      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00260-CV



                                        In re State of Texas


                       ORIGINAL PROCEEDING FROM BELL COUNTY



                                           OPINION


               In November 2009, the State, “acting by and through” the Texas Transportation

Commission (the “Commission”) and the Texas Department of Transportation (the “Department”)

(cumulatively the “State”), initiated an eminent domain proceeding in order to acquire property from

James and Rosemary LeGuin (“the LeGuins”). After the State initiated the proceeding, the LeGuins

asked the State to disclose various documents related to the value of the property to be condemned

and to construction plans for the property. The State objected to the request, but the trial court

ordered the State to produce the requested documents. In response to the trial court’s order, the State

filed a petition for writ of mandamus asking this Court to vacate the trial court’s order. We will

conditionally grant the writ.


                                 STATUTORY FRAMEWORK

               Before addressing the issues presented in this mandamus, some preliminary

background regarding eminent domain proceedings is helpful. “The eminent domain statute is

designed to provide a speedy and fair assessment of damages.” Gulf Energy Pipeline Co. v. Garcia,
884 S.W.2d 821, 823 (Tex. App.—San Antonio 1994, orig. proceeding); see In re State, 85 S.W.3d

871, 876 (Tex. App.—Tyler 2002, orig. proceeding) (op. on reh’g). Under current law, the eminent

domain process occurs in two phases.           Blasingame v. Krueger, 800 S.W.2d 391, 392

(Tex. App.—Houston [14th Dist.] 1990, orig. proceeding). The first phase is administrative in

nature. After an eminent domain proceeding is filed in a trial court, Tex. Prop. Code Ann. § 21.012

(West Supp. 2009), the trial court appoints three special commissioners who “assess the damages

of the owner of the property being condemned,” id. § 21.014 (West 2004); see id. § 21.042

(West Supp. 2009), and “file an award which, in their opinion, reflects the value of the sought-after

land,” Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984). The administrative

phase is designed to provide “a means to quickly award damages . . . without the delays that occur

in court proceedings.” In re State, 85 S.W.3d at 876; see also PR Investments & Specialty Retailers,

Inc. v. State, 251 S.W.3d 472, 478 (Tex. 2008) (explaining that administrative phase provides parties

with opportunity to present their case in “streamlined fashion and to resolve their differences”

without “the burdens of a trial”). In other words, the “purpose of the administrative phase is to

provide the parties an opportunity for a prompt resolution of the case with a minimum of expense.”

City of McKinney v. Eldorado Park, Ltd., 206 S.W.3d 185, 196 (Tex. App.—Eastland 2006,

pet. denied). During this phase, the trial court only has “jurisdiction to appoint the commissioners,

receive their opinion as to value, and render judgment based upon the commissioners’ award.”

Gulf Energy Pipeline Co., 884 S.W.2d at 822. The trial court has no authority to control the timing

of or otherwise interfere with the commissioners’ hearing. Id. at 823.




                                                 2
                If the property owner or the condemning authority is dissatisfied with the

commissioners’ award, either may file objections to the commissioners’ findings in the trial court.

Tex. Prop. Code Ann. § 21.018 (West 2004). Once those objections are filed, the second phase goes

into effect. Blasingame, 800 S.W.2d at 393. In this phase, the commissioners’ award is vacated, id.,

and the administrative phase converts into a normal cause to be tried “in the same manner as other

civil causes” in the trial court, Tex. Prop. Code Ann. § 21.018(b). See also In re State, 85 S.W.3d

at 877 (stating that objections to commissioners’ findings entirely wipe out commissioners’ award

and prohibit any judgment based on that award). It is only after a party files objections that the trial

court obtains full jurisdiction over the case.         State v. Blackstock, 879 S.W.2d 125, 129

(Tex. App.—Houston [14th Dist.] 1994, writ denied). In other words, the trial court does not gain

jurisdiction “as a court . . . until the objections” are filed. Grant v. United Gas Pipe Line Co.,

457 S.W.2d 315, 319 (Tex. Civ. App.—Corpus Christi 1970, writ ref’d n.r.e.).


                                          BACKGROUND

                In this case, the State sought to acquire property from the LeGuins and initiated an

eminent domain proceeding. The State sought the property in order to expand IH-35. After the State

initiated the eminent domain proceeding, the trial court appointed three “special commissioners to

assess the damages to the owner of the property being condemned,” see Tex. Prop. Code Ann.

§ 21.014, and a commissioner’s hearing was set for June 2010, id. § 21.015 (West 2004).

                Prior to the hearing, the LeGuins filed an extensive request for information, asking

the State to produce the following types of documents prior to the hearing:



                                                   3
                •       appraisals, value studies, and reports concerning the property to be
                        condemned

                •       the work file used by an appraiser to make an initial valuation

                •       design plans and documents showing details of the construction to be
                        conducted on the property

                •       documents that are relevant to the market value of the property to be
                        condemned and to the value of the remainder of the LeGuins’
                        property before and after the taking

                •       documents relating to any regulation or rule that affects the value of
                        the LeGuins’ property


In filing this request, the LeGuins contended that section 21.024 of the property code allowed the

disclosure sought. See Tex. Prop. Code Ann. § 21.024 (West Supp. 2009) (covering “Production

of Information by Certain Entities Considered Critical Infrastructure”). In response to the request,

the State filed various objections arguing that the property code provision does not apply to the State,

the Commission, or the Department. Shortly thereafter, the LeGuins filed a motion to compel the

release of the information requested.

                After the LeGuins filed their motion to compel, a hearing was scheduled with the trial

court. Ultimately, the trial court granted the LeGuins’ motion to compel and ordered the State to

produce the documents requested. After the trial court granted the motion to compel, the State filed

this petition for writ of mandamus.


                                           DISCUSSION

                In its petition, the State asserts that mandamus is proper because “the trial court

abused its discretion in ordering the State to produce information pursuant to a request under Texas

                                                   4
Property Code section 21.024, and the State has no adequate remedy by appeal.” See In re Columbia

Med. Center, 290 S.W.3d 204, 207 (Tex. 2009) (explaining that mandamus may properly issue to

“correct a clear abuse of discretion or the violation of a duty imposed by law” when “an adequate

remedy by appeal does not exist”).


There is No Adequate Remedy

               In its petition, the State contends that mandamus is warranted in this case because it

will have no adequate remedy if it is required to disclose the information sought. The LeGuins, on

the other hand, argue that mandamus is inappropriate because there is an adequate remedy by appeal.

Specifically, the LeGuins assert that because the parties to a special commissioners’ condemnation

proceeding are entitled to a de novo appeal in the trial court, see Tex. Prop. Code Ann. § 21.018, the

State has an adequate remedy by appeal. Further, the LeGuins insist that the State previously argued

that the de novo appeal provided an adequate appellate remedy and should, therefore, be prohibited

from taking a contrary position in this case.

               In determining whether there is an adequate remedy by appeal, courts “must consider

whether mandamus will preserve important substantive and procedural rights from impairment or

loss.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). There “is no

adequate remedy by appeal” when the “parties are in danger of permanently losing substantial

rights.” Gulf Energy Pipeline Co., 884 S.W.2d at 824. Further, courts may consider whether

mandamus will “allow the appellate courts to give needed and helpful direction to the law that would

otherwise prove elusive in appeals from final judgments.” In re Prudential Ins. Co., 148 S.W.3d

124, 136 (Tex. 2004). For example, questions of law that are likely to recur yet elude appellate

                                                  5
review may be addressed through mandamus. Id. at 138. In addition, courts may determine whether

affording relief through mandamus will “spare private parties and the public the time and money

utterly wasted enduring eventual reversal of improperly conducted proceedings.” Id.

                The issue presented in this mandamus is a question of law: whether section 21.024

of the property code requires the State to disclose certain information during the administrative

portion of an eminent domain proceeding. See Tex. Prop. Code Ann. § 21.024. Further, the issue

is likely to recur as evidenced by the fact that there is currently another mandamus pending with this

Court addressing the very same issue. See In re State, No. 03-10-00360-CV. Moreover, the issue

bears upon a substantial right. The right to a quick resolution during the administrative phase

without the delays that are found in court proceedings has been characterized as “a substantial right,”

In re State, 85 S.W.3d at 876-77, that belongs to entities with the power of eminent domain, see Gulf

Energy Pipeline Co., 884 S.W.2d at 824. See also PR Invs. & Specialty Retailers, Inc., 251 S.W.3d

at 478 (stating that pretrial settlements through administrative proceedings should be encouraged).

                If the State is correct, then section 21.024 does not apply, and requiring the State to

submit to extensive discovery requests will interfere with the substantial right to obtain a quick

assessment of damages without the expense and delays of traditional court proceedings. Moreover,

although the LeGuins insist that the right to a trial de novo in the trial court after the commissioners’

hearing provides an adequate remedy for any error, it is not readily apparent how the benefit of a trial

de novo could possibly address or undo the deprivation of the right to an unencumbered and

expedited administrative hearing. Cf. In re Jorden, 249 S.W.3d 416, 419-20 (Tex. 2008) (orig.

proceeding) (pertaining to availability of “presuit depositions” and noting that if relators’ claim is


                                                   6
true and law prohibits those depositions, then scheduled depositions cannot be “untaken”). In other

words, the trial court would have no “mechanism by which that right, once lost, [could] be

recovered.” See In re State, 85 S.W.3d at 877.

                Similarly, it seems unlikely that this issue would ever be addressed during appellate

review. If the State obtains a favorable result in a trial de novo, it will likely be precluded from

appealing the trial court’s judgment or raising the disclosure issue on appeal. If the State does not

obtain a favorable result and seeks to appeal the trial court’s judgment, it is not clear on what basis

the issue could be addressed because allowing discovery “a little too early” is unlikely to lead to an

improper judgment. See In re Jorden, 249 S.W.3d at 419. Regardless, even assuming that an

appellate court could ever address the issue through a traditional appeal, the right to the quick

administrative hearing would still have been lost.

                As discussed above, the LeGuins contend that even if mandamus might otherwise be

appropriate, this Court should still deny relief because the State has previously asserted that the right

to a trial de novo after the commissioners’ hearing will cure any error occurring in the

commissioners’ hearing. As support for their assertions, the LeGuins cite to Blasingame v. Krueger.

In that case, the property owners sought to subpoena various State employees, but the trial court

granted a motion to quash filed by the State. 800 S.W.2d at 392. After the trial court granted the

motion, the owners filed a mandamus petition. In their response to the petition, the State argued that

mandamus relief should be denied because the ability to have a trial de novo after the

commissioners’ hearing provided the owners with an adequate remedy by appeal. The appellate

court agreed and determined that the trial de novo will allow the owners to obtain the information

sought through “‘regular’ discovery in accordance with the rules of civil procedure.” Id. at 394.

                                                   7
               Although the LeGuins correctly point out that the State did previously argue that

the right to a de novo trial after a commissioners’ hearing provided an adequate remedy, the

situation presented in this mandamus proceeding is not analogous to that found in Blasingame.

Blasingame involved an order prohibiting the disclosure of information during a commissioners’

hearing, but this case involves an order compelling the release of information. Any error resulting

from the failure to provide information could actually be cured by the disclosure of that information

during a subsequent trial, but as discussed above, any potential harm resulting from the

improper disclosure of information during a commissioners’ hearing cannot be undone through a

subsequent trial de novo.1

               For these reasons, we conclude that the State has no adequate remedy by appeal and

that the failure to employ mandamus when this type of substantial right is placed in jeopardy “would




       1
          In their response, the LeGuins also refer to In re State, 65 S.W.3d 383 (Tex. App.—Tyler
2002, orig. proceeding), as support for their assertion that mandamus is not appropriate in this case.
In that case, the special commissioners ordered the State to produce appraisal reports and records,
and the trial court affirmed that request. Id. at 384. The State filed a mandamus, and relying on
Blasingame, the appellate court determined that the right to a trial de novo after the commissioners’
hearing afforded the State an adequate remedy. Id. at 387-88.

        In light of the preceding case, the LeGuins contend that we should adopt the reasoning
employed by the Tyler Court of Appeals and conclude that the State in the present case has an
adequate remedy by appeal. In reaching its conclusion, the Tyler court also noted that its
determination that mandamus was not warranted was supported by the fact that there was “no
contention that the actions of the trial court have caused or will cause irreparable harm.” Id. at 388.
In the present case, however, the State has alleged that being forced to disclose the information
sought will deprive the State of its substantial right to an expedited hearing during the administrative
phase of a condemnation proceeding. Even assuming that the Tyler court’s opinion could be read
as standing for the proposition that mandamus relief is not available to resolve any discovery
disputes arising during the administrative phase, we would not be bound by that holding or by the
analysis employed by the Tyler court.

                                                   8
vitiate and render illusory the right to a rapid, inexpensive alternative to traditional litigation.” Gulf

Energy Pipeline Co., 884 S.W.2d at 824; see In re Prudential Ins. Co., 148 S.W.3d at 138.


The Trial Court Abused its Discretion

                Having determined that there is no adequate remedy available to the State if the

State’s assertions are correct, we must now determine whether the trial court abused its discretion

by ordering the State to disclose the information sought by the LeGuins under section 21.024 of the

property code. See Tex. Prop. Code Ann. § 21.024. A court is said to abuse its discretion when

it acts “without reference to any guiding rules and principles,” Quixtar Inc. v. Signature Mgmt.

Team, LLC, 315 S.W.3d 28, 32 (Tex. 2010), or acts in “an arbitrary or unreasonable manner,”

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Regarding factual

determinations, appellate courts apply a deferential standard and will only disturb the trial court’s

determination if “it is shown to be arbitrary and unreasonable.” In re Bustamante, 104 S.W.3d 704,

705 (Tex. App.—El Paso 2003, orig. proceeding). However, regarding the resolution of legal

questions, appellate courts are “much less deferential” because a trial court has no discretion to

determine what the law is. Id. Accordingly, a trial court “abuses its discretion” when it fails to

analyze or correctly apply the law. Id.

                In its petition, the State asserts that section 21.024 does not apply to the State, the

Commission, or the Department. The issue presented involves a question of statutory construction.

When presented with an issue of statutory construction, the chief concern “is to ascertain and give

effect to the Legislature’s intent.” Klein v. Hernandez, 315 S.W.3d 1, 3-4 (Tex. 2010). In making

this determination, courts should look to the plain meaning of the words used in the statute. See

                                                    9
Fireman’s Fund County 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 2005).

               As a preliminary matter, we note as described above that the administrative phase was

originally designed to provide a quick, inexpensive, and unencumbered mechanism by which the

damages to a landowner may be determined. See In re State, 85 S.W.3d at 876; Gulf Energy

Pipeline Co., 884 S.W.2d at 824. We also note that the LeGuins’ assertions are in direct conflict

with that statutory scheme. See Gulf Energy Pipeline Co., 884 S.W.2d at 822-23. In fact, despite

the legislative mandate denying the trial court an active role in the administrative phase of an

eminent domain proceeding and requiring that commissioners set and conduct a hearing “promptly”

and “at the earliest practical time,” see Tex. Prop. Code Ann. § 21.015, the LeGuins essentially ask

this Court to conclude that a large proportion of (if not all) eminent domain proceedings initiated by

a governmental entity are subject to the delays inherent in scheduling hearings before a trial court,

see Peak Pipeline Corp. v. Norton, 629 S.W.2d 185, 187 (Tex. App.—Tyler 1982, no writ) (stating

that eminent domain “statutory authority and the legislative intent from which it emanates,



                                                 10
contemplates the utilization of special commissioners to accomplish the goal of a speedy and fair

assessment of damages”); City of Houston v. Plantation Land Co., 440 S.W.2d 691, 695 (Tex. Civ.

App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.) (explaining that legislature intended to establish

“expeditious procedure”). Furthermore, construing section 21.024 as applying to the administrative

phase would necessarily undermine the intent of the legislature by adding expense to the

administrative phase.2 While the legislature is free to override its prior intent through subsequent

enactments, the breadth of the departure suggested by the LeGuins in the absence of language

expressly disavowing the prior intent gives us pause.

                Moreover, construing section 21.024 as applying to the State is inconsistent with the

very language of that provision. That provision requires certain condemning authorities to release

information “related to the taking of [a] person’s private property by the entity through the use of

eminent domain.” Id. § 21.024(a). Further, the provision explains that only “an entity which is


       2
           The LeGuins assert that disclosure during the administrative hearing would “level the
playing field by giving the landowner access to relevant information going into the administrative
hearing, but will also increase the chances that those hearings will yield a quick and fair resolution.”
Further, the LeGuins insist that construing section 21.024 as not applying to the State will not
encourage pretrial settlements and will force landowners to choose between “settling without the
benefit of information about their property in the State’s possession or, alternatively, proceeding to
trial and spending more money to discover” the information relied on by the State. See Tex. Prop.
Code Ann. § 21.024 (West Supp. 2009).

         Although releasing the requested information during the administrative phase would provide
landowners with more information prior to trial, the release would be contrary to the State’s
substantial right to a quick and inexpensive resolution during the administrative phase. See In re
State, 85 S.W.3d 871, 876-77 (Tex. App.—Tyler 2002, orig. proceeding) (op. on reh’g). In fact, it
might effectively negate the distinction between the administrative phase and a trial as it relates to
costs and burdens imposed on the State. Moreover, delaying the release of the requested information
until after the conclusion of the administrative portion imposes no additional burdens on landowners
that are not present in other eminent domain contexts.

                                                  11
considered critical infrastructure and which is authorized by law to take private property through

the use of eminent domain is required to produce” the information described above. Id. (emphases

added). When describing what is meant by the phrase “critical infrastructure,” the code states that

“[a] utility, a common carrier, or a transporter of oil, gas, or the products of oil or gas is considered

to be within the definition of critical infrastructure under Section 421.001, Government Code.” Id.

The government code specifies that “‘critical infrastructure’ includes all public or private assets,

systems, and functions vital to the security, governance, public health and safety, economy, or morale

of the state or the nation.” Tex. Gov’t Code Ann. § 421.001(2) (West 2005) (emphasis added).

                At first glance, the State and the Commission and the Department as governmental

agencies do not seem to fall under the government code’s definition of “critical infrastructure”

because they do not seem to readily qualify as “assets, systems, [or] functions.” See Tex. Gov’t

Code Ann. § 421.001(2). While they unquestionably may physically own, create, or maintain

“assets, systems, and functions” that would qualify as critical infrastructure, that does not necessarily

compel a conclusion that they themselves are critical infrastructure. That determination also seems

to comport with the commonly accepted definition of “infrastructure” as “the system of public works

of a country, state, or region.” See Merriam-Webster available at www.merriam-webster.com.

Furthermore, the government code provision defining “critical infrastructure” has a separate and

distinct definition for “agency,” which would seem to more readily apply to the entities at issue. Id.




                                                   12
§ 421.001(1).3 Moreover, it is worth noting that nothing in the definition of “agency” indicates that

agencies are considered “critical infrastructure.” Id.

               This conclusion is supported by a later subsection in section 21.024, which references

a government code provision applying only to non-governmental entities. Subsection 21.024(i)

states that section 552.0037 of the government code “does not apply in relation to those entities

described in Subsection(a),” which are subject to the disclosure requirements at issue. Tex. Prop.

Code Ann. § 21.024(a), (i). Section 552.0037 of the government code is part of the Public

Information Act and specifies that non-governmental entities with the power to use “eminent

domain” are subject to the Act. Tex. Gov’t Code Ann. § 552.0037 (West Supp. 2009). Given that

the government code provision applies only to non-governmental entities and that the property code

exempts all of the entities described in subsection 21.024(a) from the requirements imposed by the



       3
         In their response, the LeGuins insist that section 21.024 of the property code applies when
the condemning authority is “an entity,” when “the entity is ‘considered critical infrastructure,’” and
when “the entity has condemnation power to take private property.” See Tex. Prop. Code Ann.
§ 21.024. In light of this characterization, the LeGuins insist that the State, the Commission, and the
Department all qualify under section 21.024 of the property code. For the reasons discussed above,
we disagree with their interpretation of section 21.024.

        The LeGuins also contend that in enacting section 21.024, the legislature could not have
reasonably intended to treat governmental and non-governmental entities differently. In other words,
the LeGuins insist that the legislature could not have desired to grant landowners the ability to seek
information from a condemning authority “considered critical infrastructure” but not bestow that
same right to landowners seeking information from the State. When confronted with an issue of
statutory construction, we are simply charged with ascertaining what the legislature intended by
enacting a statute; we are not tasked with determining whether the legislature correctly resolved the
various competing public interests. Resolution of public interests is a task uniquely suited for the
legislature. Although we need not determine whether the legislature’s decision to distinguish
between governmental and non-governmental entities in this context appropriately settles the various
conflicting interests, we do note that there could be compelling reasons for limiting the disclosure
requirements to non-governmental entities that have been given the power of eminent domain.

                                                  13
government code provision, the most logical resolution of those statutes leads to the conclusion that

subsection 21.024(a) covers non-governmental entities and, therefore, does not apply to the State,

the Commission, or the Department.4 This conclusion is further supported by the fact that when the


       4
           The LeGuins argue that subsection 21.024(i) cannot support a conclusion that
subsection 21.024(a) does not apply to the State, the Commission, or the Department. See Tex. Prop.
Code Ann. § 21.024(a), (i). Essentially, they assert that subsection 21.024(a) applies to both
governmental and non-governmental entities and that subsection 21.024(i) simply eliminates the
possibility that a non-governmental entity will attempt to use an exception to disclosure under the
Public Information Act as a basis for refusing to disclose the information required by section 21.024.
See Tex. Gov’t Code Ann. § 552.0037 (West Supp. 2009) (explaining that non-governmental entities
with power of eminent domain are subject to Act). Finally, they argue that section 21.024 cannot
apply only to non-governmental entities because it unquestionably applies to utilities and common
carriers, Tex. Prop. Code Ann. § 21.024(a), some of which are governmental entities.

        However, the language of subsection 21.024(i) undermines their first assertion. The language
of that subsection does not exempt just non-governmental entities; rather, it exempts all of the
entities described in subsection 21.024(a). Id. § 21.024(a); see Fireman’s Fund County Mut. Ins.
Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000) (explaining that courts analyze words actually used).
Had the legislature intended subsection 21.024(i) to apply only to non-governmental entities, it could
have easily said so. See USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.
App.—Austin 2004, pet. denied) (stating that courts must presume that words chosen and omitted
were done so purposely). Moreover, were we to adopt the construction offered by the LeGuins, then
we must conclude that the legislature was aware of the fact that 552.0037 of the government code
does not address or apply to governmental entities but chose to exempt all entities (governmental and
non-governmental) from the burdens and exemptions imposed by section 552.0037. See City of
Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010) (requiring courts to presume that legislature
intended reasonable result).

        Regarding the assertion by the LeGuins that section 21.024 must apply to governmental and
non-governmental entities because it specifically covers entities (e.g., utilities and common carriers)
that can be governmental in nature, we are not confronted with making that determination here.
Rather, we are asked to determine whether section 21.024 requires disclosure by the State, the
Department, and the Commission. See Hagen v. Hagen, 282 S.W.3d 899, 901-02 (Tex. 2009)
(explaining that courts have no jurisdiction to issue advisory opinions). Even assuming that the
LeGuins are correct when they state that common carriers and utilities can be governmental entities,
that concession would not result in a determination that the definition of critical infrastructure
includes the State, the Department, or the Commission. To the contrary, the legislature could have
simply chosen to include certain types of governmental entities in the definition of “critical
infrastructure” for the purposes of eminent domain.

                                                  14
legislature previously decided to impose disclosure requirements on governmental entities in the

eminent domain context, it explicitly used the phrase “governmental entity.” See Tex. Prop. Code

Ann. § 21.0111 (West 2004) (requiring “governmental entity . . . that wants to acquire real property”

through eminent domain to disclose “existing appraisal reports” at time offer is made and before

administrative hearing).    Had the legislature intended for section 21.024 to also apply to

governmental entities, it could have easily said so.

               Even assuming that the definition of “critical infrastructure” can be read broadly

enough to include the State, the Department, the Commission, and other governmental entities5 when

those entities are exercising eminent domain for the purpose of creating or maintaining critical

infrastructure such as a highway, section 21.024 provides a significant limitation to the types of

critical-infrastructure entities that are required to disclose information. Section 21.024 applies only

to those entities that are “authorized by law to take private property through the use of eminent

domain.” Tex. Prop. Code Ann. § 21.024(a) (emphasis added). The State is not authorized by law

to engage in eminent domain actions; rather, the State has an “inherent sovereign power of eminent


       5
          When asserting that section 21.024 applies to governmental entities, the LeGuins refer to
three cases that list section 21.024 as well as others when describing the statutory condemnation
scheme. See Alweine v. City of Houston, 309 S.W.3d 771, 774 n.2 (Tex. App.—Houston [14th Dist.]
2010, pet. filed) (listing sections 21.001 to 21.065 of property code as governing statutory scheme);
City of Dallas v. Pacifico Partners, Ltd., 289 S.W.3d 371, 374 n.1 (Tex. App.—Dallas 2009, no pet.)
(identifying article I, section 17 of constitution and sections 21.012 to 21.024); AVM-HOU,
Ltd. v. Capital Metro. Transp. Auth., 262 S.W.3d 574, 578 (Tex. App.—Austin 2008, no pet.)
(stating that eminent domain action is “statutory cause of action” and citing sections 21.011 to
21.024 of property code). However, none of those cases explicitly state that section 21.024 requires
disclosure by governmental entities and certainly does not say that disclosure is required during the
administrative portion of a condemnation proceeding. In fact, when describing what statutes govern
the adminstrative hearing and subsequent trial de novo, the Pacifico Partners court made no mention
of section 21.024 and instead cited only to sections 21.012 through 21.018 of the property code.
289 S.W.3d at 374.

                                                  15
domain.” See City of Carrollton v. Singer, 232 S.W.3d 790, 796 (Tex. App.—Fort Worth 2007, pet.

denied). The Texas Constitution may limit the manner in which the power may be exercised, but it

does not bestow that power onto the State. Id.; Whittington v. City of Austin, 174 S.W.3d 889, 898

(Tex. App.—Austin 2005, pet. denied); see also Tex. Const. art. I, § 17 (imposing requirement that

property owner be given “adequate compensation” and that taking be done for “public use”).

Similarly, the property code does not grant the power of eminent domain but instead provides “the

procedure for instituting an eminent domain proceeding.” Singer, 232 S.W.3d at 797; see Tex.

Transp. Code Ann. § 224.004(d) (West 1999) (explaining that property code “governs procedure for

the eminent domain proceeding”).

               Although the State has the inherent power to engage in eminent domain, the State

uses this power by delegating its authority to the Department and other agencies. State v.

Northborough Ctr., Inc., 987 S.W.2d 187, 189 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)

(explaining that in eminent domain proceeding, State acts “through the Texas Department of

Transportation”). In other words, when the Department engages in eminent domain, it is exercising

the State’s inherent sovereign right rather than employing a right “authorized by law.” Because the

Commission “governs” the Department, Tex. Transp. Code Ann. § 201.201 (West 1999), it is

similarly empowered to engage in eminent domain in “the name of the [S]tate” and on “behalf of the

[S]tate,” Tex. Transp. Code Ann. §§ 203.051 (West 1999), 224.004 (West 1999).

               In light of the fact that the State, the Department, and the Commission are not entities

that have been “authorized by law” to engage in eminent domain actions but are instead entities that

either have or express an inherent, sovereign power of eminent domain, we must conclude that they



                                                 16
are not governed by the requirements of section 21.024 of the property code. Because the trial

court determined that section 21.024 applied and required the discosures sought by the LeGuins, we

conclude that the trial court abused its discretion. See In re Bustamante, 104 S.W.3d at 705

(explaining that trial courts abuse their discretion when they incorrectly analyze or apply

governing law).


                                          CONCLUSION

               Having concluded that the district court abused its discretion by determining that

section 21.024 applied and having determined that the State does not have an adequate remedy, we

conditionally grant the State’s petition for writ of mandamus and direct the trial court to vacate its

order requiring disclosure of the five categories of documents sought by the LeGuins. We are

confident that the trial court will comply, and our writ will only issue if it does not.6



                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Filed: November 12, 2010




       6
          In their response, the LeGuins assert that the State improperly relies on and attached to its
petition part of the legislative history for section 21.024 and various documents ostensibly explaining
what is meant by the term “critical infrastructure.” Further, the LeGuins filed a motion to strike the
allegedly improper documents from the State’s appendix to its petition and any portion of the State’s
petition “citing or relying” on the documents. In reaching our result, we do not rely on the
documents that the LeGuins object to. See Tex. Gov’t Code Ann. § 311.023(3) (West 2005)
(authorizing courts to consider statute’s legislative history when attempting to engage in statutory
construction). Accordingly, we dismiss the motion to strike as moot.

                                                  17
