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Section 3: Procedure Before Special Commissioners’ Hearing

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Witnesses and Appraisal Reports for Eminent Domain

ROW PD recommends appraisal and other expert witness(es) for special commissioners' hearing. OAG may recommend (supported by specific justification) that specific expert witnesses be contracted. The ultimate decision whether such witness(es) is placed under contract is a TxDOT determination.

The ROW attorney, upon forwarding the eminent domain file to the OAG with a transmitting memorandum, will copy the Right of Way Project Manager (ROW PM). Upon receipt of the memo, and if the appraisal report has not been updated for eminent domain purposes, ROW PD will instruct the appraiser to appraise or update their appraisal reports of the subject property for the special commissioners' hearing.

Refer to TxDOT's ROW Appraisal and Review Manual for detailed procedures on selecting witnesses, requirements concerning the use of additional appraisers, and the need for updated, revised or new appraisals.

If the AAG handling a case has concerns regarding an appraisal that is to be used in an upcoming legal proceeding, the AAG should detail those concerns to TxDOT in writing. After reviewing the concerns expressed, ROW PD determines the need for obtaining additional or revised appraisals.

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Suggestions for Preparation and Use of Court Exhibits

When preparing or obtaining necessary exhibits, TxDOT should consult with the appraisers and the representative of OAG regarding exhibits to be used at special commissioners' hearing or trial. These exhibits become State property and remain available for future needs.

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Communications with the Office of the Attorney General

After reviewing the ED Submission and obtaining any necessary revisions, the ROW attorney will submit the ED package to OAG.

OAG is solely responsible for acquiring the property through legal means once in possession of the file. TxDOT should coordinate with OAG regarding the recommended timing of the suit and the desired possession date of the property interest. Any needed revised ROW-E-49 Request for ED Proceedings forms should be submitted to and reviewed by the ROW attorney for submittal to OAG.

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Assisting the Office of the Attorney General

For more information, refer to Filing of ED Petition & Related Court Papers in the Eminent Domain Guide. TxDOT assists OAG in:

TxDOT should inform OAG when the above actions are taken and should send to OAG:

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  • copies of letters or other communications advising special commissioners of their appointment;
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  • copies of the Order Appointing Special Commissioners (should also be sent by TxDOT to each of the parties named in the condemnation petition);
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  • a letter to or other communication with the person coordinating reservation of a room for the hearing; and
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  • letters or other communications advising of the setting of the hearing.
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Checking Title for Correctness

When TxDOT receives the documents proposed by the AAG for e-filing ED proceedings, ROW PD should send a copy of the proposed Plaintiff's Statement (Original Petition) to the title company involved in the ED proceedings, for approval of the parties joined in the lawsuit to ensure the State secures clear title to the property interest.

If any error was made in naming the parties, or if a joinder of additional parties becomes necessary, TxDOT must immediately notify the OAG so that corrective action can be taken, preferably before the petition for condemnation is filed and, in any event, sufficiently in advance of the special commissioners' hearing to permit the petition to be amended and the additional party to be served with timely notice of hearing.

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Filing of Plaintiff's Statement/Petition and Notice of Lis Pendens

OAG will prepare a lis pendens notice on all eminent domain proceedings. This is a legal document filed in the official records or property records of the county where the property is located, giving notice to the public that a lawsuit regarding the property has been filed. Care must be taken to ensure that the ED cause number is included in and the property description is attached to the filed lis pendens. This document makes any subsequent action taken on the property subject to the State's eminent domain suit.

Upon e-filing the condemnation petition, the OAG will send a copy of the filed petition and the Notice of Lis Pendens to the ROW PM. The Notice of Lis Pendens should be signed and dated by the TxDOT representative as “Agent for the State of Texas”, and acknowledged before a notary public or the clerk of the court. The notice and the acknowledgment must be signed and acknowledged after the Plaintiff's Statement is filed, even though both tasks should be accomplished on the same date if possible (otherwise new interests could arise between the filing of the petition and the time the lis pendens is filed in the official records of the county). Under no circumstances is the notice to be dated or acknowledged prior to the filing of the statement. If the file-stamp or the date of the document predates the filing of the statement, even by a minute, the lis pendens is void.

Care also should be taken to insert the cause number of the proceedings. A file-marked copy of the recorded lis pendens should be sent to OAG. See Petition For Condemnation or Lis Pendens in the Eminent Domain Guide for additional guidance.

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Notice of Lis Pendens - Required Service on Interested Parties

When TxDOT files a lis pendens in the county's official/real property records in connection with an eminent domain proceeding, Texas Property Code Section 12.007(d) requires that not later than the third day after the date the lis pendens is filed in the county's official/real property records, ROW PD must, via one of the methods of service discussed below, serve or cause a copy of the Notice of Lis Pendens to be served on each party to the proceeding who has an interest in the affected real property. “Each party to the proceeding” means ALL parties to the proceeding that are identifiable and locatable, not just the fee owner(s).

Note: While the statute does not expressly require that a copy of the condemnation petition be provided with the Notice of Lis Pendens, we recommend doing so, to provide the recipient a context for the service of the lis pendens.

Failing to timely serve the Notice of Lis Pendens in compliance with the statute enables any interested party to file a motion under Property Code Sec. 12.0071 to “expunge” from the official records the previously filed lis pendens. The court is required to order the Notice of Lis Pendens expunged “if the court determines that...(3) the person who filed the notice for record did not serve a copy of the notice on each party entitled to a copy under Section 12.007 (d).” An expunction of the lis pendens could potentially disrupt a condemnation proceeding or adversely affect the quality of the State's title, should post-lis pendens interests arise.

It is recommended that a cover letter accompany the Notice of Lis Pendens stating that: “In compliance with Property Code Section 12.007(d), we enclose a copy of the Notice of Lis Pendens the State of Texas has filed in the County's official records, related to an eminent domain proceeding filed by the State to acquire certain property for highway purposes (see enclosed petition for additional information). This required statutory notice of the filing of the lis pendens requires no action by you at this time. In the future, you will receive advance notice of the date of the scheduled special commissioners' hearing.”

Methods and proof of service of Notice of Lis Pendens:

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  • A copy of the lis pendens should be served on all known / locatable holders of any interest in the property to be acquired by eminent domain (or on an authorized agent or attorney). It is believed that the legislature did not intend for unknown or known /unlocatable parties cited by publication to be served with Notice of Lis Pendens.
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  • The Notice of Lis Pendens can be served in person, by mail or even by fax (but not by email). However, the preferred method of service is to send the copy of lis pendens and petition by certified mail, return receipt requested, to the party's last known physical or post office box address. This service method is strongly recommended, because an interested party could, during the pendency of the eminent domain proceeding, file a motion to expunge the lis pendens, and the State may then be required to prove compliance with the 3 day notice requirement. Personal service could be difficult to prove if the person personally delivering the Notice of Lis Pendens is no longer available at the time the interested party challenges the State's compliance with the statute. Similarly, it may be difficult to prove that a fax number belonged to the party as the time the notice was faxed.
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  • Service of Notice of Lis Pendens via certified U.S. mail is deemed by the Texas rules of civil procedure to occur at the time the notice is deposited in the U.S. mail. In other words, when the party actually receives the mailed notice is irrelevant, so long as it is mailed on or before the third day after the lis pendens is filed of record. Since proving compliance with the 3 day notice requirement would require the State to prove the date the notice was mailed, it is strongly recommended that “proof of mailing” of the notice be obtained from the post office (white receipt for certified mail, stamped by the post office at the time of mailing with the date the item was mailed). This receipt would provide independent documentary proof of the timely mailing of the notice.
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  • Until the eminent domain proceeding is concluded, documentation proving the method and timeliness of the services of lis pendens should be retained by ROW PD.
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Use of Court Reporters

A certified court reporter can, but is not required to, be made available to take full notes of testimony given during a special commissioners' hearing. However, the AAG may ask a representative from TxDOT to arrange for the court reporter. While the decision to have a court reporter is otherwise discretionary, it should be strongly considered for all but the smaller, simpler cases, because a transcript may be helpful or become necessary for trial preparation in the event objections are filed by either side. Depending on the court docket, these cases can become very old before finally going to trial. The transcript will ensure continuity in the event TxDOT personnel or the AAG involved in the case are not available at the time of trial. The transcript should be ordered as soon as objections are filed unless advised otherwise by the AAG. If no objections are filed, it is not necessary to order a transcript from the court reporter.

Fees for these services will vary from one district to the other. The court reporter of the court where the case is heard will record testimony during the trial.

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Settlements of Eminent Domain Lawsuits Before Commissioners' Hearing (for State)

If after the eminent domain file has been transmitted to OAG, but prior to the special commissioners' hearing, the property owner(s) agree to accept the State's offer based on the approved value, the OAG is to be notified immediately.

If the eminent domain proceedings have not yet been filed, and the title is clear or can be cleared without legal action, the purchase may be completed according to prescribed negotiation procedure and closing by deed.

If eminent domain proceedings have been filed and the state of title permits closing by deed, the OAG shall first obtain a waiver of any attorney's fees and landowner expenses the landowner may otherwise be entitled to upon the State's voluntary dismissal of the eminent domain proceeding. The proceedings will not be dismissed until the purchase is completed.

Otherwise, if closing by deed is not indicated, such that the interests of parties who have been joined in the petition (other than the fee owner) cannot be released or extinguished, the settlement can be implemented by a stipulated value at the special commissioners' hearing, with any necessary apportionment to be made by the judge after the deposit of the award proceeds.

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