          THEATTORNEY                 GENERAL
                        0eT~xAs




Jr. Bill Thomas                   Opinion Xo. WJ-956
County Attorney
Taylor County                     .Re: i:lhether
                                               or not Rule 42 of'
Abilene, Texas                         Vernon's Texas Rules of
                                       Civil Procedure, relating
                                       to Class >&ions, will
                                       apply to Rminent Domain
Dear Mr. Thomas:                       proceedings.
     The essential portions of your request for an opinion
are as follows:
          "In conjunction Mth our extensive program of
     acquisition of rights of vJaythrough eminent domain
     proceedings, the problem of bringing all of the
     interested parties before the Court has become
     intensified by the fact that in numerous occasions
     infinite interests are held by persons unknown and
     if known are beyond the Jurisdiction of our Court;
     therefore, I respectfully request your opinion as
     to whether or not Rule 42 of Vernon's Texas Rules
     of Civil Procedure, which relates to Class Actions,
     will apply to eminent domain proceedings."
     Your request calls for a construction of Rule 42.
     Rule 42 is titled "class actfons" and provides that under
certain conditions when persons cqnstituting a class are so
numerous as to make it impracticable to bring them before the
court, a class action may be brought dispensing with the neces-
sity of naming and citing everyone :!homight be interested in
the litigation.
     .!condemnation proceeding is unique in that it is not filed
in court nor with the clerk of any court but under Article 3264,
Section 1 of the Statutes, the Petition or #Statementis filed
?ziththe County Judge. ??h 1s is therefore a special proceeding
and is in no sense a court action u?on the filing of same,
Article 3266, Section 6, of'the Lltatutesprovides that if either
party be dissatisfied~with the decision, such party may within
ten days after the ,filing of the same with the County Judge file
objections thereto in writ?ng and thereupon the adverse party
shall be cited and the cause r,hallbe tried and determined as i.n
other civil causes in the County Court.
dr. Bill Thomas, page 2 (!i3j!-g56),.

     A condemnation proceeding, then, i.smerely a special pro-
ceeding and does not become a cause of action or court case
unless and until one of the parties is aggrieved and files
objections within the ten days prescribed by the Statute. This
is clearly established by ,theauthorities.
     Texas Jurisprudence> foll.o!>iing
                                    the Statute and the decisions,
lays do%n the rule that objections to the award convert the rro-
ceeding into a cause of action to be tried and determined as
other civil cases. 16 %ex. Jurisprudence, page 726, Section 386.
          "Condemnation nroceedings did not become cause
     to be tried unt&l ObjeCtions to the award were filed."
                        Slncla:irv. -^-
      Emphasis added). __--.           .-_ I 323 S.W.2d 651.
                                    Peters
      Beaumont C.C.A., 1959, n.V.h.7
          "Filing of objections converted the condemna-
     tion proceedings into a cause of action pending in
     the County Court." (Zmphasis added.)Gowie    v. Ford,
     300 .5.:X.2d
                671. (1%. IYorthC.C.&. 1957, n.w.h.)
     Cur Supreme Court has recently spoken on this matter and
held: ":'condemnation proceeding becomes a civil case if objec-
tions to the Commissioner's Award are filed within the prescribed
time." (Emphasis added) Pearson v. State, 315 S.W.2d 935
(Supreme Court 1958).
     To the same effect are                     247 S.U.2d 585,
(El i'asoC.C.?:.1952, error X&m.               Mard, 213 S.%'.2d
726, (71 ?aso C.C.&. 1948,
     Since at the time the condemnation proceeding is filed and
the parties defendant are listed, it -is.__-
                                         not a court action but
only a special proceeding filed r:ixthe County Judge, I:ule42
has no application. Part II, Rules of Civil Procedure, commen-
cing with Rule 15 and ending with Rule 351, deal only with
actions or cases in the district and county-..--
                                             courts and have no
application-%hatever-%%i~~pecial    proceeding in condemnation.
     It is therefore our op?.nion,and ':~ic
                                         so hold, that ;iule42
does no? apply tc condemnation proceedings and a "class action"
suit is Inapplicable.
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