Reversed and Remanded and Opinion filed September 18, 2025.

In The

Fourteenth Court of Appeals

NO. 14-23-00948-CV

HENRY JONES, PAMELA TILLEY, AVA WADDELL, BOBBIE JEAN

DARTHARD, JOSEPH MOORE, DEMETRIA JONES, ANGIE NICOLE
CLARK JOHNSON, LOTTIE JONES SANDERS, JANICE CATLEY A/K/A
JOHNNIE CATLITE, DARRYL JOHNSON, KIRK JOHNSON, TIFFANY
IVETTE MITCHELL, JASON EVERITT MITCHELL, CAROLYN JONES-
GAUL, DOTTI L. JONES, E.D., LONNIE JONES, AARON STEPHEN
JONES, JR., GABRIEL JONES, RACHEL R. THOMAS, TIMOTHY
JONES, TERRANCE JONES, NAOMI JOHNSON CONNOR, TRISTON E.
MAXIE, MATTHEW ISAAC JONES, GLEN JOHNSON, ARNOLD
JOHNSON, ELSIE HIGGINS CAMPBELL, BRUCE EDWARD HIGGINS,
WILLIAM A. BROWN, RODERICK L. BROWN, REGINALD A. BROWN,
ALPHONSE JOHNSON, SR., MARY L. JOHNSON, MARVELOUS
JOHNSON, JOYCE WILLIAMS, ROOSEVELT JOHNSON, SR., JOHN
HENRY JOHNSON, AND PENDLETON JOHNSON, Appellants

V.

PORT FREEPORT, Appellee

On Appeal from the County Court at Law No. 3 & Probate Court
Brazoria County, Texas
Trial Court Cause No. CI62105
 OPINION

The government may take private property only for public use. Tex. Const.
art. I, § 17. No matter what, “the overarching constitutional rule controls: no
taking of property for private use.” Tex. Rice Land Partners, Ltd. v. Denbury
Green Pipeline-Tex., LLC, 363 S.W.3d 192, 194-95 (Tex. 2012).

To hold the government accountable to that constitutional rule, all

condemnation petitions must “state with specificity the public use for which the
entity intends to acquire the property.” Tex. Prop. Code § 21.012(b)(2) (emphasis
added). Appellee Port Freeport argues, however, that it needed to plead only a
“categorical use” to condemn the Appellants Landowners’ property—“I’m from
the [Port], and I’m here [for a public use]” would be enough. Its condemnation
petition said little more than that. But the legislature doesn’t use the word
“specific” when it means general or categorical; specific means “‘explicit’ or
‘relating to a particular named thing.’” In re Lipsky, 460 S.W.3d 579, 590 (Tex.
2015) (orig. proceeding). There is good reason for this specificity requirement in
condemnation cases: “The protection of property rights, central to the functioning
of our society, should not—indeed, cannot—be charged to the same people who
seek to take those rights away.” City of Dallas v. Stewart, 361 S.W.3d 562, 580
(Tex. 2012). The Constitution requires more than the Port’s say so.

Even when this case proceeded to discovery, the Port never could identify a
specific public use. It admitted that it did not have “any specific plans for what
will be developed” because the land would be developed by third party
businesses—in fact, said the Port, it would be impossible to plead with any more
specificity because the Port doesn’t know what will happen to the property until it
is condemned. The Constitution does not condone this take now, plan later
approach. The government must tell the court what it plans to do with property so

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the court can exercise its constitutional duty to assess public use. See City of
Austin v. Whittington, 384 S.W.3d 766, 777 (Tex. 2012).

Because the Port failed to do so, we reverse and remand.

BACKGROUND

Port Freeport is a 7,600-acre port in Freeport, Texas; 2,800 of those acres are
undeveloped. The Landowners are co-owners of property close to the Port’s
existing terminal.

The Port and other navigation districts are authorized by Chapter 62 of the
Water Code to take property for “the operation and industrial and business
development of ports and waterways.” Tex. Water Code § 62.107(c). When the
Port desired to expand, therefore, its governing body adopted a resolution
authorizing it to take property immediately adjacent to its existing terminal for
“expansion of the Port Facilities” and “the development of business and
industries.” The next year, the Port filed a petition to condemn the Landowners’
property, making the same allegation—that it was seeking to acquire it for
“expansion of [Port] facilities” and “the development of business and industries”:

The Port did not identify any specific plans for the Landowners’ property.

Discovery revealed that the Landowners’ property was a small portion of a

larger expansion project planned by the Port. The larger project would support
operations of Customs and Border Protection and the Department of Agriculture
and allow trucks to travel efficiently from the Port to state roadways. But the part
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of the project that is at issue here—the Landowners’ property—would be
“marketed to potential users for lease as industry and business sites” that would
encourage more investment, economic activity, and jobs in the area. The Port’s
CEO confirmed in her affidavit and at her deposition that the Port “does not have
any specific plans for what will be developed on any particular property within the
area of the project.”

The county court at law appointed special commissioners to assess the

damages caused by the Port’s condemnation of the property. The Landowners
submitted two affidavits estimating the property’s market value before the Port’s
project at $320,000 based on recent sales of similar properties in Freeport. One of
the Landowners, who had been a co-owner of the property for 14 years, testified
that the property had two duplexes and a primary house on it that had previously
been rented for income. After a hearing, the special commissioners determined
that the Port must pay the Landowners $28,000 total for their property.

The parties then filed competing motions for partial summary judgment on
public use.1 The trial court granted the Port’s motion, holding that the Port had the
power of eminent domain pursuant to Texas Water Code section 62.107 and had a
plan for the public purpose and public necessity of expanding the Port’s current
operations into the East End of Freeport. The parties stipulated that the amount of
compensation owed to the Landowners was $100,000, and the trial court signed a
final judgment, which the Landowners now appeal.

1
The Landowners complained about the Port’s failure to state a public use at several
stages in the trial court: in response to the Port’s motion for partial summary judgment, in their
motion for partial summary judgment, in their reply in support, and at the hearing on the parties’
competing summary judgment motions.

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 ANALYSIS

The Landowners present two issues on appeal—first, that this taking was
unconstitutional as a matter of law because economic development takings do not
satisfy the Constitution’s public use requirement, and second, that the Port failed to
plead a public use with specificity. Because the Port’s failure to plead a public use
with specificity (the second issue) prevents us from determining whether this
taking is constitutional (the first issue), we reverse and remand.

The Texas Constitution has long prevented the government from taking
private property for any reason other than a public use. See Tex. Const. art. I, § 17.
But in 2009, Texans amended the Constitution to place more restrictions on the
government’s exercise of eminent domain. First, property can be taken only if it
will be owned, used, and enjoyed by the government or the public at large:

(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.
Second, a taking that is primarily for economic development or enhancement
of tax revenues is not one for public use—and, by extension, is unconstitutional:

(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

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 revenues.
See Tex. Const. art. I, § 17 (amended 2009). Thus, the government may not
condemn property for transfer to a private entity for the primary purpose of
economic development. See id.

Two years later, in 2011, the legislature amended the Property Code to
increase the pleading requirements when an entity with eminent domain authority,
like the Port, wants to acquire real property. Tex. Prop. Code § 21.012(b)(2); see
Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 182-84 (Tex.
2004) (“[S]ection 21.012’s requirements are mandatory.”). The statute has always
required the government’s petition to state the public use; beginning in 2011, it
was required to do so with specificity. See Acts 2011, 82nd Leg., ch. 81 (S.B. 18),
§ 9, eff. Sept. 1, 2011. This heightened pleading requirement operates hand in
glove with the heightened public use requirement passed by the voters just two
years before: if courts must evaluate whether a use is sufficiently public to justify a
condemnation, they must know what the proposed use is.

We construe this pleading requirement strictly. See Tex. Rice Land

Partners, Ltd., 363 S.W.3d at 198 (“[S]trict compliance with all statutory
requirements is required.”) (citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638,
640 (Tex. 2001) (“Proceedings to condemn land are special in character, and the
party attempting to establish its right to condemn must show strict compliance with
the law authorizing private property to be taken for public use.”)).

The Port cites cases from before 2011 to argue that “the ‘specificity’
standard Landowners assert is invented.” See Hous. Auth. of City of Dallas v.
Higginbotham, 135 Tex. 158, 174, 143 S.W.2d 79, 88 (1940); Circle X Land &
Cattle Co. v. Mumford Indep. Sch. Dist., 325 S.W.3d 859, 868 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied); Lin v. Houston Cmty. Coll. Sys., 948

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S.W.2d 328, 333-34 (Tex. App.—Amarillo 1997, writ denied). But the
legislature’s 2011 changes, including the specificity requirement, were made to
“increase the rights of property owners facing condemnation proceedings.” Tex.
Rice Land Partners, Ltd., 363 S.W.3d at 197 n.13. And the Texas Supreme Court
has told us what the legislature means when it uses the word “specific”: “‘explicit’
or ‘relating to a particular named thing.’” In re Lipsky, 460 S.W.3d at 590.

The Port’s pleading that it was taking the Landowners’ property for
“expansion of [Port] facilities” and “the development of business and industries”
was not explicit or related to a particular named thing. The Port parrots much of
that language from the Water Code section 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. But the Port is required to plead a
public use that is specific to these Landowners’ property.

Indeed, the Supreme Court of Texas has required specific public use
assertions even when section 21.012 did not apply. In Texas Rice Land Partners,
Denbury Green had been approved by the Railroad Commission as a common
carrier, meaning an entity that transports carbon dioxide “to or for the public for
hire” and has eminent domain authority. 363 S.W.3d at 194-95 (citing Tex. Nat.
Res. Code § 111.002(6)); Tex. Nat. Res. Code § 111.019(a).2 Denbury Green
therefore argued, much like the Port here, that its eminent domain power was
conclusive; being a common carrier was enough. Tex. Rice Land Partners, Ltd.,

2
The Port argues that Texas Rice Land Partners doesn’t apply here because there is no
question the Port has condemning authority, unlike Denbury Green, who was a private company.
We find this argument unpersuasive. The question there, as here, was whether the condemning
authority would actually use the pipeline for the benefit of the public. Tex. Rice Land Partners,
Ltd., 363 S.W.3d at 200-202. It does not matter that the public use requirement for pipelines is
built into the first step of the analysis—whether a pipeline has condemning authority because it
transports carbon dioxide “to or for the public for hire.”

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363 S.W.3d at 201. Not so, held the supreme court: “Unadorned assertions of
public use are constitutionally insufficient.” Id. at 195.3

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.4 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.
This argument would set up a perverse incentive. Texas law views any
condemnation that confers a benefit on a private party with skepticism. See, e.g.,
Tex. Const. art. I, § 17; Tex. Gov’t Code § 2206.001(c). The Port’s argument
would excuse the government from being specific in the very cases where it should
be held to task. In any event, section 21.012(b)(2) was amended to prevent this
take now, plan later approach. If the Port is unable to name a specific public use, it
should dismiss its case.5

3
See also City of Cincinnati v. Vester, 281 U.S. 439, 449 (1930) (holding that the
constitutional validity of condemnation “should not be determined upon conjecture as to the
contemplated purpose”).
4
It was unclear which of those potential uses were for the larger expansion project and
which were for the Landowners’ particular property.
5
The Port also emphasizes that the legislature provided the Landowners a remedy if the

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 The Port also points to two statutes that, it says, exempt it from specifically
naming a public use for the property. First, it points out that ports are exempt from
Government Code section 2206.001, which forbids eminent domain for economic
development purposes or for any reason that is not a public use. See Tex. Gov’t
Code § 2206.001(c). But the Constitution controls, regardless of what a statute
says, and the Constitution does not exempt ports. In fact, the Texas Supreme Court
has twice held that the Constitution cabins the government’s eminent domain
authority even for entities that are exempt under section 2206.001(c). See KMS
Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 184 (Tex. 2019) (holding
that transportation projects must still comply with the Constitution); Tex. Rice
Land Partners, Ltd., 363 S.W.3d at 197 n.13 (same, as to pipelines). So too here.

Second, the Port directs us to section 62.107(c) of the Water Code, which
states that acquisition of land for ports’ business activities is “a public purpose and
a matter of public necessity.” See Tex. Water Code § 62.107(c). Critically,
however, that statute does not dictate that everything a port does is a public use—
the language first used in the Constitution in 1876 and then redoubled when a
definition of public use was added through the 2009 amendments. See KMS Retail
Rowlett, LP, 593 S.W.3d at 198 (Blacklock, J., dissenting) (“The new
constitutional language clarifies that ‘public use,’ not ‘public purpose,’ is the
touchstone.”); see also id. at 193 (approving the dissenting opinion’s

Port doesn’t end up using their property for a public use—they can buy it back after ten years for
the same price the Port paid them. See Tex. Prop. Code § 21.101(a). That is cold comfort that
doesn’t compensate the Landowners for the loss of the property in the ensuing ten years. In any
event, this buyback provision just proves the need for the Port to plead and prove a specific
public use. The Landowners can only buy their property back after ten years if it was not used
for “the public use for which it was acquired,” no progress has been made toward “the public use
for which it was acquired,” or the property is no longer necessary for “the public use” or “a
substantially similar public use.” Id. That is an unworkable standard if the Port can take the
property without ever naming a specific public use.

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characterization of the new constitutional language). We are required to assume
that different words mean different things, DeWitt v. Harris County, 904 S.W.2d
650, 653 (Tex. 1995), especially because another eminent domain statute uses both
“public use” and “purpose,” see Tex. Gov’t Code § 2206.001.

We need not decide here what public use, public purpose, and public
necessity mean, however. We hold only that section 62.107 does not exempt the
Port entirely from the Constitution’s public use requirement, thereby allowing the
Port to take property for any reason or no reason at all. Cf. Chambers-Liberty
Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 350-51 (Tex. 2019) (holding that
navigation district did not have authority to enter into an oyster lease, despite
chapter 62’s grant of authority to enter into leases). The Port can only take private
property for a public use, and it has not pleaded one.6

CONCLUSION

We reverse the trial court’s judgment and remand the cause to the trial court
to (1) give the Port an opportunity to replead its case with the specificity required
by Texas Property Code section 21.012(b)(2); and (2) if the Port cannot do so,
dismiss the case and consider awarding the Landowners reasonable and necessary
attorney’s fees pursuant to Texas Property Code section 21.019.

6
The Port also argues that the Landowners’ real challenge is to the constitutionality of
section 62.107, which, it says, the Landowners did not properly assert below. The Port cites no
authority for this argument. The Landowners’ challenge is that the Port’s taking of their property
does not itself satisfy the Constitution’s public use requirement, not that section 62.107 is
unconstitutional.

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 /s/ Katy Boatman
Justice

Panel consists of Justices Wilson, Hart, and Boatman.

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