Section 5: Procedures After Special Commissioners’ AwardAnchor: #i1029776
Funding and Depositing the Award, and Filing the Notice of Deposit
After the award has been filed with the court, ROW PD will submit to the ROW Program Office a request for issuance of a State warrant payable to the clerk of the court in the amount set by the special commissioners, less any previously paid possession and use agreement (PUA) proceeds (ignoring, for this purpose, any independent consideration paid through the PUA). This submission will include a file marked copy of the Award of Special Commissioners and necessary supporting papers, as outlined in Payment of Commissioners' Awards.
ROW PD will deliver the warrant to the clerk of the court and obtains a receipt from the clerk showing when the deposit was made. A copy of the receipt of deposit should be immediately sent to the OAG, together with a completed Notice of Deposit prepared and signed by a TxDOT representative, the latter which will be e-filed by the AAG. Each party or their legal representative is entitled to receive a copy of the Notice of Deposit, to alert them of the possibility of withdrawing the award proceeds. Determine if the AAG will serve all parties upon e-filing the Notice of Deposit, or whether the TxDOT representative should do so. For further information on preparation of and procedures relating to the Notice of Deposit, see Who, Where, When -Helpful Suggestions for Notice of Deposit and Memorandum - Notice of Deposit.Anchor: #i1002045
Establishment of Right of Possession by State
After the written award by the special commissioners has been filed with the appropriate court, the State will be entitled to take possession upon the deposit of the amount of the award into the registry of the court. Under no circumstances will TxDOT personnel enter upon or take possession of such a parcel until after the State's warrant has been deposited into the registry of the court, unless a PUA has been executed and funded or other legal arrangements have been made by the AAG handling the case. Such deposited funds will be subject to being withdrawn by the parties to the proceedings, but the withdrawal or non-withdrawal of funds does not restrict or affect the State's right of possession. Possession may be taken even though an appeal is filed by either or both parties.
It is recommended that the property be inspected on the date of deposit or if there has been an agreed date of take under a Possession and Use Agreement on the agreed date. This inspection should include taking extensive photographs of the condition of the premises. This information can be extremely valuable in preparing and presenting the case at a subsequent jury trial, particularly in documenting the existence and condition of any real property improvements located on the property as of the date of taking.
Where tenants or owners joined in the ED proceeding do not vacate the premises within the time allowed, forceful eviction will not be used except as a last resort, and only then with prior administrative approval obtained by request through the ROW Program Office. Every possible means of securing peaceful possession will be exhausted. Periodically protest continued occupancy in writing and request immediate vacancy. Document every effort made to secure possession.
Requests for eviction proceedings will outline all the facts in the case, including proposed letting date, the last possible date that the construction schedule will allow for deferral of actual eviction, the identity(ies) of the party(ies) to be joined and the manner in which they may be served with legal process.Anchor: #i1031252
Commissioners' Award and Filing of Objections
After the special commissioners' hearing, the commissioners will determine the amount of compensation to be paid to the property owner(s). They will fill in the Award of Special Commissioners prepared by the AAG with the amount of compensation, and will date and sign the decision. Their decision must then be filed with the appropriate court no later than the next working day after the hearing is held. The judge will inform the clerk of the court as to the decision of the special commissioners on the day it is filed. On that same date, the clerk will send notice of the filing of the award to all the parties in the proceeding, or to their attorneys of record, at their respective addresses of record.
A party to a condemnation proceeding may object to the findings of the special commissioners by filing with the court a written statement of the objections, and the grounds for doing so. The statement must be filed on or before the first Monday following the 20th day after the day the commissioners' award is filed with the court.
If there is any indication that the parcel may be contaminated including all parcels that have underground tanks, objections to the award should be filed, even if the award is for an amount acceptable to TxDOT, in order to permit further investigation of the contamination, rather than accepting an award based on an “as if clean” value.
If a party files an objection to the findings of the special commissioners, the court will try the case as a trial de novo (i.e., new trial) in the same manner as other civil causes. This means starting from the beginning with no previous record, as though there had been no special commissioners' hearing.
After the written Award of Special Commissioners has been filed, form ROW-E-73 Data Sheet - Special Commissioners' Hearing will be carefully completed to support TxDOT's recommendation as to whether the award should be accepted or objected to. This form should document all pertinent information regarding the special commissioners' hearing. Information called for on page l should be filled in by the TxDOT representative who assisted the AAG and was present at the hearing.
ROW PD should furnish adequate value analysis on page 2 of form ROW-E-73 Data Sheet - Special Commissioners' Hearing to determine if the award is within an acceptable range of value, and to make its decision or recommendation as to acceptance or appeal of the award. ROW PD is not limited to considering only the appraisals secured by the State, but is to consider all competent information of value that is available (e.g., appraisals secured by the property owner, value information brought out in testimony at the hearing, and recent awards by condemnation juries for similar property in the same area). Stock phrases or reference to average condemnation losses will not suffice. Documentation simply means providing common sense, analytical statements written to support the conclusion reached that will satisfy a reasonable person making a subsequent review or audit. It does not mean proof beyond contest.
In addition, information and the recommendation provided by OAG must be considered. Immediately after the hearing, the AAG and ROW PD may discuss the hearing and formulate opinions. The AAG will summarize the evidence produced and make a recommendation as to whether or not the State should appeal an award that exceeds the State's testimony. This will later be confirmed by memorandum from OAG to the TxDOT representative, setting out the factors that were considered in making the recommendation.
After considering the OAG's recommendation as to acceptance or objection to an award, a decision will be made and communicated to OAG and the ROW Program Office by the ROW manager or supervisor, unless the amount of the award exceeds their signature delegation authority limits. TxDOT's recommendations regarding mediations and trial settlements will be processed in the same manner and subject to the same signature authority limits.
For those awards within established signature authority limits, it is the responsibility of the ROW manager/supervisor to consider the findings and recommendations as presented by staff and OAG, and any other facts or information considered pertinent. In the final analysis, the recommendation for acceptance or appeal is to be based on a studied and objective opinion as to the action considered to be in the best interest of TxDOT. A separate space is provided on form ROW-E-73 Data Sheet - Special Commissioners' Hearing for this administrative recommendation. Opinions of either staff or OAG are not binding as to accepting or rejecting the award decision or recommendation. Either source alone can afford adequate support, or a separate and independent decision or recommendation can be made if supported by proper justification and explanation.
By contrast, the decision to accept or appeal from a judgment of the court after jury verdict will be the responsibility of OAG, since the possibility of appeal is dependent upon questions of law bearing upon the possible existence of reversible error in the trial of the case. After a trial is held, either before a judge or jury, OAG will advise by memorandum as to the possibility of a reversible error. If no reversible error has been committed, the State has no further recourse and the judgment is final. If there appears to be reversible error, the OAG's memorandum will so advise and set forth their staff opinions and recommendations. In this situation the recommendations of the ROW Program Office will be obtained.Anchor: #i1032527
Factors to Consider in Accepting or Appealing the Special Commissioners' Award
The following factors may be taken into consideration when considering whether or not to appeal an award, and may be used for documentation purposes:
- Anchor: #XBLUWRAD
- Any legal deficiencies in the appraisals approved by the reviewing appraiser. An appraiser may not have had the benefit of legal advice as to the compensability of certain elements of value or damage, the offsetting of benefits, the identification of fixtures, the determination of what constitutes the remaining property for assessment of damages, or any number of other pertinent legal considerations. Anchor: #XTYXOINH
- Inadequacy of data upon which the appraisals are based, or improper application of legal principles to the appraisal processes. Anchor: #JQGDXMXR
- The competency and effectiveness of an appraiser as a witness, to include: Anchor: #IMUYNDLI
- Adjustment of appraisals to conform to the date of valuation under law. Anchor: #NSXKHKIC
- All available appraisals, including landowner's appraisals. Anchor: #XUEJIDJC
- Interest or delayed damage payments to which an owner may be entitled under Texas law. Anchor: #SKCCQHQS
- Serious doubt as to the highest and best use of the property at the time of the taking and, in appropriate instances, the remaining property after the taking. Anchor: #YGLLDPMN
- Extremely complex severance damage or other valuation problems that necessarily produce uncertainties as to value. Anchor: #IALERDPQ
- Uncertainty of Texas law relative to the measure or compensability of particular elements of value or damage, or the admissibility or adequacy of evidence necessary to prove facts in issue, where the circumstances or the evidence make it inadvisable to test the question in the case under consideration. Anchor: #FTJRTMUP
- Awards of commissioners or other administrative or quasi-judicial bodies. In Texas, the amount of the award is not admissible. Anchor: #SGPMDJHA
- Recent court awards for eminent domain takings in the area.
In addition, the following items may be considered in conjunction with the items in the preceding subsection as justification for settlements. They will not, however, suffice as the sole justification:
- Anchor: #PGDTXLRU
- costs to the acquiring agency and its counsel for preparing and presenting the case at trial or in an appeal; Anchor: #KMDSUYFV
- costs to the public for impaneling a jury, maintaining the court, etc.; Anchor: #INDFNSDT
- alleged impossibility of obtaining an unbiased jury; and Anchor: #XBNGVPEE
- likelihood of sympathy for the owner.
After review of the available information and a final objections decision has been made, the ROW manager/supervisor (or ROW Program Office, when applicable) will notify OAG requesting appropriate action, and send a copy of the decision to the appropriate staff. It should be noted that objections to the special commissioners’ award must be filed on or before the Monday following 20 days of the date the award is filed with the court, excluding the date of the filing. Therefore, a timely response to the OAG is imperative.
If the award is accepted and no objections are filed by any party, a Judgment of Court in Absence of Objection is filed with the presiding court. Step by step instructions for filing the judgment are in If No Objections and Judgment of Court In Absence of Objection in the Eminent Domain Guide.
If the decision is made for the State to object to the Award of Special Commissioners, the objections will be prepared and filed by the AAG handling the case. See If Objections Filed and Objections to Award of Special Commissioners in the Eminent Domain Guide.
On or soon after the first working day after the first Monday following 20 days after the day the special commissioners file their findings with the court, the TxDOT representative assisting the AAG handling the case will check with the clerk of the court to determine whether objections have been filed by the landowner(s) or any other defendant in the lawsuit. If objections were filed, the TxDOT representative will order a certified copy of same and send copies to the AAG.Anchor: #i1002073
Issuance of Citation on the Objections to the Award
If not requested by the objecting party, and if there are other parties named as additional defendants, TxDOT will ensure that precepts (or citations) are issued and served on each party named in the suit.
Even though the objections are filed by a defendant, it is in the State's best interest to have the precepts (citations) issued and served if the objecting party fails to do so. Where the objecting party is the only defendant, do not arrange for precepts until conferring with AAG. With the exception of the first item, the steps given in If Objections Filed of the Eminent Domain Guide will then be followed.Anchor: #i1033528
Settlements of Eminent Domain Lawsuits After Commissioners' Hearing (for State)
After the commissioners' award and the filing of objections by either party, circumstances may occur which warrant the consideration of a settlement. Normally, the possibility of settlement originates through OAG. When this possibility occurs, OAG will advise the TxDOT representative, and provide their recommendation. This recommendation is to receive immediate attention and action by the ROW manager/supervisor or, when settlement authority limits will be exceeded, the ROW Program Office. Under no condition will TxDOT personnel contact either the property owners or their attorney(s) concerning any settlement.
TxDOT's recommendation on settlements will generally be based upon the same factors and criteria set out in Actions to be Taken by State on Commissioners' Award and Filing of Objections. Settlement decisions are made by the ROW manager or supervisor, or by the ROW Division Director or designee when the amount of the proposed settlement exceeds delegated manager/supervisor authority.
When TxDOT cannot approve the full amount of a suggested settlement, OAG has requested that TxDOT identify what amount, if any, above the approved value but less than the proposed settlement upon which TxDOT could authorize a settlement, as there could be occasions when a case could be settled for such a figure prior to or during trial. Where TxDOT finds that the total proposed settlement cannot be recommended, but some lesser figure would be proper, the recommendation will be made accordingly.
Occasionally, in preparing for jury trial, well-documented appraisal reports are received which indicate that an award previously regarded as excessive is within the range of value, or that a higher value is adequately supported. Such reports may indicate to TxDOT that OAG should be authorized to offer a settlement before proceeding to trial. Any TxDOT recommendation should include a full and complete analysis of the correctness of the latest appraisals, as well as an analysis of these reports in comparison to previous appraisals. The OAG may be authorized to close the case for an appropriate “not to exceed” amount, or if this is unsuccessful, to proceed to trial. Each proposed settlement will be handled on its individual merits.
If a settlement is authorized and can be agreed upon by all concerned parties, the procedure to be followed in closing the case, whether by deed or Agreed Judgment, will be decided by OAG, in consultation with ROW PD. See Settlements in the Eminent Domain Guide for more detailed instructions on settlement procedures.Anchor: #i1002330
In some jurisdictions, court dockets are so congested that judges will not set an ED case for trial until after an attempt has been made to settle it before a mediator or because the attorneys involved may believe it could be settled through mediation. Where mediation has either been ordered or jointly agreed upon, ROW PD coordinates with the OAG to set a date and time with the parties. If the mediation authority requested by the OAG exceeds the limits of the ROW manager's or supervisor's authority, the ROW Program Office will determine a limit for settlement authority. If the mediation fails, the case will go to trial unless it is otherwise settled prior to trial.