State v. Landry
793 S.W.2d 281
Tex. App.
1990
Check Treatment

*2 PRESSLER, Before PAUL CANNON ELLIS, JJ.

OPINION

CANNON, Justice. voluntarily Relator dismissed a condem- Floyd proceeding against Pryor, nation Jr. Pryor. and wife Gloria Broski Relator’s application for Writ of Mandamus and Pro- granted to determine hibition was whether relator is entitled to a determination of necessary the reasonable and fees to which Pryors are entitled under Tex.PROP. (Vernon Supp.1990). 21.019 § Ann. Code relator, In October of 1986 State Texas, commenced this condemnation ac- County tion in the Court at Law Num- County. Special 1 Harris commis- by the appointed sioners trial court. were hearing, Special After due an award entered on Commissioners was October objections filed to the 1987. The State During award. the course highway facili- relator determined that the redesigned as to eliminate ty could be so Pryor property. The State the need taking open announced in Court that it was dismiss its con- a nonsuit and desired to proceeding. demnation dismissal, subjected seeking fees itself to the assessment Tex.Peop.Code and cost accordance with (Vernon Supp.1990), 21.019 Ann. reads as follows: (b) grants A court that hears and a mo- tion to dismiss a condemnation under (a) shall make an allowance Subsection property owner for reasonable attorneys, appraisers, fees for photographers legal other ex- process and for the which a institutes penses incurred property owner to or which it seeks obtain its demand date of hearing. rights). Eppoleto v. Honorable Boumi- Sam principle sound constitutional It is a as, Judge, prohibition also a mandamus and litigants that are entitled to a trial on action, the Waco court held an action disputed principle all matters. factual pending in the district court for recov *3 right by jury of to trial in civil cases is ery necessary attorney of reasonable and only recognized in the Constitution of which also arose from Texas, the in State of but also the Constitu proceed dismissal the of a condemnation tion of the States of America. United ing, fit within the meaning of the word (Vernon Tex.Gov’t.Code Ann. 25.0007 § in Y, “cause” 10 764 art. 1 § Tex. Const. 1988) provides: 1988, writ). 284 (Tex.App.-Waco S.W.2d no jury of drawing panels, The of selection nognd The Waco court that a determination practice jurors, statutory in the and of amount a the landowner is entitled to county pre- courts must conform to that as recover reasonable and attor courts, by county except scribed law for expenses fees ney presents questions and evidence, procedure, that rules of is- Except of fact. in very special circum writs, process juries, suance of and and stances, questions fact should be deter pertaining all other matters to the con- by jury. the mined v. Brans Castleberry hearings duct trials in the statu- cum, (Tex.1986)(citing 277 of tory county involving courts those mat- I, 15). art. § Const. Tex. jurisdiction ters concurrent with dis- of Respondent City asserts that of governed trict by courts the laws Blackbird, (Tex. v. S.W.2d pertaining and rules to district courts. App.-Houston writ [1st Dist.] [Emphasis correctly as- added]. dism’d), dictates the decision this court. of that, by very serts its terms Section 25.- However, holding hinged the in Blackbird only procedural with 0007 deals not mat- an upon interpretation inaccurate of the ters, with but also substantive matters Texas Constitution. The Blackbird evidence, of pro- such as rules issuance of that “it right stated is well the settled that writs, juries. cess by jury trial provided to a as in Consti our Tex.PROP.Code (Vernon 1984)provides 21.001 that only tution relates § those matters where Ann. county district counts right courts at law in such a existed at common law or in jurisdiction have in statutory provisions concurrent eminent do- in existence at the Therefore, main cases. eminent adoption of the domain time in Constitution county governed cases in courts at law are 1876”. 658 S.W.2d at 273. The Texas by pertaining the rules Supreme Court has laws and to district expressly rejected that interpretation: courts. mistakenly decisions Some have treated 25.0031-25.2512 §§ Ann. Tex.Gov’t.Code Rights Bill of Judiciary

the and the Arti- (Vernon Supp.1990) 1988 and Vernon estab- is, cles as identical in meaning, specific county lish courts at law. With the right protecting by jury only the of trial exception 25.1032 County, of Harris § by as it existed at common stat- law or legislative create enactments concurrent in adoption effect at the utes time of the jurisdiction eminent in domain cases. The of Constitution. only legislative attempts enactment which Laredo, jurisdiction to divest district court of its State Credit Bureau of (Tex.1975) (interpreting jurisdiction S.W.2d and to vest the exclusive “cause”, V, proceedings as used in to mean in county art. eminent domain case, by jury. 1. Section 10. Trial trial of all to the demanded fee Courts, plaintiff causes in the District or party demanding jury, paid by be for such shall, upon open application in sum, defendant made exceptions may pre- such and with be court, by jury; but have the of trial Legislature. scribed empaneled case unless shall civil County expenses in a condemnation case court at law is the Harris provisions, 25.1032. 764 S.W.2d 284. Court at Law section that has been dismissed. accept Respondents’ To assertion that Respondents argue that Relators in a there is no trial Harris and, adequate remedy appeal have an County Court at because of its exclu- Law therefore, are not entitled to mandamus concurrent, sive, rather than However, requiring try relator to relief. extraordinary phenome- would create the effectively their case without would litigant non that a would be entitled nullity appeal. render the trial a certain every county trial in the State at 286. Such a re Eppoleto, 764 S.W.2d Texas in there is a court at remedy by appeal sult “falls well short law, except County. Harris convenient, ‘equally beneficial and that is V, Article 1 of the Constitution Section ” Jampole v. effective as a mandamus.’ provides: the State of Texas (Tex.1984). 569, 576 Touchy, 673 S.W.2d Legislature may such other establish *4 necessary may as it deem courts if Respondent contends that even organiza- prescribe jurisdiction and the trial, made no jury entitled to a thereof, may juris- conform the tion hearing respect to the on jury demand with other inferior diction of the district and objection litigation expenses, and made no courts thereto. litigation expenses trying to the issue of V, 8 establishes Const. art. Tex. hearing litigation on jury a at the without jurisdiction of a district the constitutional its expenses. Accordingly, it has waived court, civil giving jurisdiction over both jury City to trial. Houston a of Clayton, 163 and criminal cases. Lord v. 867, (Tex.App. Arney, 680 S.W.2d 718, (1961). 62, 721-22 Tex. 352 S.W.2d 1984, writ). We Dist.] [1st legislature by statute take The cannot agree. giv jurisdiction away from a district provides: Tex.R.Civ.P. Reasonover v. by en it the Constitution. in had jury trial should be No Reasonover, 512, 122 Tex. 58 S.W.2d 817 suit, request jury for a a unless written (1933). by the 1891 “It not intended was a the clerk of the court trial is filed with deprive to the district courts amendment the date set for time before reasonable from, spe of, jurisdiction the or to detract docket, non-jury cause on the trial of the Constitution; by cifically granted them the (30) days in thirty not less than but given con legislative ‘to the authorization advance. only authority to jurisdiction’ form the statutory the jurisdiction the of make [Emphasis added.] of the constitu courts concurrent with that Following grant of its Motion the courts, authority and was not tional district empan- jury Dismissal, the relator allowed destroy the district court’s consti to either action to be try eled to the condemnation any part or to transfer tutional jury file a did not discharged. Relator statutory court.” In exclusively of it a (30) to the Octo- days prior thirty demand Cockrell, (Tex.Civ.App. re litigation expenses. 5, hearing on n.r.e.). 1973, -Amarillo writ ref’d fact, jury demand a relator did not case, Accordingly, in the instant until Febru- litigation expenses the of issue exclu attempt legislature the to vest the of ary 1990. domain cases jurisdiction of eminent sive Furthermore, by Judge Landry set in Harris County Civil Court at Law the pronouncement on ting his oral aside validly deprive the district County does not grant not litigation expenses did constitutionally issue established courts of their al have which would a new Eppoleto The relator general jurisdiction. trial for a its demand it to renew concept that lowed holding correctly embraces must a new trial granting trial. An order litigant trial on has the designated as writing and attorney reduced to necessary be issue of reasonable and if finder on this issue Giles, jury as fact such. Clark & Co. v. 639 S.W.2d have a (Tex.1982). brought in district court the case were and the the district court where conclusion, that, upon proper we find juris- concurrent county court at law share timely request following voluntary do actions. We diction over condemnation proceeding, dismissal condemnation legislature intended to de- not think the to determine is entitled trial right by limiting con- prive party of that litigation property owner’s jurisdic- demnation actions to the exclusive including Attorneys, fees for county courts at in certain tion of law Appraises, Photographers for oth- counties. expenses property er incurred own- hearing. er to the date of the However, pre not the Relator did find that in the case We further instant of demand right by this its renewal serve timely request the relator failed to file a February after trial jury. for a granted Relator’s motion Judge Landry respondents request for We find award expenses attorney his withdraw Tex.R.App.P. damages pursuant 84 to The condemnation action had been award. without merit. be Relator, jury re dismissed and the requested writs of mandamus and hearing Judge Landry set a date leased. prohibition, requested stay, de- and the expenses for the issue nied. request a heard. The Relator did not be hearing. The impaneled for that J.,

PRESSLER, participating. *5 hearing place and the evidence and took presented. arguments of both sides were ON OPINION MOTION FOR request Relator to a The time for the REHEARING hearing, not after it was was before that response to the Relator’s motion By waiting until after the hear completed. rehearing requesting clarify that we our ing, waived its the Relator holding regarding on the waiver a expenses. attorney fees and on the issue attorney the issue of we April on The order entered prior opinion. supplement our The Relator proper. He had taken Judge Coleman urges Judge again that we order Coleman prior judge as fact finder place of the impanel jury to hear the evidence expenses. attorney fees on the issue of disputed fact issue of hold entirely his discretion to It is within expenses resulting from the dismissed con- evi- hearing and receive additional another so, demnation action. We decline to do Likewise, ruling. making his dence before rehearing. How- overrule the motion argument his discretion to hear it is within ever, reasoning clarify further our we weigh the evidence attorneys of the follows. ruling him make a the record before Judge Landry contends that The Relator attorney fees and ex- just and reasonable attorney fees setting aside his award of visiting judge penses. assignment expenses completely nullified the Octo- Judge Landry does replace the recused 5,1988 hearing entitled the Rela- disputed a new trial on this not constitute request days at léast 30 tor to new requested of manda- issue. The writs fact hearing pursuant date prior to the new prohibition are denied. mus and disagree this conten- Rule 216. We with parties held that the tion. We have brought in a

dismissed condemnation action deprived at law should not be hear the opportunity to have of rea- disputed on the fact issue evidence expenses. attorney fees and sonable opinion, our would be entitled