For the reasons stated fully in my dissenting opinion on original submission, and for the additional reasons expressed here, I would grant MidTexas' Motion for Rehearing.
The conclusions reached by the majority in this case are directly contrary to the conclusions reached in three cases decided recently in Texas. These cases are Hubenak v. SanJacinto Gas Transmission Co., 2001 WL 1587822 (Tex.App.-Houston [1st Dist.] Dec.13, 2001, no pet. h.); Cusack Ranch Corp. v.MidTexas Pipeline Co., 2001 WL 15538360 (Tex.App.-Corpus Christi, Nov. 29, 2001, no pet. h.); and Hubenak v. San JacintoGas Transmission Co., 37 S.W.3d 133 (Tex.App.-Eastland 2001, pet. denied).1 Indeed, on the essential issue-whether the inclusion of property rights in addition to the property to be condemned in the condemnor's offer renders that offer ineffectual or not bona fide-the one case relied on by the condemnee and the majority here (although the cite has now been removed from the majority opinion) has now been overruled on rehearing with the opposite result prevailing. See Hubenak v. San Jacinto GasTransmission Co., 2001 WL 1587822. *Page 215
There is not one case that now supports the view taken by the majority in this case. If the majority view prevails here it will add confusion to the law of eminent domain and if followed generally, will thwart the legislative purposes to simplify eminent domain proceedings and to lessen the likelihood of unnecessary litigation and appeals.
I urge the majority not to contribute to the conflicts and to the hypertechnicality in the law of eminent domain by ruling contrary to the settled law set out in the well reasoned opinions in the cases cited here.
I respectfully dissent to the overruling of the motion for rehearing.