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Section 3: Procedure Before Special Commissioners’ Hearing

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Witnesses and Appraisal Reports for Eminent Domain

The department should recommend appraisal and other expert witness(es) for Special Commissioner's Hearing. OAG may recommend (supported by specific justification) that specific expert witnesses be contracted. The ultimate decision of whether such witness(es) are placed under contract is a department determination.

Upon forwarding the eminent domain folder to the OAG with a transmitting memorandum, the ROW program office in Austin will provide the department representative 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 department 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 department. After reviewing concerns expressed, the department determines the need for obtaining additional or revised appraisals.

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Preparation and Use of Court Exhibits

When preparing or obtaining necessary exhibits, the department 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 department 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 department 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.

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Communications with the Office of the Attorney General

The ROW program office in Austin sends a copy of the ED package to OAG after (1) the ROW program office in Austin completes processing of the Request for ED package, (2) the Commission's minute order authorizing ED procedures is received by the ROW program office, and (3) title review is completed by the ROW program office.

OAG is solely responsible for acquiring the property through legal means once in possession of the file. The department should coordinate with OAG about recommended timing of the suit and the desired possession date of the property interest. The department must keep the ROW program office in Austin informed and must furnish it with copies of updated or revised documents, such as title commitments or ROW-E-49 forms.

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Assisting the Office of the Attorney General

For more information, refer to the Eminent Domain Guide, Filing of ED Petition & Related Court Papers.

The department 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 department 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 letters advising Special Commissioners of their appointment;
  • copies of the Order Appointing Special Commissioners should also be sent by the department to each of the parties named in the condemnation petition;
  • a letter to the person coordinating reservation of a room for the hearing; and
  • letters advising of the setting of the hearing.
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Checking Title for Correctness

When the department receives the necessary documents for filing ED proceedings from OAG, the department 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 department must immediately notify the OAG so that corrective action can be taken before the petition for condemnation is filed.

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Filing 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 department 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 department. The lis pendens notice should be signed and dated by the department 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.

Notice of Lis Pendens - Required Service on Interested Parties

When TxDOT files a lis pendens "for record" (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 a person files a notice for record", we serve a copy of the notice of lis pendens 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).

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.

Not later than the third day after the date the lis pendens, as filed with the court, is filed in the county's official records, TxDOT must, via one of the methods of service discussed below, serve or cause a copy of the lis pendens to be served on all parties joined in the condemnation petition (at least those whose identities and whereabouts are known).

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.

It is recommended that a cover letter accompany the notice of lis pendens stating that: "In compliance with HB 396, 81st Legislature, 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:

  • 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 be cited by publication with notice of lis pendens.
  • 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, at any time 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.
  • Service 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 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 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.
  • Until the eminent domain proceeding is concluded, the Region should retain the documentation proving the method and timeliness of the services of lis pendens.
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Use 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 department 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.

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