Texas Eminent Domain Process
The majority of eminent domain cases in Texas meet the requirements for public use and necessity. Examples of cases that meet this criteria are the acquisition of private property for a road expansion project; the acquisition of property for a school expansion project or installation of new sewer lines.
If the taking of your property meets the requirements for public use and necessity, then continue reading to learn more about the eminent domain process in Texas. Please note there are extended explanations for all of the numbered sections in the flowchart. We will be adding additional information on each item in the flow chart in the near future. Please be aware that the flow chart is simply an overview of the process and should not be used as a tool to take matters into your own hands.
Typically during project development, the condemning authority (whether that agency is the Department of Transportation, or a City/County Planning Division, etc.) will hold public meetings to inform the public of the upcoming project and how this project will affect private property.
Before the condemning authority makes an offer, they must determine the value of the property being taken, and all damages associated with the taking. This valuation is determined by an appraiser, and is then reviewed by the condemning authority before an offer is made. These appraisers often have long-standing relationships with the government, and their appraisals may contain errors such as using incorrect comparables, or they may not value your property at its “highest and best use”. Frequently, they ignore severance issues or dramatically understate their significance and impact.
The condemning authority must provide in writing to the property owner no later than seven days before making a final offer, the landowner’s bill of rights statement. Read more about the Texas landowner’s bill of rights.
The condemning authority must disclose at the time an offer is made, any and all existing appraisal reports produced or acquired by the governmental entity relating to the owner’s property and used in determining the final valuation offer.(Texas Stat. §21.0111(a))
Depending upon the complexity of the case and the amount of additional damages done to the property, it may be necessary to allow condemnation to occur in order for the property owner to receive just compensation. If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim.
After the condemning authority makes an offer, the property owner's attorney will evaluate the appraisal and offer to determine if it represents just compensation. If the attorney finds errors in the condemning authority's valuation, then they will determine how best to proceed.
The attorney will need to assess all damages that were not included in the condemning authority's valuation and determine the full amount of compensation owed to the property owner. The attorney will then determine how best to present this information to the condemning authority during the negotiation phase.
In many eminent domain cases, a second appraisal must be conducted on the property in order to show the full compliment of damages, including those missed by the condemning authority’s appraiser. This appraisal is submitted as evidence supporting the property owner’s claim for additional compensation.
A property owner must disclose to the condemning authority any and all appraisal reports produced or acquired by the property owner relating specifically to the owner’s property and used in determining the owner’s opinion of value. This must take place within 10 days of receipt of appraisal reports but no later than 10 days prior to the special commissioner’s hearing. (Texas Stat. §21.0111(b)
If the property owner is satisfied with the offer, they can sign the final settlement papers, therefore waiving their right to pursue additional damages. At this point in time, the case is complete.
Once the final settlement papers are executed by the property owner, the deed is transferred to the condemning authority. It is at this time that ownership is transferred from the property owner to the condemning authority.
The owner is paid in full, the condemning authority owns the property, and the owner's case is completely done. The property owner can no longer file a claim to challenge the taking or to receive additional compensation.
If, after negotiations, the property owner is not satisfied with the amount offered by the condemning authority, they can refuse the offer and allow condemnation to occur.
If the condemning authority can not reach a settlement agreement with the property owner, they may begin the condemnation proceedings by filing a petition in the proper court. (Texas Stat. §21.012(a)) District courts and county courts at law have concurrent jurisdiction in eminent domain cases. A county court has no jurisdiction in eminent domain cases (Texas Stat. §21.001)
The judge in the court where the condemnation petition was filed or to which an eminent domain case is assigned will appoint three disinterested landowners who reside in the county as special commissioners to assess the damages of the owner’s property that is being condemned. (Texas Stat. §21.014)
The special commissioners will schedule a hearing where each party can present their evidence supporting their opinion on the amount of damages and just compensation. (Texas Stat. §21.015)
As the basis for assessing actual damages to a property owner from a condemnation, the special commissioners will admit evidence on: 1. the value of the property begin condemned, 2. the injury to the property owner, 3. the benefit to the property owner’s remaining property; and 4. the use of the property for the purpose of the condemnation. (Texas Stat. §21.041). The special commissioners will assess damages in the proceeding according to the evidence presented at the hearing. (Texas Stat. §21.042)
After the special commissioners have made an award in the eminent domain proceeding, the condemning authority can usually take possession of the property, provided the condemning authority pays the property owner the amount of damages and costs awarded by the special commissioners or deposits that amount of money with the court.(Texas Stat. §21.021(a)(1)) If the money is deposited with the court, the property owner can petition the court to withdrawal the money. Prior to withdrawing the money, they must file a tax certificate by the tax collector for each taxable parcel on the condemned property showing that there are no delinquent taxes, penalties, interest, or costs owing on the condemned property or on any larger tract of which the condemned property forms a part.(Texas Stat. §21.0211)
At the time of acquisition through eminent domain, the governmental entity will provide to the property owner in writing that the owner and the owner’s heirs are entitled to repurchase the property if the public use for which the property was acquired through eminent domain is canceled before the 10th anniversary of the date of acquisition. The repurchase price is the fair market value of the property at the time the public use was canceled. (Texas Stat. §21.0123).
If the owner is satisfied with the amount of just compensation determined by the special commissioners, they may sign off on the award, therefore waiving their right to pursue additional just compensation and their case is done.
If the property owner is not satisfied with the amount of just compensation as determined by the special commissioners, they can appeal this award by filing a written statement of the objections and their grounds with the court that has jurisdiction of the proceeding. The statement must be filed on or before the first Monday following the 20th day after the commissioners file their finding with the court. (Texas Stat. §21.018(a))
If the objection is filed, a trial will be conducted in the same manner as other civil cases to determine the amount of damages and just compensation. (Texas Stat. §21.018(b))
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