                                       NO. 12-14-00329-CV

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

IN RE: TARRANT REGIONAL WATER                           §

DISTRICT, A WATER CONTROL                               §       ORIGINAL PROCEEDING

AND IMPROVEMENT DISTRICT                                §

                                                  OPINION
        Tarrant Regional Water District (TRWD) filed a petition for writ of mandamus
challenging the trial court’s order refusing to appoint special commissioners during the
administrative phase of its condemnation proceeding in Henderson County.1 We conditionally
grant the petition.


                                               BACKGROUND
        TRWD filed a petition in condemnation, by which it sought to acquire by eminent
domain 7.820 acres of the Lazy W District No. 1 as a permanent easement for a water pipeline.
Lazy W filed a plea to the jurisdiction, asserting that governmental immunity bars TRWD’s
condemnation proceeding.
        On October 17, 2014, the trial court signed an order refusing to appoint special
commissioners. The order provided further that the court “[would] only do so, if at all, after a
hearing has been set and held on the Plea to the Jurisdiction of Defendant Lazy W District No. 1
and a ruling is made by the Court on that Plea.” TRWD seeks mandamus relief from this Court.




        1
         The real party in interest is Lazy W District No. 1, a municipal utility district. The respondent is the
Honorable Joe D. Clayton, sitting by assignment in the Third Judicial District Court of Henderson County, Texas.


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                                 PREREQUISITES TO MANDAMUS
       Generally, mandamus relief is appropriate only when the trial court clearly abuses its
discretion and there is no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004). A trial court has no discretion in determining what the law is
or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Thus,
a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion and may result in the issuance of a writ of mandamus. See id.
       Mandamus is available when a trial court abuses its discretion by entering a void order,
regardless of whether appeal is an adequate remedy. See In re Sw. Bell Tel. Co., 35 S.W.3d 602,
603 (Tex. 2000).


                               THE TRIAL COURT’S JURISDICTION
       A condemnation proceeding is not within the general jurisdiction of the court; any power
to act is special and depends upon the eminent domain statute. In re Energy Transfer Fuel, LP,
250 S.W.3d 178, 180-81 (Tex. App.–Tyler 2008, orig. proceeding).                 The Texas land
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 (West
2014); Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984).
       When an entity with eminent domain authority wants to acquire real property for public
use but cannot agree with the landowner on the amount of damages, that entity must file a
condemnation petition in the proper court, either district court or county court at law, of the
county in which the land is located. Id. §§ 21.001, 21.012(a), 21.013(a) (West 2014); see also
Amason, 682 S.W.2d at 241. The judge of the court in which a condemnation petition is filed or
to which an eminent domain proceeding is assigned shall appoint three disinterested property
owners who reside in the county as special commissioners. TEX. PROP. CODE ANN. § 21.014(a)
(West 2014). These special commissioners must promptly schedule an evidentiary hearing on
the amount of damages due the property owners, assess the amount of damages, and file their
decision with the trial court. See TEX. PROP. CODE ANN. §§ 21.014(a), 21.015 (West 2014);
Brazos River Conservation & Reclamation Dist. v. Allen, 171 S.W.2d 842, 846-47 (Tex. 1943).
       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,



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682 S.W.2d at 242.       The administrative phase is completely separate from any judicial
proceeding that may later take place, and the Property Code says nothing about giving a trial
court power to oversee this initial phase. In re State, 85 S.W.3d 871, 874 (Tex. App.–Tyler
2002, orig. proceeding) (op. on reh’g.).      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 State, 325 S.W.3d 848, 851
(Tex. App.–Austin 2010, orig. proceeding). Any judgment or order made outside of the statutory
authority is void. See, e.g., In re Energy Transfer Fuel, LP, 250 S.W.3d at 181-82 (judgment
void and mandamus available because trial court was without jurisdiction to render final
judgment containing provisions not in commissioners’ award); Gulf Energy Pipeline Co. v.
Garcia, 884 S.W.2d 821, 824 (Tex. App.–San Antonio 1994, orig. proceeding) (mandamus
appropriate where trial court abused discretion by entering void orders granting continuance of
commissioners’ hearing and resetting to later date).
       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) (West 2014). If
an objection is filed, the court shall cite the adverse party and try the case in the same manner as
other civil causes. Id. § 21.018(b) (West 2014). The filing of the original objection converts the
condemnation proceeding, which has been administrative thus far, into a judicial proceeding and
invests the trial court with jurisdiction of the subject matter of the proceeding. See Denton Cnty.
v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962); see also In re State, 85 S.W.3d at 874 (“A
court’s jurisdiction to act as a judicial tribunal in a condemnation proceeding is limited to that
which has been conferred by statute.”).          But 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 State, 85
S.W.3d at 874.


                                 AVAILABILITY OF MANDAMUS
       When TRWD filed its condemnation petition, the trial court had a statutory duty to
appoint three special commissioners. See TEX. PROP. CODE ANN. § 21.014(a); Peak Pipeline
Corp. v. Norton, 629 S.W.2d 185, 187 (Tex. App.–Tyler 1982, no writ) (“It is . . . the absolute
duty of the [trial court] [j]udge presiding over the matter to appoint . . . special commission[ers]



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once a petition for condemnation has been filed with him.”). Lazy W contends that a trial court
must rule on a governmental entity’s plea to the jurisdiction before taking any other action in a
case. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
However, a condemnation proceeding does not become a “case” until the commissioners have
made their award and an objection to it has been filed in the trial court. See, e.g., Brammer, 361
S.W.2d at 200; In re State, 85 S.W.3d at 874. Consequently, Lazy W’s plea to the jurisdiction,
filed during the administrative phase, was premature, and the trial court’s only course of action
was to ignore it until an objection to the commissioners’ award had been filed. See TEX. PROP.
CODE ANN. § 21.01(b); see also In re State, 325 S.W.3d at 851.
        We hold that the trial court was without jurisdiction to refuse to appoint special
commissioners in this condemnation proceeding.2 See In re ETC Katy Pipeline, Ltd., 276
S.W.3d 562, 563 (Tex. App.–Waco 2008, orig. proceeding) (op. denying reh’g) (granting
mandamus because trial court was without jurisdiction to refuse to appoint special
commissioners).        Accordingly, its October 17, 2014 order refusing to appoint special
commissioners is outside its statutory authority and therefore void. See TEX. PROP. CODE ANN.
§ 21.014(a); In re Energy Transfer Fuel, LP, 250 S.W.3d at 181. We further hold that the trial
court abused its discretion by issuing the void order. See In re Sw. Bell Telephone Co., 35
S.W.3d at 605.


                                                CONCLUSION
        Having determined that the trial court’s October 17, 2014 is void and constitutes an abuse
of discretion, we conditionally grant mandamus relief. Because the order is void, TRWD is not
required to show that appeal is an inadequate remedy. Id.
        We trust the trial court will promptly vacate its order of October 17, 2014, and issue an
order appointing three special commissioners. The writ will issue only if the trial court fails to
comply with this court’s opinion and order within ten days. The trial court shall furnish this
Court, within the time of compliance with this Court’s opinion and order, a certified copy of the
order evidencing such compliance.

        2
           To the extent that the trial court’s order can be construed as merely delaying the appointment of
commissioners, we note that appellate courts have consistently held that trial courts have no authority to grant
continuances, abate, enjoin, set, or otherwise interfere with the commissioners’ hearings. See, e.g., Garcia, 884
S.W.2d at 823; Norton, 629 S.W.2d at 187. Thus, orders purporting to hinder or delay the special commissioners in
proceeding with the condemnation hearing are void. See Garcia, 884 S.W.2d at 823.


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                                                               JAMES T. WORTHEN
                                                                  Chief Justice

Opinion delivered February 11, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)


                                                          5
                                COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            ORDER
                                     FEBRUARY 11, 2015


                                      NO. 12-14-00329-CV


                    TARRANT REGIONAL WATER DISTRICT,
                A WATER CONTROL AND IMPROVEMENT DISTRICT,
                                   Relator
                                     V.
                           HON. JOE D. CLAYTON,
                                 Respondent


                               Appeal from the 3rd District Court
                      of Henderson County, Texas (Tr.Ct.No. 2014C-0144)

               ON THIS DAY came to be heard the petition for writ of mandamus filed by
TARRANT        REGIONAL         WATER       DISTRICT,       A    WATER       CONTROL         AND
IMPROVEMENT DISTRICT, who is the relator in Cause No. 2014C-0144 pending on the
docket of the 3rd Judicial District Court of Henderson County, Texas. Said petition for writ of
mandamus having been filed herein on November 10, 2014, and the same having been duly
considered, because it is the opinion of this Court that the writ of mandamus is meritorious, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby conditionally granted.
       And because it is further the opinion of this Court that the trial judge will act promptly
and vacate its order of October 17, 2014, and in its stead, issue an order appointing three special



                                                6
commissioners as required by the Texas Property Code, the writ will not issue unless the
Honorable Joe D. Clayton, sitting by assignment in the 3rd Judicial District Court, fails to
comply with this Court’s order within ten days from the date of this order.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




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