                                 NUMBER 13-15-00423-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                  IN RE ELECTRIC TRANSMISSION TEXAS, LLC


                           On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Perkes
             Memorandum Opinion by Justice Rodriguez1

        Relator, Electric Transmission Texas, LLC (“ETT”), filed an amended petition for

writ of mandamus through which it contends the trial court’s jurisdiction to act is limited

by the eminent domain statute. See TEX. PROP. CODE ANN. §§ 21.001–.103 (West,

Westlaw through 2015 R.S.). Relator seeks to compel the trial court to vacate orders that




        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
it has previously issued and to appoint special commissioners to the underlying

condemnation proceeding.2 We conditionally grant mandamus relief.

                                           I. BACKGROUND

        This petition for writ of mandamus arises from an eminent domain proceeding

instituted by ETT for the purpose of acquiring an easement and right of way access across

a 6.420 acre of land owned by the real party in interest, Wyatt Agri Products Corporation,

LLC (“Wyatt”). ETT sought the easement in order to install a double-circuit-capable

electric transmission line for the purpose of transmitting and delivering electricity.

        On July 29, 2015, ETT filed an “Original Petition in Condemnation” in the County

Court at Law Number Six of Hidalgo County, Texas. On August 11, 2015, ETT also filed

an “Order Appointing Special Commissioners” referencing the appointment of

disinterested real property owners of Hidalgo County as special commissioners to hold a

hearing and assess the damages occasioned by the condemnation.

        On August 14, 2015, Wyatt filed its “Defendant[’s] Plea in Abatement, Special

Exceptions, and Original Answer.”            Wyatt sought abatement of the condemnation

proceeding on grounds that ETT failed to make a “valid initial offer or final offer letter” in

accordance with Texas Property Code sections 21.012(b)(1) and 21.0113, which require

a description of the property sought to be condemned. See id. § 21.012(b)(1) (specifying

the requirements for the petition in condemnation), § 21.0113 (requiring that the

condemnor make a “bona fide” offer to acquire the property from the property owner).




        2 This cause arises from trial court cause number CCD-0289-F in the County Court at Law Number
Six of Hidalgo County, Texas. The Honorable Albert Garcia is the respondent in this original proceeding.
See TEX. R. APP. P. 52.2.

                                                   2
Wyatt further argued that ETT’s offer to purchase the property failed to address the unity

of use doctrine.3 Wyatt requested an evidentiary hearing on its plea in abatement.

        On August 18, 2015, the trial court issued an order setting a hearing on Wyatt’s

plea in abatement to be held on August 31, 2015.

        On August 21, 2015, ETT filed a “Plaintiff’s Plea to the Jurisdiction” in which it

argued that the trial court lacked jurisdiction to hear or rule on the matters raised by Wyatt.

Specifically, ETT argued that “this phase of the eminent domain proceeding is an

administrative proceeding” and that the court’s “jurisdiction to act is limited to that

conferred by the eminent domain statute, which does not give the [c]ourt authority to rule

on the matters raised by [Wyatt].” That same day, ETT also filed “Plaintiff’s Motion to

Request the Appointment of Special Commissioners.” On August 24, 2015, Wyatt filed

an “Opposed Motion for Continuance on Defendant’s Plea in Abatement, Special

Exception, and Original Answer” seeking a continuance of “at least 30 days” based on its

counsel’s trial schedule.

        On August 25, 2015, the trial court set hearings on Wyatt’s opposed motion for

continuance and ETT’s plea to the jurisdiction to be heard on August 31, 2015. That

same day, ETT filed “Plaintiff’s Response to Opposed Motion for Continuance on

Defendant’s Plea in Abatement, Special Exceptions, and Original Answer.”




        3 Where separate but contiguous tracts of land under common ownership exist in such a physical
and functional relationship that they are joined by “unity of use” by the same proprietor into a single property,
the tracts will be treated as a whole in assessing damages to the remainder in the taking of a part. See
Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461, 463 (Tex. 1970); McKinney Indep. Sch. Dist. v.
Carlisle Grace, Ltd., 222 S.W.3d 878, 882–83 (Tex. App.—Dallas 2007, pet. denied); McLennan Cnty. v.
Stanford, 350 S.W.2d 208, 209 (Tex. Civ. App.—Waco 1961, no writ). Stated otherwise, the basis for an
award of damages to a remainder tract is that there is unity of use and unity of ownership with that tract
and the part actually taken. Oncor Elec. Delivery Co., LLC v. Brown, 451 S.W.3d 128, 131 (Tex. App.—
Amarillo 2014, no pet.).

                                                       3
       On August 28, 2015, the trial court set a hearing on ETT’s motion to request the

appointment of special commissioners to be heard on August 31, 2015.

       On August 31, 2015, the trial court held a hearing on these pending matters. At

the hearing, Wyatt requested a continuance of the hearing on its plea in abatement on

grounds that its counsel’s trial schedule was busy and one of its witnesses was not

available to testify that day regarding the abatement issues. Counsel for both parties

presented arguments on abatement and jurisdiction. At the conclusion of the hearing, the

trial court stated:

               There’s no question in my mind that this is going to get a lot more
       complicated than already seems. Normally, the procedure is they submit
       the petition, I appoint the commissioners, they go out, they come back later
       on whether they’re assuming objections or whatnot, and go to a hearing at
       that time. That’s the normal procedure that’s what normally been done. But
       I can also acknowledge the argument that the landowners are making. And
       that’s why—it’s something different than the normal procedures that we’ve
       done—that’s why when the plea in abatement came in or was filed I set it
       for a hearing because normally we just appoint and they go on and then
       they come back later.

              But the plea in abatement is, okay, tell me why I should abate this
       proceeding and not appoint the commissioners as I was getting ready to do
       so. And so that is what we’re going to be arguing. Now, before we get to
       that there’s a motion for continuance, which I was—I’m going to grant. I’m
       going to go ahead and grant the continuance briefly, not too long because I
       want to get this as quickly as possible. If we need to get the commissioners
       appointed, get them appointed, get the process going whatever the case
       may be. So, I’m not sure how quickly we can get this done or come back.

Counsel for ETT reiterated its position that the trial court lacked jurisdiction to grant a

continuance and asked the trial court if “by doing this are you ruling against our plea to

the jurisdiction?” The trial court responded, “I guess so, yes. I didn’t see it that way, but

yes, I guess.”




                                             4
        That same day, the trial court issued an “Order Granting Opposed Motion for

Continuance on Defendant’s Plea in Abatement, Special Exception, and Original

Answer.” On September 1, 2015, the trial court issued an “Order Granting Defendant’s

Motion for Continuance on Defendant’s Plea in Abatement” which set the plea in

abatement for hearing on October 2, 2015.

        This original proceeding ensued.                By two issues, ETT contends:                (1) a

condemnation proceeding is not within the general jurisdiction of the trial court, the trial

court’s jurisdiction to act is limited to that conferred by the eminent domain statute, and

the trial court’s actions in entering orders prior to the trial court’s judicial jurisdiction being

invoked constitutes an abuse of discretion; and (2) the trial court’s failure to sign the order

appointing special commissioners constitutes an abuse of discretion because the trial

court is statutorily required to appoint special commissioners to the eminent domain

proceeding after a petition in condemnation is filed. This Court requested a response to

the petition for writ of mandamus from Wyatt or any others whose interest would be

directly affected by the relief sought. See TEX. R. APP. P. 52.2. Wyatt filed a response to

the petition for writ of mandamus, ETT filed a reply to Wyatt’s response, and Wyatt further

filed a supplemental response.4

                                       II. STANDARD OF REVIEW

        To be entitled to mandamus relief, a relator must demonstrate that the trial court

clearly abused its discretion and the relator has no adequate remedy by appeal. In re

Lee, 411 S.W.3d 445, 463 (Tex. 2013) (orig. proceeding); In re Reece, 341 S.W.3d 360,



        4 ETT has filed a motion to strike Wyatt’s supplemental response to the petition for writ of
mandamus, or in the alternative, a motion for leave to file a sur-reply to the supplemental response. Given
our disposition of this original proceeding, we dismiss ETT’s motion as moot.

                                                    5
364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135–36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it

reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the

facts.   In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.

proceeding) (per curiam).

         A relator who seeks mandamus relief must demonstrate a “clear right” to the action

it seeks. See Tilton v. Marshall, 925 S.W.2d 672, 682–83 (Tex. 1996) (orig. proceeding);

In re Minter Elec. Co., Inc., 277 S.W.3d 540, 542 (Tex. App.—Dallas 2009, orig.

proceeding). A writ of mandamus may issue when the facts and circumstances dictate

only one rational decision under unequivocal, well-settled, and clearly controlling legal

principles. See Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig.

proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); In re

Helix Energy Solutions Group, Inc., 440 S.W.3d 167, 173 (Tex. App.—Houston [14th

Dist.] 2013, orig. proceeding); In re Amos, 397 S.W.3d 309, 312 (Tex. App.—Dallas 2013,

orig. proceeding). We may not resolve disputed fact issues in an original proceeding. In

re Woodfill, No. 14-0667, 2015 WL 4498229, at *3 (Tex. July 24, 2015) (orig. proceeding);

In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding); In re Cercone, 323

S.W.3d 293, 295 (Tex. App.—Dallas 2010, orig. proceeding).

         The adequacy of an appellate remedy must be determined by balancing the

benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256

S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balance depends heavily

on circumstances, it must be guided by the analysis of principles rather than the



                                                6
application of simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc.,

275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). We evaluate the benefits and

detriments of mandamus review and consider whether mandamus will preserve important

substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of

Am., 148 S.W.3d at 136.

       The Texas Supreme Court has explained that a trial court abuses its discretion in

entering an order beyond its jurisdiction, and mandamus is appropriate to review such a

void order. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding)

(citations omitted). Thus, a petition for writ of mandamus is an appropriate vehicle to

review a trial court’s order refusing or delaying the appointment of special commissioners

in a condemnation proceeding because such orders exceed the jurisdiction of the court.

See In re Tarrant Reg’l Water Dist., No. 12-14-00329-CV, 2015 WL 545783, at *1 (Tex.

App.—Tyler Feb. 11, 2015, orig. proceeding [pet. filed]); In re ETC Katy Pipeline, Ltd.,

276 S.W.3d 562, 563 (Tex. App.—Waco 2008, orig. proceeding) (op. denying reh’g); see

also Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 824 (Tex. App.—San Antonio

1994, no writ) (holding that the property code “provides condemnors a substantial right to

an expedited hearing and possession of the easement immediately after the

commissioners file their findings” and the “failure to issue mandamus would vitiate and

render illusory the right to a rapid, inexpensive alternative to traditional litigation”).

                                      III. EMINENT DOMAIN

       “The eminent domain statute is designed to provide a speedy and fair assessment

of damages.” Gulf Energy Pipeline Co., 884 S.W.2d at 823; see In re State, 325 S.W.3d

848, 850 (Tex. App.—Austin 2010, orig. proceeding); In re State, 85 S.W.3d 871, 876



                                                7
(Tex. App.—Tyler 2002, orig. proceeding) (op. on reh’g). The statutory condemnation

scheme is a two part procedure involving first an administrative proceeding and then, if

necessary, a judicial proceeding. See TEX. PROP. CODE ANN. §§ 21.001–.103; Amason v.

Natural Gas Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984); In re Tarrant Reg’l Water

Dist., 2015 WL 545783, at *1; City of McKinney v. Eldorado Park, Ltd., 206 S.W.3d 185,

191 (Tex. App.—Eastland 2006, pet. denied); Seals v. Upper Trinity Reg’l Water Dist.,

145 S.W.3d 291, 295 (Tex. App.—Fort Worth 2004, pet. denied); In re State, 85 S.W.3d

at 874.

       If the condemnor and condemnee cannot agree on the value of the condemned

property, the condemnor must file a petition in condemnation in either the district court or

county court at law. TEX. PROP. CODE ANN. § 21.012. The petition must: (1) describe the

property to be condemned; (2) state with specificity the public use for which the entity

intends to acquire the property; (3) state the name of the owner of the property if the

owner is known; (4) state that the entity and the property owner are unable to agree on

the damages; (5) if applicable, state that the entity provided the property owner with the

landowner’s bill of rights statement in accordance with Section 21.0112; and (6) state that

the entity made a bona fide offer to acquire the property from the property owner

voluntarily as provided by Section 21.0113. See id. These statutory requirements are

not jurisdictional. See Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172,

183–84 (Tex. 2004) (construing a former version of this section); City of Rosenberg v.

State, No. 14-15-00745-CV, 2015 WL 5935819, at *2 (Tex. App.—Houston [14th Dist.]

Oct. 13, 2015, no. pet. h.) (concluding that the current version of this section, including

the “bona fide offer” requirement, is not jurisdictional).



                                               8
       The trial court “shall” then appoint “three disinterested real property owners who

reside in the county as special commissioners to assess the damages of the owner of the

property being condemned.” TEX. PROP. CODE ANN. § 21.014(a). In appointing the special

commissioners, the trial court “shall give preference to persons agreed on by the parties.”

Id. The statute gives the parties a reasonable opportunity to strike one of the special

commissioners appointed by the trial court, and provides that if a person fails to serve or

is struck, the trial court appoints a replacement. See id.

       The special commissioners swear to assess damages “fairly, impartially, and

according to the law.”    Id. § 21.014(b).    The special commissioners will “promptly”

schedule a hearing “at the earliest practical time” but not before the twentieth day after

their appointment.    Id. § 21.015(a).    The special commissioners may compel the

attendance of witnesses and the production of testimony, administer oaths, and punish

for contempt in the same manner as a county judge.            Id. § 21.014.    The special

commissioners then enter findings, determine the damages due the property owner, and

file an award which, in their opinion, reflects the value of the sought after land. See City

of Austin v. Whittington, 384 S.W.3d 766, 773 (Tex. 2012); Pinnacle Gas Treating, Inc. v.

Read, 160 S.W.3d 564, 566 (Tex. 2005); City of McKinney, 206 S.W.3d at 192; Metro.

Transit Auth. v. Graham, 105 S.W.3d 754, 757 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied).

       A party who is dissatisfied with the commissioners’ award may file an objection to

the commissioners’ findings in the trial court. TEX. PROP. CODE ANN. § 21.018(a); see

Seals, 145 S.W.3d at 295. If an objection is filed, “the court shall cite the adverse party

and try the case in the same manner as other civil causes.” TEX. PROP. CODE ANN.



                                             9
§ 21.018(b). Service of citation triggers the condemnor’s legal obligation to proceed to

trial and prove its right to condemn the property. Denton Cnty. v. Brammer, 361 S.W.2d

198, 200 (Tex. 1962); Collin Cnty. v. Hixon Family P’ship, Ltd., 365 S.W.3d 860, 865–66

(Tex. App.—Dallas 2012, pet. denied). Once objections are filed and citation is served,

the special commissioners’ award is vacated and may not be reinstated. Amason, 682

S.W.2d at 242; Collin Cnty., 365 S.W.3d at 865–66; see also State v. Carlton, 901 S.W.2d

736, 739 (Tex. App.—Austin 1995, no pet.).

      From the time the condemnor files the original statement seeking condemnation

up to the time of the special commissioners’ award, the proceeding is administrative in

nature. Amason, 682 S.W.2d at 242; City of McKinney, 206 S.W.3d at 192; In re Tarrant

Reg’l Water Dist., 2015 WL 545783, at *1. “The administrative phase is completely

separate from any judicial proceeding that may later take place, and the Texas Property

Code says nothing about giving a trial court power to oversee this initial phase.” In re

Tarrant Reg’l Water Dist., 2015 WL 545783, at *2; see In re State, 85 S.W.3d at 874.

      During the administrative phase, the trial court’s jurisdiction is limited to appointing

the commissioners, receiving their opinion as to value, and rendering judgment based

upon the commissioners’ award. In re Tarrant Reg’l Water Dist., 2015 WL 545783, at *2;

In re State, 325 S.W.3d at 851. This is so because a “condemnation proceeding is not

within the general jurisdiction of the court,” and any power of the court to act is special

and depends upon the eminent domain statute. Pearson v. State, 315 S.W.2d 935, 937

(Tex. 1958); see In re Tarrant Reg’l Water Dist., 2015 WL 545783, at *1; In re Energy

Transfer Fuel, LP, 250 S.W.3d 178, 180–81 (Tex. App.—Tyler 2008, orig. proceeding).

Because the trial court does not have jurisdiction in the administrative phase of a



                                            10
condemnation proceeding except for what is provided in the eminent domain statute, any

judgment or order made outside of the statutory authority is void. In re Tarrant Reg’l

Water Dist., 2015 WL 545783, at *1; In re Energy Transfer Fuel, LP, 250 S.W.3d at 181;

Gulf Energy Pipeline Co., 884 S.W.2d at 824; see also City of Dallas v. Highway 205

Farms, Ltd., No. 05-13-00951-CV, 2014 WL 3587403, at *3 (Tex. App.—Dallas July 22,

2014, pet. filed).

       The filing of an objection to the findings of the special commissioners converts the

condemnation proceeding, which has been administrative thus far, into a judicial

proceeding and “invest[s] the trial court with jurisdiction of the subject matter of the

proceeding.” Denton Cnty., 361 S.W.2d at 200; see In re Tarrant Reg’l Water Dist., 2015

WL 545783, at *2; see also In re State, 85 S.W.3d at 874. “Once a condemnation

proceeding is transformed to a civil case by the timely filing of objections to the award of

commissioners, the court upon which jurisdiction is bestowed, has full judicial jurisdiction

at its disposal.” State v. Blackstock, 879 S.W.2d 125, 129 (Tex. App.—Houston [14th

Dist.] 1994, writ denied). However, without a timely filed objection to the commissioners’

award, a condemnation proceeding never becomes a civil case and the trial court does

not gain subject matter jurisdiction. See, e.g., Brammer, 361 S.W.2d at 200; In re Tarrant

Reg’l Water Dist., 2015 WL 545783, at *2; In re State, 85 S.W.3d at 874.

                                        IV. WAIVER

       As an initial matter, we address Wyatt’s argument that ETT waived its right to

review of the trial court’s failure to rule on its motion to appoint special commissioners

because it did not obtain a ruling on its motion. Wyatt asserts that the “record on

mandamus is devoid of any evidence that the trial court made any ruling upon ETT’s



                                            11
Motion to Appoint Special Commissioners [or] that the Court refused to rule upon said

motion.” According to Wyatt, the “trial court merely continued the proceedings so that

Wyatt could bring its witnesses and put on evidence at a hearing so the trial court could

determine whether ETT made a bona fide offer.” Wyatt asserts that the trial court’s

continuance order does not constitute an act refusing to appoint the commissioners.

Wyatt’s argument rests on a basic tenet of mandamus practice that provides that

entitlement to mandamus relief requires a relator to establish a legal duty to perform a

non-discretionary act, a demand for performance, and a refusal. See In re Perritt, 992

S.W.2d 444, 446 (Tex. 1999) (orig. proceeding); In re Honea, 415 S.W.3d 888, 890 (Tex.

App.—Eastland 2013, orig. proceeding); In re Cullar, 320 S.W.3d 560, 564 (Tex. App.—

Dallas 2010, orig. proceeding).

      We reject Wyatt’s contention. Consideration of a motion that is properly filed and

before the trial court is a ministerial act, and mandamus may issue to compel the trial

court to act. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig.

proceeding); In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.—

Corpus Christi 2014, orig. proceeding); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—

Texarkana 2008, orig. proceeding). To obtain mandamus relief for such a refusal, a

relator must establish: (1) the motion was properly filed and has been pending for a

reasonable time; (2) the relator requested a ruling on the motion; and (3) the trial court

refused to rule. See In re ReadyOne Indus., Inc., 463 S.W.3d 623, 624 (Tex. App.—El

Paso 2015, orig. proceeding); In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio

2004, orig. proceeding). Accordingly, mandamus may issue to address the trial court’s

failure to rule on ETT’s motion to appoint the special commissioners.



                                           12
       Moreover, mandamus may issue to compel rulings in cases where a trial court

abuses its discretion in delaying a ruling on a motion that should be determined in an

expedited manner. See In re F.C. Holdings, Inc., 349 S.W.3d 811, 815 (Tex. App.—Tyler

2011, orig. proceeding) (conditionally granting mandamus relief when a trial court

deferred ruling on a motion to compel arbitration); In re MHI P’ship, Ltd., 7 S.W.3d 918,

920 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (same). As stated previously,

the eminent domain statute is designed to provide a speedy mechanism for the resolution

of condemnation claims. See In re State, 325 S.W.3d at 850; Gulf Energy Pipeline Co.,

884 S.W.2d at 823. Accordingly, mandamus may issue to review a delay in ruling on the

appointment of special commissioners in an eminent domain proceeding. See, e.g., Gulf

Energy Pipeline Co., 884 S.W.2d at 824 (explaining that “the Property Code implements

a legislative policy designed to avoid the delays that occur in court proceedings” and

“provides condemnors a substantial right to an expedited hearing”).

       Moreover, substantively, this case does not present a situation where the trial court

has merely failed to rule on a pending motion. In this case, as will be discussed in more

detail infra, the trial court had an absolute duty to appoint the special commissioners, but

has instead held a hearing, set a hearing on Wyatt’s plea in abatement, granted a

continuance of the hearing on Wyatt’s plea in abatement, and denied ETT’s plea to the

jurisdiction. At all steps of this case, ETT has informed the trial court that it lacks

jurisdiction to hear the plea in abatement and has urged the court to appoint the special

commissioners.

       Based upon the foregoing, we reject Wyatt’s assertion that ETT has failed to

preserve error or has waived its argument regarding the appointment of the special



                                            13
commissioners.     Accordingly, we proceed to address the merits of this original

proceeding.

                                        V. ANALYSIS

       ETT contends that the trial court does not have jurisdiction to hear or rule on the

matters raised by Wyatt in its plea in abatement because the trial court’s jurisdiction to

act is limited to that conferred by statute. ETT further specifically contends that the trial

court’s failure to appoint the three special commissioners constitutes an abuse of

discretion and the trial court’s orders issued to date are void. In contrast, Wyatt argues

that this Court should deny mandamus relief because ETT has not met the requirements

for such relief and the eminent domain statute grants the trial court the discretion to

consider its plea in abatement.

       Wyatt first asserts that ETT is not entitled to mandamus relief because it cannot

show a “clear right” to the appointment of the special commissioners or otherwise

establish that the trial court abused its discretion. Wyatt misconstrues the statutory

delegation of authority in eminent domain proceedings.

       Once a petition in condemnation has been filed, the trial court “shall” appoint the

special commissioners. TEX. PROP. CODE ANN. § 21.014(a). Stated otherwise, it is the

“absolute duty” of the trial court “to appoint a special commission once a petition for

condemnation has been filed.” Peak Pipeline Corp. v. Norton, 629 S.W.2d 185, 186 (Tex.

App.—Tyler 1982, no writ). “The eminent domain jurisdiction of the trial court is appellate,

as distinguished from original or concurrent.” State v. Nelson, 334 S.W.2d 788, 791 (Tex.

1960); see City of McKinney, 206 S.W.3d at 192. “Thus, the parties may not avoid an




                                             14
initial administrative hearing before the special commissioners even if they wish to do so.”

State, 334 S.W.2d at 791; see City of McKinney, 206 S.W.3d at 192.

       “Due to the absence of statutory authority for judicial oversight, a trial court may

not become involved in the administrative phase of the proceeding.” In re State, 65

S.W.3d 383, 386 (Tex. App.—Tyler 2002, no pet.); see Gulf Energy Pipeline Co., 884

S.W.2d at 823; Peak Pipeline Corp., 629 S.W.2d at 186; State v. Garland, 963 S.W.2d

95, 100 (Tex. App.—Austin, pet. denied). “Appellate courts have consistently held that

trial courts have no authority to grant continuances, abate, enjoin, set, or otherwise

interfere with the commissioners’ hearings.” In re Tarrant Reg’l Water Dist., 2015 WL

545783, at *2 n.2; see In re State, 325 S.W.3d at 851; Gulf Energy Pipeline Co., 884

S.W.2d at 823; City of Carrollton v. OHBA Corp., 809 S.W.2d 587, 588–89 (Tex. App.—

Dallas 1991, no writ); Peak Pipeline Corp., 629 S.W.2d at 187; see also City of Dallas,

2014 WL 3587403, at *2. “It is well settled in Texas that a court is not to enjoin or

otherwise hinder or delay the special commissioners from proceeding with the

condemnation inquiry.” Peak Pipeline Corp., 629 S.W.2d at 186.

       We conclude that the trial court abused its discretion in failing to appoint the special

commissioners and in scheduling a hearing on Wyatt’s plea in abatement. See In re

Tarrant Reg’l Water Dist., 2015 WL 545783, at *2 n.2 (concluding that the trial court

abused its discretion in refusing to appoint special commissioners); Peak Pipeline Corp.,

629 S.W.2d at 187 (holding that the trial court abused its discretion in granting a plea in

abatement and dismissing the suit instead of appointing special commissioners); see also

In re Energy Transfer Fuel, LP, 250 S.W.3d at 181 (concluding that the trial court abused

its discretion in entering a judgment containing provisions that were not in the



                                             15
commissioners’ award in the absence of objections to the commissioners’ award); In re

State, 65 S.W.3d at 385 (concluding that the trial court abused its discretion in ordering

the condemnor to provide discovery and in appointing counsel for the special

commissioners); Gulf Energy Pipeline Co., 884 S.W.2d at 823 (concluding that the trial

court abused its discretion in resetting the commissioners’ hearing and granting a

continuance of the hearing); City of Carrollton, 809 S.W.2d at 588–89 (“Because the court

had only administrative jurisdiction in the condemnation proceedings, and its jurisdiction

to hear a civil suit had not been properly invoked, the court was without authority to issue

the injunctive and declaratory relief it granted OHBA.”); see also City of Dallas, 2014 WL

3587403, at *2 (stating that the trial court lacked jurisdiction to dismiss the condemnation

proceeding during the administrative phase).

       Wyatt also asserts that mandamus relief is improper because it has raised disputed

factual issues regarding whether ETT made a bona fide offer to acquire the property

voluntarily. See TEX. PROP. CODE ANN. § 21.0113 (requiring the condemnor to make a

bona fide offer to acquire the property and specifying the requirements for the offer).

According to Wyatt, section 21.0113 creates a condition precedent within the

administrative process of the condemnation proceedings that the trial court has the

authority to control under section 21.047(d). However, as stated previously, the trial court

may not delay appointing special commissioners. See In re Tarrant Reg’l Water Dist.,

2015 WL 545783, at *2 n.2; Peak Pipeline Corp., 629 S.W.2d at 187. Further, the

requirements of section 21.0113 are not jurisdictional prerequisites for the appointment

of special commissioners. See Hubenak, 141 S.W.3d at 183–84; City of Rosenberg,

2015 WL 5935819, at *2.



                                            16
        In this regard, however, Wyatt contends that Texas Property Code Section

21.047(d) provides the trial court with jurisdiction and discretion to order a continuance of

the condemnation proceeding. Wyatt argues that section 27.047 was amended in 2011

to include subsection (d), and previous case law does not consider this section.5 This

section governs the assessment of costs and fees in an eminent domain proceeding, and

provides:

        If a court hearing a suit under this chapter determines that a condemnor did
        not make a bona fide offer to acquire the property from the property owner
        voluntarily as required by Section 21.0113, the court shall abate the suit,
        order the condemnor to make a bona fide offer, and order the condemnor
        to pay: (1) all costs as provided by Subsection (a); and (2) any reasonable
        attorney’s fees and other professional fees incurred by the property owner
        that are directly related to the violation.

TEX. PROP. CODE ANN. § 21.047.

        Wyatt offers no authority in support of its argument that this section vests the trial

court with the jurisdiction and discretion to address the requirements of section 21.012

prior to the appointment of the special commissioners during the administrative phase of

the eminent domain proceedings. ETT contends that this section represents a statutory

codification of the abatement that the Texas Supreme Court allowed in Hubenak v. San

Jacinto Gas Transmission Co., 141 S.W.3d at 184. In that case, the landowner objected


         5 Statutory construction is a question of law we review de novo. In re Mem’l Hermann Hosp. Sys.,

464 S.W.3d 686, 700–01 (Tex. 2015) (orig. proceeding). Our objective is to determine and give effect to
the Legislature’s intent, and “the truest manifestation of what lawmakers intended is what they enacted.”
Id. Proper construction requires reading the statute as a whole rather than interpreting provisions in
isolation. Id. We look to the plain meaning of the words used in the statute. See Fireman’s Fund Cnty.
Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768–69 (Tex. 2000). We presume that every word was deliberately
chosen and that excluded words were left out on purpose. USA Waste Servs. of Houston, Inc. v. Strayhorn,
150 S.W.3d 491, 494 (Tex. App.—Austin 2004, pet. denied). We also “presume that the Legislature
intended all provisions of a statute to be effective, and that it intended a just and reasonable result.” City
of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010). When determining legislative intent, the entire act,
not isolated portions, must be considered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). We may
also consider the “object sought to be attained” by enacting the statute, the “circumstances under which
the statute was enacted,” and the “consequences of a particular construction.” TEX. GOV’T CODE ANN. §
311.023 (West, Westlaw through 2015 R.S.).

                                                     17
that the requirement of section 21.012 that the parties are “unable to agree” as to

damages had not been met. See id. The supreme court concluded that section 21.012’s

requirements were not jurisdictional and that abatement afforded a remedy for

noncompliance with statutory requirements. Id. “Trial courts can, however, resolve [such]

issues through other procedural vehicles, as they resolve many threshold pre-trial

matters, including ruling on a plea in abatement.” Id. at 184–85.

       In so holding, the supreme court clearly contemplated that such an abatement

would occur after the special commissioners have made an award and litigation in the

trial court has begun:

       As discussed earlier, the purpose of the statute is “to forestall litigation and
       to prevent needless appeals.” An inquiry into the subjective “good faith” of
       a condemnor’s offer would be antithetical to this purpose.                  First,
       independent commissioners will have reached a determination of damages
       before the landowner may even raise the “unable to agree” objection. If the
       landowner accepts the commissioners’ assessment, the matter is at an end.
       It is only after the landowner has rejected any offer by the condemnor, and
       after independent commissioners reach a conclusion and it is clear that
       litigation is going to proceed, that the landowners can raise the “unable to
       agree” issue. Second, whether an offer by a condemning authority was
       made in “good faith” would, in most cases, be determined in large measure
       by the reasonable market value of the property sought to be condemned or
       the amount of inverse condemnation damages, or both. The inquiry in the
       trial court’s condemnation proceeding—to determine the reasonable market
       value of the property sought to be condemned and any inverse
       condemnation damages—would thus be largely duplicative. The purpose
       of section 21.012’s requirement that the parties be “unable to agree” is not
       to require a trial on reasonable market value before the condemnation trial
       may begin. The condemnation trial will determine the property’s value and
       any damage to the remainder. No purpose would be served by delaying
       that determination to first decide whether the condemning authority’s offer
       was so low and made under such circumstances that it could not have been
       made in “good faith.” At the end of the day, the result would be the same if
       two trials rather than just one were held. The landowner will receive no
       more and no less than the amount awarded as a result of the condemnation
       proceedings, even if the condemnor’s pre-suit offer was not made in “good
       faith.” It is not necessary to have two trials to reach the ultimate and only



                                              18
       determination contemplated by the statute, which is a determination of the
       value of the property condemned.

Id. at 186–87.

       In terms of the 2011 amendments adding section (d), we presume lawmakers

enact statutes with complete knowledge of existing law. Entergy Gulf States, Inc. v.

Summers, 282 S.W.3d 433, 443 (Tex. 2009); Acker v. Tex. Water Comm’n, 790 S.W.2d

299, 301 (Tex. 1990).     Under the law, eminent domain proceedings consist of an

administrative proceeding, and if necessary, a judicial proceeding wherein the filing of

objections from the administrative proceeding invests the trial court with jurisdiction. See

Amason, 682 S.W.2d at 241; Denton Cnty., 361 S.W.2d at 200.

       Nothing in the legislative text suggests that section 21.047(d) contemplates judicial

intervention before the appointment of the special commissioners. The plain language of

the section makes it clear that the trial court may abate when it is “hearing a suit under

this chapter,” thus referring to the judicial phase of the litigation. TEX. PROP. CODE ANN.

§ 21.047(d). Considering the entirety of section 21.047, this section generally addresses

the assessment of costs and fees depending on the amount the condemnor offered to

pay before proceedings began, the amount of damages awarded by the commissioners,

and if appealed, the amount of damages awarded by a court. See id. § 21.047(a). This

section also addresses the costs of serving the property owner with notice of the

condemnation proceeding and taxing a “reasonable fee for each special commissioner

as part of the court costs of the proceeding.” See id. § 21.047(b),(c). None of these

matters occur prior to the appointment of the special commissioners. See generally id.

       Further, nothing in the structure of the eminent domain statute as a whole suggests

that section 21.047(d) allows judicial intervention before the appointment of the special

                                            19
commissioners.     The eminent domain statute is divided into three subchapters on

jurisdiction, procedure, and damages and costs. See id. §§ 21.001–.103. Section 21.047

is in Subchapter of C of Chapter 21, entitled “Damages and Costs,” and is specifically

entitled “Assessment of Costs and Fees.” The section is not located in the subsections

that pertain to jurisdiction and procedure. See generally id.

       Based on the foregoing analysis, we conclude that section 21.047(d) does not vest

the trial court with jurisdiction to consider the matters raised in Wyatt’s plea in abatement.

Rather, the trial court’s jurisdiction to act at this time is limited to appointing the special

commissioners.

                                       VI. CONCLUSION

       The Court, having examined and fully considered the petition for writ of mandamus,

the response, the reply, and the applicable law, is of the opinion that relator has met its

burden to obtain mandamus relief. See In re Tarrant Reg’l Water Dist., 2015 WL 545783,

at *1; In re ETC Katy Pipeline, Ltd., 276 S.W.3d at 563; see also Gulf Energy Pipeline

Co., 884 S.W.2d at 824. The trial court’s failure to appoint the special commissioners

and set hearings “strikes at the heart of the legislative policy establishing the

commissioners’ proceeding.”       See Gulf Energy Pipeline Co., 884 S.W.2d at 824.

Mandamus and prohibition are appropriate because the trial court abused its discretion

by entering void orders, and ETT has no adequate remedy by appeal or otherwise. See

id.

       We lift the stay previously imposed in this cause and we conditionally grant the

petition for writ of mandamus. See TEX. R. APP. P. 52.8(a). ETT’s motion for emergency

relief, which was previously carried with the case in part, is dismissed as moot. We trust



                                              20
that the trial court will promptly vacate the orders that it has previously issued in this case

and issue an order appointing three special commissioners. Our writ will issue only in the

event that the trial court fails to comply.



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Delivered and filed the
2nd day of November, 2015.




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