The Houston [14th] Court of Appeals has reversed a trial court order granting summary judgment to Port Freeport on the basis that its condemnation petition failed to state public use with the statutorily required specificity.
Henry Jones, et al. v. Port Freeport (No. 14-23-00948-CV; September 18, 2025) arose from a dispute between Port Freeport and owners of real property located close to to the port’s existing terminal. The port’s governing body adopted a resolution authorizing it to take property for expansion of the port’s facilities and “the development of business and industries.” The following year, the port filed a petition in a Brazoria County court-at-law to condemn the landowners’ property, citing the same general rationale but no specific plans for the property. Discovery indicated that the landowners’ property was a small part of a larger project to support operations of Customs and Border Protection and the Department of Agriculture, as well as to allow trucks to travel more efficiently from the port to state roadways. The port planned to market the landowners’ property to “potential users for lease as industry and business sites” in order to “encourage more investment, economic activity, and jobs in the area.”
The county court-at-law appointed special commissioners to assess damages. The landowners submitted affidavits estimating the property’s market value at $320,000 based on comparable sales, but the commissioners determined on a total value of $28,000. The parties then filed competing motions for summary judgment on public use. The trial court granted the port’s petition, holding that the port had the power of eminent domain under § 62.107, Water Code, and had a plan for the public purpose and public necessity of expanding the port’s operations. The parties stipulated to $100,000 in compensation. The court signed a final judgment, which the landowners appealed.
In an opinion by Justice Boatman, the court of appeals reversed and remanded to the trial court. The landowners argued that the port’s taking violated the Texas constitution because economic development takings do not satisfy the public use requirement, and further that the port failed to plead public use with specificity. The court observed in 2011 the Legislature amended § 21.012(b)(2), Property Code, to require a governmental entity’s petition to state the public use specifically, and that in the same year voters adopted a constitutional amendment to Art. I, § 17 barring the use of eminent domain for “transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.” Contrary to the port’s position that the specificity standard was “invented,” the court explained, the Texas Supreme Court has instructed lower courts to construe the heightened pleading requirement strictly. Here the port’s pleading “parrot[ed] much of the language from § 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.” Section 21.012(b), however, required otherwise, and even if that statute didn’t apply, SCOTX “has required specific public use assertions” in any event (citations omitted).
Lacking any specific details of how the port intended to use the condemned property, the court concluded that it “cannot determine where this taking falls” in the public use analysis. In response to the port’s argument that “it couldn’t have done any better” in specifying the use until it owned the property and contracted with a private party, the court observed that “this argument would set up a perverse incentive. Texas law views any condemnation that confers a benefit on a private party with skepticism” (citations omitted). Additionally, the fact that ports are exempt from § 2206.001, Government Code (forbidding eminent domain for economic development purposes or other purposes not a public use), was neither here nor there because the constitution, which does not exempt ports, controls. “The Port can only take property for a public use,” the court held, “and it has not pleaded one.”
The court reversed and remanded to the trial court to give the port a chance to replead its case. Otherwise, the court should dismiss the case and consider awarding the landowners their attorney’s fees pursuant to § 21.019, Property Code.
