Austin Texas Family Law, Eminent Domain and Personal Injury Lawyer FAQ
Austin, Texas family law, eminent domain personal and injury lawyer frequently asked questions and answers
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What courts have jurisdiction over condemnation proceedings?
Texas Property Code, Section 21.001, states that district and county courts at law have concurrent jurisdiction over eminent domain proceedings. However, constitutionally created county and municipal courts have no authority to preside over condemnation proceedings. If an eminent domain case is pending in a county court at law and a question arises involving title to the property, the case must be transferred to the district court. There are a few instances that the jurisdictional provisions of Chapter 21 do not apply. Therefore, it is important to reference the enabling statute authorizing a particular county court at law’s creation. Also, if the landowner of the property is an estate, the condemnation proceedings will be held in the court handling the probate of that estate.
Section 21.013 also contains venue provisions relating to condemnation proceedings. Venue refers to the appropriate location in which a condemnation proceeding may be tried. These provisions state:
a. The proper venue for a condemnation proceeding is the county in which the property owner resides—if the owner resides in the same county as the property. If the property owner does not reside in the same county as the property, proper venue lies in any county in which at least part of the condemned property is located.
b. Ordinarily, if one or more county courts at law have jurisdiction over the condemned property, the party initiating a condemnation proceeding shall file the petition with any authorized clerk for that court or courts.
c. A party initiating a condemnation proceeding in a county in which there is not a county court at law must file the condemnation petition with the district clerk.
Condemnation proceedings primarily occur in county courts at law.
What is the condemnation process?
Condemnation proceedings begin when the government files a condemnation petition in court. A copy of this petition must be sent to the property owner by certified mail, return receipt requested. A condemnation petition sets forth the property sought to be acquired from the landowner. The Texas Property Code requires that the condemnation petition contain the following six elements:
a. A description of the property. The property description must be specific enough that a surveyor could go onto the land and mark out the property sought to be condemned. The description should be provided by metes and bounds, as used in deed conveyances, so that a surveyor could locate the exact property. The property description in a petition for condemnation must appear either on the face of the petition or by other writing referred to in the petition. Failure to adequately describe the property to be condemned in the petition divests the court of jurisdiction over the condemnation proceeding.
b. A specific statement of the intended use of the property by the condemning entity. The use of the condemned property must serve a public purpose or fulfill a function already performed by the governmental entity. Texas courts have ruled that any legislative declaration of public purpose (including a city council resolution) is usually upheld absent fraud. Under Texas law, property generally cannot be condemned for economic development purposes—so unless a specific exception applies, economic development is generally not a valid public purpose.
c. A list of the names of the all owners of the property. The government must make a good faith effort to name all parties with ownership interests in the property. However, this does not necessarily include mortgage holders. An allegation of ownership must also be included in the condemnation petition. To avoid giving parties with an interest in the condemning of the property the right to challenge the condemnation later, it is necessary to name those parties as defendants in the petition. The petition is only legally sufficient if it asserts that the defendants owned or claimed to own some interest in the property to be taken.
d. A statement that the government and the landowner have failed to reach an agreement on price.
See question #7.
e. A statement that the “Landowner’s Bill of Rights” has been provided to the property owners.
Under the Texas Government Code, Section 402.031, the Attorney General of Texas prepares a Landowner's Bill of Rights statement notifying property owners of their legal rights. The government must send the Bill of Rights via first class mail to the last known address of the person whose name is listed on the tax rolls for the property. This must be done at least seven days prior to the date of the final offer. The Bill of Rights may be found at https://www.texasattorneygeneral.gov/files/agency/landowners_billofrights.pdf.
f. A statement that a bona fide offer has been made.
See question #7.
What if the government and I do not reach an agreement?
Frequently, the government is unable to agree with the property owner on a price for the property. If an agreement on price cannot be reached, the government must then file a petition for condemnation in court.
If the case later goes to trial, the court may be required to determine whether the government met the requirement of making a the “bona fide" (good faith) offer to the landowner. To satisfy the bona fide offer requirement, the government must follow the following steps: (1) make an initial good faith offer in writing; (2) obtain a written appraisal of the value of the property being acquired—and the damages to the remaining property—from a certified appraiser; (3) make a final written offer (along with a copy of the appraisal and the proposed deed, easement, or conveyance if these have not been previously provided) at least 30 days after the initial offer—which is equal to or greater than the appraised value; and (4) give the property owner at least 14 days to respond to this final offer. Texas Property Code, Section 21.012, requires the government to state in the condemnation petition that it attempted but failed to reach an agreement on the price of the property. Failing to reach an agreement on price does not automatically create a cause of action by the landowner against the government for failure to negotiate in good faith.
The condemning entity must also send the landowner a copy of the Texas “Landowner's Bill of Rights”. This must be sent to the last known address of the person in whose name the property is listed on the property tax rolls and must be sent by first class mail either before or along with the condemning entity’s final offer. The statement must be in a legible font and type size. If the condemning entity is a public entity, it must make the Landowner’s Bill of Rights available on its website. Click this link to review the Texas Landowner Bill of Rights.
Is the government required to negotiate with me for my land?
Yes. Under Texas law, the government must negotiate with landowners. The government must be able to demonstrate a good faith attempt to reach an agreement for the sale of the property. The government must investigate all aspects of the property's value and prepare worksheets and summary sheets that help to determine the property’s value.
The government may need to acquire property that is titled to more than one owner. Examples of partial property ownership interests include partial fee simple interests, lease interests or mortgage interests, among others. The government will negotiate with all property owners if possible. However, a Texas appeals court has ruled that, under certain circumstances, the government may focus its negotiation efforts on a single owner—rather than negotiate with minority ownership interests.
What does the state do after it decides to take my property?
The focus of the acquisition process is determining the property’s value and current owners. The government attempts to acquire property through negotiation with landowners. If these negotiations fail, because they cannot agree upon a price or because the landowner will not sell at any price, then if the project meets the legal burden of "public use", the government may condemn the property.
What are the government's first steps in taking my property?
Texas Property Code, Chapter 21, governs the process by which the government exercises its eminent domain authority. This is generally referred to as "condemnation procedure" and the government must follow it when exercising its power of eminent domain.
The process of acquiring the necessary land begins when the government receives a formal description of the property, which usually includes a registered land surveyor’s field notes and a plat for each parcel in the project. The government may have to acquire an assortment of property rights, including fee simple title (outright ownership), utility easements (permission to use a portion of a property for a pipeline or for an electric transmission tower, for example), drainage easements and grading easements. The property survey will be an attachment to the prepared deed/easement—and possibly the condemnation petition if that becomes necessary. Therefore, the survey should state the exact nature of the property rights that the condemning entity plans to acquire.
Sometimes, road-widening projects have a unique problem when surveyors cannot find a real property deed for certain portions of the road being widened. When this happens, land surveyors typically include the following in their property description: “after diligent search of the real property records, no deed for ______ Road was discovered.” If facts support it, the plat should also reflect an implied dedication or prescriptive easement – in favor of the public – over the preexisting right-of-way.
Some projects only need temporary use of property rather than long-term ownership. Whether the owner of temporarily-acquired land must be compensated for its short-term use requires a fact-specific analysis of the temporary use. The compensation owed to the landowner will be determined by the length and extent of the use of the private property in question.
After preparing the necessary property description of the property, the government must check the property’s title history. Title insurance or independent research may be used to complete this step.
Finally, when the government needs to buy property for a major project, it is usually necessary to hire a licensed appraiser.
What is the legal basis for the power of eminent domain?
The government's power to exercise eminent domain authority is not limitless. For example, the government cannot take a landowner’s private property unless it is doing so for a public purpose – and therefore for the public’s use. Both the United States Constitution and the Texas Constitution limit the government's power to take private property. Additionally, constitutional provisions further require that landowners be paid just compensation when their private property is condemned.
a. The Fifth Amendment to the United States Constitution states:
“...nor shall private property be taken for public use, without just compensation.”
b. The Texas Constitution states:
“No person's property may be taken, damaged, or destroyed for or applied to public use without adequate compensation.”
The Texas Constitution provides broader protection than the U.S. Constitution because it includes a reference to “damaged or destroyed” property. This requires that landowners be paid for harm to their remaining property in addition to compensation for the land actually taken by the State. This also allows landowners, through a process called "inverse condemnation", to force the government to buy property that has been effectively taken, damaged or rendered unusable by the State.
The State of Texas and its political subdivisions are prohibited from taking private property for private (or non-public) purposes. Neither the Texas Legislature nor local governments are authorized to pass laws or ordinances that run contrary to these constitutionally guaranteed protections.
The government may not take private property for a public use without providing "adequate" or "just" compensation to the landowner. Additionally, no person may be deprived of their property unless they are afforded due process under law. In other words, the government must follow the proper procedure when taking private land for public use.
c. Texas Local Government Code, Section 251.001, grants cities the power to exercise eminent domain both inside and outside of their city limits. It states:
“When the governing body of a municipality considers it necessary, the municipality may exercise the right of eminent domain for a public use to acquire public or private property, whether located inside or outside the municipality...”
This general statute grants all municipalities (home rule, general-law and special-law) the power of eminent domain, allowing them to condemn private land both inside and outside their municipal limits. Further, Section 251.001 of the Local Government Code allows municipalities to condemn both private property as well as land owned by other governmental entities. In addition to cities, other local entities, public utilities, and common carriers have condemnation authority, but their powers are governed by different statutes than the laws that apply to cities.
What is “condemnation”?
"Condemnation" refers to the legal procedure that the government must follow when exercising its eminent domain authority to force the sale of a landowner’s private property.
What is “eminent domain”?
"Eminent domain" is a governmental entity’s legal authority to take private property for public use. When this occurs, the governmental entity must pay the landowner fair value (or "just compensation") for their property. The US. Constitution and the Texas Constitution restrict the government's power of eminent domain. Governmental entities have eminent domain authority over properties that are located both inside and outside their tax jurisdiction. The State’s eminent domain authority is delegated by specific statutes to state agencies, political subdivisions (i.e. cities, counties and special districts) and even some private entities. An entity with eminent domain authority to initiate condemnation proceedings may be referred to as condemning authority, condemning entity or condemnor.
State and local governments may acquire property for many reasons. If the government needs a landowner’s private property for a public use and the landowner refuses to sell, then Texas law allows the government to take the property through a condemnation proceeding by exercising the power of eminent domain. In addition to governmental bodies, some private entities have condemnation authority – but only for a public purpose. An example is a public utility which provides services to the public.
Note: To discussion, "government" may be used to refer to all of these entities that have eminent domain authority.
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