law-condemnation | eminent domain | inverse condemnation | takings claim | fees and sanctions |
CONDEMNATION - EMINENT DOMAIN
The Texas Supreme Court has held that private property may be taken only for public use. Borden v.
Trespalacios Rice & Irrigation Co., 98 Tex. 494, 86 S.W. 11, 15 (1905). What is public use is a question of
law.[4] Tenngasco Gas Gathering 864*864 Co. v. Fischer, 653 S.W.2d 469, 474 (Tex.App.-Corpus Christi
1983, writ ref'd n.r.e.). But when the legislature delegates to an entity the power to condemn, and the entity
condemns the property for public use, the extent to which the property is taken is a legislative question.
Block House Mun. Util. Dist. v. City of Leander, 291 S.W.3d 537, 541 (Tex.App.-Austin 2009, no pet.); see
Hous. Auth. of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 85-86 (1940); Harris County
Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303, 316 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In other
words, the legislative declaration that the use is presumptively public is binding on courts unless the use is
"clearly and palpably" private. Higginbotham, 143 S.W.2d at 83. The entity's power to condemn is subject to
judicial review, however, when there is a showing of bad faith, arbitrary or capricious action, or abuse of
discretion. Block House Mun. Util. Dist., 291 S.W.3d at 541; see Malcomson Rd. Util. Dist. v. Newsom, 171 S.
W.3d 257, 268-69 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).
The Texas Supreme Court also has held that when a statute vests a governmental agency with discretionary
authority to condemn, the agency's determination of public necessity is presumptively correct. FKM P'ship,
Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 629 (Tex.2008). The condemnor
generally determines how much land to take. Zboyan v. Far Hills Util. Dist., 221 S.W.3d 924, 930 (Tex.App.-
Beaumont 2007, no pet.) If a statute delegating the eminent-domain power does not require proof of
necessity, as is the case here, the condemnor need only show that its governing authority determined that
the taking was necessary. See Pizzitola v. Houston Indep. Sch. Dist., No. 13-05-249-CV, 2006 WL 1360838,
at *5 (Tex.App.-Corpus Christi May 18, 2006, no pet.) (mem.op.); Anderson v. Teco Pipeline Co., 985 S.W.
2d 559, 565 (Tex. App.-San Antonio 1999, pet. denied).
As with the "public use" requirement, this determination is conclusive unless there is a showing of bad faith,
arbitrary or capricious action, or abuse of discretion. See FKM P'ship, Ltd., 255 S.W.3d at 629; Coastal
Indus. Water Auth. v. Celanese Corp., 592 S.W.2d 597, 600 (Tex.1979). It is the nonmovant's burden, as
the objecting party, to demonstrate that the school district's action was arbitrary and capricious. Pizzitola,
2006 WL 1360838, at *5 (citing Austin v. City of Lubbock, 618 S.W.2d 552, 555 (Tex.Civ.App.-Amarillo
1981), rev'd on other grounds, 628 S.W.2d 49 (Tex.1982)). A condemnee can make this showing if he can
negate any reasonable basis the condemnor had in determining what and how much land to condemn.
Newsom, 171 S.W.3d at 269.
Circle X Land & Cattle Co., Ltd. v. Mumford Indep. Sch. Dist., 325 S.W.3d 859, 868 (Tex. App.-
Houston [14th Dist.] 2010, no pet. h.) (holding, in summary-judgment context, that landowner's
evidence of industry standard, which failed to specifically discuss circumstances of case at hand, did
not raise material raise fact issue concerning whether condemning authority had acted in arbitrary
and capricious manner).
RECENT EMINENT DOMAIN DECISIONS FROM THE TEXAS SUPREME COURT
State of Texas v. Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam)
(condemnation appeal, state prevails)
State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)(award of fees for landowner's
expenses reversed on condemnor's petition) Justice O'Neill delivered an opinion concurring in part and
dissenting in part. (would remand case to trial court for consideration of sanctions against state for late
amendment of pleading)
FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil
Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's recovery
of fees, partial nonsuit)
Justice Willett delivered an opinion concurring in part and dissenting in part.
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)
(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake,
condemnation power)
PR Investments and Special Retailers, Inc. v. Texas, No. 04-0431 (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation proceeding, effect of change in plans for condemned property,jurisdiction of trial court)
AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (eminent domain, condemnation,
sufficiency of legal description, UDJA, jurisdiction of Harris County Civil Courts at Law)
AIC MANAGEMENT v. RHONDA S. CREWS, CURTIS CALDWELL CREWS, ANNETTE CREWS, DENISE
CLAUDEN CREWS, AND CLAUDE CREWS, JR., THE HEIRS OF EMMA CREWS, VALDA CREWS, AND EVA
FAY GROSS, AND ALDINE INDEPENDENT SCHOOL DISTRICT; from Harris County; 1st district
(01-03 01178-CV, ___ S.W.3d ___, 02-03-2005) (Opinion of the First Court of Appeals - by Higley)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
Justice Willett filed a concurring opinion.
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