                                      IN THE
                              TENTH COURT OF APPEALS



                                      No. 10-08-00212-CV
                                      No. 10-08-00213-CV
                                      No. 10-08-00214-CV
                                      No. 10-08-00215-CV
                                      No. 10-08-00216-CV

                           IN RE ETC KATY PIPELINE, LTD


                                     Original Proceeding



                              MEMORANDUM OPINION


        ETC Katy Pipeline, LTD. (ETC) filed a petition for writ of mandamus in each of

these five original proceedings challenging the trial court's orders denying its motions

to appoint special commissioners and its orders granting the landowners’ motions to

dismiss in each of the underlying cases.1 We will conditionally grant the writ in each

case.


1
       The real-parties-in-interest/landowners in the five cases are FPJ Pipeline Corridor No. 1 L.L.C.,
FPJ Land Company, L.T.D., Reagan Management Company, Frederick L. Reagan, John F. Reagan, Patricia
R. Myrick, FLR Pipeline Corridor No.1 L.L.C., Camp Cooley, LTD., North CC Pipeline Corridor, L.L.C.,
Martin Pipeline Corridor, L.L.C., Circle M Ranch, LTD., Ruth Martin Ranch, Inc., McCormick Pipeline
                                             Background

        On February 14, 2008, ETC, a gas utility company, filed five original petitions for

condemnation seeking to obtain property from the landowners through eminent

domain. Commissioners were appointed and a special commissioners’ hearing was set.

On the day of the hearing, counsel for ETC told the landowners and the special

commissioners that it did not want to have the hearing and that it would be dismissing

its cases. ETC filed motions to dismiss and notices to nonsuit its claims against the

landowners on March 12, 2008 and, through alleged inadvertence, requested that the

cases be dismissed “with prejudice.”

        ETC filed its second set of five condemnation petitions, at issue in this

mandamus, on March 17, 2008 in an effort to cure the errors contained in the original

condemnation petitions. The trial court refused to appoint special commissioners for

the second condemnation cases.             The landowners filed motions to dismiss on the

grounds of res judicata because the original petitions were dismissed “with prejudice.”

The trial court signed orders refusing to appoint special commissioners, granted the

motions to dismiss, and awarded attorney’s fees to the landowners. ETC brings these

five petitions for writ of mandamus asking us to direct the trial court to vacate its orders

denying ETC’s motions to appoint special commissioners and dismissing the petitions.




Corridor, L.L.C., Kenneth C. McCormick, Sr., and Kenneth C. McCormick, Jr. The Respondent is the
Honorable Robert Stem, sitting in the 82nd Judicial District Court of Robertson and Falls Counties, Texas.



In re ETC Katy Pipeline, LTD                                                                       Page 2
                                        Mandamus Relief

       Mandamus        is      "an   extraordinary   remedy,   available   only   in   limited

circumstances."      In re Chu, 134 S.W.3d 459, 462 (Tex. App.—Waco 2004, orig.

proceeding). A writ of mandamus will issue only if (1) the trial court violates a duty

imposed by law or clearly abuses its discretion, and (2) there is no other adequate

remedy at law, such as an appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007)

(orig. proceeding); In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.

proceeding) (citing Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)).

       Abuse of Discretion

       ETC argues that the trial court abused its discretion when it refused to appoint

special commissioners after the second petitions were filed.               A condemnation

proceeding is a two-part procedure involving first, an administrative proceeding, and

then if necessary, a judicial proceeding. In re State, 65 S.W.3d 383, 385 (Tex. App.—Tyler

2002, orig. proceeding) (citing Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241-42

(Tex. 1984)).     During the administrative phase, the special commissioners award

compensation for the taking and assess the costs of the proceeding. Amason, 682 S.W.2d

at 242; see TEX. PROP. CODE ANN. § 21.042 (Vernon Supp. 2002), § 21.047 (Vernon 2000).

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

proceeding; therefore, any judgment and order made outside of the statutory authority

is void. In re Energy Transfer Fuel, LP, 250 S.W.3d 178, 181 (Tex. App.—Tyler 2008, orig.

proceeding).     The beginning phase of an eminent domain proceeding is entirely

administrative, and it does not convert into a judicial proceeding until objections to the


In re ETC Katy Pipeline, LTD                                                            Page 3
special commissioners’ award are filed. See TEX. PROP. CODE ANN. § 21.018 (Vernon

1984); Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962).

        Having reviewed the mandamus record before us and the applicable law, we

conclude that the refusal to appoint commissioners and the “dismissal with prejudice”

ruling were abuses of discretion. The trial court lacked jurisdiction to act outside of the

statute during the administrative phase of the condemnation proceeding. See In re State,

85 S.W.3d at 875 (holding that trial court lacks jurisdiction to act beyond statute during

administrative phase of proceeding and any such action is abuse of discretion). The

trial court abused its discretion because it had a duty to appoint special commissioners

and lacked jurisdiction to dismiss ETC’s cases on res judicata grounds. We sustain

ETC’s first issues in each proceeding.

        Inadequate Remedy at Law

        An abuse of discretion alone does not warrant the issuance of a writ of

mandamus. We must also consider whether ETC has an adequate remedy at law by

appeal or otherwise. There is not an adequate remedy by appeal when a party is in

danger of permanent deprivation of substantial rights. Id. at 388. The landowners

argue that an adequate remedy by appeal is available because ETC is currently

pursuing appellate remedies in this court.2 See In re Lerma, 144 S.W.3d 21 (Tex. App.—




2        ETC filed appellate briefs with this court on August 19, 2008 arguing in two issues that (1) the
trial court abused its discretion in dismissing the case with prejudice when “dismissal with prejudice”
was requested inadvertently and (2) that it was error for the court to deny its post-trial motions
requesting that the order be corrected and dismissed “without prejudice.”



In re ETC Katy Pipeline, LTD                                                                      Page 4
El Paso 2004, orig. proceeding) (denying writ when relator had two appeals pending

when mandamus was filed).

       The Fourth Court of Appeals’ opinion in Garcia is instructive on this issue. See

Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 824 (Tex. App.—San Antonio 1994,

orig. proceeding). In Garcia, the San Antonio Court of Appeals found mandamus to be

proper where the relator, who was seeking to condemn an easement for a pipeline,

faced a sixty-day delay in the condemnation proceeding due to the trial court's

interference and penalties and expenses associated with the delay. The Garcia court

concluded that "neither the district court nor a court of appeals has any mechanism by

which it could return the expedited procedure and costs of which the relator was

deprived." Id. The court also held that mandamus relief is generally proper when a

judicial body operates to deny a litigant a peculiar right or directly interferes with the

jurisdiction of another court or administrative body. Id.

       Like Garcia, appeal is not an adequate remedy in this case. In Garcia the trial

court, by way of injunction and continuance, was effectively delaying the

commissioners’ hearing process by sixty days. Here, the trial court has gone far beyond

Garica by refusing to appoint special commissioners. Additionally, more than ninety

days have passed since the filing of the original petition. The Property Code provides

condemnors a substantial right to an expedited hearing and possession of the easement

immediately after the commissioners file their findings. See id. The delay involved in

this case, like Garcia, is not the delay of waiting until a court proceeding is over to

appeal, but the delay of wrongfully halted proceedings over which another body has


In re ETC Katy Pipeline, LTD                                                        Page 5
jurisdiction. Id.; cf. HCA Health Servs. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (no

adequate remedy by appeal for litigation deadlocked when two courts attempted to

exercise jurisdiction).

       Because the trial court's orders permanently deprive ETC of the substantial right

of an expedited procedure and it has no adequate remedy by appeal, ETC is entitled to

mandamus relief. See Prudential, 148 S.W. 3d at 135-39. We sustain ETC’s second issue.

                                          Conclusion

       Having determined that the trial court was without jurisdiction to refuse to

appoint special commissioners and to grant the motions to dismiss on res judicata

grounds, we conditionally grant mandamus relief. See In re Energy Transfer Fuel, LP, 250

S.W.3d at 182; see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). The writ will

issue in each case only if Respondent fails to withdraw his order granting the motion to

dismiss signed on March 31, 2008, or fails to appoint special commissioners within 21

days from the date of this opinion.



                                                 BILL VANCE
                                                 Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray dissents with a note)*
Petitions granted
Opinion delivered and filed October 1, 2008
[OT06]




In re ETC Katy Pipeline, LTD                                                         Page 6
* (Chief Justice Gray would deny each of the five petitions for writ of mandamus. A
separate opinion will not issue. He notes, however, that while he agrees with the
analysis of In re State, 65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) and Gulf
Energy Pipeline Co. v. Garcia, 884 S.W.2d 821 (Tex. App.—San Antonio 1994, orig.
proceeding), those proceedings are easily distinguished. In State and Garcia, the
administrative portion of the condemnation proceeding was ongoing, and the trial court
was attempting to exercise control over and during the administrative process. No final
judgment had been rendered dismissing the proceeding. Thus, the only way to obtain
relief from the trial court’s interference was by mandamus. In this proceeding,
however, the trial court has rendered a final judgment of dismissal. That judgment can
be directly and immediately appealed. This mandamus proceeding could be a more
timely review of the trial court’s judgment than a direct appeal if we give it our
immediate attention. But that is also true of any proceeding that has been finally
disposed by the trial court. If the appeal needs to be expedited because of the nature of
the underlying dispute, it can be. But there is no justification, much less authority, for
hurtling this proceeding to the front of the line because it is filed as a mandamus when
a direct appeal is not only available but is actually currently pending and, if
appropriate, a motion to expedite can be filed and considered. Because there is an
adequate remedy by direct appeal, he would deny ETC’s petition for a writ of
mandamus. The Court’s ruling will, of course, moot the pending appeals and therefore
Chief Justice Gray would simultaneously dismiss those five proceedings.)




In re ETC Katy Pipeline, LTD                                                        Page 7
