                                                             April         30,    1958



Honorable           Robert         S. Calvert
Comptroller             of Public             Accounts
Austin,      Texas


                                                                                              Opinion             No.     WW-422


                                                                                              Re:         Payment               of Special                  Com-
                                                                                                         missioners                   in Condemna-
Dear      Mr.      Calvert                                                                                tion       Suits


We   are     in receipt            of you,r           letter       of Apri.1           11, 1958,        asking           for    an opinion                   on
payment         for    condemnation.                   commi,ssi,oners,                     said       l,etter       asking:


           ‘“Would           a special            commi,ssioner                   appointed            under          condemnation
           proceedings                for     obtain,ing            rights        of way         for     the Highway                  Commis-
           sion       be all,owed             $3.00         for    each         item     in the         ju,dgment              requiring               his
           appraisement                  or       wol;,ld      he be allowed                $3.00         a day         for     all    the        items
           covered            in the        judgment?                   In other        words,          if a speciab              commis-
           sioner        acts      on several                items         in one       judgment                or    a different                judg-
           ment        in the      same            day,     would         he be allowed                  $3.00          for     each        i.tem,          or
           would       he be       1::mited           to    $3.00         for     one    day’s          service?


           ‘“In counties               cor.+.airi.n g a population                       of more           than         five     hun,dred              thou-
           sari,,, wo;lld          the      sppecl~al commissioner                          be     li,mited           to a s:n.gle               fee
           fixed      by      the Court             r,ot less           than      $10.00,        or would               such     commi,ssioner
           be     on a per         d:,em          basis        wj.th a fee          as fixed           by the           Court         not    less           than
           $10.00        p er    day?”


           These        ques’.ions            req,~iire           a consf.ru,cti.on              of Section              3 of Art:.cle                 3266,
           V.A.C.S.,            which         reads         as fol,lows:


           Commissioners                      sha1.l receive                for     their      servi,ces              Three           Dollars
           ($31,       for     each         day     they       may       be engaged              in the          performance                     of
           their      dc,,ti,es.       except         tha : in counties                  of over          five        hun,dred          thou-
           sari... (500.000)                population,              accordi,ng          to the          last        preceding              or        any
           future       Federal             Census,            the      County         Judge        shall         set    the     fee        of the
           Commissioners                      at any         amount            he may         deem         reasonabl,e,                not
           less       than      Ten,     Dollars            ($l,O).        Commissioners                     may         withhold                their
           deci.sioc          ur.trl     the.17 fees              are     pai,d.”
                                                                                                                                                           -               -




Hon.       Robert         S. Calvert,              page       2 (WW-422)




There          is a distinction                between             the     special           commi.ssioners                        referred          to in the
Title      52, V.A.C.S.                 (Arts.         3264-3271              V.A.C.S.)             and      petit        juiors          for     regular
civil      cases.          Their         functions            are     not at al,1 similar                      and         should         not     be confused.


When        a condemning                  authority            desires              to exercise              its     power           of eminent                 domain,
it files        a “statement               in writing”               with       the     County            Judge           setti.ng        forth      certain
facts,      Art.        3264(l)        V.A.C.S.              The      Ju,dge          is then          required                to appoint           “three            dis-
interested              freeholders              of said           county       as special               commissioners                          to assess              said
damages,             giving        preference                to those          that        are     agreed           upon         between            the        parties.”
Art.      3264(Z),         V.A.C.S.


The      commissioners                    are      thereafter                 sworn         in.     Art.       3264(3),             V.A.C.S.,             and         they
then      meet       to set        the    time         and     place          for    the hearing.                   Art.         3264(4),         and      cause
notice        to be       issued.          The      notice          after       being            served,           is returnable                 to the          com-
missioners,               not     the     County          Judge          or    the     County            Cl,erk.            Art.         3264(5),         V.A.C.S.


“When          the      service         of notice          has       been       perfected,               the       commissioners                        shall         at
the     time       and place            appointed             or    at any           other        time      and          place       to which            the hear-
ing     may      be adjourned,                   proceed           to hear           the     parties.“’              Art.        3264(10),           V.A.C.S.


“Commissioners                      shall        have        the    power            to compel.             the     attendance                 of witnesses
and production                  of testimony,                admini,ster               oaths,          and     punish              for    contempt               as
fully      and     in the         same        manner           as    is provided                  by     law       for      judges         of county             courts.”
Art.      3264(11),         V.A.C.S.              (Emphasis                added)


A distinction      between   the passive role of petit jurors    - who are                                                                     called          for     a
week’s    “service,”     and who may be compelled      to serve,   and who                                                                     may        or     may
not     serve        on a jury           or      may      serve          on several                juries          in one          day,     - and         the        ac-
tive,      initiative         duties          of the      special             commissioners,                        who        cannot          be compelled
to serve           as    such,      has       already          become               apparent.


The      special          commissioners,                     contrary               to the        limitati.ons                 imposed          upon       peti.t
jurors,         may       view      the       property             being       condemned.                    “‘It follows,                we    think,          that
the     commissioners,                    in making                a personal               inspection              of said          property,                 violated
no provision               of the Revised                 Statutes             of Texas,               governing               condemnation                     pro-
ceedings           in that        they      followed           ordinary              business              practices               in determining                      the
value       of the        land.    ”     Dueitt         v. Harris              County,            Civ.      App.,           1952,        249 S.W.              2d 636
(Wr.      Ref.).         Nor,       as    is the        practice              with     petit        juries,          is an unan,imity                     as     to the
amount          of the award               required.                Dueitt          v. Harris            County,               supra.


Art. 3266, V.A.C.S.                       (which    article    in Section    3 thereof    provi,des     for payment
of Commissioners)                        containing      general   provisions      concerning       condemnation
suits,      constantly             refers         to    “the        case”           in the        singular,              for     example:
Hon.      Robert          S. Calvert,                page         3 (WW-422)




            “1.      When          the        county        judge        is disqualified                   to act          in Ite      za:e.           . .
            and      such        special           judge.          . . shall          proceed          with          the      case.         . .”


            “6.      If either            party           be dissatisfied                with        the     decision                . . . and
            the     cause          shall        be tried           as      in other          civil      causes             in the          county
            court.


            ““7.     If no objections                      to the        decision            are      filed.         . .‘I     Indeed,
            Title        52,     V.A.C.S.,                is merely             the     outli,ne        of procedure                   for      fil-
            i.ng and         following             through           to judgment                   of one       case,          not     a series
            of cases,              or    a “day’s            worth”            of cases.


The      condemnation                    action,          strictly           speaking,             is not       an action              in the          county
court       until        an objection                is    filed     to the           Commissioners’                         Award.            City          of El
Paso       v. Ward             (Civ.      App.,           1948,      213 S. W.              2d 726).            (NWH)            It is       a special
proceeding               under          the    aegis        of the         county        judge         rather          than          the    county           court.
By      appointing           the        special           commissioners,                     the judge               has,      in effect,              delegated
certain         independent                fact      finding         duties           to them.              If no objections                   to their
award       are      filed       within           ten     days,         “the     county         judge          shall         cause          said       decision
to be recorded                  in the minutes                     of the       County          Court,          and          shall     make            the      same
the     judgment            of the        Court           and      issue        the     necessary               process              to enforce               the
same.”            Art.      3266(7),            V.A.C.S.


The      commissioners                        must        file     their       award         with      the Judge,                not the           Clerk.
Art.      3266(6).          V.A.C.S.;                Wallace            v. Van          Zandt         County,           Civ.         App.,         1954,        264
S.W.      2d 202          (NYT~):             Fitzgerald             v, City           of Dallas            (Civ.       App.,          1930,        34 S.W.Zd
682      (WT.      Ref.).          i :~d -.‘upon fili,ng             of the           objections             to the          award,          the       latter        is
set     :>side      and      the       amount           thereof          may      not       even       be brought                before            th+> jury.
Lower        Colorado              River          Authority              v. Bu,rton            (Civ.        App.,          1943,       l?O S.W.              2d 783
(NWH);          Nowlin          v. Denton               County          (Civ.        App.,       1947,         200 S.W.              2d 865         (NWH)).


The      preceding             discussion                 has      perhaps            been      somewhat                detailed,             but       it was
felt     necessary              in order           to point             out the        un:.que         status         of the          special           commis-
sioners           in condemnation                       p+oceedings,                  and    the      difference               of their            status           from
that     of petit         jurors          and from               Deputy         Sheriffs             attending             prisoners               in habeas
corpus          under       Art.         1029,       C.C.P.,            as     suggested              in your          letter.


It can      be     seen        that      each        time         commissioners                      are     appointed                a separate                entity
or      “board”          is created,              i.e.,      they       are      appointed             to assess               damages              for       one
particular           case.             Frequently,                 in practice,              where          a condemning                     authority
files     several           cases         with       the         same        judge      at the         same          time,       a different                  set     of
commi,ssioners                   will         be appointed                 to each          case       or      the    composition                   of the          Board
of Special           Commissioners                         may       differ.           This        would        cl,early             indicate           that        each
                                                                                                                                                            -           -




Hon.       Robert            S. Calvert,              page         4 (WW-422)




entity        would          be entitled            to statutory                 compensation.                     If,     coincidentally,                  the
same          three         men      are     appointed               as     commissioners                        on each          case,        we     do not
see      how        the     result         should         differ.           Likewise,               considering                 the administrative
as well          as judicial               nature         of the          special         commissioners’                        duties         and powers,
and      considering                 the    reference               in Title          52 to one             particular             case,           it is    our
opinion          that       each      special            commissioner                     is entitled             to be paid             his     statutory
fee     for     each         case         he works           on,     regardless                of how            long      he spends.                (The
Statutes            do not         provide          for     any      length         of working               day,        nor      do they           provide
for     a pro         rata        payment           of the         rather         meager             $3.00         for     fractional              days.)
For       example,             if in one            day      a special            commissioner                      signs        citations           for        six
cases,          he is entitled,               under          Art.         3266(3)         to    $3.00        for         each     case         attended           to,
or     $18.00         for     that        day’s      work.           If on a subsequent                          day      he inspects               two     pieces
of property                 to be     condemned,                   he would           be entitled,                under          said     article,          to
$6.00         for     that        day’s      work.           If he goes             back        to inspect               the     same        property             an-
other         day,      he would            likewise            be entitled             to the            same         compensation.                   If on
another           day       he,     with     his      fellow         commissioners,                         hears         eight        cases        argued,
he would             be     entitled         to     $24.00          for     that      day’s         work         under          said     article.          Abuse
of this         by    the commissioners                            is amply           guarded              against          by the ultimate                     con-
trol      the     County            Judge         retains          over      the case               in regard            to writing            the     judgment
and      assessing                costs.


Article           3266(3),           V.A.C.S.,              provides          that        the commissioners                            may      withhold
their      decision               until     their        fees       are     paid.         This        statute,            in our        opinion,           con-
stitutes          further           proof         that      it is contemplated                       that    the         commissioners                     shall
be     paid     by      the       case.       If    several           cases         are        heard        the first           day,      and       they
should          dispose            of the     first         case,         they      would           make         their      award,           and     in com-
pliance         with         the    above          statute         would         be entitled               to withhold             the       award         until
their      fees       were          paid.          It would          be absurd,                we    think,        to say         that       they     should--
once       they       have         earned          $3.00          and      collected            same        before          letting          the     award
out     of their            possession--charge                            no fees       for         the    remainder               of the        cases,           or
at the        end      of the        day,     have          the     various           condemners                   return         for     their       refunds
or     an equalization                     of accounts.


The       same         reasoning             applies            to the       special            provisions               for     higher         pay        to com-
missioners                  in counties             of 500,000              or      more.            The     only         difference            would           be
that      their       daily        rate      would          be higher.


In Paragraph                  1 of your            letter       you        referred            to    “each         item         in the       judgment
requiring             this        appraisement.”                     We      presume                by     “judgment”              you       meant
“award,”              for     the     commissioners                        cannot         render           a “judgment,”                  only       the
County          Judge         can         do that.          If in referring                 to “each              item         in the     judgment”’
you      contemplated                     a case         where          several        tracts             were      condemned                  in one       case,
-.        -




Hon.      Robert            S. Calvert,              page      5 (WW-422)




tlie    commissioners                     would        be entitled            only     to the    same         fee    as     if only          one
tract     were         condemned.                    For      example,         if the State           condemned             Lots        1, 2 and
3 belonging                to John        Doe        in one      suit,     each      Commissioner                   would      be entitled
to the        same         fee     as    if only        one     lot    were     embraced             within     the       statement
filed     with        the    Judge.            However,            i,f three      different          cases      were        filed,      and        the
special         commissioners                        worked        on the      three     cases         together,          their        fee
would         be     $9.00        for    each         day.


We      expressly             overrule           Attorney             General’s         Opinion        No.      O-1604        (1939).


                                                                  SUMMARY


                                 Under        Art.     3266(3),          V.A.C.S.,       special         commissioners
                                 in condemnation                 are     to be paid        by    the case.          rather         than
                              by the          day,     regardless             of the number             ofses             worked
                                 on.    Attorney             General’s         Opinion         No.     O-1604        (1939)       is
                              expressly               overruled.



                                                                                        Very     truly        yours,


                                                                                        WILL     WILSON
                                                                                        Attorney    General




APPROVED:


OPINION              COMMITTEE
George          P.     Blackburn,               Chairman
Tom       F.       McFarling
Linward             Shivers
Wallace             Finfrock


REVIEWED                   FOR          THE     ATTORNEY                  GENERAL
BY:
               W.     V.    Geppert
