Eminent Domain Report

In 1831, the colony of Gonzales requested a cannon for defense that was granted by the Mexican authorities.  This cannon was a Spanish made bronze six-pounder.  The grant had one condition; the cannon had to be returned when asked.  By 1835, the political climate had changed in the area and Mexico had asked the Texians to return the cannon.  The Texians response: “Come and Take It”.  This led to a Mexican military response against the Texians with the colonists producing a flag of a white field with stitching of a black star, a cannon, and the words: COME AND TAKE IT.  The Texians faced off against the Mexican forces in the first skirmish of the Texas Revolution with the battle and its flag becoming deep seated lore of the Lone Star State.

Obviously, we have come a long way as a society since the 1830s.  When it comes to acquiring property for public purposes no one is sending forces, but there are specific rules and procedures that must be followed that allow the property owner certain rights when property is being condemned in Texas.

First and foremost, with very limited exceptions, property being condemned in Texas must be for a public purpose.  For the purpose of this post, the assumption is made that public purpose is established, though the statute on what can and cannot be condemned and for what purposes can be located at Tex. Government Code Title 10, Subtitle E, Chap. 2206, Sec. 2206.001.  And a whole post could be assigned to Sec. 2206.001 (c) (6) allowing for condemnation for a sports and community venue project approved by voters at an election held on or before December 1, 2005 (AT&T Stadium).

The procedure for Eminent Domain in Texas can be found in the Tex. Property Code Title 21.  Long before a Petition in Condemnation can be filed, an authority with the power to condemn must follow certain procedures, meaning the authority cannot just “come and take it.”  It is not that simple. 

The property code requires that the entity with eminent domain authority must start the matter by making an initial offer to the landowner by certified mail.  Best practices are not only to comply with the statute, but the offer should also be mailed regular or overnight, and personal contact with the owner should be made.  The offer must include all appraisals on the property made by the entity within the last 10 years of the date of the offer.  This is just the beginning, as the offer must be a bona fide offer to acquire the property voluntarily. 

Tex. Property Code Sec. 21.0113 lays out what qualifies as a bona fide offer.  Not only must the initial offer be made in writing as discussed above, but it must include a copy of the Texas Landowner Bill of Rights, bold type and larger font directing if the offer includes damages to the remaining property or an appraisal indicating the same, an instrument of conveyance (with some exception if the landowner either already has a conveyance and by agreement), the name and contact information of a representative of the entity and gives the landowner a period greater than 30 days.  So now can a Petition in Condemnation be filed? … No.

After the landowner has had the offer for at least 30 days without an agreement being made, the entity with the eminent domain authority must make a final offer in writing.  This time the final offer must be accompanied by an appraisal and the final offer must be equal or greater than the amount of the appraisal.  Typically, this is marked “final offer” and would include all the information in the initial offer.  The final offer must give the landowner a minimum of 14 days to respond.  If no agreement is reached, the entity may now – finally – file a petition.

Tex. Property Code Sec. 21.012 governs what must be in the petition (exception made for water rights in sec. 21.0121). The Petition in Condemnation must describe the property being condemned, state with specificity the public use for the acquisition, identify the owner if known, confirm that the parties cannot agree, and state that the entity made a bona fide offer to acquire with the Texas Landowner Bill of Rights. 

To make things more interesting, the entity must know where to file the petition.  So, the entity still cannot “come and take it”, not yet.  The petition must be filed in the county where the property is located as Eminent Domain is considered an In Rem (against the property) action; however, if the owner resides in a county in which at least part of the property is being condemned, then venue is in the county where the owner resides.  This is not as simple as it sounds because in Texas different courts have jurisdiction over condemnation actions.  For instance, in Bexar (San Antonio) County and Travis (Austin) County the Petition in Condemnation is filed in Probate Court.  In Dallas County, the Petition in Condemnation is filed in the County Court at Law, while in Harris (Houston) County the petition may be filed in District or County Court at Law depending on certain factors.   Further, some counties do not have a County Court at Law so you must file in the District Court.  The entity must know where to file the Petition.

Now can the entity “come and take it”?  Not yet.  Once the Petition is filed, and presumably served, the court with jurisdiction will enter the case into an administrative phase.  The court will appoint three Special Commissioners; these are landowners in the county that are disinterested along with two alternates.  Usually in larger counties these commissioners are real estate professionals or attorneys.   Each side is given a time to strike one commissioner from the appointed list with the alternate filling the space.  The parties are given no less than 20 days after the petition has been filed to make these selections.  Once this time runs, the court will issue an order appointing the Special Commissioners and they will move to set a hearing; however, the hearing before them cannot be any less than 20 days after the order appointing the Special Commissioners.  Further, the Special Commissioners are to schedule the hearing at “the earliest practicable time” and this is typically 30 to 90 days out depending on availability.  So, getting to hearing takes some time, and the entity seeking to acquire still does not have possession.

A future post will address the Special Commissioner’s hearing and what comes next, including the steps towards possession.   What should be a takeaway is that there is no way an entity with the power of eminent domain in Texas is going to simply “come and take it.”  That is not to say the acquisition will not happen, because it will, but it takes time and the rights to the landowner must be considered.  It is important that any entity needing to use its eminent domain authority build into the project timeline the requirements and the time needed for each process to take place with ample buffer time to complete the process. 

As for the cannon, it is hard to say.  Some reports are that it was moved to the Alamo and later cast into a bell that hangs in St. Mark’s Episcopal in San Antonio.  Other reports are it was buried in a field to be found later.  Regardless of its eventual fate, it was not lost that day in Gonzales as the Texians held their ground and no one could “Come and Take It.”