Reversed and Remanded and Opinion filed August 27, 2015.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-14-00462-CV

                        THE STATE OF TEXAS, Appellant

                                          V.

 TREELINE PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AND
   LAROCA PARTNERS II, LTD., A TEXAS LIMITED PARTNERSHIP,
                           Appellees

              On Appeal from the County Civil Court at Law No. 3
                            Harris County, Texas
                       Trial Court Cause No. 1016954

                                   OPINION
      In this action arising from the State’s condemnation of land containing
commercial buildings and a free-standing billboard, the State challenges the judgment
awarding a landowner nearly $4.9 million. In the dispositive issue, we conclude that
the trial court abused its discretion by informing the State’s attorney during voir dire
that the attorney would be held in contempt if she tried “to talk about whether
anybody believes that the State lowballs” or “anything similar.” Because this ruling
prevented the State from determining if there were grounds to challenge potential
jurors for cause and from intelligently exercising its preemptory strikes, we reverse
the judgment and remand the case for a new trial consistent with this opinion.

                                         I. BACKGROUND

       In order to widen Highway 290 in Houston, the State, acting through the Texas
Department of Transportation (identified in the transcript as “Tx.Dot”),1 filed a
petition in condemnation to acquire a portion of the land located at Highway 290 and
West 34th Street. The land was owned by “Treeline” and leased to a variety of other
entities.2 The State and Treeline were among the parties that objected to the Special
Commissioners’ award and sought trial de novo.

       The jury found that the difference between the pre-taking and post-taking
“market value of the whole property owned by [Treeline], including the sign site,”
was $4,880,520. After moving unsuccessfully for a new trial or for modification of
the judgment, the State brought this appeal.3

       The State presents eight issues for our review, but its first issue is dispositive.
Because we agree that the trial court abused its discretion by refusing to allow the

       1
          “Tx.Dot” also is sometimes written in the transcript with a final period, but to increase the
clarity of any excerpts, we have omitted the final period without noting the deletion.
       2
          We refer to Treeline as if it were the sole landowner and lessor. At trial, however, the
landowner was identified variously as the Shears family, Treeline Partners, Ltd., and Laroca
Partners II, Ltd. In the final judgment, the trial court ordered that the State recover fee simple title
to the parcel of land from Treeline Partners, Ltd., Laroca Partners II, Ltd., CBS Outdoor, Inc.
(“CBS”), and a dozen other defendants, but ordered compensation paid only to “Treeline” as the
landowner and lessor of the land, and to CBS as the owner of the billboard and the lessee of the
right to erect to erect and maintain the billboard on the premises. Because we reverse the judgment
and remand the case for a new trial, it is unnecessary for us to identify precisely which interests
were held by which parties to the judgment.
       3
        Although the State also challenged the portion of the judgment in which CBS was awarded
compensation for its billboard and leasehold interest, the State and CBS reached a settlement
agreement while this appeal was pending. At the parties’ request, we severed that portion of the
appeal.

                                                   2
State to ask proper questions during voir dire, and that this abuse of discretion
deprived the State of the right to a fair trial before an impartial jury, we reverse the
judgment and remand the case without ruling on the State’s remaining issues.

                                    II. VOIR DIRE

      When reviewing the trial court’s refusal to allow a particular line of
questioning during voir dire, we apply an abuse-of-discretion standard. See In re
Commitment of Hill, 334 S.W.3d 226, 228 (Tex. 2011) (per curiam). “Abuse of
discretion” means different things in different contexts. See Schuring v. Fosters Mill
Vill. Cmty. Ass’n, 396 S.W.3d 73, 76 (Tex. App.–Houston [14th Dist.] 2013, pet.
denied). Because litigants have a right to question potential jurors to uncover bias or
prejudice and to intelligently exercise peremptory strikes, abuse of discretion in this
context turns on the propriety of the question. Hill, 334 S.W.3d at 228–29. When the
trial court’s denial of the right to ask a proper question prevents the litigant from
determining whether grounds exist to challenge a potential juror for cause or prevents
the litigant from intelligently using peremptory strikes, then the trial court abuses its
discretion. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709 (Tex. 1989) (op. on
reh’g).

A.    The trial court abused its discretion.

      The State contends that the trial court erred in cutting off four lines of
questioning: whether potential jurors believe that (1) the government’s right to take
private property is too great a power, (2) landowners should be paid more than
market value for condemned property, (3) landowners should be compensated for
sentimental value, and (4) the State lowballs its fair-market-value appraisals.

      The first of these was duplicative of many other questions regarding the State’s
right to take private property. The next two lines of inquiry present closer questions,
not only because of the dearth of caselaw on these types of inquiry, but also because
                                           3
the record of voir dire shows that Treeline’s counsel already had strongly implied to
the jury that Treeline’s property had sentimental value for which the State’s offer was
inadequate.

      The last line of inquiry, however, does not present a close question. The trial
court refused to allow the State’s attorney to ask potential jurors “whether anybody
believes that the State lowballs,” and told the attorney that if she asked the question,
then the trial court probably would hold her in contempt. When the attorney sought
clarification about what she was not allowed to ask, the trial court not only refused to
do so, but expanded the threat of contempt.

      To see why the trial court’s action constituted a harmful abuse of discretion, it
is helpful to first place it in context. The State attempted to ask potential jurors if
they believed that the State “lowballs” its appraisals of condemned property only
after Treeline’s counsel already had implied that this is indeed what the State does.
The progression of that line of questioning from Treeline’s attorney was as follows:

      Is there anyone on the panel who feels that when the State widens
      highways in front of retail centers that the property owner should not
      complain about the amount of compensation the State is willing to pay?
                                         ....
      Is there anyone that feels . . . you should not complain about what they
      are willing to pay you for what they have done to you?
                                         ....
      [T]here may be people on the panel in prior cases we’ve seen that think,
      look, I think if you own retail property on a highway and Tx.Dot needs
      to widen that highway, you should just take it, suck it up, take it and
      move on.
                                         ....
      I agree the State should pay for what they take but if they damage what
      you have left, you should suck it up and take it. Is there anyone on the
      first row that feels that way?


                                           4
                                   ....
[The following was asked after a potential juror stated that Tx.Dot had
widened the road in front of the business he had built “from the ground
up,” and that the State did not offer to compensate the potential juror
because the road didn’t encroach on his property.] “Was there an
acknowledgment they caused you damage?”
                                   ....
Has anyone on the panel ever had anything, owned anything that was
precious to them and somebody else broke it? . . . Anybody on the first
row ever owned any property that was special to you and somebody else
broke it?
                                   ....
[S]omething really important to you.
                                   ....
Did you have to work and spend a lot of time and effort to get what you
thought was fair?
                                   ....
[The following was asked after a potential juror stated that someone had
crashed into his boat]. Did the guy that crashed into your boat start
making excuses?
                                   ....
Did they acknowledge the damage, or did they try to minimize the
damage?
                                   ....
How did it make you feel when the guy that crashed into your boat tried
to minimize what he had really done to you?
                                   ....
It wasn’t fair was it?
                                   ....
Has anyone had a situation like that like [the boat owner] has had where
something that you had somebody else broke it and then they tried to
minimize what they had done to you?
As the following demonstrates, the trial court’s handling of the State’s voir dire

                                     5
contrasts sharply with its handling of Treeline’s voir dire:

      THE STATE:          With regard to Tx.Dot I am going to tell you a little
                          bit about the eminent domain process. What happens
                          is Tx.Dot comes in and –
      THE COURT:          Wait, wait. I want all three lawyers up here so we
                          have an agreement on what we are going to do and
                          not do.
                                     (At the Bench)
      THE COURT:          What is the point of this? I’m not sure. Once it hits
                          this Court, it is no longer an administrative case. I
                          am not sure how this is not going to be prejudicial.
      THE STATE:          I was going to talk about whether anybody believes
                          that the State lowballs, which I think is an
                          appropriate question.
      THE COURT:          If you do that, I am going to probably hold you in
                          contempt of court. So you might want to write that
                          down.
      THE STATE:          Your Honor, just for the record, I am not allowed to
                          ask –
      THE COURT:          If you try to do that, I will hold you in contempt of
                          court.
      THE STATE:          Okay.
      THE COURT:          That’s my official ruling, or anything similar.
                          Anything similar. You will have to use your noggin
                          to figure out what that entails.
      THE STATE:          Thank you, Your Honor.
                               (End of Bench discussion)
      We are unable to identify the trial court’s reason for cutting off this line of
questioning and threatening the State’s attorney with contempt. The trial court could
not have intended to prevent the State’s attorney from mentioning the parties’ failure
to settle, because the court already had permitted Treeline’s counsel to inform
potential jurors of the impasse, as follows:


                                               6
      TREELINE:               What if the parties, I mean, in this case, the parties
                              were not able to come to an agreement? The State
                              did not want to pay what the landowner thought the
                              damages were, and the landowner didn’t want to
                              accept what the State thought the compensation
                              should be and that’s why we have a panel here this
                              morning, right?
The trial court did not merely permit this commentary; it added to it, telling potential
jurors, “It is not uncommon that the condemning authority and the landowner don’t
agree.” The trial court also did not intervene when Treeline’s counsel quantified the
disagreement for potential jurors:

      TREELINE:               The compensation due is $4.8 million. You are going
                              to hear evidence from the State that the compensation
                              due is $2.3 million. There’s a gap between the
                              parties of two-and-a-half million dollars.
If the trial court had considered references to the parties’ failure to settle to be a
matter that justified holding an attorney in contempt, then it would have been
Treeline’s counsel that faced such a penalty.

      In attempting to ask potential jurors whether they believe that the State
“lowballs,” the State’s attorney properly inquired about whether the venire members
held a preexisting bias or prejudice that the State underestimates property values. See
WEBSTER’S NEW WORLD COLLEGE DICTIONARY 801 (3d ed. 1996) (defining “low-
ball” as a verb meaning “to give an understated price, estimate, etc. to (someone),
esp. without intending to honor it” or “to so understate (a price, etc.)”). This inquiry
goes to whether the prospective jurors could impartially judge the credibility of the
State’s witnesses regarding value. See Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim.
App. 1999) (explaining that a member of the venire may be challenged for cause if he
cannot impartially judge credibility).4


      4
          “As the statutory standards for bias or prejudice in civil and criminal cases are the same,
                                                  7
       The clearest demonstration of the importance of this line of inquiry and the
harm from its exclusion is found in the transcript of closing arguments. There
Treeline’s counsel told the jury that the State’s appraiser used “low ball numbers.”

       In an attempt to distinguish its own attorney’s use of this language, Treeline
filed a post-submission brief in which it stated, “Treeline did not argue in closing
about any ‘lowball offers’ by the State. Rather, Treeline argued in closing about the
evidence     of   ‘low        ball’   market   value   numbers   to   which   the   State’s
appraiser . . . testified.”     According to Treeline, there is a “critical distinction”
between talking about “the State’s offers that are a statutory prerequisite to
commencing the administrative phase of a condemnation proceeding” and talking
about evidence admitted at trial.

       To make this argument, however, Treeline has altered both what its own
counsel said and what the State’s attorney said.            Regarding Treeline’s closing
argument, Treeline’s counsel did not say “low ball market value numbers”; he said
that the State’s appraiser “believes he has to go 17 to 18 miles away from this
property to support the low ball numbers that he’s offered for you to consider in this
case.” That is, the attorney argued that the State’s appraiser was literally going out of
his way to justify an underestimate of the property’s value.

       As for its characterization of the State’s voir dire, Treeline says that “the trial
court correctly precluded the State’s counsel from asking voir dire questions
concerning the State’s ‘lowball offers’ where the State’s question clearly related to
the administrative phase of condemnation.” But here, too, Treeline has altered the
text. The State did not say “lowball offers”; it did not even use the word “lowball” as
a modifier. It used the verb “lowballs.” The State’s attorney said she “was going to


voir dire standards should remain consistent.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743,
753 (Tex. 2006).

                                                8
talk about whether anybody believes that the State lowballs,” that is, whether the
State underestimates a property’s value. That is the same way in which Treeline’s
counsel used the expression.

      Treeline asserts that the trial court did not abuse its discretion in cutting off this
line of questioning because the venire panel already had been questioned about the
government’s right to take private property for public use; about fair market value
and premium value; and about whether prospective jurors could follow the law and
award “just compensation” for the taking. Cf. Cortez ex rel. Estate of Puentes v.
HCCI-San Antonio, Inc., 159 S.W.3d 87, 92 (Tex. 2005) (explaining that the trial
court “may place reasonable limits on questioning that is duplicative or a waste of
time”). Such questions, however, were part of a distinct inquiry. Those questions
dealt with whether prospective jurors believed that a landowner would be entitled to
greater-than-market value, either because the property had sentimental value or
because the landowner was an unwilling seller. Such questions reveal prospective
jurors’ beliefs about what constitutes “just compensation.” In contrast, a question
about whether a potential juror believes that the State “lowballs” is intended to reveal
whether the individual has a preconception that the State undervalues property.
Because a belief that a landowner is entitled to nothing more or less than fair market
value is independent of a belief that the State undervalues property, the two lines of
inquiry are not duplicative: a single juror could believe both things, disbelieve both,
or believe one and not the other.

      In sum, the forbidden line of inquiry goes to whether potential jurors believed
that the State’s valuation of the property—which includes the evidence of valuation
that the State would present at trial—is really the State’s assessment of the property’s
fair market value or instead represents some lesser amount that the State believes that
the property owner (or the jury) will accept. The State could not tailor the inquiry


                                            9
more narrowly, because the trial court said that if the State ‘s counsel asked “anything
similar” to such a question, then the trial court would hold the attorney in contempt of
court. The trial court refused even to clarify what exactly the State’s attorney could
not ask. Cf. Kiefer v. Cont’l Airlines, Inc., 10 S.W.3d 34, 41 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied) (holding that the trial court did not prevent litigants
from preserving error where the trial court prevented a juror from answering
questions, but did not prevent counsel from asking questions). The trial court abused
its discretion in barring the State from asking any proper question in this appropriate
line of inquiry.

B.    The trial court’s abuse of discretion was harmful.

      Because the State was denied the opportunity to intelligently exercise its
peremptory strikes and to discover whether any prospective juror was subject to a
challenge for cause based on a preconception that the State undervalues property, we
conclude that the State was denied the right to trial by a fair and impartial jury. This
constitutes harmful error. See Babcock, 767 S.W.2d at 709.

      In arguing to the contrary, Treeline states that the jury actually seated in this
case did not include three panel members who believed the landowner was entitled to
a premium, and did not include two panel members who mentioned negative
experiences with the State or with condemning authorities. What Treeline cannot
say, however, is that no one seated on the jury held a preexisting, prejudicial belief
that the State undervalues property. That cannot now be determined, because the trial
court did not permit that question, or “anything similar.” It is therefore impossible to
know whether, if this line of inquiry had been permitted, any additional jurors would
have been challenged for cause or been removed from the panel through the State’s
use of a peremptory strike.

      Treeline contends that the State “could have, but did not ask to further

                                          10
question” three specific jurors, and “the State had the opportunity to bring additional
venire members before the bench for further questions.”                The scope of this
opportunity was as follows:

      THE STATE:           Your Honor, just for the record, I am not allowed to
                           ask –
      THE COURT:           If you try to do that, I will hold you in contempt of
                           court.
This is no opportunity at all.

      We sustain this portion of the State’s first issue.

                                   III. CONCLUSION

      We conclude that the trial court abused its discretion and denied the State a fair
trial before an impartial jury by preventing the State’s counsel, on threat of contempt,
from asking prospective jurors if they believed “the State lowballs,” or asking
“anything similar” to such a question. Without reaching the remaining issues, we
reverse the trial court’s judgment and remand the case for further proceedings.




                                        /s/        Tracy Christopher
                                                   Justice




Panel consists of Justices Christopher, Brown, and Wise.




                                              11
