(FIFTY-FIFTH DAY — Monday, May 11, 2009)

The following remarks regarding Floor Amendment No.i1 to CSSJRi42 were ordered reduced to writing and printed in the Senate Journal as follows with Senator Eltife presiding:

Senator Davis:iiThank you, Mr. President. With great deference to the author of this Senate Joint Resolution, I ask for the following amendment. While I agree completely with the idea behind the joint resolution, which is that we would constitutionalize the prohibition of taking property for economic development purposes, it's been communicated to me by a number of the jurisdictions that I represent that they are concerned about the language in the Senate Joint Resolution, which would prohibit the taking of that property for transfer to a private entity or for the enhancement of tax revenues, and I will tell you why specifically that raises a concern. The City of Fort Worth owns and operates four airports:iiAlliance, Dallas/Fort Worth, Meacham, and Spinks. Under either definition of transfer, the city would be unable to lease property to vendors at those airports for uses ancillary to the main use of commercial airline travel. A government is required to obtain more land than is required for the actual airport because of federal noise regulations. The land that is acquired for an airport is then often developed and leased to vendors who supply goods and services to the traveling public. For example, airports lease spaces in the terminals to restaurants, book and magazine sellers, and car rental business. Outside the terminals, the airports lease land for hotels and car rental parking lots. Indeed, the airlines that use the airports lease space in the terminals for their gate and ticketing operation, and in each of those situations, that has been a, quote, transfer to a private entity, however, the leases are allowing the enhancement of tax revenues. It is my belief that by striking that language in the Senate Joint Resolution, we still absolutely maintain the constitutional protection, which would prohibit the taking of property for economic development, but at the same time, it would not have the unintended consequence of prohibiting the transfer to a private entity for enhancement of tax revenues such as has occurred in Dallas/Fort Worth Airport and, no doubt, has occurred in airports throughout the state.

Senator Duncan:iiI want, I have to speak against the amendment. I appreciate Senator Davis bringing this to us before we brought this out. I've looked at it and, quite frankly, I don't think it's necessary. First of all, I think that since Kelo there has really been a major uproar in this country with regard to the inappropriate use of

eminent domain. The problem has been, is that in order to pass a constitutional amendment, there is a kind of a careful balance that you have to strike. I spent many hours, actually, working at my desk at home trying to figure out a way to come up with an amendment that would not unduly restrict condemning our public entities from using the power of eminent domain, but at the same time put a check and balance on the inappropriate use. So, any amendment that you come up with, you're going to have strong opposition from the condemning authorities because constitutional amendments are statements of the people that the courts try to adhere to. At the same time, any constitutional amendment you come up with that is reasonable has strong opposition from those interest groups that favor strict prohibition against takings. So, what are strict, very strict requirements with regard to eminent domain, which in my view would unduly compromise the ability of our communities to grow and prosper? So, we came up with this particular definition, actually it's an exclusionary definition, it says, public use does not include. And what we're, we limit it to political subdivisions, and then we use the word, for the primary purpose of economic development or enhancement of tax revenues. Now that brings with it some criticism from those who strongly favor a constitutional amendment prohibiting eminent domain in a very pure sense, with regard to economic development. The way we designed this was by using the word primary, it basically, that, it will actually prohibit those takings that were, you have the city taking a piece of property to transfer it to a developer for their private use. What the word primary, though, is also intended to do is to avoid the concerns of those who are, of the issues that Senator Davis has raised, is that an incidental use of the property as a result of the taking, in my view, and under this constitutional amendment, is not intended to be prohibited. In other words, an incidental use would be exactly what Senator Davis was describing, where you, the condemning authority condemns property for an airport, and this is the most common example, and the airport authority builds the airport, and then in the terminal there are vendors that they lease to that provide services to the travelers in the airport. So, this amendment is designed to allow that sort of incidental use of the property, but to be very clear that the primary purpose of the condemnation must not be for economic development or simple enhancement of tax revenues. So, I think the amendment does that. I think if we put this amendment on, I think it weakens this constitutional statement quite a bit. And so, I will have to respectfully oppose the amendment. I will leave it up to the will of the Senate, I will not move to table.

Presiding Officer:iiSenator Davis to close on Floor Amendment No.i1 by Davis.

Senator Davis:iiThank you, Mr. President. And I appreciate the discussion on the proposed amendment. And I appreciate the sincerity with which Senator Duncan offers this Senate Joint Resolution. I want to read for all of the Members what would be left if this amendment were adopted. The section would still read:iiIn this section "public use" does not include the taking of property by the state or a political subdivision of the state for the primary purpose of economic development. And I believe that captures what we've tried to do in legislation so far; it constitutionalizes what we've tried to do. What it does not allow is for "public use" to include the taking of property by the state or a political subdivision for the primary purpose of economic development. But by leaving the word "transfer to a private entity" as part of this constitutional amendment, I am very, very concerned about where we leave ourselves

A-2 81st Legislature — Regular Session 55th Day

in terms of unintended consequences. DFW was one example that I brought up. And in that situation, I absolutely believe that an argument could be made to a court that the transfer of that property to that airport, which subsequently allowed private entities to go onto the airport, which subsequently allowed those private entities to raise tax revenues that enhanced tax revenues for all of the municipalities that had ownership in the airport, I believe this would prohibit that. I also believe it would prohibit the sports authority as exists in Senator Nelson's district where the speedway is. In that particular instance, once again, the governmental entity transferred to a private entity for purposes of enhancement of tax revenues that piece of property. But constitutionally, we would now be prohibiting that. And I am very concerned that in the future we are going find a ripple effect in this language, this transfer language, that is going to have unintended consequences, which are not inherent to the desire that Senator Duncan has in terms of passing the Senate Joint Resolution, and I would respectfully request my colleagues to vote in support of the amendment.

Monday, May 11, 2009 SENATE JOURNAL A-3