Section 3: Procedure Before Special Commissioners’ Hearing
Anchor: #i1001709Witnesses and Appraisal Reports for Eminent Domain
The District should recommend appraisal and other expert witness(es) for Special Commissioner's Hearing. OAG may recommend to the District (supported by specific justification) that specific expert witnesses be contracted. The ultimate decision of whether such witness(es) are placed under contract is a District determination.
Upon forwarding the eminent domain folder to the OAG with a transmitting memorandum, the ROW Division will provide the District with a copy of the memorandum. Upon receipt of the memo, and if the appraisal report has not been updated for eminent domain purposes, the District will instruct the appraiser to appraise or update their appraisal reports of the subject property for the Special Commissioners' Hearing.
Refer to TxDOT's Appraisal and Review Manual for detailed procedures on selecting witnesses, requirements concerning the use of additional appraisers, and the need for updating, 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 send information in writing detailing those concerns to the District involved. After reviewing concerns expressed, the District determines the need for obtaining additional or revised appraisals.
Anchor: #i1001738Preparation and Use of Court Exhibits
When preparing or obtaining necessary exhibits, the District should consult with the appraisers and the representative of OAG regarding exhibits to be used at Special Commissioner's Hearing or trial. These exhibits become State property and remain available for future needs.
Exhibits may include the following:
- a large location map, of a size, scale, and type appropriate to the urban or rural nature of the area, showing the property interest and all comparable property sales;
- a soil classification map of each comparable property sale in a rural area;
- photographs of each comparable property sale in an urban area;
- general neighborhood photographs showing conditions before highway construction;
- aerial photographs showing prior conditions and locating comparable property sales;
- enlargements of aerial photographs taken of rural project areas by the Natural Resources Conservation Service;
- aerial photogrammetry maps, especially when they show elevation contours. If these types of maps are used, the District should be prepared to send to OAG a witness (preferably a TxDOT PE or RPLS) who can testify to the accuracy of data on the map. In some cases, the witness (preferably an RPLS) may be asked to confirm that data shown on the photogrammetric map was verified by field survey.
In cases where a map was prepared by field survey only, accuracy of data on the map may be verified through use of property descriptions and computations presented by the responsible RPLS.
For any topographic map data presented, the RPLS should be prepared to testify that the survey was made by him personally or under his supervision.
For any property descriptions or parcel plat presented for boundary purposes, the RPLS must be prepared to testify that the survey was prepared by him personally or under his supervision.
For any data presented, the witness should expect to testify that the data is true and correct.
If topographic or planimetric details become critical to the legal proceedings, then District personnel should consult early with OAG regarding map (exhibits) requirements for trying the case so that there is time to make field checks before construction.
Anchor: #i1001815Communications with the Office of the Attorney General
The ROW Division sends a copy of the ED package to OAG after (1) the ROW Division completes processing of the Request for ED package, (2) the Commission's minute order authorizing ED procedures is received by the ROW Division, and (3) title review is completed by the ROW Division.
OAG is solely responsible for acquiring the property through legal means once in possession of the file. The District should coordinate with OAG about recommended timing of the suit and the desired possession date of the property interest. The District must keep the ROW Division informed and must furnish it with copies of updated or revised documents, such as title commitments or ROW-E-49 forms.
Anchor: #i1001832Assisting the Office of the Attorney General
For more information, refer to the Eminent Domain Guide, Filing of ED Petition & Related Court Papers.
The District assists OAG in:
- filing an ED action;
- setting the Commissioners' Hearing;
- notification of Commissioners and State appraisal witnesses; and
- other matters leading up to the hearing.
- The District should inform OAG when the above actions are taken and should send to OAG:
- file-marked copies of all papers filed with the court;
- copies of the District's letters advising Special Commissioners of their appointment;
- a letter to the person coordinating reservation of a room for the hearing; and
- letters advising of the setting of the hearing.
Checking Title for Correctness
When the District receives the necessary documents for filing ED proceedings from OAG, the District should send a copy of the 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, the District must immediately notify the OAG so that corrective action can be taken before the petition for condemnation is filed.
Anchor: #i1001915Filing of Plaintiff's Statement and Lis Pendens Notice
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 property description is attached. This document makes any subsequent action taken on the property subject to the State's eminent domain suit. There are two ways in which a lis pendens notice may be filed.
If OAG files the Plaintiff's Statement with the judge, the lis pendens notice will be filed at the same time by that office.
If the District representative files the Plaintiff's Statement and is specifically authorized by OAG to sign and file the lis pendens notice, then OAG will send the notice along with the Plaintiff's Statement to the District. The lis pendens notice should be signed and dated by the District 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 are accomplished on the same date. Under no circumstances is the notice to be dated and acknowledged on a day before the date of filing 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 number of the proceedings, if there is a number. If there is no number, the word "not" should be inserted between the words "proceeding" and "numbered," or the phrase "not numbered" should be placed after the word "numbered."
File-marked copies of the documents should be sent to OAG. See the Eminent Domain Guide, Petition For Condemnation or Lis Pendens for additional guidance.
Anchor: #i1001952Use of Court Reporters
A certified court reporter will be available to take full notes of testimony given during all Special Commissioners' Hearings. A transcript will be 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.
The AAG may ask a representative from the District to arrange for 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.