Pappas Restaurants, Inc. and Pappas Bar-B-Q, Inc. v. State of Texas ( 2015 )

ACCEPTED
01-15-00001-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/18/2015 4:20:38 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00001-CV
IN THE FIRST COURT OF APPEALS AT HOUSTONFILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
5/18/2015 4:20:38 PM
PAPPAS RESTAURANTS, INC., and
CHRISTOPHER A. PRINE
PAPPAS BAR-B-Q, Inc., Clerk
Appellants,
V.
THE STATE OF TEXAS,
Appellee
On Appeal from the County Court at Law Number 4 of Harris County, Texas;
Cause No. 1043062; The Honorable Roberta Lloyd, Presiding
BRIEF OF APPELLEE STATE OF TEXAS
KEN PAXTON CRISTINA VUDHIWAT
ATTORNEY GENERAL OF TEXAS State Bar No. 24056479
Assistant Attorney General
CHARLES E. ROY P. O. Box 12548
FIRST ASSISTANT ATTORNEY Austin, Texas 78711-2548
GENERAL Telephone:(512) 463-2004
Facsimile:(512) 472-3855
JAMES E. DAVIS Email:
DEPUTY ATTORNEY GENERAL Cristina.Vudhiwat@texasattorney
FOR CIVIL LITIGATION general.gov
RANDALL K. HILL
ASSISTANT ATTORNEY GENERAL
CHIEF, TRANSPORTATION
DIVISION
ATTORNEYS FOR APPELLEE
THE STATE OF TEXAS
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES...................................................................................... v
RECORD REFERENCES ..................................................................................... viii
STATEMENT OF THE CASE .................................................................................ix
ISSUES PRESENTED............................................................................................... x
I. Whether the Property Code or Rules of Civil Procedure control in
eminent domain proceedings.
II. Whether all requirements in the Property Code were followed.
II. Whether the court correctly entered a Judgment in Absence of
Objection and denied a Motion for New Trial where Defendants failed
to file timely objections.
STATEMENT OF FACTS ........................................................................................ 1
A. Administrative proceedings................................................................... 1
B. Defendants’ filings ................................................................................ 3
C. Judgment ............................................................................................... 4
D. Motion for New Trial ............................................................................ 4
SUMMARY OF ARGUMENT ................................................................................. 7
ARGUMENT ............................................................................................................. 8
A. The State does not contest the Court of Appeals’ jurisdiction. ....................... 8
B. All Property Code administrative procedures were followed... ...................... 8
ii
1. The Property Code trumps the Rules of Civil
Procedure in specific statutes. ............................................................... 8
2. All Property Code notice requirements were met. .............................. 12
a. The requirements of Texas Property
Code § 21.016 were met. .......................................................... 12
b. Defendant’s withdrawal of the award precludes a
right to take challenge. .............................................................. 13
c. The requirements of Texas Property
Code § 21.049 were met. .......................................................... 15
d. The requirements of Texas Property
Code § 21.061 were met. ......................................................... 18
C. The trial court correctly entered a Judgment In Absence of Objection
because Defendants failed to file timely objections. ..................................... 19
1. Defendant’s Notice of Appearance of Substitute Counsel
is not objections. .................................................................................. 19
2. Defendant’s late objections do not “relate back to” or “amend” its
previous Notice of Appearance of Substitute Counsel. ...................... 24
3. Tolling does not apply. ........................................................................ 24
PRAYER .................................................................................................................. 26
CERTIFICATE OF COMPLIANCE ....................................................................... 28
CERTIFICATE OF SERVICE ................................................................................ 29
APPENDIX
Texas Gov’t Code § 311.026 ............................................................... APPENDIX A
iii
Tex. Prop. Code § 21.011 .................................................................... APPENDIX B
Tex. Prop. Code § 21.016 .................................................................... APPENDIX C
Tex. Prop. Code § 21.018 .................................................................... APPENDIX D
Tex. Prop. Code § 21.0195 .................................................................. APPENDIX E
Tex. Prop. Code § 21.048 .....................................................................APPENDIX F
Tex. Prop. Code § 21.049 .................................................................... APPENDIX G
Tex. Prop. Code § 21.061 .................................................................... APPENDIX H
Tex. R. Civ. P. 8 .................................................................................... APPENDIX I
Tex. R. Civ. P. 21 .................................................................................. APPENDIX J
Tex. R. Civ. P. 121 ............................................................................... APPENDIX K
Tex. Tax Code § 34.04 ......................................................................... APPENDIX L
iv
INDEX OF AUTHORITIES
Cases Page
Amason v. Natural Gas Pipeline Co.,
682 S.W.2d 240 (Tex. 1984) ....................................................................... 8, 9
American Tel. & Tel. Co. v. Peurifoy,
242 S.W.2d 233 (Tex. Civ. App.—Dallas 1951, no writ) ............................. 20
Balios v. Tex. Dep’t of Pub. Safety,
733 S.W.2d 308 (Tex. App.—Amarillo 1987, writ ref’d)......................... 9, 10
Bill Miller Bar-B-Q Enters., Ltd., v. VIA Metro. Transit Auth.,
No. 04-13-00855-CV, 2014 WL 5352344
(Tex. App.—San Antonio Oct. 22, 2014, no pet.) (mem. op.) .................... 11
City of Hous. v. Huber,
311 S.W.2d 488 (Tex. Civ. App.—Houston
[14th Dist.] 1958, no writ) ............................................................................. 21
City of Lorena v. BMPT Holdings, L.P.,
409 S.W.3d 634 (Tex. 2013) ...................................................................16, 17
City of San Antonio v. Grandjean,
41 S.W. 477 (Tex. 1897) ............................................................................... 14
Eller Media Co. v. State,
51 S.W.3d 783 (Tex. App.—Fort Worth 2001, no pet.) .........................22, 23
Fitzgerald v. City of Dall.,
34 S.W.2d 682 (Tex. Civ. App.—Dallas 1930, writ ref’d) ........................... 21
Heritage on San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality,
393 S.W.3d 417 (Tex. App.—Austin 2012, pet. denied) .............................. 17
Hopkins v. State, No. 03-07-00253-CV,
2009 WL 3806160 (Tex. App.—Austin
Nov. 13, 2009, no pet.) (mem. op.) ............................................................... 24
v
John v. State,
826 S.W.2d 138 (Tex. 1992) ..................................................................... 9, 25
Luby v. City of Dall.,
396 S.W.2d 192 (Tex. Civ. App.—Dallas 1965, writ ref’d n.r.e.) ..........14, 15
Morin v. Boecker,
122 S.W.3d 911 (Tex. App.—Corpus Christi 2003, no pet.) ..................12, 25
Oncor Elec. Delivery Co., LLC v. Brockriede, No. 02-13-00071-CV,
2013 WL 6564276 (Tex. App.—Fort Worth
Dec. 12, 2013, no pet.) (mem. op.) ........................................10, 11, 12, 16, 18
Oncor Elec. Delivery Co. LLC v. Schunke, No. 04-13-00067-CV,
2013 WL 6672494 (Tex. App.—San Antonio
Dec. 18, 2013, pet. dism’d by agr.) (mem. op.) ............................................ 25
Pearson v. State,
315 S.W.2d 935 (Tex. 1958) ....................................................................... 8, 9
Religious of the Sacred Heart of Tex. v. City of Hous.,
836 S.W.2d 606 (Tex. 1984) ......................................................................... 14
State v. Bristol Hotel Asset Co.,
65 S.W.3d 638 (Tex. 2001) .................................................................9, 13, 25
State v. Garland,
936 S.W.2d 95 (Tex. App.—Austin 1998, pet. denied) .................................. 8
Sinclair v. City of Center,
107 S.W.2d 921 (Tex. Civ. App.—Beaumont 1937, writ ref’d) ................... 24
State v. Gracia,
56 S.W.3d 196 (Tex. App.—Fort Worth 2001, no pet.) .............................. 22
Spradlin v. Jim Walter Homes, Inc.,
34 S.W.3d 578 (Tex. 2000) ........................................................................... 17
vi
State v. Jackson,
388 S.W.2d 924 (Tex. 1965) ......................................................................... 14
Tejas Gas Corp. v. Herrin,
716 S.W.2d 45 (Tex. 1986) ........................................................................... 14
Thompson v. Martin Cnty.,
247 S.W.2d 585 (Tex. Civ. App.—El Paso 1952, writ dism’d) .................... 21
Constitutional Provisions, Statutes, and Rules
Tex. Gov’t Code § 311.026 ........................................................................................ 9
Tex. Prop. Code § 21.011 .......................................................................................... 9
Tex. Prop. Code § 21.016 ........................................................................7, 12, 13, 17
Tex. Prop. Code § 21.018 ..................................................................7, 19, 20, 22, 24
Tex. Prop. Code § 21.0195 ................................................................................22, 23
Tex. Prop. Code § 21.048 ........................................................................................ 15
Tex. Prop. Code § 21.049 ......................................... 7, 10, 11, 12, 15, 16, 17, 18, 25
Tex. Prop. Code § 21.061 .................................................................................... 7, 18
Tex. R. App. P. 38.1................................................................................................... 1
Tex. R. Civ. P. 8 ....................................................................................................... 12
Tex. R. Civ. P. 21 ..................................................................................................... 18
Tex. R. Civ. P. 121 ................................................................................................... 11
Tex. Tax Code § 34.04 .......................................................................................10, 18
vii
RECORD REFERENCES
Appellees use the following citation formats when referencing the record:
Source Citation Format
Clerk’s Record CR [page]
Supplemental Clerk’s Record SCR [page]
Brief of Appellants Pappas Br. [page]
Appendix App-[tab]:[page/paragraph]
viii
STATEMENT OF THE CASE
Nature of the Case: This is a statutory condemnation case brought by Plaintiff
the State of Texas regarding property in Houston, Texas.
Trial Court: The Honorable Roberta Lloyd Presiding Judge, County
Civil Court at Law No. 4, Harris County, Texas.
Trial Court Disposition: The trial court entered a Judgment of Court in Absence of
Objection in the amount of $58,936. CR 106–115.
ix
ISSUES PRESENTED
I. Whether the Property Code or Rules of Civil Procedure control in eminent
domain proceedings.
II. Whether all requirements in the Property Code were followed.
III. Whether the court correctly entered a Judgment in Absence of Objection and
denied a Motion For New Trial where Defendants failed to file timely
objections.
x
STATEMENT OF FACTS1
A. Administrative proceedings
On January 23, 2014, the State filed a petition for condemnation against
Pappas Restaurants, Inc. (Pappas Restaurants), Pappas Bar-B-Q, Inc. (Pappas Bar-
B-Q), and Northwest Crossing Association (Northwest). CR 6–15. The State
sought to acquire 0.0430 acres out of a 1.737-acre tract for the expansion and
improvement of US Highway 290. CR 7, 10. Special commissioners were
appointed on January 30, 2014, CR 16, and on May 2, 2014, the special
commissioners set a hearing for July 22, 2014, to assess damages, CR 22. The
special commissioners issued notices of hearing in accordance with Texas Property
Code § 21.016 to all parties, which notices were timely served. The notices and
returns of service indicating that all defendants were served in person on May 9,
2014, were filed with the court on May 27, 2015. CR 42–47. Specifically, notice
was served on Pappas Restaurants and Pappas Bar-B-Q through their registered
agent for service, Alysia Perry, at 13939 Northwest Freeway, Houston, Texas 77040.
The special commissioners’ hearing was held Tuesday, July 22, 2014.
CR 22. None of the Defendants attended2. The award asserted in three separate
1
Texas Rule of Appellate Procedure 38.1(g) provides that briefs must state the facts “without
argument.” Contrary to Rule 38.1, Appellants make argument throughout their Statement of
Facts. See Pappas Br. 1–11.
2
Defendants are not required to attend the special commissioners’ hearing and many choose not
to attend.
1
paragraphs that Defendants had been “duly served with Notice of Hearing,” CR 50,
that Defendants “were duly served with notice and notified in the manner provided
by law of such hearing and the time and place thereof,” CR 52, and that all parties
had been duly served with Notice of Hearing, CR 52. After these affirmative
findings, the special commissioners entered an award equaling the total
compensation testified to by the State’s appraisal expert: $58,936. CR 52. A copy
of the award was filed with the court on the same day, SCR 4–16; however, due to
a defect in the copy of the award,3 it was refiled on Friday, July 25, 2014. CR 50–
62. Notices were mailed in accordance with Texas Property Code § 21.049 for both
filings. The clerk mailed notices for the filing on Tuesday, July 22, 2014, on Friday,
July 25, 2014. CR 69–76. The clerk mailed notices for the filing on Friday, July
25, 2014, on Monday, July 28, 2014. CR 65–68, 77–84. In both cases, the clerk’s
notices were mailed by certified mail, return receipt requested, to Alysia Perry,
registered agent for Pappas Restaurants and Pappas Bar-B-Q, at 13939 Northwest
Freeway, Houston, TX 77040. Id. The return receipts contained in the record
reflect that notices were received by Defendants on July 28 and July 29, 2014. CR
75–80. All of the notices stated that the parties had “until the first Monday
3
Special commissioners routinely sign multiple copies of the award. The copy of the award
originally filed lacked the signature of one of the three special commissioners. SCR 4–16. A
copy of the award with all three special commissioners’ signatures was refiled in its place. CR
50–62.
2
following 20 days in which to file objections to this award and make an appeal for a
Jury Trial.” Id. Defendants’ deadline with regard to either filing date remained
the same: Monday August 18, 2014.
B. Defendants’ filings
On February 14, 2014, attorneys Anna Sabayrac Marchand and Frank
Markantonis filed a Notice of Appearance on behalf of Pappas Restaurants and
Pappas Bar-B-Q, listing the attorneys’ address of record as 13939 Northwest
Freeway, Suite 100, Houston, TX 77040. CR 19–20. On Saturday, July 26, 2014,
four days after the special commissioners executed their award and after the award
had been filed and re-filed with the court, H. Dixon Montague and Don C. Griffin
filed a Notice of Appearance of Substitute Counsel on behalf of Pappas Restaurants.
CR 63–64. Their notice does not speak to or mention the award. It notes that they
are serving the parties with notice of this filing two days later, on Monday July 28,
2014. Id.
No further filings were made by any Defendant until September 9, 2014, when
Pappas Restaurants filed a Motion to Withdraw Deposit. CR 89–91. Pappas Bar-
B-Q was not served with the motion, CR 91, nor were they served with notice that
an oral hearing on this motion was set for October 1, 2014, at nine o’clock a.m.
CR 87–88. The Order Withdrawing Deposit was signed by the court and filed
October 1, 2014. CR 95–97. The full amount of the award plus interest was paid
3
to “Pappas Restaurants, Inc., and its attorneys, Vinson & Elkins, LLP”. CR 95,
104–05. On September 26, 2014, after the August 18 deadline, Defendant Pappas
Restaurants filed Objections and Exceptions of Defendant, Pappas Restaurants, Inc.,
to the Award of the Special Commissioners. CR 92–94. Pappas Restaurants failed
to serve Pappas Bar-B-Q with notice as required by Texas Property Code
§ 21.018(b). CR 94.
C. Judgment
As Defendants failed to file timely objections to the award, Texas Property
Code § 21.061 instructs the judge of the court to adopt the commissioners’ findings
as a judgment. As is the practice, counsel for the condemnor, in this case the State,
facilitated this by electronically submitting a proposed Judgment of Court in
Absence of Objection on Monday, October 27, 2014. CR 106–115. The court
signed the judgment on October 29, 2014. CR 108.
D. Motion for New Trial
On Thursday, November 6, 2014, Pappas Restaurants filed a Motion for New
Trial alleging that objections were timely filed and that, in the alternative, the
deadline for filing objections was tolled due to failure to comply with Property Code
Section 21.049. CR 130–152. An oral hearing on the motion was set for 3
business days later, Tuesday, November 11, 2014, at nine o’clock a.m. SCR 18–
19. On Monday, November 10, 2014, Pappas Bar-B-Q filed a Motion for New
4
Trial, adopting the arguments set out in Pappas Restaurants’ motion. CR 249–251.
As Pappas Restaurants failed to comply with Harris County Civil Courts at Law
Local Rule 3.3.2, which indicates that motions shall state a date of submission at
least 10 days from filing, except on leave of the court, the court allowed the State to
fax its written response to the court after the oral hearing by that Friday, November
14, 2014. The State timely faxed its response, CR 393–440, and Defendants filed
their rebuttal November 20, 2014. CR 322–392, 393–440. On November 21,
2014, the court denied the Motion for New Trial, CR 441–442, and Pappas
Restaurants and Pappas Bar-B-Q perfected this appeal. CR 443–445.
For convenience, a summary of the pertinent dates and filings described has
been included here:
1/23/14 Petition for Condemnation filed
2/14/14 Notice of Appearance for Pappas Restaurants and Pappas Bar-B-Q
filed by Anna Sabayrac Marchand and Frank Markantonis
7/22/14 Special Commissioners’ Hearing (“SCH”)
7/22/14 1st filing of SCH Award – (Tuesday)
7/25/14 2nd filing of SCH Award– (Friday)
7/25/14 Harris County Clerk mails notice of first filing of Special
Commissioners’ Award
7/26/14 Notice of Appearance of Substitute Counsel for Pappas
Restaurants filed by H. Dixon Montague & Don Griffin (Saturday)
7/28/14 Harris County Clerk mails notice of second filing of Special
Commissioners’ Award (Monday)
5
8/18/14 Deadline to file timely objections
9/9/14 Defendant Pappas Restaurants files Motion to Withdraw Award,
sets hearing on motion for October 1, 2014
9/26/14 Objection and Exceptions filed by Pappas Restaurants
10/1/14 Hearing on Defendant Pappas Restaurants’ Motion to Withdraw
Award – Order Granted
10/27/14 Judgment in Absence of Objection filed
10/29/14 Judgment in Absence of Objection signed
11/6/14 Motion for New Trial filed by Pappas Restaurants
11/10/14 Motion for New Trial filed by Pappas Bar-B-Q – efiled by Alysia
Perry
11/11/14 Hearing on Motion for New Trial
11/21/14 Court denies Motion for New Trial
6
SUMMARY OF THE ARGUMENT
Condemnation in Texas is governed by procedures set out in the Property
Code. As special, specific statutes, these procedures control over the general Rules
of Civil Procedure. The State followed these statutes. It met the requirements of
Section 21.016 in sending out notice of the special commissioners’ hearing and
filing the notices and returns of service prior to the hearing and making them
available at the hearing. Even if there had been any irregularities in compliance,
Defendants would be precluded from challenging the State’s right to take because
they withdrew the award. The State also followed the requirements of
Section 21.049 in sending out notice of the special commissioners’ award to the
parties. The State even provided notice where Section 21.061 requires none
regarding its submission of a proposed Judgment in Absence of Objection.
Objections in this case were not filed until September 26, 2014, over a month
past the deadline of August 18, 2014. Pappas Restaurants’ Notice of Appearance
of Substitute Counsel does not meet the requirements set out in Section 21.018 for
objections and Pappas Restaurants cannot back date their late objections to this
previous unrelated filing. Additionally, the objection deadline is not tolled where
the court clerk followed Section 21.049 and sent out proper notice.
For these reasons, the trial court properly entered a Judgment in Absence of
Objection and denied Defendants’ Motion for New Trial.
7
ARGUMENT
The trial court correctly entered a Judgment in Absence of Objection where
requirements of the Texas Property Code were followed and no objections
were filed within the statutory time period.
A. The State does not contest the Court of Appeals’ jurisdiction.
The State does not contest that the Court of Appeals has jurisdiction to
determine whether or not timely objections were filed converting this case into a
judicial proceeding as stated in State v. Garland, 936 S.W.2d 95, 98 (Tex. App.—
Austin 1998, pet. denied); however, it is the State’s position that once the Court
correctly determines that no timely objections were filed, the Court must also find
that the Court has no further jurisdiction over the appeal and that the trial court
correctly entered the Judgment of Court in Absence of Objection in accordance with
its ministerial duty. See Pearson v. State, 315 S.W.2d 935, 937–39 (Tex. 1958).
B. All Property Code administrative procedures were followed.
1. The Property Code trumps the Rules of Civil Procedure in specific
statutes.
Texas has a two part land condemnation scheme – an administrative phase
and a separate judicial phase that begins only upon the filing of timely objections.
See Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984); Pearson
v. State, 315 S.W.2d 935, 936-937 (Tex. 1958). Eminent domain proceedings are
special in nature and the administrative phase is governed by Chapter 21 of the Texas
8
Property Code. See State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 640 (Tex.
2001); Pearson, 315 S.W.2d at 936. Chapter 21, Subchapter B is entitled
“Procedure” and its first rule is Texas Property Code § 21.011: “Exercise of the
eminent domain authority in all cases is governed by Sections 21.012 through 21.016
of this code.” Moreover, Section 21.018 makes clear when the Rules of Civil
Procedure take over: “If a party files an objection to the findings of the special
commissioners, the court shall cite the adverse party and try the case in the same
manner as other civil cases.” The legislature clearly intended the specific eminent
domain rules to be followed until timely objections are filed and intended those
procedures listed in the Property Code to displace the Rules of Civil Procedure.
This interpretation finds support in Texas Government Code § 311.026, which
holds that where there is an irreconcilable conflict between a general and special
provision, the special or local provision prevails. Cases such as State v. Bristol
Hotel Asset Co., 65 S.W.3d 638 (Tex. 2001) and Amason v. Natural Gas Pipeline
Co., 682 S.W.2d 240, 242 (Tex. 1984), make clear that proceedings to condemn land
are special in character and follow Chapter 21 of the Property Code. The Supreme
Court spoke to Section 21.049 in John v. State, 826 S.W.2d 138 (Tex. 1992), stating
that “as the language is clear and unambiguous, it should be enforced as written,
giving its terms their usual and ordinary meaning, and without resorting to the rules
of construction.” Id. at 140 (citing Balios v. Texas Dep’t of Pub. Safety, 733 S.W.2d
9
308, 310 (Tex. App.—Amarillo 1987, writ ref’d)).
Oncor Elec. Delivery Co., LLC v. Brockriede, No. 02-13-00071-CV, 2013
WL 6564276, (Tex. App.—Fort Worth Dec. 12, 2013, no pet.) (mem. op.) is directly
on point. The case turned on the meaning of “or,” in Section 21.049. Did the
statute’s language that notice be mailed “to the parties in the proceeding, or to their
attorneys of record” mean that notice to a party, even where that party was
represented by counsel, satisfied the notice requirement? Id. at *2. In Brockriede,
the trial court clerk was aware a party was represented by counsel, but failed to send
notice to the attorney and instead sent notice to the party personally. Id. at *1. The
notices listed the landowners and one lessee by name, but “did not list their counsel
of record.” Id. at *1. Condemnor’s counsel, which had supplied the notices,
contended that the omission was inadvertent error. Id. at *1. The notice’s
certificate of service stated that they were sent to counsel; however, the attorney
contended he never received them. Id. at *1. The court rejected arguments that
the Rules of Civil Procedure applied and found that, if the legislature had intended
for attorneys to be served instead of the party they represented, the legislature could
have included those words in the statute, as they had in Texas Tax Code § 34.04(b).
Id. at *3. Instead, the court found, “based on the plain language of Section 21.049,
that a trial court clerk complies with the notice provision if it properly mails notice
to a party only even if the trial court clerk knows that the party is represented by
10
counsel in the proceeding.” Id.
In Bill Miller Bar-B-Q Enterprises, Ltd., v. VIA Metropolitan Transit
Authority, No. 04-13-00855-CV, 2014 WL 5352344 (Tex. App.—San Antonio Oct.
22, 2014, no pet.) (mem. op.), the clerk sent notice of the award to the party’s
attorney’s address of record, but it was later discovered this address was incorrect.
Appellants argued this meant the clerk failed to comply with Section 21.049. In
finding that no timely objections were filed, the court noted in part that the clerk had
complied with the plain language of Section 21.049 by sending notice to the party’s
attorney of record at their address of record Id. at *1–*2.
Defendants attempt to distinguish Brockriede by arguing that counsel had no
appearance of counsel on file. While there may have been no actual “Notice of
Appearance” filed, the opinion itself calls the attorney “counsel of record,” notes
that the trial court clerk was aware the party was represented, and that the
condemnor’s attorney stated they omitted counsel’s name inadvertently. Id. at *1.
The name of party’s attorney was included in the certificate of service. Id. A
review of the Appellant’s brief to the court, filed April 19, 2013, and which is
available on Westlaw, reveals that attorney John Lane filed an answer for Defendant
Greg Stone on May 22, 2012. Lane also appeared at the June 12, 2012, special
commissioners hearing. Under Texas Rule of Civil Procedure 121, an answer is an
appearance. Again, the court found that the clerk complied with the plain language
11
of Section 21.049 by sending notice to the party and not the attorney. Id. at *3.
While Defendant points to the case of Morin v. Boecker, 122 S.W.3d 911
(Tex. App.—Corpus Christi 2003, no pet.), that case is a forcible entry and detainer
case subject to the notice requirements of Texas Rules of Civil Procedure 8 and 21a.
The case is inapplicable to an analysis of Texas Property Code § 21.049.
Again, the State is not arguing that the Rules of Civil Procedure never apply,
only that where steps are set out by specific rules in the Property Code, the specific
rules govern. For those procedures plainly detailed in the Property Code, the
Property Code prevails. For ancillary items not dictated by the Property Code, the
Rules of Civil Procedure apply.
2. All Property Code notice requirements were met.
a. The requirements of Texas Property Code § 21.016 were met.
All notices were served in accordance with the Property Code. Specifically,
notices of the hearing were served in accordance with Texas Property Code
§ 21.016. Per § 21.016(d)(1), notice is to be served on either the party, the party’s
agent, or the party’s attorney. The notices were served on Pappas Restaurants and
Pappas Bar-B-Q’s registered agent: Alysia Perry, legal secretary to Ms. Marchand
and Mr. Markantonis. CR 42–47; 435. Section 21.016(c) requires the original
notice and a return of service to be returned to the Special Commissioners on or
before the day of the hearing. As such, the notices and returns of service were filed
12
with the Court more than one month before the hearing, CR 42–47, and originals
were also brought to the hearing for the special commissioners’ review. The special
commissioners affirmed in the award that all parties received proper notice of the
hearing. CR 50, 52.
This situation is analogous to that in Bristol, in which the Supreme Court held
that while statements in an award alone were insufficient to prove compliance with
Section 21.016’s notice requirements, a return of service was “independent proof of
proper service.” Id. at 642–643. The Court rejected the argument service could
only be proved through testimony, noting that Section 21.016 clearly did not
anticipate live testimony and that such a requirement would allow condemnees to
“too easily challenge the commissioners’ jurisdiction every time a person outside
the court’s subpoena power serves notice of a commissioners’ hearing.” Id. at 643.
Here, as in Bristol, the fact that the returns of service were on file with the court
before the date of the special commissioners hearing, together with the affirmations
in the award that proper service was made on the parties, establish a prima facie case
that the returns were returned to the special commissioners for their review.
b. Defendant’s withdrawal of the award precludes a right to
take challenge.
Even if there had been any irregularities regarding compliance with
Section 21.016, Texas law firmly establishes that by withdrawing the award, a
13
landowner consents to the acquisition and cannot thereafter contend that the taking
was unlawful. See Tejas Gas Corp. v. Herrin, 716 S.W.2d 45, 46 (Tex. 1986);
Religious of the Sacred Heart of Tex. v. City of Hous., 836 S.W.2d 606, 613 (Tex.
1984); State v. Jackson, 388 S.W.2d 924, 295 (Tex. 1965); City of San Antonio v.
Grandjean, 41 S.W. 477, 479 (Tex. 1897); Luby v. City of Dall., 396 S.W.2d 192,
195 (Tex. Civ. App—Dallas 1965, writ ref’d n.r.e). In Grandjean, the Supreme
Court stated that “in cases in which there has been an attempt to condemn, but the
proceedings are invalid for want of a compliance with the statute which authorized
the condemnation, it is held that the owner, by accepting the condemnation assessed,
makes the transaction effectual.” Id. at 479. Similarly, in Jackson the Supreme
Court held that “by accepting the award of the Special Commissioners the
respondent is precluded from contesting the State’s right to take the property.” Id.
at 925. By withdrawing the award, landowners consent to the acquisition and
“cannot thereafter contend that the taking was unlawful.” Id. According to
Supreme Court in Herrin, “this statement is an absolute rule of law which does not
yield to surrounding circumstances.” Id. at 46. Even in cases such as Luby, where
the landowners argued numerous irregularities such as insufficient description of the
land, failure to properly state the names of interest holders, and failure to state the
purpose for which the property was to be acquired, the court held that, by
withdrawing the award, the landowners “must be held as a matter of law to have
14
impliedly consented to the taking of their property. Only the question of adequate
compensation remained to be determined.” Id. at 195.
In this case, the Order Withdrawing Deposit was granted on October 1, 2014.
CR 95–97. Any argument regarding the State’s right to take has been waived.
c. The requirements of Texas Property Code § 21.049 were met.
The special commissioners held the hearing and issued their award, which was
filed in accordance with Section 21.048. Section 21.049 then requires that notice
of the award be sent “by certified or registered United States mail, return receipt
requested, to the parties in the proceeding or their attorneys of record, at their
addresses of record.” See Tex. Prop. Code § 21.049 (emphasis added). Notices of
the award for Pappas Restaurants and Pappas Bar-B-Q were sent to Alysia Perry,
registered agent for both entities and legal secretary for the entities’ legal counsel,
Anna Sabayrac Marchand and Frank Markantonis. Ms. Perry, Ms. Marchand, and
Mr. Markantonis also share a common address: 13939 Northwest Freeway, Houston,
TX 77040.
Pursuant to Section 21.048, the award was filed the same day as the special
commissioners’ hearing, July 22, 2015; however, due to a defect with the copy of
the award, it was refiled on Friday, July 25, 2014. Section 21.049 states that “not
later than the next working day after the day the decision is filed, the clerk shall send
notice of the decision by certified or registered United States mail, return receipt
15
requested, to the parties in the proceeding, or to their attorneys of record, at their
addresses of record.” See Tex. Prop. Code § 21.049 (emphasis added). On Friday,
July 25, 2014, the clerk issued notices that an award had been filed on July 22, 2014.
On Monday, July 28, 2014, the clerk issued notices that an award had been filed on
July 25, 2014. Notice was again sent to Alysia Perry, the parties’ registered agent
and legal secretary to the parties’ counsel, at the address shared by Ms. Perry, Ms.
Marchand, and Mr. Markantonis.
Defendants argue that “the word ‘or’ does not automatically create mutually
exclusive options,” Pappas Br. 32; however, as discussed above, the Fort Worth
court of appeals in Brockriede has already looked specifically at the notice
requirements of Section 21.049 and found just that. In addition to finding that it
was the Property Code that controlled, not the Rules of Civil Procedure, the court
found that a trial clerk’s mailing of notice to a party and not that party’s counsel,
satisfied the notice provision, even though the court knew that the party was
represented. Brockriede, No. 02-13-00071-CV, 2013 WL 6564276 at *3.
Defendants cite to City of Lorena v. BMPT Holdings, L.P., 409 S.W.3d 634
(Tex. 2013). That case turned on a statute’s definition of “development,” as “the
construction, reconstruction, or other alteration or improvement of residential or
commercial buildings or the subdivision, or replatting of a subdivision of residential
or commercial property.” Id. at 641–42 (emphasis added). Here also, the Court
16
found that “or” meant one or the other. Id. at 642. “Giving effect to the statute’s
plain language, a property need not be approved for both the subdivision and
construction aspects of development.” Id. Another case Defendants cite, Spradlin
v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000), held that “work and material
used in constructing new improvements thereon, if contracted for in writing, or work
and material used to repair or renovate existing improvements thereon,” were two
separate exceptions, with one having distinct subparts. Id. at 579, 581 (emphasis
added). In meeting one exception, it was not necessary to comply with the subparts
of the other. Id at 581. None of the cases cited by Defendants state that if you can
meet the requirements of one alternative, you are forbidden from instead meeting
the requirements of the other.
As stated in Heritage on San Gabriel Homeowners Association v. Texas
Commission on Environmental Quality, 393 S.W.3d 417 (Tex. App.—Austin 2012,
pet. denied), also cited by Defendants, “Texas courts consider the use of the word
‘or’ against the backdrop of the entire statute.” Id. at 427. The Property Code sets
out alternatives in Sections 21.016 and 21.049, allowing notice to “the party or the
party’s agent or attorney,” or “the parties in the proceeding, or to their attorneys,”
respectively. As noted in Brockriede, No. 02-13-00071-CV, 2013 WL 6564276 at
*3, the Property Code does not require service in the manner of the Texas Rules of
Civil Procedure and the legislature could have included language to this effect as
17
they did in Texas Tax Code § 34.04(b), which reads: A copy of the petition shall be
served, in the manner prescribed by Rule 21a, Texas Rules of Civil Procedure, as
amended, or that rule's successor, on all parties. The absence of this language is
telling. This Court should, as the Brockriede court did, follow the statute’s “plain
language,” and find that notice to the party satisfied the requirements of § 21.049.
In addition, the State would note that Ms. Marchand and Mr. Markantonis
never withdrew as attorneys for Pappas Restaurants. Although they were replaced
by H. Dixon Montague and Don C. Griffin as the attorneys in charge, they never
sought to withdraw as counsel. Moreover, Mr. Montague and Mr. Griffin had a
duty to inform themselves of the events preceding their appearance and to prepare
for upcoming deadlines. At the time they entered their appearance on July 26, 2014,
they would have been able to see that a hearing had been held July 22, 2014, and
that an award had been filed July 22, 2014. They could also have seen a copy of
the award (SCR 4–16) online, with the award indicating that notices had already
been mailed. They might also have been able to see that a second award had been
filed July 25, 2014.
d. The requirements of Texas Property Code § 21.061 were met.
Finally, with regard to the question of notice of the filing of the Judgment of
Court in Absence of Objection, Property Code § 21.061 makes the entry of such a
judgment a mandatory, ministerial act: “If no party in a condemnation proceeding
18
files timely objections to the findings of the special commissioners, the judge of the
court that has jurisdiction of the proceeding shall adopt the commissioners’ findings
as the judgment of the court, record the judgment in the minutes of the court, and
issue the process necessary to enforce the judgment.” The State here provided a
proposed Judgment to the Court to assist with this duty; however, any party to the
suit could have done so. The Property Code makes no requirement that notice be
given of such an event, only that notice be given once the judgment is made. Even
so, the State provided notice to opposing counsel that a proposed judgment had been
submitted to the Court.
C. The trial court correctly entered the Judgment in Absence of Objection
because Defendants failed to file timely objections.
Defendants agree that Texas has a two part condemnation process: an
administrative phase and a separate judicial phase. See Pappas Br. 15–16. They
also agree that until objections are filed, the case remains administrative in nature.
See Pappas Br. 15–16. As no timely objections were filed, the trial court performed
its ministerial duty by entering the Judgment in Absence of Objection and was
correct to deny Defendants’ Motion for New Trial.
1. Defendant’s Notice of Appearance of Substitute Counsel is not
objections.
Defendants argue that Pappas Restaurants’ filing of a Notice of Appearance
of Substitute Counsel, CR 63–64, constituted objections. Property Code
19
§ 21.018(a) governs appeals from the award and states that “A party to a
condemnation proceeding may object to the findings of the special commissioners
by filing a written statement of the objections and their grounds with the court that
has jurisdiction of the proceeding.” Id. (emphasis added). Nowhere in Pappas
Restaurants’ filing is there a reference to the award, much less any language
objecting to it. The document filed clearly states it is a notice of appearance.
The State agrees that objections do not need to comply with the pleading
requirements set out in the Rules of Civil Procedure, that they are governed by
Section 21.018(a), that there are no magic words to evoke an objection, and that
objections need not particularize the elements of damages, but Defendants cannot
turn a Notice of Appearance into objections. The case law shows that some written
expression of complaint regarding the award is required. In American Tel. & Tel.
Co. v. Peurifoy, 242 S.W.2d 233 (Tex. Civ. App.—Dallas 1951, no writ), there was
a question of whether objections had been filed where defendants never used the
word objection. Still, as defendants submitted a multi-paragraph response that “set
out a disagreement as to the damage to the several owners of interest in the land
involved, plead facts upon which each defendant’s damage was based, and sought
recovery of these alleged damages in amounts far in excess of the $1,200 deposited
in the county court and also far in excess of the commissioners’ award,” Id. at 236,
this was held sufficient to constitute objections.
20
Thompson v. Martin County, 247 S.W.2d 585 (Tex. Civ. App.—El Paso 1952,
writ dism’d), also questioned whether language was sufficient to constitute an
objection. Here the language read “Dear Sir: Mr. A.D. Thompson has requested
that we notify you of his disapproval of the findings of the three partial and bias [sic]
commissioners appointed to assess the value of his property condemned for highway
purposes in Martin County. Please consider this as his request for Jury Trial in
these proceedings.” Id. at 586. Again, the language was found sufficient to act as
objections.
Another case cited by Defendants, City of Houston v. Huber, 311 S.W.2d 488
(Tex. Civ. App.—Houston [14th Dist.] 1958, no writ), cited back to Fitzgerald v.
City of Dallas, 34 S.W.2d 682 (Tex. Civ. App.—Dallas 1930, writ ref’d), in which
the objections read “the award of $150 was wholly insufficient compensation for the
property taken and the damages to the remainder of appellants' property.”
Fitzgerald. at 682. In each of the above listed cases there was language explicitly
speaking to and disapproving of the award. Pappas Restaurants’ Notice of
Appearance does neither.
Defendants argue that because the notice stated, “Mr. Montague and Mr.
Griffin will be responsible for the suit,” CR 63–64, this established Defendant was
unsatisfied with the award; however, this is the same language used to notice anyone
of a change in the attorney in charge. The Notice of Appearance of Ms. Marchand
21
and Mr. Markantonis stated they were appearing in the “cause;” but this indicated
only that they were becoming involved in the proceedings. CR 19–20. Calling an
administrative proceeding a “suit” or a “cause” does not change its nature and does
not satisfy the elements of an objection laid out in Tex. Prop. Code § 21.018.
Defendants similarly argue that the notice’s request for attorney’s fees in the
event of dismissal set forth an affirmative counterclaim against the State that would
only be applicable during the judicial phase of a condemnation case. In fact, the
award of attorney’s fees due to dismissal of an eminent domain action is governed
by Texas Property Code § 21.0195(c), which states that, if a court dismisses a
condemnation proceeding at the Texas Department of Transportation’s request, “the
court shall make an allowance to the property owner for the value of the department's
use of the property while in possession of the property, any damage that the
condemnation has caused to the property owner, and any expenses the property
owner has incurred in connection with the condemnation, including reasonable and
necessary fees for attorneys.”
Cases interpreting this section have held that the award of attorney’s fees is
mandatory, and that they must be awarded even if a case is dismissed while in its
administrative phase. See State v. Gracia, 56 S.W.3d 196, 202 (Tex. App—Fort
Worth 2001, no pet.); Eller Media Co. v. State, 51 S.W.3d 783, 786 (Tex. App—
Fort Worth 2001, no pet.). In Eller Media Co., for example, there were no
22
objections filed, so the case never reached the judicial phase. The State moved to
nonsuit the case. The court of appeals rejected arguments that the trial court lacked
jurisdiction and therefore had no power to award expenses. The court held that
because the trial court had subject matter jurisdiction over the condemnation, the
court was required to follow the provisions of Section 21.0195(c) and “had no
discretion to refuse to award Eller its reasonable and necessary attorney’s fees.” Id.
at 786. Gracia similarly found that Section 21.0195(c) was a special statutory
provision and that the trial court therefore “had no discretion to refuse to award
expenses.” Id. at 199 and 202. It is clear that the award of expenses in
condemnation is not a counterclaim limited to the judicial phase, but a mandatory
special statutory provision that applies no matter when an action is dismissed.
Also unconvincing is Defendants’ argument that the Notice of Appearance
would have been a futile act if Pappas Restaurants was satisfied with the award.
Pappas Br. 24–25. Pappas Restaurants could have filed this to receive notice of
when the award was deposited or if another party filed an objection or entered an
appearance. It might have filed a notice of appearance because the attorneys of
record at the time wished to withdraw or simply to show they there were new
attorneys in charge. It might also have filed the notice simply to show their
authority to act for Pappas Restaurants in motioning to withdraw money from the
court registry and so that payment could be made out to both Pappas Restaurants and
23
its attorneys, as the record in fact reflects. CR 89–91, 95–97, 104–05.
2. Defendant’s late objections do not “relate back to” or “amend” its
previous Notice of Appearance of Substitute Counsel.
Defendants also argue that the objections filed September 26, 2014, should be
considered to relate back to or amend the previous Notice of Appearance, to shore
up those “objections.” Still, in each of the cases cited by Defendants, the original
objections were timely filed. Hopkins v. State, No. 03-07-00253-CV, 2009 WL
3806160, at *2 (Tex. App.—Austin Nov. 13, 2009, no pet.) (mem. op.) specifically
notes that the pleadings were called “First Amended Objections to the Award” and
“Second Amended Objections to the Award.” In Sinclair v. City of Center, 107
S.W.2d 921 (Tex. Civ. App.—Beaumont 1937, writ ref’d), objections had been filed
citing disagreement with the award and were amended because the attorney failed to
sign his name as the party’s counsel. Here, the objections filed September 26, 2014,
did not indicate they were “First Amended” or that they related back to a previous
filing. They were also the first time that Defendant actually set out the required
“written statement of the objections and their grounds” required by Section 21.018.
It was Pappas Restaurants’ first filed objections and they were late.
3. Tolling Does Not Apply.
Tolling does not apply where the court clerk complied with the notice
requirements of Property Code § 21.049. In this case, the court mailed notice of the
24
award to the party’s registered agent, Alysia Perry, at the address shared by herself,
Ms. Marchand and Mr. Markantonis on both Friday, July 25, 2014, and Monday,
July 28, 2014. In John v. State, 826 S.W.2d 138 (Tex. 1992), the Court tolled the
deadline to file objections because the court clerk mailed notice of the award after
the objection deadline passed. Similarly, in Oncor Electric Delivery Co. LLC v.
Schunke, No. 04-13-00067-CV, 2013 WL 6672494 (Tex. App.—San Antonio Dec.
18, 2013, pet. dism’d by agr.) (mem. op.), the San Antonio Court of Appeals tolled
the deadline to file objections because the clerk failed to mail notice of the award.
There, neither the party nor their attorney received notice. The only case
Defendants cite standing for the proposition that notice must to be mailed to the
attorney of record is Morin v. Boecker, 122 S.W.3d 911 (Tex. App.—Corpus Christi
2003, no pet.); however, Morin is a forcible entry and detainer case and all Rules of
Civil Procedure had to be followed. That case is not controlling in an eminent
domain proceeding subject to the requirements of the Property Code. See John, 826
S.W.2d at 140; Bristol, 65 S.W.3d at 640.
As for Defendants’ assertion in their Statement of Facts that the court’s trial
setting indicated that the case was moving into the judicial phase, Pappas Br. 8,
Harris County routinely sets cases on the trial docket or for mediation after a petition
has been filed in a condemnation case. Courts routinely reset trial dates when cases
are still administrative on or near the designated date. Harris County’s push to keep
25
its cases moving is not determinative of whether the condemnation is in its
administrative or judicial phase. The court has no inherent authority to unilaterally
convert an administrative proceeding into a judicial one.
PRAYER
For all of the reasons stated herein, the State asks this Court to affirm the trial
court’s judgment. The State also requests that all costs of this appeal be taxed
against Appellants and for such further relief, general or special, to which it may be
justly entitled.
Respectfully submitted,
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
CHARLES E. ROY
FIRST ASSISTANT ATTORNEY GENERAL
JAMES E. DAVIS
DEPUTY ATTORNEY GENERAL FOR
CIVIL LITIGATION
RANDALL K. HILL
ASSISTANT ATTORNEY GENERAL
CHIEF, TRANSPORTATION DIVISION
26
/S/ Cristina Vudhiwat
CRISTINA VUDHIWAT
State Bar No. 24056479
Assistant Attorney General
P. O. Box 12548
Austin, Texas 78711-2548
512/ 463-2004; FAX 512/ 472-3855
Email:
Cristina.Vudhiwat@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEE
THE STATE OF TEXAS
27
CERTIFICATE OF COMPLIANCE
This is to certify that this Brief contains 6,173 words, and is in compliance
with the Texas Rule of Appellate Procedure 9.4(2)(B).
/s/ Cristina Vudhiwat
CRISTINA VUDHIWAT
Assistant Attorney General
28
CERTIFICATE OF SERVICE
This is to certify that on 18th of May, 2015, a true and correct copy of Brief of
Appellee State of Texas was filed on the following parties in the manner indicated:
Via Facsimile and E-Service
H. Dixon Montague
State Bar No. 14277700
dmontague@velaw.com
Don C. Griffin
State Bar No. 08456975
dgriffin@velaw.com
Catherine B. Smith
State Bar No. 03319970
csmith@velaw.ccom
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Telephone: 713-758-3508
Facsimile: 713-615-5985
ATTORNEY FOR APPELLANTS
PAPPAS RESTAURANTS, INC.
Anna Sabayrac Marchand
State Bar No. 24060543
amarchand@pappas.com
Frank Markantonis
State Bar No. 12986700
13939 Northwest Freeway, Suite 100
Houston, TX 77040
Telephone: 713-863-0611
Facsimile: 713-863-0523
ATTORNEY FOR APPELLANTS
PAPPAS BAR-B-Q, INC.
/S/ Cristina Vudhiwat
CRISTINA VUDHIWAT
Assistant Attorney General
29
APPENDIX A
Page 1 of 1
V.T.C.A., Government Code § 311.026 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Government Code (Refs & Annos)
Title 3. Legislative Branch (Refs & Annos)
Subtitle B. Legislation
Chapter 311. Code Construction Act (Refs & Annos)
Subchapter C. Construction of Statutes (Refs & Annos)
§ 311.026. Special or Local Provision Prevails Over General
(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so
that effect is given to both.
(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local
provision prevails as an exception to the general provision, unless the general provision is the later enactment and the
manifest intent is that the general provision prevail.
CREDIT(S)
Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. 1, 1985.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX B
Page 1 of 1
V.T.C.A., Property Code § 21.011 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter B. Procedure (Refs & Annos)
§ 21.011. Standard Procedure
Exercise of the eminent domain authority in all cases is governed by Sections 21.012 through 21.016 of this code.
CREDIT(S)
Acts 1983, 68th Leg., p. 3498, ch. 576, § 1, eff. Jan. 1, 1984.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX C
Page 1 of 2
V.T.C.A., Property Code § 21.016 Page 1
Effective: September 1, 2011
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter B. Procedure (Refs & Annos)
§ 21.016. Notice
(a) Each party in an eminent domain proceeding is entitled to written notice issued by the special commissioners
informing the party of the time and place of the hearing.
(b) Notice of the hearing must be served on a party not later than the 20th day before the day set for the hearing. A
person competent to testify may serve the notice.
(c) A person who serves a notice shall return the original notice to the special commissioners on or before the day set
for hearing. The person shall write a return of service on the notice that states how and when it was served.
(d) Notice may be served:
(1) by delivering a copy of the notice to the party or to the party's agent or attorney;
(2) if the property being condemned belongs to a deceased's estate or to a minor or other legally disabled person
and the person or estate has a legal representative, by delivering a copy of the notice to the legal representative; or
(3) if the property being condemned belongs to a nonresident of this state and there has been no personal service on
the owner, if the identity or the residence of the property owner is unknown, or if the property owner avoids service
of notice by hiding, by publication in the same manner as service of citation by publication in other civil cases in
the district courts or county courts at law.
CREDIT(S)
Acts 1983, 68th Leg., p. 3500, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 2011, 82nd Leg., ch. 81 (S.B. 18), §
12, eff. Sept. 1, 2011.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX C
Page 2 of 2
V.T.C.A., Property Code § 21.016 Page 2
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX D
Page 1 of 1
V.T.C.A., Property Code § 21.018 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter B. Procedure (Refs & Annos)
§ 21.018. Appeal From Commissioners' Findings
(a) A party to a condemnation proceeding may object to the findings of the special commissioners by filing a written
statement of the objections and their grounds with the court that has jurisdiction of the proceeding. The statement must
be filed on or before the first Monday following the 20th day after the day the commissioners file their findings with
the court.
(b) If a party files an objection to the findings of the special commissioners, the court shall cite the adverse party and
try the case in the same manner as other civil causes.
CREDIT(S)
Acts 1983, 68th Leg., p. 3501 ch. 576, § 1, eff. Jan. 1, 1984.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX E
Page 1 of 2
V.T.C.A., Property Code § 21.0195 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter B. Procedure (Refs & Annos)
§ 21.0195. Dismissal of Certain Condemnation Proceedings; Texas Department of Transporta-
tion
(a) This section applies only to the dismissal of a condemnation proceeding that involves the Texas Department of
Transportation.
(b) The department may move to dismiss a proceeding it files, and the court shall conduct a hearing on the motion.
The court may grant the motion only if the court determines that the property owner's interest will not be materially
affected by the dismissal. The department may not dismiss the condemnation proceedings merely to institute new
proceedings that involve substantially the same condemnation against the same property owner solely to obtain a
lower condemnation award.
(c) If a court dismisses a condemnation proceeding on the motion of the department or as a result of the failure of the
department to bring the proceeding properly, the court shall make an allowance to the property owner for the value of
the department's use of the property while in possession of the property, any damage that the condemnation has caused
to the property owner, and any expenses the property owner has incurred in connection with the condemnation, in-
cluding reasonable and necessary fees for attorneys.
CREDIT(S)
Added by Acts 1997, 75th Leg., ch. 1171, § 1.46(a), eff. Sept. 1, 1997.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX E
Page 2 of 2
V.T.C.A., Property Code § 21.0195 Page 2
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX F
Page 1 of 1
V.T.C.A., Property Code § 21.048 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter C. Damages and Costs (Refs & Annos)
§ 21.048. Statement of Damages and Costs
After the special commissioners in an eminent domain proceeding have assessed the damages, they shall:
(1) make a written statement of their decision stating the damages, date it, sign it, and file it and all other papers
connected with the proceeding with the court on the day the decision is made or on the next working day after the
day the decision is made; and
(2) make and sign a written statement of the accrued costs of the proceeding, naming the party against whom the
costs are adjudged, and file the statement with the court.
CREDIT(S)
Acts 1983, 68th Leg., p. 3507, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 1984, 68th Leg., 2nd C.S., ch. 18, §
1(c), eff. Oct. 2, 1984.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX G
Page 1 of 1
V.T.C.A., Property Code § 21.049 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter C. Damages and Costs (Refs & Annos)
§ 21.049. Notice of Decision of Special Commissioners
The judge of a court hearing a proceeding under this chapter shall inform the clerk of the court as to a decision by the
special commissioners on the day the decision is filed or on the next working day after the day the decision is filed.
Not later than the next working day after the day the decision is filed, the clerk shall send notice of the decision by
certified or registered United States mail, return receipt requested, to the parties in the proceeding, or to their attorneys
of record, at their addresses of record.
CREDIT(S)
Added by Acts 1984, 68th Leg., 2nd C.S., ch. 18, § 1(d), eff. Oct. 2, 1984.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX H
Page 1 of 1
V.T.C.A., Property Code § 21.061 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Property Code (Refs & Annos)
Title 4. Actions and Remedies
Chapter 21. Eminent Domain (Refs & Annos)
Subchapter D. Judgment
§ 21.061. Judgment on Commissioners' Findings
If no party in a condemnation proceeding files timely objections to the findings of the special commissioners, the
judge of the court that has jurisdiction of the proceeding shall adopt the commissioners' findings as the judgment of
the court, record the judgment in the minutes of the court, and issue the process necessary to enforce the judgment.
CREDIT(S)
Acts 1983, 68th Leg., p. 3507, ch. 576, § 1, eff. Jan. 1, 1984.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
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APPENDIX I
Page 1 of 1
TX Rules of Civil Procedure, Rule 8 Page 1
Vernon's Texas Rules Annotated Currentness
Texas Rules of Civil Procedure
Part I. General Rules (Refs & Annos)
Rule 8. Attorney in Charge
On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial
pleadings for any party shall be the attorney in charge, unless another attorney is specifically designated therein.
Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with
Rule 21a, said attorney in charge shall be responsible for the suit as to such party.
All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.
CREDIT(S)
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 15, 1987, eff. Jan. 1, 1988.
Current with amendments received through 3/15/2015
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END OF DOCUMENT
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APPENDIX J
Page 1 of 3
TX Rules of Civil Procedure, Rule 21 Page 1
Vernon's Texas Rules Annotated Currentness
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 1. General Rules (Refs & Annos)
Rule 21. Filing and Serving Pleadings and Motions
(a) Filing and Service Required. Every pleading, plea, motion, or application to the court for an order, whether in the
form of a motion, plea, or other form of request, unless presented during a hearing or trial, must be filed with the clerk
of the court in writing, must state the grounds therefor, must set forth the relief or order sought, and at the same time
a true copy must be served on all other parties, and must be noted on the docket.
(b) Service of Notice of Hearing. An application to the court for an order and notice of any hearing thereon, not
presented during a hearing or trial, must be served upon all other parties not less than three days before the time
specified for the hearing, unless otherwise provided by these rules or shortened by the court.
(c) Multiple Parties. If there is more than one other party represented by different attorneys, one copy of each pleading
must be served on each attorney in charge.
(d) Certificate of Service. The party or attorney of record, must certify to the court compliance with this rule in writing
over signature on the filed pleading, plea, motion, or application.
(e) Additional Copies. After one copy is served on a party, that party may obtain another copy of the same pleading
upon tendering reasonable payment for copying and delivering. Tx. Supreme Court Misc. Dkt. No. 13-9165 Court of
Criminal Appeals Misc. Dkt. No. 13-003
(f) Electronic Filing.
(1) Requirement. Except in juvenile cases under Title 3 of the Family Code, attorneys must electronically file doc-
uments in courts where electronic filing has been mandated. Attorneys practicing in courts where electronic filing
is available but not mandated and unrepresented parties may electronically file documents, but it is not required.
(2) Email Address. The email address of an attorney or unrepresented party who electronically files a document
must be included on the document.
(3) Mechanism. Electronic filing must be done through the electronic filing manager established by the Office of
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APPENDIX J
Page 2 of 3
TX Rules of Civil Procedure, Rule 21 Page 2
Court Administration and an electronic filing service provider certified by the Office of Court Administration.
(4) Exceptions.
(A) Wills are not required to be filed electronically.
(B) The following documents must not be filed electronically:
(i) documents filed under seal or presented to the court in camera; and
(ii) documents to which access is otherwise restricted by law or court order.
(C) For good cause, a court may permit a party to file other documents in paper form in a particular case.
(5) Timely Filing. Unless a document must be filed by a certain time of day, a document is considered timely filed
if it is electronically filed at any time before midnight (in the court's time zone) on the filing deadline. An electron-
ically filed document is deemed filed when transmitted to the filing party's electronic filing service provider, except:
(A) if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is
not a Saturday, Sunday, or legal holiday; and
(B) if a document requires a motion and an order allowing its filing, the document is deemed filed on the date that
the motion is granted.
(6) Technical Failure. If a document is untimely due to a technical failure or a system outage, the filing party may
seek appropriate relief from the court. If the missed deadline is one imposed by these rules, the filing party must be
given a reasonable extension of time to complete the filing.
(7) Electronic Signatures. A document that is electronically served, filed, or issued by a court or clerk is considered
signed if the document includes:
(A) a “/s/” and name typed in the space where the signature would otherwise appear, unless the document is
notarized or sworn; or
(B) an electronic image or scanned image of the signature.
(8) Format. An electronically filed document must:
(A) be in text-searchable portable document format (PDF);
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APPENDIX J
Page 3 of 3
TX Rules of Civil Procedure, Rule 21 Page 3
(B) be directly converted to PDF rather than scanned, if possible;
(C) not be locked; and
(D) otherwise comply with the Technology Standards set by the Judicial Committee on Information Technology
and approved by the Supreme Court.
(9) Paper Copies. Unless required by local rule, a party need not file a paper copy of an electronically filed docu-
ment.
(10) Electronic Notices From the Court. The clerk may send notices, orders, or other communications about the
case to the party electronically. A court seal may be electronic.
(11) Non-Conforming Documents. The clerk may not refuse to file a document that fails to conform with this rule.
But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the document in a
conforming format.
(12) Original Wills. When a party electronically files an application to probate a document as an original will, the
original will must be filed with the clerk within three business days after the application is filed.
(13) Official Record. The clerk may designate an electronically filed document or a scanned paper document as the
official court record. The clerk is not required to keep both paper and electronic versions of the same document
unless otherwise required by local rule. But the clerk must retain an original will filed for probate in a numbered
file folder.
CREDIT(S)
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Sept. 20, 1941, eff. Dec. 31, 1941; Aug. 18, 1947, eff. Dec.
31, 1947; July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; April 24, 1990, eff. Sept. 1, 1990; Dec. 11,
2013, eff. Jan. 1, 2014.
Current with amendments received through 3/15/2015
(C) 2015 Thomson Reuters
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX K
Page 1 of 1
TX Rules of Civil Procedure, Rule 121 Page 1
Vernon's Texas Rules Annotated Currentness
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 5. Citation (Refs & Annos)
Rule 121. Answer is Appearance
An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or
service of citation upon him.
CREDIT(S)
Oct. 29, 1940, eff. Sept. 1, 1941.
Current with amendments received through 3/15/2015
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END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX L
Page 1 of 4
V.T.C.A., Tax Code § 34.04 Page 1
Effective: September 1, 2011
Vernon's Texas Statutes and Codes Annotated Currentness
Tax Code (Refs & Annos)
Title 1. Property Tax Code
Subtitle E. Collections and Delinquency
Chapter 34. Tax Sales and Redemption
Subchapter A. Tax Sales
§ 34.04. Claims for Excess Proceeds
(a) A person, including a taxing unit and the Title IV-D agency, may file a petition in the court that ordered the seizure
or sale setting forth a claim to the excess proceeds. The petition must be filed before the second anniversary of the
date of the sale of the property. The petition is not required to be filed as an original suit separate from the underlying
suit for seizure of the property or foreclosure of a tax lien on the property but may be filed under the cause number of
the underlying suit.
(b) A copy of the petition shall be served, in the manner prescribed by Rule 21a, Texas Rules of Civil Procedure, as
amended, or that rule's successor, on all parties to the underlying action not later than the 20th day before the date set
for a hearing on the petition.
(c) At the hearing the court shall order that the proceeds be paid according to the following priorities to each party that
establishes its claim to the proceeds:
(1) to the tax sale purchaser if the tax sale has been adjudged to be void and the purchaser has prevailed in an action
against the taxing units under Section 34.07(d) by final judgment;
(2) to a taxing unit for any taxes, penalties, or interest that have become due or delinquent on the subject property
subsequent to the date of the judgment or that were omitted from the judgment by accident or mistake;
(3) to any other lienholder, consensual or otherwise, for the amount due under a lien, in accordance with the priorities
established by applicable law;
(4) to a taxing unit for any unpaid taxes, penalties, interest, or other amounts adjudged due under the judgment that
were not satisfied from the proceeds from the tax sale; and
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APPENDIX L
Page 2 of 4
V.T.C.A., Tax Code § 34.04 Page 2
(5) to each former owner of the property, as the interest of each may appear, provided that the former owner:
(A) was a defendant in the judgment;
(B) is related within the third degree by consanguinity or affinity to a former owner that was a defendant in the
judgment; or
(C) acquired by will or intestate succession the interest in the property of a former owner that was a defendant in
the judgment.
(c-1) Except as provided by Subsections (c)(5)(B) and (C), a former owner of the property that acquired an interest in
the property after the date of the judgment may not establish a claim to the proceeds. For purposes of this subsection,
a former owner of the property is considered to have acquired an interest in the property after the date of the judgment
if the deed by which the former owner acquired the interest was recorded in the real property records of the county in
which the property is located after the date of the judgment.
(d) Interest or costs may not be allowed under this section.
(e) An order under this section directing that all or part of the excess proceeds be paid to a party is appealable.
(f) A person may not take an assignment or other transfer of an owner's claim to excess proceeds unless:
(1) the assignment or transfer is taken on or after the 36th day after the date the excess proceeds are deposited in the
registry of the court;
(2) the assignment or transfer is in writing and signed by the assignor or transferor;
(3) the assignment or transfer is not the result of an in-person or telephone solicitation;
(4) the assignee or transferee pays the assignor or transferor on the date of the assignment or transfer an amount
equal to at least 80 percent of the amount of the assignor's or transferor's claim to the excess proceeds; and
(5) the assignment or transfer document contains a sworn statement by the assignor or transferor affirming:
(A) that the assignment or transfer was given voluntarily;
(B) the date on which the assignment or transfer was made and that the date was not earlier than the 36th day after
the date the excess proceeds were deposited in the registry of the court;
(C) that the assignor or transferor has received the notice from the clerk required by Section 34.03;
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APPENDIX L
Page 3 of 4
V.T.C.A., Tax Code § 34.04 Page 3
(D) the nature and specific amount of consideration given for the assignment or transfer;
(E) the circumstances under which the excess proceeds are in the registry of the court;
(F) the amount of the claim to excess proceeds in the registry of the court;
(G) that the assignor or transferor has made no other assignments or transfers of the assignor's or transferor's claim
to the excess proceeds;
(H) that the assignor or transferor knows that the assignor or transferor may retain counsel; and
(I) that the consideration was paid in full on the date of the assignment or transfer and that the consideration paid
was an amount equal to at least 80 percent of the amount of the assignor's or transferor's claim to the excess
proceeds.
(g) An assignee or transferee who obtains excess proceeds without complying with Subsection (f) is liable to the
assignor or transferor for the amount of excess proceeds obtained plus attorney's fees and expenses. An assignee or
transferee who attempts to obtain excess proceeds without complying with Subsection (f) is liable to the assignor or
transferor for attorney's fees and expenses.
(h) An assignee or transferee who files a petition setting forth a claim to excess proceeds must attach a copy of the
assignment or transfer document and produce the original of the assignment or transfer document in court at the
hearing on the petition. If the original assignment or transfer document is lost, the assignee or transferee must obtain
the presence of the assignor or transferor to testify at the hearing. In addition, the assignee or transferee must produce
at the hearing the original of any evidence verifying the payment of the consideration given for the assignment or
transfer. If the original of any evidence of the payment is lost or if the payment was in cash, the assignee or transferee
must obtain the presence of the assignor or transferor to testify at the hearing.
(i) A fee charged by an attorney to obtain excess proceeds for an owner may not be greater than 25 percent of the
amount obtained or $1,000, whichever is less. A person who is not an attorney may not charge a fee to obtain excess
proceeds for an owner.
(j) The amount of the excess proceeds the court may order be paid to an assignee or transferee may not exceed 125
percent of the amount the assignee or transferee paid the assignor or transferor on the date of the assignment or transfer.
CREDIT(S)
Acts 1979, 66th Leg., p. 2298, ch. 841, § 1, eff. Jan. 1, 1982. Amended by Acts 1983, 68th Leg., p. 4829, ch. 851, §
26, eff. Aug. 29, 1983; Acts 1999, 76th Leg., ch. 1185, § 2, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1481, § 26,
eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, § 18.007, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1430, § 27,
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APPENDIX L
Page 4 of 4
V.T.C.A., Tax Code § 34.04 Page 4
eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 319, § 10, eff. June 18, 2003; Acts 2009, 81st Leg., ch. 254, § 2, eff. Sept.
1, 2009; Acts 2011, 82nd Leg., ch. 508 (H.B. 1674), § 22, eff. Sept. 1, 2011.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.