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Section 3: Updated or New Appraisal Reports

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Procedure

After selection has been made of the appraisers or expert witnesses to be used in eminent domain proceedings, it remains R/W-PD’s responsibility to make the work assignments and be sure appropriate contract(s) have been prepared (see Chapter 2, Operating Procedures). In making assignments for updated or new reports, the assignment’s due date must provide the appraiser adequate time to complete the report properly. There should also be sufficient time for R/W-PD, ROW Division HQ, and OAG to complete the necessary reviews before the Special Commissioners’ Hearing or jury trial.

In preparing for eminent domain proceedings, additional appraisers or expert witnesses may be assigned besides those used for negotiation purposes.

The need for two or more appraisals should be based on one or more of the circumstances listed below. R/W-PD’s file should reflect the circumstance(s) that necessitated the additional appraisal(s):

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  • When experience has proven that the original appraiser (or appraisers), though competent as an appraiser, makes a poor or ineffective witness.
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  • When special or multi-purpose properties or uniquely complex valuation questions are involved, and the OAG deems it essential to have an appraisal from a person whose experience with such problems better qualify him or her to testify.
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  • When the nature of the case (extremely valuable property, for example), including indications from the property owner’s defense preparation, reflects, in the opinion of the OAG, that additional testimony will be a tactical advantage.
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  • When the original appraisal(s) are made by an appraiser(s) residing and doing their primary business outside the immediate community in which the parcel is located, it may be wise to have additional testimony from a local appraiser.
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  • When parcels involved in eminent domain proceedings are either severed or consolidated for trial purposes, thus making the original appraisal(s) inappropriate or improper. This action may be brought about by: (1) a decision of the OAG before filing the state’s petition; or, (2) by a court order sustaining a motion by the property owner’s defense counsel.
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  • When the original appraiser(s) may not be available for testimony at the Special Commissioner’s Hearing or jury trial, an assignment can be made to an additional appraiser(s).
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  • When a conflict of interest existed (or later occurs) that disqualifies the appraiser that originally appraised that specific parcel, immediate steps should be taken to secure an additional appraisal(s).

When a new appraiser has been selected to serve as a witness, he/she should be assigned to prepare an appraisal report in the same manner as the original appraiser(s) assigned for negotiation purposes (through an approved work authorization). After the appraisal report has been reviewed, the appraiser must have the time and funds available in his/her approved work authorization to perform any additional work required to prepare for testimony (updates, exhibits, meetings with the OAG, and, of course, actual time spent in testimony).

The updated, additional or third appraisal report will be prepared on form ROW-A-5.

For a Special Commissioner’s Hearing, R/W-PD will review and forward the updated or new appraisal report(s) to ROW Division HQ, along with form ROW-A-10. Any change in value would not necessitate a revised offer to the property owner before the Special Commissioners' Hearing. However, the updated or new appraisal should be provided to the property owner or their legal representative, since the appraisal will be basis of the state's testimony at the hearing.

Since the appraiser(s) will have to testify regarding the parcel’s value “as of” the day of the Special Commissioner’s Hearing, the updated or new appraisal report’s valuation date should be as current as possible, preferably within 90 days of the hearing date.

For a jury trial, updated or new appraisal report(s) will be prepared with a valuation date “as of” the date the Special Commissioner’s Award was deposited at the courthouse, as this constitutes the “date of taking.” These reports will be reviewed by R/W-PD. After all corrections have been made, one original copy of the report(s) should be submitted to the ROW Division HQ for processing.

It is essential that a full and complete analysis of the report(s) be given in R/W-PD’s cover memorandum when transmitting the appraisal report(s). This analysis should be equivalent to the “Comments and Conclusions on Values in the Appraisal Report” Section VI, on Page 3, of form ROW-A-10. The cover memorandum should also include any comments that are pertinent to the lawsuit involved. Finally, the cover memorandum should recommend the approval of the appraisal report(s) as witness material; and, it should include a statement on whether the appraiser(s) is considered an acceptable witness in the state’s eminent domain proceedings. (See Section 5, Commissioners’ Award and Settlement Value Analyses”) of this chapter for procedures relating to Special Commissioners’ Awards and recommending a settlement.)

R/W-PD will review the updated or new appraisal report(s) for jury trial. Once reviewed, R/W-PD will forward an original copy of the report to the OAG with recommendations in its transmittal memorandum.

If the review appraiser determines that an updated or new appraisal report does not conform with TxDOT appraisal guidelines, USPAP, or industry standards, the report(s) must nevertheless be submitted to R/W-PD with the reasons why the report is considered non-compliant, and/or the reasons for recommending the disqualification of the appraiser for testimony.

Based on recent court decisions, it is possible that all appraisers appraising a parcel in eminent domain proceedings may be subpoenaed. This may include the original appraiser(s), who prepared the initial report in negotiations, but was not recommended as a witness in the state’s eminent domain proceedings.

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