What’s a special commissioner's hearing, and why is it usually best for the landowner to skip it?

Key Takeaways:

• A hearing may not resolve an eminent domain condemnation dispute because either side can object to the award and continue into litigation.
• Spending heavily on experts at this early stage can duplicate costs if the case later proceeds beyond the commissioner hearing toward mediation and/or trial.
• A low award may influence later negotiations, so landowners should discuss hearing strategy and objection deadlines with an eminent domain attorney.

In Texas, when a condemnor (public project builder) uses eminent domain to take private property, it must file a condemnation lawsuit unless it reaches an early settlement with the landowner. Once the lawsuit is filed, the case proceeds to a special commissioner's hearing.

The court appoints three special commissioners to conduct an administrative “mini-trial” and determine the amount they believe represents fair compensation for the landowner. The commissioners then file their award with the court. Once the project builder deposits the required amount into the court’s registry, it may generally take possession of the property and begin construction. If neither side objects to the award by the applicable deadline, the award becomes final.

Why Is Skipping the Hearing Often the Best Strategy?

In theory, the commissioner hearing process gives the condemning authority and the landowner a chance to resolve the case without going through normal litigation. Sounds like a good idea, right? So why is it usually in the landowner's best interest not to participate in the special commissioners' hearing? As an eminent domain attorney with years of experience upholding Texas landowners' rights, here are my five top reasons.

1. Either Side Can Object to the Award

If a landowner believes the award is too low, they may appeal the decision and proceed through the normal litigation process to determine fair compensation. The project builder can also object if it believes the award is too high.

By this point, the landowner may have spent considerable time and money preparing testimony from an appraiser, land planner, engineer, or other expert, only to end up back at square one. These resources are usually better spent preparing the case for settlement at mediation or, if necessary, going to trial.

2. The Selection Process Can Affect the Award

Both sides may object to a commissioner from the list proposed by the court. The condemnor will often object to commissioners it believes are likely to award more compensation to landowners. Although the landowner has the same right to object, our experience has been that this selection process tends to push awards lower overall.

Commissioners may also see the same attorneys representing the project builder across numerous properties, while interacting with a particular landowner’s attorney in only a few cases. That familiarity can create a perceived disadvantage for the individual landowner.

3. Preparing for the Hearing Can Be Expensive

Presenting a strong compensation case usually requires testimony from the experts referenced above. But because either party can object to the award, the landowner may later have to pay those experts to prepare again for depositions, settlement negotiations, or trial. In most cases, the landowner’s time and money are better used to prepare the case for trial or settlement prior to trial, often through mediation.

4. Who Pays the Special Commissioners May Matter

The commissioners are paid for their service by the condemning authority or the court, never by the landowner. Although commissioners swear to be objective, this arrangement can create the perception of bias against the landowner, with commissioners tending to favor the condemnor over the landowner.

5. A Low Award May Affect Later Negotiations

While a landowner can object, the project builder may continue pointing to that low commissioner award number during settlement negotiations as support for paying less. Although the commissioners’ award doesn’t necessarily determine the outcome after a timely objection, a low figure makes it more difficult to negotiate fair compensation.

Skipping the Hearing Doesn’t Mean Ignoring the Case

For all these reasons, in most cases, it’s better for the landowner to avoid the special commissioner's hearing, object to the award before the deadline after the hearing, and then pursue fair compensation through the normal litigation process.  

However, since every situation is different, consult with a Texas eminent domain attorney at Todd Law Firm to see if it makes sense for you to attend the special commissioner hearing in your condemnation case. Our skilled legal counsel will evaluate the potential costs and benefits, monitor the objection deadline, and recommend a strategy based on the property and project involved.