Section 3: Section II of Form ROW-E-49 (Parties to be Joined)Anchor: #i1001210
Holders of Property Interests to be Joined as Parties
Holders of Property Interests to be Joined as Parties include fee owners, adverse claimants, lienholders, easement holders, lessees and tenants, and owners of minerals and mineral leases.
Pleadings are prepared from information furnished in this section, give specific and complete names and service of process address of all persons or entities that are parties.Anchor: #i1001225
Fee Owners to be Joined
Additional information is given in In Submitting Form ROW-E-49 of the Eminent Domain Guide.
Show names of fee owners as they appear on the deed or probate document that gives them title to the property being condemned, which are the same as shown on the title commitment. These names should be the same as on the final offer letter. Minor variation in name(s) on the final offer letter is acceptable if it is clearly the same person and, if married, the spouse should be included.
Occasionally, owners may use more than one name. This may be shown as in the following example:
- Anchor: #YUQDPNTD
- Nelly Bly, also known as Nellie Jane Bly, or
- Anchor: #XBTOPQSX
- John B. Brown, being one and the same person referred to in certain instruments of record as J. Bruce Brown or as J. B. Brown. Show marital status of each individual specifically as “a single man,” “a femme sole" or “a widow.” Show the full name of the spouse of any married owner. List a wife by her given married name, such as: Anchor: #KCBYUKRE
- John J. Andrews and Mary Alice Andrews, husband and wife
When one party owns the property as separate property, it is possible that the spouse may have a homestead interest. The spouse of any fee owner should always be named as a party, even when one party owns the property as his separate property.
Give addresses of owners by house number and street name rather than post office box number so that service of citation can be made. For rural residents, most areas are covered by the 911 emergency system, and most rural streets are named. The county in which the party resides, and directions by local landmarks is acceptable. Make all addresses as complete as possible. If the address on the final offer letter differs from the one shown on the ROW-E-49 Request for ED Proceedings, include an explanation about this difference in the “Remarks” section.
The submission should advise if an estate is in the process of administration (or if probate proceedings are pending). Show the names and addresses of the administrator (appointed by the court) or executor under a will that has been admitted to probate, and all heirs and devisees having an interest in the property. Attach copies of probate documents to the form if indicated.
State when a minor or legally declared incompetent person owns an interest or estate in the land. Also, state the name and address of any legal guardian of the person and estate. If there is no legal guardian, the Assistant Attorney General (AAG) can include documents to engage an Attorney Ad Litem (or a Guardian Ad Litem) when filing the proceedings.
If ownership is in a corporation, partnership, or in a form beside individual persons, then show the exact name and type (e.g., “a corporation” or “a partnership”). Give the name, title and address of the person(s) authorized to accept service of citation, which would be the registered agent for service as listed in the records of the Office of Secretary of State (SOS). For example:
Acme Processing Company, a Corporation
432 South Congress Avenue
Austin, Texas 78787
Louis A. Boyd, Registered Agent for Service
1237 Crescent Street
Austin, Texas 78787
NOTE: If you are unable to contact the person listed as registered agent, contact the ROW attorney for assistance in validly serving the entity.
A party, usually a tenant, may be listed using a “DBA” (Doing Business As). These listings may or may not actually say “DBA”. Show a party as a DBA if (1) the name does not show that it is a corporation, limited or general partnership or other type of business entity, and (2) it cannot be identified through the SOS as a registered business entity (and is, therefore, likely a sole proprietorship. Clearly show that the individual will be served in the individual owner's name. For example:
John Doe DBA Acme Rental
12345 Main Street
Austin, Texas 78787
Verify the following information with the SOS:
- Anchor: #RBCSRJBD
- the name and address of the corporation, limited partnership, or other registered business entity; Anchor: #EHWVSREI
- the status of the entity; Anchor: #GMNNSRUC
- the name and address of a registered agent for service and the officers or manager of the entity (officers or managers may be served if there is difficulty serving the registered agent); and Anchor: #TAGGAYDD
- the name and address of an entity operating under an assumed name. This information is also available through direct access with the SOS, and through Internet subscription accounts.
Information on service of citation to banks and governmental bodies is given in Form ROW-E-49 Preparation of the Eminent Domain Guide.
If the owner is a general partnership, obtain a copy of the partnership agreement to determine if there is a managing partner who is designated to receive service. Note: General partnerships are not listed with the SOS.
If (1) a copy of a partnership agreement cannot be obtained and (2) title to the property is held in a specific partnership name, then serve one of the general partners. All of the general partners do not need to be served unless the title is held in each partner's name and in the partnership.
Clearly show whether any of the owners are unknown or cannot be located since OAG includes documents to secure citation by publication. When proceedings are filed, a TxDOT representative signs an Affidavit for Citation by Publication. This affidavit states that the owners, or their location, are still unknown after a diligent search. Refer to Written Offers to Unknown or Unlocated Owners for locating owners.
TxDOT personnel cannot make service of citation by publication and administer the return. Legally this can only be done by the county sheriff or a constable in the county in which the property interest is located. TxDOT personnel may assist by arranging for the publication, scheduling the timing with the newspaper, picking up the newspaper clippings, and obtaining the affidavit of the publisher for delivery to facilitate the return. Additional instructions for citation by publication can be found in Citation by Publication of the Eminent Domain Guide.
When a sign or billboard belongs to the fee owner, make note in the “Remarks” section.
If any person or entity to be joined is in bankruptcy, indicate this in the Remarks section. Additional information required is listed on the Bankruptcy Checklist in the Eminent Domain Guide. An Order to Lift Stay should be obtained before proceeding with the condemnation suit. OAG should provide assistance on how to proceed, and will prepare additional court documents that must be filed with the bankruptcy court.
For service of process and notices on someone other than the named property owner(s), TxDOT must receive either (1) a power of attorney instrument specifically authorizing the acceptance of service of process by the attorney in fact, or (2) a letter from the party asking that TxDOT make service of process to their attorney or their designated agent for service of process.Anchor: #i1001419
Adverse Claimants to be Joined
Include information concerning anyone claiming to have interest in the property whose claim is adverse or contrary to the record owner. The adverse claimant's alleged interest may or may not be of record. Examples include persons claiming adverse possession, persons claiming an interest from another chain of title, and persons claiming to be heirs of former owners. Show the adverse claimant without regard to the validity of the claim.Anchor: #i1001429
Lienholders to be Joined
Give current information concerning proper identification, names, addresses, nature of organization and agents for service of citation as shown in Section II A, Fee Owners to be Joined, of this form. List the current holder of the lien. When an entire lien has been transferred and/or assigned to someone else, the original parties do not need to be listed; list only the current holder of the lien.
When possible, obtain a copy of each lien document from the title company. Copies of liens help in determining if they may be invalidated by any statute of limitations.Anchor: #i1001448
Easement Holders to be Joined
State the name of each easement holder and the nature and terms of each easement. The guidance provided above regarding Section II A, Fee Owners to be Joined, of this form applies in giving proper identification and addresses of easement holders.
If an easement or restriction (enforceable against a condemning authority) is created by an instrument of record, give the type and date of such instrument and pertinent recording data.
If a private roadway or a public or private utility facility is discovered on a property (and is not of record), ROW PD should investigate. Report any information on the nature of the interest, area involved, and circumstances/history leading to the placement of the roadway or facility on the property.
Some public utility and public roadway easements that are compatible with highway design and operation may remain in the ROW. Other public utility adjustments should be made under the Utility Accommodation Policy and do not need to be joined as a party to the proceedings. TxDOT determines which public easements and public utilities qualify under these categories. If easements or utilities qualify, then list them under Section III of form ROW-E-49 Request for ED Proceedings (Holders of Property Interests Not To Be Joined as Parties).
If (1) specific utility easements are shown on a plat of the property by page and volume number and (2) these easements are not listed on the title commitment, then obtain copies from county records. After TxDOT determines the easements' compatibility (or adjustment qualifications), list the easements in the appropriate section, either as parties to be joined or as parties not to be joined.
Reciprocal parking and/or ingress-egress easements may exist within protective covenants or restrictions, or they may stand alone; therefore, read the covenants or restrictions very carefully and advise on ROW-E-49 Request for ED Proceedings if these types of easements exist. These agreements usually exist in shopping centers and malls. List current holders of these rights as parties to be joined.Anchor: #i1001493
Lessees and Tenants to be joined
List names and addresses of lessees as described in Section II A, Fee Owners to be Joined, if they are necessary parties. Also, describe in detail the nature and terms of the lease.
Normally, a month-to-month “renter” does not need to be made party to the proceedings since either party can cancel the renter's interest at thirty (30) day intervals. List the renter in Section III, Holders of Property Interests Not To Be Joined as Parties. Also see Form ROW-E-49 Preparation in the Eminent Domain Guide.
When a lease is not recorded or is oral, provide (1) the nature, terms and conditions, and parties to the agreement and (2) other pertinent, available information. If on-site visits or photographs reveal that tenants exist (e.g., tenants in strip shopping centers), then investigate and determine if (1) a lease exists and (2) show necessary parties.
Treat a commercial advertising sign interest in the land as a lease unless the sign structure is owned by the fee owner or a sign site easement exists. If a sign is illegal, the sign interest may not need to be addressed. ROW PD determines if there is a lease and then addresses the lease.
When property is not under lease, list it as “none” in this section.Anchor: #i1001534
Owners of Minerals, Mineral Leases to be Joined
On whole takings, review each document creating a mineral estate to determine if the mineral estate is larger than the parcel making up the whole taking. Determine if there is current mineral production near the acquisition area or if there are production facilities, flow lines, or other improvements within the acquisition area. If either condition exists, list the parties to be joined in this section.