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Whittington v. City of Austin9/30/2005
d 79, 88 (Tex. 1940); City of Arlington, Tex. v. Golddust Twins Realty Corp., 41 F.3d 960, 964-65 (5th Cir. 1994); 1 Judge Madison Rayburn, Rayburn on Condemnation ยงยง 8.03 (21st ed. 1998) (distinguishing from the public use issue the issue "where there is no doubt or uncertainty as to the public character of the use to which the Legislature has designated a specific project, and where the only question involved is the purpose, or necessity, of the extent of the use."); 8.05 ("The true nature of the use . . . whether or not it is in fact one of public or private character, is one of law ultimately, and sometimes is so mixed with questions of law and fact as to have to be determined by the courts or juries on contested fact issues."). How each aspect is proven differs.
Assuming there is proof of the condemnor's professed intended use of property, the question of whether that use constitutes a public use is one of law. Maher, 354 S.W.2d at 925 ("the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts.") Texas courts traditionally afford great weight to legislative declarations that a given use of property is a public use, whether in the form of statutes generally authorizing condemnation for that purpose, see, e.g., Higginbotham, 143 S.W.2d at 83-85, or in a governmental body's condemnation resolution regarding the particular property. See Golddust, 41 F.3d at 964 ("A municipality's exercise of eminent domain power is a legislative act."); see also Daniel B. Benbow, Public Use as a Limitation on the Power of Eminent Domain in Texas, 44 Tex. L. Rev. 1499, 1502 (1966) ("The issue is not . . . whether the use is public, but rather whether the legislature could have reasonably considered it to be public."). Nonetheless, despite such deference, the Texas Supreme Court has been resolute that public use ultimately remains a judicial question. Maher, 354 S.W.2d at 925; Davis v. City of Lubbock, 326 S.W.2d 699, 704 (Tex. 1959); Higginbotham, 143 S.W.2d at 83; see Golddust, 41 F.3d at 963. As the supreme court put it, "a mere declaration by the Legislature cannot change a private use or private purpose into a public use or public purpose." Maher, 354 S.W.2d at 925.
As for necessity, unless a statute requires affirmative pleading and proof of that element, necessity is presumed from "a determination by the condemnor of the necessity for acquiring certain property." Higginbotham, 143 S.W.2d at 88. " here the use for which property is sought to be taken . . . is public, the necessity and expediency of exercising the power, and the extent to which the property thereunder is to be taken, are political or legislative, and not judicial, questions." West v. Whitehead, 238 S.W. 976, 978 (Tex. Civ. App.--San Antonio 1922, writ ref'd); see also Higginbotham, 143 S.W.2d at 88 (explaining that the question of necessity is "essentially political in its nature and not judicial") (internal citation omitted); Bevley, 638 S.W.2d at 121. Once the presumption of necessity arises, the defendant can contest the fact of necessity only by establishing affirmative defenses such as fraud (that, contrary to the ostensible public use, the taking would actually confer only a private benefit), bad faith, or arbitrariness.
However, to gain this presumption of necessity, the condemnor must first establish that its governing board actually made a determination that the particular taking was necessary to advance the ostensible public use. Exactly what is required to make this showing is at the center of this appeal, and we address that issue below.
Finally, we again emphasize that the legal requirements governing condemnation proceedings "must be strictly fo
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