In fairly and impartially assessing damages, the special commissioners are governed by Texas Property Code Sections 21.041 and 21.042.
Section 21.041 states that the commissioners shall admit evidence on the following topics:
- The value of the property being condemned;
- Any injury to the property owner;
- Any benefit to the property owner's remaining property; and
- The use of the property by the condemning entity seeking to acquire the property.
Section 21.042 sets the guidelines for the special commissioners to assess damages:
1. Special commissioners shall assess the damages according to the evidence presented.
If an entire tract of land is taken, the damage to the property owner is the fair market value of the property at the time of the special commissioners’ hearing.
2. If a portion of a tract of land is condemned, the commissioners shall determine the damage to the property owner after estimating the extent of the injury and benefit to the property owner. The special commissioners must also take into account the effect of the condemnation on the value of the property owner’s remaining property. (The damages will be the fair market value of the portion taken and the damages, if any, to the remainder property as a result of the taking).
3. When estimating injury or benefit, the special commissioners shall consider injury or benefit that is peculiar to the property owner and that relates to the property owner’s ownership, use or enjoyment of the particular parcel of real property—now or in the reasonable, foreseeable future. This includes any material impairment of direct access on or off the remaining property that affects the remaining property’s market value. The commissioners may not consider injury or benefit that the property owner is likely to experience in common with the general public. (This includes increased traffic difficulties getting to the property or loss of visibility from the road. It also includes difficulty traveling within the property due to grade changes caused by an embankment for an adjoining street).
4. If a portion of a tract or parcel of real property is condemned for use in conjunction with a highway project, the special commissioners shall consider the special and direct benefits that arise from the project that are peculiar to the property owner and that relate to the property owner’s use, ownership and enjoyment of a particular parcel or the remaining property.
Any valuation must always consider the "highest and best use" of the property—both immediately or in the reasonable, foreseeable future.
Additionally, evidence comparing the raw land of the tract taken with subdivided property elsewhere should not be introduced.
After assessing the damages and allocating the costs, special commissioners are required to make a written statement of their decision. The statement, known as the “Award of Special Commissioners”, should be executed and dated by the commissioners and filed with the court on the day of or the next working day after the decision is made. The award is usually prepared and filed by the government acting for the commissioners. The clerk of the court is then required to send notice of the decision to each party by certified or registered mail by the next working day after the award has been filed.
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