Section 5: Procedures After Special Commissioners’ AwardAnchor: #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 immediately upon depositing the amount of the award into the registry of the court. If there is any indication that the parcel may be contaminated, the AAG and ROW program office in Austin will be contacted prior to depositing the funds and taking possession of the parcel. 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 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 Such deposited funds will be subject to being withdrawn by the parties to the proceedings, but the withdrawal or non-withdrawal of funds does not restrict or affect the State's right of possession.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 as soon as possible after right of possession actually takes place, including when possession occurs via a Possession and Use Agreement, and that photographs be taken to record the condition of the premises. This information can be extremely valuable in preparing and presenting the case at a subsequent jury trial.
Where tenants or owners 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 in Austin. 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 and the last possible date that the construction schedule will allow for deferral of actual eviction. Use care so that no job is let where there appears to be a possibility of eviction until the facts of the situation have been made known to TxDOT Administration.Anchor: #i1002073
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 Commissioners prepared by the AAG with the amount of compensation, and will date and sign such decision. Their decision must then be filed with the judge of 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 such decision, by certified or registered United States mail with return receipt requested, 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 a written statement of the objections, and the grounds for doing so, with the presiding court. The statement must be filed on or before the first Monday following the 20th day after the day the Commissioners' findings are filed with the court.
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 the Commissioners has been filed, Form ROW-E-73, Data Sheet -Commissioners' Hearing, will be carefully completed to support the department's recommendation as to whether the award should be accepted or objected to. This form will be forwarded to the ROW program office in Austin immediately, in duplicate, to allow for the review and analysis which are requisite to a responsible and timely decision to file objections to the award within the statutory allowable period, or to accept the award. This form must show all pertinent information regarding the Special Commissioners' Hearing. Information called for on page l should be filled in by the department representative who assisted the AAG and was present at the hearing.
It is essential that the department furnish adequate value analysis on page 2 of Form ROW-E-73. This form has been designed to provide a separate section for the department appraisal staff to determine if the award is within the range of value, and to make its recommendation as to acceptance or appeal of the award. The staff appraiser 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). If the staff appraiser considers the award to be within the range of value, that opinion must be documented accordingly. 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 to the staff appraiser's analysis, information supplied by OAG and its recommended action must be considered. Immediately after the hearing, the AAG will meet with the department staff to 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 is in excess of the State's testimony. This will later be confirmed by memorandum from OAG to the ROW program office in Austin, with a copy to the department representative, setting out the factors that were considered in making the recommendation.
It is the responsibility of the ROW Division Director, or his/her designee, to consider the findings and recommendations as presented by the staff reviewer and OAG, and any other facts or information considered pertinent. In the final analysis, the recommendation for acceptance or appeal will indicate a positive attitude and studied opinion as to the action considered to be in the best interest of TxDOT. A separate space is provided on Form ROW-E-73 for this administrative recommendation. Opinions of either the staff reviewer or OAG are not binding on the director in making the administrative recommendation. Either source alone can afford adequate support, or the director may make a separate and independent recommendation supported by proper explanation.
The department's recommendation, along with that of OAG, as to acceptance or appeal of an award will be processed by the ROW program office in Austin. The department's recommendations regarding trial settlements will be processed by the ROW program office in Austin in the same manner. This will constitute the crosscheck, which is customary in TxDOT operations.
Normally, the decision to accept or appeal from a judgment of the court will be the responsibility of OAG, since the possibility of appeal is dependent upon the 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 in Austin will be requested and the same factors and criteria will govern as set forth above.
The following factors may be taken into consideration by TxDOT when considering whether or not to appeal an award, and may be used for documentation purposes:
- 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.
- Inadequacy of data upon which the appraisals are based, or improper application of legal principles to the appraisal processes.
- The competency and effectiveness of an appraiser as a
witness, to include:
- ability and experience as an appraiser
- reputation in the area,
- ability to persuasively and clearly explain his opinion of value and the reasons therefore to a court or jury, and
- ability to stand up under cross-examination.
- Adjustment of appraisals to conform to the date of valuation under law.
- All available appraisals, including landowner's appraisals.
- Interest or delayed damage payments to which an owner may be entitled under Texas law.
- Serious doubt as to the highest and best use of the property at the time of the taking and, in appropriate instances, after the taking.
- Extremely complex severance damage or other valuation problems that necessarily produce uncertainties as to value.
- Uncertainty of Texas law relative to the measure or compensability of particular elements of value or damage, or the admissibility or adequacy of evidence necessarily to prove facts in issue, where the circumstances or the evidence make it inadvisable to test the question in the case under consideration.
- Awards of Commissioners or other administrative or quasi-judicial bodies. In Texas, the amount of the award is not admissible. However, the testimony of individual Commissioners as to opinion of value is admissible in evidence at a subsequent trial.
- 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 "A" as justification for settlements. They will not, however, suffice as the sole justification:
- Costs to the acquiring agency and its counsel for preparing and presenting the case at trial or in an appeal.
- Costs to the public for impaneling a jury, maintaining the court, etc.
- Alleged impossibility of obtaining an unbiased jury.
- Likelihood of sympathy for the owner.
After review of the available files and as soon as a final decision has been made, the ROW program office in Austin will notify OAG and request any appropriate action, and send a copy of the notice to the appropriate staff. It should be noted that objections to the Special Commissioners' Award must be filed within 20 days of its issuance, so a timely response to the OAG is required.
If the award is accepted and no objections are filed, and the defendant also accepts the award and does not file objections, a Judgment of Court in Absence of Objection is filed with the presiding court. Step by step instructions for filing the judgment are in the Eminent Domain Guide, If No Objections, and Who, Where, When - Helpful Suggestions, Judgment of Court In Absence of Objection.
If the decision is made for the State to object to the Award of Special Commissioners, the objections will be prepared by the AAG handling the case and sent to the department for filing. See Eminent Domain Guide, If Objections Filed, and Who, Where, When - Helpful Suggestions, Objections to Award of Special Commissioners.
On the first working day after the first Monday following 20 days after the day the Special Commissioners' file their findings with the court, the department 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 department representative will order a certified copy of same and send copies to the AAG and the ROW program office in Austin. If not requested by the objecting party, and if there are other parties named as additional defendants, the department 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, in order that the lawsuit will have good standing in the court. 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 the Eminent Domain Guide, If Objections Filed will then be followed.
Since it is essential that the ROW program office in Austin always have the most current information concerning the status of eminent domain cases, give prompt notice of objections filed to the award by the landowner(s) or any other defendant named in the suit and the date of filing of such objections. The ROW program office in Austin should also be advised promptly when it is known that no objections have been filed within the statutory allowable period following the filing of the award.Anchor: #i1002330
Settlements of Eminent Domain Lawsuits (for State)
At any time after the ROW program office in Austin has been notified that the final offer was refused and the property owner(s), prior to the Special Commissioners' Hearing, agrees to accept the State's offer based on the approved value, the ROW program office in Austin and, when appropriate, OAG are to be notified immediately. If the title is clear or can be cleared without legal action, the purchase will be completed according to prescribed negotiation procedure. If eminent domain proceedings have been filed, they will not be dismissed until the purchase is completed.
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 ROW program office in Austin and department representative, concurrently, and request their recommendations. This inquiry is to receive immediate attention and action by the ROW program office in Austin. Though settlement possibilities normally come from OAG, the department should constantly review parcels pending trial and, from their knowledge of changes in market values, determine the possible need for settlements. However, under no condition will TxDOT personnel contact either the property owners or their attorney(s) concerning any settlement.
The department's recommendation in regard to settlements generally will be based upon the same factors and criteria set out in Actions to be Taken by State on Commissioners' Award and Filing of Objections (see Actions to be Taken When Judgment is Rendered and Appeals from Judgments). Recommendations pertaining to settlements must be signed by the ROW Division Director or designee.
OAG has requested that when TxDOT can not approve the full amount of a suggested settlement, they would like to know the amount, if any, above the approved value but less than the proposed settlement upon which TxDOT could authorize a settlement. They have advised that there could be occasions when they might be able to settle a case for such a figure prior to or during trial. Where the department finds that the total proposed settlement can not be recommended, but some lesser figure would be proper, the recommendation will be made accordingly.
Occasionally, in preparing for jury trial, good, 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 the department that OAG should be authorized to offer a settlement before proceeding to trial. If this occurs, the matter will be brought to the attention of the ROW program office in Austin. Any department recommendation must 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 ROW program office in Austin will authorized the OAG 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 the ROW program office in Austin. As soon as practicable after a settlement has been completed, the appropriate section of Form ROW-E-74, Data Sheet-Settlement or Court Trial , will be filled in by the department and the form promptly submitted to the ROW program office in Austin. See Eminent Domain Guide, Settlements, for more detailed instructions on settlement procedures.
In some jurisdictions, court dockets are so full 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, the department coordinates with the ROW program office in Austin to set date, time, etc. with the parties in close coordination with the AAG, appropriate ROW program office and department personnel, and opposing attorney. A pre-mediation is set up between the department and ROW program office in Austin personnel to determine a limit for settlement authority. This amount can not be exceeded without obtaining additional authority from the ROW Division Director or designee. Additional information for the mediation process is in the Eminent Domain Guide, Mediation.
If the mediation fails, the case will go to trial. If it is successful, the AAG will prepare an Agreed Judgment and send it to the department. After all of the required signatures are obtained, ensure the cause number is on the document and the correct property description is attached. The judgment will then be filed with the court.
If the Agreed Judgment is the same as or less than the amount deposited for the Special Commissioners' Award, one certified copy of the judgment will be ordered. When received the certified copy will be filed in the public records (or property records) of the county in which the property is located. A file-marked copy will be sent to the AAG and the ROW program office in Austin. A title policy will be ordered from the title company. If the amount of the judgment is less than what was deposited for the Special Commissioners' Award and the money has been withdrawn from the registry of the court, the AAG will be requested to secure a refund for the State. If the refund is made by the Court or District Clerk, the department must stay in close contact with the proper party so the funds may be obtained promptly. See Collection of Refunds Due State for additional information on submitting refunds. Complete and forward Form ROW-E-74, Data Sheet-Settlement or Court Trial, to the ROW program office in Austin.
If the Agreed Judgment is greater than the amount deposited for the Special Commissioners' Award, two certified copies should be ordered when the judgment is filed. One copy will be sent to the ROW program office in Austin, along with the OAG memorandum of successful mediation, with a request for additional funds. See Payment Procedures ( Payment for Condemned Parcels) for further assistance.
When the warrant is received, it will be delivered to the named payee. Generally, this will be the registry of the court. When paid to anyone other than the court, the AAG will prepare a Release or Satisfaction of Judgment to be signed when the warrant is delivered and then filed in the court records. The second copy of the judgment will be filed in the public records (or property records) of the county in which the property is located. A title policy will be ordered from the title company. Form ROW-E-74, Data Sheet-Settlement or Court Trial , will be completed and forwarded to the ROW program office in Austin.Anchor: #i1002409
Notice of Date Set for Jury Trial
Considerable time can be gained if the department notifies the ROW program office in Austin of the date jury trial will be held as soon as such date is determined. To insure expeditious processing, notification of such trial date, if available at the time, must be forwarded with the updated appraisal reports, which furnish the basis for valuation at the trial. If the trial date is not available when the updated appraisals are submitted, the transmittal should so state and notification should be made as soon as the date of the trial has been set.
It is the responsibility of the department to submit the appraisal reports, along with advice as to the date set for jury trial, to the ROW program office in Austin far enough in advance of the trial to allow sufficient time for review prior to processing to OAG. The timing of this submission should also allow the trial attorney sufficient time after receiving the appraisal report to prepare for trial.Anchor: #i1002424
Actions to be Taken When Judgment is Rendered and Appeals from Judgments
Form ROW-E-74, Data Sheet-Settlement or Court Trial, is designed to show pertinent factual data concerning the court trial. The appropriate section of this form should be filled in by the department representative who was present in court and assisted the AAG. This form is to be submitted to the ROW program office in Austin as promptly as possible.Anchor: #i1002434
Title Policy Issuance after Judgment is Final
When the judgment in the eminent domain proceedings is final and no longer subject to appeal, and the total obligation of the State to the property owners has been paid, a certified copy of such final judgment will be obtained for recording in the Deed Records of every county in which the property lies. Upon recording of this final judgment, the title company will issue title insurance on the parcel. The amount insured by the policy will not include any interest paid on the judgments; i.e., the amount insured in the title policy on each submission must agree exactly with the base amount of the judgment excluding interest. After the proper entries are made on the project ROW map, the recorded certified copy of the final judgment will be forwarded to the ROW program office in Austin along with the Owner Title Policy as part of the normal submission requirements under Payment for Title Work.Anchor: #i1002446
Collection of Refunds Due State
Where the amount awarded in the final judgment is less than the amount of the Commissioners' Award previously deposited by the State, a refund is due the State. In an effort to avoid undue delay in collecting or attempting to collect such refunds, the procedure will be as follows.
Upon receipt of a Form ROW-E-74, Data Sheet-Settlement or Court Trial, and/or a memorandum from OAG indicating that a Commissioners' Award has been reduced at the trial, the ROW program office in Austin will request that the department make periodic contacts with the court clerk to determine if the remitted due the State has been deposited. At such time as the funds have been deposited the department is to notify OAG so that an Order of Withdrawal may be prepared. Any contact with the defendants or their counsel should be made through OAG. If at the expiration of sixty (60) days from the date of entry of judgment the funds have not been deposited with the court, the department is to notify the ROW program office in Austin. The ROW program office in Austin will then notify OAG accordingly and request that whatever action deemed necessary be taken to secure the funds due the State.
When a refund is withdrawn from the registry of the court, the department will make the submission to the ROW program office in Austin according to the procedure outlined in General Payment Policies and Procedures.