                         NUMBER 13-18-00214-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI–EDINBURG


THE STATE OF TEXAS,                                                       Appellant,

                                          v.

HIDALGO COUNTY IRRIGATION
DISTRICT NO. 16,                                                          Appellee.


               On appeal from the County Court at Law No. 8
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Perkes

      This dispute concerns a condemnation case brought by appellant, the State of

Texas, involving land located in Hidalgo County, Texas.          Following the State’s

amendment to its petition for condemnation, removing appellee Hidalgo County Irrigation

District No. 16 (HCID) as a party, the trial court granted HCID’s motion for recovery of
attorney’s fees and other expenses. By what we construe as one issue, the State argues

on appeal that the trial court erred in awarding attorney’s fees to HCID. We reverse and

render.

                                              I. BACKGROUND

           The State, on behalf of the Texas Transportation Commission, sought to acquire

35 acres of land nearby U.S. Highway 83 in Hidalgo County. On May 23, 2016, the State

filed its Petition for Condemnation. In its petition, the State joined the individuals and

entities it believed to be owners or holders of the property: Rufino Garza, Ana I. Garza,

Ramiro J. Flores, Yolanda S. Flores, Lone Star National Bank (Lone Star), Massachusetts

Mutual Life Insurance Company (Mutual Life), and HCID. The State based its attribution

of property ownership on information received from a title commitment issued two months

earlier.

           HCID, along with the other parties,1 appeared before the special commissioners

for a hearing on damages2 on August 12, 2016. The special commissioners awarded

$8,204,624 in damages to be paid to the individual condemnees, Lone Star, and HCID.

The State and HCID filed separate objections to the award on September 2, 2016,

requesting a jury trial. HCID then filed a cross-claim against one of the property owners

and an unrelated third-party on September 9, 2016.3 HCID ultimately filed a notice of

nonsuit of its cross-claim on April 18, 2017. A discovery control plan and scheduling



           1   Mutual Life filed a disclaimer of interest and was removed as a party to the suit prior to the
hearing.

        2 In Texas, the first stage in a condemnation proceeding, following a petition for condemnation,

involves a hearing before three special commissioners appointed by the trial court. See TEX. PROP. CODE
ANN. §§ 21.014–.015. After a hearing, the commissioners make findings and assess an award for
condemnation damages. Id. § 21.042.
        3 HCID sought a cause of action against Rufino Garza and Upper Valley Materials, Inc., alleging

Garza’s mining operation had intruded on its property, causing over $2,000,000 in damages.

                                                       2
order was put in place on May 4, 2017. Soon after, Lone Star was dismissed from the

suit, leaving only the individual condemnees and HCID.

       On January 2, 2018, the individual condemnees filed a “No Evidence Motion for

Summary Judgment” seeking to dismiss HCID from the suit.              In their motion, the

individual condemnees alleged HCID was not an owner of the subject property, and HCID

had failed to provide evidence to the contrary despite multiple discovery inquiries. The

State then requested another title commitment, which confirmed the individual

condemnees’ allegations.      The title company concluded that HCID did not own any

interest in the subject property.

       On January 19, 2018, based on the second title commitment, the State filed an

amended petition for condemnation, removing HCID as a party. Less than a week later,

HCID filed a motion for recovery of reasonable and necessary attorney’s fees and other

expenses.     In its motion, HCID requested $41,268 in attorney’s fees, relying on

§§ 21.019 and 21.0195 of the Texas Property Code, which dictate that a property owner

may recoup attorney’s fees and other expenses following a dismissal of a condemnation

proceeding. The State filed a response and plea to the jurisdiction arguing that (1) the

trial court lacked jurisdiction over HCID’s motion for fees, and (2) fees are not authorized

by the property code.

       At the March 28, 2018 hearing, HCID argued that the onus was on the State to

correctly identify the condemnees in its condemnation suit and asserted that its attorney’s

fees were incurred as a result of responding to the State’s extensive discovery requests.

The State conceded that the information provided in the first title commitment had been

incorrect and that the State relied on that misinformation in pursuance of its condemnation

claim against HCID. The State, however, reasoned that HCID should have determined


                                             3
the extent of its ownership interest, as Mutual Life and Lone Star did, before incurring all

its expenses.       The State argued that it retained immunity from liability because the

property code statutes that HCID relied upon were inapplicable. HCID could not prevail

under the statute because (1) the State did not dismiss the condemnation proceeding,

and (2) HCID is not a “property owner.” The trial court granted the motion for recovery4

and awarded HCID $41,268 in attorney’s fees. This interlocutory appeal followed.

                                        II. STANDARD OF REVIEW

        Immunity “implicates a court’s subject-matter jurisdiction over pending claims.”

Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). Whether a court has subject

matter jurisdiction is a question of law reviewed de novo, and the court must consider

relevant evidence submitted by the parties when necessary to resolve the jurisdictional

issues. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).

Similarly, statutory construction is a legal question that we review de novo. Colorado

Cty. v. Staff, 510 S.W.3d 435, 444 (Tex. 2017). “In construing statutes, we ascertain and

give effect to the Legislature’s intent as expressed by the language of the statute,” using

the “definitions prescribed by the Legislature and any technical or particular meaning the

words have acquired.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).

The statute’s words are otherwise construed “according to their plain and common




        4  The trial court did not rule on the State’s plea to jurisdiction. On appeal, the State argued its
plea to jurisdiction was implicitly denied when the trial court granted HCID’s motion requesting attorney’s
fees; we agree. See TEX. CIV. PRAC. & REM. CODE § 51.014(8) (authorizing appeal from interlocutory order
granting or denying governmental unit’s plea to jurisdiction); see also City of Hous. v. Estate of Jones, 388
S.W.3d 663, 665 (Tex. 2012) (per curiam) (“The trial court implicitly denied the City’s plea to the jurisdiction
by granting partial summary judgment to [the claimant] on the issue of liability and setting the case for trial
on the issue of damages.”); City of Willow Park v. E.S. & C.M., Inc., 424 S.W.3d 702, 711 (Tex. App.—Fort
Worth 2014, pet. denied) (providing that a plea to jurisdiction was a proper vehicle to challenge a request
for attorney’s fees); Univ. of Tex. Sys. v. Ochoa, 413 S.W.3d 769, 773–74 (Tex. App.—Austin 2012, pet.
denied) (same).

                                                       4
meaning, unless a contrary intention is apparent from the context, or unless such a

construction leads to absurd results.” Id. at 625–26 (internal citations omitted).

                           III. APPLICABLE LAW AND ANALYSIS

       Our legislature has enacted a comprehensive statutory scheme that governs the

State’s eminent-domain power and provides for assessment of financial repercussions

should the condemning authority abandon condemnation proceedings. See TEX. PROP.

CODE ANN. §§ 21.001–.065; TEX. TRANSP. CODE ANN. § 203.051. Section 21.019 of the

Texas Property Code provides:

       (a) A party that files a condemnation petition may move to dismiss the
       proceedings, and the court shall conduct a hearing on the motion.
       However, after the special commissioners have made an award, in an effort
       to obtain a lower award a condemnor may not dismiss the condemnation
       proceedings merely to institute new proceedings that involve substantially
       the same condemnation against the same property owner.

       (b) A court that hears and grants a motion to dismiss a condemnation
       proceeding made by a condemnor under Subsection (a) shall make an
       allowance to the property owner for reasonable and necessary fees for
       attorneys, appraisers, and photographers and for the other expenses
       incurred by the property owner to the date of the hearing.

       (c) A court that hears and grants a motion to dismiss a condemnation
       proceeding made by a property owner seeking a judicial denial of the right
       to condemn or that otherwise renders a judgment denying the right to
       condemn may make an allowance to the property owner for reasonable and
       necessary fees for attorneys, appraisers, and photographers and for the
       other expenses incurred by the property owner to the date of the hearing or
       judgment.

TEX. PROP. CODE ANN. § 21.019 (emphasis added).

       Texas Property Code § 21.0195 narrowly applies to dismissal of condemnation

proceedings involving the Texas Department of Transportation. Id. § 21.0195(a). Like

§ 21.019, it also provides that “the court shall make an allowance [for] . . . any expenses

the property owner has incurred in connection with the condemnation, including

reasonable and necessary fees for attorneys.”        Id. § 21.0195(c) (emphasis added).

                                            5
These provisions are designed to protect landowners, discourage the commencement

and subsequent abandonment of condemnation proceedings, and to compensate the

landowner for expenses incurred during a condemnation proceeding that is later

abandoned. FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Hous. Sys., 255 S.W.3d

619, 634 (Tex. 2008); City of Wharton v. Stavena, 771 S.W.2d 594, 595–96 (Tex. App.—

Corpus Christi–Edinburg 1989, writ denied).

      Neither provision requires a formal motion to dismiss or an order granting a motion

to dismiss for a landowner to be entitled to fees and expenses related to an abandoned

condemnation proceeding. FKM P’ship, 255 S.W.3d at 637. In FKM, the condemning

authority amended its petition to reduce the amount of property it sought to take and

argued the landowner was not entitled to statutory attorney’s fees because it had

dismissed only a portion of the proceedings. Id. at 632. The Court was unpersuaded,

holding that if an amended petition “functionally abandons the original condemnation

claim and asserts a different claim,” the amendment may invoke the fee provision without

a formal motion to dismiss. Id. at 636.

      Further, although the words landowner and “property owner” are not defined by

the condemnation statutes, the determination of ownership is a conclusion of law based

on established facts. Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., 555

S.W.3d 29, 46 n.12 (Tex. 2018); see TEX. PROP. CODE ANN. §§ 21.001–.065. “The term

‘owner,’ as used in condemnation statutes, embraces . . . any other person who has an

interest in the property that will be affected by the condemnation.” Hous. N. Shore Ry.

Co. v. Tyrrell, 98 S.W.2d 786, 793 (Tex. 1936).




                                           6
         Here, two essential facts are undisputed: (1) the State dismissed its claim against

HCID; and (2) HCID does not own the property the State sought to condemn. 5 As

consequence, the State argues that HCID, a non-owner, cannot collect attorney’s fees

under this statute, and therefore, the State’s immunity remains intact. HCID argues,

however, that the statute should be liberally construed so that it may be compensated.

HCID points to multiple legal authorities, all of which stand for the same proposition:

landowners must be compensated following dismissal of condemnation proceedings.

See, e.g., Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60 (Tex. 1991); Urban

Wilderness, S.A. v. City of San Antonio, 924 S.W.2d 410, 412 (Tex. App.—San Antonio

1996, writ denied); City of Wharton, 771 S.W.2d at 595–96.

         HCID’s concession that it does not own the property at issue ends our analysis.

“A prevailing party has no inherent right to recover attorney’s fees from the non-prevailing

party unless there is specific statutory or contractual authority allowing it.” Venture v.

UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428, at *11 (Tex. Apr. 26,

2019).       And while §§ 21.019 and 21.0195 mandate the authorization of reasonable

attorney’s fees to landowners following the dismissal of condemnation proceedings, we

cannot expand the statute to include payment to entities or individuals without any

property ownership or interest. See TEX. PROP. CODE ANN. §§ 21.019–.0195; see also



         5  Although HCID does not claim property ownership, nor is there evidence in the record to suggest
HCID has a right or interest in the subject property, it argues that the State “constructively conceded
ownership” in its pursuance of a condemnation action against HCID. HCID’s argument is based on the
State’s original petition for condemnation, which was superseded by the State’s first amended petition for
condemnation. The latter removed any claim of property ownership by HCID. It is well-established that
although the pleadings in a case are regarded as judicial admissions, they cease to be admissions if they
are abandoned, superseded, or amended. See Kirk v. Head, 152 S.W.2d 726, 729 (1941), superseded
on other grounds by TEX. R. EVID. 801(e)(2), as recognized in Bay Area Healthcare Grp., Ltd. v. McShane,
239 S.W.3d 231, 235 (Tex. 2007); see also Pollok v. Pollok, No. 04-16-00029-CV, 2016 WL 5398907, at
*3 (Tex. App.—San Antonio Sept. 28, 2016, no pet.) (mem. op.). Therefore, any alleged “admission” or
“concession” of HCID’s ownership made in the State’s original petition, and absent in the amended petition,
no longer exists.

                                                    7
FKM P’ship, 255 S.W.3d at 637; Urban Wilderness, 924 S.W.2d at 412 (“Our duty is to

construe the statute as written by the legislature, not to edit or amend it.”); State v. First

Interstate Bank of Tex., N.A., 880 S.W.2d 427, 430 (Tex. App.—Austin 1994, writ denied)

(holding that a mortgagee was not “property owner” for purposes of a condemnation

statute analysis).

       We hold that HCID, absent ownership, is not entitled to attorney’s fees under

§§ 21.019 and 21.0195 of the Texas Property Code.             See TEX. PROP. CODE ANN.

§§ 21.019-.0195. Additionally, barring waiver of immunity, the State retains its immunity

from HCID’s monetary claims, and the trial court lacked jurisdiction to award HCID

attorney’s fees. See TEX. GOV’T CODE ANN. § 311.034; Tex. Dep’t of Parks, 133 S.W.3d

at 225; Ochoa, 413 S.W.3d at 774. The State’s sole issue on appeal is sustained.

                                     IV. CONCLUSION

       The trial court’s judgment is reversed, and we render judgment denying HCID’s

motion for recovery of attorney’s fees and other expenses.


                                                                 GREGORY T. PERKES
                                                                 Justice

Delivered and filed the
6th day of June, 2019.




                                              8
