in Re Electric Transmission Texas, LLC
13-15-00423-CV
Tex. App.Nov 2, 2015Background
- Electric Transmission Texas, LLC (ETT) filed a petition in condemnation in Hidalgo County to acquire an easement over Wyatt Agri Products' 6.420-acre tract to install a transmission line and also filed a motion to appoint special commissioners.
- Wyatt filed a plea in abatement and special exceptions arguing ETT failed to make a valid statutory pre-suit offer (Tex. Prop. Code §§21.0113, 21.012) and sought a continuance and evidentiary hearing on that plea.
- The trial court set hearings, granted a brief continuance, indicated it would hear the plea in abatement, and the court stated (at least implicitly) it was overruling ETT’s plea to the jurisdiction.
- ETT filed an original mandamus petition in the court of appeals contending the trial court’s jurisdiction in the administrative phase is limited by the eminent domain statute and that the court had an absolute duty to appoint special commissioners immediately.
- The court of appeals concluded the trial court abused its discretion by not appointing three special commissioners and by scheduling/judging matters in the administrative phase beyond the statutory authority, and conditionally granted mandamus commanding the trial court to vacate void orders and appoint commissioners.
Issues
| Issue | Plaintiff's Argument (ETT) | Defendant's Argument (Wyatt) | Held |
|---|---|---|---|
| Whether trial court may hear plea in abatement before commissioners appointed | Trial court lacks jurisdiction in administrative phase; must appoint commissioners and not decide abatement now | Court can address bona fide-offer issue and abate under §21.047(d); plea in abatement is proper pre-commissioner | Court: trial court’s jurisdiction in administrative phase is limited; it must appoint commissioners and not decide abatement now |
| Duty to appoint special commissioners after petition filed | Appointment is mandatory — court has an absolute duty to appoint three disinterested county residents (§21.014) | Appointment can be delayed pending resolution of preliminary issues | Held mandatory: failure to appoint was an abuse of discretion and orders delaying/deciding issues were void |
| Effect of §21.047(d) (abatement/fees if no bona fide offer) | Section applies only when court is "hearing a suit" (judicial phase) and does not authorize pre-commissioner intervention | §21.047(d) authorizes the trial court to abate and address pre-suit-offer issues now | Court: §21.047(d) applies in the judicial phase; it does not give jurisdiction to intervene before commissioners are appointed |
| Waiver/adequacy of remedy by appeal (failure to obtain ruling) | ETT preserved issue; mandamus is proper to compel ministerial appointment and to prevent delay | Wyatt argued ETT waived because no explicit denial and court merely continued the hearing | Court: ETT did not waive; mandamus proper because motion was pending, duty to act is ministerial, and delay undermines statutory expedited process |
Key Cases Cited
- Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821 (Tex. App.—San Antonio 1994) (Property Code gives condemnors right to expedited commissioners’ hearing; courts should not delay commissioners)
- Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004) (statutory pre-suit requirements are not jurisdictional; abatement may be remedy for noncompliance but is contemplated post-commissioners)
- Denton County v. Brammer, 361 S.W.2d 198 (Tex. 1962) (filing objections to commissioners’ award converts proceeding to judicial phase and invokes court’s full jurisdiction)
- Peak Pipeline Corp. v. Norton, 629 S.W.2d 185 (Tex. App.—Tyler 1982) (trial court has duty to appoint commissioners; courts may not delay or interfere with commissioners’ administrative inquiry)
- In re Sw. Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (trial court abuses discretion by entering order beyond its statutory jurisdiction; mandamus is appropriate to review void orders)
- City of McKinney v. Eldorado Park, Ltd., 206 S.W.3d 185 (Tex. App.—Eastland 2006) (condemnation is two-part process: administrative commissioners’ phase then, if objected, judicial phase)