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Section 2: Eminent Domain Submission Checklist

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Reference

For detailed instructions on completing Form ROW-E-49, refer to Instructions for Completing ROW-E-49 in this volume.

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Prior to Submitting Eminent Domain Request

If at any time it is verified the landowner is represented by an attorney, all communications must be made to the attorney. The department should request verification of the attorney's status. Verification should be in writing from the property owner verifying the attorney represents them. In certain circumstances the attorney may authorize you to communicate with his/her client.

  • In the case of a final offer letter you must advise the attorney of the requirement to send this to the landowner - also send a copy to the attorney.
    • Send final offer letter (each owner must receive).
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    • Determine whether a housing supplement is involved and note this in the transmittal memo forwarding the Form ROW-E-49.
  • Submit Eminent Domain Request
    • Submit Form ROW-E-49. Refer to checklist.
    • Ensure updated appraisal is requested.
    • Ensure title update is requested.
    • If updated appraisal value increases, re-institute negotiations with new final offer letter.
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Filing of ED Petition & Related Court Papers

Once the ROW program office in Austin sends the request for Condemnation to the Attorney General, all communications with the landowners, their attorney or any party named in the case must originate from the AAG assigned. Clear any requests or correspondence with the assigned AAG. An exception to this procedure is the formal serving of Notices and issuance of final offer letters.

The following procedures should be performed after receipt of Attorney Generals’ papers (ED Petition and related documents):

  • Request title company approval of parties to the condemnation (if appropriate).
  • File original Petition for Condemnation signed by the AAG.
  • File Lis Pendens signed by a Texas Department of Transportation employee and notarized.
  • Send a copy of the Lis Pendens to each of the parties by certified mail, return receipt requested.
  • File Order Appointing Commissioners signed by the Judge of the Court in which the proceeding will be held.
  • Send a copy of the executed Order Appointing Commissioners to each of the parties.
  • If the Judge allows both parties to suggest Commissioners and AAG authorizes you to do so, notify owner/attorney you are requesting appointment of Commissioners.
  • Establish and coordinate date and location of Hearing with:
    • Commissioners
    • Property owner/attorney
    • Appraiser
    • AAG
    • Court Reporter
    • Engineering witness
    • Any expert witness if appropriate.
  • Obtain Commissioners' signatures on Oath of Commissioners, Order Setting Hearing and Notices of Hearing.
  • Obtain Commissioners' Social Security Numbers.
  • File Oath of Special Commissioners.
  • File Order Setting Hearing (must have Cause Number).
  • Serve Notices of Hearing. (Personal service must be made no later than the 20th day before the scheduled Hearing date.)
  • Fill out Services of Notice.
  • File Notice of Hearing and Services of Notice. A separate Notice of Hearing must be issued, served, returned and filed for each party joined.
  • If authorized by AAG, notify parties of any change in location and date of Hearing.
  • Send letters to Commissioners, Court Reporter, appraiser(s), technical experts and all State witnesses reminding them of date, time and location of the Hearing.
  • Send file-marked copies of papers filed to the AAG.
  • Arrange prehearing conference with AAG and State witnesses.
  • Have exhibits requested by AAG prepared and ready for use in prehearing conference.
  • Have Commissioners view property if appropriate.
  • Review Award before the Hearing. In particular, check names, dates, property descriptions, and special clauses.
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Attend Special Commissioners' Hearing

  • Take notes during the Hearing in anticipation of filling out Form ROW-E-73
  • Ensure Commissioners have signed the Award.
  • Immediately following the Hearing, meet with the AAG to discuss actions to be taken on the Award.
  • Arrange for Award to be signed by the Judge.
  • Ensure the Award is filed after the Judge signs.
  • Send Form ROW-E-73 to the ROW program office in Austin as soon as possible after the Hearing.
  • Ensure copies of the Award or notice of the Award are mailed out by the Court.
  • Obtain fully signed copy(s) or certified copy(s) of the Award.
  • Send file-marked copy to title company - request title commitment.
  • Ensure request for payment of Commissioners' Award is sent to the ROW program office in Austin, along with a certified copy of Award and copy of title commitment. (Refer to Payment Procedure for Condemned Parcels.)
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If No Objections

  • As soon as possible, after the close of business of the first Monday following 20 days, verify no objections were filed.
  • Receive warrant and Judgment in Absence of Objections.
  • Prepare Notice of Deposit (signed by a Texas Department of Transportation employee).
  • Arrange for Judge to sign Judgment in Absence of Objections.
  • Arrange for deposit of money and Judgment to be filed.
  • Serve Notice of Deposit, by sending a copy of the Notice of Deposit via certified mail or fax to owner or attorney of record and other parties on the same day the money is deposited.
  • Arrange for a certified copy of the Judgment to be filed in the Property Records of the County where the parcel is located.
  • Request title policy.
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  • Send file-marked copies of all documents filed to the AAG and the ROW program office in Austin.
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If Objections Filed

  • File objections when received from the AAG.
  • As soon as possible, after the close of business of the first Monday following 20 days, verify if objections were filed by the defendant.
  • Order transcript if objections are filed.
  • Receive warrant and prepare Notice of Deposit.
  • Have appraiser take pictures and inspect property on the day money is to be deposited.
  • Arrange for deposit of warrant in the Registry of the Court where the proceedings were conducted - file Notice of Deposit.
  • Serve Notice of Deposit by sending a copy of the Notice of Deposit via certified mail or fax to owner or attorney of record and all other parties on the same day the money was deposited. Be sure date is filled in.
  • Send file-marked copy of Notice of Deposit to AAG and the ROW program office in Austin.
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Mediation

  • Department receives request for mediation from Assistant Attorney General. Encourage Assistant Attorney General to send the mediation notice as soon as possible if Judge sets date. Mediation maybe set without Judge’s order.
  • Order may contain date of Mediation and name the Mediator - if not, department coordinates with Assistant Attorney General regarding Mediator and date.
  • Department decides who will represent them at Mediation, i.e., District Engineer, ROW Manager, etc., and coordinates dates with them.
  • Department will contact the ROW program office in Austin to determine the names of the Division representatives and coordinate dates. Note: Either the Director of the ROW Division or the Director’s designee must be available by telephone for the Mediation.
  • Department confirms mediation date with all parties and requests dates and availability for pre-mediation conference call with the Assistant Attorney General and the ROW program office in Austin. ROW program office in Austin will coordinate with the ROW Division Director or his designee and the ROW Review Appraiser. Consideration should be given to the amount of time needed for department personnel to prepare analysis.
  • Department Mediation Coordinator sets pre-mediation and sends Form ROW-MED and letter confirming all dates to all parties.
  • Department Review Appraiser prepares a written analysis of all appraisals and arrives at a suggested value for settlement. Note: This information is discussed with department's Mediation Representative(s).
  • The department’s appraisal analysis should be faxed to the Assistant Attorney General and ROW program office in Austin prior to the pre-mediation conference.
  • Assistant Attorney General's Position Statement is received and reviewed by the department's Mediation Coordinator, ROW program office Review Appraiser and the Director of the ROW Division or his designee.
  • Pre-mediation conference call is held between department representatives and the Assistant Attorney General.
  • ROW program office in Austin will determine the amount of settlement authority. (Note: Cannot settle for more without calling for additional authorization)
  • Mediation is attended. At the conclusion of the mediation, the department telephones the ROW Division Director or designee with the result.
  • When the scheduled mediation is over, if a settlement has not been reached on all outstanding issues, the mediation is considered complete and may not be extended. Any further settlement offers will be processed in accordance with normal settlement procedures.
  • Within ten (10) days of the mediation, the Assistant Attorney General shall send a post-mediation settlement memorandum detailing the events of the mediation to the ROW program office in Austin and copy the department representative. The department representative is not expected to respond.
  • The ROW program office in Austin will reply to the Assistant Attorney General’s memorandum confirming the settlement. The department representative will receive a copy.
  • If settled, the Assistant Attorney General will prepare an Agreed Judgment and send it to the department to be processed.
  • The department submits a payment request to the ROW program office in Austin to pay the mediator. This cannot be paid until after Mediation
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Settlements

  • Memorandum regarding proposed settlement is received from the AAG.
  • Send copy of memorandum to review appraiser and ask for a review and analysis of all appraisals of the subject parcel to determine whether the proposed settlement can be supported from an appraisal viewpoint.
  • Simultaneously, the Right of Way Manager or their delegate should review the proposed settlement from an administrative viewpoint. (Should try to use at least one of the eleven reasons given in Actions To Be Taken by State on Commissioner’s Award and Filing of Objections and support with additional reasons shown.)
  • Send memorandum responding to the proposed settlement to the ROW program office in Austin.
  • ROW program office in Austin replies to AAG and sends a copy to the department representative.
  • If proposed settlement is accepted, AAG will prepare Agreed Judgment and may send it to the department to secure parties' signatures. (AAG will direct this action.)
  • File the Agreed Judgment in the Court record of the Court where the proceeding is pending and certified copy(s) is (are) ordered. If Judgment is equal to or less than the Award of the Special Commissioners which has been deposited into the Registry of the Court, one copy is ordered. If the Agreed Judgment is for a greater amount, two copies are ordered.
  • If Agreed Judgment is for an equal or lesser amount, the certified copy is filed in the Property Records of the County where the parcel is located.
  • If Agreed Judgment is for a greater amount, one certified copy is used to request additional funds from the ROW program office in Austin. (Note: payee(s) shown in Agreed Judgment.)
  • Warrant is received and delivered to payee shown in Agreed Judgment.
  • If delivered to other than the Court, AAG should send a Release (or Satisfaction) of Judgment to be signed when warrant is delivered.
  • If applicable, Release (or Satisfaction) of Judgment is filed in the Court record where the proceeding is pending.
  • A certified copy is ordered and filed in the Property Records along with the second certified copy of the Agreed Judgment.
  • Send a completed Form ROW-E-74 to the ROW program office in Austin. (If Agreed Judgment is less than the Award of Special Commissioners, send a copy of the Agreed Judgment with the Form ROW-E-74.)
  • Order title policy.
  • Send file-marked copies of all documents filed to the AAG and the ROW program office in Austin.
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Jury Trial

  • File request for Jury and pay Jury fee.
  • Coordinate service of Citation (a/k/a precepts) with Objections to Award attached with AAG.
  • Respond to discovery requests by AAG.
  • Coordinate pretrial meetings with all State witnesses as requested by the AAG.
  • Ensure additional appraisers, technical experts/witnesses are contracted.
  • If a Guardian or Attorney Ad Litem was required for the Special Commissioners' Hearing ensure a new one is appointed for the trial.
  • Coordinate preparation of exhibits as requested by the AAG.
  • Attend trial and assist AAG as requested.
  • Take notes during the trial in anticipation of filling out Form ROW-E-74.�
  • File Judgment with Court.
  • Obtain certified copy(s) of Judgment
    • One copy if Jury Award is the same as or less than the Award of Special Commissioners.
    • Two copies if Jury Award is greater than Award of Special Commissioners.
  • If Jury Award is the same as or less than Special Commissioners' Award, file certified copy of Judgment in Property Records.
  • Send file-marked copies of all documents to AAG and the ROW program office in Austin.
  • If Jury Award is greater than Special Commissioners' Award, send certified copy of Judgment with request for additional funds to the ROW program office in Austin.
  • Warrant is received and deposited in the registry of the Court.
  • Prepare Form ROW-E-74 and forward to the ROW program office in Austin. (If Jury Award is less than the Award of Special Commissioners, send a copy of the Judgment with the Form ROW-E-74.)
  • Request title policy.
  • Send certified copy of Judgment and title policy to the ROW program office in Austin.
  • Send file-marked copy of Notice of Deposit to AAG and the ROW program office in Austin.
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  • File certified copy of the Judgment in the Property Records of the County where the parcel is located.
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