Untitled Texas Attorney General Opinion ( 1958 )

April 30, 1958
Honorable Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas
Opinion No. WW-422
Re: Payment of Special Com-
missioners in Condemna-
Dear Mr. Calvert tion Suits
We are in receipt of you,r letter of Apri.1 11, 1958, asking for an opinion on
payment for condemnation. commi,ssi,oners, said l,etter asking:
‘“Would a special commi,ssioner appointed under condemnation
proceedings for obtain,ing rights of way for the Highway Commis-
sion be all,owed $3.00 for each item in the ju,dgment requiring his
appraisement or wol;,ld he be allowed $3.00 a day for all the items
covered in the judgment? In other words, if a speciab commis-
sioner acts on several items in one judgment or a different judg-
ment in the same day, would he be allowed $3.00 for each i.tem, or
would he be 1::mited to $3.00 for one day’s service?
‘“In counties cor.+.airi.n g a population of more than five hun,dred thou-
sari,,, wo;lld the sppecl~al commissioner be li,mited to a s:n.gle fee
fixed by the Court r,ot less than $10.00, or would such commi,ssioner
be on a per d:,em basis wj.th a fee as fixed by the Court not less than
$10.00 p er day?”
These ques’.ions req,~iire a consf.ru,cti.on of Section 3 of Art:.cle 3266,
V.A.C.S., which reads as fol,lows:
Commissioners sha1.l receive for their servi,ces Three Dollars
($31, for each day they may be engaged in the performance of
their dc,,ti,es. except tha : in counties of over five hun,dred thou-
sari... (500.000) population, accordi,ng to the last preceding or any
future Federal Census, the County Judge shall set the fee of the
Commissioners at any amount he may deem reasonabl,e, not
less than Ten, Dollars ($l,O). Commissioners may withhold their
deci.sioc ur.trl the.17 fees are pai,d.”
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Hon. Robert S. Calvert, page 2 (WW-422)
There is a distinction between the special commi.ssioners referred to in the
Title 52, V.A.C.S. (Arts. 3264-3271 V.A.C.S.) and petit juiors for regular
civil cases. Their functions are not at al,1 similar and should not be confused.
When a condemning authority desires to exercise its power of eminent domain,
it files a “statement in writing” with the County Judge setti.ng forth certain
facts, Art. 3264(l) V.A.C.S. The Ju,dge is then required to appoint “three dis-
interested freeholders of said county as special commissioners to assess said
damages, giving preference to those that are agreed upon between the parties.”
Art. 3264(Z), V.A.C.S.
The commissioners are thereafter sworn in. Art. 3264(3), V.A.C.S., and they
then meet to set the time and place for the hearing. Art. 3264(4), and cause
notice to be issued. The notice after being served, is returnable to the com-
missioners, not the County Judge or the County Cl,erk. Art. 3264(5), V.A.C.S.
“When the service of notice has been perfected, the commissioners shall at
the time and place appointed or at any other time and place to which the hear-
ing may be adjourned, proceed to hear the parties.“’ Art. 3264(10), V.A.C.S.
“Commissioners shall have the power to compel. the attendance of witnesses
and production of testimony, admini,ster oaths, and punish for contempt as
fully and in the same manner as is provided by law for judges of county courts.”
Art. 3264(11), V.A.C.S. (Emphasis added)
A distinction between the passive role of petit jurors - who are called for a
week’s “service,” and who may be compelled to serve, and who may or may
not serve on a jury or may serve on several juries in one day, - and the ac-
tive, initiative duties of the special commissioners, who cannot be compelled
to serve as such, has already become apparent.
The special commissioners, contrary to the limitati.ons imposed upon peti.t
jurors, may view the property being condemned. “‘It follows, we think, that
the commissioners, in making a personal inspection of said property, violated
no provision of the Revised Statutes of Texas, governing condemnation pro-
ceedings in that they followed ordinary business practices in determining the
value of the land. ” Dueitt v. Harris County, Civ. App., 1952, 249 S.W. 2d 636
(Wr. Ref.). Nor, as is the practice with petit juries, is an unan,imity as to the
amount of the award required. Dueitt v. Harris County, supra.
Art. 3266, V.A.C.S. (which article in Section 3 thereof provi,des for payment
of Commissioners) containing general provisions concerning condemnation
suits, constantly refers to “the case” in the singular, for example:
Hon. Robert S. Calvert, page 3 (WW-422)
“1. When the county judge is disqualified to act in Ite za:e. . .
and such special judge. . . shall proceed with the case. . .”
“6. If either party be dissatisfied with the decision . . . and
the cause shall be tried as in other civil causes in the county
court.
““7. If no objections to the decision are filed. . .‘I Indeed,
Title 52, V.A.C.S., is merely the outli,ne of procedure for fil-
i.ng and following through to judgment of one case, not a series
of cases, or a “day’s worth” of cases.
The condemnation action, strictly speaking, is not an action in the county
court until an objection is filed to the Commissioners’ Award. City of El
Paso v. Ward (Civ. App., 1948, 213 S.W. 2d 726). (NWH) It is a special
proceeding under the aegis of the county judge rather than the county court.
By appointing the special commissioners, the judge has, in effect, delegated
certain independent fact finding duties to them. If no objections to their
award are filed within ten days, “the county judge shall cause said decision
to be recorded in the minutes of the County Court, and shall make the same
the judgment of the Court and issue the necessary process to enforce the
same.” Art. 3266(7), V.A.C.S.
The commissioners must file their award with the Judge, not the Clerk.
Art. 3266(6). V.A.C.S.; Wallace v. Van Zandt County, Civ. App., 1954, 264
S.W. 2d 202 (NYT~): Fitzgerald v, City of Dallas (Civ. App., 1930, 34 S.W.Zd
682 (WT. Ref.). i :~d -.‘upon fili,ng of the objections to the award, the latter is
set :>side and the amount thereof may not even be brought before th+> jury.
Lower Colorado River Authority v. Bu,rton (Civ. App., 1943, l?O S.W. 2d 783
(NWH); Nowlin v. Denton County (Civ. App., 1947, 200 S.W. 2d 865 (NWH)).
The preceding discussion has perhaps been somewhat detailed, but it was
felt necessary in order to point out the un:.que status of the special commis-
sioners in condemnation p+oceedings, and the difference of their status from
that of petit jurors and from Deputy Sheriffs attending prisoners in habeas
corpus under Art. 1029, C.C.P., as suggested in your letter.
It can be seen that each time commissioners are appointed a separate entity
or “board” is created, i.e., they are appointed to assess damages for one
particular case. Frequently, in practice, where a condemning authority
files several cases with the same judge at the same time, a different set of
commi,ssioners will be appointed to each case or the composition of the Board
of Special Commissioners may differ. This would cl,early indicate that each
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Hon. Robert S. Calvert, page 4 (WW-422)
entity would be entitled to statutory compensation. If, coincidentally, the
same three men are appointed as commissioners on each case, we do not
see how the result should differ. Likewise, considering the administrative
as well as judicial nature of the special commissioners’ duties and powers,
and considering the reference in Title 52 to one particular case, it is our
opinion that each special commissioner is entitled to be paid his statutory
fee for each case he works on, regardless of how long he spends. (The
Statutes do not provide for any length of working day, nor do they provide
for a pro rata payment of the rather meager $3.00 for fractional days.)
For example, if in one day a special commissioner signs citations for six
cases, he is entitled, under Art. 3266(3) to $3.00 for each case attended to,
or $18.00 for that day’s work. If on a subsequent day he inspects two pieces
of property to be condemned, he would be entitled, under said article, to
$6.00 for that day’s work. If he goes back to inspect the same property an-
other day, he would likewise be entitled to the same compensation. If on
another day he, with his fellow commissioners, hears eight cases argued,
he would be entitled to $24.00 for that day’s work under said article. Abuse
of this by the commissioners is amply guarded against by the ultimate con-
trol the County Judge retains over the case in regard to writing the judgment
and assessing costs.
Article 3266(3), V.A.C.S., provides that the commissioners may withhold
their decision until their fees are paid. This statute, in our opinion, con-
stitutes further proof that it is contemplated that the commissioners shall
be paid by the case. If several cases are heard the first day, and they
should dispose of the first case, they would make their award, and in com-
pliance with the above statute would be entitled to withhold the award until
their fees were paid. It would be absurd, we think, to say that they should--
once they have earned $3.00 and collected same before letting the award
out of their possession--charge no fees for the remainder of the cases, or
at the end of the day, have the various condemners return for their refunds
or an equalization of accounts.
The same reasoning applies to the special provisions for higher pay to com-
missioners in counties of 500,000 or more. The only difference would be
that their daily rate would be higher.
In Paragraph 1 of your letter you referred to “each item in the judgment
requiring this appraisement.” We presume by “judgment” you meant
“award,” for the commissioners cannot render a “judgment,” only the
County Judge can do that. If in referring to “each item in the judgment”’
you contemplated a case where several tracts were condemned in one case,
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Hon. Robert S. Calvert, page 5 (WW-422)
tlie commissioners would be entitled only to the same fee as if only one
tract were condemned. For example, if the State condemned Lots 1, 2 and
3 belonging to John Doe in one suit, each Commissioner would be entitled
to the same fee as if only one lot were embraced within the statement
filed with the Judge. However, i,f three different cases were filed, and the
special commissioners worked on the three cases together, their fee
would be $9.00 for each day.
We expressly overrule Attorney General’s Opinion No. O-1604 (1939).
SUMMARY
Under Art. 3266(3), V.A.C.S., special commissioners
in condemnation are to be paid by the case. rather than
by the day, regardless of the number ofses worked
on. Attorney General’s Opinion No. O-1604 (1939) is
expressly overruled.
Very truly yours,
WILL WILSON
Attorney General
APPROVED:
OPINION COMMITTEE
George P. Blackburn, Chairman
Tom F. McFarling
Linward Shivers
Wallace Finfrock
REVIEWED FOR THE ATTORNEY GENERAL
BY:
W. V. Geppert