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Section 5: Payment of Owner's Litigation Expenses

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Procedure

If Federal funds are used in any part of a transportation project, the provisions of 42USC §4654 apply to LPA ROW acquisition projects.

In the event it is necessary to request the court to dismiss the condemnation proceedings due to the State's faulty petition, error in property description or parcel plats, etc., Property Code, §21.0195 now requires the court to conduct a hearing. The court may only grant such a motion if it is determined that the property owner's interest will not be materially affected by such dismissal. When the court does allow such a dismissal, in addition to the payment of the property owner's expenses incurred (including reasonable and necessary attorney's fees), the department is required to pay the property owner an allowance for the value of the department's use of the property while in possession and any damage the condemnation has caused to the property owner (all as determined by the court).

42USC §4654 concerns inverse condemnation where an owner files suit against a condemning authority contending that property rights have been taken without compensation. These suits take different forms and may be filed against the State, an LPA, or both. TxDOT and local governments must conform to the requirements of 42USC §4654 and LPAs should be instructed to include eligible costs described herein as part of the final judgment. Cost participation should be the same as participation in ROW acquisition on the project involved.

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Payment of Litigation Expenses (for LPA)

If Federal funds are used in any part of a transportation project, the provisions of 42USC §4654 apply to LPA ROW Acquisition projects.

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