Rice Land Farmers vs. Denbury Green Pipeline, 363 S.W.3d 192 (Tex. 2012).  Let us celebrate our founding “Texians” wisdom in Article I, Section 17 of the Texas Constitution.  It states:

“(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.

(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.

(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.

(d) When a person’s property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.”

As Texans, our Constitution guarantees us the right to “adequate compensation” for the taking of property through eminent domain.  Because the “Texians” bravely fought for this right, today we celebrate Texas Independence Day and honor our fallen heroes.

Justin Hodge is a partner with Johns Marrs Ellis & Hodge LLP in Houston, Texas.  He defends against government and private takings throughout the State of Texas.