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The Unique Character of Texas Condemnation Cases

On Behalf of | Mar 23, 2015 | Blog |

Condemnation law is a specialized area of the law, and condemnation cases have a unique character. Unlike traditional lawsuits, condemnation cases do not begin as judicial cases. Instead, the proceedings initiated by a condemning authority’s condemnation petition are administrative in nature. There are a number of ramifications that arise from this aspect of condemnation cases. First, the proceedings are not governed by the Texas Rules of Civil Procedure; instead, the procedures to be followed are found in Chapter 21 of the Texas Property Code. The condemnation petition does not allege that the defendant has done anything wrong; there is nothing to answer for or deny in a condemnation case, despite the prophylactic answers frequently filed by lawyers purporting to protect their client’s interest. These answers do not accomplish anything for the client’s interest and instead have the potential to lead to a waiver of valuable rights.

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The trial court’s role is very limited during this phase of the case. He must appoint three disinterested freeholders as Special Commissioners, and, if an appeal of the award of these commissioners is not timely filed, he must enter judgment on the condemning authority’s petition and the amount of the award of Special Commissioners. These are ministerial acts. The trial court cannot, for example, grant a continuance or compel witnesses to attend the proceedings. Additionally, there is no discovery during the administrative phase other than the mandatory exchange of information contained within the Texas Property Code. Discovery requests sent during the administrative phase are outside of any “discovery period” and are, therefore, a nullity.

A condemnation case becomes a judicial case only upon the timely appeal of the award of Special Commissioners. At that point, the case is to proceed as any other civil case on the court’s docket. Even then, however, condemnation cases are different from other civil cases. For example, because the trial court’s jurisdiction is an appellate jurisdiction, matters which could have been presented in the administrative phase of the case, but were not, cannot be considered. This rule restricts the condemning authority’s ability to amend its petition, either to join parties or change the property interests to be acquired. While there are circumstances where a condemning authority may be able to dismiss a party or reduce the rights or interests it seeks to acquire, attempts to add a party or condemn additional property may require a separate condemnation case and administrative hearing.

In addition to procedural differences, there are substantive issues presented in condemnation cases that often require a degree of understanding that cannot be obtained without substantial experience handling these cases. Many of these issues are concerned with whether the property owner may recover damages for certain aspects of a taking. Whether an item is compensable is a question of law, a facet of these cases that makes the condemnation attorney’s interactions with the real estate appraiser extremely important. In complex condemnation cases, the compensation question is rarely a straight-forward assessment of the market value of the property or even the difference in market value before and after the taking. Instead, there is an increasing myriad of rules of what a jury must, and must not, consider in determining compensation. These rules present an additional source of pitfalls for the practicing condemnation attorney.