A short overview of the Texas eminent domain process
Eminent domain (also known as “condemnation”) litigation is a highly specialized area of law. Typically, an eminent domain case arises when a governmental entity needs to acquire private property for a public use. Common examples are the acquisition of right of way for a road or utility project, or even land needed for a school or park. The power of eminent domain is also available to certain private utilities who operate as common carriers, such as pipeline, railroad, and electric transmission line companies. No matter what entity is using the power of eminent domain, the land must be used for a public purpose and the landowner must be paid for the value of the property acquired.
Of paramount importance for any condemning authority is that the landowner be paid just compensation for their property, as required by the Texas Constitution. The most common dispute in an eminent domain case is how much compensation a landowner is due and how the acquisition affects the use of any remainder property that is not acquired. As a consequence, eminent domain relies heavily on the use of experts who determine the utility and value of property.
Eminent domain is a combination of property law, administrative law, real estate valuation, and litigation and is nuanced compared to other types of litigation. Hiring an experienced eminent domain attorney can provide a condemning authority several advantages.
Eminent domain attorneys assist condemning authorities with:
Pre-condemnation planning and negotiations
Planning the route and determining the right of way needed for a given project is extremely important. While engineers design schematics based on what they need to complete the project, at times it is necessary to adjust plans to avoid certain businesses or homes. The early engagement of an eminent domain attorney can help the condemning authority to review project plans and engineer ways to avoid potentially costly pieces of property.
Title issues:
Determining who owns the land an entity needs to acquire can be a difficult task. The first step is to check the county tax rolls and determine who is paying taxes. The next step is to engage a title company to issue a title commitment. The title company will determine if there are any liens on the property, if the property is leased to a third-party, and if there are any outstanding title issues that must be “cured” prior to purchasing the property. Determining who has an interest in the land is important because all interested parties must sign off on the closing documents (if purchasing the property), or will need to named in the petition for condemnation (if condemning the property).
Cooperation with appraisers, land planners, and engineers
Because eminent domain cases are fact specific and rely heavily on opinions of value, hiring the right expert for the right case is crucial. In some instances, only an appraiser is required. In other cases, it may be necessary to hire an engineer, land planner, architect, or real estate broker to provide the right information to determine just compensation. An experienced eminent domain attorney can help you determine what experts are needed for your project and for any particular parcel.
Preparation of litigation documents
The attorney will draft the Petition for Condemnation and will help you determine what property rights you need to complete your project, be it an easement or fee simple title. Determining the type of property rights required is important and must be tailored to the project. For example, a road typically requires fee simple title because no one else will be allowed to use the property once the road is built. However, a powerline easement may allow some other uses that do not interfere with the powerline, such as parking or minimal landscaping.
The Special Commissioners Hearing
An often overlooked aspect of the eminent domain process is that trial court judges appoint three disinterested landowners who live in the county to serve as Special Commissioners. The Special Commissioners determine the just compensation due to the landowner. All parties to the suit can “strike” one Special Commissioner and request the judge appoint a replacement. Your attorney can advise you on who is likely to be appointed as a Special Commissioner by a given judge and who should be struck (if anyone).
Jury trials and the appropriate court of jurisdiction
If either party does not agree with the compensation determined by the Special Commissioners, they can object to the award and convert the case into a de novo jury trial (which is Latin for “from the beginning”, meaning a completely new trial).
Under the Texas Property Code, District Courts and County Courts at Law (if there is one in the county) have concurrent jurisdiction over eminent domain cases. However, some counties have specific laws that dictate certain courts have exclusive jurisdiction. In other counties, the judges have local administrative rules that determine what court hears eminent domain jury trials. Your attorney can advise you on what court will preside over the trial and how they have ruled in past cases.
Appeals of trial court decisions to the appellate courts and Texas Supreme Court
Should be there be an error of law committed in the jury trial, either party can appeal to the Court of Appeals for that jurisdiction, and later to the Texas Supreme Court. For example, if an expert is allowed to give testimony on an issue for which they are not qualified, it may cause “harmful error” and result in an incorrect jury verdict. This can result in a new jury trial.
Final Judgment
If no one objects to the Award of Special Commissioners, their decision of compensation becomes final, and the trial court will enter a final judgment based on the Award amount. If the case proceeds to a jury trial, the trial judge will enter a final judgment based on the jury verdict (subject to appeal as described above). The final judgment is the document that delivers title to the land to the condemning authority and is filed in the county deed records.
