






Pinnacle Gas Treating Inc. v. Raymond Michael Read, et al.
















IN THE
TENTH COURT OF APPEALS
 

No. 10-00-00200-CV

     PINNACLE GAS TREATING, INC.,
                                                                         Appellant
     v.

     RAYMOND MICHAEL READ,
     MARK WILLIAM READ, OWNERS,
     AND THOMAS I. FETZER, II, LIENHOLDER,
                                                                         Appellees
 

From the 278th District Court
Leon County, Texas
Trial Court # 11745-A
                                                                                                                
                                                                                                         
DISSENTING OPINION AFTER REMAND

                                                                                                                

      This is a condemnation case.  The principle issue the parties contend we must resolve is
whether a duly elected district judge serving the county in which the case is filed can appoint
condemnation commissioners, rather than the judge that is elected to the court to which the
case is assigned.  I disagree that this is the issue.  There is a more narrow issue on which this
case can be resolved.  The issue is whether the appointment of condemnation commissioners
by one elected judge for a case pending in another court is properly dismissed rather than
simply proceeding to trial on the objections filed by the parties to the damages awarded by the
appointed commissioners.
BACKGROUND
      In this case, Pinnacle sought to condemn an easement for a natural gas pipeline.  The
condemnation petition was filed with the district clerk who assigned it on a rotational basis to
one of the district courts in Leon County.  Pinnacle took the petition to the duly elected judge
of one of the other district courts in Leon County, ostensibly upon the belief that any judge
elected to any district court in Leon County could appoint the condemnation commissioners. 
Whereupon the judge, purporting to act as the judge of the court to which the case was
assigned under the transfer of benches provisions of the constitution, statutes, rules, and local
practice, appointed three condemnation commissioners to hear the matter for the purposes of
determining damages.  Tex. Prop. Code Ann. § 21.014 (Vernon 1984).
      The three commissioners noticed a hearing and, with all parties in attendance, proceeded
to decide the issue of compensation due the landowners (Read).  The commissioners duly made
an award and returned it to the trial court.  Pinnacle filed an objection to the award.
      Read filed a plea to the jurisdiction, arguing that the trial court did not have jurisdiction of
the condemnation case because the commissioners were not lawfully appointed and therefore
the condemnation proceeding was void.  The landowners also sought damages for the wrongful
entry upon their property under the writ of possession obtained by Pinnacle by paying the
amount of the commissioner’s award into the registry of the court.  Tex. Prop. Code Ann. §
21.021 (Vernon 1984).
      The trial court granted the plea to the jurisdiction thereby dismissing the condemnation
proceeding and tried the claim for damages.  Pinnacle appeals.
CONDEMNATION PROCEEDINGS
      Condemnation proceedings are for the protection of the landowner from having his
property taken for a public use without adequate compensation in violation of the Texas
Constitution.  Tex. Const. art. I, § 17.  The principle that I believe controls this case was
first expressed by the Supreme Court of Texas in 1894.  The landowner, which happened to be
a railroad, claimed that the commissioners appointed were disqualified because they were not
disinterested and therefore their appointment, and thus their award, was void.  The Supreme
Court held:
Under the law, the award could not be made the judgment of the court until after
the expiration of 10 days from the time it was returned into court, and, during that
time, plaintiff, by filing objections to it, would have been entitled to a trial de novo
before a jury, by which objections it would have set aside the award, and thus have
secured ample protection before the county court, with the right of appeal to the court
of appeals if its rights were not fully protected by the judgment of the county court. 
Having failed to avail itself of so simple and effective a remedy, we see no reason
why the rules of law by which such proceedings are held to be binding upon parties to
them, when duly notified, should be departed from, and a collateral attack allowed to
be made upon the proceedings of a court of competent jurisdiction.  There is no error
in the judgment of the district court or the court of appeals, and the judgments of
those courts are affirmed.

Gulf, C. & S.F. Ry. Co. v. Ft. Worth & R.G. Ry. Co., 26 S.W. 54, 60 (Tex. 1894).
      Gulf addressed a collateral attack on the judgment arguing that it was void because the
commissioners were disqualified.  This is essentially the same as the attack by Read in this
case.  Read contends that because they were not lawfully appointed, the commissioners actions
were void, and thus, Pinnacle’s objection to the award did not vest the trial court with
jurisdiction to hear the condemnation suit.  The Supreme Court rejected the idea that the
commissioners actions were void and held that the trial de novo before a jury, which thus
prevented the award by these allegedly disqualified commissioners from being entered as the
judgment of the court, secured ample protection for the landowner.
      In 1935 the Supreme Court had the opportunity to reexamine the issue of the effect of the
appointment of commissioners in violation of the condemnation statutes.  The condemnation
statutes, then as now, required the appointment of commissioners agreed upon by the parties. 
The county judge had failed to assign the commissioners agreed to by the parties.  The Court
held as follows:
By cross-assignment defendant complains of the action of the county judge in
appointing certain commissioners, after he and a representative of the railway
company had agreed upon certain other parties to be appointed.  If this was erroneous,
we do not think it was sufficient to invalidate the whole proceeding, and as defendant
has full opportunity to contest the award of the commissioners on the question of
damages, we do not see how he can be injured.

Fort Worth & D. N. Ry. Co. v. Johnson, 84 S.W.2d 232, 234 (Tex. 1935).  Thus, again, the
Supreme Court held that defects in the appointment of the commissioners did not invalidate the
proceeding.  The de novo trial after the commissioner’s award was considered the appropriate
manner of correcting the defect, if any.
      The Galveston Court of Civil Appeals ruled on a related issue in a direct appeal of a
dismissal of an award because only two of the commissioners had attended the hearing.  After
an objection to the award was filed, the landowner requested that the trial court dismiss the
condemnation proceeding.  The trial court dismissed the case and the condemning authority
appealed.  The court held:
Under the above authorities the judgment of the trial court dismissing this case
must, we think, be reversed and the cause remanded to the County Court at Law of
Harris County, with instruction to the Judge thereof to proceed to trial in the
condemnation suits so consolidated.
City of Houston v. Stovall, 249 S.W.2d 246, 248 (Tex. Civ. App.—Galveston 1952, writ ref’d
n.r.e.).  These holdings are consistent with the Supreme Court’s later holding that “The right
of appeal [by trial de novo] affords petitioner an adequate remedy for anything that may occur
in the condemnation proceedings up to and including the award of the special commissioners.” 
Tonahill v. Gulf States Utilities Co., 446 S.W.2d 301, 302 (Tex. 1969); see also City of Bryan
v. Moehlman, 282 S.W.2d 687, 689 (Tex. 1955)(“We therefore hold that the respondents had
an adequate remedy at law [by trial de novo] in the county court and by appeal therefrom.”);
Jefferson County Drainage Dist. No. 6 v. Gulf Oil Corp., 437 S.W.2d 415, 420 (Tex. Civ.
App.—Beaumont 1969, no writ)(“...having participated in the hearing [before the
condemnation commissioners] and having appealed [by trial de novo] to the County Court at
Law, all matters were properly before that court...”).
      The cases of Walling v. State, 394 S.W.2d 38 (Tex. Civ. App.—Waco 1965, writ ref’d
n.r.e.) and Matador Pipelines, Inc. v. Watson, 626 S.W.2d 139 (Tex. App.—Waco 1981, writ
ref’d n.r.e.) are easily distinguishable.  In both cases, two sets of three commissioners were
appointed.  In both cases it was the second set of commissioners that attempted to make the
condemnation award.  In both cases this court held that the second set of commissioners were
nothing more than strangers to the proceeding and that their purported awards had no effect. 
In neither one of these two cases was the entire proceeding dismissed as argued for by Read. 
And in both cases the court expressed the opinion that it was proper to go forward in the
pending condemnation proceeding.  The underlying condemnation cases were not dismissed,
therefore, it was unnecessary to file new condemnation proceedings as Read argues is required
for a defect in the appointment process.
      Accordingly, I would hold that by taking an appeal by trial de novo to the district court by
objecting to the condemnation commissioners’ award, the parties were in the proper procedural
posture to proceed to a jury trial on the issue of the fair market value of the property taken by
Pinnacle for a natural gas pipeline easement across Read’s property and damages to the
remainder.  Accordingly, the trial court erred in dismissing the condemnation suit and
proceeding to a trial on the claim for damages for wrongful entry upon and possession of
Read’s property.  Because the majority holds otherwise, I respectfully dissent.
IMPLIED FINDINGS
      The majority relies heavily on their determination that Judge Sandel “impliedly found that
there was no constitutional ‘exchange’ of benches.”  Maj. slip op. at 5.  The determination of
this implied finding is supported by the same evidence against it.  Judge Bournias impliedly
found that under the system in place in Leon County, with multiple overlapping district courts,
he was authorized to sit for Judge Sandel.  Judge Sandel’s subsequent holding to the contrary is
not entitled to the weight the majority gives it.
 

CONCLUSION
      For the reasons stated, I would reverse the trial court’s judgment.  Because the majority
affirms the judgment, I respectfully dissent.
 
                                                                   TOM GRAY
                                                                   Chief Justice

Dissenting opinion delivered and filed June 9, 2004
