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Section 4: Miscellaneous Procedures for LPA Acquisition in ED

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Commission Authorization of County Eminent Domain

Authority for counties to acquire highway ROW by purchase or condemnation is contained in Transportation Code, §224.003. To prevent the undue burden of TxDOT obtaining a separate minute order for each section of highway, with attached volumes of property descriptions, a policy and procedure was established by the Commission as set forth in Minute Order No. 42204. When a county requests formal verification of the State's request for the acquisition of certain ROW, furnish it a certified copy of Minute Order No. 42204, accompanied by a certification by the District Engineer or designee in accordance with Minute Order No. 42204. Certified copies of this minute order may be obtained from the ROW program office in Austin. This procedure will meet the requirements of Transportation Code, §224.003.

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Condemnation in City's Name

Contractual agreements with cities make special provisions for a city to initiate condemnation proceedings in its own name. In these cases, the property so acquired will be conveyed from the city to the State by an instrument acceptable to TxDOT. If no excess taking is involved, the consideration shown in the instrument of conveyance will read:

"XX% reimbursement of grantor's cost of $XXXXX as set forth in the final judgment in Cause No. XXXXX ."

If the taking is in excess of TxDOT needs, see Acquisition Involving Excess Taking in Right of Way Manual Vol. 2 - R/W Acquisition for the procedure to be followed.

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Procedure for Notification to TxDOT

Responsibility rests with LPAs to give prompt notice to TxDOT about all action taken in respect to condemnation proceedings. This includes written notification prior to filing of proceedings. The LPA must not initiate condemnation proceedings until authorized by TxDOT. Notice of the following events is required:

  • Date of filing the petition. The department should be furnished with a file stamped "copy of the petition."
  • Date of hearing before the Special Commissioners, as soon as it is set, and prompt notification of any postponements.
  • Date of the filing and the amount of the award, and whether the county or city plans to recommend appeal within the statutory allowable period. This should be furnished immediately to the department.
  • Date of filing of notice of appeal by either party.
  • Date of the jury trial, as soon as it is set.
  • Date and the amount of the jury verdict and whether the county or city intends to appeal.
  • Notice of appeal of the jury verdict by the property owner, if applicable.
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LPA Appeal of Unfavorable Awards

Whenever an award by the Special Commissioners is greater than the approved value, TxDOT and the LPA should make every effort to agree on whether or not to appeal the award. Although the final decision for appeal rests with the LPA, TxDOT's desires should be strongly considered by the LPA in making its final determination. In the event the LPA fails or refuses to file an appeal, the ROW program office in Austin will decide whether or not to recommend intervention by TxDOT in the condemnation proceedings.

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State Intervention in Eminent Domain

TxDOT has the right to become a party to ED proceedings at any time or stage and for all purposes, including the right of appeal. Any determination by the ROW program office in Austin to intervene should be made in a timely manner to give OAG time to prepare and file a written notice of appeal within the period allowed by statute, as outlined in Actions to be Taken by State on Commissioner's Award and Filing of Objections.

The immediate information needed to prepare an appeal on behalf of the State is as follows:

  • style of the case;
  • the docket number;
  • the court in which the case is pending; and
  • the amount and date of the filing of the written award by the Special Commissioners.

Send this information along with the department’s recommendation of intervention.

When it is determined that TxDOT will intervene, submit the following items to the ROW program office in Austin so that OAG can represent the State:

  • One ROW map for OAG.
  • Three copies of each property description for the parcel(s) involved.
  • Title policy commitment or Attorney's Certificate with attached statement that the parties before the court are all that are necessary and no other parties need be joined. The basis of this statement should be a recheck of the records to determine if a conveyance of all or any of the property has been made after the previous examination, and an examination of the court proceedings to safeguard against any possible omissions.
  • Recommendation of the appraiser or other witnesses on valuation for testimony in court proceedings. It will speed the acquisition of ROW if the recommendation is supported by comments from the department.
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Use of State Approved Appraisers and Expert Witnesses in Condemnation

See TxDOT's Appraisal and Review Manual for detailed procedures and responsibilities regarding LPA use of the State's approved appraisers and expert witnesses in condemnation.

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Exhibits for Eminent Domain Purposes

Furnish maps and other exhibits prepared by department personnel to the LPA. When an LPA desires to purchase aerial maps, special exhibits, related photographs and other similar materials for use in condemnation proceedings, TxDOT will reimburse the percent as shown in the contractual agreement of such costs if the department gives prior approval.

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Improvements Acquired in Eminent Domain

When property is acquired in fee or easement in the State's name in condemnation proceedings, title to all fixed improvements located on the property should also be acquired. The sample forms provided in this manual incorporate acquisition of improvements. These sample forms are not always used, however, and the department should emphasize to any LPA the need to acquire fixed improvements. Improvements acquired by the State in condemnation will be disposed of in the same manner as improvements acquired by negotiation.

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Settlements of Eminent Domain Lawsuits (for LPA)

Transportation Code, §224.005, and contractual agreements with LPAs provide that when ROW is acquired by negotiation, State participation will be based on the lesser of either the approved value, as determined by TxDOT, or the actual cost. For condemned ROW, State participation will be based on the final judgment, with the condition that TxDOT is notified in writing before filing the suit and that prompt notice is also given of all action taken.

Normally, if a Commissioners' Award is appealed, new or updated appraisals are obtained before proceeding to trial. If these new appraisals show a value greater than the original offer, TxDOT will notify the LPA that the new value supersedes the original approved value. The LPA may then re-negotiate on that basis and acquire title either by deed or by valid court judgment. TxDOT will not authorize the LPA to settle a case in an amount above the appraised value.

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