The State of Texas v. REME, L.L.C., a Texas Limited Liability Company

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00055-CV
________________
THE STATE OF TEXAS, Appellant
V.
REME, L.L.C., A TEXAS LIMITED LIABILIITY COMPANY, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 2
Montgomery County, Texas
Trial Cause No. 20-10-12578-CV
________________________________________________________________________
MEMORANDUM OPINION
In this condemnation case, the State of Texas appeals the trial court’s
judgment adopting the Award of the Special Commissioners. See Tex. Prop. Code
Ann. § 21.018(a). In a single appellate issue, the State argues that its objections to
the Award were timely filed, and the trial court therefore committed reversible error
by rendering judgment on the award. Because we hold that the State timely filed its
objections to the award, the underlying administrative proceeding was converted
1
into a judicial proceeding over which we have jurisdiction, and we reverse the
judgment of the court below and remand for further proceedings.
I. Background
As part of a project to widen State Highway 105, the State sought to condemn
approximately one-tenth of an acre of land belonging to Appellee REME.1
According to the applicable statutory procedure, the trial court appointed three
special commissioners, who then rendered their award. Tex. Prop. Code Ann. §§
21.014(a), 21.048(1). The State electronically filed the Award of Special
Commissioners into the clerk’s record on Friday, April 16, 2021. The following
Monday, April 19, 2021, the trial judge received and signed the Award, and the clerk
of court then sent the statutory notice of the Award to the State. 2 Tex. Prop. Code
1
Our sister Court explained that Texas has a two-part land condemnation
scheme. State v. Garland, 963 S.W.2d 95, 97 (Tex. App.—Austin 1998, pet. denied)
(citations omitted).
When a party seeks to condemn land but cannot agree with the
landowner, on the value of the property, the condemning authority must
file a petition in either the district court or the county court at law. The
trial court then appoints three special commissioners, who hold a
hearing and file in the trial court an award of damages reflecting their
determination of the value of the condemned land. The condemnor
must either pay the amount of the award to the condemnee or deposit
that amount in the court’s registry. Any party who is dissatisfied with
the award is allowed a certain amount of time within which to file
objections in the appropriate court.
2
The record does not indicate whether notice was also sent to the landowner,
but for purposes of the issue before us that fact does not affect the disposition of this
appeal.
2
Ann. § 21.049. On May 14, 2021, the State filed its objections to the special
commissioners’ award. The Defendant Landowner filed a Motion to Withdraw the
Award which was granted by the trial court. On November 1, 2021, the Defendant
Landowner filed Defendant’s Motion for Entry of Final Judgment arguing the State
failed to timely file its objections to the Award from the Special Commissioners and
that the trial court had a ministerial duty to enter judgment on the Award. The State
filed a response to the Motion for Entry of Judgment and argued it timely filed the
objections. The trial court agreed with the Defendants and entered judgment on the
award in favor of REME. This appeal followed.
II. Standard of Review And Applicable Law
This appeal requires that we consider the trial court’s interpretation and
application of section § 21.018 of the Texas Property Code. Under the Property
Code, a party to a condemnation proceeding may object to the findings of the special
commissioners by filing written objections “with the court that has jurisdiction of
the proceeding.” Tex. Prop. Code Ann. § 21.018(a). The objections “must be filed
on or before the first Monday following the 20th day after the day the commissioners
file their findings with the court.” Id. If a party files an objection to the
commissioners’ findings, “the court shall cite the adverse party and try the case in
the same manner as other civil cases.” Tex. Prop. Code Ann, § 21.018(b). When no
3
timely objections are filed, there is no right of an appeal and the court must enter a
judgment on the award. Id.
We review matters of statutory construction as questions of law under a de
novo standard of review. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). It is
presumed that the legislature intended every word used in a statute to be given effect.
Perkins v. State, 367 S.W.2d 140 (Tex. 1963). After construing the statute, we then
determine whether the trial court properly resolved the question in the landowner’s
favor.
III. Analysis
The Texas Property Code states that the allowable time frame to file
objections to the special commissioners’ award begins to run on the date “the
commissioners file their findings with the court.” Tex. Prop. Code Ann. § 21.018(a).
Case authority establishes that this time limit will be tolled if the clerk fails to
provide timely notice that the commissioners’ award has been filed. See John v.
State, 826 S.W.2d 138, 140-41 (Tex. 1992); State v. Garland, 963 S.W.2d 95, 101
(Tex. App.—Austin 1998, pet. denied); Tex. Prop. Code Ann. § 21.049. In the
instant case, the clerk notified the State “[n]ot later than the next working day after
the day the decision [was] filed[] with the court.” Tex. Prop. Code Ann. § 21.049.
Therefore, the outcome of this case hinges on when the commissioners’ award was
“filed with the court” as expressly stated in in Tex. Prop. Code Ann. § 21.018(a).
4
Section 21.018(a) was adopted by the Legislature in 1983, with an effective
date of January 1, 1984. At that time, there was no electronic filing. The
commissioners are appointed by the trial court Judge. The special commissioners
must be sworn and execute oaths and set the date of the hearing in which the
commissioners will hear evidence and arguments of the parties and then the
commissioners enter a written decision or award and file the award with the Judge
of the court.
Appellee argues that the award was considered “filed” on April 16, 2021,
when the proposed order was e-field with the clerk of the court and that the
objections were due to be filed on or before May 10, 2021, because e-filing rules
provide the filing date as the date the documents was first e-filed with the clerk of
the court. See Tex. R. Civ. Proc. 21(f) which was adopted in 2014. This rule of
procedure is in conflict with the older provision of the law dealing with
condemnations found in section 21.018(a) of the property code which was effective
January 1, 1984. The concurring opinion filed by our fellow Justice with this case
is a model of originalist jurisprudence explaining the original intent of these
provisions of the property code relevant to our case today.
Appellee relies on NA Land Co. v. State, 624 S.W.3d 671 (Tex. App.—
Houston [14th] 2021, no pet.) which is distinguishable from this case. In NA Land
Co., the respondent attempted to file the objections timely in order to convert the
5
administrative proceeding into a trial proceeding (within the statute of limitations).
Because of a filing glitch, the objections were not accepted until after the deadline.
Because the original filing within the deadline stated that the filing was “pending”
prior to the deadline, the court in that case held that the filing was timely as of the e-
filing “pending” date and time. Our case deals, instead, with whether the actual
award was filed when received by the clerk or when received by the “court.” Here,
the commissioners’ award was both transmitted to the electronic filing service
provider and received by the clerk at 5:34 p.m. on Friday, April 16, 2021. However,
it was not received by the court until Monday, April 19, 2021 at 2:39:36 p.m. The
Texas Property Code provides in § 21.018(a) 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. 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.”
Tex. Prop. Code Ann. § 21.018(a).
That filing requirement was not accomplished until April 19, 2021. Under the
Code Construction Act, we must presume that the legislature intended every word
used in a statute to be given effect. Perkins v. State, 367 S.W.2d 140 (Tex. 1963).
The phrase “with the Court” must mean filing with the court. Indeed, above Judge
Laird’s electronic signature are the words “filed with me this __ day of ______,
2021.” It is set forth clearly in the document itself:
6
[t]he foregoing decision and Award was filed with me this _____ day of
______________, 2021.
4/19/2021 2:39:36 PM
[/s/] Laird
JUDGE, County Court at Law No. 2
of Montgomery County, Texas
Counting from April 19, 2021, the 20th day after the filing of the award is
Sunday, May 9, 2021. However, the enlargement provision of Texas Government
Code § 311.014(b), which excludes Saturdays, Sundays, and legal holidays from the
computation period, makes the 20th day Monday, May 10, 2021. See Tex. Gov’t
Code § 311.014(b); Cohen v. State, 858 S.W.2d 51, 52 (Tex. App.—Houston [14th
Dist.] 1993, writ denied) (citing State v. Touchy, 581 S.W.2d 773, 774 (Tex. Civ.
App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.)). And the Monday following the
20th day after the day the award was filed with the court would have been Monday,
May 17, 2021. The State filed its objections on May 14, 2021. The objections were,
therefore, timely filed.
V. Conclusion
The special commissioners’ award was filed with the court on April 19, 2021.
Therefore, the State’s objections to the award, filed May 14, 2021, were timely, and
the trial court was required to proceed under the property code to consider the
objections in due form. Tex. Prop. Code Ann § 21.018(a). We therefore reverse and
remand this case to the trial court for further proceedings consistent with the opinion.
7
REVERSED AND REMANDED.
________________________________
JAY WRIGHT
Justice
Submitted on May 1, 2023
Opinion Delivered July 27, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
8
CONCURRING OPINION
I concur in the result reached by the majority but write a concurring opinion
to further explain why I join the majority.
The question before us is whether the State of Texas timely filed objections
to the special commissioners’ award. In one issue, the State asserts that the trial court
erred when it determined that the State had not timely filed its objections to the
award, adopted the award, and rendered final judgment. See Tex. Prop. Code Ann.
§ 21.018(a). If no timely objections were filed, there is no right of an appeal, the trial
court had but one task and that was to enter judgment based upon the commissioners’
award, and we must dismiss this case for want of jurisdiction. See id. § 21.061; John
v. State, 826 S.W.2d 138, 141, n.5 (Tex. 1992) (citing Pearson v. State, 315 S.W.2d
935, 938-39 (Tex. 1958) (discussing Section 7 of Art. 3266, the predecessor to
section 21.061)); In re Energy Transfer Fuel, LP, 250 S.W.3d 178, 180-81 (Tex.
App.—Tyler 2008, orig. proceeding). If timely objections were filed, the award of
the special commissioners is vacated, the administrative proceeding converts into a
judicial proceeding, and it should be tried in the County Court at Law in the same
manner as any other civil matter. City of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex.
2006).3
3
The objecting party must also secure service of citation on the adverse party
and try the case in the manner of other civil causes. Tex. Prop. Code Ann.
9
According to the applicable Property Code provisions, in a condemnation
action during the administrative phase, the trial court appoints the special
commissioners, who then set and hold a hearing and render findings in an award or
decision. See Tex. Prop. Code Ann. §§ 21.014(a), 21.048(1). 4 Here, the special
commissioners’ hearing was held on April 14, 2021. The State thereafter
electronically filed a cover letter addressed to the clerk, stating “[p]lease find
enclosed the proposed Award of Special Commissioners to be presented to the Judge
for consideration and signature[,]”5 and it requested the clerk “notify all parties of
the filing and signing of this Award with the Judge of this Court.” It is undisputed
that the cover letter and attachment were electronically filed into the clerk’s record
at 5:34 p.m. on Friday, April 16, 2021. The e-filed attachment included blanks for
the amounts to be paid the special commissioners and a section to be filled out by
the Judge of the Trial Court. On Monday, April 19, 2021, the Award was then filed
with the judge of the court who then signed the Award, and the blanks for the fees
to be awarded to the commissioners were filled in, the Judge declared when the
§ 21.018(b); see also Amason v. Nat. Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex.
1984).
4
The predecessor statutes, Vernon’s Annotated Civ. Statutes Art. 3264 (part)
and 3266, Par.2. were included in the Civil Statutes in 1925. According to the
Historical and Statutory Notes to the Texas Property Code, the procedures outlined
therein were also previously part of the Revised Civil Statutes of 1879, art. 4202,
and of Revised Civil Statutes of 1895, art. 4468.
5
Emphasis in original.
10
Award was filed with her, and the Judge instructed the clerk of court to forward the
notice as required under section 21.049. See id. § 21.049. The part completed on
April 19, 2021, appears on page four of the Award, and it includes the following—
Fees due Special Commissioners as set by the Court:
$ 150.00 to T[] M[] 1 hours
$ 1350.00 to C[] P[] 9 hours
$ 1350.00 to K[] O[] 9 hours
$ 1350.00 to J[] M[] 9 hours
The Clerk of this Court is hereby ORDERED to notify all parties or
their attorneys of record, as listed in Exhibit “B” attached hereto, of the
filing date of this Award by certified mail, return receipt requested, at
their addresses of record pursuant to SECTION 21.049, TEXAS
PROPERTY CODE.
The foregoing decision and Award was filed with me this the 19th day
of April, 2021.[ 6]
[/S/]_____________________
JUDGE, County Court at Law No. 2
of Montgomery County, Texas
The clerk of court then sent the statutory notice of the Award to the State, with a
cover letter referencing the date of April 19, 2021. On May 14, 2021, the State filed
its objections to the special commissioners’ award. Thereafter, the State deposited
the amount of the Award into the registry of the court, and REME, the defendant
landowner, then filed a Motion to Withdraw the Award which was granted by the
6
The blanks on the form were filled out and expressly state when the Award
was “filed with” the judge on “4/19/21 2:30:36 PM” which appears above the
judge’s signature. At the bottom, there is also a Minute Entry for the same date.
11
trial court. On November 1, 2021, REME filed Defendant’s Motion for Entry of
Final Judgment arguing the State failed to timely file its objections to the Award
from the Special Commissioners and that the trial court had a ministerial duty to
enter judgment on the Award. The State filed a response to the Motion for Entry of
Judgment and argued it timely filed the objections. The trial court agreed with the
Defendant and entered judgment on the award in favor of REME. This appeal
followed.
We review matters of statutory construction as questions of law under a de
novo standard of review. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Under
the well settled principles of statutory construction, we begin with the statutory
language itself. Id. Our primary goal is to give effect to the Legislature’s intent, and
we turn first to the plain meaning of the words and terms chosen. Id.; Owens &
Minor, Inc. v. Ansell Healthcare Prods., Inc., 251 S.W.3d 481, 483 (Tex. 2008) (“[I]t
is a fair assumption that the Legislature tries to say what it means, and therefore the
words it chooses should be the surest guide to legislative intent.”). We presume that
every word in a statute was chosen by the legislature for a purpose. City of Rockwall
v. Hughes, 246 S.W.3d 621, 628 (Tex. 2008). When a term is not defined in the
statute, we give the term its ordinary meaning--within the context of the statute, not
in isolation. Guitar Holding Co., L.P. v. Hudspeth Cty. Underground Water
Conservation Dist. No. 1, 263 S.W.3d 910, 915-16 (Tex. 2008). When the legislature
12
uses a particular term in one section of a statute and excludes it in another, we must
give the term meaning where used and must not imply it where it was excluded.
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 859 (Tex.
1995); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981).
When the Legislature adopted the Property Code, Chapter 576, Senate Bill
No. 748, the Legislature stated it was “an Act relating to adoption of nonsubstantive
revisions of the statutes relating to property.” After each section in “Chapter 21.
Eminent Domain” of the Property Code, the annotations reference relevant sections
of the former Civil Statute. Specifically, in section 21.018, “Appeal From
Commissioners’ Findings[,]” the annotation references “V.A.C.S. Art. 3266, Par. 6;
Art. 3266a, Secs. 2 (part), 3 (part), 5(a) (part), 5(b) (part).”
When examining whether the recodification made a substantive change and
whether the general statement of legislative intent holds true, we must determine
whether section 21.018 is “unambiguous[ly]” different from its predecessor, such
that it “cannot be reconciled with prior law.” See Fleming Foods of Texas, Inc. v.
Rylander, 6 S.W.3d 278, 286 (Tex.1999); First Cash, Ltd. v. JQ-Parkdale, LLC, 538
S.W.3d 189, 199 (Tex. App.—Corpus Christi 2018, no pet.).
Generally, if the statutory language is clear and unambiguous, we interpret its
words according to their plain and common meaning unless that interpretation would
lead to absurd results. Barshop v. Medina Cty. Underground Water Conservation
13
Dist., 925 S.W.2d 618, 629 (Tex. 1996). When a statute’s language is unambiguous,
it is inappropriate to resort to rules of construction or extrinsic aids. City of Rockwall,
246 S.W.3d at 626; Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 865-66 (Tex. 1999). In ascertaining legislative intent, we consider the plain
statutory language in the context of the entire act, as well as the objective of the
statute, its history, and the consequences of a particular construction. Tex. Gov’t
Code Ann. § 311.023(1), (3), (5); City of Rockwall, 246 S.W.3d at 626 n.6; Jones v.
Fowler, 969 S.W.2d 429, 432 (Tex. 1998).
The Texas Property Code states that the allowable time frame to file
objections to the special commissioners’ award begins to run from the date “the
commissioners file their findings with the court.” Tex. Prop. Code Ann. § 21.018(a)
(emphasis added). Case authority establishes that this time limit may be tolled if the
clerk fails to provide timely notice to the parties that the commissioners’ award has
been filed. See John, 826 S.W.2d at 140-41; State v. Garland, 963 S.W.2d 95, 101
(Tex. App.—Austin 1998, pet. denied).
The statutory eminent domain procedure, as outlined in Chapter 21, grants the
judge of “a court in which a condemnation petition is filed or to which an eminent
domain case is assigned” the administrative jurisdiction to appoint three special
commissioners, to receive the special commissioners’ decision, and to then render
judgment on that decision. See Tex. Prop. Code Ann. § 21.014(a); Gulf Energy
14
Pipeline Co. v. Garcia, 884 S.W.2d 821, 822 (Tex. App.—San Antonio 1994, no
writ). The special commissioners set the date of the hearing in which the
commissioners will hear evidence and arguments of the parties and the Special
Commissioners then make written findings in an award or decision. Tex. Prop. Code
Ann. §§ 21.014(b), 21.048. According to section 21.018(a), the commissioners shall
file their “findings” or award “with the court.”
One of the resources sometimes used in condemnation proceedings is
Rayburn on Condemnation, last published in October of 1998. A two-volume set,
the treatise contains forms for use in condemnation proceedings, including Form
6227 styled “Award of Special Commissioners.” At the bottom of that form is a
statement that reads,
The foregoing Award of Special Commissioners was filed with
me this ___ day of ________, 19___.
________ ______________________
Judge, County Court at Law
__________County, Texas
Vol 1, Madison Rayburn, Rayburn on Condemnation § 6.54 (Oct. 1998 ed.).
Similarly, Form 16 has language at the bottom of the form Award of Special
7
Commissioners that states
The following award was filed with me on _________, 19____.
Judge _______________(Signature)
Court_______________________
Vol. 1, Madison Rayburn, Rayburn on Condemnation Report 7.xxxvi (Oct. 1998
ed.).
15
Here, the “proposed Award” the State sent to the Court had the same language
at the bottom as that contained in Form 622. In this case, the hearing before the
special commissioners was held on April 14, 2021. The record reflects that the State
e-filed a Letter with the clerk of court and referenced therein a “proposed Award”
and in the Letter the State asked the clerk of court to present the “proposed Award”
to the Judge for consideration. The attached “Award” reflected it was docu-signed
by each commissioner on April 14, 2021. However, page four of the Award
expressly required further entries. Specifically, someone had to fill-in the fees to be
paid to the commissioners, the trial judge had to state when the Award was filed with
her, and the trial judge then had a section to sign. The Award that was signed by the
trial Judge contains the following language:
The costs of this proceeding are adjudged against the State of Texas.
Such costs are to be paid to the District Clerk of Montgomery County,
Texas.
The costs which have accrued to date are as follows:
Fees due Special Commissioners as set by the Court:
$ 150.00[an empty blank in the filing made by the State on 4/16] to
T[] M[] 1 hours
$ 1350.00 [an empty blank in the filing made by the State on 4/16] to
C[] P[] 9 hours
$ 1350.00 [an empty blank in the filing made by the State on 4/16] to
K[] O[] 9 hours
$ 1350.00 [an empty blank in the filing made by the State on 4/16] to
J[] M[] 9 hours
The Clerk of this Court is hereby ORDERED to notify all parties or
their attorneys of record, as listed in Exhibit "B" attached hereto, of the
16
filing date of this Award by certified mail, return receipt requested, at
their addresses of record pursuant to SECTION 21.049, TEXAS
PROPERTY CODE.
The foregoing decision and Award was filed with me this the 19th day
of April [the date was blank in the filing made by the State on 4/16],
2021.
[Signed by the Judge on 4/19]
JUDGE, County Court at Law No. 2
of Montgomery County, Texas
The Judge filled in the last section of the Award and expressly stated therein
that the Award was filed with her on Monday, April 19, 2021, at 2:39:36 p.m., and
the Award was also entered into the official Minute Entry book on April 19, 2021.
The clerk of court then sent a copy of the Award by certified mail return receipt
requested to the State of Texas on April 19, 2021, with a cover letter stating, “Please
find enclosed, a copy of the Award of Special Commissioners, signed the 19th day
of April, 2021, by the Honorable [], Judge of the County Court at Law #2 of
Montgomery County, Texas.”
The Texas Property Code provides in section 21.018(a) 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. 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. [emphasis added]
Tex. Prop. Code Ann. § 21.018(a).
17
The legislature did not include a definition of “with the court” in the Property
Code. 8 That said, section 21.018(a) is not the only section of Chapter 21 of the
Property Code that uses that phrase or the concept of something being filed “with
the court.” In section 21.048, styled “Statement of Damages and Costs,” after the
commissioners have assessed 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.
Tex. Prop. Code Ann. § 21.048 (emphasis added). Sections 21.018(a) and 21.048
were both previously part of articles 3265(5) and 3266(6) of the Texas Revised Civil
8
Under Rule 74 of the Texas Rules of Civil Procedure, “Filing With The Court
Defined,” the Supreme Court states:
The filing of pleadings, other papers and exhibits as required by these
rules shall be made by filing them with the clerk of the court, except
that the judge may permit the papers to be filed with him, in which event
he shall note thereon the filing date and time and forthwith transmit
them to the office of the clerk.
Tex. R. Civ. P. 74. Because the Award from the commissioners is filed with the court
during the administrative phase of a condemnation proceeding, Rule 74 is not
controlling. See generally City of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex. 2006)
(“Upon the filing of objections, the award is vacated and the administrative
proceeding converts into a judicial proceeding.”); Rayburn v. State, 356 S.W.2d 774,
774 (Tex. 1962) (the statutory time period for filing an objection to a condemnation
award is not enlarged by Rule 4 of the Texas Rules of Civil Procedure because the
proceeding is administrative in nature).
18
Statutes. In article 3265(5), the legislature required the commissioners’ decision and
all papers connected with it to be filed “with the county judge.”9 Under the
predecessor statute, the filing of the award with the county judge is what “trigger[ed]
the twenty-day limitation period within which to file objections to the
award.” See Lemmon v. Giles, 342 S.W.2d 56, 60 (Tex. Civ. App.—Dallas 1960,
writ dism’d); Whetstone v. Urban Renewal Agency, 655 S.W.2d 357, 359 (Tex.
App.—Amarillo 1983, writ ref’d n.r.e.). In receiving the filing of the papers, the
judge acts in an administrative and not a judicial capacity. Id.Under the Texas Property Code provisions pertaining to condemnation, the
trial judge continues to act in an administrative capacity until timely objections are
filed. See Amason v. Nat. Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984); In re
Energy Transfer Fuel, LP, 250 S.W.3d 178, 181 (Tex. App.—Tyler 2008, original
proceeding). Like the predecessor statutes, Chapter 21 continues to delegate to the
judge of the trial court with jurisdiction administrative duties that must be completed
by the judge once the findings of the commissioners have been filed “with the court.”
9
Article 3265(5) of the Texas Revised Civil Statutes contained the following
language:
“When the commissioners have assessed the damages, they shall reduce their
decision to writing, stating therein the amount of damages due the owner, if any be
found to be due, and shall date and sign such decision and file it together with all
other papers connected with the case promptly with the county judge.”
19
See Tex. Prop. Code Ann. § 21.049. And, like the predecessor statute, it is the filing
of the findings of the commissioners “with the court” that triggers the beginning date
of the twenty-day period. So, the declaration by the legislature that the enactment of
the Property Code, Chapter 576, Senate Bill No. 748, was “an Act relating to
adoption of nonsubstantive revision of the statutes relating to property,” along with
the language in the expressly referenced predecessor statutes, and reading Chapter
21 as a whole, an argument might be made that “with the court” is consistent with
the language in the predecessor statue that stated it would be filed “with the county
judge” and also consistent with the administrative phase of the condemnation
procedure outlined in Chapter 21.
That said, I conclude on the record now before us we need not decide whether
the phrase “with the court” can be reconciled with the predecessor statute nor must
we conclude that “with the court” necessarily means “with the judge” or includes
“with the clerk of court” because the letter and “proposed Award” that the State e-
filed with the clerk of the court on Friday, April 16, 2021, merely asked the clerk to
present a “proposed Award” to the Judge and the “Award” that was attached
contained incomplete information for costs, and a section of the Award expressly
required the trial Judge to insert the date of when it was “filed with the court.”
On Monday, April 19, 2021, the Award was presented to and filed with the
trial judge, the trial judge filled in the date the Award was filed with her, an amount
20
for the fees to be paid each of the commissioners was added to the cost section of
the Award, and the trial judge signed the Award and instructed the clerk of court to
send notices pursuant to section 21.049. Further, April 19, 2021, is the same date
referenced in the clerk’s cover letter sending notices pursuant to section 21.049.10
So, under the specific facts in this case, I agree with the Majority that the twenty
days in this case should have been calculated from April 19, 2021, not April 16,
2021. Therefore, the objections were timely filed.
__________________________
LEANNE JOHNSON
Justice
Concurrence Delivered July 27, 2023
10
The trial court judge stated in her Final Judgment that “the special
commissioners rendered their decision and Award in writing and filed the Award
with the judge of this Court on April 16, 2021.” The trial court also stated that, “It
appears to the Court, and it is so found, that no objections to the Award or decision
were filed within the time provided by law and that said Award has been filed with
the Clerk of this Court.” The statement in the Final Judgment finding that the Award
was filed with the judge of the court on April 16, 2021, is contrary to the documents
on file in the record which confirm the Award was not filed with the judge of the
trial court until April 19, 2021.
21