ROW Eminent Domain Manual: Who, Where, When

Section 8: Who, Where, When - Helpful Suggestions

Overview

The following pages contain names of documents prepared and provided by OAG, in ED proceedings. The Notice of Deposit is a TxDOT-prepared form; a Memorandum is used in each condemnation case. In addition to the document title, each page contains information on who signs and where and when the documents are filed. Also, some helpful suggestions are provided.

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Petition For Condemnation

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- AAG

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Where Filed
- County court at law or district court as indicated on the petition. If there is more than one court of its type in the county where the land is located, the petition must be filed with the clerk for that court or courts

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When Filed
- First document to be filed when a condemnation is to be pursued.

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Helpful Suggestions
- Ensure property description and TxDOT prepared access and/or special clauses are attached. These must conform to the approved Minute Order.
- Ensure title update has been requested.
- Make sure a Cause Number is assigned.
- If appropriate, make sure you have a check for up-front filing fees. (In many jurisdictions fees will be accumulated and billed at end of lawsuit.)

The following situations require special provisions in the petition:

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Interstate - Partial Taking

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Interstate - Access Denied

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Interstate - Partial Taking with Easement

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Interstate - Category I Bisection, Controlled Access

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Non-Interstate Controlled Access - Partial Taking, Access Permitted

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Non-Interstate Controlled Access - New Location, Access Partially Denied

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Non-Interstate Controlled Access - Partial Taking with Easement

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Non-Interstate Controlled Access - New Location, Access Denied

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Non-Interstate Controlled Access - Whole Taking

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Non-Interstate Non-Controlled Access - Partial Taking and Whole Taking

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Non-Interstate Non-Controlled Access - Partial Taking with Easement

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Non-Interstate Non-Controlled Access - Category I Bisection

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Category I and/or II Bisection language

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When IRS is a Defendant
- Send file marked copy to AAG.

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Lis Pendens

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Who Signs
- TxDOT employee or ROWAPS (Right of Way Acquisition Professional Services) provider
- Notary Public

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Where Filed
- County Property Records
- Court record of court where proceedings are pending.

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When Filed
- Immediately after the Petition has been filed and the Cause Number is filled in and the State agent's signature has been notarized.

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Helpful Suggestions
- Fill in the Cause Number.
- Ensure property description and TxDOT prepared access and special clauses are attached.
- Fill in court number if required.
- Ensure full name of the court is included.
- Ensure correct parties are named.
- Send file-marked copy to AAG.
- Send file-marked copy to each of the parties by certified mail, return receipt requested.
- If appropriate, make sure you have a check or ability to pay for the filing in the County Property Records.

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Order Appointing Special Commissioners

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- Judge of the court where proceedings are pending.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After verifying each commissioner can serve.

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Helpful Suggestions
- Fill in the Cause Number.
- Fill in the date the Petition was filed.
- Ensure judge fills in the names of the three commissioners, dates and signs the order.
- Ensure order is filed prior to special commissioners' hearing.
- Send file-marked copy to AAG and each of the parties.

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Motion to Substitute Special Commissioner with Order Attached

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Who Signs
- AAG (motion)
- Judge (order)

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Upon completion of signatures.

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Helpful Suggestions
- Fill in Cause Number.
- Ensure names are filled in.
- Ensure commissioner's oath is signed and filed prior to the special commissioners' hearing.
- Send file-marked copy to AAG.

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Oath of Special Commissioners

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- Each special commissioner
- Notary for each commissioner's signature

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Once all three special commissioners have signed.

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Helpful Suggestions
- Fill in the Cause Number.
- Send file-marked copy to AAG.
- If an appointed commissioner is struck, the newly appointed commissioner will need to execute an oath.

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Order Setting Hearing Before Special Commissioners

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- Each special commissioner

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After special commissioners have signed and set the date of the hearing.
- Commissioners may not set a hearing before the 20th day after they were appointed.

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Helpful Suggestions
- Fill in Cause Number.
- Fill in date, commencing time and location after coordinating with AAG, owner/attorney if authorized by the AAG, commissioners, appraiser, State witnesses and court reporter.
- Ensure date the commissioners signed is filled in.
- Send file-marked copy to the AAG.

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Designation of Counsel In Charge For (Named Party) with Certificate of Service

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Who Signs
- AAG

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Usually filed by the AAG.

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Helpful Suggestions
- Make sure a Cause Number is assigned.
- Usually filed by the AAG by mail or may be sent to TxDOT for filing.
- Ensure the Designation and Certificate of Service are filed.
- Designation and Certificate of Service should be received by all parties and counsels named. (May be handled by AAG.)
- The Service is perfected by sending certified mail, return receipt requested.
- Send file-marked copy to the AAG.

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Acceptance of Service And Waiver of Notice of Hearing

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Who Signs
- Defendant or defendant's attorney

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- When signed by defendant or defendant's attorney.

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Helpful Suggestions
- Ensure the Cause Number is on the document.
- May require separate forms for property owner and attorney.
- Must be filed in advance of the Hearing.
- Ensure the property owner has a copy of the Petition - if not, send with the form.
- Ensure the date and place of the Hearing are filled in on the form.
- Send file-marked copy to the AAG.

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Notice of Hearing with Service of Notice Attached

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- Each special commissioner signs the Notice of Hearing.
- Person competent to testify who serves Notice of Hearing signs Service of Notice - signature must be notarized.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Upon completing the Service and when the Service of Notice has been signed and notarized.

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Helpful Suggestions
- Fill out Cause Number.
- Ensure copy of Notice of Hearing, along with a complete Petition is served on the party named not later than the 20th day before the day set for hearing.
- Ensure Service of Notice of Hearing is completed and is signed by the person competent to testify, who made Service and their signature has been acknowledged by a Notary Public.
- Send file-marked copy to AAG.

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Plaintiff's Motion For Nonsuit And Dismissal

NOTE: This pleading and order serves to dismiss the entire cause or action.

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Who Signs
- AAG

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After property has been closed by deed or deleted by design change, etc.
- Upon receipt from AAG.

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Helpful Suggestions
- Ensure the Cause Number is on the document.
- Arrange to present to the judge with an Order of Nonsuit and Dismissal.
- Ensure wording on the Motion reflects the reason for dismissal (e.g., the parcel has been deleted from the project, the State has negotiated the sale).
- Send file-marked copy to the AAG.
- The AAG may forward a release of Lis Pendens, which should be executed and filed in the Real Property Records after the Order of Dismissal has been signed by the judge.
- If the defendant in the Cause raises the question of attorney fees, appraisal costs, etc., consult with the AAG.

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Order of Nonsuit And Dismissal

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Who Signs
- Judge of court where proceedings are pending.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Once the judge has signed.

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Helpful Suggestions
- Ensure the Cause Number is on the document.
- Ensure the judge has filled in the amounts to be paid to the commissioners.
- Upload copy to OnBase for payment of commissioners.
- Send file-marked copy to the AAG.

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Award of Commissioners

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- Each commissioner present at the Hearing
- Judge of court where proceedings are pending.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- On the day the Award is signed by the commissioners or on the next working day.

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Helpful Suggestions
- Fill out Cause Number.
- Check Award before the Hearing. If blank, fill in name of court, date commissioners were appointed, names of commissioners, date of order setting hearing and date of hearing.
- Ensure Award contains property description and access, bisection and special clauses if appropriate.
- Check amount of Award.
- Arrange for judge to sign.
- Ensure payment to commissioners is filled in by the judge.
- Send file-marked copy to AAG.
- Upload fully signed copy for payment of the award and special commissioners to OnBase.
- Ensure Clerk mails to parties to be notified of filing of commissioners' award.

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Judgment of Court In Absence of Objection

(For sample forms, see Forms for Cities and Forms for Counties.)

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Who Signs
- Judge of the court where the proceedings are filed.

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Where Filed
- Court record of court where proceedings are pending.
- Property Records

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When Filed
- Upon being signed by the judge.
- Once money is deposited.

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Helpful Suggestions
- Ensure the Cause Number is on the document.
- Ensure the judgment has the property description and TxDOT prepared access, bisection or special clauses attached.
- Deposit the funds before arranging for the judge to sign. Have copy of receipt of deposit so the judge knows money is deposited.
- Arrange for the judge to sign.
- Obtain certified copies. Arrange for certified copy of the judgment to be filed in the Property Records.
- Order title policy from the title company.
- Send file-marked copy to the AAG and upload to OnBase.
- Verify the Notice of Decision or Award mailing date from the Clerk before having a Judgment in Absence of Objection signed by the judge to ensure the correct number of days have lapsed.

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Objections to Award of Special Commissioners

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Who Signs
- AAG

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Upon receipt from AAG.
- Within appeal period (i.e., before the close of business of the first Monday following 20 days of the Hearing).

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Helpful Suggestions
- Fill in Cause Number.
- AAG should sign Certificate of Service.
- Call AAG if objections have not been received by the week before the deadline.
- Send file-marked copy to AAG.
- Objections to Award are to be served on opposing parties by way of Citation (a/k/a precept) requested of and issued by the clerk. (The Clerk will attach a copy of the Objections.) Unlike Notices of Hearing, post-objection service is required to be made by a Sheriff/Constable or authorized private process server.

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Notice Of Deposit

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Who Signs
- TxDOT employee “agent” or ROWAPS provider

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- As soon as warrant is received and Notice is completed.

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Helpful Suggestions
- Ensure the Cause Number is on the document.
- If objections were filed, notify appraiser of the need to photograph and inspect the property on the date of deposit.
- Ensure a receipt for the deposit is obtained.
- Send file-marked copy to the AAG and upload to OnBase. Include a copy of receipt of the warrant by the clerk of the court.
- Usually the Notice of Deposit is done in conjunction with a Judgment in Absence of Objections. Whether objections have or have not been filed, the depositing of the funds in the registry of the court is the action that transfers possession of the property to the State.
- The Notice of Deposit pleading form will be prepared locally by TxDOT employee or ROWAPS provider in order to expedite the commissioners' award funds being deposited into the registry of the court. The Notice of Deposit and the Certificate of Service will be signed by an agent for TxDOT (either a TxDOT employee or a ROWAPS provider) and will then be delivered and filed with the proper court clerk along with the warrant. All parties to the suit, or their attorneys of record if they have one, need to be listed in the certificate of service portion of the form. The date in the certificate is to be the date the warrant and Notice of Deposit are delivered to the court clerk.
- On this same date, copies must be transmitted to all parties or their attorneys of record as stated in the certificate. If transmitted by mail, utilize certified mail, return receipt requested. Sufficient copies of the signed Notice of Deposit should be made so that all of the parties or attorneys of record as listed in the Notice are properly served with such copies, as stated in the certificate. Note that the Rules of Civil Procedure (Rule 21a) provide that service by mail shall be complete upon mailing by certified mail (depositing the properly addressed and postage paid envelope) in a post office or official depository under the care and custody of the United States Postal Service.
- If service is by telephonic document transfer (fax) it must be accomplished before 5 p.m. (local time of the recipient) of the date in the certificate, as Rule 21a provides that any such notice by telephonic document transfer after 5 p.m. (local time of the recipient) shall be deemed served on the following day.
- The court clerk's receipt showing the date the deposit was made into the registry of the court will be obtained and retained by TxDOT, with copies of this receipt to be forwarded immediately to the Assistant Attorney General handling the proceeding, in order to document the date possession is taken by the State.
- To preclude unnecessary payment of interest when no objections are filed to the award, the State's warrant must be deposited into the registry of the court prior to or no later than the date that the Judgment in Absence of Objections is signed by the judge of the court in which the proceedings were held.

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Disclaimer of Interest of Defendant And Certificate of Service

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Who Signs
- Disclaimer - defendant or defendant's attorney.
- Certificate of Service - person sending out the disclaimer.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Upon receipt if appropriate.
- Normally sent to the court by the attorney of the plaintiff or the defendant's attorney.

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Helpful Suggestions
- Make sure a Cause Number is assigned.
- Make sure the Disclaimer is signed.
- Make sure the Certificate of Service is dated and signed.
- All parties and counsels should receive a copy of the Disclaimer (normally sent with Certificate of Service).
- Service is perfected by certified mail.
- Send file-marked copy to AAG.

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Order of Dismissal of/Or As a Defendant

NOTE: Does not dismiss entire case.

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Who Signs
- The judge of the court where the proceedings are pending

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After the judge has signed.

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Helpful Suggestions
- Make sure a Cause Number is assigned.
- Make sure the judge dates and signs.
- Send file-marked copy to AAG.

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Order Scheduling a Hearing

(Note: Used when Citation by Publication required.)

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Who Signs
- Each special commissioner

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- When filled in and signed by each commissioner.

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Helpful Suggestions
- Fill in Cause Number.
- Ensure time of hearing is 10:00 A.M.
- Ensure date is first Monday following 42 days after special commissioners issue the Citation by Publication.
- Send file-marked copy to AAG.

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Affidavit For Citation by Publication

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Who Signs
- Agent for the State
- Notary Public

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Where Filed

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Court record of court where proceedings are pending.

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When Filed
- Upon completing signatures.

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Helpful Suggestions
- Fill in Cause Number.
- Ensure name of unknown person(s) with proper wording (e.g., unknown, heirs, assigns) is included in the affidavit.
- Send file-marked copy to AAG.

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Citation by Publication

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Who Signs
- Each special commissioner

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After special commissioners have signed the notice.

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Helpful Suggestions
- Fill in Cause Number, date and location (refer to Order Scheduling a Hearing).
- Ensure the name of the court, the date the original petition was filed for the case and the name and address of AAG are included.
- Ensure the County where the tract of land is located is included.
- Take to either the sheriff or constable of the county or the clerk of the court in which the proceedings are pending to be served.
- At this time do not serve Notice of Hearing to landowners whose identities and locations are known.
- When the Citation by Publication is delivered to be served, include accounting authorization for payment.
- Process payment through TxC.
- Send file-marked copy to AAG.

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Publisher's Certificate

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Who Signs
- Owner or appropriate officer of the newspaper which published the Citation by Publication.
- Notary Public

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Upon completion of the Certificate.

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Helpful Suggestions
- Fill in Cause Number.
- This certificate should be given to the sheriff or constable or the clerk of the court where the proceedings are pending and attached to the Citation by Publication.
- Ensure name, position, newspaper's name, dates of publication and cost of publication are filled in and documents are signed and notarized.
- Send file-marked copy to AAG.

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Officer's Return

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Who Signs
- Sheriff or Constable or clerk of the court in which the proceedings are pending to whom you gave Citation by Publication.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- Upon receipt and after sheriff, constable or clerk of the court where proceedings are pending has signed.

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Helpful Suggestions
- Fill in Cause Number.
- Ensure officer's return includes the date the Citation by Publication was received for Service, name of newspaper which published the Notice, the County in which it was published and dates of publication.
- Ensure printed copies of each Citation by Publication are attached.
- Ensure officer's return is dated no earlier than 28 days after the first date of publication.
- Send file-marked copy to AAG.

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Motion to Appoint Attorney Ad Litem

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Who Signs
- AAG

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- When completed - after initial hearing in a case requiring Citation by Publication.

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Helpful Suggestions
- Fill in Cause Number.
- Fill in date of initial Citation by Publication Hearing.
- Fill in date and location of the pending Hearing (refer to Order Adjourning Hearing and Order Resetting).
- Send file-marked copy to AAG.
- A similar motion will also be required in a case that required the appointment of an Attorney Ad Litem for the commissioners' hearing.

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Order Appointing Attorney Ad Litem

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Who Signs
- Judge of the court where proceedings are pending.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After the judge has signed the order.

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Helpful Suggestions
- Fill in Cause Number.
- Fill in date of initial Citation by Publication Hearing.
- Fill in date and location of the pending Hearing (refer to Order Adjourning Hearing and Order Scheduling a Hearing).
- Fill in County name.
- Send file-marked copy to AAG.
- A similar order will also be required in a case that required the appointment of an Attorney Ad Litem for the commissioners' hearing.

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Motion to Appoint Guardian Ad Litem

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Who Signs
- AAG

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- When completed

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Helpful Suggestions
- Fill in Cause Number.
- Fill in date and location of the pending Hearing.
- File and advise judge of the necessity to appoint a Guardian Ad Litem.
- Send file-marked copy to AAG.

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Order Appointing Guardian Ad Litem

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Who Signs
- Judge of the court where proceedings are pending.

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After the judge has signed the order.

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Helpful Suggestions
- Fill in Cause Number.
- Fill in date and location of the Hearing.
- Notify the appointed Guardian Ad Litem - provide any background material and a copy of the appointing order.
- Send file-marked copy to AAG.

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Order Adjourning Hearing

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Who Signs
- Each special commissioner

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Where Filed
- Court record of court where proceedings are pending.

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When Filed
- After special commissioners have signed the order.

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Helpful Suggestions
- Fill in Cause Number.
- Ensure the date to which the Hearing is reset gives ample time for services to be made on known located parties.
- Send file-marked copy to AAG.

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Discovery Documents

Objections and Responses to Interrogatories

Objections and Responses to Request for Production

Objections and Responses to Request for Admissions

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Who Signs
- Objections and Responses to Interrogatories - District representative with knowledge.
- Objections and Responses to Request for Production - attorney.
- Objections and Responses to Request for Admissions - attorney.

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Where Filed
- Court where proceedings are pending.

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When Filed
- As directed by the AAG.

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Helpful Suggestions
- Individuals named may be called to testify.
- After AAG receives TxDOT's draft, they will put answers in final form and send back to TxDOT for handling.
- Give full and complete answers.
- If other questions arise, call AAG for guidance. (Different attorneys handle these in different ways.)
- Send file-marked copies of any documents filed to the AAG.