ACCEPTED
14-15-00745-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
10/28/2015 5:19:30 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00745-CV
*** FILED IN
IN THE COURT OF APPEALS 14th COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH COURT OF APPEALS DISTRICT
10/28/2015 5:19:30 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
***
CITY OF ROSENBERG,
Appellant/Defendant
v.
THE STATE OF TEXAS
Appellee/Plaintiff
On Appeal from the County Court at Law No. 2
Of Fort Bend County, Texas
Trial Court Cause No. l 5-CCV-055144
Honorable Jeffrey A. McMeans, Presiding Judge
APPELLANT'S OPPOSED MOTION FOR
EN BANC RECONSIDERATION
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
2500 W. William Cannon Drive, Suite 609
Austin, Texas 78745
( 512) 279-643 l Phone
(512) 279-6438 Facsimile
George E. Hyde
State Bar No. 45006157
SCOTT M. TSCHIRHART
State Bar No. 24013655
ATTORNEYS FOR APPELLANT
CITY OF ROSENBERG
MAY IT PLEASE THE COURT:
NOW COMES APPELLANT, the CITY OF ROSENBERG, (hereinafter
"Appellant" and/or "the City") and files this Appellant's Opposed Motion for En
Banc Reconsideration in accordance with the Texas Rules of Appellate Procedure
("TRAP").
INTRODUCTION
By this motion for reconsideration en bane filed under Texas Rules of
Appellate Procedure 49.1 and 49. 7, Appellant asks this Court to reconsider its
decision to grant the Motion of the State of Texas to Dismiss Appeal for Want of
Jurisdiction. See Opinion filed October 13, 2015.
Reconsideration en bane is appropriate in this case because, although the
Court correctly identified this to be an issue of first impression in Texas
Jurisprudence, the Court's ruling mistakenly concludes that the 2011 Legislative
amendments to the Texas Property Code do not make the requirement that the State
make a bona fide offer prior to commencement of condemnation proceedings
jurisdictional. In fact, the Court incorrectly extended the Hubenak decision
(Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004)) by
applying it to statutory language that did not exist when Hubenak was decided. The
City contends that the Texas Legislature intended to completely overhaul the
condemnation practices in Texas and to make condemning entities follow the
2
prerequisites set forth in the Texas Property Code prior to initiating a condemnation
lawsuit. The Court incorrectly concluded that the abatement remedy set forth in
Texas Property Code section 21.047(d) is the sole remedy for the failure of the State
to follow the mandatory prerequisites of the condemnation procedure. Moreover,
the Court dismissed the City's appeal without giving the parties the opportunity to
brief the issues. The City's briefing will establish that the Legislature was, in a
string of bills dating back to the Hubenak decision, reacting directly to that decision.
The City should at the very least be afforded the opportunity to brief issues that the
Court correctly indicates are issues of first impression under Texas jurisprudence.
Finally, the granting of Appellee's Motion to Dismiss for Want of Jurisdiction
effectively deprives the City of its procedural due process rights and makes the 2011
amendments of the Texas Legislature a nullity.
For these reasons, Appellant urges the panel to reconsider its ruling based on
the following arguments.
STATEMENT OF RECONSIDERATION POINTS
Appellant requests reconsideration of the Court's ruling based on the
following:
A. The Court incorrectly concluded that the mandatory language used by
the Legislature in the 2011 amendments to Chapter 21 of the Texas Property
Code were not intended to be jurisdictional and abrogate the Hubenack
decision.
3
B. The Court incorrectly extended Hubenack to apply to statutory
language that the Legislature adopted to change the legislative scheme for
condemnation set forth in Hubenack.
C. The Court incorrectly concluded that the abatement remedy set forth in
Texas Property Code section 2 l.047(d) is the sole remedy for the failure of
the State to follow the mandatory requisites of the condemnation procedure.
D. By granting Appellee's Motion to Dismiss for Want of Jurisdiction,
without allowing briefing on the subject, the Court deprives the City of certain
procedural due process rights that were intended by the Texas Legislature.
ARGUMENTS & AUTHORITIES
A. The Court incorrectly concluded that the mandatory language used
by the Legislature in the 2011 amendments to Chapter 21 of the Texas
Property Code were not intended to be jurisdictional.
Page 3-4 of the Court's Opinion contains the conclusion that the 2011
amendments to Chapter 21 of the Texas Property Code were not intended to
undermine the Hubenak analysis. As a result, the Court extended Hubenak to the
Legislature's bona-fide-offer requirement. However, the plain language of the
statute indicates that the Legislature wanted to change the way condemnations were
conducted in Texas and the legislative history supports the argument that these
amendments came about as a reaction to the Hubenak decision.
The Legislature used mandatory language to require a condemning entity to
take certain steps prior to condemning property. The 2011 amendments from Senate
Bill 18 included a new Section 21.0113:
Sec. 21.0113. BONA FIDE OFFER REQUIRED. (a) An entity with eminent
domain authority that wants to acquire real property for a public use must make
4
a bona fide offer to acquire the property from the property owner
voluntarily.
(b) An entity with eminent domain authority has made a bona fide offer if:
( l) an initial offer is made in writing to a property owner;
(2) a final offer is made in writing to the property owner;
(3) the final offer is made on or after the 30th day after the date on which
the entity makes a written initial offer to the property owner;
(4) before making a final offer, the entity obtains a written appraisal
from a certified appraiser of the value of the property being acquired and
the damages, if any, to any of the property owner's remaining property;
(5) the final offer is equal to or greater than the amount of the written
appraisal obtained by the entity;
(6) the following items are included with the final offer or have been
previously provided to the owner by the entity:
(A) a copy of the written appraisal;
(B) a copy of the deed, easement, or other instrument conveying
the property sought to be acquired; and
(C) the landowner's bill of rights statement prescribed by Section
21.0112; and
(7) the entity provides the property owner with at least 14 days to
respond to the final offer and the property owner does not agree to the
terms of the final offer within that period.
Added by Acts 2011, 82nd Leg., R.S., Ch. 81 (S.B. 18.), Sec. 8, eff.
September 1, 2011. (emphasis added)
The Court was correct in its conclusion that this is a case of first impression under
Texas jurisprudence as it does not appear that any other court has considered whether
these provisions are jurisdictional. However, when considering the changes to
Section 21.012, it is clear that the Legislature intended these provisions to be
jurisdictional:
5
Sec. 21.012. CONDEMNATION PETITION. (a) If an entity with
eminent domain authority wants to acquire real property for
public use but is unable to agree with the owner of the property on
the amount of damages, the entity may begin a condemnation
proceeding by filing a petition in the proper court.
(b) The petition must:
( 1) describe the property to be condemned;
(2) state with specificity the public use for which the
entity intends to acquire the property;
(3) state the name of the owner of the property if the
owner is known;
(4) state that the entity and the property owner are unable
to agree on the damages;
(5) if applicable, state that the entity provided the
property owner with the landowner's bill of rights statement in
accordance with Section 21 .0 l l 2; and
(6) state that the entity made a bona fide offer to
acquire the property from the property owner voluntarily as
provided by Section 21.0113.
(c) An entity that files a petition under this section must provide
a copy of the petition to the property owner by certified mail, return
receipt requested.
Acts 1983, 68th Leg., p. 3498, Ch. 576, Sec. 1, eff. Jan. l, 1984.
Amended by: Acts 2007, 80th Leg., R.S ., Ch. 1201 (H.B. 1495), Sec.
4, eff. February 1, 2008. Acts 2011, 82nd Leg., R.S., Ch. 81 (S.B. 18),
Sec. 9, eff. September 1, 2011.
The Texas Legislature intended the bona fide offer requirements of Sec. 21.0113 to
provide a clear set of rules that a condemning entity must follow in order to
determine whether the parties are unable to agree and those mandatory provisions
must be complied with prior to filing suit. Otherwise the Legislature's actions in
passing Senate Bill 18 had no effect on the condemnation process.
6
The requirement in Sec. 21.0 l 2(b )(6), that the condemning entity ''state that
the entity made a bona fide offer to acquire the property from the property owner
voluntarily as provided by Section 21.0113" is also instructive of the clear
Legislative intent that the condemning entity could not bring an action without first
complying with Section 21.0113. For example, it would be a violation of Texas
Rule of Civil Procedure 13 to include a Sec. 21.0 l 2(b )(6) statement in a
condemnation petition without actually having previously made the bona fide offer
as mandated by Sec. 21.0113. See Tex. R. Civ. P. 13 ("Attorneys.. .who shall make
statements in pleadings which they know to be groundless or false ... shall be guilty
of contempt."). Moreover Rule 303 of the Texas Disciplinary Rules of Professional
Conduct states in relevant part "A lawyer shall not knowingly . ..make a false
statement of material fact or law to a tribunal." The Texas Legislature clearly
intended that the Sec. 21.0 l 2(b)(6) be included in the condemnation, but that the
lawyer who signed the pleading would be bound by both the Texas Rules of Civil
Procedure and the Texas Disciplinary Rules of Professional Conduct to make certain
that the bona fide offer was made prior to the institution of condemnation
proceedings. The Texas Legislature would not have intended that attorneys who
sign condemnation petitions would do so in violation of these rules.
The legislative history relating to Senate Bill 18 indicates that the Texas
Legislature was reacting directly to the Hubenak decision in a series of enactments
7
culminating in Senate Bill 18. The House Research Organization, Interim News
(May 17, 2010), a true and correct copy of which is attached as Exhibit "A" directly
discusses Hubenak and the Legislature's reaction:
Concerns about entities exercising the power of eminent domain
providing fair initial offers for condemned property have led to recent
attempts to require these entities to make "good-faith offers" at the
beginning of the condemnation process and to establish meaningful
sanctions when they do not. Supporters of a good-faith offer
requirement point to the 2004 Texas Supreme Court decision in
Hubenak v. San Jacinto Gas Transportation Company, 141S.W.3d172,
claiming that case diminished the incentive for condemning entities to
negotiate in good faith. That opinion resulted from a number of cases
in which property owners claimed that condemning entities did not
satisfy the requirement, under Property Code 21 .012, that the
authorities were "unable" to agree with the owners on the amount of
damages before beginning condemnation proceedings. Property
owners argued that the requirement could not be met unless the
condemning authorities established that they had engaged in "good-
faith" negotiations with the owners before filing suit. The court found
that the entities in Hubenak each had made a formal offer to purchase
the properties and that this was sufficient to meet legal requirements to
make an offer before filing suit.
Supporters of raising the standards for what constitutes a good-
faith offer say that the current court interpretation of the law allows
condemning entities to make low offers knowingly without facing the
penalty of paying attorney' s fees and having to re-file a case as a
consequence.....
The article then describes past legislative efforts, which included the bona-fide offer
requirement that resulted in Section 21.0113:
Past legislative efforts. Two previous bills that failed to be
enacted would have established requirements for good-faith offers. HB
2006 in 2007 would have require an entity attempting to take a property
to make a bona fide offer, defined as an offer that was based on a
reasonably thorough investigation and an honest assessment of the
8
amount of just compensation due to the landowner. It would have
allowed a court that found a condemning entity did not make a bona
fide offer to dismiss a condemnation suit and require the entity to make
such an offer. SB 18 in 2009 would have required a condemning entity
to make a bona fide offer meeting several criteria, including obtaining
a certified appraisal no higher than the offer made....
See id. These provisions made it into Senate Bill 18 and the Legislature clearly
intended to abrogate the Hubenack decision and put in place a more rigid procedure
the condemnor must comply with before filing suit.
The City respectfully requests that the Court rehear and reconsider its decision
to grant the State's Motion to Dismiss and allow briefing on these issues of first
impression under Texas jurisprudence.
B. The Court's incorrectly extended Hubenack to apply to statutory
language that the Legislature adopted to change the legislative scheme
for condemnation set forth in Hubenack.
On page 4 of the Opinion, the Court correctly noted that the Hubenack court
did not address whether the requirement of a bona fide offer is jurisdictional, and
that the issue appears to be an issue of first impression in Texas jurisprudence. Then
the Court, without additional discussion, concludes that the 2011 amendments to the
Texas Property Code do not appear to have undermined the Hubenak analysis.
However, the Court reads too much into the Hubenak decision. It's true that
Hubenak stands for the proposition that the requirements under the previous version
of Texas Property Code§ 21.012 are mandatory but not jurisdictional. See Hubenak
v. San Jacinto Gas Transmission Co., 141 S. W.3d 172, 183~84 (Tex. 2004 ).
9
However, it is also clear that under Hubenak, a landowner can waive its right to
challenge whether the condemnor negotiated in good faith prior to filing the
condemnation petition. See id. The Court seemed to indicate that all pre-suit
requirements of condemnation actions could be waived by the landowner's failure
to timely raise a challenge. See id.
In the present case, the City did timely raise a challenge to the State's failure
to comply with the pre-suit requirements. The City objected in writing to the State
prior to the commencement of the suit and raised the issue in a plea to the jurisdiction
after the suit was filed. A plea to the jurisdiction is the only appropriate procedural
vehicle for the City to use to challenge the State's failure.
Moreover, as previously demonstrated, the Legislature clearly intended to
address the perceived abuses under the Hubenack decision.
The City respectfully requests that the Court rehear and reconsider its decision
to grant the State's Motion to Dismiss and allow briefing on these issues in light of
the legislative history and the Hubenack court's indication that a landowner could
waive all pre-suit requirements by failing to raise a timely challenge.
C. The Court incorrectly concluded that the abatement remedy set
forth in Texas Property Code section 21.047(d) is the sole remedy for the
failure of the State to follow the mandatory requisites of the
condemnation procedure.
On Page 4 of the Opinion, the Court concluded that the Legislature provided
an abatement remedy under Property Code Section 2 l .047(d) shows that the defect
10
(the failure of the State to make a bona fide offer prior to commencing suit) is not
jurisdictional. However, nothing in Chapter 21 of the Texas Property Code indicates
that abatement is the sole remedy available to a landowner. The present case is in a
different procedural posture than the Court considered in Hubenack. In Hubenack,
the condemnation petitions were filed, the Special Commissioners had made their
awards and the landowners timely appealed the awards, and there were opposing
motions for summary judgment. See Hubenack, 141 S.W.3d at 176-177. The Court
noted that there was no language in the previous Sec. 21.012 that made the "unable
to agree" requirement jurisdictional. See id. at 180.
However, the 2011 amendments to Texas Property Code Sec. 21 .0113 and
21 .012 were changed to add specific mandatory requirements that a condemning
entity must follow prior to filing suit. This was a major departure from the previous
version of21.012(b)(4) that simply stated that the condemnation petition must "state
that the entity and the property owner are unable to agree on the damages." When
these prerequisites are not met, the entity cannot maintain an action and a plea to the
jurisdiction is the proper procedural vehicle to challenge the lawsuit.
The City respectfully requests that the Court rehear and reconsider its decision
to grant the State's Motion to Dismiss and allow briefing on these issues in light of
the specific changes the Legislative made to Texas Property Code Sec. 21 .0113 and
21 .012 which added specific mandatory requirements that a condemning entity must
11
follow prior to filing suit and because the Legislature did not provide any changes
to Chapter 21 of the Texas Property Code that evidence a legislative intent that
abatement is the sole remedy available to a landowner.
D. By granting Appellee's Motion to Dismiss for Want of Jurisdiction,
without allowing briefing on the subject, the Court deprives the City of
certain procedural due process rights that were intended by the Texas
Legislature.
The Texas Legislature clearly intended that the 2011 amendments to
Sections 21.0113 and 21.012 of the Texas Property Code would provide
procedural due process rights to landowners. The Legislature changed the
requirements under fonner Sec. 21.012(b)(4) that simply required the
condemnation petition to state that "the entity and the property owner are unable
to agree on the damages." To specific actions that must be taken before the
condemnation petition can be filed and a certification under Texas Rule of Civil
Procedure 13 that the provisions contained in Sec. 21.0113 have been met. When
the State failed to comply with Sec. 21.0113, a plea to the jurisdiction is the
appropriate vehicle to test the jurisdiction of the trial court.
"The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424
U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). "Procedural due process
considers not the justice of a deprivation, but only the means by which the
deprivation was effected." Caine v. Hardy, 943 F.2d 1406, 1411 (5 1h Cir. 1991).
12
The injury that stems from a denial of due process is not the liberty or property
that was taken from the litigant, but the fact that it was taken without sufficient
process. See Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d
890, 894 (61h Cir. 1991 ). A due process injury is complete when process is denied.
Zinermon v. Burch, 498 U.S. 113, 125, 110 S.Ct. 975, l 08 L.Ed.2d l 00 (1990).
If a landowner cannot challenge whether the State has complied with the
mandatory pre-suit provisions of Sect. 21.0113 and 21.012 immediately after suit
is filed, the landowner is deprived of its ability to effectively challenge the State
at all. The State will be able to ignore all of the mandatory pre-suit provisions
contained in Sec. 21.0113 and 21.012 with impunity. The State's lawyers will
be allowed to sign condemnation petitions in direct violation of Texas Rule of
Civil Procedure 13 with no meaningful consequences. Moreover, the courts of
the State of Texas will be able to ignore the directives of the Texas Legislature
set forth in Senate Bill 18.
The City respectfully requests that the Court rehear and reconsider its decision
to grant the State's Motion to Dismiss and allow briefing on these issues in order to
give effect to the Texas Legislature's 2011 amendments to the Texas Property Code
and in order to preserve the procedural due process rights of Texas landowners.
13
CONCLUSION
The City of Rosenberg respectfully requests that the Court rehear and
reconsider its decision to grant the State's Motion to Dismiss and allow the appeal
of the City's Plea to the Jurisdiction to proceed. Accordingly, Appellant asks this
Court to reconsider its decision to grant the Motion ofthe State of Texas to Dismiss
Appealfor Want ofJurisdiction, see Opinion filed October 13, 2015, and reverse the
decision to grant the State's Motion.
PRAYER
WHEREFORE PREMISES CONSIDERED, Appellant prays that this Court
reconsider en bane its decision to grant the Motion of the State of Texas to Dismiss
Appeal for Want of Jurisdiction and, after filings of briefs and oral arguments, hold
that Appellant is entitled to dismissal of the condemnation lawsuit in the trial court,
and for such other relief to which Appellant may show itself to be entitled.
SIGNED this 281h day of October, 2015.
t4
Respectfully submitted,
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C.
2500 W. William Cannon Drive, Suite 609
Austin, Texas 78745
512/279-6431
512/279-6438 (Facsimile)
george.hyde@rampage-aus.com
scott.tschirhait@rampage-aus.com
By:
State Bar No. 45006157
SCOTT M. TSCHIRHART
State Bar No. 24013655
ATTORNEYS FOR APPELLANT
CITY OF ROSENBERG
CERTIFICATE OF CONFERENCE
Pursuant to Rule I 0. I (a)(5) of the Rules of Appellate Procedure, the
undersigned certifies that attempts to confer with counsel for Appellee The State of
Texas was made on Octoz pellant is filing this motion as opposed.
GEORGE E. HYDE
SCOTT M. TSCHIRHART
15
CERTIFICATE OF COMPLIANCE
In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the
Appellants' Motion for En Banc Reconsideration contains 3,320 words, which does
not include the caption, signature, proof o ) service, certificate of conference, and
certificate of compliance.
GEORGE .HYDE
SCOTT M. TSCHIRHART
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been served upon the below named individuals as indicated, and according to the
Texas Rules of Appellant Procedure and/or via electronic notification on this the 281h
day of October, 2015:
Glorieni Azeredo via electronic notification
Susan Demaraisa Bonnen
Assistant Attorney General
Office of the Attorney General of Texas
Transportation Division
P.O. Box 12548
Austin, Texas 78711-2548
GEORGE E. HYDE
SCOTT M. TSCHIRHART
16
HOUSE
RESEARCH
ORGANIZATION
Texas House of Representatives
Interim News
Number81-4 May 17, 2010
Legislature may revisit eminent domain
issues in next regular session
The Tc:rcvious discussions of oppose furthcr revisions s;1y recent a rangi: or prnpo~cd re\'isions tu
cmim:nt domain in Texas centered dmnges in the l;1w have cffc:ctivcly
un whether current luw adequately (See eminent domain, page 2)
protects property owners from unfair
and unnecessary takings.
Property Coe.le. ch. 21 govcms
Veterans mental health courts
eminent domain (condemnation)
proceedings antlth and drug treatment for
court or county court-ai~law in the certain mililary veter.ins with the processing of crnninal cases in whkh the
county where the propcny is lm:atcd. veterans arc dc!Cn rcs1ric1 the use
provisions, was appnn-ctl hy the ur eminent domain aulhority
Scnmc but died in 1hc I lou:;c lluring lo a l<1king or other dmm.1gc
the rc~ulor session in 2009. Voters tu a property rrimarily for the
approved a constimLional amendment 111 .!009 that O\\llCl'ship, usc, and enjoyment hy ce11ain entities. Those
m1rrowcll the purposes for wluch propc11y may be taken. cmitics im:ludc the stale. a local government. an entity
with condcrmmtion authority under slate l:1w. or !he
public al k1rgc. The amendment disallowed the laking
Restricting uses of eminent domain of property for tmnsfor to n a p.1rticular privotc parry: 01· term~ mu.I n:spoml to putcnti;1I court interpretations of
• is for economic development purpoc;cs, unless language! in the Constitution .
th.: llc\.clopmcnl is a 'iccoudary purpose
rcsulling from urban renewal aclivitics lo Slum and blight
eliminate ;11lirm.1tivc ham1s from slums or
hlighlcd areas. The a111hority to acquire property for economic
dcvclupmcnt, including the removal ur slum mid blight.
The LcgislJturc cnadc LOllld rcs1rk1 such constitutional amendment adopted in 2009. :11lows :1
aulhorily. taking of property 10 eliminate hligh1 on a partkular
pa1ccl only, rather than a lar~er area tlcsignntcd as
Public use ·'slum·· or ·'hlightet.I.'"
AJvocatcs of reigning in eminent Jom:un powl·r The Texas Urban Renewal Law, cnach!ll in 1%7.
said SR 7, whik :1 marked imprnvcmenl. did not ;illows local authorities lo exercise cmincnl domain 111
May 17, 2010 page 3
acquire pro(lcrty within an urhan renewal plan :1re;1 1ha1 residents and businesses for enterprises th;u gener;11c
a munit:ijlalily d.:signatcs as a shun or hligh11.:d. Propc11y more tax revenue.
may he condemned 111 a section of a dcsigm11cd urban
rcncwal area when: the municipality has dctcrminctl lhat Opponents of 1cstric1ing the use of cmine111 domain
al lc;ist 50 pcn:enl of stn11.:l11rcs arc Jilapid;1tcd mul show for slum and blighl say proposed limit-; woulJ crcah:
other ch:1rac1cristics urhlight. ubstadcs thal cffcclivcly climinall! a municipality's
aulhority to who need lhc mos! assistance.
s1a1utu1y revisions hccame l;1w. HB 3057 by C1llcgari
in 2007 :mtl SB 18 by C!sles in 1009 would ha\'c
prohihill:d a municipality li'otn c~ercising powers under Rights of property owners
the Urbm1 Renewal L:1w unless its govcmini; hndy
dctcnnincd that c;1ch unil or prnperiy in an area met lhe Artother is.,uc centers on the rights of property
definition of "hligh1:· Both bills would have rcquircJ owners whose l:mtl is t:1kcn umlcr eminent domain
wrillen notice to pmpc11y owners before :1 blighted area authority.
was designated and would have allowed a property In
b~ dcsignaccd as hligh1cd only if the owner took no MB 2006. which Go\'. P!!ny v..:10..:tl in :!OU?, ant.I SB
reasonable measures to remedy haianlous condit10ns. 1R. which was approved by the Senate but died in the
A municipalily wishing 10 exercise eminent domain I louse in 2009, would h:l\'c e~pandcd compcnsa1ion
authority in an urban renewal area nol only would have for property uwncrs, rcl1uin:d condemning l!ntitics to
had to determine that each property in the area met the nqmtialc in ··gootl faith," and allowed properly owners
dclini1ion of blighted - also a provision of Prnposition lu rc:purchasc 1akl!n properly 1ha1 had not been put lo a
11 . the ronstitutional amendment approved by voters puhlic U!>C within I0 years.
in 1009 - but also woulJ have had lo n:afiinn the
designation on "" ongoing hasii;. Compensation for access to transportation
UnJi:.- Prupu~it1011 11, cunJcmnation for u public Th!! fa.:tors thal may be cunsidcrcd in awarlin filed for additional
page4 Interim News
d.1111.1g.cs as J rl!sult of a St.lie Mighw.1y 183 con-.1ruct1on l11ghway from thc rcmainini:t rrorerty due 10" :-.talc
pruJCCt th:1t lllVOIVCU dcvat111g lane.; Jm) t.1kmg 'il!VCtl highway rrnicct. lo the extent 1ha1 it alfoth!d chc
li:ct or their pmpe1ty for right or way. The court found propcny's market 'aluc. The bill abo would have
that the l of parking spaces due Ill cmincnt domain \\oulpeculativ~
rcpun:has~ land wkcn through eminent domain for a exercise of eminent domain ;1uthority by condemning
public use thal 1s cancdcJ bdun: the IOth anniversary entities Comknming cntilks would he strongly
of the dale the rrorcrty \\'JS at:ljlllrcJ. The rosSCS!>ing discouraged from acquiring land through eminent
governmental cnlily mu:;t oiler 10 sell the prnpcrty lo lhc is dcpmc
value of the 1>mpc11y al the lime the public use was owners of the l'uturc valm: of the prnpcrty. and the
canceled, nut ;U the original price paiu by the cntuy. option to rcpurch;isc at the original pnce woulJ help
rcctily this grievance.
To cst:tbli~h the constitutional authority for the 1ight
of repurclmsc ;11 the original price paiJ. voters approved Opponents of allowmg property owners to
Prupo.;irion 7 in 2007 (MJR 30 by Jackson), authorizing n:pun.:hasc !heir property at the original price
govcrnmcnt;il entities lo sell land t:1ken through eminent said it would allow '·double recovery" for digiblc
domain back to the t<.mncr ll\Vncr, the owncr·s heirs. rropcrly owners who had undcrgoni: cmincnl dom<1in
or olhcr succL'SS~lrs, m 1hc prit:c the cntuy paid when proceedings. This would confer a wimlfrill on property
acquiring the property if: owners who were compensatccJ adcquatdy fur lhe
original taking. lhcy -.a1J. An own..:r wh\l was cliy1blc tu
• the public use for which the property was rcpurdrni;e at the price originally paid could accrue all
acquired has been canceled: lhl! l!lJUity from appreciation of the value of the prop\!11y
• no actuul pmgrc~s has h~cn made tow;irJ the .;mcc the lime of the original laking without having to
public use during :i prcscrib.:mperly owner a gunJ-faith offer 1cquircmcnt roi111 to the 2004 Tc~as
whose lanJ was acquircll for a public use that has since Supn.•mc Courl 1lcc1s1on in / lulll'1111k 1 Sa11 .Im i11to Uo.;
been cancelled or failed lo pwgress to rcpun:hasc their Trmr.wri.\'.\"Ulll Cv111pm11. 141 S W.3d 172. c..la1ming that
property at the original price the conc.kmning entity cusc d1mmislml the 111ccnti\ c ltw w11Jcm11111g cn111ic~
paid. Only lhc origin:ll owners and their heirs could lo negotiate 111 good foith. Thal opinion rc,ulh:d from a
have repurchased the property. The right ol repurchase number ol 1. 1);c-; 111 \\ hil:h property own\!1·s claim~d that
wnulcJ have ~·r1llicd if'lhc rublic u.;c for lhe properly contlcmnmg entitles did not satisfy the rcquir~menl,
were cancdcd or the governmental entity failed to begin unJcr Prnpl!t'lY Code 21 012. th.it lhc authorllh!s
operation or ~onslruction t'I' the proJCl.I within IO yc;m;. were "1111ahk" lo :igr\!c wi1h owner-. on 1h1.· mnounl or
If such legislation \\ere cn11cteJ. 1t would ;1llow the damage' bcfon.· bcginmng condcrm1;11ion prrn:c1:d111g-.
page 6 Interim News
Prupl!rty owners ;irg.ucd 1he rcquirl!mcnt could no1 Some h,1, c propo~ed mca~uring the inilial
he met unkss contlcmnmg autlmntcs cswbHshcd that olfor ag;unst lhc linal award dctcnnncd by spcd;il
chey had cng;igctl in "good-la1th'. ncgotiationi; wi1h comnusswncrs ;iftcr court pmcccding'\. They -;ay the
the owners hcfon: tiling q11t. rhc mun ltllllhl lhat the mere c:dstcncc of an apprnisal docs not ensure a fair
entities 111 I luhcnak i:;1ch h..iJ m.1dc a formal offer to offer. as apprnisals may \'ary widely bascJ on th<.: factors
purcha~c the propi:11ics and 1h.1t 1h1s was sullicicnl to includctl in dt:tenmmng market \'alui.: Supporters ol' .1
mct:t lcg:•I ri:t1uirc1m:nb lo make an olfor llt.!fore filing a provision to measure 1hi: ini1iul oiler against the final
.;uit. aw;1rd 'ay Che final offer should not \,try hy more than
;1 certain percent from the initial oiler. perha1ls 15 OI' 20
Suppmicrs of raising 1hi.: ~t.mdards for what p!!rccnt. Initial otli:rs murl! than 15 ur 20 rcrccnt lower
coit..;1i1u1cs a )J.lKld-foith offer say that 1he current court limn a lim1I judgment should be primu /itch: evidence of
in11.·rrm:1a1i0n of tl\c law allow-; comkmmng cnli11cs Lo ba an Lawmakcrs lm\'e llcbatcJ several revisions to the
dismi's .1 L'undcmncilton suit and require the entity lo process for exercising eminent domain aulhorily in
m:tl-.:c such an offer. SA 18 111 ~OO•> wuulri1y anti intention Co take a properly. wh-:ther to
scvcrnl cri1c1 ia. including obtaining a certified appraisal require conucmning nu1hori1ics 10 provide relocation
no higher than the offer m.1dc. A courl finding that .1ssist;im:c to Ji~pl:1ceJ property owners, nnjfe r.f. Recent Jchatc on
good-failh oilers h:ts centered on how 10 discinguish Disclosure of intent
good-faith oll\!rs from those aimed :'It coercing property
owners mto settling on :111 unfair r rkc to avoid lcg;il Recent lcgisltlliun lws inn>lvcd changes to notice :111J
tees and hassles. thc Jisdosul'c llf mtcnt re11uircmcnls for toking properly.
HOUSE RESEARCH ORGANIZATION
Exhibit A
May 17, 2010 page 7
r IB 14CJ5 by Callegari. enacted in 2007. rcqu1rcc; pnwisi(ln tn an offer or agrcemen1 h> possi:ss propclly.
.m cn111y w11h eminent Jom.iin authot ity 10 prO\· Ilk ,1 The.: 1111\:nl wa.; to rrcv-.:nt such entiries from keeping ki:y
landowner's bill of righ1s to a properly ownc:r bc:forc mformation. such :1s ~m ;ippraisal. from pmpcny owners
initial ncgollallons lo aClfuirc property. ;\c. required and other mtcrc'itcd part ks. ·nic.:y also woul1I havi.:
by 1hc law. lhc: Allorncy Gcnc:r:1rs Ollicc draftc:tl 1hc n:<1uircd an i:ntily lhat was not subject lo upc.:n records
l111ulowncr·s lull of rights tu noltly properly owner~ law.; bur w.1s m11hurizctl to c.s1!>l;1ncc, but 1Jus Jocs not C1'1cnJ to takings when: no of ellllllCl\t UOlll:llll lo new entities hy increasing
such hmds arc invol\'cd. Current law in Texas pcnnlls chc numbcr of voles m l!ach house of 1he lcg1sln1urc
a gowmmcnlal cntity lo provitlc J rclm:ation '>cn·kc necessary to ~rant the power of ..:mincnt domain
.md issue rclm:atiou pi!}'mcnts in kci:ping with ICka ;all h.1vc some kind of prohlcm-s<1l\ mg l.llllll for
hcndils, hcalt h saviccs. mid other hc:lp o lli:n:d by tlu: dch:mlants who arc \'Clcrans. according to the Na11onal
lc w11hin a court nf
progr;uns. while Ue.xar. Dcntun. Fannin. l lidalgo. and general jurisdictio11 or a criminal coun (For mon rm
Orange countii:s arc activdy planning 1hem. New York, pmblt•111-:wfri11g cow·r.~ ;,, Tera.,·. sec: hclm1· )
r
Other problem-solving courts in Texas
Texas lws a '';1ridy or prnMcm-snlving couns. the must common bdng drug courts. Drng.
wm1s arc progrJms, usually opernting within a district court or a county co1111 al law, that divert from
incilrccr.11ion into treatment cct1ain defonr cks1roy all r.:co1ds of the criminal beha\'1or. m December ~009 and currently oversees 20 tlcfcndants.
The second. in Tarrant County. opened in April of this
Supporters of pmblcm·'>olring cm111s say they yl·;u· ;mu oversees 40 1.kfomla11ts. The 1hird, in Dalhis
reduce lhc n:d percent for all those criminal conduct tlwr is al is::.uc.
who participated, :md 41 pcrccnt for comparable tlmg
offi:ndcrs who did not pai1icipa1c. TI1c GAO found SB 1940 grants judges in veterans mental health
sirnilur rl·sults iu studies of dmg i:uurts in other states. courts wide c.JiscrcCion to con~1 program hut may 11artkipatc only if lhc prosccu11on
closely supervise defi:n:ilc. These courts h:l\'e enlmnced .;raff levels, dd'cndant will be proc.:ss.:d through normal 1.:rimin;1I
inclucling aduitional social workers. highly trained proc.:cdings.
eourl managers, and ai:i:ess to expcnenccc.J treatment
professionals anti probation officers. Crita:s of probli.:m- Jurisdiction
solving courls say it would be helter Ill u.:vote such
1esources to all c~isting courts than to i:1·catl! "boutique SB J940 allows cvunlics lo create \'cti:rans mental
courts'" for ccrt.iin groups . Some victim protccuon h.:alth courts to hc;1r all fclonic.; and misckml!anors.
groups believe that these courcs may lake altention although few granl such wide jurisd1~·1wn . 11.uris
•1w;1y from protecting. \·ktims. Incarceration prutccti; County"s vcti:r;ms ..:ourt prngrJm. lhc lirsl in Tc·rn~.
!-ucicty from furl her hann. aml diversion progr.ims 1s .1dmimstl!1cd by a .:rimmal dii-1m:1 -.:ourt !"he
mi~ht rc.:lcnsc dangerous indivilluals back inlo society. jurisdiction of th.: veterans court includes both folonies
May 17, 2010 page 11
an(l 1111stkmeanors .md cnn mcludl! violent ofli:nsco;, .'\t the frdctill kvcl. in spring. 2009. bills were
although noc scxuill offenses or most 3(g) aggrav,11cJ 1n1rnduccfollow the models for dmg comts, in whu.:h :1 county Debate on veterans courts in Texas
that plans lo allow holh !\:Ionics and misdemeanors
lo be heard places the prnyram m " Jistnct court '' ilh Supporh.•rs of \'ercnin~ courts in Texas argue lhat
gcner.il or criminal jurisdiction. Ir a county plans 10 crc.lling veterans mental hcallh courts allmvs lhCSl'
allow only misdemeanors, it may alsu pl:1cc the program courts 10 develop c:q1cr1isc in mcn1al health illlcl talus but l!> Jctcm1incJ on u case-by cao;c has1c;
solving court c;111 provide. No veteran is automatically orlcrs say veterans mental health courts arc
needed becausl" velcrans make up a s1gmflc:m1 portion
SB 19.tO allows velcrans mental health courts lo of county jail rorulations in Te.~ms. Acc:ording 10 a 2007
collect a !Cc of up to S 1,000 from the Jc fondant as ~tuJy by the fcdaal Bureau of Justice Statistics. 10
wdl as additio11:1l 1Ccs to cover testing. cnu1lscling. percent of those mcarccr.itcd in slate prison-; :mJ jails in
and trc;umcnt c~pcnscs. The Ices 1m1r;1 be b:1sed on the United S1:1lcs arc veterans. Even if vctc1;111s c:ourts
the vclcr,111 's ability lo p;iy unJ may be used only for cannot treat :111 specific lo the veterans mental hciilth court. problems. they will open up space in cx1~1ing local
trcalmcnl program!' by transferring eligible \ ctcrnns
The crim111:1I juslke division of the Governor's 111 progrJms run by the VA. A maJor hcndit of
Ollicc offers seed grants lo hdp Tc: l11s1oric:.lly ha' I! had d11lkully in
gr;ints to Tan ;int County's vct.,;r;ms menial health court establishing problem-solving courts because ol lhc high
program :mSing, other ;1pplh:ations. ~O!>l of 11·c;1tmcn1.
page 12 Interim News
Opponl'nls of \'l'll•r:ms courts in Tl'x:is •my these The Amcncan Ch ii Libs:rtic'i Union h.1o; ... poki:n tlllt
courts arc not ncccs'i:iry hccau-;c ex isling courts c.in .1g.1inst the \ cte1·,rns court progrmns Ill ( olorado and
handk any special needs a \Ctcran might ha\C. Under Nevada. saying they gr•utt vch:rnn'i cerlnin cnmmnl
the U.S and stale constilutions. Tc~:is prosccutors defense rights that other t.lcfondants do not ha\c.
already have Wilk lliscrctiun 111 whether ;inJ how to Veterans courts th:it cover only combat veterans c:\.dutk
prosecute a crime. They consider ;i \'Ctcr.m 's prior both other veter.ms :iml non-vctcr;ms who h;I\ c -.1milar
scrvic~ and, where appmrriatc. use prt!-trial tf j\ cr'iion mcnt::tl illnc'iscs, they .-:ay. For cxainpk. a police nllkcr
aml other llrogrnms to get vctc1ans hack on their feet might al-.o sulli:r from work-rcl