PRACTICE POINTERS
An Eminent Domain Primer BY SUE AYERS and industries should possess the power to condemn because their projects fulfill a public necessity.
The condemning authority must attempt to purchase the property voluntarily.
Sue Ayers is a trial lawyer with Jackson Walker. Much of her practice involves the representation of both plaintiffs and defendants in condemnation cases.
T
he recent legislative session and proliferation of public works projects have caused quite a bit of reporting on the subject of eminent domain. While a condemnation case is initiated with the filing of a petition in the courts of the county where the property is located, the usual processes for civil litigation do not initially apply. The exercise of the power of eminent domain is governed by Chapter 21 of the Texas Property Code. This is a summary of some of the fundamental steps involved in a condemnation case.
How can private entities have the power to condemn? This power resides in the sovereign—the State of Texas. But the State of Texas has never constructed and owned all of the critical public infrastructure required by modern civil society. For over 100 years, the Texas Legislature has delegated the power of eminent domain to both public and private entities that construct our power lines, pipelines, highways, and railroads. The Legislature decides, as a matter of public policy, which types of entities 26
AUSTINLAWYER | JULY/AUGUST 2019
There has always been a legal requirement that the condemnor attempt to purchase the required property rights from the landowner voluntarily. In 2011, the Legislature added the definition for a “bona fide offer” to the Property Code. It has several components: • An initial offer in writing; and • A final offer in writing—made 30 or more days after the initial offer—that is at least equal to the amount of a written appraisal by a certified appraiser. The final offer must include: • The appraisal; • The instrument conveying the property rights being sought; and • The Texas Landowner Bill of Rights. The landowner must have at least 14 days to consider the final offer before a petition is filed.1
The filing of the petition invokes the court’s administrative jurisdiction. Chapter 21 contains a number of specific requirements for the contents of a petition. For example, the petition must state that the condemnor made a bona fide offer as defined by Chapter 21.2 The petition is filed in the County Court at Law or District Court of the county where the property is located.3 Upon the filing of a petition, the court “shall appoint three disinterested real property owners who reside in the county as special commissioners.”4 If either party exercises the right to strike one commissioner, the court shall appoint a replacement.5 No citation is prepared or served; the petition is delivered to the property owner by certified mail.6 No answer is required and
a default cannot be taken. While a defendant can request some limited information regarding his property at this stage of the case, discovery under the Rules of Civil Procedure is not permitted.7 Upon accepting the appointment and taking an oath, the special commissioners “shall promptly schedule a hearing at the earliest practical time” in order to hear evidence and enter an award of damages.8 The parties are entitled to only 20 days’ notice of the special commissioners’ hearing.9 The notice of hearing can be served on the defendant, or his or her agent or attorney; proof of service should be filed before the hearing date.10 Following the special commissioners’ hearing, and filing of the award with the court, the condemnor may take possession of the property and begin construction if it: (1) deposits the amount of the award in the registry of the court; (2) deposits a surety bond in the amount of the award to secure any additional damages; and (3) executes a bond, approved by the court, conditioned to secure the payment of costs that may be awarded to the landowner on appeal.11
After the hearing, the parties may accept the award or file objections—and litigate. After the special commissioners have issued their award and it has been filed with the court, the parties can either acquiesce or
can file objections. If no one files objections, the court will adopt the award as its judgment.12 The court’s actions are purely ministerial and it has no jurisdiction to interfere with the special commissioners or their hearing, nor to enter a judgment that alters the award in any way. The deadline for filing objections is the first Monday following the 20th day after the award has been filed with the court.13 If one or both parties object to the award, the court then obtains subject matter jurisdiction and the administrative proceeding becomes a judicial proceeding.14 The court will “try the case in the same manner as other civil causes.”15 Although the condemning authority is the plaintiff in this case, the burden of proof as to value of the condemned property is on the AUSTIN LAWYER AL 16 AL landowner. Footnotes 1. Tex. Prop. Code § 21.0113. 2. Id. § 21.012. 3. Id. § 21.013. 4. Id. § 21.014. 5. Id. § 21.014(a). 6. Id. § 21.012(c). 7. Id. § 21.025. 8. Id. § 21.015. 9. Id. § 21.016(b). 10. Id. § 21.016(c). 11. Id. § 21.021. 12. Id. § 21.061. 13. Id. § 21.018. 14. Id. § 21.018(b); Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 295 (Tex. App.—Fort Worth 2004, pet. dism’d). 15. Tex. Prop. Code § 21.018(b). 16. McDonald v. Dallas Cty. Aug. 16, 2001, No. 05-98-01500-CV, 2001 Tex. App. Lexis 5520 (Tex. App.—Dallas, Aug. 16, 2001 no pet.) (not designated for publication).
