                                                                       FILED
                                                                       14-0917
                                                                       4/13/2015 11:26:11 AM
                                                                       tex-4860096
                                                                       SUPREME COURT OF TEXAS
                                                                       BLAKE A. HAWTHORNE, CLERK

                                     No. 14-0917


                      IN THE SUPREME COURT OF TEXAS


         HIGHWAY 205 FARMS, LTD. and MAURICE E. MOORE, JR.,

                                                 Petitioners,
                                          v.

                                CITY OF DALLAS,

                                                Respondent.


                                    Appeal from the
                       Fifth District Court of Appeals at Dallas
                                 No. 05-13-00951-CV


                    RESPONSE TO PETITION FOR REVIEW
                          AND CITY’S APPENDIX


WARREN M. S. ERNST                                          City Attorney’s Office
Dallas City Attorney                           1500 Marilla Street, Room 7D North
                                                               Dallas, Texas 75201
Barbara E. Rosenberg
Texas Bar No. 17267700                                  Telephone: 214-670-3519
James B. Pinson                                         Telecopier: 214-670-0622
Texas Bar No. 16017700                     barbara.rosenberg@dallascityhall.com
Christopher D. Bowers                           james.pinson@dallascityhall.com
Texas Bar No. 02731300                           chris.bowers@dallascityhall.com
Sonia T. Ahmed                                 sonia.ahmed@dallascityhall.com
Texas Bar No. 24082605
Assistant City Attorneys

                    ATTORNEYS FOR THE CITY OF DALLAS
                IDENTITIES OF PARTIES AND COUNSEL

      In accordance with Texas Rule of Appellate Procedure 53.3(a), the

following is a supplement to the list of counsel in the Petitioners’ Identity of

Parties & Counsel:

Counsel for Respondent/Appellant/Plaintiff:

      Sonia T. Ahmed
      Dallas City Attorney’s Office
      1500 Marilla Street, Room 7BN
      Dallas, Texas 75201




                                              i
                                            TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ......................................................... i

INDEX OF AUTHORITIES.................................................................................... iv

EXPLANATION OF RECORD CITATIONS ....................................................... vii

STATEMENT OF THE CASE .............................................................................. viii

STATEMENT OF JURISDICTION..........................................................................x

RESPONSE TO ISSUES PRESENTED ................................................................ xii

                  1.       Petitioners fail to present an error for the court of
                           appeals’ dismissal of the City’s appeal for want of
                           jurisdiction.

                  2.       Petitioners do not present argument and authority
                           that the county court’s order of dismissal for want
                           of prosecution was an appealable judgment.

                  3.       Petitioners’ appeal is moot.

                  4.       The county court’s order is void because it does
                           not have subject-matter jurisdiction to dismiss an
                           eminent domain proceeding for want of
                           prosecution during the administrative phase.

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF ARGUMENT .................................................................................5

ARGUMENT .............................................................................................................6

I.       Petitioners failed to assert that there was an appealable
         judgment in the trial court or that the court of appeals’ dismissal
         for want of jurisdiction of the City’s appeal was error, which is
         necessary for the Court’s jurisdiction and for the Court to
         conduct a review of the merits. ....................................................................... 6


                                                               ii
II.      The appeal is moot. ......................................................................................... 9

III.     The trial court does not have authority to dismiss a
         condemnation proceeding for want of prosecution in the
         administrative phase. .................................................................................... 10

         A.       The county court did not have inherent power to dismiss
                  a statement in condemnation for want of prosecution
                  during the administrative phase...........................................................10

         B.       The Property Code does not provide the county court
                  with jurisdiction to dismiss a statement in condemnation
                  during the administrative phase...........................................................16

         C.       Rule 165a does not apply to the administrative
                  proceeding. ..........................................................................................18

PRAYER ..................................................................................................................19

CERTIFICATE OF SERVICE ................................................................................21

CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ..........................................23

APPENDIX

Order Reinstating Case ...................................................................................... Tab 1

Special Commissioners’ Award ......................................................................... Tab 2

Objections to Special Commissioners’ Award .................................................. Tab 3

Notice of Deposit of Special Commissioners’ Award ....................................... Tab 4

Trial Setting........................................................................................................ Tab 5




                                                                iii
                                    INDEX OF AUTHORITIES

CASES

Amason v. Natural Gas Pipeline Co.,
     682 S.W.2d 240 (Tex. 1984) .....................................................................9, 11

Bevil v. Johnson,
       307 S.W.2d 85 (Tex. 1957) ...........................................................................14

Blasingame v. Krueger,
      800 S.W.2d 391 (Tex. App.—Houston [14th Dist.]
      1990, orig. proceeding) ..................................................................................12

City of Austin v. Travis Cnty. Landfill Co., L.L.C.,
       73 S.W.3d 234 (Tex. 2002) .............................................................................7

City of Carrollton v. OHBA Corp.,
       809 S.W.2d 587 (Tex. App.—Dallas 1991, no writ).............................. 11, 13

City of Dallas v. Highway 205 Farms, Ltd.,
       No. 05-13-00951, 2014 WL 3587403 (Tex. App.—Dallas Jul.
       22, 2014, orig. proceeding [mand. pending], pet filed) ................... ix, x, 4, 10

City of W. Univ. Place v. Martin,
       123 S.W.2d 638 (Tex. 1939) ...........................................................................9

Clanton v. Clark,
      639 S.W.2d 929 (Tex. 1982) .........................................................................14

Del Lago Partners, Inc. v. Smith,
      307 S.W.3d 762 (Tex. 2010) ...........................................................................7

Dickey v. City of Houston,
      501 S.W.2d 293 (Tex. 1973) .................................................................. 10, 11

Fin. Comm’n v. Norwood,
      418 S.W.3d 566 (Tex. 2013) ...........................................................................x

Fortune v. Killebrew,
      23 S.W. 976 (Tex. 1893) ...............................................................................14
                                                            iv
Guitar Holding Co., L.P. v. Hudspeth Cnty.
       Underground Water Conservation Dist. No. 1,
      263 S.W.3d 910 (Tex. 2008) ...........................................................................7

Gulf Energy Pipeline Co. v. Garcia,
      884 S.W.2d 823 (Tex.App.—San Antonio 1994, orig.
      proceeding) ....................................................................................... 11, 12, 13

Hicks Bldg. & Equip. Co., Inc. v. Buice,
      371 S.W.2d 44 (Tex. 1963) .........................................................................7, 9

Hooks v. Fourth Court of Appeals,
     808 S.W.2d 56 (Tex. 1991) (orig. proceeding) .............................................17

In re Hereweareagain, Inc.,
       383 S.W.3d 703 (Tex. App.—Houston [14th Dist.]
       2012, orig. proceeding) ..................................................................................14

In re Jamail,
       156 S.W.3d 104 (Tex. App.—Austin 2004, orig. proceeding) .......................8

In re State,
       325 S.W.3d 848 (Tex. App.—Austin 2010, orig. proceeding) .....................15

In re State,
       65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) .........................15

John v. State,
      826 S.W.2d 138 (Tex. 1992) .................................................................. 10, 18

Nunn v. New,
     226 S.W.2d 116 (Tex. 1950) (orig. proceeding) ...........................................18

Patrick Media Grp., Inc. v. Dallas Area Rapid Transit,
      879 S.W.2d 375 (Tex. App.—Eastland 1994, writ denied) ..........................11

Peak Pipeline Corp. v. Norton,
      629 S.W.2d 185 (Tex. App.—Tyler 1982, no writ) ......................................12

Pearson v. State,
     315 S.W.2d 935 (Tex. 1958) .............................................. x, 8, 10, 11, 14, 16
                                                             v
Ramos v. Richardson,
     228 S.W.3d 671 (Tex. 2007) .......................................................................6, 7

Rose v. State,
      497 S.W.2d 445 (Tex.1973) ..........................................................................18

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
      549 U.S. 422 (2007).........................................................................................x

State v. Giles,
       368 S.W.2d 943 (Tex. 1963) (orig. proceeding) ...........................................10

Tex. Comptroller of Pub. Accounts v. Attorney Gen.,
      354 S.W.3d 336 (Tex. 2010) .......................................................................6, 7

Villarreal v. San Antonio Truck & Equip.,
       994 S.W.2d 628 (Tex. 1999) .........................................................................14

STATUTES

Tex. Gov’t Code § 22.001..........................................................................................x

Tex. Prop. Code § 12.007 ..........................................................................................8

Tex. Prop. Code § 21.014 ................................................................................. 15, 17

Tex. Prop. Code § 21.015 ........................................................................................15

Tex. Prop. Code § 21.018 ........................................................................................18

Tex. Prop. Code § 21.019 ........................................................................................17

RULES

Tex. R. App. P. 53.4..................................................................................................6

Tex. R. App. P. 55.2..................................................................................................6

Tex. R. App. P. 33.1...................................................................................................6

Tex. R. App. P. 53.2...............................................................................................6, 9

                                                               vi
                   EXPLANATION OF RECORD CITATIONS

      For the convenience of the Court, the City will adopt the citations to the

record that the Petitioners used:

      CR [page]: for the Clerks Record.

      SCR [page]: for the Supplemental Clerk’s Record.

      [Volume] RR [page]: for the Reporter’s Record.

      Additionally, the City will cite:

      City’s App’x Tab [number]: for additional documents attached to the City’s

response.

      Pet. Brief at [page]: for the Petition for Review.

      NFIB Br. at [page]:       for the Brief of Friends of the Court, National

Federation of Independent Business and NFIB Small Business Brief.

      AutoNation Br. at [page]: for the Brief of Friends of the Court, AutoNation

and Billingsley.




                                            vii
                         STATEMENT OF THE CASE

Nature of the Case:            This is an eminent domain proceeding. The City
                               of Dallas filed a Statement in Condemnation on
                               August 30, 2011. (CR 6-9.) The county court at
                               law appointed special commissioners. (SCR 4-7.)
                               The special commissioners’ hearing was set for
                               May 8, 2013. (SCR 8-10.)

Course of Proceedings:         On March 7, 2013, Highway 205 Farms, Ltd. and
                               Maurice E. Moore, Jr., filed a motion to dismiss
                               for want of prosecution. (CR 34-8.) The City
                               opposed. (CR 39-43.)

Trial Court:                   Judge Erleigh Wiley, County Court at Law,
                               Kaufman County, Texas (dismissal).       Judge
                               Dennis P. Jones, County Court at Law, Kaufman
                               County, Texas (denial of reinstatement).

Trial Court’s Disposition:     The court held a hearing on the motion to dismiss
                               (1 RR 7-23). On April 17, 2013, the court
                               dismissed the administrative proceeding for want
                               of prosecution before the commissioners could
                               hold their hearing. (CR 80 [Pet. App’x Tab 1].)
                               The City timely filed a verified motion to reinstate,
                               asserting the court did not have jurisdiction to
                               dismiss. (CR 81-91.) On June 21, 2013, the court
                               denied the motion to reinstate. (CR 100 [Pet.
                               App’x Tab 2].)

Parties in Court of Appeals:   Appellant: The City of Dallas.
                               Appellees: Highway 205 Farms, Ltd. and Maurice
                               E. Moore, Jr.

Court of Appeals:              Memorandum opinion by Justice Evans, joined by
                               Justices Fillmore and Lewis.

Court of Appeals’
Disposition:                   On July 22, 2014, the court of appeals held that the
                               trial court did not have jurisdiction to dismiss the
                                           viii
                         eminent domain proceeding for want of
                         prosecution while the administrative phase of the
                         proceeding was pending, making the dismissal a
                         clear abuse of discretion. City of Dallas v.
                         Highway 205 Farms, Ltd., No. 05-13-00951, 2014
                         WL 3587403, at *4 (Tex. App.—Dallas July 22,
                         2014, orig. proceeding [mand. pending],pet. filed)
                         (mem. op.). The court granted the mandamus and
                         ordered the trial court to vacate its dismissal order
                         and reinstate the case. Id. The court dismissed the
                         appeal for want of jurisdiction. Id.

Administrative Action:   On August 4, 2014, the trial court reinstated the
                         case. (City’s App’x Tab 1.) On January 21, 2015,
                         the special commissioners held a hearing and
                         entered an award. (City’s App’x Tab 2.)

County Court Action:     On January 30, 2015, Petitioners filed objections
                         to the award of the special commissioners. (City’s
                         App’x Tab 3.) The commissioners’ award has
                         been deposited with the registry of the court.
                         (City’s App’x Tab 4.) A trial date has been set.
                         (City’s App’x Tab 5.)




                                     ix
                      STATEMENT OF JURISDICTION

      Petitioners claim that this Court has jurisdiction under section 22.001 of the

Texas Government Code. (Pet. at xiii.) They refer only to the subsections of the

code that provide jurisdiction for construction of a statute or matters of law of

importance to the state.    (Id. [citing Tex. Gov’t Code § 22.001(a)(3), (6)]).

Petitioners have ignored the prerequisite to those subsections that provides

jurisdiction only in cases that have been brought to the court of appeals from

appealable judgments of the trial courts.” Tex. Gov’t Code § 22.001.

      Here, the court of appeals held that there was not an appealable judgment

and dismissed the appeal for want of jurisdiction. Highway 205 Farms, Ltd., 2014

WL 3587403, at *2-4. According to this Court’s holdings, appellate courts do not

have appellate jurisdiction of a condemnation proceeding until a timely objection is

made to a commissioners’ award. Pearson v. State, 315 S.W.2d 935, 939 (Tex.

1958). “[T]he jurisdiction of the appellate court as to the merits of a case extends

no further than that of the court from which the appeal is taken.” Id. at 938.

“‘Without jurisdiction the court cannot proceed at all in any cause; it may not

assume jurisdiction for the purpose of deciding the merits of the case.’” Fin.

Comm’n v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem Int’l

Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)).



                                            x
      Because the dismissal order is not an appealable judgment, the appellate

court was correct that there was no judgment in the trial court, which deprives this

Court of jurisdiction to consider the merits of the appeal. The Court should deny

the petition for review for want of jurisdiction.




                                              xi
                     RESPONSE TO ISSUES PRESENTED

1.    Petitioners fail to present an error for the court of appeals’ dismissal of the

City’s appeal for want of jurisdiction.

2.    Petitioners do not present argument and authority that the county court’s

order of dismissal for want of prosecution was an appealable judgment.

3.    Petitioners’ appeal is moot.

4.    The county court’s order is void because it does not have subject-matter

jurisdiction to dismiss an eminent domain proceeding for want of prosecution

during the administrative phase.




                                            xii
                                        No. 14-0917


                          IN THE SUPREME COURT OF TEXAS


              HIGHWAY 205 FARMS, LTD. and MAURICE E. MOORE, JR.,
                                          Petitioners,
                                     v.

                                    CITY OF DALLAS,
                                                Respondent.


                       RESPONSE TO PETITION FOR REVIEW


TO THE HONORABLE SUPREME COURT OF TEXAS:

         The Fifth District Court of Appeals at Dallas dismissed the City of Dallas’s

appeal for want of jurisdiction. There is no judgment in an eminent domain

lawsuit until a judgment is entered after objections to a special commissioners’

award are filed. The Petitioners assert only that the county court had authority to

dismiss for want of prosecution during the administrative phase. (Pet. at 4.) The

petition does not address whether there was a judgment to appeal. The failure to

address whether the trial court order was appealable is reason enough to deny this

petition for review, but the controversy is also moot and the petition fails to present

error.




                                              1
                            STATEMENT OF FACTS

      The court of appeals correctly recited the facts of this case.

      On August 30, 2011, the City filed a Statement in Condemnation seeking fee

simple title to property for the Lake Tawakoni 144-inch Raw Water Transmission

Pipeline Project in Kaufman County. (CR 6-9.) The City sought portions of six

parcels of property for which Highway 205 Farm, Ltd. is the owner of record and

Maurice E. Moore, Jr. has a mineral interest. (CR 6, 10-28.) This proceeding was

filed after the governing body of the City approved Resolution No. 081245, which

authorized and required the condemnation of that property. (CR 7.) The City had

previously made an offer to purchase the land before commencing this proceeding,

but the parties were unable to agree upon the terms of a voluntary conveyance.

(CR 8.) As a result, the City provided the owners with the landowner’s bill of

rights statement and filed suit in Kaufman County in an exercise of its power of

eminent domain under the procedures required by chapter 21 of the Texas Property

Code. (CR 8.) Accordingly, the county court appointed special commissioners.

(CR 39-50.) The county court signed an Order Appointing Special Commissioners

on August 31, 2011.      (SCR 4-5.)      The court subsequently signed an Order

Removing a Special Commissioner, Lee Schaffer, and Appointing a Replacement,

Don Burt, on October 24, 2011. (SCR 6-7.) The commissioners’ oaths were filed

with the court on November 18, 2011. (CR 29-31.)

                                             2
      On March 7, 2013, Highway 205 Farm, Ltd. and Maurice E. Moore, Jr.

(hereinafter “Landowners” or “Petitioners”) filed a motion to dismiss for want of

prosecution. (CR 34-43.) In their motion to dismiss, Landowners argued that the

City failed to prosecute “pursuant to Texas Rule of Civil Procedure 165(a) and the

Court’s inherent authority to control its docket.” (CR 34.) The motion to dismiss

was predicated on an alleged 18 months of inactivity. (1 RR 8.) The City filed a

response to the motion to dismiss asserting that the trial court did not have

jurisdiction to dismiss the condemnation proceeding because it was an

administrative proceeding. (CR 39-43.) Landowners filed a reply. (CR 48-54.)

      On March 11, 2013, four days after the motion to dismiss was filed, the

Special Commissioners issued a written order that scheduled the special

commissioners’ hearing to take place on May 8, 2013. (SCR 8-10.) On March 21,

2013, the trial court set a hearing on Landowners’ motion to dismiss for April 17,

2013. (CR 39-40.) On March 27, 2013, the City served Highway 205 Farms, Ltd.

with a notice of hearing ordered by the special commissioners. (CR 39-40.) The

notice said that the Special Commissioners would hear the parties on May 8, 2013.

(CR 44.)

      The trial court held a hearing on the motion to dismiss. (1 RR 7-23.) On

April 17, 2013, the trial court signed an Order Granting Defendants’ Motion to

Dismiss for Want of Prosecution. (CR 80.)

                                            3
      On May 9, 2013, the City filed a verified motion to reinstate. (CR 81-91).

The City again argued that the court did not have jurisdiction to dismiss the

Statement in Condemnation. Landowners filed a response. (CR 92-99.)

      On June 21, 2013, the trial court heard the motion and signed an Order

Denying the City’s Motion to Reinstate. (CR 100; 2 RR 7-26.) Because the trial

court did not have jurisdiction to dismiss the administrative proceeding, the City

submitted a petition for writ of mandamus complaining of the dismissal for want of

prosecution and the denial of the City’s verified motion to reinstate. City of Dallas

v. Highway 205 Farms, Ltd., No 05-13-00951, 2014 WL 3587403, at *1 (Tex.

App.—Dallas July 22, 2014, pet filed) (mem. op.). The City also brought an

appeal of the dismissal order. The appellate court consolidated the appeal and the

mandamus. Id.

      On July 22, 2014, the court of appeals held that the trial court did not have

jurisdiction to dismiss for want of prosecution the eminent domain proceeding

during the administrative phase of the case, making the dismissal a clear abuse of

discretion. Id. at *4. The court granted the mandamus and ordered the trial court

to vacate its dismissal order and reinstate the case. Id. The court dismissed the

appeal for want of jurisdiction. Id.

      On August 4, 2014, the county court reinstated the case. (City’s App’x Tab

1.) On January 21, 2015 the special commissioners held a hearing and entered an

                                             4
award. (City’s App’x Tab 2.) On January 30, 2015, Landowners filed objections

to the award of the special commissioners.          (City’s App’x Tab 3.)      The

commissioners’ award has been deposited in the registry of the trial court. (City’s

App’x Tab 4.) A trial date has been set. (City’s App’x Tab 5.)

      On January 12, 2015, Landowners filed this petition for review in an attempt

to appeal from the court of appeals’ dismissal of the City’s appeal, a dismissal

concluding that the trial court’s order was void and not appealable.

                         SUMMARY OF ARGUMENT

      Petitioners have not sought review of an appealable judgment. The court of

appeals dismissed the City’s appeal for want of jurisdiction because the dismissal

for want of prosecution in the county court was entered in the administrative phase

before the proceeding became a lawsuit. Without an appealable judgment, the

Court does not have jurisdiction to grant the petition on the merits. Because

Petitioners have not brought an issue or argument about the appealability of the

court of appeals’ judgment, Petitioners have waived any basis for the reversal of

the judgment. Moreover, a commissioners’ hearing has been held in this case,

objections to the commissioners’ award have been filed by the Petitioners, and the

case has been set for trial, eliminating the underlying controversy about the

Petitioners’ motion to dismiss the administrative proceeding.           Thus, the

controversy has become moot.

                                             5
      Finally, if the merits are reached, Texas jurisprudence provides that the

county court cannot interfere with the special commissioners’ hearing.              The

dismissal for want of jurisdiction was void.

      Accordingly, the Court should deny the petition for review.

                                   ARGUMENT

I.    Petitioners failed to assert that there was an appealable judgment in the
      trial court or that the court of appeals’ dismissal for want of jurisdiction
      of the City’s appeal was error, which is necessary for the Court’s
      jurisdiction and for the Court to conduct a review of the merits.

      The court of appeals’ disposition of the City’s appeal did not reach the

merits of the trial court’s dismissal. The court dismissed the appeal for want of

jurisdiction. Petitioners have failed to present an issue or argument that the court

of appeals’ entry of the dismissal of the City’s appeal for want of jurisdiction is

erroneous. (Pet. at xvii, 6-21.) Petitioners are required to discuss that issue before

the merits of the trial court’s dismissal for want of prosecution can be reached.

      When filing an appeal, the burden lies on the petitioner to raise and discuss

any issues the appeal is based on. Ramos v. Richardson, 228 S.W.3d 671, 673

(Tex. 2007) (per curiam). The rules of procedure require that a party present the

issues to be decided by this Court in the party’s petition and brief on the merits.

Tex. Comptroller of Pub. Accounts v. Attorney Gen., 354 S.W.3d 336, 352 (Tex.

2010) (citing Tex. R. App. P. 33.1, 53.2(f), 53.4, 55.2(f)). “[I]ssues not presented

in the petition for review and brief on the merits are waived.” Tex. Comptroller of
                                             6
Pub. Accounts, 354 S.W.3d at 352 (quoting Guitar Holding Co., L.P. v. Hudspeth

Cnty. Underground Water Conservation Dist. No. 1, 263 S.W.3d 910, 918 (Tex.

2008)); Ramos, 228 S.W.3d at 673 (refusing to address an argument raised in

petitioners’ merits brief because petitioners failed to make it in their petition for

review); City of Austin v. Travis Cnty. Landfill Co., L.L.C., 73 S.W.3d 234, 241 n.

2 (Tex. 2002) (precluding consideration of an argument raised below because the

respondent disclaimed the argument before the Supreme Court). If a petitioner

does not present the error at all, the Court does not have a basis for reversing the

judgment of the court of appeals. Hicks Bldg. & Equip. Co., Inc. v. Buice, 371

S.W.2d 44, 45 (Tex. 1963) (the court entered a judgment of refusal, no reversible

error, because the petitioners failed to bring forth and discuss the error of the lower

court). In fact, if the petitioners’ brief lacks any discussion of the error, it is

waived. Ramos, 228 S.W.3d at 673. The Court does not “stretch for a reason to

reverse that was not raised.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,

776 (Tex. 2010).

      Petitioners’ issue only asserts the authority of the trial court to dismiss a

condemnation proceeding in the administrative phase. (Pet. at xvii.) Petitioners do

not argue that a dismissal for want of prosecution in the trial court is an appealable

judgment. They cannot, because as discussed in Section III below, an appellate

court does not have appellate jurisdiction of a condemnation proceeding until a

                                              7
timely objection is made to a commissioners’ award. Pearson, 315 S.W.2d at 939.

Here, because the dismissal order was entered before objections were filed, the

dismissal was not an appealable judgment. See id. at 939 (holding that the trial

court was statutorily authorized to enter the judgment in the absence of objections

and such judgment was not appealable because objections were not filed and so it

was not considered a judgment in a civil case).

      Petitioners do not argue that the dismissal for want of prosecution of the

administrative proceeding is an appealable judgment. Instead, they argue that the

City’s filing of a lis pendens with the Statement in Condemnation makes the

condemnation proceeding in the administrative phase a lawsuit. (Pet. at 12-14.)

The Texas Property Code explicitly authorizes the City to file a lis pendens in the

deed records when it files a statement in condemnation in an eminent domain

proceeding. Tex. Prop. Code § 12.007(a) (“After the plaintiff’s statement in an

eminent domain proceeding is filed . . . , a party to the action . . . may file for

record . . . a notice that the action is pending.”). Whether a matter is a lawsuit or

an administrative proceeding is not controlled by the lis pendens, which is merely

notice that the eminent domain matter is pending. Instead, a court looks at the

actual proceeding to determine whether a lis pendens is allowed under the statute.

In re Jamail, 156 S.W.3d 104, 107 (Tex. App.—Austin 2004, orig. proceeding).

Here, the nature of the proceeding is established in chapter 21 of the Property

                                             8
Code. The proceeding when filed is administrative in nature. Amason v. Natural

Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984). Thus, there is no judgment to

appeal. The Court has no appellate jurisdiction.

      Further, because Petitioners have failed to present an issue or argue whether

there is an appealable judgment, they have waived any error in this case. See Tex.

R. App. P. 53.2(i). Accordingly, the Court does not have a basis to reverse the

court of appeals. See Hicks Bldg. & Equip. Co., Inc., 371 S.W.2d at 45. The Court

should deny the petition for review.

II.   The appeal is moot.

      Appellate courts do not decide cases where no actual controversy exists

between the parties at the time of the hearing. City of W. Univ. Place v. Martin,

123 S.W.2d 638, 639 (Tex. 1939). Petitioners’ complaint was that the eminent

domain proceeding had been pending too long in the administrative phase and

should remain dismissed. On August 4, 2014, the trial court reinstated the case.

(City’s App’x Tab 1.) On January 21, 2015, the special commissioners held a

hearing and entered an award. (City’s App’x Tab 2.) On January 30, 2015,

Petitioners filed objections to the award of the special commissioners. (City’s

App’x Tab 3.) The case is now a lawsuit. The City has deposited the award with

the registry of the court, entitling it to possession. (City’s App’x Tab 4.) The case

has been set for trial. (City’s App’x Tab 5.) The controversy about dismissing the

                                             9
proceeding in the administrative phase is moot. For that reason, the Court should

deny the petition for review.

III.   The trial court does not have authority to dismiss a condemnation
       proceeding for want of prosecution in the administrative phase.

       If the Court considers the ability of the trial court to dismiss for want of

prosecution in the administrative phase, there is no statute or rule that provides

subject-matter jurisdiction to a county court or gives a county court the capacity to

act as a judicial tribunal until after the commissioners’ award has been filed and a

party objects. Petitioners and Amici cite none. The Court should deny the petition

for review for the following reasons.

       A.    The county court did not have inherent power to dismiss a
             statement in condemnation for want of prosecution during the
             administrative phase.

       The court of appeals correctly held that the county court did not have

inherent authority to dismiss for want of prosecution the proceeding in the

administrative phase, because it was not a civil proceeding at the time of the

dismissal. Highway 205 Farms, Ltd., 2014 WL 3587403, at *3 (citing Dickey v.

City of Houston, 501 S.W.2d 293, 294 (Tex. 1973)). In fact, an eminent domain

proceeding is an administrative proceeding until a party files an objection (appeal)

to the award of the special commissioners. John v. State, 826 S.W.2d 138, 141 n.5

(Tex. 1992); State v. Giles, 368 S.W.2d 943, 947 (Tex. 1963) (orig. proceeding);

Pearson, 315 S.W.2d at 937; Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 823
                                        10
(Tex. App.—San Antonio 1994, orig. proceeding); Patrick Media Grp., Inc. v.

Dallas Area Rapid Transit, 879 S.W.2d 375, 376 (Tex. App.—Eastland 1994, writ

denied). Without a timely-filed objection, an eminent domain proceeding never

becomes a civil case. Dickey, 501 S.W.2d at 294. Only after the commissioners

have been appointed and sworn and an award has been filed, and only by filing

objections to the award, may the condemnee invoke the legal jurisdiction of the

trial court. City of Carrollton v. OHBA Corp., 809 S.W.2d 587, 589 (Tex. App.—

Dallas 1991, no writ). Thus, under Texas law, the first phase of an eminent

domain proceeding is an administrative proceeding, not a judicial case. Id. (citing

Amason, 682 S.W.2d at 241). The judge acts purely as an administrative agent.

Id.; see Gulf Energy Pipeline Co., 884 S.W.2d at 822 (“The statute expressly gives

the court administrative jurisdiction to appoint the commissioners, receive their

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

A condemnation proceeding is not within the general jurisdiction of the county

court. Pearson, 315 S.W.2d at 937. “[T]he filing of timely objections confers

jurisdiction upon the county court to hear and determine the issues in the exercise

of its judicial powers.” Id. at 937.

      Petitioners and Amici agree that an eminent domain proceeding consists of

two distinct parts. They agree that the county court dismissed the condemnation

on Petitioners’ motion during the administrative phase. (Pet. at 6; NFIB Br. at 15-

                                           11
16; AutoNation Br. at 10.) Petitioners claim that the county court at law has

inherent authority to enter a dismissal for want of prosecution because a court has

inherent authority to aid in the exercise of its jurisdiction. (Pet. at 14-15, 17-19.)

However, the case law is unambiguous. A county court at law has no authority to

interfere with the administrative proceedings of the special commissioners; instead,

the trial court’s jurisdiction, except for the appointment of the special

commissioners, begins only after objections are filed to the special commissioners’

decision after the special commissioners’ hearing. Peak Pipeline Corp. v. Norton,

629 S.W.2d 185, 186 (Tex. App.—Tyler 1982, no writ). And a court has no

authority during the administrative proceeding to grant a continuance, set the

hearing dates, or dismiss the proceedings for want of prosecution on a motion of

the property owner. See Gulf Energy Pipeline Co., 884 S.W.2d at 823 (stating that

the Property Code does not give the trial court power to oversee the exercise of the

commissioners’ powers during the administrative proceeding but does delegate to

the commissioners the authority and limited discretion to administer the time and

place of the commissioners’ hearing).

      In the administrative phase, the county court cannot exercise judicial

powers. Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex. App.—Houston [14th

Dist.] 1990, orig. proceeding) (“As distinguished from the county judge in his

administrative capacity, there is nothing which the county court can hear and

                                             12
determine by the exercise of its judicial powers in a special commissioners

proceeding.”).   Moreover, the county court does not have jurisdiction to set

deadlines within which a special commissioners’ hearing must be held. In Gulf

Energy Pipeline Co., the court considered the propriety of the district court’s

resetting the special commissioners’ hearing of several related eminent domain

proceedings to a later date and granting to the landowners a 60-day continuance of

the special commissioners’ hearing. Gulf Energy Pipeline Co., 884 S.W.2d at 822.

The conclusion was that without an objection to the commissioners’ award, the

proceeding never becomes a civil case. Id. at 822-23. The orders resetting the

commissioners’ hearing and granting the continuance were outside the scope of the

trial court’s jurisdiction during the administrative proceeding. The trial court had

no authority to grant the continuance or set the hearing dates, and entering these

orders was a clear abuse of discretion. Id. at 823. A trial court does not have

jurisdiction to abate a condemnation proceeding after the commissioners have been

appointed and sworn. OHBA Corp., 809 S.W.2d at 589. The legal jurisdiction

could not even be invoked by the condemnee requesting declaratory and injunctive

relief to abate or seek declaratory relief in the administrative phase. Id.

      There is no dispute that this proceeding was in the administrative stage when

it was dismissed for want of prosecution. The commissioners’ hearing was set but

had not been held. Petitioners and Amici assert that the county court has inherent

                                             13
power to control his docket by dismissing for want of prosecution. (Pet. at 17-19;

NFIB Br. at 13-14; CR, at 35, 93-4.) However, the right to dismiss for want of

prosecution is the right to dismiss a lawsuit, not an administrative proceeding. See

Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957) (describing judicial discretion in

a civil lawsuit, noting no statutory authority). All the cases Petitioners cite to the

Court involve a court’s inherent powers in a lawsuit, not a condemnation

proceeding in the administrative phase. (See Pet. at 19-20 [citing Villarreal v. San

Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (dismissing negligence

suit)]; NFIB Br. at 13 [citing Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)

(dismissing will contest); In re Hereweareagain, Inc., 383 S.W.3d 703, 705 (Tex.

App.—Houston [14th Dist.] 2012, orig. proceeding) (reversing sanctions)].)

      The Court has said that “a statutory proceeding in which the controversy is

not submitted to and determined by the court as a judicial tribunal ‘is neither a suit

at law nor a case in equity’ even though the same culminates in a judgment.”

Pearson, 315 S.W.2d at 937 (quoting Fortune v. Killebrew, 23 S.W. 976, 978

(Tex. 1893)). Thus, at the administrative stage the county court cannot enter a

judgment or exercise judicial powers. See Pearson, 315 S.W.2d at 937 (holding

that when there is no objection to an award, the court’s order directing that the

award be recorded and making the same the judgment of the court does not

constitute a judgment in a civil case). The county court does not gain jurisdiction

                                             14
as a court until the objections are filed to the commissioners’ award. In re State,

325 S.W.3d 848, 851 (Tex. App.—Austin 2010, orig. proceeding). Thus, the

county court had no authority to decide the proper time for or timing of a

commissioners’ hearing.

      Petitioners and Amici claim that the trial court must have authority to

dismiss administrative proceedings for want of prosecution or statements in

condemnation could remain pending indefinitely and the court could do nothing.

(Pet. at 6; NFIB Br. at 23; AutoNation Br. at 8, 14-16.) Amici complain that a

court should be able to compel the commissioners to hold a hearing. (NFIB Br. at

25.) The issue here is not about compelling the commissioners to hold a hearing—

the special commissioners had scheduled a hearing within weeks of the

dismissal—the issue here is about preventing a hearing. The commissioners have

the duty to schedule the commissioners’ hearing. Tex. Prop. Code § 21.015(a).

Moreover, the special commissioners themselves 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 (c); In re State, 65

S.W.3d 383, 386 (Tex. App.—Tyler 2002, orig. proceeding). And because the

special commissioners schedule the hearing, a property owner can request that the

special commissioners set the hearing just as the condemnor can. The solution is

to request a setting—not the dismissal of the condemnation proceeding.

                                           15
      Accordingly, the county court does not have any inherent authority to

dismiss an administrative proceeding. The county court’s jurisdiction to control its

docket begins when the administrative proceeding is complete. The county court

here did not have the jurisdiction to dismiss the administrative proceeding, because

the proceeding was not yet a civil case. Thus, the order is void.

      B.     The Property Code does not provide the county court with
             jurisdiction to dismiss a statement in condemnation during the
             administrative phase.

      A condemnation proceeding is not within the general jurisdiction of the

county court. Pearson, 315 S.W.2d at 937. “An action to condemn is a special

statutory proceeding, wholly administrative in nature, at least until the

commissioners’ decision is filed with the county judge.” Id. at 936-37. “[T]he

filing of timely objections confers jurisdiction upon the county court to hear and

determine the issues in the exercise of its judicial powers.” Id. at 937. The power

of the county court as a judicial tribunal in eminent domain proceedings is thus

limited to that which has been conferred upon it by statute. Id. at 937-38. The

statute does not provide for dismissal on a motion of the property owner during the

administrative phase. Petitioners and Amici cite section 21.019 of the Property

Code for authority that a county court can dismiss on motion of the landowner in

the administrative phase.    (Pet. at 15-17; NFIB Br. at 19-20.)       That section

provides that the condemning authority can move to dismiss and the property

                                            16
owner can seek dismissal in the judicial phase if the condemning authority does

not have the right to take. Tex. Prop. Code § 21.019. The statute entitles a

condemnor to dismiss a condemnation proceeding prior to taking possession of the

property. Id. § 21.019(a); Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60

(Tex. 1991) (orig. proceeding). The condemnor can have monetary obligations for

dismissing after the special commissioners have made an award. Tex. Prop. Code

§ 21.019(a), (b). The statute does not provide the property owner the right to seek

dismissal in the administrative phase. The plain language of section 21.019(c)

shows that it only applies during the judicial, not the administrative, phase when it

refers to “[a] court that hears and grants a motion to dismiss a condemnation

proceeding made by a property owner seeking a judicial denial of the right to

condemn or that otherwise renders a judgment denying the right to condemn.” Id.

§ 21.019(c). The right to condemn is not an issue in the administrative phase. The

special commissioners’ only duty is to assess the damages of the owner to the

property being condemned. Id. § 21.014. Petitioners sought to dismiss for want of

prosecution. The statute does not provide for a dismissal on that basis.

      Here, the trial court acted during the administrative phase and hindered the

commissioners from holding a hearing. Accordingly, the county court had no

jurisdiction to dismiss the case for want of prosecution.



                                             17
      C.      Rule 165a does not apply to the administrative proceeding.

      Petitioners and Amici assert the county court had authority to dismiss

pursuant to rule 165a of the Texas Rules of Civil Procedure. The use of this rule

assumes that there is a civil proceeding for the rule to apply to—which there is

not—when the pre-objection procedures are set by statute. See John, 826 S.W.2d

(distinguishing default procedures under rule 239a and section 21.049 of the Texas

Property Code). The Court, in promulgating rules of civil procedure, was not

attempting to prescribe rules to govern any procedure except judicial proceedings.

Nunn v. New, 226 S.W.2d 116, 117 (Tex. 1950) (orig. proceeding). It is when the

objections are filed that the court must “try the case in the same manner as other

civil cases.” Tex. Prop. Code § 21.018(b). At that time, an eminent domain

proceeding, like other civil cases, is subject to the rules of civil procedure. Rose v.

State, 497 S.W.2d 445, 446 (Tex. 1973) The existence of these rules does not

change the nature of the eminent domain proceeding before objections are filed. It

is an administrative proceeding and the rules of civil procedure do not apply.

Accordingly, the county court did not have jurisdiction to dismiss for want of

prosecution under the rules. Thus, the Court should deny the Petitioners’ petition

for review.




                                             18
                                    PRAYER

      Petitioners have not brought a petition for review of an appealable judgment.

The court of appeals dismissed the appeal for want of jurisdiction and the

Petitioners do not complain about the dismissal.       Further, the condemnation

proceeding was reinstated, and the commissioners held a hearing and entered an

award. The Petitioners objected. The award has been deposited. The case has

been set for trial. Because of the posture of the eminent domain proceeding, the

Court should deny this petition as moot or because Petitioners have waived any

complaint about the court of appeals judgment.         Finally, if the merits are

considered, the county court could not exercise its judicial powers in the

administrative phase of an eminent domain proceeding, so the dismissal for want

of prosecution was void. Accordingly, this Court should deny this petition for

review.




                                           19
Respectfully submitted,

WARREN M. S. ERNST
Dallas City Attorney

/s/ Barbara Rosenberg
Barbara Rosenberg
Texas Bar No. 17267700
Christopher D. Bowers
Texas Bar No. 02731300
James B. Pinson
Texas Bar No. 16017700
Sonia T. Ahmed
Texas Bar No. 24082605
Assistant City Attorneys

City Attorney’s Office
1500 Marilla Street, Room 7D North
Dallas, Texas 75201
Telephone: 214-670-3519
Telecopier: 214-670-0622
barbara.rosenberg@dallascityhall.com
chris.bowers@dallascityhall.com
james.pinson@dallascityhall.com
sonia.ahmed@dallascityhall.com
ATTORNEYS FOR CITY OF DALLAS




     20
                        CERTIFICATE OF SERVICE

      I hereby certify that on April 13, 2015, a copy of the foregoing document

was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure

(1) through an electronic filing manager (EFM) upon each person listed below if

the email address is on file with the EFM or (2) by email (if the address is

available) or first-class mail upon each person below who does not have an email

on file with the EFM:

      Eddie Vassallo
      Charles A. Salazar
      Hayley D. Ailshie
      Vassallo & Salazar, P.C.
      3710 Rawlins Street, Suite 1200
      Dallas, Texas 75219

      Kimberly S. Keller
      Keller Stolarczyk PLLC
      234 W. Bandera Road, #120
      Boerne, Texas 78006
      Attorneys for Relators, Highway 205 Farms, LTD., and Maurice E. Moore,
      Jr.

      Stephen F. Malouf
      Jeremy C. Martin
      Jonathan Nockels
      Malouf & Markels LLP
      3811 Turtle Creek Blvd., Suite 800
      Dallas, Texas 75219
      Attorneys for Amici, AutoNation, Inc. & Billingsley Company




                                         21
Leif A. Olson
The Olson Firm PLLC
4830 Wilson Road, Suite 300
Humble, Texas 77396
Attorney for Amici National Federation of Independent Business and NFIB
Small Business Legal Center


                                   /s/Barbara Rosenberg
                                   Attorney for the City of Dallas




                                  22
          CERTIFICATE OF COMPLIANCE WITH RULE 9.4

              Certificate of Compliance with Type-Volume Limitation,
             Typeface requirements and Type Style Requirements


1.   This brief complies with the type volume limitation of Tex. R. App. P.
     9.4(i)(2) because:
     ⁯    this brief contains 4,482 words, excluding the parts of the brief
          exempted by Tex. R. App. P. 9.4(i)(1).

2.   This brief complies with the typeface requirements and the type style
     requirements of Tex. R. App. P. 9.4(e) because:
     ⁯    this brief has been prepared in a proportionally spaced typeface using
          Microsoft Office Word 2010 in 14-point Times New Roman.


                                         /s/Barbara Rosenberg
                                         Attorney for City of Dallas

     Dated: April 13, 2015




                                        23
                                                   APPENDIX

Order Reinstating Case ...................................................................................... Tab 1

Special Commissioners’ Award ......................................................................... Tab 2

Objections to Special Commissioners’ Award .................................................. Tab 3

Notice of Deposit of Special Commissioners’ Award ....................................... Tab 4

Trial Setting........................................................................................................ Tab 5
TAB 1
TAB 2
TAB 3
                                                                                Filed: 3/25/2015 8:09:19 AM
                                                                                Rhonda Hughey,
                                                                                District Clerk
                                                                                Kaufman County, Texas
                                                                                Maria Olivares

                             No.84262CC
CITY OF DALLAS,                   §                          IN COUNTY COURT
                                  §
vs.                               §
                                  §
HIGHWAY 205 FARMS, LTD.,          §
THE DOW CHEMICAL COMPANY          §                          AT LAW
KAUFMAN COUNTY, TERRELL           §
INDEPENDENT SCHOOL DISTRICT,      §
and TRINITY VALLEY COMMUNITY      §
COLLEGE DISTRICT                  §                          KAUFMAN COUNTY, TEXAS

 NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT
            OF POSSESSION, AND INVESTMENT INSTRUCTIONS

       NOW COMES the City of Dallas (hereafter, "City"), a municipal corporation situated in

Dallas County, Texas, Petitioner in the above entitled and numbered condemnation proceeding,

and respectfully shows the Court:

1.     The written Award of Special Commissioners has been filed with the Judge in these

proceedings, whereby the amount of damages awarded against Petitioner by the special

commissioners is THREE HUNDRED FIFTY-SEVEN THOUSAND TWO HUNDRED

SIXTY-THREE DOLLARS AND N0/100 ($357,263.00) (hereafter, the "Award").

2.     The City desires to enter upon and take possession of the property sought to be taken in

these proceedings pending litigation and, in order that it may do so, the City has deposited said

amount into the Registry of the Court by delivery to the District Clerk the following described

check, to wit: numbered 967718, dated March 24, 2015, payable to "Kaufman County" subject to

the order of the Defendants, in the amount of the Award.

3.     By reason of said deposit, and pursuant to Texas Property Code §21.021(a)(2) and

§21.021 (c), the City is now entitled to enter upon and take possession of said property.

4.     In accordance with Texas Property Code section 21.023, notice is hereby given that the

owner or the owner's heirs, successors, or assigns may be entitled to repurchase the property

NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION
FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS                                                     Page 1 of5

                                             TAB 4
under the provisions of Subchapter E of Chapter 21 of the Texas Property Code (a copy of which

is attached hereto as Exhibit A) or request from the City certain information relating to the use of

the property and any actual progress made toward that use, and that the repurchase price is the

price paid to the owner by the entity at the time the entity acquired the property through eminent

domain.

5.     The City requests that the deposit of money in the Court's registry be invested and

the interest distributed according to law.

6.     Defendants are entitled under existing law to withdraw part or all of the amount deposited

at any time; To the extent consistent therewith, the investment should be for a period of at least 6

months.

7.     The City's federal tax identification number is: XX-XXXXXXX.


       WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honorable Court order

the clerk to issue a writ of possession of the property condemned herein to the City of Dallas,

together with such other orders which may appear necessary and proper for the enforcement of

the City's right to enter upon and take possession of said property; and that the Court order the

clerk to invest the deposited funds in an interest bearing account in accordance with Section

117.053(c) ofthe Texas Local Government Code.


                                                     Respectfully submitted,

                                                     OFFICE OF THE CITY ATTORNEY
                                                     CITY OF DALLAS, TEXAS


                                                     WARREN M. S. ERNST
                                                     City Attorney



NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION
FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS                                                    Page 2 of5
                                        By    fu- ~··
                                             CHRISTOPHER C. GUNTER
                                             Senior Assistant City Attorney
                                             State Bar of Texas No. 24025750
                                             CHRISTOPHER J. CASO
                                             Senior Assistant City Attorney
                                             State Bar of Texas No. 03969230
                                             Dallas City Hall
                                             1500 Marilla Street, 7BN
                                             Dallas, Texas 75201
                                             (214) 670-3519- Voice
                                             (214) 670-0622- Fax
                                             Christopher. gunter@dallasci tyhall. corn

                                             ATTORNEY FOR PETITIONER
                                             CITY OF DALLAS


                                CERTIFICATE OF SERVICE

        I do hereby certify that a true and correct copy of the foregoing has been served upon all
parties in compliance with Rule 2la of the Texas Rules of Civil Procedure on this the 25 1h day of
March, 2015.




Highway 205 Farms, LTD.,
and Maurice E. Moore, Jr
 Ms. Hayley D. Ailshie- viaE-Service
 Mr. Eddie Vassallo - via E-Service

Kaufman County
 Jeffrey Brown- viaE-Service




NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION
FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS                                                  Page 3 of5
                                                 EXHIBIT A

                      TEXAS PROPERTY CODE, CHAPTER 21
     SUBCHAPTER E. REPURCHASE OF REAL PROPERTY FROM CONDEMNING ENTITY

Sec. 21.101. RIGHT OF REPURCHASE
     (a) A person from whom a real property interest is acquired by an entity through eminent domain for a
public use, or that person's heirs, successors, or assigns, is entitled to repurchase the property as provided by
this subchapter if:
          ( 1) the public use for which the property was acquired through eminent domain is canceled before the
property is used for that public use;
          (2) no actual progress is made toward the public use for which the property was acquired between the
date of acquisition and the 1Oth anniversary of that date; or
          (3) the property becomes unnecessary for the public use for which the property was acquired, or a
substantially similar public use, before the 1Oth anniversary of the date of acquisition.
               (b) In this section, "actual progress" means the completion of two or more of the following
actions:
          (I) the performance of a significant amount of labor to develop the property or other property
acquired for the same public use project for which the property owner's property was acquired;
          (2) the provision of a significant amount of materials to develop the property or other property
acquired for the same public use project for which the property owner's property was acquired;
          (3) the hiring of and performance of a significant amount of work by an architect, engineer, or
surveyor to prepare a plan or plat that includes the property or other property acquired for the same public use
project for which the property owner's property was acquired;
          (4) application for state or federal funds to develop the property or other property acquired for the
same public use project for which the property owner's property was acquired;
          (5) application for a state or federal permit to develop the property or other property acquired for the
same public use project for which the property owner's property was acquired;
          (6) the acquisition of a tract or parcel of real property adjacent to the property for the same public use
project for which the owner's property was acquired; or
          (7) for a governmental entity, the adoption by a majority of the entity's governing body at a public
hearing of a development plan for a public use project that indicates that the entity will not complete more than
one action described by Subdivisions (1)-(6) before the lOth anniversary of the date of acquisition of the
property.
               (c) A district court may determine all issues in any suit regarding the repurchase of a real property
 interest acquired through eminent domain by the former property owner or the owner's heirs, successors, or
 ass1gns.

Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER REQUIRED.
   Not later than the I 80th day after the date an entity that acquired a real property interest through eminent
domain determines that the former property owner is entitled to repurchase the property under Section 21.101,
the entity shall send by certified mail, return receipt requested, to the property owner or the owner's heirs,
successors, or assigns a notice containing:
         ( 1) an identification, which is not required to be a legal description, of the property that was acquired;
         (2) an identification of the public use for which the property had been acquired and a statement that:


NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION
FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS                                                                    Page 2 of5
                 (A) the public use was canceled before the property was used for the public use;
                 (B) no actual progress was made toward the public use; or
                 (C) the property became unnecessary for the public use, or a substantially similar public use,
before the 1Oth anniversary of the date of acquisition; and
         (3) a description of the person's right under this subchapter to repurchase the property.

Sec. 21.1021. REQUESTS FOR INFORMATION REGARDING CONDEMNED PROPERTY.
     (a) On or after the lOth anniversary of the date on which real property was acquired by an entity through
eminent domain, a property owner or the owner's heirs, successors, or assigns may request that the
condemning entity make a determination and provide a statement and other relevant information regarding:
          ( 1) whether the public use for which the property was acquired was canceled before the property was
used for the public use;
          (2) whether any actual progress was made toward the public use between the date of acquisition and
the 1Oth anniversary of that date, including an itemized description of the progress made, if applicable; and
          (3) whether the property became unnecessary for the public use, or a substantially similar public use,
before the 1Oth anniversary of the date of acquisition.
     (b) A request under this section must contain sufficient detail to allow the entity to identify the specific
tract of land in relation to which the information is sought.
     (c) Not later than the 90th day following the date of receipt of the request for information, the entity shall
send a written response by certified mail, return receipt requested, to the requestor.

Sec. 21.1022. LIMITATIONS PERIOD FOR REPURCHASE RIGHT. Notwithstanding Section 21.103, the
right to repurchase provided by this subchapter is extinguished on the first anniversary of the expiration of the
period for an entity to provide notice under Section 21.102 if the entity:
          ( 1) is required to provide notice under Section 21.1 02;
          (2) makes a good faith effort to locate and provide notice to each person entitled to notice before the
expiration of the deadline for providing notice under that section; and
          (3) does not receive a response to any notice provided under that section in the period for response
prescribed by Section 21.103.

Sec. 21.103. RESALE OF PROPERTY; PRICE.
     (a) Not later than the 180th day after the date of the postmark on a notice sent under Section 21.102 or a
response to a request made under Section 21.1021 that indicates that the property owner, or the owner's heirs,
successors, or assigns, is entitled to repurchase the property interest in accordance with Section 21.10 1, the
property owner or the owner's heirs, successors, or assigns must notify the entity of the person's intent to
repurchase the property interest under this subchapter.
     (b) As soon as practicable after receipt of a notice of intent to repurchase under Subsection (a), the entity
shall offer to sell the property interest to the person for the price paid to the owner by the entity at the time the
entity acquired the property through eminent domain. The person's right to repurchase the property expires on
the 90th day after the date on which the entity makes the offer.




NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION
FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS                                                                     Page 3 of5
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                                                             REGISTER OF ACTIONS
                                                                     CASE NO. 84262CC

City of Dallas Vs. Highway 205 Farms, LTD, Maurice Moore, Jr., et al            §                   Case Type: Condemnation
                                                                                §                   Date Filed: 08/30/2011
                                                                                §                     Location: DC County Court at Law
                                                                                §
                                                                                §


                                                                       P ARTY INFORMATION

                                                                                                                    Lead Attorneys
Defendant        Highway 205 Farms, LTD                                                                             Hayley D Ailshie
                                                                                                                      Retained
                                                                                                                    214­559­7200(W)
 
Defendant        Kaufman County
 
Defendant        Moore, Maurice E, Jr.                                                                              Hayley D Ailshie
                                                                                                                      Retained
                                                                                                                    214­559­7200(W)
 
Defendant        Terrell Independent School Disrict
 
Defendant        The Dow Chemical Company
 
Defendant        Trinity Valley Community College District
 
Plaintiff        City of Dallas                                                                                     Christopher C Gunter
                                                                                                                      Retained
                                                                                                                    214­670­4288(W)


                                                                  EVENTS & ORDERS  OF  THE  COURT

            OTHER EVENTS AND HEARINGS
08/30/2011  Original Petition (OCA)
08/31/2011  Order Appointing Special Commissioners
10/24/2011 Order
            
              Removing A Special Commissioner and And Appointing A Replacement Lee Schaffer is removed and CON BURT Is Appointed
11/18/2011 Oath of Special Commissioners
            
              DON BURT
11/18/2011 Oath of Special Commissioners
            
              ROBERT REPKA, JR.
11/18/2011 Oath of Special Commissioners
            
              WILLIAM JORDAN
09/26/2012 Notice of Appearance
            
              and Designation of Lead Counsel
03/07/2013 Motion to Dismiss
            
              FOR WANT OF PROSECUTION
03/21/2013  Notice of Hearing
03/27/2013 Notice
            
              of Special Commissioners' Hearing
03/27/2013 Notice
            
              of Special Commissioners' Hearing
03/27/2013 Order
            
              Setting Hearing
03/27/2013 Order
            
              Setting Hearing
03/27/2013 Order
            
              Setting Hearing
04/05/2013 Response
            
              Plf's ­ to Def's Motion to Dismiss for Want of Prosecution
04/15/2013 Response
             Reply to Plaintiff's Response to Defendants' Motion TO Dimiss For Want of Prosecution


04/17/2013  DWOP  (9:00 AM) (Judicial Officer Jones, Dennis P.)
04/17/2013 Notice
            
             of Special Commissioners' Hearing
04/17/2013 Notice
            
             of Special Commissioners' Hearing
04/17/2013 Other
            
                                                                           TAB 5
              1st amended statement in condemnation
04/17/2013  Order to Dismiss for Want of Prosecution
05/09/2013 Motion for Reinstatement
            
              Plaintiff's
05/09/2013 Order
            
              setting hearing
05/13/2013 Order
            
              Setting Hearing
05/29/2013 CANCELED   Motion to Reinstate  (9:00 AM) (Judicial Officer Jones, Dennis P.)
            
              Reset
06/12/2013 CANCELED   Motion to Reinstate  (9:00 AM) (Judicial Officer Jones, Dennis P.)
            
              Reset
06/19/2013 Response
            
              Defendant's Response to Plaintiff's Verified Motion To Reinstate
06/21/2013  Motion to Reinstate  (9:00 AM) (Judicial Officer Jones, Dennis P.)
06/21/2013 Order Denying
            
              Plf''s Motion to Reinstate
07/12/2013 Notice of Appeal
            
              accelerated
07/12/2013  Request for Preparation of Reporter's Record
07/12/2013  Request for Preparation of Clerk's Record
07/29/2013  Clerk's Record Sent Electronic
08/27/2013 Motion to Consolidate
            
              City's
08/27/2013 Other
            
              Mandamus Record
07/29/2014 Order
            
              from court of appeals
08/04/2014 Order
            
              to Reinstate Case
12/23/2014 Order
            
              Setting Hearing
12/23/2014 Order
            
              Setting Hearing
12/23/2014 Order
            
              Setting Hearing
01/21/2015  Award of Special Commissioners
01/22/2015 Notice
            
              Offical Notice From Supreme Court of Texas
01/30/2015 Objection
            
              to Award of Special Commissioners ­ Env #3959198
02/10/2015 Waiver
            
              Acceptance of Sercive ­ Env #4083639
03/12/2015  Notice
03/12/2015  Jury Fee Paid (OCA)
03/16/2015 Notice
            
              of Jury Trial
03/18/2015 Letter
            
              to Judge
03/25/2015 Notice
            
              of Deposit of Award
12/07/2015  Jury Trial  (8:30 AM) (Judicial Officer Jones, Dennis P.)


                                                                F INANCIAL  INFORMATION

                                                                                            
                                                                                            
             Attorney Gunter, Christopher C
             Total Financial Assessment                                                                           369.00
             Total Payments and Credits                                                                           369.00
             Balance Due as of 04/03/2015                                                                           0.00
                                                                                                              
08/30/2011   Transaction Assessment                                                                              217.00
09/16/2011   Payment                     Receipt # DC­100875                                City Of Dallas    (217.00)
07/16/2013   Transaction Assessment                                                                              112.00
07/17/2013   Transaction Assessment                                                                                10.00
07/29/2013   Transaction Assessment                                                                                20.00
07/29/2013   Transaction Assessment                                                                                10.00
08/20/2013   Payment                     Receipt # DC­112355                                City of Dallas    (122.00)
08/23/2013   Payment                     Receipt # DC­112428                                Bo Moore            (30.00)
                                                                                                              
                                                                                            
                                                                                            
             Plaintiff City of Dallas
             Total Financial Assessment                                                                            30.00
             Total Payments and Credits                                                                            30.00
             Balance Due as of 04/03/2015                                                                           0.00
                                                                                                              
03/12/2015   Transaction Assessment                                                                                 30.00
03/12/2015   EFile Payment               Receipt # DC­121049                                City of Dallas        (30.00)
                                                                                                              
