Part 3 in the Condemnation Process: Special Commissioners’ Court- When Settlement Negotiations are Not Enough

Patrick Reznik, condemnation attorney at Braun & Gresham.

Patrick L. Reznik, an attorney with Braun & Gresham, answers a few common questions about the rights of Texas landowners threatened by eminent domain, a process by which private and public entities condemn private lands to build transmission lines, pipelines, rail systems and roads, and to take surface or groundwater. 

This is Part 3 in a 3 part series on understanding the condemnation process. To read Part 1 & 2, follow the links below.
“Part 1: I Received a Letter Saying They’re Taking my Land…Now What?”
“Part 2: Negotiating Your Terms and Compensation”

Who are the Special Commissioners?
They are three “disinterested” real property owners who reside in the county where the property to be condemned is located.  Often times our clients know one or more of the three Special Commissioners.

Who appoints the Special Commissioners?
Remember, the condemning authority will have filed a lawsuit or a Petition for Condemnation against the landowner.  The law requires the judge where the lawsuit is filed to appoint the three Special Commissioners.

What if I don’t want one of them to hear my case?
The landowner has the right to strike only one and the judge will appoint a replacement.

Where is the hearing held?
The hearing can be held at any place in the County Seat open to the public, including the courthouse, an office or a even a hotel conference room reserved by the condemning authority.

When will the hearing be set?
Every case is unique and it’s hard to know exactly when a hearing will be set.  The law does require the condemning company to serve the landowner with notice of the hearing “not later than the 20^th day before the day set for the hearing.”  Also, the hearing may not be scheduled before the 20^th day after the date the Special Commissioners are appointed.

What is the role of the Special Commissioners?
Strictly to “assess damages” for the property being condemned according to the evidence presented at the hearing and award a dollar amount to the landowner.

Who presents evidence first?
The condemnor (the party seeking to condemn your land) has the burden of proof and will present evidence first.  Generally, the company will explain the “public need” for and the use of the condemned land.  The company will have their appraiser testify to the dollar amount of damages contained in the written appraisal the landowner previously received as part of the company’s final “bona fide offer.”  We cross examine the company’s witnesses with valuable input from our clients.

When do I present my case to the Special Commissioners?
After the condemnor presents its evidence, the landowner’s appraiser will testify to his or her assessment of damages that should be awarded for the property being condemned.  This number is generally much greater than the number given by the company’s appraiser.  The landowner should also testify along with any other family members as to the damages caused by the condemning authority’s taking of their land.  The landowner should discuss with his or her attorney other witnesses that may be helpful to their case.

What if either side does not like the award from the Special Commissioner?
Then either side can file an objection to the Special Commissioners’ award and appeal to the judge where the lawsuit was filed.  A jury trial can be requested.

Can I get the award in cash now?
Yes, the landowner has the right to take the money awarded.  But remember, if a lesser amount is awarded based on the appeal, then the landowner would have to pay the difference.

May I get my attorney’s fees reimbursed from the condemning authority?
No, not if the condemnor made a “bona fide offer” under the law.  And remember, just because the landowner was awarded more than the company’s appraisal, does not mean it did not make a “bona fide offer.”

Do landowners fare better with an attorney?
There are many critical decisions to be made during this complicated process.  In my experience, landowners do better with an attorney.  In addition to the three principles I discussed in part 1 of this 3-part series, we work toward helping our clients with the following:

• relieving the stress of negotiating the easement and compensation;
• deciding whether to proceed with a Special Commissioners’ hearing;
• choosing a qualified and affordable appraiser;
• presenting evidence at the contested hearing;
• balancing the decision whether to accept the award and/or any appeal; and
• getting the best and fairest compensation and results.

Give us a call today to begin developing a plan of action for how you want to challenge your private or public condemning agency. At Braun & Gresham, we represent landowners exclusively, so we always have your best interests in mind. We bring authority and expertise to the condemnation process which translates to a place at the table— a place that is invaluable in a seemingly helpless process.